Legislature(2007 - 2008)CAPITOL 120
04/20/2007 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB181 | |
| HB164 | |
| HB3 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 3 | TELECONFERENCED | |
| + | HB 181 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 213 | TELECONFERENCED | |
| += | HB 164 | TELECONFERENCED | |
HB 164 - OCEAN RANGERS & REPORTING VESSEL LOCATION 2:07:02 PM CHAIR RAMRAS announced that the next order of business would be HOUSE BILL NO. 164, "An Act relating to reporting of vessel location by certain commercial passenger vessels operating in the marine waters of the state, to access to vessels by licensed marine engineers for purposes of monitoring compliance with state and federal requirements, and to the obligations of those engineers while aboard the vessels; and providing for an effective date." [Left pending from the hearing on 3/28/07 was the motion to adopt Amendment 1.] CHAIR RAMRAS turned the gavel over to Vice Chair Dahlstrom. CHAIR RAMRAS withdrew Amendment 1, labeled 25-LS0585\A.1, Kane, 3/28/07, which read: Page 1, line 4, following "vessels;": Insert "creating the Alaska ocean protection and enhancement fund and the Alaska ocean protection and enhancement program;" Page 2, following line 21: Insert a new bill section to read: "* Sec. 4. AS 46.03 is amended by adding new sections to read: Sec. 46.03.483. Alaska ocean protection and enhancement fund. (a) The Alaska ocean protection and enhancement fund is established as a sub-account in the commercial passenger vessel environmental compliance fund established in AS 46.03.482. (b) The sub-account established in (a) of this section consists of the following, all of which shall be deposited in the sub-account on receipt: (1) money received by the department in payment for fees under AS 46.03.480(d); (2) money appropriated to the sub-account by the legislature; (3) money received by the department from private sources to be expended on the Alaska ocean protection and enhancement program established in AS 46.03.484; and (4) earnings on the sub-account. (c) The legislature may make appropriations from the sub-account to (1) pay for the Ocean Ranger program established in AS 46.03.476; (2) fund grants under the Alaska ocean protection and enhancement program established in AS 46.03.484; and (3) fund the activities of the Alaska Ocean Protection and Enhancement Advisory Board established in AS 46.03.484(b). (d) Nothing in this section creates a dedicated fund. Sec. 46.03.484. Alaska ocean protection and enhancement program. (a) There is established in the department the Alaska ocean protection and enhancement program. The commissioner may, in consultation with the Alaska Ocean Protection and Enhancement Advisory Board established in (b) of this section, award grants to eligible applicants for (1) studies to assess the effects from vessel traffic on air quality, water quality, and marine life in and near Alaska marine water and to recommend mitigation and prevention of adverse effects; (2) activities to remediate or clean up pollution or debris from vessel traffic in or near Alaska marine water; (3) educational programs designed to inform the public about the importance of maintaining air and water quality standards for Alaska's marine water; and (4) other activities that the commissioner determines will foster the protection and enhancement of Alaska marine water. (b) There is established the Alaska Ocean Protection and Enhancement Advisory Board consisting of not more than seven and not fewer than five members, as determined by the commissioner. The governor shall appoint the board members. The governor shall appoint at least two members of the board from nominations provided by the owners or operators of large commercial passenger vessels and at least two members from nominations provided by nonprofit corporations eligible to receive grants under this section. Members of the advisory board serve without compensation but are entitled to per diem and travel expenses as authorized under AS 39.20.180. (c) The department shall adopt regulations for the administration of the Alaska ocean protection and enhancement program, including (1) additional criteria for eligible applicants and eligible projects; (2) application forms and deadlines for receiving applications; (3) grant evaluation criteria; and (4) audit and other procedures to ensure proper expenditure of grant funds. (d) In this section, "eligible applicant" means (1) a nonprofit corporation organized under the laws of this state if the corporation has been in existence for at least two years at the time of the grant application and has as one of its purposes the promotion of air or water quality in Alaska marine water or the protection of marine life in Alaska marine water; (2) a municipality that demonstrates potential effects from vessel traffic in the marine water within the boundaries of the municipality; (3) an entity under federal law that demonstrates potential effects from vessel traffic within the areas of subsistence use; or (4) other entities that the commissioner determines are affected by effects of vessel traffic in Alaska marine water." Renumber the following bill sections accordingly. 