REPORT TITLE:
Rules; Fees; Internet


DESCRIPTION:
Limits to 10 cents a page the amount each state agency other than
the Lieutenant Governor may charge for copies of rules.  Allows
separate charges for searching, identifying, and segregating
rules to be copied.  Requires posting of full text of proposed
rules on the Lieutenant Governor's website effective January 1,
2000. (SB1016 HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1016
THE SENATE                              S.B. NO.           S.D. 1
TWENTIETH LEGISLATURE, 1999                                H.D. 1
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT

RELATING TO ADMINISTRATIVE RULES.



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

 1      SECTION 1.  The legislature finds that until early last
 
 2 year, the Hawaii Administrative Procedure Act required agencies,
 
 3 as a part of the rulemaking process, to give copies of the
 
 4 proposed rulemaking action free of charge to persons who
 
 5 requested them.  During the 1998 legislature, two measures were
 
 6 enacted that had an impact on fees charged for agency rules.  The
 
 7 first, Act 2, Session Laws of Hawaii (SLH) 1998, required
 
 8 agencies adopting rules to mail copies of proposed rules to
 
 9 interested persons who requested them, but only after the person
 
10 paid for the cost of the copy and postage, rather than free of
 
11 charge as had previously been the case.  In addition, Act 311,
 
12 SLH 1998, raised the fee for reproducing government records from
 
13 twenty-five cents a page to fifty cents a page.
 
14      The enactment of Acts 2 and 311, SLH 1998, led to confusion
 
15 among many state agencies.  Some questioned whether those
 
16 amendments required them to charge for copies of rules.  Others
 
17 wondered whether the agencies could set their own fees, or
 
18 whether the statutory fee set by Act 311 would apply.  In a study
 
19 conducted by the legislative reference bureau entitled "The Price
 

 
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 1 of Access:  Fees for Copies of State Administrative Agency
 
 2 Rules", the bureau found that for a variety of reasons, a
 
 3 significant majority of state agencies or programs did not want
 
 4 to charge, did not plan to charge, or would not charge for copies
 
 5 of rules unless required to do so by a higher or other external
 
 6 authority.
 
 7      That requirement came in the form of a letter opinion from
 
 8 the attorney general dated September 21, 1998, in which the
 
 9 attorney general stated that by virtue of the amendments made by
 
10 Acts 2 and 311, SLH 1998, agencies are now required to charge
 
11 fees for copies of proposed rules, and that those fees must be at
 
12 the rate of fifty cents a page.  Agencies may waive the fees for
 
13 other state agencies and, under section 92-28, Hawaii Revised
 
14 Statutes, may reduce fees charged to the public by as much as
 
15 fifty per cent (i.e., down to twenty-five cents per page), but
 
16 only with the approval of the governor.  The bureau's study
 
17 determined that copies of rules could typically be produced for
 
18 less than ten cents a page.
 
19      The legislature did not intend that fees for copies of rules
 
20 be mandatory, and finds that these high fees, now interpreted to
 
21 be mandatory, are a significant and unnecessary barrier to public
 
22 access.  At fifty cents a page, members of the public will have
 
23 to pay $11 to $12 on average for a copy of proposed rules in a
 
24 typical rulemaking action.  In large rulemaking actions, the cost
 

 
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 1 of a single copy could run to hundreds of dollars.  These fees
 
 2 are simply not affordable to the average small business or
 
 3 private citizen.  Further, since most state rules are not
 
 4 currently posted in electronic form, such as on the internet, the
 
 5 public has few alternative methods by which to obtain copies of
 
 6 proposed rules.  Requiring all agencies to charge for copies of
 
 7 rules simply does not make sense.  A significant majority of
 
 8 state agencies and programs do not believe that it is in their
 
 9 best interests to charge for copies, for a variety of reasons.
 
10 Agencies seeking the broadest possible dissemination of their
 
11 proposed rules have no reason to establish cost barriers.
 
