HB 387: "An Act relating to scheduled substances; relating to the Controlled Substances Advisory Committee; and authorizing the attorney general to schedule substances by emergency regulation or repeal an emergency regulation that scheduled a substance."
00 HOUSE BILL NO. 387 01 "An Act relating to scheduled substances; relating to the Controlled Substances 02 Advisory Committee; and authorizing the attorney general to schedule substances by 03 emergency regulation or repeal an emergency regulation that scheduled a substance." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 11.71.100(c) is amended to read: 06 (c) The president of the Board of Pharmacy or the president's designee 07 [ATTORNEY GENERAL] is the chair [CHAIRMAN] of the committee. 08 * Sec. 2. AS 11.71.100(d) is amended to read: 09 (d) The committee meets at the call of the chair of the committee 10 [ATTORNEY GENERAL]. 11 * Sec. 3. AS 11.71.110 is amended to read: 12 Sec. 11.71.110. Duties of committee. The committee shall 13 (1) advise the governor of the need to add, delete, or reschedule 14 substances in the schedules in AS 11.71.140 - 11.71.190;
01 (2) recommend regulations for adoption by the Board of Pharmacy to 02 prevent excessive prescription of controlled substances and the diversion of 03 prescription drugs into illicit channels; 04 (3) evaluate the effectiveness of programs in the state providing 05 treatment and counseling for persons who abuse controlled substances; 06 (4) recommend programs to the Alaska Court System to be instituted 07 as alternatives to the prosecution or imprisonment of offenders who have no prior 08 criminal record involving controlled substance offenses and who are charged with 09 crimes involving controlled substances; 10 (5) review and evaluate enforcement policies and practices of the 11 Department of Public Safety and the Department of Law with regard to crimes 12 involving controlled substances, and recommend modifications of those policies and 13 practices consistent with the committee's assessment of the probable danger of 14 particular controlled substances; [AND] 15 (6) review budget requests and recommend amounts for appropriations 16 to the governor and the legislature for departments and agencies responsible for 17 (A) enforcing criminal laws pertaining to controlled 18 substances; 19 (B) providing treatment and counseling of persons who abuse 20 controlled substances; and 21 (C) regulating the legitimate handling of controlled substances; 22 and 23 (7) advise the attorney general of the need to schedule substances 24 by emergency regulation. 25 * Sec. 4. AS 11.71 is amended by adding a new section to read: 26 Sec. 11.71.125. Emergency substance scheduling. (a) The attorney general 27 may, by regulation, schedule a substance under this chapter regardless of whether the 28 substance is substantially similar to a controlled substance listed in AS 11.71.140 - 29 11.71.180, if the attorney general finds that scheduling the substance on an emergency 30 basis is necessary to avoid an immediate hazard to public safety. 31 (b) In determining whether to schedule a substance on an emergency basis, or
01 repeal an emergency regulation that scheduled a substance, the attorney general shall 02 (1) assess the degree of danger or probable danger of the substance by 03 considering 04 (A) the actual or probable abuse of the substance including the 05 (i) history and current pattern of abuse; 06 (ii) scope, duration, and significance of abuse of the 07 substance; and 08 (iii) degree of actual or possible detriment that may 09 result from abuse of the substance; and 10 (B) the risk to public health; 11 (2) consider whether the substance has been scheduled on a temporary 12 basis under federal law and may consider clandestine importation, manufacture, or 13 distribution of the substance; 14 (3) consult with the Controlled Substances Advisory Committee 15 established under AS 11.71.100; and 16 (4) consult with the chief medical officer in the Department of Health 17 and Social Services. 18 (c) The attorney general shall clearly indicate in an emergency regulation that 19 schedules a substance the appropriate schedule under this chapter that applies to the 20 substance. 