Legislature(1995 - 1996)

03/21/1996 01:50 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL 362                                                               
                                                                               
       "An Act extending the motor fuel tax exemption for fuel                 
       sold for use in jet propulsion aircraft to fuel used in                 
       those aircraft for flights that continue from a foreign                 
       country."                                                               
                                                                               
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  Commissioner Perkins provided an update  on the issues which                 
  were left  outstanding from  the previous  meeting regarding                 
  the  proposed  legislation.   The  first issue  concerns the                 
  management of  the Foreign  Trade Zone  (FTZ) in  Anchorage.                 
  The  Municipality  of  Anchorage  and  the State  of  Alaska                 
  committed to a meeting to discuss the State's involvement in                 
  management issues related  to State  land in the  FTZ.   The                 
  meeting did occur  and agreement was reached that  the State                 
  would  be  included in  any decision  on  the FTZ.   Details                 
  remain to be worked out relative  to the existing use of the                 
  FTZ.  He provided a letter from Mayor Rick Mystrom regarding                 
  the Anchorage FTZ.  [Copy on file].                                          
                                                                               
  The  second  concern  addressed the  availability  of Custom                 
  Bonded  Warehousing  for the  storage of  AvJet fuel.   That                 
  issue has been researched thoroughly, concluding that in the                 
  State's  ability  to  tax,  there   would  be  no  practical                 
  difference.  He  noted that either  one, an FTZ or  a Custom                 
  Bonded Warehouse could be  used for the purpose that  FTZ is                 
  used today.   However, it would  also clarify that a  Custom                 
  Bonded  Warehouse would  have  disadvantages  that  are  not                 
  present with an  FTZ.  In  a Custom Bonded Warehouse,  goods                 
  must be segregated from the  moment they enter the warehouse                 
  until they leave.  For an FTZ, there is no such requirement.                 
                                                                               
                                                                               
  JEFF COOK, (TESTIFIED  VIA TELECONFERENCE),  VICE-PRESIDENT,                 
  EXTERNAL   AFFAIRS   &   ADMINISTRATION,  MAPCO   PETROLEUM,                 
  ANCHORAGE, stated that the only way to  provide the in-state                 
  refineries protection would  be through  passage of HB  362.                 
  He pointed out that Fed Ex has testified that they intend to                 
  use bonded fuel.                                                             
                                                                               
  (Tape Change, HFC 96-84, Side 1).                                            
                                                                               
  Mr.  Cook reiterated MAPCO's position  of support for HB 362                 
  which  he  thought would  "level  the  playing field".    In                 
  response  to  Representative  Navarre's question,  Mr.  Cook                 
  stated that bonded fuel has been available since the 1930's.                 
  Representative Navarre asked  if it  had always been  exempt                 
  from the tax, and if so why had it not eliminated the demand                 
  from  the  market.    Mr.  Cook  admitted that  he  was  not                 
  qualified to  answer  that query,  although reiterated  that                 
  Alaska does not refine enough jet fuel for the demand.                       
                                                                               
  Representative  Navarre  suggested  that  in-state  refiners                 
  might already have  a competitive  advantage.  He  requested                 
  information on the  current MAPCO profit  margin.  Mr.  Cook                 
  stated that MAPCO  competes against  other refiners and  was                 
  not willing to  lay out their  costs.  He assured  Committee                 
  members that  shipping costs  through the  FTZ were  cheaper                 
                                                                               
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  than what local refiners pay to ship via the Alaska Railroad                 
  from Fairbanks.                                                              
                                                                               
  Representative Navarre maintained that bonded fuel has  been                 
  available and has not  yet glutted the market.   He believed                 
  that  would  not  happen,  emphasizing  that the  3.2  cents                 
  charged by the State is not the only factor in the equation.                 
  Representative Navarre emphasized that enough information is                 
  not  available to make  the decision recommended.   Mr. Cook                 
  agreed that the  tax is not the only variable.  Business has                 
  become  much more  competitive  and the  airlines definitely                 
  have interest in  saving money.   He emphasized that in  the                 
  fourth  quarter, 1995,  20 million gallons  of jet  fuel did                 
  come  into  the  Alaskan market.    He  urged  that the  tax                 
  advantage  for  the  foreign  refined  fuel  be  eliminated.                 
  Discussion continued between Representative  Navarre and Mr.                 
  Cook.                                                                        
                                                                               
