Legislature(2017 - 2018)GRUENBERG 120

04/04/2018 01:00 PM JUDICIARY

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02:02:00 PM Start
02:03:52 PM HB387
02:27:44 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Delayed to a Call of the Chair --
Heard & Held
<Bill Hearing Canceled>
+ Bills Previously Heard/Scheduled TELECONFERENCED
            HB 387-AG SCHEDULE CONTROLLED SUBSTANCES                                                                        
2:03:52 PM                                                                                                                    
CHAIR CLAMAN announced  that the only order of  business would be                                                               
HOUSE BILL  NO. 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."                                                                                                         
CHAIR CLAMAN  advised that  HB 367  was previously  scheduled for                                                               
its second hearing  today.  Earlier this week,  the Senate passed                                                               
SB  202,  "An   Act  relating  to  the  liability   of  a  Native                                                               
corporation for  the release or  threatened release  of hazardous                                                               
substances present on  certain lands," which is  a companion bill                                                               
to HB 367.  Accordingly,  he stated, the House Judiciary Standing                                                               
Committee will hold HB 367 in  committee, and it will hear SB 202                                                               
on Monday.                                                                                                                      
2:04:22 PM                                                                                                                    
CHAIR CLAMAN  passed the gavel  to Vice Chair  Kreiss-Tomkins for                                                               
purposes of moving Amendment 1.                                                                                                 
2:04:34 PM                                                                                                                    
CHAIR CLAMAN  moved to adopt Amendment  1, labeled 30-LS1461\A.1,                                                               
Martin, 4/2/18, which read as follows:                                                                                          
     Page 3, following line 17:                                                                                                 
     Insert a new subsection to read:                                                                                           
          "(c)  The attorney general may schedule a                                                                             
      substance by emergency regulation under this section                                                                      
       only if the substance has been listed on a federal                                                                       
     controlled substance schedule."                                                                                            
     Reletter the following subsections accordingly.                                                                            
REPRESENTATIVE STUTES objected for purposes of discussion.                                                                      
2:04:38 PM                                                                                                                    
CHAIR  CLAMAN explained  that Amendment  1  responds to  concerns                                                               
raised in this committee, described  as the "twinkie" discussion,                                                               
as  to whether  the attorney  general  could list  twinkies as  a                                                               
controlled  substance  under this  bill.    In recognizing  those                                                               
concerns, he explained that Amendment  1 would limit the attorney                                                               
general to  only list substances  by emergency regulation  if the                                                               
substances  had already  been listed  on  a federally  controlled                                                               
substance  schedule.    He  explained   that  the  point  of  the                                                               
amendment is to limit the attorney general's discretion.                                                                        
2:05:27 PM                                                                                                                    
REPRESENTATIVE EASTMAN proposed a  conceptual amendment to delete                                                               
the words on Amendment 1, page  1, line 4, "has been" listed, and                                                               
change it  to "is  currently" listed,  because the  language "has                                                               
been" listed may  include marijuana, for example, and  if it were                                                               
to  be  removed from  the  federal  list tomorrow,  the  attorney                                                               
CHAIR  CLAMAN interjected  that he  did not  have a  problem with                                                               
Representative Eastman's conceptual amendment.                                                                                  
2:06:52 PM                                                                                                                    
ROBERT  HENDERSON, Deputy  Attorney  General, Criminal  Division,                                                               
Department   of  Law   (DOL),   advised  that   based  upon   his                                                               
understanding of  the conceptual amendment, "would  it impair our                                                               
ability to  schedule those  (indisc.) drugs as  they come  on the                                                               
2:07:05 PM                                                                                                                    
VICE-CHAIR KREISS-TOMKINS  asked Mr.  Henderson, as  to Amendment                                                               
1,  whether  there  are any  substances  the  attorney  general's                                                               
office  would  like  to  list   that  are  not  federally  listed                                                               
MR.  HENDERSON  answered that  there  are  no current  drugs  the                                                               
attorney general's  office would  like to list.   There  are some                                                               
controlled substances  that are  listed differently, but  none at                                                               
this point, he said.                                                                                                            
2:07:44 PM                                                                                                                    
REPRESENTATIVE EASTMAN  moved to adopt Conceptual  Amendment 1 to                                                               
Amendment 1, and  replace "has been" listed,  with "is currently"                                                               
listed.   There  being no  objection, Conceptual  Amendment 1  to                                                               
Amendment 1 was adopted.                                                                                                        
2:08:09 PM                                                                                                                    
REPRESENTATIVE STUTES  removed her  objection to Amendment  1, as                                                               
amended.  There being no  objection, Amendment 1, as amended, was                                                               
2:08:21 PM                                                                                                                    
CHAIR CLAMAN  moved to adopt Amendment  2, labeled 30-LS1461\A.2,                                                               
Martin, 4/2/18, which read as follows:                                                                                          