12      On the other hand, mandating free copies could be unfairly
 
13 burdensome to agencies whose operations are required to be self-
 
14 funding, or in other instances where the demand for copies is
 
15 extremely high.  Where the demand is high, agencies should at
 
16 least have the option to print a large number of copies and
 
17 charge fees to recover their costs, which, under the
 
18 circumstances, may only be a few cents per page.
 
19      The legislature finds that authorizing, instead of requiring
 
20 agencies to charge fees cuts through many of these problems.  The
 
21 ability of the agency to charge a higher fee, a lower fee, or no
 
22 fee at all gives each agency the flexibility to determine what is
 
23 in its own best interests.  The legislature's intent is to ensure
 

 
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 1 that any fees charged for copies, mailing, or both, do not
 
 2 constitute an unreasonable barrier to public access.  The cost of
 
 3 producing copies of rules themselves, whether proposed or final,
 
 4 is not particularly high.  The cost to agencies of staff time
 
 5 spent identifying and searching for rules for which copies are
 
 6 requested can be recovered through reasonable fees for searching,
 
 7 identifying, and segregating records to be copied.  These types
 
 8 of fees and charges are now being standardized by the office of
 
 9 information practices in its proposed rules now pending approval
 
10 by the governor.
 
11      Many of the problems involved in charging and collecting
 
12 fees can be avoided altogether by utilizing alternatives ranging
 
13 from agreements with private copying services to other forms of
 
14 technology.  The posting of agency rules, both proposed and
 
15 final, on the internet holds a great deal of promise for
 
16 promoting public access while bypassing the issue of charging and
 
17 collecting fees for copies.  A few agencies have already taken
 
18 the initiative to establish websites that include their rules.
 
19 Others plan to post their rules on the internet in the near or
 
20 the distant future.  Meanwhile, the lieutenant governor's office
 
21 is implementing an ambitious project to coordinate executive
 
22 agency efforts to post all final rules on the internet.  The
 

 
 
 
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 1 legislature wholeheartedly endorses and supports this project as
 
 2 a significant step forward in promoting public access to state
 
 3 administrative agency rules.
 
 4      The purpose of this Act is to implement the recommendations
 
 5 of the legislative reference bureau's study by:
 
 6      (1)  Allowing rather than requiring agencies other than the
 
 7           office of the lieutenant governor to charge fees for
 
 8           copies of proposed and final rules at a rate of not
 
 9           more than ten cents a page, plus actual costs of
 
10           mailing, if any;
 
11      (2)  Clarifying that informational or educational
 
12           publications that contain copies of statutes, agency
 
13           rules, or both, are subject to the same fee
 
14           considerations, and thus exempt from the statutory rate
 
15           of fifty cents a page;
 
16      (3)  Specifying that the fees for copies are separate from
 
17           any reasonable charges for staff time spent searching
 
18           for, identifying, or segregating the rules for which
 
19           copies are requested; and
 
20      (4)  Requiring state agencies, beginning January 1, 2000, to
 
21           post public notices of proposed rulemaking actions and
 
22           the full text of their proposed rules on the internet
 
23           through the lieutenant governor's office.
 

 
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 1      These amendments are intended to make clear that agency
 
 2 rules, whether proposed or final, and related publications, must
 
 3 be available to the public at rates that are closer to actual
 
 4 reproduction costs, while giving agencies the flexibility to
 
 5 distribute copies free of charge if they so desire.  Agencies
 
 6 would thus be able to use newer technologies such as fax machines
 
 7 or posting rules on the internet without having to try to recover
 
 8 mandated charges of arbitrary amounts.  This is intended to
 
 9 enable agencies to operate in the manner that they feel most
 
10 appropriate, ensure that any fees allowed do not constitute
 
11 unreasonable barriers to public access, and avoid the problems
 
12 inherent in trying to create blanket exemptions for classes such
 
13 as public interest, nonprofit, or tax exempt organizations.  The
 
14 one agency that is exempted from the fee requirement of ten cents
 
15 per page is the office of the lieutenant governor for rules in
 
16 its general collection (as opposed to the office's own rules).
 
