Report Title:

Transportation; Booster seats for children; Cellular phone use

Description:

Authorizes the Department of Transportation to collect passenger facility charges revenue. Creates a passenger facility charge special fund. Requires drivers to place passengers under four years of age in a child passenger restraint system and passengers who are four and less than eight years of age and under 80 pounds in a child safety seat or booster seat. Provides certain exceptions. Prohibits hand-held cellular phone use while driving a motor vehicle; requires use of hands-free operation or speaker phone system while driving. (SB1401 HD1)

THE SENATE

S.B. NO.

1401

TWENTY-SECOND LEGISLATURE, 2003

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO TRANSPORTATION.

 

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

PART I

SECTION 1. This part authorizes the department of transportation to apply for and receive passenger facility charge revenue pursuant to existing federal law and regulations. This authority will allow Hawaii's airports to collect revenues that other airports are already collecting from Hawaii's residents and other passengers when they travel. Because Hawaii's airports do not impose these charges, they are unable to benefit from these passenger revenues although other airports are benefiting from the charges paid by Hawaii residents and others. By implementing these charges, Hawaii will be able to participate in a federal program that was created to provide a means of generating funds for public airports throughout the United States.

The purpose of this part is to provide authority to impose and use passenger facility charge revenue consistent with title 49 United States Code section 40117 to finance costs

relating to implementing capital improvement program projects at state airports as permitted under the Aviation and Transportation Safety Act and other federal laws.

Title 49 United States Code section 40117 and 14 Code of Federal Regulation part 158 prohibit expenditure of passenger facility charge revenue for other than approved projects. The Federal Aviation Administration considers any transfer of passenger facility charges to reimburse administrative expenses or to the works of art special fund to be revenue diversion. Therefore, passenger facility charge revenue must be exempt from the requirements to reimburse central service expenses and the works of art special fund.

SECTION 2. Chapter 261, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§261- Passenger facility charge special fund. (a) There is established in the state treasury the passenger facility charge special fund, into which shall be deposited all proceeds from the passenger facility charge.

(b) Moneys in the passenger facility charge special fund shall be used for capital improvement program projects approved by the legislature.

(c) The passenger facility charge special fund shall be exempt from sections 36-27, 36-30, and 103-8.5."

SECTION 3. Section 36-27, Hawaii Revised Statutes, is amended to read as follows:

§36-27 Transfers from special funds for central service expenses. Except as provided in this section, and notwithstanding any other law to the contrary, from time to time, the director of finance, for the purpose of defraying the prorated estimate of central service expenses of government in relation to all special funds, except the:

(1) Special out-of-school time instructional program fund under section 302A-1310;

(2) School cafeteria special funds of the department of education;

(3) Special funds of the University of Hawaii;

(4) State educational facilities improvement special fund;

(5) Convention center enterprise special fund under section 201B-8;

(6) Special funds established by section 206E-6;

(7) Housing loan program revenue bond special fund;

(8) Housing project bond special fund;

(9) Aloha Tower fund created by section 206J-17;

(10) Domestic violence prevention special fund under section 321-1.3;

(11) Spouse and child abuse special account under section 346-7.5;

(12) Spouse and child abuse special account under section 601-3.6;

(13) Funds of the employees' retirement system created by section 88-109;

(14) Unemployment compensation fund established under section 383-121;

(15) Hawaii hurricane relief fund established under chapter 431P;

(16) Hawaii health systems corporation special funds;

(17) Boiler and elevator safety revolving fund established under section 397-5.5;

(18) Tourism special fund established under section 201B-11;

(19) Department of commerce and consumer affairs' special funds;

(20) Compliance resolution fund established under section 26-9;

(21) Universal service fund established under chapter 269;

(22) Integrated tax information management systems special fund under section 231-3.2;

(23) Hawaii tobacco settlement special fund under section 328L-2;

(24) Emergency and budget reserve fund under section 328L-3;

(25) Probation services special fund under section 706-649;

(26) High technology special fund under section 206M-15.5;

(27) Public schools special fees and charges fund under section 302A-1130(f);

(28) Cigarette tax stamp enforcement special fund established by section 28-14;

(29) Cigarette tax stamp administrative special fund established by section 245-41.5;

(30) Tobacco enforcement special fund established by section 28-15;

(31) Sport fish special fund under section 187A-9.5;

(32) Neurotrauma special fund under section 321H–4;

