Bill Text: HI HB2477 | 2024 | Regular Session | Introduced
Bill Title: Relating To Commercial Ocean Recreation Operations.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2024-03-07 - Referred to WTL, JDC/WAM. [HB2477 Detail]
Download: Hawaii-2024-HB2477-Introduced.html
HOUSE OF REPRESENTATIVES |
H.B. NO. |
2477 |
THIRTY-SECOND LEGISLATURE, 2024 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO COMMERCIAL OCEAN RECREATION OPERATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The department of land and natural resources (department) division of boating and ocean recreation is responsible for ocean recreation management in state ocean waters, among other responsibilities. Public safety and marine natural resources can be impacted by a variety of environmental factors and emerging ocean recreation technologies, some of which may change rapidly and frequently. This Act is part of a comprehensive ocean recreation management package put forth by the department to ensure effective natural resource protection by providing better management and enforcement tools.
In
a relatively quick timeframe over recent years, commercial ocean activity has
substantially increased such that there is over-commercialization in many areas
around the State, to the detriment of ocean users and marine natural
resources. Overcrowding as a result of
over-commercialization often causes conflict between recreational users and
commercial operators. While the
department has attempted to reduce commercial use permit counts by attrition,
permittees' current ability to sell a company that holds a permit without
causing the permit to terminate effectively precludes any reduction of permit
numbers by attrition. The department is
also not adequately funded to proactively address impacts of rules-based
commercial activity, such as overcrowding and marine ecosystem damage, forcing
a more reactionary approach that does little to address issues.
Therefore, the
purposes of this Act are to (1) revise the fees applicable to commercial ocean
operators and the way some of these fees are assessed; (2) prevent commercial
use permits from being transferred upon the change in legal ownership of a
permitted business entity, except for transfers to spouses and first-generation
lineal descendants; (3) allow the department to issue new commercial use
permits by public auction; and (4) allow the department to use the public
auction process to reduce commercial use permit counts in ocean recreation
management areas or state boating facilities where an applicable permit limit
is exceeded.
SECTION 2. Section 200-10, Hawaii Revised Statutes, is
amended to read as follows:
"§200-10 Permits and fees for state small boat
harbors[;], coastal areas, and ocean waters; permit transfers. (a) No
person shall moor a vessel in a state small boat harbor without:
(1) First
obtaining [a use permit] written authorization from the
department; [and]
(2) Being
the owner of the vessel[.]; and
(3) Paying appropriate fees set by subsection (c).
(b) In
order to obtain [a] any use permit or [a] use
permit renewal, the owner of a vessel shall provide, at the owner's own
expense:
(1) A
marine surveyor's inspection or a vessel inspection by the department, no more
than two years old, certifying that the vessel has been inspected and fulfills
the requirements set by the department;
(2) Documentation
that the person is the owner of the vessel.
The documentation shall meet requirements established by the department;
and
(3) Satisfactory
proof that the person has attained the age of eighteen years prior to obtaining
[a] any use permit or being placed on the waitlist for [a]
any use permit.
