HOUSE OF REPRESENTATIVES

H.B. NO.

1128

THIRTY-FIRST LEGISLATURE, 2021

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to emergency management.

 

 

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

 


SECTION 1. The legislature finds that, despite the need for rapid executive action and centralized decision-making in time of emergency, such actions should be limited in scope and duration to no more and no longer than those necessary to facilitate emergency response. All executive emergency actions should be rationally related to expediting emergency response. Executive emergency action must neither be overbroad nor interminable, and the balance of authority between the branches of government should be restored as soon as feasible. Standards must be provided for the courts to consider cases of alleged overreach.

The purpose of this Act is to maintain oversight by the appropriate legislative bodies by establishing an advise and consent process for certain executive emergency actions and empowering the legislative bodies to terminate any executive emergency proclamation no longer serving its purpose.

SECTION 2. Section 127A-1, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) It is the intent of the legislature to provide for and confer comprehensive powers for the purposes stated herein. This chapter shall be liberally construed to effectuate its purposes; provided that this chapter shall not be construed as conferring any power or permitting any action which is inconsistent with the Constitution and laws of the United States, or the Constitution of the State of Hawaii, but, in so construing this chapter, due consideration shall be given to the circumstances as they exist from time to time. This chapter shall not be deemed to have been amended by any act hereafter enacted at the same or any other session of the legislature, unless this chapter is amended by express reference."

SECTION 3. Section 127A-11, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) Except as otherwise expressly provided, all of the powers conferred by this chapter are conferred on the governor or mayor, as applicable. The governor or mayor may delegate any of these powers to governmental, private-sector, and nonprofit agencies and organizations, officials, officers, employees, and other individuals created, appointed, or employed under, or engaged in carrying out this chapter; provided that the following powers shall be retained by the governor or mayor, as applicable:

(1) Proclaiming a state of emergency or local state of emergency, proclaiming a state of emergency or local state of emergency terminated, or making any other proclamation provided for by this chapter;

(2) Prescribing rules having the force and effect of law; and

(3) Making allotments of funds appropriated or available for the purposes of this chapter.

Unless otherwise directed by the governor or mayor, all of the powers pertaining to emergency management authorized to be delegated by the governor or mayor shall be deemed to have been delegated by the governor to the director of Hawaii emergency management and by the mayor to the administrator or director of the county emergency management agency, as applicable, and the administrator or director of the county emergency management agency, respectively, shall have the authority to further delegate any of these powers to any agency or person to whom the governor or mayor could have directly delegated such powers. Any delegation of powers made under this section to non-governmental entities, or to individuals not employed by the government, shall be with the advice and consent of the senate, in the case of a power conferred on the governor, or the advice and consent of the county legislative body, in the case of a power conferred on a mayor."

SECTION 4. Section 127A-13, Hawaii Revised Statutes, is amended to read as follows:

"127A-13 Additional powers in an emergency period. (a) In the event of a state of emergency declared by the governor pursuant to section 127A-14, the governor may exercise the following additional powers pertaining to emergency management during the emergency period:

(1) Provide for and require the quarantine or segregation of persons who are affected with or believed to have been exposed to any infectious, communicable, or other disease that is, in the governor's opinion, dangerous to the public health and safety, or persons who are the source of other contamination, in any case where, in the governor's opinion, the existing laws are not adequate to assure the public health and safety; provide for the care and treatment of the persons; supplement the provisions of sections 325-32 to 325-38 concerning compulsory immunization programs; provide for the isolation or closing of property which is a source of contamination or is in a dangerous condition in any case where, in the governor's opinion, the existing laws are not adequate to assure the public health and safety, and designate as public nuisances acts, practices, conduct, or conditions that are dangerous to the public health or safety or to property; authorize that public nuisances be summarily abated and, if need be, that the property be destroyed, by any police officer or authorized person, or provide for the cleansing or repair of property, and if the cleansing or repair is to be at the expense of the owner, the procedure therefor shall follow as nearly as may be the provisions of section 322-2, which shall be applicable; and further, authorize without the permission of the owners or occupants, entry on private premises for any such purposes;

