CSSB 124(L&C): "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 CS FOR SENATE BILL NO. 124(L&C) 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
01 the 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); 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; and 07 (5) any applicable fishery sales, use, or severance taxes imposed by 08 a municipality in the state. 09 (b) Upon receipt of an [THE] application in proper form under (a) or (c) of 10 this section, accompanied by the annual fee, the department shall issue the license if 11 the 12 (1) applicant has paid in full, including interest and penalties, the 13 following: 14 (A) taxes levied under this title; and 15 (B) any assessments under AS 16.51; 16 (2) department has not received notification from the Department 17 of Labor and Workforce Development that the applicant has failed to pay in full 18 (A) an assessment of delinquent contributions that is final 19 under AS 23.20.205(c) or 23.20.220(c); or 20 (B) an administrative penalty that is final under 21 AS 18.60.093 or 18.60.097; and 22 (3) department has not received a copy of a final judgment 23 obtained against the applicant for unpaid fishery sales, use, or severance taxes 24 imposed by a municipality in the state. 25 (c) Instead of a license issued under (a) of this section, the department may 26 issue a direct marketing fisheries business license to a licensed commercial fisherman 27 who processes fishery resources caught using a vessel that does not exceed 65 feet in 28 overall length and is owned or leased by the commercial fisherman. The licensee may 29 place into commerce in the state and outside of the state processed or unprocessed 30 fishery resources caught using the vessel described in the license. Fishery resources 31 that are caught using the vessel and owned by the licensee from the time of harvest
01 through sale, as defined by the department by regulation, may be processed by the 02 licensee on the vessel, at a shore-based facility, or by means of custom processing 03 services obtained by the licensee. An application for a direct marketing fisheries 04 business license shall be filed with the department and accompanied by an annual fee 05 of $25. A separate direct marketing fisheries business license and annual license fee 06 are required for each vessel on which processing is performed. The application must 07 state the name and address of the applicant, the fishery resources for which the 08 applicant holds a commercial fishing entry permit or interim-use permit or quota 09 share, a description of the vessel and each shore-based facility where the applicant will 10 process fishery resources, and other information that the department prescribes by 11 regulation. The application must state that the applicant, as a condition of obtaining 12 and maintaining the license, agrees to pay the taxes, assessment, employment 13 security contributions, and penalties as set out in (a)(1) - (5) of this section [TAX 14 IMPOSED BY AS 43.75.015(d) OR 43.75.100, AND THAT THE APPLICANT 15 WILL MAKE A RETURN AND PAY THE TAX AT THE TIME PROVIDED BY 16 LAW]. A person who holds a direct marketing fisheries business license may not 17 under that license (1) purchase fishery resources for resale or processing for sale; or 18 (2) process fishery resources for another licensed commercial fisherman or for a 19 fisheries business licensed under this chapter. In this subsection, "licensed 20 commercial fisherman" means a natural person who holds a commercial fishing entry 21 permit or interim-use permit issued under AS 16.43 or a quota share issued under 22 federal law. 23 * Sec. 2. AS 43.75.055 is amended by adding a new subsection to read: 24 (g) Real property, a surety bond, or other security being used to secure 25 payment of the tax for the year preceding the application year, may also be used to 26 secure payment of the estimated tax for the application year if the security is 27 acceptable to the department and the applicant has not failed to pay a tax under this 28 chapter in a timely manner during any of the three years preceding the application 29 year. 30 * Sec. 3. AS 44.25.040 is repealed and reenacted to read: 31 Sec. 44.25.040. Security for certain obligations. (a) A person applying for a
