REPORT TITLE:
Rules; Fees; Internet


DESCRIPTION:
Limits to 10¢ a page the amount each state agency other than the
LG 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 LG's website
effective 1/1/2000.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           1016
TWENTIETH LEGISLATURE, 1999                                
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 that
 
 3 agencies, as a part of the rulemaking process, had to give copies
 
 4 of the proposed rulemaking action free of charge to persons who
 
 5 requested them.  During the 1998 regular session of the
 
 6 legislature, two measures were enacted that had an impact on fees
 
 7 charged for agency rules.  The first, Act 2, Session Laws of
 
 8 Hawaii 1998, required agencies adopting rules to mail copies of
 
 9 proposed rules to interested persons who requested them, but only
 
10 after the person paid for the cost of the copy and postage,
 
11 rather than free of charge as had previously been the case.  In
 
12 addition, Act 311, Session Laws of Hawaii 1998, raised the fee
 
13 for reproducing government records from 25 cents a page to 50
 
14 cents a page.
 
15      The enactment of Acts 2 and 311 led to confusion among many
 
16 state agencies.  Some questioned whether those amendments
 
17 required them to charge for copies of rules.  Others wondered
 
18 whether the agencies could set their own fees, or whether the
 
19 statutory fee set by Act 311 would apply.  In a study conducted
 

 
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 1 by the legislative reference bureau entitled The Price of Access:
 
 2 Fees for Copies of State Administrative Agency Rules, the bureau
 
 3 found that for a variety of reasons, a significant majority of
 
 4 state agencies or programs did not want to charge, did not plan
 
 5 to charge, or would not charge for copies of rules unless
 
 6 required to do so by higher or other external 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 Act 2 and Act 311, agencies are now required to charge fees for
 
11 copies of proposed rules, and that those fees must be at the rate
 
12 of 50 cents a page.  Agencies may waive the fees for other state
 
13 agencies, and, under section 92-28, Hawaii Revised Statutes, may
 
14 reduce fees charged to the public by as much as fifty per cent
 
15 (i.e., down to 25 cents per page), but only with the approval of
 
16 the governor.  The bureau's study determined that copies of rules
 
17 could typically be produced for less than 10 cents a page.
 
18      The legislature did not intend that fees for copies of rules
 
19 be mandatory, and finds that these high fees, now interpreted to
 
20 be mandatory, are a significant and unnecessary barrier to public
 
21 access.  At 50 cents a page, members of the public will have to
 
22 pay $11 to $12 on average for a copy of proposed rules in a
 
23 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 a 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 at varying points
 
20 on a continuum between the near and the distant future.
 
21 Meanwhile, the lieutenant governor's office is implementing an
 
22 ambitious project to coordinate executive agency efforts to post
 
23 all final rules on the internet.  The legislature wholeheartedly
 

 
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 1 endorses and supports this project as a significant step forward
 
 2 in promoting public access to state administrative agency rules.
 
 3      The purpose of this Act is to implement the recommendations
 
 4 of the legislative reference bureau's study by:
 
 5      (1)  Allowing rather than requiring agencies other than the
 
 6           office of the lieutenant governor to charge fees for
 
 7           copies of proposed and final rules at a rate of not
 
 8           more than ten cents a page, plus actual costs of
 
 9           mailing, if any;
 
10      (2)  Clarifying that informational or educational
 
11           publications that contain copies of statutes, agency
 
12           rules, or both, are subject to the same fee
 
13           considerations, and thus exempt from the statutory rate
 
14           of 50 cents a page;
 
15      (3)  Specifying that the fees for copies are separate from
 
16           any reasonable charges for staff time spent searching
 
17           for, identifying, or segregating the rules for which
 
18           copies are requested; and
 
19      (4)  Requiring state agencies, beginning January 1, 2000, to
 
20           post public notices of proposed rulemaking actions and
 
21           the full text of their proposed rules on the internet
 
22           through the lieutenant governor's office.
 
23      These amendments are intended to make it clear that agency
 

 
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                                     S.B. NO.           1016
                                                        
                                                        

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

 
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                                     S.B. NO.           1016
                                                        
                                                        

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

 
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                                     S.B. NO.           1016
                                                        
                                                        

 
 1      "§91-A  Fees for proposed and final rules.  (a)
 
 2 Notwithstanding any law to the contrary, each agency, other than
 
 3 the office of the lieutenant governor for its general collection
 
 4 of rules, may charge up to a maximum fee of 10 cents per page,
 
 5 plus the actual costs of mailing, for the reproduction of paper
 
 6 copies of the following:
 
 7      (1)  Proposed and final rules, whether new rules, amended
 
 8           rules, or repealed rules, in any format; and
 
 9      (2)  Notices of proposed rulemaking actions pursuant to
 
10           section 91-3(a)(1).
 
11      (b)  Informational or educational publications that are
 
12 produced by agencies for noncommercial use and which contain
 
13 copies of state statutes, proposed or final rules, or both, shall
 
14 be subject to the same fees as specified in subsection (a).
 
