HB736

PART I

SECTION 1. The legislature finds that small boat harbors, originally under the jurisdiction of the department of transportation, were transferred to the department of land and natural resources by Act 272, Session Laws of Hawaii 1991. This occurred in part because virtually all small boat harbor fees were for noncommercial boats and the small boat harbors did not generate sufficient revenues. However, with the passage of time, conditions at the small boat harbors have changed. The small boat harbor facilities have deteriorated and there is an increase in commercial businesses in the harbors that pay higher fees. The legislature finds that to ensure the best management and use of the small boat harbors, a change in jurisdiction is again necessary. Accordingly, the purpose of this Act is to reverse the jurisdictional transfer of the small boat harbors and related areas to the department of land and natural resources back to the department of transportation.

PART II

SECTION 2. Chapter 266, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§266- Definitions. As used in this chapter, unless the context otherwise requires:

"Beaches encumbered with easements in favor of the public" means any lands which lie along the shores of the State that are now, or may hereafter be, encumbered by easements granted in favor of the public for bathing, swimming, or other similar or related purposes and for foot passage.

"Commercial harbor" means a harbor or off-shore mooring facility which is primarily for the movement of commercial cargo, passenger and fishing vessels entering, leaving, or traveling within the state, and facilities and supporting services for loading, off-loading, and handling of cargo, passengers, and vessels.

"Ocean waters" means all waters seaward of the shoreline within the jurisdiction of the State.

"Shoreline" means the upper reaches of the wash of the waves, usually evidenced by the edge of vegetation growth or by the upper limit of debris left by the wash of the waves."

SECTION 3. Section 26-15, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) The department shall manage and administer the public lands of the State and minerals thereon [~~and all water and coastal areas of the State except the commercial harbor areas of the State~~], including the soil conservation function, the forests and forest reserves, aquatic life, wildlife resources, and state parks, including historic sites[~~, and all activities thereon and therein including, but not limited to, boating, ocean recreation, and coastal areas programs~~]."

SECTION 4. Section 171-3, Hawaii Revised Statutes, is amended to read as follows:

"§171-3 Department of land and natural resources. The department of land and natural resources shall be headed by an executive board to be known as the board of land and natural resources. The department shall manage, administer, and exercise control over public lands, the water resources, [~~ocean waters, navigable streams, coastal areas (excluding commercial harbor areas),~~] and minerals and all other interests therein and exercise such powers of disposition thereof as may be authorized by law. The department shall also manage and administer the state parks, historical sites, forests, forest reserves, aquatic life, aquatic life sanctuaries, public fishing areas, [~~boating, ocean recreation, coastal programs,~~] wildlife, wildlife sanctuaries, game management areas, public hunting areas, natural area reserves, and other functions assigned by law."

SECTION 5. Section 200-1, Hawaii Revised Statutes, is amended as follows:

1. By adding a new definition to be appropriately inserted and to read:

""Director" means the director of transportation."

2. By amending the definition of "department" to read: ""Department" means the department of [~~land and natural resources.~~] transportation."

3. By repealing the definitions of "board" and "chairperson".

["~~"Board" means the board of land and natural resources.~~

~~"Chairperson" means the chairperson of the board of land and natural resources.~~"]

SECTION 6. Section 200-2, Hawaii Revised Statutes, is amended to read as follows:

"§200-2 [~~Board of land and natural resources,~~] Department of transportation; powers and duties. The [~~board~~] department shall have the primary responsibility for administering the ocean recreation and coastal areas programs and performing the functions heretofore performed by the department of [~~transportation~~] land and natural resources and the department of public safety in the areas of boating safety, conservation, search and rescue, and security of small boat harbor environs."

SECTION 7. Section 200-2.5, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Notwithstanding any law to the contrary, the [~~board~~] department may lease fast lands within an existing state boating facility by a public auction or by direct negotiation pursuant to section 171-59, for private development, management, and operation[.]; provided that the director shall make the finding of public interest and otherwise administer the negotiation process. For the purpose of this section, the term "state boating facility" means a state small boat harbor, launching ramp, offshore mooring, pier, wharf, landing, or any other area under the jurisdiction of the department pursuant to this chapter."

