HB 0428

CHAPTER 269

HB 428 – FINAL VERSION

AN ACT relative to clarifying the authority of the Pease development authority and the division of ports and harbors.

SPONSORS: Rep. Patten, Carr 4

I. Defines “state-owned commercial pier,” “associated facilities,” “business-use pier,” and “recreational-use pier,” and clarifies references to these terms.

II. Clarifies references in RSA 12-G to piers, wharves, and docks and to the Foreign Trade Zones Act.

III. Clarifies the scope of the existing exemption from the payment of slip fees.

IV. Clarifies the Pease development authority’s authority to establish permit programs for vessels securing to or berthing at and for vehicles parking at state-owned piers and associated facilities and to adopt rules to implement such programs.

V. Grants Pease development authority the authority to remove abandoned or illegally parked vehicles, trailers, and other equipment.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to clarifying the authority of the Pease development authority and the division of ports and harbors.

Be it Enacted by the Senate and House of Representatives in General Court convened:

269:1 New Paragraph; Pease Development Authority; Definition of Associated Facilities Added. Amend RSA 12-G:2 by inserting after paragraph IV the following new paragraph:

IV-a. “Associated facilities” means all property owned or operated by the authority in the vicinity of a state-owned commercial pier, including, but not limited to, roadways, access ways, parking lots, buildings and other structures, boat ramps, equipment, and utilities.

269:2 New Paragraph; Pease Development Authority; Definition of Business-Use Pier Added. Amend RSA 12-G:2 by inserting after paragraph VII the following new paragraph:

(a) The fixed piers, wharves, docks, and attached floats in Hampton Harbor located southeast of the year-round concrete floats of the Hampton Harbor recreational-use pier;

(b) All fixed piers and attached floats located on Pierce Island in Portsmouth owned by the authority; and

269:3 New Paragraph; Pease Development Authority; Definition of Recreational-Use Pier Added. Amend RSA 12-G:2 by inserting after paragraph XIX the following new paragraph:

(a) The fixed pier and attached floats located north of the state administration building at Rye Harbor; and

(b) The fixed pier and attached year-round concrete floats located northwest of the business-use pier at Hampton Harbor.

269:4 New Paragraph; Pease Development Authority; Definition of State-Owned Commercial Pier Added. Amend RSA 12-G:2, XXIII-a to read as follows:

XXIII-a. “State-owned commercial pier” means any business-use or recreational-use pier owned by the state and located at Portsmouth, Rye Harbor, or Hampton Harbor.

XXIII-b. “State tidal waters” means any harbor or other tidal waters within the state.

269:5 Pease Development Authority; Incorporation; Powers; Inclusion of Reference to Docks. Amend RSA 12-G:8, XX to read as follows:

XX. To design, construct, maintain, operate, improve, and reconstruct such airport projects and division projects as shall be consistent with the purposes and provisions of this chapter, including without limitation the maintenance and development of aviation and port services, including landing fields, heliports, hangars, shops, passenger and freight terminals, control towers, piers, wharves, docks, navigation aids, and all facilities necessary or convenient in connection with any such airport project or division project and also to contract for the construction, operation, or maintenance of any parts thereof, or for services to be performed thereon, and to rent parts thereof and grant concessions thereon, all on such terms and conditions as the authority may determine.

269:6 Authorization to Establish Foreign-Trade Zones; References Changed. Amend the section heading of RSA 12-G:38 and RSA 12-G:38, I-III to read as follows:

12-G:38 Authorization to Seek Designation as Port of Entry or International Airport and to Establish Foreign Trade [~~Zone~~] Zones.

I. The authority shall be and is hereby authorized to make application to the Secretary of the Treasury of the United States for the purpose of having Pease Air Force Base, or portions thereof, designated, established, or constituted, a port of entry, or an international airport, pursuant to the Customs Reorganization Act, 19 U.S.C. section 1 et seq., as amended, and 19 U.S.C. section 58b, as amended, and regulations of the United States Customs Service, including 19 C.F.R. section 101.0[,] et seq. and 19 C.F.R. section 122.1[,] et seq.

II. The authority shall be and hereby is authorized to make application to the Secretary of Commerce of the United States for the purpose of establishing, operating, and maintaining foreign-trade zones in the state of New Hampshire, including without limitation at Pease Air Force Base, pursuant to the [~~Free Trade Zone~~] Foreign Trade Zones Act, 19 U.S.C. section 81a[,] et seq., as amended, providing for the establishment, operation, and maintenance of foreign trade zones in or adjacent to ports of entry of the United States, to expedite and encourage foreign commerce, and for other purposes. Unless precluded by federal law, any foreign trade zone previously under the jurisdiction of the former port authority, and all duties, responsibilities, and obligations associated therewith, shall be transferred to the authority when the duties, functions, and jurisdiction of the port authority are transferred to the authority.