     Page 6, line 31, through page 7, line 14:                                                                                  
          Delete all material and insert:                                                                                       
          "(c)  A substance scheduled by the attorney                                                                           
     general  by  emergency  regulation  under  AS 11.71.125                                                                    
     will  remain  on  the   schedule  under  the  emergency                                                                    
     regulation  for  a period  not  to  exceed three  years                                                                    
     unless the  legislature schedules the substance  by law                                                                    
     or annuls the regulation by law."                                                                                          
REPRESENTATIVE STUTES objected for purposes of discussion.                                                                      
2:08:25 PM                                                                                                                    
CHAIR  CLAMAN  noted  that Amendment  2  contains  a  handwritten                                                               
modified amendment  changing "three years" to  "1,095 days" which                                                               
is  three years,  and the  drafting change  was suggested  by the                                                               
Department of Law  (DOL).  The purpose of Amendment  2 is to make                                                               
certain the  legislature is involved  in this discussion,  and if                                                               
the legislature  chooses not  to make the  substance part  of the                                                               
schedule,  it  would lapse.    He  explained  that it  gives  the                                                               
attorney  general  authority for  a  period  of  time to  list  a                                                               
controlled  substance,  but if  the  attorney  general could  not                                                               
convince the legislature  of the merits of that  action, it would                                                               
no longer be listed as a controlled substance.                                                                                  
2:09:46 PM                                                                                                                    
REPRESENTATIVE LEDOUX commented that three  years appears to be a                                                               
long period  of time  for an emergency  regulation to  exist, and                                                               
suggested a conceptual amendment of one-year.                                                                                   
VICE CHAIR  KREISS-TOMKINS suggested hearing from  the sponsor of                                                               
Amendment  2   and  any  other  committee   discussion  prior  to                                                               
suggesting conceptual amendments.                                                                                               
2:09:50 PM                                                                                                                    
CHAIR  CLAMAN offered  that on  the one  hand, three  years seems                                                               
like a long time, but this  is his fourth year in the legislature                                                               
and the speed  with which the legislature  sometimes takes action                                                               
does not  always inspire  folks.   He opined  that the  time here                                                               
recognizes  that  oftentimes  controlled  substances  have  taken                                                               
longer  than one  year for  the legislature  to pass  even though                                                               
there was  not a lot of  debate about the merits  of listing that                                                               
substance.  Therefore,  he pointed out, the reason  for the three                                                               
years is to  allow enough time to potentially  give two different                                                               
legislatures an opportunity to act.                                                                                             
REPRESENTATIVE  LEDOUX  responded  that perhaps  the  reason  the                                                               
legislature,  "although there  was not  a huge  amount of  debate                                                               
about  it, perhaps  it wasn't  actually a  true emergency."   She                                                               
related that  she could  not imagine  that the  legislature would                                                               
not get its  act together if a significant number  of people were                                                               
dying from a substance.                                                                                                         
2:11:24 PM                                                                                                                    
REPRESENTATIVE EASTMAN  noted that the  last line of  Amendment 2                                                               
states that  the legislature might  annul the regulation  by law,                                                               
and he questioned how the legislature would go about doing so.                                                                  
CHAIR  CLAMAN   advised  that  the   language  was   proposed  by                                                               
Legislative Legal and Research Services.                                                                                        
MR. HENDERSON answered  that the Alaska Supreme  Court has spoken                                                               
to  this issue  and  for the  legislature to  annul  or repeal  a                                                               
regulation,  the   legislature  must  follow  the   mechanics  of                                                               
legislation.  He  then referred to his  3/16/18 testimony wherein                                                               
he discussed  the State  of Alaska  v. A.L.I.V.E.  Voluntary, 606                                                             
P.2d 769 (1980) lawsuit.                                                                                                        
2:12:44 PM                                                                                                                    
REPRESENTATIVE EASTMAN asked whether  the governor is required to                                                               
act in  any manner, or whether  once the bill passed  both houses                                                               
the action would be complete.                                                                                                   
MR. HENDERSON responded that the  governor would have to sign the                                                               
annulment into law.                                                                                                             
2:13:20 PM                                                                                                                    
REPRESENTATIVE STUTES removed her objection to Amendment 2.                                                                     
VICE-CHAIR KREISS-TOMKINS objected for purposes of discussion.                                                                  
2:13:33 PM                                                                                                                    
REPRESENTATIVE LEDOUX  moved to  adopt Conceptual Amendment  1 to                                                               
Amendment  2,  by  deleting  "three   years  or  1095  days"  and                                                               
inserting "one year or 365 days" on page 1, line 5.                                                                             
