Bill Text: HI SB791 | 2021 | Regular Session | Amended
Bill Title: Relating To Vessels.
Spectrum: Moderate Partisan Bill (Democrat 7-1)
Status: (Passed) 2021-07-07 - Act 218, on 07/06/2021 (Gov. Msg. No. 1346). [SB791 Detail]
Download: Hawaii-2021-SB791-Amended.html
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THE SENATE |
S.B. NO. |
791 |
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THIRTY-FIRST LEGISLATURE, 2021 |
S.D. 1 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO VESSELS.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that vessel ownership and operation come with many responsibilities and that vessels likewise pose significant threats to natural resources and to public health and safety if abandoned, neglected, or left in disrepair. The legislature recognizes that unauthorized, abandoned, grounded, and derelict vessels on state property and in waters of the State must be removed as soon as possible to minimize the hazards they pose to the public while balancing the vessel owner's right to due process.
Since 2002, the division of boating and ocean recreation within the department of land and natural resources has expended in excess of $2,340,000 from the boating special fund to address unauthorized, abandoned, grounded, and derelict vessels on state property or in the waters of the State. However, under existing law, in many instances, by the time the department of land and natural resources can begin removing an unauthorized, abandoned, grounded, or derelict vessel, the condition of the vessel has deteriorated, further complicating removal efforts and increasing the potential to create threats to public health, safety, and natural resources.
The purpose of this Act is to amend provisions regarding the designation, impoundment, and disposal of unauthorized, abandoned, grounded, and derelict vessels on state property or in the waters of the State to facilitate faster responses of these proceedings.
SECTION 2. Section 200-16, Hawaii Revised Statutes, is amended to read as follows:
"§200-16 [Mooring of
unauthorized vessel in state small boat harbors and offshore mooring areas;]
Unauthorized vessels; impoundment and disposal proceedings. (a) [No
person shall moor a vessel in a state small boat harbor or offshore mooring
area without obtaining a use permit; nor shall a person continue to moor a vessel
in any state small boat harbor or offshore mooring area if the use permit
authorizing the vessel to moor has expired or otherwise been terminated.] A vessel moored without a valid use
permit or moored with a use permit that has expired or been terminated [is]
shall be deemed an unauthorized vessel [and is subject to] in
violation of this section[.] and shall be subject to impoundment
and disposal.
(b)
The department shall [cause to be placed] place
upon, or as near to [the] an unauthorized vessel as possible, a notice
to remove the vessel, which shall, at a minimum, indicate that
the vessel is in violation of this section, the date and time the notice was
posted, and that the vessel must be removed within
seventy-two hours from the time the notice was posted[.]; provided
that if the vessel is in imminent danger of breaking up on state submerged
land, a shoreline, or a coral reef, the notice shall indicate that the owner
must commence effective salvage operations within twenty-four hours from the
time the notice was posted.
(c) An unauthorized vessel may be impounded by
the department at the sole risk and expense of the owner of the vessel[,]
if the vessel is not removed after the [seventy-two-hour] period [or]
specified in subsection (b).
Calculation of the time period shall not restart if, during
that period, the vessel is [removed and remoored in the harbor or
mooring or anchorage area or any other state harbor or mooring or anchorage
area without a use permit.] moved anywhere in the waters of the State or
to any public property and remains in violation of this section. The owner of the vessel shall be solely
responsible for all costs of the impoundment and the disposal of the unauthorized
vessel. All owners of unauthorized
vessels that are impounded by the department shall be responsible for paying
impound storage fees to the department while the vessel remains impounded and
until the time that the vessel is returned to the custody of a person entitled
to possession. Impound
storage fees shall be equal to the rate set by the department for vessels
moored without a valid permit. Any proceeds [resulting from] collected
by the department in relation to the impoundment and the disposal of the
unauthorized vessel shall be used first to pay for the costs of impoundment
and disposal [and], then to pay for any additional
costs related to the impoundment and disposal, then to pay for any outstanding
mooring fees due[.] to the department from the owner, then to the
general fund. If the proceeds
resulting from the impoundment and the disposal are inadequate to pay for all
costs and mooring fees due, the owner of the unauthorized vessel shall
remain liable for [the] paying the department any and all
outstanding costs and mooring fees[.] due.
