Administrative Procedure; Rulemaking
Amends the procedure for the adoption, amendment, or repeal of rules to conform to federal law. (HB2686 HD1)
HOUSE OF REPRESENTATIVES
TWENTY-FOURTH LEGISLATURE, 2008
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 policy making function of government is vested in the legislative branch. However, the legislature is permitted to, and routinely does, delegate authority to various government agencies to adopt rules as necessary to implement the laws enacted by the legislature.
An agency's rulemaking authority is governed by the administrative procedure law under chapter 91, Hawaii Revised Statutes. The administrative procedure law reflects the limitations that the legislature imposes on the agencies with regard to rulemaking. The relevant law can vary in specificity, but serves as a judicially enforceable restriction on an agency's discretion. When an agency exceeds its statutory rulemaking discretion, the legislature's policy making authority is usurped. This situation contravenes the concept of the separation of powers.
Questions have arisen regarding whether certain agencies have usurped the legislature's legislative power by adopting rules that exceed the scope of the agencies' statutory authority. In addition, while agencies are required under chapter 91, Hawaii Revised Statutes, to afford interested persons an opportunity to submit data, views, or arguments when the agency proposes to adopt, amend, or repeal a rule, agency proposals are regularly adopted without any apparent consideration of submitted information. Clear administrative procedure limits agency discretion and helps ensure that agency rules more closely reflect legislative intent.
The federal Administrative Procedure Act of 1946 served as the model for Hawaii's administrative procedure law. While Hawaii's administrative procedure law conforms in large measure with the federal Administrative Procedure Act, state agencies have greater discretionary authority under Hawaii law than federal agencies do under federal law. Federal law also places additional requirements on federal agencies to ensure careful consideration of public input. For instance, federal regulations promulgated pursuant to the National Environmental Policy Act of 1969 require federal agencies to request comments from appropriate state and federal agencies, affirmatively solicit comments from persons or organizations that may be interested or affected, and respond to the comments prior to preparing an environmental impact statement. Under these regulations, federal agencies must study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts regarding alternative uses of available resources.
The purpose of this Act is to clarify existing administrative procedure law to ensure that agency rulemaking in the state does not exceed statutory authority by conforming Hawaii administrative procedure law to federal law regarding rulemaking and public participation in government.
SECTION 2. Section 91-3, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(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] and
a description of where and how [ the requests] a request may be
(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];
(2) Mail the notice to [
each person who [ have made] makes a timely written request
of the agency for advance notice of [ its] the agency's rulemaking
proceedings, given at least once statewide for state agencies and in the county
for county agencies[ . Proposed state agency rules shall also be
(3) Post proposed state agency rules on
the Internet as provided in section 91-2.6; [
and (2) Afford] (4) Request
comments from the public, affirmatively soliciting comments from any person or
organization that may be interested in or affected by the adoption, amendment,
or repeal of a rule, and 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 adoption,
amendment, or repeal of a rule. The agency [ may make its decision at
the public hearing or] shall 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.];
(5) Obtain the comments of any agency that has jurisdiction by law or special expertise with respect to the area to be affected by the adoption, amendment, or repeal of a rule;
(6) Request the comments of:
(A) Agencies that are authorized to develop and enforce standards applicable to the area to be affected by the adoption, amendment, or repeal of a rule; and
(B) Any agency that requests to receive a copy of the proposed adoption, amendment, or repeal of a rule pursuant to paragraph (1)(B);
(7) Assess and consider comments, individually and collectively, and respond by one or more of the following methods prior to the adoption, amendment, or repeal of the rule:
(A) Modifying the proposal to adopt, amend, or repeal the rule;
(B) Developing and evaluating alternatives that were not given serious consideration;
(C) Supplementing, improving, or modifying the agency's analysis;
(D) Making factual corrections; or
(E) Explaining why the comments do not warrant further agency response; provided that the agency shall cite the source, authority, or reason that supports the agency's position and, if appropriate, indicate the circumstances that would trigger a reappraisal or further response;
(8) Issue a determination on the proposal to adopt, amend, or repeal a rule at a public hearing convened in accordance with this subsection; provided that:
(A) The proponent of a proposal to adopt, amend, or repeal a rule shall bear the burden of proof; and
(B) The proposal shall not be adopted, except after consideration of the whole record or those parts of the record cited by a party and supported by, and in accordance with, reliable, probative, and substantial evidence; and
(9) Upon request by an interested person, issue a concise statement of the principal reasons for and against the determination to adopt, amend, or repeal a rule."
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.