Legislature(2017 - 2018)GRUENBERG 120
03/16/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB387 | |
| HB75 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 387 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 75 | TELECONFERENCED | |
HB 387-AG SCHEDULE CONTROLLED SUBSTANCES
1:01:31 PM
CHAIR CLAMAN announced that the first order of business would be
HOUSE BILL NO. 387, "An Act relating to scheduled substances;
relating to the Controlled Substances Advisory Committee; and
authorizing the attorney general to schedule substances by
emergency regulation or repeal an emergency regulation that
scheduled a substance."
1:02:52 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, explained the
Sectional Analysis, as follows:
Section 1 makes the president of the Board of Pharmacy
the chairman of the Controlled Substances Advisory
Committee.
Section 2 makes a conforming change in conforming with
the change in Section 1 and removes the attorney
general as the chair and makes the chair the president
of the Board of Pharmacy.
Section 3 adds a new duty to the Controlled Substances
Advisory Committee and that duty is to advise the
attorney general of the need to schedule substances by
emergency regulation.
Section 4 is the meat of the bill, and Section 4
allows the attorney general to schedule substances by
emergency regulation and then outlines a number of
things that must be considered before the substance
can be scheduled. Among them are that the attorney
general must assess the actual or probable abuse of
the substance; the attorney general must consider
whether the substance has been already scheduled on a
temporary basis under federal law; the attorney
general must consult with the Controlled Substances
Advisory Committee; and the attorney general must also
consult with the chief medical officer in the
Department of Health and Social Services.
1:04:19 PM
Section 5 adds to the definition of controlled
substances that are scheduled on an emergency basis by
the attorney general.
Section 6 adds the definition of substance and that
substance means a drug, controlled substance, or
immediate precursor included in the schedules that are
set out in statute, as well as substances that are
scheduled on an emergency basis by the attorney
general.
Section 7 adds to the duties of the attorney general
to schedule substances on an emergency basis.
Section 8 says that notice of scheduling a substance
on an emergency basis must be put on the Alaska Online
Public Notice System.
Section 9 says that the notice must include a summary
of compliance with the considerations that I just
outlined in Section 4.
Section 10 exempts the attorney general's emergency
scheduling process from the normal emergency
regulation scheduling process. So, this is a
different emergency regulation scheduling process that
we're setting up.
1:05:36 PM
Section 11 adds the new process that we are
establishing to the emergency regulation statute. So,
if you looked up that statute you would find both the
normal emergency regulation process and the one for
the attorney general.
Section 12 exempts the process that we are
establishing for the attorney general from the
timelines that are in place for the current emergency
regulations. Currently, they are only in effect for
120-days and we're exempting the attorney general's
process from that timeframe.
Section 13 says that a regulation -- a substance that
is scheduled by an emergency regulation by the
attorney general is in effect for 720-days. It will
expire unless the attorney general follows the normal
regulation process and makes the regulation permanent.
Section 14 is the state policy that emergencies are
held to a minimum and exempts the attorney general's
ability to schedule on an emergency basis from that
statute.
1:06:50 PM
ROBERT HENDERSON, Deputy Attorney General, Criminal Division,
Office of the Attorney General, Department of Law, advised that
as Ms. Schroeder described, this bill creates a new emergency
regulation process that is unique to controlled substances and
unique to designer drugs. It is different from the regular
regulatory process and the current emergency regulation process,
he advised. It is well known that designer drugs come on the
market quickly, and the state as a whole, is not nimble,
flexible, or quick enough to address these drugs as they arrive
on the market. He related that the Department of Law (DOL) has
heard this information from law enforcement, prosecutors, public
health, and different venues. The legislature would then take
up the issue and make a decision as to whether to schedule that
controlled substance, and where on the list the drug should be
scheduled. Currently, he offered, a bill can take several years
to pass, the DOL has found that during that time period, people
are getting hurt and abusing the substance, and law enforcement
is without the tools necessary to interdict those new drugs. He
pointed out that depending upon the circumstance, once the drug
is scheduled by statute, the makers of that drug may change its
chemical compound. This legislation, he described, allows the
department to be nimbler as those new chemical compounds come up
and the DOL can quickly and appropriately respond.
1:08:36 PM
MR. HENDERSON explained that HB 387 has several protections to
ensure that the attorney general exercises that authority
appropriately. He highlighted examples of where this issue was
recently seen and why there is a need now for this legislation
and he referred to the new drug "tramadol." He explained that
it is an opioid derivative, a mild pain killer, that is
currently a Schedule IVA controlled substance, and the members
of the Controlled Substance Advisory Committee (CSAC) started
hearing about tramadol from community members of Bethel in 2014.
