Bill Text: HI SB2953 | 2020 | Regular Session | Amended
Bill Title: Relating To Vessels.
Spectrum: Strong Partisan Bill (Democrat 17-1)
Status: (Engrossed - Dead) 2020-03-16 - This measure has been deleted from the meeting scheduled on Tuesday 03-17-20 2:05PM in conference room 325. [SB2953 Detail]
Download: Hawaii-2020-SB2953-Amended.html
THE SENATE |
S.B. NO. |
2953 |
THIRTIETH LEGISLATURE, 2020 |
S.D. 2 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO VESSELS.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that vessel ownership and operation come with many responsibilities and that vessels likewise pose significant threats to natural resources and to public health and safety if abandoned, neglected, or left in disrepair. The legislature recognizes that unauthorized, abandoned, grounded, and derelict vessels on state property and in waters of the State must be removed as soon as possible to minimize the hazards they pose to the public while balancing the vessel owner's right to due process.
Since 2002, the department of land and natural resources, division of boating and ocean recreation has expended in excess of $2,340,000 from the boating special fund to address vessels unauthorized, abandoned, grounded, and derelict vessel on state property or in the waters of the State. However, under existing law, in many instances, by the time the department of land and natural resources can begin removing an unauthorized, abandoned, grounded, or derelict vessel, the condition of the vessel has deteriorated, further complicating removal efforts and increasing the potential to create health, safety, and natural resource threats.
The purpose of this Act is to amend provisions regarding designation, impoundment, and disposal of unauthorized, abandoned, grounded, and derelict vessels on state property or in the waters of the State to facilitate faster responses for these types of incidents.
SECTION 2. Section 200-16, Hawaii Revised Statutes, is amended to read as follows:
"§200-16 [Mooring of
unauthorized vessel in state small boat harbors and offshore mooring areas;]
Unauthorized vessels; impoundment and disposal proceedings. (a) [No
person shall moor a vessel in a state small boat harbor or offshore mooring
area without obtaining a use permit; nor
shall a person continue to moor a vessel in any state small boat harbor or offshore
mooring area if the use permit authorizing the vessel to moor has expired or
otherwise been terminated.] A vessel
moored without a valid use permit [or], moored with a use
permit that has expired or been terminated [is], or moored, anchored,
or stored in waters of the State in violation of any law or rule of the department,
shall be deemed an unauthorized vessel [and is subject to] in violation
of this section[.] and shall be subject to impoundment and disposal.
(b)
The department shall [cause to be placed] place upon, or
as near to [the] an unauthorized vessel as possible, a notice to
remove the vessel, which shall, at a minimum, indicate that the
vessel is in violation of this section, the date and time the notice was
posted, and that the vessel must be removed within seventy-two
hours from the time the notice was posted[.]; provided that if the
vessel is in imminent danger of breaking up or poses a hazard to public health
or safety, the notice shall indicate that the vessel must be removed within
twenty-four hours from the time the notice was posted.
(c) An unauthorized vessel may be impounded by
the department at the sole risk and expense of the owner of the vessel,
if the vessel is not removed after the [seventy-two-hour] period [or]
specified in subsection (b). Calculation
of the time period shall not restart if, during that period,
the vessel is [removed and remoored in the harbor or mooring or anchorage
area or any other state harbor or mooring or anchorage area without a use
permit.] moved anywhere in the waters of the State or to any public property
and remains in violation of this section.
The owner of the vessel shall be solely responsible for all costs of the
impoundment and the disposal of the unauthorized vessel. All owners of unauthorized vessels that are
impounded by the department shall be responsible for paying impound storage fees
to the department while the vessel remains impounded and until the time that the
vessel is returned to the custody of a person entitled to possession. Impound storage fees
shall be equal to the rate set by the department for vessels moored without a
valid permit. Any proceeds [resulting from] collected
by the department in relation to the impoundment and the disposal of the
unauthorized vessel shall be used first to pay for the costs of
impoundment and disposal [and], then to pay for any additional
costs related to the impoundment and disposal, then to pay for any outstanding
mooring fees due[.] to the department by the owner, then to the general
fund. If the proceeds resulting from
the impoundment and the disposal are inadequate to pay for all costs and mooring
fees due, the owner of the unauthorized vessel shall remain liable for [the]
paying the department any and all outstanding costs and mooring fees[.]
due.
(d)
Custody of an unauthorized vessel shall be returned to the person
entitled to possession only upon payment [to the department] in
full of all fees and costs due[,] to the department and any
and all fines levied by the department or a court[.] of competent
jurisdiction. In addition, the
department, within seventy-two hours of impoundment, shall send by certified
mail, return receipt requested, a notice of impoundment to the registered or
documented owner or any lien holder or operator of the impounded vessel on
record with the department or the United States Coast Guard. The owner, lien holder, or operator of the
impounded vessel shall have [ten] five working days after receipt
of notice of impoundment of the vessel to request [in writing] an
administrative hearing. [This] A
request for administrative hearing [is] shall be made in writing to
the department, shall not be deemed delivered until the time that the department
received the written request, and shall be solely for the purpose of
allowing the owner, lien holder, or operator of an impounded vessel to contest
the basis given by the department for the impoundment of the vessel. The administrative hearing must be
held within [five] ten working days of [the department's
receipt] delivery of the written request. The department [shall] may
adopt rules pursuant to chapter 91 to implement the requirement for this
post-seizure administrative hearing process.
(e)
Any unauthorized vessel impounded under this section, which remains
unclaimed for more than [thirty] ten working days by the registered
or documented owner, a lien holder, or operator of record, may be sold by the department
at public auction. If the department does
not or is unable to sell the vessel at public auction, [or if its
appraised value is less than $5,000 as determined by an independent appraiser
with at least one year of experience in the sale and purchase of vessels,]
the department, after giving public notice of intended disposition, if that
notice was not previously included in a public auction notice, may sell the
vessel by negotiation, retain and use the vessel, donate it to any other
government agency, or dispose of it as junk."
SECTION 3. Section 200-41, Hawaii Revised Statutes, is amended to read as follows:
"§200-41 [Disposition of
certain abandoned] Abandonment of vessels. (a) No
person shall abandon any vessel upon the waters of the State or upon any property,
other than the property of the vessel owner, without the consent of the property
owner.
[(a) Any] (b) A vessel [may be deemed]
shall be presumed abandoned if [the]:
(1) The vessel
has been moored, anchored, or otherwise left in the waters of the State
or on public property [contrary to law or rules having the force and effect
of law, or left] unattended for more than seventy-two hours;
(2) The vessel has been
left unattended on private property without authorization of the owner or
occupant of the property [if:
(1) The vessel's registration certificate or
marine document has expired and the registered owner no longer resides at the
address listed in the vessel registration or marine document records of the
department or the United States Coast Guard;] for more than seventy-two hours;
[(2)] (3) The last registered owner of record disclaims
ownership and the current owner's name or address cannot be determined;
[(3) The vessel identification numbers and other
means of identification have been removed so as to hinder or nullify efforts to
locate or identify the owner;
(4) The vessel registration records of the
department of land and natural resources and the marine document records of the
United States Coast Guard contain no record that the vessel has ever been
registered or documented and the owner's name or address cannot be determined;
or]
(4) The vessel does not have a valid registration
certificate or United States Coast Guard documentation and has been moored, anchored,
or otherwise left in the waters of the State or in public property unattended for
more than seventy-two hours; or
(5) The requirements of section 200-52 are met.
[(b)]
(c) The determination whether a
vessel is abandoned on public property may be made by:
(1) The chairperson, or their authorized representative,
with regard to public property under the jurisdiction of the department of
land and natural resources; [or]
(2) Any other state department or agency through
its director, with regard to public property within the department or agency's
respective jurisdiction; or
(3) Any county through its mayor or the mayor's
designee, or chief of police, with regard to public property within the
respective county's jurisdiction; provided that the department shall provide to
the respective county access to the department's vessel registration and marine
document records or those of the United States Coast Guard for the purposes of
this section.
Once a vessel is deemed abandoned[,]
on waters of the State or on public property, the appropriate official
under this subsection may direct and cause the vessel to be taken into custody
and disposed of pursuant to and in the manner provided in this [chapter.]
part. All owners of abandoned vessels
that are impounded by the department shall be responsible for paying impound fees
to the department while the vessel remains impounded and until such time that the
vessel is returned to the custody of a person entitled to possession. Impound storage fees shall be equal to the
rate set by the department for vessels moored without a valid permit.
[(c)]
(d) All vessels abandoned on
private property shall be the responsibility of the private property owner.
(e) Any person who abandons a vessel on waters of the State or on public property shall be guilty of a petty misdemeanor and shall be fined not more than $1,000 or imprisoned not more than thirty days, or both, for each offense. Each day of each violation shall be deemed a separate offense. All criminal fines collected pursuant to this subsection shall be deposited in the general fund in accordance with section 706‑643. It shall be an affirmative defense to prosecution that a vessel was abandoned during a national emergency declared by the president of the United States or Congress, or a state of emergency declared by the governor, or as otherwise approved in writing by the chairperson; provided that the defense shall be valid only for the duration of the declared emergency of written approval."
SECTION 4. Section 200-42, Hawaii Revised Statutes, is amended to read as follows:
"§200-42 Notice to owner. A state or county agency,
upon taking custody of any vessel[,] deemed abandoned pursuant to section
200-41, shall immediately post a written notice on the vessel and send a
duplicate original by registered or certified mail, with a return receipt requested,
to any owner registered with the department or documented by the United States
Coast Guard or any lien holder or operator of the vessel on record with the
department or the United States Coast Guard at their respective last known
address on record with the department or the United States Coast Guard. The notice shall contain a brief description
of the vessel, the location of custody, and the intended disposition of the
vessel if not repossessed within [twenty] ten working days after
the mailing of the notice. [Such owner,
lien holder, or operator, of the vessel shall have ten days after receipt of
the mailed notice to request in writing an administrative hearing pursuant to
chapter 91 from the state or county agency that took custody of the vessel. This administrative hearing is solely for the
purpose of allowing the owner, lien holder, or operator of an impounded vessel
to contest the basis given for the impoundment of the vessel. The hearing shall be held within five working
days of the state or county agency's receipt of the written request.]
The owner, lien holder, or operator of the vessel shall have five working days
after receipt of notice of impoundment of the vessel to request administrative hearing
from the state or county agency that took custody of the vessel. A request for administrative hearing shall be made
in writing to the state or county agency that took custody of the vessel, shall
not be deemed delivered until the time that the agency receives the written request,
and shall be solely for the purpose of allowing the owner, lien holder, or operator
of an impounded vessel to contest the basis given by the agency for the impoundment
of the vessel. The administrative hearing
shall be held within ten working days of delivery of the written request."
SECTION 5. Section 200-43, Hawaii Revised Statutes, is amended to read as follows:
"§200-43 Public auction[.];
disposition of abandoned vessels.
[If the vessel is not repossessed within twenty days after the
mailing of the notice, the vessel shall be disposed of by public auction,
through oral tenders, or by sealed bids, after public notice has been given at
least once; provided that the public auction shall not be held less than five
days after the notice is given. Where no
bid is received, the vessel may be sold by negotiation, disposed of as junk, or
donated to any governmental agency.] Any abandoned vessel impounded under
this part, which remains unclaimed by the registered or documented owner, lien holder,
or operator of record, for more than ten working days after mailing of the notice
required by section 200-42 may be sold at public auction by the state or county
agency that took custody of the vessel. If
the agency does not or is unable to sell the vessel at public auction, the agency,
after giving public notice of intended disposition, if the notice was not previously
included in a public auction notice, may sell the vessel by negotiation, retain
and use the vessel, donate the vessel to any other government agency, or dispose
of the vessel as junk."
SECTION 6. Section 200-47.5, Hawaii Revised Statutes, is amended by amending subsections (b), (c), (d), (e), (f), and (g) to read as follows:
"(b) Solely for the purposes of removal and with no
liability to the department, the department may immediately
assume control of any vessel that is grounded on state submerged land, a
shoreline, or a coral reef [or] that is
in imminent danger of breaking up and cannot be removed by
the owner within twenty-four hours from the time the vessel is grounded; provided that
this subsection shall not apply [if]:
(1) During a national
emergency declared by the president of the United States or Congress;
(2) During a state of
emergency declared by the governor;
(3) If the
owner or owner's representative has received notice from the department and has
commenced effective salvage operations[.]; or
(4) If otherwise approved
by the chairperson.
(c)
[Vessels] Except during a national emergency declared by the president
of the United States or Congress, or a state of emergency declared by the governor,
or as otherwise approved in writing by the chairperson, vessels grounded on
a sand beach, sandbar, or mudflat [and not in imminent danger of breaking up]
shall be removed by the owner or operator within seventy-two hours[, unless
otherwise agreed to by the department].
(d) Solely
for the purposes of removal and with no liability to the department, the
department may immediately assume control of any vessel grounded on a sand beach, sandbar, or mudflat and not in imminent danger
of breaking up that is not removed by the owner in a manner that is reasonably
safe, as determined by the department, within seventy-two hours of notification
to the vessel owner or the owner's representative; provided that this subsection
shall not apply [if]:
(1) During a national
emergency declared by the president of the United States or Congress;
(2) During a state of
emergency declared by the governor;
(3) If the
owner or owner's representative has received notice from the department and has
commenced effective salvage operations[.]; or
(4) If otherwise approved
by the chairperson.
(e) Once the department assumes control [over
the] of a vessel[,] pursuant to this section, the
vessel shall be removed by conventional salvage methods if possible, and if not
possible then by any means necessary[,] to minimize damage to the
natural resources and not become a hazard to navigation.
(f) All costs and expenses [of] related
to removing the vessel and damage to state or private property shall be the
sole responsibility of the vessel's owner or operator. The department may take legal action to
collect any costs or expenses incurred by the department for any removal under
this section. All moneys collected shall
be deposited in the boating special fund.
(g) Any person who renders assistance to the
department when it acts pursuant to subsection (b) or (c) and any person who,
in good faith and without remuneration or expectation of remuneration, renders
assistance at the scene of a vessel:
(1) Grounded
on state submerged land, a shoreline, or a coral reef;
(2) In
imminent danger of breaking up; or
(3) Grounded on a sand
beach, sandbar, or mudflat [and not in imminent danger of breaking up],
shall not be liable for any civil damages resulting from the person's
acts or omissions in providing or arranging towage or other assistance, except
for damages caused by the person's gross negligence or wanton acts or
omissions."
SECTION 7. Section 200-49, Hawaii Revised Statutes, is amended by amending subsections (b) and (c) to read as follows:
"(b) The owner, lien holder, or operator of the
vessel shall have [ten] five working days after the date of the
public notice or receipt of the mailed notice, whichever occurs later, to
request [in writing] an administrative hearing. [This] A request for an administrative
hearing [is] shall be made in writing to the department, shall not be
deem delivered until the time that the department receives the writing request,
and shall be solely for the purpose of allowing the owner, lien holder, or
operator of [an] the impounded vessel to contest the basis given
by the department for the impoundment of the vessel. The administrative hearing must be
held within [five] ten working days of [the department's
receipt] delivery of the written request.
(c)
If the vessel is not repossessed within [twenty] ten days
after the date of the public notice or mailing of the notice, whichever occurs
later, the vessel may be disposed of by negotiated sale except that, when two
or more purchasers indicate an interest in purchasing the vessel, the vessel
will be sold at public auction to the highest bidder[, unless the vessel is
exempt from public auction under section 200-45]. If no purchaser expresses a desire to
purchase the vessel, the vessel may be destroyed or donated to any governmental
agency."
SECTION 8. Section 200-45, Hawaii Revised Statutes, is repealed.
["§200-45
When public auction not required.
Public auction shall not be required when
the appraised value of any vessel is less than $5,000, as determined by an
independent appraiser who has at least one year of experience in the sale or
purchase of vessels. Upon that determination,
after public notice of intended disposition has been given at least once, the
state or county agency that took custody of the vessel may sell the vessel by
negotiation, dispose of it as junk, or donate the vessel to any governmental
agency."]
SECTION 9. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 10. This Act shall take effect upon its approval.
Report Title:
Unauthorized Vessels; Grounded Vessels; Abandoned Vessels; Derelict Vessels; Vessel Impoundment; Vessel Auctions; Vessel Disposal; DLNR
Description:
Makes clarifications regarding removal of unauthorized vessels on state property. Makes clarifications regarding the definition of an abandoned vessel. Changes the time limit to claim an unauthorized vessel that is impounded by the department of land and natural resources from thirty days to ten working days. Changes the time limit to claim an abandoned vessel that is impounded by a state or county agency from twenty days to ten working days. Makes abandonment of a vessel on waters of the State or public property a petty misdemeanor. Makes clarifications to auction requirements regarding abandoned vessels. Allows DLNR to charge an impound storage fee. (SD2)
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