Report Title:

Motor Carrier; Transfer of PUC Functions to Counties

Description:

Transfers regulatory jurisdiction over motor carriers from public utilities commission to the counties.

THE SENATE

S.B. NO.

853

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO MOTOR CARRIER LAW.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Existing law in chapter 271, Hawaii Revised Statutes (HRS), confers jurisdiction over regulating motor carriers with the public utilities commission. Motor carriers are ground transportation vehicles used for commercial purposes.

The legislature finds that the function of licensing and regulating the operations of common carriers more appropriately belongs with the counties. Each common carrier typically operates within the boundaries of a particular county, although a common carrier may have operations on more than one island.

The purpose of this Act is to transfer the jurisdiction over the administration of chapter 271, HRS, from the public utilities commission to each county as it pertains to the operation of each motor carrier in a particular county.

SECTION 2. Section 269-1, Hawaii Revised Statutes, is amended by amending the definition of "Public utility" to read as follows:

""Public utility" includes every person who may own, control, operate, or manage as owner, lessee, trustee, receiver, or otherwise, whether under a franchise, charter, license, articles of association, or otherwise, any plant or equipment, or any part thereof, directly or indirectly for public use, for the transportation of passengers or freight, or the conveyance or transmission of telecommunications messages, or the furnishing of facilities for the transmission of intelligence by electricity by land or water or air within the State, or between points within the State, or for the production, conveyance, transmission, delivery, or furnishing of light, power, heat, cold, water, gas, or oil, or for the storage or warehousing of goods, or the disposal of sewage; provided that the term:

(1) Shall include any person insofar as that person owns or operates a private sewer company or sewer facility;

(2) Shall include telecommunications carrier or telecommunications common carrier;

(3) Shall not include any person insofar as that person owns or operates an aerial transportation enterprise;

(4) Shall not include persons owning or operating taxicabs, as defined in this section;

(5) Shall not include common carriers transporting only freight on the public highways, unless operating within localities or along routes or between points that the public utilities commission finds to be inadequately serviced without regulation under this chapter;

(6) Shall not include persons engaged in the business of warehousing or storage unless the commission finds that regulation thereof is necessary in the public interest;

(7) Shall not include:

(A) The business of any carrier by water to the extent that the carrier enters into private contracts for towage, salvage, hauling, or carriage between points within the State and the carriage is not pursuant to either an established schedule or an undertaking to perform carriage services on behalf of the public generally; and

(B) The business of any carrier by water, substantially engaged in interstate or foreign commerce, transporting passengers on luxury cruises between points within the State or on luxury round-trip cruises returning to the point of departure;

(8) Shall not include any person who:

(A) Controls, operates, or manages plants or facilities for the production, transmission, or furnishing of power primarily or entirely from nonfossil fuel sources; and

(B) Provides, sells, or transmits all of that power, except such power as is used in its own internal operations, directly to a public utility for transmission to the public;

(9) Shall not include a telecommunications provider only to the extent determined by the commission pursuant to section 269-16.9;

(10) Shall not include any person who controls, operates, or manages plants or facilities developed pursuant to chapter 167 for conveying, distributing, and transmitting water for irrigation and such other purposes that shall be held for public use and purpose; [and]

(11) Shall not include any person who owns, controls, operates, or manages plants or facilities for the reclamation of wastewater; provided that:

(A) The services of the facility shall be provided pursuant to a service contract between the person and a state or county agency and at least ten per cent of the wastewater processed is used directly by the State or county which has entered into the service contract;

(B) The primary function of the facility shall be the processing of secondary treated wastewater that has been produced by a municipal wastewater treatment facility that is owned by a state or county agency;

(C) The facility shall not make sales of water to residential customers;

(D) The facility may distribute and sell recycled or reclaimed water to entities not covered by a state or county service contract; provided that, in the absence of regulatory oversight and direct competition, the distribution and sale of recycled or reclaimed water shall be voluntary and its pricing fair and reasonable. For purposes of this [[]subparagraph[]], "recycled water" and "reclaimed water" mean treated wastewater that by design is intended or used for a beneficial purpose; and

(E) The facility shall not be engaged, either directly or indirectly, in the processing of food wastes[.]; and

(12) Shall not include motor carriers under chapter 271.