Tramadol, he explained, was purchased on the internet, sent to
Western Alaska, was abused, and sold illegally as a substitute
for other opioids in the region. Tramadol was introduced to the
2015 Alaska State Legislature, and for several reasons it was
not actually enacted until later and added to the controlled
substances schedule, he offered. During that time, he
commented, there was a two and one-half year window where the
CSAC knew from law enforcement and public health that the drug
was being purchased illegally, distributed illegally, and
abused, but there was nothing state law enforcement could do
about tramadol. The federal government passed an emergency
regulation and it started to take on the large cases, and this
bill is designed, in part, based upon how the federal government
schedules drugs. He advised that another good example is the
drug "spice" wherein law enforcement was unable to address
enforcement. This body dealt with the issue of spice several
years ago and shortly after it was added to the controlled
substances schedule, the chemical compound changed, he advised.
Ultimately, he explained, the way spice is handled under current
law is through packaging, wherein there is certain packaging
that someone engages in, represents it to be something that it
is not, and that person can be held liable. He described that
it is not an effective means of interdicting some of these drugs
that result in real life public health consequences.
1:11:45 PM
MR. HENDERSON explained that HB 387 creates permission to pass
emergency regulations. The legislation provides that the
attorney general will provide 30-days public notice on the
Alaska Online Public Notification System, and the attorney
general shall also consider the various factors that go into
determining whether a substance should be controlled. Broadly,
he offered, it relates to the pattern of abuse such as, whether
the substance is dangerous, addictive, and subject to abuse.
The code in the proposed bill is more specific in that the CSAC
goes through the degree of danger or probable danger, the way
the drug is abused, the type, the severity, the duration, the
scope, and the CSAC talks to its public health partners. He
pointed out that those are the issues the attorney general would
have to access and make written findings as to all of those
factors. The attorney general would have to consult the
Controlled Substance Advisory Committee, which was created by
statute and contains a unique group of skill sets where people
have come together who are all subject matter experts in the
realm of controlled substances, but for different purposes and
different reasons, he explained. The current makeup of the
advisory committee has nine members and Mr. Henderson then
listed all of the members of the CSAC. He described the
committee as a unique and robust group of individuals who all
have an expertise in controlled substances and are looking at
the issues through their particular areas of expertise. The
group then comes together to discuss these drugs in order to
determine whether it is necessary to schedule a certain drug.
Under current law, the CSAC evaluates those drugs and makes a
recommendation to the governor Under this legislation, that
recommendation would be made to the attorney general and the
attorney general would then consider that recommendation, he
explained. When offering written findings and making a
recommendation, the CSAC would have taken testimony, sought out
public input as it is subject to the Open Meetings Act, and it
moves through the public notice process. Under this proposed
bill, he offered, an abbreviated version of the public
participation would occur at the attorney general level.
1:15:20 PM
MR. HENDERSON advised that in addition to the Controlled
Substance Advisory Committee and in addition to reviewing all of
the previously listed factors, the attorney general must consult
with the chief medical officer as to the public health aspect,
in addition to receiving information from the Controlled
Substance Advisory Committee. Once all of those steps have
occurred, the attorney general can issue an emergency
regulation scheduling a new designer drug at one of six
controlled substance schedules in Alaska. He advised that the
information would be forwarded to the Lieutenant Governor's
Office and posted on the Alaska Online Public Notification
System, wherein that regulation would be in effect for 720-days.
The intent of the bill, he described, is that during that 720-
days, the legislature would then have adequate time to consider
the regulation and possibly enact legislation to annul that
regulation. Within that 720-days, if the attorney general
decides to move to make that regulation permanent, the attorney
general would follow the regular regulation process wherein
public notice is posted to solicit comments and then responds to
the comments and questions the public posted online. The
regulation must be reviewed by the Department of Law (DOL), and
it then goes back to the Lieutenant Governor's Office and
becomes effective 30 days after receipt of the regulation.
Under the proposed bill, he advised, if the attorney general did
not move to make the regulation permanent, the emergency
regulation would automatically be repealed and the attorney
general would not be permitted to re-issue that emergency
regulation.
1:17:45 PM
CHAIR CLAMAN asked what takes place if the attorney general
decided to schedule a particular substance on a different
schedule than the federal government had already ready scheduled
the substance.
MR. HENDERSON responded that the attorney general, under this
proposed bill, would have that authority, "and we do that
already." He explained that currently, there are several
controlled substances that the State of Alaska schedules
differently than the federal government.
