Legislature(2005 - 2006)CAPITOL 17
01/18/2006 03:15 PM House LABOR & COMMERCE
| Audio | Topic |
|---|---|
| Start | |
| HB338 | |
| HB93 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 93 | TELECONFERENCED | |
| = | HB 295 | ||
| *+ | HB 338 | TELECONFERENCED | |
HB 338-CERTIF. OF FITNESS FOR EXPLOSIVE HANDLERS 3:22:59 PM CHAIR ANDERSON announced that the first order of business would be HOUSE BILL NO. 338, "An Act relating to applications, qualifications, and criminal history and background checks for a certificate of fitness for explosives handlers; and providing for an effective date." SHARALYN "SUE" WRIGHT, Staff to Representative Chenault, House Finance Committee, Alaska State Legislature, stated that the Department of Labor & Workforce Development (DLWD) requested the legislation and would therefore be presenting HB 338. 3:24:01 PM GREY MITCHELL, Director, Central Office, Division of Labor Standards and Safety, Department of Labor & Workforce Development (DLWD), stated that he is in support of HB 338. He informed the committee that the division licenses explosive handlers in the state. There are currently about 170 licensed explosives handlers in Alaska, and the Division issues 50-70 new licenses each year. It is a three-year license. He stated that the intention of the legislation is to create a system that would allow the Division to check for national criminal records of the applicants. [The background check] would also apply to anyone renewing his or her license. He explained that " ... To us it just made good common sense to do that, with the ... concerns that are going around the country right now, and we have these workers who are working in close contact with explosives; we want to make sure that they don't have records that would cause concerns for us." 3:25:21 PM CHAIR ANDERSON informed the committee that there was a proposed amendment, which read [original punctuation provided]: Section 7 This act would not apply to people working under the jurisdiction of the U.S. Department of Labor, Mine Safety and Health Administration. MR. MITCHELL stated that he was familiar with the proposed amendment. CHAIR ANDERSON explained that the proposed amendment would add a new section and would address concerns of the Alaska Miners Association. MR. MITCHELL, in response to a question, stated that the proposed amendment is designed to clarify that HB 338 was not intended to extend to miners. He explained that miners are covered under the U.S. Department of Labor (USDL), Mine Safety and Health Administration (MSHA) jurisdiction, and so the department DLWD doesn't have any authority over them. He added that the proposed amendment puts this into writing. REPRESENTATIVE GUTTENBERG asked if the proposed amendment would exclude gravel extraction. MR. MITCHELL responded that any mining covered under the MSHA's jurisdiction would be covered. REPRESENTATIVE GUTTENBERG remarked that taking a cliff face down to remove it and then reuse it seems to be covering both mining and extraction. He asked if highway construction would be considered mining because, in this area, they seem to be the same. MR. MITCHELL agreed that this is probably right, and that certain projects would be so closely tied that it would require certification in both areas. 3:31:26 PM CLIFF HUSTEAD, Chief, Consultation & Training, Occupational Safety & Health, Division of Labor Standards & Safety, Department of Labor & Workforce Development (DLWD), noted that he would be representing the Occupational Safety & Health Administration (OSHA) and stated that it was never the intent to include miners in the regulation. 3:32:12 PM MR. HUSTEAD, in response to an earlier question from Representative Guttenberg, stated that when explosives handlers are dealing with gravel, it would fall under the MSHA's jurisdiction. He explained that if it was for a logging road or something of that nature, and "they" were using the fill material to build road, then it would fall under the DLWD's jurisdiction. REPRESENTATIVE GUTTENBERG asked if there was a connection between having a "handler's license" and having a "business license". He said: One of the concerns that I hear from explosives handlers is, oftentimes when they go out on a job ... the [contractors] themselves don't have ... an explosives license, and they want the handler to have the license. And then it becomes an issue of liability and who's carrying the liability insurance for the event. So, sometimes you're just putting the handler out of business, or not, but you're certainly putting the liability on that person, and they don't have control of the worksite. MR. HUSTEAD responded that the blaster would only have to have a business license if he/she owned the company. If working for a company as an employee, he/she would not be required to have a business license. REPRESENTATIVE GUTTENBERG asked if the 10-year "look-back" for felonies is conforming to the federal standard. MR. HUSTEAD answered that Alaska is the only state that has a look back provision. He added that [OSHA] would like to expand the look back provision to the rest of the