Legislature(2021 - 2022)GRUENBERG 120
02/23/2021 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB3 | |
| HB32 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 3 | TELECONFERENCED | |
| *+ | HB 32 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
February 23, 2021
3:01 p.m.
DRAFT
MEMBERS PRESENT
Representative Jonathan Kreiss-Tomkins, Chair
Representative Geran Tarr
Representative Andi Story
Representative Matt Claman
Representative Sarah Vance
Representative James Kaufman
Representative David Eastman
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 3
"An Act relating to the definition of 'disaster.'"
- HEARD & HELD
HOUSE BILL NO. 32
"An Act providing civil immunity to recreational vehicle park
owners for certain damages; and providing civil immunity from
liability related to the inherent risks of camping."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 3
SHORT TITLE: DEFINITION OF "DISASTER": CYBERSECURITY
SPONSOR(s): REPRESENTATIVE(s) JOHNSON
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
02/23/21 (H) STA AT 3:00 PM GRUENBERG 120
BILL: HB 32
SHORT TITLE: IMMUNITY FOR RV PARKS, CAMPGROUNDS
SPONSOR(s): REPRESENTATIVE(s) RAUSCHER
02/18/21 (H) PREFILE RELEASED 1/8/21
02/18/21 (H) READ THE FIRST TIME - REFERRALS
02/18/21 (H) STA, JUD
02/23/21 (H) STA AT 3:00 PM GRUENBERG 120
WITNESS REGISTER
REPRESENTATIVE DELENA JOHNSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 3 as the prime sponsor.
ERIC CORDERO, Staff
Representative DeLena Johnson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 3 on behalf of Representative
Johnson, prime sponsor.
MARK BREUNIG, Chief Technology Officer
Office of Information Technology
Department of Administration
Palmer, Alaska
POSITION STATEMENT: Offered testimony pertaining to HB 3.
PAUL NELSON, Director
Division of Homeland Security & Emergency Management
Department of Military & Veterans' Affairs
Anchorage, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
3.
PETER HOUSE, CEO
Deeptree, Inc.
Wasilla, Alaska
POSITION STATEMENT: Offered testimony in support of HB 3.
REPRESENTATIVE GEORGE RAUSCHER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 3 as the prime sponsor.
JESSE LOGAN, Staff
Representative George Rauscher
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 32 on behalf of Representative
Rauscher, prime sponsor.
LAURA SAXE, Owner
Eagle's Rest RV Park & Cabins;
Chair, Alaska Campground Owner's Association
Valdez, Alaska
POSITION STATEMENT: Offered testimony pertaining to HB 32.
SANDON FISHER, Attorney
Legislative Legal Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
32.
ACTION NARRATIVE
3:01:19 PM
CHAIR JONATHAN KREISS-TOMKINS called the House State Affairs
Standing Committee meeting to order at 3:01 p.m.
Representatives Kaufman, Eastman, Vance, Tarr, Story and Kreiss-
Tomkins were present at the call to order. Representative
Claman arrived as the meeting was in progress.
HB 3-DEFINITION OF "DISASTER": CYBERSECURITY
3:05:43 PM
CHAIR KREISS-TOMKINS announced that the first order of business
would be HOUSE BILL NO. 3, "An Act relating to the definition of
'disaster.'"
3:06:12 PM
REPRESENTATIVE DELENA JOHNSON, Alaska State Legislature, prime
sponsor, introduced HB 3. She stated that there are many events
that elicit an emergency declaration; however, a cybersecurity
threat is not one of them. She informed the committee that
current Alaska statutes are vague on whether a cyber attack
could qualify for such a declaration. She said HB 3 would
provide clarity by adding cybersecurity attacks to the
definition of disaster, so in the event it's needed, action
could be taken, and resources could be used. She relayed that
there is an alarming rate of cyber threats throughout the world
and referenced a recent cyber attack on the Matanuska-Susitna
(Mat-Su) Borough, which created disruptions in day-to-day
service operations. She noted that the city of Valdez was also
the target of a ransomware attack that was costly to resolve.
Additionally, she reported that several state agencies were
target by cyber criminals, including Department of Health and
Social Services (DHSS) and the Division of Elections. To
conclude, she asserted that cybersecurity should qualify for an
emergency declaration to allow for the use of emergency funds;
the application of funds and other resources that might not be
otherwise readily available; and disaster preparation planning.
