04/16/2002 03:42 PM House MLV
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON MILITARY AND
VETERANS' AFFAIRS
April 16, 2002
3:42 p.m.
MEMBERS PRESENT
Representative Mike Chenault, Chair
Representative Lisa Murkowski
Representative Joe Green
Representative Pete Kott
Representative Sharon Cissna
Representative Joe Hayes
MEMBERS ABSENT
Representative Beverly Masek
COMMITTEE CALENDAR
HOUSE BILL NO. 325
"An Act relating to civil defense and disasters; and providing
for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 326
"An Act relating to state plans and programs for the safety and
security of facilities and systems in the state; and providing
for an effective date."
- MOVED CSHB 326(MLV) OUT OF COMMITTEE
PREVIOUS ACTION
BILL: HB 325
SHORT TITLE:TERRORISM, CIVIL DEFENSE, AND DISASTERS
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/16/02 1974 (H) READ THE FIRST TIME -
REFERRALS
01/16/02 1974 (H) MLV, STA, HES
01/16/02 1974 (H) FN1: ZERO(HSS)
01/16/02 1974 (H) FN2: ZERO(MVA)
01/16/02 1974 (H) GOVERNOR'S TRANSMITTAL LETTER
04/16/02 (H) MLV AT 3:00 PM CAPITOL 124
BILL: HB 326
SHORT TITLE:SECURITY OF FACILITIES AND SYSTEMS
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/16/02 1975 (H) READ THE FIRST TIME -
REFERRALS
01/16/02 1975 (H) MLV, STA, JUD
01/16/02 1975 (H) FN1: ZERO(DOT)
01/16/02 1975 (H) GOVERNOR'S TRANSMITTAL LETTER
04/16/02 (H) MLV AT 3:00 PM CAPITOL 124
WITNESS REGISTER
WAYNE RUSH, Homeland Security Coordinator
Division of Emergency Services
Department of Military and Veterans' Affairs (DMVA)
P.O. Box 5750
Fort Richardson, Alaska 99505-5750
POSITION STATEMENT: Presented HB 325 to the committee and
answered questions.
MICHAEL MITCHELL, Assistant Attorney General
Governmental Affairs Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 100
Anchorage, Alaska 99501-1994
POSITION STATEMENT: Answered questions on HB 325.
KAREN E. PEARSON, Director
Division of Public Health
Department of Health and Social Services
P.O. Box 110610
Juneau, Alaska 99811-0610
POSITION STATEMENT: Answered questions on HB 325.
STEPHEN CONN
P.O. Box 101093
Anchorage, Alaska 99510
POSITION STATEMENT: Testified on his own behalf during hearing
on HB 325; expressed concern about some of the wording and
offered suggestions.
CAROL CARROLL, Director
Administrative Services Division
Department of Military & Veterans' Affairs
400 Willoughby Avenue, Suite 500
Juneau, Alaska 99811
POSITION STATEMENT: Presented HB 326 and answered questions.
DEBORAH BEHR, Assistant Attorney General
Legislation & Regulations Section
Civil Division (Juneau)
Department of Law
400 Willoughby Avenue, Suite 500
Juneau, Alaska 99811
POSITION STATEMENT: Assisted in presentation of HB 326 and
answered questions.
DENNIS POSHARD, Legislative Liaison/Special Assistant
Office of the Commissioner
Department of Transportation & Public Facilities
Juneau, Alaska
POSITION STATEMENT: During hearing on HB 326, urged support for
Section 1 as a tool to use at airports; answered questions.
ACTION NARRATIVE
TAPE 02-20, SIDE A
Number 0001
CHAIR MIKE CHENAULT called the House Special Committee on
Military and Veterans' Affairs meeting to order at 3:42 p.m.
Representatives Chenault, Murkowski, Green, and Hayes were
present at the call to order. Representatives Kott and Cissna
arrived as the meeting was in progress.
HB 325-TERRORISM, CIVIL DEFENSE, AND DISASTERS
[Contains discussion of SB 237, the companion bill in the
Senate, as well as HB 350]
Number 0089
CHAIR CHENAULT announced that the first order of business would
be HOUSE BILL NO. 325, "An Act relating to civil defense and
disasters; and providing for an effective date." [HB 325 was
sponsored by the House Rules Standing Committee by request of
the governor.]
