SB2371

THE SENATE	S.B. NO.	2371
TWENTY-NINTH LEGISLATURE, 2018
STATE OF HAWAII

A BILL FOR AN ACT

relating to emergency rules by agencies.

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

SECTION 1. Periodically, changes to controlling law may require immediate alterations to long-standing statutes, regulations, or agency practices. For example, Janus v. American Fed'n of State, County, and Mun. Employees, Council 31, 851 F.3d 746 (7^th Cir. 2017), cert. granted, 138 S.Ct. (Mem), 198 L.Ed. 2d 780 (2017) may, in the first half of 2018, after forty years of stability, suddenly require restructuring of public employees' unions' financing, as set forth in section 89-4, Hawaii Revised Statutes, or have other similar foundational impacts. The issuance of such decisions may affect any regulated area, at any time, including when the legislature is not in session, and require both specialized skill in interpretation of Hawaii law, and rapidity of response on an emergency basis to prevent impairment of important rights.

The purpose of this Act is to allow agencies to adopt emergency rules for immediate adaptation of Hawaii law to federal law, or other overarching Hawaii law, while preserving unmodified values and goals of Hawaii law. The language is intended to be broad enough to allow agencies to react rapidly to any federal or Hawaii case or statute affecting any aspect of the agency's jurisdiction or administered statutes. The enactment of emergency regulations may stabilize the situation sufficiently for the agency or the legislature to pursue more enduring solutions with appropriate deliberation.

SECTION 2. Section 91-3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Notwithstanding the foregoing, if an agency finds that an imminent peril to the public health, safety, or morals, to livestock and poultry health, or to natural resources requires adoption, amendment, or repeal of a rule upon less than thirty days' notice of hearing, and states in writing its reasons for such finding, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing, including posting the abbreviated notice and hearing on the Internet as provided in section 91-2.6, as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal. An agency also may, in a similar manner, adopt emergency rules, where new federal or state legislation or court decisions disrupt prior practice under the administered statute, and adoption of an emergency rule is urgently needed to:

(1) Conform existing statutes and rules to new requirements;

(2) Implement newly-established rights;

(3) Clarify existing statutes and prevent confusion among those regulated;

(4) Stabilize the regulated industry or endeavor;

(5) Avoid disruption of governmental or industrial operations;

(6) Facilitate orderly agency or legislative study of the consequences;

(7) Reinforce or preserve the unmodified goals of the administered statute; or

(8) At least temporarily resolve some practical problem created by the new federal or state legislation or court decisions."

SECTION 3. Section 91-4, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Each rule hereafter adopted, amended, or repealed shall become effective ten days after filing with the lieutenant governor in the case of the State, or with the respective county clerks in the case of the counties; provided that:

(1) If a later effective date is required by statute or specified in the rule, the later date shall be the effective date; provided further that no rule shall specify an effective date in excess of thirty days after the filing of the rule as provided herein; and

(2) An emergency rule shall become effective upon filing with the lieutenant governor in the case of the State, or with the respective county clerks in the case of the counties, for a period of not longer than one hundred twenty days without renewal unless extended in compliance with section 91-3(b) if the agency finds that immediate adoption of the rule is necessary [~~because of imminent peril to the public health, safety, or morals, or to natural resources~~]. The agency's finding and brief statement of the reasons therefor shall be incorporated in the rule as filed. The agency shall make an emergency rule known to persons who will be affected by it by publication at least once in a newspaper of general circulation in the State for state agencies and in the county for county agencies within five days from the date of filing of the rule."

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.

INTRODUCED BY:	_____________________________