2:10:05 PM RANDALL RUARO, Staff to Representative Kyle Johansen, Alaska State Legislature, speaking on behalf the House Transportation Standing Committee, sponsor of HB 164, relayed that the legislature's broad power to amend an initiative is granted by Article XI, Section 6, of the Alaska State Constitution, though any such amendment must not amount to a repeal of the initiative. He suggested that the common understanding of "amend" is "to change" and is what was meant by the voters who ratified the Alaska State Constitution by a two to one vote, and opined that the minutes from the constitutional convention provide insight regarding how the framers viewed the power to amend. MR. RUARO then offered some historical background on that constitutional provision, as well as on Alaska Supreme Court cases, Warren v. Thomas and Warren v. Boucher, both of which pertain to initiatives and the legislature's broad power to amend them or replace them. In conclusion, he opined that the legislature does have the authority to amend - via HB 164 - the recent ballot initiative regarding cruise ship taxation, regulation, and disclosure, and urged passage of the bill. CHAIR RAMRAS spoke of other legislation proposing to amend a ballot initiative, of testimony provided by the Department of Environmental Conservation (DEC) regarding discharges from land- based facility, and of a ballot initiative that he sponsored. Remarking that many provisions of statute were changed by the recent ballot initiative regarding cruise ship taxation, regulation, and disclosure, he said he feels comfortable that the legislature does have the right to amend that initiative regardless of whether any such amendments coincide with the intent of the initiative's prime sponsors. He indicated that he doesn't want the cruise ship industry to have to comply with higher standards than those which land-based facilities must comply with. CHAIR RAMRAS offered his understanding that the House Finance Committee will address how the $4 per-passenger per-voyage fee [to fund the Ocean Ranger program] is to be handled. Pointing out that the State is attempting to reduce the number of its employees, he said he is a little offended by the proposal to hire 80 people to monitor the cruise ship industry, particularly given that the DEC has demonstrated, to the Environmental Protection Agency's (EPA's) satisfaction, that it is capable of managing all land-based facilities for less money and with fewer people. 2:24:37 PM LYNN TOMICH KENT, Director, Division of Water, Department of Environmental Conservation (DEC), in response to a request for information, relayed that the department regulates a number of different types of industrial and municipal wastewater discharges, and this regulation is based on the same water quality standards as would be applied to the cruise ship program. The department also has an existing program that regulates discharges from cruise ships, and the recently approved ballot initiative will now require large vessels to have wastewater discharge permits much like those required of other industries regulated by the DEC. MS. KENT, in response to questions, offered details regarding its monitoring of land-based facilities; said that absent the ballot initiative, the department would have continued to implement the existing cruise ship program, which has effluent limits as well as monitoring and reporting requirements; indicated that because she is only familiar with the department's oversight of other types of wastewater discharge permits, she is unable to comment on how aggressive the monitoring program as proposed by HB 164 as it is currently written would be compared to land-based facility monitoring; mentioned that both the ballot initiative and HB 164 require more than simply monitoring wastewater discharges; and offered her understanding that advanced wastewater system technology is very effective at treating the domestic wastewater discharges of those cruise ships that employ that technology. 