Legislature(2003 - 2004)

03/01/2004 09:05 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                              MINUTES                                                                                         
                     SENATE FINANCE COMMITTEE                                                                                 
                          March 01, 2004                                                                                      
                              9:05 AM                                                                                         
                                                                                                                                
                                                                                                                                
TAPES                                                                                                                       
                                                                                                                                
SFC-04 # 24, Side A                                                                                                             
SFC 04 # 24, Side B                                                                                                             
                                                                                                                                
CALL TO ORDER                                                                                                               
                                                                                                                                
Co-Chair Lyda  Green convened the meeting at approximately  9:05 AM.                                                            
                                                                                                                                
PRESENT                                                                                                                     
                                                                                                                                
Senator Lyda Green, Co-Chair                                                                                                    
Senator Con Bunde, Vice Chair                                                                                                   
Senator Fred Dyson                                                                                                              
Senator Ben Stevens                                                                                                             
Senator Lyman Hoffman                                                                                                           
Senator Donny Olson                                                                                                             
                                                                                                                                
Also Attending:  JOE BALASH, Staff to Senator Gene  Therriault; ZACH                                                          
WARWICK, Staff  to Senator Gene Therriault;  JANE ALBERTS,  Staff to                                                            
Senator Con  Bunde and  Aide, Senate Labor  and Commerce  Committee,                                                            
DOUG LETCH, Staff  to Senator Gary Stevens; PAM LABOLLE,  President,                                                            
Alaska State Chamber of Commerce                                                                                                
                                                                                                                                
Attending  via  Teleconference:  From  Offnet  Sites:  DICK  MYLIUS,                                                          
Deputy Director,  Division of Mining, Land and Water,  Department of                                                            
Natural  Resources;   JOANNE  GRACE,   Senior  Assistant   Attorney,                                                            
Opinions,  Appeals,  &  Ethics,  Office  of  the  Attorney  General,                                                            
Department  of  Law;  TINA  CUNNING,  State-Federal  Issues  Program                                                            
Manager, Office  of the Commissioner, and Co-Chair,  State Navigable                                                            
Waters Team, Department  of Fish and Game; RON SOMERVILLE,  Resource                                                            
Consultant  to the  House of  Representatives  and Senate  Majority;                                                            
JILL JAECKEL, Legal Assistant,  Spenard Builders Supply; SCOTT KING,                                                            
Cornerstone Credit Services                                                                                                     
                                                                                                                                
SUMMARY INFORMATION                                                                                                         
                                                                                                                                
SB 305-ASSERTING STATE TITLE TO SUBMERGED LAND                                                                                  
                                                                                                                                
The  Committee heard  from  the bill's  sponsor,  the Department  of                                                            
Natural Resources,  the Department  of Law,  the Department  of Fish                                                            
and  Game,  and  a  resource  consultant.  The  bill  reported  from                                                            
Committee.                                                                                                                      
                                                                                                                                
SB 295-EXTEND NAVIGABLE WATERS COMMISSION                                                                                       
                                                                                                                                
The Committee  heard  from the  sponsor, the  Department of  Natural                                                            
Resources,  and  a Resources  Consultant.  The  bill  reported  from                                                            
Committee                                                                                                                       
                                                                                                                                
SB 194-LIQUOR DELIVERED TO HOTELS/CRUISE SHIPS                                                                                  
                                                                                                                                
The Committee  heard from  the bill's sponsor,  adopted a  committee                                                            
substitute, and reported the bill from Committee.                                                                               
                                                                                                                                
SB 299-BAD CHECK CHARGE                                                                                                         
                                                                                                                                
The Committee  heard from  the sponsor, took  public testimony,  and                                                            
reported the bill from Committee.                                                                                               
                                                                                                                                
SB 203-ADMINISTRATIVE HEARINGS/OFFICE                                                                                           
                                                                                                                                
This bill was scheduled but not heard.                                                                                          
                                                                                                                                
                                                                                                                                
     SENATE BILL NO. 305                                                                                                        
     "An  Act  relating   to  state  ownership  of  submerged   land                                                            
     underlying   water  that  was  navigable  at  the  time  Alaska                                                            
     achieved statehood."                                                                                                       
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
JOE BALASH,  Staff to Senator Gene  Therriault, the bill's  sponsor,                                                            
read the Sponsor Statement as follows.                                                                                          
                                                                                                                                
     With the exception  of withdrawn federal lands, at statehood in                                                            
     1959,  Alaska received title  under the equal footing  doctrine                                                            
     to all submerged lands  under state navigable waters and marine                                                            
     waters   out  to  three  miles.   Unfortunately,  the   federal                                                            
     government   has  been   slow  to   concede  any  navigability                                                             
     determinations.  Since  Alaska entered  the Union, the  federal                                                            
     courts have  determined fewer than 20 rivers  navigable. Unless                                                            
     the state  is pro-active in asserting its claims,  it stands to                                                            
     lose up to 60 million acres of its statehood entitlement.                                                                  
                                                                                                                                
