Bill Text: HI SB1348 | 2021 | Regular Session | Introduced

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Bill Title: Relating To Water Carriers.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2021-02-01 - Referred to TRS, CPN/WAM. [SB1348 Detail]

Download: Hawaii-2021-SB1348-Introduced.html

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THE SENATE	S.B. NO.	1348
THIRTY-FIRST LEGISLATURE, 2021
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to water carriers.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

PART I

     SECTION 1.  Chapter 271G, Hawaii Revised Statutes, is amended by adding eleven new sections to be appropriately designated and to read as follows:

     "§271G-A  Maritime commission; appointment; qualifications.  (a)  There is established a maritime commission within the department of commerce and consumer affairs for administrative purposes only.  The maritime commission shall consist of three members, to be called commissioners, and who shall be appointed in the manner prescribed in section 26-34, except as provided in this section.  The department of commerce and consumer affairs shall not direct or exert authority over the day-to-day operations or functions of the commission.

     (b)  All members shall be appointed for terms of six years each, except that the terms of the members first appointed shall be for two, four, and six years, respectively, as designated by the governor at the time of their appointment.  No member shall serve more than twelve consecutive years.  The governor shall designate one member to be the chairperson of the commission.

     (c)  In appointing commissioners, the governor shall select persons who have had experience in maritime transportation or similar fields.   No person owning any stock or bonds of any water carrier corporation, or having any interest in, or deriving any remuneration from, any water carrier shall be appointed a commissioner; provided that retirees of water carriers receiving retirement benefits, including but not limited to deferred compensation payments or medical coverage, may be appointed as a commissioner.

     (d)  The chairperson of the commission shall be paid a salary set at            per cent of the salary of the director of human resources development, and each of the other commissioners shall be paid a salary equal to            per cent of the chairperson's salary.  The commissioners shall be exempt from chapters 76 and 89 but shall be members of the state employees' retirement system and shall be eligible to receive the benefits of any state or federal employee benefit program generally applicable to officers and employees of the State, including those under chapter 87A.

     (e)  Notwithstanding section 26-35(a)(5) to the contrary, the commission's operational expenditures, such as the purchase of supplies, equipment, furniture, dues and subscriptions, travel, consultant services, and staff training, shall be determined by the chairperson and the executive officer appointed and employed pursuant to section 271G-B; provided that such expenditures shall be subject to all applicable procurement laws and procedures.

     (f)  Notwithstanding section 26-35(a)(6) to the contrary, the utilization, allocation, renovation, or other use of space or spaces to be occupied by the commission shall be determined by the chairperson and the executive officer appointed and employed pursuant to section 271G-B.

     (g)  Determinations made under subsection (e) or (f) by the chairperson or the executive officer, may be reviewed by the director of commerce and consumer affairs for completeness and for compliance and conformance with applicable administrative processes and procedures of the department of commerce and consumer affairs.

     §271G-B  Employment of assistants.  (a)  The chairperson of the commission shall appoint, employ, and dismiss, at pleasure, an executive officer who shall be responsible for managing the operations of the commission.  The responsibilities of the executive officer shall include management and recruitment of personnel, budget planning and implementation, strategic planning and implementation, procurement and contract administration, and implementation of administrative programs and projects.  The executive officer shall be exempt from chapter 76.

     (b)  The chairperson of the commission may appoint and employ professional staff and other assistants for the commission as the chairperson finds necessary for the performance of the commission's functions and define their powers and duties.  Notwithstanding section 26-35(a)(4) to the contrary and subject to applicable personnel laws, the employment, appointment, applicable salary schedules, promotion, transfer, demotion, discharge, and job descriptions of all officers and employees of or under the jurisdiction of the commission shall be determined by the chairperson and may be delegated to the executive officer appointed and employed pursuant to subsection (a); provided that determinations concerning personnel matters made by the chairperson or the executive officer, as delegated by the chairperson, may be reviewed by the director of commerce and consumer affairs for completeness and for compliance and conformance with applicable administrative processes and procedures of the department of commerce and consumer affairs.  The chairperson may appoint and, at pleasure, dismiss a chief administrator and attorneys as may be necessary, and who shall be exempt from chapter 76.  The chairperson may also appoint other staff, including a fiscal officer and a personnel officer, with or without regard to chapter 76.

     (c)  Notwithstanding section 91-13, the commission may consult with its assistants appointed under authority of this section in any contested case or agency hearing concerning any issue of facts.  Neither the commission nor any of its assistants shall in such proceeding consult with any other person or party except upon notice and an opportunity for all parties to participate, save to the extent required for the disposition of ex parte matters authorized by law.

     §271G-C  Examinations and investigations.  (a)  The commission and each commissioner shall have power to examine the affairs of all water carriers subject to this chapter, including:

     (1)  The condition of each water carrier;

     (2)  The manner in which the water carrier is operated with reference to the accommodation of the public;

     (3)  The wages of the water carrier's employees;

     (4)  The fares and rates charged by the water carrier;

     (5)  The value of water carrier's physical property;

     (6)  Stocks and bonds issued by the water carrier and the disposition of the proceeds thereof;

     (7)  The amount and disposition of the water carrier's income and all its financial transactions;

     (8)  The water carrier's executed contracts with other persons, companies, or corporations; and

     (9)  The water carrier's compliance with all applicable state and federal laws and with the provisions of its franchise, charter, and articles of association, if any.

     (b)  Any investigation may be made by the commission on its own motion, and shall be made when requested by the water carrier to be investigated, or by any person upon a sworn written complaint to the commission, setting forth any prima facie cause of complaint.  A majority of the commission shall constitute a quorum.

     (c)  Whenever an investigation is undertaken by the commission, reasonable notice in writing of the investigation and of the subject or subjects to be investigated shall be given to the water carrier or the person concerned, and when based upon complaints made to the commission as prescribed in subsection (b), a copy of the complaint, and a notice in writing of the date and place fixed by the commission for beginning the investigation, shall be served upon the water carrier or the person concerned, or other respondent and the complainant not less than two weeks before the date designated for the hearing.

