Report Title:
Freight Carriers; Counties
Description:
Transfers regulation over water and motor carriers of property from the public utilities commission to the counties. Provides counties with 50% of funds received from traffic fines and forfeitures.
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2779 |
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TWENTY-FIRST LEGISLATURE, 2002 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO FREIGHT CARRIERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to transfer from the public utilities commission to the several counties regulatory power over the transportation of property by water carriers and motor carriers. Furthermore, this Act redirects fifty per cent of traffic fines and forfeitures to the counties.
SECTION 2. Chapter 269, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§269- Motor carriers and water carriers of property; regulation by counties; certificate of public convenience and necessity prohibited. (a) Effective July 1, 2004, the respective counties shall have full authority to regulate motor carriers and water carriers of property, currently regulated by the commission under chapters 271 and 271G, respectively, and the regulatory authority of the commission shall cease. The legislative bodies of the respective counties may enact all necessary ordinances and regulations to regulate motor carriers and water carriers within their respective jurisdictions.
(b) In regulating motor and water carriers of property, no county legislative body may enact an ordinance to require the issuance of a certificate of public convenience and necessity, as described in section 269-7.5, or any other similar document or permit that requires a motor carrier or water carrier of property to demonstrate that its service is, or will be, required by the present or future public convenience or necessity; provided, however, that nothing in this section shall be construed to prohibit any county from enacting an ordinance to require an applicant motor carrier or water carrier of property to supply the following information in its application to operate in a county:
(1) Type of service to be performed;
(2) Geographical scope of the service operation;
(3) Type of equipment to be employed in the service;
(4) Name or names of competing property carriers for the proposed service;
(5) Statement of financial ability to render the proposed service;
(6) Current financial statement of the applicant; and
(7) Rates or charges proposed to be charged including rules and regulations governing the proposed service."
SECTION 3. 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.
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 4. Section 269-20, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) No person which holds itself out to the general public to engage in the transportation by water of passengers [or property] or any class or classes thereof for compensation, between points in the State of Hawaii, shall operate unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the commission authorizing such transportation; provided that this section shall not apply to any carrier by water to the extent that the carrier is excluded from the definition of a public utility under section 269-1(6)."
SECTION 5. Section 269-23, Hawaii Revised Statutes, is repealed.
["§269-23 Liability of initial and delivering common carrier for loss; limitation of liability; notice and filing of claim. Any common carrier receiving property for transportation from a point in Hawaii to a point in Hawaii shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to the property caused by it or by any common carrier or transportation company to which the property may be delivered or over whose line or lines the property may pass when transported on a through bill of lading, and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt the common carrier from the liability imposed; and any such common carrier so receiving property for transportation or any common carrier or transportation company delivering the property so received and transported shall be liable to the lawful holder of the receipt or bill of lading or to any party entitled to recover thereon, whether the receipt or bill of lading has been issued or not, for the full actual loss, damage, or injury to such property caused by it or by any common carrier or transportation company to which the property may be delivered or over whose line or lines the property may pass when transported on a through bill of lading, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the public utilities commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void; provided that if the loss, damage, or injury occurs while the property is in the custody of a carrier by water the liability of the carrier shall be determined by the bill of lading of the carrier by water and by and under the laws and regulations applicable to transportation by water, and the liability of the initial or delivering carrier shall be the same as that of the carrier by water; provided that the provisions hereof respecting liability for full actual loss, damage, or injury, notwithstanding any limitation of liability or recovery or representation or agreement or release as to value, and declaring any such limitation to be unlawful and void, shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers; second, to property, except ordinary livestock, received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case the declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released, and any tariff schedule which may be filed with the commission pursuant to the order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon; and the commission may make such order in cases where rates dependent upon and varying with declared or agreed values would, in its opinion, be just and reasonable under the circumstances and conditions surrounding the transportation; provided further that nothing in this section shall deprive any holder of the receipt or bill of lading of any remedy or right of action which the holder has under the existing law; provided further that it shall be unlawful for any such receiving or delivering common carrier to provide by rule, contract, regulation, or otherwise a shorter period for the filing of claims than four months, and for the institution of suits than two years, such period for institution of suits to be computed from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice; and provided further that the liability imposed by this section shall also apply in the case of property reconsigned or diverted in accordance with the applicable tariffs filed as provided by the commission."]
SECTION 6. Section 271-1, Hawaii Revised Statutes, is amended to read as follows:
"§271-1 Declaration of policy. The legislature of this State recognizes and declares that the transportation of persons [and of property], for commercial purposes, over the public highways of this State constitutes a business affected with the public interest. It is intended by this chapter to provide for fair and impartial regulation of such transportation in the interest of preserving for the public the full benefit and use of the highways consistent with the public safety and the needs of commerce; to promote safe, adequate, economical, and efficient service and foster sound economic conditions in transportation and among the several carriers, to encourage the establishment and maintenance of reasonable rates and charges for transportation and related accessorial service, without unjust discrimination, undue preference or advantage, or unfair or destructive competitive practices. This chapter shall be administered and enforced with a view to carrying out the above declaration of policy."
SECTION 7. 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.
(8)] (7) "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], 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)] (8) "Highway" means the public roads, highways, streets, and ways in this State.
[(10)] (9) "Rates" includes rates, fares, tolls, rentals, and charges of whatever kind and nature unless the context indicates otherwise.
[(11)] (10) "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)] (11) "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)] (12) "Motor carrier" includes both a common carrier by motor vehicle and a contract carrier by motor vehicle.
[(14)] (13) "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)] (14) "Enforcement officer" means any person employed and authorized by the commission 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)."
