Legislature(2007 - 2008)BELTZ 211

03/21/2007 01:30 PM JUDICIARY

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01:34:05 PM Start
01:34:21 PM SB84
02:35:49 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                         March 21, 2007                                                                                         
                           1:34 p.m.                                                                                            
MEMBERS PRESENT                                                                                                               
Senator Hollis French, Chair                                                                                                    
Senator Charlie Huggins, Vice Chair                                                                                             
Senator Bill Wielechowski                                                                                                       
Senator Lesil McGuire                                                                                                           
Senator Gene Therriault                                                                                                         
MEMBERS ABSENT                                                                                                                
All members present                                                                                                             
COMMITTEE CALENDAR                                                                                                            
SENATE BILL NO. 84                                                                                                              
"An Act  relating to the  burning capability of  cigarettes being                                                               
sold  or offered  for sale,  or possessed  for sale;  relating to                                                               
compliance  certifications by  tobacco  product manufacturers,  a                                                               
directory  of  tobacco  product manufacturers,  the  affixing  of                                                               
stamps  to  cigarette packages,  and  cigarette  tax stamps;  and                                                               
providing for an effective date."                                                                                               
     HEARD AND HELD                                                                                                             
PREVIOUS COMMITTEE ACTION                                                                                                     
BILL: SB  84                                                                                                                  
SHORT TITLE: TESTING & PACKAGING OF CIGARETTES                                                                                  
SPONSOR(s): SENATOR(s) OLSON                                                                                                    
02/14/07       (S)       READ THE FIRST TIME - REFERRALS                                                                        
02/14/07       (S)       L&C, JUD, FIN                                                                                          
02/27/07       (S)       L&C AT 1:30 PM BELTZ 211                                                                               
02/27/07       (S)       Heard & Held                                                                                           
02/27/07       (S)       MINUTE(L&C)                                                                                            
03/06/07       (S)       L&C AT 1:30 PM BELTZ 211                                                                               
03/06/07       (S)       Moved CSSB  84(L&C) Out of Committee                                                                   
03/06/07       (S)       MINUTE(L&C)                                                                                            
03/07/07       (S)       L&C RPT CS  3DP 1NR 1AM   NEW TITLE                                                                    
03/07/07       (S)       DP: ELLIS, DAVIS, STEVENS                                                                              
03/07/07       (S)       NR: HOFFMAN                                                                                            
03/07/07       (S)       AM: BUNDE                                                                                              
03/21/07       (S)       JUD AT 1:30 PM BELTZ 211                                                                               
WITNESS REGISTER                                                                                                              
Senator Donald Olson                                                                                                            
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Sponsor of SB 84                                                                                         
Denise Liccioli, Staff                                                                                                          
Senator Donny Olson                                                                                                             
Alaska State Capitol                                                                                                            
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Provided information on SB 84                                                                            
Ray Bazal, Western Regional Manager                                                                                             
National Fire Protection Association                                                                                            
POSITION STATEMENT:  Spoke in support of SB 84                                                                                
Warren Cummings, President                                                                                                      
Alaska Fire Chiefs Association and                                                                                              
Fairbanks Fire Chief                                                                                                            
Fairbanks, AK                                                                                                                   
POSITION STATEMENT:  Spoke in support of SB 84                                                                                
Rusty Belanger                                                                                                                  
State Fire Marshal                                                                                                              
POSITION STATEMENT:  Spoke in support of SB 84                                                                                
Pat Eggers                                                                                                                      
Alaska State Firefighters Association                                                                                           
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Spoke in support of SB 84                                                                                
Bob Evans, Lobbyist                                                                                                             
 for Altria Corporation                                                                                                         
