Legislature(2017 - 2018)BARNES 124


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved CSHB 264(CRA) Out of Committee
Moved HJR 30 Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
              HB 264-SHOPPING BAG FEES & RECYCLING                                                                          
8:14:16 AM                                                                                                                    
CO-CHAIR PARISH announced that the  final order of business would                                                               
be HOUSE BILL  NO. 264, "An Act relating to  a fee for disposable                                                               
shopping bags;  relating to the  sale of reusable  shopping bags;                                                               
relating  to  the  recycling of  disposable  shopping  bags;  and                                                               
providing for an effective date."                                                                                               
8:15:01 AM                                                                                                                    
The committee took a brief at-ease at 8:15 a.m.                                                                                 
8:15:42 AM                                                                                                                    
CO-CHAIR PARISH moved to adopt Amendment 1, labeled 30-                                                                         
LS1178\J.1, Nauman, 2/21/18, which read as follows:                                                                             
     Page 1, line 8:                                                                                                            
          Delete "and (c)"                                                                                                      
          Insert ", (c), and (i)"                                                                                               
     Page 3, following line 21:                                                                                                 
     Insert a new subsection to read:                                                                                           
          "(i)  This section does not apply to a retail                                                                         
         seller in a municipality or an unincorporated                                                                          
     community   if  the   municipality  or   unincorporated                                                                    
     community has a population of less than 5,500 people."                                                                     
     Reletter the following subsection accordingly.                                                                             
     Page 4, line 1:                                                                                                            
          Delete all material.                                                                                                  
     Renumber the following sub-subparagraph accordingly.                                                                       
     Page 4, line 5:                                                                                                            
          Delete "an"                                                                                                           
          Insert "a retail"                                                                                                     
          Delete "$100,000"                                                                                                     
     Insert "$250,000"                                                                                                          
REPRESENTATIVE DRUMMOND objected for discussion.                                                                                
CO-CHAIR PARISH  spoke to Amendment  1, which he  indicated would                                                               
delete  ["operates year-round"  from  the  definition of  "retail                                                               
seller"]  and  increase  the  amount   of  $100,000  to  $250,000                                                               
pertaining to  the gross sales  of retail sellers.   He explained                                                               
he proposed the deletion of  "operates year-round" out of concern                                                               
for seasonal businesses.                                                                                                        
8:17:45 AM                                                                                                                    
CO-CHAIR  PARISH  referred  to  a  response  from  Emily  Nauman,                                                               
Legislative Legal and Research Services,  to a question regarding                                                               
equal protection  [memorandum included in the  committee packet].                                                               
Ms. Nauman's response read as follows:                                                                                          
     3.  Equal  Protection.   Exempting  retail  sellers  in                                                                  
     communities under  a certain  size from the  retail bag                                                                    
     fee and recycling and reusable  bag requirements of the                                                                    
     bill  triggers an  equal protection  concern under  the                                                                    
     state and federal constitutions.   "The common question                                                                    
     in  addressing equal  protection cases  is whether  two                                                                    
     groups  of  people  who  are  treated  differently  are                                                                    
     similarly   situated  and   thus   entitled  to   equal                                                                    
     treatment."  In  order for an exemption from  tax to be                                                                    
     valid under the state's  equal protection test, it must                                                                    
     be reasonable, not arbitrary, and  must bear a fair and                                                                    
     substantial  relation  to   a  legitimate  governmental                                                                    
     objective.     To  survive  judicial  scrutiny,   at  a                                                                    
     minimum,  a  legitimate  governmental purpose  must  be                                                                    
     served.    You  will  be  responsible  for  building  a                                                                    
     legislative   record   that   demonstrates   both   the                                                                    
     governmental  purpose  in  the  exemption  provided  to                                                                    
     retain sellers  in the amendment and  how the exemption                                                                    
     fairly  relates  to the  purpose.    The outcome  of  a                                                                    
     challenge to the exempting may  very well depend on the                                                                    
     record you build.                                                                                                          
8:19:06 AM                                                                                                                    
The committee took an at-ease from 8:19 a.m. to 8:22 a.m.                                                                       
8:22:02 AM                                                                                                                    
CO-CHAIR PARISH invited  discussion on Amendment 1.   He said the                                                               
question is whether it is  helpful to include communities below a                                                               
certain population threshold.                                                                                                   
8:23:02 AM                                                                                                                    
REPRESENTATIVE  ANDY  JOSEPHSON,  Alaska  State  Legislature,  as                                                               