SECTION 8. Section 271-5, Hawaii Revised Statutes, is amended to read as follows:
"§271-5 Exemptions, generally. Notwithstanding any other provisions of this chapter, its contents shall not apply to:
[(1) Persons transporting their own property where the transportation is in furtherance of a primary business purpose or enterprise of that person, except where the transportation is undertaken by a motor carrier to evade the regulatory purposes of this chapter;
(2)] (1) Persons operating motor vehicles when engaged in the transportation of school children and teachers to and from school, and to and from school functions; provided that these persons may engage in providing transportation at special rates for groups of persons belonging to an eleemosynary or benevolent organization or association domiciled in this State where the organization or association sponsors or is conducting a nonregular excursion; provided that whenever the persons engage in the transportation of persons other than those exempted in this paragraph, that portion of their operation shall not be exempt from this chapter. Nothing in this paragraph shall be construed to authorize any person to engage in the transportation of persons, other than the transportation of persons exempted by the terms of this paragraph, without a permit or certificate issued by the commission authorizing such transportation;
[(3)] (2) Persons operating taxicabs or other motor vehicles utilized in performing a bona fide taxicab service. "Taxicab" includes:
(A) Any motor vehicle used in the movement of passengers on the public highways under the following circumstances, namely the passenger hires the vehicle on call or at a fixed stand, with or without baggage for transportation, and controls the vehicle to the passenger's destination;
(B) Any motor vehicle for hire having seating accommodations for eight or fewer passengers used in the movement of passengers on the public highways that may, as part of a continuous trip, pick up or discharge passengers from various unrelated locations; provided that they shall be regulated by the counties in accordance with section 46-16.5(c); and provided further that this subparagraph shall not apply to any exclusive rights granted by the department of transportation for taxicab services at facilities under the department's control; and
(C) Any motor vehicle having seating accommodations for eight or fewer passengers used in the movement of passengers on the public highways between a terminal, i.e., a fixed stand, in the Honolulu district, as defined in section 4-1 and a terminal in a geographical district outside the limits of the Honolulu district, and vice versa, without picking up passengers other than at the terminals or fixed stands; provided that the passengers may be picked up by telephone call from their homes in the rural area or may be unloaded at any point between the fixed stands or may be delivered to their homes in the rural area;
[(4)] (3) Persons operating motor vehicles in the transportation of persons pursuant to a franchise from the legislature and whose operations are presently regulated under chapter 269;
[(5) Nonprofit agricultural cooperative associations to the extent that they engage in the transportation of their own property or the property of their members;
(6) Persons operating motor vehicles specially constructed for the towing of disabled or wrecked vehicles but not otherwise used in the transportation of property for compensation or hire;
(7) Persons operating motor vehicles in the transportation of mail, newspapers, periodicals, magazines, messages, documents, letters, or blueprints;
(8)] (4) Persons operating funeral cars or ambulances;
[(9) Persons operating motor vehicles in the transportation of garbage or refuse;
(10)] (5) Persons operating the type of passenger carrying motor vehicles known as "sampan buses" within the radius of twenty miles from the city of Hilo, Hawaii;
[(11) Persons transporting unprocessed pineapple to a cannery, seed corn to a processing facility, or returning any containers used in such transportation to the fields;
(12) Sugar plantations transporting sugarcane, raw sugar, molasses, sugar by-products, and farming supplies for neighboring farmers pursuant to contracts administered by the United States Department of Agriculture;
(13) Persons engaged in the ranching or meat or feed business who transport cattle to slaughterhouses for hire where such transportation is their sole transportation for hire and where their earnings from the transportation constitute less than fifty per cent of their gross income from their business and the transportation for hire;
(14) Persons transporting unprocessed raw milk to processing plants and returning any containers used in such transportation to dairy farms for reloading;
(15) Persons transporting animal feeds to animal husbandry farmers and farming supplies directly to animal husbandry farmers and returning any containers used in such transportation to these sources of such feeds and supplies for reloading;
(16)] (6) Persons engaged in transporting not more than fifteen passengers between their places of abode, or termini near such places, and their places of employment in a single daily round trip where the driver is also on the driver's way to or from the driver's place of employment;
[(17)] (7) Persons transporting passengers without charge in motor vehicles owned or operated by such person, where such transportation is provided in conjunction with and in furtherance of a related primary business purpose or enterprise of that person, and such transportation is provided only directly to and from the place of business of such person, except that this exemption shall not apply to persons making any contract, agreement, or arrangement to provide, procure, furnish, or arrange for transportation as a travel agent or broker or a person engaged in tour or sightseeing activities, nor shall this exemption apply where the transportation is undertaken by a person to evade the regulatory purposes of this chapter; and
[(18)] (8) Persons conducting the type of county-regulated passenger carrying operation known as "jitney services". For the purposes of this paragraph, "jitney services" means public transportation services utilizing motor vehicles that have seating accommodations for six to twenty-five passengers, operate along specific routes during defined service hours, and levy a flat fare schedule."
SECTION 9. Section 271-7, Hawaii Revised Statutes, is repealed.
["§271-7 Exemptions, vehicles used by farmers. Notwithstanding any other provisions of this chapter all motor vehicles used by farmers exclusively for their farm operations and all motor vehicles used by farmers who infrequently transport from the place of production to a warehouse, regular market, place of storage, or place of shipment, the farm products of neighboring farmers in exchange for like or reciprocal services, for farm products, or for a cash consideration not exceeding $1,500 per year; provided that the transportation shall constitute the sole transportation of property for hire or compensation of the farmers are exempted from this chapter."]
SECTION 10. Section 271-8, Hawaii Revised Statutes, is amended to read as follows:
"§271-8 Certificate or permit required. Except as provided in section 271-5, no person shall engage in the transportation of persons [or property], for compensation or hire, by motor vehicle, over any public highway of this State unless there is in force with respect to the person a certificate or permit issued by the public utilities commission authorizing the transportation."
SECTION 11. Section 271-8.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) It shall be a misdemeanor for any person, including a person who is exempt under section 271-5, to advertise as a motor carrier of passengers [or property], unless the person holds a valid certificate or permit required by this chapter as to the classification so advertised. The term "advertise", as used in this section, includes: the issuance of any card, sign, or device to any person, or the causing, permitting, or allowing of any sign or marking on or in any building or motor vehicle, or the advertising in any newspaper, magazine, or advertising other than in-column listings in any directory, or the commercial broadcasting by airwave transmission, or any and all communications media."
SECTION 12. Section 271-12, Hawaii Revised Statutes, is amended to read as follows:
"§271-12 Applications for certificates of public convenience and necessity. (a) Except as otherwise provided in this section and in section 271-16, no person shall engage in the business of a common carrier by motor vehicle on any public highway in this State, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the public utilities commission authorizing such operation.