3:08:39 PM
ERIC CORDERO, Staff, Representative DeLena Johnson, Alaska State
Legislature, on behalf of Representative Johnson, continued to
present HB 3. He reiterated that the bill adds cybersecurity to
the definition of a disaster - more specifically, HB 3 adds
subsection (F) to AS 26.20.900, the general provisions of the
Alaska Disaster Act. Subsection (F) read as follows:
(F) a cybersecurity attack that affects critical
infrastructure in the state, an information system
owned or operated by the state, information that is
stored on, processed by, or transmitted on an
information system owned or operated by the state, or
a credible threat of an imminent cybersecurity attack
or cybersecurity vulnerability that the commissioner
of administration or commissioner's designee certifies
to the governor has a high probability of occurring in
the near future; the certification must be based on
specific information that critical infrastructure in
the state, an information system owned or operated by
the state, or information that is stored on, processed
by, or transmitted on an information system owned or
operated by the state may be affected;
MR. CORDERO clarified that the language, "the certification must
be based on specific information that critical infrastructure in
the state," covers agencies within the nonprofit sector and the
private sector that have responsibilities regarding health,
energy, telecommunication, or transportation to the public. He
further noted that the Department of Military & Veterans'
Affairs (DMVA) is responsible for planning, managing, and
creating the list of qualifications for "critical
infrastructure," which Mr. Cordero could not obtain. He stated
that critical infrastructure is not defined under Alaska
statutes, adding that DMVA uses the U.S. Department of Homeland
Security's definition. He went on to add that according to
Legislative Legal Services, the governor could, in some
instances, call an emergency if there were a cybersecurity
attack or threat; however, the statutes are vague because in in
2000, the legislature removed the words "manmade causes" from
the Alaska Disaster Act. He noted that other states that can
issue a statewide emergency on cybersecurity have relied on that
language. There is, he said, a small provision in the Alaska
statute that mentions "equipment," which arguably, could be
considered information systems or a database. He emphasized
that HB 3 would clarify and update the language in the Alaska
Disaster Act.
3:12:59 PM
MR. CORDERO reported per the Department of Administration (DOA),
that in the last 10 years, there have been as many as 817,000
attempted attacks per year that are general in nature, such as
spam mail, viruses, and malware, and 400,000 [attempted]
directed attacks per year, which are focused against specific
individuals, systems, or departments. He noted that not all
attempted attacks were successful. He stated that annually,
there have been 497 successful attacks against the state, in
which systems or data were either infiltrated or compromised.
He added that historically, the most targeted state agencies are
Division of Elections, Division of Motor Vehicles (DMV),
Department of Revenue (DOR), DHSS, and Department of
Transportation & Public Facilities (DOTPF).
3:14:17 PM
CHAIR KREISS-TOMKINS opened invited testimony.
3:15:02 PM
MARK BREUNIG, Chief Technology Officer, Office of Information
Technology, Department of Administration, informed the committee
that states such as Florida, Texas, and Washington, as well as
the federal government, have been impacted by cybersecurity
attacks. He reported that in July 2018, the Mat-Su Borough and
the city of Valdez were victims of cyber attacks, and in both
cases, critical services were disrupted, and significant damage
was caused. Ultimately, emergency relief funding in the Mat-Su
Borough alone exceeded $2.5 million. As one of the on-site
volunteers to help restore service, he recalled asking "where is
the state?" Upon joining DOA, he realized that the state was
not unsympathetic, but the language to address a major
cybersecurity attack was missing from Alaska statutes. He said
HB 3 seeks to remedy that gap. He addressed several instances
of cybersecurity attacks in other states, such as Florida, where
attackers gained access to industrial control systems at a water
treatment plant and attempted to increase the amount of sodium
hydroxide. He opined that the additional language in HB 3 is
critical to support processes and the success of disaster
remediation in Alaska.
3:17:23 PM
REPRESENTATIVE EASTMAN asked how far the Mat-Su Borough
progressed into the disaster declaration process before the
missing language became an obstacle.
MR. BREUNIG reported that the Mat-Su Borough's request was
received, but there was no legally viable recourse.
3:18:19 PM
REPRESENTATIVE CLAMAN inquired about the likelihood of receiving
information on a pending cybersecurity attack, which could
result in a disaster declaration, before it happens.
MR. BREUNIG said the time interval from receiving intelligence
before an attack to the time of an actual attack continues to
shrink, which is why intelligence from federal and industry
partners is greatly valued. He provided the example of solar
winds, explaining that the state received the update on solar
winds hours before it hit everywhere else allowing Alaska to act
quickly. Nonetheless, he reiterated that the days of receiving
advanced notice are disappearing.
REPRESENTATIVE CLAMAN surmised that in terms of cybersecurity
attacks pertaining to critical data, "we're not talking about a
disaster declaration because tomorrow we think something's
coming - it's going to be ... this just happened ... and now we
need help fixing it and it's going to take time and money."
