Legislature(2017 - 2018)BUTROVICH 205
02/14/2018 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| SB158 | |
| SB173 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 158 | TELECONFERENCED | |
| += | SB 173 | TELECONFERENCED | |
| += | SB 92 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 92-VESSELS: REGISTRATION/TITLES; DERELICTS
4:03:18 PM
CHAIR GIESSEL announced consideration of SB 92. This is its
third hearing and the sponsor had done some work on the bill.
4:03:54 PM
At ease
4:04:31 PM
CHAIR GIESSEL called the meeting back to order.
SENATOR COGHILL moved to adopt work draft CSSB 92(), version 30-
LS0481\J, as the working document.
CHAIR GIESSEL objected for discussion purposes. She invited her
committee staff to explain the changes.
4:04:57 PM
AKIS GIALOPSOS explained the following changes in CSSB 92( ),
from version D to version 30-LS0481\J:
1. Page 2, Line 28: Amends Section. 3 (AS
05.25.055(i)) by removing the words "The United States
or." [The words "The United States or" are currently
in existing law and appeared in the previous version
of the bill.]
2. Page 5, Line 10: Amends Section. 9 (AS
30.30.010(a)) by removing the word "Docked." [The word
"Docked" is currently in existing law and appeared in
the previous version of the bill.]
3. Page 5, Line 20: Amends Section. 11 (AS
30.30.010(e)) by changing the proposed penalty from a
"B" misdemeanor to an "A" misdemeanor [The previous
version of the bill proposed to make the violation a
class "B" misdemeanor. Existing law stipulated a
violation under AS 30.30.010 was an unclassified
misdemeanor.]
4. Page 5, Line 27: Amends Section. 12 (AS 30.30.010)
by removing the words "(a) of" to the proposed newly
created subsection (f). [The newly created subsection
(f) to AS 30.30.010 permits the Department of Natural
Resources and municipalities to report a violation to
the Attorney General. Whereas the previous version
only permitted reporting of a violation to AS
30.30.010 (a), the proposed CS permits reporting of
any violation under AS 30.30.010.]
4:07:49 PM
5. Page 6, Lines 4-6: Amends Section. 13 (the proposed
newly created AS 30.30.015) by rewriting the following
sentence to read "On application for injunctive relief
and a finding that a person has violated AS 30.30.010,
the superior court may grant the injunction. [The
sentence in the prior version of the bill read "On
application for injunctive relief and a finding of a
violation or a threatened violation, the superior
court shall grant the injunction.]
6. Page 6, Lines 14, 17: Amends Section. 14 (AS
30.30.030) by changing the days a vessel owner has to
obtain authorization to be exempted from a derelict
classification from "30" to "14."
7. Page 7, Lines 5, 8: Amends Section. 15 (AS
30.30.040) by changing the wording to read "the state
agency or municipality." [The prior version of the
bill proposed using the wording "the state or
municipal agency."]
8. Page 7, Line 7: Amends Section. 15 (AS 30.30.040)
by adding the words "if possible." [The prior version
of the bill required the state agency or municipality
to physically post a written notice of impoundment on
the vessel 30 days prior to impoundment without
exception.]
9. Page 7, Line 27-28: Amends Section. 16 (the
proposed newly created AS 30.30.040) by adding
language that reads "with the state agency or
municipality that sent the notice." [The prior version
of the bill afforded the vessel owner to file a demand
for a pre-impoundment hearing. But the previous
version did not specify to what entity the vessel
owner could make such a demand.]
10. Page 8, Lines 9, 16-17: Amends Section. 16 (the
proposed newly created AS 30.30.040) by changing the
wording to read "the state agency or municipality."
[Please see Change 7.]
11. Page 8, Lines 21-22: Amends Section. 17 (the
proposed newly created AS 30.30.045) by changing the
wording to read "the state agency or municipality."
[Please see Change 7.]
12. Page 9, Lines 9-10, 12, 16, 23, 25, 27, 29: Amends
Section. 18 (the proposed newly created AS 30.30.055)
by changing the wording to read "the state agency or
municipality." [Please see Change 7.]
