Report Title:

Administrative rules.

Description:

Provides for the review of administrative agency rules by the joint legislative management committee. Prohibits agencies from exceeding the scope of substantive statutory authority conferring the power to adopt rules.

HOUSE OF REPRESENTATIVES

H.B. NO.

1997

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Relating to administrative rules.

 

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

SECTION 1. Chapter 91, Hawaii Revised Statutes, is amended as follows:

1. By adding a new part to be appropriately designated and

to read:

"PART . REVIEW OF AGENCY RULES

§91-   Definitions. As used in this part:

"Co-chairs" means the co-chairpersons of the joint

legislative management committee established under chapter 21E.

"Committee" means the joint legislative management committee

established under chapter 21E.

§91-   Application for review. Any group that has a substantial interest in a rule, or any person who may be directly, substantially, and adversely affected by the application of a rule, may file an application for review with the co-chairs. The application for review shall be received by the committee and the applicant shall state with specificity on a form prepared by the committee, the following:

(1) The name of the agency and the citation of the rule, including section and paragraph if applicable;

(2) A statement of how the rule may directly,

substantially, and adversely affect the operations or

interests of the applicant, or the nature and extent of

the applicant's interest in the rule;

(3) A statement of why the rule, in the opinion of the

applicant, is inappropriate or unnecessary; and

(4) A recommendation proposing changes in the rule or the

statute that the rule implements.

§91-   Committee review. The co-chairs, upon receipt of an application for review, shall send the application and a copy of the rule in question to each member of the committee. Each member of the committee shall individually review the application to determine whether the applicant is qualified and whether the public interest would be served by a review of the rule in question by the full committee. If one-third or more of the full committee notify the co-chairs that a review of the rule should be made, the co-chairs shall schedule a meeting of the committee to review the rule. If the committee does not decide to review the rule, a report to that effect shall be prepared by the co-chairs and sent to the applicant.

The applicant and the affected agency shall be notified of a decision to review the rule and shall be permitted to make expanded statements of their position to the full committee. The committee, in the course of its review, may hold a public hearing, request and obtain opinions of the attorney general, obtain information from the agency, and conduct further investigation.

The committee shall notify the applicant of its decision whether to review the rule within ninety days of receiving the application.

§91-   Criteria for review. When reviewing a rule under this chapter, the committee shall consider, in addition to any matters proposed by the applicant, the following:

(1) Whether the rule is consistent with and necessary to the intent of the statute that the rule implements;

(2) Whether the effects of the rule are reasonable, including its benefits and costs, and costs of compliance and administration;

(3) Whether circumstances have changed since the passage of the statute that the rule implements;

(4) Whether the rule may tend to promote abuse of discretionary powers of the agency; and

(5) Whether any fee established by rule is reasonable and whether the sums collected relate to the costs of administration.

§91-   Committee recommendation. If the committee determines that any of the criteria for review has not been met, it may discuss its findings with the agency. No agency, on the basis of these discussions or any subsequent report of the committee, shall terminate a rule that is required by law. If the committee determines that the rule in question is inappropriate or unnecessary, it shall notify the applicant of its decision and may either direct the legislative reference bureau to draft legislation to amend the law to provide that the authority of the agency to adopt the rule is clarified, modified, or limited, or order the agency to redraft the rule. A majority vote of the committee shall be required for the committee to recommend legislation be introduced to amend or enact legislation pursuant to this section.

After approval of the draft legislation, it shall be submitted according to the legislative rules for final preparation and introduction by the speaker of the house of representatives to the legislature, if the legislature is in session, or if not, to the next regular session of the legislature.

If the committee determines that no legislative action is required, it shall prepare a brief report of its findings and transmit it to the applicant, agency, the president of the senate, and the speaker of the house of representatives.

§91-   Limitation. (a) The committee shall not review a rule that is part of an official action towards issuance or securing obligation of bonds, notes, or other debt obligations of the State, its instrumentalities, or political subdivisions.

(b) This part shall not limit the committee from reviewing a rule on its own motion.

(c) The failure of the committee to review a rule or to recommend modification or termination is not an implied legislative authorization of its substantive or procedural lawfulness and shall not be considered for any purpose in a judicial proceeding.

(d) Nothing in this part shall be deemed to limit a judicial declaration as to the validity of a rule pursuant to section 91-7, or any other judicial review relating to the validity of a rule."

2. By designating sections 91-1 to 91-18 as part I and inserting a title before section 91-1 to read:

"PART I. GENERAL PROVISIONS"

3. By adding a new section to be appropriately designated and to read:

"§91- Scope of rulemaking authority. (a) The legislature finds and declares that:

(1) An agency's power to adopt rules of a substantive nature is limited to the authority delegated by the legislature;

(2) An agency may only exercise its rulemaking authority within the framework of the statute under which it is conferred;

(3) An agency shall strive to implement the legislative intent of the statute conferring rulemaking authority; and

(4) Rules that conflict with the scope of the statutory enactment they were devised to implement are invalid to the extent of the conflict.

(b) Agencies shall not exceed the scope of the substantive statutory authority conferring the power to adopt rules."

SECTION 2. Section 21E-4, Hawaii Revised Statutes, is amended to read as follows:

"[[]§21E-4[]] Powers and duties. The committee shall be responsible for establishing general policy and evaluating, supervising, and coordinating activities among the legislative service agencies. The committee shall:

(1) Determine the types, quantity, and quality of tasks to be assigned to each legislative service agency within statutory limitations; provided that with respect to direction to the auditor to conduct investigations pursuant to Article VII, section 10 of the Constitution of the State, direction shall be by both houses of the legislature;

(2) Evaluate and recommend the budget of each legislative service agency to the legislature;

(3) Approve annually the salary pay ranges to be used in determining the salaries of the staffs of legislative service agencies. Legislative service agency directors shall determine the salaries to be paid to their respective staffs in accordance with the pay ranges. Each legislative service agency director shall file a report annually with the committee setting forth the salaries paid to their respective staffs;

(4) Meet at times as it may determine to carry out its policy-making duties;

(5) Evaluate ways to improve legislative service agency staff services and organization, including but not limited to: operations of legislative service agencies, management of legislative business, legislative compensation, legislative information systems, legislative office space, and efficient use of state capitol facilities;

(6) Supervise the development, operation, and maintenance of legislative information processing systems, including but not limited to approving and monitoring joint computer operations in the legislative process;

(7) Review administrative rules as provided in part     of chapter 91;

[(7)] (8) Adopt rules as necessary for the purposes of this chapter; and

[(8)] (9) Do all things necessary and proper to carry out the purposes of this chapter."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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