     In some cases,  the federal government has used  every possible                                                            
     legal  tactic under the Federal  Quiet Title Act to  impede the                                                            
     state's  assertion of ownership.  The Black, Kandig  and Nation                                                            
     Rivers  in northeast  Alaska are examples.  These three  Rivers                                                            
     clearly  meet the criteria  established  by the federal  courts                                                            
     for determining navigability in Alaska                                                                                     
                                                                                                                                
     Although no one contested  the state's claim that these streams                                                            
     met  the  federal  criteria,  this  case took  nine  years  and                                                            
     millions  of state and federal dollars to litigate.  Eventually                                                            
     the state  won two of the three  cases. The third was  resolved                                                            
      by a Federal Recordable Disclaimer of Interest in 2003.                                                                   
                                                                                                                                
     In  addition,  prior to  1989 the  federal  government  applied                                                            
     incorrect  standards  to determine  navigability  and may  have                                                            
     mistakenly  conveyed state-owned  land to Native corporations,                                                             
     clouding  the title to hundreds of thousands,  if not millions,                                                            
     of  acres. This  is a critical  topic as  Congress considers  a                                                            
     deadline  for  completing  the land  selection  and  conveyance                                                            
     processes.                                                                                                                 
                                                                                                                                
     Contributing  to the problem  is the lack  of a reasonable  and                                                            
     efficient  way for the state  to secure title to its  submerged                                                            
     lands.  SB  305 takes  three  steps  to  begin the  process  of                                                            
     identifying state claims.                                                                                                  
                                                                                                                                
     First, SB 305 provides  to all parties that the state is laying                                                            
     claim  to all submerged  lands, except  those withdrawn  at the                                                            
     time  of  statehood,  that  meet  the  standards  and  criteria                                                            
     established  in the Submerged Lands Act and in  various federal                                                            
     court decisions.                                                                                                           
                                                                                                                                
     Second, it  provides authority for state agencies  to identify,                                                            
     in  accordance with  the appropriate  federal  and state  laws,                                                            
     which  waterbodies  the  state  claims as  navigable  and  non-                                                            
     navigable.  This  will  help  the state  clarify  criteria  for                                                            
     identifying  navigable   waters, address  conflicts   involving                                                            
     clouded  titles due to inaccurate  conveyances from  the Bureau                                                            
     of  Land  Management,  and more  clearly  delineate  its  title                                                            
     claims.                                                                                                                    
                                                                                                                                
     Third, the bill directs  the Department of Natural Resources to                                                            
     give notice  to all private property  owners, including  native                                                            
     corporations  created under the Alaska Native  Claim Settlement                                                            
     Act,  that may  have received  title to lands  that could  have                                                            
     erroneously   included   state   submerged   lands   in   their                                                            
     conveyance.   This  is critical   to resolve   future  problems                                                            
     regarding  mineral development,  gravel extraction,  access and                                                            
     other related land uses.                                                                                                   
                                                                                                                                
     This legislation  is only one step for the state  to eventually                                                            
     resolve the title  disputes over its submerged lands, and deals                                                            
     only with the issue  of state title to submerged lands. It does                                                            
     not   address  conflicts   over  federal   fish  and   wildlife                                                            
     management  in  state  navigable   waters  created  by  federal                                                            
     reserved water rights claims.                                                                                              
                                                                                                                                
Mr.  Balash  concluded  that,  "this is  primarily  an  issue  where                                                            
federal  agencies  have  used incorrect  definitions  and  means  of                                                            
conveying title to primarily  the Native corporations." He continued                                                            
that,  "this is  just an  assertion  of the  State's  claims and  an                                                            
effort" to  put on record  that the State  does not "concede  any of                                                            
our title to anybody."                                                                                                          
                                                                                                                                
Co-Chair Green  questioned whether  conceding title, which  has been                                                            
incorrectly  conveyed, to  one group might  set a precedent  whereby                                                            
the State would be required to concede title to other groups.                                                                   
                                                                                                                                
Mr. Balash responded  that "the real question" is  establishing that                                                            
the  water  was  recognized  as being  "navigable  at  the  time  of                                                            
Statehood." He  shared that "the knowledge, the files,  the criteria                                                            
upon  which that  is  all based  in  order to  stake  that claim  is                                                            
getting  old."   He  exampled  that  "the  people   who  know  about                                                            
particular  bodies of  water are soon  to be passing,"  and  in that                                                            
case, the  State "would lose  the ability  to regain that  knowledge                                                            
and  reclaim  that  title  in  a Court  or  a  federal  agency."  He                                                            
furthered that were the  State to not pursue the issue now while the                                                            
information  is still available, the  Court might decide  that since                                                            
the State "didn't  care about it for  the last 45 years,  why do you                                                            
care about it now."                                                                                                             
                                                                                                                                
