Report Title:

Legislature; admin. rules

Description:

Amends and adds new sections to chapter 91, Hawaii Revised Statutes, to create a bicameral legislative commission to review and approve all administrative rules.

HOUSE OF REPRESENTATIVES

H.B. NO.

2553

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO ADMINISTRATIVE PROCEDURE.

 

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

SECTION 1. The purpose of this Act is to establish a process for legislative review of all administrative rules in order to insure that such rules conform to legislative intent.

SECTION 2. Section 91-3, Hawaii Revised Statutes, is amended to read as follows:

"§91-3 Procedure for adoption, amendment, or repeal of rules. (a) Except as provided in subsection [(f)] (g), prior to the adoption of any rule authorized by law, or the amendment or repeal thereof, the adopting agency shall:

(1) Give at least thirty days' notice for a public hearing. The notice shall include:

(A) A statement of the topic of the proposed rule adoption, amendment, or repeal or a general description of the subjects involved; and

(B) A statement that a copy of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where and how the requests may be made;

(C) A statement of when, where, and during what times the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed may be reviewed in person; and

(D) The date, time, and place where the public hearing will be held and where interested persons may be heard on the proposed rule adoption, amendment, or repeal.

The notice shall be mailed to all persons who have made a timely written request of the agency for advance notice of its rulemaking proceedings, given at least once statewide for state agencies and in the county for county agencies. Proposed state agency rules shall also be posted on the Internet as provided in section 91-2.6; and

(2) Afford all interested persons opportunity to submit data, views, or arguments, orally or in writing. The agency shall fully consider all written and oral submissions respecting the proposed rule. The agency may make its decision at the public hearing or announce then the date when it intends to make its decision. Upon adoption, amendment, or repeal of a rule, the agency, if requested to do so by an interested person, shall issue a concise statement of the principal reasons for and against its determination.

(b) Upon completion of the process set forth in subsection (a), each state agency adopting, amending, or repealing a rule shall file forthwith certified copies thereof with the administrative rules review commission as provided in section 91- . Upon approval by the administrative rules review commission, the state agency shall file certified copies thereof with the governor for approval.

[(b)] (c) Notwithstanding the foregoing, if an agency finds that an imminent peril to the public health, safety, or morals, or to livestock and poultry health, requires adoption, amendment, or repeal of a rule upon less than thirty days' notice of hearing, and states in writing its reasons for such finding, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing, including posting the abbreviated notice and hearing on the Internet as provided in section 91-2.6, as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal.

[(c)] (d) The adoption, amendment, or repeal of any rule by any state agency shall be subject to the approval of the [governor.] administrative rules review commission under section 91- . The adoption, amendment, or repeal of any rule by any county agency shall be subject to the approval of the mayor of the county. This subsection shall not apply to the adoption, amendment, and repeal of the rules of the county boards of water supply.

[(d)] (e) The requirements of subsection (a) may be waived by the [governor] administrative rules review commission in the case of the State, or by the mayor in the case of a county, whenever a state or county agency is required by federal provisions to adopt rules as a condition to receiving federal funds and the agency is allowed no discretion in interpreting the federal provisions as to the rules required to be adopted; provided that the agency shall make the adoption, amendment, or repeal known to the public by:

(1) Giving public notice of the substance of the proposed rule at least once statewide prior to the waiver of the [governor] administrative rules review commission or the mayor; and

(2) Posting the full text of the proposed rulemaking action on the Internet as provided in section 91-2.6.

[(e)] (f) No adoption, amendment, or repeal of any rule shall be invalidated solely because of:

(1) The inadvertent failure to mail an advance notice of rulemaking proceedings;

(2) The inadvertent failure to mail or the nonreceipt of requested copies of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed; or

(3) The inadvertent failure on the part of a state agency to post on the website of the office of the lieutenant governor all proposed rulemaking actions of the agency and the full text of the agency's proposed rules as provided in section 91-2.6.

Any challenge to the validity of the adoption, amendment, or repeal of an administrative rule on the ground of noncompliance with statutory procedural requirements shall be forever barred unless the challenge is made in a proceeding or action, including an action pursuant to section 91-7, that is begun within three years after the effective date of the adoption, amendment, or repeal of the rule.

[(f)] (g) Whenever an agency seeks only to repeal one or more sections, chapters, or subchapters of the agency's rules because the rules are either null and void or unnecessary, and not adopt, amend, or compile any other rules:

(1) The agency shall give thirty days' public notice at least once statewide of the proposed date of repeal and of:

(A) A list of the sections, chapters, or subchapters, as applicable, being repealed; and

(B) A statement of when, where, and during what times the sections, chapters, or subchapters proposed to be repealed may be reviewed in person;

(2) The agency shall post the full text of the proposed sections, chapters, or subchapters to be repealed on the Internet as provided in section 91-2.6; and

(3) Any interested person may petition the agency regarding the sections, chapters, or subchapters proposed to be repealed, pursuant to section 91-6.

This subsection does not apply to the repeal of one or more subsections, paragraphs, subparagraphs, clauses, words, phrases, or other material within a section that does not constitute the entire section to be repealed."

SECTION 3. Section 91-4, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"§91-4 Filing and taking effect of rules. (a) Each agency adopting, amending, or repealing a rule, upon approval thereof by the administrative rules review commission under section 91- and the governor or the mayor of the county, shall file forthwith certified copies thereof with the lieutenant governor in the case of the State, or with the clerk of the county in the case of a county. In addition, the clerks of all of the counties shall file forthwith certified copies thereof with the lieutenant governor. A permanent register of the rules, open to public inspection, shall be kept by the lieutenant governor and the clerks of the counties."

SECTION 4. Chapter 91, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§91- Administrative rules review commission. There is hereby created an administrative rules review commission to consist of three members of the senate to be appointed by the president of the senate, and four members of the house of representatives to be appointed by the speaker. At least one of the members from the senate and two of the members from the house of representatives shall be members of the minority party. The president of the senate and the speaker of the house shall each appoint a chairman to serve alternate years from among the commission membership. Any vacancies shall be filled in the same manner as the original appointment. Such appointees shall serve at the pleasure of the respective legislative member making such appointment."

SECTION 5. Chapter 91, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§91- Powers and duties. (a) Each state agency recommending the adoption, amendment, or repeal of an administrative rule, shall submit certified copies thereof, to the administrative rules review commission.

(b) The commission shall exercise continuous oversight of the process of administrative rule making and examine rules established under this chapter and which are adopted, amended, or repealed by each state agency pursuant to subsection (a) with respect to (1) statutory authority, (2) compliance with legislative intent, (3) fiscal impact, (4) impact on the economy and on the government operations of the state and its local governments, and impact on affected parties; and in furtherance of such duties, may examine other issues it deems appropriate.

(c) The commission shall have the power to hold hearings, subpoena witnesses, administer oaths, take testimony, and compel the production of books, papers, documents, and other evidence in furtherance of its duties; provided, however, that no subpoena shall issue except upon the affirmative vote of a majority of the whole membership of the commission. The commission may request and shall receive from all agencies such assistance and data as will enable it properly to consummate any such examination and review.

(d) The commission shall submit to each regular session of the legislature a report concerning its findings. The legislature shall take such action in response to the report as it finds appropriate and shall notify each agency or department whose rule is itemized in the report of the report's findings.

(e) No administrative rule adopted, amended, or repealed pursuant to this chapter shall take effect without the approval of the administrative rules review commission and the governor."

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

 

 

INTRODUCED BY:

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