CHAIR CLAMAN objected to Conceptual Amendment 1.                                                                                
2:14:08 PM                                                                                                                    
REPRESENTATIVE EASTMAN  said that  one year  is more  than enough                                                               
time for  the legislature  to take  action if  there truly  is an                                                               
emergency, and  in the event  the legislature is not  inspired to                                                               
act, he  questioned whether  it should  actually be  an emergency                                                               
regulation.  He related that he  would like to see this emergency                                                               
provision used only in dire emergencies.                                                                                        
2:14:57 PM                                                                                                                    
REPRESENTATIVE KOPP  stated that  he will not  support Conceptual                                                               
Amendment 1.   When  thinking back through  all of  the substance                                                               
control bills, he could remember,  he could not remember a single                                                               
bill moving through  the legislature in one year.   Generally, he                                                               
pointed out, it  is a full legislative session  and an additional                                                               
year, even with an agreement,  because many things that cannot be                                                               
controlled affects  the speed in  which legislators can act.   He                                                               
asked whether the  sponsor would be willing to move  to two years                                                               
because  limiting it  to one  year assumes  the legislature  will                                                               
move quickly through the process and debate.                                                                                    
REPRESENTATIVE  LEDOUX   commented  that  if  she   could  obtain                                                               
additional votes by moving from one  year to two years, she would                                                               
be happy to change the conceptual amendment.                                                                                    
VICE-CHAIR  KREISS-TOMKINS  related  that  he is  averse  to  any                                                               
conceptual  amendments  as  he  has "pretty  low  faith"  in  the                                                               
legislature to act decisively or intelligently on most issues.                                                                  
2:16:53 PM                                                                                                                    
CHAIR CLAMAN noted that he understands  the appeal to make it 720                                                               
days,  but in  the end  this provision  is about  trying to  give                                                               
maximum   flexibility  to   the  administration's   prosecutorial                                                               
function without  being hindered by possible  legislative delays.                                                               
In  the  event the  state  has  a  controlled substance  that  is                                                               
actively being  prosecuted, he does  not want to have  to explain                                                               
to someone  that last  month something  could be  prosecuted, and                                                               
this  month it  could not  because the  legislature "just  didn't                                                               
quite get  done."  The 1,095  days is a vital  step in protecting                                                               
public  safety and  he will  not  support lowering  the base,  he                                                               
REPRESENTATIVE KOPP  offered his understanding, from  reading the                                                               
amendment  in  context, that  the  legislature  could, if  it  so                                                               
desired, act  swiftly because there  is nothing in  the amendment                                                               
to prevent that action.                                                                                                         
2:18:50 PM                                                                                                                    
REPRESENTATIVE   LEDOUX  withdrew   Conceptual  Amendment   1  to                                                               
Amendment 2,  but she said  she probably cannot support  the bill                                                               
without the amendment.                                                                                                          
2:18:36 PM                                                                                                                    
REPRESENTATIVE EASTMAN  moved to adopt Conceptual  Amendment 2 to                                                               
Amendment 2, which  would change the time period to  912 days, or                                                               
2.5 years.                                                                                                                      
CHAIR CLAMAN objected.                                                                                                          
VICE   CHAIR  KREISS-TOMKINS   clarified   that  the   conceptual                                                               
amendment would  delete the word  "1095" and insert "912,"  as to                                                               
Amendment 2, page 1, line 5.                                                                                                    
CHAIR CLAMAN maintained his objection.                                                                                          
2:19:46 PM                                                                                                                    
A  roll call  vote was  taken.   Representative Eastman  voted in                                                               
favor of the  adoption of Conceptual Amendment 2  to Amendment 2.                                                               
Representatives LeDoux, Kreiss-Tomkins,  Kopp, Stutes, and Claman                                                               
voted  against  it.    Therefore,   the  adoption  of  Conceptual                                                               
Amendment 2 to Amendment  2 failed to be adopted by  a vote of 1-                                                               
VICE CHAIR  KREISS-TOMKINS returned  the committee  to discussion                                                               
of Amendment 2, and withdrew his objection.                                                                                     
REPRESENTATIVE EASTMAN objected.                                                                                                
2:20:46 PM                                                                                                                    
REPRESENTATIVE  LEDOUX advised  that she  was unavailable  during                                                               
the first  hearing on HB 387,  and referred to [page  7, lines 1-                                                               
2], which read as follows:                                                                                                      
     under AS 11.71.125 may remain on the schedule under                                                                        
     the emergency regulation for a period not to exceed                                                                        
     720 days.                                                                                                                  
REPRESENTATIVE LEDOUX asked whether  Amendment 2 is increasing it                                                               
to 1,095 days.                                                                                                                  