(b) Applications for certificates shall be made in writing to the commission, be verified under oath, and shall be in such form and contain such information, and be accompanied by proof of service upon interested parties as the commission shall, by regulation, require.
(c) Subject to section 271-15, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to this chapter and the requirements, rules, and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise the application shall be denied.
[(d) Any certificate issued under this section covering the transportation of property shall be issued as an irregular route certificate and shall specify the island or islands or portion or portions thereof within which service may be rendered. Any certificate covering the transportation of passengers shall specify the service to be rendered and the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which the motor carrier is authorized to operate, and the certificate may include authority to transport in the same vehicle with the passengers, baggage of passengers, express, and also to transport baggage of passengers in a separate vehicle. There shall, at the time of issuance, and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extensions of the service territory or route or routes of the carriers, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the commission under sections 271-9(a)(1) and 271-9(a)(4), provided that the terms, conditions, or limitations shall not restrict the right of the carrier to add to his or its equipment and facilities in the service territory or over the routes or between the termini as the development of business and the demands of the public shall require.
(e)] (d) Any common carrier by motor vehicle transporting passengers under any such certificate may occasionally deviate from the route over which and the fixed termini between which it is authorized to operate under the certificate under such rules and regulations as the commission may prescribe."
SECTION 13. Section 271-15, Hawaii Revised Statutes, is repealed.
["§271-15 Dual operation. Unless, for good cause shown, the public utilities commission finds or has found that both a certificate and a permit may be so held consistently with the public interest and with the declaration of policy declared in this chapter:
(1) No person, or any person controlling, controlled by, or under common control with such person, shall hold a certificate as a common carrier authorizing operation for the transportation of property by motor vehicle within a territory if such person or any such controlling person, controlled person, or person under common control, holds a permit as a contract carrier authorizing operation for the transportation of property by motor vehicle within the same territory; and
(2) No person or any person controlling, controlled by, or under common control with such person, shall hold a permit as a contract carrier authorizing operation for the transportation of property by motor vehicle within a territory, if the person or any controlling person, controlled person, or person under common control, holds a certificate as a common carrier authorizing operation for the transportation of property by motor vehicle within the same territory."]
SECTION 14. Section 271-20, Hawaii Revised Statutes, is amended to read as follows:
"§271-20 Rates, fares and charges of common carriers by motor vehicle. (a) It shall be the duty of every common carrier of passengers by motor carrier to provide safe and adequate service, equipment, and facilities for the transportation of passengers and to establish, observe, and enforce just and reasonable rates, fares, and charges, and just and reasonable regulations and practices relating thereto, and to the issuance, form, and substance of tickets, the carrying of personal, sample, and excess baggage, the facilities for transportation, and all other matters relating to or connected with the transportation of passengers.
[(b) It shall be the duty of every common carrier of property by motor vehicle to provide safe and adequate service, equipment, and facilities for the transportation of property and to establish, observe, and enforce just and reasonable rates, charges, and classifications, and just and reasonable regulations and practices relating thereto, and to the manner and method of presenting, marking, packing, and delivering property for transportation, the facilities for transportation, and all other matters relating to or connected with the transportation of property.
(c)] (b) All charges made for any service rendered by any common carrier by motor vehicle in the transportation of passengers [or property] or in connection therewith shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful. It shall be unlawful for any common carrier by motor vehicle to make, give, or cause any undue or unreasonable preference or advantage to any particular person, locality, region, district, island, or description of traffic, in any respect whatsoever; or to subject any particular person, locality, region, district, island, or description of traffic to any unjust discrimination or undue or unreasonable prejudice or disadvantage in any respect whatsoever; provided that this subsection shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.
[(d)] (c) Any person, organization, or body politic may make complaint in writing to the public utilities commission that any such rate, fare, charge, classification, rule, regulation, or practice, in effect or proposed to be put into effect, is or will be in violation of this section or of section 271-21. Whenever, after hearing, upon complaint or an investigation of its own initiative, the commission shall be of the opinion that any individual rate, fare, or charge, demanded, charged, or collected by any common carrier or carriers by motor vehicle for transportation, or any classification, rule, regulation, or practice whatsoever of the carrier or carriers, affecting such rate, fare, or charge or the value of the service thereunder, is or will be unjust or unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial, it shall determine and prescribe the lawful rate, fare, or charge or the maximum or minimum or maximum and minimum rate, fare, or charge thereafter to be observed, or the lawful classification, rule, regulation, or practice thereafter to be made effective.
[(e)] (d) Whenever there is filed with the commission any schedule stating a new rate, fare, charge, or classification for the transportation of passengers [or property] by a common carrier or carriers by motor vehicle, or any rule, regulation, or practice affecting such rate, fare, or charge, or the value of the service thereunder, the commission may upon complaint of any interested person or upon its own initiative at once and, if it so orders, without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, enter upon a hearing concerning the lawfulness of the rate, fare, or charge, or the rule, regulation, or practice, and pending the hearing and the decision thereon the commission, by filing the schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of the schedule and defer the use of the rate, fare, or charge, or the rule, regulation, or practice, but not for a longer period than five months beyond the time when it would otherwise go into effect, and after hearing, whether completed before or after the rate, fare, charge, classification, rule, regulation, or practice goes into effect, the commission may make such order with reference thereto as would be proper in a proceeding instituted after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed changed rate, fare, or charge, or classification, rule, regulation, or practice, shall go into effect at the end of such period; provided that this subsection shall not apply to any initial schedule or schedules filed by any carrier in bona fide operation when this section takes effect. At any hearing involving a change in a rate, fare, charge, or classification, or in a rule, regulation, or practice, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, charge, classification, rule, regulation, or practice, is just and reasonable.
[(f)] (e) In any proceeding to determine the justness or reasonableness of any rate, fare, or charge of any carrier, there shall not be taken into consideration or allowed as evidence or elements of value of the property of the carrier, either goodwill, earning power, or the certificate under which the carrier is operating; and in applying for and receiving a certificate under this part any carrier shall be deemed to have agreed to the provisions of this subsection on its own behalf and on behalf of all transferees of the certificate.
