S1287

An Act concerning waterfront workers and amending P.L.2017, c.324.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 3 of P.L.2017, c.324 (C.53:2-8) is amended to read as follows:

3. As used in P.L.2017, c.324 (C.32:23-229 et al.):

"Career offender" means a person whose behavior is pursued in an occupational manner or context for the purpose of economic gain, utilizing methods that are deemed criminal violations against the laws of this State.

"Career offender cartel" means a number of career offenders acting in concert, and may include what is commonly referred to as an organized crime group.

"Carrier" means a carrier as that term is defined in 49 U.S.C. s.13102.

"Carrier of freight by water" means any person who may be engaged or who may hold himself or herself out as willing to be engaged, whether as a common carrier, a contract carrier, or otherwise, except for carriage of liquid cargoes in bulk in tank vessels designed for use exclusively in that service or carriage by barge of bulk cargoes consisting of only a single commodity loaded or carried without wrappers or containers and delivered by the carrier without transportation mark or count, in the carriage of freight by water between any point in the port of New York district, as applicable only within the State of New Jersey, and a point outside that district.

"Checker" means a longshoreman who is employed to engage in direct and immediate checking of waterborne freight or of the custodial accounting therefor or in the recording or tabulation of the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores.

"Commission" means the waterfront commission of New York harbor established by the State of New Jersey pursuant to P.L.1953, c.202 (C.32:23-1 et seq.) and by the State of New York pursuant to its agreement thereto under P.L.1953, c.882 (NY Unconsol. Ch.307, s.1).

"Common carrier" means a common carrier as that term is defined in 46 U.S.C. s.40102.

"Compact" means the compact entered into by the State of New Jersey pursuant to its agreement thereto under P.L.1953, c.202 (C.32:23-1 et seq.) and by the State of New York pursuant to its agreement thereto under P.L.1953, c.882 (NY Unconsol. Ch.307, s.1), as amended and supplemented.

"Consignee" means the person designated on a bill of lading as the recipient of waterborne freight consigned for carriage by water.

"Container" means any receptacle, box, carton, or crate which is specifically designed and constructed so that it may be repeatedly used for the carriage of freight by a carrier of freight by water.

"Contract carrier" means a contract carrier as that term is defined in 49 U.S.C. s.13102.

“Director” means, in the context of licensure as a stevedore, a natural person elected or appointed to the board of directors that oversees or manages a stevedoring enterprise.

"Division" means the Division of State Police in the Department of Law and Public Safety.

"Freight" means freight which has been or will be, carried by, or consigned for carriage by a carrier of freight by water.

"Hiring agent" means any natural person who, on behalf of a carrier of freight by water [or] , a stevedore, [shall] or other employer of longshoremen, is authorized under law to designate or select any longshoreman for employment [, and "hiring agent" includes any natural person, who on behalf of any other person shall select any longshoreman for employment].

"Immunity" means that a person shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which, pursuant to an order of the division, the person gave answer or produced evidence, and that no answer given or evidence produced shall be received against the person upon any criminal proceeding.

"Labor organization" means and includes any organization which exists and is constituted for the purpose in whole or in part of collective bargaining, or of dealing with employers concerning grievances, terms and conditions of employment, or other mutual aid or protection, but "labor organization" shall not include a federation or congress of labor organizations organized on a national or international basis even though one of its constituent labor organizations may represent persons so registered or licensed.

"Longshoreman" means a natural person, other than a hiring agent, who is employed for work at a pier or other waterfront terminal, either by a carrier of freight by water or by a stevedore, to: a. physically move waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals; b. engage in direct and immediate checking of any such freight or of the custodial accounting therefor or in the recording or tabulation of the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores; c. supervise directly and immediately others who are employed as a longshoreman; d. physically to perform labor or services incidental to the movement of waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals; e. physically move waterborne freight to or from a barge, lighter, or railroad car for transfer to or from a vessel of a carrier of freight by water which is, shall be, or shall have been berthed at the same pier or other waterfront terminal; or f. perform labor or services involving, or incidental to, the movement of freight at a pier or other waterfront terminal.

"Longshoremen's register" means the register of eligible longshoremen compiled and maintained by the division pursuant to section 8 of P.L.2017, c.324 (C.53:2-13).

"Marine terminal" means an area which includes piers, which is used primarily for the moving, warehousing, distributing, or packing of waterborne freight or freight to or from piers and which is under common ownership or control with the pier.

“Officer” means, in the context of licensure as a stevedore, an officer or managing executive of a stevedore or a corporate stevedore who controls or participates in the operating management of a stevedoring enterprise.

"Other waterfront terminal" means any warehouse, depot, or other terminal, other than a pier, which is located within a marine terminal in the port of New York district and which is used for waterborne freight in whole or substantial part, and includes any warehouse, depot, or other terminal, other than a pier, whether enclosed or open, which is located in a marine terminal in the port of New York district, any part of which is used by any person to perform labor or services involving, or incidental to, the movement of waterborne freight or freight.

“Owner” means, in the context of licensure as a stevedore, a person, including but not limited to a partnership, joint venture, association, corporation, limited liability company, or any other legal entity, that beneficially owns or holds an ownership interest in a stevedoring enterprise.