(d)
Custody of an unauthorized vessel shall be returned to the person
entitled to possession only upon payment [to the department] in
full of all fees and costs due[,] to the department and any
and all fines levied by the department or a court[.] of competent
jurisdiction. In addition, the
department, within seventy-two hours of impoundment, shall send by certified
mail, return receipt requested, a notice of impoundment to the registered or
documented owner or any lien holder or operator of the impounded vessel on
record with the department or the United States Coast Guard. The owner, lien holder, or operator of the
impounded vessel shall have [ten] five working days after receipt
of notice of impoundment of the vessel to request [in writing] an
administrative hearing. [This] A
request for an administrative hearing [is] shall be made in
writing to the department, shall not be deemed delivered until the time that
the department receives the written request, and shall be solely for the
purpose of allowing the owner, lien holder, or operator of an impounded vessel
to contest the basis given by the department for the impoundment of the
vessel. The administrative hearing
must be held within five working days of [the department's receipt] delivery
of the written request. The department [shall]
may adopt rules pursuant to chapter 91 to implement the requirement for
this post-seizure administrative hearing process.
(e)
Any unauthorized vessel impounded under this section, which remains
unclaimed for more than [thirty] ten working days by the registered
or documented owner, a lien holder, or operator of record, may be sold by the
department at public auction. If the
department does not or is unable to sell the vessel at public auction, [or
if its appraised value is less than $5,000 as determined by an independent
appraiser with at least one year of experience in the sale and purchase of
vessels,] the department, after giving public notice of intended
disposition, if that notice was not previously included in a public
auction notice, may sell the vessel by negotiation, retain and use the vessel,
donate it to any other government agency, or dispose of it as junk."
SECTION 3. Section 200-41, Hawaii Revised Statutes, is amended to read as follows:
"§200-41 [Disposition of
certain abandoned] Abandonment of vessels. (a)
No person shall abandon any vessel upon the waters of the State or on
any property, other than the property of the vessel owner, without the consent
of the property owner.
[(a)] (b) [Any] A vessel [may
be deemed] shall be presumed abandoned if [the]:
(1) The vessel
has been moored, anchored, or otherwise left unattended in the
waters of the State or on public property [contrary to law or rules having
the force and effect of law, or left] for more than seventy-two hours without
a valid use permit;
(2) The vessel has
been left unattended on private property without authorization of the owner
or occupant of the property [if:
(1) The vessel's registration certificate or
marine document has expired and the registered owner no longer resides at the
address listed in the vessel registration or marine document records of the
department or the United States Coast Guard;] for more than seventy-two
hours;
[(2)] (3) The
last registered owner of record disclaims ownership and the current owner's
name or address cannot be determined;
[(3) The vessel identification numbers and other
means of identification have been removed so as to hinder or nullify efforts to
locate or identify the owner;
(4) The vessel registration records of the department
of land and natural resources and the marine document records of the United
States Coast Guard contain no record that the vessel has ever been registered
or documented and the owner's name or address cannot be determined; or]
(4) The vessel does not have a valid
registration certificate or United States Coast Guard documentation and has
been moored, anchored, or otherwise left unattended in the waters of the State
or on public property for more than seventy-two hours; or
(5) The requirements of section 200-52 are met.
[(b)]
(c) The determination of
whether a vessel is abandoned on public property may be made by:
(1) The chairperson, or the chairperson's
authorized representative, with regard to public property under the
jurisdiction of the department of land and natural resources; [or]
(2) Any other state department or agency through
its director, with regard to public property within the department or agency's
respective jurisdiction; or
(3) Any county through its mayor or the mayor's
designee, or chief of police, with regard to public property within the
respective county's jurisdiction; provided that the department shall provide to
the respective county access to the department's vessel registration and marine
document records or those of the United States Coast Guard for the purposes of
this section.
Once a vessel is deemed abandoned[,]
in the waters of the State or on public property, the appropriate
official under this subsection may direct and cause the vessel to be taken into
custody and disposed of pursuant to and in the manner provided in this [chapter.]
part. All owners of abandoned vessels
that are impounded by the department shall be responsible for paying impound
fees to the department while the vessel remains impounded and until the vessel
is returned to the custody of a person entitled to possession or disposed of by
the department. Impound storage fees
shall be equal to the rate set by the department for vessels moored without a
valid permit.