21 (d) The attorney general shall post a notice on the Alaska Online Public 22 Notice System (AS 44.62.175) 30 days before the effective date of an emergency 23 regulation that schedules a substance. The notice must include 24 (1) a summary of the attorney general's findings under (b) of this 25 section; and 26 (2) the finding required for an emergency regulation under 27 AS 44.62.250(b). 28 (e) The attorney general may not adopt an emergency regulation under this 29 section that schedules an alcoholic beverage as defined in AS 04.21.080, marijuana as 30 defined in AS 17.38.900, or tobacco. 31 (f) An emergency regulation adopted under this section is subject to the
01 requirements in AS 44.62.260(c). 02 * Sec. 5. AS 11.71.900(4) is amended to read: 03 (4) "controlled substance" means a drug, substance, or immediate 04 precursor included in the schedules set out in AS 11.71.140 - 11.71.190 or included 05 in those schedules by an emergency regulation adopted under AS 11.71.125; 06 * Sec. 6. AS 11.71.900 is amended by adding a new paragraph to read: 07 (31) "substance" means a drug, controlled substance, or immediate 08 precursor included in the schedules set out in AS 11.71.140 - 11.71.190 or in an 09 emergency regulation adopted under AS 11.71.125, AS 44.62.250, and 44.62.260. 10 * Sec. 7. AS 44.23.020 is amended by adding a new subsection to read: 11 (j) The attorney general may by regulation schedule a substance on an 12 emergency basis as provided in AS 11.71.125 and AS 44.62 (Administrative 13 Procedure Act). 14 * Sec. 8. AS 44.62.175(a) is amended to read: 15 (a) The lieutenant governor shall develop and supervise the Alaska Online 16 Public Notice System, to be maintained on the state's site on the Internet. The 17 lieutenant governor shall prescribe the form of notices posted on the system by state 18 agencies. The Alaska Online Public Notice System must include 19 (1) notices of proposed actions given under AS 44.62.190(a); 20 (2) notices of state agency meetings required under AS 44.62.310(e), 21 even if the meeting has been held; 22 (3) notices of solicitations to bid issued under AS 36.30.130; 23 (4) notices of state agency requests for proposals issued under 24 AS 18.55.255, 18.55.320; AS 36.30.210; AS 37.05.316; AS 38.05.120; and 25 AS 43.40.010; 26 (5) executive orders and administrative orders issued by the governor; 27 (6) written delegations of authority made by the governor or the head 28 of a principal department under AS 44.17.010; 29 (7) the text or a summary of the text of a regulation or order of repeal 30 of a regulation for which notice is given under AS 11.71.125 or AS 44.62.190(a), 31 including an emergency regulation or repeal regardless of whether it has taken effect;
01 (8) notices required by AS 44.62.245(b) regarding an amended version 02 of a document or other material incorporated by reference in a regulation; 03 (9) a summary of the text of recently issued published opinions of the 04 attorney general; 05 (10) a list of vacancies on boards, commissions, and other bodies 06 whose members are appointed by the governor; 07 (11) in accordance with AS 39.52.240(h), advisory opinions of the 08 attorney general; [AND] 09 (12) notices required by AS 26.30.010(d) and (e) regarding 10 applications for military facility zones; and 11 (13) notices of substances scheduled by an emergency regulation 12 under AS 11.71.125. 13 * Sec. 9. AS 44.62.200(a) is amended to read: 14 (a) The notice of proposed adoption, amendment, or repeal of a regulation 15 must include 16 (1) a statement of the time, place, and nature of proceedings for 17 adoption, amendment, or repeal of the regulation; 18 (2) reference to the authority under which the regulation is proposed 19 and a reference to the particular code section or other provisions of law that are being 20 implemented, interpreted, or made specific; 21 (3) an informative summary of the proposed subject of agency action; 22 (4) other matters prescribed by a statute applicable to the specific 23 agency or to the specific regulation or class of regulations; 24 (5) a summary of the fiscal information required to be prepared under 25 AS 44.62.195; and 26 (6) for a regulation under AS 11.71.125, a summary of the attorney 27 general's compliance with the requirements of AS 11.71.125(b). 28 * Sec. 10. AS 44.62.250 is amended to read: 29 Sec. 44.62.250. Emergency regulations. Except for a regulation adopted 30 under AS 11.71.125, a [A] regulation or order of repeal may be adopted as an 31 emergency regulation or order of repeal if a state agency makes a written finding,