prime  sponsor   of  HB   264,  imparted   that  he   had  taught                                                               
constitutional law for  six years.  He said the  normal test that                                                               
is applied  in any equal  protection case is to  consider whether                                                               
people  in similarly  situated classes  are treated  differently.                                                               
He said, "Here, I would  think that because all communities under                                                               
5,500 would be treated the same,  ... that wouldn't be a problem.                                                               
However, as  noted by Ms.  Nauman, he  said there should  be some                                                               
discussion as to why the distinction  is being made.  He said, "I                                                               
would leave  it to the  committee as  to the purpose  behind that                                                               
distinction."  In response to  Co-Chair Parish, he said there are                                                               
no other  areas of objection  in terms  of Amendment 1,  which he                                                               
said  he  thinks  would  improve  HB 264.    He  said  there  are                                                               
"communities that  are doing it  anyway" and [Amendment  1] would                                                               
allow communities  to "opt in" to  ban or seek a  fee for plastic                                                               
8:25:34 AM                                                                                                                    
REPRESENTATIVE  SADDLER   expressed  appreciation  that   in  the                                                               
memorandum there are [definitions  under various statutes] of the                                                               
word "community".                                                                                                               
CO-CHAIR PARISH  read the definitions and  corresponding statutes                                                               
that are found in the aforementioned memorandum.                                                                                
8:27:22 AM                                                                                                                    
REPRESENTATIVE LINCOLN noted one of  the features of HB 264 would                                                               
be  that it  would  impose  a 20-cent  tax  on  plastic bags  but                                                               
"municipalities would be able to impose  their own tax up to that                                                               
point"  and potentially  capture the  revenue from  that tax  for                                                               
local use.   He pointed  out that unincorporated villages  do not                                                               
have that  same opportunity,  so he said  the committee  needs to                                                               
"figure out a way to work with unincorporated villages."                                                                        
8:28:29 AM                                                                                                                    
REPRESENTATIVE TALERICO observed the  committee had been provided                                                               
a list of communities that have  a ban [included in the committee                                                               
packet],  and most  of  those communities  have  a population  of                                                               
below 5,500.   He  observed the bill  identifies retail  seller -                                                               
not boundaries  - and Amendment  1 provides boundaries.   He said                                                               
there are retail sellers that  serve more than one community, and                                                               
he questioned whether that may become an issue.                                                                                 
8:30:53 AM                                                                                                                    
CO-CHAIR PARISH directed attention to page  3, line 28, of HB 264                                                               
and read  the definition of  "retail seller".  He  concluded that                                                               
the location of a corporate office would be immaterial.                                                                         
CO-CHAIR  PARISH  noted  Doug   Gardner,  Legislative  Legal  and                                                               
Research Services, was available on line.                                                                                       
8:32:17 AM                                                                                                                    
REPRESENTATIVE DRUMMOND said  she was not sure  Amendment 1 would                                                               
accomplish  the intent  of  the sponsor,  which  she offered  her                                                               
understanding  is  to  encourage  communities  to  protect  their                                                               
environments.  She opined that  seasonal businesses should not be                                                               
exempted and asked  for confirmation that they would  be under HB
CO-CHAIR PARISH answered yes, they  would be under HB 264, unless                                                               
they  have annual  gross  sales of  over  $100,000.   Conversely,                                                               
under Amendment 1 they would no longer be exempted.                                                                             
REPRESENTATIVE  DRUMMOND  offered  her understanding  that  under                                                               
Amendment 1,  "they will be  required to tax the  distribution of                                                               
plastic bags like this to  their costumers and encourage ... them                                                               
to bring their own, but the  tax continues to apply in a seasonal                                                               
CO-CHAIR PARISH  answered that  is correct,  unless the  sales of                                                               
that business  were less than  $250,000 in the  previous calendar                                                               
REPRESENTATIVE DRUMMOND  removed her  objection to the  motion to                                                               
adopt Amendment 1.                                                                                                              
8:35:01 AM                                                                                                                    
REPRESENTATIVE   SADDLER   concluded   that   essentially   under                                                               
Amendment  1 a  seasonal operations  threshold would  be replaced                                                               
with a retail sales threshold.                                                                                                  
CO-CHAIR PARISH  answered not exactly.   He explained  the retail                                                               
sales   threshold   already  existed,   on   page   4,  line   5,                                                               
[subparagraph](b), which read as follows:                                                                                       
                         (B)   an  establishment   that  has                                                                    
     annual gross sales of $100,000  or more in the previous                                                                    
     calendar  year and  that  provides disposable  shopping                                                                    
CO-CHAIR PARISH said  that threshold struck him as low.   He said                                                               
he did  not want  to "capture businesses  that are  just starting                                                               
out."   Amendment  1 would  raise  the threshold  to make  things                                                               