     (d)  Each water carrier or other person subject to investigation by the commission, shall at all times, upon request, furnish to the commission all information that the commission may require pursuant to this section.  Each water carrier shall permit the examination of its books, records, contracts, maps, and other documents by the commission or any person authorized by the commission in writing to make the examination, and shall furnish the commission with a complete inventory of the water carrier's property on a form as prescribed by the commission.

     §271G-D  Report accidents.  Every water carrier shall report to the commission all accidents caused by or occurring in connection with its operations and service.

     §271G-E  Power to compel attendance; subpoena.  (a)  In all investigations made by the commission, and in all proceedings before the commission, the commission by a majority vote shall have the same powers respecting administering oaths, compelling the attendance of witnesses and the production of documentary evidence, examining witnesses, and punishing for contempt, as are possessed by circuit courts.

     (b)  In the case of disobedience by any person to any order of the commission; any subpoena issued by it or the commissioner; or the refusal of any witness to testify to any matter regarding which the witness may be questioned lawfully, any circuit court, on application by the commission, shall compel obedience as in case of disobedience of the requirements of a subpoena issued from a circuit court or a refusal to testify therein.

     (c)  No person shall be excused from testifying or from producing any book, waybill, document, paper, or account in any investigation or inquiry by a hearing before the commission or any commissioner, when ordered to do so, upon the ground that the testimony or evidence, book, waybill, document, paper, or account required of the person may tend to incriminate the person or subject the person to penalty or forfeiture; but no person shall be prosecuted for any crime, punished for any crime, or subjected to any criminal penalty or criminal forfeiture for or on account of any act, transaction, matter, or thing concerning which the person shall under oath have testified or produced documentary evidence.  Nothing in this subsection shall be construed as in any manner giving to any water carrier or any person immunity of any kind.  The commission shall consult with the county attorney or prosecutor or attorney general before ordering testimony or evidence in accordance with this subsection that may jeopardize criminal prosecution.

     (d)  The fees and traveling expenses of witnesses shall be the same as allowed witnesses in the circuit courts and shall be paid by the State out of any appropriation available for the expenses of the commission.

     (e)  All meetings and hearings of the commission shall be public.

     §271G-F  Enforcement.  (a)  If the commission is of the opinion that:

     (1)  Any water carrier or any person is violating or neglecting to comply with any provision of this chapter or of any rule, regulation, order, or other requirement of the commission, or of any provisions of the water carrier's franchise, charter, or articles of association, if any;

     (2)  Any changes, additions, extensions, or repairs are desirable in the water carrier's plant or service to meet the reasonable convenience or necessity of the public or ensure greater safety or security; or

     (3)  Any rates, fares, classifications, charges, or rules are unreasonable or unreasonably discriminatory,

the commission shall inform the inform the water carrier or the person in writing and may institute proceedings before the commission as necessary to require the water carrier or the person to correct any deficiency.

     The commission may examine any of the matters referred to it pursuant to section 271G-C, notwithstanding that the same may be within the jurisdiction of any court or other body; provided that this section shall not be construed as in any manner limiting or otherwise affecting the jurisdiction of any such court or other body.

     §271G-G  Contested cases.  (a)  Chapter 91 shall apply to every contested case arising under this chapter except where chapter 91 conflicts with this chapter, in which case this chapter shall apply.  Any other law to the contrary notwithstanding, including chapter 91, any contested case under this chapter shall be appealed from a final decision and order or a preliminary ruling that is of the nature defined by section 91-14(a) upon the record directly to the supreme court for final decision.  Only a person aggrieved in a contested case proceeding provided for in this chapter may appeal from the final decision and order or preliminary ruling.  For the purposes of this section, the term "person aggrieved" includes an agency that is a party to a contested case proceeding before that agency or another agency.

     (b)  The court shall give priority to contested case appeals of significant statewide importance over all other civil or administrative appeals or matters and shall decide these appeals as expeditiously as possible.

     §271G-H  Perjury.  Any person who wilfully and knowingly makes under oath any false statement in connection with any investigation by or proceeding before the commission shall be guilty of perjury and, upon conviction, shall be subject to the penalty prescribed by law for the offense.

     §271G-I  Finances; water carrier fee.  (a)  Sections 607-5 to 607-9 shall apply to the commission and each commissioner, as well as to the supreme court and circuit courts, and all costs and fees paid or collected pursuant to this section shall be deposited with the director of finance to the credit of the maritime commission special fund.

     (b)  Each water carrier subject to investigation by the commission shall pay to the commission in each of the months of July and December of each year, a fee equal to one-fourth of one per cent of the gross income from the water carrier's business during the preceding year, or the sum of $30, whichever is greater.  This fee shall be deposited with the director of finance to the credit of the maritime commission special fund.

     (c)  Each water carrier paying a fee under subsection (b) may impose a surcharge to recover the amount paid in excess of one-eighth of one per cent of the gross income.  The surcharge imposed shall not be subject to the notice, hearing, and approval requirements of this chapter; provided that the surcharge may be imposed by the water carrier only after thirty days' notice to the commission.  Unless ordered by the commission, the surcharge shall be imposed only until the conclusion of the water carrier's next rate case; provided that the surcharge shall be subject to refund with interest at the water carrier's authorized rate of return on rate base if the water carrier collects more money from the surcharge than actually paid due to the increase in the fee to one-fourth of one per cent.

     §271G-J  Maritime commission special fund.  (a)  There is established in the state treasury a maritime commission special fund to be administered by the maritime commission.  The proceeds of the fund shall be used by the commission for all expenses incurred in the administration of this chapter and for costs incurred by the department of commerce and consumer affairs to fulfill the department's limited oversight and administrative support functions; provided that the expenditures of the commission shall be in accordance with legislative appropriations.

