THE SENATE	S.B. NO.	2876
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 2
STATE OF HAWAII		H.D. 2

A BILL FOR AN ACT

RELATING TO THE COMMERCIAL HARBORS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  Chapter 266, Hawaii Revised Statutes, is amended by adding a new section to part I to be appropriately designated and to read as follows:

     "§266-    Enforcement of rules. Any employee, officer, or representative of the department of transportation, designated by the director of transportation as a law enforcement officer or harbor agent, shall enforce any rule adopted pursuant to this part by issuing a notice of violation to the purported violator.  The printed notice of violation shall inform the purported violator in writing:

(1) Of the charge against the purported violator; and

(2) That the purported violator shall either:

(A) Remit a fee to the harbor special fund in lieu of appearing at an administrative hearing to contest the charge against the purported violator, whereupon the purported violator will forfeit the opportunity to appear at an administrative hearing; or

(B) Appear before an administrative hearing and answer to the charge against the purported violator.

In the event the purported violator elects to appear at an administrative hearing, the purported violator shall have ten calendar days after receipt of the notice of the violation to make a written request for an administrative hearing.  The administrative hearing shall be held solely for the purpose of allowing the purported violator to contest the basis of the notice of violation issued by the department.  The department shall schedule the administrative hearing within thirty days of the department's receipt of the written request, excluding Saturdays, Sundays, and holidays designated under section 8-1."

     SECTION 2.  Section 266-19, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

     "(a)  There is created in the treasury of the State the harbor special fund.  All moneys received by the department of transportation from the rates [and], fees, fines, and penalties pursuant to [section] sections 266-17(a)(1), 266-25, 266-28, and 266-    shall be paid into the harbor special fund.  The harbor special fund and the second separate harbor special fund heretofore created shall be consolidated into the harbor special fund at such time as there are no longer any revenue bonds payable from the second separate harbor special fund.  The harbor reserve fund heretofore created is abolished.

     All moneys derived pursuant to this chapter from harbor properties of the statewide system of harbors [(excluding properties principally used for recreation or the landing of fish, except properties located at Kewalo Basin, ewa of Ala Moana Park, Honolulu)] shall be paid into the harbor special fund and each fiscal year shall be appropriated, applied, or expended by the department of transportation for the statewide system of harbors for any purpose within the jurisdiction, powers, duties, and functions of the department of transportation related to the statewide system of harbors [(excluding properties principally used for recreation or the landing of fish, except the properties located at Kewalo Basin, ewa of Ala Moana Park, Honolulu)], including, without limitation, the costs of operation, maintenance, and repair of the statewide system of harbors and reserves therefor, and acquisitions (including real property and interests therein), constructions, additions, expansions, improvements, renewals, replacements, reconstruction, engineering, investigation, and planning, for the statewide system of harbors, all or any of which in the judgment of the department of transportation are necessary to the performance of its duties or functions."

     SECTION 3.  Section 266-24.1, Hawaii Revised Statutes, is amended to read as follows:

     "§266-24.1  Arrest or citation.  [Except when required by state law to take immediately before a district judge a person arrested for a violation of any provision of this part, including any rule or regulation adopted and promulgated pursuant to this part, any person authorized to enforce the provisions of this part, hereinafter referred to as enforcement officer,] (a)  Any employee, officer, or representative of the department of transportation conferred by the director of transportation with police powers, hereinafter referred to as law enforcement officer, shall enforce any rule adopted pursuant to this part and chapters 287 through 291E, 705, 707 through 710, 712, and 712A.

(b)  Any law enforcement officer upon issuing a citation or arresting a person for [violation of] violating any provision of this part, including any rule [or regulation] adopted [and promulgated] pursuant to this part [shall], in the discretion of the law enforcement officer, shall either:

     (1)  [issue] Issue to the purported violator a summons or citation, printed in the form hereinafter described, warning the purported violator to appear and answer to the charge against the purported violator at a certain place and at a time within seven days after such arrest[,]; or

     (2)  [take] Take the purported violator without unnecessary delay before a district judge.