01 license as a fish processor or primary fish buyer shall file with the commissioner of 02 revenue a performance bond, conditioned upon the promise to pay the following: 03 (1) wages owing to all persons employed by the fish processor or 04 primary fish buyer, including contractual employee benefits; 05 (2) independent registered commercial fishermen for the price of the 06 raw fishery resource purchased from them; 07 (3) contributions imposed under AS 23.20 (Alaska Employment 08 Security Act). 09 (b) A fish processor that processes more than 30,000 pounds of fish a year and 10 a primary fish buyer shall file a performance bond with the commissioner in the 11 amount specified in this subsection. The amount of the bond is $10,000 unless, during 12 the five years preceding the application, one of the following has occurred: 13 (1) a final judgment in excess of $10,000 was awarded against the 14 bond required under this section; if the final judgment against the bond was in excess 15 of $10,000 but less than $50,000, the amount of the bond is increased to a total of 16 $50,000; if the final judgment against the bond was $50,000 or more, the amount of 17 the bond is increased to a total of $100,000; 18 (2) the commissioner has determined that a fish processor or primary 19 fish buyer has engaged in the business of fish processor or primary fish buyer in the 20 state while not in compliance with this section and has not yet satisfied a final 21 judgment entered against the processor or fish buyer for payment for labor furnished 22 to, or raw fishery resources purchased by, the processor or fish buyer; if the fish 23 processor or primary fish buyer has engaged in the business of a fish processor or 24 primary fish buyer while not in compliance with this section and has not yet satisfied a 25 final judgment for payment for labor furnished to, or raw fishery resources purchased 26 by the processor or fish buyer, the amount of the bond is increased to a total of 27 $100,000; or 28 (3) the commissioner has determined under (i) of this section that a 29 claim against the bond filed by the Department of Labor and Workforce Development 30 under (h) of this section met the requirements in (h) of this section; if the amount of 31 the claim was in excess of $10,000 but was less than $50,000, the amount of the bond
01 is increased to a total of $50,000; if the amount of the claim was $50,000 or more, the 02 amount of the bond is increased to a total of $100,000; an increase in bond amount 03 under this paragraph may not be imposed until 45 days after the commissioner 04 determines under (i) of this section that the claim of the Department of Labor and 05 Workforce Development met the requirements in (h) of this section. 06 (c) A fish processor that processes 30,000 pounds or less of fish a year shall 07 file a performance bond with the commissioner in the amount specified in this 08 subsection. The amount of the bond is $2,000 unless, during the preceding five years, 09 one of the following has occurred: 10 (1) a final judgment in excess of $2,000 was awarded against the bond 11 required under this section; if the final judgment against the bond was in excess of 12 $2,000 but less than $10,000, the amount of the bond is increased to a total of 13 $10,000; if the final judgment against the bond was $10,000 or more, the amount of 14 the bond is increased to a total of $20,000; 15 (2) the commissioner has determined that a fish processor has engaged 16 in the business of a fish processor in the state while not in compliance with this section 17 and has not yet satisfied a final judgment entered against the processor for payment for 18 labor furnished to, or raw fishery resources purchased by, the processor; if the fish 19 processor has engaged in the business of a fish processor while not in compliance with 20 this section and has not yet satisfied a final judgment for payment of labor furnished 21 to, or raw fishery resources purchased by the processor, the amount of the bond is 22 increased to a total of $20,000; or 23 (3) the commissioner has determined under (i) of this section that a 24 claim against the bond filed by the Department of Labor and Workforce Development 25 under (h) of this section met the requirements in (h) of this section; if the amount of 26 the claim was in excess of $2,000 but was less than $10,000, the amount of the bond is 27 increased to a total of $10,000; if the amount of the claim was $10,000 or more, the 28 amount of the bond is increased to a total of $20,000; an increase in bond amount 29 under this paragraph may not be imposed until 45 days after the commissioner 30 determines under (i) of this section that the claim of the Department of Labor and 31 Workforce Development met the requirements in (h) of this section.