MR. BREUNIG replied it will be a mix. He pointed out that [the
state] received word of "certain Iranian activities" one week in
advance. He emphasized that typically, the amount of advanced
notice varies, if any is received at all.
3:21:26 PM
REPRESENTATIVE KAUFMAN asked if HB 3 goes far enough to
encompass the state's cybersecurity needs. Additionally, he
asked if Hb 3 is missing any components.
MR. BREUNIG said there is work that needs to be done, but [HB 3]
is a significant start.
3:22:02 PM
CHAIR KREISS-TOMKINS asked if beyond the scope of this bill,
there are recommendations that the legislature should further
explore or investigate regarding cybersecurity in general.
MR. BREUNIG answered yes, adding that he would welcome a follow-
up discussion and further investigation.
3:22:48 PM
REPRESENTATIVE VANCE inquired about available federal funds
specific to cyber attacks in a declared emergency.
MR. BREUNIG relayed that the state currently receives funding
through the Federal Emergency Management Agency (FEMA) for
emergency response. He noted that recently, CISA [Cybersecurity
& Infrastructure Security Agency] announced its intention to
contribute additional funding; however, the amount and the date
of availability has not been publicized.
CHAIR KREISS-TOMKINS asked what the acronym "CISA" stands for.
MR. BREUNIG answered Cybersecurity & Infrastructure Security
Agency.
3:24:27 PM
REPRESENTATIVE STORY asked if qualifying for assistance requires
reaching a certain level of disaster.
MR. BREUNIG said there is a framework and different criteria for
determining the level of attack and disaster.
REPRESENTATIVE STORY requested that a description of the
criteria be provided to the committee.
MR. BREUNIG offered to follow up with the requested information.
3:25:52 PM
PAUL NELSON, Director, Division of Homeland Security & Emergency
Management, Department of Military & Veterans' Affairs (DMVA),
said he has no official testimony prepared at this time;
however, he is available for questions from the committee.
3:26:26 PM
REPRESENTATIVE EASTMAN offered his understanding that DMVA is
involved in the process of declaring a disaster. Referencing
Page 2 of the bill, he asked if the Division of Homeland
Security and Emergency Management helps determine whether
something is a cybersecurity vulnerability.
MR. NELSON acknowledged that the division has a minor role and
follows the lead of OIT [Office of Information Technology] to
identify cybersecurity vulnerabilities. He added that the
division and OIT work with other federal and infrastructure
partners - both public utility and private sector - to determine
the vulnerabilities in the cybersecurity domain and, ideally,
mitigate and eliminate them.
3:27:50 PM
REPRESENTATIVE KAUFMAN asked where Alaska stands in relation to
others.
MR. NELSON replied from the perspective of emergency management,
Alaska seems to be okay, but there's more work to be done going
forward. He opined that HB 3 is a great start, later noting
that there is no indication that [cybersecurity attacks] are
going to stop, they will only grow more advanced.
3:29:31 PM
CHAIR KREISS-TOMKINS asked if HB 3 were to pass, how the state
would evaluate the impact of the cybersecurity attack on the
Mat-Su Borough. He asked whether it would reach the threshold
of warranting a disaster declaration.
MR. NELSON explained that Division of Homeland Security &
Emergency Management would set up the state emergency operations
center wherever the intrusion occurred and evaluate the response
and immediate needs while following OIT's lead, which is the
standard foundation for any type of response, be it flooding, an
earthquake, or a cybersecurity attack. He said the absence of
cybersecurity attack from the definition of disaster within AS
26.23.900 "makes it more obscure," whereas the language in HB 3
would help improve the state emergency operations plan.
MR. BREUNIG expanded on Mr. Nelson's comments by noting that the
National Guard is building cyber capability through their own
mandate. He explained that identifying this as a leverage point
for declaring a disaster would enable the National Guard to
provide cyber support throughout the state.
3:32:57 PM
PETER HOUSE, CEO, Deeptree, Inc., informed the committee that
his business is an IT firm that specializes in risk management
with a particular emphasis on cybersecurity. He provided
several personal anecdotes, one which highlighted his work on
the Mat-Su Borough attack. He said he saw firsthand the scope
of the incident and the impact on Alaskans. He added that
whether in the scope of losing access to essential services or
disruptions to business, the [cybersecurity] attack was
functionally equivalent to the organization being impacted by a
traditionally defined disaster. As a responder, he said, the
level of responsibility was significant because citizen lives
were impacted by the lack of digital infrastructure support. He
explained that the responders had two tasks on hand: restore
services as quickly as possible and ensure that the evidence
required by law enforcement and insurance was retained. He
noted that sometimes, it felt like those tasks were at odds with
each other when it came to resources and staffing. He recounted
that due to the depth of the attack, a large number of
specialists and generalists was required; further, for the first
few months, the daily briefings were at capacity. He offered
his belief that the Borough's declaration of a state of
emergency was essential because of those operational factors.
