General Provisions

DEPARTMENT OF LAND AND NATURAL RESOURCES

Amendment and Compilation of Chapter 13-230 Hawaii Administrative Rules

December 15, 2023

SUMMARY

1. §13-230-6 is amended.

2. §13-230-8 is amended.

3. §13-230-20 is amended.

4. §13-230-22 is amended.

5. §§13-230-24 and 13-230-25 are amended.

6. §§13-230-27 to 13-230-29 are amended.

7. Chapter 13-230 is compiled.

HAWAII ADMINISTRATIVE RULES

TITLE 13

DEPARTMENT OF LAND AND NATURAL RESOURCES

SUBTITLE 11

OCEAN RECREATION AND COASTAL AREAS

PART 1

SMALL BOAT FACILITIES AND PROVISIONS GENERALLY APPLICABLE TO ALL STATE NAVIGABLE WATERS

CHAPTER 230

GENERAL PROVISIONS

Historical note

Subchapter 1 Scope and Definitions

§13-230-1 Purpose and scope §13-230-2 Interpretation §13-230-3 Severability §13-230-4 Penalties and prosecution §13-230-5 Judicial review §13-230-6 Notice §13-230-7 Tampering with, defacing, or removing notices §13-230-8 Definitions §§13-230-9 to 13-230-19 (Reserved)

Subchapter 2 Determination of Residency

§13-230- 20 Purpose §13-230-21 Repealed §13-230-22 Twelve-month rule §13-230-23 Indications of residence §13-230-24 Rules of construction

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§13-230-1

§13-230-25 Particular categories §13-230-26 Determination of residence procedure §13-230-27 Permittee required to report change of residence §13-230-28 Appeals §13-230-29 Misrepresentation

Historical note. This chapter is based on general provisions, definitions, and determination of residency of the small boat harbors rules, effective November 5, 1981, and as amended thereafter, under the jurisdiction of the Department of Transportation, Harbors Division. The administrative jurisdiction for recreational boating and related vessel activities was transferred to the Department of Land and Natural Resources, Division of Boating and Ocean Recreation, effective July 1, 1992, in accordance with Act 272, SLH 1991. [Eff 2/24/94; comp 12/7/13]

SUBCHAPTER 1

SCOPE AND DEFINITIONS

§13-230-1 Purpose and scope. The purpose of these rules is to secure the most effective control and management of the small boat harbors and facilities of the State in order that the general public may enjoy safe, orderly, and convenient water recreation. These rules are intended to harmonize and coordinate the department's powers and duties with all applicable public laws, and are also intended to govern the use or operation of vessels and the activities of persons in the small boat harbors, shores, ocean waters, and navigable streams of the State. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4) (Imp: HRS §§200-2, 200-4)

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§13-230-4

§13-230-2 Interpretation. If any section of these rules is inconsistent with any laws of the United States or any rule, or standard established pursuant thereto, such section shall be construed, superseded, or governed thereby. Nothing contained in these rules shall be construed to limit the powers of any state department or agency. Each provision of these rules is also intended to be construed most liberally in light of the purpose stated in section 13-230-1. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4) (Imp: HRS §§200-2, 200-4)

§13-230-3 Severability. The provisions of these rules are declared to be severable and if any portion or the application thereof to any person or property is held invalid for any reason, the validity of the remainder of these rules or the application of such remainder to other persons or property shall not be affected. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4) (Imp: HRS §§200-2, 200-4)

§13-230-4 Penalties and prosecution. (a) Violation of rules, penalty. Any vessel, its agent, owner, or crew that violates the rules of the department, including vehicular parking or traffic movement and unauthorized discharge, dumping, or abandoning of any petroleum product, hazardous material, or sewage in violation of the state water quality standards established by the department of health, may be fined or deprived of the privilege of operating or mooring any vessel in state waters for a period of not more than thirty days, in accordance with section 200-14, Hawaii Revised Statutes. (b) General administrative penalties. Except as otherwise provided by law, the board is authorized to set, charge, and collect administrative fines and to

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§13-230-4

recover administrative fees and costs, including attorney's fees and costs, or bring legal action to recover administrative fines and fees and costs, including attorney's fees and costs, or payment for damages or for the cost to correct damages resulting from a violation of subtitle 8 of title 12 or any rule adopted thereunder in accordance with section 200- 14.5, Hawaii Revised Statutes. Each day or instance of violation shall constitute a separate offense. [Eff 2/24/94; comp 12/7/13; am 12/31/18; comp ] (Auth: HRS §§200-2, 200-3, 200-4, 200-14, 200-14.5) (Imp: HRS §§200-2, 200-3, 200-4, 200-14, 200-14.5)

§13-230-5 Judicial review. Nothing contained in these rules shall be construed to preclude appropriate resort to judicial remedy or review. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4) (Imp: HRS §§200-2, 200-4)

§13-230-6 Notice. Where notice to a permittee, co-owner, lien holder, owner, or any other party is required by this chapter, the department shall effect service by one of the following: (1) Posting the notice in a conspicuous place aboard the permittee's vessel or at the assigned berth; (2) Mailing the notice to the person by certified mail, return receipt requested, at the person's last known address, provided that service by mail is deemed received and completed five days after the date of mailing; or (3) Personal service; provided that in an emergency, where life or property is endangered or if a vessel may interfere with other vessels, construction, or maintenance of berthing facilities, or with the free and proper navigation of a waterway unless immediate action is taken, remedial

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§13-230-8

action may be taken by the department without prior notice. [Eff 2/24/94; comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-9, 200-10) (Imp: HRS §§200-2, 200-4, 200-9, 200-10)

§13-230-7 Tampering with, defacing, or removing notices. No person shall tamper with, deface, or remove any notice posted by the department pursuant to section 13-230-6 except the owner of the vessel or the permittee assigned to the berth. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4) (Imp: HRS §§200-2, 200-4)

§13-230-8 Definitions. When used in these rules promulgated pursuant to chapter 200, Hawaii Revised Statutes, unless otherwise specifically provided or the context clearly indicates otherwise: "Abandon" when applied to animals, means to leave an animal at any location, whether intentionally, recklessly, or negligently, without the owner intending to return for the animal and without the permission of the public or private property owner. "Adult" means a person who has reached majority. "Agreement" means the agreement between the boat owner and the State as required by section 13-231-2. "Anchoring" means to secure a vessel temporarily to submerged land by dropping an anchoring device from a vessel. "Anchoring device" means a device made of metal or similar material, attached by rope or chain to a vessel, which can be deployed to submerged land to secure the vessel in a particular place. "Approved" means that a fitting, appliance, apparatus, or item of equipment to be fitted or carried in a vessel, or by any particular arrangement, is sanctioned by the commandant of the Coast Guard, unless otherwise stated by the department. "Approved backflow prevention device" means a backflow prevention device that meets the requirements contained in standard 1001, American Society of

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§13-230-8

Sanitary Engineers or the Uniform Plumbing Code adopted by the Uniform Plumbing Code adopted by the International Association of Plumbing and Mechanical Officials (IAPMO). "Approved marine surveyor" means a person who has been approved by the chairperson to inspect a vessel for an owner seeking a permit to moor a vessel in a small boat harbor in accordance with section 13-231- 45(h) and (i). "Approved vessel inspector" means an employee of the department who has been designated by the chairperson to inspect a vessel for compliance with criteria necessary to obtain a mooring permit. "Assigned berth" means a berth that is assigned to a permittee by a valid regular mooring permit. "Background" means that portion of the hull or superstructure, or a specially provided backing plate, upon which the numbers are placed, but shall not include any border, trim, outlining, or shading of the numerals or letters. "Barge" means a non-self-propelled vessel. "Berth" means any place where a vessel is anchored, moored, or made fast or laid alongside a dock, quay, catwalk, or pier. "Bicycle" means every device propelled by human power upon which any person may ride, having two tandem wheels which are sixteen inches in diameter or greater, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. "Boat" means a small vessel propelled by oars or paddles or by sail or power. "Boat dealer" means a person engaged wholly or partly, for gain or compensation, in the business of selling vessels or offering vessels for sale, buying or taking in vessels for the purpose of resale, or exchanging vessels. "Boat livery" means a person or entity who is engaged in the business of renting, leasing, or chartering vessels. "Boat manufacturer" means a person engaged in:

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§13-230-8

(1) The manufacture, construction, or assembly of boats or associated equipment; (2) The manufacture or construction of components for boats and associated equipment to be sold for subsequent assembly; or (3) The importation into the United States for sale of boats, associated equipment, or components thereof. "Boat owner" means the legal owner of a vessel where there is no security interest held by anyone on the vessel, a buyer under a purchase money security interest, a debtor under any security interest, a demise charterer of a vessel, or a lessee or charterer of a vessel under lease or charter which provides the lessee or charterer with exclusive right to possession of the vessel to the exclusion of the lessor or the person from whom the vessel is chartered. The documentation of ownership must meet the requirements of section 13-241-5(c). "Recreational boating accident": (1) Means a collision, accident, or other casualty involving: (A) A person's death; (B) Complete loss of a vessel; (C) Damage to a vessel amounting to $2,000 or more; (D) The disappearance of a person from a vessel under circumstances indicating death or injury to that person; or (E) The injury to a person requiring medical treatment beyond first aid. (2) Includes damage to a vessel or its equipment, loss of life, or injury to any person or object: (A) Caused by a moving vessel's wake, wash, or waves, or by a vessel's capsizing, or collision with another vessel or object; (B) Caused by flooding, fire, or explosion; (C) Caused when a person falls overboard; or

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§13-230-8

(D) On board a vessel. "Bona fide fishing tournament" means a fishing tournament sponsored by a boat club, fishing club or yacht club, or a business or non-profit organization formed for the primary purpose of sponsoring a fishing tournament where participation is invited from the general public. "Buoy" means any floating aids to navigation moored to the seabed and used to convey a message. "Business" means any and all activities engaged in or caused to be engaged in by any person or legal entity, including, but not limited to, solicitations and advertisements, with the object of making a profit or obtaining an economic benefit either directly or indirectly. "C.F.R." means the Code of Federal Regulations. "Camping" means the use and occupation of any portion of a state small boat harbor, boat launching facility, or any other property managed by the department as a temporary or permanent dwelling place or sleeping place (including the laying down of bedding for the purpose of sleeping). Camping includes being in possession of a backpack, tents, blankets, tarpaulins, or other obvious camping paraphernalia, or storing personal belongings, or making any fire, or using any tents, shelter, or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. "Canoe" means outrigger canoe. "Carrying passengers for hire" means the carriage of any person or persons by a vessel for compensation flowing, whether directly or indirectly, to the owner, charterer, operator, agent, or any other person interested in the vessel.

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§13-230-8

"Catamaran" means a multi-hulled vessel with a broad, flat deck that is affixed on top of closed cylinders which are used for buoyancy, the basic design of which is usually implemented with two rows of floats as a catamaran or with three rows of floats as a trimaran. "Certificate" means a certificate of number issued by the department for an undocumented vessel. "Chairperson" means the chairperson of the board of land and natural resources of the State of Hawaii or the chairperson's duly authorized representative or subordinate. "Civil union" means a union between two individuals established pursuant to chapter 572B, Hawaii Revised Statutes. "Civil union partner" means an individual who is a party to a civil union established pursuant to chapter 572B, Hawaii Revised Statutes. "Coast Guard" means the United States Coast Guard, or its successor agency. "Colony" means a collective of free-roaming, abandoned, stray, or feral cats. "Commercial activity" means to engage in any action or attempt to engage in any action designed for profit, which includes, but is not limited to, the exchange or buying and selling of commodities; the providing of services relating to or connected with trade, traffic, or commerce in general; any activity performed by the commercial operator or its employees or agents in connection with the delivery of such commodities or services; and the soliciting of business, including the display or distribution of notices, business cards, or advertisements for commercial promotional purposes. "Commercial fishing motorboat" means a motorboat used for taking fish for profit or gain or as a means of livelihood. "Commercial high speed boating" means the use of an open ocean racing boat to provide high speed rides to passengers who pay compensation for the rides. "Commercial high speed boating" does not include:

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§13-230-8

(1) The use of an open ocean racing boat during an official racing competition; or (2) The use of an open ocean racing boat while practicing for a racing competition; provided that no passenger pays compensation for riding the boat during the practice. "Commercial motorboat" means any motorboat used for hire, profit, or gain. "Commercial ocean recreation activities" means any ocean recreation activity offered for a fee. "Commercial purposes" includes the staging, loading, and discharge of passengers or supplies at a state boating facility for further transport to a vessel's offshore location by means of a water taxi or any other vessel, or provisioning a vessel before or after a voyage involving the carriage of passengers for hire. "Commercial vessel" means a vessel engaged in any trade, business, or commercial activity, including, but not limited to, carrying passengers for hire, charter fishing, bare boat (demise) or any type of charter maintenance, harvesting coral or similar resources, construction, towing, tow-boating, or other trade or business wherein the vessel is used in any manner to promote the venture, or is registered with the State or documented by the United States Coast Guard for commercial use. "Compensation" means any valuable consideration. "Contrivance" means any man-made object or artificial arrangement not used or intended to be used for transportation which may be floated upon or suspended within or on the water. "Day-use mooring buoy" means a mooring buoy that can be used for a maximum of two and one-half hours at a time and overnight mooring is prohibited. "Department" means the department of land and natural resources of the State of Hawaii. "Dinghy" means a small open boat under thirteen feet in length, which may be propelled by oars, sails, or an outboard motor and carried on or towed by a larger boat or yacht.

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§13-230-8

"Display area" means the area on a sign or buoy used for display of a waterway marker symbol. "Diver's flag" means a red flag with a white diagonal running from the masthead to lower outside corner. "Division" means the department of land and natural resources division of boating and ocean recreation. "Documented vessel" means any vessel which has a valid marine document issued by the Coast Guard, in accordance with the Code of Federal Regulations, Subchapter G, Part 67, Documentation of Vessels. "Dormant vessel" means a vessel or contrivance, other than a houseboat, that has not been navigated from or has not vacated an assigned mooring or facility within or offshore of a state small boat harbor at least once within a ninety-day period, or cannot be made seaworthy upon thirty days' notice to the owner. "Enforcement officer" means a police officer and any other state or county officer charged with the enforcement of state laws. "Federal laws and requirements" means all statutes, regulations, and other laws of the United States, which may be applicable to these rules. "Feral" means having escaped or been released from domestication and reverted to a wild state and any offspring resulting therefrom. "Firm" includes a business organization such as a sole proprietorship, partnership, or corporation which is licensed to engage in or conduct business in the State. "Foreign built vessel" means any vessel whose hull was constructed in a country other than the United States. "Forward half of the vessel" means any portion of the vessel in front of a point equidistant from the stem and stern of the vessel. "Free diver" means a person who is using a mask and snorkel, other than for SCUBA diving, who submerges under water or breaks the surface of the water.

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§13-230-8

"Global Positioning System" (GPS) means the method of terrestrial navigation using a GPS electronic instrument, receiving data from a network of orbiting satellites to locate one's position by latitude and longitude. "Gross receipts" means all moneys paid or payable to the account of the commercial use permittee or catamaran registration certificate holder, for services rendered, or resulting from trade, business, commerce, or sales by the vessel or water sports equipment owner when the services, trade, business, commerce, or sales have a direct relationship to the vessel or permitted activity. "Guardian" means a person invested by a court of law with the power, and charged with the duty, of taking care of a person and of managing the property of that person. "Hānai" means a child who is taken permanently to be reared, educated, and loved by someone other than natural parents--traditionally a grandparent or other relative. The child is given outright; natural parents renounce all claims to the child. Usually the child is given at infancy. "Handboard" means any type of surf riding board that is: (1) With or without skegs; (2) Worn on one or both of the operator's hands; (3) Is less than sixteen inches in overall length; and (4) Is used for the sport of wave riding. "Harbor resident" means the owner, co-owner, or their spouse and their legal dependents authorized by the department to reside on board a vessel used as the principal habitation of the owner. "Hearing officer" means a person appointed by the chairperson to hear appeals. "High seas" means all parts of the sea that are not included in the exclusive economic zone, in the territorial sea, or in the internal waters of the United States. "Highway" means "street" as defined in this section.

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§13-230-8

"Houseboat" means any vessel which is fitted for use as a permanent or temporary place of habitation, and is either stationary or capable of being moved by oars, sweeps, or towing. "Hull" means the shell, frame, or body of a vessel, exclusive of masts, yards, sails, riggings, machinery, and equipment. "Immediate family" means any person, the person's spouse, and the person's dependent children under twenty-one years of age. "Inland waters" mean the waters shoreward of the territorial sea baseline. "Interest" includes any claim of right, title, ownership of stock, shares, profit, benefit, or gain in a corporation, partnership, joint venture, or any other business entity that has a use permit. "Kayak" means a watercraft that has an open or covered top and is designed to hold one or more participants and propelled by use of a single- or double-bladed paddle. "Launch" means a small motorboat that is open or that has the forepart of the hull covered. "Legal dependent" or "dependent" means those persons who are defined as dependents by law, e.g., a spouse or minor child, or who are defined as dependents under Internal Revenue Service regulations or by the Armed Forces of the United States, or any of the following persons who are dependent upon a permittee for all or a substantial portion of the person's living expenses: (1) Spouse; (2) A son or daughter who is: (A) Unmarried and under eighteen years; (B) Unmarried and under twenty years if a full-time student at a high school, business school, or technical school; (C) Unmarried and under twenty-two years if a full-time undergraduate student at a college; or (D) Unmarried and physically handicapped so as to be incapable of self-support;

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(3) A parent or grandparent if physically handicapped so as to be incapable of self- support; or (4) A grandchild, brother, or sister under eighteen years of age. "Legal owner" includes a person who holds unencumbered title to a vessel or is a secured party under a security interest for the vessel. "Length" when applied to vessels covered by these rules, means the measurement of a vessel from end to end over the deck. It is a straight-line measurement of the overall length from the foremost part of the vessel measured parallel to the centerline. Bowsprits, boomkins, rudders, motor brackets, and similar fittings or attachments or sheer are not to be included in the measurement. In case of a vessel of an open type or with a cockpit, the measurement is taken between the foremost and aftermost extremities of the hull exclusive of sheer. In vessels having more than one deck, it is the length measured from the foremost part of the bow to the aftermost part at the stern exclusive of sheer. "Lienholder" means a person holding a recorded security interest in a vessel. "Lifeboat" means a boat carried aboard a vessel and used solely for lifesaving purposes, but not including dinghies, tenders, speedboats, or other types of craft carried aboard a vessel and used for other than lifesaving purposes. "Liquor" or "intoxicating liquor" shall mean the same as defined in section 281-1, Hawaii Revised Statutes. "Litter" means any and all types of debris and substances, whether liquid or solid, and materials such as garbage, refuse, rubbish, glass, cans, bottles, paper, wrappings, fish or animal carcasses, or any other nauseating or offensive matter or any machinery, appliance, or automobile, or parts thereof, or any other substances which render small boat harbor lands or facilities unsightly, noxious, or otherwise unwholesome to the detriment of the public health and

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welfare or the enjoyment of the small boat harbor for recreational purposes. "Livery boat" means a vessel which is rented, leased, or chartered by a person who is engaged in the business of renting, leasing, or chartering vessels. "Living aboard" means the substantial use of a vessel as a place of abode, dwelling, living quarters, or residence, including, but not limited to, the regular use for such purposes during weekends. "Machinery" means all internal combustion engines located within the vessel and all motor or mechanical devices capable of propelling vessels. "Majority" means the age specified under section 577-1, Hawaii Revised Statutes. "Minor" means a person who has not reached the age of majority. "Moor" means to secure a boat by making it fast with cables, lines, or anchors. "Mooring" means a buoy attached by rope or chain to a permanently placed weight or structure situated within a submerged land area and to which a vessel can be made permanently or temporarily secured. "Mooring" is also referred to as a "mooring buoy". "Motorboat" means any vessel that is equipped with propulsion machinery, including steam. This term includes, but is not limited to, wet bikes, motorized surfboards, and any other vessel temporarily or permanently equipped with a motor. "Navigable streams" means the waters of estuaries and tributaries of the streams of each island of the State, where boating and water related activities, recreational or commercial, may be carried on, whether the mouths of the streams are physically opened or not to ocean waters for intrastate or interstate commerce or navigation. "Nonresident" means a person who is not a resident of the State of Hawaii. "Ocean recreation management area" (ORMA) means ocean waters of the State that have been designated for specific activities as described in chapter 13- 256, Ocean Recreation Management Rules and Areas.

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"Ocean waters" means all waters seaward of the shoreline within the jurisdiction of the State. "Open ocean racing boat" means a motorized vessel which: (1) Is designed, modified, or restored for the primary purpose of high speed board racing; and (2) Has the capacity to carry not more than the operator and five passengers. "Operate" means to navigate or otherwise use a vessel on or in the waters of the State. "Operator" means a person who operates, or who has charge of the navigation or use of, a vessel. "Operator permit" means the permit issued by the department that authorizes either the direct operation or the offering for a fee of surfboards and sailboards or any vessel, watercraft or water sports equipment on the ocean waters and navigable streams of the State. "Outrigger canoe" means a canoe having the inclusion of a rig known as an outrigger which acts as a counterpoise or balance, rigged out from the side of the canoe. A number of spars (iako), usually two but up to as many as ten depending on the canoe's origin and purpose, are lashed across and to the canoe gunwales, extending outwards for a given distance and truncating with the attachment of a flotation device (ama). "Owner" shall be synonymous with the word "boat owner" as defined in this section. "Paddleboard" means any type of board that: (1) Is without skegs; (2) Does not exceed four feet in length; and (3) Is used for the sport of surfriding. "Paipo board" shall be synonymous with the word "paddleboard" as defined in this section. "Parasailing" means the activity in which an individual is transported or carried aloft by a parachute, sail, or other material attached to a towline, which is towed by a vessel. "Parent" includes legal guardian and legal adoptive parent, except where the guardianship or adoption was acquired primarily to obtain resident

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status for the ward or adopted child. "Parent" shall also include a person who can legally claim an unmarried minor as a dependent for federal income tax purposes, but only when the person has been in loco parentis to the minor for the twelve-month period immediately preceding the residence determination date. "Park" or "parking" means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading merchandise or passengers. "Passenger" means every person carried on board a vessel other than: (1) The owner or the owner's representative; (2) The operator; (3) Bona fide members of the crew engaged in the business of the vessel who have contributed no consideration for their carriage and are paid for their services; or (4) Any guest on board a vessel which is being used exclusively for pleasure purposes who has not contributed any consideration, directly or indirectly, for the guest's carriage. "Person" means any individual, firm, partnership, corporation, trust, association, joint venture, organization, institution, or any other legal entity. "Personal flotation device" is a technical term for a life preserver that has been approved and certified by the United States Coast Guard and capable of providing at least ninety per cent of factory-rated flotation capacity. "Pet owner" means any person owning, harboring, or keeping a dog, cat, or other domestic pet, or having custody thereof. "Power driven catamaran" means a catamaran propelled by machinery whether under sail or not. "Power-driven vessel" means any vessel propelled by machinery.

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§13-230-8

"Pram" means a small lightweight nearly flat- bottomed boat with a broad transom and usually square- bow often used as a dinghy. "Principal owner" means a person whose name appears on a certificate of number as the primary owner or who is named as managing owner of a Coast Guard documented vessel. "Principally used" means a measurement of the time when a vessel is on the waters of the United States, a state, territory, province, or country and includes the time when the vessel is not in motion, as, for instance, when the vessel is moored or at anchor, as well as the time when the vessel is being navigated. "Rafting" means tying up or otherwise attaching one vessel to another vessel that is already attached to a mooring or similar device, or to another vessel that is already anchored. "Reciprocal beneficiary" means an adult who is a party to a valid reciprocal beneficiary relationship and meets the requisites for a valid reciprocal beneficiary relationship as set forth in chapter 572C, Hawaii Revised Statutes. "Recreation" means activities in which there is direct and intimate contact with water including, but not limited to, fishing, swimming, surfing, boating, water skiing, and viewing or enjoying historical, archeological, scenic, or scientific sites. "Recreational vessel" means any vessel that is being used for pleasure and not for conducting commercial activity. "Regatta" or "marine parade" means an organized water event of limited duration which is conducted according to a prearranged schedule. "Registration sticker" means a pair of stickers, plates, tabs, or other devices issued by the department with certificates of number and renewals thereof to be affixed to the vessel to indicate that the vessel's certificate of number is current and valid. "Regular permittee" means a person holding a valid regular mooring permit.

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"Regulatory marker" means a waterway marker that indicates the existence of regulatory areas, speed zones, or restricted areas and which has no equivalent in the United States Coast Guard system of navigational aids. "Residence" or "residence status" means a combination of physical presence in a place and the intent to make such place one's permanent home. "Residency determination date" means: (1) The date a person applies for a use permit or for application renewal; (2) The date of issuance or renewal of a use permit; (3) The date the department makes a residency status determination following the receipt of a completed questionnaire submitted by a person classified as a nonresident pursuant to section 13-230-27; or (4) The date of a hearing officer's decision on a petition submitted to the department as prescribed in section 13-230-28. "Roadway" means that portion of a street or highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term "roadway" shall refer to each roadway separately but not to all such roadways collectively. "Rules" means the rules governing small boat harbors, facilities under the jurisdiction of the division, and State ocean waters as set forth in Title 13, Subtitle 11 – Ocean Recreation and Coastal Areas. "Rules of the road" means the federal statutory and regulatory rules governing navigation of vessels. These rules are published by the Coast Guard in pamphlet form and known as Navigation Rules - International - Inland COMDTINST M16672.2D. "Sailboard" means any type of board that exceeds four feet in length and is propelled by a detachable sail apparatus. "Sailing vessel" means any vessel propelled by sail only. Every power-driven vessel which is under

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§13-230-8

sail and not under power is to be considered a sailing vessel, and every vessel under power, whether under sail or not, is to be considered a power-driven vessel. "SCUBA" means self-contained underwater breathing apparatus and includes all forms of self-contained underwater breathing apparatuses, e.g., re-breathers, open-circuit, semi-closed or closed circuit or surface-supplied breathing apparatuses. "Security interest" means an interest in a vessel reserved or created by agreement and which secures payment or performance of an obligation. The term includes the interest of a lessor under a lease intended for security. A security interest is "perfected" when it is valid against third parties generally, subject only to specific statutory exceptions contained in article 9, chapter 490 and section 490:1-201, Hawaii Revised Statutes. "Sheer" means the longitudinal upward curve of the deck, gunwales, and lines of a vessel, when viewed from the side. "Shore waters" or "shores" means any shores or waters between the three nautical mile limit and the shoreline of the islands of the State of Hawaii. "Shoreline" means the upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves. "Sign" means any device for carrying a message which is attached to another object such as a piling, buoy, structure, or land itself. "Skeg" means any fin-like projection. "Sleeping place" means a place used by a person for the purpose of sleeping, where the person is or may be asleep inside a tent, sleeping bag, or some form of temporary shelter or is or may be asleep atop of or covered by materials such as a cot, mat, bedroll, bedding, sheet, blanket, pillow, bag, cardboard, or newspapers.

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§13-230-8

"Slow-no-wake" means as slow as possible without losing steerage way and so as to make the least possible wake. This would almost always mean speeds of less than five miles an hour. "Small boat harbor" means those harbors or portions of harbors, and any interest in property, whether real, personal, or mixed connected therewith under the care and control of the department, which are used as described in section 200-9, Hawaii Revised Statutes. "Snorkeler" shall be synonymous with the word "free diver" as used in this section. "Spouse" means a marriage partner, reciprocal beneficiary, or civil union partner of an individual. "Stand" or "standing" means the halting of a vehicle whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in receiving or discharging passengers. "State" means the State of Hawaii. "State aid to navigation" means a waterway marker which is the equivalent of a United States Coast Guard aid to navigation. "Stay aboard" or "staying aboard" means a person or persons aboard any vessel with prior notice to the department or a stay aboard permit between the hours of 12:00 midnight and 6:00 A.M., while the vessel is moored in a state small boat harbor or offshore mooring area. "Stop" or "stopping", when prohibited, means any halting, even momentarily, of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic control sign or signal. "Stray" means any dog, cat, or other animal without a microchip or other registered owner- identifier or that is living or roaming off its owner's property without permission to be on other public or private property. Strays may also be feral or abandoned. "Street" means the entire width between boundary lines of every way publicly maintained in any small

230-21

§13-230-8

boat harbor when any part thereof is open to the public for purposes of vehicular traffic. "Surfboard" means any type of board that exceeds four feet in length and is used for the sport of surf riding. "Symbols" means geometric figures such as a diamond, circle, or rectangle, used to convey a basic message. "Tahiti moor" means the mooring of a vessel where one end of the vessel is moored by a rope or chain attached to a buoy that is attached to a pile or device that includes, but is not limited to, an anchor, concrete block or similar device placed or dropped on submerged land. The other end of the vessel is moored to the facility that includes, but is not limited to, breakwaters, catwalk, piers, and docks where direct access can be made from the facility to the vessel either by gangway, plank, or stepping onto the vessel. "Temporarily assigned berth" means a berth that is allocated to a permittee by a valid temporary mooring permit for interim use of the facility. "Temporary mooring" means mooring pursuant to a temporary use permit. Calculation of the allowable period for temporary mooring shall include cumulative days moored with and without a permit. "Temporary permittee" means a person holding a valid temporary mooring permit for the interim use of a berth or offshore mooring. "Tender" means a dinghy or a larger launch used to carry persons and supplies to and from large vessels. "Territorial sea baseline" means the line from which the territorial sea is measured, which is generally the low water line along the coasts including the coasts of islands and special closing lines drawn tangent to the headlands across the mouths of rivers, bays, inlets, and other similar indentations. "Thrill craft" means any motorized vessel that falls into the category of personal watercraft, which:

230-22

§13-230-8

(1) Is generally less than thirteen feet in length as manufactured; (2) Is generally capable of exceeding a speed of twenty miles per hour; (3) Can be operated by a single operator, but may have the capacity to carry passengers while in operation; or (4) Is designed to provide similar operating performance as a personal watercraft through a combination of small size, power plant, and hull design. The term includes, but is not limited to, a jet ski, waverunner, wet bike, surf jet, miniature speed boat, hovercraft, and every description of vessel which uses an internal combustion engine powering a water jet pump as its primary source of motive propulsion, and is designed to be operated by a person or persons sitting, standing, or kneeling on, or being towed behind the vessel. "Tow-in surfing" means utilizing a surfboard, often equipped with foot straps, to surf waves with the assistance of a thrill craft that is equipped with a rescue sled, bow tow-line, and a tow-in-rope. "Transient vessel" means any vessel visiting the State for a period of less than ninety days. "Ultralight or experimental float equipped aircraft" means an aircraft of light weight construction and limited range, generally carrying not more than two individuals, able to land on water surfaces using floats. "Unassigned berth" means a berth that is not assigned to a permittee by a regular mooring permit. "Underway" means the vessel is not at anchor, aground, or made fast to shore. "Undocumented vessel" means any vessel that does not have a valid marine document issued by the Coast Guard, in accordance with the Code of Federal Regulations, Subchapter G, Part 67, Documentation of Vessels. "Use permit" as used in these rules, means the authorization by the department to utilize state boating facilities, offshore mooring areas, offshore

230-23

§13-230-8

moorings, state ocean waters, and navigable streams, as evidenced by the fully executed "agreement" described in section 13-231-2. "Vacation" means a period spent away from home or business in travel or recreation. "Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, but excludes mopeds, devices moved by human power, or devices used exclusively upon stationary rails or tracks. "Vessel" means all description of watercraft, used or capable of being used as a means of transportation on or in the water, except a seaplane. "Vessel carrying passengers for hire" means any vessel which carries any person or persons for a valuable consideration that goes directly or indirectly to the owner, charterer, operator, agent, or any person who has an interest in the vessel. "Vessel engaged in fishing" means any vessel fishing with nets, lines, trawls, or other fishing apparatus which restrict maneuverability, but does not include a vessel fishing with trolling lines or other fishing apparatus which do not restrict maneuverability. "Vessel length" means the end-to-end measurement of a vessel, taken over the deck, parallel to the waterline from the foremost part of the bow to the aftermost part of the stern; provided that hull platings, plankings, and extensions aside from the hull proper, such as a bowsprit, are not to be included in the measurement; provided further that an open-type vessel or one with a cockpit shall be measured as if a complete deck existed at the upper level of the hull. "Vessel length overall" means the distance between the fore-and-aft extremities of a vessel including hull platings, plankings, and any extensions beyond the hull proper, such as bowsprit, boomkin, steering device, or other extensions. "Vessel used as a place of principal habitation" means a vessel on which any person remains overnight

230-24

§13-230-8

ninety times or more in a calendar year while the vessel is moored in a state small boat harbor. "Visiting vessel" means a vessel temporarily moored in a state small boat harbor while having a use permit applicable to a different state small boat harbor or other boating facility under the jurisdiction of the division. "Water sledding" means the activity in which an individual is transported or carried over the surface of the water on an apparatus attached to a towline and towed by a vessel. "Water sports equipment" means any equipment, contrivance, frame, or other device that one or more persons may wear, lie, sit, or stand upon or in, and which is primarily for use in or on the water for pleasure, recreation, or sports, and not necessarily for transportation. "Water taxi operations" means the shuttling of persons or cargo to or from the small boat harbor facility or a shoreside location authorized for such use under chapter 13-256 to a destination or vessel located outside the small boat harbor boundary. "Waters of the State" means any waters within the jurisdiction of the State, the marginal seas adjacent to the State, and the high seas when navigated as part of a journey or ride to or from the shores of the State. "Waterway marker" means any device designed to be placed in, or near, the water to convey an official message to a boat operator on matters that may affect health, safety, or well-being, except that such devices of the United States or an agency of the United States are excluded from the meaning of the definition. "Wildlife" means any member of any non- domesticated species of the animal kingdom, and game mammals and game birds living in a wild and non- domesticated state, whether reared in captivity or not, including any mammal, fish, bird, amphibian, reptile, mollusk, crustacean, arthropod, or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.

230-25

§13-230-8

[Eff 2/24/94; am 4/27/02; am 6/16/03; am and comp 12/7/13; am 12/31/18; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10, 200-22, 200-24) (Imp: HRS §§200-2, 200-4, 200-9, 200-10, 200-22, 200- 24)

§§13-230-9 to 13-230-19 (Reserved).

SUBCHAPTER 2

DETERMINATION OF RESIDENCY

§13-230-20 Purpose. The purpose of this subchapter is to provide a procedure whereby a determination of residence status shall be made for all persons who own a vessel moored in a state small boat harbor or who apply for such moorage to assure that they are assessed the proper fees and charges as established by these rules; to provide an appeals mechanism for those persons who believe their residency classification is in error; and to provide sanctions for misrepresentation by a petitioner. [Eff 2/24/94; comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

§13-230-21 Repealed. [R 12/31/18]

§13-230-22 Twelve-month rule. (a) Status as a Hawaii resident must be acquired, and not subsequently lost at least twelve months prior to the residence determination date to avoid payment of the nonresidence fee differential prescribed in section 200-34, Hawaii Revised Statutes. This twelve-month rule also applies to the person whose residency is determined by the fact of residency of another.

230-26

§13-230-23

(b) While residency shall be lost if it is interrupted during the twelve months immediately preceding the residence determination date, resident status derived from two or more successive periods of domicile in Hawaii may be joined together to compute the twelve-month period. [Eff 2/24/94; am and comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200- 10)

§13-230-23 Indications of residence. Because determination of residence in Hawaii requires a finding of subjective fact (intent to make a permanent home) as well as of objective fact (and physical presence), the following objective indications of a person's intent will be considered when determining the person's status. No single index is decisive. (1) Primary indications. (A) Voter registration in Hawaii. (B) Voting in Hawaii. (C) Possession and use of Hawaii motor vehicle license plates. (D) Payment of Hawaii personal income tax. (E) Presence of spouse, children, and other close relatives in Hawaii. (2) Secondary indications. (A) Membership in voluntary organizations in Hawaii. (B) Licensing from the State for professional practice. (C) Carrying on of a business or the holding of a position in Hawaii. (D) Ownership of residential property or continuous letting of an apartment on a lease basis in Hawaii. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

230-27

§13-230-24

§13-230-24 Rules of construction. The following rules of construction shall be applied in all cases: (1) Residence in Hawaii and residence in another place cannot be held simultaneously. (2) Presence in Hawaii primarily to attend an institution of higher learning does not create resident status. (3) Resident status, once acquired, will be lost by future voluntary actions of the resident inconsistent with such status; provided that Hawaii residence will not be lost solely because of absence from the State while employed in the service of the United States, while engaged in navigation, or while a student at any institution of learning. [Eff 2/24/94; comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

§13-230-25 Particular categories. (a) Adults. The resident status of every adult shall be established by the adult's own acts and intentions and shall not be derived from any other person, except as specifically provided otherwise in these rules. (b) Minors. (1) Unemancipated minor. The residence of an unemancipated minor is the residence of the minor's father, if living, or the residence of the minor's mother, if the father is deceased. (2) Divorced parents. If the parents of an unemancipated minor are divorced, the minor's residence is that of the person to whom the minor's custody has been awarded by the court. If no award of custody has been made, the minor's residence is that of the father. However, if the minor maintains the minor's primary abode with the parent not having legal custody, residence of the minor

230-28

§13-230-25

is determined by that parent with whom the minor's primary abode is maintained. (3) Separated parents. If the parents of an unemancipated minor are separated, without a divorce having been granted or custody award having been made, the minor's residence is that of the father if the minor is not living with either parent. If the minor maintains primary abode with a parent, the minor's residence is the residence of that parent. (4) Death of a parent who had custody. The residence of an unemancipated minor becomes that of the surviving parent upon the death of the parent who had the minor's custody. (5) Both parents deceased. If both parents are deceased, the residence of the unemancipated minor remains that of the last parent to die until changed by court order. Upon court appointment of a guardian for the minor, the residence of the minor becomes that of the guardian. (6) A nonresident unemancipated minor attending an institution of higher learning outside of Hawaii or on active duty with the United States Armed Forces, whose parents become residents of Hawaii, and who would reach majority before deriving Hawaiian residence from the minor's parents' new status, may be classified as a resident for fee purposes when the minor's parents have completed twelve consecutive months of residence; provided that such classification will be lost if actions inconsistent with resident status are taken after leaving such institution or discharge from the military (e.g., failure to promptly make a home in Hawaii). (7) If an unemancipated minor's parents lose their Hawaii residence, the minor will be classified as a nonresident at the next residence determination date. However, if

230-29

§13-230-25

the parents' change of residence is due to obedience to active-duty military orders, the minor shall continue to pay only resident fees and charges as long as one of the minor's parents remain on active duty and in a Hawaii resident status. (8) Emancipated minors. An emancipated minor shall be considered an adult for purposes of residence hereunder. The following shall constitute indications of emancipation, no one of which is controlling: (A) Financially independent or self- supporting. (B) Subsistence not provided by parent or legal guardian. (C) Prior military service. (D) Other primary and secondary indications of residence enumerated under section 13-230-24. (E) Any other conduct inconsistent with parental control and custody. (9) A person may base the person's residency on that of other than the parent or legal guardian; provided that the relationship between the person and the person or persons other than the parent or legal guardian is a hānai relationship. (c) Aliens. In addition to all other requirements herein, an alien shall be classified as a resident only upon the alien's admission to the United States for permanent residence (immigration visa). Residence of a minor alien can only be derived from another person (e.g., a parent) when both that person and the minor achieve resident status. (d) Military personnel. Service in the armed forces of the United States shall not of itself negate establishment of residence in Hawaii. For instance, a nonresident member of the United States Armed Forces whose last duty station is in Hawaii and who does all other things necessary to establish a bona fide Hawaiian domicile, including discharge from the military in Hawaii, may be classified as a resident.

230-30

§13-230-26

In addition, a person who establishes a Hawaiian domicile but who enters the military service prior to the expiration of twelve months from the date of such establishment may add the period of the person's military service on to the former period to satisfy the twelve-month rule. (e) Married persons and persons in other legal relationships. A married person or reciprocal beneficiary or civil union partner may establish resident status, either on the basis of indications of residence, or on the basis of the indications of residence of the person's spouse. However, the person must clearly state intent to make Hawaii the person's permanent residence. For purposes of the liveaboard fee, the person holding a principal habitation permit may rely on the residency indications of a reciprocal beneficiary who lives on board the vessel. [Eff 2/24/94; am and comp 12/7/13; am 12/31/18; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

§13-230-26 Determination of residence procedure. (a) These rules establish a fee structure in which nonstate residents in specified instances shall pay an application and permit fee differential. Therefore, any person seeking to be classified as a Hawaii resident for fee purposes shall, at the time of application for or prior to being issued a permit, complete and submit to the department a questionnaire provided by the department designed to elicit facts which will aid the department in determining the applicant's resident, nonresident, or Armed Forces status. The applicant shall answer all pertinent questions and shall attest to the truth of the answers with the applicant's signature. The department may also require the applicant to produce certified copies of documents or other relevant proof as may be necessary for the determination of residency status. (b) A nonresident who believes that the nonresident's residency status has changed so that the nonresident has achieved Hawaii residency status may

230-31

§13-230-26

seek reclassification as a resident by submitting a completed questionnaire as prescribed in subsection (a) on or following the date the nonresident believes that the change in residency status occurred. [Eff 2/24/94; comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

§13-230-27 Permittee required to report change of residence. A resident permittee who subsequently takes up residence outside of the State and continues to moor the permittee's vessel in a state small boat harbor shall advise the department in writing within seven days of the permittee's change of residence. In such a case, nonresident fees and charges shall be payable following the change of residence. A permittee who intends to assume residence outside of the State or relocate to another island yet retain a permitted vessel and assigned mooring shall cause all applicable harbor use permits to be revised to identify the individual that agrees to assume the vessel owner's obligations under the use permit and these rules during the period of the permittee's absence. This individual shall reside on the same island that the vessel is moored. [Eff 2/24/94; am and comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10, 200-22, 200-24) (Imp: HRS §§200-2, 200-4, 200-10, 200-22, 200-24)

§13-230-28 Appeals. (a) Classification as a nonresident by the department may be appealed by the aggrieved person by filing a petition for a declaratory ruling in accordance with section 13-1-27. (b) No petition for appeal shall be accepted by the department unless: (1) The petitioner has paid the nonresident fees and fees and charges and filing fee for residency status appeal. (2) The petitioner has submitted with the petition documentary evidence tending to

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§13-230-28

establish that the petitioner has, for a period of twelve months prior to the residency determination date, been physically present in the State of Hawaii with the intent to make Hawaii the petitioner's home. The documentary evidence to be furnished shall support the claim of residency by establishing acceptable indicia of residency as provided under section 13- 230-23. (3) The petition is filed with the department within thirty days following receipt by certified mail, return receipt requested, or personal delivery, as the case may be, of the department's determination of the petitioner's nonresident status. (c) The petition shall be signed by the petitioner. The petition shall be filed at any division of boating and ocean recreation district office on or before the thirtieth day following receipt by certified mail, return receipt requested or personal delivery, of the department's determination of the petitioner's nonresident status. The district manager receiving the appeal shall promptly forward the appeal to the administrator of the division of boating and ocean recreation. (d) The administrator of the division of boating and ocean recreation shall promptly review any petition filed with the department and take appropriate action as follows within fifteen days after the filing of the petition: (1) Return the petition to the concerned district manager if the administrator of the division of boating and ocean recreation determines the petition should not have been accepted under subsection (b) with an explanation of the basis for rejection, a copy of which shall be forwarded to the petitioner; (2) Reverse the department's prior determination that the petitioner is a nonresident if the administrator of the division of boating and

230-33

§13-230-28

ocean recreation determines that the petitioner has submitted adequate proof that the petitioner is a resident of the State of Hawaii; or (3) Forward the petition to the chairperson for a declaratory ruling in accordance with section 13-1-27. (e) The nonstate resident fee differential and filing fee for residency status appeal shall be promptly refunded if the department reverses the determination of nonresident status, as provided in section 13-234-24. [Eff 2/24/94; am and comp 12/7/13; am and comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200-10)

§13-230-29 Misrepresentation. It is a violation of these rules for any person to misrepresent any fact upon any form or document intended for or used in determination of resident status for fees and charges purposes or for any person to misrepresent any fact at an appellant hearing hereunder. [Eff 2/24/94; am and comp 12/7/13; comp ] (Auth: HRS §§200-2, 200-4, 200-10) (Imp: HRS §§200-2, 200-4, 200- 10)

230-34

DEPARTMENT OF LAND AND NATURAL RESOURCES

Amendment and compilation of chapter 13-230, Hawaii Administrative Rules, on the Summary Page dated December 15, 2023, was adopted on December 15, 2023, following one public hearing held on September 28, 2023, after public notice was given in the Honolulu Star-Advertiser on August 13, 2023.

This amendment and compilation of chapter 13-230, Hawaii Administrative Rules shall take effect ten days after filing with the Office of the Lieutenant Governor.

/s/ Dawn N.S. Chang_____ DAWN N.S. CHANG Chairperson, Department of Land and Natural Resources

APPROVED:

/s/ Josh Green__________ JOSH GREEN, M.D. Governor, State of Hawai‘i

Dated: March 5, 2024

APPROVED AS TO FORM:

/s/ Danica L. Swenson___ DANICA L. SWENSON Deputy Attorney General _____March 5, 2024_____ Filed