     (b)  All moneys appropriated to, received, and collected by the commission that are not otherwise pledged, obligated, or required by law to be placed in any other special fund or expended for any other purpose shall be deposited into the maritime commission special fund.

     (c)  The commission shall submit an annual report to the governor and legislature each January detailing all funds received and all moneys disbursed out of the fund.

     §271G-K  Preferential water carrier service rates for agricultural activities.  The maritime commission may authorize preferential water carrier service rates by tariff for ratepayers that engage in agricultural activities.  The application process for obtaining preferential water carrier service rates by tariff may be established by the maritime commission."

     SECTION 2.  Section 269-1, Hawaii Revised Statutes, is amended by amending the definition of "public utility" to read as follows:

     ""Public utility":

     (1)  Includes every person who may own, control, operate, or manage as owner, lessee, trustee, receiver, or otherwise, whether under a franchise, charter, license, articles of association, or otherwise, any plant or equipment, or any part thereof, directly or indirectly for public use for the transportation of passengers or freight; for the conveyance or transmission of telecommunications messages; for the furnishing of facilities for the transmission of intelligence by electricity within the State or between points within the State by land, water, or air; for the production, conveyance, transmission, delivery, or furnishing of light, power, heat, cold, water, gas, or oil; for the storage or warehousing of goods; or for the disposal of sewage; provided that the term shall include:

          (A)  An owner or operator of a private sewer company or sewer facility; and

          (B)  A telecommunications carrier or telecommunications common carrier; and

     (2)  Shall not include:

          (A)  An owner or operator of an aerial transportation enterprise;

          (B)  An owner or operator of a taxicab as defined in this section;

          (C)  Common carriers that transport only freight on the public highways, unless operating within localities, along routes, or between points that the public utilities commission finds to be inadequately serviced without regulation under this chapter;

          (D)  Persons engaged in the business of warehousing or storage unless the commission finds that regulation is necessary in the public interest;

          (E)  A carrier by water to the extent that the carrier enters into private contracts for towage, salvage, hauling, or carriage between points within the State; provided that the towing, salvage, hauling, or carriage is not pursuant to either an established schedule or an undertaking to perform carriage services on behalf of the public generally;

          (F)  A carrier by water, substantially engaged in interstate or foreign commerce, that transports passengers on luxury cruises between points within the State or on luxury round-trip cruises returning to the point of departure;

          (G)  Any water carrier regulated under chapter 271G;

        [(G)]  (H) Any user, owner, or operator of the Hawaii electric system as defined under section 269-141;

        [(H)]  (I) A telecommunications provider only to the extent determined by the public utilities commission pursuant to section 269-16.9;

        [(I)]  (J) Any person who controls, operates, or manages plants or facilities developed pursuant to chapter 167 for conveying, distributing, and transmitting water for irrigation and other purposes for public use and purpose;

        [(J)]  (K) Any person who owns, controls, operates, or manages plants or facilities for the reclamation of wastewater; provided that:

              (i)  The services of the facility are provided pursuant to a service contract between the person and a state or county agency and at least ten per cent of the wastewater processed is used directly by the state or county agency that entered into the service contract;

             (ii)  The primary function of the facility is the processing of secondary treated wastewater that has been produced by a municipal wastewater treatment facility owned by a state or county agency;

            (iii)  The facility does not make sales of water to residential customers;

             (iv)  The facility may distribute and sell recycled or reclaimed water to entities not covered by a state or county service contract; provided that, in the absence of regulatory oversight and direct competition, the distribution and sale of recycled or reclaimed water shall be voluntary and its pricing fair and reasonable.  For purposes of this subparagraph, "recycled water" and "reclaimed water" means treated wastewater that by design is intended or used for a beneficial purpose; and

              (v)  The facility is not engaged, either directly or indirectly, in the processing of food wastes;

        [(K)]  (L) Any person who owns, controls, operates, or manages any seawater air conditioning district cooling project; provided that at least fifty per cent of the energy required for the seawater air conditioning district cooling system is provided by a renewable energy resource, such as cold, deep seawater;

        [(L)]  (M) Any person who owns, controls, operates, or manages plants or facilities primarily used to charge or discharge a vehicle battery that provides power for vehicle propulsion;

        [(M)]  (N) Any person who:

              (i)  Owns, controls, operates, or manages a renewable energy system that is located on a customer's property; and

              (ii)  Provides, sells, or transmits the power generated from that renewable energy system to an electric utility or to the customer on whose property the renewable energy system is located; provided that, for purposes of this subparagraph, a customer's property shall include all contiguous property owned or leased by the customer without regard to interruptions in contiguity caused by easements, public thoroughfares, transportation rights-of-way, and utility rights-of-way; and

        [(N)]  (O) Any person who owns, controls, operates, or manages a renewable energy system that is located on such person's property and provides, sells, or transmits the power generated from that renewable energy system to an electric utility or to lessees or tenants on the person's property where the renewable energy system is located; provided that:

               (i)  An interconnection, as defined in section 269-141, is maintained with an electric public utility to preserve the lessees' or tenants' ability to be served by an electric utility;

              (ii)  Such person does not use an electric public utility's transmission or distribution lines to provide, sell, or transmit electricity to lessees or tenants;

            (iii)  At the time that the lease agreement is signed, the rate charged to the lessee or tenant for the power generated by the renewable energy system shall be no greater than the effective rate charged per kilowatt hour from the applicable electric utility schedule filed with the public utilities commission;

             (iv)  The rate schedule or formula shall be established for the duration of the lease, and the lease agreement entered into by the lessee or tenant shall reflect such rate schedule or formula;

              (v)  The lease agreement shall not abrogate any terms or conditions of applicable tariffs for termination of services for nonpayment of electric utility services or rules regarding health, safety, and welfare;

             (vi)  The lease agreement shall disclose:  (1) the rate schedule or formula for the duration of the lease agreement; (2) that, at the time that the lease agreement is signed, the rate charged to the lessee or tenant for the power generated by the renewable energy system shall be no greater than the effective rate charged per kilowatt hour from the applicable electric utility schedule filed with the public utilities commission; (3) that the lease agreement shall not abrogate any terms or conditions of applicable tariffs for termination of services for nonpayment of electric utility services or rules regarding health, safety, and welfare; and (4) whether the lease is contingent upon the purchase of electricity from the renewable energy system; provided further that any disputes concerning the requirements of this provision shall be resolved pursuant to the provisions of the lease agreement or chapter 521, if applicable; and

            (vii)  Nothing in this section shall be construed to permit wheeling.