01 (d) If a fish processor who has filed a performance bond under (c) of this 02 section processes more than 30,000 pounds of fish in a year, the processor shall, 03 within seven days after the day on which the 30,000 pound threshold is exceeded, 04 notify the commissioner and comply with (b) of this section. If a processor who has 05 filed a performance bond under (c) of this section processes more than 30,000 pounds 06 of fish in a year, and does not comply with (b) of this section within seven days after 07 the date on which the 30,000 pound threshold is exceeded, the processor shall suspend 08 processing fish until a bond has been filed under (b) of this section. 09 (e) A fish processor or primary fish buyer may use only a surety bond, cash 10 deposit, or other negotiable security as a performance bond under this section. The 11 surety must be satisfactory in the determination of the commissioner. The use of other 12 negotiable security as a performance bond must be in a form acceptable to the 13 commissioner. The commissioner shall waive the filing of a performance bond under 14 this section if the fish processor or primary fish buyer 15 (1) has more than $10,000 in lienable real property located in the state 16 and provides proof of the property in a form satisfactory to the commissioner; 17 (2) is not required under (b) or (c) of this section to post a bond in 18 excess of $10,000; and 19 (3) within the five years preceding the application under AS 43.75.020, 20 an employee or fisherman has not obtained a final judgment against the fish 21 processor's or fish buyer's bond under this section. 22 (f) If an applicant for a license as a fish processor or primary fish buyer has 23 complied with this section, the Department of Revenue may issue that applicant a 24 license to engage in the business of fish processor or primary fish buyer. 25 (g) A claim against a fish processor or primary fish buyer for failing to pay an 26 employee for wages or contractual benefits owed or for failing to pay an independent 27 registered fisherman for the price of raw fishery resource purchased from the 28 fisherman may be brought upon the bond filed under this section in the superior court 29 of the judicial district in which the work was done or in any judicial district in the state 30 in which jurisdiction may be obtained. If an action is brought upon the bond, a copy 31 of the complaint shall be served by registered or certified mail upon the commissioner
01 at the time the suit is filed. The commissioner shall transmit a copy of the complaint 02 and any judgment to the surety or holder of the negotiable security. If a judgment is 03 entered against cash deposited with the commissioner, the commissioner, upon receipt 04 of a certified copy of a final judgment, shall pay the judgment from the amount of the 05 deposit. The commissioner shall maintain a record, available for public inspection, of 06 all suits commenced under this subsection. 07 (h) A claim against a fish processor or primary fish buyer for failing to pay 08 contributions imposed under AS 23.20 may be brought by the Department of Labor 09 and Workforce Development against the bond filed under this section by filing a claim 10 against the bond with the commissioner, along with proof, satisfactory to the 11 commissioner, that the fish processor or primary fish buyer 12 (1) received a notice of assessment under AS 23.20.205; 13 (2) did not pay the amount specified in the notice of assessment within 14 30 days after receiving the notice of assessment or, if the assessment was contested 15 under AS 23.20.220, within 30 days after receiving the department's final decision 16 under AS 23.20.220(c); and 17 (3) did not file an appeal of the assessment under AS 23.20.220 or 18 filed an appeal but did not initiate a proceeding for judicial review under 19 AS 23.20.445 within 30 days after the department's final decision under 20 AS 23.20.220(c). 21 (i) If the commissioner determines that the Department of Labor and 22 Workforce Development has met the claim requirements in (h) of this section, the 23 commissioner shall forward the claim and supporting documents to the surety or 24 holder of the negotiable security. If the fish processor or primary fish buyer has 25 deposited cash with the commissioner, the commissioner shall pay the claim of the 26 Department of Labor and Workforce Development from the amount of the deposit. If 27 the commissioner determines that the Department of Labor and Workforce 28 Development has not met the claim requirements in (h) of this section, the 29 commissioner shall provide the Department of Labor and Workforce Development 30 with written notice of the deficiency of its claim. 31 (j) If a performance bond is insufficient to satisfy all claims filed against it
01 under this section, claims brought against the bond under (g) of this section have 02 priority over a claim filed against the bond under (h) of this section. The Department 03 of Labor and Workforce Development shall return to the commissioner money 04 received from a claim filed against a fish processor's or primary fish buyer's 05 performance bond under (h) of this section if an employee or fisherman obtains a final 06 judgment under (g) of this section against that processor's or fish buyer's bond and the 07 (1) processor or fish buyer has not replenished the bond after it was 08 used to cover the claim filed under (h) of this section; or 09 (2) final judgment obtained by the employee or fisherman is more than 10 the amount of the bond available under (b) or (c) of this section. 11 (k) The term of a performance bond expires two years after the fish processor 12 or fish buyer is no longer licensed in this state, except that if, during that two-year 13 period, a claim has been asserted against the bond, the term of the bond is five years. 14 If the surety on the bond wishes to cancel the bond, the surety may do so by giving the 15 commissioner written notice of intention to cancel. The cancellation is effective 30 16 days after the notice is delivered to the commissioner. 17 * Sec. 4. AS 44.25.042 is amended by adding a new subsection to read: 18 (h) If the commissioner determines under AS 44.25.040(i) that a claim filed 19 under AS 44.25.040(h) is sufficient to allow collection against the performance bond 20 filed under AS 44.25.040, the fish processor's or primary fish buyer's license shall be 21 suspended until the amount of the claim under AS 44.25.040(h) is paid in full and the 22 performance bond is replenished. 23 * Sec. 5. This Act takes effect immediately under AS 01.10.070(c).