Senator Olson asked regarding  the State's assertion "that incorrect                                                            
standards were being used"  by the federal Bureau of Land Management                                                            
(BLM), whether  there is a definition of what constitutes  navigable                                                            
waters  or  whether  the  contrary   opinion  is  the  result  of  a                                                            
difference of opinions as to what navigable waters are.                                                                         
                                                                                                                                
Mr.  Balash  reiterated  the  State's position  that  the  BLM  used                                                            
incorrect definitions.  He informed that "the Courts have delineated                                                            
what a  navigable  waterbody is."  Continuing, he  pointed out  that                                                            
some conveyances  were granted "prior  to 1989, before some  of that                                                            
case law" was determined,  and, he voiced that this "would indicate"                                                            
that some  of the State's  title have been  incorrectly conveyed  to                                                            
Native corporations.                                                                                                            
                                                                                                                                
Mr. Balash  stated that one  component of  the Alaska Native  Claims                                                            
Settlement Act was that  each of the Native corporations was awarded                                                            
a certain acreage allotment,  and he continued, any of the submerged                                                            
land acreage  that was  incorrectly conveyed  "counted against  that                                                            
total acreage."  He noted  that were the State  to reclaim  title to                                                            
those  submerged  lands, that  acreage  would  be removed  from  the                                                            
allotment,  and the Native corporations  would be entitled  "to make                                                            
additional  selections  in the  uplands  or in  other  parts of  the                                                            
State."                                                                                                                         
                                                                                                                                
Senator Olson  surmised therefore "that the Native  corporations are                                                            
not going to be happy with this legislation."                                                                                   
                                                                                                                                
Mr. Balash  responded that  this might not  be the case as  a Native                                                            
corporation might be able  to select more acreage. However, he noted                                                            
that conflict  might arise were a  Native corporation not  desire to                                                            
relinquish the  land. He noted that the Sealaska Native  Corporation                                                            
has  been reviewing  this  legislation  to  determine  any  negative                                                            
consequences;  however, he  noted that no  information has,  of yet,                                                            
been provided.                                                                                                                  
                                                                                                                                
Senator Hoffman commented  on the State's assertion that the federal                                                            
government  has been  "dragging  its feet  in the  conveying of  the                                                            
State's submerged  lands" and that,  as a result, the State  has had                                                            
to resort  to taking expensive  legal action.  He asked whether  the                                                            
State would be required  to continue the litigation process were the                                                            
federal  government  to continue  its  status  quo approach  to  the                                                            
issue.                                                                                                                          
                                                                                                                                
Mr. Balash  replied that  there are numerous  courses of action.  He                                                            
noted that  the federal Department  of the Interior and the  BLM are                                                            
working with  the State to review  cases for the Federal  Recordable                                                            
Disclaimer of Interest  process. He stressed that because litigation                                                            
is  difficult,  expensive,  and time  consuming,  other legislation                                                             
would be forthcoming  to establish a State/federal  Navigable Waters                                                            
Commission, which would  address the issue "in an expedited manner."                                                            
He  shared  that  there are  options  that  the  State  and  federal                                                            
government  could use to try and speed  up the process; however,  he                                                            
reiterated  that this legislation  is the  first step in  clarifying                                                            
the  State's position  to  future  federal  Courts and  agencies  in                                                            
regards to the State's claim to submerged lands.                                                                                
                                                                                                                                
Senator Hoffman  noted that the year 2009 has been  specified as the                                                            
target date to identify all State submerged lands.                                                                              
                                                                                                                                
Mr. Balash  responded that  the goal is to  identify as much  of the                                                            
land as possible by that  date. He noted, however that the submerged                                                            
land  issue is  not being  addressed  on the  federal Congressional                                                             
level at this  time. However, he noted that the Navigational  Waters                                                            
Commission  legislation   has  been  previously  addressed   at  the                                                            
Congressional  level,  and  he  continued,  the hope  is  that  that                                                            
Commission would be established "sooner rather than later."                                                                     
                                                                                                                                
DICK MYLIUS,  Deputy Director, Division  of Mining, Land  and Water,                                                            
Department  of Natural Resources testified  via teleconference  from                                                            
an offnet site  and noted that he is available to  answer questions.                                                            
                                                                                                                                