     If the application of this chapter is ordered by the commission in any case provided in paragraph (2)(C)[,] or (D), [(H), and (I),] the business of any public utility that presents evidence of bona fide operation on the date of the commencement of the proceedings resulting in the order shall be presumed to be necessary to the public convenience and necessity, but any certificate issued under this proviso shall nevertheless be subject to terms and conditions as the public utilities commission may prescribe, as provided in [sections] section 269-16.9 [and 269-20]."

     SECTION 3.  Section 269-33, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

     "(a)  There is established in the state treasury a public utilities commission special fund to be administered by the public utilities commission.  The proceeds of the fund shall be used by the public utilities commission and the division of consumer advocacy of the department of commerce and consumer affairs for all expenses incurred in the administration of chapters 269, 271, [271G,] 269E, and 486J, and for costs incurred by the department of commerce and consumer affairs to fulfill the department's limited oversight and administrative support functions; provided that the expenditures of the public utilities commission shall be in accordance with legislative appropriations.  On a quarterly basis, an amount not exceeding thirty per cent of the proceeds remaining in the fund after the deduction for central service expenses, pursuant to section 36-27, shall be allocated by the public utilities commission to the division of consumer advocacy and deposited in the compliance resolution fund established pursuant to section 26-9(o); provided that all moneys allocated by the public utilities commission from the fund to the division of consumer advocacy shall be in accordance with legislative appropriations.

     (b)  All moneys appropriated to, received, and collected by the public utilities commission that are not otherwise pledged, obligated, or required by law to be placed in any other special fund or expended for any other purpose shall be deposited into the public utilities commission special fund including, but not limited to, all moneys received and collected by the public utilities commission pursuant to sections 92-21, 269-28, 269-30, 271-27, 271-36, [271G-19,] 269E-6, 269E-14, and 607-5."

     SECTION 4.  Section 271G-5, Hawaii Revised Statutes, is amended to read as follows:

     "§271G-5  Definitions.  As used in this chapter:

     "Certificate" means a certificate of public convenience and necessity issued under this chapter to common carriers by water.

     [(1)]  "Chapter" means this Water Carrier Law.

     [(2)]  "Commission" means the [public utilities] maritime commission.

     "Enforcement officer" means any person employed and authorized by the commission to investigate any matter on behalf of the commission.

     [(3)]  "Person" or "persons" means any individual, firm, copartnership, corporation, company, association, or joint stock association; and includes any trustee, receiver, assignee, or personal representative thereof.

    [(4)  "Certificate" means a certificate of public convenience and necessity issued under this chapter to common carriers by water.]

     "Rates" includes rates, fares, tolls, rentals, and charges of whatever kind and nature unless the context indicates otherwise.

     "Related companies" means companies or persons that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the water carrier.  The term "control", in reference to a relationship between any person or persons and another person or persons, includes actual as well as legal control, and indirect as well as direct control.

     [(5)]  "Transportation of persons" includes every service in connection with or incidental to the safety, comfort, or convenience of persons transported and the receipt, carriage, and delivery of these persons and their baggage.

     [(6)]  "Transportation of property" includes every service in connection with or incidental to the transportation of property, including in particular its receipt, and delivery, carriage, preservation, and all incidental services affecting these activities.

     "Vessel" means any watercraft or other artificial contrivance of whatever description which is used, or capable of being used, or intended to be used, as a means of transportation by water.

     [(7)]  "Water carrier" or "common carrier by water" means any person who holds oneself out to the general public as engaging in the transportation by water of passengers or property for compensation within the State or between points within the State.

    [(8)  "Vessel" means any watercraft or other artificial contrivance of whatever description which is used, or capable of being used, or intended to be used, as a means of transportation by water.

     (9)  "Rates" includes rates, fares, tolls, rentals, and charges of whatever kind and nature unless the context indicates otherwise.

    (10)  "Related companies" means companies or persons that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the water carrier.  The term "control", in reference to a relationship between any person or persons and another person or persons, includes actual as well as legal control, and indirect as well as direct control.

     (11) "Enforcement officer" means any person employed and authorized by the commission to investigate any matter on behalf of the commission.]"

     SECTION 5.  Section 271G-6, Hawaii Revised Statutes, is amended to read as follows:

     "§271G-6  Exemptions, generally.  Notwithstanding any other provisions of this chapter, its contents shall not apply to:

     (1)  Persons transporting their own property where the transportation is in furtherance of a primary business purpose or enterprise of that person except where the transportation is undertaken by a water carrier to evade the regulatory purposes of this chapter;

     (2)  Nonprofit agricultural cooperative associations to the extent that they engage in the transportation of their own property or the property of their members;

     (3)  Persons engaged in the transportation over water of passengers or property for compensation, other than transportation referred to in the definition of "water carrier" or "common carrier by water" in section 271G-5 under continuing contracts with one person or a limited number of persons for the furnishing of transportation services:

          (A)  Through the assignment of vessels for a continuing period of time to the exclusive use of each person served; or

          (B)  Designed to meet the distinct need of each individual customer;

     (4)  Persons transporting their own property or employees where the transportation is in furtherance of a business or enterprise of fishing or taking of fish for profit or gain as a means of livelihood; [or]

     (5)  Persons engaged in the business of transporting persons for sightseeing and other recreational activities[.];

     (6)  A carrier by water to the extent that the carrier enters into private contracts for towage, salvage, hauling, or carriage between points within the State; provided that the towing, salvage, hauling, or carriage is not pursuant to either an established schedule or an undertaking to perform carriage services on behalf of the public generally; or

     (7)  A carrier by water, substantially engaged in interstate or foreign commerce, that transports passengers on luxury cruises between points within the State or on luxury round-trip cruises returning to the point of departure."

