HAR §13-231-56. REPEALED

[R 12/31/18] §13-231-57 Berthing or using commercial vessels in state small boat harbors. (a) This section is applicable to all state small boat harbors. This section is applicable to all commercial vessels including commercial fishing vessels engaged in charter fishing or any other trade or business; provided that commercial fishing vessels are exempt from this section if the total income derived from the use of the vessel is generated through the sale of fish or permitted coral. (b) No commercial vessel shall load or discharge passengers or cargo or engage in any other commercial activity at any small boat harbor unless the owner possesses a regular mooring permit and a valid commercial use permit or valid catamaran registration certificate issued by the department. Inter-island ferry service within Maui County shall be afforded preferential consideration in accordance with section 200-9(d), Hawaii Revised Statutes. The restrictions of this section shall not apply to any commercial vessel operated in connection with the lease of premises at a small boat harbor. (c) Notwithstanding subsection (b) and except at the Ala Wai and Keehi small boat harbors, the department may authorize the owner of a transient or visiting commercial vessel engaged in a trade or business elsewhere to: 231-51 Unofficial Compilation (1) Carry passengers for hire in the small boat harbors if the vessel will be so engaged as a registered participant in a bona fide fishing tournament; (2) While on cruise, off-load and load passengers in the small boat harbors if those passengers are embarked elsewhere or bound for another destination; provided that a reservation for a berth was made in advance and space is available; or (3) Embark and disembark passengers occasionally and infrequently, not exceeding twenty-four times in a calendar year on a special charter when approved not less than seven days in advance of the voyage. (d) A commercial use permit or catamaran registration certificate shall automatically expire upon the department's notice to vacate, if any vessel granted a temporary mooring permit under section 13- 231-57(c) engages in a trade or business contrary to the provisions of the permit or certificate. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200- 4, 200-9, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10) §13-231-58 Limitations on the number of commercial use permits and catamaran registration certificates for vessels assigned permanent moorings. (a) The total number of valid commercial use permits which may be issued for vessels assigned permanent mooring in Manele small boat harbor shall not exceed ten percent of the available berths. (b) Subject to any other limitations on commercial catamarans that may be provided in these rules, the total number of valid commercial use permits or catamaran registration certificates that may be issued for vessels assigned mooring in the Ala Wai small boat harbor shall not exceed fifteen per cent of the total number of berths; provided that at the Ala Wai small boat harbor, vessels issued 231-52 Unofficial Compilation commercial use permits or catamaran registration certificates shall: (1) Not exceed sixty-five feet in length; (2) Occupy not more than fifty-six berths located along the row of berths furthermost mauka or adjacent to Holomoana Street, with the remainder located throughout the Ala Wai small boat harbor, with priority assigned to row five hundred, row seven hundred, and row eight hundred; (3) Be phased-in in a manner that does not displace any existing recreational boater or existing catamaran operator; and (4) Include commercial catamarans for which valid commercial use permits or existing registration certificates have been issued by the department, that allow the catamarans to operate upon Waikiki shore waters for hire. (c) The total number of valid commercial use permits or catamaran registration certificates that may be issued for vessels assigned mooring at the Keehi small boat harbor shall not exceed thirty-five per cent of the total number of berths; (d) The total number of valid commercial use permits or commercial registration certificates that may be issued for vessels assigned permanent mooring in the following small boat harbors are: Harbor Number of commercial use permits Ala Wai as provided for in Hawaii Revised Statutes 200-9 Keehi as provided for in Hawaii Revised Statutes 200-9 (1) Heeia Kea as provided for in section 13-256-73.1 (2) Haleiwa 20 (3) Waianae 15 (4) Nawiliwili 10 (5) Port Allen 12 (6) Kikiaola 3 (7) Kukuiula 4 231-53 Unofficial Compilation (8) Hana 2 (9) Kaunakakai 9 (10) Lahaina 32 (11) Maalaea 29 (12) Honokohau 120 (13) Kawaihae (north) 4 (14) Kawaihae (south) 10 (15) Kailua-Kona Makai 3 (16) Kailua-Kona Offshore 8 (17) Wailoa 10 (18) Reed's Bay 3 (19) Keauhou 6 (e) Notwithstanding the provisions of subsections (a) through (d) limiting the number of commercial use permits and catamaran registration certificates that may be issued, the owner of a commercial vessel holding a regular mooring permit and a valid commercial use permit or valid catamaran registration certificate on the effective date of the rule amendments for the above listed small boat harbors, may retain and apply for reissuance of the commercial