2:30:19 PM RUTH HAMILTON HESSE, Assistant Attorney General, Environmental Section, Civil Division (Juneau), Department of Law (DOL), in response to a question, confirmed that there already are criminal and civil liability statutes in place concerning the cruise ship program. For example, for civil liability, for penalties of not less than $500 or more than $100,000, there can be an assessment for those amounts for a violation of permit or regulation for commercial passenger vessels, and no more than $10,000 for each day after that first day on which the violation first occurs. This provision would also cover violations including unauthorized wastewater discharges or failure to report as required by applicable regulation. Also, under AS 46.03.760(f), penalties for falsifying a registration or report are not less than $5,000 nor more than $100,000 in a civil action for the initial violation, nor more than $10,000 for each day thereafter on which the same violation occurs. MS. HAMILTON HESSE relayed that this would also include a failure to report as required by applicable regulation, permit, or by submittal of a false report. Criminal liability for cruise ships also applies. A person, including an organization, acting with criminal negligence may be found guilty of a class A misdemeanor. An individual so convicted can be subject to a fine not exceeding $10,000 and/or sentenced to not more than a year in prison. An organization can also find itself convicted, and can be subject to a fine of no more than $200,000 or an amount twice the pecuniary damage for a lost cause by the defendant to another or property of another. Also, a person can be held accountable, under the criminal statute, for a class C felony if the person, with criminal negligence, is found guilty of discharging 10,000 or more barrels of oil, which is a catastrophic release, and that applies to cruise ships as well. MS. HAMILTON HESSE noted that there is also a standard used to determine whether someone has been criminally negligent pursuant to the criminal negligence statutes. That standard is, when a person acts with criminal negligence with respect to a result or to a circumstance described by a provision of law defining the offense when the person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists, the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situations. Furthermore, there are other statutes that could apply for holding somebody criminally or civilly liable. She offered to get that latter information to the committee. REPRESENTATIVE GRUENBERG asked whether the DEC supports HB 164. MS. HAMILTON HESSE offered her understanding that the DEC is doing its best to interpret the ballot initiative as written, and implement those laws on the book. REPRESENTATIVE GRUENBERG referred to language on page 2, lines 2-8, and asked whether the first sentence in that proposed provision would allow a marine engineer to come on board while the vessel is at sea in Alaska waters. MS. HAMILTON HESSE said yes. REPRESENTATIVE GRUENBERG, noting that the second sentence of that proposed provision allows a marine engineer to board the vessel at times while the vessel is in port, asked whether it is necessary to retain that second sentence or whether the ability to board a vessel while it is in port is implied within the first sentence. MS. HAMILTON HESSE suggested that perhaps Mr. Ruaro could better respond to that question. REPRESENTATIVE COGHILL pondered whether maritime law makes a distinction between being underway and being at port. 2:37:49 PM REPRESENTATIVE GRUENBERG, referring to the language being deleted via Section 2 and Section 3, said those changes appear to be an attempt to delete the authority to ensure protection from improper sanitation, health, safety practices, and health- related operations. He asked what jurisdiction is being removed from the marine engineers referenced in those sections. MS. HAMILTON HESSE acknowledged that there is some question, under current law, regarding who may have primacy over certain of the functions that are covered under Section 2. She said that the change proposed to AS 46.03.476(a)(2) appears to intend to allow the Ocean Ranger to confirm whether the vessel is complying with an approved U.S. Coast Guard security plan; so to some extent the duty that is being asked of the Ocean Ranger under this proposed change would perhaps limit the larger, somewhat unknown duties that might be imposed under current law. REPRESENTATIVE GRUENBERG asked what is within the phrase, "improper sanitation, health, and safety practices" or within the phrase, "engineering, sanitation, and health related operations of the vessel" that is not included within the phrase, "approved United States Coast Guard security plan" or the phrase, "registration, reporting, record-keeping, and discharge functions required by state and federal law". What is being done via these proposed language changes? What abilities are the Ocean Rangers being divested of? MS. HAMILTON HESSE surmised that those changes are an attempt at refining the kinds of the things that Ocean Rangers must be alert for. MR. RUARO offered his understanding that the proposed deletions from current law will remove from