Legislature(2001 - 2002)
01/24/2002 03:34 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS COMMITTEE
January 24, 2002
3:34 p.m.
MEMBERS PRESENT
Senator Gene Therriault, Chair
Senator Randy Phillips, Vice Chair
Senator Ben Stevens
Senator Bettye Davis
MEMBERS ABSENT
Senator Rick Halford
COMMITTEE CALENDAR
SENATE BILL NO. 235
"An Act relating to emergency and disaster relief forces as state
employees for purposes of workers' compensation benefits;
relating to the Emergency Management Assistance Compact and the
implementation of the compact; and providing for an effective
date."
HEARD AND HELD
SENATE BILL NO. 237
"An Act relating to civil defense and disasters; and providing
for an effective date."
HEARD AND HELD
SENATE BILL NO. 238
"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."
HEARD AND HELD
SENATE BILL NO. 239
"An Act relating to state employees who are called to active duty
as reserve or auxiliary members of the armed forces of the United
States; and providing for an effective date."
HEARD AND HELD
SENATE BILL NO. 240
"An Act relating to the crimes of damaging an oil or gas pipeline
or supporting facility, criminal mischief, and terroristic
threatening; making conforming amendments; and providing for an
effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
No previous action to record.
WITNESS REGISTER
Wayne Rush
Department of Military and Veterans Affairs
P.O. Box 5750
Ft. Richardson, AK 99505
POSITION STATEMENT: Introduced SB 235 and SB 237.
Mike Mitchell
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions on SB 235, SB 237 and SB
238
Karen Pearson
Director of Public Health
P.O. Box 11610
Juneau, AK 99811-0610
POSITION STATEMENT: Testified on SB 237
Kristen Bomengen
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified on SB 237
Al Rothfuss
Glennallen, AK
POSITION STATEMENT: Testified against SB 237
Gary Hayden
Department of Transportation &
Public Facilities
3132 Channel Dr.
Juneau, AK 99801-7898
POSITION STATEMENT: Testified on SB 238
Jim Duncan
Commissioner, Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Introduced SB 240
Annie Carpeneti
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Introduced SB 239
ACTION NARRATIVE
TAPE 02-2, SIDE A
CHAIRMAN GENE THERRIAULT called the Senate State Affairs
Committee meeting to order at 3:34 p.m. Present were Senators
Davis, Stevens, Phillips and Chairman Therriault. The first order
of business to come before the committee was SB 235.
SB 235-EMERGENCY MANAGEMENT ASSISTANCE COMPACT
WAYNE RUSH from the division of emergency services in the
Department of Military Affairs informed the committee he is the
homeland security coordinator for the department.
CHAIRMAN THERRIAULT asked Mr. Rush if he was going to address the
bill in general and highlight the amendments afterwards.
MR. RUSH replied he would prefer to address the bill in general
then allow Mr. Mike Mitchell with the Department of Law to
address the specifics.
He explained SB 235 appeals the outdated interstate civil defense
and disaster compact, which is currently contained in AS
26.23.120 and replaces it with the Emergency Management
Assistance Compact (EMAC). This is a more current and universally
accepted agreement that facilitates disaster assistance among
member states.
Additionally, SB 235 updates AS 23.30.244 to provide worker
compensation to disaster volunteers who perform duties in another
state under EMAC and those who perform duties in Alaska under the
division of emergency services.
EMAC allows states to assist one another during times of
emergency by sending personnel and equipment for disaster relief.
It establishes a legal foundation for EMAC requests to be legally
binding so that a state that asks for help is responsible for
reimbursing all out of state costs and is liable for out of state
personnel. Those states that send aid are protected against
incurring any associated financial burden or obligation. It is
also made clear that EMAC member states are not required to send
assistance if their resources and circumstances don't allow them
to do so.
The Federal Emergency Management Agency (FEMA), National
Governor's Association, Western Governor's Association, the
National Guard and a number of other organizations endorse the
Congressionally approved EMAC and 41 states are members.
Although Alaska is capable of handling many emergencies, there
are times when disasters exceed local and state resources and
outside assistance is required. Typically this assistance comes
from federal agencies through FEMA but disasters that don't
qualify for a presidential disaster declaration are not eligible.
In those instances, EMAC would step in and provide a means to
receive interstate assistance. Even when federal assistance is
merited, EMAC assistance may be more readily available and cost
effective or it may be supplemental to federal assistance.