He pointed out the extra support that resulted from the disaster
declaration made a significant impact on the time it took to
restore services; additionally, they received improved
operational agility and response capabilities. He went on to
convey that that because Alaska is sparsely populated and spread
out over thousands of miles, the state has a unique profile,
which makes digital technology not only a nicety but a
necessity. Furthermore, it places the digital systems on which
Alaska relies in a state of operational significance. He
pointed out that sometimes the replacements for that equipment
are thousands of miles away.
MR. HOUSE continued by addressing the 2013 attack on Target. He
said it's not widely known that the attack had an initial point
of entry through an HVAC vendor. The criminal actors identified
a third-party vendor, sent a phishing email, compromised the
systems, and rode an engineer's laptop onto the networks when
the engineer went on site. He emphasized the importance of that
story because Alaska is very connected. He opined that when
considering the threat of exposure that could come from a
similar situation, Alaska compared to other states has a mildly
higher threat profile given the state's geographic location and
economy. He added that Alaska does not have many economic
"crown jewels," but the few that exist are very important. He
concluded by opining that knowing the State of Alaska has a
strong security posture and the ability to respond to an
emergency enhances the state's overall defensive position.
3:38:21 PM
REPRESENTATIVE EASTMAN pointed out that HB 3 speaks to the
credible threat of an attack or a cybersecurity vulnerability
that has a high probability of occurring in the future. He
questioned whether the language opens the door for a situation
in which Alaska would be eligible for a disaster for the
foreseeable future. He remarked:
Or maybe, based on your experience, you would expect
that [the] window would close. If so, when would we
no longer be in the situation where there is a
vulnerability that exists that could trigger this
disaster.
3:39:29 PM
MR. HOUSE said typically, the software developer - or whoever is
responsible for managing the solution - eliminates the
vulnerability by patching the system. He noted that in his
professional experience, he has never seen a nonterminated
vulnerability; further adding that in terms of mainline critical
infrastructure vulnerabilities, there is a low probability of a
vulnerability persisting for an interminable amount of time.
REPRESENTATIVE EASTMAN questioned whether Mr. House is referring
to an existing vulnerability or, as the bill expresses, one that
has a high probability of occurring in the future.
MR. HOUSE said he could not speak to that specific passage;
however, he offered his understanding that when something is
specifically classified as a vulnerability, it is a "technical
exercise" that wouldn't leave room for interpretation. He
opined that the legislation as it's currently written, would not
allow a state of emergency to continue for an unlimited amount
of time.
3:41:41 PM
REPRESENTATIVE STORY expressed her concern that people do not
have basic protections in place to [protect] them from a
cybersecurity [attack]. She asked if municipalities and state
agencies are taking adequate precaution.
MR. HOUSE recalled seeing higher levels of information sharing
and security, as well as an uptick in security operation centers
(SOCs), since the Mat-Su Borough event. He provided an example
of an institution that provides threat and vulnerability
information sharing, which local jurisdictions are partaking in.
Furthermore, He said more professionals are undertaking advanced
education and training. He noted his specialization in memory
forensics, a specialized portion of incident response to
cybersecurity events, in which the level of interest has risen.
3:44:36 PM
REPRESENTATIVE TARR inquired about the perpetrator's motivation
to carry out these attacks.
MR. HOUSE said motivations vary. He explained that criminal
actors are interested in auctioning off the stolen information
on the dark web. Additionally, when the network is compromised,
he recalled a growing practice where the network itself is
auctioned off for criminal actors to pull the data from, ransom
the network, or both. He added that the motivation for nation
state actors also varies - in general, they are looking to
monetize the networks or gain geopolitical influence.
3:46:36 PM
REPRESENTATIVE TARR questioned whether the bill language
pertaining to the commissioner designee should be more specific.
MR. CORDERO explained that typically, each department determines
a plan they want to submit to DMVA and DMVA develops the
mitigation and response. He noted that DOA is included in the
bill language because it houses the Office of Information
Technology. He added that the language regarding the
commissioner designee is for the committee to consider at their
discretion.
3:48:33 PM
REPRESENTATIVE CLAMAN expressed his interest in clarifying the
definition of critical infrastructure and what constitutes it.
3:49:25 PM
MR. CORDERO read from the document, titled "From the
Cybersecurity & Infrastructure Security Agency" [included in the
committee packet], as follows:
There are 16 critical infrastructure sectors whose
assets, systems, and networks, whether physical or
virtual, are considered so vital to the United States
that their incapacitation or destruction would have a
debilitating effect on security, national economic
security, national public health or safety, or any
combination thereof.