the Ocean Rangers' scope of duties the ability to go on the bridge and interfere with the operation of the vessel or normal engineering operations. Also, the "sanitation" and "health" language is being deleted because the vessels are already inspected by the Centers for Disease Control and Prevention (CDC) and federal public health inspectors, and records reflect that [the cruise ship industry] passed 398 out of the last 403 inspections, and so Ocean Rangers need not be saddled with that particular duty. In response to the question of whether the language on page 2, lines 5-8 - regarding boarding the vessel while it is in port - is really necessary, he said that it is his understanding that that language simply modifies the language directing owners and operators to allow a marine engineer on board; instead of reading it as either/or, it simply modifies when the Ocean Ranger must be allowed on board the vessel. REPRESENTATIVE GRUENBERG surmised, then, that it just broadens the time and clarifies that a marine engineer may board a vessel either while it is in port or while it is at sea. MR. RUARO disagreed and said the language is meant to stipulate that the marine engineer will be allowed onboard while the vessel is in port. REPRESENTATIVE GRUENBERG questioned, then, why the first sentence is being changed to say "operating in the marine waters of the state". "You couldn't get to the port unless you were operating within the marine waters of the state; that's the only way you get to the port," he added. MR. RUARO concurred, but argued that the point of these changes is to move away from having to put Ocean Rangers on board the vessel the moment it crosses the international boundary line and comes into Alaska waters. 2:45:35 PM REPRESENTATIVE GRUENBERG said he doesn't have a problem with that concept, but said it seems to him that that language change would clearly allow boarding while the vessel is at sea within the territorial waters [of Alaska]. If the point is to prohibit that, then the first sentence should be deleted entirely, he surmised. MR. RUARO clarified that the intent is to only allow marine engineers on board a vessel while it is in port in Alaskan waters. REPRESENTATIVE GRUENBERG opined that that intent is not clear from the language. REPRESENTATIVE LYNN asked Mr. Ruaro whether he meant to say that the goal of the changes proposed to subsection (a)(2) of Section 2 and to Section 3 is to prevent the Ocean Rangers from inspecting anything regardless of how, where, or when they got on board the vessel. MR. RUARO said he'd not meant to say that. He offered that what he was trying to say was that an Ocean Ranger couldn't perform engineering, sanitation, and health-related operations on the vessel, but could continue to monitor registration, reporting, record-keeping, and pollution discharge functions required by state and federal law. These changes will narrow the scope of an Ocean Ranger's duties but won't eliminate them. REPRESENTATIVE LYNN asked for further clarification regarding what Ocean Rangers will be prevented from doing. MR. RUARO opined that Ocean Rangers won't be allowed to perform ordinary engineering functions, interfere with the Captain, or perform the health- and sanitation-related duties currently being performed by the U.S. Public Health Service. In response to another question, he reiterated that under the bill, Ocean Rangers will be permitted to monitor registration, reporting, record-keeping, and pollution discharge functions required by state and federal law - as outlined on page 2, line 20. REPRESENTATIVE HOLMES offered her understanding that the ballot initiative's language said that a marine engineer must be on board the vessel at all times while it is in Alaskan waters, and that the bill's language is intended to stipulate that a marine engineer can be on board a vessel only while it is in port. MR. RUARO concurred. CHAIR RAMRAS said he'd not seen anything in the voter pamphlet indicating that the ballot initiative intended to exclude small cruise ships and ferries. MR. RUARO indicated that he hadn't either. In response to a question, he opined that HB 164 honors the will of the voters that want better management and oversight of wastewater discharges from cruise ships. 