[(c)]
(d) All vessels abandoned on private
property shall be the responsibility of the private property owner.
(e) Any person who abandons a vessel in the waters of the State or on public property shall be guilty of a petty misdemeanor and shall be fined not more than $1,000 or imprisoned not more than thirty days, or both, for each offense. Each day of each violation shall be deemed a separate offense. All criminal fines collected pursuant to this subsection shall be deposited in the general fund in accordance with section 706‑643. It shall be an affirmative defense to prosecution that a vessel was abandoned during a national emergency declared by the President or Congress of the United States, or a state of emergency declared by the governor, or as otherwise approved in writing by the chairperson; provided that the defense shall be valid only for the duration of the declared emergency or written approval."
SECTION 4. Section 200-42, Hawaii Revised Statutes, is amended to read as follows:
"§200-42 Notice to owner. A state or county agency,
upon taking custody of any vessel[,] deemed abandoned pursuant to
section 200-41, shall immediately post a written notice on the vessel and
send a duplicate original by registered or certified mail, with a return
receipt requested, to any owner registered with the department or documented by
the United States Coast Guard or any lien holder or operator of the vessel on
record with the department or the United States Coast Guard at their respective
last known address on record with the department or the United States Coast
Guard. The notice shall contain a brief
description of the vessel, the location of custody, and the intended
disposition of the vessel if not repossessed within [twenty] ten
working days after the mailing of the notice. [Such owner, lien holder, or operator, of
the vessel shall have ten days after receipt of the mailed notice to request in
writing an administrative hearing pursuant to chapter 91 from the state or
county agency that took custody of the vessel.
This administrative hearing is solely for the purpose of allowing the
owner, lien holder, or operator of an impounded vessel to contest the basis
given for the impoundment of the vessel.
The hearing shall be held within five working days of the state or
county agency's receipt of the written request.] The
owner, lien holder, or operator of the vessel shall have five working days
after receipt of notice of impoundment of the vessel to request an administrative
hearing from the state or county agency that took custody of the vessel. A request for administrative hearing shall be
made in writing to the state or county agency that took custody of the vessel,
shall not be deemed delivered until the time that the agency receives the
written request, and shall be solely for the purpose of allowing the owner,
lien holder, or operator of an impounded vessel to contest the basis given by
the agency for the impoundment of the vessel.
The administrative hearing shall be held within five working days of
delivery of the written request."
SECTION 5. Section 200-43, Hawaii Revised Statutes, is amended to read as follows:
"§200-43 Public auction[.];
disposition of abandoned vessels.
[If the vessel is not repossessed within twenty days after the
mailing of the notice, the vessel shall be disposed of by public auction,
through oral tenders, or by sealed bids, after public notice has been given at
least once; provided that the public auction shall not be held less than five
days after the notice is given. Where no
bid is received, the vessel may be sold by negotiation, disposed of as junk, or
donated to any governmental agency.] Any abandoned vessel impounded
under this part that remains unclaimed by the registered or documented owner,
lien holder, or operator of record for more than ten working days after mailing
of the notice required by section 200-42 may be sold at public auction by the
state or county agency that took custody of the vessel. If the agency does not or is unable to sell
the vessel at public auction, the agency, after giving public notice of
intended disposition may sell the vessel by negotiation, retain and use the
vessel, donate the vessel to any other government agency, or dispose of the
vessel as junk."
SECTION 6. Section 200-47.5, Hawaii Revised Statutes, is amended by amending subsections (b) to (g) to read as follows:
"(b) Solely for the purposes of removal and with
no liability to the department, the department may immediately
assume control of any vessel that is grounded on state submerged land, a
shoreline, or a coral reef [or] that is
in imminent danger of breaking up and cannot be removed by
the owner within twenty-four hours from the time the vessel is grounded; provided that
this subsection shall not apply [if]:
(1) During a
national emergency declared by the President or Congress of the United States;
(2) During a state
of emergency declared by the governor;
(3) If the
owner or owner's representative has received notice from the department and has
commenced effective salvage operations[.]; or
(4) If otherwise approved
by the chairperson.
