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
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.
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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.
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