III. The authority shall have full power and authority to select and describe the location of the zone for which application to establish may be made and to make such rules and take such other actions concerning the operation, maintenance, and policing of same as may be necessary to comply with the [~~Free Trade Zone~~] Foreign Trade Zones Act and the regulations adopted thereunder, or as may be necessary to comply with such regulations made in accordance with the acts of Congress relating to foreign trade zones. The authority hereby granted to the authority confers on the authority the right and duty to do all things necessary and proper to carry into effect the establishing, maintaining, and operating of foreign trade zones with the state of New Hampshire to comply with the provisions of any acts of Congress or rules promulgated thereunder relating to foreign trade zones. The authority shall also be authorized to set and collect fees for the management of any foreign trade zone established or maintained under this chapter.

269:7 Pease Development Authority; Acquisition of Land for Port Purposes; Inclusion of Reference to Docks. Amend RSA 12-G:39 to read as follows:

12-G:39 Acquisition of Land for Port Purposes. In addition to any other power or authority conferred on the authority under this chapter, the authority, with the approval of the governor and council, may, in the name of the state, purchase, lease, or otherwise acquire lands or interests in land, including options, on, near, or adjacent to the state tidal waters suitable for constructing, establishing, and maintaining thereon piers, wharves, docks, warehouses, or other facilities useful and necessary in the encouragement and development of commercial navigation. Before making any such purchase or acquisition, the authority shall submit to the governor and council a detailed description of the land or interests therein to be acquired, together with a statement of the purposes for which the property is suited and the cost of acquisition and estimated cost of development, as well as such other information as the governor and council shall require. The authority, with the approval of the governor and council, may accept gifts of land; and may in like manner accept and apply to the purchase of land or the development thereof, contributions, gifts, or aid in any form made or given for the purpose by any person, firm, or corporation, or by any municipality or by the United States, and may execute instruments necessary to qualify for such contributions, gifts, or aid. Any land or interest in land acquired by the authority pursuant to this section shall be considered division property and not airport property and shall not be included in the airport district.

269:8 Pease Development Authority; Improvements; Inclusion of Reference to Docks. Amend RSA 12-G:40 to read as follows:

12-G:40 Improvements. The authority, with the approval of the governor and council as to the nature and specifications of the intended project and the cost thereof, may undertake the improvement of any land acquired by it pursuant to RSA 12-G:39 by the construction thereon of piers, wharves, docks, warehouses, or other facilities as specified in RSA 12-G:39. Any such improvement shall, insofar as possible, be self-liquidating; and the authority shall charge just and reasonable fees for the use thereof. All revenue received from such fees shall be considered division revenues, shall be accounted for separately from other revenues of the authority, and, after the deduction therefrom of the cost of operating such project, shall be applied to the amortization of any obligations of the authority related to division projects.

269:9 Pease Development Authority; Additional Powers and Duties; Inclusion of Reference to Docks. Amend the introductory paragraph of RSA 12-G:42, IV to read as follows:

IV. Be authorized and empowered to contract with and secure the services of a port terminal operating firm, subject to approval of governor and council, for the purpose of having such firm operate a part or all of the facilities of the authority, including piers, wharves, docks, warehouses, parking and storage areas, or other facilities owned or leased by the authority acting through the division, with such operating firm having the exclusive right to operate the business of a port terminal operator and stevedore, including but not limited to the handling of cargo, the collection of fees from wharfage and dockage and other marine terminal operations, the maintenance and security of the premises, and the promotion, encouragement, and solicitation of business for such port facility or facilities. Such contract with an operating firm shall include the following provisions:

269:10 Pease Development Authority; Additional Powers and Duties; Power to Set and Collect Fees for Mooring and Slip Permits. Amend RSA 12-G:42, VI and VII to read as follows:

VI. Administer and enforce permit programs for the placement and use of moorings and state-owned slips in state tidal waters, including waiting lists for such permits.

VII. Set and collect fees for mooring and state-owned slip permits and waiting lists for such permits. The authority shall establish fees for state-owned slips in ports, harbors, and state tidal waters. Fees shall not be charged for state-owned slips [~~at industrial piers along the Piscataqua River or at state-owned piers~~] in ports, harbors, or state tidal waters securing vessels discharging cargo that is subject to the federal Harbor Maintenance Tax imposed pursuant to 26 U.S.C. sections 4461-4462. The fees for state-owned slips shall be paid into the harbor dredging and pier maintenance fund established under RSA 12-G:46.

269:11 Pease Development Authority; Additional Powers and Duties; Power to Establish Permit Programs and Wait Lists for Commercial Piers and Associated Facilities; Clarification of Authority. Amend RSA 12-G:42, IX to read as follows:

IX. Have the responsibility for and jurisdiction over [~~the~~] state-owned commercial piers and associated facilities [~~at Portsmouth, Rye Harbor, and Hampton Harbor~~], including the establishment of [~~fees and rents associated with the use of such facilities~~] permit programs and wait lists for vessels securing to or berthing at state-owned piers and associated facilities, and the establishment of fees associated with the implementation of such permit programs, including fees for vessels secured to or berthed at state-owned commercial piers in a manner not authorized under rules of the division adopted under this chapter. The authority shall also operate, maintain, and manage the parking facilities at all state-owned commercial piers and associated facilities and shall be authorized to establish permit programs and fees or to otherwise charge for the use of parking at such piers and facilities, including fees or charges for vehicles or trailers parked at state-owned commercial piers or associated facilities in a manner not authorized under rules of the division adopted under this chapter.