     SECTION 6.  Section 271G-7, Hawaii Revised Statutes, is amended to read as follows:

     "§271G-7  General duties and powers of the commission.  The general duties and powers of the commission shall be:

     (1)  To regulate water carriers, and to that end the commission shall have and utilize the investigative powers set forth in [section 269-7] section 271G-C as well as all of the other duties and powers specifically enumerated in this chapter, and water carriers shall be subject to the duties set forth in [sections 269-8 and 269-9 as well as all of the duties specifically enumerated herein.] this chapter;

     (2)  To establish such just and reasonable classifications of water carriers as the special nature of the services performed by the carriers shall require, and such just and reasonable rules, regulations, and requirements, consistent with this chapter, to be observed by the carriers so classified or grouped, as the commission deems necessary or desirable in the public interest.  Such classifications, rules, regulations, and requirements shall be adopted and promulgated pursuant to the provisions of chapter 91 and shall have the force and effect of law[.];

     (3)  Upon complaint in writing to the commission by any person or body politic, or upon its own initiative without complaint, the commission may investigate whether any water carrier has failed to comply with any provision of this chapter, or with any rule or order adopted or issued hereunder[.]; and

     (4)  The commission may investigate any person acting in the capacity of or engaging in the business of a water carrier within the State, without having a certificate of public convenience and necessity or other authority previously obtained under and in compliance with this chapter or the rules promulgated under this chapter."

     SECTION 7.  Section 271G-7.5, Hawaii Revised Statutes, is amended by amending subsections (a), (b), and (c) to read as follows:

     "(a)  No later than July 1, 2011, the [public utilities] commission shall accept from any person who submits a document to the commission the original and one electronic copy of each application, complaint, pleading, brief, or other document required to be filed with the commission pursuant to this chapter [and the consumer advocate shall accept service of one paper copy and one electronic copy of each application, complaint, pleading, brief, or other document filed with the commission].

     (b)  The commission shall adopt rules pursuant to chapter 91 to effectuate the purposes of this section.  Until the final adoption by the commission of rules governing the electronic filing of documents with the commission, the following requirements shall apply to all documents submitted to the commission pursuant to this section; provided that additional requirements with regard to document format may be established by the commission through written guidelines:

     (1)  Unless otherwise required by this chapter or the rules or guidelines of the commission, each person who submits or files an application, complaint, pleading, brief, or other document shall submit to or file with the commission an original and one electronic copy of each document [and shall serve one paper copy and one electronic copy of each document on the consumer advocate];

     (2)  All paper documents submitted to or filed with the commission shall be printed on one side of the page only and, if practicable, in portrait orientation;

     (3)  Original paper documents submitted to or filed with the commission shall not be stapled but shall be clipped together or placed in a clearly marked three-ring binder, as appropriate;

     (4)  All paper documents filed or submitted to the commission shall include appropriately labeled separator pages in addition to tabbed dividers, as applicable;

     (5)  All confidential documents filed under confidential seal shall be clearly designated in accordance with the requirements of any applicable protective order, and the sealed envelope in which the confidential documents are enclosed shall clearly indicate the appropriate docket number and subject;

     (6)  Electronic documents shall be submitted on a clearly marked compact disk and shall be in portable document format saved in separate files corresponding to the original paper document submission; provided that electronic documents submitted under confidential seal shall be submitted on a separate compact disk, clearly marked as confidential and indicating the appropriate docket number and subject; and

     (7)  Electronic documents shall be named using the filing party's name, docket number, date of filing, and name of document as part of the document title.

     Upon final adoption of rules pursuant to chapter 91, the rules of the commission governing submission or filing of electronic documents shall supersede the provisions of this subsection.

     (c)  No later than July 1, 2013, the [public utilities] commission shall accept any application, complaint, pleading, brief, or other document required to be filed with the commission pursuant to this chapter as either a paper document or an electronic document."

     SECTION 8.  Section 271G-10, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  Except as otherwise provided in this section and in sections 271G-6 and 271G-12, no water carrier shall engage in operations between points within the State unless the carrier holds a certificate of public convenience and necessity issued by the [public utilities] commission authorizing the operation; provided that no new application shall be required for any common carrier by water that is the holder of a certificate of public convenience and necessity issued by the [public utilities] commission."

     2.  By amending subsection (e) to read:

     "(e)  The commission shall not make a finding of public convenience and necessity or issue an authorization, whether interim, permanent, or otherwise, to operate as a water carrier without the following specific findings supported by evidence in the record:

     (1)  Existing water carrier services are inadequate to presently service the public or meet demonstrated and quantifiable future demands for service;

     (2)  The proposed service is designed for and necessary to meet demonstrated and quantifiable unmet public needs for present water carrier service or demonstrated and quantifiable future demands for service;

     (3)  The proposed service will provide demonstrated and quantifiable benefits to the general public, business community, and the economy of all islands that are entitled to notice under section 271G-23.5, including demonstrated and quantifiable benefits with respect to reliability, affordability, and security of the service line; and

     (4)  The specific, identified benefits of the proposed service outweigh its detrimental impact to the public's interest in maintaining services, including:

          (A)  Economies of scale and scope of current water carriers;

          (B)  Future capital costs of existing water carriers;

          (C)  Ability of existing water carriers to make necessary capital and resource investments;

          (D)  The financial health, stability, and revenue stream of existing water carriers; and

          (E)  The likelihood that existing levels of service will be maintained after the enactment of the proposed service[; and

     (5)  If the commission's finding of public convenience and necessity differs from the recommendation of the consumer advocate, specific findings to address each ground for objection articulated by the consumer advocate].