CHAIR CLAMAN interjected that that was done by the legislature
at the current time.
MR. HENDERSON added that the manner in which the bill is
drafted, the attorney general would have the authority to make a
determination as to where this new designer drug goes in the one
of six schedules. The most obvious example of where this state
is dramatically different than the federal government, is
marijuana. Marijuana, he explained, under federal law is a
Schedule I drug, meaning that it has no medical purpose and it
cannot be prescribed. In Alaska, it is a Schedule VIA
Controlled Substance and legalized as recreational under certain
circumstances. There are other examples, he offered, such that
the state's Schedule IA Controlled Substances, generally
speaking, are opiate or opiate derivatives, such as heroin,
morphine, fentanyl, and so forth, and the federal government
schedules opioids and opioid derivatives under Schedule II, the
state defines its schedules differently.
1:19:39 PM
CHAIR CLAMAN asked whether the state could schedule a substance
that the federal government had chosen not to schedule, or does
this bill require that first the federal government must take
action before the state can take action to schedule a substance.
MR. HENDERSON answered that the bill does not require the
attorney general to follow the path of the federal government,
but it does require the attorney general to consider what
actions the federal government had taken.
1:20:18 PM
CHAIR CLAMAN suggested that one option would be to have a
regulation sunset after two or three years or whatever period if
the legislature chose to not take action to make it a controlled
substance by act of the legislature. This legislation removes
any legislative authority to take that action, and he asked why
not start the process and then "kick it over" to the legislature
to determine, whether it is 720-days or a longer period of time.
MR. HENDERSON replied that that is how some other states address
the issue, for example, the State of Florida's attorney general
is authorized to schedule drugs on an emergency basis, and then
that action must be ratified by the legislature within a certain
amount of time. The Controlled Substance Advisory Committee
discovered, when researching this issue, that the 1980 Alaska
Supreme Court had already spoken, generally, as to how to annul
or take action against a regulation. The Alaska Supreme Court
found that for the legislature to annul a regulation, the
legislature must follow the constitutional mechanics of bill
passage, meaning that there must be three readings and a
majority vote in the House of Representatives and the Senate.
He offered that it is the opinion of the Controlled Substances
Advisory Committee that the ratification procedure is not
possible given the interpretation of the Alaska Supreme Court as
to how it interprets the regulation and annulment practice.
1:22:19 PM
CHAIR CLAMAN asked Mr. Henderson to cite the decision from the
Alaska Supreme Court upon which he was relying.
MR. HENDERSON responded that the decision the CSAC reviewed is
State of Alaska v. A.L.I.V.E. Voluntary, 606 P.2d 769 (1980).
1:22:56 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Mr. Henderson had
reviewed the 3/16/18 letter submitted by the Consumer Health
Care Products Association regarding HB 387.
MR. HENDERSON answered that he saw the letter this afternoon and
briefly reviewed it, but he has not had a chance to analysis the
letter in depth.
1:23:13 PM
REPRESENTATIVE KREISS-TOMKINS explained that the crux of the
letter was adding language to HB 387, Sec. 4. [AS 11.71.125(e)],
page 3, lines 28-30, which would read as follows:
(e) The attorney general may not adopt an
emergency regulation under this section that schedules
an alcoholic beverage as defined in AS 04.21.080,
marijuana as defined in AS 17.38.900, non-narcotic
drugs if such drugs may [under the Federal Food, Drug,
and Cosmetic Act, 921 USC 301 et seq] be lawfully sold
over the counter or behind the counter without a
prescription, or tobacco.
REPRESENTATIVE KREISS-TOMKINS asked the department's perspective
on this suggestion.
MR. HENDERSON responded that he is not prepared to analyze that
suggestion at this time, although he said he does understand
what the proposed language it attempting to do. Wherein, he
related, if something has been reviewed, monitored, and
accepted, by the Federal Food, Drug, and Cosmetic
Administration, and it is permitted to be an over the counter
drug, should the attorney general be allowed to schedule that on
an emergency basis. He advised that he could not speak to the
effect of the breadth of that type of amendment at this time.
1:24:33 PM
REPRESENTATIVE KREISS-TOMKINS asked whether Mr. Henderson was
aware of any over the counter drugs and not over the counter
drugs that have been approved by the Federal Food, Drug, and
Cosmetic Act that can be dramatically abused. He asked whether
Mr. Henderson was aware of any currently abused legal drugs in
Alaska "that could be for which emergency regulations could be
adopted."