CHAIR  CLAMAN  answered  that when  the  attorney  general  lists                                                               
something under  an emergency  basis, it has  720 days  after the                                                               
listing  to  complete  the  process   in  making  the  regulation                                                               
permanent.  In  the event the attorney general  complied with the                                                               
process and made it a  permanent regulation within that 720 days,                                                               
the emergency regulation would continue in effect.                                                                              
2:22:21 PM                                                                                                                    
MR.  HENDERSON responded  that Chair  Claman was  correct.   This                                                               
legislation was originally drafted  to allow the attorney general                                                               
to  make  the emergency  regulation  permanent  using the  normal                                                               
process,  and   within  those  two   years  it  would   give  the                                                               
legislature  time to  act.   The reason  being, he  explained, is                                                               
because  when  an  emergency regulation  expires,  the  emergency                                                               
regulation cannot be re-issued.  For  example, if a new drug hits                                                               
the market and  the attorney general schedules the  drug, and for                                                               
whatever reason  the legislature  fails to act  or fails  to keep                                                               
the drug  on the schedule,  that emergency regulation  would come                                                               
off the schedule.  Thereby,  he explained, the attorney general's                                                               
hands would  be tied and  unable to  move forward with  that drug                                                               
until the legislature acted.                                                                                                    
2:23:51 PM                                                                                                                    
REPRESENTATIVE  LEDOUX surmised  that  under  the original  bill,                                                               
emergency  regulations  expired  within  720  days,  and  due  to                                                               
Amendment 2, the time period moved from 720 days to 1,092 days.                                                                 
MR. HENDERSON  replied that  Representative LeDoux  was partially                                                               
correct,  and clarified  that it  moves from  720 days  to 1,095;                                                               
however,  under the  original draft,  the attorney  general could                                                               
make  the  regulation  permanent  by  going  through  the  normal                                                               
regulation  process.    For example,  additional  public  comment                                                               
period,  additional   solicitation  of  input,  and   filing  the                                                               
regulation with  the Lieutenant Governor.    Amendment  2 deletes                                                               
the attorney  general's ability to make  the regulation permanent                                                               
through  the   administrative  code.     He  asked   whether  his                                                               
explanation made sense.                                                                                                         
REPRESENTATIVE LEDOUX answered "No."                                                                                            
VICE-CHAIR  KREISS-TOMKINS explained  that  Amendment 2  actually                                                               
weakens the executive branch's power.   He further explained that                                                               
HB  387,  as written,  the  administration  can permanently  list                                                               
substances, and with Amendment 2,  that power expires after three                                                               
years unless the legislature acts more readily.                                                                                 
2:24:39 PM                                                                                                                    
CHAIR CLAMAN added  that if the attorney general  finds itself at                                                               
600 days,  for example,  and the legislature  had not  acted, the                                                               
attorney general could  then start the process of  going past the                                                               
emergency  period   by  applying   for  an  extension   with  the                                                               
Lieutenant Governor.                                                                                                            
REPRESENTATIVE LEDOUX asked, "Now?"                                                                                             
CHAIR CLAMAN  explained that with  Amendment 2, there is  the two                                                               
year  timeline  on the  emergency  regulation,  and the  attorney                                                               
general  then  takes  the  administrative  steps  to  make  it  a                                                               
permanent regulation  which buys  another year of  the regulation                                                               
while waiting for the legislature to act.                                                                                       
MR. HENDERSON  added, "If  we make  the regulation  permanent, it                                                               
stays permanent," so it is not an additional year.                                                                              
2:25:32 PM                                                                                                                    
CHAIR CLAMAN agreed, and he said  that if the legislature did not                                                               
act by the third year, it goes away anyway.                                                                                     
MR. HENDERSON answered, "Under Amendment  2, the AG cannot make a                                                               
regulation permanent."                                                                                                          
REPRESENTATIVE LEDOUX asked, "Under Amendment 2, never.  Okay."                                                                 
REPRESENTATIVE EASTMAN maintained his objection to Amendment 2.                                                                 
2:26:22 PM                                                                                                                    
A  roll call  vote was  taken.   Representatives Stutes,  LeDoux,                                                               
Kreiss-Tomkins, Kopp, and  Claman voted in favor  of the adoption                                                               
of  Amendment  2.    Representative  Eastman  voted  against  it.                                                               
Therefore, Amendment 2 was adopted by a vote of 5-1.                                                                            
[VICE  CHAIR  KREISS-TOMKINS  passed  the  gavel  back  to  Chair                                                               
[HB 387 was held over.]                                                                                                         

Document Name Date/Time Subjects
HB387 ver A 3.16.18.PDF HJUD 3/16/2018 1:00:00 PM
HJUD 4/4/2018 1:00:00 PM
HB 387
HB387 Sponsor Statement 3.16.18.pdf HJUD 3/16/2018 1:00:00 PM
HJUD 4/4/2018 1:00:00 PM
HB 387
HB387 Amendments #1-2 4.4.18.pdf HJUD 4/4/2018 1:00:00 PM
HB 387
HB387 Amendments #1-2 HJUD Votes.pdf HJUD 4/4/2018 1:00:00 PM
HB 387