Administrative Rules; Repeal

Provides an expedited process for the repeal of obsolete or
unauthorized administrative rules.  (HB2582 HD1)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  The legislature finds that the "slice waste and
 2 tape", or "SWAT", regulatory reform initiative is designed to
 3 improve state government by eliminating unnecessary, null and
 4 void, and overly complex administrative rules that deter economic
 5 development and hamper government efficiency.  The intent of this
 6 initiative is to reduce the burden of government regulation and
 7 minimize its negative effects on Hawaii's residents, businesses,
 8 the economy, and government operations. Strategies to achieve
 9 these objectives include such measures as improving public access
10 to rules, eliminating null and void rules, and reviewing and
11 overhauling the rulemaking process.
12      The legislature finds that in those cases in which an agency
13 seeks only to repeal certain administrative rules that are null
14 and void or unnecessary, the agency must comply with the same
15 lengthy process specified under the Hawaii Administrative
16 Procedure Act that is used when the agency seeks to adopt, amend,
17 or compile administrative rules.  That process requires giving
18 advanced notice, providing a public hearing, and distributing
19 copies of proposed rules to be adopted, amended, or repealed.
20 The legislature finds that with respect to the repeal of null and

Page 2                                                     2582
                                     H.B. NO.           H.D. 1

 1 void or unnecessary rules, compliance with this time-consuming
 2 and cumbersome process unreasonably prolongs the inevitable
 3 repeal of those rules.
 4      Accordingly, the purpose of this Act is to reduce the number
 5 of administrative rules by specifying that where an agency seeks
 6 only to repeal as null and void or unnecessary certain specific
 7 sections, chapters, or subchapters of the Hawaii administrative
 8 rules, the agency need only publish a public notice of those
 9 sections, chapters, or subchapters that are being repealed,
10 without any accompanying description of those provisions, and
11 without the need for a public hearing.  Agencies that propose to
12 adopt, amend, or compile administrative rules, whether separately
13 or in combination with the repeal of rules, must continue to
14 comply with the existing requirements of the Administrative
15 Procedure Act.  The legislature finds that this Act will further
16 help to streamline government and increase government efficiency.
17      SECTION 2.  Section 91-3, Hawaii Revised Statutes, is
18 amended to read as follows:
19      "91-3   Procedure for adoption, amendment, or repeal of
20 rules.(a)  [Prior] Except as provided in subsection (f), prior
21 to the adoption of any rule authorized by law, or the amendment
22 or repeal thereof, the adopting agency shall:

Page 3                                                     2582
                                     H.B. NO.           H.D. 1

 1      (1)  Give at least thirty days' notice for a public hearing.
 2           The notice shall include:
 3           (A)  A statement of the topic of the proposed rule
 4                adoption, amendment, or repeal or a general
 5                description of the subjects involved; and
 6           (B)  A statement that a copy of the proposed rule to be
 7                adopted, the proposed rule amendment, or the rule
 8                proposed to be repealed will be mailed to any
 9                interested person who requests a copy, pays the
10                required fees for the copy and the postage, if
11                any, together with a description of where and how
12                the requests may be made;
13           (C)  A statement of when, where, and during what times
14                the proposed rule to be adopted, the proposed rule
15                amendment, or the rule proposed to be repealed may
16                be reviewed in person; and
17           (D)  The date, time, and place where the public hearing
18                will be held and where interested persons may be
19                heard on the proposed rule adoption, amendment, or
20                repeal.
21                The notice shall be mailed to all persons who have
22           made a timely written request of the agency for advance
23           notice of its rulemaking proceedings, given at least

Page 4                                                     2582
                                     H.B. NO.           H.D. 1

