White Papers

TO: Governor Neil Abercrombie

FROM: Hawaii Fishing and Boating Association

DATE: December 15, 2010

RE: Executive Intervention in DBOR Administrative Activities

 

Request: Hawaii Fishing and Boating Association, on behalf of the state’s small boat harbor and ramp users, respectfully requests that the Governor, by executive order, implement the directives set forth below at the earliest possible time.

Statement of Issue: Beginning April 2010, DOBOR changed Honokohau Harbor mooring classification, and in other harbors statewide, from "Bow/stern" to "Along catwalk" applicable to all new mooring permits. This change was made without public notice, discussion or hearings. The DOBOR administrator said he was simply correcting an error that had persisted since the harbor's construction – forty years ago. The financial implication of this unilateral administrative change is dramatic. Effective January 22, 2010, mooring fees were increased by amendment to HAR §13-234-3 as follows: For new recreational mooring applicants, Honokohau (category B) Bow/stern increased from $3.82 to per foot to $4.17 and for Along catwalk the increase was from $4.32 to $7.79 per foot (double that for commercial permits).

At Honokohau Harbor approximately 239 of the 247 berths employ a mooring set in the water a distance away from a pier, with which to secure the bow or stern of a vessel. The vessel lies perpendicular and is made fast to the pier with two lines. That configuration has always been described as a "bow/stern" mooring. In some Hawaii State harbors, there are berths for boats alongside catwalks or piers. In those berths, boats lie parallel to the pier or catwalk. HAR §13-230-8 Definitions states: ""Berth" means any place where a vessel is anchored, moored, or made fast or laid alongside a dock, quay, catwalk or pier." The word "Alongside" clearly indicates the vessel is secured parallel to a structure. This definition originated in the first Department of Transportation, Harbors Division Hawaii Administrative Rules dated November 1981 (§19-61-8) and remained substantially unchanged when DLNR took over and issued Hawaii Administrative Rules adopted August 13, 1993. Since the first Hawaii Administrative Rules pertaining to Small Boat Harbors was issued, there have been a number of changes and additions to what is now HAR §13-230-8 Definitions. None of these changes have applied to mooring types or specifically to "Alongside Catwalk." The logical conclusion is that no change was intended, discussed or noticed to the public. Therefore, applying a unilateral change that carries so much financial impact is not authorized by the Rules, and should be prohibited.

HAR §13-234-3 Mooring rates organizes rates in a table according to value. The most secure mooring is along (alongside) a catwalk which, logically, is the highest rate, then bow-stern, and owners buoy or anchor at lower rates. When rates were adjusted in the HAR Amendment dated July 5, 2006, the public hearing or disclosure HAR Amendments version deleted the then-existing two page rate schedule (pages 2 and 3 of "Disclosure") and inserted a revised three page rate schedule (pages 5,6 and 7 of "Disclosure"). The top rate of the deleted schedule was "(1) Alongside catwalk," while the top rate of the revised schedule was "Along catwalk."

That subtle and undisclosed change from "Alongside catwalk" to "Along catwalk" is the only "change" relating to that definition term in HAR. The "change" occurred without notice or discussion and was included in the Mooring Rates paragraph where people are naturally focused on dollars, not column headings or definitions. The "change" appears to be a typographical error, an inadvertent omission now being exploited to raise mooring rates without regard to historic practice, custom or actual value. Indeed, if the current administrator’s unilateral redefinition of "Along catwalk" is allowed to be substituted for "bow/stern," moorings where some vessels are parallel and others are perpendicular to a pier will be charged the same rate. Clearly, there is more value to a mooring where the boat is alongside, permitting easy and safe boarding amidships, rather than by jumping from the pier to the bow or stern of the vessel. In one harbor, Wailoa Hilo, the same Catwalk rates are charged for vessels that are both parallel and perpendicular to the pier.