01 including a statement of the facts that constitute the emergency, that the adoption of 02 the regulation or order of repeal is necessary for the immediate preservation of the 03 public peace, health, safety, or general welfare. The requirements of AS 44.62.040(c), 04 44.62.060, and 44.62.190 - 44.62.215 do not apply to the initial adoption of 05 emergency regulations; however, upon adoption of an emergency regulation, the 06 adopting agency shall immediately submit a copy of it to the lieutenant governor for 07 filing and for publication in the Alaska Administrative Register, and, within five days 08 after filing by the lieutenant governor, the agency shall give notice of the adoption in 09 accordance with AS 44.62.190(a). Failure to give the required notice by the end of the 10 10th day automatically repeals the regulation. 11 * Sec. 11. AS 44.62.250 is amended by adding a new subsection to read: 12 (b) A regulation or order of repeal may be adopted as an emergency regulation 13 under AS 11.71.125 if the attorney general makes a written finding that the 14 requirements of AS 11.71.125 are met. The requirements of AS 44.62.190 - 44.62.215 15 do not apply to the adoption or order of repeal by the attorney general of a regulation 16 to schedule a substance by emergency regulation under AS 11.71.125. 17 * Sec. 12. AS 44.62.260 is amended to read: 18 Sec. 44.62.260. Limitation on effective period of emergency regulations. (a) 19 Except as provided in (c) of this section, a [A] regulation adopted as an emergency 20 regulation does not remain in effect more than 120 days unless the adopting agency 21 complies with AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 either before 22 submitting the regulation to the lieutenant governor or during the 120-day period. 23 (b) Except as provided in (c) of this section, before [BEFORE] the 24 expiration of the 120-day period, the agency shall transmit to the lieutenant governor 25 for filing a certification that AS 44.62.040(c), 44.62.060, and 44.62.190 - 44.62.215 26 were complied with before submitting the regulation to the lieutenant governor, or that 27 the agency complied with those sections within the 120-day period. Failure to so 28 certify repeals the emergency regulation; it may not be renewed or refiled as an 29 emergency regulation. 30 * Sec. 13. AS 44.62.260 is amended by adding a new subsection to read: 31 (c) A substance scheduled by the attorney general by emergency regulation
01 under AS 11.71.125 may remain on the schedule under the emergency regulation for a 02 period not to exceed 720 days. An emergency regulation adopted by the attorney 03 general under AS 11.71.125 does not remain in effect for more than 720 days unless 04 (1) the attorney general complies with AS 44.62.040(c), 44.60.060, 05 and 44.62.190 - 44.62.215 either before submitting the regulation to the lieutenant 06 governor or during the 720-day period; and 07 (2) before the expiration date of the 720-day period, the attorney 08 general transmits to the lieutenant governor for filing a certification that 09 AS 44.62.040(c), 44.60.060, and 44.62.190 - 44.62.215 were complied with before 10 submitting the regulation to the lieutenant governor, or that the attorney general 11 complied with AS 44.60.040(c), 44.62.060, and 44.62.190 - 44.62.215 within the 720- 12 day period; failure to certify the emergency regulation repeals the emergency 13 regulation; the emergency regulation may not be renewed or refiled as an emergency 14 regulation. 15 * Sec. 14. AS 44.62.270 is amended to read: 16 Sec. 44.62.270. State policy. It is the state policy that emergencies are held to 17 a minimum and are rarely found to exist. Nothing in this section limits the attorney 18 general from scheduling a substance by emergency regulation under 19 AS 11.71.125.