Legislature(2005 - 2006)
2005-05-09 House Journal
Full Journal pdf2005-05-09 House Journal Page 1841 SB 174 The following, which was held over from the May 8, 2005, calendar (page 1817), was again before the House: HOUSE CS FOR SENATE BILL NO. 174(FIN) am H "An Act excluding certain trucks and vehicles provided by automobile dealers as replacement transportation during warranty, recall, or service contract repairs from the definition of 'passenger vehicle' for purposes of the passenger vehicle rental tax; and providing for an effective date." (HCR 18 - title change resolution) Representative Gatto moved and asked unanimous consent that HCS SB 174(FIN) am H be returned to second reading for the specific purpose of considering Amendment No. 4. There being no objection, it was so ordered. Amendment No. 4 was offered by Representative Gatto: Page 1, line 3, following "tax;" (title amendment): Insert "providing for taxation of certain commercial ship vessels, pertaining to certain vessel activities and related to ship vessel operations taking place in the marine water of the State of Alaska;" 2005-05-09 House Journal Page 1842 Page 1, following line 5: Insert a new bill section to read: "* Section 1. AS 43.20.021(a) is amended to read: (a) Sections 26 U.S.C. 1 - 1399 and 6001 - 7872 (Internal Revenue Code), as amended, are adopted by reference as a part of this chapter. These portions of the Internal Revenue Code have full force and effect under this chapter unless excepted to or modified by other provisions of this chapter. However, (1) nothing in this chapter or in AS 43.19 (Multistate Tax Compact) may be construed as an exception to or modification of 26 U.S.C. 883; and (2) the provisions of (1) of this subsection do not apply to commercial passenger vessels, as defined in AS 43.52.199." Page 1, line 6: Delete "Section 1" Insert "Sec. 2" Renumber the following bill sections accordingly. Page 2, line 14: Delete all material and insert: "* Sec. 3. AS 43.52 is amended by adding new sections to read: Article 2. Excise Tax on Travel Aboard Commercial Passenger Vessels. Sec. 43.52.100. Levy of excise tax on overnight accommodations on commercial passenger vessels. There is imposed an excise tax on travel on commercial passenger vessels providing overnight accommodations in the state's marine water. Sec. 43.52.110. Rate of tax. The tax imposed by AS 43.52.100 - 43.52.199 is levied at a rate of $46 a passenger a voyage. Sec. 43.52.120. Liability for payment of tax. A passenger traveling on a commercial passenger vessel providing overnight accommodations in state marine waters is liable for the tax imposed by AS 43.52.100 - 43.52.199. The tax shall be collected and is due and payable (1) by the person who provides travel aboard a commercial vessel for which the tax is payable; and (2) in the manner and at the times required by the 2005-05-09 House Journal Page 1843 department by regulation. Sec. 43.52.130. Disposition of receipts. (a) The proceeds from the tax on travel on commercial passenger vessels providing overnight accommodations in the state marine water shall be deposited in a commercial vessel passenger tax account in the general fund. The legislature may appropriate money from this account for the purposes described in (b) and (c) of this section, for state-owned port and harbor facilities, for other services to properly provide for vessel or watercraft visits, to enhance the safety and efficiency of interstate and foreign commerce, and for other lawful purposes as determined by the legislature. (b) For each sailing of a commercial passenger vessel providing overnight accommodations, the commissioner shall identify the first five ports of call in the state and the number of passengers on board the vessel at each port of call. Subject to appropriation by the legislature, the commissioner shall distribute to each port of call $5 per passenger of the tax revenue collected from the tax levied under AS 43.52.100 - 43.52.199. If the port of call is a city located within a borough that is not unified with the borough, the commissioner shall, subject to appropriation by the legislature, distribute $2.50 per passenger to the city and $2.50 to the borough. Each port of call receiving funds under this section shall use the funds in a manner calculated to improve port and harbor facilities, and for other services to properly provide for vessel or watercraft visits, and to enhance the safety and efficiency of interstate and foreign commerce. (c) Within the special commercial vessel passenger tax account established in (a) of this section, a regional cruise ship impact subaccount