  Representative Navarre  questioned the  two cent  per gallon                 
  flowage fee lifted at the airport.   He asked if that was  a                 
  charge on all fuel pumped at the airport.                                    
                                                                               
  KURT   PARKAN,   DEPUTY   COMMISSIONER,   OFFICE   OF    THE                 
  COMMISSIONER,  DEPARTMENT  OF   TRANSPORTATION  AND   PUBLIC                 
  FACILITIES  (DOTPF),  stated  that  the  fuel  flowage   fee                 
  circulates back  into the  enterprise fund  at the  airport.                 
  Most of  that is  collected through  an operating  agreement                 
  with the  air carriers.  That  agreement is based on  a five                 
  year operating agreement during which time, the fuel flowage                 
  fees can not  be increased.   The fuel users within  the FTZ                 
  are nearly all members of the operating agreement.                           
                                                                               
  Members   discussed   the    concept   of   profit   margin.                 
  Representative  Therriault  spoke  to   the  advantages  and                 
  disadvantages among private sector in determining the profit                 
  margin.   Co-Chair Hanley  inquired if fuel  that came  into                 
  Alaska   had   displaced   any   Alaska   refined   product.                 
  Representative  Navarre   suggested  that  it  had   been  a                 
  balancing influence in the competitive market.                               
                                                                               
  Commissioner Perkins stated  that DOTPF wants to  "level the                 
  playing  field",  although he  felt that  enough information                 
  indicating  that  it   was  not  currently  level,   is  not                 
  available.  The Department plans to proceed to work with the                 
  Municipality of Anchorage addressing the  FTZ portion of the                 
  legislation.  The  bonding concerns should be addressed at a                 
  later date.                                                                  
                                                                               
  Co-Chair  Hanley asked  if new facilities  would need  to be                 
  built for bonded  fuel.   Commissioner Perkins advised  that                 
  the current set-up  could be  used, although it  can not  be                 
  mixed in the  tanks.  He  added, bonded fuel  did come  into                 
                                                                               
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  Alaska in 1971, which was the only  bonded fuel to come into                 
  Alaska until the tanker last year.   He did not know of  any                 
  tankers which were scheduled to come back into Alaska.                       
                                                                               
  Discussion   followed   between  Representative   Kelly  and                 
  Commissioner  Perkins  as  to  the  definition of  a  "level                 
  playing field".  Commissioner Perkins  noted that there were                 
  many considerations which would create a level playing field                 
  including  the  cost  of  transportation  and  the  cost  of                 
  product.   The  deciding factor  is whether  a  business can                 
  compete and make a profit.   Representative Kelly reiterated                 
  that it was  not "fair" that in  the free market place,  one                 
  business was required to pay over and above the other, a 3.2                 
  cent tax.  Representative  Navarre advised that the tax  was                 
  not the only thing making  the playing field not level.   He                 
  stressed that it has not been proven that the bonded fuel is                 
  crippling the in-state refiners.                                             
                                                                               
  Commissioner Perkins asked if there had been to date, enough                 
  impact on industry  to remove the 3.2  cent tax, eliminating                 
  that revenue source  for the State of Alaska.  He noted that                 
  the  Department  supports   in-state  producers  and   would                 
  guarantee that if  there was a lot  of fuel arriving at  the                 
  Anchorage harbors,  the Department  would then  suggest that                 
  the tax be removed.   Co-Chair Hanley agreed that  the State                 
  would lose revenue with the removal of the tax.                              
                                                                               
  JACK BURMINGHAM, (TESTIFIED VIA  TELECONFERENCE), ALASKA AIR                 
  CARRIERS  ASSOCIATION,  ANCHORAGE,  testified that  airlines                 
  were the ones required to pay the aviation fuel tax, not the                 
  refiners.  To  the extend that  there is an unlevel  playing                 
  field, he noted that some airlines  do not pay the fuel  tax                 
  and are competing  with those airlines  that do.  He  stated                 
  that there has not  been specific justification for  the tax                 
  give-a-way for bonded fuel.                                                  
                                                                               