nation, because the individuals that it applies to will go from state to state, and [OSHA] would like to know if the person has committed a felony in another state. REPRESENTATIVE GUTTENBERG asked how long it takes to get the results of a background check. MR. HUSTEAD replied that normally the results are received the same day. REPRESENTATIVE GUTTENBERG asked if this was for a fingerprint background check. MR. HUSTEAD confirmed that it is. REPRESENTATIVE CRAWFORD asked if the background check was for any felony. CHAIR ANDERSON commented that some felonies would apply more than others, and asked how this would work. MR. MITCHELL, in response to questions said that the 10-year look-back period does apply to any felony, and there is an appeal process. If the felony doesn't relate to a person's ability to handle explosives safely, a person would be able to appeal to the commissioner's office. He added that the department does not have any regulations in place, because the statute is new. CHAIR ANDERSON commented that he would like to see "criminal history" and the section regarding the 10-year felony look-back provision removed, adding that he does not see the relevance. REPRESENTATIVE ROKEBERG asked if there is a provision for current license holders to be "grandfathered in." MR. MITCHELL replied that there is no such clause in the bill. He explained that the [license holder's situation] would be reviewed at the time of renewal. He said: Let's say there's someone out there who has a felony record ... within the last ten year, that's currently got a blasters license; they ... would be denied and then have to go through the appeal process ... to maintain their license upon renewal. REPRESENTATIVE ROKEBERG said: You're making the assumption that there is a grandfathering by saying a current licensee wouldn't have to apply for a new license ... or certificate of fitness until it expired. There seems to be a little ambiguity here about that. REPRESENTATIVE ROKEBERG added that usually there are transition provisions when requirements are changed, and that he would like to get a legal [opinion on this issue]. REPRESENTATIVE KOTT said: "The way I read it, in Section 2, it says: ... 'applicant for the issuance or renewal of a certificate'. So, it seems to me that if you had a license that was expiring a year and a half from now, that I don't have to subject myself to fingerprints and a background check until I come up for renewal." He asked Mr. Mitchell if this is correct. MR. MITCHELL confirmed that this is correct. 3:41:56 PM REPRESENTATIVE ROKEBERG asked if the amendment should be expanded to cover the Bureau of Alcohol, Tobacco & Firearms (ATF). He also asked how the department would verify if someone already has a certificate in another state. MR. HUSTEAD stated that the ATF mainly regulates the storage and transportation of explosives, and the department does not believe that it is necessary to add the ATF to the amendment. REPRESENTATIVE ROKEBERG asked if ATF issues any type of certificate of fitness. MR. HUSTEAD answered that it does not; only the MSHA issues a certificate. MR. MITCHELL, in response to questions from Representative Kott, stated that the number of explosives handlers is not growing rapidly, and that the cost of the background check would be $35, plus an additional $18 for the national background check. He added that there may be a fee for fingerprinting, depending on where the fingerprinting is done. REPRESENTATIVE KOTT asked if the applicant would need to submit to a background check each time the license is up for renewal. MR. MITCHELL confirmed that this is correct. REPRESENTATIVE KOTT expressed concern about the 10-year look back. REPRESENTATIVE LYNN commented that a felony is a serious issue, and that explosives are dangerous. He expressed approval for the way that the legislation is currently written. REPRESENTATIVE GUTTENBERG asked if Section 1, Paragraph (5) which says, "other information that the department requires", includes interviews with applicants. He explained that he has heard concerns regarding the length of time it takes to receive a federal permit, adding that the application process for a federal permit includes an in-person interview and can take up to five months. MR. MITCHELL explained that Paragraph (5) is part of current statute, and was simply renumbered as a result of adding another Paragraph (4). He stated his belief that the current regulations ask for additional information from the applicant, and that there is no intention of requiring an in-person interview. REPRESENTATIVE KOTT commented that committing numerous misdemeanors is also inappropriate behavior, and that someone may have committed a crime 10 years ago that was a misdemeanor at the time, but is now a felony. He added that when he was in the military, they would have people fill out the forms for a background check and it would take anywhere from two to four months, depending on the extent of the check. He stated that oftentimes, even though there was nothing returned in the background check that would indicate the person had committed a