SECTION 8. Section 200-3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§200-3[]] Ocean recreation and coastal areas programs. The [~~board~~] department shall assume the following functions of the department of [~~transportation:~~] land and natural resources:

(1) Managing and administering the ocean-based recreation and coastal areas programs of the State;

(2) Planning, developing, operating, administering, and maintaining small boat harbors, launching ramps, and other boating facilities and associated aids to navigation throughout the State;

(3) Developing and administering an ocean recreation management plan;

(4) Administering and operating a vessel registration system for the State;

(5) Regulating the commercial use of boating facilities;

(6) Regulating boat regattas and other ocean water events;

(7) Administering a marine casualty and investigation program;

(8) Assisting in abating air, water, and noise pollution;

(9) Conducting public education in boating safety;

(10) Administering the boating special fund;

(11) Assisting in controlling shoreline erosion;

(12) Repairing seawalls and other existing coastal protective structures under the jurisdiction of the State; and

(13) Removing nonnatural obstructions and public safety hazards from the shoreline, navigable streams, harbors, channels, and coastal areas of the State."

SECTION 9. Section 200-18, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The department shall maintain a record of all persons adjudicated of violations under part III of chapter 291E and the period of suspension or revocation of operator privileges ordered by the [~~director~~] administrative director of the courts under that part."

SECTION 10. Section 205A-48, Hawaii Revised Statutes, is amended to read as follows:

"§205A-48 Conflict of other laws. In case of a conflict between the requirements of any other state law or county ordinance regarding shoreline setback lines, the more restrictive requirements shall apply in furthering the purposes of this part. Nothing contained in this part shall be construed to diminish the jurisdiction of the state department of transportation over wharves, airports, docks, piers, small boat or other [~~commercial~~] harbors, and any other maritime or water sports recreational facilities constructed by the State; provided that [~~such~~] plans for such construction are submitted for the review and information of the officer of the respective agency charged with the administration of the county zoning laws, and found not to conflict with any county ordinances, zoning laws, and building codes."

SECTION 11. Section 248-8, Hawaii Revised Statutes, is amended to read as follows:

"§248-8 Special funds in treasury of State. There are created in the treasury of the State three special funds to be known, respectively, as the state highway fund, the airport revenue fund, and the boating special fund. All taxes collected under chapter 243 in each calendar year, except the "county of Hawaii fuel tax", "city and county of Honolulu fuel tax", "county of Maui fuel tax", and "county of Kauai fuel tax", shall be deposited in the state highway fund; provided that:

(1) All taxes collected under chapter 243 with respect to gasoline or other aviation fuel sold for use in or used for airplanes shall be set aside in the airport revenue fund; and

(2) All taxes collected under chapter 243 with respect to liquid fuel sold for use in or used for small boats shall be deposited in the boating special fund.

As used in this section, "small boats" means all vessels and other watercraft except those operated in overseas transportation beyond the State, and ocean-going tugs and dredges. The [~~chairperson of the board of land and natural resources,~~] director of transportation, from July 1, [~~1992,~~] 2008, and every three years thereafter, shall establish standards or formulas that will as equitably as possible establish the total taxes collected under chapter 243 in each fiscal year that are derived from the sale of liquid fuel for use in or used for small boats. The amount so determined shall be deposited in the boating special fund.

An amount equal to 0.3 per cent of the highway fuel tax but not more than $250,000 collected under chapter 243 shall be allocated each fiscal year to the special land and development fund for purposes of the management, maintenance, and development of trails and trail accesses under the jurisdiction of the department of land and natural resources established under section 198D-2."

SECTION 12. Section 266-1, Hawaii Revised Statutes, is amended to read as follows:

"§266-1 Department of transportation; harbors; jurisdiction. All [~~commercial~~] harbors and roadsteads[,] and all [~~commercial~~] harbor and waterfront improvements belonging to or controlled by the State, [~~and~~] all vessels and shipping within the [~~commercial~~] harbors and roadsteads, waters, and streams shall be under the care and control of the department of transportation.

