REPORT TITLE: 
Administrative Rules; Repeal


DESCRIPTION:
Provides that any administrative rule that has been adopted
pursuant to statute or ordinance that has been subsequently
repealed shall be repealed automatically upon the effective date
of this Act without regard to chapter 91, HRS.  Provides that
whenever a statute or ordinance is repealed, the administrative
rule that is adopted pursuant to the repealed statute or
ordinance shall also be repealed automatically without regard to
chapter 91, HRS.  Provides for the review of administrative
rules by the joint legislative management committee.  Prohibits
agencies from exceeding the scope of substantive statutory
authority confirming the power to adopt rules.  Requires that
rules adopted to comply with federal law not impose regulatory
requirements in excess of federal requirements, except when
justified by certain conditions.  (SB2711 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 2000                                H.D. 1
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.  Chapter 91, Hawaii Revised Statutes, is amended
 
 2 as follows:
 
 3      1.  By adding a new part to be appropriately designated and
 
 4 to read:
 
 5                 "PART   .  REVIEW OF AGENCY RULES
 
 6      §91-  Definitions.  As used in this part:
 
 7      "Co-chairs" means the co-chairpersons of the joint
 
 8 legislative management committee established under chapter 21E.
 
 9      "Committee" means the joint legislative management committee
 
10 established under chapter 21E.
 
11      §91-  Application for review.  Any group that has a
 
12 substantial interest in a rule, or any person who may be
 
13 directly, substantially, and adversely affected by the
 
14 application of a rule, may file an application for review with
 
15 the co-chairs.  The application for review shall be received by
 
16 the committee and the applicant shall state with specificity on a
 
17 form prepared by the committee, the following:
 
18      (1)  The name of the agency and the citation of the rule,
 
19           including section and paragraph if applicable;
 

 
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 1      (2)  A statement of how the rule may directly,
 
 2           substantially, and adversely affect the operations or
 
 3           interests of the applicant, or the nature and extent of
 
 4           the applicant's interest in the rule;
 
 5      (3)  A statement of why the rule, in the opinion of the
 
 6           applicant, is inappropriate or unnecessary; and
 
 7      (4)  A recommendation proposing changes in the rule or the
 
 8           statute that the rule implements.
 
 9      §91-  Committee review.  The co-chairs, upon receipt of an
 
10 application for review, shall send the application and a copy of
 
11 the rule in question to each member of the committee.  Each
 
12 member of the committee shall individually review the application
 
13 to determine whether the applicant is qualified and whether the
 
14 public interest would be served by a review of the rule in
 
15 question by the full committee.  If one-third or more of the full
 
16 committee notify the co-chairs that a review of the rule should
 
17 be made, the co-chairs shall schedule a meeting of the committee
 
18 to review the rule.  If the committee does not have enough votes
 
19 to review the rule, a report to that effect shall be prepared by
 
20 the co-chairs and sent to the applicant.
 
21      The applicant and the affected agency shall be notified of
 
22 the decision to review the rule and shall be permitted to make
 
23 expanded statements of their position to the full committee.  The
 
24 committee, in the course of its review, may:
 

 
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 1      (1)  Hold a public hearing;
 
 2      (2)  Request and obtain opinions of the attorney general;
 
 3      (3)  Obtain information from the agency; and
 
 4      (4)  Conduct further investigation.
 
 5      The committee shall notify the applicant of its decision
 
 6 whether to review the rule within ninety days of receiving the
 
 7 application.
 
 8      §91-  Criteria for review.  When reviewing a rule under
 
 9 this chapter, the committee shall consider, in addition to any
 
10 matters proposed by the applicant, the following:
 
11      (1)  Whether the rule is consistent with and necessary to
 
12           the intent of the statute that the rule implements;
 
13      (2)  Whether the effects of the rule are reasonable,
 
14           including its benefits and costs, and costs of
 
15           compliance and administration;
 
16      (3)  Whether circumstances have changed since the passage of
 
17           the statute that the rule implements;
 
18      (4)  Whether the rule may tend to promote abuse of
 
19           discretionary powers of the agency; and
 
20      (5)  Whether any fee established by rule is reasonable and
 
21           whether the sums collected relate to the costs of
 
22           administration.
 