13. Page 9, Line 26: Amends Section. 18 (the proposed
newly created AS 30.30.055) by changing the reference
from AS 30.30.097 to AS 30.30.096. [This is due to
subsequent proposed newly created sections being
removed and renumbered in the Committee Substitute.]
14. Page 10, Lines 19-20, 23; Page 11, Line 1, 9, 12:
Amends Section. 20 (the proposed newly created AS
30.30.065) by changing the wording to read "the state
agency or municipality." [Please see Change 7.]
15. Page 11, Lines 12-20: Amends Section. 20 (the
proposed newly created AS 30.30.065) by adding a new
paragraph (2) to subsection (e) that reads "the
hearing officer shall award to the owner attorney fees
and costs incurred in the hearing; the award shall be
made as provided by Rules 69, 79, and 82, Alaska Rules
and Civil Procedures." [The prior paragraphs (1), (2),
and (3) have been consolidated under paragraph (1) and
organized with subparagraphs (A), (B), and (C).]
4:12:38 PM
16. Page 11, Line 24: Amends Section. 21 (the proposed
newly created AS 30.30.075) by changing the wording to
read "the state agency or municipality." [Please see
Change 7.]
17. The prior version's Section. 22, related to
insurance requirements, is removed and not in the
proposed Committee Substitute. The following sections
are renumbered accordingly.
18. Page 12, Lines 2, 22: Amends AS 30.30.090 (Current
Section. 22, Prior Version Section. 23) by adding the
word "abandoned" to the list of actions that
constitute the classification of derelict vessel.
19. Page 12, Lines 8-24: Amends AS 30.30.090 (Current
Section. 22, Prior Version Section. 23) by removing
the words "and if" on line 8. This removal of words
requires reformatting the subparagraphs into
paragraphs. [The words "and if" are currently in
existing law and were in the prior version of the
bill.]
20. Page 12, Line 26: Amends the title of the proposed
newly created AS 30.30.095 (Current Section. 23, Prior
Version Section. 24) by renaming it "Duties and Powers
of the Department" from "Derelict Vessel Prevention
Program." [Conforming to this change, the subsequent
new proposed section AS 30.30.096 entitled "Duties and
Powers of the Department" has been removed and
absorbed into AS 30.30.095, and the new proposed
section AS.30.30.097 entitled "Derelict Vessel
Prevention Fund" is renumbered is now section AS
30.30.096 under the Committee Substitute.]
21. Page 12, Line 27: Amends the proposed newly
created AS 30.30.095 (Current Section. 23, Prior
Version Section. 24) to add new language that reads
"subject to appropriations."
22. Page 13, Line 14: Amends the proposed newly
created AS 30.30.096 (Current Section. 23, Prior
Version Section. 24) by changing the wording to read
"the state agency or municipality." [Please see Change
7.]
23. Page 13, Line 25: Amends the proposed newly
created AS 30.30.096 (Current Section. 23, Prior
Version Section. 24) by changing paragraph (b)(4) to
read "money collected under AS 05.25.096(a)(5) and
(6). [The prior version read "money received by the
Department of Administration for registering and
titling vessels."]
24. Page 14, Lines 17-18: Amends AS 30.30.170 (Current
Section. 25, Prior Version Section. 26), by defining
"state agency" rather than "state or municipal agency"
in accordance with the changes originating in Change 7
and conformed through the Committee Substitute.
4:16:42 PM
CHAIR GIESSEL asked for a sectional analysis.
4:17:21 PM
RACHEL HANKE, staff to senator Micciche, Alaska State
Legislature, presented the sectional analysis of CSSB 92 (RES),
version 30-LS0481\J, as follows:
Section 1: Requires that a boat placed on the waters
of the state be titled, registered, or numbered.
Section 2: Requires all boats have a certificate of
number if operated on the waters of the state for more
than 90 consecutive days or 60 consecutive days for
barges unless otherwise provided in the chapter.
Section 3: Provides exceptions from numbering and
registration for boats and barges.
Section 4: Adds new section for establishing a system
for certification of titles.
Section 5: Inserts a new cross-reference.
Section 6: Increases boat registrations for a three-
year period from $24 to $30, adds barge registration
fee at $75 for a three-year period, adds boat title
and duplicate boat title fee of $20.