[(g)] (f) In the exercise of its power to prescribe just and reasonable rates, fares, and charges for the transportation of passengers [or property] by common carriers by motor vehicle, and classifications, regulations, and practices relating thereto, the commission shall give due consideration, among other factors, to the effect of rates upon the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient transportation service by the carriers at the lowest cost consistent with the furnishing of the service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management, to provide the service.
[(h)] (g) Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith."
SECTION 15. Section 271-21, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (a) to read:
"(a) Every common carrier by motor vehicle shall file with the public utilities commission, and print, and keep open to public inspection, tariffs showing all the rates, fares, and charges for transportation, and all services in connection therewith, of passengers [or property]. The rates, fares, and charges shall be stated in terms of lawful money of the United States. The tariffs required by this section shall be published, filed, and posted in such form and manner, and shall contain such information as the commission by regulations shall prescribe; and the commission may reject any tariff filed with it which is not in consonance with this section and with the regulations. Any tariff so rejected by the commission shall be void and its use shall be unlawful."
2. By amending subsection (d) to read:
"(d) No common carrier by motor vehicle shall engage in the transportation of passengers [or property] unless the rates, fares, and charges upon which the same are transported by the carrier have been filed and published in accordance with this chapter."
SECTION 16. Section 271-22, Hawaii Revised Statutes, is amended to read as follows:
"§271-22 Schedules of contract carriers by motor vehicle. (a) It shall be the duty of every contract carrier by motor vehicle to file and observe reasonable minimum rates and charges for any service rendered or to be rendered in the transportation of passengers [or property] in connection therewith, and to file and observe reasonable regulations and practices to be applied in connection with the reasonable minimum rates, fares, and charges. It shall be the duty of every contract carrier by motor vehicle to file with the public utilities commission, publish, and keep open for public inspection, in the form and manner prescribed by the commission, schedules containing the actual rates or charges of the carrier for the transportation of passengers [or property], and any rule, regulation, or practice affecting the rates or charges and the value of the service thereunder; provided that any contract carrier serving but one shipper having rendered continuous service to the shipper for not less than one year may file reasonable minimum rates and charges unless the commission in any individual case, after hearing, finds it in the public interest to require the filing of actual rates and charges. No contract carrier, unless otherwise provided by this chapter, shall engage in the transportation of passengers [or property] unless the actual rates or charges for the transportation by the carrier have been published, filed, and posted in accordance with this chapter. Nothing herein provided shall be so construed as to require the carriers to maintain the same rates, rules and regulations for the same services for all shippers served. No reduction shall be made in any such charge either directly or by means of any change in any rule, regulation, or practice affecting the charge or the value of the service thereunder, nor shall any new charge be permitted, except after thirty days' notice of the proposed change or new charge is filed in the aforesaid form and manner; but the commission may, in its discretion and for good cause shown, allow the change upon less notice, or modify the requirements of this subsection with respect to posting and filing of schedules, either in particular instances, or by general order applicable to special or peculiar circumstances or conditions. The notice shall plainly state the change proposed to be made and the time when the change will take effect. No carriers shall demand, charge, or collect compensation for transportation different from the charges filed in accordance with this subsection, as affected by any rule, regulation, or practice so filed, or less than the minimum rate or charge as may be prescribed by the commission from time to time, and it shall be unlawful for any carrier, by the furnishing of special services, facilities, or privileges, or by any other device whatsoever, to charge, accept, or receive compensation different from the actual rates and charges so filed, or less than the minimum charges prescribed; provided that any carrier or carriers, or any class or group thereof, may apply to the commission for relief from this subsection, and the commission may, after hearing, grant such relief to such extent and for such time, and in such manner as in its judgment is consistent with the public interest and the transportation policy declared in this chapter.
(b) Whenever, after hearing, upon complaint or upon its own initiative, the commission finds that any minimum rate or charge of any contract carrier by motor vehicle, or any rule, regulation, or practice of any carrier affecting the minimum rate or charge, or the value of the service thereunder, for the transportation of passengers [or property] or in connection therewith, contravenes the transportation policy declared in this chapter, or is in contravention of any provision of this chapter, the commission may prescribe such just and reasonable minimum rate or charge, or such rule, regulations, or practice as in its judgment may be necessary or desirable in the public interest and to promote the policy and will not be in contravention of any provision of this chapter. The minimum rate or charge, or the rule, regulation, or practice, so prescribed by the commission, shall give no advantage or preference to any carrier in competition with any common carrier by motor vehicle subject to this chapter, which the commission may find to be undue or inconsistent with the public interest and the transportation policy declared in this chapter and the commission shall give due consideration to the cost of the services rendered by such carriers, and to the effect of the minimum rate or charge, or the rule, regulation, or practice, upon the movement of traffic by the carriers. All complaints shall state fully the facts complained of and the reasons for the complaint and shall be made under oath.
(c) Whenever there is filed with the commission by any contract carrier any schedule stating a charge for a new service or a reduced charge directly, or by means of any rule, regulation, or practice, for the transportation of passengers [or property], the commission may upon complaint of interested persons or upon its own initiative at once and, if it so orders, without answer or other formal pleading by the interested party, but upon reasonable notice, enter upon a hearing concerning the lawfulness of the charge, or rule, regulation, or practice, and pending the hearing and the decision thereon, the commission, by filing with the schedules and delivering to the carrier affected thereby a statement in writing of its reasons for the suspension, may from time to time suspend the operation of the schedule and defer the use of the charge, or rule, regulation, or practice, but not for a longer period than five months beyond the time when it would otherwise go into effect; and after hearing, whether completed before or after the charge, or rule, regulation, or practice goes into effect, the commission may make such order with reference thereto as would be proper in a proceeding instituted after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change in any charge or rule, regulation, or practice shall go into effect at the end of the period; provided that this subsection shall not apply to any initial schedule or schedules filed by any carrier in bona fide operation when this section takes effect. The rule as to burden of proof specified in section 271-20(e) shall apply to this subsection."
