HAR §13-231-80. General

(a) This subchapter shall govern the allocation of berths as they become available in small boat harbors. (b) It is the policy of the department to promptly assign an available berth on a first-come, first-served basis to the first qualified applicant, determined in accordance with the provisions of this subchapter, for the type of mooring requested provided that the proposed use by the vessel affords maximum, safe, convenient, and efficient utilization of facilities and provided that assignment is not contrary to public interests, or otherwise unlawful or contrary to these rules. (c) Since each berth and each vessel presents unique ship handling and other peculiar berthing problems in relation to the small boat harbor, the department reserves the right to utilize its fair and impartial judgment, flexibility, and discretionary authority to allocate berths based upon its knowledge of available facilities, prevailing small boat harbor conditions, safe boating practices, effective harbor management procedures, and other factors which must be thoroughly considered prior to acceptance of an application and allocating a berth to a vessel. The many factors that the department may Lake into consideration in accepting an application and allocating a berth include, but are not limited to, the applicant's vessel length, draft, beam, method of propulsion; the proposed vessel use and any other special or unique vessel handling problems in relation to the size of the available berth; berth location, water depth, prevailing winds and currents, and other pertinent factors relative to the available berth. (d) If berths of varying lengths are available for assignment in a small boat harbor then no regular mooring permit shall be issued which allocates a berth to a vessel, if the length of the berth to be assigned 231-71 Unofficial Compilation exceeds the vessel length overall by more than five feet; provided, however this provision does not apply: (1) When more than one vessel is assigned to and occupies a single berth end to end; or (2) In a small boat harbor with established categories of berths which may be assigned to designated classes of vessels, pursuant to section 13-231-86. (e) A vessel with a length overall which exceeds the catwalk or pier length may be nonetheless allocated an available berth if the vessel may be safely moored in the berth and provided that the vessel, while moored in the berth, does not obstruct or hamper safe and convenient navigation within the small boat harbor. (f) The department may establish categories of berths available to corresponding classes of vessels in a small boat harbor for allocation to applicants and shall place applicants in the most appropriate vessel classification to assure that vessels are allocated to suitable berths in order to promote the maximum, safe, convenient, and efficient utilization of facilities. Categories of berths and corresponding classes of vessels have been established in the small boat harbors enumerated in section 13-231-86. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200- 4, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10) §13-231-81 Application for a berth; seniority of applications; period of validity; renewal of application. (a) The department shall allocate a berth to an applicant by issuing a use permit pursuant to this subchapter and sections 13-231-2 and 13-231-3 if: (1) A berth is vacant in the small boat harbor and is available for such assignment pursuant to this subchapter; (2) No prior valid application for such is pending. (b) A person desiring to moor a vessel in a small boat harbor where no berths are available for 231-72 Unofficial Compilation allocation pursuant to this subchapter may apply for and be allocated a berth as prescribed in this subchapter when a berth suitable for the vessel becomes vacant in the future. (1) An application for a berth shall be made in writing to the department on a form provided by the department. The applicant shall indicate in the application the type and characteristics of the vessel the applicant proposes to moor, including but not limited to, the vessel's length overall, draft, beam, principal source of propulsion, and any secondary or auxiliary source of propulsion, the type of mooring desired, and if applicable, the category or categories desired, provided that except in small boat harbors where the department has not established categories of berths an applicant may modify at any time the material contained in the applicant's application relating to the type and characteristics of the vessel the applicant proposes to moor in the small boat harbor and retain seniority or priority over later applicants. The department shall accept the application for consideration by endorsing it and entering the filing time and date on the application form submitted; one copy shall be given to the applicant. The time and date the application is endorsed by the department shall be the filing date and the effective date of the application for consideration and shall establish such applicant's seniority or priority over later applicants if the application remains valid, subject to the suitability of the berth which becomes available for allocation to