easier for new businesses transitioning into the economy.                                                                       
REPRESENTATIVE  SADDLER offered  his  understanding that  whether                                                               
$100,000 or $250,000  a year retail, that  becomes the threshold.                                                               
He said, "By the amendment's illumination  of page 4, line 1, you                                                               
eliminate the  seasonality and  leave yourself  with the  test of                                                               
the retail sales threshold, unless I'm misunderstanding it."                                                                    
CO-CHAIR PARISH answered that is  correct.  He made a distinction                                                               
between [subparagraphs]  (A) and (B)  as being  (A) or (B)  - two                                                               
markers of a  retail seller - and indicated  that under Amendment                                                               
1,  (B) would  state  "annual gross  sales  of $250,000"  instead                                                               
REPRESENTATIVE  SADDLER   [objected]  to  the  motion   to  adopt                                                               
Amendment 1.                                                                                                                    
8:37:25 AM                                                                                                                    
A roll  call vote was  taken.  Representatives  Drummond, Kreiss-                                                               
Tomkins  (alternate),  Lincoln,  and  Parish voted  in  favor  of                                                               
Amendment 1.  Representatives Talerico  and Saddler voted against                                                               
it.  Therefore, Amendment 1 was adopted by a vote of 4-2.                                                                       
8:38:19 AM                                                                                                                    
REPRESENTATIVE  TALERICO expressed  appreciation  to the  sponsor                                                               
for the  intent of  HB 264.   He  referred again  to the  list of                                                               
those communities  that have established [bans  on plastic bags],                                                               
and he noted that for some the process  took up to ten years.  He                                                               
applauded their  efforts.  He  said he thinks  municipalities can                                                               
"do this" and are "probably moving  towards that," and he said he                                                               
has a lot of confidence in  municipal and tribal governments.  He                                                               
stated, "For  that particular reason,  I won't be  supporting the                                                               
bill."   He  expressed  concern  about the  20-cent  fee and  the                                                               
inventory and accounting measures that would be needed.                                                                         
8:40:37 AM                                                                                                                    
REPRESENTATIVE  SADDLER said  he would  object to  passage of  HB
264, [as  amended].  He  recalled the  sponsor had said  that his                                                               
ultimate goal  was a statewide  ban on  plastic bags but  that he                                                               
thought a statewide  [fee imposed on plastic bags]  as being more                                                               
achievable.   He said  setting up the  apparatus for  a statewide                                                               
tax  when the  next step  could  be a  total ban  is "onerous  on                                                               
business  and confusing  and  costly  to the  public."   He  said                                                               
having spoken  with people on both  sides of the issue,  it seems                                                               
there are other remedies that could be at least as effective.                                                                   
8:41:41 AM                                                                                                                    
CO-CHAIR  PARISH  noted  there  is   one  fiscal  note  from  the                                                               
Department  of  Revenue  for  a  $222,000  expenditure  and  $3.3                                                               
million in revenue starting 2020.   He said the next committee of                                                               
referral  would   be  the  House  Labor   and  Commerce  Standing                                                               
8:42:24 AM                                                                                                                    
REPRESENTATIVE  DRUMMOND asked  for  confirmation  that under  HB
264, [as amended], the 20-cent fee  would be part of the purchase                                                               
price rather than a tax.                                                                                                        
CO-CHAIR PARISH confirmed the fee would be per bag.                                                                             
8:43:38 AM                                                                                                                    
REPRESENTATIVE   SADDLER    proffered   that   the    answer   to                                                               
Representative Drummond's question was  in [Section 1, subsection                                                               
(d)], beginning  on page 2, line  20.  He noted  that [subsection                                                               
(e)] states  that [the  retail seller] will  report to  the state                                                               
[the fees collected].                                                                                                           
CO-CHAIR PARISH  offered his understanding that  25 percent would                                                               
be  maintained  by  the  retail  seller to  offset  the  cost  of                                                               
administrating the  program and  for the recycling.   He  said as                                                               
Representative Talerico  mentioned earlier, a  municipality would                                                               
have the  option of  supplanting the  state fee  with one  of its                                                               
8:44:48 AM                                                                                                                    
REPRESENTATIVE LINCOLN  moved to report  HB 264, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying fiscal note.                                                                                                       
8:45:03 AM                                                                                                                    
REPRESENTATIVE TALERICO objected.                                                                                               
8:45:14 AM                                                                                                                    
A roll call  vote was taken.   Representatives Lincoln, Drummond,                                                               
Kreiss-Tomkins  (alternate), and  Parish  voted in  favor of  the                                                               
motion  to report  HB  264,  as amended,  out  of committee  with                                                               
individual  recommendations  and  the accompanying  fiscal  note.                                                               
Representatives   Talerico   and   Saddler  voted   against   it.                                                               
Therefore, CSHB 264(CRA) was reported  out of the House Community                                                               
and Regional Affairs Standing Committee by a vote of 4-2.                                                                       

Document Name Date/Time Subjects
HB264 Draft Proposed Amendment ver J-1.pdf HCRA 2/22/2018 8:00:00 AM
HB 264
HB264 Draft Proposed Amendment ver j-1 Leg Legal Memo.pdf HCRA 2/22/2018 8:00:00 AM
HB 264