Legislature(2003 - 2004)

04/07/2004 05:45 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                              
        SB 385-SECURITY;DIV. HOMELAND SECURITY/EMER. MGT                                                                    
                                                                                                                                
The committee took up SB 385.                                                                                                   
                                                                                                                                
CHAIR  DYSON said  his understanding  from  the commissioners  of                                                               
DPS,  DOT and  DEC is  there are  no problems  with this,  and he                                                               
hopes to pass the bill out of committee.                                                                                        
                                                                                                                                
BRIG. GEN.  CRAIG CAMPBELL, Adjutant  General for  National Guard                                                               
of  Alaska,  and  Commissioner   for  Department  of  Military  &                                                               
Veterans  Affairs, began  his testimony  by  apologizing for  not                                                               
being at  Monday's meeting [4/5/04] due  to scheduling conflicts.                                                               
SB 385  refers to the  emergency services and civil  defense code                                                               
in statute  and makes the  necessary adjustments to  actively and                                                               
correctly  handle  the  homeland  security  mandate  that's  upon                                                               
Alaska and  every other  state.   He clarified  that the  old law                                                               
refers to districts,  and "we're taking all that out."   In 1951,                                                               
when  the  original code  was  passed,  it  was under  the  civil                                                               
defense  authority that  the  Senate and  the  House allowed  for                                                               
establishing districts  for civil defense; Alaska  never opted to                                                               
do that, so  the decision was made to  eliminate that unnecessary                                                               
reference.   Another  issue from  Monday's meeting  was property.                                                               
It is referenced  to be able to confiscate and  use property, and                                                               
the  question was,  "Is it  real or  personal property  or both?"                                                               
That  has been  reviewed  with  the attorney,  and  the way  it's                                                               
written  is  passive,  so  it  can be  either  personal  or  real                                                               
property.   Not  just land  or structures,  but it  could include                                                               
other things necessary to conduct business in Homeland Security.                                                                
                                                                                                                                
CHAIR DYSON asked if this included airplanes or boats.                                                                          
                                                                                                                                
COMMISSIONER  CAMPBELL  confirmed  this  was  part  of  the  real                                                               
property and would be covered.                                                                                                  
                                                                                                                                
CHAIR  DYSON  asked, "But  only  when  the governor  declares  an                                                               
impending or actual emergency?"                                                                                                 
                                                                                                                                
COMMISSIONER CAMPBELL said,  "That's the big issue  of this whole                                                               
statute,  and  that's  the  important part,  is  setting  up  the                                                               
authority  to do  this."   He said  it wouldn't  be given  to his                                                               
department or DPS unless the  governor declares a higher state of                                                               
threat and publicly declares it in  the state.  A disaster policy                                                               
cabinet then meets  and recommends actions that need  to be taken                                                               
to the  governor, who in turn  has to make the  declaration to do                                                               
that.    There's  a  multi-step   process  whereby  the  governor                                                               
declares  the authority  to implement  that, which  would not  be                                                               
allowed in a day-to-day routine operation.                                                                                      
                                                                                                                                
CHAIR DYSON said  that under the governor's  emergency powers, he                                                               
"has  much  of  that  already"  and what's  being  done  here  is                                                               
integrating existing  concepts into the new  organization and the                                                               
re-distribution of these responsibilities.                                                                                      
                                                                                                                                
COMMISSIONER CAMPBELL  confirmed that  was correct.   He outlined                                                               
emergency management  today as meeting  to declare  an emergency,                                                               
and taking it to the governor  who would review and approve it as                                                               
appropriate.  He pointed out  the questions for Homeland Security                                                               
as, "When  do you  go to a  level orange?   When do  you go  to a                                                               
level red?   What do you do at  level orange?  What do  you do at                                                               
level red?"  This establishes  a statute allowing for replication                                                               
of the emergency  services process in Homeland  Security; that is                                                               
the intention.                                                                                                                  
                                                                                                                                
COMMISSIONER  CAMPBELL addressed  the question,  "Do we  have any                                                               
ability  to have  agreements with  Canada, with  Canadians?"   In                                                               
this statute,  there are several references  to having agreements                                                               
with   other   jurisdictions,   and  it   specifically   mentions                                                               
"provinces" in two  separate places.  That  was deliberately done                                                               
to  recognize an  agreement with  Canada and  to establish  those                                                               
types of relationships.                                                                                                         
                                                                                                                                