use permit or catamaran registration certificate, provided that all other requirements of these rules are met. (f) Upon the approval by the department, a person or business entity possessing a valid commercial use permit for a vessel moored elsewhere may be issued a regular mooring permit at a state boating facility listed in subsection (d), and retain the commercial use permit, provided that the permittee relinquishes the vessel moored elsewhere permit and that the total number of valid commercial use permits for vessels moored elsewhere shall be reduced accordingly. A regular mooring permittee who possesses a valid commercial use permit may relinquish the regular mooring permit and retain the commercial use permit, provided that the total number of valid commercial use permits for vessels moored in the state boating facility plus the number of commercial use permits for vessels moored elsewhere are not exceeded, and that the category of commercial use permits 231-54 Unofficial Compilation assigned to vessels moored elsewhere pursuant to section 13-231-59(d) shall not exceed the passenger capacity of the vessel formerly moored in the state boating facility. [Eff 2/24/94; am 6/16/03; am and comp 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-9, 200-10) (Imp: HRS §§200-2, 200-3, 200-4, 200-9, 200- 10) §13-231-59 Limitations on commercial use permits for vessels moored elsewhere. (a) The department recognizes that it may be necessary or desirable to operate a commercial vessel from more than one small boat harbor, and that lack of mooring facilities in certain areas has required numerous vessels to establish permanent moorings offshore, outside of the small boat harbors of intended use. Therefore, notwithstanding section 13-231-57, the department may issue a limited number of commercial use permits to owners of vessels moored elsewhere for use of small boat harbor facilities. The number and categories of those commercial use permits shall be based on the physical capacity of the small boat harbor facilities to accommodate the additional volume of activity expected to be generated by the additional permits, and shall be determined by the department on a case- by-case basis for each small boat harbor, subject to the limitations listed in subsection (b). (b) No commercial vessel moored elsewhere shall use any small boat harbor facilities for commercial purposes unless the owner of the commercial vessel moored elsewhere has been issued a commercial use permit for that vessel, or the vessel is exempt from commercial use permit requirements under the provisions of subsection 13-231-57(c) or as otherwise permitted by the department. "Commercial purposes" as used in this subsection includes the staging, loading and discharge of passengers or supplies at a state boating facility for further transport to a vessel's offshore location by means of a water taxi or any other vessel, or provisioning a vessel before or after 231-55 Unofficial Compilation a voyage involving the carriage of passengers for hire. (c) The number of commercial use permits for vessels moored elsewhere which may be issued for each small boat harbor shall be as follows: (1) Maalaea small boat harbor: twenty; (2) Lahaina small boat harbor: sixteen; (3) Manele small boat harbor: six; and (4) All other small boat harbors except for Heeia Kea small boat harbor, which is subject to section 13-256-73.1: no limit. (d) Each commercial use permit issued for a vessel moored elsewhere shall be assigned one of the following categories, depending on the passenger- carrying capacity of the vessel named in the permit: (1) Category I - one to twenty-four passengers (2) Category II - twenty-five to forty- nine passengers (3) Category III - fifty to seventy-four passengers (4) Category IV - seventy-five to ninety- nine passengers (5) Category V - one hundred to one hundred forty-nine passengers (e) No commercial use permit for vessels moored elsewhere shall be issued for any vessel with a passenger-carrying capacity in excess of one hundred forty-nine, and no existing commercial use permit issued for a vessel moored elsewhere shall be issued a permit whenever the owner seeks to increase the passenger-carrying capacity above the limit of the category to which the current permit was assigned. (f) The department reserves the right to impose further restrictions on the operation of commercial vessels moored elsewhere, on a case-by-case basis, as may be necessary to reduce congestion and achieve more efficient use of small boat harbor facilities. Restrictions may include designation of docking times for passenger loading and unloading or fueling, and parking restrictions for patron and delivery vehicles. 231-56 Unofficial Compilation Additional restrictions shall be implemented by addenda to existing commercial use permits issued by the department. Refusal of a permittee to accept or comply with additional restrictions implemented in this manner shall be cause for immediate termination of the commercial use permit. (g) Use of any vessel in violation of this section may be cause for termination of all small boat harbor use permits issued to the owner by the department. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-9, 200-10) (Imp: HRS §§200-2, 200-3, 200-4, 200-9, 200-10) §13-231-60 Allocation of commercial use permits for vessels and catamaran registration certificates. (a) Commercial use permits and catamaran registration certificates shall be issued to qualified applicants in the order in which applications are received by the department. Seniority begins on the date an application is received and accepted by the department. The allocation procedures specified in subchapter 5, Allocation of berths, shall also govern the allocation of commercial use permits and catamaran registration certificates under this section; provided that waiting lists for commercial use permits and catamaran registration certificates shall be established and maintained separately from waiting lists for berth assignment. (b) The sale or transfer of any corporation or other business entity while on the waiting list which results in a change of the majority stockholder or person holding the majority interest in the business shall result in loss of seniority, and the applicant shall be placed at the bottom of the waiting list. (c) The department may reject an application for a commercial use permit if the type of commercial activity is determined by the department to be inappropriate for the facility or area for which the permit is being requested, in addition to the grounds for rejection of an application for a permit listed in section 13-231-82. 231-57 Unofficial Compilation (d) When a commercial use permit becomes available for a vessel moored elsewhere, the permit issued shall be of the same category as the commercial use permit which was previously in effect. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200- 3, 200-4, 200-10) (Imp: HRS §§200-2, 200-3, 200-4, 200-10) §13-231-61 Reissuance of commercial use permits, and catamaran registration certificates. (a) The department may reissue a commercial use permit or catamaran registration certificate provided that: (1) The gross receipts during the twelve-month period under the commercial use permit or catamaran registration certificate for which the application for reissuance has been submitted equals or exceeds the following minimums as applicable: (A) Vessel used for bare boat(demise) charters and charter sail boats $7,000 (B) Vessels registered by the state or documented by the U.S. Coast Guard to carry six passengers or less; including charter fishing boats $15,000 (C) Vessels certified by the U.S. Coast Guard to carry seven to twenty-six passengers $45,000 (D) Vessels certified by the U.S. Coast Guard to carry twenty-seven to forty-nine passengers $85,000 (E) Vessels certified by the U.S. Coast Guard to carry fifty to ninety-nine passengers $125,000 (F) Vessels certified by the U.S. Coast Guard to carry $250,000 231-58 Unofficial Compilation more than ninety-nine passengers. (G) Vessels engaged in another trade or business not delineated and governed by an appropriate paragraph above $7,000 (H) Water sports equipment rentals $7,000; or (2) The permittee applies to the department in writing for reissuance of the permittee's commercial use permit or catamaran registration certificate and concurrently presents evidence that any failure to generate gross receipts from the operation of the permittee's vessel or certificate holder's catamaran as prescribed in this subsection was due to: (A) The sinking, loss, or destruction of the permittee's vessel or certificate holder's catamaran; (B) The permittee's vessel or certificate holder's catamaran being inoperative in excess of sixty days due to disability of the permittee or certificate holder; (C) The permittee's vessel or certificate holder's catamaran was rendered inoperative in excess of sixty days due to damage to the vessel, or due to the necessity of replacing essential parts and gear, provided that reasonable and diligent efforts by the permittee to secure such items necessary to repair the vessel or replacement of parts is demonstrated; or (D) Where conditions and circumstances are demonstrated wherein a reissuance of the permittee's commercial use permit or the catamaran registration certificate would be fair and warranted, and the application for 231-59 Unofficial Compilation reissuance is approved by the department; and (3) All fees and charges due and payable to the department have been paid and no violations are outstanding. (b) No commercial use permit or catamaran registration certificate shall be issued to any permittee or certificate holder whose commercial use permit or catamaran registration certificate has been terminated for cause, provided that the permittee or certificate holder may apply for a new commercial use permit or catamaran registration certificate after one year has expired from the date of termination, all fees and charges owing the State have been paid, and the permittee or certificate holder is in compliance with federal and state laws. (c) A corporation must have been in continuous commercial operation as evidenced by the submission of monthly reports of gross receipts for a minimum of twelve months in order to retain commercial use permits or a catamaran registration certificate upon the transfer of any interest in that corporation. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-10) (Imp: HRS §§200-2, 200-3, 200-4, 200-10) §13-231-62 Transferability of commercial use permits and catamaran registration certificates. (a) Commercial use permits and catamaran registration certificates issued to individuals. (1) A commercial use permit issued to an individual is non-transferable, so that whenever the permittee parts with possession or transfers the title or interest in the vessel identified in the commercial use permit to another person by any arrangement, the commercial use permit shall expire except as provided herein with respect to the original permittee. The new possessor, transferee, or owner of the vessel shall have no right to use the commercial use 231-60 Unofficial Compilation permit. However, a sole proprietor holding a commercial use permit or catamaran registration certificate for a commercial catamaran to land on Waikiki beach and operate upon Waikiki shore waters for hire may transfer ownership of the vessel from personal ownership to corporate or other business ownership without terminating the right to operate. The existing permit or registration certificate shall be reissued in a timely manner in the name of the transferee corporation or other business entity. No commercial use permit or catamaran registration certificate for an existing Waikiki beach catamaran operation shall be denied or revoked without a prior hearing in accordance with chapter 91, Hawaii Revised Statutes; (2) An original commercial use permittee or catamaran certificate holder who also holds a regular mooring permit, upon written application and approval by the department may retain the commercial use permit or catamaran registration certificate, provided that within thirty days the permittee moves into the small boat harbor another vessel owned by the mooring permittee pursuant to the provisions of section 13-231-13; and (3) An original permittee holding a commercial use permit and moored elsewhere may, upon written application to and approval by the department retain the commercial use permit, provided that within thirty days the permittee resumes operation with another vessel owned by the permittee pursuant to the provisions of sections 13-231-13 and 13- 231-61. (b) The following rights, conditions, and restrictions apply to commercial use permits and catamaran registration certificates issued to a corporation or other business entity. 231-61 Unofficial Compilation (1) Notwithstanding section 13-231-13, a corporation or other business entity holding a valid commercial use permit or catamaran registration certificate may transfer any or all stock or interest and retain the commercial use permit or catamaran registration certificate and all other valid small boat harbor use permits in effect on the date of transfer, provided that the corporation or other business entity has been in continuous operation as evidenced by the submission of monthly reports of gross receipts for a minimum period of one full year and meets all requirements necessary for issuance of a commercial use permit or catamaran registration certificate. The department shall be notified within ten working days of: (A) All transactions that amount to a transfer of ten per cent or more of the stock or interest in the firm by owners of record on the date of issuance of the current commercial use permit or catamaran registration certificate; (B) The transfer of any stock or interest which results in a change of the principal stockholder or owner; and (C) The business transfer fee is paid on or before the date of transfer; and (2) A commercial use permit or catamaran registration certificate issued to a corporation or other business entity shall automatically expire: (A) Upon the voluntary or involuntary dissolution of the corporation or business entity; (B) If the vessel or vessels operated under the commercial use permit or catamaran registration certificate are sold or otherwise transferred and not replaced in accordance with the provisions of section 13-231-13(b); or 231-62 Unofficial Compilation (C) If the permittee or certificate holder fails to operate the vessel for which the commercial use permit or catamaran registration certificate is issued for a period in excess of sixty days, except as provided in section 13-231- 61(a) (2), and except when the permittee or certificate holder provides advance notification to the department in writing that operations will be temporarily suspended for a specific period not to exceed four months. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-9, 200-10) (Imp: HRS §§200- 2, 200-3, 200-4, 200-9, 200-10) §13-231-63 Retention of berth upon termination of commercial use permit or catamaran registration certificate. The owner of a vessel moored in any of the above listed small boat harbors whose commercial use permit or catamaran registration certificate has been cancelled at the owner's request, expired, or revoked by the department pursuant to the provisions of these rules may continue to moor the vessel in the small boat harbor in accordance with the owner's regular mooring permit and to utilize the vessel for non-commercial purposes if the vessel and the owner conform to the conditions set forth in these rules to renew or maintain a regular mooring permit. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200- 4, 200-9, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10)