the vessel to be moved into the berth by the applicant. Priority of applicants for mooring in small boat harbors with established categories of berths is set forth in section 13-231-86. No application 231-73 Unofficial Compilation shall be accepted until the applicant pays the application fee prescribed in these rules and review thereof has been conducted pursuant to section 13-231-82. (2) An application shall continue in full force and effect for a period ending one year from the effective date of the application except as provided in paragraph (3), unless sooner terminated in accordance with these rules. An application is void after the date of expiration indicated thereon. (3) An application may be renewed within a ninety-day period preceding its expiration date. An application renewed prior to its expiration date shall be valid for a period ending one year from the expiration date of the previous application. (4) It is the policy of the department to mail an application renewal notice to the applicant, prior to the expiration of this application, at the address the applicant has furnished to the department pursuant to section 13-231-83. However, the applicant is responsible for the timely renewal of an application without receipt of a renewal notice from the department. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10) §13-231-82 Review, acceptance, or rejection of applications. (a) The department shall examine and determine the genuineness and regularity of each application for a mooring or other small boat harbor use permit and may conduct any investigation as may be deemed necessary for its examination and determination; and it may require additional information from the applicant as may be necessary to determine the genuineness and regularity of the application. 231-74 Unofficial Compilation (b) The department shall reject any application that contains a material misstatement or if the applicant has failed to disclose any material fact in the application. (c) An application shall not be accepted for consideration and shall be rejected if: (1) The application fee is not paid at the time the application is made; (2) The applicant is delinquent in payment of any moneys due and payable to the department; (3) The applicant has pending a citation for violation of any of the department's rules; or (4) The category or type of mooring requested is inappropriate for the vessel to be moored by the applicant and will not, therefore, afford maximum, safe, convenient, and efficient utilization of small boat harbor facilities as determined by the department pursuant to section 13-231-80. (d) Upon rejection of an application, the department shall inform the applicant, in writing within a reasonable time, that the person's application has not been accepted for consideration and has been rejected and the reasons therefor. The applicant shall be afforded the opportunity to submit a new application upon the correction of deficiencies cited in the notification of rejection of the original application. [Eff 2/24/94; comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-9, 200-10) (Imp: HRS §§200-2, 200- 4, 200-9, 200-10) §13-231-83 Applicant required to furnish address and report changes; effect of failure to report changes. (a) An applicant shall include the applicant's address in the application to the department for a berth. (b) An applicant shall immediately inform the department in writing of any changes in the 231-75 Unofficial Compilation applicant's address in order to maintain the validity of the applicant's application. (c) An application shall be void if the department is unable to notify the applicant of a vacancy at the address: (1) Appearing on the application; or (2) Furnished in writing to the department by the applicant as a change of address subsequent to submitting the application. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200- 2, 200-4, 200-9, 200-10) §13-231-84 Withdrawal of application; effect if application has become void, expires, or has been withdrawn. (a) An application may be withdrawn by an applicant upon written notice to the department. (b) An applicant who withdraws an application or whose application has expired or becomes void may submit a new application for acceptance by the department. The applicant's seniority begins on the date the new application is accepted for consideration as provided in section 13-231-81. (c) The application fee shall not be refunded if an applicant withdraws an application or if the application expires, or becomes void. [Eff 2/24/94; comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10) §13-231-85 Priority and procedures in allocation of berths. (a) An unassigned berth (a berth that is not assigned to a permittee by a regular mooring permit) shall first be offered to the senior applicant holding a regular mooring permit authorizing the applicant to moor in the small boat harbor who has applied for movement to another berth within the same harbor, provided that the vacant berth is of the same characteristics, category, or type as the berth currently allocated to the applicant and assignment of the applicant's vessel to the vacant berth would not 231-76 Unofficial Compilation be contrary to public interest or