MR. HENDERSON answered, "Not at this point." There are certain
over the counter drugs that are abused, but he could not speak
to whether there are drugs that would be scheduled that are sold
over the counter. After reading the subject suggestion, he
advised that that is one of the first things he would want to
review as well.
1:25:44 PM
REPRESENTATIVE REINBOLD asked why the emergency regulation
process was not working currently, and why not simply fix the
system rather than passing a bill.
MR. HENDERSON responded that, in part, it is because the
legislature has not given the attorney general the authority to
regulate on this precise issue. When the Alaska Supreme Court
reviewed the Delegation Doctrine, meaning the legislature
delegating certain authority to the executive branch, the court
determined that the delegation must be clear, precise, with
standards, and specific to the topic, he offered. Currently,
the attorney general does not have that authority to pass
emergency regulations, he explained.
1:26:53 PM
REPRESENTATIVE REINBOLD commented that Mr. Henderson had said
that there was a procedure in place for emergency regulations,
so why is this bill necessary.
MR. HENDERSON responded that there is a procedure for emergency
regulations. Currently, he explained, the first step is that an
agency must have been given authority to pass regulations. For
example, he offered, the Alaska Department of Fish & Game
(ADF&G) has been given the authority to pass regulations. The
agency can then pass an emergency regulation if, under the
current law, the regulation is necessary for public peace,
health, safety, and general welfare. He explained that the
interpretation [of public peace, health, safety, and general
welfare] is different for every agency, such that the ADF&G's
interpretation of an emergency is different than another agency.
He offered that when the ADF&G issues an emergency regulation to
close the Little Susitna River for king salmon, for example,
that decision is based upon its express authority to pass
regulations "that has been delegated to the legislature." In
this instance, the attorney general has not been delegated that
authority so they do not have the authority to pass an emergency
regulation.
CHAIR CLAMAN commented that currently, no one in the executive
branch has the authority to schedule controlled substances, only
the legislature has that authority today.
1:28:36 PM
REPRESENTATIVE REINBOLD asked why [the authority would not be
given to the] Department of Health and Social Services (DHSS)
because it employs medical professionals.
MR. HENDERSON replied that some states have this authority in
DHSS or the Board of Pharmacy, and every state's authority
process is a little different. The model used for this
legislation was crafted after the federal government which
delegated that authority to the United States Attorney General,
and it is modeled after the State of Florida of which delegated
that authority to the state attorney general. For example, he
offered, the State of Indiana delegated that authority to the
Board of Pharmacy because every state's process is a little
different.
1:29:26 PM
REPRESENTATIVE REINBOLD asked whether the attorney general would
oversee the Board of Pharmacy.
MR. HENDERSON explained that the delegation of authority to pass
emergency regulations can be delegated to a specific body or
individual within the executive branch. This bill, as proposed,
delegates the authority to the attorney general, but the
legislature could delegate that authority to another executive
body.
1:30:05 PM
REPRESENTATIVE REINBOLD referred to HB 387, Sec. 1
[AS.71.100(c)] page 1, lines 6-7, which read as follows:
(c) the president of the Board of Pharmacy or the
president's designees [ATTORNEY GENERAL] is the chair
[CHAIRMAN] of the committee.
REPRESENTATIVE REINBOLD asked Mr. Henderson to describe the
relationship between the Board of Pharmacy and the attorney
general because it appears to be a diversion from normal
practice.
CHAIR CLAMAN asked whether part of this statute is to take the
attorney general off of the Board of Pharmacy so the attorney
general would not be involved in those decisions, or is it just
removing the attorney general as chair of the Board of Pharmacy.
MR. HENDERSON answered, "No," the bill changes the chairman of
the Controlled Substance Advisory Committee from the attorney
general to the Board of Pharmacy. The attorney general is not
on the Board of Pharmacy, and the bill makes the Board of
Pharmacy designee as the chairman of the Controlled Substance
Advisory Committee. Under current law, the attorney general is
the chair of the Controlled Substance Advisory Committee, he
explained.
REPRESENTATIVE REINBOLD commented that his explanation was
extremely helpful.
1:31:09 PM
REPRESENTATIVE REINBOLD asked Mr. Henderson how many people, in
general, are using, abusing, and trafficking controlled
substances.
MR. HENDERSON deferred to the Department of Public Safety (DPS)
because he does not know the answer to that question.
1:31:39 PM
REPRESENTATIVE REINBOLD requested a ballpark number because she
was trying to determine how many of the general population is
affected by this bill, and whether a lot of substances are being
abused, and that trafficking is taking place.