15      (c)  The fees specified in subsection (a) shall not include
 
16 any charges for searching, identifying, or segregating rules in
 
17 preparation for reproduction.  Agencies may charge separate fees
 
18 for these activities in accordance with rules adopted by each
 
19 agency or the office of information practices.
 
20      §91-B  Proposed rulemaking actions and rules; posting on the
 
21 lieutenant governor's internet website.  (a)  Beginning
 
22 January 1, 2000, all state agencies, through the office of the
 
23 lieutenant governor, shall make available on the website of the
 

 
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                                     S.B. NO.           1016
                                                        
                                                        

 
 1 office of the lieutenant governor each proposed rulemaking action
 
 2 of the agency and the full text of the agency's proposed rules or
 
 3 changes to existing rules.  The internet website shall provide
 
 4 instructions regarding how to download the information regarding
 
 5 proposed rulemaking actions and the full text of the agency's
 
 6 proposed rules.
 
 7      (b)  Each state agency, to the greatest extent feasible,
 
 8 shall:
 
 9      (1)  Ensure that all information pertaining to that agency
 
10           that is contained on the lieutenant governor's website
 
11           is current and accurate; and
 
12      (2)  Advise individuals contacting the state agency of the
 
13           availability of the proposed rulemaking actions and the
 
14           full text of the agency's proposed rules on the
 
15           lieutenant governor's website."
 
16      2.  By amending section 91-3 to read:
 
17      "§91-3 Procedure for adoption, amendment, or repeal of
 
18 rules.(a)  Prior to the adoption of any rule authorized by law,
 
19 or the amendment or repeal thereof, the adopting agency shall:
 
20      (1)  Give at least thirty days' notice for a public hearing.
 
21           The notice shall include:
 
22           (A)  A statement of the topic of the proposed rule
 
23                adoption, amendment, or repeal or a general
 

 
Page 10                                                    
                                     S.B. NO.           1016
                                                        
                                                        

 
 1                description of the subjects involved; and
 
 2           (B)  A statement that a copy of the proposed rule to be
 
 3                adopted, the proposed rule amendment, or the rule
 
 4                proposed to be repealed will be mailed to any
 
 5                interested person who requests a copy, pays [in
 
 6                advance] the required fees for the copy and the
 
 7                postage, if any, together with a description of
 
 8                where and how the requests may be made;
 
 9           (C)  A statement of when, where, and during what times
 
10                the proposed rule to be adopted, the proposed rule
 
11                amendment, or the rule proposed to be repealed may
 
12                be reviewed in person; and
 
13           (D)  The date, time, and place where the public hearing
 
14                will be held and where interested persons may be
 
15                heard on the proposed rule adoption, amendment, or
 
16                repeal.
 
17                The notice shall be mailed to all persons who have
 
18           made a timely written request of the agency for advance
 
19           notice of its rulemaking proceedings, [and] given at
 
20           least once statewide for state agencies and in the
 
21           county for county agencies.  State agency rules shall
 
22           also be posted on the internet as provided in section
 
23           91-B.
 

 
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 1      (2)  Afford all interested persons opportunity to submit
 
 2           data, views, or arguments, orally or in writing.  The
 
 3           agency shall fully consider all written and oral
 
 4           submissions respecting the proposed rule.  The agency
 
 5           may make its decision at the public hearing or announce
 
 6           then the date as to when it intends to make its
 
 7           decision.  Upon adoption, amendment, or repeal of a
 
 8           rule, the agency, if requested to do so by an
 
 9           interested person, shall issue a concise statement of
 
10           the principal reasons for and against its
 
11           determination.
 
12      (b)  Notwithstanding the foregoing, if an agency finds that
 
13 an imminent peril to the public health, safety, or morals or to
 
14 livestock and poultry health requires adoption, amendment, or
 
15 repeal of a rule upon less than thirty days' notice of hearing,
 
16 and states in writing its reasons for such finding, it may
 
17 proceed without prior notice or hearing or upon such abbreviated
 
18 notice and hearing, including posting the abbreviated notice and
 
19 hearing on the internet as provided in section 91-B, as it finds
 
20 practicable to adopt an emergency rule to be effective for a
 
21 period of not longer than one hundred twenty days without
 
22 renewal.
 
23      (c)  The adoption, amendment, or repeal of any rule by any
 

 
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                                     S.B. NO.           1016
                                                        
                                                        

 
 1 state agency shall be subject to the approval of the governor.
 
 2 The adoption, amendment, or repeal of any rule by any county
 
 3 agency shall be subject to the approval of the mayor of the
 
 4 county.  [The provisions of this] This subsection shall not apply
 
 5 to the adoption, amendment, and repeal of the rules [and
 
 6 regulations] of the county boards of water supply.
 
 7      (d)  The requirements of subsection (a) may be waived by the
 
 8 governor in the case of the State, or by the mayor in the case of
 
 9 a county, whenever a state or county agency is required by
 
10 federal provisions to adopt rules as a condition to receiving
 
11 federal funds and the agency is allowed no discretion in
 
12 interpreting the federal provisions as to the rules required to
 
13 be adopted; provided that the agency shall make the adoption,
 
14 amendment, or repeal known to the public by [giving]:
 
15      (1)  Giving public notice of the substance of the proposed
 
16           rule at least once statewide prior to the waiver of the
 
17           governor or the mayor[.]; and
 
18      (2)  Posting the full text of the proposed rulemaking action
 
19           on the internet as provided in section 91-B.
 
