HAR §13-256-2. Interpretation

(a) If any section of these rules is inconsistent with any law of the State of Hawaii, or any laws of the United States, or any rule, or standard established pursuant to federal law, the State law or federal law, rule or standard shall govern. Nothing contained in these rules shall be construed to limit the powers of any department or agency of the state. (b) These rules shall be construed liberally, 256-8 Unofficial Compilation consistent with the purpose stated in section 13-256- 1. (c) In areas designated for a specific use, if another use is not specifically restricted, that use is presumed to be allowed in addition to the use for which the area is designated, unless otherwise prohibited by this chapter. [Eff 2/24/94] (Auth: HRS §§200-22, 200-24) (Auth: HRS §§200-22, 200-24) §13-256-3 Commercial use permit or catamaran registration certificate requirements. All operators of commercial vessels, water craft or water sports equipment or activities conducting commercial tours or instruction on State ocean waters must obtain a commercial use permit or where applicable a catamaran registration certificate to be issued by the department, except for those operating out of a state commercial harbor. The applicant for such permit shall comply with the applicable provisions stated in sections 13-231-50 to 13-231-70. [Eff 2/24/94; am 9/25/14; am 12/31/18] (Auth: HRS §§200-22, 200-24) (Imp: HRS §§200-22, 200-24) §13-256-4 Commercial vessel and water sports equipment registration requirements. (a) All commercial vessels, water craft or water sports equipment shall be registered with the department for commercial use in compliance with sections 13-231-50 to 13-231-70. (b) Commercial use permits issued by the department for commercial vessels operating from state harbors or boating facilities are exempt from the requirements of this section. [Eff 2/24/94; am 9/25/14] (Auth: HRS §§200-2, 200-3, 200-4, 200-22, 200-24) (Imp: HRS §§200-2, 200-3, 200-4, 200-22, 200- 24) §13-256-5 Commercial use permits; public 256-9 Unofficial Compilation auction. (a) Unless otherwise provided by law, all commercial use permits issued by the department under this chapter for thrill craft or parasail operations may be made at public auction under sealed bid after public notice. (b) Before any prospective bidder is entitled to submit a bid for a commercial use permit, the prospective bidder shall, not less than six calendar days prior to the day designated for opening bids, give written notice of its intention to bid to the officer charged with issuing the commercial use permits. Each prospective bidder shall submit answers, under oath, to questions contained in a questionnaire, provided by the department, setting forth a complete statement of the experience, competence and financial standing of the prospective bidder. The names and the number of persons who have submitted a notice of intention to bid shall not be divulged. Information contained in the answers to the questionnaire shall remain confidential, and any government officer or employee who knowingly divulges or permits to be divulged any such information to any person not fully entitled thereto shall be fined not more than $250. A questionnaire so submitted shall be returned to the bidder after having served its purpose. (c) Advertisement for bids. Publication of a call for tenders shall be made not less than three times on not less than three different days in a newspaper of general circulation printed and published within the State and in a newspaper of general circulation published in the county in which the designated area is located. The first publication shall be not less than three weeks prior to the date designated for the opening of tenders. Notice of the call for tenders shall contain the following: (1) Location where the bid questionnaire is available; (2) Time and place of the opening of tenders; (3) General description of the designated area; (4) Specific use for which the commercial use permit is intended; and 256-10 Unofficial Compilation (5) The upset price as established by the department. Unless a higher amount is specified for a specific commercial use permit the annual upset price shall be $900, which is the monthly charge of $75. If the commercial use permit is located within an area which requires less than twelve months of operation, the upset price shall be adjusted accordingly. (d) All bids shall be sealed and delivered to the officer advertising therefor and shall be opened by the officer at the time and place to be stated in the call for tenders which time shall not be less than ten days after the last publication, in the presence of all bidders who attend, and may be inspected by any bidder. All bids which do not comply with the requirements of the call for tenders shall be rejected. The officer calling for bids may reject any or all bids and waive any defects when in the officer's opinion such rejection or waiver will be in the best interest of the public. (e) All bids shall be accompanied by a deposit of legal tender, or a certificate of deposit, cashier's check or certified check on a bank that is insured by the Federal Deposit Insurance Corporation, or on a savings institution insured by the Federal Savings & Loan Insurance Corporation or by a share certificate issued by a credit union insured by the National Credit Union Administration, in a sum of not less than five per cent of the amount bid, payable at sight to the officer advertising for tenders. A bid deposit may also be in the form of a surety bond conforming to the requirements of section 102-8, Hawaii Revised Statutes. (f) If the highest bidder to whom the commercial use permit is awarded fails or neglects to fully comply with the terms and conditions for the issuance of the commercial use permit within ten days after the award or within such further time as the officer awarding the permit may allow, the bidder shall forfeit the bid deposit to the State. If the permit is 256-11 Unofficial Compilation issued, the bid deposit shall be returned to the permittee upon receipt of the first monthly payment. The deposits made by the unsuccessful bidders shall be returned to them after the commercial use permit is issued or if the commercial use permit is not awarded or issued after the officer's determination to publish another call for tenders or not to issue any commercial use permit. (g) The commercial use permit shall be awarded to the highest qualified bidder. If there is more than one authorized commercial operating area in a particular designated area, then the permit for each operating area shall be made by a separate call for tenders. (h) No commercial operator shall be awarded more than one commercial use permit per designated area. Each bidder shall be awarded only one commercial use permit per designated area. Thus, if a bidder is the highest qualified bidder on more than one operating area then that bidder shall choose one operating area and the bidder's other bids shall be deemed withdrawn. (i) Each commercial use permit shall be valid for one year with an option to renew the commercial use permit no more than four times, which shall be accomplished on or before the anniversary date of its initial issuance. A permittee interested in renewing its commercial use permit, shall however, notify the department sixty days before the expiration of the commercial use permit of its intent to renew. The terms and conditions during the renewal period shall be the same as those applicable to the initial issuance except as to the renewal option which shall in no event cause the commercial use permit to be renewed more than four times. At the end of the fourth renewal period of the permit, the permit may again be offered for public auction, provided that the previous permittee shall be offered the right of first refusal at the new upset price. (j) Monthly payments for a commercial use permit shall be based upon: (1) One-twelfth of the bid price; or 256-12 Unofficial Compilation (2) A percentage of the monthly gross receipts equal to three per cent, whichever is greater. "Gross receipts" is defined in section 13-230-8. (k) The commercial use permit does not give the permittee any vested property rights. The department reserves the right not to issue or renew any commercial use permits. [Eff 2/24/94; am 12/31/18] (Auth: HRS §§200-2, 200-3, 200-4) (Imp: HRS §200-2, 200-3, 200-4) §13-256-6 Transferability of commercial use permits. (a) A commercial use permit issued to an individual is non-transferable, so that whenever the permittee parts with possession or transfers the title to or interest in the vessel identified in the commercial use permit to another person or business entity by any arrangement, the commercial use permit shall expire. The new possessor, transferee, or owner of the vessel shall have no right to use the commercial use permit. Notwithstanding the prohibition of individuals transferring commercial use permits, the department will allow the one-time transfer of ownership of the vessel from personal ownership to corporate or other business ownership without terminating the rights to operate the commercial vessel under the commercial use permit. (b) The following rights, conditions, and restrictions apply to commercial use permits issued to a corporation or other business entity. (1) Any person owning an interest in a corporation or other business entity possessing a valid commercial use permit issued by the department may transfer any or all stock or other interest to another person without terminating the right of the corporation or business entity to retain or renew its commercial use permit; provided that the corporation or business entity has been engaged in the same commercial vessel 256-13 Unofficial Compilation activity for a minimum of one year and provided that the department is notified within 7 days of the transfer of all transactions that amount to a transfer of the stock or interest, as defined in section 13-256-7 in the corporation or business entity by the owners of record. (2) The business transfer fee must be paid before any transfer is permitted. (c) A commercial use permit issued for a thrill craft or parasail operating area shall automatically terminate upon the transfer of any or all interest in the corporation or other business entity holding the permit. [Eff 2/24/94] (Auth: HRS §§200-2, 200-3, 200- 4, 200-10, 200-24) (Imp: HRS §200-2, 200-3, 200-4, 200-2, 200-3, 200-10)