(2) Relieve hardships and inequities, or obstructions to the public health, safety, or welfare, found by the governor to exist in the laws and to result from the operation of federal programs or measures taken under this chapter, by suspending the laws, in whole or in part, or by alleviating the provisions of laws on such terms and conditions as the governor may impose, including licensing laws, quarantine laws, and laws relating to labels, grades, and standards;

(3) Suspend any law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, including laws which by this chapter specifically are made applicable to emergency personnel; provided that any suspension of law shall be no broader and for no longer than required for expeditious and efficient execution of emergency functions, and any suspension of laws shall identify the sections of laws suspended and, for each section, shall specify the emergency functions facilitated thereby, with sufficient explanation to demonstrate a rational basis for the suspension;

(4) Suspend the provisions of any regulatory law prescribing the procedures for out-of-state utilities to conduct business in the State including any licensing laws applicable to out-of-state utilities or their respective employees, as well as any order, rule, or regulation of any state agency, if strict compliance with the provisions of any such law, order, rule, or regulation would in any way prevent, hinder, or delay necessary action of a state utility in coping with the emergency or disaster with assistance that may be provided under a mutual assistance agreement;

(5) In the event of disaster or emergency beyond local control, or an event which, in the opinion of the governor, is such as to make state operational control necessary, or upon request of the local entity, assume direct operational control over all or any part of the emergency management functions within the affected area;

(6) Shut off water mains, gas mains, electric power connections, or suspend other services, and, to the extent permitted by or under federal law, suspend electronic media transmission;

(7) Direct and control the mandatory evacuation of the civilian population;

(8) Exercise additional emergency functions to the extent necessary to prevent hoarding, waste, or destruction of materials, supplies, commodities, accommodations, facilities, and services, to effectuate equitable distribution thereof, or to establish priorities therein as the public welfare may require; to investigate; and notwithstanding any other law to the contrary, to regulate or prohibit, by means of licensing, rationing, or otherwise, the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution thereof, and any business or any transaction related thereto;

(9) Suspend section 8-1, relating to state holidays, except the last paragraph relating to holidays declared by the president, which shall remain unaffected, and in the event of the suspension, the governor may establish state holidays by proclamation;

(10) Adjust the hours for voting to take into consideration the working hours of the voters during the emergency period, and suspend those provisions of section 11-131 that fix the hours for voting, and fix other hours by stating the same in the election proclamation or notice, as the case may be;

(11) Assure the continuity of service by critical infrastructure facilities, both publicly and privately owned, by regulating or, if necessary to the continuation of the service thereof, by taking over and operating the same; and

(12) Except as provided in section 134-7.2, whenever in the governor's opinion, the laws of the State do not adequately provide for the common defense, public health, safety, and welfare, investigate, regulate, or prohibit the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution of, as well as any transaction related to, explosives, firearms, and ammunition, inflammable materials and other objects, implements, substances, businesses, or services of a hazardous or dangerous character, or particularly capable of misuse, or obstructive of or tending to obstruct law enforcement, emergency management, or military operations, including intoxicating liquor and the liquor business; and authorize the seizure and forfeiture of any such objects, implements, or substances unlawfully possessed, as provided in this chapter.