SECTION 17. Section 271-27, Hawaii Revised Statutes, is amended to read as follows:
"§271-27 Unlawful operation. (a) Any person knowingly and wilfully violating any provision of this chapter, or any rule, requirement, or order thereunder, or any term or condition of any certificate or permit for which a penalty is not otherwise provided, shall be guilty of a misdemeanor. In addition, any shipper or consignee located in this State, or any officer, employee, agent, or representative thereof, who knowingly and wilfully engages the services of any person violating any provision of this chapter, or any rule, requirement, or order, or any term or condition of any certificate or permit for which a penalty is not otherwise provided, shall be guilty of a misdemeanor.
(b) Any person, whether carrier, shipper, or consignee, or any officer, employee, agent, or representative thereof, who knowingly offers, grants, or gives, or solicits, accepts, or receives any rebate, concession, or discrimination in violation of any provisions of this chapter, or who by means of any false statement or representation or by the use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease, or bill of sale, or by any other means or device, knowingly and wilfully assists, suffers, or permits any person or persons, natural or artificial, to obtain transportation of passengers [or property] subject to this chapter for less than the applicable rate, fare, or charge, or who knowingly and wilfully by any such means or otherwise fraudulently seeks to evade or defeat regulation as in this chapter provided for motor carriers, shall be deemed guilty of a misdemeanor.
(c) Any special agent, accountant, or examiner who knowingly and wilfully divulges any fact or information which may come to the special agent's, accountant's, or examiner's knowledge during the course of any examination or inspection made under authority of sections 271-9(a)(4), 271-23, and 271-25, except as the special agent, accountant, or examiner may be directed by the commission or by a court or judge thereof, shall be guilty of a misdemeanor.
[(d) It shall be unlawful for any motor carrier or any officer, receiver, trustee, lessee, agent, or employee of the carrier, or for any other person authorized by such carrier or person to receive information, knowingly to disclose to, or permit to be acquired by any person other than the shipper or consignee without the consent of the shipper or consignee, any information concerning the nature, kind, quantity, destination, consignee, or routing of any property tendered or delivered to the motor carrier for transportation, which information may be used to the detriment or prejudice of the shipper or consignee, or which may improperly disclose the shipper's or consignee's business transactions to a competitor; and it shall also be unlawful for any person to solicit or knowingly receive any such information which may be so used.
(e)] (d) Nothing in this chapter shall be construed to prevent the giving of such information in response to any legal process issued under the authority of any court, or to any officer or agent of the government of the United States or of any state or of any political subdivision of any state, in the exercise of the officer's or agent's power or to any officer or other duly authorized person seeking the information for the prosecution of persons charged with or suspected of crimes or to another carrier, or its duly authorized agents, for the purpose of adjusting mutual traffic accounts in the ordinary course of business of the carriers.
[(f)] (e) Any motor carrier or any officer, agent, employee, or representative thereof, who wilfully fails or refuses to make a report to the commission as required by this chapter, or to make specific and full, true, and correct answer to any question within thirty days from the time it is lawfully required by the commission, or to keep accounts, records, and memoranda in the form and manner prescribed by the commission, or knowingly and wilfully falsifies, destroys, mutilates, or alters any report, account, record, or memorandum or knowingly and wilfully files with the commission any false report, account, record, or memorandum, or knowingly and wilfully neglects or fails to make full, true, and correct entries in the accounts, records, or memoranda of all facts and transactions appertaining to the business of the carrier, or person required under this chapter to keep the same, or knowingly and wilfully keeps accounts, records, or memoranda contrary to the rules, regulations, or orders of the commission with respect thereto, shall be deemed guilty of a misdemeanor. As used in this subsection, the words "keep" and "kept" mean made, prepared, or compiled, as well as retained.
[(g)] (f) Except when required by state law to take immediately before a district judge a person arrested for violation of this chapter, including any rule adopted pursuant to this chapter, any enforcement officer, other than a motor vehicle safety officer employed and assigned, pursuant to section 271-38, by the department of transportation to assess civil penalties, upon arresting a person for violation of this chapter, including any rule adopted pursuant to this chapter shall issue to the alleged violator a summons or citation printed in the form hereinafter described, warning the alleged violator to appear and answer to the charge against the alleged violator at a certain place within seven days after the arrest.
(1) The summons or citation shall be printed in a form comparable to that of other summonses and citations used for arresting offenders and shall include all necessary information. The form and content shall be adopted or prescribed by the district courts.
(2) The original of a summons or citation shall be given to the alleged violator and any other copies distributed in the manner prescribed by the district courts; provided that the district courts may prescribe alternative methods of distribution for the original and any other copies.
(3) Summonses and citations shall be consecutively numbered and any other copies of each shall bear the same number.
(4) Any person who fails to appear at the place and within the time specified in the summons or citation shall be guilty of a misdemeanor.
(5) If any person fails to comply with a summons or citation or fails or refuses to deposit bail as required, the enforcement officer shall cause a complaint to be entered against the person and secure the issuance of a warrant for the person's arrest.
(6) When a complaint is made to any prosecuting officer of a violation of this chapter or any rule, the enforcement officer who issued the summons or citation shall subscribe to it under oath administered by another official whose name has been submitted to the prosecuting officer and who has been designated by the commission to administer the same.
[(h)] (g) Any motor carrier or lessor, or any officer, agent, employee, or representative thereof, who fails or refuses to comply with any provision of this chapter, or any rule, requirement, or order thereunder, and any person located in this State, or any officer, agent, employee, or representative of any such person, who engages the services of any motor carrier or lessor, or any officer, agent, employee, or representative thereof, who fails or refuses to comply with any provision of this chapter, or any rule, requirement, or order, may be assessed a civil penalty payable to the State in a sum:
(1) Up to $1,000 for each offense; and
(2) In the case of a continuing violation, not less than $50 and not more than $500 for each additional day during which the failure or refusal continues.
[(i)] (h) Notwithstanding subsection [(h),] (g), a motor carrier who fails to file, within the prescribed time, a financial report with the commission pursuant to its rules may be assessed a civil penalty payable to the State up to the sum of one-sixteenth of one per cent of the gross revenues from the motor carrier's business during the preceding calendar year, if the failure is for not more than one month, with an additional one-sixteenth of one per cent for each additional month or fraction thereof during which the failure continues, but in no event shall the total civil penalty be less than the sum of $50.
