Report Title:

Small Boat Harbors; Transfer

 

Description:

Transfers small boat harbors from the department of land and natural resources to the department of transportation.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

138

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO OCEAN RECREATIONAL BOATING AND COASTAL ACTIVITIES.

 

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

SECTION 1. The legislature finds that small boat harbors, which were originally under the jurisdiction of the department of transportation, were moved to the department of land and natural resources by Act 272, Session Laws of Hawaii 1991, in part because these harbors did not generate sufficient revenues, since virtually all fees were for noncommercial boats. However, the legislature finds that there are now a number of commercial businesses operating out of small boat harbors that pay higher fees. Accordingly, the purpose of this Act is to transfer small boat harbors from the jurisdiction of the department of land and natural resources back to the department of transportation.

SECTION 2. 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, state parks, including historic sites, and all activities thereon and therein [including, but not limited to, boating, ocean recreation, and coastal areas programs]."

SECTION 3. 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 4. Section 199-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The conservation and resources enforcement officers, with respect to all state lands, including public lands, state parks, forest reserves, forests, aquatic life and wildlife areas, Kaho`olawe island reserve, and any other lands and waters subject to the jurisdiction of the department of land and natural resources, shall:

(1) Enforce title 12, chapters 6E and 6K, and rules adopted thereunder;

(2) Investigate complaints, gather evidence, conduct investigations, and conduct field observations and inspections as required or assigned;

(3) Cooperate with enforcement authorities of the State, counties, and federal government in development of programs and mutual agreements for conservation and resources enforcement activities within the State;

(4) Cooperate with established search and rescue agencies of the counties and the federal government in developing plans and programs and mutual aid agreements for search and rescue activities within the State;

(5) Check and verify all leases, permits, and licenses issued by the department of land and natural resources;

(6) Enforce the laws relating to firearms, ammunition, and dangerous weapons contained in chapter 134;

(7) Enforce the laws in chapter 291E relating to operating a vessel on or in the waters of the State while using intoxicants;

[(8) Whether through a specifically designated marine patrol or otherwise, enforce the rules in the areas of boating safety, conservation, and search and rescue relative to the control and management of boating facilities owned or controlled by the State, ocean waters, and navigable streams and any activities thereon or therein, and beaches encumbered with easements in favor of the public, and the rules regulating vessels and their use in the waters of the State;] and

[(9)] (8) Carry out other duties and responsibilities as the board of land and natural resources from time to time may direct."

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

1. Deleting 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."]

2. Amending the definition of "department" to read as follows:

""Department" means the department of [land and natural resources.] transportation."

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 200-3, 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 8. Section 200-10.5, Hawaii Revised Statutes, is amended to read as follows:

"[[]200-10.5[]] Sailing school vessels; rules. The department shall adopt rules for the regulation and operation of sailing school vessels. Until the rules are adopted, sailing school vessels shall be classified as recreational vessels and subject to rules adopted under [sections 200-4 and] section 200-9 that pertain to recreational vessels; provided that sailing school vessels shall be exempt from:

(1) All requirements for permits and fees; and

(2) All rules pertaining to:

(A) Mooring or anchoring of recreational vessels at any offshore mooring area; and

(B) Living aboard a vessel while the vessel is moored within ocean waters of the State."

SECTION 9. Section 200-12, Hawaii Revised Statutes, is amended to read as follows:

"[[]200-12[]] Administration of state small boat harbors. The department shall include a separate administrative unit which shall administer the state small boat harbors and the state comprehensive recreational boating program. The unit shall:

(1) Adopt necessary rules under section [200-4] 266-3 for the purposes of this section;

(2) Organize a comprehensive recreational boating program; and

(3) Develop standard permits, and fees, for moorage in state small boat harbors to comply with section 200-10."

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, or other [commercial] harbors, and any other maritime or ocean recreation facilities constructed by the State; provided that such plans 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,] 2002, 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 the shores, shore waters, navigable streams, small boat and commercial 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;

(C) Wharfage or demurrage;

(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 to read as follows:

"266-3 Rules. (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 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 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 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;

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

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

(c) The rules shall be adopted in the manner prescribed in chapter 91 and shall have the force and effect of law.]:

(1) To regulate the manner in which all vessels may enter the ocean waters and navigable streams of the State and moor, anchor, or dock at harbors, launching ramps, and other boating facilities owned or controlled by the State;

(2) To regulate the embarking and disembarking of passengers at harbors, launching ramps, other boating facilities, and public beaches;

(3) For the safety of harbors, launching ramps, and other boating facilities, the vessels anchored or moored therein;

(4) For the conduct of the public using harbors, launching ramps, and other boating facilities owned or controlled by the State;

(5) To regulate and control recreational and commercial use of harbors, launching ramps, and other boating facilities owned or controlled by the State and the ocean waters and navigable streams of the State;