is established. The subaccount consists of 25 percent of the proceeds from the tax on travel aboard commercial passenger vessels providing overnight accommodations in the marine water of the state. Subject to appropriation by the legislature and regulations adopted by the department, the commissioner shall distribute funds to municipalities or other governmental entities within the Prince William Sound region, Southeast Alaska, or any other distinctive region affected by cruise-ship-related tourism activities but not entitled to receive funds based on port-of-call visitation as allowed by (b) of this section. The commissioner shall make the distribution authorized by the subsection only if the funds are used by the recipient to 2005-05-09 House Journal Page 1844 provide services and infrastructure directly related to passenger vessel or watercraft visits or to enhance the safety and efficiency of interstate and foreign commerce related to vessel or watercraft activities. Sec. 43.52.140. Administration. (a) The department shall (1) administer AS 43.52.100 - 43.52.199; and (2) collect, and supervise and enforce the collection of, taxes due under AS 43.52.100 - 43.52.199 and penalties as provided in AS 43.05. (b) The department may adopt regulations to carry out the purposes of AS 43.52.100 - 43.52.199. Sec. 43.52.150. Local levies. Any municipality, whether home rule or general law, that receives passenger ship fee funds under this chapter may not impose a similar form of tax on travel on commercial passenger vessels engaged in activities involving overnight accommodations for passengers in state marine water. Any form of tax on travel on commercial passenger vessels engaged in activities involving overnight accommodations for passengers in state marine water enacted by a municipality, whether home rule or general law, before the effective date of AS 43.52.100 - 43.52.199 shall expire one year after the date that AS 43.52.100 - 43.52.199 becomes law if that municipality elects to receive funds under this chapter. Sec. 43.52.199. Definitions. In AS 43.52.100 - 43.52.199, unless the context otherwise requires, (1) "commercial passenger vessel" means a boat vessel that is used in the common carriage of passengers in commerce; "commercial passenger vessel" does not include (A) vessels with fewer than 250 berths or other overnight accommodations for passengers; (B) noncommercial vessels, warships, and vessels operated by the state, the United States, or a foreign government; (2) "marine water of the state" and "state marine water" have the meaning given to "waters" in AS 46.03.900, except that they include only marine water. contracted for carriage from one place to another; (3) "passenger" means a person with whom a common carrier has contracted for carriage from one place to another; (4) "voyage" means any trip or itinerary lasting more than 2005-05-09 House Journal Page 1845 72 hours. * Sec. 4. AS 45.50.474 is repealed and reenacted to read: Sec. 45.50.474. Required disclosures in promotions on board cruise ships. (a) A person may not conduct a promotion on board a cruise ship that mentions or features a business in a state port that has paid something of value for the purpose of having the business mentioned, featured, or otherwise promoted, unless the person conducting the promotion clearly and fully discloses orally and in all written materials used in the promotion that the featured businesses have paid to be included in the promotion. Each written notice of disclosure required by this subsection shall be in a typeface of not less than 14 points and in a contrasting color calculated to draw attention to the disclosure. (b) A person or other entity aboard a cruise ship conducting or making a sale of tours, flightseeing operation or other shore- side activities to be delivered by a vendor or other entity at a future port of call shall disclose, both orally and in writing, the amount of commission or percentage of the total sale retained or returned to the person making the sale. The person or entity aboard a cruise ship making or attempting to make a sale of services or goods provided by a shore-side vendor shall disclose the address and telephone number of the shore side vendor if asked by a customer. Each written notice of disclosure required by this subsection shall be in a typeface of not less than 14 points and in a contrasting color calculated to draw attention to the disclosure. (c) Each violation of this section constitutes an unfair trade practice under AS 45.50.471, and shall result in a penalty of not more than $100 for each violation. (d) In this section, "cruise