MR. CORDERO acknowledged that "critical infrastructure" is not
defined in Alaska statutes. He added that the duty to make that
determination was given to [DMVA].
3:50:27 PM
REPRESENTATIVE CLAMAN sought to clarify whether that is the
federal definition.
MR. CORDERO answered yes.
REPRESENTATIVE CLAMAN pointed out that there are other sections
in statute that reference federal authority or federal
regulation. He suggested including a reference to the federal
regulations or federal statutory authority in HB 3 to avoid
writing a definition that changes every two years. He opined
that the reference would strengthen the bill because it would
align the state and federal definition of what constitutes
critical infrastructure.
MR. CORDERO agreed that it could help clarify critical
infrastructure.
3:51:29 PM
REPRESENTATIVE EASTMAN asked if there is a definition of
cybersecurity that the bill refers to.
MR. CORDERO deferred to Mr. Breunig.
3:52:20 PM
REPRESENTATIVE VANCE asked if the state has insurance that
covers cybersecurity attacks and if so, what criteria must be
met to access it or other federal funding.
MR. CORDERO offered to follow up with the requested information.
3:53:42 PM
CHAIR KREISS-TOMKINS shared his understanding that there was
similar, or possibly identical, legislation in the last
legislative session. He asked if there are substantive
differences between the previous legislation and HB 3.
REPRESENTATIVE JOHNSON answered no and explained that that HB 3
is a continuation of the same bill from last session.
CHAIR KREISS-TOMKINS advised that there might be a committee
substitute with a title change pending further discussions with
the sponsor's office.
3:54:55 PM
REPRESENTATIVE CLAMAN asked who sponsored the previous
legislation.
CHAIR KREISS-TOMKINS answered Representative Johnson.
[HB 3 was held over.]
HB 32-IMMUNITY FOR RV PARKS, CAMPGROUNDS
3:55:20 PM
CHAIR KREISS-TOMKINS announced that the final order of business
would be HOUSE BILL NO. 32, "An Act providing civil immunity to
recreational vehicle park owners for certain damages; and
providing civil immunity from liability related to the inherent
risks of camping."
3:55:40 PM
REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, prime
sponsor, introduced HB 32. He paraphrased the sponsor statement
[included in the committee packet], which read in its entirety
as follows:
There are at least 152 privately owned RV parks and
campgrounds across the state of Alaska. House Bill 32
seeks to provide these facilities immunity from civil
liability related to the inherent risks in the outdoor
environment. This is similar to current Alaska statues
for inherit risk for the equestrian/livestock, skiing,
and sports and recreation industries.
The bill has a compressive list of natural features,
conditions, and activities that may pose a danger or
hazard and obligates the conspicuous signage and a
warning included in any written contract with a guest
of the campground.
The civil liability immunity does not apply in the
event off:
- Negligence, recklessness, or intentional misconduct,
or
- Failure to post conspicuous signage as warnings of
known hazards or conditions, or
- Failure to include the warning in a written
contract.
The bill recognizes that there are inherent risks in
camping that are beyond the control of the operator,
and that the warnings and signage may increase safety
for recreational users.
3:58:11 PM
JESSE LOGAN, Staff, Representative George Rauscher, Alaska State
Legislature, provided additional background on HB 32 on behalf
of Representative Rauscher, prime sponsor. He reiterated that
there are at least 152 privately owned RV parks and campgrounds
in Alaska; furthermore, the RV Industry Association (RVIA)
Economic Impact Study [included in the committee packet]
indicated that in 2019, RV manufacturers & Suppliers, RV Sales &
Service, and RV Campground and Travel accounted for almost 1700
direct and indirect jobs, $84 million in wages, and over $242
million in total economic output for Alaska alone. He pointed
out that Alaskans have unprecedented access to the wilderness,
which is one of the many reasons people visit the state. He
continued to note that Alaska's unique location is accompanied
by "unique dangers," including bears, moose, rocks, and
branches. He referenced a document that listed examples of
inherent risk lawsuits [included in the committee packet]
enacted on private campgrounds in other states, specifically
noting a claimant who was paid $608,867 after being attacked by
a bear at a private campground, as well as a claimant who was
paid $151,593 after alleging the campground failed to maintain
safe conditions on the premises, causing her to fall when the
walkway abruptly ended. He said the aforementioned examples
illustrate that private campgrounds can and do get sued for
injuries sustained for such things as tripping on natural
objects that occur inherently in the wilderness. HB 32, he
said, acknowledges that there is inherent risk in camping and
puts RV parks and campgrounds "on the same level" as skiing,
equestrian sports, livestock, recreational activities, and
camping. He cited the 1994 Alaska Safety Skiing Act, AS
05.45.010 [Limitation on Actions Arising from Skiing], which
prevents a person from bringing action against a ski operator
for an injury resulting from an inherent risk of skiing, and AS
09.65.290 [Civil Liability for Sports or Recreational
Activities], adding that HB 32 extends the same protections to
RV parks and campgrounds. He said the RV industry is a large
part of the state's economy, operating as part of the multi-
billion-dollar Alaska tourism industry. He conveyed that HB 32
would help protect these locally owned businesses from lawsuit
liability for things that are outside their control.