(c)
[Vessels] Except during a national emergency declared by the President
or Congress of the United States, or a state of emergency declared by the governor,
or as otherwise approved in writing by the chairperson, vessels grounded on
a sand beach, sandbar, or mudflat [and not in imminent danger of breaking up]
shall be removed by the owner or operator within seventy-two hours[, unless
otherwise agreed to by the department].
(d) Solely
for the purposes of removal and with no liability to the department, the
department may immediately assume control of any vessel grounded on a sand beach, sandbar, or mudflat and not in imminent
danger of breaking up that is not removed by the owner in a manner that is
reasonably safe, as determined by the department, within seventy-two hours of
notification to the vessel owner or the owner's representative; provided that
this subsection shall not apply [if]:
(1) During a
national emergency declared by the President or Congress of the United States;
(2) During a state
of emergency declared by the governor;
(3) If the
owner or owner's representative has received notice from the department and has
commenced effective salvage operations[.]; or
(4) If otherwise
approved by the chairperson.
(e) Once the department assumes control [over
the] of a vessel[,] pursuant to this section, the
vessel shall be removed by conventional salvage methods if possible, and if not
possible then by any means necessary[,] to minimize damage to the
natural resources and not become a hazard to navigation.
(f) All costs and expenses [of] related
to removing the vessel and damage to state or private property shall be the
sole responsibility of the vessel's owner or operator. The department may take legal action to collect
any costs or expenses incurred by the department for any removal under this
section. All moneys collected shall be
deposited in the boating special fund.
(g) Any person who renders assistance to the department
when it acts pursuant to subsection (b) or (c) and any person who, in good
faith and without remuneration or expectation of remuneration, renders assistance
at the scene of a vessel:
(1) Grounded
on state submerged land, a shoreline, or a coral reef;
(2) In
imminent danger of breaking up; or
(3) Grounded on a sand
beach, sandbar, or mudflat [and not in imminent danger of breaking up],
shall not be liable for any civil damages resulting from the
person's acts or omissions in providing or arranging towage or other
assistance, except for damages caused by the person's gross negligence or
wanton acts or omissions."
SECTION 7. Section 200-49, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:
"(b) The owner, lien holder, or operator of the vessel
shall have [ten] five working days after the date of the public
notice or receipt of the mailed notice, whichever occurs later, to request [in
writing] an administrative hearing. [This] A request for an
administrative hearing [is] shall be made in writing to the department,
shall not be deemed delivered until the time that the department receives the
writing request, and shall be solely for the purpose of allowing the owner,
lien holder, or operator of [an] the impounded vessel to contest
the basis given by the department for the impoundment of the vessel. The administrative hearing must be
held within five working days of [the department's receipt] delivery
of the written request.
(c)
If the vessel is not repossessed within [twenty] ten working
days after the date of the public notice or mailing of the notice, whichever
occurs later, the vessel may be disposed of by negotiated sale except that,
when two or more purchasers indicate an interest in purchasing the vessel, the
vessel will be sold at public auction to the highest bidder[, unless the
vessel is exempt from public auction under section 200-45]. If no purchaser expresses a desire to
purchase the vessel, the vessel may be destroyed or donated to any governmental
agency."
SECTION 8. Section 200-45, Hawaii Revised Statutes, is repealed.
["§200-45
When public auction not required.
Public auction shall not be required when
the appraised value of any vessel is less than $5,000, as determined by an
independent appraiser who has at least one year of experience in the sale or
purchase of vessels. Upon that
determination, after public notice of intended disposition has been given at
least once, the state or county agency that took custody of the vessel may sell
the vessel by negotiation, dispose of it as junk, or donate the vessel to any
governmental agency."]
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect upon its approval.
Report Title:
Unauthorized Vessels; Grounded Vessels; Abandoned Vessels; Derelict Vessels; Vessel Impoundment; Vessel Auctions; Vessel Disposal
Description:
Clarifies removal of unauthorized vessels on state property or in the waters of the State. Clarifies the definition of an "abandoned vessel". Reduces the time limit to claim an unauthorized vessel that is impounded by the department of land and natural resources from thirty days to ten working days. Reduces the time limit to claim an abandoned vessel that is impounded by a state or county agency from twenty days to ten working days. Makes abandonment of a vessel on waters of the State or public property a petty misdemeanor. Clarifies auction requirements regarding abandoned vessels. Allows DLNR to charge an impound storage fee. (SD1)
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