§ 12-G:42 — Additional Powers and Duties

New Hampshire § 12-G:42

• Jurisdiction: New Hampshire
• Title I: THE STATE AND ITS GOVERNMENT
• Ch. 12-G: PEASE DEVELOPMENT AUTHORITY
• Subdivision: Division of Ports and Harbors

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The authority, acting through its division of ports and harbors, shall be responsible for the former functions, duties, and responsibilities of the port authority and shall have the following powers and duties in addition to any other powers and duties set forth in this chapter:
I. Have the authority to make all necessary arrangements with port authorities of other states and federal departments, agencies, and foreign countries and their port entities for the interchange of business, for the security of ports, division property, and state tidal waters, and for such other purposes as will facilitate and increase the commerce of the ports and state tidal waters.
II. Establish offices for the transaction of division business at such places as, in the opinion of the authority, shall be advisable and necessary in carrying out the purposes hereof.
III. Be authorized and empowered to appoint and compensate a chief harbor master, a deputy chief harbor master, and one or more harbor masters for communities within the confines of which there are ports or state tidal waters who will enforce the directives of the authority and the division, including but not limited to the placement of moorings, the assignment of anchorage areas, and the movement of traffic. The authority may appoint one or more assistant harbor masters at any such place to assist the chief harbor master, the deputy chief harbor master, or one or more harbor masters in carrying out any of their duties. Any person appointed by the authority as a chief harbor master or deputy chief harbor master shall hold a valid and current certification as a full-time police officer in accordance with RSA 106-L:6 and any rules adopted thereunder.
IV. Be authorized and empowered to contract with and secure the services of a port terminal operating firm, subject to approval of governor and council, for the purpose of having such firm operate a part or all of the facilities of the authority, including piers, wharves, docks, warehouses, parking and storage areas, or other facilities owned or leased by the authority acting through the division, with such operating firm having the exclusive right to operate the business of a port terminal operator and stevedore, including but not limited to the handling of cargo, the collection of fees from wharfage and dockage and other marine terminal operations, the maintenance and security of the premises, and the promotion, encouragement, and solicitation of business for such port facility or facilities. Such contract with an operating firm shall include the following provisions:
(a) Said firm shall file with the division for its approval a tariff clearly defining the terms "wharfage" and "dockage" and the charges to be made therefor;
(b) The amount of minimum payments per year satisfactory to the authority to be paid to it for the exclusive right to operate upon the marine terminal, as described in the contract, the business of a port terminal operator and stevedore;
(c) The amount retained by said firm from all fees for which it is accountable, said amount being a percentage to cover administrative costs of collection;
(d) Said firm to supply a ship's manifest for every vessel using said facilities;
(e) Said firm to provide a performance bond in an amount and form acceptable to the authority, as well as insurance in amounts acceptable to the authority for fire and extended coverage, public liability, property damage, and other risks as required by the authority, the insurance company or companies to be licensed to do business in New Hampshire and to be acceptable to the authority;
(f) Said firm to file quarterly reports with the division indicating the amount of all fees for which it is accountable to the authority, the amounts collected, and the amounts retained, with a certified audit prepared by a certified public accountant submitted annually;
(g) Such other appropriate provisions which in the opinion of the attorney general will carry out the intent of this section and best protect the interest of the authority and of the state.
V. Be authorized and empowered, in lieu of the provisions set forth in paragraph IV, to undertake the business of a port terminal operator and stevedore as to any division property, including but not limited to the handling of cargo, the setting and collection of fees from wharfage and dockage and other marine terminal operations, the maintenance and security of the premises, and the promotion, encouragement, and solicitation of business for such port facility or facilities. In undertaking the business of a port terminal operator or stevedore on any division property the authority may exercise any of the powers granted it under this chapter. Notwithstanding any other provision of this chapter, any person granted by the authority a non-exclusive lease or license relative to division property who, pursuant to such lease or license, handles or manages or in any way participates in the handling or management, including but not limited to, the loading, unloading, stockpiling, storing, or other transfer, of cargo owned, controlled, or otherwise lawfully in the possession of or being delivered to or from any such non-exclusive lessee or licensee shall not be deemed to be operating the business of a port terminal operator and stevedore as set forth in paragraph IV.
VI. Administer and enforce permit programs for the placement and use of moorings, including temporary seasonal moorings, and state-owned slips in state tidal waters, including waiting lists for such permits.
VII. Set and collect fees for mooring and state-owned slip permits and waiting lists for such permits. The authority shall establish fees for state-owned slips in ports, harbors, and state tidal waters. Fees shall not be charged for state-owned slips in ports, harbors, or state tidal waters securing vessels discharging cargo that is subject to the federal Harbor Maintenance Tax imposed pursuant to 26 U.S.C. sections 4461-4462. The fees for state-owned slips shall be paid into the harbor dredging and pier maintenance fund established under RSA 12-G:46. If a mooring holder fails to submit a complete mooring application by the annual deadline, including any applicable late application filing period, and a mooring permit is not issued, then following reconsideration by the division director, said applicant may file an appeal with the board. The authority shall establish in rules the timeframe and standards for consideration of such an appeal.
VIII. Install and continually maintain a uniform system for marking the intercoastal waters of the state including the state ports and state tidal waters not presently marked by the United States Coast Guard, using funds collected from the fees required under RSA 270-E:3, III, and any other funds so appropriated. Said marking system shall be installed on an incremental basis and maintained as necessary.
IX. Have the responsibility for and jurisdiction over state-owned commercial piers and associated facilities, including the establishment of permit programs and wait lists for vessels securing to or berthing at state-owned piers and associated facilities, and the establishment of fees associated with the implementation of such permit programs, including fees for vessels secured to or berthed at state-owned commercial piers in a manner not authorized under rules of the division adopted under this chapter. The authority shall also operate, maintain, and manage the parking facilities at all state-owned commercial piers and associated facilities and shall be authorized to establish permit programs and fees or to otherwise charge for the use of parking at such piers and facilities, including fees or charges for vehicles or trailers parked at state-owned commercial piers or associated facilities in a manner not authorized under rules of the division adopted under this chapter.
X. Adopt rules, pursuant to RSA 541-A, relative to:
(a) Port captains, pilots, and pilotage.
(b) Harbors and harbor masters.
(c) The terms, conditions, and procedures under which the division shall issue, suspend, revoke, deny, or approve permits required under this chapter for moorings and state-owned slips.
(d) State-owned commercial piers and associated facilities, including without limitation the terms, conditions, and procedures under which the division shall issue, suspend, revoke, deny, or approve permits authorized under this chapter relative to the use of state-owned commercial piers and associated facilities and such other rules as the division deems necessary for the proper and safe use, operation, and management of such commercial piers and associated facilities.
XI. Adopt rules, after obtaining prior approval by the board, relative to the setting and collecting of fees authorized under RSA 12-G:38, relating to foreign trade zones; RSA 12-G:42, IV and V, relating to wharfage, dockage, and other marine terminal operations; RSA 12-G:42, VI, relating to moorings, state-owned slips, and wait lists; RSA 12-G:42, IX, relating to state-owned commercial piers and associated facilities; RSA 12-G:49-a, relating to pilotage; and any other matter necessary for the proper administration of the division with respect to the setting and collecting of fees. The rules adopted under this paragraph shall not be subject to the provisions of RSA 541-A, so as to provide the authority with the ability to maximize revenues and to adjust fees according to market conditions and trends as is the common practice in private industry. Fees established pursuant to this paragraph shall be consistent with the following criteria:
(a) Fees relating to the establishment and operation of foreign trade zones shall be designed to recover a reasonable portion of budget expenses consistent with the purposes of RSA 12-G:38. The general court does not intend that such fees cover all of the budget expenses associated with the implementation of RSA 12-G:38.
(b) Fees relating to wharfage, dockage, and other marine terminal operations shall be comparable with the fees for wharfage, dockage, and other marine terminal operations assessed by other port authorities and other marine terminal operators and stevedores in the United States.
(c) Fees relating to the mooring permits, including temporary seasonal moorings, and mooring wait lists shall be designed to recover all of the budget expenses associated with implementation of the mooring permit and wait list system as well as a reasonable portion of the budget expenses consistent with the purposes of RSA 12-G:42, III, VI, and VII; RSA 12-G:43, I(a) and (c); and RSA 12-G:50.
(d) Fees relating to slips shall be designed to be proportional to the fees for moorings established under subparagraph (c).
(e) Fees relating to state-owned commercial piers and associated facilities shall be established giving due consideration to the fees for use of similar privately-owned facilities.