[(j)] (i) In addition to any other remedy available, the commission or its enforcement officer, including a motor vehicle safety officer employed and assigned by the department of transportation pursuant to section 271-38, may issue citations to persons acting in the capacity of or engaging in the business of a motor carrier within this State, without having a certificate of public convenience and necessity or other authority previously obtained under and in compliance with this chapter and rules adopted, or to any shipper or consignee located in this State, or any officer, employee, agent, or representative thereof who engages the services of those persons.
(1) The citation may contain an order of abatement and an assessment of civil penalties as provided in subsection (h). All penalties collected under this subsection shall be deposited in the treasury of the State. Service of a citation issued under this subsection shall be made by personal service whenever possible or by certified mail, restricted delivery, sent to the last known business or residence address of the person cited.
(2) Any person served with a citation under this subsection may submit a written request to the commission for a hearing within twenty days from the receipt of the citation, with respect to the violations alleged, the scope of the order of abatement, and the amount of civil penalties assessed. If the person cited under this subsection notifies the commission of the request for a hearing in time, the commission shall afford the person an opportunity for a hearing under chapter 91. The hearing shall be conducted by the commission or the commission may designate a hearings officer to hold the hearing.
(3) If the person cited under this subsection does not submit a written request to the commission for a hearing in time, the citation shall be deemed a final order of the commission. The commission may apply to the appropriate court for a judgment to enforce the provisions of any final order issued by the commission or designated hearings officer pursuant to this subsection, including the provisions for abatement and civil penalties imposed. In any proceeding to enforce the final order, the commission need only produce a certified copy of the final order and show that the notice was given and that a hearing was held or the time granted for requesting the hearing has run without a request.
(4) If any party is aggrieved by the decision of the commission or the designated hearings officer, the party may appeal to the supreme court; provided that the operation of an abatement order shall not be stayed on appeal unless specifically ordered by a court of competent jurisdiction after applying the stay criteria enumerated in section 91-14(c). The sanctions and disposition authorized under this subsection shall be separate and in addition to all other remedies either civil or criminal provided by law. The commission may adopt any rules under chapter 91 that may be necessary to fully effectuate this subsection."
SECTION 18. Section 271-28.5, Hawaii Revised Statutes, is repealed.
["[§271-28.5] Motor carrier lien. (a) In addition to the lien provided by section 490:7-307, a carrier has a lien on freight in its possession for the total amount owed the carrier by the shipper for freightage, charges for services and advances due on freight previously delivered upon the promise of the shipper to pay freightage, charges and advances, as provided in this section.
(b) The lien provided by this section shall not arise:
(1) Unless the carrier has given the shipper and the consignee ten days notice in writing, that failure to pay billed charges may result in a lien on future shipments; or
(2) As to any freight which consists of perishable goods; or
(3) As to any freight, the freight charges for which have been prepaid by the consignee or the intended recipient; or
(4) As to any freight, if the applicable charges were paid to a third party legally obligated to remit the payment to the carrier but the amount due has not been received by the carrier; or
(5) As to any property legally owned by anyone other than the debtor, or as to which the current identity of the owner is unknown.
(c) Except as otherwise provided in this section, the notice and sale provisions of section 490:7-308, shall apply to the sale of property subject to a lien provided by this section.
(d) No sale of property subject to a lien provided by this section may take place for at least thirty-five days from the date that possession of the property is delivered to the carrier but the notice period set forth in section 490:7-308 may run concurrently with the thirty-five-day period provided by this subdivision. In addition to the notices required by section 490:7-308, the lienholder, at least ten days prior to any sale of the property, shall notify the shipper and the consignee of the property, and each secured party having a perfected security interest in the property, of the date, time and place of the intended sale. This notice shall include the names of both the shipper and the consignee and shall describe the property to be sold.
(e) Any perfected security interest in the property is prior to the lien provided by this section. No sale of the property may be concluded if the amount bid at the sale is not at least equal to the total amount of all outstanding obligations secured by a perfected security interest in the property. If the minimum bid required for the sale of property pursuant to this subdivision is not received, the lienholder shall promptly release the property to the legal owner upon payment of the current amount for freightage, charges for services and advances due for shipment of that property, not including amounts due on freight previously delivered.
The proceeds of the sale shall be applied as follows:
(1) First, to secured parties having a perfected security interest, in the amounts to which they are respectively entitled.
(2) Second, to the discharge of the lien provided by this section.
(3) The remainder, if any, to the legal owner of the property.
In the event of any violation by the lienholder of any provision of this subdivision the lienholder shall be liable to any secured party for all damages sustained by the secured party as a result thereof plus all expenses reasonably and necessarily incurred in the enforcement of the secured party's rights, including reasonable attorney's fees and costs of suit.
(f) The shipper shall be liable to the consignee for any damage which results from the failure of the property to reach the consignee as scheduled due to the carrier's proper exercise of its lien rights pursuant to this section.
(g) The carrier shall be liable to the consignee for any damage which results from the failure of the property to reach the consignee as scheduled due to the carrier's violation or misuse of any lien obtained under this section. The measure of damages shall be determined as set forth in section 490:2-713."]
SECTION 19. Section 271-30, Hawaii Revised Statutes, is repealed.
["§271-30 Allowance to shippers for transportation services. If the shipper of property transported under this chapter, directly or indirectly, renders any service connected with the transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be published in tariffs or schedules filed in the manner provided in this chapter and shall be no more than is just and reasonable; and the public utilities commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order."]
SECTION 20. Section 271G-2, Hawaii Revised Statutes, is amended to read as follows:
"[[]§271G-2[]] Declaration of policy. The legislature of this State recognizes and declares that the transportation of persons [and of property], for commercial purposes, by water within the State or between points within the State, constitutes a business affected with the public interest. It is intended by this chapter to provide for fair and impartial regulation of such transportation, so administered as to recognize and preserve the inherent advantages of such transportation, in the interest of preserving for the public the full benefit and use of the waterways consistent with the public safety and the needs of commerce: to promote safe, adequate, economical, and efficient service among carriers, to encourage the establishment and maintenance of reasonable rates and charges for transportation and related accessorial service, without unjust discrimination, undue preference or advantage, or unfair or destructive competitive practices, all to the end of developing, coordinating, and preserving a sound transportation system by water. This chapter shall be administered and enforced with a view to carrying out the above declaration of policy."