crime, they would have field representatives go out and interview neighbors. He asked what the reaction of the department would be if they were to have a field representative interview neighbors or friends and the representative discovered that the person was known to do illegal drugs. He stated that even if the person hadn't been caught, it [should] be a concern. MR. MITCHELL responded that if those types of concerns were brought to the attention of the department, they would have the authority under current regulations to revoke the explosives handler's license, and hold hearings concerning the allegations. He explained that in this case, the background check would consist of the Department of Public Safety contacting the Federal Bureau of Investigation (FBI) and asking it to check the national criminal information system database for any criminal history of the person in question. CHAIR ANDERSON pointed out that on page two, line 24, it states that, "The department may not find an applicant competent", and commented that this means it's not a guarantee that the applicant shall receive a certificate. MR. MITCHELL confirmed that this is correct. REPRESENTATIVE LEDOUX commented that as used in the bill, the term felony is both too broad and too narrow, explaining that it does not include some misdemeanors that might show an inability to control one's temper, while including some felonies that would not affect one's ability to handle explosives. MR. MITCHELL replied that this statement is fairly accurate, adding that regulations are in the works right now, in an attempt to firm up what a statewide background check looks for in terms of misdemeanors. He commented that certain crimes, such as domestic violence, should limit a person's ability to have an explosives handler's license. Mr. Mitchell added that this is designed to apply in a broad sense, and looks at nationwide data. REPRESENTATIVE ROKEBERG asked if this applies to fireworks. MR. HUSTEAD responded that it does not, and that fireworks are not considered "construction activity." REPRESENTATIVE ROKEBERG pointed out AS 08.52.070, which reads: Sec. 08.52.070. Persons exempt. Persons employed in mining operations as defined in AS 27.20.061 are exempt from the provisions of this chapter. REPRESENTATIVE ROKEBERG commented that because this language is already in statute, he did not know that the proposed amendment is needed. REPRESENTATIVE GUTTENBERG commented that the legislation is only regulating people who are licensed and looking for a legitimate job in the industry. He added that the people who are "up to mischief" would still be able to walk into a store and buy the supplies. REPRESENTATIVE CRAWFORD stated that finger printing applicants would be a good idea. He commented that he understands the intent of the legislation, but feels that the current wording is "overkill." MR. MITCHELL replied that in addition to the "terrorist threat," the department is also trying to protect the public from those individuals who may act recklessly. He added that it is a "fairly big job" to make sure that the department is acting responsibly when issuing licenses. 4:04:46 PM REPRESENTATIVE CRAWFORD said: "I don't know that it's up to us to continue to ... punish somebody for something that they have supposedly paid their debt to society for." 4:05:24 PM CHAIR ANDERSON stated that the proposed amendment would not be offered in the committee, as the concerns are already addressed in current statute. 4:06:35 PM REPRESENTATIVE GUTTENBERG stated that having spent his life working in this industry, he agrees with Representative Crawford, adding that he would prefer that any necessary changes be made in the House Labor and Commerce Standing Committee. CHAIR ANDERSON added that he agrees with Representative Crawford in regard to, "how far do you take this." REPRESENTATIVE CRAWFORD expressed concern about drafting an amendment "on the fly," adding that he would like a chance to work with the department to draft new language. REPRESENTATIVE ROKEBERG commented that the current felony statutes are onerous in some areas, and HB 338 may conflict with them. He added that it would be a good idea to look into this although he is not sure how this would be done. 4:09:42 PM REPRESENTATIVE LYNN commented that it might be better to move the bill from committee and have an amendment drafted before it is scheduled for its hearing in the House Finance Committee. CHAIR ANDERSON replied that there are four committee members with concerns, adding that it would be best to hold the bill over. REPRESENTATIVE KOTT, referring to Section 4, line 24, stated that after further thought, "may not" clearly states that there is no choice, adding that "shall not" would also be appropriate. REPRESENTATIVE CRAWFORD stated that he would work with the sponsor to try and come up with different language. REPRESENTATIVE KOTT commented that it would be difficult to make the bill work for all the different situations that could possibly come up. CHAIR ANDERSON relayed that HB 338 would be held over.
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