Recommendation:

Until such time as HAR §13-230-8 Definitions can be properly amended to include clear definitions of "alongside catwalk" and "bow/stern mooring," and clarify which definition relates to each mooring type in Hawaii, it is respectfully requested that at the earliest possible date,the Governor:

  1. Direct DLNR/DOBOR to discontinue applying catwalk rates to berths that have historically been rated as bow/stern moorings.
  2. Direct DLNR/DOBOR to immediately refund or credit the account of those permit holders who have been erroneously charged rates not currently authorized in HAR §13-234-3 Mooring rates.
  3. Direct DLNR/DOBOR to immediately begin drafting changes to HAR §13-230-8 Definitions for inclusion in the current HAR Amendments package before it goes to public discussions or hearings. Definitions must include clear and comprehensive descriptions of all state mooring types.

TO: Governor Neil Abercrombie

FROM: Hawaii Fishing and Boating Association

DATE: December 15, 2010

RE: Executive Intervention in DBOR Administrative Activities: Renewal Process

 

Request: Hawaii Fishing and Boating Association, on behalf of the state’s small boat harbor and launch ramp users, respectfully requests that the Governor, by executive order, implement the directives set forth below at the earliest possible time.

Statement of Issue: In late 2009, DBOR informed existing holders of slips and ramp permits that it would abandon its prior practice of notifying permittees by certified mail in advance of the expiration of their permits. The practice of notification prior to renewal had been in place for decades, and many permit holders relied on this notification to remind them to initiate the renewal process. This notification process was especially important to those who had local agents handling their day-to-day harbor related businesses.

The change in policy resulted in the staff at DBOR preparing, in advance of the expiration date, a certified letter notifying the permit holder they had irretrievably lost their permit, and then just sitting around, waiting, to see if, in fact, the permit holder would remember to renew in a timely fashion. Once the renewal date passes, the notification of revocation is mailed, and another faithful permittee is removed from the harbor community without recourse. DBOR justifies this change of practice based on a claimed annual savings of $10,000 for the cost of the certified mailings. In spite of DOBOR's stated desire to save mailing costs, at Ala Wai they refund temporary slip permittees $25.00 key deposit by Certified Mail at $5.89 per refund. Ala Wai also sends certified mailing to remind those on the waitlist of their renewal date.

The harbor community believes that while annual permit notification may be a real cost, their explanation is a sham—that the real reason is a not too secret desire on the part of DBOR to terminate existing users so that new users can be put in place from whom higher user fees can be extracted, and to reduce the waiting list which has stretched for more than a decade for some boat sizes, which has caused considerable friction and criticism. It is the harbor community’s belief that it is now, and has been from the start, all about DBOR’s desire to eliminate long term users whose slip fees are, for the moment, lower that those currently coming in to the harbor.

As a consequence of the discontinuance of the notice of impending renewal at DBOR, scores of permit holders across the state have been summarily tossed out of our harbors.

They are afforded absolutely no recourse – no grace period within which to cure their oversight, no recognition that they have money deposits on file to ensure against their nonperformance, no opportunity to renew at the higher rates – nothing. Some of the factual circumstances attending the loss of permits have, in our most humble opinions, actually been unlawful. Nonetheless, since Ed Underwood is both the architect of the policy and the gatekeeper for access to a contested hearing before the BLNR, and since he is staunch in his position that the HARs provide no discretion or recourse of any kind to a late renewal applicant, he has refused each and every application for contested hearing of which we are aware.

Recommendation: Pending the presently envisioned wholesale review, updating, and reorganization of the Hawaii Administrative Rules that affect the boating community, it is respectfully suggested that at the earliest possible date, the Governor:

  1. Direct DLNR/DBOR to immediately reinstitute the notification of permit holders that the time to renew is approaching; that the renewal notice be sent not less than 30 days in advance of its expiration; and that the notice be sent by certified mail.
  2. Direct DLNR/DBOR to apply the existing provision in the HARs that provides permit holders an opportunity to cure a breach to the late renewal of permits. (Currently, Director Underwood refuses to acknowledge this provision has any vitality whatsoever.)
  3. Direct DLNR/DBOR to place permit holders who were denied the opportunity to cure pursuant to HAR §130234016(B) at the top of the respective harbor’s waiting list for permits in the order of their denial, and that they be awarded the first available permit if still desired. This should apply to all who have lost their permit for late renewal since the institution of the "no notice" policy.