SENATOR PHILLIPS asked for the history of EMAC.
MR. RUSH replied it began as an association of southern states in
1996.
SENATOR PHILLIPS then asked why Alaska hasn't already joined
EMAC.
MR. RUSH said the process was begun some time ago but wasn't high
priority until after the September 11 attack occurred. Also,
Alaska has been a member to the mutual aid agreement called the
Pacific Northwest Emergency Management Arrangement since 1994 and
that has provided some measure of security. In addition to
Alaska, Oregon, Washington, Idaho, British Columbia and the Yukon
are members. However, in light of the terrorist attack on
September 11, the scope of protection should be expanded.
CHAIRMAN THERRIAULT observed the majority of the text in the bill
deals with EMAC while section 5 deals with repeal of existing
sections of AS 26. He then asked if there were any other
questions.
SENATOR STEVENS asked for an explanation of the reimbursement
mechanism between states specifically when federal disaster aid
is not merited.
MR. RUSH responded that the state that requests assistance would
reimburse the state that provides assistance, "so by signing the
agreement ahead of time, this then becomes a legal document and
the mechanisms for that don't have to be worked out during the
throes of a disaster."
SENATOR STEVENS asked if payment comes after the assistance is
provided.
MR. RUSH said that is correct.
CHAIRMAN THERRIAULT clarified that a member state governor who
requests assistance would know that payment is obligatory and
that negations would not be necessary.
SENATOR STEVENS asked if the agreement is open ended.
MR. RUSH responded there would be no cost incurred unless a
disaster occurs and assistance is requested from another state or
if another state requests assistance from Alaska.
SENATOR STEVENS asked if it is entirely at the discretion of the
governor to provide the requested assistance.
MR. RUSH said, "If available, the governor could agree to provide
the assistance that's requested."
CHAIRMAN THERRIAULT then asked for an explanation of the worker
compensation section.
MR. RUSH explained that AS 23.30.244 currently says an Alaskan
resident that is temporarily engaged in a civil defense or
disaster relief function in another state or country is
considered an employee of the State of Alaska under the current
interstate civil defense compact, 26.23.130. This is both vague
and general and the change makes the law more explicit. It says
that residents of Alaska who are volunteers serving in another
state or country and suffer injury or death may receive
compensation if they are members of a state certified defense
force that is registered with the division of emergency services.
In addition, they must be providing services under the provisions
of EMAC and not otherwise covered. Those volunteers that are
residents of Alaska and serving in the state who suffer death or
injury must be registered, not otherwise covered, serving under a
state disaster declaration and not be an employee of state
federal or local government.
The proposed legislation better protects both the individual and
the state by clearly defining the conditions of eligibility for
injury and death benefits for disaster volunteers that are
serving either in or out of state.
CHAIRMAN THERRIAULT commented the control mechanism comes from
linking a state resident that is serving out of state to the
EMAC. Also, anyone volunteering to help on a disaster must be
part of a state-certified emergency force whose services were
requested.
He asked whether the wording on page 2, line 9 that says, "(1)
the volunteer is an active roster civilian volunteer member of an
emergency service organization…" is tight enough so all will know
they must be performing duties under the auspice of that
organization. He gave an example of a registered Red Cross
volunteer moving on to lend aid in an area for which they aren't
specifically assigned or authorized. If injured, would this
person be covered because they are on the active duty membership
list?
MR. MITCHELL, Department of Law, responded via teleconference and
said the question is valid; it is unclear whether it is services
at the direction of the division of emergency services or simply
services in the course of the disaster emergency.
CHAIRMAN THERRIAULT thought it should be clear that individuals
would be covered when they are working under the auspices of a
bona fide emergency services organization and they are performing
duties they have been tasked to do. Duties an individual may
decide to do on their own are not covered. He thought (1) and (2)
could be reworded to make that more clear.
MR. MITCHELL agreed they could work together to modify the
language.
SENATOR PHILLIPS asked whether the Pacific Northwest Management
Arrangement member states of Washington, Oregon and Idaho are
members of EMAC.
MR. RUSH said Washington and Idaho are members and Oregon is not.
SENATOR PHILLIPS asked how that fit with EMAC plans.
MR. RUSH replied one of the provisions of EMAC is there may be
supplementary agreements that EMAC neither negates nor prohibits.
SENATOR PHILLIPS asked whether Oregon is in the process of
joining.
MR. RUSH didn't have an answer.
SENATOR PHILLIPS asked how membership with British Columbia and
Yukon would affect EMAC.
MR. RUSH said the relationship would not be affected. Under the
existing agreement, Alaska would be able to provide assistance to
British Columbia and the Yukon.
CHAIRMAN THERRIAULT observed the fiscal note indicates no new
expense associated with the new compact and, due to
clarification, he thought there might be the potential for fewer
worker compensation claims. He asked whether the state is self
insured for such claims under the current system or does it pay
into the current worker compensation system.
MR. RUSH said he wasn't qualified to answer that question.
CHAIRMAN THERRIAULT said he could get clarification on that
before the next hearing.
He asked Mr. Mitchell to address the technical amendments.
MR. MITCHELL said the first technical amendment refers to page 2,
line 13. Following "under" insert "AS 26.20.040 or." There are
two separate emergency response chapters in the statutes. AS
26.20 provides for civil defense response and AS 26.23 provides
for disaster response.
The second amendment refers to page 9, line 30. Following
"chapter" delete ", other than AS 26.23.136 [AS 26.23.130]," and
insert "[, OTHER THAN AS 26.23.130]," The old compact would be
repealed by this bill but the new EMAC would apply in case of
civil defense emergencies.
CHAIRMAN THERRIAULT asked for clarification on the second
amendment. He thought the current wording put in the new section
AS 26.23.136, which is the new language referring to the compact
and drops the old statutory reference, which is the section that
is deleted by Section 5.
MR. MITCHELL said that is how the bill is written and the result
of that would be that EMAC would not apply in disasters under AS
26.23 and this is directly contrary to what they are trying to
accomplish. They want it to apply in disasters, which is why they
need the technical amendment.
CHAIRMAN THERRIAULT announced they would be working with the
department to incorporate the amendments into a proposed CS on
the bill.
SENATOR PHILLIPS asked if the other 41 states are using this same
model for their agreement.
MR. RUSH said other states have adopted the model but he would
need to find out what small changes they have made.
SENATOR PHILLIPS wanted to make sure that Alaska's unique
geographic needs and conditions are met.
MR. RUSH said he would address the question.
SENATOR STEVENS asked how many states have signed since September
11.
MR. RUSH didn't know the exact number, but New York State has
since signed.
MR. MITCHELL added that according to the web site, there are 44
states that have signed with New Jersey, New York and Michigan
signing after September 11. He also pointed out that the site
www.nemaweb.org offers some background information on the EMAC.
There were no further questions or individuals to testify.
CHAIRMAN THERRIAULT held SB 235 in committee.
4:00 p.m.
SB 237-TERRORISM, CIVIL DEFENSE, AND DISASTERS
CHAIRMAN THERRIAULT asked Mr. Rush to explain the technical
amendment for the bill.
MR. RUSH explained the bill amends AS 26.20 civil defense to
authorize the governor to declare a state of emergency and
exercise emergency civil defense powers in the event of a
terrorist attack or a credible threat of an attack. It also
amends AS 26.23, the Alaska Disaster Act, to add terrorist or
enemy attack, outbreak of disease or credible threat of such
events to the definition of disaster. It also amends AS 26.23 to
give the governor the power to allocate or redistribute
pharmaceuticals and other medicines or supplies as well as the
power to access and inspect medical records as necessary to
protect public health and safety.
He said these changes are necessary because the current world
situation indicates that the governor of Alaska needs greater
flexibility to respond to and or prepare for a terrorist attack
quickly. AS 26.20, the Civil Defense Act, currently allows the
governor to declare a civil defense emergency only in the event
of an actual enemy attack. SB 237 changes AS 26.20 to allow the
governor to declare a state of emergency in the event of an enemy
or terrorist attack or credible threat of such an attack against
Alaska. This change is necessary for the state to make adequate
preparations for a threatened enemy or terrorist attack and be
able to respond just as quickly to an actual terrorist attack as
it would to an enemy attack from another country.
AS 26.23 currently allows the governor to declare a disaster
emergency for a variety of events but not specifically for actual
enemy or terrorist attacks or outbreaks of disease or the
credible threat of the same. The same reasoning for changing AS
26.20 applies for changing AS 26.23. Because bioterrorism is a
potential threat even if the state is not the actual target, the
outbreak or threatened outbreak of disease needs to be added to
the list of specific disaster emergencies.