[For the purpose of this chapter, "commercial harbor" means a harbor or off-shore mooring facility which is primarily for the movement of commercial cargo, passenger and fishing vessels entering, leaving, or travelling within the State, and facilities and supporting services for loading, off-loading, and handling of cargo, passengers, and vessels.]"

SECTION 13. Section 266-2, Hawaii Revised Statutes, is amended to read as follows:

"§266-2 Powers and duties of department. (a) The department of transportation shall:

(1) Have and exercise all the powers and shall perform all the duties which may lawfully be exercised by or under the State relative to the control and management of [~~commercial~~] the shores, shore waters, navigable streams, harbors, [~~commercial~~] harbor and waterfront improvements, ports, docks, wharves, piers, quays, bulkheads, and landings belonging to or controlled by the State, and the shipping using the same;

(2) Have the authority to use and permit and regulate the use of the [~~commercial~~] docks, wharves, piers, quays, bulkheads, and landings belonging to or controlled by the State for receiving or discharging passengers and for loading and landing merchandise, with a right to collect wharfage and demurrage thereon or therefor;

(3) Subject to all applicable provisions of law, have the power to fix and regulate from time to time rates and charges for:

(A) Services rendered in mooring [~~commercial~~] vessels;

(B) The use of [~~commercial~~] moorings belonging to or controlled by the State;

(D) Warehouse space, office space, and storage space for freight, goods, wares, and merchandise; and

(E) The use of derricks or other equipment belonging to the State or under the control of the department;

(4) Make other charges, including toll or tonnage charges on freight passing over or across docks, wharves, piers, quays, bulkheads, or landings;

(5) Appoint and remove clerks, harbor agents and their assistants, and all such other employees as may be necessary, and to fix their compensation;

(6) Adopt rules pursuant to chapter 91 and not inconsistent with law; and

(7) Generally have all powers necessary to fully carry out this chapter.

(b) Notwithstanding any law or provision to the contrary, the department of transportation [~~is authorized to~~] may plan, construct, operate, and maintain any [~~commercial~~] harbor facility in the State, including[,] but not limited to[,] the acquisition and use of lands necessary to stockpile dredged spoils, without the approval of county agencies.

All moneys appropriated for [~~commercial~~] harbor improvements, including new construction, reconstruction, repairs, salaries, and operating expenses, shall be expended under the supervision and control of the department, subject to this chapter and chapter 103D.

All contracts and agreements authorized by law to be entered into by the department shall be executed on its behalf by the director of transportation.

(c) The department shall prepare and submit annually to the governor a report of its official acts during the preceding fiscal year, together with its recommendations as to [~~commercial~~] harbor improvements throughout the State."

SECTION 14. Section 266-3, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) The director of transportation may adopt rules as necessary to:

(1) Regulate the manner in which all vessels may enter and moor, anchor or dock in the [~~commercial~~] ocean waters, navigable streams, harbors, ports, and roadsteads of the State, or move from one dock, wharf, pier, quay, bulkhead, landing, anchorage, or mooring to another within the [~~commercial~~] waters, streams, harbors, ports, or roadsteads;

(2) The examination, guidance, and control of harbor masters and their assistants and their conduct while on duty;

(3) The embarking or disembarking of passengers;

(4) The expeditious and careful handling of freight, goods, wares, and merchandise of every kind which may be delivered for shipment or discharged on the [~~commercial~~] docks, wharves, piers, quays, bulkheads, or landings belonging to or controlled by the State; and

(5) Defining the duties and powers of carriers, shippers, and consignees respecting passengers, freight, goods, wares, and merchandise in and upon the docks, wharves, piers, quays, bulkheads, or landings within the [~~commercial~~] harbors, ports, and roadsteads of the State. The director may also make further rules for the safety of the docks, wharves, piers, quays, bulkheads, and landings on, in, near, or affecting [a ~~commercial~~] ocean waters, navigable streams, and harbor and waterfront improvements belonging to or controlled by the State.

