Legislature(1995 - 1996)
03/13/1996 01:14 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE March 13, 1996 1:14 p.m. MEMBERS PRESENT Representative Brian Porter, Chairman Representative Joe Green, Vice Chairman Representative Con Bunde Representative Al Vezey Representative Cynthia Toohey Representative David Finkelstein MEMBERS ABSENT Representative Bettye Davis COMMITTEE CALENDAR HOUSE BILL NO. 364 "An Act amending the definition of the offense of unlawful interference with voting in the first degree, a class C felony, to include conduct related to inducing a person to vote or to refrain from voting at an election and conduct related to acceptance of something offered or given to vote or to refrain from voting in an election." - MOVED CSHB 364(JUD) FROM COMMITTEE HOUSE BILL NO. 311 "An Act repealing the limitation on the hours a person may be employed in a mine; and making a related technical amendment to avoid changing the penalties for failing to make payments into an employee benefit fund." - MOVED 311(JUD) FROM COMMITTEE HOUSE BILL NO. 365 "An Act relating to the offense of possession of tobacco by a minor." - MOVED HB 365 FROM COMMITTEE HOUSE BILL NO. 517 "An Act relating to records and hearings of the Department of Public Safety; relating to a temporary permit to drive a motor vehicle; relating to regulation of motor vehicles and commercial motor vehicles; relating to renewal of a driver's license by mail; increasing the property damage amounts for proof of financial responsibility and proof of motor vehicle eligibility in order to lawfully operate a motor vehicle in the state; relating to certain notifications in accidents involving property damage; relating to motor vehicle registration procedures; and providing for an effective date." - SCHEDULED BUT NOT HEARD PREVIOUS ACTION BILL: HB 364 SHORT TITLE: UNLAWFUL INTERFERENCE WITH VOTING SPONSOR(S): REPRESENTATIVE(S) BUNDE JRN-DATE JRN-PG ACTION 12/29/95 2361 (H) PREFILE RELEASED 01/08/96 2361 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2361 (H) STA, JUDICIARY, FINANCE 03/11/96 3078 (H) STA REFERRAL WAIVED 03/13/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 311 SHORT TITLE: REPEAL LIMIT ON HOURS EMPLOYED IN MINES SPONSOR(S): REPRESENTATIVE(S) VEZEY,Toohey,Martin JRN-DATE JRN-PG ACTION 04/18/95 1351 (H) READ THE FIRST TIME - REFERRAL(S) 04/18/95 1351 (H) LABOR & COMMERCE, JUDICIARY 01/24/96 (H) L&C AT 3:00 PM CAPITOL 17 01/24/96 (H) MINUTE(L&C) 02/07/96 (H) L&C AT 3:00 PM CAPITOL 17 02/07/96 (H) MINUTE(L&C) 02/14/96 (H) L&C AT 3:00 PM CAPITOL 17 02/14/96 (H) MINUTE(L&C) 02/28/96 (H) L&C AT 3:00 PM CAPITOL 17 02/28/96 (H) MINUTE(L&C) 03/06/96 (H) L&C AT 3:00 PM CAPITOL 17 03/06/96 (H) MINUTE(L&C) 03/08/96 3020 (H) L&C RPT CS(L&C) NT 3NR 1AM 03/08/96 3020 (H) NR: SANDERS, ROKEBERG, KOTT 03/08/96 3020 (H) AM: PORTER 03/08/96 3020 (H) 2 ZERO FISCAL NOTES (DNR, LABOR) 03/11/96 (H) JUD AT 1:00 PM CAPITOL 120 03/11/96 (H) MINUTE(JUD) 03/13/96 (H) JUD AT 1:00 PM CAPITOL 120 BILL: HB 365 SHORT TITLE: MINOR IN POSSESSION OF TOBACCO SPONSOR(S): REPRESENTATIVE(S) BUNDE,James JRN-DATE JRN-PG ACTION 12/29/95 2361 (H) PREFILE RELEASED 01/08/96 2361 (H) READ THE FIRST TIME - REFERRAL(S) 01/08/96 2361 (H) STATE AFFAIRS, JUDICIARY 02/19/96 2812 (H) COSPONSOR(S): JAMES 02/27/96 (H) STA AT 8:30 AM CAPITOL 102 02/27/96 (H) MINUTE(STA) 03/05/96 (H) STA AT 8:00 AM CAPITOL 102 03/06/96 2989 (H) STA RPT 4DP 03/06/96 2990 (H) DP: JAMES, PORTER, OGAN, ROBINSON 03/06/96 2990 (H) ZERO FISCAL NOTE (DPS) 03/13/96 (H) JUD AT 1:00 PM CAPITOL 120 WITNESS REGISTER WEVLEY WILLIAM SHEA Attorney at Law 329 F Street, Suite 222 Anchorage, Alaska 99501 Telephone: (907) POSITION STATEMENT: Testified in support of HB 364. DIANE SHRINER Election Outreach and Training Coordinator Division of Elections State of Alaska P.O. Box 110017 Juneau, Alaska 99811-0017 Telephone: (907)465-4611 POSITION STATEMENT: Represented Division of Elections regarding HB 364. ED FLANAGAN, Deputy Commissioner Department of Labor State of Alaska P.O. Box 21149 Juneau, Alaska 99802-1149 Telephone: (907) 465-2700 POSITION STATEMENT: Testified on behalf of the Department of Labor, with regard to HB 311. DON ETHERIDGE Alaska State District Council of Laborers 709 West 9th Street Juneau, Alaska 99801 Telephone: (907)586-3707 POSITION STATEMENT: Testified on behalf of the Alaska State District Council of Laborers, with regard to HB 311. CLYNT NAUMAN, General Manager Kennecott Green's Creek Mine Juneau, Alaska Telephone: (907)789-8110 POSITION STATEMENT: Testified on behalf of Green's Creek Mining Company, regarding HB 311. REED R. STOOPS, Lobbyist 240 Main Street, Suite 600 Juneau, Alaska 99801 Telephone: (907)463-3223 POSITION STATEMENT: Testified on behalf of Green's Creek Mining Company, with regard to HB 311. JAMES F. CLARK Attorney at Law 801 West 10th Street, Suite 300 Juneau, Alaska 99801 Telephone: (907)586-3340 POSITION STATEMENT: Testified on behalf of Green's Creek Mining Company, with regard to HB 311. STACY GOADE 2154-C Lawson Creek Road Douglas, Alaska 99824 Telephone: (907)364-3418 POSITION STATEMENT: Representing the Juneau Tobacco Prevention Network and the Seven Circles Coalition, with regard to HB 365. ACTION NARRATIVE TAPE 96-34, SIDE A Number 000 CHAIRMAN BRIAN PORTER called the House Judiciary Committee meeting to order at 1:14 p.m.. Members present at the call to order were Representatives Porter, Bunde, Toohey, and Green. Representatives Vezey and Finkelstein arrived late. Representative Davis was absent. HB 364 - UNLAWFUL INTERFERENCE WITH VOTING Number 0015 CHAIRMAN BRIAN PORTER announced that the sponsor, Representative Con Bunde, would read the sponsor statement. REPRESENTATIVE BUNDE read the sponsor statement for HB 364, as follows: "As United States citizens, we have the right to vote no matter who we are or where we live. In Alaska our election process covers such a vast area that many people must travel great distances to vote. Despite some inconveniences we have a civic duty to vote for or against the candidates, propositions and questions on our state ballot and nobody has the right to interfere with the voting process. "The impetus for HB 364 is Dansereau v. Ulmer, which deals in part with unlawful interference with voting in the first degree. This case occurred after the 1994 Gubernatorial election and has yet to be completely resolved. (The complete case is available in the committee packet.) "The purpose of HB 364 is to align our state election law regarding unlawful interference with voting in the first degree with the federal election law. Alaska statute defines the crime of unlawful interference with voting in the first degree by requiring proof that a person was paid to vote for or against a particular candidate, proposition, or question. Whereas, federal election only requires proof that a person first was offered a prohibited incentive and then voted. "HB 364 amends AS 15.56.030 (a) by removing the requirement to prove that an incentive to vote must be for a particular candidate, proposition, or question. This proposed legislation only requires proof that a person first was offered a prohibited incentive and then voted. This change strengthens the prohibition against the use of some incentives for voting. "This proposed legislation is an important change to our election statutes. It clarifies that voters in Alaska cannot be paid for their vote. I urge the support of all legislators." Representative Bunde then invited questions from the committee. Number 0369 CHAIRMAN PORTER announced that Wevley Shea would testify via telephone, from his office in Anchorage. WEVLEY WILLIAM SHEA, Attorney at Law, stated he wished to testify because of the gross inequities which occurred in the 1994 gubernatorial election. He explained that the suit which prompted the legislation was brought by ten voters. The lawsuit itself did not allege wrongdoing by any of the candidates, but rather by third parties. Mr. Shea read from the court's decision in the Dansereau v. Ulmer lawsuit, as follows: "The right to vote encompasses the right to express one's opinion, and is the way to declare one's full membership in the political community. Thus, it is fundamental to our concept of democratic government. Moreover, a true democracy must seek to make each citizen's vote as meaningful as every other vote, to ensure the equality of all people under the law." Mr. Shea further explained that the decision states it is the legislature's responsibility to address the parameters of voting in the state of Alaska. Number 0623 MR. SHEA further explained that, according to the decision, "In stark contrast with federal law, Alaska election law does not prohibit paying voters." He proposed several wording changes to the bill, as follows: On page 2, line 3, change the word "at" to "in". On line 11, begin the sentence with "Offers of", rather than "offers to". Delete Section D 2, subsection (2). He also pointed out that the Attorney General has never admitted there were any problems at all with the election. Mr. Shea commented that he personally spent 1,235 hours working on the Dansereau v. Ulmer case. He stated that the legislature would be doing a grave disservice to the citizens if it did not examine the conduct of the Attorney General with regard to this case. Number 1134 REPRESENTATIVE DAVID FINKELSTEIN commented that he was sorry that Mr. Shea lost his case. MR. SHEA responded that he did not lose his case, as Representative Finkelstein was well aware. CHAIRMAN PORTER interjected that all conversation in the committee must go through the Chair. REPRESENTATIVE FINKELSTEIN observed that much of Mr. Shea's testimony was unrelated to the bill. He stated that the administration has a responsibility to assure that elections are not overturned for relatively minor matters. Number 1206 DIANE SHRINER, Election Outreach and Training Coordinator, Division of Elections, stated that the division supports HB 365, including the amendments in the CSHB 365(JUD) draft. She explained that the Division of Elections frequently receives calls concerning the legality of certain procedures, and the proposed legislation clarifies the intent of the law. CHAIRMAN PORTER asked if the division supported the idea of removing Subsection (d)(2) from Section 2. MS. SHRINER responded that the administration does support the language changes proposed by Mr. Shea, including removing Section 2(d)(2). She thanked Representative Bunde for introducing the bill. Number 1325 CHAIRMAN PORTER asked for clarification. On page 2, line 3, would the division object to changing the word "at" to "in"? Or, on line 11, beginning the sentence with "Offers of"? MS. SHRINER responded that she had not studied the bill in detail, and was not prepared for Mr. Shea's comments. She stated that she would trust the committee's expertise. Number 1360 REPRESENTATIVE FINKELSTEIN noted that the phrase "offers to" was already included as a qualifier, prior to the term "other valuable things." He stated that the phrase "offers of" was not necessary. Number 1360 REPRESENTATIVE BUNDE stated that he had distributed an amendment with proposed wording changes. He noted that the phrase "offers to pay" was not the same as "offers for a game of chance." He therefore encouraged the committee to accept the proposed changes. REPRESENTATIVE FINKELSTEIN reiterated that the bill drafter had suggested removing the phrase "offers of," in order to avoid a compound reference. Number 1431 CHAIRMAN PORTER asked if there were any further questions. REPRESENTATIVE BUNDE made a motion to insert the word "in" to replace the word "at" on page 2, line 3. Number 1520 REPRESENTATIVE CYNTHIA TOOHEY noted that the committee had not adopted the draft CSHB 364C. She moved that the House Judiciary Committee adopt CSHB 364, version C, as the working draft. There being no objection, CSHB 364C was adopted as the working draft. REPRESENTATIVE BUNDE renewed his previous motion. CHAIRMAN PORTER noted the motion would be amendment number 1. There being no objection, the amendment was passed. Number 1575 REPRESENTATIVE BUNDE moved that the House Judiciary Committee pass amendment number 2 to CSHB 364C. CHAIRMAN