(6) To prevent the discharge or throwing into harbors, launching ramps, other boating facilities, ocean waters, and navigable streams, of rubbish, refuse, garbage, or other substances likely to affect the quality of the water or that contribute to making the harbors, launching ramps, other boating facilities, ocean waters, and streams unsightly, unhealthful, or unclean, or that are liable to fill up, shoal, or shallow the waters in, near, or affecting harbors, launching ramps, and other boating facilities and the ocean waters and navigable streams of the State, and likewise to prevent the escape of fuel or other oils or substances into the waters in, near, or affecting harbors, launching ramps, or other boating facilities and the ocean waters and navigable streams of the State from any source point, including, but not limited to, any vessel or from pipes or storage tanks upon land. The rules may include:

(A) Requirements for permits and fees for:

(i) The mooring, docking, or anchoring of recreational and commercial vessels or the launching of recreational or commercial vessels at harbors, launching ramps, and other boating facilities; or

(ii) Other uses of these facilities;

(B) Requirements for permits and fees for use of a vessel as a principal place of habitation while moored at a state harbor;

(C) Requirements governing:

(i) The transfer of any state commercial, mooring, launching, or any other type of use or other permit, directly or indirectly, including, but not limited to, the imposition or assessment of a business transfer fee upon transfer of ownership of vessels operating commercially from, within, or in any way related to the state harbors; and

(ii) The use of state harbors, launching ramps, or other boating facilities belonging to or controlled by the State, including, but not limited to, the establishment of minimum amounts of annual gross receipts required to renew a commercial use permit, and conditions under which a state commercial, mooring, launching, or any other type of use or other permit may be terminated, canceled, or forfeited; and

(D) Any other rule necessary to implement this chapter pertaining to harbors, launching ramps, and other boating facilities belonging to or controlled by the State;

(7) To continue the ocean recreational and coastal areas programs and govern the ocean waters and navigable streams of the State, and beaches encumbered with easements in favor of the public to protect and foster public peace and tranquility and to promote public safety, health, and welfare in or on the ocean waters and navigable streams of the State, and on beaches encumbered with easements in favor of the public. The rules may include:

(A) Regulating the anchoring and mooring of vessels, houseboats, and other contrivances outside of any harbor or boating facility, including:

(i) The designation of offshore mooring areas;

(ii) The licensing and registration of vessels, houseboats, and other contrivances; and the issuance of permits for offshore anchoring and mooring of vessels, houseboats, and other contrivances; and

(iii) The living aboard on such vessels, houseboats, or other contrivances while they are anchored or moored within ocean waters or navigable streams of the State.

The rules shall provide for consideration of environmental impacts on the State's aquatic resources in the issuance of any permits for offshore mooring;

(B) Safety measures, requirements, and practices in or on the ocean waters and navigable streams of the State;

(C) The licensing and registration of persons or organizations engaged in commercial activities in or on the ocean waters and navigable streams of the State;

(D) The licensing and registration of equipment utilized for commercial activities in or on the ocean waters and navigable streams of the State;

(E) For beaches encumbered with easements in favor of the public, the prohibition or denial of the following uses and activities:

(i) Commercial activities;

(ii) The storage, parking, and display of any personal property;

(iii) The placement of structures or obstructions;

(iv) The beaching, landing, mooring, or anchoring of any vessels; and

(v) Other uses or activities that may interfere with the public use and enjoyment of these beaches; and

(F) Any other matter relating to the safety, health, and welfare of the general public; and

(8) To regulate the examination, guidance, and control of harbor agents and their assistants.

(b) All rules shall be adopted in accordance with chapter 91 and shall have the force and effect of law."

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.] adopted pursuant to this chapter and chapter 200. 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 the rules and orders issued pursuant thereto by injunction or other legal process in the courts of the State.

(c) Without limiting the generality of the foregoing, enforcement measures may be effectuated through a specifically designated marine patrol or otherwise, including enforcement of the rules in the areas of boating safety, conservation, and search and rescue relative to the control and management of boating facilities owned or controlled by the State, ocean waters, and navigable streams and any activities thereon or therein, and beaches encumbered with easements in favor of the public, and the rules regulating vessels and their use in the waters of the State."

SECTION 17. Section 266-27, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(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)."

SECTION 18. Section 266-27, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(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 19. Section 200-4, Hawaii Revised Statutes, is repealed.