SECTION 21. Section 271G-5, Hawaii Revised Statutes, is amended to read as follows:
"§271G-5 Definitions. As used in this chapter:
(1) "Chapter" means this Water 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 water.
(5) "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.
[(6) "Transportation of property" includes every service in connection with or incidental to the transportation of property, including in particular its receipt, and delivery, carriage, preservation, and all incidental services affecting these activities.
(7)] (6) "Water carrier" or "common carrier by water" means any person who holds oneself out to the general public as engaging in the transportation by water of passengers [or property] for compensation within the State or between points within the State.
[(8)] (7) "Vessel" means any watercraft or other artificial contrivance of whatever description which is used, or capable of being used, or intended to be used, as a means of transportation by water.
[(9)] (8) "Rates" includes rates, fares, tolls, rentals, and charges of whatever kind and nature unless the context indicates otherwise.
[(10)] (9) "Related companies" means companies or persons that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the water carrier. The term "control", in reference to a relationship between any person or persons and another person or persons, includes actual as well as legal control, and indirect as well as direct control.
[(11)] (10) "Enforcement officer" means any person employed and authorized by the commission to investigate any matter on behalf of the commission."
SECTION 22. Section 271G-6, Hawaii Revised Statutes, is amended to read as follows:
"[[]§271G-6[]] Exemptions, generally. Notwithstanding any other provisions of this chapter, its contents shall not apply to:
[(1) Persons transporting their own property where the transportation is in furtherance of a primary business purpose or enterprise of that person except where the transportation is undertaken by a water carrier to evade the regulatory purposes of this chapter;
(2) Nonprofit agricultural cooperative associations to the extent that they engage in the transportation of their own property or the property of their members;
(3)] (1) Persons engaged in the transportation over water of passengers [or property] for compensation, other than transportation referred to in section 271G-5(7) under continuing contracts with one person or a limited number of persons either (A) for the furnishing of transportation services through the assignment of vessels 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;
[(4)] (2) Persons transporting their own [property or] employees where the transportation is in furtherance of a business or enterprise of fishing or taking of fish for profit or gain as a means of livelihood;
[(5)] (3) Persons engaged in business of transporting persons for sightseeing and other recreational activities."
SECTION 23. Section 271G-16, Hawaii Revised Statutes, is amended to read as follows:
"[[]§271G-16[]] Rates, fares and charges of common carriers by water. (a) It shall be the duty of every water carrier of passengers to provide safe and adequate service, equipment, and facilities for the transportation of passengers and to establish, observe, and enforce just and reasonable rates, fares, and charges, and just and reasonable regulations and practices relating thereto, and to the issuance, form, and substance of tickets, the carrying of personal, sample, and excess baggage, the facilities for transportation, and all other matters relating to or connected with the transportation of passengers.
[(b) It shall be the duty of every water carrier of property to provide safe and adequate service, equipment, and facilities for the transportation of property and to establish, observe, and enforce just and reasonable rates, charges, and classifications, and just and reasonable regulations and practices relating thereto, and to the manner and method of presenting, marking, packing, and delivering property for transportation, the facilities for transportation, and all other matters relating to or connected with the transportation of property.
(c)] (b) All charges made for any service rendered by any water carrier in the transportation of passengers [or property] or in connection therewith shall be just and reasonable, and every unjust and unreasonable charge for such service or any part thereof, is prohibited and declared to be unlawful. It shall be unlawful for any water carrier to make, give, or cause any undue or unreasonable preference or advantage to any particular person, locality, region, district, island, or description of traffic, in any respect whatsoever; or to subject any particular person, locality, region, district, island, or description of traffic to any unjust discrimination or undue or unreasonable prejudice or disadvantage in any respect whatsoever; provided that this subsection shall not be construed to apply to discrimination, prejudice, or disadvantage to the traffic of any other carrier of whatever description.
[(d)] (c) Any person or body politic may make complaint in writing to the commission that any such rate, fare, charge, rule, regulation, or practice, in effect or proposed to be put into effect, is or will be in violation of this section. Whenever, after hearing, upon complaint or in an investigation on its own initiative, the commission shall be of the opinion that any individual rate, fare, or charge, demand, charged, or collected by any common carrier or carriers by water for transportation, or any rule, regulation, or practice whatsoever of the carrier or carriers affecting such rate, fare, or charge or the value of the service thereunder, is or will be unjust or unreasonable, or unjustly discriminatory or unduly preferential or unduly prejudicial, it shall determine and prescribe the lawful rate, fare, or charge or the maximum or minimum or maximum and minimum rate, fare, or charge thereafter to be observed, or the lawful rule, regulation, or practice thereafter to be made effective.
[(e)] (d) In the exercise of its power to prescribe just and reasonable rates, fares, and charges for the transportation of passengers [or property] by water carriers, and to prescribe classifications, regulations, and practices relating thereto, the commission shall give due consideration, among other factors, to the effect of rates upon the movement of traffic by the carrier or carriers for which the rates are prescribed; to the need, in the public interest, of adequate and efficient transportation service by the carriers at the lowest cost consistent with the furnishing of the service; and to the need of revenues sufficient to enable the carriers, under honest, economical, and efficient management, to provide the service.
[(f)] (e) Nothing in this section shall be held to extinguish any remedy or right of action not inconsistent herewith."
SECTION 24. Section 271G-17, Hawaii Revised Statutes, is amended by amending subsections (c) and (d) to read as follows:
"(c) No water carrier shall engage in the transportation of passengers [or property] unless the rates, fares, and charges upon which the same are transported by the carrier have been filed and published in accordance with this chapter.
(d) Whenever there is filed with the commission any schedule stating a new rate, fare, or charge, for the transportation of passengers [or property] by a water carrier or any rule, regulation, or practice affecting such rate, fare, or charge, or the value of the service thereunder, the carrier may on its own initiative, or shall by order of the commission served prior to the effective date of the schedule, concurrently file a pro forma statement of account which shall be prepared under the same form and in the same manner as prescribed by the commission's uniform system of accounts.
