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.]