MR. HENDERSON advised that he could not answer the question of
how many substances are being abused because he does not have
that data. Over the last several years, he advised, there have
been only two new drugs, tramadol-U47700 and pink, that the
Controlled Substance Advisory Committee recommended be
scheduled.
CHAIR CLAMAN noted that there is broad recognition that the
state does have substance abuse issues and that prosecutions are
taking place every week for controlled substance violations.
1:32:30 PM
REPRESENTATIVE REINBOLD noted that it would be helpful to know
how many people are using and abusing controlled substances
outside of their doctor's recommendation, and how much
trafficking is taking place in Alaska.
CHAIR CLAMAN advised Mr. Henderson that he could do his best to
provide the information that is available. While it is
interesting information, he opined that many of the questions of
use versus abuse is pretty tough to get answers to, particularly
on a statewide level.
1:33:21 PM
REPRESENTATIVE REINBOLD noted that there are one through six
schedules of drugs, and asked the current law when dealing with
them, such as possession, use, abuse, and trafficking.
CHAIR CLAMAN pointed out that this question is far beyond the
scope of this bill.
MR. HENDERSON answered that generally speaking, there are six
schedules and five different categories of classifications of
drug offenses of misconduct involving a controlled substance,
one through five, found under Title 11.71.
1:34:16 PM
REPRESENTATIVE REINBOLD asked the law when people are using,
abusing, and trafficking controlled substances.
MR. HENDERSON answered that it depends on the circumstances, for
example, someone merely possessing a schedule IA controlled
substance, such as heroin, would be misconduct involving
Schedule IV Controlled Substances.
CHAIR CLAMAN advised Representative Reinbold that her questions
are regarding the general criminal law, a subject within which
she previously offered a lot of opinions. Chair Claman noted
that this is not a hearing for her to receive a basic
explanation of the law because Representative Reinbold already
understands the law.
1:35:11 PM
REPRESENTATIVE REINBOLD commented that this bill will "do a
little emergency regulation" and put it up on the Alaska Online
Public Notification System. She said that she would like to
know whether it is being criminalized, or getting substance
abuse programs, or is this "just another little posting?"
MR. HENDERSON answered that if the attorney general were to pass
an emergency regulation and schedule a drug, for example,
tramadol as a schedule IVA, that depending upon the
circumstances, possession and distribution of that drug would be
a criminal offense.
1:35:51 PM
REPRESENTATIVE REINBOLD asked whether he had said "possession
and use?"
MR. HENDERSON clarified that he had said possession and
distribution.
REPRESENTATIVE REINBOLD asked Mr. Henderson to repeat his
response.
MR. HENDERSON replied that the law classifies possession or
distribution of a controlled substance based upon its severity,
depending on what the person is doing and what type of drug the
person has in their possession. In the event a drug was
scheduled as IA, the distribution of the drug could either be a
class B or a class C felony depending upon the circumstances.
Possession of that drug would be a misdemeanor.
1:36:33 PM
REPRESENTATIVE REINBOLD referred to the "Distribution Sheet" in
front of her, and paraphrased as follows:
Heroin is a class B felony if it is more than one
ounce, and a class C felony if less than one ounce; if
it is cocaine or meth, it is a class B felony in any
amount if it is more than 2.5 ounces; and a class C
felony if it is less than 2.5 ounces; and possession
of a hard drug is class C felony and a misdemeanor
jailtime is generally not authorized.
REPRESENTATIVE REINBOLD asked whether this will just be an
Alaska Online Public Notification System posting or whether it
will figure out how many people are using, abusing, and
trafficking, and the state actually do something to penalize and
help these people, or is this just a "simple little" online
posting.
MR. HENDERSON responded that once the emergency regulation is
passed, the possession and use would become a criminal action
and the state could prosecute that offense; therefore, it would
be more than just a posting.
1:37:48 PM
REPRESENTATIVE REINBOLD asked Mr. Henderson to carefully explain
whether it will be a class C felony with no jailtime.
MR. HENDERSON reiterated that it depends upon the classification
in which the drug is scheduled and it depends on what the person
is doing with that drug. In the event it is a schedule IA
controlled substance, possession would be a misdemeanor;
distribution over one gram would be class B felony; and
distribution of under one gram would be a class C felony.
REPRESENTATIVE REINBOLD asked whether this bill addresses
anything other than posting or will there be efforts to
understand what is taking place in the communities and causing
the crime.
MR. HENDERSON reiterated that this would be an important tool to
law enforcement, prosecutors, and public health because the tool
allows the state to be quick and nimble when new drugs hit the
market. Once the new drugs hit the market, they can be
scheduled, get a search warrant, and have the people prosecuted,
he advised.