The commission may upon complaint of any interested person or upon its own initiative at once and, if it so orders, without answer or other formal pleading by the interested carrier or carriers, but upon reasonable notice, enter upon a hearing concerning the lawfulness of the rate, fare, or charge, or the rule, regulation, or practice, and pending the hearing and the decision thereon the commission, by delivering to the carrier or carriers affected thereby a statement in writing of its reasons therefor, may suspend the operation of the schedule and defer the use of the rate, fare, or charge, or the rule, regulation, or practice. From the date of ordering a hearing to investigate the lawfulness of the rate, fare, or charge, the commission shall have up to six months to complete its investigation. If the commission fails to issue a final order within the six-month period then the changes proposed by the carrier shall go into effect. At any hearing involving a change in a rate, fare, charge, or classification, or in a rule, regulation, or practice, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, charge, classification, rule, regulation, or practice, is just and reasonable."
SECTION 25. Section 271G-19, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Any person, whether carrier, shipper, or consignee, or any officer, employee, agent, or representative thereof, who knowingly offers, grants, or gives, or solicits, accepts, or receives any rebate, concession, or discrimination in violation of any provisions of this chapter, or who by means of any false statement or representation or by the use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease, or bill of sale, or by any other means or device, knowingly and wilfully assists, suffers, or permits any person or persons, natural or artificial, to obtain transportation of passengers [or property] subject to this chapter for less than the applicable rate, fare, or charge, or who knowingly and wilfully by any such means or otherwise fraudulently seeks to evade or defeat regulation as in this chapter provided for water carriers, shall be fined not less than $200 nor more than $500 for the first offense and not less than $250 nor more than $2,000 for any subsequent offense."
SECTION 26. Section 291D-9, Hawaii Revised Statutes, is amended to read as follows:
"[[]§291D-9[]] Monetary assessments. (a) A person found to have committed a traffic infraction shall be assessed a monetary assessment not to exceed the maximum fine specified in the statute defining the traffic infraction.
(b) Notwithstanding section 291C-161 or any other law to the contrary, the district court of each circuit shall prescribe a schedule of monetary assessments for all traffic infractions, and any additional assessments to be imposed pursuant to subsection (c). The particular assessment to be entered on the notice of traffic infraction pursuant to section 291D-5 shall correspond to the schedule prescribed by the district court. Except after proceedings conducted pursuant to section 291D-8 or a trial conducted pursuant to section 291D-13, monetary assessments assessed pursuant to this chapter shall not vary from the schedule prescribed by the district court having jurisdiction over the traffic infraction.
(c) In addition to any monetary assessment imposed for a traffic infraction, the court may impose additional assessments for:
(1) Failure to pay a monetary assessment by the scheduled date of payment; or
(2) The cost of service of a penal summons issued pursuant to this chapter.
(d) The court may grant to a person claiming inability to pay, an extension of the period in which the monetary assessment shall be paid or may impose community service in lieu thereof. If the assessment is not paid or the community service is not performed on or before the date established and the court has not extended the time, the court shall take action as provided in section 291D-10.
(e) Fifty per cent of the monetary assessments and fine proceeds received from adjudicated and unadjudicated traffic infractions and fifty per cent of bail forfeitures shall be remitted to the directors of finance of the respective counties in which the infractions and forfeitures occurred."
SECTION 27. Section 291C-171, Hawaii Revised Statutes, is amended to read as follows:
"§291C-171 Disposition of fines and forfeitures. (a) All fines and forfeitures collected upon conviction or upon the forfeiture of bail of any person charged with a violation of any section or provision of the state traffic laws and all assessments collected relating to the commission of traffic infractions shall be paid to the director of finance of the State.
(b) In addition to any monetary assessment imposed for a traffic infraction, the court may impose penalties on all outstanding traffic citations and judgments. The penalties shall be established pursuant to rules approved by the supreme court; provided that the amounts of the penalties shall be based upon a graduated scale that increases in proportion to the length of the delinquency. Any interest penalty imposed as provided in this section may be waived by the court for good cause. All penalties collected for such outstanding citations and judgments shall be paid to the director of finance of the State.
(c) The director of finance of the State shall transfer fifty per cent of all fine proceeds from adjudicated and unadjudicated traffic infractions and fifty per cent of all bail forfeitures to the directors of finance of the respective counties in which the infractions and forfeitures occurred."
SECTION 28. Section 706-643, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2) All fines and other final payments received by a clerk or other officer of a court shall be accounted for, with the names of persons making payment, and the amount and date thereof, being recorded. All such funds shall be deposited with the director of finance to the credit of the general fund of the State[.]; provided that the director of finance shall transfer fifty per cent of all fine proceeds from adjudicated and unadjudicated traffic
SECTION 29. Section 271G-20, Hawaii Revised Statutes, is repealed.
["[§271G-20] Collection of rates and charges. No water carrier shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid if such delivery or relinquishment without payment of all such rates and charges has been prohibited or restricted by rules and regulations of the commission, and if so prohibited and restricted, then delivery or relinquishment shall be made only under such rules and regulations as the public utilities commission may from time to time prescribe to govern the settlement of all the rates and charges, including rules and regulations for weekly or monthly settlement, and to prevent unjust discrimination or undue preference or prejudice; provided that this section shall not be construed to prohibit any carrier from extending credit in connection with rates and charges on freight transported for the United States, for any department, bureau, or agency thereof, or for any state or political subdivision thereof."]
SECTION 30. Section 271G-22, Hawaii Revised Statutes, is repealed.
["[§271G-22] Allowance to shippers for transportation services. If the shipper of property transported under this chapter, directly or indirectly, renders any service connected with the transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be published in tariffs or schedules filed in the manner provided in this chapter and shall be no more than is just and reasonable; and the public utilities commission may, after hearing on a complaint or on its own initiative, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the services so rendered or for the use of the instrumentality so furnished, and fix the same by appropriate order."]
SECTION 31. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the public utilities commission relating to the functions transferred to the several counties shall be transferred with the functions to which they relate.
SECTION 32. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 33. This Act shall take effect upon its approval.
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