otherwise unlawful or contrary to these rules. (b) Except as provided in subsection (a) and except where allocation shall be made pursuant to section 13-231-86 in small boat harbors with established categories of berths, an unassigned berth shall be promptly offered to the senior applicant for a regular mooring permit subject to the limitations contained in these rules promoting maximum, safe, convenient, and efficient utilization of facilities. Therefore, when the department receives a notice of cancellation of a regular mooring permit pursuant to section 13-231-9; a regular mooring permit expires, becomes void or is cancelled; or an assigned berth is vacated, other than temporarily for any reason, the department shall commence the process of allocating the berth to the senior applicant for a regular mooring permit as expeditiously as possible as provided herein or in section 13-231-86. (c) If assignment of the senior applicant's vessel to the available berth would not afford maximum, safe, convenient, and efficient utilization of the facility as determined in accordance with the factors enumerated in section 13-231-80 or is contrary to public interest or is otherwise unlawful or contrary to these rules, the berth shall then be promptly offered to the next senior qualified applicant whose vessel is suitable for the berth. (d) An assigned berth, temporarily vacant while the regular permittee's vessel assigned thereto is temporarily absent from the berth, or an unassigned berth that is temporarily vacant pending allocation to and occupancy by a regular permittee shall be temporarily allocated to applicants as follows subject to sections 13-231-23 and 13-231-24 and the suitability of the vessel for the berth as determined by evaluation of the factors enumerated in this subchapter in order to promote the maximum safe, convenient, and efficient utilization of the small boat harbor facilities. (1) A nonrenewable temporary mooring permit authorizing interim use of a temporarily 231-77 Unofficial Compilation vacant berth for a period not to exceed the anticipated period of temporary vacancy or in any event not to exceed thirty days, whichever period is shorter, shall be offered to the senior applicant for a temporary mooring permit for the berth available pursuant to subsection (2) if suitable for the applicant's vessel in accordance with the factors enumerated in this subchapter, to promote maximum, safe, convenient, and efficient utilization of the facility. If the senior applicant for a temporary mooring permit declines the offer of interim use of the berth, the applicant's application for a temporary mooring permit shall be void and the berth shall be offered to the next senior applicant for a temporary mooring permit. (2) Priorities for allocation of temporarily vacant berths for interim use as they become available shall be as prescribed herein: (A) First priority. The senior applicant to moor a transient vessel who applied in advance in writing for interim use of a temporarily vacant berth to begin at a specified time and whose application was received and accepted by the department shall have priority for use of the berth over other applicants for temporary moorings enumerated in this subsection; provided that a transient vessel shall be allocated to a berth that has been set aside and designated by the department for use by transient vessels only unless the transient berths available for allocation at that time are not suitable for the vessel, or no such transient berths have been set aside in that harbor. (B) Second priority. If none of the vessels owned by the applicants, 231-78 Unofficial Compilation enumerated in paragraph (2)(A) are suitable for allocation to a temporarily vacant berth available for use, or if the eligible applicants decline an offer by the department to utilize a suitable berth, the senior applicant who applied in advance in writing to moor a vessel, other than a transient vessel, for an interim period whose application was received and accepted by the department shall have priority for use of the berth over other applicant's enumerated in subparagraph (C). (C) Third priority. If none of the vessels owned by the applicants awaiting a berth, enumerated in subparagraphs (A) and (B), are suitable for allocation to a temporarily vacant berth, or the eligible applicants decline an offer by the department to utilize the berth, the berth shall be offered on a first- come, first-served basis. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10) §13-231-85.5 Allocation of offshore mooring permits. Offshore mooring permits shall be allocated in accordance with and following the procedures set forth for mooring permits for berths. [Eff and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10, 200-22, 200-24) (Imp: HRS §§200-2, 200-4, 200-10, 200-22, 200- 24) §13-231-86 Categories of berths; priority of allocation. (a) Categories or berths available to applicants for moorings in Ala Wai, Lahaina, Nawiliwili, and Port Allen small boat harbors are established as shown in subsections (b), (c), (d), and 231-79 Unofficial Compilation (e). In these small boat harbors an applicant for a berth shall be placed in an appropriate vessel class by the department and is eligible for the corresponding category of berths. Applicants may apply by separate application for more than one category; provided, that their vessel is eligible for assignment only to those categories which correspond to the vessel class in which they are placed. An available berth shall be allocated to the senior applicant eligible for assignment to that category of berth provided that the proposed assignment of the vessel to the berth affords maximum, safe, convenient, and efficient utilization of facilities, and provided that the assignment is not contrary to public interest or is otherwise unlawful or contrary to these rules. Allocation of a berth shall not be made if the length of the senior applicant's vessel is greater or less than the length limitations prescribed for each category as shown below. Each category of berths is subject to all the limitations prescribed by this section. Allocation of temporary mooring permits shall be made in accordance with the categories as established by this section and pursuant to the terms and conditions of section 13-231-87. (b) Ala Wai small boat harbor. The following categories of berths are established at Ala Wai small boat harbor. CATEGORIES VESSELS ELIGIBLE TO MOOR A 20′ to 28′ in length B 28′ to 35′ in length C 35′ to 45′ in length D 45′ to 55′ in length E 55′ to 65′ in length F 65′ to 75′ in length G 75′ to 85′ in length H up to 19′ in length I Multihull vessels exclusively of varying lengths 231-80 Unofficial Compilation (c) Lahaina small boat harbor. The following categories of berths are established at Lahaina small boat harbor. CATEGORIES PIER/CATWALK LENGTH/TYPE VESSELS ELIGIBLE TO MOOR A Marginal wharf, berths 2-5 Commercial vessels Up to 65′ in length B Catwalks, berths 6-21 and 86-99 Commercial vessels Up to 55′ in length C Marginal wharf, berths 22-85 Up to 50′ in length Commercial vessels holding valid mooring permits within Lahaina small boat harbor shall load and unload passengers from the assigned berth, unless otherwise authorized by the department to load and unload passengers from the loading dock. The mooring of any vessel within Lahaina small boat harbor shall be subject to sections 13-231-7, 13-231-80 and other applicable rules of the department. (d) Nawiliwili small boat harbor. The following categories of berths are established at Nawiliwili small boat harbor. CATEGORIES PIER/CATWALK ELIGIBLE VESSELS TO MOOR A 60' Pier 100 55′ to 65′ in length B 40' Piers 100, 200, 300 35′ to 45′ in length C 30' Pier 300 25′ to 35′ in length D Harbor basin Not to exceed 50′ in length E Offshore Mooring (e) Port Allen small boat harbor. The following categories of berths are established at Port Allen small boat harbor. CATEGORIES PIER/CATWALK ELIGIBLE VESSELS TO MOOR 231-81 Unofficial Compilation A 50' Pier 100 45′ to 55′ in length B 40' Piers 100, 200 35′ to 45′ in length C Harbor Basin Not to exceed 50′ in length [Eff 2/24/94; am 11/15/99; am and comp 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-10) (Imp: HRS §§200-2, 200-3, 200-4, 200-9, 200-10) §13-231-87 Notice to owner of available berth or offshore mooring. (a) When an offer of a regular mooring permit to use a berth or offshore mooring area can be made, as provided for in this subchapter, the department shall deliver the offer or send it by certified mail, return receipt requested, addressed to the applicant eligible to receive the offer pursuant to this subchapter at the post office address furnished to the department in writing by the applicant. (b) The department shall offer a temporary mooring permit to the applicant eligible to receive it by telephone, personal service, or first class mail, postage prepaid addressed to the applicant at the post office address furnished to the department in writing by the applicant. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10) §13-231-88 Offer of regular mooring permit valid only fourteen days; written notice of intention; acceptance. (a) An applicant for a regular mooring permit may decline an offer to the applicant of a regular mooring permit and retain the applicant's seniority if the applicant declines the offer in writing addressed to and received by the department, not later than fourteen days after the date of receipt of the offer. An applicant who declines an offer in writing and retains the applicant's seniority pursuant to this section, shall not be considered for a second offer on the basis of the applicant's seniority until six months have elapsed since the date of the 231-82 Unofficial Compilation applicant's first refusal. If the applicant decides to accept the offer, the applicant shall either deliver a written notice of intention to accept the offer to the department within fourteen days after the date of receipt of the offer or accept the offer by securing a use permit, complying with the requirements of section 200-9 and moving the applicant's vessel into the assigned berth or assigned mooring area, as applicable, within fourteen days after the receipt of the offer. The applicant's application for a use permit and the offer by the department of a use permit shall be void if the applicant fails to either move the applicant's vessel into the berth or mooring area, as applicable, or to give notice of intent to accept or to decline the offer in writing within fourteen days after the date of receipt of the offer, and the use permit shall then be offered to the next senior applicant for berth or mooring area, as applicable, pursuant to this subchapter. An applicant's application for a regular mooring permit shall also be void if the applicant fails to accept a second offer of a regular mooring permit to use a berth, or mooring area, as applicable, and the permit shall then be offered to the next senior applicant for berth or mooring area, as applicable. Since time is of the essence, the offer delivered or mailed pursuant to section 13-231-87 shall contain a statement that the offer will lapse unless accepted in accordance with the procedures of this section. For the purposes of this subsection an applicant who declines a berth offered to the applicant as provided herein after presenting conclusive evidence to the department that for reasons of safety or navigation the berth offered to the applicant is unsuitable for the applicant's vessel shall not be classified as "an applicant who has declined the offer of a berth". (b) An applicant who has delivered a written notice of intention to accept the offer to the department shall accept the offer by: (1) Securing a use permit for use of the berth or mooring area offered to the applicant as prescribed in sections 13-231-2 and 13-231-3 231-83 Unofficial Compilation within fourteen days after the applicant mails or personally delivers the notice of intention to accept to the department; (2) Otherwise complying with section 200-9, HRS, and sections 13-231-2 and 13-231-3; and (3) Moving the applicant's vessel into the assigned berth or mooring area, as applicable, within fourteen days after the applicant mails or personally delivers the notice of intention to accept the offer to the department. Except as provided in subsection (c) the applicant's application for a use permit, the offer by the State of a use permit and the applicant's notice of intention to accept the offer shall be void if the applicant fails to secure a use permit and to move the applicant's vessel into the applicant's assigned berth or mooring area, as applicable, within fourteen days as prescribed herein, and the use permit shall then be offered to the next senior applicant in accordance with these rules. (c) The department may extend the deadline for acceptance prescribed in subsection (b) if the applicant presents conclusive evidence to the department that the granting of additional time for compliance is reasonable and essential to prevent undue hardship, provided that any extension of time for compliance shall not exceed a period of one hundred twenty days from the date the department received from the applicant a written notice of intention to accept the offer of a use permit. This exception is only applicable to an applicant who has been offered a regular mooring permit. (d) Should an applicant receive additional time for compliance and fail to bring in a vessel to occupy the accepted berth or mooring, the applicant shall pay $250.00 per month, from the time of original acceptance until the one hundred and twentieth day lapses. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS 231-84 Unofficial Compilation §§200-2, 200-4, 200-9, 200-10, 200-22, 200-24) (Imp: HRS §§200-2, 200-4, 200-9, 200-10, 200-22, 200-24) §13-231-89 Offer of temporary mooring permit valid only seven days; notification of intention; acceptance. (a) An applicant for a temporary mooring permit to moor the applicant's vessel in a temporarily vacant berth or offshore mooring who has been offered the use of a berth or mooring area pursuant to this subchapter shall, within seven days after the offer was made by telephone, personal service, or mail, notify the department of the applicant's intention to accept, or decline the offer. If the applicant declines the offer the applicant's application for a temporary mooring permit shall be void and the berth or mooring area shall be offered to the next senior applicant in accordance with these rules. (b) An applicant who has notified the department of the applicant's intention to accept the offer shall accept the offer by: (1) Securing a temporary mooring permit for use of the berth or mooring area offered within 231-80 seven days after the date the offer was made; (2) Moving the applicant's vessel into the assigned berth or mooring area within seven days after the date the offer was made by telephone, personal service, or mail, whichever event is earlier; and (3) Otherwise complying with the requirements of section 200-9, Hawaii Revised Statutes. The applicant's application for a use permit and the applicant's notice of intention to accept the offer shall be void if the applicant fails to secure a use permit and to move the applicant's vessel into the applicant's assigned berth or mooring area within seven days as prescribed herein and the use permit shall then be offered to the next senior applicant for the type of berth or mooring available in accordance with the 231-85 Unofficial Compilation rules. [Eff 2/24/94; am and comp 9/25/14] (Auth: HRS §§200-2, 200-4, 200-9, 200-10, 200-22, 200-24) (Imp: HRS §§200-2, 200-4, 200-9, 200-10, 200-22, 200-24)