(c)  The summons or citation shall be printed in a form comparable to the form of other summonses and citations used for arresting offenders and shall be designed to provide for inclusion of all necessary information.  The form and content of [such] the summons or citation shall be adopted or prescribed by the district courts.

(d)  The original of a summons or citation shall be given to the purported violator and the other copy or copies distributed in the manner prescribed by the district courts; provided that the district courts may prescribe alternative methods of distribution for the original and any other copies.

(e)  Summonses and citations shall be consecutively numbered and the [carbon copy or] copies of each shall bear the same number.

     [Any] (f)  Except for the alleged violation of chapters 287 through 291E, 705, 707 through 710, 712, and 712A, any person who fails to appear at the place and within the time specified in the summons or citation issued to the person by the law enforcement officer, upon the person's arrest for violation of any provision of this part, including any rule [or regulation promulgated] adopted pursuant to this part, shall be guilty of a misdemeanor and, on conviction, shall be fined not more than $1,000, or be imprisoned not more than six months, or both.

     [In the event] (g)  If any person fails to comply with a summons or citation issued to [such] that person, or if any person fails or refuses to deposit bail as required, the law enforcement officer shall cause a complaint to be entered against [such] the person and secure the issuance of a warrant for the person's arrest.

(h)  When a complaint is made to any prosecuting officer of the violation of any provision of this part, including any rule [or regulation promulgated] adopted thereunder, the law enforcement officer who issued the summons or citation shall subscribe to it under oath administered by another official of the department of transportation whose names have been submitted to the prosecuting officer and who have been designated by the director of transportation to administer the same."

     SECTION 4.  Section 266-25, Hawaii Revised Statutes, is amended to read as follows:

     "§266-25  Violation of rules; penalty.  In addition to the reimbursement of fines and costs as provided in section 266-28, any person who violates any rule made, adopted, and published by the department of transportation as herein provided, or who violates any lawful command of any harbor master, harbor agent, facility security officer, or harbor district manager, while in the discharge of the person's duty, or who violates this chapter, shall be fined not more than $10,000 for each offense, and any vessel, the agents, owner, or crew of which violate the rules of the department or this chapter, shall be fined not more than $10,000 for each violation; provided that in addition to or as a condition to the suspension of the fines and penalties, the court or administrative hearing officer may deprive the offender of the privilege of entering the secured area of the port or obtaining an operating or mooring permit for any vessel in state waters for a period of not more than [two years.] one year; provided further that the offender at the resumption of the privilege of operating or mooring a vessel in state waters shall assume the last position on any waiting list."

     SECTION 5.  Section 266-28, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§266-28[]]  Fines arising from environmental protection and maritime transportation security violations.  Notwithstanding any other law to the contrary, any commercial harbor tenant or user, including any shipper or shipping agent, who violates any federal, state, or county law or rule relating to environmental protection [and] or maritime transportation security pursuant to 33 Code of Federal Regulations chapter 1 and thereby causes a fine to be levied by the United States Coast Guard upon the department, shall reimburse the department for the entire amount of the fine.  The department may take such actions necessary to collect and deposit any amount reimbursable under this section[,] into the harbor special fund, and may also demand reimbursement for costs or expenses incurred by the department resulting from enforcement of this section."

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect on July 1, 2050.

Report Title:

Department of Transportation, Harbors; Administrative Violations of Rules; Reimbursement from Tenant for Security Violations

Description:

Amends chapter 266, HRS, to clarify that persons cited for non-criminal violations may appeal through an administrative hearing; clarifies that enforcement agents such as the harbor master, harbor agents, facility security officer, or district manager can issue citations for non-criminal violations; provides that penalties and fines are deposited into the harbor special fund; allows the Department of Transportation to seek reimbursement from tenants or harbor users that violate security rules in harbor-secured areas.  Broadens the definition of law enforcement officer to include any employee, officer, or representative of the Department of Transportation conferred by the director with police powers.  (SB2876 HD2)

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