In the event the application of this chapter is ordered by the commission in any case provided in paragraphs (5), (6), (9), and (10), the business of any public utility that presents evidence of bona fide operation on the date of the commencement of the proceedings resulting in the order shall be presumed to be necessary to public convenience and necessity, but any certificate issued under this proviso shall nevertheless be subject to such terms and conditions as the commission may prescribe, as provided in sections 269-16.9 and 269-20."

SECTION 3. Section 271-2, Hawaii Revised Statutes, is amended to read as follows:

"§271-2 Administration; governing provisions of other acts. (a) This chapter shall be administered by [the public utilities commission of the State] each county in which a motor carrier is engaged in the transportation of persons or the transportation of property, or both, and the provisions of this chapter [and of chapter 269, not inconsistent with this chapter,] shall govern its administration[; provided that sections 269-4, 269-9, 269-11, 269-16 to 269-28 and 269-30 shall not, in any respect, apply to the regulation of motor carriers]. A common carrier having operations in more than one county shall be separately regulated under this chapter in each county in which the common carrier operates.

(b) For purposes of subsection (a), a county may administer this chapter by using an existing or establishing a new department, agency, commission, or other public entity."

SECTION 4. Section 271-4, Hawaii Revised Statutes, is amended to read as follows:

"§271-4 Definitions. As used in this chapter:

[(1)] "Chapter" means the Motor Carrier Law.

[(2) "Commission" means the public utilities commission.

(3)] "Person" or "persons" means any individual, firm, copartnership, corporation, company, association, or joint stock association; and includes any trustee, receiver, assignee, or personal representative thereof.

[(4)] "Certificate" means a certificate of public convenience and necessity issued under this chapter to common carriers by motor vehicle.

[(5)] "Permit" means a permit issued under this chapter to contract carriers by motor vehicle.

[(6)] "Transportation of persons" includes every service in connection with or incidental to the safety, comfort, or convenience of persons transported and the receipt, carriage, and delivery of these persons and their baggage.

[(7)] "Transportation of property" includes every service in connection with or incidental to the transportation of property, including in particular its receipt, delivery, elevation, transfer, carriage, ventilation, refrigeration, icing, dunnage, storage in transit, handling, and its consolidation for the purposes of forwarding within the [State.] county.

[(8)] "Motor vehicle" means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the [commission,] county but does not include any vehicle, locomotive, or car operated exclusively on a rail or rails or a trolley bus operated by electric power derived from a fixed overhead wire, furnishing local passenger transportation similar to street-railway service.

[(9)] "Highway" means the public roads, highways, streets, and ways in [this State.] the county, whether under state or county jurisdiction.

[(10)] "Rates" includes rates, fares, tolls, rentals, and charges of whatever kind and nature unless the context indicates otherwise.

[(11)] "Common carrier by motor vehicle" means any person which holds itself out to the general public to engage in the transportation by motor vehicle of passengers or property or any class or classes thereof for compensation.

[(12)] "Contract carrier by motor vehicle" means any person which engages in transportation by motor vehicle of passengers or property for compensation (other than transportation referred to in paragraph (11)) under continuing contracts with one person or a limited number of persons either (A) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served, or (B) for the furnishing of transportation services designed to meet the distinct need of each individual customer.

[(13)] "Motor carrier" includes both a common carrier by motor vehicle and a contract carrier by motor vehicle.

[(14)] "Private carrier of property by motor vehicle" means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle", who or which transports by motor vehicle property of which the person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in the furtherance of any commercial enterprise.

[(15)] "Enforcement officer" means any person employed and authorized by the [commission] county to investigate any matter on behalf of the [commission. The term also means a motor vehicle safety officer employed and assigned, pursuant to section 271-38, by the department of transportation to enforce sections 271-8, 271-12, 271-13, and 271-29 through the assessment of civil penalties as provided in section 271-27(h), (i), and (j).] county."

