Legislature(2017 - 2018)GRUENBERG 120
04/04/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB387 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 387 | TELECONFERENCED | |
| += | HB 367 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 4, 2018
2:02 p.m.
MEMBERS PRESENT
Representative Matt Claman, Chair
Representative Jonathan Kreiss-Tomkins, Vice Chair
Representative Louise Stutes
Representative Gabrielle LeDoux
Representative David Eastman
Representative Chuck Kopp
MEMBERS ABSENT
Representative Lora Reinbold
Representative Charisse Millett (alternate)
Representative Tiffany Zulkosky (alternate)
COMMITTEE CALENDAR
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."
- HEARD & HELD
HOUSE BILL NO. 367
"An Act relating to the liability of a Native corporation for
the release or threatened release of hazardous substances
present on certain lands."
- BILL HEARING CANCELED
PREVIOUS COMMITTEE ACTION
BILL: HB 387
SHORT TITLE: AG SCHEDULE CONTROLLED SUBSTANCES
SPONSOR(s): REPRESENTATIVE(s) CLAMAN
02/21/18 (H) READ THE FIRST TIME - REFERRALS
02/21/18 (H) JUD, FIN
03/16/18 (H) JUD AT 1:00 PM GRUENBERG 120
03/16/18 (H) Heard & Held
03/16/18 (H) MINUTE(JUD)
04/04/18 (H) JUD AT 1:00 PM GRUENBERG 120
WITNESS REGISTER
ROBERT HENDERSON, Deputy Attorney General
Criminal Division
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: During the hearing of HB 387, answered
questions.
ACTION NARRATIVE
2:02:00 PM
CHAIR MATT CLAMAN called the House Judiciary Standing Committee
meeting to order at 2:05 p.m. Representatives Claman, Kopp,
Stutes, LeDoux, Kreiss-Tomkins, and Eastman were present at the
call to order.
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
general...
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
market."
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
presently.
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
adopted.
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
said.
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-
5.
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
Claman.]
[HB 387 was held over.]
2:27:44 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:28 p.m.
| 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 |