SB 237 will allow the state to more quickly prepare for
threatened enemy and terrorist attacks, to include bioterrorism
attacks in statute and to more effectively respond if an attack
occurs.
CHAIRMAN THERRIAULT asked who determines what constitutes a
credible threat of attack and what would go into that
determination.
MR. RUSH replied a recommendation would probably go to the
governor from the Disaster Policy Cabinet.
CHAIRMAN THERRIAULT asked what the governor's options would be
once the cabinet made its recommendation.
MR. RUSH said the governor would first decide whether the threat
is credible and then a determination of action would be made.
CHAIRMAN THERRIAULT said it takes a specific event to trigger
these powers but it's a huge difference between authorizing those
powers when something has happened and authorizing them for times
when something might happen. Although the people want to empower
the governor to act when it's appropriate, there is a question of
when it is or is not appropriate. He asked if consideration was
given to include wording to spell out the criteria for
determining a credible threat. Legislators have a responsibility
to be careful and selective in giving the governor such
extraordinary powers over individuals and their property. He then
asked for the considerations made when the decision was made to
add this to the statutes.
MR. RUSH said the determination of a credible threat is largely
in the hands of the state's intelligence apparatus and then the
emergency management apparatus that includes the Disaster Policy
Cabinet. That information then goes to the governor. If the
governor were to determine there is a credible threat it does not
mean he could embrace all the powers, just the ones deemed
necessary to prepare for that particular threat.
He used the [Korean] airliner that was inbound to Anchorage on
September 11 as an example of the difficulty associated with
making determinations in a short period of time. For eleven
minutes it was not known whether the plane was under enemy
control or not. This event offered little time for a
determination to be made and in this type of circumstance, the
emergency organization is heavily relied upon to determine
whether it is or is not a credible threat.
CHAIRMAN THERRIAULT asked if there was anyone present to answer
questions on access and inspection of health care and medical
records.
MR. RUSH replied they did have someone present and there are two
parts to the bill. One deals with including allocation of
pharmaceuticals and medicines and the other with access to health
care records.
CHAIRMAN THERRIAULT said he is less concerned with the
distribution of medicines and more concerned or suspicious of
access to citizens' health records. He asked whether the medical
association was part of the discussion in developing the
legislation.
KAREN PEARSON, Director of the Division of Public Health (DPH),
Department of Health and Social Services (DHSS), agreed; the
privacy of medical records is a significant concern. She said
Kristen Bomengen from the Department of Law was part of the
deliberations on incorporation and was available for questions.
There are situations in which people may need a drug or
prophylactic administered and they aren't in a situation to sign
a release to give to their provider. This bill addresses this
type of situation and would provide for the protection of the
individual in danger and public health.
CHAIRMAN THERRIAULT responded this says nothing about an
individual being incapacitated or unable to give their release.
MS. PEARSON said time is of the essence if you need to get a
prophylactic drug or immunization to thousands of people and
there isn't time to get the signed agreement to medical records
and the records back.
SENATOR PHILLIPS asked if there is someone on central command at
Fort Richardson from Public Health and do they have a direct say
in proceedings or do they have to call Juneau for information and
authorization to act in case of emergency.
MS. PEARSON said the anthrax incident serves as a good example.
She commended the legislators for recognizing the need for a 24
hour per day 7 day per week (24/7) command prior to September 11
because this proved to be invaluable during the incident. The
epidemiologists for Public Health are located in Anchorage and
whenever a call come through about a suspicious powder or
package, the call is routed to the coordinating center that
contacts Public Health physicians for direction.
SENATOR PHILLIPS asked if the individual on duty at the time
makes the decision.
MS. PEARSON said the individual on duty has the authority to make
decisions but there is also an established communication system
so advice and additional resources are instantly accessible from
the Center for Disease Control and Prevention (CDC) in Atlanta.
SENATOR PHILLIPS asked whether the phones ever fail.
MS. PEARSON replied it was a solid system prior to September 11
but CDC has since built in additional redundancy. Public Health
in Alaska is also looking for support to build more capacity and
quicker communication capacity and more redundancy in their
system to guard against failures.
CHAIRMAN THERRIAULT questioned whether the language, "on an as
needed basis" is all Public Health needs for record access and
what kind of information they might be able to obtain from his
own chart at his family doctor. Would the language restrict when
access is available or the type of information in his chart?