Section 7: Adds definition of "barge".
Section 8: Repeals and reenacts definitions from AS
05.25.100.
Sections 9 & 10: Clarifies existing language.
Section 11: Raises the fine for abandoning a vessel
from not less than $500 to not less than $5,000 or
more than $10,000 and lowers the maximum term of
imprisonment from six months to 90 days.
Section 12: Allows the department or a municipality to
report violations to the Attorney General in order to
enforce criminal penalties.
Section 13: Adds new section allowing an aggrieved
person to file a civil injunction with a penalty of
not more than $1,000 per violation.
Section 14: Allows the department to provide written
authorization for a vessel to be left within 14 days
and clarifies language.
Section 15: Changes section to pre-impoundment notice
and hearing. Requires 30 days' notice prior to
impoundment, requires the impounding authority to post
notice on vessel when possible and online.
Section 16: Adds new subsections establishing notice
specification and defines the procedure for pre-
impoundment hearings.
Section 17: Adds new section establishing requirements
for the notice of disposition.
Section 18: New section proving clear guidelines of
procedure for impoundment of a vessel by the state or
a municipality.
Section 19: Removes requirement that an interested
party taking possession of a derelict vessel post
security.
Section 20: Establishes procedure for the immediate
impoundment of derelict vessels that pose an imminent
threat to safety.
Section 21: Adds new section stating that the
individual owning an impounded vessel is liable for
all costs incurred in the process.
Section 22: Provides situations that would make a
vessel derelict.
Section 23: Gives the department the power to
establish and administer the derelict vessel
prevention program which includes education, outreach,
an advisory council and creates a program fund which
consists of money appropriated from donations, vessel
sales under this chapter, federal funds, civil
penalties and money collected from barge registration
and titling of vessels.
Section 24: Adds "floating facility" to the definition
of "vessel".
Section 25: Adds definitions.
Section 26: Names this chapter the Derelict Vessels
Act.
Section 27: Adds titling to Title 37.
Section 28: Allows civil penalties collected under AS
30.30 to be deposited to the derelict vessel
prevention program fund.
Section 29: Removes repealed sections allowing the
fund to remain without federal funding.
Section 30: Repealing sections of AS 30.30.
Section 31: Transition language allowing DNR and DOA
to adopt regulations.
Section 32: Reviser's instruction to change two
headings.
Sections 33-36: Effective date sections.
4:21:16 PM
CHAIR GIESSEL removed her objection and finding no further
objections, announced that version J was the committee's working
document. Public testimony was open.
4:21:51 PM
KATHIE WASSERMAN, Executive Director, Alaska Municipal League,
Juneau, Alaska, supported SB 92. This issue has been one of
their top priorities for over two and a half years. Most
municipalities have access to water one way or another, and the
heart of many communities is the harbor. When it gets cluttered
up with boats it is very difficult for municipalities to go
through all the work to deal with those vessels. Usually owners
of the vessels have problems long before then: they quit paying
moorage or haul their boat onto a beach.
4:23:38 PM
CARL UCHYTIL, President, Alaska Association of Harbor Masters
and Port Authorities (AAHPA), Juneau, Alaska, supported SB 92.
AAHPA has 43-member harbors and has documentation from other
communities outside their membership that also support it.
SENATOR STEDMAN asked what tool this bill would give to harbor
masters that they don't currently have.
MR. UCHYTIL said the strongest argument he could make is when
the M/V Challenger went down. She [the boat] was no longer
welcome in the harbor and as a result was anchored on DNR
tidelands. When she sank, the Coast Guard came out and opened
the Oil Spill Trust Fund to raise and demolish her (for $2
million). To this day, the Coast Guard doesn't know who the
responsible owner is.
SENATOR STEDMAN said that ship should have had a marine title at
some point, and the question is who owned it at the end. He
wanted to know what useful tools SB 92 would provide in this
instance.
MR. UCHYTIL said he couldn't speak with great authority on what
enforcement activity the Coast Guard is taking on the Challenger
now, but the Juneau Harbor system has other instances of
irresponsible boat owners that will transfer ownership of
vessels on a bar napkin or flip ownership with a handshake. Just
having a clear title would allow the harbor master to pursue the
actual owner of several derelict vessels in their harbor system
today.