(b) In the event of a local state of emergency declared by the mayor pursuant to [[]section[]] 127A-14, the mayor may exercise the following additional powers pertaining to emergency management during the emergency period:

(1) Relieve hardships and inequities, or obstructions to the public health, safety, or welfare, found by the mayor to exist in the laws of the county and to result from the operation of federal programs or measures taken under this chapter, by suspending the county laws, in whole or in part, or by alleviating the provisions of county laws on such terms and conditions as the mayor may impose, including county licensing laws, and county laws relating to labels, grades, and standards;

(2) Suspend any county law that impedes or tends to impede or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions, including laws which by this chapter specifically are made applicable to emergency personnel; provided that any suspension of law shall be no broader and for no longer than required for expeditious and efficient execution of emergency functions, and any suspension of laws shall identify the sections of laws suspended and, for each section, shall specify the emergency functions facilitated thereby, with sufficient explanation to demonstrate a rational basis for the suspension;

(3) Shut off water mains, gas mains, electric power connections, or suspend other services; and, to the extent permitted by or under federal law, suspend electronic media transmission;

(4) Direct and control the mandatory evacuation of the civilian population; and

(5) Exercise additional emergency functions, to the extent necessary to prevent hoarding, waste, or destruction of materials, supplies, commodities, accommodations, facilities, and services, to effectuate equitable distribution thereof, or to establish priorities therein as the public welfare may require; to investigate; and any other county law to the contrary notwithstanding, to regulate or prohibit, by means of licensing, rationing, or otherwise, the storage, transportation, use, possession, maintenance, furnishing, sale, or distribution thereof, and any business or any transaction related thereto."

SECTION 5. Section 127A-14, Hawaii Revised Statutes, is amended to read as follows:

"127A-14 State of emergency. (a) The governor may declare the existence of a state of emergency in the State by proclamation if the governor finds that an emergency or disaster has occurred or that there is imminent danger or threat of an emergency or disaster in any portion of the State[.]; provided that any proclamation must specify a date upon which the effects of the proclamation will terminate.

(b) A mayor may declare the existence of a local state of emergency in the county by proclamation if the mayor finds that an emergency or disaster has occurred or that there is imminent danger or threat of an emergency or disaster in any portion of the county[.]; provided that any proclamation must specify a date upon which the effects of the proclamation will terminate.

(c) The governor or mayor shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency in the State or a local state of emergency in the county, as applicable. This section shall not limit the power and authority of the governor under section 127A-13(a)(5).

(d) [A state of emergency and a local state of emergency shall terminate automatically sixty days after the issuance of a proclamation of a state of emergency or local state of emergency, respectively, or by a separate proclamation of the governor or mayor, whichever occurs first.] No proclamation of emergency under this chapter, nor any combination of proclamations, however dated, sequenced, or denominated, shall have effect beyond one hundred twenty days from the date of the first proclamation, absent the advice and consent of the senate, in the case of a state of emergency, or the advice and consent of the county legislative body, in the case of a local state of emergency.

At any time, the legislature, by concurrent resolution, may terminate a proclamation of a state of emergency, in whole or in part. At any time, the county legislative body, by resolution, may terminate a proclamation of a local state of emergency, in whole or in part."

SECTION 6. Section 127A-25, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) For the purpose of carrying out any provision of this chapter, the governor may adopt rules for the State and the mayor may adopt rules for the county which may, for the duration of the emergency proclamation, if so stated in the rules, have the force and effect of law. Even though the rules are prescribed pursuant to a power conferred, or having mandatory or prohibitive effect, only in the event of a state of emergency or local state of emergency, the rules nevertheless may be prescribed prior thereto if stated therein to have the force and effect of law only in the event of a state of emergency or local state of emergency. All the rules, and likewise all other action taken under this chapter, shall be made and taken with due consideration of the orders, rules, regulations, actions, recommendations, and requests of federal authorities relevant thereto. In these rules, reasonable classifications, exceptions, and exemptions may be made and granted. Such rules shall not be subject to chapter 91."

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Emergency Management; Powers; Proclamation; State of Emergency; Local State of Emergency; Scope and Duration; Advise and Consent

 

Description:

During a state of emergency or local state of emergency, provides parameters for delegation of powers and scope and duration of suspension of laws. Provides an advise and consent process for an emergency proclamation to extend beyond one hundred twenty days. Provides a legislative means for an emergency proclamation to be terminated.

 

 

 

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