CHAIR DYSON said he saw  this reference but "provinces" or "other                                                               
countries"  wasn't included  in all  the sections  that refer  to                                                               
coordination.  He asked if the  inclusion was a logical and legal                                                               
inference, if it carries through.                                                                                               
                                                                                                                                
COMMISSIONER CAMPBELL said yes, and  explained that page 8, lines                                                               
14-16 establishes  the right for  reciprocal aid  agreements with                                                               
other governments, but  it doesn't go into details  on what those                                                               
are.  This grants the  ability to negotiate those agreements with                                                               
other   jurisdictions,   including   provinces  of   Canada,   to                                                               
established  needs.   He  referred  to  the issue  of  authority,                                                               
noting that  Chair Dyson had  not received objection from  DPS or                                                               
DOT  on the  issue of  authority.   He explained  that currently,                                                               
when it  comes to  setting up  a checkpoint or  a roadblock  on a                                                               
roadway, it's designed to be done  - as state troopers and police                                                               
will  do  - in  response  to  criminal  activity.   "We're  in  a                                                               
different   world  in   Homeland  Security."     Establishing   a                                                               
checkpoint on a road where  one can't demonstrate there's already                                                               
been  something  criminal  that's  happened is  difficult  to  do                                                               
without  statutory authority.     SB  385 absolutely  establishes                                                               
that right and the ability for  DMVA, in coordination with DPS to                                                               
set up those checkpoints.                                                                                                       
                                                                                                                                
COMMISSIONER CAMPBELL referred to  the checkpoints established at                                                               
the Dalton  Highway in Valdez  over the holidays.   State defense                                                               
forces and the National Guard  were manning those checkpoints and                                                               
worked  with the  state  troopers.   Although  this was  executed                                                               
correctly, lawyers said, "We can't  find the authority to execute                                                               
it."   Today at 11:00  a.m., a cabinet meeting  with Commissioner                                                               
Tandeske,   Commissioner   Barton,   and   lawyers   from   those                                                               
departments  reviewed   SB  385  and  the   proposed  amendments,                                                               
ensuring  concurrence that  the authority  was written  properly.                                                               
He said  he was  satisfied that,  as written,  SB 385  allows for                                                               
manning  the checkpoints.    Commissioner  Tandeske is  satisfied                                                               
that it keeps public safety's  control of checkpoints, blockages,                                                               
and rights-of-way.                                                                                                              
                                                                                                                                
MR.  DAVE  LIEBERSBACH,  Acting Assistant  Commissioner  for  the                                                               
Office  of  Homeland Security  and  Emergency  Services, and  the                                                               
Director  of   Division  of   Emergency  Services   within  DMVA,                                                               
presented Amendment 1.                                                                                                          
                                                                                                                                
SENATOR GRETCHEN GUESS moved Amendment 1.                                                                                       
                                                                                                                                
CHAIR DYSON objected for purposes of discussion.                                                                                
                                                                                                                                
MR. LIEBERSBACH  reviewed the  following changes  incorporated in                                                               
Amendment 1 [made available from DMVA]:                                                                                         
                                                                                                                                
Page 3, line 18                                                                                                                 
     Following "coordinate"                                                                                                 
          Insert "with"                                                                                                     
                                                                                                                                
Page 6, lines 6-10:                                                                                                             
     Delete "(14) when the governor orders state action in                                                                  
response to a  high or severe threat of attack,  at the direction                                                           
of  the  governor and  in  coordination  with the  Department  of                                                           
Public  Safety,   establish  and  operate  checkpoints   for  the                                                           
reasonable  inspection of  persons  and vehicles  for weapons  or                                                           
explosives,  using   state  roads,   state  property,   or  state                                                           
facilities"                                                                                                                 
                                                                                                                                
Page 10, line 19:                                                                                                               
     Following "designee"                                                                                                       
          Insert "of the adjutant general, in consultation with                                                                 
the  commissioner  of   public  safety  or  a   designee  of  the                                                               
commissioner of public safety,"                                                                                                 
                                                                                                                                