PORTER noted the amendment would delete page 2, line 18 page 2 line 21, and page 2 lines 22 - 24. REPRESENTATIVE BUNDE stated that he had separated the issue of lines 22 - 24 from the first half of the proposed amendment Number 1524 CHAIRMAN PORTER noted for the record that amendment number 2 would change page 2, line 11 after (A) to insert "offers of" and on page 2, line 14, after (B) to insert "promises or offers of. REPRESENTATIVE FINKELSTEIN pointed out that the proposed wording was redundant. REPRESENTATIVE BUNDE replied that he read the wording differently. CHAIRMAN PORTER concurred that the phrase "offer" in Section A did not also apply to Section D. Number 1760 REPRESENTATIVE FINKELSTEIN noted that Section D was only a definitions section. REPRESENTATIVE BUNDE concurred that the phrase "offer to pay" could be removed from page 1. Number 1810 CHAIRMAN PORTER asked if Representative Bunde would then be willing to withdraw his amendment. Amendment number 2 was withdrawn. REPRESENTATIVE FINKELSTEIN stated he had an amendment relating to Section 2 B, page 2, lines 19 - 21. He explained that he agreed with the intent of the bill, but was afraid the language was too limiting. He did not believe the bill intended to prohibit post- election parties which were non-partisan in nature, but rather were sponsored by civic groups in an effort to encourage voting. REPRESENTATIVE BUNDE replied that he believed the bill as worded did not exclude those types of events. Number 1906 REPRESENTATIVE FINKELSTEIN reiterated that he believed the phrase did need to be broadened. He suggested asking the bill drafter to reword the phrase "gathering in support of or in opposition to a candidate." CHAIRMAN PORTER suggested adding the phrase "in support or opposition to an election." REPRESENTATIVE FINKELSTEIN suggested adding the phrase "encouraging voting." He stated he had no problem with the word "incidental," but wanted to specify the types of activities allowed. Number 2025 REPRESENTATIVE JOE GREEN asked if the members were discussing something other than voting. CHAIRMAN PORTER responded that they were not. Number 2036 REPRESENTATIVE FINKELSTEIN reiterated that the wording should make it clear that encouraging voting in general was not disallowed. CHAIRMAN PORTER asked if the committee would consider adding on line 21, page 2, changing the semicolon to a comma, and adding the phrase "or that generally encourages voting;". Number 2090 REPRESENTATIVE FINKELSTEIN moved that the House Judiciary Committee adopt amendment number 2 to CSHB 364. CHAIRMAN PORTER noted for the record that since the previous Amendment Number 2 had been withdrawn, this would in fact be considered Amendment Number 2. He further noted that the proposed amendment would make the following changes: on page 2, line 21, adding the phrase "or that generally encourages voting;". The Chairman asked if there were any objections. REPRESENTATIVE BUNDE stated that he would object, only because he felt the Division of Elections should be consulted. Number 2135 MS. SHRINER expressed her opinion that the committee should not start down a slippery slope. Since the bill is dealing with the issue of offering items of value in return for voting, the word "incidental" is a key word. She further stated that the Division of Election would not have a problem with after election gatherings, so long as prizes were not offered. REPRESENTATIVE FINKELSTEIN commented that he felt the witness misunderstood the proposed amendment. He explained that the phrase "purpose of the gathering" was being clarified. Number 2240 REPRESENTATIVE AL VEZEY urged the members to be cautious. He stated that the proposed amendment was not as innocuous as it might appear, and that it would actually open a window regarding what incentives could be offered at a meeting to encourage voting. Number 2254 REPRESENTATIVE FINKELSTEIN noted for the record that the bill drafter needed to clarify that the phrase "that generally encourages voting" only modifies "gathering." He explained that the concern being expressed was that the phrase could modify "food and refreshments." CHAIRMAN PORTER responded that he felt the record clearly described the committee's intent. He reiterated that the amendment only related to the fact that the purpose of the gathering was to generally encourage voting, and did not modify what incentives could be offered to that end. Number 2270 REPRESENTATIVE VEZEY asked if the committee's intent was that the amendment would include a banquet located near a polling place. REPRESENTATIVE FINKELSTEIN responded that the question was a good one, but that it did not relate to the proposed amendment. CHAIRMAN PORTER agreed that the question did not relate to the proposed amendment. REPRESENTATIVE VEZEY responded that he did believe the committee was changing the intent of the bill. Number 2315 REPRESENTATIVE FINKELSTEIN reiterated that the bill's intent was not to discourage events held only for the purpose of encouraging people to vote. Number 2331 REPRESENTATIVE BUNDE responded that he would sustain his objection. Number 2364 CHAIRMAN PORTER asked for a roll call vote on Amendment Number 2 to CSHB 364C. Representatives Bunde, Toohey, Vezey, and Green voted No. Representatives Finkelstein and Porter voted Yes. Therefore, Amendment Number 2 failed. Number 2370 REPRESENTATIVE BUNDE moved that CSHB 364C as amended with attached fiscal notes and individual recommendations be moved from the House Judiciary Committee. CHAIRMAN PORTER announced that, there being no objection, CSHB 364C with attached fiscal notes and individual recommendations was passed out of the House Judiciary Committee. HB 311 REPEAL LIMIT ON HOURS EMPLOYED IN MINES Number 2419 CHAIRMAN PORTER announced that the next order of business to come before the committee was House Bill 311. REPRESENTATIVE VEZEY introduced the bill, and explained that current laws regulating underground mining have been rendered obsolete by mechanization and new health and safety standards. TAPE 96-34, SIDE B Number 2396 REPRESENTATIVE VEZEY further explained that most states have already repealed their 8 hour underground mining laws. He asked that the sponsor statement be entered into the record, as follows: "HB 311 "An Act repealing the limitation on the hours a person may be employed in a mine," ... was introduced to correct the current statutes that contemporary, advanced underground mining technology have made obsolete. The source of the original legislation is found in 43-2-1,2&3 ACLA 1949. "At the time this legislation was introduced, underground mining was performed by people using hand tools, pneumatic drills and push cars. There were no state or federal safety or health laws like we have today. There were also no wage and hours laws in those days. The explosives used in those days produced large amounts of noxious fumes and ventilation was almost non existent. Air operated drills used without water and wetting agents produced large amounts of dust. Silicosis was a serious occupational hazard. The methods used to prevent cave-ins and inhalation of foreign material were primitive, at best. "Times have changed and so have the methods used to mine underground. Today's underground mining activities are performed by machines with the operator supervising the operation. The health safety standards are among the highest in the world. Accident and injury rate are among the lowest for any industrial occupation in Alaska. They are almost half that of the norm for the construction industry. The engineering methods of insuring safety have also dramatically improved. "HB-311 will result in increased wages for miners, increased profits for mining companies and more miners working in more mines for all Alaskans." Number 2354 REPRESENTATIVE VEZEY noted that while reasonable restraints on mining operations are needed, the industry has great economic potential, and should not be subject to unreasonable regulation. He further noted that miners themselves do not oppose the bill. He reiterated that the mining industry is one of the safest in the United States. He stated that in the past five years, there has only been one fatality related to underground mining in the state of Alaska. He emphasized that the fishing, logging, and construction industries are not subject to any similar constraints on number of hours worked. He further emphasized that the jobs provided by the mining industry are high paying jobs. He stated that last year, many of the committee members toured the Green's Creek mine, and observed the working conditions. He reiterated that there has been no opposition to speak of from the miners themselves, and that various surveys indicate people working in mines overwhelmingly support working more than 8 hours per day. He noted that while the original HB 311 totally repealed the work hour limitations, the Labor and Commerce Committee substitute does not give the industry due credit. Representative Vezey stated that he would propose an amendment to CSHB 311. Number 2308 CHAIRMAN PORTER announced that three witnesses were present to testify regarding HB 311. He also noted the presence in the committee room of Ramona L. Barnes, former Speaker of the House. Former Speaker Barnes declined Chairman Porter's invitation to testify. Chairman Porter then invited Ed Flanagan, of the Department of Labor, to testify. ED FLANAGAN, Deputy Commissioner, Department of Labor, testified that the Department of Labor opposes HB 311. He stated that the long and productive mining history of the state of Alaska was accomplished under the present law. He recognized that there is always some part of the world where an industry can work with less regulation, or with no regulation, but the state of Alaska is fortunate that the productivity of our workers and the wealth of our resources has allowed us to counteract those forces. Mr. Flanagan noted that none of the mining projects coming on line have been recognized as being contingent upon this change in the law. He further stated that the Commissioner of the Department of Labor was opposed to the original HB 311. The department does appreciate the considerable amount of time the House Labor and Commerce Committee spent on the bill. Because CSHB 311(L&C) addresses the concerns raised by the department, the department has removed its opposition to CSHB 311(L&C). Mr. Flanagan further noted that Commissioner Cashen's father and grandfather were both employed during the 1920's in the Alaska Juneau Mine, so he was well acquainted with the issue. He emphasized that the commissioner and the department both support the mining industry. However, both the commissioner and the department feel it is critical that any expansion beyond an 8 hour work day be allowed only on a case by case basis. Number 2045 MR. FLANAGAN further noted that in the seven years since 1989, three underground miners have been killed in Juneau. He explained that sub-contractors must be required to adhere to the same standards as mine operators. Therefore, the Department of Labor & Commerce adopted a provision which would allow up to 10 hours of work per day, in the event that a variance was granted by the commissioner, or a bona fide collective bargaining agreement was in place. He stated that, in his testimony before the Labor & Commerce Committee, the representative of Green's Creek Mine explained that their schedule basically entails 6 hours of travel, beyond the work at the face. With a blanket 10 hour allowance, those miners would be facing a 16 hour work day. The department feels that would be cause for concern. He further stated that Green's Creek would like to get a camp on-site, for the convenience of its workers, and the department supports this. However, a federal permit is required, which may not happen. Number 1970 MR. FLANAGAN reiterated that variances to the 8 hour work day must be granted on a case by case basis. He referred to the "so-called" expert testimony delivered in the Labor & Commerce Committee by Mr. Duchon, a psychologist who had a contract with the Bureau of Mines. According to Mr. Duchon's testimony, extended work days were no problem. Mr. Flanagan quoted from the summary of Mr. Duchon's study, as follows: "The Bureau of Mines reviewed the literature studies related to safety and performance issues of extended work days. The report presents a study of those findings. Studies examined in this review are divided into three sections: laboratory, field, and accident and injury analysis. In general, results are inconclusive. Studies have shown both positive and negative effects. It is concluded, therefore, that in an industry such as mining where accidents are a serious concern, special measures and evaluation in the use of extended work days be considered." He explained that such consideration was exactly what the variance procedure adopted by the House Labor & Commerce Committee would allow for. Number 1909 MR. FLANAGAN further stated that the Department of Labor was opposed to the proposed CSHB 311(JUD). The department does support CSHB 311(L&C). He did note, however, that allowing an exclusion from the provision for mechanics, warehousemen, and electricians was ill-advised. He stated that the current language, which refers only to a person employed underground, is preferable, because there could be situations where a mechanic or electrician could be involved in work at the face. Mr. Flanagan then invited questions from the committee. He urged the members of the House Judiciary Committee to seriously consider CSHB 311(L&C). CHAIRMAN PORTER commented that the bill presently before the House Judiciary Committee was CSHB 311(L&C). The committee has not yet adopted the proposed CSHB 311(JUD), which mandates that the work day limit be raised to 10 hours, with a variance to 12 hours. Number 1838 REPRESENTATIVE TOOHEY asked about the three miners who have been killed in Juneau since 1989. What part of their shift were they killed in, and were they killed underground? MR. FLANAGAN responded that the miners were killed during a regular, 8 hour shift. One fell down a shaft at the Kensington Mine, one was wrapped up in a drill underground, and the other was crushed by a falling slab. REPRESENTATIVE TOOHEY then asked if the prohibitions of the bill would include locations underground, such as the electrical shop, that were not involved in actual mining. MR. FLANAGAN replied that the 8 hour limitation applied to work at the face only. Number 1724 REPRESENTATIVE VEZEY asked if the law actually included the term "at the face." It was his understanding that the law only referred to "underground." MR. FLANAGAN responded that the existing law does reference work "at the face." He read from AS 2310.410, subsection B, as follows: "It is the purpose of this section to limit the hours of employment in 24 hours to 8 hours of actual labor at the face, or other place where the work or labor to be done is actually performed." Number 1672 REPRESENTATIVE VEZEY then stated, the statute reads: "A person may not be employed in an underground coal mine, underground lode mine, underground placer mine, underground coal lode or placer workings, or other underground mine or workings, for more than 8 hours in 24." He further noted that current Department of Labor regulations define the work hours as being portal to portal. MR. FLANAGAN responded that the regulation being referred to was a clarification of the term "labor performed," in a different section of the statute. It relates to what is time worked for purposes of pay. He stated that Section A, which Representative Vezey quoted from, goes on to say: "Except on a day when a change of shift is made, excluding an intermission of time for meals or otherwise going to or from the place where the work is actually carried on, whether in going on or off shift or in going to or returning from meals." Mr. Flanagan said it was his understanding that "B" clarified that section. Number 1614 REPRESENTATIVE VEZEY then asked if it was Representative Flanagan's interpretation of the current law that miners could work at the face for 8 hours, excluding travel time. MR. FLANAGAN responded that was correct, so long as there was not another location where work was actually carried on. The actual time worked could not exceed 8 hours. REPRESENTATIVE VEZEY asked about work outside the mine. MR. FLANAGAN replied that work outside the mine was irrelevant to the section in question. REPRESENTATIVE VEZEY commented that people in the industry believed they were restricted to 8 hours of work per day including travel time within the mine. MR. FLANAGAN responded that they had not asked the department. Number 1588 REPRESENTATIVE VEZEY commented that the mining industry in Alaska has been all but dormant for the last 30 years. He asked if Mr. Flanagan would consider it to be robust. MR. FLANAGAN responded that the economics of underground mining, rather than time worked underground, was responsible for the situation. REPRESENTATIVE VEZEY reiterated that mining has been a very small industry in the state for the past 20 or 30 years. He stated that this past year the mining industry has probably tripled in size. MR. FLANAGAN responded that the tripling referred to had occurred under present law. Number 1522 REPRESENTATIVE VEZEY stated that most of the mining presently occurring is surface mining, not underground. He then asked why Mr. Flanagan felt that the state needs to regulate mining more closely than industries such as logging, fishing, aviation, or construction. He stated that during construction of the tunnels at Bradley Lake and Snettisham, the crews worked underground 12 and 14 hours per day. MR. FLANAGAN responded that he was associated with the Bradley Lake project, on site, for approximately 17 months, and that he was not aware of any regularly scheduled shift that exceeded 10 hours. The tunneling crew worked 8 hour shifts. The shaft crews occasionally worked 10 hour shifts. He stated that, at Snettisham, anything in excess of 10 hours was rare. He further stated that the state actually regulates the construction industry more heavily than it does the mining industry, since mining is primarily the purview of the Mining Safety and Health Administration (MSHA). The state has also worked closely with the logging industry to reduce fatalities. Number 1358 REPRESENTATIVE TOOHEY asked if the proposed legislation applied to mines other than underground mines. REPRESENTATIVE VEZEY responded that the legislation applied to any underground mine, but not to open pit or other types of mines. Number 1315 DON ETHERIDGE, Alaska State District Council of Laborers, testified that the district council supports CSHB 311(L&C). He stated the district council cannot justify jeopardizing lives in order to increase company profits. In the Labor & Commerce Committee, miners testified about the dangers of the mining industry. He further stated the district council can not understand why the mining industry is opposed to the Department of Labor's variance proposal. If the company can prove that conditions are safe enough, than the variance would be granted. He pointed out that even the fishing industry has begun regulating itself, in order to increase safety. He reiterated that the district council cannot justify risking working people's lives simply to increase profits. Number 1214 REPRESENTATIVE BUNDE commented that extra hours worked would also translate into extra pay for the miners. MR. ETHERIDGE responded that this was why miners would not voluntarily enforce the 8 hour day themselves. REPRESENTATIVE TOOHEY stated that she believed the legislation had been proposed at the suggestion of the miners. MR. ETHERIDGE replied that workers will often work under unsafe conditions, because they need the money. He stated that is why regulations are needed. Number 1144 REPRESENTATIVE GREEN asked if the fatigue factor was discussed in the House Labor & Commerce Committee testimony. MR. FLANAGAN responded that it was discussed. He stated that Andrew J. "Bear" Piekarski, who worked in the mines, and was injured in a cave-in, testified that an 8 hour shift was all that could safely be worked. REPRESENTATIVE GREEN asked if there were statistics which showed the relationship between hours worked and number of accidents. MR. FLANAGAN stated that there were no new, specific statistics related to mining. Data collected in 1987 shows that accidents do increase after the 8th hour of work. Number 1038 CHAIRMAN PORTER called on the next witness, Clynt Nauman. CLYNT NAUMAN, General Manager, Green's Creek Mine, stated that the discussions in the House Labor & Commerce Committee did not include the statement that people would be working 16 hour shifts at Green's Creek. He stated that Green's Creek supports a change in the number of hours a person can spend underground from 8 to 10 hours, and that they do appreciate Representative Vezey's efforts. If longer shifts were permitted at Green's Creek, they would encourage employees to stay on the island. At the present time, Green's Creek employees are away from home 12 hours per day. In those 12 hours, a miner works 5.7 hours at the face. The remainder of the time is commuting and travel within the mine itself. He explained that this is the real issue. Mr. Nauman further stated that, so far as Dr. Duchon's testimony was concerned, it was his recollection that the studies concerned 12 hour shifts, not the 10 hour shifts proposed by Green's Creek. He stated that Dr. Duchon's testimony also showed a change from 8 to 10 hours was not a safety issue. Number 0863 MR. NAUMAN went on to say he was confused about which version of the bill was being considered. He stated that the variance system proposed in CSHB 311(L&C) was not supported by Green's Creek, because the extension of work hours would then be at the discretion of the Commissioner of Labor. If substantial sums of money were invested in an operation, and the variance was disallowed, then the operation would not be economically feasible. He further stated that Green's Creek anticipates restarting its mining operation later in 1996. At that time they will have 250 employees. They presently have 150 employees, of which 80 percent are Alaskans. He stated Green's Creek intends to implement a strong policy of local hire. If the work day could be extended from 8 to 10 hours, then employment could be offered to appropriately qualified Alaskans. He stated that workers from other communities cannot afford to move to Juneau. He further stated that Green's Creek has to complete in a global marketplace. In order for capital dollars to be invested in the mining industry in Alaska, the law needs to be changed. He pointed out that when Green's Creek originally went into production, the mine's profitability depended upon keeping costs below net revenue realized. In 1993, when Green's Creek shut down, the costs were relatively high. He stated the company wants to achieve as many efficiencies as possible, so that the people working there can remain employed for the next 15 years. Finally, Mr. Nauman stated that he was prepared to offer amendments to the various versions of the bill. Number 0463 REPRESENTATIVE FINKELSTEIN asked Mr. Nauman if he had ever worked an 8 hour shift underground, and if so could he describe his experience. MR. NAUMAN replied that he had managed mines, working 8 hours and longer underground. He stated he had not personally noted, nor had he managed any mines where the safety record had been any different after 8 hours and up to 10. He stated he had managed a deep underground gold mine in the Northwest Territories of Canada, where provisions were in place to extend shifts under special circumstances. REPRESENTATIVE FINKELSTEIN stated that he had toured the Green's Creek mine, and that after 50 minutes underground he was ready to climb the walls. MR. NAUMAN responded that one of the major issues for Green's Creek workers was time off with family. He stated that an underground employee would earn approximately 20 days more time off with his family, if working 10 hours underground at the face, versus working 8 hours underground at the face. Number 0345 REPRESENTATIVE FINKELSTEIN then asked if the miners would not then want to pursue the issue themselves, as part of the collective bargaining process. He asked if the real issue was extending the allowable work day from 10 hours to 12. MR. NAUMAN replied that he did not understand why the table should be tilted for or against organized labor. He stated that the real issue was jobs, and the extension of the work day. Number 0225 REPRESENTATIVE FINKELSTEIN asked if the 10 hour work day could not be achieved under CSHB 311(L&C). MR. NAUMAN responded that Green's Creek is not happy with the proposed bill, because a variance or permit procedure is not substantive enough to encourage investment necessary for the facilities to be put in place. He stated the second issue is that the proposed legislation contains no procedure for the variance to be granted. Number 0152 REPRESENTATIVE GREEN asked if it would be in order for the committee to adopt CSHB 311, version O. CHAIRMAN PORTER asked if there were any further questions for Mr. Nauman. Number 0030 REPRESENTATIVE BUNDE asked if the extended shifts were put in place, how would the schedule work. MR. NAUMAN replied that his proposal would be to place the ferry on a twelve hour rotating basis. (gap due to changing tape) TAPE 96-35, SIDE A Number 0018 REPRESENTATIVE FINKELSTEIN pointed out that the proposed legislation was no different from the way the state regulates other occupations. He stated that if extended shifts can be worked safely, then the Department of Labor would grant a variance. He further stated that CSHB 311(L&C) was a reasonable bill, and recommended that the committee not adopt the proposed Judiciary Committee substitute. Number 0111 CHAIRMAN PORTER asked Mr. Finkelstein if he thought it was fair to ask investors to make substantial investments, when an operation's profitability depended on the granting of a variance. REPRESENTATIVE FINKELSTEIN responded that the proposed legislation would allow an extension under certain circumstances. He stated that the only issue was 8 to 10 hours, versus 10 to 12. He further stated that a case had not been made that 12 hour shifts would ever be safe. He also observed that human beings were not evolved to work underground for long periods of time. Number 0193 REPRESENTATIVE TOOHEY commented it was a shame that no miners were present, as they would totally disagree. REPRESENTATIVE GREEN observed that workers on the North Slope often work 12 hour shifts. He stated that he believed human beings are resilient, and that if employees want to work safely, and are trained to work safely, then the accident rate will be minimal. Number 0259 REPRESENTATIVE BUNDE commented that coal miners he had talked to loved working underground. Number 0259 CHAIRMAN PORTER asked if there was any further discussion on the adoption of CSHB 311, version O. There being no further discussion, a roll call vote was taken. Representatives Toohey, Vezey, Green, Bunde, and Porter voted Yes. Representative Finkelstein voted no. CSHB 311(JUD), version O, was adopted. REPRESENTATIVE BUNDE announced that Amendment Number 1 was being passed out to committee members. He made a motion that the amendment be adopted. REPRESENTATIVE FINKELSTEIN objected. Number 0329 REPRESENTATIVE BUNDE called on Reed Stoops to testify. Number 0332 REED STOOPS, lobbyist, stated he would testify on behalf of Green's Creek Mining Company. He stated that Mr. Jim Clark, who actually drafted the proposed amendments, was also present. He further stated that Mr. Flanagan's testimony may have negated the need for the proposed amendment. He asked if Representative Vezey would agree that the change was no longer necessary. CHAIRMAN PORTER stated he was under the impression that Mr. Flanagan's interpretation of the law was correct, in that the 8 hour day related to time actually worked. Number 0429 JAMES F. CLARK, attorney for Green's Creek Mining Company, stated that there is a regulation which does limit the time underground to 8 hours, as opposed to actual time at the face excluding travel time. He further stated that workers would be paid for all time actually spent underground. CHAIRMAN PORTER asked if a copy of the regulation was available. He then asked if the proposed bill would solve the problem created by the regulation. MR. CLARK replied that it would. Number 0549 CHAIRMAN PORTER asked if Green's Creek still desired the proposed amendment. MR. STOOPS replied that they did not. CHAIRMAN PORTER noted for the record that Amendment Number 1 was withdrawn. REPRESENTATIVE VEZEY made a motion that CSHB 311(JUD) be passed out of the House Judiciary Committee, with individual recommendations and attached zero fiscal note. REPRESENTATIVE FINKELSTEIN announced that he would not object. REPRESENTATIVE VEZEY asked the record to reflect that he invited Representative Finkelstein to visit Fairbanks, and to work in a mine. REPRESENTATIVE FINKELSTEIN declined. CHAIRMAN PORTER announced that CSHB 311(JUD) with individual recommendations and attached zero fiscal note, was passed out of the House Judiciary Committee. HB 365 MINOR IN POSSESSION OF TOBACCO Number 0615 CHAIRMAN PORTER announced that the next order of business to come before the House Judiciary Committee was HB 365. REPRESENTATIVE BUNDE paraphrased his Sponsor Statement, as follows: "House Bill 365 plugs a loophole. We have a pervasive problem of tobacco use among our young people throughout the United States, and especially in Alaska. In 1992, the federal government passed what is called the Synar Amendment. This requires that states do random, unannounced inspections of locations where tobacco is sold, and try to reduce illegal sales or sales to minors. Currently, Alaska is not able to comply with this federal requirement for compliance checks. Current law would indicate that the young people who are used to achieve these compliance checks could conceivably be charged with Minor in Possession, and adults who work with them could be charged with Contributing to the Delinquency of A Minor. I introduced HB 365 to ensure our state's ability to conform with the compliance checks that are required by the Synar Amendment. It allows young people to work in tandem with law enforcement agencies