(f) Fees relating to pilotage shall be comparable with the pilotage fees assessed by other port authorities in the United States.
XII. Encourage any contractor bidding on a division project at the port of Portsmouth which is funded through the division or the state of New Hampshire, to employ the maximum possible number of New Hampshire residents. For the purposes of this paragraph, "resident" shall mean any person maintaining a dwelling within the state of New Hampshire who has a present intent to remain within the state for a period of time.
XIII. [Repealed.]
XIV. Be authorized to enter into a memorandum of agreement with the Department of the Army concerning the construction of the Shoreline Erosion Control Demonstration Project in Seabrook, New Hampshire, as authorized by Section 227(3) of the Water Resources Development Act of 1996, Public Law 104-303, as amended. Incident to the execution of the agreement and the acceptance of federal aid, the authority is authorized to take all actions required of the authority under the agreement, including, but not limited to:
(a) Execute an indemnification agreement in the name of the authority and the state with and for the benefit of the United States for damage arising from construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and adaptive management of the project;
(b) Accept, as between the Corps of Engineers and the authority, the obligations imposed on an operator of the project under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, 42 U.S.C. section 9601, et seq., as amended;
(c) Operate, maintain, repair, replace and rehabilitate the project or any functional portion of the project upon notification from the department;
(d) Provide or acquire all lands, easements, rights of way, and suitable borrow and dredged or excavated material disposal areas that the Department determines the authority must provide for the construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and adaptive management of the project; and
(e) Bear half the costs for services provided in connection with non-binding alternative dispute resolution as may be necessary under the agreement.
XV. Be authorized to enter into a project partnership agreement with the Department of the Army in connection with the Hampton Harbor, Hampton, Seabrook, New Hampshire Navigation Improvement and Maintenance Dredging Project, Section 107 of the River and Harbor Act of 1960 (PL 86-645), as amended, for the dredging of Hampton Harbor inlet, and the commercial anchorage areas of Hampton and Seabrook Harbors. Incident to the execution of the agreement and the acceptance of federal aid, the authority is authorized to take all actions required of the authority under the agreement, including, but not limited to:
(a) Execute an indemnification agreement in the name of the authority and the state with and for the benefit of the United States for damage arising from the design, construction, or operation and maintenance of the project and any betterments and the local service facilities;
(b) Accept, as between the U.S. Army Corps of Engineers and the authority, the obligations imposed on an operator of the project under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, 42 U.S.C. section 9601, et seq., as amended;
(c) Provide or acquire all lands, easements, rights of way, and suitable borrow and dredged or excavated material disposal areas that the Department determines the authority must provide for the construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and management of the project; and
(d) Bear half the costs for services provided in connection with non-binding alternative dispute resolution as may be necessary under the agreement.
XVI. Be authorized to enter into project partnership agreements for navigation improvement and maintenance dredging with the Department of the Army in connection with the ports and state tidal waters under the jurisdiction of the authority and authorized under RSA 12-G:45, including projects to procure, accept, or acquire gifts, loans, or grants from the United States of America or its agencies or departments. Incident to the execution of such agreements and the acceptance of federal aid, the authority may take all actions required of the authority under the agreement, including, but not limited to:
(a) Executing an indemnification agreement in the name of the authority and the state with and for the benefit of the United States for damage arising from the design, construction, or operation and maintenance of the project and any betterments of the local service facilities;
(b) Accepting, as between the U.S. Army Corps of Engineers and the authority, the obligations imposed on an operator of the project under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, 42 U.S.C. section 9601, et seq., as amended;
(c) Providing or acquiring all lands, easements, rights of way, and suitable borrow and dredged or excavated material disposal areas that the Department of the Army determines the authority must provide for the construction, operation, maintenance, repair, replacement, rehabilitation, monitoring and management of the project; and
(d) Bearing half the costs for services provided in connection with non-binding alternative dispute resolution as may be necessary under the agreement.

Legislative History

2001, 290:6. 2003, 242:10. 2004, 2:5, 6. 2005, 269:9-14, 17. 2008, 308:1, 2; 356:12, III. 2012, 182:3, eff. Aug. 10, 2012; 247:9, eff. Aug. 17, 2012. 2015, 209:1, eff. Sept. 4, 2015. 2017, 206:3, eff. Sept. 8, 2017.