HB2009.DOC

SECTION 1. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

DISTRIBUTORS OF YELLOW PAGES PHONE BOOKS

§ -1 Definitions. For purposes of this chapter:

"Department" means the department of health.

"Director" means the director of health.

"Display advertising" means business advertising that includes both text and non-textual graphic elements.

"Distribute" or "distribution" means the unsolicited delivery of more than four tons annually of yellow pages phone books to the addresses of residents and businesses within the State; provided that "distribution" shall not include the delivery of phone books or directories by telecommunications providers providing local exchange service in the State or membership organizations to their members or to other residents or businesses that have affirmatively requested delivery.

"Distributor" means a person or entity engaged in the business of arranging for the distribution of yellow pages phone books within the State, including persons or entities that arrange for the publication and distribution of yellow pages phone books and derive income, at least in part, from the advertising contained in yellow pages phone books; provided that the term shall not include individuals whose sole role in the distribution is limited to making deliveries to residential or business addresses.

"Membership organization" means an organization that is organized and operated primarily or exclusively for the purpose of providing services or benefits to a designated and identifiable group of members.

"Yellow pages phone book" means a publication that consists primarily of a listing of business names and telephone numbers and contains display advertising for at least some of the listed businesses, regardless of whether or not it is printed on yellow paper.

§ -2 Distributor permit required; fee. (a) Every distributor of yellow pages phone books operating within the State shall obtain a yellow pages phone books distributor permit annually from the department of health using forms prescribed by the director and shall notify the department of any change in previously submitted information within thirty days of the change. No distributor shall distribute yellow pages phone books within the State without a current and valid permit pursuant to this chapter.

(b) Each annual permit shall be accompanied by a registration fee of $100. Fees collected under this subsection shall be deposited into the environmental management special fund created by section 342G-63 and shall be expended by the department for the purpose of administering the requirements of this chapter.

§ -3 Permit nontransferable. A permit issued pursuant to this chapter shall be nontransferable, including between successors in interest.

§ -4 Distributor's annual reports. (a) Every distributor submitting an application for a yellow pages phone books distributor permit shall include with the application and with each renewal of an existing permit, an accurate annual report describing the quantity in numbers of units as well as in weight of yellow pages phone books distributed within the State during the previous calendar year. The director may specify additional information to be included in the report by rule adopted pursuant to chapter 91.

(b) Failure to submit a complete and accurate annual report as required by this section constitutes a violation of this chapter and shall be grounds for the denial of a permit application or shall invalidate a distributor's permit.

(c) Along with the annual report required by this section, each distributor shall remit the recovery fee required by section -7.

§ -5 Opt-out registry. (a) The director shall establish and maintain an opt-out registry to serve as a clearinghouse for residents and businesses to register and indicate their desire to not receive delivery of some or all yellow pages phone books. The registry shall include a list of the addresses of all residences and the names and addresses of all businesses that have indicated their desire to not receive delivery of yellow pages phone books. Names of individuals shall not be included on the registry and shall not be public information subject to disclosure under chapter 92F. Information shall remain on the registry until the resident or business notifies the department of the desire to be removed from the registry.

(b) The director shall establish a process by rule adopted pursuant to chapter 91 to allow residents and businesses to indicate their desire to be included on the registry through telephone, electronic communication, United States mail, or other means as determined by the director.

(c) The director shall make opt-out registry information available to all distributors with valid permits on a routine basis.

(d) Not more than thirty days prior to distributing yellow pages phone books within the State, each distributor shall obtain a copy of the most recent opt-out registry information from the department. Distributors shall not distribute yellow pages phone books to the addresses listed on the opt-out registry. Distributors shall retain a copy of each opt-out registry information obtained pursuant to this subsection for at least five years and shall make the copies available to the director for purposes of investigation and enforcement of this chapter.

§ -6 Director's annual report. The director shall submit an annual report to the legislature and governor evaluating the operation and impact of the opt-out registry. The report shall identify needed improvements and concerns expressed by residents and businesses and shall make recommendations for amending or enhancing the opt-out registry program.

§ -7 Recovery fee. (a) An annual recovery fee of 14 cents per yellow pages phone book plus $148 per ton of yellow pages phone books distributed within the State shall be charged to each distributor. The recovery fee shall be deposited into the environmental management special fund established pursuant to section 342G-63 and shall be expended by the department for the purpose of administering the opt-out registry.

(b) The recovery fee required by this section shall be calculated based on information contained in the annual report required by section -4 and shall be submitted along with the annual report. Payment of the recovery fee shall be recorded on a form prescribed by the director which shall include the signature of a responsible officer or agent of the distributor who shall affirm that the information contained in the report and used to calculate the recovery fee is complete and accurate.

§ -8 Distributor requirements. (a) Each distributor shall prominently and conspicuously display on a portion of the front cover of each yellow pages phone book distributed within the State information about the opt-out registry and the necessary contact information that residents and businesses may use to be included in the opt-out registry.

(b) Each distributor shall prominently and conspicuously display information about the opt-out registry and the necessary contact information that residents and businesses may use to be included in the opt-out registry on the distributor's website.

§ -9 Recyclable content. The content of all yellow pages phone books and any materials included within yellow pages phone books at the time of delivery shall be recyclable within the county of delivery.

§ -10 Powers and duties of the director. In addition to any other powers and duties authorized by law, the director shall:

(1) Adopt, amend, or repeal rules in accordance with chapter 91 for the purpose of carrying out the requirements of this chapter;

(2) Enforce this chapter and any rules adopted pursuant to this chapter, including assessing fines or imposing penalties;

(3) Invalidate the permit of a distributor for a violation of this chapter or rules;

(4) Investigate any person or entity and hold administrative hearings in accordance with chapter 91 for suspected violations of this chapter;

(5) Impose penalties authorized by this chapter or rules; and

(6) Delegate all functions, except rulemaking authority, to any other person for the administration of this chapter.

§ -11 Civil penalty. Any person who fails to comply with this chapter shall be subject to a civil penalty of not more than $125 per violation. The director is authorized to initiate legal action necessary to enforce this chapter.

§ -12 Exemption. The director may, by rule adopted pursuant to chapter 91, specify criteria for exemption of a distributor from the requirements of this chapter; provided that the criteria for an exemption shall require a distributor to demonstrate to the satisfaction of the director that the distributor has an effective system in place to assure the distribution of yellow pages phone books only to those residents and businesses that affirmatively request delivery."

SECTION 2. Section 342G-63, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:

"(c) The department shall expend moneys contained in the environmental management special fund to:

(1) Partially fund the operating costs of the program including its regulatory functions and the development of waste reduction and diversion activities as mandated by [~~chapter 342G;~~] this chapter;

(2) Fund statewide education, demonstration, and market development programs[,] through direct contract or direct transfer of funds to the counties and the department of business, economic development, and tourism, or under a grant program that may be developed under rules adopted pursuant to chapter 91; [~~and~~]

(3) Provide for annual training for municipal solid waste operators in compliance with 40 Code of Federal Regulations Part 258 and chapter [~~11-58,~~] 11-58.1, Hawaii Administrative Rules[.]; and

(4) Administer the yellow pages opt-out program created pursuant to chapter ."

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2009
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII