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.

 
HB HMIA 99-322
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            803         
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                     A BILL FOR AN ACT

RELATING TO ADMINISTRATIVE PROCEDURE.



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


 1      SECTION 1.  The purpose of this Act is to establish a
 
 2 process for legislative review of all administrative rules in
 
 3 order to insure that such rules conform to legislative intent.  
 
 4      SECTION 2.  Section 91-3, Hawaii Revised Statutes, is
 
 5 amended to read as follows:
 
 6      "§91-3 Procedure for adoption, amendment or repeal of
 
 7 rules. (a)  Prior to the adoption of any rule authorized by law,
 
 8 or the amendment or repeal thereof, the adopting agency shall:
 
 9      (1)  Give at least thirty days' notice for a public hearing.
 
10           The notice shall include:
 
11           (A)  Either:
 
12                (i)  A statement of the substance of the proposed
 
13                     rule adoption, amendment, or repeal; or
 
14               (ii)  A general description of the subjects
 
15                     involved and the purposes to be achieved by
 
16                     the proposed rule adoption, amendment, or
 
17                     repeal; and
 
18           (B)  A statement that a copy of the proposed rule to be
 
19                adopted, the proposed rule amendment, or the rule
 

 
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 1                proposed to be repealed will be mailed at no cost
 
 2                to any interested person who requests a copy,
 
 3                together with a description of where and how the
 
 4                requests may be made; and
 
 5           (C)  The date, time, and place where the public hearing
 
 6                will be held and where interested persons may be
 
 7                heard on the proposed rule adoption, amendment, or
 
 8                repeal.
 
 9           The notice shall be mailed to all persons who have made
 
10           a timely written request of the agency for advance
 
11           notice of its rulemaking proceedings, and published at
 
12           least once in a newspaper of general circulation in the
 
13           State for state agencies and in the county for county
 
14           agencies.
 
15      (2)  Afford all interested persons opportunity to submit
 
16           data, views, or arguments, orally or in writing.  The
 
17           agency shall fully consider all written and oral
 
18           submissions respecting the proposed rule.  The agency
 
19           may make its decision at the public hearing or announce
 
20           then the date as to when it intends to make its
 
21           decision.  Upon adoption, amendment, or repeal of a
 
22           rule, the agency shall, if requested to do so by an
 
23           interested person, issue a concise statement of the
 

 
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 1           principal reasons for and against its determination.
 
 2      (b)  Upon completion of the process set forth in subsection
 
 3           (a), each state agency adopting, amending, or repealing
 
 4           a rule shall file forthwith certified copies thereof
 
 5           with the administrative rules review commission as
 
 6           provided in section 91-     .  Upon approval by the
 
 7           administrative rules review commission, the state
 
 8           agency shall file certified copies therof with the
 
 9           governor for approval.
 
10      [(b)](c)  Notwithstanding the foregoing, if an agency finds
 
11 that an imminent peril to the public health, safety, or morals or
 
12 to livestock and poultry health requires adoption, amendment, or
 
13 repeal of a rule upon less than thirty days' notice of hearing,
 
14 and states in writing its reasons for such finding, it may
 
15 proceed without prior notice or hearing or upon such abbreviated
 
16 notice and hearing as it finds practicable to adopt an emergency
 
17 rule to be effective for a period of not longer than one hundred
 
18 twenty days without renewal.
 
19      [(c)](d)  The adoption, amendment, or repeal of any rule by
 
20 any state agency shall be subject to the approval of the
 
21 [governor] administrative rules review commission under section
 
22 91-     .  The adoption, amendment, or repeal of any rule by any
 
23 county agency shall be subject to the approval of the mayor of
 

 
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 1 the county.  The provisions of this subsection shall not apply to
 
 2 the adoption, amendment, and repeal of the rules and regulations
 
 3 of the county boards of water supply.
 
 4      [(d)](e)  The requirements of subsection (a) may be waived
 
 5 by the [governor] administrative rules review commission in the
 
 6 case of the State, or by the mayor in the case of a county,
 
 7 whenever a state or county agency is required by federal
 
 8 provisions to promulgate rules as a condition to receiving
 
 9 federal funds and such agency is allowed no discretion in
 
10 interpreting such federal provisions as to the rules required to
 
11 be promulgated; provided that the agency shall make such
 
12 adoption, amendment, or repeal known to the public by publishing
 
13 a statement of the substance of the proposed rule at least once
 
14 in a newspaper of general circulation in the State prior to the
 
15 waiver of the [governor] administrative rules review commission
 
16 or the mayor.
 
17      [(e)](f)  No adoption, amendment, or repeal of any rule
 
18 shall be invalidated solely because of the inadvertent failure to
 
19 mail an advance notice of rulemaking proceedings or the
 
20 inadvertent failure to mail or the nonreceipt of requested copies
 
21 of the proposed rule to be adopted, the proposed rule amendment,
 
22 or the rule proposed to be repealed.  Any challenge to the
 
23 validity of the adoption, amendment, or repeal of an
 

 
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 1 administrative rule on the ground of noncompliance with statutory
 
 2 procedural requirements shall be forever barred unless the
 
 3 challenge is made in a proceeding or action, including an action
 
 4 pursuant to section 91-7, that is begun within three years after
 
 5 the effective date of the adoption, amendment, or repeal of the
 
 6 rule." 
 