The commission shall not make a finding of public convenience and necessity nor issue a certificate if the evidence in the record indicates that the issuance of the certificate would diminish an existing water carrier's ability to realize its allowed rate of return or if the certificate would allow an applicant to serve only high-margin or high-profit ports or lines of service that are currently served by an existing carrier."

     SECTION 9.  Section 269-20, Hawaii Revised Statutes, is repealed.

     ["§269-20  Certificates of public convenience and necessity for water carriers.  (a)  No person which holds itself out to the general public to engage in the transportation by water of passengers or property or any class or classes thereof for compensation, between points in the State of Hawaii, shall operate unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the commission authorizing such transportation; provided that this section shall not apply to any carrier by water to the extent that the carrier is excluded from the definition of a public utility under section [269-1(2)(E) and (F)].

     (b)  Applications for certificates shall be made in writing under oath to the commission in such form as it requires.

     (c)  A certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied.  Any certificate issued shall specify the service to be rendered and the routes and ports which the water carrier is to serve and there shall be attached to the exercise of the privileges granted by the certificate, at the time of issuance and from time to time thereafter, such reasonable conditions and limitations as the public convenience and necessity may require.

     (d)  The commission may at any time suspend, change or revoke such certificate in the manner provided in section 271-19."]

     SECTION 10.  Section 269-26.6, Hawaii Revised Statutes, is repealed.

     ["[§269-26.6]  Preferential water carrier service rates for agricultural activities.  The public utilities commission may authorize preferential water carrier service rates by tariff for ratepayers that engage in agricultural activities.  The application process for obtaining preferential water carrier service rates by tariff may be established by the public utilities commission."]

     SECTION 11.  Section 271G-3, Hawaii Revised Statutes, is repealed.

     ["§271G-3  Administration; governing provisions of other acts.  This chapter shall be administered by the public utilities commission of the State and the provisions of this chapter and of chapter 269, not inconsistent with this chapter, shall govern its administration; provided that sections 269-16 to 269-28 shall not apply in any respect to the regulation of water carriers."]

     SECTION 12.  Sections 271G-8, 271G-9, 271G-12, 271G-13, 271G-14, 271G-15, 271G-17, 271G-17.5, 271G-18, 271G-20, 271G-22, 271G-23, 271G-24, 271G-25, and 286-271, Hawaii Revised Statutes, are amended by substituting the phrase "maritime commission", or similar term, wherever the phrase "public utilities commission", or similar term, appears, as the context requires.

PART II

     SECTION 13.  Section 28-8.3, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (a) to read:

     "(a)  No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

     (1)  By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

     (2)  By any court or judicial or legislative office of the State; provided that if the attorney general is requested to provide representation to a court or judicial office by the chief justice or the chief justice's designee, or to a legislative office by the speaker of the house of representatives and the president of the senate jointly, and the attorney general declines to provide such representation on the grounds of conflict of interest, the attorney general shall retain an attorney for the court, judicial, or legislative office, subject to approval by the court, judicial, or legislative office;

     (3)  By the legislative reference bureau;

     (4)  By any compilation commission that may be constituted from time to time;

     (5)  By the real estate commission for any action involving the real estate recovery fund;

     (6)  By the contractors license board for any action involving the contractors recovery fund;

     (7)  By the office of Hawaiian affairs;

     (8)  By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485A;

     (9)  As grand jury counsel;

    (10)  By the Hawaii health systems corporation, or its regional system boards, or any of their facilities;

    (11)  By the auditor;

    (12)  By the office of ombudsman;

    (13)  By the insurance division;

    (14)  By the University of Hawaii;

    (15)  By the Kahoolawe island reserve commission;

    (16)  By the division of consumer advocacy;

    (17)  By the office of elections;

    (18)  By the campaign spending commission;

    (19)  By the Hawaii tourism authority, as provided in section 201B-2.5;

    (20)  By the division of financial institutions;

    (21)  By the office of information practices; [or]

    (22)  By the maritime commission; or

   [(22)] (23) By a department, if the attorney general, for reasons deemed by the attorney general to be good and sufficient, declines to employ or retain an attorney for a department; provided that the governor waives the provision of this section."

     2.  By amending subsection (c) to read:

     "(c)  Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation or its regional system boards, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the division of consumer advocacy, the University of Hawaii, the Hawaii tourism authority as provided in section 201B-2.5, the office of information practices, maritime commission, or as grand jury counsel, shall be a deputy attorney general."

     SECTION 14.  Section 91-13.5, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

     "(f)  This section shall not apply to:

     (1)  Any proceedings of the public utilities commission; [or]

     (2)  Any proceedings of the maritime commission; or

    [(2)] (3) Any county or county agency that is exempted by county ordinance from this section."