MS. PEARSON said from the public health standpoint, "as needed"
means access is authorized to just that information that is
needed to deal with the situation at hand. It does not open the
entire medical file.
CHAIRMAN THERRIAULT referred to "access, inspect, and… on an as
needed basis…" and said the event would trigger access to his
chart but the wording doesn't speak to what could be looked at
inside his chart.
KRISTEN BOMENGEN from the Department of Law responded it is her
understanding there is a general disclosure of information that
is exchanged between doctors when they call one another regarding
a patient. The entire chart isn't discussed, just the "front of
the chart." She then said she isn't fully qualified to address
what information that would involve. The wording intends to mean
just information that physicians are generally accustomed to
disclosing. She then pointed out that the Division of Public
Health already has reasonable access to medical records
throughout the state. This legislation places the option of
triggering expedited access to the information in the hands of
the governor if the circumstances of the particular disaster call
for that in order to get individual information.
TAPE 02-2, SIDE B
CHAIRMAN THERRIAULT asked if anyone from the medical community
had reviewed that portion of the proposed legislation.
MS. BOMENGEN said she had no knowledge of that.
SENATOR PHILLIPS said he is most interested in the mechanics of
meeting the challenge of a terrorist attack and he wanted to know
whether the DPH is confident they can meet these challenges as
they may arise. He questioned whether systems are currently in
place to handle an anthrax threat and how such a threat would be
managed.
MS. PEARSON replied they cannot guarantee they are able to handle
any threat that arises now or next week. They are making great
strides in that direction, but there are problem areas in the
system. They are concerned about having adequate personnel in
their laboratories to run tests and enough physicians and nurse
epidemiologists for handling incoming calls and directing field
activity. Public Health also has the responsibility of supporting
the local Emergency Medical Service (EMS) by making sure they are
adequately trained and have the equipment they need.
Public Health has conducted assessments with the Department of
Military and Veterans Affairs as well as other departments and
they have response plans for current capacity but are aware they
need additional capacity.
SENATOR PHILLIPS asked for current response specifics.
MS. PEARSON said one example is the recent response to the
potential cutaneous anthrax case. A physician provider who has
seen anthrax called the coordinating center to report a potential
case. The epidemiologist, physician, and head of the laboratory
all examined the patient and took specimens for analysis. They
put the patient on prophylactic antibiotics that evening because
there was enough positive evidence they could not rule out
anthrax. At that time, "All the major players for the department
and executive branch were on the phone." The post office was
alerted and everyone knew that if there was a positive in the
morning everyone on the team needed to know his or her course of
action. They ran through the list of responsibilities and
discussed whether they had the capacity to trace the pathway
back. The good news was that the confirmation tests began to
indicate this was not anthrax. They sent samples to the CDC for
confirmation and it took a week and one half before they could
positively rule out anthrax.
SENATOR PHILLIPS asked why they couldn't confirm locally rather
than send specimens to Atlanta.
MS. PEARSON replied more sophisticated tests are available in
Atlanta.
SENATOR PHILLIPS commented CDC "sounds like a centralization
system versus a de-centralization system" and he can see
situations where CDC could be overwhelmed.
MS. PEARSON said the Anchorage laboratory is certified at the
highest level next to the reference laboratories like the CDC
which will always be there as a higher level backup than any
state could ever maintain.
CHAIRMAN THERRIAULT called for a discussion of the proposed
amendment.
MR. MIKE MITCHELL, Department of Law, said this amends AS
26.23.210 in the disaster chapter and draws a distinction between
natural disaster covered under AS 26.23 and disaster caused by
attack which is covered under the little used, 1950's civil
defense statute AS 26.20. All disaster response in the last
several decades has been authorized under AS 26.23 and in the
event of a terrorist attack or credible attack they want AS 26.23
to apply.
CHAIRMAN THERRIAULT asked for questions or further testimony.
AL ROTHFUSS testified via teleconference against the bill. In his
opinion, this law infringes on individual rights, freedoms and
privileges. He said, "It is not Alaska's responsibility to defend
me in all cases. It is up to me to defend me. All Alaska has to
do is give me the information."
SENATOR PHILLIPS asked for an example of how SB 237 infringes on
individual rights.