1:39:44 PM
REPRESENTATIVE EASTMAN surmised that HB 387 would give the
attorney general the ability to take a substance which is
currently legal and make it illegal with the potential of being
a felony.
MR. HENDERSON reiterated that depending upon the sentence, yes.
1:40:11 PM
REPRESENTATIVE EASTMAN said that in the event the attorney
general believed a substance was misclassified and a class C
felony was not high enough, could the attorney general, through
this bill, then reclassify the substance and put it on a new
schedule and turn that previous class C felony into a class B
felony.
MR. HENDERSON answered "No," and he reiterated that the bill
only allows the attorney general to add new controlled
substances, it does not allow the attorney general to reschedule
or delete existing scheduled drugs.
1:40:48 PM
REPRESENTATIVE EASTMAN referred to HB 387, [AS 44.62.260(c)(1)
and (2)], page 7, lines 4-14, and asked the specifics within
which the 720-day limit can be extended.
MR. HENDERSON asked whether Representative Eastman was asking,
"can the 720-day limit be extended?"
REPRESENTATIVE EASTMAN asked when the regulation can continue to
be in effect past the 720-day limit, and referred to HB 75, page
7, lines 4-14.
MR. HENDERSON answered that a drug could remain in regulation
and extend past the 720-days if the attorney general followed
the standard and normal regulation process.
1:41:48 PM
REPRESENTATIVE EASTMAN surmised that the language states that
simply because [a drug was identified] in this emergency status,
it would not need to continue in this emergency status.
Basically, he said, sometime before the 720-days, [the
regulation] would leave emergency status and be concurrent with
the attorney general's current authority without this bill.
MR. HENDERSON clarified that if the attorney general followed
the Administrative Procedures Act before the expiration of the
720-days, the regulation could remain.
1:42:26 PM
REPRESENTATIVE EASTMAN asked whether the attorney general can
currently follow the Administrative Procedures Act, or whether
this bill is necessary.
MR. HENDERSON reiterated that currently, the attorney general
does not have the authority to schedule controlled substances
under the Administrative Procedures Act.
1:42:50 PM
REPRESENTATIVE EASTMAN asked Mr. Henderson to describe, under
the Administrative Procedures Act, the role of the legislature.
CHAIR CLAMAN pointed out that the Administrative Procedures Act
relates to the executive branch, and the legislature has a
process in which to schedule controlled substances.
REPRESENTATIVE EASTMAN asked Mr. Henderson to respond to his
question for the record.
MR. HENDERSON replied that the Administrative Procedures Act
effects and requires the executive branch and the state agencies
to follow a specific procedure when enacting a regulation. The
legislature has the authority, which cannot be taken away under
this bill, to enact a proper bill to annul a regulation, he
explained.
1:43:45 PM
REPRESENTATIVE EASTMAN surmised that with the passage of this
bill there could be a legal substance, and if the attorney
general followed this procedure with absolutely no action by the
legislature, that substance could become illegal in perpetuity.
MR. HENDERSON reiterated, "Depending on the substance, yes."
1:44:13 PM
REPRESENTATIVE EASTMAN noted that Mr. Henderson testified that
tramadol was being purchased and used illegally, and there was
nothing the state could do about the issue. He asked what laws
were being violated if it was purchased and used illegally, and
why could the state not take action.
MR. HENDERSON answered that the federal government temporarily
scheduled tramadol via emergency regulation and at that point it
became illegal under federal law. Alaska's prosecutors and law
enforcement are charged with enforcing state law. Therefore, he
pointed out, it was illegal under federal law but not illegal
under state law because it was not a controlled substance.
1:45:07 PM
REPRESENTATIVE EASTMAN referred to Sec. 4. [Sec. 11.71.125(a)]
page 2, lines 26-30, which read as follows:
(a) The attorney general may, by regulation,
schedule a substance under this chapter regardless of
whether the substance is substantially similar to a
controlled substance listed in AS 11.71.140 -
11.71.180, if the attorney general finds that
scheduling the substance on an emergency basis is
necessary to avoid an immediate hazard to public
safety.
REPRESENTATIVE EASTMAN asked whether there is a definition of
public safety the attorney general must follow or is public
safety subjective on their part.
MR. HENDERSON answered that public safety is not a defined term
under Title 11.81, meaning that the definition of immediate
hazard to public safety would be defined by the attorney general
under this proposed bill, taking into account the factors listed
on page 3.