JOANNE GRACE, Senior Assistant  Attorney General, Opinions, Appeals,                                                            
& Ethics  Section,  Office of the  Attorney  General, Department  of                                                            
Law, testified  via  teleconference  and clarified,  in response  to                                                            
Senator Hoffman's  questions, that  while the State was granted  the                                                            
title  to  its submerged   lands at  Statehood,  the  issue  "is  to                                                            
determine  what belongs to  the State and  what doesn't." She  noted                                                            
that, before 1989 when  the BLM was applying incorrect standards, it                                                            
might  have conveyed  some submerged  lands to  Native Corporations                                                             
"that the United States  did not actually have title to convey." She                                                            
continued that  BLM's position was that the lands  being conveyed to                                                            
the Native corporations  were designated as non-navigable,  and that                                                            
the Native corporations  would be charged acreage for that land. She                                                            
clarified,  however,   that  were  these  lands  determined   to  be                                                            
navigable,  the Native  corporations'  concern  is  that "they  were                                                            
charged acreage for land  that they did not actually receive, and if                                                            
the conveyances are all  completed by the year 2009, then the Native                                                            
corporations  would lose the opportunity  to go back to BLM  and say                                                            
you purported  to convey  this submerged  land to  us when you  were                                                            
using incorrect  standards,  and we  would like you  to go back  and                                                            
reconsider  using the correct standards  so that we can be  credited                                                            
with the  acreage that  we should  have gotten  for those  submerged                                                            
lands."                                                                                                                         
                                                                                                                                
Senator Hoffman  voiced that numerous  Native corporations  received                                                            
"over-selections"   of lands,   and therefore,   he  continued,  the                                                            
assertion that  they would be losing land "may not  be exactly true,                                                            
as it depends  on how large  their over-selections  are." He  shared                                                            
that the  corporation  he is a member  of has  an over-selection  of                                                            
approximately ten percent.  Therefore, he opined, when the submerged                                                            
land identification is  completed in 2009, "many of the Corporations                                                            
would still get their land."                                                                                                    
                                                                                                                                
Co-Chair Green  asked whether a wrongful  conveyance would  place "a                                                            
cloud on the title."                                                                                                            
                                                                                                                                
Senator Hoffman  affirmed that while  there would be a cloud  on the                                                            
title and  the land  would be  withdrawn from  the corporation,  the                                                            
over-selection would compensate for the removed land.                                                                           
                                                                                                                                
RON SOMERVILLE, Resource  Consultant to the House of Representatives                                                            
and Senate  Majority, testified  via teleconference  from an  offnet                                                            
site and noted  that during the drafting  of SB 305 and SB  295, one                                                            
of the issues  of discussion was that  "only the corporations  could                                                            
request  the clarification   from BLM"  regarding  the navigability                                                             
issues.  He asserted  that the State  could not  make this  request.                                                            
Therefore,  he  continued,   the encouragement   is  to  the  Native                                                            
corporations to  get that process going "if the villages  want to do                                                            
that."                                                                                                                          
                                                                                                                                
TINA CUNNING,  State-Federal Issues  Program Manager, Office  of the                                                            
Commissioner, and Co-Chair,  State Navigable Waters Team, Department                                                            
of Fish and Game,  testified via teleconference from  an offnet site                                                            
to note that there are  some corporations that "are closer to" their                                                            
entitlement  allotment  than others.  She shared  that one of  these                                                            
corporations  had  requested  BLM "to  review  some of  the  waters"                                                            
conveyed  to  it, and  the  determination  was  that the  land  "was                                                            
incorrectly  included in  the conveyances."  She stated,  therefore,                                                            
that  some corporations  would  benefit from  the  inclusion of  the                                                            
upland acreage language.                                                                                                        
                                                                                                                                
Co-Chair  Green  asked  whether  the  time  frame of  180  days,  as                                                            
identified  in Sec.  3,  line 7,  that reads  as follows,  would  be                                                            
sufficient.                                                                                                                     
                                                                                                                                
     NOTICE  TO  NATIVE  CORPORATIONS.  Within  180 days  after  the                                                            
     effective  date  of  this  Act,  the  commissioner  of  natural                                                            
     resources  shall send a written notice of the  state's claim of                                                            
     ownership  of submerged land  described in AS 38.04.062(a),  as                                                            
     enacted  in sec. 2 of  this Act, to  each regional corporation                                                             
     established  under 43 U.S.C 1607 (sec. 8, Alaska  Native Claims                                                            
     Settlement  Act). The  purpose of the  notice is to assert  the                                                            
     state's  ownership  interest in  submerged land  that may  have                                                            
     been  erroneously  included  in a  conveyance  or  patent to  a                                                            
     regional  or village  corporation  from the  federal Bureau  of                                                            
     Land Management.                                                                                                           
                                                                                                                                
Mr. Balash stated  that, "this is a generic notification  to be sent                                                            
out to  potential landowners  who might have  been wrongly  conveyed                                                            
lands."  He stated that  the "language was developed in consultation                                                            
with  the State  agencies,  and therefore,  he stated,  any  concern                                                            
about this timeframe would have, at that time, been addressed.                                                                  
                                                                                                                                
Co-Chair Green  asked for confirmation  that the notice would  be of                                                            
generic  nature  as opposed  to  being required  to  delineate  each                                                            
parcel of land.                                                                                                                 
                                                                                                                                
