Legislature(2001 - 2002)
02/12/2002 03:40 PM Senate STA
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 238-SECURITY OF FACILITIES AND SYSTEMS
CHAIRMAN THERRIAULT announced there was a proposed CS. In the
original bill there was discussion in Section 1 regarding
granting the Department of Transportation and Public Facilities
(DOT/PF) the power to levy fines at airport facilities. This
section was dropped. In Section 3 there was concern about the
language exempting orders from the Administrative Procedures Act
(APA) to boards and commissions that have regulation adoption
authority. Language granting the authority to exempt orders from
APA was dropped.
FRANK RICHARDS, maintenance engineer for the DOT/PF, apologized
for the confusion within the DOT/PF for not providing
clarification to some of the questions raised at the last hearing
of the bill.
He said he would like to address Sections 1 and 3 as they were
written in the original bill and perhaps provide clarification to
Section 1 so members could understand, from the department's
perspective, where they have had difficulties administering the
Federal Aviation Administration (FAA) mandated security programs.
The FAA requires 18 airports in Alaska to have security programs.
Two of those airports are in Anchorage and Fairbanks and the
remaining 16 make up the rural system. There is not an on site
FAA security coordinator at these rural airports so the airport
operator is responsible for administering the security programs.
When there are violations of the programs, the airport is held
responsible. Under the new revisions to part 107, which went into
effect in November 2001, the FAA now has the ability to cite the
airport and individual violators.
Although the DOT/PF is charged with administering the security
programs, they have no enforcement abilities. If they observe a
violation they have no ability to deter those violations in the
future.
Where law enforcement officers are available, they are able to
charge violators with a misdemeanor with a maximum $500.00
criminal violation. SB 238 would allow them to impose civil
administrative penalties of up to $1,100.00 per incident.
Currently, the FAA may assess a civil penalty of up to $1,100.00
against the DOT/PF for violating any of the security programs.
Although the FAA considers the DOT/PF to be the violator, nearly
all violations are the result of action by an employee of a
tenant or contractor. At the international airports where they
have law enforcement capabilities, they are able to restrict a
violator's access badge, but they are not anxious to do this
because it essentially takes away their livelihood.
They would like to identify violations and then attach
appropriate fines to those violations. The scale would be
graduated and the most serious violators would be levied the
$1,100.00 fine.
Rural airports receive security inspections about once a year so
for the majority of the time there is no federal oversight.
Nonetheless, the requirements are in place at all times. It is
their hope that the bill with Section 1 would move forward to
help them provide a better operation of the airport system.
MR. RICHARDS brought up the treatment of Section 3 in the
proposed CS.
CHAIRMAN THERRIAULT stated he spoke with Senator Cowdery and
advised him that the bill would probably move to the
Transportation Committee without Section 3. He recommended that
Mr. Richards argue that transportation related issue before that
committee.
He then disagreed with the DOT/PF's reluctance to remove an
individual's security badge for security violations. This is an
effective method of getting compliance and individuals that have
compliance difficulties might be better off in a different type
of job. He didn't see a problem using that available mechanism.
MR. RICHARDS replied it is a matter of progressive discipline. If
an employee is escorting someone without a badge and that person
leaves a secure door open, the person with the badge is
responsible for that act. Taking that individual's badge away
limits their access to a secure area and therefore limits them
from doing their job. They felt they that if they were able to
levy a civil penalty, that would limit their unacceptable
behavior without putting them out of a job. Across the country,
it is those minor violations that are the most prevalent security
breaches.
CHAIRMAN THERRIAULT asked whether the state couldn't pass a fine
down to the contractor if the violator was an employee of that
contractor.
MR. RICHARDS agreed they could do so. Under the new part 107 for
airport security, the FAA is able to cite the airport as well as
the individual. The individual includes not only the person but
the employer.
CHAIRMAN THERRIAULT asked if other committee members had
questions regarding the section the proposed CS drops from the
bill.
SENATOR STEVENS said he was still unclear why he might want to
return to the original version of the bill. Everything is already
in place and Section 1 simply gives authority to the state to
levy a fine on FAA requirements. This is why he requested that
Section 1 be removed originally. It gives authority to levy a
fine based on an FAA requirement not a state requirement. The
contract the DOT/PF has with the tenant says that if they are in
violation of an FAA code they will pay. He's in full agreement
with that, but doesn't understand why the DOT/PF still wants the
authority to levy a fine when there is already a criminal fine, a
civil fine and the ability to remove a violator's badge.
MR. RICHARDS replied the major problems have come from the rural
airports that have no law enforcement officers in security
positions. Normally, there are just three or four individuals at
these small airports and they perform security functions, airport
rescue and fire fighting functions and equipment operation. They
are charged with administering security programs and at times it
is difficult for them when they have airport tenants with badges
who have been given security training but they are not complying.
CHAIRMAN THERRIAULT asked if they are state employees.
MR. RICHARDS told him state employees are administering the
security program, but it's the tenant or general public that may
violate the security plan.
SENATOR STEVENS said that's his point of concern. Each of the
regional operators would have the authority to levy a fine based
on an FAA regulation not a state regulation. There's already a
contract in place with the tenant that says if you violate you
will be subject to FAA sanctions. This gives the regional
operator the ability to levy a fine based on his interpretation
of a violation of a federal law and circumvents the contract that
is already in place. He recommended moving the CS as drafted.
CHAIRMAN THERRIAULT said he drafted the CS so there could be
forward movement on parts of the bill they could agree upon. Mr.
Richards would have the opportunity to argue his point before the
Senate Transportation Committee.
He asked Mr. Steiner from the Anchorage Attorney General's office
whether he had something to add to the discussion.
JOHN STEINER testified via teleconference that his priority tasks
are to represent the Anchorage and Fairbanks International
Airports but he also provides assistance and support to the rural
airports. In that capacity, he is very familiar with the security
situation. One of the reasons the civil penalties were requested
was because the FAA has traditionally penalized the State of
Alaska whenever there is a tenant or employee security violation
and these violations go down on the state's record.
SIDE B
Even though Senator Stevens was correct in stating that the FAA
can now penalize individuals, they believe the airport will also
be penalized for any contractor violation because those
individuals are carrying out the airport security plan. One of
the difficulties with the current situation is that the penalties
are either very onerous or very cumbersome. There is no question
the airport needs a mechanism to ensure that violations such as
security doors being left ajar don't happen; but for someone to
lose their job or be thrown in jail because of such an infraction
is too harsh. Graduated penalties would be more effective and
easier to use.
There were no questions for the witness.
SENATOR STEVENS made a motion to adopt 22-GS2091\C Bannister
2/12/02 as the working document. There was no objection.
CHAIRMAN THERRIAULT stated he had no prepared amendments to
either the original bill or the CS and there was a zero fiscal
note from the DOT/PF. He noted the title of the bill changed but
it is a little broader making it possible for Section 1 to be
reinserted in a subsequent hearing in another committee.
He asked for the will of the committee.
SENATOR STEVENS made a motion to move CSSB 238(STA) and the
fiscal note from committee with individual recommendations. There
being no objection, the bill moved out of committee.
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