(33) Deposit beverage container deposit special fund under section 342G-104; [and]

(34) Glass advance disposal fee special fund established by section 342G-82; and

(35) Passenger facility charge special fund established by section 261-    ;

shall deduct five per cent of all receipts of all other special funds, which deduction shall be transferred to the general fund of the State and become general realizations of the State. All officers of the State and other persons having power to allocate or disburse any special funds shall cooperate with the director in effecting these transfers. To determine the proper revenue base upon which the central service assessment is to be calculated, the director shall adopt rules pursuant to chapter 91 for the purpose of suspending or limiting the application of the central service assessment of any fund. No later than twenty days prior to the convening of each regular session of the legislature, the director shall report all central service assessments made during the preceding fiscal year. "

SECTION 4. Section 36-30, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Each special fund, except the:

(1) Transportation use special fund established by section 261D-1;

(2) Special out-of-school time instructional program fund under section 302A-1310;

(3) School cafeteria special funds of the department of education;

(4) Special funds of the University of Hawaii;

(5) State educational facilities improvement special fund;

(6) Special funds established by section 206E-6;

(7) Aloha Tower fund created by section 206J-17;

(8) Domestic violence prevention special fund under section 321-1.3;

(9) Spouse and child abuse special account under section 346-7.5;

(10) Spouse and child abuse special account under section 601-3.6;

(11) Funds of the employees' retirement system created by section 88-109;

(12) Unemployment compensation fund established under section 383-121;

(13) Hawaii hurricane relief fund established under chapter 431P;

(14) Convention center enterprise special fund established under section 201B-8;

(15) Hawaii health systems corporation special funds;

(16) Tourism special fund established under section 201B-11;

(17) Compliance resolution fund established under section 26-9;

(18) Universal service fund established under chapter 269;

(19) Integrated tax information management systems special fund under section 231-3.2;

(20) Hawaii tobacco settlement special fund under section 328L-2;

(21) Emergency and budget reserve fund under section 328L-3;

(22) Probation services special fund under section 706-649;

(23) High technology special fund under section 206M-15.5;

(24) Public schools special fees and charges fund under section 302A-1130(f);

(25) Cigarette tax stamp enforcement special fund established by section 28-14;

(26) Cigarette tax stamp administrative special fund established by section 245-41.5;

(27) Tobacco enforcement special fund established by section 28-15;

(28) Sport fish special fund under section 187A-9.5; [and]

(29) Neurotrauma special fund under section 321H-4; and

(30) Passenger facility charge special fund established by section 261- ;

shall be responsible for its pro rata share of the administrative expenses incurred by the department responsible for the operations supported by the special fund concerned."

SECTION 5. Section 103-8.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) There is created a works of art special fund, into which shall be transferred one per cent of all state fund appropriations for capital improvements designated for the construction cost element; provided that this transfer shall apply only to capital improvement appropriations that are designated for the construction or renovation of state buildings. The one per cent transfer requirement shall not apply to appropriations from the passenger facility charge special fund established by section 261- ."

SECTION 6. Section 261-5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except for that portion of the payments received by the department under a contract entered into as authorized by section 261-7 and deposited in the transportation use special fund pursuant to section 261D-1, and except for all proceeds from the passenger facility charge as authorized by section

261-7 and deposited in the passenger facility charge special fund, all moneys received by the department from rents, fees and other charges collected pursuant to this chapter, as well as all aviation fuel taxes paid pursuant to section 243-4(a)(2), shall be paid into the airport revenue fund created by section 248-8.

All moneys paid into the airport revenue fund shall be appropriated, applied or expended by the department for any purpose within the jurisdiction, powers, duties, and functions of the department related to the statewide system of airports, including, without limitation, the costs of operation, maintenance and repair of the statewide system of airports and reserves therefor, and acquisitions (including real property and interests therein), constructions, additions, expansions, improvements, renewals, replacements, reconstruction, engineering, investigation, and planning for the statewide system of airports, all or any of which in the judgment of the department are necessary to the performance of its duties or functions. The department shall generate sufficient revenues from its airport properties to meet all of the expenditures of the statewide system of airports and to comply with section 39-61; provided that as long as sufficient revenues are generated to meet such expenditures, the director of transportation may, in the director's discretion, grant a rebate of the aviation fuel taxes paid into the airport revenue fund during a fiscal year pursuant to sections 243-4(a)(2) and 248-8 to any person who has paid airport use charges or landing fees during such fiscal year. Such rebate may be granted during the next succeeding fiscal year but shall not exceed one-half cent per gallon per person, and shall be computed on the total number of gallons for which the tax was paid by such person, for such fiscal year."

SECTION 7. Section 261-7, Hawaii Revised Statutes, is amended to read as follows:

"§261-7 Operation and use privileges. (a) In operating an airport or air navigation facility owned or controlled by the department of transportation, or in which it has a right or interest, the department may enter into contracts, leases, licenses, and other arrangements with any person:

(1) Granting the privilege of using or improving the airport or air navigation facility or any portion or facility thereof or space therein for commercial purposes;

(2) Conferring the privilege of supplying goods, commodities, things, services, or facilities at the airport or air navigation facility;

(3) Making available services, facilities, goods, commodities, or other things to be furnished by the department or its agents at the airport or air navigation facility; or

(4) Granting the use and occupancy on a temporary basis by license or otherwise any portion of the land under its jurisdiction which for the time being may not be required by the department so that it may put the area to economic use and thereby derive revenue therefrom.

All the arrangements shall contain a clause that the land may be repossessed by the department when needed for aeronautics purposes upon giving the tenant temporarily occupying the same not less than thirty days' notice in writing of intention to repossess.

(b) Except as otherwise provided in this section, in each case mentioned in subsection (a)(1), (2), (3), and (4), the department may establish the terms and conditions of the contract, lease, license, or other arrangement, and may fix the charges, rentals, or fees for the privileges, services, or things granted, conferred, or made available, for the purpose of meeting the expenditures of the statewide system of airports set forth in section 261-5(a), which includes expenditures for

capital improvement projects approved by the legislature. Such charges shall be reasonable and uniform for the same class of privilege, service, or thing.

(c) The department shall enter into a contract with no more than one person ("contractor") for the sale and delivery of in-bond merchandise at Honolulu International Airport, in the manner provided by law. The contract shall confer the right to operate and maintain commercial facilities within the airport for the sale of in-bond merchandise and the right to deliver to the airport in-bond merchandise for sale to departing foreign-bound passengers.

The department shall grant the contract pursuant to the laws of this State and may take into consideration:

(1) The payment to be made on in-bond merchandise sold at Honolulu International Airport and on in-bond merchandise displayed or sold elsewhere in the State and delivered to the airport;

(2) The ability of the applicant to comply with all federal and state rules and regulations concerning the sale and delivery of in-bond merchandise; and

(3) The reputation, experience, and financial capability of the applicant.

The department shall actively supervise the operation of the contractor to insure its effectiveness. The department shall develop and implement such guidelines as it may find necessary and proper to actively supervise the operations of the contractor, and shall include guidelines relating to the department's review of the reasonableness of contractor's price schedules, quality of merchandise, merchandise assortment, operations, and service to customers.

Apart from the contract described in this subsection, the department shall confer no right upon nor suffer nor allow any person to offer to sell, sell, or deliver in-bond merchandise at Honolulu International Airport; provided that this section shall not prohibit the delivery of in-bond merchandise as cargo to the Honolulu International Airport.

(d) The department, by contract, lease, or other arrangement, upon a consideration fixed by it, may grant to any qualified person the privilege of operating, as agent of the State or otherwise, any airport owned or controlled by the department; provided that no such person shall be granted any authority to operate the airport other than as a public airport or to enter into any contracts, leases, or other arrangements in connection with the operation of the airport which the department might not have undertaken under subsection (a).

(e) The department may fix and regulate, from time to time, reasonable landing fees for aircraft, including the imposition of landing surcharges or differential landing fees, and other reasonable charges for the use and enjoyment of the airports and the services and facilities furnished by the department in connection therewith, including the establishment of a statewide system of airports landing fees, a statewide system of airports support charges, and joint use charges for the use of space shared by users, which fees and charges may vary among different classes of users such as foreign carriers, domestic carriers, inter-island carriers, air taxi operators, helicopters, and such other classes as may be determined by the director, for the purpose of meeting the expenditures of the statewide system of airports set forth in section 261-5(a), which includes expenditures for capital improvement projects approved by the legislature.

In setting airports rates and charges, including landing fees, the director may enter into contracts, leases, licenses, and other agreements with aeronautical users of the statewide system of airports containing such terms, conditions, and provisions as the director deems advisable.

