HB 192: "An Act relating to requirements to obtain and maintain a fisheries business license; relating to security required of fish processors and primary fish buyers; and providing for an effective date."
00 HOUSE BILL NO. 192 01 "An Act relating to requirements to obtain and maintain a fisheries business license; 02 relating to security required of fish processors and primary fish buyers; and providing 03 for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 43.75.020 is amended to read: 06 Sec. 43.75.020. Application for license. (a) Application for a license shall 07 be filed with the department and accompanied by an annual fee of $25. A separate 08 annual fee is required for each plant specified in the application covered by the 09 license. The application must contain the name of the applicant, the line of business to 10 be licensed, place of business, and other facts that the department prescribes. The 11 applicant shall state that the applicant, as a condition of obtaining and maintaining 12 the license, agrees to pay 13 (1) the taxes levied under this title [TAX IMPOSED BY 14 AS 43.75.015 OR 43.75.100], and that the applicant will make a return and pay the
01 taxes [TAX] at the time provided by law; 02 (2) any seafood marketing assessment levied under AS 16.51; 03 (3) contributions imposed under AS 23.20 (Alaska Employment 04 Security Act); and 05 (4) any administrative penalties assessed under AS 18.60.093 for a 06 violation of a provision of AS 18.60.010 - 18.60.105. 07 (b) Upon receipt of an [THE] application in proper form under (a) or (c) of 08 this section, accompanied by the annual fee, the department shall issue the license if 09 the 10 (1) applicant has paid in full, including interest and penalties, the 11 following: 12 (A) taxes levied under this title; and 13 (B) any assessments under AS 16.51; and 14 (2) department has not received from the Department of Labor 15 and Workforce Development notification that the applicant has failed to pay in 16 full 17 (A) an assessment of delinquent contributions that is final 18 under AS 23.20.205(c) or 23.20.220(c); or 19 (B) an administrative penalty that is final under 20 AS 18.60.093 or 18.60.097. 21 (c) Instead of a license issued under (a) of this section, the department may 22 issue a direct marketing fisheries business license to a licensed commercial fisherman 23 who processes fishery resources caught using a vessel that does not exceed 65 feet in 24 overall length and is owned or leased by the commercial fisherman. The licensee may 25 place into commerce in the state and outside of the state processed or unprocessed 26 fishery resources caught using the vessel described in the license. Fishery resources 27 that are caught using the vessel and owned by the licensee from the time of harvest 28 through sale, as defined by the department by regulation, may be processed by the 29 licensee on the vessel, at a shore-based facility, or by means of custom processing 30 services obtained by the licensee. An application for a direct marketing fisheries 31 business license shall be filed with the department and accompanied by an annual fee
01 of $25. A separate direct marketing fisheries business license and annual license fee 02 are required for each vessel on which processing is performed. The application must 03 state the name and address of the applicant, the fisheries resources for which the 04 applicant holds a commercial fishing entry permit or interim-use permit or quota 05 share, a description of the vessel and each shore-based facility where the applicant will 06 process fishery resources, and other information that the department prescribes by 07 regulation. The application must state that the applicant, as a condition of obtaining 08 and maintaining the license, agrees to pay the taxes, assessment, employment 09 security contributions, and penalties as set out in (a)(1) - (4) of this section [TAX 10 IMPOSED BY AS 43.75.015(d) OR 43.75.100, AND THAT THE APPLICANT 11 WILL MAKE A RETURN AND PAY THE TAX AT THE TIME PROVIDED BY 12 LAW]. A person who holds a direct marketing fisheries business license may not 13 under that license (1) purchase fishery resources for resale or processing for sale; or 14 (2) process fishery resources for another licensed commercial fisherman or for a 15 fisheries business licensed under this chapter. In this subsection, "licensed 16 commercial fisherman" means a natural person who holds a commercial fishing entry 17 permit or interim-use permit issued under AS 16.43 or a quota share issued under 18 federal law. 19 * Sec. 2. AS 44.25.040 is repealed and reenacted to read: 20 Sec. 44.25.040. Security for certain obligations. (a) A person applying for a 21 license as a fish processor or primary fish buyer shall file with the commissioner of 22 revenue a performance bond, conditioned upon the promise to pay the following: 23 (1) wages owing to all persons employed by the fish processor or 24 primary fish buyer, including contractual employee benefits; 25 (2) independent registered commercial fishermen for the price of the 26 raw fishery resource purchased from them; 27 (3) contributions imposed under AS 23.20 (Alaska Employment 28 Security Act). 29 (b) A fish processor that processes more than 30,000 pounds of fish a year and 30 a primary fish buyer shall file a performance bond with the commissioner in the 31 amount specified in this subsection. The amount of the bond is $10,000 unless, during