ship" means a ship that operates at least 48 hours in length for ticketed passengers, provides overnight accommodations and meals for at least 250 passengers, is operated by an authorized cruise ship operator, and is certified under the International Convention for the Safety of Life at Sea or otherwise certified by the United States Coast Guard. * Sec. 5. AS 46.03.462 is repealed and reenacted to read: Sec. 46.03.462. Terms and conditions of discharges. (a) An owner or operator may not discharge any treated sewage, graywater, or other wastewater from a large commercial passenger vessel into the marine waters of the state unless the owner or 2005-05-09 House Journal Page 1846 operator obtains a permit under AS 46.03.100, which shall comply with the terms and conditions of vessel discharge requirements specified in (b) of this section. (b) The minimum standard terms and conditions for all discharge permits authorized under this provision require that the owner or operator (1) may not discharge untreated sewage, treated sewage, graywater, or other wastewater in a manner that violates any applicable effluent limits or standards under state or federal law, including state water quality standards governing pollution at the point of discharge; (2) shall maintain records and provide the reports required under AS 46.03.465(a); (3) shall collect and test samples as required under AS 46.03.465(b) and (d) and provide the reports with respect to those samples required by AS 46.03.475(c); (4) shall report discharges in accordance with AS 46.03.475(a); (5) shall allow the department access to the vessel at the time samples are taken under AS 46.03.465 for purposes of taking the samples or for purposes of verifying the integrity of the sampling process; and (6) shall submit records, notices, and reports to the department in accordance with AS 46.03.475(b), (d), and (e). * Sec. 6. AS 46.03.463(b) is amended to read: (b) Except as provided in (h) of this section [OR UNDER AS 46.03.462(c) - (e)], a person may not discharge sewage from a commercial passenger vessel into the marine waters of the state that has suspended solids greater than 150 milligrams per liter or a fecal coliform count greater than 200 colonies per 100 milliliters except that the department may by regulation adopt a protocol for retesting for fecal coliform, if this discharge limit for fecal coliform is exceeded, under which a discharger will be considered to be in compliance with the fecal coliform limit if the geometric mean of fecal coliform count in the samples considered under the protocol does not exceed 200 colonies per 100 milliliters. [UPON SUBMISSION BY THE OWNER OR OPERATOR OF A SMALL COMMERCIAL PASSENGER VESSEL OF A PLAN FOR INTERIM PROTECTIVE MEASURES UNDER AS 46.03.462(c)(2) AND (d), THE DEPARTMENT SHALL 2005-05-09 House Journal Page 1847 EXTEND THE TIME FOR COMPLIANCE OF THAT VESSEL WITH THIS SUBSECTION.] * Sec. 7. AS 46.03.463(c) is amended to read: (c) Except as provided in (h) of this section [OR UNDER AS 46.03.462(c) - (e)], a person may not discharge graywater or other wastewater from a commercial passenger vessel into the marine waters of the state that has suspended solids greater than 150 milligrams per liter or a fecal coliform count greater than 200 colonies per 100 milliliters except that the department may by regulation adopt a protocol for retesting for fecal coliform, if this discharge limit for fecal coliform is exceeded, under which a discharger will be considered to be in compliance with the fecal coliform limit if the geometric mean of fecal coliform count in the samples considered under the protocol does not exceed 200 colonies per 100 milliliters. Upon submission by the owner or operator of a large commercial passenger vessel of a plan for interim protective measures, the department shall extend the time for compliance of that vessel with this subsection for a period of time that ends not later than January 1, 2003. [UPON SUBMISSION BY THE OWNER OR OPERATOR OF A SMALL COMMERCIAL PASSENGER VESSEL OF A PLAN FOR INTERIM PROTECTIVE MEASURES UNDER AS 46.03.462(c)(2) AND (d), THE DEPARTMENT SHALL EXTEND THE TIME FOR COMPLIANCE OF THAT VESSEL WITH THIS SUBSECTION.] * Sec. 8. AS 46.03.463(e) is repealed and reenacted to read: (e) An owner or operator may not discharge any treated sewage, graywater, or other wastewater from a large commercial passenger vessel into the marine waters of the state unless the owner or operator obtains a permit under AS 46.03.100 and 46.03.462, and the vessel is not in an area where the discharge of treated sewage, graywater, or other wastewater is otherwise