2:50:48 PM MS. KENT, in response to the question of whether the DEC supports HB 164, said that the DEC is working diligently to implement the changes brought about by the voters' approval of the ballot initiative as it was written, and is prepared to implement any further changes to the law via HB 164 or other legislation, but is not taking an active position on HB 164 either way. REPRESENTATIVE GRUENBERG asked why the DEC is not supporting HB 164. MS. KENT said it is because the DEC believes that any changes to existing law constitute a policy decision, which needs to be made by the legislature. REPRESENTATIVE COGHILL concurred. REPRESENTATIVE HOLMES asked how the DEC would interpret the language of proposed AS 46.03.476(a). Would that language only allow a marine engineer to come on board a vessel while it is in port? Or would a marine engineer be allowed to board a vessel while it was underway. MS. KENT said that the DEC reads that language to mean that a marine engineer could get on board while the vessel is in port, but because the bill is silent with regard to when the marine engineer is supposed to disembark the vessel, the DEC asked the sponsor's staff who in turn indicated that it is the sponsor's intent that a marine engineer only be on board the vessel while it is in port. She relayed that the DEC's fiscal note makes that same assumption. 2:54:23 PM REPRESENTATIVE COGHILL said he likes the concept of having Ocean Rangers on board vessels at least some of the time while they are underway, not just while they are in port, and would therefore like to see some changes along that line before the bill is heard on the House floor because it would come closer to the intent of the initiative. REPRESENTATIVE HOLMES concurred. She said that when looking at a ballot initiative, she considers two questions: is it constitutional, and is it the right thing to do. She remarked: "I think it's too big a leap to go from a language that requires a marine engineer to be on board at all times while in Alaska waters, to go to language that's intended to say they can never be on board unless they're in port, and for me that is too big a leap that I'm not willing to make." REPRESENTATIVE LYNN pointed out that the discussion pertains to "Ocean Rangers," not "Port Rangers," and that amendments offered on the floor can be difficult to debate; therefore, he is not comfortable passing the bill out of committee as it is currently written. REPRESENTATIVE GRUENBERG remarked: I've expressed my concerns, here. First, it's very clear to me that the first sentence [of proposed AS 46.03.476(a)] clearly allows the person to board at sea. I think it's an unsupportable reading not to allow that to be done, and it's completely at odds with the second sentence. Secondly, what they've done here, in the bill, is significantly, as a policy matter, undercut the scope of the allowable function of the Ocean Rangers. And I would second what Representative Holmes has said: there's a considerable leap between what was in the initiative and the very great distance this particular measure goes. We haven't had a very good discussion of what the term "engineering" means. I spent two years as a deck officer at sea. Engineering relates to the engineering system, the engineering department, the boilers, the evaporators, the generators, and the turbines down in the engineering spaces, but it doesn't normally relate to ... what goes on, on the bridge, and structural kinds of things as well. "Sanitation" is very broad, and "health" is extremely broad. I was under the impression that these Ocean Rangers were going to be properly trained to handle all of those functions, and we don't have testimony as to whether the fact that [cruise ships] ... passed inspections necessarily means that it is at the level the voters intended when they passed the initiative. So that part of this concerns me as well. Of course there's a considerable difference between having a marine engineer on board and allowing them to be on board. The concept I've heard discussed, whether you have to have 24/7, because people only work 8 hours a day under the labor laws, it doesn't require 24/7. It says, "have a marine engineer"; it doesn't say, "have 24/7 coverage". I wouldn't have read it as 24/7 coverage the way it was previously written. It's not the function of the [House Finance Committee to] rewrite legislation; they look at the finance aspects, we look at the legal aspects, here. 3:00:14 PM VICE CHAIR DAHLSTROM said she's heard requests from members regarding a possible amendment that would address the concerns brought forth in committee. She offered her belief that it would be in the best interest of the sponsor to have that amendment prepared and brought back to this committee for review, thus allowing the House Finance Committee to just address the fiscal issues associated with the bill. MR. RUARO agreed to try to have such an amendment prepared [soon]. VICE CHAIR DAHLSTROM expressed disfavor with the concept of simply assuming that the bill's problems will be fixed in the next committee. REPRESENTATIVE GRUENBERG said he is satisfied with the constitutional issue and doesn't need to hear more testimony on that point. The committee took a brief at-ease. VICE CHAIR DAHLSTROM relayed that HB 164 would be set aside.
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