01 the five years preceding the application, one of the following has occurred: 02 (1) a final judgment in excess of $10,000 was awarded against the 03 bond required under this section; if the final judgment against the bond was in excess 04 of $10,000 but less than $50,000, the amount of the bond is increased to a total of 05 $50,000; if the final judgment against the bond was $50,000 or more, the amount of 06 the bond is increased to a total of $100,000; 07 (2) the commissioner has determined that a fish processor or primary 08 fish buyer has engaged in the business of fish processor or primary fish buyer in the 09 state while not in compliance with this section and has not yet satisfied a final 10 judgment entered against the processor or fish buyer for payment for labor furnished 11 to, or raw fishery resources purchased by, the processor or fish buyer, the amount of 12 the bond is increased to a total of $100,000; or 13 (3) the commissioner has determined under (i) of this section that a 14 claim against the bond filed by the Department of Labor and Workforce Development 15 under (h) of this section met the requirements in (h) of this section; if the amount of 16 the claim was in excess of $10,000 but was less than $50,000, the amount of the bond 17 is increased to a total of $50,000; if the amount of the claim was $50,000 or more, the 18 amount of the bond is increased to a total of $100,000; an increase in bond amount 19 under this paragraph may not be imposed until 45 days after the commissioner 20 determined under (i) of this section that the Department of Labor and Workforce 21 Development claim met the requirements in (h) of this section. 22 (c) A fish processor that processes 30,000 pounds or less of fish a year shall 23 file a performance bond with the commissioner in the amount specified in this 24 subsection. The amount of the bond is $2,000 unless, during the preceding five years, 25 one of the following has occurred: 26 (1) a final judgment in excess of $2,000 was awarded against the bond 27 required under this section; if the final judgment against the bond was in excess of 28 $2,000 but less than $10,000, the amount of the bond is increased to a total of 29 $10,000; if the final judgment against the bond was $10,000 or more, the amount of 30 the bond is increased to a total of $20,000; 31 (2) the commissioner has determined that a fish processor or primary
01 fish buyer has engaged in the business of fish processor in the state while not in 02 compliance with this section, and has not yet satisfied a final judgment entered against 03 the processor for payment for labor furnished to, or raw fishery resources purchased 04 by, the processor, the amount of the bond is increased to a total of $20,000; or 05 (3) the commissioner has determined under (i) of this section that a 06 claim against the bond filed by the Department of Labor and Workforce Development 07 under (h) of this section met the requirements in (h) of this section; if the amount of 08 the claim was in excess of $2,000 but was less than $10,000, the amount of the bond is 09 increased to a total of $10,000; if the amount of the claim was $10,000 or more, the 10 amount of the bond is increased to a total of $20,000; an increase in bond amount 11 under this paragraph may not be imposed until 45 days after the commissioner 12 determined under (i) of this section that the Department of Labor and Workforce 13 Development claim met the requirements in (h) of this section. 14 (d) If a fish processor who has filed a performance bond under (c) of this 15 section processes more than 30,000 pounds of fish in a year, the processor shall, 16 within seven days from the day on which the 30,000 pound threshold is exceeded, 17 notify the commissioner and comply with (b) of this section. If a processor who has 18 filed a performance bond under (c) of this section processes more than 30,000 pounds 19 of fish in a year, and does not comply with (b) of this section within seven days from 20 the date on which the 30,000 pound threshold is exceeded, the processor shall suspend 21 processing fish until a bond has been filed under (b) of this section. 22 (e) A fish processor or primary fish buyer may use only a surety bond, cash 23 deposit, or other negotiable security as a performance bond under this section. The 24 surety must be satisfactory in the determination of the commissioner. The use of other 25 negotiable security as a performance bond must be in a form acceptable to the 26 commissioner. The commissioner may waive the filing of a performance bond under 27 this section if the fish processor or primary fish buyer 28 (1) has more than $10,000 in lienable real property located within the 29 state; 30 (2) provides proof of this property in a form satisfactory to the 31 commissioner;
01 (3) is not required under (b) or (c) of this section to post a bond in 02 excess of $10,000; and 03 (4) within the five years preceding the application under AS 43.75.020, 04 an employee or fisherman has not obtained a final judgment against the fish processor 05 or fish buyer's bond under this section. 06 (f) If an applicant for a license as a fish processor or primary fish buyer has 07 complied with this section, the Department of Revenue may issue that applicant a 08 license to engage in the business of fish processor or primary fish buyer. 09 (g) A claim against a fish processor or primary fish buyer for failing to pay an 10 employee for wages or contractual benefits owed, or for failing to pay an independent 11 registered fisherman for the price of raw fishery resource purchased from the 12 fisherman, may be brought upon the bond filed under this section in the superior court 13 of the judicial district in which the work was done or in any judicial district in the state 14 in which jurisdiction may be obtained. If an action is brought upon the bond, a copy 15 of the complaint shall be served by registered or certified mail upon the commissioner 16 at the time the suit is filed. The commissioner shall transmit a copy of the complaint 17 and any judgment to the surety or holder of the negotiable security. If a judgment is 18 entered against cash deposited with the commissioner, the commissioner, upon receipt 19 of a certified copy of a final judgment, shall pay the judgment from the amount of the 20 deposit. The commissioner shall maintain a record, available for public inspection, of 21 all suits commenced under this subsection. 22 (h) A claim against a fish processor or primary fish buyer for failing to pay 23 contributions imposed under AS 23.20 may be brought by the Department of Labor 24 and Workforce Development against the bond filed under this section by filing a claim 25 against the bond with the commissioner, along with proof, satisfactory to the 26 commissioner, that the fish processor or primary fish buyer 27 (1) received a notice of assessment under AS 23.20.205; 28 (2) did not pay the amount specified in the notice of assessment within 29 30 days after receiving the notice of assessment, or if the assessment was contested 30 under AS 23.20.220, within 30 days after receiving the department's final decision 31 under AS 23.20.220(c); and
01 (3) did not file an appeal of this assessment under AS 23.20.220 or 02 filed an appeal but did not initiate a proceeding for judicial review under 03 AS 23.20.445 within 30 days after the department's final decision under 04 AS 23.20.220(c). 05 (i) If the commissioner determines that the Department of Labor and 06 Workforce Development has met the claim requirements in (h) of this section, the 07 commissioner shall forward the claim and supporting documents to the surety or 08 holder of the negotiable security. If the fish processor or primary fish buyer has 09 deposited cash with the commissioner, the commissioner shall pay the Department of 10 Labor and Workforce Development's claim from the amount of the deposit. If the 11 commissioner determines that the Department of Labor and Workforce Development 12 has not met the claim requirements in (h) of this section, the commissioner shall 13 provide the Department of Labor and Workforce Development with written notice of 14 the deficiency of its claim. 15 (j) If a performance bond is insufficient to satisfy all claims filed against it 16 under this section, claims brought against the bond under (g) of this section have 17 priority over a claim filed against the bond under (h) of this section. The Department 18 of Labor and Workforce Development shall return to the commissioner money 19 received from a claim filed against a fish processor or primary fish buyer's 20 performance bond under (h) of this section if an employee or fisherman obtains a final 21 judgment under (g) of this section against that processor or fish buyer's bond and the 22 (1) processor or fish buyer has not replenished the bond after it was 23 used to cover the claim filed under (h) of this section; or 24 (2) final judgment obtained by the employee or fisherman is more than 25 the amount of the bond available under (b) or (c) of this section. 26 (k) The term of a performance bond expires two years after the fish processor 27 or fish buyer is no longer licensed under this section, except that if during that two- 28 year period a claim has been asserted against the bond, the term of the bond is five 29 years. If the surety on the bond wishes to cancel the bond, the surety may do so by 30 giving the commissioner written notice of intention to cancel. The cancellation is 31 effective 30 days after the notice is delivered to the commissioner.
01 * Sec. 3. AS 44.25.042 is amended by adding a new subsection to read: 02 (h) If the commissioner determines under AS 44.25.040(i) that a claim filed 03 under AS 44.25.040(h) is sufficient to allow collection against the performance bond 04 filed under AS 44.25.040, the fish processor or primary fish buyer's license shall be 05 suspended until the amount of the claim under AS 44.25.040(h) is paid in full and the 06 performance bond is replenished. 07 * Sec. 4. This Act takes effect immediately under AS 01.10.070(c).