17 Making the lieutenant governor's general collection subject to
 
18 the same fee of ten cents per page for copies could result in
 
19 that office being overwhelmed by requests by any and every
 
20 individual seeking to obtain copies of final rules for every
 
21 state agency.
 
22      Requiring agencies to post the full text of their proposed
 
23 rules on the internet through the office of the lieutenant
 
24 governor is intended to:
 

 
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 1      (1)  Expedite the efforts of the office of the lieutenant
 
 2           governor to post all final state agency rules on the
 
 3           internet by helping to ensure that all state
 
 4           departments have at least some staff capable of
 
 5           producing documents in the form needed for posting on
 
 6           the internet.  The preparation for posting of proposed
 
 7           rules will provide earlier and more regular
 
 8           opportunities for departmental staffs to work with the
 
 9           office of the lieutenant governor in standardizing
 
10           necessary procedures; and
 
11      (2)  Simultaneously improve public access and reduce the
 
12           need for agencies to provide paper copies by giving
 
13           interested persons the alternative of downloading or
 
14           printing the proposed rules from the internet, and
 
15           being able to access the information from their home,
 
16           their place of business, or a public library.
 
17      In many respects, the price of public access to its own
 
18 governmental processes is tantamount to the price of democracy.
 
19 The legislature intends that this price remain within reach for
 
20 all.
 
21      SECTION 2.  Chapter 91, Hawaii Revised Statutes, is amended
 
22 as follows:
 

 
 
 
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 1      1.  By adding two new sections to be appropriately
 
 2 designated and to read:
 
 3      "�91-A  Fees for proposed and final rules.  (a)
 
 4 Notwithstanding any law to the contrary, each agency may charge
 
 5 up to a maximum fee of ten cents per page, plus the actual costs
 
 6 of mailing, for the reproduction of paper copies of the
 
 7 following:
 
 8      (1)  Proposed and final rules, whether new rules, amended
 
 9           rules, or repealed rules, in any format; and
 
10      (2)  Notices of proposed rulemaking actions pursuant to
 
11           section 91-3(a)(1).
 
12 This section shall not apply to the reproduction by the office of
 
13 the lieutenant governor of other agencies' rules, kept in the
 
14 general collection of the office of the lieutenant governor.
 
15 Charges for the reproduction of paper copies of rules in the
 
16 general collection of the office of the lieutenant governor shall
 
17 be as stated in section 92-21.
 
18      (b)  Informational or educational publications that are
 
19 produced by agencies for noncommercial use and which contain
 
20 copies of state statutes, proposed or final rules, or both, shall
 
21 be subject to the same fees as specified in subsection (a).
 
22      (c)  The fees specified in subsection (a) shall not include
 
23 any charges for searching, identifying, or segregating rules in
 

 
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 1 preparation for reproduction.  Agencies may charge separate fees
 
 2 for these activities in accordance with rules adopted by the
 
 3 office of information practices.
 
 4      �91-B  Proposed rulemaking actions and rules; posting on the
 
 5 lieutenant governor's internet website.  (a)  Beginning
 
 6 January 1, 2000, all state agencies, through the office of the
 
 7 lieutenant governor, shall make available on the website of the
 
 8 office of the lieutenant governor each proposed rulemaking action
 
 9 of the agency and the full text of the agency's proposed rules or
 
10 changes to existing rules.  The internet website shall provide
 
11 instructions regarding how to download the information regarding
 
12 proposed rulemaking actions and the full text of the agency's
 
13 proposed rules.
 
14      (b)  Each state agency, to the greatest extent feasible,
 
15 shall:
 
16      (1)  Ensure that all information pertaining to that agency
 
17           that is contained on the lieutenant governor's website
 
18           is current and accurate; and
 
19      (2)  Advise individuals contacting the state agency of the
 
20           availability of the proposed rulemaking actions and the
 
21           full text of the agency's proposed rules on the
 
22           lieutenant governor's website."
 