Number 0137
WAYNE RUSH, Homeland Security Coordinator, Division of Emergency
Services, Department of Military and Veterans' Affairs (DMVA),
presented HB 325. He explained that Section 1 adds to AS 26.20,
the old civil defense Act, the concept of a terrorist attack or
credible threat of such an attack. Sections 2 and 3 amend
AS 26.23, the Alaska disaster Act of 1977. Subsection (g)(10)
adds pharmaceuticals and other medicines, as well as supplies,
to the existing list of food, water, fuel, or clothing; this is
in response to the increased threat of bioterrorist attack.
And subsection (g)(12) is a new paragraph to allow the governor
to access, inspect, and share health care and medical records on
an as-needed basis to facilitate a response to protect public
health and safety. Mr. Rush emphasized that this is on an as-
needed basis so epidemiological aspects, in particular, can be
[reviewed] during an outbreak or potential outbreak in order to
detect anything unusual, find out what it is, and perhaps find
out who might be infected.
MR. RUSH noted that [Section 3], under the definition of
"disaster", adds two subparagraphs - (D) and (E) - similar to
what was proposed for AS 26.20. This is to clarify that a
terrorist attack or threat of such attack, or an outbreak of
disease or credible threat of such an outbreak, would be
included in this definition of disaster.
Number 0480
REPRESENTATIVE MURKOWSKI related concern about the definition of
"credible" threat, since the governor's statutory powers
normally kick in when something has actually happened.
MR. RUSH replied that [AS] 26.23.900 already has a precedent and
mentions imminent threat. He reported that the Senate State
Affairs Standing Committee [during hearings on SB 237, the
companion bill in the Senate] had discussed the question of what
constitutes a credible threat, and that Mr. Mitchell and others
from the Department of Law had crafted a proposed change that
says a credible threat of an enemy or terrorist attack would be
deemed by the commissioner of the Department of Military &
Veterans' Affairs (DMVA) [who also is the adjutant general];
similarly, an outbreak of disease or credible threat of such an
outbreak would be as determined by the commissioner of the
Department of Health and Social Services. He deferred to Mr.
Mitchell for elaboration.
Number 0726
MICHAEL MITCHELL, Assistant Attorney General, Governmental
Affairs Section, Civil Division (Anchorage), Department of Law,
began discussion of Amendment 1. Drafted for SB 237 and not yet
provided to committee members, it read [original punctuation
provided, but proper line numbers added in brackets for HB 325]:
Page 1, line 5:
Following "credible threat of such an attack"
insert:
"under the standards specified in AS
26.23.900(2)(D)"
Page 4, lines 2-5 [lines 3-6 of HB 325]:
Delete all material and insert:
"(D) a terrorist or enemy attack, or an
imminent threat of such an attack that the adjutant
general or a designee of the adjutant general
certifies is credible based on specific information
received from a local, state, federal, or
international agency or other source that the adjutant
general determines is reliable; or
(E) an outbreak of disease, or an imminent
threat of an outbreak of disease that the commissioner
of health and social services or a designee of the
commissioner certifies is credible based on specific
information received from a local, state, federal, or
international agency or other source that the
commissioner determines is reliable."
MR. MITCHELL indicated "department" in subparagraph (E) refers
to the Department of Health and Social Services. He went on to
say the required certification would be based on specific
information that the "officer" determines is reliable.
REPRESENTATIVE MURKOWSKI concurred with specifying which person
could certify whether a threat is credible. She requested a
copy of the written amendment from Mr. Mitchell, who was
testifying via teleconference. [The amendment was received via
fax later during the hearing.]
Number 0844
REPRESENTATIVE MURKOWSKI recalled numerous cases of hepatitis in
rural communities a few years ago. She asked at what point
something is an "outbreak" of disease, rather than just a high
incidence.
Number 0947
KAREN E. PEARSON, Director, Division of Public Health,
Department of Health and Social Services, indicated such
hepatitis cases would constitute an outbreak; if the numbers
were higher, it would be a larger outbreak. However, this bill
would kick in if the department received a call from the Centers
for Disease Control and Prevention (CDC), for example, or "some
entity that we know and respect" with information that someone
with smallpox had arrived at Anchorage's airport two hours
before; this would require mobilization because smallpox is such
a highly infectious agent and has such a high death rate. Those
are the kinds of things for which the department would say there
was a credible threat; this wouldn't be invoked for "naturally
occurring outbreaks of disease," she added.
REPRESENTATIVE MURKOWSKI expressed concern about the broadness
of the definition of "disaster" with regard to an outbreak of
disease or credible threat of such an outbreak. She noted that
a disaster [defined in AS 26.23.900(2) and amended by Section 3
of the bill] is usually an overwhelming event such as a tsunami,
earthquake, fire, flood, and so forth. She expressed concern
about whether one special event should kick in these special and
specific powers of the governor with regard to disaster-related
funds. She recalled that the definition of "disaster" was hotly
debated when it was included three or four years ago, with a lot
of discussion about the need to be very specific with regard to
how it is defined; this related to the fisheries disaster in
Western Alaska.
Number 1231
REPRESENTATIVE GREEN observed that page 3, paragraph (10)
[Section 2], adds "pharmaceuticals and other medicines,
supplies," and that there is another list on page 2,
subparagraph (C) [Section 1]; one is for allocation, the other
for seizure. Speaking in general against tabulating items [in
statute], he asked whether the two lists should be the same in
order to eliminate confusion.
MR. RUSH answered that eventually the two [lists] probably
should be consolidated. He said the civil defense Act, AS
26.20, is probably outdated in many ways, but that the idea was
this: rather than doing a major overhaul, the bill would
include discrete items needed in the short term to better
prepare the state for a terrorist attack - in this case, a
biological attack. Pharmaceuticals were added [to one list]
because they weren't specifically mentioned [in existing
statute], and [the department] thought they probably should be
mentioned.
REPRESENTATIVE GREEN remarked that if pharmaceuticals are
necessary for allocation, they're probably necessary for
confiscation as well. He suggested [the governor] should have
the power to do the same [under both AS 26.23.020 and
AS 26.20.040].
Number 1464
MS. PEARSON responded:
I think the reason that we didn't go ahead and add it
to the first section is that medicines were already
covered there, and on the other; they could seize them
in that first section, but you couldn't allocate or
redistribute them without the addition to the second
section. And so that's when the addition was made.
But I would agree that "pharmaceuticals" added to the
first section, then, would do the consistency. But it
was because medicines were already in that section, we
felt that that would cover us.
REPRESENTATIVE GREEN reiterated his preference for having them
be the same.
MS. PEARSON agreed.
Number 1536
STEPHEN CONN, speaking on his own behalf, expressed concern
about some of the language. Referring to Representative
Murkowski's discussion, he said replacing the word "credible"
with "imminent" goes a long way, throughout the bill, to help.
He said it appears the words "attack" and "disaster" might be
defined the same way, looking at how a disaster is defined as an
imminent threat of widespread or severe damage, loss of life,
and so forth, because it includes an all-encompassing, societal
danger, rather than being a narrowly defined issue that might
emerge from a criminal act.
MR. CONN, noting that it depends on what these matters trigger,
pointed out that "terrorist" isn't defined; whereas "enemy" is
defined in the context of international law with regard to war,
"terrorist" is an emerging phenomenon, he suggested. He
proposed that the word "terrorist" may not be necessary in the
legislation, since a terrorist is a kind of enemy and is treated
much the same way. He offered his view that President Bush
perceives the [terrorist attacks of September 11, 2001, on the
East Coast] as acts of war, and said nobody seemed to question
that in Congress, which holds the constitutional powers to
ultimately define what a war is.
Number 1625
MR. CONN addressed a second issue. He compared this bill with
HB 350, which discusses and defines "terroristic threatening".
In that bill, he said, if one took out the word "false", it
defines a terroristic act or threat as a report that places a
person in physical fear of physical injury to any person or, in
the alternative, a false report that disrupts the schedule of an
entity providing transportation services for persons or
property; in other words, conceivably a false report of an
avalanche or pending avalanche would be perceived under HB 350
as "terrorist threat."
MR. CONN suggested, therefore, that the word "terrorist" slides
somewhat between acts of an enemy bent on making war - which
most assuredly should invoke the powers of the governor - and
acts that are somewhat closer to criminal acts; he said [HB 350]
moves in that direction, to punish such acts not as attacks on
society, but as criminal acts. Given the lack of definition of
"terrorist" and its evolving nature, he reiterated his
suggestion to omit "terrorist" [from HB 325] and simply use the
word "enemy" to encompass terrorists and terroristic acts.
Number 1804
REPRESENTATIVE GREEN asked Mr. Conn how he would handle a
situation involving a neo-Nazi group, for example, that is
composed of [U.S.] citizens who begin to do terroristic acts.
He asked whether that would be covered if the word "terrorist"
weren't in [HB 325].
MR. CONN answered that he thinks so. Saying this is evocative
of early debates on Communism as both an external threat and an
internal threat, he noted the difficulty then of coming up with
Acts of Congress that met those two elements. He mentioned
having two triggering events: first, a "disaster" or "attack" -
which he suggested could be a synonym for a disaster; and,
second, something that is specified as the result, including a
result from a tsunami, earthquake, release of oil, equipment
failure, and so forth. Calling these definitions worrisome, he
explained:
Whereas we could look to the federal government and
its response and its denomination of "enemies" for
guidance, "terrorist" begins to fudge the issue, as a
word. ... It's an evolving concept without a clear
basis. And so, in those olden days, when we were
dealing with Communism as our enemy, in fact, there
were components of that that had to do with external
security and domestic security. But they were tough.
And ... the threats of those definitions to civil
liberties led to endless amounts of hearings ... and
court cases and so forth.
And so less is more, to my way of thinking, when you
are talking about triggering the emergency powers of
the governor. And I'm comfortable with the word
"enemy," however it's used, because there is a long
history of using that word.
Number 1988
REPRESENTATIVE GREEN referred to kamikaze pilots in World War II
that weren't considered terrorists; they attacked military
objectives, not civilians. He asked, if the word "enemy" were
used, whether people might think of a country - military against
military, rather than people against civilians. He suggested
leaving it as is.
Number 2072
REPRESENTATIVE MURKOWSKI referred to "outbreak of disease" and
the statutory definition of "disaster" [in AS 26.23.900(2)],
noting that it already means the occurrence or imminent threat
of an epidemic. She asked what the difference is between an
epidemic and an outbreak of disease.
MS. PEARSON replied that the threat of the epidemic would fit
the description she herself had talked about. However, with a
"biological release," there would be fewer numbers, but it would
be fatal. For example, inhalation anthrax [sent through the
U.S. mail in 2001] would fit within that; there'd be no
epidemic, which involves large numbers of people.
CHAIR CHENAULT noted that the faxed amendment [text provided
previously] had been received and distributed to members.
Number 2183
REPRESENTATIVE CISSNA surmised that a threat or fear of an
epidemic would be the same, even if just a few people actually
were infected.
MS. PEARSON disagreed, saying smallpox would create an epidemic
because it is so contagious and spreads to so many and so
quickly. Anthrax, on the other hand, can be lethal to those who
encounter it and will require mounting a big campaign to find
out the source, for example.
REPRESENTATIVE CISSNA related her understanding that there must
be contagion, then.
Number 2225
CHAIR CHENAULT asked when the last smallpox epidemic was.
MS. PEARSON noted that the U.S. quit immunizing for smallpox in
the early 1970s and that the last known cases in the world were
in the 1990s; however, vials were kept for research purposes.
Number 2261
CHAIR CHENAULT referred to paragraph (12) [page 3], which read
"access, inspect, and share health care and medical records on
an as-needed basis to facilitate a response to protect public
health and safety." He asked what is being sought, what power
it gives, and to whom.
MS. PEARSON answered that it can be used in a number of
situations and that the critical part, as Mr. Rush had
mentioned, is the "as-needed basis". If there were a need to
obtain records for a large number of people in Anchorage, for
example, there wouldn't be time for a medical caregiver to call
each patient to obtain a medical release to give [the Division
of Public Health]. She noted that during the incidents on the
East Coast, people came to centers to obtain Cipro to counteract
anthrax exposure; she pointed out the need to have people's
medical records waiting there for them in order to speed up the
process, but said she didn't know whether individual releases
were obtained in that case.