     SECTION 15.  Section 92-21, Hawaii Revised Statutes, is amended to read as follows:

     "§92-21  Copies of records; other costs and fees.  Except as otherwise provided by law, a copy of any government record, including any map, plan, diagram, photograph, photostat, or geographic information system digital data file, which is open to the inspection of the public, shall be furnished to any person applying for the same by the public officer having charge or control thereof upon the payment of the reasonable cost of reproducing such copy.  Except as provided in section 91-2.5, the cost of reproducing any government record, except geographic information system digital data, shall not be less than 5 cents per page, sheet, or fraction thereof.  The cost of reproducing geographic information system digital data shall be in accordance with rules adopted by the agency having charge or control of that data.  Such reproduction cost shall include but shall not be limited to labor cost for search and actual time for reproducing, material cost, including electricity cost, equipment cost, including rental cost, cost for certification, and other related costs.  All fees shall be paid in by the public officer receiving or collecting the same to the state director of finance, the county director of finance, or to the agency or department by which the officer is employed, as government realizations; provided that [fees]:

     (1)  Fees collected by the public utilities commission pursuant to this section shall be deposited in the public utilities commission special fund established under section 269-33[.]; and

     (2)  Fees collected by the maritime commission pursuant to this section shall be deposited in the maritime commission special fund established under section 271G-J."

     SECTION 16.  Section 235-21, Hawaii Revised Statutes, is amended by amending the definition of "public utility" to read as follows:

     ""Public utility" has the meaning given that term in section 269-1.  "Public utility" includes water carriers regulated under chapter 271G."

     SECTION 17.  Section 238-1, Hawaii Revised Statutes, is amended by amending the definition of "use" to read as follows:

     ""Use" (and any nounal, verbal, adjectival, adverbial, and other equivalent form of the term) herein used interchangeably means any use, whether the use is of such nature as to cause the property, services, or contracting to be appreciably consumed or not, or the keeping of the property or services for such use or for sale, the exercise of any right or power over tangible or intangible personal property incident to the ownership of that property, and shall include control over tangible or intangible property by a seller who is licensed or who should be licensed under chapter 237, who directs the importation of the property into the State for sale and delivery to a purchaser in the State, liability and free on board (FOB) to the contrary notwithstanding, regardless of where title passes, but the term "use" shall not include:

     (1)  Temporary use of property, not of a perishable or quickly consumable nature, where the property is imported into the State for temporary use (not sale) therein by the person importing the same and is not intended to be, and is not, kept permanently in the State.  For example, without limiting the generality of the foregoing language:

          (A)  In the case of a contractor importing permanent equipment for the performance of a construction contract, with intent to remove, and who does remove, the equipment out of the State upon completing the contract;

          (B)  In the case of moving picture films imported for use in theaters in the State with intent or under contract to transport the same out of the State after completion of such use; and

          (C)  In the case of a transient visitor importing an automobile or other belongings into the State to be used by the transient visitor while therein but which are to be used and are removed upon the transient visitor's departure from the State;

     (2)  Use by the taxpayer of property acquired by the taxpayer solely by way of gift;

     (3)  Use which is limited to the receipt of articles and the return thereof, to the person from whom acquired, immediately or within a reasonable time either after temporary trial or without trial;

     (4)  Use of goods imported into the State by the owner of a vessel or vessels engaged in interstate or foreign commerce and held for and used only as ship stores for the vessels;

     (5)  The use or keeping for use of household goods, personal effects, and private automobiles imported into the State for nonbusiness use by a person who:

          (A)  Acquired them in another state, territory, district, or country;

          (B)  At the time of the acquisition was a bona fide resident of another state, territory, district, or country;

          (C)  Acquired the property for use outside the State; and

          (D)  Made actual and substantial use thereof outside this State;

          provided that as to an article acquired less than three months prior to the time of its importation into the State it shall be presumed, until and unless clearly proved to the contrary, that it was acquired for use in the State and that its use outside the State was not actual and substantial;

     (6)  The leasing or renting of any aircraft or the keeping of any aircraft solely for leasing or renting to lessees or renters using the aircraft for commercial transportation of passengers and goods or the acquisition or importation of any such aircraft or aircraft engines by any lessee or renter engaged in interstate air transportation.  For purposes of this paragraph, "leasing" includes all forms of lease, regardless of whether the lease is an operating lease or financing lease.  The definition of "interstate air transportation" is the same as in 49 U.S.C. 40102;

     (7)  The use of oceangoing vehicles for passenger or passenger and goods transportation from one point to another within the State as a [public utility] water carrier as defined in [chapter 269;] section 271G-5;

     (8)  The use of material, parts, or tools imported or purchased by a person licensed under chapter 237 which are used for aircraft service and maintenance, or the construction of an aircraft service and maintenance facility as those terms are defined in section 237-24.9;

     (9)  The use of services or contracting imported for resale where the contracting or services are for resale, consumption, or use outside the State pursuant to section 237-29.53(a); and

    (10)  The use of property, services, or contracting imported by foreign diplomats and consular officials who are holding cards issued or authorized by the United States Department of State granting them an exemption from state taxes.

     With regard to purchases made and distributed under the authority of chapter 421, a cooperative association shall be deemed the user thereof."

     SECTION 18.  Section 339K-2, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§339K-2[]]  Compact administrator.  The compact administrator, acting jointly with like officers of other party states, may promulgate rules and regulations to carry out more effectively the terms of the compact.  The compact administrator shall cooperate with all departments, agencies, and officers of and in the government of this State and its subdivisions in facilitating the present administration of the compact or of any supplementary agreement or agreements entered into by this State thereunder.  The compact administrator shall adopt the practices and may impose the fees authorized under article III of the compact, except that state and county law enforcement agencies [and], the public utilities commission and the maritime commission shall retain their enforcement and inspection authority relating to carriers."

     SECTION 19.  Section 445-233, Hawaii Revised Statutes, is amended by amending subsection (h) to read as follows:

     "(h)  Public utilities, as defined in section 269-1, and water carriers, as defined in section 271G-5, shall be exempt from the requirements of subsections (b) and (c).  When the seller is a public utility[,] or water carrier, the scrap dealer shall not be required to obtain the statement required by subsection (a), and the scrap dealer shall not be prohibited by subsection (d) from purchasing the copper from the public utility[.] or water carrier."