Anchorage, AK                                                                                                                   
POSITION STATEMENT:  Spoke in support of SB 84                                                                                
Emily Neenan, Director,                                                                                                         
Alaska Government Relations                                                                                                     
American Cancer Society                                                                                                         
POSITION STATEMENT:  Said the ACS has no objection to SB 84                                                                   
Theresa Bannister, Legislative Counsel                                                                                          
Division of Legal and Research Services                                                                                         
Legislative Affairs Agency                                                                                                      
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Highlighted issues related to SB 84                                                                      
Johanna Bales, Excise Audit Manager                                                                                             
Tax Division                                                                                                                    
Department of Revenue (DOR)                                                                                                     
Juneau, AK                                                                                                                      
POSITION STATEMENT:  Highlighted DOR obligations related to SB
ACTION NARRATIVE                                                                                                              
CHAIR  HOLLIS   FRENCH  called  the  Senate   Judiciary  Standing                                                             
Committee meeting to order at 1:34:05  PM. Present at the call to                                                             
order  were   Senator  Huggins,  Senator   Wielechowski,  Senator                                                               
McGuire, Senator Therriault, and Chair French.                                                                                  
            SB  84-TESTING & PACKAGING OF CIGARETTES                                                                        
CHAIR FRENCH announced the consideration of CSSB 84(L&C).                                                                       
1:34:21 PM                                                                                                                    
SENATOR OLSON, Sponsor of SB 84, introduced his staff member,                                                                   
Denise Licctoli and then he read the sponsor statement into the                                                                 
record as follows:                                                                                                              
     SB 84 mandates  that only self-extinguishing cigarettes                                                                    
     can be sold in Alaska,  and establishes the testing and                                                                    
     certification  requirements to  assure that  only self-                                                                    
     extinguishing cigarettes  are sold in  Alaska. Although                                                                    
     no  cigarette  could ever  be  called  safe, so  called                                                                    
     self-extinguishing  or   "fire  safe"   cigarettes  are                                                                    
     reduced  ignition  propensity   cigarettes.  These  are                                                                    
     cigarettes that are  designed to be less  likely than a                                                                    
     conventional cigarette to  ignite soft furnishings such                                                                    
     as a couch or mattress.  The bill also provides for the                                                                    
     marking  of  cigarette  packaging in  an  approved  and                                                                    
     easily identifiable  manner to  indicate they  are fire                                                                    
     Cigarettes  are   the  leading   cause  of   home  fire                                                                    
     fatalities in  Alaska and the  United States.  The most                                                                    
     common  material  first  ignited   in  home  fires  are                                                                    
     mattresses  and  bedding,  upholstered  furniture,  and                                                                    
     floor coverings.  A typical scenario for  fires is when                                                                    
     a lit  cigarette is forgotten  or dropped by  a smoker.                                                                    
     The  cigarette fire  can smolder  for  hours before  it                                                                    
     flares up into a full blaze.                                                                                               
     One   fourth  of   victims  of   smoking-material  fire                                                                    
     fatalities are  not the smoker whose  cigarette started                                                                    
     the fire;  over one  third of  these are  children. The                                                                    
     risk of  dying in  a residential structure  fire caused                                                                    
     by  smoking  rises  with  age:   38  percent  of  fatal                                                                    
     smoking-material-fire victims are age 65 or older.                                                                         
     The   most   common   technology  used   by   cigarette                                                                    
     manufacturers    for    reduced   cigarette    ignition                                                                    
     propensity  (RCIP)  is to  make  the  paper thicker  in                                                                    
     places  to slow  down a  burning cigarette.  If such  a                                                                    
     cigarette  is left  unattended, when  the burn  reaches                                                                    
     one  of  the  thicker  places  or  "speed  bumps",  the                                                                    
     burning   will    self-extinguish.   Self-extinguishing                                                                    
     cigarettes  meet  established fire  safety  performance                                                                    
     Legislation similar  to SB 84  has been enacted  in New                                                                    
     York,    Massachusetts,    Vermont,   New    Hampshire,                                                                    