 1           once statewide for state agencies and in the county for
 2           county agencies.  Proposed state agency rules shall
 3           also be posted on the internet as provided in section
 4           91-2.6; and
 5      (2)  Afford all interested persons opportunity to submit
 6           data, views, or arguments, orally or in writing.  The
 7           agency shall fully consider all written and oral
 8           submissions respecting the proposed rule.  The agency
 9           may make its decision at the public hearing or announce
10           then the date when it intends to make its decision.
11           Upon adoption, amendment, or repeal of a rule, the
12           agency, if requested to do so by an interested person,
13           shall issue a concise statement of the principal
14           reasons for and against its determination.
15      (b)  Notwithstanding the foregoing, if an agency finds that
16 an imminent peril to the public health, safety, or morals, or to
17 livestock and poultry health, requires adoption, amendment, or
18 repeal of a rule upon less than thirty days' notice of hearing,
19 and states in writing its reasons for such finding, it may
20 proceed without prior notice or hearing or upon such abbreviated
21 notice and hearing, including posting the abbreviated notice and
22 hearing on the [Internet] internet as provided in section 91-2.6,

Page 5                                                     2582
                                     H.B. NO.           H.D. 1

 1 as it finds practicable to adopt an emergency rule to be
 2 effective for a period of not longer than one hundred twenty days
 3 without renewal.
 4      (c)  The adoption, amendment, or repeal of any rule by any
 5 state agency shall be subject to the approval of the governor.
 6 The adoption, amendment, or repeal of any rule by any county
 7 agency shall be subject to the approval of the mayor of the
 8 county.  This subsection shall not apply to the adoption,
 9 amendment, and repeal of the rules of the county boards of water
10 supply.
11      (d)  The requirements of subsection (a) may be waived by the
12 governor in the case of the State, or by the mayor in the case of
13 a county, whenever a state or county agency is required by
14 federal provisions to adopt rules as a condition to receiving
15 federal funds and the agency is allowed no discretion in
16 interpreting the federal provisions as to the rules required to
17 be adopted; provided that the agency shall make the adoption,
18 amendment, or repeal known to the public by:
19      (1)  Giving public notice of the substance of the proposed
20           rule at least once statewide prior to the waiver of the
21           governor or the mayor; and

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                                     H.B. NO.           H.D. 1

 1      (2)  Posting the full text of the proposed rulemaking action
 2           on the [Internet] internet as provided in section 91-
 3           2.6.
 4      (e)  No adoption, amendment, or repeal of any rule shall be
 5 invalidated solely because of:
 6      (1)  The inadvertent failure to mail an advance notice of
 7           rulemaking proceedings;
 8      (2)  The inadvertent failure to mail or the nonreceipt of
 9           requested copies of the proposed rule to be adopted,
10           the proposed rule amendment, or the rule proposed to be
11           repealed; or
12      (3)  The inadvertent failure on the part of a state agency
13           to post on the website of the office of the lieutenant
14           governor all proposed rulemaking actions of the agency
15           and the full text of the agency's proposed rules as
16           provided in section 91-2.6.
17 Any challenge to the validity of the adoption, amendment, or
18 repeal of an administrative rule on the ground of noncompliance
19 with statutory procedural requirements shall be forever barred
20 unless the challenge is made in a proceeding or action, including
21 an action pursuant to section 91-7, that is begun within three
22 years after the effective date of the adoption, amendment, or
23 repeal of the rule.

Page 7                                                     2582
                                     H.B. NO.           H.D. 1

 1      (f)  Whenever an agency seeks only to repeal one or more
 2 sections, chapters, or subchapters of the agency's rules because
 3 the rules are either obsolete or unauthorized, and not adopt,
 4 amend, or compile any other rules, the agency need only:
 5      (1)  Give thirty days' public notice at least once statewide
 6           of the proposed date of repeal and of:
 7           (A)  A list of the sections, chapters, or subchapters,
 8                as applicable, being repealed; and
 9           (B)  A statement of when, where, and during what times
10                the sections, chapters, or subchapters proposed to
11                be repealed may be reviewed in person;
12           and
13      (2)  Post the full text of the proposed sections, chapters,
14           or subchapters to be repealed on the internet as
15           provided in section 91-2.6.
16      This subsection does not apply to the repeal of one or more
17 subsections, paragraphs, subparagraphs, clauses, words, phrases,
18 or other material within a section that does not constitute the
19 entire section to be repealed."
20      SECTION 3.  Statutory material to be repealed is bracketed.
21 New statutory material is underscored.
22      SECTION 4.  This Act shall take effect upon its approval.