SB 238-SECURITY OF FACILITIES AND SYSTEMS  MR. MIKE MITCHELL, bill drafter from the Department of Law, explained section 1 would authorize the Department of Transportation and Public Facilities (DOTPF) to impose administrative penalties for violations of an airport's security program. These penalties would track what the Federal Aviation Administration (FAA) can impose on the state. Currently the state can only pass penalties along to those with state contracts instead of directly penalizing the security violators. Section 2 amends the exceptions to the public records statute, AS 40.25.120, to exclude security plans, programs or procedures and records pertinent to the same from publicly accessible records. Certain criteria would have to be met to provide some limits on what can be withheld from public disclosure. The drafters tried to balance the public's right to know with the need to protect sensitive security information. Section 3 amends AS 44.17 to provide for the adoption of security plans or procedure by order rather than regulation and would not be subject to the Administrative Procedure Act (APA) that requires a public notice, review, and comment process. For this section to apply, the executive officer must certify that compliance to APA could: (A) be expected to interfere with implementing or enforcing a security plan; (B) would disclose confidential guidelines for investigations or enforcement and disclosure could risk circumvention of the law; or (C) could be expected to endanger the life or physical safety of an individual. CHAIRMAN THERRIAULT pointed out the word "or" means one of the three criteria must be met, not all three. MR. MITCHELL agreed. CHAIRMAN THERRIAULT asked whether section 2 is patterned after current law that says, "When we build a new prison we don't have to disclose the public documentation of the electronic security system." MR. MITCHELL said he isn't aware that it is patterned after that law, but it would cover that scenario as well as other security plans or procedures. CHAIRMAN THERRIAULT called for questions. SENATOR STEVENS asked if the recommendations came out of the Terrorist Disaster Policy Cabinet. th MR. MITCHELL said they did and are included in the November 12 report to the governor. SENATOR STEVENS then asked if they were working from a template from the Homeland Defense Cabinet and how they decided what portions of statute should be changed. MR. MITCHELL replied these were the recommendations that came out of the various subcommittees of the Disaster Policy Cabinet. The subcommittees met separately then submitted their suggestions to the cabinet as a whole. GARY HAYDEN, Department of Transportation and Public Facilities (DOT/PF), interjected clarification of section 1 because it pertains to DOT/PF in particular. As the owner and operator of airports, the State of Alaska must comply with certain security procedures. They are also responsible for ensuring that everyone on airport property complies with the security process and compliance requirements set out in section 107 of the Code of Federal Register. Since September 11, the FAA has issued many emergency orders and directives, but some of the airport leaseholders and some individuals who work at the airports have not been willing to change the way they conduct their business or where they park their cars. In cases of non-compliance, the FAA finds the state in violation of security directives and the state is fined. The state's only recourse has been to pay the penalty then try to get reimbursement by applying pressure to the tenant and/or contractor under applicable contracts. Section 1 would allow DOT/PF to pass the penalty directly to the violator. SENATOR STEVENS said causing an airport to be out of compliance with FAA directives is very serious. He then asked if this gives the state the authority to charge the tenants so they can go back and meet the requirements. MR. HAYDEN said that isn't the case. He then cited a parking violation example in which a lessee continued to park in an area that is not restricted due to the increased security requirements. Law enforcement officials were unwilling to take action to enforce the parking restriction and the only recourse DOT had was to talk tough and try to coerce compliance. If FAA had been in town that day they could have fined DOT/PF up to $1,000.00 for the infraction. Each airport has its own individual security plan drawn from the security measures coming from the FAA and any airport found in violation of their security plan will be fined. Section 1 allows DOT/PF to pass the fine on to the violator. SENATOR PHILLIPS expressed dismay that the state doesn't have enforcement authority of FAA directives at airports. MR. HAYDEN said the process of invoking compliance of FAA directives through the lease agreement is a long and unsatisfactory process. SENATOR STEVENS asked if it is correct that each airport has its own security plan and not a statewide plan for implementation at all airports. MR. HAYDEN explained section 107 of the Federal Register sets out a skeleton national security plan for certified airports. Alaska has 19 certified airports that fall into various categories with different requirements for each category. FAA issues emergency orders and directives to flesh out the skeletal plan. One of the parts of 107 is that every airport has an individually designed security plan. This identifies such things as where fences are placed, which areas are secure, patrol schedules and parking configuration. All these individual plans meet the national standards so the local DOT/PF employee knows what to do at the airport he or she is charged with managing and operating. SENATOR STEVENS asked if section 1 simply gives authority to pass through the fine of the authority to implement the fine. MR. HAYDEN said it is his understanding that DOT/PF would pass the fine through to the violator; they would not initiate the fine. MR. MITCHELL advised he does not read it as restricted to a pass through. It could authorize an independent levy of a fine. SENATOR STEVENS remarked that is his concern. CHAIRMAN THERRIAULT advised there is no current authority to independently levy a fine. MR. HAYDEN agreed. CHAIRMAN THERRIAULT pointed out that the introductory letter speaks of the ability to pass fines on. However, if it actually creates an independent authority for DOT/PF to levy fines independent of the FAA, the committee needs to know that. MR. HAYDEN agreed that point needs clarification. SENATOR PHILLIPS continued to express dismay that some vendors aren't willing to cooperate and work together during a time of national emergency. He thought DOT/PF should be asking for enforcement tools. MR. HAYDEN agreed, but said not everyone has chosen to voluntarily comply with post September 11 FAA directives. SENATOR PHILLIPS didn't think DOT/PF should have to pay for the violations in the first place. SENATOR STEVENS said there are two issues. One is enforcement and the other is the ability to levy the fine. He agreed with passing the fine along to the violator but he is concerned about giving new authority to a regional administrator to levy a fine independently. MR. HAYDEN responded being able to tell a violator they would be required to pay the fine that FAA levies against the state would be leverage they don't have now. CHAIRMAN THERRIAULT established there is general agreement they don't want to give DOT/PF the authority to issue fines absent any FAA interaction. He added the justification for section 3 is unclear and he's unsure he could support it because it circumvents the public regulatory process and this would apply to each state agency, board, or commission with regulation adoption authority. MR. HAYDEN said they are currently rewriting security plans for all airports and there are certain lessee requirements that will be written into those plans. They don't go through a public process or notice period to adopt those security plans. He asked Mr. Mitchell to speak to the issue of security plans for other agencies. CHAIRMAN THERRIAULT asked Mr. Mitchell for justification. MR. MITCHELL replied he didn't draft this provision but believes the limiting language comes from the narrow topic that is related to the adoption of a plan, program or procedure for establishing maintaining or restoring security. Additional limitations come from the certification of consequences if the procedures were not followed. CHAIRMAN THERRIAULT replied that an example would be the medical board could adopt by order a requirement that the doctors act in response to a potential bioterror attack and neither those doctors nor the general public would be able to have input in that decision. He stated a need to have a better understanding of the scope of authority requested and the limiting factors. MR. MITCHELL replied he would do further inquiry but his understanding is that scenario would not fall within section 3, rather it is directed at facilities plans. CHAIRMAN THERRIAULT asked for clarification before the next meeting. The bill was held in committee.