SENATOR STEDMAN said he has concept issues with this bill, not
that derelict vessels aren't a problem. He said marine titled
vessels are usually small, in the neighborhood of 27 feet, and
are required to have "AK" numbers and to get a sticker. If you
don't, you get a ticket. So, the owner pays the harbor master
once a month as a tenant, and all of a sudden someone else shows
up to pay the monthly fee. He asked what tools he needs as a
harbor master here in Juneau to ensure that a person who pays
the rent owns the boat.
SENATOR STEDMAN said his boat is a "documented vessel" and that
it is in the Juneau harbor now where he is also required to have
an insurance document to show that it is not only insurable but
that it is insured. So, he was really struggling with why
organized harbors around Alaska can't keep track of their
tenants - like he used to keep track of renters he was a
landlord.
MR. UCHYTIL answered that "registered" doesn't necessarily mean
owner, and he does have difficulty with some harbor clientele in
establishing clear ownership. For instance, someone could be
behind in their rent and when they get kicked out, the client
can say he sold the boat to someone at the Pioneer Bar last
night. Lawyers have told him that title is important in
establishing ownership.
4:31:12 PM
SENATOR STEDMAN said the situation is similar to used cars that
eventually get "ditched out the road" and the owner can't be
found. It is an enforcement issue, and he wasn't sure this
wouldn't set boats up with the same solution. And at some point,
the unorganized municipalities need to be addressed.
SENATOR VON IMHOF said this bill has a fiscal note of $589,000
(which she assumed was collected by titling registrations and
abandoned vessel fees) and asked if the duties of this fund
cease to exist if the fees are not raised. Maybe they have to
wait a few years for money to be raised and then this program
can get off the ground.
MARLA THOMPSON, Director, Division of Motor Vehicles (DMV),
Department of Administration (DOA), Anchorage, Alaska, said the
fiscal note for SB 92 is based off the registration numbers they
currently have at $20 per boat and 68,000 boats are registered.
That would generate approximately $1.36 million. The
registration period is for three years, so they divided that
number by three and expected to collect about one-third of the
revenues for that the customer in the first year.
BRYAN HAWKINS, Vice President, Alaska Association of Harbor
Masters and Port Authorities (AAHPA), and Harbor Master, City of
Homer, Alaska, supported SB 92. He noted the Homer City Council
passed resolutions in support of this bill, as well. Homer has
over the years had to deal with quite a few abandoned derelict
vessels in the range of 80-450 feet long. A local code was
passed that helped with that.
He explained that cities have clearly defined boundaries. They
can write local laws that can help people make better decisions
to "move along" and can legally impound and dispose, which Homer
has done many times.
MR. HAWKINS said currently Alaska doesn't require titling a
vessel, but it does require a registration. Boat builders say
people who buy vessels from them are concerned because they
don't actually get a title. This would fix that.
SENATOR STEDMAN said he has a 52 ft. boat and has a marine title
with the Coast Guard.
MR. HAWKINS replied that he has Coast Guard documentation, which
is not a title.
4:38:11 PM
RACHEL LORD, Executive Secretary, Alaska Association of Harbor
Masters and Port Authorities (AAHPA), supported SB 92. She said
state statutes are outdated and were written in 1976 by DOTPF
and briefly updated in 2013 to open up authority that had only
rested with the Department of Transportation and Public
Facilities (DOTPF) because of their historical role as owner of
all Alaska harbors.
Through a situation in Kachemak Bay where two vessels sank, it
became clear that a problem existed with DOTPF being the only
one with authority to exercise the chapter because they didn't
have any mandate to do so. So, HB 131 opened up the use of the
chapter to all state agencies and municipalities. That was just
a starting point.
She explained that the AAHMPA and others supported the formation
of an ad hoc derelict vessel task force, which she facilitated.
It met for nine full days over a year and a half. They had the
entire "alphabet soup" of every state and federal agency, the
municipalities, Senator Murkowski's office, a Bethel Native
Council, and some private salvage companies participating. The
group discussed case studies in Alaska, what is going on, what
people are dealing with, what the problems are in preventing and
managing them, what people's jurisdictional boundaries and
authorities are, and what other states are doing around the
country. It became very clear that a full rewrite of Alaska
statutes was a very necessary first step.