“Partner” means an owner of an interest in a partnership, in whatever manner that owner and ownership interest are designated.

"Person" means not only a natural person but also any partnership, joint venture, association, corporation, or any other legal entity but shall not include the United States, any state or territory thereof, or any department, division, board, authority, or authority of one or more of the foregoing.

"Pier" means any wharf, pier, dock, or quay in regular use for the movement of waterborne freight between vessel and shore.

"Pier superintendent" means any natural person other than a longshoreman who is employed for work at a pier or other waterfront terminal by a carrier of freight by water or a stevedore and whose work at the pier or other waterfront terminal includes the supervision, directly or indirectly, of the work of longshoremen.

"Port of New York district" or "district" means the district created by Article II of the compact dated April 30, 1921, between the states of New York and New Jersey, authorized by chapter 154 of the laws of New York of 1921 and chapter 151 of the laws of New Jersey of 1921.

"Port watchman" means any watchman, gateman, roundsman, detective, guard, guardian, or protector of property employed by the operator of any pier or other waterfront terminal or by a carrier of freight by water to perform services in that capacity on any pier or other waterfront terminal.

"Select any longshoreman for employment" means select a person for the commencement or continuation of employment as a longshoreman, or the denial or termination of employment as a longshoreman.

"Stevedore" or in the case of a corporate entity other than a natural person “corporate stevedore,” means a contractor, not including an employee, engaged for compensation pursuant to a contract or arrangement with a carrier of freight by water, in moving waterborne freight carried or consigned for carriage by the carrier on vessels of the carrier berthed at piers, on piers at which the vessels are berthed or at other waterfront terminals. ["Stevedore"] These terms shall also include:

a. a contractor engaged for compensation pursuant to a contract or arrangement with the United States, any state or territory thereof, or any department, division, board, commission, or authority of one or more of the foregoing, in moving freight carried or consigned for carriage between any point in the port of New York district and a point outside that district on vessels of the public agency berthed at piers, on piers at which their vessels are berthed or at other waterfront terminals;

b. a contractor, engaged for compensation pursuant to a contract or arrangement with any person to perform labor or services incidental to the movement of waterborne freight on vessels berthed at piers, on piers or at other waterfront terminals; or

c. a contractor engaged for compensation pursuant to a contract or arrangement with any other person to perform labor or services involving, or incidental to, the movement of freight into or out of containers, which have been or which will be carried by a carrier of freight by water, on vessels berthed at piers, on piers or at other waterfront terminals.

"State Treasurer" means the Treasurer of the State of New Jersey.

“Telecommunications system controller” means a natural person selected by a joint board of the New York Shipping Association, Inc. and the International Longshoremen’s Association who participates in the operation of the Shipping Association of New York and New Jersey’s Enterprise Management System (EMS).

"Terrorist group" means a group associated, affiliated, or funded in whole or in part by a terrorist organization designated by the United States Secretary of State in accordance with section 219 of the federal Immigration and Nationality Act, as amended from time to time, or any other organization which assists, funds, or engages in crimes or acts of terrorism as defined in the laws of the United States, or of this State.

"Transfer date" means the 90th day following the notification by the Governor pursuant to section 2 of P.L.2017, c.324 (C.32:23-230).

"Waterborne freight" means freight carried by or consigned for carriage by carriers of freight by water, and shall also include freight described in the definition of "stevedore" and in the definition of "other waterfront terminal." Provided, however, that at the point at which the freight is released from a pier or marine terminal to the possession of the consignee or the person designated by the consignee, the freight shall no longer be considered waterborne freight if:

a. the freight is not further transported by water; and

b. services involving or incidental to the unloading, storage, inspection, grading, repackaging, or processing of freight occur at a location outside a pier or marine terminal.

"Witness" means any person whose testimony is desired in any investigation, interview, or other proceeding conducted by the division under the authority granted pursuant to P.L.2017, c.324 (C.32:23-229 et al.).

(cf: P.L.2017, c.324, s.3)

2. Section 5 of P.L.2017, c.324 (C.53:2-10) is amended to read as follows:

5. In addition to the powers and duties elsewhere prescribed in law, the division shall have the power:

a. To determine the location, size, and suitability of accommodations necessary and desirable for the establishment and maintenance of the employment information centers provided in section 16 of P.L.2017, c.324 (C.53:2-21) and for administrative offices for the division;

b. To administer and enforce the provisions of P.L.2017, c.324 (C.32:23-229 et al.);

c. Consistent with the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to adopt and enforce rules and regulations as the division may deem necessary to effectuate the purposes of P.L.2017, c.324 (C.32:23-229 et al.) or to prevent the circumvention or evasion thereof;

d. By its members and its properly designated officers, agents, and employees, with respect to the implementation and enforcement of P.L.2017, c.324 (C.32:23-229 et al.), to administer oaths and issue subpoenas to compel the attendance of witnesses and the giving of testimony and the production of other evidence;