MR. ROTHFUSS replied the governor should not have the right to
move him wherever he wants to move him and he should not have the
right to confiscate properties. "If we give this governor all
these powers what are you guys going to do? What do we need you
for? We don't. That's what you're down there for is to do these
things."
SENATOR PHILLIPS asked for a page and line upon which to focus.
MR. ROTHFUSS cited from the bottom of page 2 on to the top of
page 3.
CHAIRMAN THERRIAULT advised Mr. Rothfuss the text on the bill
that is not underlined and bolded is current law. Changes on page
one give the governor the power to act both after an attack and
in the face of a credible attack rather that just afterwards.
MR. ROTHFUSS asked whose definition would be used to identify a
credible threat.
CHAIRMAN THERRIAULT said it is a legitimate question and one he
raised himself. He thanked him for his testimony.
There being no further questions, the bill was held in committee.
SB 238-SECURITY OF FACILITIES AND SYSTEMS
MR. MIKE MITCHELL, bill drafter from the Department of Law,
explained section 1 would authorize the Department of
Transportation and Public Facilities (DOTPF) to impose
administrative penalties for violations of an airport's security
program. These penalties would track what the Federal Aviation
Administration (FAA) can impose on the state. Currently the state
can only pass penalties along to those with state contracts
instead of directly penalizing the security violators.
Section 2 amends the exceptions to the public records statute, AS
40.25.120, to exclude security plans, programs or procedures and
records pertinent to the same from publicly accessible records.
Certain criteria would have to be met to provide some limits on
what can be withheld from public disclosure. The drafters tried
to balance the public's right to know with the need to protect
sensitive security information.
Section 3 amends AS 44.17 to provide for the adoption of security
plans or procedure by order rather than regulation and would not
be subject to the Administrative Procedure Act (APA) that
requires a public notice, review, and comment process. For this
section to apply, the executive officer must certify that
compliance to APA could: (A) be expected to interfere with
implementing or enforcing a security plan; (B) would disclose
confidential guidelines for investigations or enforcement and
disclosure could risk circumvention of the law; or (C) could be
expected to endanger the life or physical safety of an
individual.
CHAIRMAN THERRIAULT pointed out the word "or" means one of the
three criteria must be met, not all three.
MR. MITCHELL agreed.
CHAIRMAN THERRIAULT asked whether section 2 is patterned after
current law that says, "When we build a new prison we don't have
to disclose the public documentation of the electronic security
system."
MR. MITCHELL said he isn't aware that it is patterned after that
law, but it would cover that scenario as well as other security
plans or procedures.
CHAIRMAN THERRIAULT called for questions.
SENATOR STEVENS asked if the recommendations came out of the
Terrorist Disaster Policy Cabinet.
th
MR. MITCHELL said they did and are included in the November 12
report to the governor.
SENATOR STEVENS then asked if they were working from a template
from the Homeland Defense Cabinet and how they decided what
portions of statute should be changed.
MR. MITCHELL replied these were the recommendations that came out
of the various subcommittees of the Disaster Policy Cabinet. The
subcommittees met separately then submitted their suggestions to
the cabinet as a whole.
GARY HAYDEN, Department of Transportation and Public Facilities
(DOT/PF), interjected clarification of section 1 because it
pertains to DOT/PF in particular. As the owner and operator of
airports, the State of Alaska must comply with certain security
procedures. They are also responsible for ensuring that everyone
on airport property complies with the security process and
compliance requirements set out in section 107 of the Code of
Federal Register. Since September 11, the FAA has issued many
emergency orders and directives, but some of the airport
leaseholders and some individuals who work at the airports have
not been willing to change the way they conduct their business or
where they park their cars. In cases of non-compliance, the FAA
finds the state in violation of security directives and the state
is fined. The state's only recourse has been to pay the penalty
then try to get reimbursement by applying pressure to the tenant
and/or contractor under applicable contracts. Section 1 would
allow DOT/PF to pass the penalty directly to the violator.
SENATOR STEVENS said causing an airport to be out of compliance
with FAA directives is very serious. He then asked if this gives
the state the authority to charge the tenants so they can go back
and meet the requirements.
MR. HAYDEN said that isn't the case. He then cited a parking
violation example in which a lessee continued to park in an area
that is not restricted due to the increased security
requirements. Law enforcement officials were unwilling to take
action to enforce the parking restriction and the only recourse
DOT had was to talk tough and try to coerce compliance. If FAA
had been in town that day they could have fined DOT/PF up to
$1,000.00 for the infraction.