MS. PEARSON pointed out that at the time smallpox immunizations
ceased in the U.S., few people survived cancer or had tissue
transplants; if those survivors received a smallpox immunization
today, it would be lethal. She emphasized that there are
important reasons to have people's medical histories before
giving them a medication. She said this [provision of the bill]
would allow providers to share records with the state health
department and back and forth with each other, from one hospital
to another, without obtaining a release of information [from the
patients].
Number 2395
REPRESENTATIVE MURKOWSKI recalled lengthy discussions about
privacy and confidentiality of insurance records, specifically
in relation to health care. She said she understands that this
[bill applies] in an unusual situation in which a disaster has
been declared, but asked how confidentiality of those medical
records should be dealt with in a provision like this, and
whether the goal is to say that because there is a desire to
protect public health and safety, there is no confidentiality.
MS. PEARSON responded:
No, we're not going that far. First of all, they will
only share the information ... needed to deal with
whatever the situation is. It will still only be
released to health care providers, public health
officials, those kinds of things, who have
professional responsibility for confidentiality. So
they will only be able to use that ... within the
extent of what their health-delivery system is. ...
They're still bound by all the professional
responsibilities they have to protect confidentiality,
which means they can't, then, ... share it with anyone
else, except on an as-needed basis, to either protect
the public's health ... or deliver care to that
individual. So ... it's opening it up within the
system to share information back and forth, which you
cannot do ... on a routine basis. Your records can
only be shared with another provider if you give a
release to do that. In this very extenuating
circumstance, it could be shared among providers
without getting permission from the person involved.
But it still has to be handled within the confines of
professional conduct of health information.
Number 2518
REPRESENTATIVE MURKOWSKI expressed concern, saying the bill
doesn't define with whom that information would be shared under
paragraph (12).
MS. PEARSON said that's where the "as-needed basis" [applies],
since it's as needed to protect public health and safety; there
is no reason an insurance company would need to know that, and
thus it couldn't be released. She added that one reason a list
wasn't included was that in an emergency, somebody else may need
to step in; for example, firefighters may need to step in if all
the EMTs [emergency medical technicians] are busy.
REPRESENTATIVE MURKOWSKI said she still was troubled by it,
though the argument made sense.
MR. PEARSON conveyed willingness to try to tighten the language.
She informed members that the Alaska State Medical Association
had been asked its opinion on this, and that its board of
trustees had seen the importance and voted in support of it.
Number 2678
REPRESENTATIVE CISSNA referred to an unspecified bill in the
House that adds another professional to the statutory list of
people who are given confidential medical and psychological
information. She asked whether including something like that
here would be too limiting.
MS. PEARSON said that's exactly it: in an emergency, it isn't
known who will be needed or in what function.
REPRESENTATIVE CISSNA remarked that it would be important to
know if someone was allergic to something, or was diabetic.
Number 2701
MR. RUSH asked Chair Chenault:
Would you like us to take a shot at redrafting
portions of this, specifically, adding the
'pharmaceuticals' part to [AS] 26.20 and then trying
to rework, perhaps, [paragraph] (12) that we were just
discussing, as well as the [subparagraph] (E) that we
had suggested to add to the definition of "disaster",
which talks about outbreak of disease?
CHAIR CHENAULT expressed appreciation for that offer, relating
his belief that tightening paragraph (12) is important and that
"pharmaceuticals" can be [added] to Section 1 in order to
provide some uniformity. He noted that the outbreak-of-disease
portion on page 4 hadn't been discussed yet, and asked members
to look at the proposed amendment [text provided previously].
Number 2786
REPRESENTATIVE MURKOWSKI reminded members that she'd asked to
tighten the definition of "credible threat" as well. Looking at
the amendment, she said it seems to work, and addresses the
concern she had.
MR. MITCHELL, in response to Chair Chenault, said [SB 237] is
still in the Senate State Affairs Standing Committee and hasn't
been heard since the proposed amendment was provided to that
committee.
Number 2838
CHAIR CHENAULT asked whether anyone else wished to testify and
then closed public testimony.
Number 2870
REPRESENTATIVE GREEN moved to adopt Amendment 1 [text provided
previously].
TAPE 02-20, SIDE B
Number 2934
CHAIR CHENAULT asked whether there was any objection to the
adoption of Amendment 1. There being no objection, it was so
ordered.
CHAIR CHENAULT asked Mr. Rush and Mr. Mitchell to work on
tightening [paragraph] (12); to address the "pharmaceutical"
issue in Section 1, line 3; and to provide a proposed committee
substitute (CS).
REPRESENTATIVE MURKOWSKI, in response to a question from
Representative Kott relating to page 1, line 5, explained that
there will be a change to "a credible threat as identified under
the standards that we've just set out," and that it will be
defined to be an imminent threat. [HB 325 was held over.]
The committee took an at-ease from 4:35 p.m. to 4:40 p.m.
HB 326-SECURITY OF FACILITIES AND SYSTEMS
[Contains discussion of SB 238, the companion bill in the
Senate]
CHAIR CHENAULT announced that the final order of business would
be HOUSE BILL NO. 326, "An Act relating to state plans and
programs for the safety and security of facilities and systems
in the state; and providing for an effective date." [The bill
was sponsored by the House Rules Standing Committee by request
of the governor.]
Number 2770
CAROL CARROLL, Director, Administrative Services Division,
Department of Military & Veterans' Affairs, came forward
accompanied by Deborah Behr of the Department of Law to present
HB 326. She noted that Dennis Poshard of the Department of
Transportation & Public Facilities (DOT&PF) could answer
questions as well.
MS. CARROLL explained that Section 1 deals with the ability of
DOT&PF to have citation authority for violations of security
plans or actions; this applies to international and rural
airports. If the Federal Aviation Administration (FAA)
determines there is a security violation at an international
airport, [the FAA] can charge the international airport - the
DOT&PF. Currently, DOT&PF can apply the fine to a lessee or a
person who has violated airport security, either by pulling the
lessee's lease - which she said seems to be overkill - or by
having the police arrest an individual on a criminal charge.
Thus the bill allows [the department] to set in regulation a
fine of up to $1,100 for a violation, for example, if somebody
forgetting to close a security door; that could be applied to
the person who actually violated that stipulation.
Number 2664
MS. CARROLL reported that Section 2 allows the state an
exemption from the public records law for certain narrowly
defined security plans, procedures, systems, facilities, or
infrastructure; currently, someone may ask for those documents
and the state has no specific instance when it can refuse to
allow a person to have those security plans. She suggested that
Ms. Behr, who has had to apply the current, broad public records
law, could address that further.
Number 2623
MS. CARROLL turned to Section 3, noting that if the state
adopted by regulation a security plan and it were put before the
public, some harm could come to the public if that information
got out. Thus Section 3 allows the state to have the adoption
be done by an agency head through an order; hence the public
could be told what they couldn't do, and yet the details of the
security plan wouldn't have to be provided. This would be most
visible in an airport security plan. She asked Ms. Behr to
elaborate on the bill.
Number 2574
DEBORAH BEHR, Assistant Attorney General, Legislation &
Regulations Section, Civil Division (Juneau), Department of Law,
informed the committee that she frequently provides advice on
public records issues. She noted that this bill stemmed from
the Terrorism Disaster Policy [Cabinet] headed by Major General
Oates to address issues arising from [the terrorist attacks of
September 11, 2001, on the East Coast]; those events caused the
state to look closely at all the [appropriate] statutes to see
how they could be clarified in order to respond better in a
crisis.
MS. BEHR explained that Alaska has one of the broadest public
records Acts in the nation. "A record is public unless I can
point to an exception," she said. She reported that [the
department] had found no clear exemption in the Act for security
plans, programs, procedures, and infrastructure. She noted that
a security plan could be a plan to protect a public facility in
Alaska, for example; a security program could be a risk
assessment done by any state agency looking to see where risk
lies; security procedures could involve getting into any state
building; and evaluations of systems are plans that might be
around and that might be of interest. She explained:
What we had to do was go through and decide a way to
do it that was fair, and in recognition of our strong
heritage toward public records' being available to the
public. And so we decided on a very tailored
amendment that basically says that it's got to be one
of these special things - security plans. But even if
it is a security plan, it's got to, with the
disclosure of it, result in some kind of public harm.
MS. BEHR noted that on page 2, lines 10-17, [the bill] therefore
sets up the situations when a department official, even for a
security plan, still must meet these standards. For example,
disclosure of a security plan might include what color of badge
is required to enter a state building on a certain date.
Another consideration is the endangerment of the life, health,
or safety of state employees or the public. She reiterated that
the exception is narrowly tailored.
Number 2459
MS. BEHR, addressing protection of the public, said:
If the public believes that an agency person may be
misinterpreting this, there are existing provisions in
law for administrative appeals and for appeals to the
court. This kind of exception is not unusual. The
federal law has a national defense exemption in it; we
don't have that in the state law. And also - the
tailoring - I took the language of it very much from
the prosecutors' investigatory privilege when the
prosecutor has an ongoing investigation, that somebody
can't come in and say, ... "What streets are you going
out and doing surveillance of," for drugs or something
like that. So that's what Section 2 is designed to
do.
Number 2427
MS. BEHR turned attention to Section 3, explaining that it deals
with an unusual situation when a state agency is subject to the
Administrative [Procedure] Act. In order to have a regulation,
[an agency] first must put out a draft regulation for the public
to look at and comment on, "and then we change it as
appropriate." For a state security plan, however, [providing
public notification of] details of staffing and so forth
basically defeats the plan. Thus [Section 3] allows the
department to implement the plan by issuing an order; the public
wouldn't get in trouble for not following it until there was
adequate announcement of what was expected; for example, if
certain areas were to be restricted at an airport, signs would
be posted. However, this wouldn't apply to all security plans.
It would have to be shown that the disclosure would cause some
public harm; the standards are on the bottom of page 2,
continuing to page 3.
Number 2353
REPRESENTATIVE MURKOWSKI observed that page 3, paragraph (3)
[Section 3], doesn't mirror Section 2, subparagraph (C). She
asked why the risk to public health and welfare wasn't included
in the former.
MS. BEHR answered:
The reason why we did it was, the infrastructure is up
... in Section 2, in public records; we're bringing in
evaluations of plans, infrastructures, where we can't
point to an individual person being hurt. And so
that's why we brought in the "real and substantial
risk to the public health and safety" - in other
words, a broad class ... of damage to society as a
whole. In the second order, we're more limited to the
risk to the life or physical health of an individual,
although, I can tell you, I would have no objection to
... them being parallel.
Number 2286
REPRESENTATIVE MURKOWSKI offered her understanding that
Section 2 allows an exemption for plans or programs that relate
to security or evaluations of systems, facilities, or
infrastructures, provided that the information which is sought
to be exempt relates to the security plan. Thus there would be
two things happening: the security plan, for which the
standards must still be met; and the evaluation, for instance,
of a facility. An individual could be requesting this
information, and if it related to a security component of that
facility or infrastructure, then the exemption may be requested.
MS. BEHR responded, "Decline to release the document."
REPRESENTATIVE MURKOWSKI surmised, then, that because Section 2
includes references to facilities and infrastructure, that is
where there is additional language about presenting a "real and
substantial risk to the public health and welfare."
MS. BEHR said that's the intent of it.
Number 2220
REPRESENTATIVE GREEN asked why the amount is "$1,100 per
incident" on page 1, line 12.
MS. BEHR said it comes from the FAA; to her understanding, it's
the cap that the FAA can assess. "We didn't want to go and look
like we were trying to get more power than the FAA," she added.
Number 2166
DENNIS POSHARD, Legislative Liaison/Special Assistant, Office of
the Commissioner, Department of Transportation & Public
Facilities, informed members that he couldn't necessarily add
anything to previous testimony, other than to state support for
Section 1 of the bill as a needed tool to use at some of the
airports. He urged the committee's support.
CHAIR CHENAULT asked whether currently the department is unable
to assess a fine.
MS. POSHARD affirmed that understanding and explained:
The FAA fines us, the airport owners, for violations
that occur. ... At least at some airports where there
is an arrangement with a leaseholder, some of the
contract language allows us to pass along those fines
to leaseholders. But for private individuals or maybe
a private airplane owner or somebody like that, we
don't have any way of passing along those violations
to those individuals.
Number 2103
REPRESENTATIVE GREEN asked whether this applies regardless of
whether it is intentional, due to negligence, or because of a
simple mistake.