Furthermore, he offered his belief that the proposed obligatory
signage could help increase the safety and awareness of users.
4:01:40 PM
LAURA SAXE, Owner, Eagle's Rest RV Park & Cabins; Chair, Alaska
Campground Owner's Association, stated that HB 32 would help
small RV parks and campgrounds grow their business to full
potential by allowing more amenities for guests by lessening the
fear of lawsuits. She shared, for example, that an owner might
avoid installing firepits for fear of burns, playground
equipment for fear of child injuries, docks for fear of
drowning, or additional hiking trails for fear of bear attacks.
She emphasized that civil liability immunity is not being
requested for acts of negligence, recklessness, or intentional
misconduct; however, she urged the legislature to grant
campgrounds immunity from civil liabilities for {indisc.)
damages resulting from the conditions expected from camping.
She suggested that HB 32 provide immunity from civil liability
for the inherent risk in camping, similar to current Alaska
statutes for the inherent risk in equestrian, livestock, skiing,
sports, and recreational industries. Those inherent risks, she
said, include natural conditions, uneven terrain, bodies of
water, lack of lighting in the campground, weather, wildlife,
and campfires. She offered her belief that HB 32 would help
grow the outdoor experience that guests are looking for. She
added that as a park owner, her job is to meet and exceed her
guests' expectations for camping in the great outdoors. Despite
never having personally experienced these issues, she said it's
better to be proactive now rather than after the fact. She
reiterated that she is interested in inherent risk protection
not protection from negligence. She opined that HB 32 would
allow for more recreational activities for both Alaskans and
visitors.
4:04:35 PM
REPRESENTATIVE TARR referring to subsection (c) on page 3, lines
6-10, sought clarification on the legal ambiguity that may exist
for self-pay locations. She asked if the liability protection
for such locations had been considered.
MS. SAXE said she has seen an increase in online check-ins since
COVID-19 to lessen the possibility of exposure and maintain
social distance. She explained that the online registration
process for Eagle's Rest includes a list of conditions, rules,
and regulations that, by clicking "accept," the user agrees to.
She noted that each campground has different rules and
regulations, as well as unique check-in processes. Nonetheless,
she added that every campground owner should have rules and
conditions that their guests agree to when they check in.
REPRESENTATIVE TARR suggested clarifying the bill language in
subsection (c) to encompass online check-ins.
CHAIR KREISS-TOMKINS asked Mr. Fisher for his input on the
matter.
4:08:24 PM
SANDON FISHER, Attorney, Legislative Legal Services, Legislative
Affairs Agency, explained that HB 32 requires that every written
contract contain a warning. He offered his understanding that a
contract entered online "where a writing is produced" would
constitute a written contract. He added if the warning is
included on the written contract executed between the parties
online it would satisfy the requirements of the bill.
Furthermore, HB 32 would not require the warning be provided if
there is no written contract generated as drafted. He further
noted that the bill does not provide the consequences of not
including a warning in a written contract.
REPRESENTATIVE TARR proposed a scenario in which a written
contract, which asks for the number of guests, is entered into
without listing all the guests. She asked if the responsibility
falls to the individual who filled out the information
dishonestly.
MR. FISHER offered his belief that without specific facts that
would drastically impact any tort litigation, the campground
would likely have fulfilled its duty under the HB 32, as every
guest included in the contract received the warning. He added
that in the proposed scenario, an individual entered the
campground without permission, which could be considered
trespassing.
4:11:23 PM
REPRESENTATIVE CLAMAN asked Ms. Saxe if she carries insurance on
her campground facility.
MS. SAXE answered yes, adding that she is required to have
general liability insurance on her park. She opined that HB 32
would lower rates at certain parks in some instances.
REPRESENTATIVE CLAMAN asked what kind of limits Ms. Saxe carries
for her park.
MS. SAXE answered higher than "million/million." She noted that
for most parks, "million/million" is the minimum.