(c) [The] A permittee shall pay [moorage]
fees to the department for [the] a use permit that shall be based
on but not limited to the [use of the vessel, the vessel's effect on the
harbor, use of facilities, and the cost of administering the mooring program;]
impact of the permitted activity on natural resources, impact of the
activity on public access to and use of state boating facilities and waters of
the State, and the cost of administering the small boat harbor and coastal
areas programs; provided that:
(1) Except
for commercial maritime activities in which a tariff is established by the
department of transportation, moorage fees shall be established by appraisal by
a state-licensed appraiser approved by the department;
(2) For
commercial maritime activities in which a tariff is established by the harbors
division of the department of transportation, the department may adopt the
published tariff of the harbors division of the department of transportation or
establish the moorage fee by appraisal by a state-licensed appraiser approved
by the department;
(3) An
application fee shall be collected when applying for [moorage in state small
boat harbors] any use permit and shall thereafter be collected
annually when the application is renewed; provided that the application fee
shall be set by the department;
(4) If
a recreational vessel is used as a place of principal habitation, the permittee
shall pay, in lieu of the moorage fee required by paragraph (1), a monthly
liveaboard fee that shall be two times the moorage fee that would otherwise be
assessed for a vessel of the same size;
(5) If
[a vessel is used for commercial purposes from the vessel's permitted mooring,]
the permittee is engaging in commercial activity, the permittee shall
pay[, in lieu of the moorage fee required by paragraph (1),] a monthly
fee that shall be the greater of:
(A) [Three]
Six per cent of the gross revenues derived from [the use of the
vessel;] the permitted activity; or
(B) [$1.50]
For vessel-based commercial activity:
(i) Six per cent of the gross revenues
derived from the use of the vessel; and
(ii) $3.00
per passenger carried for hire; or
(C) [Two
times the moorage fee that would otherwise
be assessed for a recreational vessel of the same size;]
$2,000;
If a permittee is using a vessel for commercial purposes from the
vessel's permitted mooring, the fee required by this paragraph shall be in lieu
of the fee required by paragraph (1) for that vessel;
(6) The
department is authorized to assess and collect utility fees, including, but
not limited to, electrical and water charges, and common-area maintenance
fees in state small boat harbors; and
(7) All
fees established by appraisal pursuant to this subsection shall be set at fair
market value.
(d) The department shall not renew or issue [a]
any use permit to a person who is not the owner of the vessel [which] that is moored or [which]
that the person desires to moor in a state small boat harbor. No use permit may be transferred unless
specifically provided by law. Any
individual who is an owner of a vessel used for commercial purposes, including
commercial fishing as a principal means of livelihood, and who possesses
a valid [mooring] commercial use permit [or commercial permit,
or both,] in accordance with the rules adopted by the chairperson pursuant
to chapter 91, may transfer ownership of the vessel from personal ownership to
corporate or other business ownership without terminating the right to moor or
operate the vessel under the commercial use permit [or permits]. [The] Any existing use
permit or permits held by the transferring individual shall be reissued
in the name of the transferee corporation or other business entity.
(e) For the purposes of this section,
"person" means any individual, firm, partnership, corporation, trust,
association, joint venture, organization, institution, or any other legal
entity, and "owner" includes the legal owner of a vessel where there
is no security interest held by anyone on the vessel, a buyer under a purchase
money security interest, a debtor under any security interest, a demise
charterer of a vessel, or a lessee or charterer of a vessel under a lease or
charter which provides the lessee or charterer with exclusive right to
possession of the vessel to the exclusion of the lessor or the person from whom
the vessel is chartered.
"Controlled group" means parent-subsidiary corporations,
brother-sister corporations, or constructive owner. "Transfer" includes any change in
control, by whatever means, of any entity that owns or controls, directly or
indirectly, a use permit. No permittee
shall be allowed to moor a leased vessel in a berth unless the terms of the
lease are set at fair market value. A
"legal owner" includes a person who holds unencumbered title to a
vessel or is a secured party under a security interest in the vessel. An owner who is issued a mooring
permit [to moor a vessel in a state small boat harbor] shall notify the
department in writing of a transfer of interest or possession in the vessel
within seven days of transfer.
(f) [Any person who owns an interest in a
corporation or other business entity or is part of a controlled group
possessing a valid] No commercial use permit issued by the
department[, in accordance with rules adopted by the chairperson pursuant to
chapter 91, may transfer any or all stock or other interest to another person
without terminating the right of the corporation or business entity to retain
or renew its commercial permit or any other permit issued to it by the
department; provided that:] shall be transferable, such that whenever a
permittee transfers any interest in the commercial use permit, or whenever any
person who owns an interest in a business entity or who is part of a controlled
group possessing a valid commercial use permit transfers any interest to
another person, the commercial use permit shall automatically terminate, and
both the transferor and transferee shall have no right to use the commercial
use permit; provided that any person who owns an interest in a business entity
or who is part of a controlled group possessing a valid commercial use permit
may transfer the person's interest only to a spouse or first-generation lineal
descendant without automatically terminating the commercial use permit;
provided further that
[(1) The corporation or] the business entity has been engaged
in the same commercial vessel activity, as defined in section 200-9, for a
minimum of one year[;
(2) The seller shall pay the department a business transfer fee based on
the passenger-carrying capacity of the vessels owned or operated by the
corporation or business entity as provided by rules adopted by the chairperson
pursuant to chapter 91, except for transfers of stock or interest in a
corporation or other business entity between spouses or first-generation lineal
descendants; and
(3) In the case of a controlled group, the transferee shall retain eighty
per cent control of the transferor].