Mr. Balash confirmed  that is correct. He stated that  the 2009 date                                                            
is the date  targeted by Alaska's  Congressional delegation  and the                                                            
Office of  the Governor;  however, he noted  that the Congressional                                                             
legislation regarding this issue has not yet been adopted.                                                                      
                                                                                                                                
Senator  Dyson  moved  to  report  the  bill   from  Committee  with                                                            
individual recommendations and accompanying fiscal note.                                                                        
                                                                                                                                
There being  no objection, SB 305  was REPORTED from Committee  with                                                            
fiscal  note #1 in  the amount of  $186,500 from  the Department  of                                                            
Natural Resources.                                                                                                              
                                                                                                                                
                                                                                                                                
     SENATE BILL NO. 295                                                                                                        
     "An Act extending the termination date of the Navigable Waters                                                             
     Commission for Alaska; and providing for an effective date."                                                               
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
ZACH WARWICK,  Staff  to Senator  Gene Therriault,  stated that  the                                                            
Joint  Federal and  State Navigable  Waters Commission  for  Alaska,                                                            
which would  consist of seven State  and seven federal members,  was                                                            
established by  the Legislature in 2002 "to expedite  the process of                                                            
acquiring  legitimate  title  to the  State's  submerged  lands;  to                                                            
determine which bodies  of water are navigable or non-navigable; and                                                            
to  provide recommendations  to  the  State and  federal  government                                                            
concerning  ways  to improve  the  process  of  making navigability                                                             
determinations  in ways to  acquire title  to the State's  submerged                                                            
lands  judiciously and  expeditiously."  He informed  the  Committee                                                            
that  while  the  Alaska  Commission  members  were  appointed,  the                                                            
accompanying federal  legislation was not adopted  and therefore, no                                                            
federal  members   were  appointed.   Continuing,  he  stated   that                                                            
extending the life of the  Commission until September 16, 2006 would                                                            
provide  an opportunity  for Alaska's  Congressional  delegation  to                                                            
further  the  effort  for the  creation  and  authorization  of  the                                                            
Commission on the federal level.                                                                                                
                                                                                                                                
Senator Bunde asked the fiscal impact of the legislation.                                                                       
                                                                                                                                
Mr.  Warwick  responded  that while  an  indeterminate  fiscal  note                                                            
accompanies the legislation,  it is estimated that, were the federal                                                            
authorization  approved,  the  fiscal  impact  would  range  between                                                            
$180,000 and $200,000.                                                                                                          
                                                                                                                                
Senator Hoffman  asked why this legislation is limited  to extending                                                            
the  years of  the Commission  rather  than including  a  resolution                                                            
requesting Alaska's Congressional  delegation to further the federal                                                            
legislation efforts.                                                                                                            
                                                                                                                                
Mr. Warwick  understood  that a  separate resolution,  sponsored  by                                                            
Senator Ralph  Seekins, is currently  in the Senate Rules  Committee                                                            
and would be  advanced to the Senate  floor session. He stated  that                                                            
while the State's  delegation is discussing  the issue, the  federal                                                            
Commission legislation  has not advanced beyond the one hearing that                                                            
was conducted in 2002.                                                                                                          
                                                                                                                                
Co-Chair  Green summarized  that this legislation  would extend  the                                                            
termination date.                                                                                                               
                                                                                                                                
DICK MYLIUS,  Deputy Director, Division  of Mining, Land  and Water,                                                            
Department of  Natural Resources, testified via teleconference  from                                                            
an offnet site  regarding the indeterminate  fiscal note.  He stated                                                            
that no  expenses would  be incurred  at the State  level until  the                                                            
Commission  is established at the  federal level. He noted  that the                                                            
amount  of  State  funding  required  at that  time  would  also  be                                                            
dependent  upon  the  level  of federal  funding  allocated  to  the                                                            
Commission.                                                                                                                     
                                                                                                                                
RON SOMERVILLE, Resource  Consultant to the House of Representatives                                                            
and Senate  Majority, testified  via teleconference  from an  offnet                                                            
site. He agreed that the  key to the establishment of the Commission                                                            
is dependent on the federal  government participation as well as the                                                            
Commission's  addressing of  the issues outlined  by Mr. Warwick  in                                                            
his opening remarks.                                                                                                            
                                                                                                                                
Senator  Dyson  moved  to  report  the  bill   from  Committee  with                                                            
individual recommendations and accompanying fiscal note.                                                                        
                                                                                                                                
There being  no objection, SB 295  was REPORTED from Committee  with                                                            
indeterminate  fiscal   note  #1 from  the  Department   of  Natural                                                            
Resources.                                                                                                                      
                                                                                                                                
                                                                                                                                
     SENATE BILL NO. 194                                                                                                        
     "An Act authorizing delivery of up to two bottles of                                                                       
     distilled spirits to a cruise ship passenger or hotel                                                                      
     guest."                                                                                                                    
                                                                                                                                
                                                                                                                                
This was  the second  hearing for  this bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Co-Chair Green  explained that a committee  substitute that  expands                                                            
the  original  legislation  to  include  the delivery  of  beer,  in                                                            
addition  to  the  delivery  of  spirits,   has  been  provided  for                                                            
consideration.                                                                                                                  
                                                                                                                                
DOUG  LETCH, Staff  to Senator  Gary  Stevens, the  bill's  sponsor,                                                            
agreed  that  expanding  the bill  to  address  a broader  range  of                                                            
alcoholic  beverages  would  prevent  the  bill from  having  to  be                                                            
brought back  before the  Legislature "year  after year" to  address                                                            
the issue.                                                                                                                      
                                                                                                                                
Senator B. Stevens moved  to adopt committee substitute, Version 23-                                                            
LS1015\D as the working document.                                                                                               
                                                                                                                                
There being no  objection, the Version "D" committee  substitute was                                                            
adopted as the working document.                                                                                                
                                                                                                                                
Mr. Letch shared  that the Alcohol Beverage Control  Board (ABC) has                                                            
determined that  the inclusion of the beer language  would encompass                                                            
other malt beverages  such as hard lemonades and iced  teas. He also                                                            
noted  that ABC  finds  that  the 40-ounce  specification  would  be                                                            
appropriate; however, he  noted that the sponsor would be willing to                                                            
discuss changing  that limitation  were the Committee to  so desire.                                                            
                                                                                                                                
Senator  Hoffman  asked  whether 40-ounces  would  equate  to  three                                                            
bottles of beer.                                                                                                                
                                                                                                                                
Mr. Letch responded  that this would  equate to one large  bottle of                                                            
beer or a few bottles of beer.                                                                                                  
                                                                                                                                
Senator  Hoffman   asked  whether  a  size  definition   of  bottled                                                            
distilled spirits has been established.                                                                                         
                                                                                                                                
Mr. Letch stated  the ABC Board would be making that  determination.                                                            
He noted that  the Board would also  be willing to address  the beer                                                            
quantity,  "within its  regulatory  powers," were  the Committee  to                                                            
decide to remove the 40-ounce specification.                                                                                    
                                                                                                                                
Senator Dyson  informed the  Committee that  efforts are ongoing  by                                                            
the Pacific Northwest  Economic Region to encourage  the cruise ship                                                            
industry to utilize  a variety of local west coast  food products on                                                            
their menus, in addition to beers and other spirits.                                                                            
                                                                                                                                
Senator B.  Stevens moved  to report the  committee substitute  from                                                            
Committee with  individual recommendations  and accompanying  fiscal                                                            
note.                                                                                                                           
                                                                                                                                
There  being  no  objections,  CS  SB  194(FIN)  was  REPORTED  from                                                            
Committee with a zero fiscal  note, dated January 12, 2004, from the                                                            
Department of Public Safety.                                                                                                    
                                                                                                                                
                                                                                                                                
     SENATE BILL NO. 299                                                                                                        
     "An Act relating to a charge for a bad check."                                                                             
                                                                                                                                
                                                                                                                                
This  was the first  hearing  for this  bill in  the Senate  Finance                                                            
Committee.                                                                                                                      
                                                                                                                                
Senator  Bunde,   Chair  of  the  Senate  Labor  &  Commerce   (L&C)                                                            
Committee, explained that  this legislation is an attempt to address                                                            
the issue of bounced  checks. He noted that current  law specifies a                                                            
business could  collect up to a $25 penalty fee in  the case where a                                                            
person writes bad checks  to a business. Continuing, he shared that,                                                            
on occasion,  a business has been  challenged to provide  proof that                                                            
its  penalty   fee  is  warranted,   and  he  commented   that  this                                                            
legislation  has  been drafted  to address  this  situation  because                                                            
bring required to honor  the documentation request incurs additional                                                            
expenses  to  a  business.   Therefore,  he  summarized   that  this                                                            
legislation  would increase  the bad check  penalty from $25  to $30                                                            
and   would  remove   the   legal  requirement   to   provide   cost                                                            
documentation.                                                                                                                  
                                                                                                                                
Co-Chair Green noted that  current statute limits the penalty fee to                                                            
$25, and  she confirmed that  the Court has  overturned some  of the                                                            
penalty fees.                                                                                                                   
                                                                                                                                