 
 
 
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 1      §91-  Committee recommendation.  If the committee
 
 2 determines that any of the criteria for review has not been met,
 
 3 the committee may discuss the committee's findings with the
 
 4 agency.  No agency, on the basis of these discussions or any
 
 5 subsequent report of the  committee, shall terminate a rule that
 
 6 is required by law.  If the committee determines that the rule in
 
 7 question is inappropriate or unnecessary, the committee shall
 
 8 notify the applicant of its decision and may either direct the
 
 9 legislative reference bureau to:
 
10      (1)  Draft legislation to amend the law to provide that the
 
11           authority of the agency to adopt the rule is clarified,
 
12           modified, or limited; or 
 
13      (2)  Order the agency to redraft the rule.
 
14 A majority vote of the committee shall be required for the
 
15 committee to recommend legislation be introduced to amend or
 
16 enact legislation pursuant to this section.
 
17      After approval of the draft legislation, it shall be
 
18 submitted according to the legislative rules for final
 
19 preparation and introduction by the speaker of the house of
 
20 representatives to the legislature, if the legislature is in
 
21 session, or if not, to the next regular session of the
 
22 legislature.
 

 
 
 
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 1      If the committee determines that no legislative action is
 
 2 required, it shall prepare a brief report of its findings and
 
 3 transmit it to the applicant, agency, the president of the
 
 4 senate, and the speaker of the house of representatives.
 
 5      §91-  Limitation.(a)  The committee shall not review a
 
 6 rule that is part of an official action towards issuance or
 
 7 securing obligation of bonds, notes, or other debt obligations of
 
 8 the State, its instrumentalities, or political subdivisions.
 
 9      (b)  This part shall not limit the committee from reviewing
 
10 a rule on its own motion.
 
11      (c)  The failure of the committee to review a rule or to
 
12 recommend modification or termination is not an implied
 
13 legislative authorization of its substantive or procedural
 
14 lawfulness and shall not be considered for any purpose in a
 
15 judicial proceeding.
 
16      (d)  Nothing in this part shall be deemed to limit a
 
17 judicial declaration as to the validity of a rule pursuant to
 
18 section 91-7, or any other judicial review relating to the
 
19 validity of a rule."
 
20      2.  By designating sections 91-1 to 91-18 as part I and
 
21 inserting a title before section 91-1 to read:
 

 
 
 
 
 
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 1                   "PART I.  GENERAL PROVISIONS"
 
 2      3.  By amending section 91-1 by adding a new definition to
 
 3 be appropriately inserted and to read:
 
 4      ""Head of the agency" means any officer, board, commission,
 
 5 authority, public corporation, instrumentality or other body
 
 6 having charge of an agency."
 
 7      4.  By adding four new sections to be appropriately
 
 8 designated and to read:
 
 9      "§91-    Scope of rulemaking authority.  (a)  The
 
10 legislature finds and declares that:
 
11      (1)  An agency's power to adopt rules of a substantive
 
12           nature is limited to the authority delegated by the
 
13           legislature;
 
14      (2)  An agency may only exercise its rulemaking authority
 
15           within the framework of the statute under which it is
 
16           conferred;
 
17      (3)  An agency shall strive to implement the legislative
 
18           intent of the statute conferring rulemaking authority;
 
19           and
 
20      (4)  Rules that conflict with the scope of the statutory
 
21           enactment they were devised to implement are invalid to
 
22           the extent of the conflict.
 

 
 
 
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 1      (b)  Agencies shall not exceed the scope of the substantive
 
 2 statutory authority conferring the power to adopt rules.
 
 3      §91-     Repeal of administrative rules based on statutes or
 
 4 ordinances that have been subsequently repealed.  (a)  Any
 
 5 administrative rule that has been adopted pursuant to a statute
 
 6 or ordinance that has been subsequently repealed prior to the
 
 7 effective date of this section shall be repealed automatically
 
 8 without regard to the requirements of this chapter.
 
 9      (b)  Upon the repeal of a statute or ordinance, any
 
10 administrative rule that has been adopted pursuant to the
 
11 repealed statute or ordinance shall be repealed automatically
 
12 without regard to the notification requirements of this chapter.
 
13      (c)  This section shall not apply to an administrative rule
 
14 adopted pursuant to a subsequently repealed statute or ordinance
 
15 that is readopted by operation of law as a part of a transfer of
 
16 functions from one department or agency to another department or
 
17 agency.
 
18      §91-      Rules required by federal provisions; minimum
 
19 impact.  Whenever a state or county agency is required by federal
 
20 provisions to adopt rules, the rules adopted shall impose the
 
21 minimum regulatory requirements necessary to comply with the
 
22 federal provisions; provided that rules imposing regulatory
 
23 requirements in excess of those necessary to comply with federal
 
24 provisions may be adopted if the state or county agency:
 

 
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 1      (1)  Includes a written statement of justification for the
 
 2           excess regulatory requirements when submitting the
 
 3           rules to the governor or mayor of the county for
 
 4           approval pursuant to section 91-3(c); and
 
 5      (2)  Subsequently makes the rules and the written statement
 
 6           of justification available for review by the mayor of
 
 7           the county, legislature, or governor.
 
 8      §91-     Rulemaking procedure.  (a)  Subject to the
 
 9 requirements of this chapter, each agency shall develop and use
 
10 flexible approaches in making, amending, or repealing rules that
 
11 meet the needs of the agency and that involve persons affected by
 
12 the agency's rules.  In making, amending, or repealing rules, the
 
13 head of the agency is responsible for ensuring that the rules
 
14 developed are in concert with the spirit and intent of the law
 
15 and may designate a representative to provide assistance in
 
16 fulfilling this responsibility.
 
17      (b)  After a public hearing has been held on any rule as
 
18 required by section 91-3, the proposed rule shall not be adopted
 
19 unless the head of the agency concurs that the proposed rule has
 
20 a rational nexus to the law and conforms to the letter, spirit,
 
21 and intent of the law."
 
22      SECTION 2.  Section 21E-4, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "[[]§21E-4[]]  Powers and duties.  The committee shall be
 
 2 responsible for establishing general policy and evaluating,
 
 3 supervising, and coordinating activities among the legislative
 
 4 service agencies.  The committee shall:
 
 5      (1)  Determine the types, quantity, and quality of tasks to
 
 6           be assigned to each legislative service agency within
 
 7           statutory limitations; provided that with respect to
 
 8           direction to the auditor to conduct investigations
 
 9           pursuant to [Article] article VII, section 10 of the
 
10           Constitution of the State, direction shall be by both
 
11           houses of the legislature;
 
12      (2)  Evaluate and recommend the budget of each legislative
 
13           service agency to the legislature;
 
14      (3)  Approve annually the salary pay ranges to be used in
 
15           determining the salaries of the staffs of legislative
 
16           service agencies.  Legislative service agency directors
 
17           shall determine the salaries to be paid to their
 
18           respective staffs in accordance with the pay ranges.
 
19           Each legislative service agency director shall file a
 
20           report annually with the committee setting forth the
 
21           salaries paid to their respective staffs;
 
22      (4)  Meet at times as it may determine to carry out its
 
23           policy-making duties;
 

 
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 1      (5)  Evaluate ways to improve legislative service agency
 
 2           staff services and organization, including but not
 
 3           limited to:  operations of legislative service
 
 4           agencies, management of legislative business,
 
 5           legislative compensation, legislative information
 
 6           systems, legislative office space, and efficient use of
 
 7           state capitol facilities;
 
 8      (6)  Supervise the development, operation, and maintenance
 
 9           of legislative information processing systems,
 
10           including but not limited to approving and monitoring
 
11           joint computer operations in the legislative process;
 
12      (7)  Review administrative rules as provided in part     of
 
13           chapter 91;
 
14     [(7)] (8)  Adopt rules as necessary for the purposes of this
 
15           chapter; and
 
16     [(8)] (9)  Do all things necessary and proper to carry out
 
17           the purposes of this chapter."
 
18      SECTION 3.  Act 168, Session Laws of Hawaii 1998, is amended
 
19 by amending section 5 to read as follows:
 
20      "SECTION 5.  This Act shall take effect on July 1, 1998, and
 
21 shall be repealed [as of] on June 30, [2002.] 2006."
 
22      SECTION 4.  This Act does not affect rights and duties that
 
23 matured, penalties that were incurred, and proceedings that were
 
24 begun, before its effective date.
 

 
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 1      SECTION 5.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 6.  This Act shall take effect upon its approval.