Any person
possessing a commercial use permit shall be required to meet minimum
revenue standards[,] as set forth in rules adopted by the department
pursuant to chapter 91, as a condition of retaining or renewing the
commercial use permit.
When an
application for renewal of a commercial use permit is made at least
sixty days prior to expiration of the commercial use permit, the
department shall review the application and, within thirty days of receipt of
the application, shall renew the commercial use
permit or notify the applicant that the application is incomplete or cannot be
renewed and explain any reasons for nonrenewal.
Within thirty days of receipt of the applicant's amended application,
the department shall either renew the commercial use permit or notify
the applicant that the commercial use permit will not be renewed.
If [the holder
of] a commercial [permit] use permittee fails to timely [obtain
renewal of a] renew their commercial use permit, the [holder
of the permit shall automatically be granted a] permittee may make a
written request to the department for a one-time thirty-day extension from
the date of the existing commercial use permit's expiration to obtain a commercial
use permit renewal. Any such
extension request must be received by the department no later than the
expiration date of the commercial use permit.
(g) The department may designate moorage space
within state small boat harbors to accommodate commercial fishing vessels and
transient vessels.
(h) Except as provided in section 200-37(l), all
new commercial use permits issued for commercial ocean recreation activity
occurring in an ocean recreation management area, as defined by law or rule,
that are not renewals of commercial use permits shall be issued by unsealed
public auction.
Within
an ocean recreation management area or state boating facility where the
department has implemented rules setting a limit on the number of commercial
use permits that can be issued at any one time, if the number of commercial use
permits issued exceeds the relevant limit, all existing permittees for the area
or facility shall be disallowed from renewing their commercial use permits, and
the department shall issue new commercial use permits for the area or facility
by unsealed public auction up to the relevant limit; provided that only
existing commercial use permittees for the area or facility who are otherwise
in compliance with existing commercial use permit terms may participate in the
auction.
(i) The department may immediately suspend or
revoke a commercial use permit without a hearing for
any activity that endangers or may endanger the health or safety of passengers
or the public, and the department may suspend or revoke a commercial use permit
for violation of any rules of the department if, after seventy-two hours notice
by the department of the violation, the permittee fails to cure the violation;
provided that the permittee shall have five working days from delivery of the
notice of suspension or revocation to request in writing an administrative
hearing. Unless the notice of suspension
or revocation is returned undeliverable, it shall be deemed delivered no later
than five working days after mailing.
The administrative hearing shall be solely for the purpose of allowing
the permittee to contest the basis for the suspension or revocation of the
commercial use permit. The hearing shall
be held within ten working days of the department's receipt of the written
request. The chairperson may adopt rules
pursuant to chapter 91 to implement the procedures governing the administrative
hearing process. Within ten working days
after the conclusion of the hearing, the department shall either:
(1) Lift the suspension;
(2) Continue the suspension of the commercial use permit for up to one
year from the date of conclusion of the hearing; or
(3) Revoke the commercial use permit."
SECTION
3. This Act does not affect rights and
duties that matured, penalties that were incurred, and proceedings that were
begun before its effective date.
SECTION 4. Statutory material to be repealed is
bracketed and stricken. New
statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.
INTRODUCED BY: |
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BY REQUEST |
Report Title:
Ocean Recreation Commercial Use Permits; Unsealed Public Auction
Description:
Specifies that the Department of Land and Natural Resources can issue new ocean recreation commercial use permits by unsealed public auction. Revises provisions relating to boating and ocean recreation fees and permits. Specifies how commercial use permits may be issued where a permit limit has been exceeded.
The summary description
of legislation appearing on this page is for informational purposes only and is
not legislation or evidence of legislative intent.