JANE ALBERTS,  Staff to Senator Con  Bunde and Aide, Senate  Labor &                                                            
Commerce Committee,  noted that this bill would establish  a set fee                                                            
for "a  bounced or  insufficient"  funds check.  She noted that  the                                                            
bill would  also make the collection  process "less cumbersome"  for                                                            
businesses.  She mentioned that "15  percent of bad checks  that are                                                            
written  are by innocent  customers  who are unaware  of their  fund                                                            
level at the time,"  and who make good on their checks  within a day                                                            
or two  of notification.  She pointed  out that  "42 percent  of bad                                                            
check writers  are chronic  bad check  writers who  often take  more                                                            
than  90 days"  to  rectify  the problem.  She  also noted  that  45                                                            
percent  of all bad  checks written  are unrecoverable.  She  stated                                                            
that this legislation would  be "a clear deterrent" to writing a bad                                                            
check. In addition,  she noted that without relief,  some businesses                                                            
might  decline to  accept checks  as a form  of payment  due to  the                                                            
"hassle" of the  collection process. She noted that  the legislation                                                            
"is widely  supported" by  Alaskan businesses,  as witnessed  by the                                                            
number of  letters received  regarding it.  She also noted  that the                                                            
fee for bad checks has not been increased in 18 years.                                                                          
                                                                                                                                
Co-Chair  Green pointed  out that a  $30 bad check  fee would  align                                                            
with the  fees charged  in other  states, according  to the  handout                                                            
titled  "Service  Fees for  Returned  Checks"  [copy on  file]  that                                                            
Senator Bunde has provided.                                                                                                     
                                                                                                                                
Senator  Olson  asked  whether  there  is  any  opposition  to  this                                                            
legislation.                                                                                                                    
                                                                                                                                
Ms. Alberts responded that no one has voiced opposition.                                                                        
                                                                                                                                
JILL JAECKEL,  Legal Assistant, Spenard  Builders Supply,  testified                                                            
via teleconference  from an offnet site in support  of the bill. She                                                            
declared that businesses  suffer losses "when the profit from a cash                                                            
sale is dramatically  reduced" because of a 90-day  delay in payment                                                            
or is uncollectible as a result of a bad check.                                                                                 
                                                                                                                                
Co-Chair Green asked Spenard  Builders Supply's policy when a person                                                            
refuses to make restitution on a bad check.                                                                                     
                                                                                                                                
Ms.  Jaeckel  shared  that  Spenard  Builders   Supply  seeks  civil                                                            
penalties when  attempting to collect  a large check and  resorts to                                                            
filing  small claims  cases. She  continued that  were the  business                                                            
"lucky  enough to be  able to locate"  the individual,  they  seek a                                                            
court  judgment  and collect  from  the  offender's  Permanent  Fund                                                            
Dividend  (PFD) check if  one is applied for.  She stated that  this                                                            
process "is trickier" than  when dealing with someone who has filled                                                            
out a credit application because less information is available.                                                                 
                                                                                                                                
Co-Chair  Green  asked whether  in  current  law, there  is  "intent                                                            
language"  which  might be  detrimental  to the  collection  process                                                            
because  the  intent  language  might specify  that  proof  must  be                                                            
provided to show that the offender knowingly wrote a bad check.                                                                 
                                                                                                                                
Ms Jaeckel responded that  this might be applicable to a fraud issue                                                            
in which there is criminal intent.                                                                                              
                                                                                                                                
Co-Chair Green  asked whether, in a fraud case, a  specific monetary                                                            
level must be involved.                                                                                                         
                                                                                                                                
Ms. Jaeckel responded  that when Spenard Builders  Supply has had to                                                            
deal  with a situation  in  which a  large check  "has been  clearly                                                            
written fraudulently  and clearly  are a criminal case,"  its chance                                                            
of collection  "are so low," that  "if there is criminal  action and                                                            
if there is restitution  that is awarded through those court cases,"                                                            
the business might  collect "ten cents on a dollar  eight years from                                                            
now."                                                                                                                           
                                                                                                                                
Senator Hoffman  asserted that part of the difficulty  in collecting                                                            
on bad checks  lies with the fact that financial institutions  limit                                                            
the number  of times a bad check could  be presented for  processing                                                            
to two times. He asked whether this is an issue.                                                                                
                                                                                                                                
Ms. Jaeckel  affirmed that a bad check  could only be presented  for                                                            
payment twice. However,  she noted that the check could be presented                                                            
at the originating  bank and a cashier's  check for the amount  owed                                                            
could be  gotten were funds  in the account.  She expressed  however                                                            
that this increases the collection process expense.                                                                             
                                                                                                                                
Senator Hoffman asked whether  addressing the number of times that a                                                            
financial institution would  be required to process a check could be                                                            
considered.                                                                                                                     
                                                                                                                                
Ms. Jaeckel  replied that this would  result in additional  expenses                                                            
as financial institutes  charge up to $30 each time  an insufficient                                                            
fund check is submitted and the funds are not there.                                                                            
                                                                                                                                
Senator  Hoffman  declared  that  this  expense  might  serve  as  a                                                            
disincentive to individuals to write bad checks.                                                                                
                                                                                                                                