Each airport has its own individual security plan drawn from the
security measures coming from the FAA and any airport found in
violation of their security plan will be fined. Section 1 allows
DOT/PF to pass the fine on to the violator.
SENATOR PHILLIPS expressed dismay that the state doesn't have
enforcement authority of FAA directives at airports.
MR. HAYDEN said the process of invoking compliance of FAA
directives through the lease agreement is a long and
unsatisfactory process.
SENATOR STEVENS asked if it is correct that each airport has its
own security plan and not a statewide plan for implementation at
all airports.
MR. HAYDEN explained section 107 of the Federal Register sets out
a skeleton national security plan for certified airports. Alaska
has 19 certified airports that fall into various categories with
different requirements for each category. FAA issues emergency
orders and directives to flesh out the skeletal plan. One of the
parts of 107 is that every airport has an individually designed
security plan. This identifies such things as where fences are
placed, which areas are secure, patrol schedules and parking
configuration. All these individual plans meet the national
standards so the local DOT/PF employee knows what to do at the
airport he or she is charged with managing and operating.
SENATOR STEVENS asked if section 1 simply gives authority to pass
through the fine of the authority to implement the fine.
MR. HAYDEN said it is his understanding that DOT/PF would pass
the fine through to the violator; they would not initiate the
fine.
MR. MITCHELL advised he does not read it as restricted to a pass
through. It could authorize an independent levy of a fine.
SENATOR STEVENS remarked that is his concern.
CHAIRMAN THERRIAULT advised there is no current authority to
independently levy a fine.
MR. HAYDEN agreed.
CHAIRMAN THERRIAULT pointed out that the introductory letter
speaks of the ability to pass fines on. However, if it actually
creates an independent authority for DOT/PF to levy fines
independent of the FAA, the committee needs to know that.
MR. HAYDEN agreed that point needs clarification.
SENATOR PHILLIPS continued to express dismay that some vendors
aren't willing to cooperate and work together during a time of
national emergency. He thought DOT/PF should be asking for
enforcement tools.
MR. HAYDEN agreed, but said not everyone has chosen to
voluntarily comply with post September 11 FAA directives.
SENATOR PHILLIPS didn't think DOT/PF should have to pay for the
violations in the first place.
SENATOR STEVENS said there are two issues. One is enforcement and
the other is the ability to levy the fine. He agreed with passing
the fine along to the violator but he is concerned about giving
new authority to a regional administrator to levy a fine
independently.
MR. HAYDEN responded being able to tell a violator they would be
required to pay the fine that FAA levies against the state would
be leverage they don't have now.
CHAIRMAN THERRIAULT established there is general agreement they
don't want to give DOT/PF the authority to issue fines absent any
FAA interaction. He added the justification for section 3 is
unclear and he's unsure he could support it because it
circumvents the public regulatory process and this would apply to
each state agency, board, or commission with regulation adoption
authority.
MR. HAYDEN said they are currently rewriting security plans for
all airports and there are certain lessee requirements that will
be written into those plans. They don't go through a public
process or notice period to adopt those security plans. He asked
Mr. Mitchell to speak to the issue of security plans for other
agencies.
CHAIRMAN THERRIAULT asked Mr. Mitchell for justification.
MR. MITCHELL replied he didn't draft this provision but believes
the limiting language comes from the narrow topic that is related
to the adoption of a plan, program or procedure for establishing
maintaining or restoring security. Additional limitations come
from the certification of consequences if the procedures were not
followed.
CHAIRMAN THERRIAULT replied that an example would be the medical
board could adopt by order a requirement that the doctors act in
response to a potential bioterror attack and neither those
doctors nor the general public would be able to have input in
that decision. He stated a need to have a better understanding of
the scope of authority requested and the limiting factors.
MR. MITCHELL replied he would do further inquiry but his
understanding is that scenario would not fall within section 3,
rather it is directed at facilities plans.
CHAIRMAN THERRIAULT asked for clarification before the next
meeting.
The bill was held in committee.
SB 239-STATE EMPLOYEES CALLED TO MILITARY DUTY
JIM DUNCAN, Commissioner of Administration, explained the bill is
a result of the September 11 attack and it gives the governor
administrative order authority to ensure that state employees who
are members of the reserve and auxiliary military units will not
be financially penalized when called to active duty. The
authority is discretionary, could cover both pay and benefits and
would probably be used infrequently.