 7      SECTION 3.  Section 91-4, Hawaii Revised Statutes, is
 
 8 amended to read as follows:
 
 9      "§91-4 Filing and taking effect of rules.(a)  Each agency
 
10 adopting, amending, or repealing a rule, upon approval thereof by
 
11 the administrative rules review commission under section 91-
 
12 and the governor or the mayor of the county, shall file forthwith
 
13 certified copies thereof with the lieutenant governor in the case
 
14 of the State, or with the clerk of the county in the case of a
 
15 county.  In addition, the clerks of all of the counties shall
 
16 file forthwith certified copies thereof with the lieutenant
 
17 governor.  A permanent register of the rules, open to public
 
18 inspection, shall be kept by the lieutenant governor and the
 
19 clerks of the counties.
 
20      (b)  Each rule hereafter adopted, amended, or repealed shall
 
21 become effective ten days after filing with the lieutenant
 
22 governor in the case of the State, or with the respective county
 
23 clerks in the case of the counties.
 

 
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 1      (1)  If a later effective date is required by statute or
 
 2           specified in the rule, the later date shall be the
 
 3           effective date; provided that no rule shall specify an
 
 4           effective date in excess of thirty days after the
 
 5           filing of the rule as provided herein.
 
 6      (2)  An emergency rule shall become effective upon filing
 
 7           with the lieutenant governor in the case of the State,
 
 8           or with the respective county clerks in the case of the
 
 9           counties, for a period of not longer than one hundred
 
10           twenty days without renewal unless extended in
 
11           compliance with the provisions of subdivisions (1) and
 
12           (2) of section 91-3(a), if the agency finds that
 
13           immediate adoption of the rule is necessary because of
 
14           imminent peril to the public health, safety, or morals.
 
15           The agency's finding and brief statement of the reasons
 
16           therefor shall be incorporated in the rule as filed.
 
17           The agency shall make an emergency rule known to
 
18           persons who will be affected by it by publication at
 
19           least once in a newspaper of general circulation in the
 
20           State for state agencies and in the county for county
 
21           agencies within five days from the date of filing of
 
22           the rule. 
 
23      SECTION 4.  Chapter 91, Hawaii Revised Statutes, is amended
 

 
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 1 by adding a new section to be appropriately designated and to
 
 2 read as follows:
 
 3      "§91-       Administrative rules review commission.  There
 
 4 is hereby created an administrative rules review commission to
 
 5 consist of three members of the senate to be appointed by the
 
 6 president of the senate, and four members of the house of
 
 7 representatives to be appointed by the speaker.  At least one of
 
 8 the members from the senate and two of the members from the house
 
 9 of representatives shall be members of the minority party.  The
 
10 president of the senate and the speaker of the house shall each
 
11 appoint a chairman to serve alternate years from among the
 
12 commission membership.  Any vacancies shall be filled in the same
 
13 manner as the original appointment.  Such appointees shall serve
 
14 at the pleasure of the respective legislative member making such
 
15 appointment."
 
16      SECTION 5.  Chapter 91, Hawaii Revised Statutes, is amended
 
17 by adding a new section to be appropriately designated and to
 
18 read as follows:
 
19      "§91-       Powers and duties.  (a)  Each state agency
 
20 recommending the adoption, amendment, or repeal of an
 
21 administrative rule, shall submit certified copies thereof, to
 
22 the administrative rules review commission.
 
23      (b)  The commission shall exercise continuous oversight of
 

 
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 1 the process of administrative rule making and examine rules
 
 2 established under this chapter and which are adopted, amended, or
 
 3 repealed by each state agency pursuant to subsection (a) with
 
 4 respect to (1) statutory authority,  (2)  compliance with
 
 5 legislative intent, (3) fiscal impact, (4) impact on the economy
 
 6 and on the government operations of the state and its local
 
 7 governments, and impact on affected parties; and in furtherance
 
 8 of such duties, may examine other issues it deems appropriate.
 
 9      (c)  The commission shall have the power to hold hearings,
 
10 subpoena witnesses, administer oaths, take testimony, and compel
 
11 the production of books, papers, documents, and other evidence in
 
12 furtherance of its duties; provided, however, that no subpoena
 
13 shall issue except upon the affirmative vote of a majority of the
 
14 whole membership of the commission.  The commission may request
 
15 and shall receive from all agencies such assistance and data as
 
16 will enable it properly to consummate any such examination and
 
17 review.
 
18      (d)  The commission shall submit to each regular session of
 
19 the legislature a report concerning its findings.  The
 
20 legislature shall take such action in response to the report as
 
21 it finds appropriate and shall notify each agency or department
 
22 whose rule is itemized in the report of the report's findings.
 
23      (e)  No administrative rule adopted, amended, or repealed
 

 
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 1 pursuant to this chapter shall take effect without the approval
 
 2 of the administrative rules review commission and the governor."
 
 3      SECTION 6.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 7.  This Act shall take effect upon its approval.
 
 6 
 
 7 
 
 8                         INTRODUCED BY:___________________________
 

 
HB HMIA 99-322