Legislature(2001 - 2002)

01/24/2002 03:34 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ 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                                                              
     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
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                                                              
SENATOR  PHILLIPS  then asked  why  Alaska hasn't  already  joined                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
CHAIRMAN  THERRIAULT  asked  who  determines  what  constitutes  a                                                              
credible  threat   of  attack   and  what   would  go   into  that                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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.                                                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
   · 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                                                              
   · 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                                                              
He ordered SB 240 held in committee.                                                                                            
CHAIRMAN THERRIAULT adjourned the meeting at 5:15 p.m.                                                                          

Document Name Date/Time Subjects