prohibited. * Sec. 9. AS 46.03.465(a) is repealed and reenacted to read: (a) The owner or operator of a commercial passenger vessel shall maintain daily records related to the period of operation while in the state, detailing the dates, times, and locations, and the volumes and flow-rates of any discharges of sewage, graywater, or other wastewater into the marine waters of the state, and provide electronic copies of the records on a monthly basis to the 2005-05-09 House Journal Page 1848 department no later than five days after each calendar month of operation in state waters. * Sec. 10. AS 46.03.465(b) is repealed and reenacted to read: (b) While a commercial passenger vessel is present in the marine waters of the state, the owner or operator of the vessel shall provide an hourly report of the vessel's location based on global positioning system technology and collect routine samples of the vessel's treated sewage, graywater, and other wastewater that are being discharged into the marine waters of the state. * Sec. 11. AS 46.03.465(c) is repealed and reenacted to read: (c) While a commercial passenger vessel is present in the marine waters of the state, the department, or an independent contractor retained by the department, may collect additional samples of the vessel's treated sewage, graywater, and other wastewaters being discharged into the marine waters of the state. * Sec. 12. AS 46.03.465(d) is repealed and reenacted to read: (d) The owner or operator of a vessel required to collect samples under (b) of this section shall ensure that all sampling techniques and frequency of sampling events are approved by the department in a manner sufficient to ensure demonstration of compliance with all discharge requirements under AS 46.03.462. * Sec. 13. AS 46.03 is amended by adding a new section to read: Sec. 43.03.476. Ocean Rangers. (a) An owner or operator of a large commercial passenger vessel entering the marine waters of the state is required to have a marine engineer licensed by the United States Coast Guard hired or retained by the department on board the vessel to act as an independent observer for the purpose of monitoring state and federal requirements pertaining to marine discharge and pollution requirements and to ensure that passengers, crew, and residents at ports are protected from improper sanitation, health, and safety practices. (b) The licensed marine engineer shall monitor, observe, and record data and information related to the engineering, sanitation, and health-related operations of the vessel, including registration, reporting, record keeping, and discharge functions required by state and federal law. (c) Any information recorded or gathered by the licensed marine engineer shall be promptly conveyed to the department and the United States Coast Guard on a form or in a manner approved by the commissioner. The commissioner may share information 2005-05-09 House Journal Page 1849 gathered with other state and federal agencies. * Sec. 14. AS 46.03.480 is amended by adding a new subsection to read: (e) An additional fee in the amount of $4 a berth, is imposed on all large commercial passenger vessels, other than vessels operated by the state, for the purpose of operating the Ocean Ranger program established in AS 46.03.476; the program shall be subject to legislative appropriation. * Sec. 15. AS 46.03 is amended by adding a new section to read: Sec. 46.03.481. Citizens' suits. (a) Any citizen of the State of Alaska may commence a civil action (1) against an owner or operator of a large passenger vessel alleged to have violated any provision of AS 46.03.460 - 46.03.490, or (2) against the department where there is an alleged failure to perform any act or duty under AS 46.03.460 - 46.03.490 that is not discretionary. No civil action may be commenced under this section, however, prior to 45 days after the plaintiff has provided written notice of the intent to sue to the attorney general. (b) Subject to appropriation, as necessary, up to 50 percent and not less than 25 percent of any fines, penalties or other funds recovered as a result of enforcement of AS 46.03.460 - 46.03.490 shall be paid to the person or entity, other than the defendant, providing information sufficient to commence an investigation and enforcement of AS 46.03.460 - 46.03.490 under this provision. * Sec. 16. AS 46.03.760 is amended by adding a new subsection to read: (g) An owner, agent, employee or operator of a commercial passenger vessel as defined in AS 43.52.199 who falsifies a registration or report required by AS 46.03.460 or 46.03.475 or who violates or causes or permits to