MS. LORD said the group had pro bono legal assistance from the
municipal law firm of Birch Horton Bittner & and Cherot that
worked through the problems everyone agreed upon and crafted
solutions and a suite of tools to make some forward progress.
In the case of the M/V Akutan, before taking legal action you a
vessel has to be determined as derelict or abandoned. Under
state law now, if it's derelict or abandoned there are two
different courses of action for due process, hearings, and for
noticing, and two different paths of options for disposition of
that vessel. So, one has to choose carefully, because current
statutes are layered with confusion and lack of clarity.
MS. LORD said SB 92 clarifies not only the notice and
impoundment process for agencies and municipalities, but it also
improves due process for vessel owners. Some would contend that
perhaps current statutes are not federally constitutional under
federal Admiralty law and do not afford vessel owners the proper
amount of due process that should be afforded to somebody under
it, and SB 92 clarifies that.
4:42:33 PM
To answer some of the concerns regarding registration and
titling issues, there is no silver bullet. However, under SB 92
federally documented vessels are not required to get a state
title, but they would be asked to register with the state for
the increased fee of $30 (from $24) if SB 92 passes. That is
true in at least 26 other states, including Washington.
One of the problems with relying on federal documentation
exclusively for tracking of ownership is the point at which the
owner stops paying for documentation. And at that point the
State of Alaska doesn't have any document of any of these boats
existing.
MS. LORD said if you have ever owned a boat trailer and tried to
get it titled or registered, you know that it can be really
challenging. It is way easier to own a boat in Alaska now than a
boat trailer, because a boat trailer is regulated as a highway
vehicle. Many contend, including her, that a boat has a much
greater potential public liability than a boat trailer.
While she appreciated not wanting to expand that universe of
registration with added paperwork, Ms. Lord said, however, this
is borne out of very real problems being found daily in Alaska.
The language in SB 92 was crafted in a way to try to help the
state have some more recourse when it comes to determining a
vessel owner. The fact remains that with nearly every derelict
vessel has contention over who owns it because of the huge
amount of liability that is on the hook.
She said SB 92 clarifies liability for owners, which is
important. The state wants to hold people accountable that if
you buy a boat the easiest dumping ground should not be state or
municipal waters, and right now it is. Neighboring states have
dramatically cracked down on their laws, which leaves Alaska as
an easy target for dumping of boats.
MS. LORD noted the DNR's zero fiscal note saying the hope is
that some funds are raised to help address this situation. Other
states have found that a little money goes a long way with
consolidating efforts. Right now, DNR, as the land manager, is
dealing with these problems, spending staff time and state
resources on dealing with derelict vessels throughout the state,
across the coast, and across the river systems. They are doing
it in a way that is not consolidated or streamlined, and there
is no one to call if a derelict vessel is in an unincorporated
area or in state waters.
She said the language in SB 92 is permissive to allow for the
department to create that program, to allow for them to look
proactively at this issue. It does not require them to do it
immediately. It would take time and resources.
MS. LORD summarized that this is a national problem, and this is
the direction in which other states are going. The federal
delegation is aware of that, but in the meantime, the State of
Alaska is still back in 1976.
SENATOR STEDMAN said derelict boat inhabitants live basically
week to week and if their boat sinks, they "play the hot potato
game." Some are drug addicts and unemployed, but he could assure
people that crime issues in the harbors don't come from the $2
and $3 million boats. But he wanted to know how identifying the
derelicts would help extract money from them.
MS. LORD answered there is no silver bullet, but a law deters
more people than otherwise. One of the big problems not
explicitly addressed in SB 92 is the cradle to grave problem.
She explained that everything that is created has a shelf life.
A well-maintained boat will operate for decades or more, but
that takes money and resources neither of which are ever
guaranteed. And they have not come up with a plan for what to do
with a boat at the end of its useful life. Right now, the
default plan is to keep passing it down the line until it is
with a person who has the least resources to deal with it. That
is a problem. But raising the awareness and clarifying the law
and liability of an owner is a big step forward and helps
agencies and municipalities legally deal with these situations
when they invariably arise.