e. To have for its properly designated officers, agents and employees, full and free access, ingress, and egress to and from all vessels, piers, and other waterfront terminals or other places in the port of New York district within this State, for the purposes of making inspection or enforcing the provisions of P.L.2017, c.324 (C.32:23-229 et al.); and no person shall obstruct or in any way interfere with any officer, employee, or agent of the division in the making of an inspection, or in the enforcement of the provisions of P.L.2017, c.324 (C.32:23-229 et al.) or in the performance of any other power or duty under P.L.2017, c.324 (C.32:23-229 et al.);

f. To recover possession of any suspended or revoked license issued pursuant to sections 6, 7, and 13 of P.L.2017, c.324 (C.53:2-11, C.53:2-12, and C.53:2-18) within the port of New York district in this State;

g. To make investigations and collect and compile information concerning waterfront practices generally within the port of New York district in this State and upon all matters relating to the accomplishment of the objectives of P.L.2017, c.324 (C.32:23-229 et al.);

h. To advise and consult with representatives of labor and industry and with public officials and agencies concerned with the effectuation of the purposes of P.L.2017, c.324 (C.32:23-229 et al.), upon all matters which the division may desire, including but not limited to, the form and substance of rules and regulations, the administration of the provisions of P.L.2017, c.324 (C.32:23-229 et al.), maintenance of the longshoremen's register, and issuance and revocation of licenses;

i. To make annual and other reports to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature containing recommendations for the improvement of the conditions of waterfront labor within the port of New York district in this State and for the effectuation of the purposes of P.L.2017, c.324 (C.32:23-229 et al.). The annual reports shall state the division's findings and determinations as to whether the public necessity still exists for: (1) the continued registration of longshoremen; (2) the continued licensing of any occupation or employment required to be licensed hereunder; and (3) the continued public operation of the employment information centers provided for in section 16 of P.L.2017, c.324 (C.53:2-21);

j. To co-operate with and receive from any department, division, bureau, board, commission, authority, or agency of this State, or of any county or municipality thereof, any assistance and data as will enable the division to properly to carry out its powers and duties hereunder; and to request a department, division, bureau, board, commission, authority, or agency, with the consent thereof, to execute the division's functions and powers, as the public interest may require; [and]

k. To exercise the powers and duties of the division as provided in P.L.2017, c.324 (C.32:23-229 et al.) to its officers, employees, and agents designated by the division;

l. To issue temporary permits and permit temporary registrations under such terms and conditions as the division may prescribe which shall be valid for a period to be fixed by the division not in excess of six months;

m. To require any applicant for a license or registration or any prospective licensee to furnish facts and evidence as the division may deem appropriate to enable it to ascertain whether the license or registration should be granted;

n. In any case in which the division has the power to revoke, cancel or suspend any license, the division shall also have the power to impose as an alternative to that revocation, cancellation, or suspension, a penalty, which the licensee may elect to pay the division in lieu of the revocation, cancellation, or suspension. The maximum penalty shall be $5,000 for each separate offense. The division may, for good cause shown, abate all or part of the penalty;

o. To designate any officer, agent, or employee of the division to be an investigator who shall be vested with all the powers of a peace or police officer of the State of New Jersey;

p. To confer immunity, in the following manner prescribed by section 20 of P.L.2017, c.324 (C.53:2-25);

q. To require any applicant or renewal applicant for registration as a longshoreman, any applicant or renewal applicant for registration as a checker, or any applicant or renewal applicant for registration as a telecommunications system controller and any person who is sponsored for a license as a pier superintendent or hiring agent, any person who is an individual owner of an applicant or renewal applicant stevedore, or any persons who are individual partners of an applicant or renewal applicant stevedore, or any officers, directors, or stockholders owning five percent or more of any of the stock of an applicant or renewal applicant corporate stevedore or any applicant or renewal applicant for a license as a port watchman [or any other category of applicant or renewal applicant for registration or licensing within the division's jurisdiction] to be fingerprinted by the division at the cost and expense of the applicant or renewal applicant;

r. To exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the State Bureau of Identification for use in making the determinations required by this section; and

s. Notwithstanding any other provision of law, rule, or regulation to the contrary, to require any applicant for employment or employee of the division engaged in the implementation or enforcement of P.L.2017, c.324 (C.32:23-229 et al.) to be fingerprinted at the cost and expense of the applicant or employee and to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the State Bureau of Identification for use in the hiring or retention of those persons.

(cf: P.L.2017, c.324, s.5)

3. This act shall take effect immediately.

STATEMENT

This bill revises the statutory definition of certain waterfront workers consistent with the requirements of federal P.L.92-544.

Under federal P.L.92-544, the Federal Bureau of Investigation (FBI) is authorized to exchange criminal history record information with officials of State and local governments only if authorized by state statute and approved by the Attorney General of the United States. The FBI, with the assistance of the United States Department of Justice, has determined that federal P.L.92-544 requires that state statutes meet certain criteria, which include, among other things, that the statute specifically identify the category of persons required to be fingerprinted for purposes of obtaining criminal history record information.

Accordingly, to retain access to the FBI Criminal Justice Information Service, the bill revises certain statutory definitions to more specifically identify the category of water front workers required to be fingerprinted.