269:12 Pease Development Authority; Power to Adopt Rules Relative to Commercial Piers and Associated Facilities; Clarification of Authority. Amend RSA 12-G:42, X(d) to read as follows:

(d) State-owned commercial piers [~~identified in paragraph IX~~] and associated facilities, including without limitation the terms, conditions, and procedures under which the division shall issue, suspend, revoke, deny, or approve permits authorized under this chapter relative to the use of state-owned commercial piers and associated facilities and such other rules as the division deems necessary for the proper and safe use, operation, and management of such commercial piers and associated facilities.

269:13 Pease Development Authority; Additional Powers and Duties; Power to Adopt Rules Relative to the Setting and Collecting of Fees. Amend the introductory paragraph of RSA 12-G:42, XI to read as follows:

XI. Adopt rules, after obtaining prior approval by the fiscal committee of the general court and the board, relative to the setting and collecting of fees authorized under RSA 12-G:38, relating to foreign trade zones; RSA 12-G:42, IV and V, relating to wharfage, dockage, and other marine terminal operations; RSA 12-G:42, VI, relating to moorings, state-owned slips, and wait lists; RSA 12-G:42, IX, relating to state-owned commercial piers [~~identified in paragraph IX and other division property~~] and associated facilities; RSA 12-G:49-a, relating to pilotage; and any other matter necessary for the proper administration of the division with respect to the setting and collecting of fees. The rules adopted under this paragraph shall not be subject to the provisions of RSA 541-A, so as to provide the authority with the ability to maximize revenues and to adjust fees according to market conditions and trends as is the common practice in private industry. Fees established pursuant to this paragraph shall be consistent with the following criteria:

269:14 Pease Development Authority; Additional Powers and Duties; Power to Adopt Rules Relative to the Setting and Collecting of Fees. Amend RSA 12-G:42, XI(e) to read as follows:

(e) Fees relating to state-owned commercial piers and [~~use of other division property~~] associated facilities shall be established giving due consideration to the fees for use of similar privately-owned facilities.

269:15 Pease Development Authority; Use of Harbor Dredging and Pier Maintenance Fund. Amend RSA 12-G:46, I and II to read as follows:

I. There is hereby established a harbor dredging and pier maintenance fund to be used by the authority acting through the division to meet its obligation to initiate and implement dredging projects to maintain channels and harbors, and to initiate projects to maintain [~~public~~] state-owned commercial piers in safe and efficient condition.

II. The fund shall be nonlapsing and continually appropriated for the purposes of initiating and implementing harbor dredging projects and maintaining [~~public~~] state-owned commercial piers. The authority shall, in each biennium, request annual appropriations to the fund in an amount sufficient to provide for the funding of the authority’s periodic harbor dredging and pier maintenance efforts. The state treasurer shall invest the moneys deposited in the fund as provided by law. Interest earned on moneys deposited in the fund shall be deposited into the fund.

269:16 New Section; Removal and Disposition of Certain Vehicles and Devices. Amend RSA 12-G by inserting after section 52-b the following new section:

12-G:52-c Removal and Disposition of Abandoned or Illegally Located Vehicles and Other Devices.

I. No person shall park or otherwise leave any vehicle, trailer, equipment, or other device on airport property or division property except as authorized by the authority.

II. The authority may remove, tow, impound, and dispose of, or arrange for or order the removal, towing, impoundment, or disposal of vehicles, trailers, equipment, or other devices abandoned on airport property or division property or parked or located in violation of this chapter, or any rule adopted thereunder, and for any of the reasons set forth in RSA 262:32. Each vehicle, trailer, equipment, and other device removed, towed, or impounded by or on behalf of the authority shall be stored at a secure location until such time as it is claimed by the person lawfully entitled to possession of the vehicle.

III. Notwithstanding the provisions of RSA 259:4-a, or any other provision of law, the authority may enforce RSA 262:31 through RSA 262:40-c relative to the removal and impoundment of abandoned vehicles. Pursuant to its authority under this section:

(a) The executive director or the division director, as designated by the authority, shall have any power, duty, or responsibility assigned to the commissioner of safety or a head of a law enforcement agency under RSA 262:31 through RSA 262:40-c; and

(b) A designated employee of the authority shall have any power, duty, or responsibility assigned to an “authorized official” under RSA 262:31 through RSA 262:40-c.

269:17 Administrative Rules Relative to Permits for State-Owned Slips. Amend RSA 12^--G:42, X(c) to read as follows:

(c) The terms, conditions, and procedures under which the division shall issue, suspend, revoke, deny, or approve permits required under this chapter for moorings and state-owned slips.