     SECTION 20.  Section 481-1, Hawaii Revised Statutes, is amended to read as follows:

     "§481-1  Unlawful practices.  It shall be unlawful for any person, firm, or corporation, doing business in the State and engaged in the production, manufacture, distribution, or sale of any commodity, or product, or service, or output of a service trade, of general use or consumption, or the product or service of any public utility[,] or water carrier, with the intent to destroy the competition of any regular established dealer in the commodity, product, or service, or to prevent the competition of any person, firm, private corporation, or municipal or other public corporation, who or which in good faith, intends and attempts to become such dealer, to discriminate between different sections, communities, or cities or portions thereof, or between different locations in such sections, communities, cities, or portions thereof in this State, by selling or furnishing the commodity, product, or services at a lower rate in one section, community, or city, or any portion thereof, or in one location in such section, community, or city or any portion thereof, than in another after making allowance for difference, if any, in the grade or quality, quantity and in the actual cost of transportation from the point of production, if a raw product or a commodity, or from the point of manufacture if a manufactured product or commodity, and in the overhead cost.

     Motion picture films when delivered under a lease to motion picture houses shall not be deemed to be a commodity or product of general use, or consumption, under this part.  This part shall not be construed to prohibit the meeting in good faith of the rates of a competitor as herein defined, selling the same article or product, or service or output of a service trade in the same locality or trade area, or to prevent a reasonable classification of service by public utilities for the purpose of establishing rates.

     The inhibition hereof against locality discrimination embraces any scheme of special rebates, collateral contracts, or any device of any nature whereby such discrimination is, in substance or fact, effected in violation of the spirit and intent of this part."

     SECTION 21.  Section 481-11, Hawaii Revised Statutes, is amended to read as follows:

     "§481-11  Remedies cumulative.  The remedies prescribed in this part are cumulative and in addition to the remedies prescribed in chapter 269 for discriminations by public utilities[.] and chapter 271G for discriminations by water carriers.  If any conflict arises between this part and chapter 269, the latter prevails.  If any conflict arises between this part and chapter 271G, the latter prevails."

     SECTION 22.  Section 523A-2, Hawaii Revised Statutes, is amended by amending the definition of "utility" to read as follows:

     ""Utility" has the same meaning as the term "public utility" under section 269-1.  "Utility" includes the term water carriers under section 271G-5."

PART III

     SECTION 23.  Transfer of functions.  The functions of the public utilities commission described in chapter 271G, Hawaii Revised Statutes, shall be transferred to the maritime commission.

     SECTION 24.  Transfer of officers and employees.  All rights, powers, functions, and duties of the public utilities commission under chapter 271G, Hawaii Revised Statutes, are transferred to the maritime commission.

     All employees who occupy civil service positions and whose functions are transferred to the maritime commission by this Act shall retain their civil service status, whether permanent or temporary.  Employees shall be transferred without loss of salary, seniority (except as prescribed by applicable collective bargaining agreements), retention points, prior service credit, any vacation and sick leave credits previously earned, and other rights, benefits, and privileges, in accordance with state personnel laws and this Act; provided that the employees possess the minimum qualifications and public employment requirements for the class or position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

     Any employee who, prior to this Act, is exempt from civil service and is transferred as a consequence of this Act may retain the employee's exempt status, but shall not be appointed to a civil service position as a consequence of this Act.  An exempt employee who is transferred by this Act shall not suffer any loss of prior service credit, vacation or sick leave credits previously earned, or other employee benefits or privileges as a consequence of this Act; provided that the employees possess legal and public employment requirements for the position to which transferred or appointed, as applicable; provided further that subsequent changes in status may be made pursuant to applicable employment and compensation laws.  The chairperson of the maritime commission may prescribe the duties and qualifications of these employees and fix their salaries without regard to chapter 76, Hawaii Revised Statutes.

     SECTION 25.  Transfer of records, equipment, and other personal property.  All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the public utilities commission relating to the functions transferred to the maritime commission shall be transferred with the functions to which they relate.

     SECTION 26.  Transfer of functions; continuity of rules, policies, and other materials.  All rules, policies, procedures, guidelines, and other material adopted or developed by the public utilities commission to implement provisions of the Hawaii Revised Statutes that are made applicable to the maritime commission by this Act, shall remain in full force and effect until amended or repealed by the maritime commission pursuant to chapter 91, Hawaii Revised Statutes.

     In the interim, every reference to the public utilities commission or the chairperson of the public utilities commission in those rules, policies, procedures, guidelines, and other material is amended to refer to the maritime commission or the chairperson of the maritime commission, as appropriate.

     SECTION 27.  Transfer of functions; effect on deeds, permits, and other documents. All deeds, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the public utilities commission, which are made applicable to the maritime commission by this Act, shall remain in full force and effect.

     Effective on the same day that legislation transferring the functions of the public utilities commission to the maritime commission is approved, every reference to the public utilities commission or the chairperson of the public utilities commission therein shall be construed as a reference to the maritime commission or the chairperson of the maritime commission, as appropriate.

PART IV

     SECTION 28.  There is appropriated out of the general revenues of the State the sum of $           or so much thereof as may be necessary for fiscal year 2022-2023 to be deposited into the maritime commission special fund.

     SECTION 29.  There is appropriated out of the maritime commission special fund the sum of $           or so much thereof as may be necessary for fiscal year 2022-2023 for the purposes of this Act.

     The sum appropriated shall be expended by the maritime commission for the purposes of this Act.

PART V

     SECTION 30.  In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 31.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 32.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 33.  This Act shall take effect on July 1, 2022.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Water Carriers; Maritime Commission; Establishment; Public Utilities Commission; Transfer of Functions; Maritime Commission Special Fund; Appropriation

 

Description:

Establishes the maritime commission to oversee the regulation of water carriers in the State.  Transfers the oversight of water carriers by the public utilities commission to the maritime commission and makes associated conforming amendments.  Establishes the maritime commission special fund.  Makes an appropriation.  Effective 7/1/2022.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.