She said that SB 92 under the permissive language in the
Derelict Vessel Prevention Program allows for the department,
with resources permitting, to explore options for the cradle to
grave question including voluntary vessel turn-in programs,
which have been "hugely beneficial" and saved states around the
country a lot of money. California is one state that has been
very successful. Alaska is different: our harbors can't pull out
all the boats. We don't have the infrastructure, the salvage
companies or the ship breakers to do it. The people in Alaska
have to look collectively at how to deal with it.
SENATOR STEDMAN remarked that the organized harbors are all
managed differently. A useful thing that Juneau does that others
don't do is require insurance certificates, and in order to get
an insurance certificate, an owner has to get a survey and the
boat will have to be fairly sound to get it. An uninsured boat
helps tip off a harbor master. It comes back to his point:
knowing your tenant and being responsive to who you are renting
to. And knowing you don't have to rent to anybody that shows up.
4:52:55 PM
MS. LORD said people have dreams and those should be protected,
but huge liabilities are being created as those dreams go awry.
Her wish is that the state takes the situation seriously enough
to provide enough resources to be able to enforce mooring laws
around the state where the liability is big enough that someone
will think three times before signing a bill of sale, and that
people are more circumspect about buying a boat because more
liability is associated with it than there currently is. She
also pointed out that some municipal harbors have great
ordinances and have spent a lot of money to protect themselves,
but that means that those boats leave the harbor and moor on
state waters or they moor in smaller communities that don't have
the legal or financial resources to deal with them. The larger
communities will continue to protect themselves, but the state
loses, and the smaller communities and unorganized communities
are the losers in that and the protected one at the end of the
day is the person who made a really poor choice with no
resources to buy a crappy old boat. They get to walk away free.
CHAIR GIESSEL asked the Department of Natural Resources (DNR) to
comment on the fiscal note.
4:55:13 PM
ED KING, Special Assistant it the Commissioner, Department of
Natural Resources (DNR), Juneau, Alaska, said the department is
working on a fiscal note, but had some issues surrounding
Senator Von Imhof's question about the intent of the department
and what the costs might be. They interpret the bill to mean
that to the extent that there are funds available within the
fund that is being created by the bill, and only then, would
action be required. The fiscal note is being finalized under
that interpretation.
CHAIR GIESSEL asked if the department is spending a lot
resources on this subject currently.
4:56:32 PM
KRIS HESS, Operations Manager, Division of Mining, Land and
Water, Department of Natural Resources, Anchorage, Alaska,
answered that they spent considerable time and resources between
herself, Director Brent Goodrum, Deputy Commissioner Heidi
Hansen, and others in terms of coordinating with federal, state,
and local agencies to deal with this situation. From August 2017
when the Akutan suffered problems with its engines and the time
of actual disposal, which was in January 2018, a rough estimate
is at least 250 hours of staff time was spent.
SENATOR STEDMAN asked, when a derelict vessel is sitting on
their tidelands, if it isn't it a matter of an appropriation of
funds to the Department of Law. And if this bill is only going
to produce $100,000-200,000/year, it would take 10 years to just
pay for the tug boat that sank in Juneau last year. He didn't
think the ends were lining up very well outside of large
appropriations from the legislature, with or without this bill.
MR. KING agreed that a lot of money would be needed to take
immediate action, and those funds are not available.
MS. HESS also agreed that was probably an accurate assessment.
SENATOR BISHOP suggested that the federal Resource Conservation
and Recovery Act (RCRA) addressed midnight dumping of hazardous
materials, and he was thinking if a 400-foot barge grounded on
state tidelands if the state could access some of those federal
funds to help with clean-up.
MR. KING replied yes; the Coast Guard does assist in the removal
of contaminants or environmentally dangerous materials and did
that in the Akutan case. But once the hazardous materials are
removed, that is where it stops: at the boat.
SENATOR BISHOP suggested stretching it a little to take in the
whole boat removal. He said they are trying to eliminate future
liabilities and that would be going in the right direction.
5:03:37 PM
CHAIR GIESSEL, finding no further comments, closed public
testimony. She held SB 92 in committee.