(b) The director may also adopt, amend, and repeal such rules as are necessary:

(1) For the proper regulation and control of all shipping in the [~~commercial~~] harbors belonging to or controlled by the State, and of the entry, departure, mooring, and berthing of vessels therein, and for the regulation and control of all other matters and things connected with such shipping[;] in all the harbors, ocean waters, and navigable streams;

(2) To prevent the discharge or throwing into [~~commercial~~] harbors, ocean waters, and navigable streams, of rubbish, refuse, garbage, or other substances likely to affect water quality or that contribute to making such harbors, ocean waters, and navigable streams unsightly, unhealthful, or unclean, or that are liable to fill up shoal or shallow waters in, near, or affecting the [~~commercial~~] harbors[~~; and~~], ocean waters, and navigable streams; and

(3) To prevent the escape of fuel or other oils or substances into the waters in, near, or affecting [~~commercial~~] harbors, ocean waters, and navigable streams, from any source point, including[,] but not limited to[,] any vessel or pipes or storage tanks upon the land[.]; and

(4) To effectuate the purposes of chapter 200."

SECTION 15. Section 266-21.4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The department shall:

(1) [~~develop~~] Develop a list of minimum requirements for the marine inspection of vessels seeking permits to moor in state [~~commercial~~] harbors[,];

(2) [~~approve~~] Approve qualified marine surveyors to inspect vessels seeking permits to moor in state [~~commercial~~] harbors[,]; and

(3) [~~approve~~] Approve a fee schedule for marine surveyors' inspections."

SECTION 16. Section 266-24, Hawaii Revised Statutes, is amended to read as follows:

"§266-24 Enforcement. (a) The director of transportation shall enforce this chapter and chapter 200, and all rules thereunder, except for the rules [~~relative to the control and management of the beaches encumbered with easements in favor of the public and ocean waters which shall be~~] enforced by the department of land and natural resources[.] under section 199-3(a)(8). For the purpose of the enforcement of this chapter and chapter 200, and of all rules adopted pursuant to this chapter[,] and chapter 200, the powers of police officers are conferred upon the director of transportation and any officer, employee, or representative of the department of transportation. Without limiting the generality of the foregoing, the director and any person appointed by the director hereunder may serve and execute warrants, arrest offenders, and serve notices and orders. The director of transportation and any employee, agent, or representative of the department of transportation appointed as enforcement officers by the director, and every state and county officer charged with the enforcement of any law, statute, rule, regulation, ordinance, or order, shall enforce and assist in the enforcement of this chapter and chapter 200, and of all rules and orders issued pursuant [~~thereto,~~] to this chapter and chapter 200 and in carrying out [~~the~~] these responsibilities [~~hereunder~~], each shall be specifically authorized to:

(1) Conduct any enforcement action [~~hereunder~~] under the authority of this section in any [~~commercial~~] harbor area and any area over which the department of transportation and the director of transportation [~~has~~] have jurisdiction under this chapter[;] and chapter 200;

(2) Inspect and examine at reasonable hours any premises, and the buildings and other structures thereon, where harbors or harbor facilities are situated, or where harbor-related activities are operated or conducted; and

(3) Subject to limitations as may be imposed by the director of transportation, serve and execute warrants, arrest offenders, and serve notices and orders.

For purposes of this subsection, the term "agents and representatives" includes persons performing services at harbors or harbor areas under contract with the department of transportation.

(b) The department of transportation, in the name of the State, may enforce this chapter and chapter 200 and the rules and orders issued pursuant thereto by injunction or other legal process in the courts of the State."

SECTION 17. Section 266-27, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) No person shall moor a vessel in a state [~~commercial~~] harbor without obtaining a use permit; nor shall a person continue to moor a vessel in any state [~~commercial~~] harbor if the use permit authorizing the vessel to moor has expired or otherwise been terminated. A vessel moored without a use permit or with a use permit that has expired or been terminated is an unauthorized vessel and is subject to subsections (b) to (e)."

