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