1:46:14 PM
REPRESENTATIVE EASTMAN asked whether there is anything in this
bill that would prohibit the attorney general from deciding that
high fructose corn syrup, for example, was an immediate hazard
to public safety. Thereby, scheduling that syrup, making that
syrup illegal for 720-days, and then go through the regulatory
process of making it illegal in perpetuity.
MR. HENDERSON answered, in theory, that could occur. Although,
he offered, given what the attorney general must consider, the
individuals with whom the attorney must consult, whether it had
been temporarily scheduled by federal law, and whether there was
clandestine importation, manufacture, and distribution of the
substance, it is highly unlikely.
1:47:20 PM
REPRESENTATIVE EASTMAN said that if the Controlled Substance
Advisory Committee were to unanimously recommend to the attorney
general to not schedule high fructose corn syrup, whether
anything in the bill would require the attorney general to act
upon that recommendation or could the attorney general simply
decide not to take that recommendation.
MR. HENDERSON replied that the attorney general has the
authority to not follow the recommendations of the Controlled
Substance Advisory Committee. Except, he pointed out, by doing
so, the attorney general would have to articulate the reason in
writing and post it on the Alaska Online Public Notification
System for the public.
1:48:17 PM
REPRESENTATIVE EASTMAN noted that because the attorney general
would be given this greater and increased authority, does the
department have a position on making the department's seat on
the Controlled Substance Advisory Committee a non-voting member
status.
MR. HENDERSON responded that that is not anything that had been
considered at this point. Under the proposed bill, the attorney
general would no longer be the chair of the Controlled Substance
Advisory Committee in order to address that precise issue. The
Controlled Substance Advisory Committee can meet only at the
call of the chair and by removing the attorney general as chair,
the bill requires the Board of Pharmacy to call a meeting, he
explained.
1:49:16 PM
REPRESENTATIVE REINBOLD noted that she had misspoken and would
like to put her clarification on the record.
REPRESENTATIVE CLAMAN pointed out that he was trying to get to
public testimony and that this discussion has been well over the
usual 15 minutes for questions.
REPRESENTATIVE REINBOLD related that it is a point of
clarification.
CHAIR CLAMAN said that he understands, but Representative Stutes
is next for questions, and then the committee will turn to
public testimony.
REPRESENTATIVE STUTES indicated that she would not ask questions
at this point.
1:49:34 PM
REPRESENTATIVE CLAMAN opened public testimony.
1:50:07 PM
SEAN MOORE, Director, State and Local Government Affairs,
Consumer Healthcare Products Association, said he is testifying
today on behalf of the Consumer Healthcare Products Association
(CHPA), and reiterated that this bill would provide the attorney
general authority to schedule a substance under emergency rule.
The CHPA is the national trade association representing leading
manufacturers and marketers of over the counter (OTC) medicine
as well as dietary supplements, he offered. The CHPA's member
companies appreciate the intent of this legislation as it is
something several other states have grappled with, and the CHPA
is sympathetic to the difficulties in the ever-revolving nature
of synthetic drugs that are used and distributed by criminals.
He referred to his [previously discussed] written comments and
pointed out that the CHPS is concerned that this bill may
unintentionally threaten access to over the counter medications
that are certified through the Federal Food and Drug
Administration for use and are actually used by hundreds of
thousands of Alaskans. The CHPS proposed one minor amendment to
address those concerns and specially, the CHPS would like to see
Sec. 4, page 3, lines 28-30 amended on such a manner that the
bill excludes marijuana and tobacco from the scope of this
expanded authority, and the CHPS would like to see OTC
medication included in that exclusion. It is the CHPS's belief,
he described, that this amendment is a straight forward fix and
a fix that has been adopted in several other states that have
delegated this authority to their attorneys general or another
body. He offered that the amendment would maintain the sense of
the bill and ensure that Alaskans' access to FDA approved OTC's
is not interrupted, and it would ensure that the CHPS' member
companies are able to operate in a predictable regulatory
environment. For these reasons, he said, the CHPA respectfully
encourages the committee to amend HB 387, and it appreciates the
committee's consideration of CHPA's position.
1:52:21 PM
CHAIR CLAMAN, after ascertaining that no one wished to testify,
closed public hearing on HB 387.