SECTION 5. Section 271-36, Hawaii Revised Statutes, is amended to read as follows:

"§271-36 Fees and charges. (a) Every common carrier by motor vehicle and every contract carrier by motor vehicle shall pay to the [commission, in April of each year, a fee equal to one-fourth of one per cent of the gross revenues from the carrier's business during the preceding calendar year, or the sum of $20, whichever is greater. Gross revenues include all revenues received from services connected with or incidental to the transportation of persons or the transportation of property, as defined under section 271-4.] county such fees as the county may determine.

(b) Every common carrier by motor vehicle and every contract carrier by motor vehicle paying a fee under subsection (a) may impose a surcharge to recover the amount paid above one-eighth of one per cent of gross income. The surcharge imposed shall not be subject to the notice, hearing, and approval requirements of this chapter; provided that the surcharge may be imposed by the [utility] common carrier only after thirty days' notice to the [public utilities commission.] county. Unless ordered by the [public utilities commission,] county, the surcharge shall be imposed only until the conclusion of the carrier's next rate case; provided that the surcharge shall be subject to refund with interest at the [public utility's] common carrier's authorized rate of return on rate base if the [utility] common carrier collects more money from the surcharge than actually paid due to the increase in the fee to one-fourth of one per cent.

(c) The [commission] county shall establish fair and reasonable fees for the following applications:

(1) Applications for certificates and permits as provided by sections 271-12 and 271-13;

(2) Applications for extensions of certificates as provided by section 271-12(d);

(3) Applications for temporary certificates and permits as provided by section 271-16; and

(4) Applications for authority to convey property necessary or useful in the performance of duties to the public or to transfer certificates or permits or to purchase motor carrier stock, as provided in section 271-18.

The fees charged pursuant to this subsection shall be paid to the [commission] county at the time of submission of the application.

(d) The [commission] county may charge an amount it deems necessary and reasonable to defray the cost of supplying to the carriers and the public the application forms and other forms, schedules, tariffs, copies of rules, and other pamphlets and materials it provides by individual copy or in bulk.

(e) All of the fees and charges collected by a county under this section shall be deposited with [the] that county's director of finance [to the credit of the public utilities commission special fund established under section 269-33.] for use by the county in administering this chapter."

SECTION 6. Section 271-37, Hawaii Revised Statutes, is amended to read as follows:

"[[]§271-37[]] [Attorney general;] County attorney; aid in enforcement. [Upon written request of the public utilities commission, the attorney general] The county attorney shall prosecute all violations on behalf of the [commission] respective county for the enforcement of the provisions of this chapter."

SECTION 7. Section 271-38, Hawaii Revised Statutes, is repealed.

["[§271-38] Enforcement. At the request of the public utilities commission the department of transportation shall assign a motor vehicle safety officer employed by the department of transportation to assist in the enforcement of sections 271-8, 271-12, 271-13, and 271-29 through the assessment of civil penalties as provided in section 271-27(h), (i), and (j)."]

SECTION 8. The revisor of statutes shall substitute references to the term "commission" or "public utilities commission" with the term "county" in the following sections: 271-5, 271-8, 271-8.5, 271-9, 271-10, 271-11, 271-12, 271-13, 271-15, 271-16, 271-17, 271-18, 271-19, 271-20, 271-21, 271-22, 271-23, 271-24, 271-25, 271-26, 271-26.5, 271-27, 271-28, 271-29, 271-30, 271-31, 271-32, 271-33, 271-34, and 271-35, Hawaii Revised Statutes, as well as any other sections in chapter 271, Hawaii Revised Statutes, that that the term appears.

SECTION 9. All records (including records of licenses and fees), files, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by public utilities commission relating to the functions of motor carriers shall be transferred to each county as appropriate.

SECTION 10. All licenses and permits held by any person or entity under chapter 271, Hawaii Revised Statutes, in effect as of January 1, 2004, shall remain in effect until expired by the terms of the license or permit, notwithstanding the transfer of the function of administration to the counties under this Act.

SECTION 11. There is appropriated out of the general revenues of the State of Hawaii the sum of $          , or so much thereof as may be necessary for fiscal year 2003-2004, for the transfer of functions to each county under this Act.

The sum appropriated shall be expended by the department of commerce and consumer affairs.

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect on January 1, 2004; provided that section 11 shall take effect on July 1, 2003.

INTRODUCED BY:

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