     California,  and   Illinois.  A  fire   safe  cigarette                                                                    
     mandate has also been approved  for all of Canada. This                                                                    
     legislation  is supported  by  the  Alaska Fire  Chiefs                                                                    
     Association, the  Alaska Firefighters  Association, and                                                                    
     Department   of  Public   Safety,   Division  of   Fire                                                                    
     SB 84 will  save lives, as well as  reduce injuries and                                                                    
     damage to property in Alaska.                                                                                              
SENATOR OLSON  explained that  part of his  interest in  the bill                                                               
stems from having treated children who were fire victims.                                                                       
1:38:11 PM                                                                                                                    
CHAIR FRENCH opened public testimony.                                                                                           
RAY  BAZAL,  Western  Regional  Manager  for  the  National  Fire                                                               
Protection Association,  spoke in  support of  SB 84.  He relayed                                                               
that 6 states  have passed similar legislation and  22 others are                                                               
in the  process of doing  so meaning  that one quarter of  the US                                                               
population  is now  protected by  this law.  Statistics from  New                                                               
York indicate  that in the  six months  after the law  was passed                                                               
there was no reduction in cigarette  tax revenue, but there was a                                                               
one third  reduction  in  fire  fatalities  and  an  even  higher                                                               
reduction  in  the  number  of fires.  "Passing  this  bill  will                                                               
absolutely save  lives in Alaska  and reduce injuries  to people,                                                               
to firefighters, and reduce property damage."                                                                                   
1:41:31 PM                                                                                                                    
WARREN CUMMINGS,  President, Alaska  Fire Chiefs  Association and                                                               
Fairbanks  Fire Chief,  spoke in  support of  SB 84.  He reported                                                               
that in  the last 10  years there  have been 37  cigarette caused                                                               
fire fatalities  in Alaska. Smokers  aren't the only ones  to die                                                               
in  these fires:  34  percent  are children  of  the smokers,  25                                                               
percent are neighbors  or friends of the smokers,  14 percent are                                                               
spouses  or partners,  and  13  percent are  the  parents of  the                                                               
smokers. In  the 1980s it  was predicted that  self extinguishing                                                               
cigarettes would eliminate  3 out of 4 cigarette  fire deaths. If                                                               
cigarette manufacturers had been  producing only those cigarettes                                                               
since  that  time, approximately  15,000  lives  would have  been                                                               
saved throughout the US. This is good legislation he said.                                                                      
1:43:50 PM                                                                                                                    
RUSTY  BELANGER, Acting  Director, Division  of Fire  Prevention,                                                               
Department of  Public Safety  (DPS), spoke in  support of  SB 84.                                                               
The  bill embodies  the division's  mission statement  to prevent                                                               
the  loss  of life  and  property  from  fire and  explosion.  As                                                               
previously mentioned,  27 lives  and $8  million in  property has                                                               
been lost in the last 10 years  as a result of fires that started                                                               
with a  cigarette as the  ignition source. The  division believes                                                               
that the number of fire related  deaths in Alaska will be reduced                                                               
if cigarette  manufacturers are required  to meet the  new safety                                                               
standards set forth  in SB 84. He urged the  committee to support                                                               
the issue.                                                                                                                      
SENATOR  HUGGINS  asked  how many  cigarette  related  fires  are                                                               
attributable to roll your own type smoking material.                                                                            
MR. BELANGER said  he could try and get that  information, but it                                                               
might not  be broken down that  way. The division looks  at those                                                               
fires as having been caused by unattended smoking materials.                                                                    
SENATOR HUGGINS said  he wants to make sure that  the bill really                                                               
would fix something.                                                                                                            
CHAIR  FRENCH asked  Mr.  Belanger to  send  the information  via                                                               
email if he finds it broken down that way.                                                                                      
MR. BELANGER agreed.                                                                                                            
1:47:38 PM                                                                                                                    
PAT  EGGERS,  First  Vice-President,  Alaska  State  Firefighters                                                               
Association, described SB  84 as huge legislation  that will save                                                               
lives.  He  informed  members  that  a  great  deal  of  relevant                                                               
information is available on the firesafe.org website.                                                                           