be violated a provision of AS 46.03.250 - 46.03.313, AS 46.03.460 - 46.03.490, AS 46.14, or a regulation, a lawful order of the department, or a permit, approval, or acceptance, or term or condition of a permit, approval, or acceptance issued under AS 46.03.250 - 46.03.314, AS 46.03.460 - 46.03.490, or AS 46.14 is liable, in a civil action, to the state for a sum to be assessed by the court of not less than $5,000 nor more than $100,000 for the initial violation, nor more than $10,000 for each day after that on which the violation continues, and that shall reflect, when applicable, 2005-05-09 House Journal Page 1850 (1) reasonable compensation in the nature of liquidated damages for any adverse environmental effects caused by the violation, that shall be determined by the court according to the toxicity, degradability, and dispersal characteristics of the substance discharged, the sensitivity of the receiving environment, and the degree to which the discharge degrades existing environmental quality; for a violation relating to AS 46.14, the court, in making its determination under this paragraph, shall also consider the degree to which the discharge causes harm to persons or property; this paragraph may not be construed to limit the right of parties other than the state to recover for personal injuries or damage to their property; (2) reasonable costs incurred by the state in detection, investigation, and attempted correction of the violation; (3) the economic savings realized by the person in not complying with the requirement for which a violation is charged; and (4) the need for an enhanced civil penalty to deter future noncompliance. * Sec. 17. AS 46.03.463(d) and 46.03.463(g) are repealed. * Sec. 18. Sections 3 and 5, ch. 153, SLA 2004, are repealed. * Sec. 19. The uncodified law of the State of Alaska is amended by adding a new section to read: TRANSITION: REGULATIONS. The Department of Revenue may proceed to adopt regulations to implement sec. 3 of this Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date of sec. 3 of this Act. * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to read: SEVERABILITY. Any portion of this legislation that is declared unlawful shall be stricken in a manner that preserves the remaining portion of the remaining legislation to the maximum extent possible. * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to read: REVISOR'S INSTRUCTION: The revisor of statutes shall substitute "AS 43.52.010 - 43.52.099" for "this chapter" wherever "this chapter" occurs in AS 43.52.010 - 43.52.099. * Sec. 22. Section 16, ch. 153, SLA 2004, is amended to read: Sec. 16. Sections [3, 5,] 8, 10, 12, and 13 of this Act take effect January 1, 2016. 2005-05-09 House Journal Page 1851 * Sec. 23. This Act takes effect immediately under AS 01.10.070(c)." Representative Gatto moved and asked unanimous consent that Amendment No. 4 be adopted. Representative Rokeberg objected and rose to a point of order citing Rule 35 of the Uniform Rules. The Speaker ruled that the amendment was in order. Representative Ramras placed a call of the House. The call was satisfied. The question being: "Shall Amendment No. 4 be adopted?" The roll was taken with the following result: HCS SB 174(FIN) am H Second Reading Amendment No. 4 YEAS: 7 NAYS: 29 EXCUSED: 4 ABSENT: 0 Yeas: Berkowitz, Cissna, Gara, Gardner, Gatto, Guttenberg, Kerttula Nays: Anderson, Chenault, Coghill, Croft, Dahlstrom, Elkins, Foster, Harris, Hawker, Holm, Joule, Kapsner, Kelly, Kohring, Kott, LeDoux, Lynn, McGuire, Meyer, Moses, Neuman, Olson, Ramras, Rokeberg, Salmon, Samuels, Stoltze, Thomas, Wilson Excused: Crawford, Gruenberg, Seaton, Weyhrauch And so, Amendment No. 4 was not adopted. The question being: "Shall HCS SB 174(FIN) am H pass the House?" The roll was taken with the following result: HCS SB 174(FIN) am H Third Reading Final Passage YEAS: 35 NAYS: 1 EXCUSED: 4 ABSENT: 0 2005-05-09 House Journal Page 1852 Yeas: Anderson, Berkowitz, Chenault, Cissna, Coghill, Croft, Dahlstrom, Elkins, Foster, Gara, Gardner, Gatto, Guttenberg, Harris, Hawker, Holm, Joule, Kapsner, Kelly, Kerttula, Kohring, Kott, LeDoux, Lynn, McGuire, Meyer, Moses, Neuman, Olson, Ramras, Salmon, Samuels, Stoltze, Thomas, Wilson Nays: Rokeberg Excused: Crawford, Gruenberg, Seaton, Weyhrauch And so, HCS SB 174(FIN) am H passed the House. Representative Coghill moved and asked unanimous consent that the roll call on the passage of the bill be considered the roll call on the effective date clause. There being no objection, it was so ordered. Representative Croft gave notice of reconsideration of the vote on HCS SB 174(FIN) am H.