MR. POSHARD surmised that if someone unintentionally violated a
law, [DOT&PF] wouldn't issue a civil penalty. He noted that
beginning at the end of line 13 [page 1] it says a person or
entity is subject to a penalty if that person or entity, at the
time of the violation, had [actual or constructive] knowledge of
the violated law or program adopted under law.
Number 2055
REPRESENTATIVE GREEN posed a situation in which someone knows
the law and doesn't intend to violate it [but does so].
MS. BEHR replied:
"Intentional" is a mental state dealing primarily with
criminal sanctions. This is an administrative
penalty. [DOT&PF] is not creating new ... crimes. In
order for [DOT&PF] to assess this fine, there'd
already have to be a violation of state law or state
regulations. In the state law that somebody would be
violating, there would be a mens rea - a mental state
- in there, and it could vary.
Number 2007
CHAIR CHENAULT asked whether this violation pertains to state or
federal laws.
MR. POSHARD noted that Section 1, subsection (b), says [the
department] shall adopt regulations [under AS 44.62, the
Administrative Procedure Act] to carry out the purposes of this
section. Therefore, DOT&PF would adopt regulations that clearly
state what the violations and attached fines are.
Number 1956
REPRESENTATIVE MURKOWSKI observed that page 1 says "any ...
state or federal law, pertaining to security of a state
airport". She suggested DOT&PF would be the entity that could
assess a penalty for violation of a state or federal law.
MR. POSHARD said that's correct, to his understanding. He added
that he also understood that in order to be able to assess a
fine, [the department] would have to have adopted that in
regulation.
MS. BEHR added that this [proposed statute] is barebones; due
process for notice, hearing, and opportunity for comments, as
well as the appropriate fine, will be done through regulations.
Number 1844
CHAIR CHENAULT asked how many facilities [this bill would
affect] statewide.
MR. POSHARD answered that the intention is to implement it at
the state's 21 "certificated airports." Most of the other
airports don't have a full-time staff person to enforce these
regulations. He explained that "certificated airport" is a term
used by the FAA; it includes airports such as those at Nome,
Bethel, Barrow, Wrangell, and Petersburg, where commercial
passenger airplanes have been approved to land. In response to
Representative Green, he suggested that some local law-
enforcement official such as a VPSO [village public safety
officer] could have jurisdiction in other locations.
Number 1730
REPRESENTATIVE MURKOWSKI referred to AS 02.15.240 and asked what
criminal or other penalties would be imposed in addition to this
administrative penalty of not more than $1,100 per incident.
MS. BEHR said she would have to pull the statutes, but recalled
that it would be a misdemeanor. She added that it's old
language and is quite broad.
Number 1666
REPRESENTATIVE MURKOWSKI began discussion of Conceptual
Amendment 1. She referred to page 3, subsection (b), and asked
Ms. Behr to put on record the concerns that had been expressed.
MS. BEHR explained that there is a parallel bill in the Senate
[SB 238]. One concern raised by the Senate State Affairs
Standing Committee relate to the ability of the medical board to
issue an order for access to medical records; hence that
committee decided to delete "boards or commissions" [from
SB 238]. She offered her belief that it is an acceptable change
because [it doesn't affect the intent of the bill].
Number 1590
CHAIR CHENAULT indicated [Conceptual Amendment 1] should have
been in members' packets. Drafted for SB 238, it read [original
punctuation provided]:
Page 2, line 21:
Delete "each"
Insert "a"
Delete ", or a board or commission with
regulation adoption authority,"
Page 2, line 23:
Following "security"
Insert "for a facility, system, or
operation"
Page 2, line 28:
Delete "or board or commission"
Page 3, line 7:
Delete ", board's, or commission's"
Number 1564
CHAIR CHENAULT asked whether anyone else wished to testify and
then closed public testimony.
Number 1475
REPRESENTATIVE GREEN moved to adopt Conceptual Amendment 1 [text
provided previously]. There being no objection, it was so
ordered.
Number 1315
REPRESENTATIVE HAYES moved to report HB 326, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 326(MLV) was
reported from the House Special Committee on Military and
Veterans' Affairs.
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Military and Veterans' Affairs meeting was
adjourned at 5:08 p.m.
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