Ms. Jaeckel responded that  this does not seem to be "a big concern"                                                            
to individuals  who knowingly write bad checks.  She  stated that it                                                            
would  serve to  get  "them further  in  the hole,  and  in a  worse                                                            
situation"  and might make  it more difficult  for a business  to be                                                            
able to collect. She opined  that while it would not deter those who                                                            
knowingly  write bad  checks, it  might deter  those 15-percent  who                                                            
unknowingly  write a bad  check. However, she  noted that those  are                                                            
the ones whose  checks normally clear the bank the  second time they                                                            
are submitted.                                                                                                                  
                                                                                                                                
Co-Chair Green asked who  is responsible for paying the insufficient                                                            
funds bank fee.                                                                                                                 
                                                                                                                                
Ms.  Jaeckel  clarified  that both  the  bad  check writer  and  the                                                            
business submitting the  check are charged a fee, although she noted                                                            
that the person  responsible for writing the bad check  is charged a                                                            
higher fee than the business.                                                                                                   
                                                                                                                                
Co-Chair Green  summarized therefore that both the  business and the                                                            
person writing the bad check would be penalized.                                                                                
                                                                                                                                
Ms. Jaeckel concurred.                                                                                                          
                                                                                                                                
SCOTT  KING,  Representative,  Cornerstone   Credit  Services,  LLC,                                                            
testified via  teleconference from an offnet site  in support of the                                                            
bill. He stressed  that his company's  interest in this legislation                                                             
was prompted by  a recent District Court decision  in Fairbanks that                                                            
specified  that  businesses  would  be  required  to  "document  and                                                            
account for  all costs incurred"  in their  efforts to collect  on a                                                            
bad check.                                                                                                                      
                                                                                                                                
Mr. King continued  that the current  $25 fee assists businesses  in                                                            
covering internal  expenses associated  with the collection  process                                                            
including  such things  as merchants'  bank fees,  personnel  costs,                                                            
letters, telephone  calls, accounting  documentation, and  fees paid                                                            
to  collection  agencies.  He  stated  that   the District   Court's                                                            
decision  would  require  a  business  to  document  each  of  these                                                            
activities  and  that  only  the  activities   documented  could  be                                                            
included  in the  collection assessment  fee.  He communicated  that                                                            
important changes  in the bill include the elimination  of the words                                                            
"for costs  incurred" from State statutes  so that a business  would                                                            
not be  required to document  the costs incurred  from collecting  a                                                            
bad check  and the increase  of the maximum  fee from $25 to  $30 to                                                            
bring it more  in line with other states' fees and  to adjust for at                                                            
least 18 years of unadjusted inflation.                                                                                         
                                                                                                                                
Mr. King stated that his  company, which provides check verification                                                            
and  check   collection   services,  represents   more  than   2,000                                                            
businesses  in the State  who would  be negatively  affected  by the                                                            
District Court decision.                                                                                                        
                                                                                                                                
                                                                                                                                
SFC 04 # 24, Side B 09:53 AM                                                                                                    
                                                                                                                                
                                                                                                                                
Mr. King  spoke of  the volume of  business letters  that have  been                                                            
submitted  in  support  of  this  legislation,   and  he  urged  the                                                            
Committee to support the bill.                                                                                                  
                                                                                                                                
PAM LABOLLE, President,  Alaska State Chamber of Commerce, testified                                                            
to the Chamber's support  of the bill. She shared that the Chamber's                                                            
members  in   their  collection  efforts   have  experienced   costs                                                            
exceeding the currently  allowed $25, and even the proposed $30 fee.                                                            
She reiterated  that the  District Court's  ruling has necessitated                                                             
the proposed changes in  this law, as it would have "great" negative                                                            
impact on businesses.                                                                                                           
                                                                                                                                
Co-Chair Green  asked whether the  Chamber's members have  any other                                                            
bad check issues that should be addressed.                                                                                      
                                                                                                                                
Ms. LaBolle responded in the negative.                                                                                          
                                                                                                                                
AT EASE 9:55 AM / 9:55 AM                                                                                                       
                                                                                                                                
Ms. Alberts informed that  currently bank fees charged to businesses                                                            
for processing bad checks range from $2 to $25 dollars.                                                                         
                                                                                                                                
Co-Chair Green asked for that information to be provided to                                                                     
Members.                                                                                                                        
                                                                                                                                
Senator Bunde moved to report the bill from Committee with                                                                      
individual recommendations and accompanying fiscal note.                                                                        
                                                                                                                                
There being no objection, SB 299 was REPORTED from Committee with                                                               
zero fiscal note #1 from the Department of Administration.                                                                      
                                                                                                                                
ADJOURNMENT                                                                                                                 
                                                                                                                                
Co-Chair Lyda Green adjourned the meeting at 09:57 AM                                                                           

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