Page 10, following line 19:                                                                                                     
     Insert a new bill section to read:                                                                                         
   *Sec. 9.  AS 26.20.100 is amended to read:                                                                               
          Sec. 26.20.100.  Traffic control.  In coordination                                                              
     with the department  of public safety and  the department of                                                           
     transportation and  public facilities, the  [THE] department                                                         
     may                                                                                                                        
          (1) formulate and execute plans and regulations for                                                               
     the control  of traffic for  the rapid and safe  movement of                                                               
     evacuation  over  public  highways and  streets  of  people,                                                               
     troops, or vehicles and materials  for homeland security and                                                           
     civil  defense [NATIONAL  DEFENSE OR  FOR USE  IN A  DEFENSE                                                           
     INDUSTRY, AND  MAY COORDINATE THE ACTIVITIES  OR AGENCIES OF                                                               
     THE  STATE  AND  OF  THE  DISTRICTS  CONCERNED  WITH  PUBLIC                                                               
     HIGHWAYS AND STREETS,  IN A MANNER THAT WILL  BEST CARRY OUT                                                               
     THOSE PLANS]; and                                                                                                      
          (2) establish and operate checkpoints along private or                                                            
     public roadways  serving critical property or  facilities in                                                           
     the  state,  at  the  direction of  the  governor  when  the                                                           
     governor  determines  that  a sufficiently  high  threat  of                                                           
     attack  exists  to warrant  such  action.   The  checkpoints                                                           
     established  under this  subsection  may  be in  conjunction                                                           
     with closure of  the roadway under AS  19.10.100.  Operation                                                           
     of  a checkpoint  shall  be limited  to  enforcement of  the                                                           
     roadway  closure or  reasonable  inspection  of persons  and                                                           
     vehicles for  weapons, explosives, chemicals,  biological or                                                           
     biochemical agents, or other  instruments capable of causing                                                           
     widespread of severe injury to persons or property.                                                                    
                                                                                                                              
Renumber the following bill sections accordingly.                                                                               
                                                                                                                                
Page 14, line 5:                                                                                                                
     Delete "firearms,"                                                                                                         
     Insert "[FIREARMS,]                                                                                                        
                                                                                                                                
Page 15, line 26                                                                                                                
     Delete "26.20.100,"                                                                                                        
                                                                                                                                
MR. LIEBERSBACH explained that "firearms"  was deleted because it                                                               
                                        nd                                                                                      
might raise  concerns related  to the  2   Amendment of  the U.S.                                                               
Constitution, the  right to  bear arms.   The  limit of  sale and                                                               
dispensing  was   as  much   a  concern   as  was   limiting  the                                                               
transportation of firearms, i.e. not  being able to carry hunting                                                               
rifles in vehicles.                                                                                                             
                                                                                                                                
CHAIR DYSON  asked if this  change would reduce  the department's                                                               
authority  to take  away an  illegal  firearm if,  for example  a                                                               
felon had a firearm.                                                                                                            
                                                                                                                                
MR. LIEBERSBACH  said it does  not reduce that capacity,  and the                                                               
authority lies  with the troopers;  they still have all  of their                                                               
authority.                                                                                                                      
                                                                                                                                
CHAIR DYSON asked  if National Guard forces,  under a declaration                                                               
of  emergency,  have  similar police  powers  to  troopers,  even                                                               
though this is structured so that  they will be working under the                                                               
supervision of a trooper.                                                                                                       
                                                                                                                                
MR. LIEBERSBACH  stated that the  last change should not  read as                                                               
the deletion of "26.26.100" but rather, as follows:                                                                             
                                                                                                                                
Page 15, line 26                                                                                                                
Delete "26.20.100"                                                                                                              
                                                                                                                                
This would not repeal "26.20.100."                                                                                              
                                                                                                                                
CHAIR DYSON  moved to amend Amendment  1 to make the  above noted                                                               
change.  He asked if there  was any objection.  There being none,                                                               
Amendment 1 was amended.                                                                                                        
                                                                                                                                
CHAIR DYSON removed his prior  objection to Amendment 1 and asked                                                               
if there were  further objections.  Seeing none,  Amendment 1 was                                                               
adopted.                                                                                                                        
                                                                                                                                
CHAIR DYSON  told Senators Davis and  Guess that if they  came up                                                               
with anything bothersome  regarding the bill, he  would make sure                                                               
there would  be an opportunity  to address those concerns  in the                                                               
Finance  Committee. He  confirmed, with  Senator Wilken,  the co-                                                               
chair of Finance, that this would be acceptable.                                                                                
                                                                                                                                
CHAIR DYSON asked for the wish of the committee.                                                                                
                                                                                                                                
SENATOR WILKEN moved to report  SB 385 as amended [CSSB 385(HES)]                                                               
from committee  with individual recommendations  and accompanying                                                               
fiscal note.                                                                                                                    
                                                                                                                                
CHAIR  DYSON asked  if there  were  any objections.   Seeing  and                                                               
hearing none, it was so ordered.                                                                                                

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