2. By amending subsection (c) to read:

"(c) An unauthorized vessel may be impounded by the department at the sole cost and risk of the owner of the vessel, if such a vessel is not removed after the seventy-two-hour period or if during said period the vessel is removed and re-moored in said harbor or any other state [~~commercial~~] harbor without a use permit."

SECTION 18. Sections 200-4(a), 200‑9(d), 200‑10(d), 200‑14.5(a), 200-19, 200‑22, 200‑26(d), 200-36, 200-37(k), 200‑41, 200‑49, and 200-73, Hawaii Revised Statutes, are amended by substituting the word "director" or like terms, wherever the word "chairperson" or like terms occurs, as the context requires; and by substituting the word "department" or like terms, wherever the word "board" or like term occurs, as the context requires.

SECTION 19. All rights, powers, functions, and duties of the department of land and natural resources relating to the regulation of ocean recreation and coastal areas programs under chapter 200, Hawaii Revised Statutes, other than those under section 199-3(a)(8), Hawaii Revised Statutes, are transferred to the department of transportation.

All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

Any incumbent officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act, shall be granted regular civil service status without loss of seniority, prior service credit, vacation, sick leave, or other employee benefits, and without the necessity of examination; provided they possess the minimum qualifications for the class to which their positions are assigned. The pay rate of non-tenured employees affected by this Act shall be determined in the same manner as the pay rate of other civil service employees in comparable positions with the same length of service. Any officer or employee converted by this Act shall have performed work satisfactorily in the position for a period of not less than six months prior to the effective date of this Act.

In the event that an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of land and natural resources relating to the functions transferred to the department of transportation shall be transferred with the functions to which they relate.

SECTION 20. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of land and natural resources with regard to the ocean recreation and coastal areas programs shall remain in full force and effect until amended or repealed by the department of transportation pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department, board, or chairperson of the board of land and natural resources in those rules, policies, procedures, guidelines, and other material is amended to refer to the department of transportation or director of transportation, as appropriate.

SECTION 21. All executive orders, revocable permits, easements, and rights of entry for the use of state lands issued and granted to the department of land and natural resources for use in connection with the ocean recreation and coastal areas programs shall be withdrawn or terminated and appropriate land dispositions for use in connection with the ocean recreation and coastal areas programs may be made by the department of transportation, as appropriate, subsequent to the transfer of the ocean recreation and coastal areas programs to the department of transportation.

PART III

SECTION 22. Plans and preparation for transfers. The chairperson of the board of land and natural resources and the director of transportation shall appoint a management team to develop the appropriate transition plans, rework position descriptions, revise personnel classifications, develop an organizational structure, and attend to other administrative details so that the transfer of functions under this Act can be implemented on July 1, 2008. The department of transportation may hire staff for these purposes, who shall be exempt from chapters 76 and 78, Hawaii Revised Statutes,

SECTION 23. The board of land and natural resources and the department of transportation shall jointly report to the legislature, not later than twenty days prior to the convening of the 2008 regular session, on their efforts to effectuate the transfers required by this Act.

SECTION 24. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2007-2008 and the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 to hire staff to plan and prepare for the transfer of the ocean recreation and coastal areas programs from the board of land and natural resources to the department of transportation.

The sums appropriated shall be expended by the department of transportation for the purposes of this Act.

SECTION 25. It is the intent of this Act to neither jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to persons with which it has existing contracts or to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor may modify the strict provisions of this Act, but shall promptly report any such modification with reasons therefor to the legislature at its next session thereafter for review by the legislature.

SECTION 26. All acts passed by the legislature during this regular session of 2007, whether enacted before or after the effective date of this Act, shall be amended to conform to this Act unless such acts specifically provide that this Act is being amended.

SECTION 27. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 28. This Act shall take effect upon its approval; provided that section 25 shall take effect on July 1, 2007, and part II shall take effect on July 1, 2008.

INTRODUCED BY:

_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	736
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII