Hawaii 2024 Regular Session

Hawaii Senate Bill SB3164 Compare Versions

Only one version of the bill is available at this time.

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1	1	THE SENATE S.B. NO. 3164 THIRTY-SECOND LEGISLATURE, 2024 STATE OF HAWAII A BILL FOR AN ACT RELATING TO COMMERCIAL OCEAN ACTIVITY. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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3	3	THE SENATE S.B. NO. 3164
4	4	THIRTY-SECOND LEGISLATURE, 2024
5	5	STATE OF HAWAII
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7	7	THE SENATE
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9	9	S.B. NO.
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11	11	3164
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13	13	THIRTY-SECOND LEGISLATURE, 2024
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17	17	STATE OF HAWAII
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31	31	A BILL FOR AN ACT
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37	37	RELATING TO COMMERCIAL OCEAN ACTIVITY.
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43	43	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
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47	47	SECTION 1. The department of land and natural resources (department) division of boating and ocean recreation is responsible for ocean recreation management in state ocean waters, among other responsibilities. Public safety and marine natural resources can be impacted by a variety of environmental factors and emerging ocean recreation technologies, some of which may change rapidly and frequently. This Act is part of a comprehensive ocean recreation management package put forth by the department to ensure effective natural resource protection by providing better management and enforcement tools. Over the years, over‑commercialization of state ocean waters has been unnaturally encouraged via social media and through unpermitted ocean tour operators who advertise and operate without regard for laws, rules, regulations, and cultural awareness. These unpermitted commercial operators set up advertisements and online payment schemes, circumventing commercial ocean activity laws and restrictions. Subsequently, when attempting to enforce against illegal commercial activity, department staff have oftentimes encountered difficulty in proving that commercial activity or compensation of the alleged illegal commercial operator occurred. Many illegal commercial operators and their customers claim that a commercial tour is a "friends and family" outing for no compensation, preventing effective enforcement. Therefore, the purpose of this Act is to update the law defining commercial ocean activities. SECTION 2. Section 200-4, Hawaii Revised Statutes, is amended to read as follows: "§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, and 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, including: (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, including: (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 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; (8) To regulate the examination, guidance, and control of harbor agents and their assistants; and (9) To regulate commercial activities in state waters including operations originating from private marinas; provided that no new or additional permits shall be required for those commercial activities regulated by any other chapter. For the purposes of this paragraph: "Commercial activity" means to engage in any action or attempt to engage in any action for compensation in any form. The action or actions may include providing or attempting to provide advertising or offering or attempting to offer guide services, charters, tours, and transportation to and from the location or locations for which such services are provided. Advertisement or offers in print; by word of mouth; or online in any form, including through social media, of unpermitted commercial ocean use activities or commercial ocean recreational equipment shall be prima facie evidence that: (1) The owner of the advertised or offered commercial activity disseminated or directed the dissemination of the advertisement or offer in that form and manner; and (2) The commercial activity is being operated at the location advertised or offered. The burden of proof shall be on a person charged with a violation of commercial activity restrictions under this chapter or rules adopted by the department to establish that vessels or equipment, or both, are not being used for unpermitted commercial activity or that the person's conduct is authorized pursuant to a permit, lease, or license issued by the department. "Compensation" means money, barter, trade, credit, and other instruments of value, goods, and other forms of payment. "Social media" means any form of electronic communication through which users create online communities to share information, personal messages, and other content, offered from platforms including, but not limited to, Facebook, YouTube, TikTok, Instagram, Yelp, Tripadvisor, Twitter, Reddit, and Foursquare. (b) All rules shall be adopted in accordance with chapter 91 and shall have the force and effect of law." SECTION 3. New statutory material is underscored. SECTION 4. This Act shall take effect upon its approval. INTRODUCED BY: _____________________________ BY REQUEST
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49	49	SECTION 1. The department of land and natural resources (department) division of boating and ocean recreation is responsible for ocean recreation management in state ocean waters, among other responsibilities. Public safety and marine natural resources can be impacted by a variety of environmental factors and emerging ocean recreation technologies, some of which may change rapidly and frequently. This Act is part of a comprehensive ocean recreation management package put forth by the department to ensure effective natural resource protection by providing better management and enforcement tools.
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51	51	Over the years, over‑commercialization of state ocean waters has been unnaturally encouraged via social media and through unpermitted ocean tour operators who advertise and operate without regard for laws, rules, regulations, and cultural awareness. These unpermitted commercial operators set up advertisements and online payment schemes, circumventing commercial ocean activity laws and restrictions. Subsequently, when attempting to enforce against illegal commercial activity, department staff have oftentimes encountered difficulty in proving that commercial activity or compensation of the alleged illegal commercial operator occurred. Many illegal commercial operators and their customers claim that a commercial tour is a "friends and family" outing for no compensation, preventing effective enforcement.
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53	53	Therefore, the purpose of this Act is to update the law defining commercial ocean activities.
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55	55	SECTION 2. Section 200-4, Hawaii Revised Statutes, is amended to read as follows:
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57	57	"§200-4 Rules. (a) The chairperson may adopt rules necessary:
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59	59	(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;
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61	61	(2) To regulate the embarking and disembarking of passengers at small boat harbors, launching ramps, other boating facilities, and public beaches;
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63	63	(3) For the safety of small boat harbors, launching ramps, and other boating facilities, and the vessels anchored or moored therein;
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65	65	(4) For the conduct of the public using small boat harbors, launching ramps, and other boating facilities owned or controlled by the State;
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67	67	(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;
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69	69	(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, including:
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71	71	(A) Requirements for permits and fees for:
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73	73	(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
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75	75	(ii) Other uses of these facilities;
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77	77	(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;
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79	79	(C) Requirements governing:
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81	81	(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
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83	83	(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
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85	85	(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;
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87	87	(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, including:
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89	89	(A) Regulating the anchoring and mooring of vessels, houseboats, and other contrivances outside of any harbor or boating facility, including:
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91	91	(i) The designation of offshore mooring areas;
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93	93	(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
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95	95	(iii) The living aboard on vessels, houseboats, or other contrivances while they are anchored or moored within ocean waters or navigable streams of the State.
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97	97	The rules shall provide for consideration of environmental impacts on the State's aquatic resources in the issuance of any permits for offshore mooring;
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99	99	(B) Safety measures, requirements, and practices in or on the ocean waters and navigable streams of the State;
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101	101	(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;
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103	103	(D) The licensing and registration of equipment utilized for commercial activities in or on the ocean waters and navigable streams of the State;
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105	105	(E) For beaches encumbered with easements in favor of the public, the prohibition or denial of the following uses and activities:
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107	107	(i) Commercial activities;
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109	109	(ii) The storage, parking, and display of any personal property;
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111	111	(iii) The placement of structures or obstructions;
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113	113	(iv) The beaching, landing, mooring, or anchoring of any vessels; and
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115	115	(v) Other uses or activities that may interfere with the public use and enjoyment of these beaches; and
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117	117	(F) Any other matter relating to the safety, health, and welfare of the general public;
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119	119	(8) To regulate the examination, guidance, and control of harbor agents and their assistants; and
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121	121	(9) To regulate commercial activities in state waters including operations originating from private marinas; provided that no new or additional permits shall be required for those commercial activities regulated by any other chapter.
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123	123	For the purposes of this paragraph:
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125	125	"Commercial activity" means to engage in any action or attempt to engage in any action for compensation in any form. The action or actions may include providing or attempting to provide advertising or offering or attempting to offer guide services, charters, tours, and transportation to and from the location or locations for which such services are provided. Advertisement or offers in print; by word of mouth; or online in any form, including through social media, of unpermitted commercial ocean use activities or commercial ocean recreational equipment shall be prima facie evidence that:
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127	127	(1) The owner of the advertised or offered commercial activity disseminated or directed the dissemination of the advertisement or offer in that form and manner; and
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129	129	(2) The commercial activity is being operated at the location advertised or offered.
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131	131	The burden of proof shall be on a person charged with a violation of commercial activity restrictions under this chapter or rules adopted by the department to establish that vessels or equipment, or both, are not being used for unpermitted commercial activity or that the person's conduct is authorized pursuant to a permit, lease, or license issued by the department.
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133	133	"Compensation" means money, barter, trade, credit, and other instruments of value, goods, and other forms of payment.
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135	135	"Social media" means any form of electronic communication through which users create online communities to share information, personal messages, and other content, offered from platforms including, but not limited to, Facebook, YouTube, TikTok, Instagram, Yelp, Tripadvisor, Twitter, Reddit, and Foursquare.
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137	137	(b) All rules shall be adopted in accordance with chapter 91 and shall have the force and effect of law."
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139	139	SECTION 3. New statutory material is underscored.
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141	141	SECTION 4. This Act shall take effect upon its approval.
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145	145	INTRODUCED BY: _____________________________
146	146	BY REQUEST
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148	148	INTRODUCED BY:
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156	156	BY REQUEST
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158	158	Report Title: Commercial Ocean Activity; Advertisements and Offers Description: Includes advertisements and offers in the definition of "commercial activity" as used in chapter 200, HRS. Provides that advertisements or offers for commercial activity are prima facie evidence that the owner disseminated or directed dissemination of such advertisements or offers. The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
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166	166	Report Title:
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168	168	Commercial Ocean Activity; Advertisements and Offers
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172	172	Description:
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174	174	Includes advertisements and offers in the definition of "commercial activity" as used in chapter 200, HRS. Provides that advertisements or offers for commercial activity are prima facie evidence that the owner disseminated or directed dissemination of such advertisements or offers.
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182	182	The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.