Once an order is issued, the Division of Personnel would issue
emergency regulations to implement the provisions of the
administrative order. The governor would choose whether salary,
health or retirement benefits would be affected.
CHAIRMAN THERRIAULT asked whether discretionary applied from
emergency to emergency, to category of employee or to individual
employees.
COMMISSIONER DUNCAN said the real discretion is for emergency to
emergency but it could apply to a certain category of employee
such as the Alaska National Guard. He added other states have
given their governors the authority to make such decisions.
5:00 p.m.
CHAIRMAN THERRIAULT remarked short-term call outs probably don't
need the adjustment and individuals in the guard should
anticipate some level of callout.
He noted the fiscal note indicated costs are covered by
additional vacancy factors or use of appropriated funds. However,
once payments are made for a period of six months, a temporary
employee would probably need to be hired which raises questions
about the financial implications.
COMMISSIONER DUNCAN said some of the positions could be filled on
a temporary basis but the assumption is that the agencies
impacted could absorb the increased cost through vacancy factor
or other means. For a call out that lasts six months or longer,
it might require a request for supplemental appropriation for an
agency or department.
CHAIRMAN THERRIAULT asked how a National Guardsman employed in
the private sector is treated.
COMMISSIONER DUNCAN said other states have handled the situation
a variety of ways and those comparisons are available. Although
they haven't surveyed the private sector, they do have some
information on Costco's policy.
CHAIRMAN THERRIAULT asked for private sector information.
There being no additional questions or testimony, SB 239 was held
in committee.
SB 240-TERRORISTIC THREATENING/PIPELINE DAMAGE
ANNIE CARPENETI with the Criminal Division of the Department of
Law informed members of the meeting district attorneys throughout
the state held to discuss Title 11 and associated issues. The
meeting resulted in the following suggestions for amending Title
11.
· Increase the crime for intentionally damaging an oil or gas
pipeline or supporting facility from a class B felony to a
class A felony.
· Tampering with an oil or gas pipeline or supporting facility
would be raised from a class C felony to a class B felony.
It also adds the offense of making a false threat to damage
an oil or gas pipeline or supporting facility to terroristic
threatening in the second degree, which would be a class C
felony.
· Tampering with water, including a public or private water
supply would be the same class B felony as tampering with
food, drugs, cosmetics or a container for the same.
· It would be a Class B felony to send, deliver or attempt to
solicit the sending or delivery of an imitation chemical or
biological substance with intent to frighten or cause
specific harm or inconvenience such as evacuation of a
building or means of public transportation.
· Making a false threat to send an imitation biological or
chemical substance that is harmful to humans to terroristic
threatening in the second degree, which is a class C felony.
She went on to explain the conforming amendments.
Section 1 adds terroristic threatening in the first
degree, which prohibits making or sending imitation
chemical of biological substance with the intent to
cause fear or physical injury to one of the predicate
crimes that raises stalking in the second degree to
stalking in the first degree. Terroristic threatening
is already included in that bill and this is a
conforming amendment.
CHAIRMAN THERRIAULT asked if the wording: "or an airplane or
helicopter, with reckless disregard for the risk of harm to or
loss of the property;" found on page 3, lines 1 and 2 is there
because that section is being rewritten.
MS. CARPENETI responded it is raised from criminal mischief in
the second degree to criminal mischief in the first degree and
includes tampering with an airplane or helicopter.
CHAIRMAN THERRIAULT observed it is repealed by section 12.
MS. CARPENETI replied what is presently in current law is
repealed because it is brought up to a higher-level offense.
SENATOR PHILLIPS referred to the addition of food and water on
the top of page 3 and asked if air was discussed with particular
reference to crop dusters.
MS. CARPENETI said she didn't participate in the discussions of
Title 11 and didn't know whether that was discussed.
SENATOR PHILLIPS then asked about ventilation systems.
MS. CARPENETI agreed they were good ideas and she would be happy
to give them some thought.
SENATOR PHILLIPS thought air was important.
CHAIRMAN THERRIAULT asked for other questions or additional
testimony.
He ordered SB 240 held in committee.
CHAIRMAN THERRIAULT adjourned the meeting at 5:15 p.m.
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