Report Title:

Hawaii Port Authority

 

Description:

Establishes a state port authority. Empowers the authority to administer a statewide system of harbors and harbor facilities, including small boat facilities, and generate revenues from fuel taxes and harbor use charges. Establishes a port authority fund.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

137

TWENTY-FIRST LEGISLATURE, 2001

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE HAWAII PORT AUTHORITY.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that Hawaii's waterfront resources are of supreme importance to the State. These resources include the commercial maritime harbors system which acts as a vital lifeline that connects Hawaii to the rest of the world. Hawaii depends almost entirely on maritime services to import the goods that the people of the State consume. These resources also include important non-maritime, commercial, and recreational facilities that are critical to Hawaii's attractiveness as a visitor destination. The economic well-being of the State depends in large part on the efficient use of all of these resources.

At present, the harbors division of the department of transportation exercises statewide jurisdiction over commercial harbors, roadsteads, and waterfront improvements that include landings, ports, docks, wharves, piers, quays, and bulkheads belonging to or controlled by the State, and all vessels and shipping using the harbors facilities. In addition, the functions of a number of other state agencies also involve harbor uses and activities, potentially creating conflicts over the use or control of various waterfront resources. This situation sometimes leads to conflicting plans of action among the different agencies to implement differing goals. The existing multiple controls over waterfront land use raises the cost of serving both maritime (traditional cargo- and passenger-movement activities) and non-maritime (recreation, shops, and restaurants) uses. The often conflicting demand for waterfront resources, especially for a limited supply of harbor lands, for maritime and non-maritime uses such as additional acreage for container cargo space versus recreational and commercial non-maritime uses, begs for resolution, or at least coordination by an entity such as a port authority.

The department of transportation's goal of efficient port operations is also hampered by statewide policies restricting the department's procurement, personnel, inventory control, disposition of real property, and other functions.

In response to Senate Concurrent Resolution No. 214, H.D. 1 (1996), the governor convened the Hawaii maritime industry policy advisory task force within the office of the governor to examine several issues including "establishing a port authority to implement and administer maritime policy under the port authority". Subsequently, the task force submitted to the legislature its report that determined that the advantages of establishing a port authority outweigh the disadvantages of doing so. The advantages of establishing a port authority include:

(1) Providing an institutional mechanism to promote efficient allocation of waterfront resources;

(2) Focusing control and responsibility for waterfront resources within a single entity -- eliminating multi-agency oversight and jurisdiction;

(3) Providing an appropriate forum for all affected interests;

(4) Increasing efficiency in land utilization and related lease processes;

(5) Streamlining administrative processes;

(6) Making possible more responsive planning;

(7) Increasing financial flexibility; and

(8) Increasing responsiveness to customer needs and economic demands.

The legislature finds that the rational allocation and administration of scarce and increasingly valuable waterfront resources through the establishment of a port authority is vital for the well-being of the people and the economy of the State. The purpose of this Act is to create the Hawaii port authority and to transfer the functions, duties, and powers exercised by the department of transportation over commercial harbors to the Hawaii port authority.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

HAWAII PORT AUTHORITY

§   -1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Administrator" means the administrator of the Hawaii port authority.

"Authority" means the Hawaii port authority.

"Project" means a public undertaking, improvement, or system consisting of a work or improvement, including personal property or any interest therein, acquired, constructed, reconstructed, rehabilitated, improved, altered, or repaired by the authority, and including public facilities.

§   -2 Hawaii port authority established. There is established the Hawaii port authority which shall be a public body corporate and politic and an instrumentality and agency of the State. The authority shall be headed by a single executive to be known as the administrator of the Hawaii port authority.

§   -3 Powers, generally. The authority shall have all the powers necessary to carry out its purposes, including the power to:

(1) Plan, acquire, establish, construct, enlarge, improve, maintain, equip, install, operate, regulate, and protect harbor facilities, buildings, and other facilities;

(2) Plan, design, construct, operate, and maintain all structures and improvements to land to be used for harbor purposes;

(3) Control and manage all ocean waters and navigable streams, the shores, shore waters, all harbors and roadsteads, all harbor facilities, and all harbor and waterfront improvements belonging to or controlled by the State and all shipping using the same, the protection of the safety of persons and property as related to the use of the waters, and the operation of a ferry system;

(4) Use the facilities and services of other agencies of the State and of the municipalities of the State;

(5) Sue and be sued;