["[200-4] Rules. (a) The chairperson may adopt rules necessary:

(1) To regulate the manner in which all vessels may enter the ocean waters and navigable streams of the State and moor, anchor, or dock at small boat harbors, launching ramps, and other boating facilities owned or controlled by the State;

(2) To regulate the embarking and disembarking of passengers at small boat harbors, launching ramps, other boating facilities, and public beaches;

(3) For the safety of small boat harbors, launching ramps, and other boating facilities, the vessels anchored or moored therein;

(4) For the conduct of the public using small boat harbors, launching ramps, and other boating facilities owned or controlled by the State;

(5) To regulate and control recreational and commercial use of small boat harbors, launching ramps, and other boating facilities owned or controlled by the State and the ocean waters and navigable streams of the State;

(6) To prevent the discharge or throwing into small boat harbors, launching ramps, other boating facilities, ocean waters, and navigable streams, of rubbish, refuse, garbage, or other substances likely to affect the quality of the water or that contribute to making the small boat harbors, launching ramps, other boating facilities, ocean waters, and streams unsightly, unhealthful, or unclean, or that are liable to fill up, shoal, or shallow the waters in, near, or affecting small boat harbors, launching ramps, and other boating facilities and the ocean waters and navigable streams of the State, and likewise to prevent the escape of fuel or other oils or substances into the waters in, near, or affecting small boat harbors, launching ramps, or other boating facilities and the ocean waters and navigable streams of the State from any source point, including, but not limited to, any vessel or from pipes or storage tanks upon land. The rules may include:

(A) Requirements for permits and fees for:

(i) The mooring, docking, or anchoring of recreational and commercial vessels or the launching of recreational or commercial vessels at small boat harbors, launching ramps, and other boating facilities; or

(ii) Other uses of these facilities;

(B) Requirements for permits and fees for use of a vessel as a principal place of habitation while moored at a state small boat harbor;

(C) Requirements governing:

(i) The transfer of any state commercial, mooring, launching, or any other type of use or other permit, directly or indirectly, including, but not limited to, the imposition or assessment of a business transfer fee upon transfer of ownership of vessels operating commercially from, within or in any way related to the state small boat harbors; and

(ii) The use of state small boat harbors, launching ramps, or other boating facilities belonging to or controlled by the State, including, but not limited to, the establishment of minimum amounts of annual gross receipts required to renew a commercial use permit, and conditions under which a state commercial, mooring, launching, or any other type of use or other permit may be terminated, canceled, or forfeited; and

(D) Any other rule necessary to implement this chapter pertaining to small boat harbors, launching ramps, and other boating facilities belonging to or controlled by the State;

(7) To continue the ocean recreational and coastal areas programs and govern the ocean waters and navigable streams of the State, and beaches encumbered with easements in favor of the public to protect and foster public peace and tranquility and to promote public safety, health, and welfare in or on the ocean waters and navigable streams of the State, and on beaches encumbered with easements in favor of the public. The rules may include:

(A) Regulating the anchoring and mooring of vessels, houseboats, and other contrivances outside of any harbor or boating facility, including:

(i) The designation of offshore mooring areas;

(ii) The licensing and registration of vessels, houseboats, and other contrivances; and the issuance of permits for offshore anchoring and mooring of vessels, houseboats, and other contrivances; and

(iii) The living aboard on such vessels, houseboats, or other contrivances while they are anchored or moored within ocean waters or navigable streams of the State.

The rules shall provide for consideration of environmental impacts on the State's aquatic resources in the issuance of any permits for offshore mooring;

(B) Safety measures, requirements, and practices in or on the ocean waters and navigable streams of the State;

(C) The licensing and registration of persons or organizations engaged in commercial activities in or on the ocean waters and navigable streams of the State;

(D) The licensing and registration of equipment utilized for commercial activities in or on the ocean waters and navigable streams of the State;

(E) For beaches encumbered with easements in favor of the public, the prohibition or denial of the following uses and activities:

(i) Commercial activities;

(ii) The storage, parking, and display of any personal property;

(iii) The placement of structures or obstructions;

(iv) The beaching, landing, mooring, or anchoring of any vessels; and

(v) Other uses or activities that may interfere with the public use and enjoyment of these beaches; and

(F) Any other matter relating to the safety, health, and welfare of the general public; and

(8) To regulate the examination, guidance, and control of harbor agents and their assistants.

(b) All rules shall be adopted in accordance with chapter 91 and shall have the force and effect of law."]

SECTION 20. Section 200-5, Hawaii Revised Statutes, is repealed.

["[200-5] Commercial harbors excluded. For purposes of this chapter, ocean waters and navigable streams shall not include the commercial harbors of the State."]

SECTION 21. Sections 200-9(d), 200-10(d), 200-16(d), 200-22, 200-26(d), 200-36, 200-37(k), 200-41, 200-45, 200-49, 200-73, and 200-95(a), 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.

SECTION 22. All rights, powers, functions, and duties of the department of land and natural resources relating to boating, small boat harbors, other ocean-based recreational activities, and the marine patrol 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 23. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of land and natural resources 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 24. 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 boating program shall be withdrawn or terminated and appropriate land dispositions for use in connection with the boating program may be made by the department of transportation, as appropriate, subsequent to the transfer of the boating program to the department of transportation.

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 2001, 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 on January 1, 2002.

INTRODUCED BY:

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