1:48:42 PM                                                                                                                    
BOB  EVANS,  Lobbyist  for  Altria  Corporation,  said  that  for                                                               
several years the  parent company, Philip Morris  USA, has worked                                                               
with the national firefighters to  develop legislation that would                                                               
address the  safety issue and  also provide  business consistency                                                               
for Altria Corporation. In an  ideal world Congress would provide                                                               
a single uniform standard, but  because that's unlikely to happen                                                               
any  time  soon PMUSA  has  been  working with  firefighters  and                                                               
legislatures in  different states  to make  this bill  happen. My                                                               
client supports this bill as drafted, he stated.                                                                                
SENATOR  WIELECHOWSKI noted  the  memorandum in  the packet  from                                                               
Michael  White  and asked  if  he  is  a corporate  attorney  for                                                               
MR. EVANS explained that he and  Mr. White are partners at Patton                                                               
Boggs, LLP. Mr.  White has been retained by Arnold  & Porter, LLP                                                               
to address  the delegation  issue. That  legal entity  is outside                                                               
counsel to Legislative Council.                                                                                                 
SENATOR WIELECHOWSKI  noted his finding that  the legislature has                                                               
the authority to pass this law.                                                                                                 
MR. EVANS said yes.                                                                                                             
SENATOR WIELECHOWSKI  asked if  there is  any sort  of preemption                                                               
MR. EVANS said he  isn't award of any, but he  would defer to Mr.                                                               
SENATOR HUGGINS asked  if there might be an  issue of underground                                                               
market cigarettes if this legislation were to pass.                                                                             
MR. EVANS said he didn't know  for sure, but he understands there                                                               
is  no difference  in taste  so that  wouldn't be  a contributing                                                               
factor.  To  the extent  that  there  is already  an  underground                                                               
market,  he  suspects  it  would   be  the  same.  This  wouldn't                                                               
necessarily increase it.                                                                                                        
CHAIR FRENCH  asked for clarification  that there is  no economic                                                               
incentive to select one type over another.                                                                                      
MR. EVANS  said that's  correct; there  is no  economic advantage                                                               
CHAIR  FRENCH added  that there  could be  cigarettes that  don't                                                               
have a tax stamp, but tax is an entirely different issue.                                                                       
MR. EVANS agreed completely.                                                                                                    
SENATOR  WIELECHOWSKI  asked  if  self  extinguishing  cigarettes                                                               
would require the user to inhale more deeply.                                                                                   
MR. EVANS said  he doesn't know, but he's been  told there are no                                                               
increased health issues.                                                                                                        
1:53:57 PM                                                                                                                    
EMILY  NEENAN,  Alaska  Government  Relations  Director  for  the                                                               
American Cancer  Society, said SB  84 doesn't affect  the mission                                                               
to prevent cancer one way or  the other. Responding to a previous                                                               
question she  said that a colleague  from New York told  her that                                                               
smokers do  not have to  inhale more  deeply to keep  a cigarette                                                               
lit. Although  she doesn't have  any documentation, that  is what                                                               
folks in the health field are saying.                                                                                           
As an  aside she said she  prefers to call these  cigarettes self                                                               
extinguishing rather than  fire safe because she  doesn't like to                                                               
use safe and cigarette in the same sentence.                                                                                    
CHAIR FRENCH said the nomenclature is noted.                                                                                    
SENATOR  WIELECHOWSKI said  he would  like to  find out  if these                                                               
cigarettes require deeper inhalation  because that would endanger                                                               
thousands of users  in the state. "... that's a  judgment call or                                                               
certainly a fact that I want to be aware of," he said.                                                                          
MS.  NEENAN said  she doesn't  believe that's  an issue,  but she                                                               
would provide more information.                                                                                                 
SENATOR HUGGINS  asked if  she knows the  percentage of  the roll                                                               
your own fraternity.                                                                                                            
MS. NEENAN  said she would  try to provide that  information, but                                                               
her general sense is it's a pretty small percentage.                                                                            
SENATOR  HUGGINS said  as much  as he  dislikes tobacco  smoking,                                                               
he'd hate for the next step to  be a prohibition on roll your own                                                               
because they aren't self extinguishing.                                                                                         
CHAIR  FRENCH asked  what makes  a  cigarette self  extinguishing                                                               
compared  to   one  that  continues   to  burn  when   it's  left                                                               
MS.  NEENAN   said  she   understands  that   self  extinguishing                                                               
cigarettes  have  bands in  the  paper  that  don't burn  if  the                                                               
cigarette isn't actively smoked.                                                                                                
JOANNA BAILS, Department of Revenue  (DOR), advised that DOR will                                                               
have some enforcement obligations.                                                                                              
CHAIR FRENCH  asked her  to describe DOR's  role should  the bill                                                               
become law.                                                                                                                     
MS.  BAILS  said the  DOR  fiscal  note addresses  the  committee                                                               
substitute that Senator Olson was going to offer.                                                                               
2:00:19 PM                                                                                                                    
CHAIR FRENCH thanked  her for bringing that to  his attention and                                                               
asked  for a  motion  to adopt  Version  \O committee  substitute                                                               
SENATOR  HUGGINS motioned  to adopt  Version  \O, CS  for SB  84,                                                               
labeled  25-LS0596\O,  as  the working  document.  There  was  no                                                               
MS. BAILS said she understands  that the CS removes bill sections                                                               
dealing with a  DOR maintained directory. DOR  believes that with                                                               
that  change it  will have  to maintain  an additional  directory                                                               
listing cigarettes  that are approved  for sale in the  state and                                                               
the fiscal note  reflects that cost. DOR expects it  will need at                                                               
least a part-time  person to maintain the  separate directory and                                                               
educate taxpayers on the difference between the two directories.                                                                
She  elaborated that  as part  of the  Tobacco Master  Settlement                                                               
Agreement the state passed legislation  requiring DOR to maintain                                                               
a directory that identifies cigarettes  that are either compliant                                                               
with the master settlement agreement  or compliant with an escrow                                                               
statute  that was  adopted  under Title  45.  Because the  master                                                               
settlement is so  complex, it is best not to  change the existing                                                               
directory and instead maintain a  separate directory for the self                                                               
extinguishing  cigarettes. DOR  would need  to educate  retailers                                                               
about which brands  meet both the self extinguishing  and the MSA                                                               
standards. That is where the additional costs come from.                                                                        
MS. BAILS  added that based  on the  language in the  bill, every                                                               
three years  manufacturers would  be required to  pay a  $250 fee                                                               
for each  cigarette brand that is  certified in the state.  Up to                                                               
1,000 different brands could be  certified, which would more than                                                               
cover the expected annual cost of about $40,000.                                                                                
2:03:33 PM                                                                                                                    
SENATOR THERRIAULT said he could  understand some one-time costs,                                                               
but he doesn't believe that  the year after year expenses justify                                                               
a half-time position.                                                                                                           
MS.   BALES  explained   that  the   ongoing  expenses   include:                                                               
maintaining  the  new  directory; cross  referencing  the  master                                                               
settlement  and  the  self extinguishing  cigarette  directories;                                                               
investigation   activity   to   ensure   that   only   the   self                                                               
extinguishing  cigarettes  are  stamped; seizing  and  destroying                                                               
cigarettes; and addressing potential legal costs.                                                                               
SENATOR  THERRIAULT  said  he  would  leave  it  to  the  finance                                                               
committee,  but he  believes that  a  lot of  those expenses  are                                                               
included in the ordinary business of the state.                                                                                 
2:06:11 PM                                                                                                                    
CHAIR  FRENCH  said   he  would  like  to   discuss  the  3/19/07                                                               
memorandum that  Ms. Bannister issued.  He asked her  to describe                                                               
how the bill intersects with the interstate commerce clause.                                                                    
THERESA BANNISTER,  Legislative Counsel, explained  that bringing                                                               
cigarettes  to  Alaska from  another  state  places a  burden  on                                                               
interstate commerce and the US  Constitution prohibits that if it                                                               
goes too  far. Thus, the question  will be whether the  burden is                                                               
clearly excessive  on the commerce  that is going back  and forth                                                               
versus  the benefit  that will  be reaped.  "I don't  have enough                                                               
information to  be able to evaluate  that, but I wanted  to bring                                                               
it up as an issue," she stated.                                                                                                 
CHAIR  FRENCH  asked if  she  did  any  research into  whether  a                                                               
tobacco company  had ever  challenged a  similar bill  in another                                                               
state on those grounds.                                                                                                         
MS. BANNISTER replied she had not.                                                                                              
CHAIR FRENCH  asked her to  address her observations in  the bill                                                               
with respect to civil penalties.                                                                                                
MS.  BANNISTER explained  that the  legislature can  impose civil                                                               
rather  than  criminal penalties  to  regulate  activity that  is                                                               
addressed in statute.  However, if the penalty is  too high, then                                                               
it  might be  interpreted that  the legislature  actually thought                                                               
the activity was criminal. In  that case all the protections that                                                               
accrue to a  criminal penalty would accrue to  the civil penalty.                                                               
To  a  large degree  the  court  will  defer to  the  legislature                                                               
finding that  it is a  civil penalty, but  you must keep  that in                                                               
mind. Also keep in mind that  the court will evaluate the size of                                                               
the penalty for the particular  situation. She really didn't have                                                               
any  idea   what  penalty  is  appropriate   in  this  particular                                                               
situation, she said.                                                                                                            
CHAIR  FRENCH  asked  her  to  articulate  any  observations  and                                                               
concerns in the bill with respect to delegation.                                                                                
MS.  BANNISTER explained  that the  legislature can  delegate its                                                               
authority to make regulations to  members of the executive branch                                                               
as long  as it provides  guidelines, otherwise it is  an improper                                                               
delegation  of authority.  In this  case  the effect  is that  in                                                               
three  sections  of  the  bill   the  delegation  of  legislative                                                               
authority is to follow what New  York law does. The question that                                                               
arises  is  whether  or  not in  that  particular  situation  the                                                               
legislature is  exceeding its authority. A  reason underlying the                                                               
issue is  the concern that  the people won't have  an opportunity                                                               
to comment  or get  notice of  any changes in  New York  law. The                                                               
court has stated that concern in the past, she said.                                                                            
MS. BANNISTER  said the federal government  doesn't pay attention                                                               
to  the  delegation  issue,  but   Alaska  seems  to  allow  some                                                               
delegation  by reference  to  amended federal  laws  and it  also                                                               
mentions some  private organizations  regarding a  building code.                                                               
Because the  language is there  and the concept of  delegating or                                                               
allowing  another state's  activities to  affect what  this state                                                               
does is unusual,  and because it isn't clear what  the court will                                                               
do it is an issue that the  legislature ought to be aware of, she                                                               
2:14:49 PM                                                                                                                    
SENATOR THERRIAULT  asked why  language similar  to the  New York                                                               
law isn't written in to the statute now.                                                                                        
MS. BANNISTER  said she doesn't  know why that hasn't  been done,                                                               
but she  feels that  the idea  is to  capture decisions  that are                                                               
made in  the future.  In particular  Section 18.74.220  says that                                                               
the New York  standards shall be persuasive authority.  "I see it                                                               
as embodying future decisions," she said.                                                                                       
SENATOR   THERRIAULT   said   he   understands   that   cigarette                                                               
manufacturers  are   looking  for   consistency,  which   is  not                                                               
forthcoming from Congress so the  suggestion to refer to just one                                                               
state's law is reasonable.                                                                                                      
CHAIR FRENCH  said he  too senses  the tension;  it seems  odd to                                                               
make  explicit  reference  to  New York  laws  and  delegate  the                                                               
decision making to that body.                                                                                                   
SENATOR McGUIRE suggested the committee  replace the word "shall"                                                               
with "may" on page 9, line  12. That way the record reflects that                                                               
this   legislature   is   looking   for   consistency   for   the                                                               
2:17:53 PM                                                                                                                    
SENATOR  WIELECHOWSKI  stated the  opinion  that  section 220  is                                                               
probably  unconstitutional.  "If we  want  to  use the  New  York                                                               
statute  then we  should  probably  just put  that  in here,"  he                                                               
SENATOR  McGUIRE asked  the  sponsor why  adopting  the New  York                                                               
model  isn't  preferable to  specifically  referencing  it in  an                                                               
implementation clause.                                                                                                          
2:18:43 PM                                                                                                                    
CHAIR FRENCH advised that Mr. White would be the next witness.                                                                  
SENATOR  OLSON said  he'd  like  to hear  from  the next  witness                                                               
before explaining why the bill is crafted a specific way.                                                                       
MICHAEL D.  WHITE ESQ.,  Partner, Patton  Boggs, LLP,  said their                                                               
client  is  Altria Corporate  Services,  Inc,  parent company  of                                                               
Phillip Morris  USA (PMUSA). His firm  was asked to look  at this                                                               
legislation   focusing  in   particular   on   the  issues   that                                                               
Legislative  Counsel  raised  regarding the  potential  issue  of                                                               
unconstitutional   delegation.  Review   of   the  statutes   and                                                               
authorities unequivocally  indicates that there is  no delegation                                                               
problem, thus no constitutional problem, he stated.                                                                             
He referenced  the March  20, 2007 memorandum  and said  he would                                                               
touch on two  major points. First, the delegation  issue may have                                                               
been a concern 60 years ago,  but since that time the courts have                                                               
routinely upheld  this type of  legislation. Although it  is true                                                               
that there is  the concept in the law  regarding delegation, what                                                               
it means now is there  can't be complete abdication of authority.                                                               
Clearly   government  wouldn't   work  if   legislators  couldn't                                                               
delegate work to  other branches of government  to do regulations                                                               
and  other daily  business matters  as part  of state,  local and                                                               
federal government.                                                                                                             
MR. WHITE  said case  law that interprets  the statutes  makes it                                                               
clear  that  since  the  '60s, other  than  the  extremely  large                                                               
delegation  of authority  giving the  governor the  discretion to                                                               
rewrite the  budget, every  challenge based  on a  delegation has                                                               
been rejected by Alaska courts.                                                                                                 
The specific  examples in Sections  18.74.040 (b), 18.74.120 (b),                                                               
and  18.74.220 show  that legislative  authority is  delegated to                                                               
the fire marshal  to implement decisions to do his  or her job by                                                               
making  the authority  from  New York  a  deciding or  persuasive                                                               
factor. Those standards  are the ones that are  necessary for the                                                               
fire  marshal to  do the  job. "There  is no  unlawful delegation                                                               
because the  court has  said there is  a sliding  scale analysis.                                                               
The  broader  the  delegation  -  i.e.  the  closer  you  get  to                                                               
abdication  -  the  more  scrutiny   the  court  will  give  that                                                               
delegation."   Furthermore,  he   said,  if   this  is   unlawful                                                               
delegation then  a good portion  of the laws the  legislature has                                                               
passed would  be unlawful delegations.  That includes  the Alaska                                                               
Wage and Hour Act, federal  tax laws, antitrust laws, and various                                                               
probate  laws. In  those the  legislature has  implicitly adopted                                                               
laws from other jurisdictions as binding upon the state.                                                                        
2:23:52 PM                                                                                                                    
SENATOR  WIELECHOWSKI   said  he  doesn't  have   a  big  problem                                                               
delegating  authority to  the fire  marshal, but  he does  have a                                                               
problem delegating to what is  done in another state. Noting that                                                               
all  the references  for delegations  listed in  the memo  are to                                                               
federal code, he  asked if any Alaska legislation  directs use of                                                               
another state's law as a persuasive authority.                                                                                  
MR. WHITE  clarified that it  doesn't matter that  the delegation                                                               
references are to federal code  rather than another state's code,                                                               
because  both  are  foreign  governments   with  respect  to  the                                                               
legislative  authority   that  exists   under  State   of  Alaska                                                               
sovereignty.  He further  explained that  there are  a number  of                                                               
uniform  acts  that  are  not federal  legislation  such  as  the                                                               
Uniform Child  Custody Jurisdiction  Act and the  Uniform Probate                                                               
Code.  Promulgated   by  an  association,   those  laws   seek  a                                                               
nationwide  uniform standard  in an  area that  lacks uniformity.                                                               
Responding to the  specific question, he said he  is not familiar                                                               
with any  specific reference to a  state law other than  the fact                                                               
that all Alaska law is based  on Oregon law and his understanding                                                               
is that it would not  be inappropriate for the Alaska Legislature                                                               
to adopt by reference something in Oregon statute.                                                                              
2:26:20 PM                                                                                                                    
CHAIR  FRENCH asked  if  he is  aware of  any  challenge of  self                                                               
extinguishing  cigarette legislation  by  Altria,  PMUSA, or  any                                                               
tobacco  company   with  respect  to  the   issue  of  interstate                                                               
MR. WHITE said no; Altria  supports the legislation and would not                                                               
challenge any such legislation on those grounds.                                                                                
SENATOR   WIELECHOWSKI  asked   if   he   would  challenge   this                                                               
legislation  on  any  grounds  and if  he  foresees  any  federal                                                               
preemption issues here.                                                                                                         
MR. WHITE said  he couldn't say because he doesn't  know what his                                                               
client is thinking,  but in his mind he can't  see a challenge of                                                               
this type of law. With  regard to preemption his understanding is                                                               
there is no  federal law, thus there can be  no preemption issue.                                                               
Congress could but  has not regulated in this area  so states are                                                               
free to do so.                                                                                                                  
CHAIR  FRENCH  asked  about his  client's  perspective  on  civil                                                               
penalties and  whether it would  be challenged as amounting  to a                                                               
criminal fine because of size and severity.                                                                                     
MR. WHITE  reiterated he couldn't  speak for Altria, but  he does                                                               
not believe this would amount  to an unlawful criminal sanction -                                                               
particularly  in  light of  the  strong  legislative intent  that                                                               
these be civil penalties.                                                                                                       
2:29:16 PM                                                                                                                    
CHAIR  FRENCH stated  his intention  to hold  the bill  to finish                                                               
reviewing Mr. White's  legal memorandum. He asked  the sponsor if                                                               
he had any further observations on the bill.                                                                                    
SENATOR OLSON said Ms. Licctoli had additional information.                                                                     
2:30:01 PM                                                                                                                    
DENISE LICCIOLI,  Staff to Senator  Olson, said she has  no legal                                                               
background so deferring the delegation  issue to this committee's                                                               
expertise was  intentional. Nonetheless, she can  attest that the                                                               
manufacturers  believe that  lacking  federal  regulation, it  is                                                               
very important to establish nationwide uniformity.                                                                              
CHAIR FRENCH  asked if  states with a  similar law  reference New                                                               
York  law   or  embed  New   York  law  in  statute   as  Senator                                                               
Wielechowski suggested.                                                                                                         
MS.  LICCIOLI said  the website  referenced previously  has model                                                               
legislation as well as the laws  from the states that have passed                                                               
this  legislation.   Essentially  all   have  adopted   and  made                                                               
reference  to New  York law.  The model  legislation is  stronger                                                               
than what is suggested in SB 84.                                                                                                
SENATOR  OLSON said  he feels  strongly about  this issue  and he                                                               
introduced the  bill to affect the  lives of those who  have been                                                               
negatively  affected in  the past.  As far  as the  concern about                                                               
having  to  inhale more  deeply,  he  said  smokers have  made  a                                                               
conscious choice. Children who are  fire victims weren't there by                                                               
choice and were in fact expecting to be protected.                                                                              
SENATOR THERRIAULT  noted the Department of  Public Safety fiscal                                                               
note for $83,000  per year and commented that for  years the fire                                                               
associations have  been looking for  a funding source  similar to                                                               
the Police  Standards Council. It's an  annual appropriation, but                                                               
this could be an answer to a long-standing problem.                                                                             
CHAIR FRENCH held SB 84 in committee.                                                                                           
There being  no further  business to  come before  the committee,                                                               
Chair French adjourned the meeting at 2:35:49 PM.                                                                             

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