(6) Have a seal and alter the same at its pleasure;

(7) Make and execute contracts and all other instruments necessary or convenient for the exercise of its powers and functions under this chapter;

(8) Make and alter bylaws for its organization and internal management;

(9) Adopt rules under chapter 91 necessary to effectuate this chapter in connection with its projects, operations, properties, and facilities;

(10) Appoint, through its administrator, officers, agents, and employees, prescribe their duties and qualifications, and fix their salaries, pursuant to chapters 76 and 77;

(11) Own, lease, hold, clear, improve, and rehabilitate real, personal, or mixed property and assign, exchange, transfer, convey, lease, sublease, or encumber any project or improvement, including easements, leases, or other agreements for the rehabilitation, repair, maintenance, and operation of all harbor facilities and all harbor and waterfront improvements;

(12) Develop, construct, reconstruct, rehabilitate, improve, alter, or repair or provide for the development, construction, reconstruction, rehabilitation, improvement, alteration, or repair of any project, and to designate a qualified person as its agent for such purpose, and to own, hold, assign, transfer, convey, exchange, lease, sublease, or encumber any project;

(13) Arrange or initiate appropriate action for the planning, replanning, opening, grading, relocating, or closing of streets, roads, roadways, alleys, easements, piers, or other places, the furnishing of facilities, the acquisition of property or property rights, or the furnishing of property, development rights, or services in connection with any project;

(14) Grant options or renew any lease entered into by it in connection with any project, on terms and conditions as it deems advisable;

(15) Prepare or cause to be prepared plans, specifications, designs, and estimates of project cost for the development, construction, reconstruction, rehabilitation, improvement, alteration, or repair of any project, and from time to time to modify such plans, specifications, designs, or estimates;

(16) Provide advisory, consultative, training, and educational services, technical assistance, and advice to any person, partnership, or corporation, either public or private, in order to carry out the purposes of this chapter, and engage the services of consultants on a contractual basis for rendering professional and technical assistance and advice;

(17) Procure insurance against any loss in connection with its property and other assets and operations in such amounts and from such insurers as it deems desirable;

(18) Accept gifts or grants in any form from any public agency or from any other source;

(19) Pledge or assign all or any part of the moneys, fees, rents, charges, or other revenues and any proceeds derived by the authority from proceeds of insurance or condemnation awards, for the loss of revenues or incurrence of costs and expenses because of any action taken by the authority;

(20) Impose, prescribe, and collect rates, rentals, fees, or charges for the lease and use and services of its harbor facilities at least sufficient to pay the costs of operation, maintenance, and repair, if any, and the required payments of the principal of and interest on all bonds issued to finance its projects; and

(21) Do all things necessary or proper to carry out the purposes of this chapter.

§   -4 Hawaii port authority fund established; disposition. (a) There is established the Hawaii port authority fund. All:

(1) Taxes collected under chapter 243 in respect to gasoline or other liquid fuel sold for use in or used for small boats in each calendar year which were previously paid into the former boating special fund pursuant to section 248-8; and

(2) All moneys received from rates and fees pursuant to section 266-17(1) that were previously paid into the former harbor special fund pursuant to section 266-19;

shall be deposited in the Hawaii port authority fund.

(b) Moneys in the fund shall be expended by the authority for the statewide system of harbors and for the operation and maintenance of harbors and harbor facilities and for the payment of indebtedness heretofore or hereafter incurred by the authority, or its predecessors, the department of transportation, for any of the purposes of this chapter. The authority shall generate sufficient revenues from its harbor properties to meet all of the expenditures of the statewide system of harbors.

(c) Moneys from the fund shall also be expended for:

(1) The payment when due of all bonds and interest thereon, for the payment of which the revenues are or shall have been pledged, charged, or otherwise encumbered, including reserves therefor;

(2) The expenses of operation and maintenance of the properties designated in section 266-17(1), including reserves therefor and the expenses of the operation of the authority in connection with those properties, the general administrative overhead to be prorated between those properties and the properties principally used for recreation or the landing of fish;

(3) The purposes, within the jurisdiction, powers, duties, and functions of the authority, including the creation and maintenance of reserves, as have been covenanted in any resolution or resolutions of the authority;

(4) Reimbursement of the general fund of the State for all bond requirements for general obligation bonds which are or have been issued for harbor or wharf improvements with respect to properties designated in section 266-17(1), excluding bonds, the proceeds of which were or are to be expended for improvements which are or will be neither revenue producing nor connected in their use directly with revenue producing properties, or to refund any of the bonds, except insofar as the obligation or reimbursement has been or is canceled by the legislature;

(5) Any purpose within the jurisdiction, powers, duties, and functions of the authority (excluding properties principally used for recreation or the landing of fish, except the properties located at Kewalo Basin, ewa of Ala Moana Park, Honolulu), including acquisitions, constructions, additions, expansions, improvements, renewals, replacements, reconstruction, engineering, investigation, and planning, all or any of which in the judgment of the authority are necessary to the performance of its duties or functions;

(6) Any and all other outlays or expenditures not otherwise restricted in this section; and

(7) Provision of a reserve for betterments to harbor undertakings under the jurisdiction of the authority.

§   -5 Compliance with state and local law. All users of the authority's facilities shall be subject to the laws, ordinances, and rules of the State or any county thereof, or any authority or board thereof with respect to the construction, operation, and maintenance of any project, or zoning laws or rules, obtaining of building permits, compliance with building and health codes and other laws, ordinances, rules, or federal regulations of similar nature pertaining to the project.

§   -6 Assistance by state and county agencies. Every state or county agency shall render services to the authority upon request of the authority.

§   -7 Construction of this chapter. The powers conferred by this chapter shall be in addition and supplemental to other powers conferred by any other law. Insofar as the provisions of this chapter are inconsistent with the provisions of any other law, this chapter shall be controlling."

SECTION 3. Section 199-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The conservation and resources enforcement officers, with respect to all state lands, including public lands, state parks, forest reserves, forests, aquatic life and wildlife areas, Kaho`olawe island reserve, and any other lands and waters subject to the jurisdiction of the department of land and natural resources, shall:

(1) Enforce title 12, chapters 6E and 6K, and rules adopted thereunder;

(2) Investigate complaints, gather evidence, conduct investigations, and conduct field observations and inspections as required or assigned;

(3) Cooperate with enforcement authorities of the State, counties, and federal government in development of programs and mutual agreements for conservation and resources enforcement activities within the State;

(4) Cooperate with established search and rescue agencies of the counties and the federal government in developing plans and programs and mutual aid agreements for search and rescue activities within the State;

(5) Check and verify all leases, permits, and licenses issued by the department of land and natural resources;

(6) Enforce the laws relating to firearms, ammunition, and dangerous weapons contained in chapter 134;

(7) Enforce the laws in chapter 291E relating to operating a vessel on or in the waters of the State while using intoxicants;

(8) Whether through a specifically designated marine patrol or otherwise, enforce the rules in the areas of [boating safety,] conservation[,] and search and rescue relative to the control and management of boating facilities owned or controlled by the [State,] port authority, ocean waters, and navigable streams and any activities thereon or therein, and beaches encumbered with easements in favor of the public, and the rules regulating vessels and their use in the waters of the State; and

(9) Carry out other duties and responsibilities as the board of land and natural resources from time to time may direct."

SECTION 4. Section 248-8, Hawaii Revised Statutes, is amended to read as follows:

"§248-8 Special funds in treasury of State. (a) There are created in the treasury of the State [three] two special funds to be known[, respectively,] as the state highway fund[,] and the airport revenue fund[, and the boating special fund]. All taxes collected under chapter 243 in each calendar year, except the "county of Hawaii fuel tax", "city and county of Honolulu fuel tax", "county of Maui fuel tax", and "county of Kauai fuel tax", shall be deposited in the state highway fund; provided that[:

(1) All] all taxes collected under chapter 243 with respect to gasoline or other aviation fuel sold for use in or used for airplanes shall be set aside in the airport revenue fund[; and

(2) All taxes collected under chapter 243 with respect to liquid fuel sold for use in or used for small boats shall be deposited in the boating special fund.

As used in this section, "small boats" means all vessels and other watercraft except those operated in overseas transportation beyond the State, and ocean-going tugs and dredges. The chairperson of the board of land and natural resources, from July 1, 1992, and every three years thereafter, shall establish standards or formulas that will as equitably as possible establish the total taxes collected under chapter 243 in each fiscal year that are derived from the sale of liquid fuel for use in or used for small boats. The amount so determined shall be deposited in the boating special fund].

(b) An amount equal to 0.3 per cent of the highway fuel tax but not more than $250,000 collected under chapter 243 shall be allocated each fiscal year to the special land and development fund for purposes of the management, maintenance, and development of trails and trail accesses under the jurisdiction of the department of land and natural resources established under section 198D-2."

SECTION 5. Section 36-31, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) If any transfer contemplated by sections 36-27, [36-29,]    -4, and 36-30 might, if effected, result in loss to the State or to any special fund affected, of any federal funds, or would be in violation of the Constitution or any law of the United States, the governor shall issue an executive order setting forth the facts and suspending the application of sections 36-27, [36-29,]    -4, and 36-30 to the special fund affected in whole or in part, or limiting the transfer, as shall be necessary to avoid the loss of federal funds or to avoid the unconstitutionality or violation. The transfer shall not be made except to the extent, if at all, which will not result in the loss of federal funds or violation."

SECTION 6. Section 36-29, Hawaii Revised Statutes, is repealed.

["§36-29 Transfer from harbor special fund. Any other law to the contrary notwithstanding, there shall be deducted from time to time by the director of finance for the purpose of defraying the prorated estimate of central service expenses of government in relation to the harbor special fund five per cent of all receipts and deposits in the harbor special fund after deducting therefrom any amounts pledged, charged, or encumbered for the payment of bonds or interest thereon during the current year, from which receipts or deposits no deduction of five per cent has previously been made. The deductions shall be transferred to the general fund of the State and become general realizations of the State. For the purposes of this section, the term "any amount pledged, charged, or encumbered for the payment of bonds or interest thereon during the current year" shall include:

(1) Amounts which are so pledged, charged or encumbered;

(2) Amounts otherwise required to be applied to the payment of principal of and interest on revenue bonds or other revenue obligations;

(3) Amounts required to be paid into a separate special fund for the payment of principal of and interest on revenue bonds or other revenue obligations payable from the second separate special fund; and

(4) Amounts required by law to be paid from the harbor special fund into the general fund of the State to reimburse the general fund for bond requirements for general obligation bonds issued for harbor purposes.

The second separate special fund maintained by deposits from the harbor special fund shall not be deemed to be a special fund within the meaning of section 36-27 or section 36-30. The director of transportation shall cooperate with the director of finance in effecting the transfer.]"

SECTION 7. Section 266-19, Hawaii Revised Statutes, is repealed.

["§266-19 Creation of harbor special fund; disposition of harbor special fund. (a) There is created in the treasury of the State the harbor special fund. All moneys received by the department of transportation from the rates and fees pursuant to section 266-17(a)(1) shall be paid into the harbor special fund. The harbor special fund and the second separate harbor special fund heretofore created shall be consolidated into the harbor special fund at such time as there are no longer any revenue bonds payable from the second separate harbor special fund. The harbor reserve fund heretofore created is abolished.

All moneys derived pursuant to this chapter from harbor properties of the statewide system of harbors (excluding properties principally used for recreation or the landing of fish, except properties located at Kewalo Basin, ewa of Ala Moana Park, Honolulu) shall be paid into the harbor special fund and each fiscal year shall be appropriated, applied, or expended by the department of transportation for the statewide system of harbors for any purpose within the jurisdiction, powers, duties, and functions of the department of transportation related to the statewide system of harbors (excluding properties principally used for recreation or the landing of fish, except the properties located at Kewalo Basin, ewa of Ala Moana Park, Honolulu), including, without limitation, the costs of operation, maintenance and repair of the statewide system of harbors and reserves therefor, and acquisitions (including real property and interests therein), constructions, additions, expansions, improvements, renewals, replacements, reconstruction, engineering, investigation, and planning, for the statewide system of harbors, all or any of which in the judgment of the department of transportation are necessary to the performance of its duties or functions.

(b) At any time the director of transportation may transfer from the harbor special fund created by paragraph (a) of this section, all or any portion of available moneys on deposit in the harbor special fund determined by the director of transportation to be in excess of one hundred fifty per cent of the requirements for the ensuing twelve months for the harbor special fund as permitted by and in accordance with section 37-53. For purposes of such determination, the director of transportation shall take into consideration the amount of federal funds and bond funds on deposit in, and budgeted to be expended from, the harbor special fund during such period, amounts on deposit in the harbor special fund which are encumbered or otherwise obligated, budgeted amounts payable from the harbor special fund during such period, and revenues anticipated to be received by and expenditures to be made from the harbor special fund during such period based on existing agreements and other information for the ensuing twelve months, and such other factors as the director of transportation shall deem appropriate.

(c) All expenditures by the department shall be made on vouchers duly approved by the director of transportation or such other officer as may be designated by the director of transportation.]"

SECTION 8. Sections 196D—l0, 200—1, 200—2, 200—3, 200—4, 200—6, 200—7, 200—8, 200—9, 200—10, 200—10.5, 200—12, 200-13, 200—14, 200-14.5, 200—15, 200—16, 200—17, 200—22, 200—24, 200-26, 200—27, 200—29,200—30, 200—31, 200—32, 200—33, 200—36, 200—37, 200—38, 200—39, 200—42, 200—44, 200—46, 200—47, 200—48, 200—49, 200—52, 200—72, 200-73, 200—81, 200—83, 206J—2, 266—1, 266—2, 266-3, 266—4, 266—4.5, 266—6, 266—7, 266—13, 266—14, 266-17, 266—19, 266—21.4, 266—22, 266—23, 266—24, 266—24.1, 266-24.2, 266-25, 266—26, 266—27, 266—52, 266—53, 266—54, 266-55, 268—5, 268—13, and 268-16, Hawaii Revised Statutes, are amended by replacing all references to:

(1) "Department" or "department of transportation" or like terms with "authority" or "Hawaii port authority" or like terms;

(2) "Director" or "director of transportation" or like terms, with "administrator" or "administrator of the Hawaii port authority" or like terms;

(3) "Board" or "board of land and natural resources" or "department" or "department of land and natural resources" or like terms with "authority" or "Hawaii port authority" or like terms; and

(4) "Chairperson" or "chairperson of the board of land and natural resources" or like terms, with "administrator" or "administrator of the Hawaii port authority" or like terms;

as the context requires.

SECTION 9. All rights, powers, functions, and duties of the department of transportation relating to harbors, and of the department of land and natural resources relating to ocean recreation and coastal area programs, are transferred to the Hawaii port authority created by this Act. All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

In the event that an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

SECTION 10. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of transportation and the department of land and natural resources to implement the Hawaii Revised Statutes which are reenacted or made applicable to the port authority by this Act, shall remain in full force and effect until amended or repealed by the port authority pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of transportation, the director of transportation, the board of land and natural resources, the department of land and natural resources, and the chairperson of the board of land and natural resources, in those rules, policies, procedures, guidelines, and other material is amended to refer to the Hawaii port authority or the administrator of the Hawaii port authority as appropriate.

SECTION 11. All deeds, leases, contracts, loans, agreements, permits, or other documents executed or entered into by or on behalf of the department of transportation and the department of land and natural resources pursuant to the provisions of the Hawaii Revised Statutes, which are reenacted or made applicable to the port authority by this Act, shall remain in full force and effect. Effective January 1, 2002, every reference to the department of transportation, the director of transportation, the board of land and natural resources, the department of land and natural resources, and the chairperson of the board of land and natural resources therein shall be construed as a reference to the Hawaii port authority or the administrator of the Hawaii port authority as appropriate.

SECTION 12. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of transportation and the department of land and natural resources relating to the functions transferred to the Hawaii port authority shall be transferred with the functions to which they relate.

SECTION 13. It is the intent of this Act not to jeopardize the receipt of any federal aid nor to impair the obligation of the State or any agency thereof to the holders of any bond issued by the State or by any such agency, and to the extent, and only to the extent, necessary to effectuate this intent, the governor may modify the strict provisions of this Act, but shall promptly report any such modification with reasons therefor to the legislature at its next session thereafter for review by the legislature.

SECTION 14. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 15. This Act shall be liberally construed in order to accomplish the purposes set forth herein. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity shall not affect the other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 16. There is appropriated out of the general revenues of the State of Hawaii the sum of $         , or so much thereof as may be necessary for fiscal year 2001-2002, to carry out the purposes of this Act.

SECTION 17. The sum appropriated shall be expended by the Hawaii port authority for the purposes of this Act; provided that a transition period shall be established and full implementation of this Act shall occur no later than July 1, 2003. During the transition period, the department of transportation and the department of land and natural resources shall extend their resources, other than funds, to assist the administrator of the Hawaii port authority to effect a smooth transition.

SECTION 18. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 19. This Act shall take effect on January 1, 2002, except that sections 16 and 17 shall take effect on July 1, 2001.

INTRODUCED BY:

_____________________________