to complete compliance checks regarding the sale of tobacco to young people. If there are no compliance checks, we do stand to lose some federal support. This legislation would eliminate current obstacles to carrying out compliance checks, and would then reduce the illegal sale of tobacco to our young people." Number 0729 CHAIRMAN PORTER announced the first witness would be Annette Marley, of the Alaska Native Health Board. He then announced that her testimony would be in letter form only. Chairman Porter then called on Stacy Goade. STACY GOADE announced that she would read a statement on behalf of the Juneau Tobacco Prevention Network and the Seven Circles Coalition. She read from a prepared statement, as follows: "The Juneau Tobacco Prevention Network and the Seven Circles Coalition have been working during the past year to conduct underage compliance checks as part of an effort to reduce youth access to tobacco products in Juneau. "The Juneau Tobacco Prevention Network is a grass-roots group working to reduce the harmful effects of tobacco usage, especially among youth. The Network takes a comprehensive approach to tobacco issues, and is focused on four strategies. The Network believes all four strategies are necessary and important if we are going to protect children from tobacco addiction. The first strategy is education and cessation programs. The second is addressing tobacco advertising to youth. The third is tobacco tax increases. Fourth is youth access to tobacco products, which is what HB 365 will help us with. "The Seven Circles Coalition is a regional coalition which seeks to assist communities in creating effective strategies, with youth involvement, to prevent the use of alcohol, tobacco, and other drugs and violence among youth. Seven Circles has provided staff and financial support to help the Tobacco Network achieve its goals, especially around issues involving youth access to tobacco. "The Juneau Tobacco Prevention Network became involved during the past year in trying to limit illegal tobacco sales to underage youth in Juneau. This project was initiated due to concerns that educational efforts in the schools, churches, and at home were not working, but in fact were undermined when children were able to walk into a store and easily buy an illegal tobacco product. "We began our compliance checks last May, using 8th grade 14 and 15 year old youth. During the first series of compliance checks, we found that out of 42 purchase attempts, 17 resulted in an illegal sale to a minor. This is an underage purchase rate of 40 percent. We found also that youth have an even easier time purchasing tobacco products at locations in the Mendenhall Valley, where the majority of the youth in this community live, with an underage purchase rate of 55 percent. "It was disturbing how easy it was for these 14 and 15 year old youth, who are all well below the age of 19, which is the legal age, how easy it was for them to buy tobacco from our local retailers. Following the compliance checks, we educated the community and the retailers about the problem of youth access to tobacco products. Managers at all establishments were contacted and alerted to concerns about illegal sales to minors, as well as the clerks, and provided with materials to educate the clerks and signs to post at every check-out stating the law regarding sales to minors. The retailers were encouraged to talk with us and help us ensure that underage youth were not able to purchase tobacco products at their store. "During the follow-up compliance checks two months later, during November and December of 1995, we found clerks were more conscientious about preventing illegal sales to minors. This time we made 45 purchase attempts, with only 9 resulting in illegal sales. The purchase rate for underage minors was then reduced to 20 percent. Again, managers of establishments were contacted, and the names of those retailers continuing to sell tobacco products to underage youth were publicly released. "Additional educational support was offered to retailers, and in the future we hope to conduct a final series of compliance checks which provide immediate feedback to the clerk and the store manager, through either working with the Police Department to issue citations, having youth notify the clerk after the sale has been made that it was an illegal sale, and by contacting the store manager immediately following the purchase attempt. "The legislation being considered today will help to provide legal police support in conducting our follow-up compliance checks and enforcing state law. Up to this point, because it isn't allowed, the police have been very reluctant to be involved with the so- called sting operations. "Although our efforts demonstrated a significant reduction in illegal sales of tobacco to youth, the problem of youth smoking in Juneau has not gone away. In our compliance checks we primarily used younger teenagers, and the youth participating were instructed not to lie about their age directly, and to lie if asked for ID. In real life youth attempting to buy cigarettes and chewing tobacco will lie about their age, and they will use fake ID. They also will get older teenagers to purchase for them. "For these reasons, although we strongly believe in compliance checks as an excellent way to encourage merchant compliance, they are only one piece of the puzzle, and must be used in combination with other strategies to prevent tobacco addiction among youth." Number 1037 CHAIRMAN PORTER asked if there were any other witnesses. Seeing none, he announced the public hearing was closed. REPRESENTATIVE BUNDE made a motion to move HB 365 from the House Judiciary Committee, with individual recommendations. REPRESENTATIVE FINKELSTEIN asked the bill sponsor's permission to amend on the tobacco tax. CHAIRMAN PORTER announced that, hearing no objections, HB 365 was passed out of the House Judiciary Committee. Number 1143 ADJOURNMENT There being no further business to come before the committee, the meeting of the House Judiciary Committee was adjourned at 3:20 p.m.