If the director has not entered into contracts, leases, licenses, and other agreements with any or fewer than all of the aeronautical users of the statewide system of airports prior to the expiration of an existing contract, lease, license, or agreement, the director shall set and impose rates, rentals, fees, and charges pursuant to this subsection without regard to the requirements of chapter 91; provided that a public informational hearing shall be held on the rates, rentals, fees, and charges.

The director shall develop rates, rentals, fees, and charges in accordance with a residual methodology so that the statewide system of airports shall be, and always remain, self-sustaining. The rates, rentals, fees, and charges shall be set at such levels as to produce revenues which, together with aviation fuel taxes, shall be at least sufficient to meet the expenditures of the statewide system of airports set forth in

section 261-5(a), including expenditures for capital improvement projects approved by the legislature, and to comply with covenants and agreements with holders of airport revenue bonds.

The director may develop and formulate methodology in setting the various rates, rentals, fees, and charges imposed and may determine usage of space, estimate landed weights, and apply such portion of nonaeronautical revenue deemed appropriate in determining the rates, rentals, fees, and charges applicable to aeronautical users of the statewide system of airports.

The rates, rentals, fees, and charges determined by the director in the manner set forth in this subsection shall be those charges payable by the aeronautical users for the periods immediately following the date of expiration of the existing contract, lease, license, or agreement. If fees are established pursuant to this section, the department shall prepare a detailed report on the circumstances and rates and charges that have been established, and shall submit the report to the legislature no later than twenty days prior to the convening of the next regular session.

If a schedule of rates, rentals, fees, and charges developed by the director in accordance with this section is projected by the department to produce revenues which, together with aviation fuel taxes, will be in excess of the amount required to meet the expenditures of the statewide system of airports set forth in section 261-5(a), including expenditures for capital improvement projects approved by the legislature, and to comply with covenants and agreements with holders of airport revenue bonds, the department shall submit the schedule of rates, rentals, fees, and charges to the legislature prior to the convening of the next regular session of the legislature. Within forty-five days after the convening of the regular session, the legislature may disapprove any schedule of rates, rentals, fees, and charges required to be submitted to it by this section by concurrent resolution. If no action is taken by the legislature within the forty-five day period the schedule of rates, rentals, fees, and charges shall be deemed approved. If the legislature disapproves the schedule within the forty-five- day period, the director shall develop a new schedule of rates, rentals, fees, and charges in accordance with this section within seventy-five days of the disapproval. Pending the development of a new schedule of rates, rentals, fees, and charges, the schedule submitted to the legislature shall remain in force and effect.

Notwithstanding any other provision of law to the contrary, the department may waive landing fees and other aircraft charges established under this section at any airport owned or controlled by the State whenever:

(1) The governor declares a state of emergency; and

(2) The department determines that the waiver of landing fees and other charges for the aircraft is consistent with assisting in the delivery of humanitarian relief to disaster-stricken areas of the State.

(f) To enforce the payment of any charges for repairs or improvements to, or storage or care of any personal property made or furnished by the department or its agent in connection with the operation of an airport or air navigation facility owned or operated by the department, the department shall have liens on the property, which shall be enforceable by it as provided by sections 507-18 to 507-22.

(g) The department from time to time may establish developmental rates for buildings and land areas used exclusively for general aviation activities at rates not less than fifty per cent of the fair market rentals of the buildings and land areas and may restrict the extent of buildings and land areas to be utilized.

(h) The department may establish passenger facility charges as authorized under 49 United States Code section 40117 and as provided under 14 Code of Federal Regulations Part 158 for each overseas or international passenger who uses a state airport. The department shall establish the charges in accordance with applicable federal laws and regulations. No passenger facility charge shall be assessed on flight segments between two or more airports within the state."

PART II

SECTION 8. Section 291-11.5, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) Except as otherwise provided in this section, no person operating a motor vehicle on a public highway in the State shall transport a child under [four] eight years of age, [unless] except under the following circumstances:

(1) If the child is under four years of age, the person operating the motor vehicle [ensures] shall ensure that the child is properly restrained in a child passenger restraint system [approved by the United States Department of Transportation] that meets Federal Motor Vehicle Safety Standards at the time of its manufacture[.];

(2) If the child is at least four years of age but under eight years of age and weighs less than eighty pounds, the person operating the motor vehicle shall ensure that the child is properly restrained in a child safety seat or booster seat that meets Federal Motor Vehicle Safety Standards at the time of its manufacture. Children who are under eight years of age and who weigh over forty pounds or who are over four feet nine inches in height need not be restrained in a child safety seat or booster seat if the motor vehicle is equipped only with lap belts in the rear seat, without shoulder straps, provided they are restrained by a seat belt;

(3) If the child will become nine years of age before July 1, 2004; or

(4) If the necessary number of child passenger restraint systems exceeds the capacity of the vehicle, the youngest children shall be placed in the available systems and those for whom no system is available need not be restrained in a system; provided the maximum number of systems for which the vehicle has capacity is used; and provided further that the children not in child passenger restraint systems are restrained by a seat belt."

2. By amending subsection (d) to read:

"(d) In no event shall failure [of] to restrain a child under the age of [four] eight years [to be restrained] or failure to restrain [such a] the child in a child passenger restraint system or a seat belt assembly be considered [as] contributory negligence, comparative negligence, or negligence per se."

SECTION 9. Section 291-11.6, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except as otherwise provided by law, no person:

(1) Shall operate a motor vehicle upon any public highway unless the person is restrained by a seat belt assembly and any passengers in the front or back seat of the motor vehicle are restrained by a seat belt assembly, if between the ages of [four] eight and fourteen, or are restrained pursuant to section 291-11.5 if the person is under [the age of four;] eight years of age and under eighty pounds in weight;

(2) If fifteen years of age or more, shall be a passenger in the front seat of a motor vehicle being operated upon any public highway unless [such] the person is restrained by a seat belt assembly; and

(3) If between the ages of fifteen and seventeen, shall be a passenger in the back seat of a motor vehicle being operated upon any public highway unless [such] the person is restrained by a seat belt assembly.

As used in this section, "seat belt assembly" means the seat belt assembly required to be in the motor vehicle under any federal motor vehicle safety standard issued pursuant to Public Law 89-563, the [federal] National Traffic and Motor Vehicle Safety Act of 1966, as amended, unless original replacement seat belt assemblies are not readily available. If replacement assemblies are not readily available, seat belts of federally approved materials with similar protective characteristics may be used. Such replacement seat belt assemblies shall be permanently marked by the belt manufacturer indicating compliance with all applicable federal standards."

PART III

SECTION 10. The legislature finds that Hawaii is widely regarded as having the highest number of cellular phones per capita in the nation. As equipment and airtime costs have

decreased since the introduction of cellular phones in 1983, the number of hand-held cellular phones in the State has increased dramatically.

The use of a cellular phone while driving poses great risk to the health and safety of both motorists and pedestrians. Despite continued efforts by the cellular phone industry to educate drivers about the dangers of operating a motor vehicle while talking on the phone, the number of accidents, injuries, and deaths attributed to the use of cellular phones while driving continues to rise. Multiple medical studies, including a 1997 report by the New England Journal of Medicine, have concluded that the risk of collision is four times greater for a motorist using a cellular phone. This risk is equivalent to the operation of a motor vehicle while legally intoxicated.

Prohibiting the use of a hand-held cellular phone while driving would decrease the risk of collision and provide for the safety of the general public. The use of a cellular phone used with an ear-bud, headset, or speaker phone capability eliminates the need for drivers to take their eyes off the road, which is cited in police reports by drivers as a leading cause of

accidents. Continued advances in technology by the cellular phone industry make hands-free cellular phones widely available to the general public.

The purpose of this part is to prohibit the use of a hand-held cellular phone while operating a motor vehicle, to decrease the number of collisions, injuries, and deaths directly related to cellular phone use.

SECTION 11. Chapter 291, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§291- Using a hand-held cellular phone while operating a motor vehicle, motorcycle, or moped. (a) No person shall use a hand-held cellular phone while operating a motor vehicle, motorcycle, or moped upon any public street, road, or highway.

(b) It shall be a defense to a violation of subsection (a) that the driver using a hand-held cellular phone had:

(1) Reason to fear for the driver's life or safety; or

(2) Good cause to make a "911" emergency call.

(c) This section shall not apply to persons using:

(1) An ear-bud or headset in conjunction with a hands-free capable cellular phone; or

(2) A voice-activated speaker phone system in conjunction with a hands-free capable cellular phone.

(d) Any person who violates this section shall be subject to a fine of $45 for each violation."

PART IV

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

SECTION 13. This Act shall take effect upon its approval.