REPRESENTATIVE CLAMAN questioned whether the insurance company
takes her history, or lack thereof, of claims into account in
terms of the annual premium.
MS. SAXE answered yes.
REPRESENTATIVE CLAMAN asked whether Ms. Saxe is pleased with her
current rates or if her rates are unusually high.
MS. SAXE said she is pleased with her rates; however, as the
chair of the Alaska Campground Owner's Association, she shared
that other parks are constantly shopping around. She continued
to clarify that Eagle's Rest is more of an RV park than a
campground, whereas campgrounds surrounded by nature tend to pay
higher insurance premiums.
4:13:38 PM
REPRESENTATIVE TARR, referencing page 2, lines 30-31, sought to
clarify whether negligence or gross negligence is the
appropriate legal standard.
MS. SAXE deferred the question to Legislative Legal Services.
MR. FISHER explained that starting on page 2, line 27,
subsection (b) states that the immunity provided under
subsection (a) - the inherent risks of camping - does not apply
if the inherent risk of camping leads to an injury that occurs
as a result of gross negligence, recklessness, or intentional
misconduct. He defined gross negligence as something beyond
negligence that is generally reckless, willful, or wanton
misconduct. He noted that gross negligence is defined once
under statute, later adding that when courts consider the term,
they look at the statutory reference creating the standard and
the applicable facts related to the specific circumstance.
4:17:04 PM
REPRESENTATIVE TARR offered her understanding that gross
negligence is similar to intentional misconduct in that it
indicates more than carelessness, but also intent. She sought
clarification on the standards being set by using the language
"gross negligence, recklessness, or intentional misconduct," and
questioned whether the standard it sets is too high.
MR. FISHER relayed that determining negligence requires showing
that the plaintiff breached the duty of care that he/she owed to
the defendant, which resulted in damage caused. He added that
one must consider how a reasonable person would act in similar
circumstances and if the defendant acted outside of that,
liability can be imposed under negligence. Beyond that,
imposing liability under gross negligence requires considering
whether the defendant's actions were reckless, willful, or an
extreme departure from what a reasonable person would do. he
noted that in this case, the appropriate level of scrutiny to
apply is a policy call that depends on the will of the
legislature.
MR. LOGAN in response to Representative Tarr, pointed out that a
similar statute pertaining to ski liability, AS 05.45.020,
specifies that a skier may recover for the negligence of another
skier from the skier but not the operator. He indicated that in
a campground, if a camper's actions were negligent, then the
liability would fall on the camper rather than the
owner/operator.
4:20:15 PM
REPRESENTATIVE CLAMAN, in reference to the line of questioning
between Mr. Logan and Representative Tarr, offered his belief
that the operative definition of negligence and gross negligence
is contained in the civil pattern jury instructions that define
both terms. He posed a scenario in which an individual parks in
the parking lot of a ski area, such as Alyeska, and asked
whether the gross negligence standard would apply to Alyeska's
parking lot or if the gross negligence standard would apply to
the mountain where ski activity occurs, and the negligence
standard would apply to the parking lot.
MR. FISHER offered his understanding that regarding ski area
liability, AS 05.45 [Ski Liability, Safety, and Responsibility]
carves out negligence with respect to the ski area operator. He
explained that if a ski area operator acts negligently with
respect to an inherent risk of skiing, the ski area operator
could be held liable, which is defined under AS 05.45.200.
4:22:05 PM
REPRESENTATIVE CLAMAN asked if parking in a [ski area] parking
lot is an inherent risk of skiing.
MR. FISHER shared his belief that parking in the parking lot
would not fall under the definition of "inherent risk of
skiing."
REPRESENTATIVE CLAMAN surmised that under HB 32, the inherent
risk of skiing would make it difficult to sue Alyeska if an
individual were to "do foolish things" while skiing, or if a
child goes skiing in too much powder, falls upside down and
asphyxiates himself/herself; however, if an individual slips and
falls in the parking lot because the operator failed to sand the
lot correctly, the individual could sue the operator on a slip
and fall theory with a negligence standard of liability. He
further surmised that HB 32 would allow an individual who
slipped and fell while getting out of his/her RV to apply a
gross negligence standard of liability. He asked if that is
correct.
MR. FISHER confirmed that.
REPRESENTATIVE CLAMAN asked why an RV park or campground should
be treated differently than the parking lot of a ski area.
MR. FISHER indicated that because it's a policy decision, he
would defer to the bill sponsor.
MR. LOGAN acknowledged that Representative Claman made a good
point that was not considered in the original drafting. He
noted that under HB 32, walking anywhere in the campground or
slipping on a wet surface or a root that sticks out on a path
would be included in the inherent risk of camping.
4:25:09 PM
The committee took a brief at-ease.
4:26:06 PM
REPRESENTATIVE CLAMAN opined that these are insurable risks. He
pointed out that RV park operators who take care of their
facilities are the ones with few claims and lower premiums. He
said there are many RV parks with different conditions and
questioned "[getting] into the business" of adding a gross
negligence standard. He recognized that with respect to ski
area liability, the distinction between the parking lot and the
mountain is important, later adding that with very few ski
areas, once people get to the top of the mountain they go out of
bounds and do many things that, despite all the effort, is
difficult to control and hard to insure against. He noted that
in 1994, the ski industry was successful in passing a statute
that addressed those issues. He expressed his concern about
lowering the standard of liability from a negligence liability
to a gross negligence liability when there are many conditions,
both manmade and man-controlled, such as potholes, which are a
risk.
4:28:31 PM
REPRESENTATIVE VANCE suggested including a distinction between
manmade construction and natural habitat in an RV park. She
asked if that would be a reasonable solution.
REPRESENTATIVE CLAMAN opined that it's complicated. He posited
that the largest RV park in Alaska is five acres, indicating
that monitoring and controlling the conditions would be vastly
different than controlling the conditions on a thousand-acre ski
area. He acknowledged that there are issues, such as trees and
roots, that someone could trip over depending on how they are
maintained; however, those are things that ultimately,
campground owners have some control over, particularly within
the boundaries of land that they manage. He explained that
those are classically insurable risks in the list of lawsuits
provided by the sponsor. He noted, for example, that Fred Meyer
is insured against the risk of slip and falls. He expressed his
concern about campgrounds receiving substantially different
treatment than other commercial operators. He continued by
acknowledging that in his legal career, he has represented both
the defendant and the plaintiff in slip and falls, adding that
they are tough cases to win and usually, easier cases to defend.
4:31:31 PM
REPRESENTATIVE TARR recalled working on a similar provision for
farm tours, which involved extensive conversations about
negligence versus gross negligence. She advised exercising
caution with regard to setting a legal standard.
4:32:06 PM
REPRESENTATIVE EASTMAN asked if there was a particular event or
incident that highlighted this particular area of lawsuits and
tort reform.
MR. LOGAN said it was by request of a constituent in District 9.
He explained that the overall economic impact was so positive,
which compelled [the bill sponsor] to try to ensure that those
operations could continue to benefit the tourism industry in
Alaska.
CHAIR KREISS-TOMKINS noted that the supporting document, which
listed inherent risk lawsuits, are all national examples. He
said it would be helpful to provide real and concrete examples
for additional context.
4:33:31 PM
REPRESENTATIVE STORY asked if providing civil immunity in RV
parks is a common practice in other states.
MR. LOGAN replied several states have enacted similar
legislation. He added that much of the drafting language came
from a national organization's public advocacy body. He offered
to provide a list of the requested information.
4:33:59 PM
CHAIR KREISS-TOMKINS announced that HB 32 was held over.
4:34:27 PM
CHAIR KREISS-TOMKINS provided closing remarks.
4:34:52 PM
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 4:34
p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 32 Sponsor Statement 2.19.2021.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 32 Testimony Received as of 2.22.2021.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 3 Sponsor Statement 2.18.2021.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - Alaska Health Department Reports Data Breach The Seattle Times 6.28.2018.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - DHSS Cyber Attack Impacts More Than 100,000 Alaska Households 1.23.2019.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - How One Alaskan Borough Survived A Cyber Attack CitiesSpeak 10.1.2019.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - MSBD Press Release Mat-Su Declares Disaster for Cyber Attack 7.31.2018.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - Pipeline Article Alaska Public Media 3.14.2018.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Legal Memo 2.10.2020.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Supporting Document - CISA Critical Infrastructure 2.23.2021.pdf |
HJUD 3/10/2021 1:30:00 PM HJUD 3/15/2021 1:30:00 PM HJUD 3/17/2021 1:30:00 PM HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 3 Testimony - Received as of 2.22.2021.pdf |
HSTA 2/23/2021 3:00:00 PM |
|
| HB 32 Testimony Received as of 2.22.21 Additional - Chicken Gold Camp.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 32 FN LAW CIV TWC 2.9.21.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 3 Fiscal Note DOA-OIT 2.21.2021 (Printed 2.22.2021).pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 3 |
| HB 32 Letters in Support 2.23.2021.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 32 Research Alaska Annual Ecomoic Impact Fact Sheet.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 32 Research Alaska State Economic Impact Table.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |
| HB 32 Reseach Examples of Inherent Risk Lawsuits.pdf |
HSTA 2/23/2021 3:00:00 PM |
HB 32 |