REPORT TITLE:
Administrative Rules


DESCRIPTION:
Provides for the review of administrative agency rules by the
joint legislative management committee.  Prohibits agencies from
exceeding the scope of substantive statutory authority conferring
the power to adopt rules.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2187
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
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                   A  BILL  FOR  AN  ACT

RELATING TO ADMINISTRATIVE RULES.



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 as follows:
 
 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 a
 
22 decision to review the rule and shall be permitted to make
 
23 expanded statements of their position to the full committee.  The
 

 
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 1 committee, in the course of its review, may hold a public
 
 2 hearing, request and obtain opinions of the attorney general,
 
 3 obtain information from the agency, and conduct further
 
 4 investigation.
 
 5      The committee shall notify the applicant of its decision
 
 6 whether or not to review the rule within ninety days of receiving
 
 7 the 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 it may discuss its findings with the agency.  No agency, on the
 
 4 basis of these discussions or any subsequent report of the
 
 5 committee, shall terminate a rule that is required by law.  If
 
 6 the committee determines that the rule in question is
 
 7 inappropriate or unnecessary, it shall notify the applicant of
 
 8 its decision and may either direct the legislative reference
 
 9 bureau to draft legislation to amend the law to provide that the
 
10 authority of the agency to adopt the rule is clarified, modified,
 
11 or limited, or order the agency to redraft the rule.  A majority
 
12 vote of the committee shall be required for the committee to
 
13 recommend legislation be introduced to amend or enact legislation
 
14 pursuant to this section.
 
15      After approval of the draft legislation, it shall be
 
16 submitted according to the legislative rules for final
 
17 preparation and introduction by the speaker of the house of
 
18 representatives to the legislature, if the legislature is in
 
19 session, or if not, to the next regular session of the
 
20 legislature.
 
21      If the committee determines that no legislative action is
 
22 required, it shall prepare a brief report of its findings and
 
23 transmit it to the applicant, agency, the president of the
 
24 senate, and the speaker of the house of representatives.
 

 
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 1      91-  Limitation.(a)  The committee shall not review a
 
 2 rule that is part of an official action towards issuance or
 
 3 securing obligation of bonds, notes, or other debt obligations of
 
 4 the State, its instrumentalities, or political subdivisions.
 
 5      (b)  This part shall not limit the committee from reviewing
 
 6 a rule on its own motion.
 
 7      (c)  The failure of the committee to review a rule or to
 
 8 recommend modification or termination is not an implied
 
 9 legislative authorization of its substantive or procedural
 
10 lawfulness and shall not be considered for any purpose in a
 
11 judicial proceeding.
 
12      (d)  Nothing in this part shall be deemed to limit a
 
13 judicial declaration as to the validity of a rule pursuant to
 
14 section 91-7, or any other judicial review relating to the
 
15 validity of a rule."
 
16      2.  By designating sections 91-1 to 91-18 as part I and
 
17 inserting a title before section 91-1 to read:
 
18                   "PART I.  GENERAL PROVISIONS"
 
19      3.  By adding a new section to be appropriately designated
 
20 and to read as follows:
 
21      "91-    Scope of rulemaking authority.  (a)  The
 
22 legislature finds and declares that:
 

 
 
 
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 1      (1)  An agency's power to adopt rules of a substantive
 
 2           nature is limited to the authority delegated by the
 
 3           legislature;
 
 4      (2)  An agency may only exercise its rulemaking authority
 
 5           within the framework of the statute under which it is
 
 6           conferred;
 
 7      (3)  An agency shall strive to implement the legislative
 
 8           intent of the statute conferring rulemaking authority;
 
 9           and
 
10      (4)  Rules that conflict with the scope of the statutory
 
11           enactment they were devised to implement are invalid to
 
12           the extent of the conflict.
 
13      (b)  Agencies shall not exceed the scope of the substantive
 
14 statutory authority conferring the power to adopt rules."
 
15      SECTION 2.  Section 21E-4, Hawaii Revised Statutes, is
 
16 amended to read as follows:
 
17      "[[]21E-4[]]  Powers and duties.  The committee shall be
 
18 responsible for establishing general policy and evaluating,
 
19 supervising, and coordinating activities among the legislative
 
20 service agencies.  The committee shall:
 
21      (1)  Determine the types, quantity, and quality of tasks to
 
22           be assigned to each legislative service agency within
 
23           statutory limitations; provided that with respect to
 

 
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 1           direction to the auditor to conduct investigations
 
 2           pursuant to [Article] article VII, section 10 of the
 
 3           Constitution of the State, direction shall be by both
 
 4           houses of the legislature;
 
 5      (2)  Evaluate and recommend the budget of each legislative
 
 6           service agency to the legislature;
 
 7      (3)  Approve annually the salary pay ranges to be used in
 
 8           determining the salaries of the staffs of legislative
 
 9           service agencies.  Legislative service agency directors
 
10           shall determine the salaries to be paid to their
 
11           respective staffs in accordance with the pay ranges.
 
12           Each legislative service agency director shall file a
 
13           report annually with the committee setting forth the
 
14           salaries paid to their respective staffs;
 
15      (4)  Meet at times as it may determine to carry out its
 
16           policy-making duties;
 
17      (5)  Evaluate ways to improve legislative service agency
 
18           staff services and organization, including but not
 
19           limited to:  operations of legislative service
 
20           agencies, management of legislative business,
 
21           legislative compensation, legislative information
 
22           systems, legislative office space, and efficient use of
 
23           state capitol facilities;
 

 
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 1      (6)  Supervise the development, operation, and maintenance
 
 2           of legislative information processing systems,
 
 3           including but not limited to approving and monitoring
 
 4           joint computer operations in the legislative process;
 
 5      (7)  Review administrative rules as provided in part     of
 
 6           chapter 91;
 
 7     [(7)] (8)  Adopt rules as necessary for the purposes of this
 
 8           chapter; and
 
 9     [(8)] (9)  Do all things necessary and proper to carry out
 
10           the purposes of this chapter."
 
11      SECTION 3.  This Act does not affect rights and duties that
 
12 matured, penalties that were incurred, and proceedings that were
 
13 begun, before its effective date.
 
14      SECTION 4.  Statutory material to be repealed is bracketed.
 
15 New statutory material is underscored.
 
16      SECTION 5.  This Act shall take effect upon its approval.