Report Title:

Administrative Rules; Transfer of Administration to Ombudsman

Description:

Transfers responsibility to administer agency administrative rules from the lieutenant governor to the ombudsman. Appropriates funds to the ombudsman for this purpose. Repeals governor's and mayors' power to veto rules.

THE SENATE

S.B. NO.

2230

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. The legislature finds that the purpose of the office of the ombudsman is to assist in the resolution of issues or problems the public may have with government entities. One of the first actions taken by the ombudsman when confronted with a request to resolve a citizen's problem with a governmental agency is to refer to the agency's administrative rules to determine whether the agency is either acting within the scope of its powers or fulfilling its responsibilities as mandated under statute or administrative rule. As such, timely access to the official copy of a governmental agency's administrative rules is critical to the ombudsman effectively executing the ombudsman's mandated responsibilities.

Under existing law, the office of the lieutenant governor is charged with the responsibility of administering the official copy of administrative rules for state agencies. The legislature believes that in the spirit of promoting government efficiency, this responsibility more logically rest under the office of the ombudsman.

The legislature further finds that, under existing law, the governor and the respective mayors of each county have the authority to veto administrative rules that have gone through the administrative rulemaking process. The legislature believes that this veto power is not only unnecessary, but is incongruous to the veto process used by our state and county governments when enacting laws or ordinances in that, if a legislative body does not agree with the executive's veto of a bill, the legislative body has the power to override the veto. In the case of the administrative rulemaking process, no such recourse exists.

The purpose of this Act is to transfer the responsibility of administering state government administrative rules from the office of the lieutenant governor to the office of the ombudsman and to repeal the administrative rule veto power of the governor and the respective mayors of each county.

SECTION 2. Chapter 96, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§96- Additional duty of the ombudsman; administrative rules; official custodian. In addition to any other duties required under this chapter, the ombudsman shall be responsible for the maintenance of an official file of rules adopted by state departments as provided in chapter 91."

SECTION 3. Section 26-1, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except as otherwise provided by law, the lieutenant governor is designated the secretary of state for intergovernmental relations and shall perform the duties and functions heretofore exercised by the secretary of Hawaii. The duties and functions shall include, but not be limited to, recordation of all legislative and gubernatorial acts, and certification of state documents[, and maintenance of an official file of rules adopted by state departments as provided in chapter 91]. The lieutenant governor may employ staff as necessary without regard to chapter 76."

SECTION 4. Section 91-2.6, Hawaii Revised Statutes, is amended to read as follows:

"[[]§91-2.6[]] Proposed rulemaking actions and rules; posting on the [lieutenant governor's Internet] ombudsman's internet website. (a) Beginning January 1, 2000, all state agencies, through the office of the [lieutenant governor,] ombudsman, shall make available on the website of the office of the [lieutenant governor] ombudsman each proposed rulemaking action of the agency and the full text of the agency's proposed rules or changes to existing rules. The [Internet] internet website shall provide instructions regarding how to download the information regarding proposed rulemaking actions and the full text of the agency's proposed rules.

(b) Each state agency, to the greatest extent feasible, shall:

(1) Ensure that all information pertaining to that agency that is contained on the [lieutenant governor's] ombudsman's website is current and accurate; and

(2) Advise individuals contacting the state agency of the availability of the proposed rulemaking actions and the full text of the agency's proposed rules on the [lieutenant governor's] ombudsman's website."

SECTION 5. Section 91-3, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"§91-3 Procedure for adoption, amendment, or repeal of rules. (a) Except as provided in subsection (f), 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) 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) The adoption, amendment, or repeal of any rule by any state agency shall be subject to the approval of the governor. 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)] (c) The requirements of subsection (a) may be waived by the governor 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 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)] (d) 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] ombudsman 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)] (e) 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 6. Section 91-4, Hawaii Revised Statutes, is amended 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 governor or the mayor of the county,] shall file forthwith certified copies thereof with the [lieutenant governor] ombudsman 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.] ombudsman. A permanent register of the rules, open to public inspection, shall be kept by the [lieutenant governor] ombudsman and the clerks of the counties.

(b) Each rule hereafter adopted, amended, or repealed shall become effective ten days after filing with the [lieutenant governor] ombudsman in the case of the State, or with the respective county clerks in the case of the counties.

(1) If a later effective date is required by statute or specified in the rule, the later date shall be the effective date; provided that no rule shall specify an effective date in excess of thirty days after the filing of the rule as provided herein.

(2) An emergency rule shall become effective upon filing with the [lieutenant governor] ombudsman in the case of the State, or with the respective county clerks in the case of the counties, for a period of not longer than one hundred twenty days without renewal, unless extended in compliance with [the provisions of subdivisions] subparagraphs (1) and (2) of section 91-3(a), if the agency finds that immediate adoption of the rule is necessary because of imminent peril to the public health, safety, or morals. The agency's finding and brief statement of the reasons therefor shall be incorporated in the rule as filed. The agency shall make an emergency rule known to persons who will be affected by it by publication at least once in a newspaper of general circulation in the State for state agencies and in the county for county agencies within five days from the date of filing of the rule."

SECTION 7. Section 91-4.2, Hawaii Revised Statutes, is amended to read as follows:

"§91-4.2 Rule format; publication of index. The revisor of statutes shall:

(1) Prescribe a single format for the publication, filing, and indexing of rules by all state agencies. Among other things, the revisor shall provide for the manner and form, including size, in which the agency rules shall be prepared, printed, and indexed, to the end that all rules, compilations, and codifications shall be prepared and published in a uniform manner at the earliest practicable date. The format shall provide that each rule published shall be accompanied by a reference to the statutory authority pursuant to which the rule is adopted, the statutory section implemented by the rule, if any, and the effective date of the rule; and provide that whenever possible, rules should incorporate any applicable sections of the Hawaii Revised Statutes by reference and not print the section in the rule. The stipulated format shall also provide for access by the public to all of the rules with an index, both of which shall be located in the office of the [lieutenant governor.] ombudsman; and

(2) Compile and publish an index to all rules required to be filed with the [lieutenant governor] ombudsman with annual supplements."

SECTION 8. Section 91-4.3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The [lieutenant governor] ombudsman shall sell the Hawaii administrative rules index and its supplements at prices [which] that, as nearly as practicable, will reimburse the State for all costs incurred for printing, publication, and distribution."

SECTION 9. 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 2004-2005, for the office of the ombudsman to effectuate the purposes of this Act.

The sum appropriated shall be expended by the ombudsman for the purposes of this Act.

SECTION 10. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the office of the lieutenant governor relating to the functions transferred to the office of the ombudsman under this Act shall be transferred with the functions to which they relate.

SECTION 11. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 12. This Act shall take effect on July 1, 2004.

INTRODUCED BY:

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