23      2.  By amending section 91-3 to read:
 

 
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 1      "�91-3 Procedure for adoption, amendment, or repeal of
 
 2 rules.(a)  Prior to the adoption of any rule authorized by law,
 
 3 or the amendment or repeal thereof, the adopting agency shall:
 
 4      (1)  Give at least thirty days' notice for a public hearing.
 
 5           The notice shall include:
 
 6           (A)  A statement of the topic of the proposed rule
 
 7                adoption, amendment, or repeal or a general
 
 8                description of the subjects involved; and
 
 9           (B)  A statement that a copy of the proposed rule to be
 
10                adopted, the proposed rule amendment, or the rule
 
11                proposed to be repealed will be mailed to any
 
12                interested person who requests a copy, pays [in
 
13                advance] the required fees for the copy and the
 
14                postage, if any, together with a description of
 
15                where and how the requests may be made;
 
16           (C)  A statement of when, where, and during what times
 
17                the proposed rule to be adopted, the proposed rule
 
18                amendment, or the rule proposed to be repealed may
 
19                be reviewed in person; and
 
20           (D)  The date, time, and place where the public hearing
 
21                will be held and where interested persons may be
 
22                heard on the proposed rule adoption, amendment, or
 
23                repeal.
 

 
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 1                The notice shall be mailed to all persons who have
 
 2           made a timely written request of the agency for advance
 
 3           notice of its rulemaking proceedings, [and] given at
 
 4           least once statewide for state agencies and in the
 
 5           county for county agencies.  Proposed state agency
 
 6           rules shall also be posted on the internet as provided
 
 7           in section 91-B; and
 
 8      (2)  Afford all interested persons opportunity to submit
 
 9           data, views, or arguments, orally or in writing.  The
 
10           agency shall fully consider all written and oral
 
11           submissions respecting the proposed rule.  The agency
 
12           may make its decision at the public hearing or announce
 
13           then the date [as to] when it intends to make its
 
14           decision.  Upon adoption, amendment, or repeal of a
 
15           rule, the agency, if requested to do so by an
 
16           interested person, shall issue a concise statement of
 
17           the principal reasons for and against its
 
18           determination.
 
19      (b)  Notwithstanding the foregoing, if an agency finds that
 
20 an imminent peril to the public health, safety, or morals, or to
 
21 livestock and poultry health, requires adoption, amendment, or
 
22 repeal of a rule upon less than thirty days' notice of hearing,
 
23 and states in writing its reasons for such finding, it may
 

 
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 1 proceed without prior notice or hearing or upon such abbreviated
 
 2 notice and hearing, including posting the abbreviated notice and
 
 3 hearing on the internet as provided in section 91-B, as it finds
 
 4 practicable to adopt an emergency rule to be effective for a
 
 5 period of not longer than one hundred twenty days without
 
 6 renewal.
 
 7      (c)  The adoption, amendment, or repeal of any rule by any
 
 8 state agency shall be subject to the approval of the governor.
 
 9 The adoption, amendment, or repeal of any rule by any county
 
10 agency shall be subject to the approval of the mayor of the
 
11 county.  [The provisions of this] This subsection shall not apply
 
12 to the adoption, amendment, and repeal of the rules [and
 
13 regulations] of the county boards of water supply.
 
14      (d)  The requirements of subsection (a) may be waived by the
 
15 governor in the case of the State, or by the mayor in the case of
 
16 a county, whenever a state or county agency is required by
 
17 federal provisions to adopt rules as a condition to receiving
 
18 federal funds and the agency is allowed no discretion in
 
19 interpreting the federal provisions as to the rules required to
 
20 be adopted; provided that the agency shall make the adoption,
 
21 amendment, or repeal known to the public by [giving]:
 
22      (1)  Giving public notice of the substance of the proposed
 
23           rule at least once statewide prior to the waiver of the
 
24           governor or the mayor[.]; and
 

 
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 1      (2)  Posting the full text of the proposed rulemaking action
 
 2           on the internet as provided in section 91-B.
 
 3      (e)  No adoption, amendment, or repeal of any rule shall be
 
 4 invalidated solely because of [the]:
 
 5      (1)  The inadvertent failure to mail an advance notice of
 
 6           rulemaking proceedings [or the];
 
 7      (2)  The inadvertent failure to mail or the nonreceipt of
 
 8           requested copies of the proposed rule to be adopted,
 
 9           the proposed rule amendment, or the rule proposed to be
 
10           repealed[.]; or
 
11      (3)  The inadvertent failure on the part of a state agency
 
12           to post on the website of the office of the lieutenant
 
13           governor all proposed rulemaking actions of the agency
 
14           and the full text of the agency's proposed rules as
 
15           provided in section 91-B.
 
16 Any challenge to the validity of the adoption, amendment, or
 
17 repeal of an administrative rule on the ground of noncompliance
 
18 with statutory procedural requirements shall be forever barred
 
19 unless the challenge is made in a proceeding or action, including
 
20 an action pursuant to section 91-7, that is begun within three
 
21 years after the effective date of the adoption, amendment, or
 
22 repeal of the rule."
 
23      3.  By amending section 91-4.1 to read:
 

 
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 1      "�91-4.1  Rulemaking actions; copies in Ramseyer format.
 
 2 Each state agency adopting, amending, or repealing a rule shall
 
 3 prepare a certified copy of the rule changes according to the
 
 4 Ramseyer format.  Each state agency shall maintain a file of the
 
 5 copies in the Ramseyer format and shall make the file available
 
 6 for public inspection and copying at a [reasonable] cost[.] as
 
 7 specified in section 91-A."
 
 8      4.  By amending subsection (b) of section 91-5 to read:
 
 9      "(b)  Compilations and supplements shall be made available
 
10 free of charge upon request by the state officers in the case of
 
11 a state agency and by the county officers in the case of a county
 
12 agency.  As to other persons, each agency may fix a price to
 
13 cover mailing and publication costs[.] as specified in section
 
14 91-A.  Each state agency adopting, amending, or repealing a rule
 
15 shall file a copy with the revisor of statutes."
 
16      SECTION 3.  Chapter 92, Hawaii Revised Statutes, is amended
 
17 as follows:
 
18      1.  By amending section 92-21 to read:
 
19      "�92-21  Copies of records; other costs and fees.  Except as
 
20 otherwise provided by law, a copy of any government record,
 
21 including any map, plan, diagram, photograph, photostat, or
 
22 geographic information system digital data file, which is open to
 
23 the inspection of the public, shall be furnished to any person
 

 
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 1 applying for the same by the public officer having charge or
 
 2 control thereof upon the payment of the reasonable cost of
 
 3 reproducing such copy.  [The] Except as provided in section 91-A,
 
 4 the cost of reproducing any government record, except geographic
 
 5 information system digital data, shall not be less than 50 cents
 
 6 per page, sheet, or fraction thereof.  The cost of reproducing
 
 7 geographic information system digital data shall be in accordance
 
 8 with rules adopted by the agency having charge or control of that
 
 9 data.  Such reproduction cost shall include[,] but shall not be
 
10 limited to[,] labor cost for search and actual time for
 
11 reproducing, material cost, including electricity cost, equipment
 
12 cost, including rental cost, cost for certification, and other
 
13 related costs.  All fees shall be paid in by the public officer
 
14 receiving or collecting the same to the state director of
 
15 finance, the county director of finance, or to the agency or
 
16 department by which the officer is employed, as government
 
17 realizations; provided that fees collected by the public
 
18 utilities commission pursuant to this section shall be deposited
 
19 in the public utilities commission special fund established under
 
20 section 269-33."
 
21      2.  By amending section 92-24 to read:
 
22      "�92-24  Directors of finance and commerce and consumer
 
23 affairs; fees.  [The] Except as provided in section 91-A, the
 

 
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 1 director of finance and the director of commerce and consumer
 
 2 affairs each shall charge the following fees:
 
 3      (1)  For administering any oath, $1;
 
 4      (2)  For preparing every photostat copy of any document on
 
 5           record in the director's office, 50 cents per page or
 
 6           portion thereof;
 
 7      (3)  For preparing every typewritten copy of any document on
 
 8           record in the director's office, 50 cents per page or
 
 9           portion thereof;
 
10      (4)  For preparing a certificate of compliance, $5 for the
 
11           original certificate, and $1 for each additional copy
 
12           thereof, of which $4 from each certificate and 75 cents
 
13           of each additional copy shall be deposited in the
 
14           special fund referred to in section 415-128, and the
 
15           balance deposited to the general fund of the State;
 
16      (5)  For comparing any document submitted for certification,
 
17           15 cents per page or portion thereof;
 
18      (6)  For certifying any document on record in the director's
 
19           office, 25 cents for each certification;
 
20      (7)  For all other acts and duties, the fees of which are
 
21           not otherwise provided for, such charges as each may
 
22           from time to time prescribe."
 
23      3.  By amending section 92-28 to read:
 

 
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 1      "�92-28  State service fees; increase or decrease of.  Any
 
 2 law to the contrary notwithstanding, the fees or other nontax
 
 3 revenues assessed or charged by any board, commission, or other
 
 4 governmental agency may be increased or decreased by the body in
 
 5 an amount not to exceed fifty per cent of the statutorily
 
 6 assessed fee or nontax revenue, in order to maintain a reasonable
 
 7 relation between the revenues derived from such fee or nontax
 
 8 revenue and the cost or value of services rendered, comparability
 
 9 among fees imposed by the State, or any other purpose which it
 
10 may deem necessary and reasonable; provided that:
 
11      (1)  The authority to increase or decrease fees or nontax
 
12           revenues shall be subject to the approval of the
 
13           governor and extend only to the following:  chapters
 
14           36, 92, 94, 142, 144, 145, 147, 150, 171, 188, 189,
 
15           231, 269, 271, 321, 338, 373, 412, 415, 421, 425, 431,
 
16           438, 439, 440, 442, 447, 448, 452, 453, 455, 456, 457,
 
17           458, 459, 460, 461, 463, 464, 466, 467, 469, 471, 482,
 
18           485, 501, 502, 505, 572, 574, and 846 (pt II);
 
19      (2)  The authority to increase or decrease fees or nontax
 
20           revenues established by the University of Hawaii under
 
21           chapters 304, 305, 306, and 308 shall be subject to the
 
22           approval of the board of regents; provided that the
 
23           board's approval of any increase or decrease in tuition
 

 
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 1           for regular credit courses shall be preceded by an open
 
 2           public meeting held during or prior to the semester
 
 3           preceding the semester to which the tuition applies;
 
 4      (3)  This section shall not apply to judicial fees as may be
 
 5           set by any chapter cited in this section; [and]
 
 6      (4)  The authority to increase or decrease fees or nontax
 
 7           revenues pursuant to this section shall be exempt from
 
 8           the public notice and public hearing requirements of
 
 9           chapter 91[.]; and
 
10      (5)  Fees for copies of proposed and final rules and public
 
11           notices of proposed rulemaking actions under chapter 91
 
12           shall not exceed 10 cents a page, as required by
 
13           section 91-A."
 
14      SECTION 4.  In codifying the new sections added to chapter
 
15 91, Hawaii Revised Statutes, by section 2 of this Act, the
 
16 revisor of statutes shall substitute appropriate section numbers
 
17 for the letters used in the designation of the new sections in
 
18 this Act.
 
19      SECTION 5.  Statutory material to be repealed is bracketed.
 
20 New statutory material is underscored.
 
21      SECTION 6.  This Act shall take effect upon its approval.