If DLNR/DBOR is directed as suggested above, these new policies will bring a halt to the imperious and punitive administrative environment that has been created in our state’s harbors. Permit holders are more than willing to pay reasonable fees, to comply with renewal requirements, and to be partners in the success of our harbors. All they ask is that they be provided fair and evenhanded treatment by those charged with the administration of our harbors.


TO: Governor Neil Abercrombie

FROM: Hawaii Fishing and Boating Association

DATE: December 15, 2010

RE: Executive Intervention in DBOR Administration:

Commercial Fishing Corporation Mooring Permit Transfers

 

Statement of Issue: After 15+ years of administrative practice allowing the transfer of State small boat harbor mooring permits upon the sale of the stock of the commercial fishing corporation holding such a permit, the current DOBOR Administrator arbitrarily opted to halt this important legislatively enabled practice. Previous DOBOR administrators, who were privy to the original legislative intent, correctly interpreted HRS 200 10 d, which was enacted to facilitate the transferability of the mooring permits of commercial fishing corporations. Those permits were deemed by the legislature to be an essential business asset of any commercial fishing business, which they are.

Background: The statue allows the holder of a valid commercial fishing license and a mooring permit to transfer that permit from one held by an individual to one held by a corporation or other business entity, without terminating the right to moor or operate the vessel under the existing permit or permits.

The fact that earlier in the wording of the statute, commercial fishermen are specifically allowed to incorporate, supports the conclusion that the intent in allowing them to incorporate was to give them a way of transferring ownership of their commercial fishing businesses and permits, otherwise why would the legislature have allowed them to incorporate in the first place?

Previous administrators who were privy to the original legislative purpose interpreted this part of the statute as authorizing the transfer of a mooring permit with the transfer of the stock of a corporate commercial fishing entity to a new owner.

The DOBOR Administrator who attended the relevant legislative hearings, fully aware of the legislature's intent, allowed those transfers to take place—including the transfer of the mooring permits. That is what the legislature intended, because moorings were understood to be an essential asset of any small boat harbor-based commercial fishing business.

The Problem: Changing the interpretation of the law that had previously allowed a commercial fishing corporation holding a mooring permit, to transfer that mooring permit with the sale of the corporation’s stock, creates serious problems.

It summarily ended the right of many commercial fishing corporations to transfer assets, such as those mooring permits, through the sale of stock they had previously purchased with the approval of the State’s DOBOR, with the understanding that they would later be able to transfer that stock (and those assets), and possibly recoup their original investment. Some have suggested this reversal of administrative practice is tantamount to a "taking" by the State. Statewide, over 60 permittees have been negatively effected by the termination of this practice which is a restraint of alienability of assets that should be, and previously have been, a marketable commodity.

Moreover, the arbitrary change of practice prevents commercial fishermen from selling all of the necessary assets of their businesses (boat, berth and business) when they wish to leave the fishing industry. It also denies new commercial fishermen the opportunity to invest in the fishery, by buying an existing commercial fishing operation.

It is also important to conform law to past administrative practice to avoid prejudice to those people who bought a commercial fishing corporation for hard money who are now being told that they can’t sell under the same law that was previously interpreted to allow them to do so.

Finally, this reversal of the right to transfer the mooring permit essential to a commercial fishing business has decreased the attractiveness of small boat commercial fishing, and the number of commercial fishermen operating out our State small boat harbors, at a time when locally caught and distributed sustainable seafood harvests are important to self-sufficiency and the economies of island communities across this State.

Solution: The Governor should immediately direct the DLNR/BOR to reinstitute the previous administrative practice of allowing for the transfer of the mooring permit when the stock of a commercial fishing corporation is sold or transferred.

Optional (or parallel) Solution: As part of the Administration’s Legislative Package, introduce and support a bill that would amend HRS 200 10 (d) as follows:

"Any person owning an interest in a corporation or other business entity which either (1) possesses a valid commercial permit issued by the Department, in accordance with rules adopted by the chairperson pursuant to chapter 91, or (2) which is engaged in the business of commercial fishing as its primary business activity, may transfer any or all of its stock or other interest to a another person or entity without terminating the right of the corporation or business entity to retain or renew its commercial permit or any other permit issued to it by the department; provided that: 

            (1)  The individual, corporation or other business entity that holds a valid commercial permit has been engaged in the same commercial vessel activity, as defined in section 200-9, for in minimum of one year, or has been engaged in the business of commercial fishing for a minimum of one year; and           

            (2)  The seller of an interest in a corporation or other business entity that possesses a valid commercial permit shall pay the department a business transfer fee based on the passenger-carrying capacity of the vessels owned or operated by the corporation or business entity as provided by rules adopted by the Chairman pursuant to chapter 91.  The seller of an interest in a corporation or other business entity which does not possess a valid commercial permit but which is engaged in the business of commercial fishing shall not be required to pay a transfer fee.


May 18, 2011

 Aloha Governor Abercrombie,

The officers and directors of the HF&BA are grateful for the opportunity to present to you our urgent priorities for Honokohau Harbor.

Our most urgent need is for a responsive, open, fair, cooperative, intelligent and professional management of DOBOR and Hawaii District facilities. At this time the atmosphere is poisoned with hostility and mistrust, in spite of our continuous efforts to be of assistance in solving our mutual problems. We want to be part of the solutions, not considered as enemies. For a full year, we have been working to respond to DOBOR rule making initiatives, writing carefully considered and worded suggested amendments and submitting testimony. Our efforts are met with silence and rubber stamp approval of poorly written rules rife with unclear meanings, misspellings, and grammatical errors, all of which allow subjective, uneven, and unfair interpretations. In truth, HAR Title 13, Chapters 230 – 259 pertaining to DOBOR have been amended so many times by so many authors that they are filled with inconsistencies, and impossible to interpret with fairness and justice. These rules need to be completely rewritten. Please see our three White Papers again. Attached is our testimony to the SBRRB as another example of good work ignored.

 Having witnessed DOBOR solution to the collapse of more than 80 slips in the Ala Wai, we are fearful that if maintenance here in Honokohau is not improved dramatically and immediately, we will also have our slips condemned and abandoned as in Ala Wai.

 We have identified many of the needs as follows:

 

PUBLIC SAFETY AND HEALTH

• Adequate number of clean restrooms - at minimum, 3 facilities at south side, north side and near fuel dock, comprising 24 toilets/urinals and 18 basins with solar hot and cold water and soap, properly designed and built for commercial service and low maintenance. As an immediate alternative, at least the existing rest rooms should be cleaned, repaired, and repainted, and a regular maintenance program instituted.

• Public lighting for all docks and parking lots.

• Paved ADA access from parking lot to at least one dock.  

BOATING SAFETY AND ENVIRONMENT

• At least one sewage pump-out facility for boats in Honokohau.

• Prioritize the re-engineering of the water distribution system to docks and wash-down areas

(improve pressure regulation)

• Provide lighting, drywells and solids catchment at trailer boat wash-down area

• Launch ramp modification for non-slip (perhaps diamond pattern saw cuts every 12" and monthly

power wash at lowest low tide.

• Definitive speed limit signs in harbor waters.

• Guidelines and facilities for cleaning fish to avoid disposal in harbor waters.

• Construction of uniform boat access platforms for Bow/stern moored boats to enable safe boarding.

• Post Emergency Phone Numbers list at DOBOR Office

• Create emergency plans for Honokohau (tsunami, hurricane, fire)

• Retrofit Honokohau electrical system with solar lighting and panels

 

 We know you have experienced (and smelled) our circumstances at the harbor, and we have appreciated all your public and private expressions of support. Please, before our facilities are condemned, act on behalf of the public.

MAHALO,

                        The Hawaii Fishing & Boating Association