  PAMELA LABOLLE, PRESIDENT, ALASKA STATE CHAMBER OF COMMERCE,                 
  JUNEAU,  spoke  in  support  of   HB  362.    Under  present                 
  circumstances,  Alaskan   business'  are  being   put  at  a                 
  disadvantage.  She recommended the State goals be:                           
                                                                               
       1.   Value added resources; and                                         
       2.   Economic development.                                              
                                                                               
  Co-Chair Hanley asked if bonded fuel could be taxed.                         
                                                                               
  NEIL  SLOTNICK, ASSISTANT  ATTORNEY  GENERAL, DEPARTMENT  OF                 
  LAW,  noted  that  he had  checked  if  state  tax would  be                 
  preempted  by  federal  law.    There  is  no  statute  that                 
  explicitly preempts  state taxation,  which then leaves  the                 
  State  in  determining  if  state  taxation   is  implicitly                 
  preempted.  He thought that arguments  could be made on both                 
                                                                               
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  sides.  The taxpayers are likely to argue that there are two                 
  cases before the U.S. Supreme Court that control that issue.                 
   The  commissioner   of  the   Department  of   Revenue  has                 
  considered all the information, including weighing the risks                 
  of litigation costs, and has determined that it would not be                 
  in the State's  best interest to assess  state taxes against                 
  bonded fuel.                                                                 
                                                                               
  (Tape Change, HFC 96-84, Side 2).                                            
                                                                               
  M.  CLYDE   STOLZFUS,  SPECIAL  ASSISTANT,   OFFICE  OF  THE                 
  COMMISSIONER,  DEPARTMENT  OF   TRANSPORTATION  AND   PUBLIC                 
  FACILITIES,   responded   to   Co-Chair  Hanley's   question                 
  regarding other  states which tax  bonded fuel.   He advised                 
  that there  are other  jurisdictions that  tax bonded  fuel,                 
  although the type  of taxes  vary.  The  existence of a  FTZ                 
  does not in itself, exempt taxation.                                         
                                                                               
  Co-Chair Hanley asked  if some states  are taxing the  fuel,                 
  why  doesn't  Alaska.    Mr.  Stolzfus  responded  that  the                 
  situation was not fuel related.  It  was "other" commodities                 
  within a FTZ.  Mr. Slotnick added, the difference was not in                 
  the commodities, but rather the type of tax.  There are some                 
  "privilege"  taxes   that  have   been  allowed   on  exempt                 
  commodities which are in a FTZ.                                              
                                                                               
  Representative Kelly suggested the possibility of offering a                 
  rebate given to the local producers based on the amount that                 
  is actually brought into the  State.  Mr. Bartholomew stated                 
  that  consideration  could  be a  possibility.    Perhaps an                 
  exemption of every gallon coming into the State of that used                 
  in excess of the capacity of the local producers.                            
                                                                               
  RANDY   WELKER,   LEGISLATIVE  AUDITOR,   LEGISLATIVE  AUDIT                 
  DIVISION, commented that federal regulations that govern the                 
  FTZ consists  of  a governing  board.   The  regulations  do                 
  provide that  the board,  if given  good cause, can  exclude                 
  certain goods  or property  from the  FTZ.   He stated  that                 
  there is a possibility that  a resolution submitted to  that                 
  Foreign Trade Zone  Board could  encourage the exemption  of                 
  fuel from that zone.  If that should occur, the  fuel coming                 
  in could be  taxed, which would  only address that FTZ  fuel                 
  and not the bonded fuel.                                                     
                                                                               
  RICHARD  CURTIN,  GENERAL  COUNSEL, PETRO  STAR,  ANCHORAGE,                 
  testified that Petro Star owns the only Alaskan refinery and                 
  the smallest refinery in  the State.  He stressed  that once                 
  the tankers are in route,  it will be too late  for in-state                 
  refiners.  The impact  will cause some refineries to  go out                 
  of business.  He  concluded that the purchasers of  jet fuel                 
  have indicated that they intend to move to bonded fuel.                      
                                                                               
                                                                               
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  HB 362 was HELD in Committee for further consideration.                      

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