REPRESENTATIVE REINBOLD pointed to "a chart in front of me" and
asked Captain Duxbury, Alaska State Troopers, to clarify where
it read, and she paraphrased as follows: "Heroin distribution
per Senate Bill 91 [passed in the Twenty-Ninth Alaska State
Legislature] was an A felony in any amount. And, post-Senate
Bill 91, it was a B felony if more than one-ounce. And then,
heroin distribution post-Senate Bill 91 was a C felony if less
than one-ounce." She asked Captain Duxbury to describe how much
heroin people are allowed to possess because she believed it was
2.5 grams and it was enough to kill 25 people. Her overall
point, she offered, is whether this is simply allowing the
attorney general "a whole lot more authority or are we actually
going to do something with this bill to actually improve public
safety?"
1:54:10 PM
MICHAEL DUXBURY, CAPTAIN, Deputy Commander, Statewide Drug
Enforcement Unit (SDEU), Division of Alaska State Troopers,
Department of Public Safety, responded that the key to HB 387 is
its responsiveness and agile ability for law enforcement to go
after, especially in the deadly era of opioids such as fentanyl
and car-fentanyl, something that could be another version of
that drug. As is known, these drugs are deadly, he said.
Recently, he offered, another drug called "preydom" has come up
and it is another drug sold in smoke shops with a contamination
of salmonella that the country is "trying to get a hold on." In
response to Representative Reinbold's question as to what amount
of heroin people are able to have, he pointed out that heroin is
illegal and possession is illegal. However, the committee would
do well to re-address, with the deputy attorney general, some of
the issues that are taking place. There has been some movement
...
CHAIR CLAMAN advised Captain Duxbury that his testimony is
limited to the topic matter of HB 387, this is not a forum in
which to debate the past acts of the legislature.
1:55:48 PM
CAPTAIN DUXBURY advised that possession of heroin is not (audio
difficulties) trying to adjust that and he has been working with
the attorney general. Also, he related, the amount of heroin
and the other linked aspects are not necessarily part of this,
but what is part of this bill is the response and agile aspect
that will help law enforcement enforce laws, especially on
things that are coming which are unknown at this time.
REPRESENTATIVE REINBOLD noted that previously the possession and
distribution of cocaine and meth was a class B felony. She then
reiterated her previous description of the current
classifications. She added that prior to Senate Bill 91,
possession was a class C felony and now it is a class A
misdemeanor with almost no jailtime, and "I had the Department
of Law budget and basically they were dismissing about 7,000
misdemeanors and that's all that possession is right now." Her
concern, she offered, is whether the legislature is actually
going to be doing something with this bill to address the drug
issue or is this simply giving the attorney general more
authority and simply posting the drug classification. She asked
whether Captain Duxbury supports HB 387, and whether the Alaska
State Troopers are taking a position on this bill.
CHAIR CLAMAN advised Captain Duxbury that these questions and
statements are about the fourth time Representative Reinbold has
asked the same question and Captain Duxbury is not to answer her
questions. Chair Claman pointed out that Captain Duxbury
testified that the point of this bill is to give more
flexibility within which to schedule controlled substances, and
Representative Reinbold's concerns with past acts of the
legislature are not the topic of this bill.
[HB 387 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB387 ver A 3.16.18.PDF |
HJUD 3/16/2018 1:00:00 PM HJUD 4/4/2018 1:00:00 PM |
HB 387 |
| HB387 Sponsor Statement 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 4/4/2018 1:00:00 PM |
HB 387 |
| HB387 Sectional Analysis ver A 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Additional Document-CHPA Testimony 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note DHSS-PHAS 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note DPS-COMM 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB387 Fiscal Note LAW-CRIM 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM |
HB 387 |
| HB075 ver D 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Sponsor Statement 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Sectional Analysis 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Five States Allow Gun Seizures 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Washington Post Article - Missouri Case 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-The Trace Article - ERPOs Reduce Suicides 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letter 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 1) 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fact Sheet 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DHSS-EPI 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note LAW-CRIM 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-CJISP 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note DPS-DET 2.28.18.pdf |
HJUD 2/28/2018 1:00:00 PM HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-NYT Opinion - Mental Health System Can't Stop Mass Shooters 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 1) 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/12/2018 7:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Fiscal Note JUD-ACS 3.12.18.pdf |
HJUD 3/12/2018 1:00:00 PM HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Public Comment (Part 3) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Sandy Hook Promise Letters (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM |
HB 75 |
| HB075 Opposing Document-Public Comment (Part 2) 3.14.18.pdf |
HJUD 3/14/2018 1:00:00 PM HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Additional Document-Redington v. State 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |
| HB075 Supporting Document-Connecticut, Indiana, & Alaska Comparison Table 3.16.18.pdf |
HJUD 3/16/2018 1:00:00 PM HJUD 3/19/2018 1:00:00 PM |
HB 75 |