20      (e)  No adoption, amendment, or repeal of any rule shall be
 
21 invalidated solely because of [the]:
 
22      (1)  The inadvertent failure to mail an advance notice of
 
23           rulemaking proceedings [or the];
 

 
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 1      (2)  The inadvertent failure to mail or the nonreceipt of
 
 2           requested copies of the proposed rule to be adopted,
 
 3           the proposed rule amendment, or the rule proposed to be
 
 4           repealed[.]; or
 
 5      (3)  The inadvertent failure on the part of a state agency
 
 6           to post on the website of the office of the lieutenant
 
 7           governor all proposed rulemaking actions of the agency
 
 8           and the full text of the agency's proposed rules as
 
 9           provided in section 91-B.
 
10 Any challenge to the validity of the adoption, amendment, or
 
11 repeal of an administrative rule on the ground of noncompliance
 
12 with statutory procedural requirements shall be forever barred
 
13 unless the challenge is made in a proceeding or action, including
 
14 an action pursuant to section 91-7, that is begun within three
 
15 years after the effective date of the adoption, amendment, or
 
16 repeal of the rule."
 
17      3.  By amending section 91-4.1 to read:
 
18      "§91-4.1  Rulemaking actions; copies in Ramseyer format.
 
19 Each state agency adopting, amending, or repealing a rule shall
 
20 prepare a certified copy of the rule changes according to the
 
21 Ramseyer format.  Each state agency shall maintain a file of the
 
22 copies in the Ramseyer format and shall make the file available
 
23 for public inspection and copying at a [reasonable] cost[.] as
 

 
Page 14                                                    
                                     S.B. NO.           1016
                                                        
                                                        

 
 1 specified in section 91-A."
 
 2      4.  By amending subsection (b) of section 91-5 to read:
 
 3      "(b)  Compilations and supplements shall be made available
 
 4 free of charge upon request by the state officers in the case of
 
 5 a state agency and by the county officers in the case of a county
 
 6 agency.  As to other persons, each agency may fix a price to
 
 7 cover mailing and publication costs[.] as specified in section
 
 8 91-A.  Each state agency adopting, amending, or repealing a rule
 
 9 shall file a copy with the revisor of statutes."
 
10      SECTION 3.  Chapter 92, Hawaii Revised Statutes, is amended
 
11 as follows:
 
12      1.  By amending section 92-21 to read:
 
13      "§92-21  Copies of records; other costs and fees.  Except as
 
14 otherwise provided by law, a copy of any government record,
 
15 including any map, plan, diagram, photograph, photostat, or
 
16 geographic information system digital data file, which is open to
 
17 the inspection of the public shall be furnished to any person
 
18 applying for the same by the public officer having charge or
 
19 control thereof upon the payment of the reasonable cost of
 
20 reproducing such copy.  [The] Except as provided in section 91-A,
 
21 the cost of reproducing any government record, except geographic
 
22 information system digital data, shall not be less than 50 cents
 
23 per page, sheet, or fraction thereof.  The cost of reproducing
 

 
Page 15                                                    
                                     S.B. NO.           1016
                                                        
                                                        

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

 
Page 16                                                    
                                     S.B. NO.           1016
                                                        
                                                        

 
 1      (3)  For preparing every typewritten copy of any document on
 
 2           record in the director's office, 50 cents per page or
 
 3           portion thereof;
 
 4      (4)  For preparing a certificate of compliance, $5 for the
 
 5           original certificate, and $1 for each additional copy
 
 6           thereof, of which $4 from each certificate and 75 cents
 
 7           of each additional copy shall be deposited in the
 
 8           special fund referred to in section 415-128, and the
 
 9           balance deposited to the general fund of the State;
 
10      (5)  For comparing any document submitted for certification,
 
11           15 cents per page or portion thereof;
 
12      (6)  For certifying any document on record in the director's
 
13           office, 25 cents for each certification;
 
14      (7)  For all other acts and duties, the fees of which are
 
15           not otherwise provided for, such charges as each may
 
16           from time to time prescribe."
 
17      3.  By amending section 92-28 to read:
 
18      "§92-28  State service fees; increase or decrease of.  Any
 
19 law to the contrary notwithstanding, the fees or other nontax
 
20 revenues assessed or charged by any board, commission, or other
 
21 governmental agency may be increased or decreased by the body in
 
22 an amount not to exceed fifty per cent of the statutorily
 
23 assessed fee or nontax revenue, in order to maintain a reasonable
 

 
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 1 relation between the revenues derived from such fee or nontax
 
 2 revenue and the cost or value of services rendered, comparability
 
 3 among fees imposed by the State, or any other purpose which it
 
 4 may deem necessary and reasonable; provided that:
 
 5      (1)  The authority to increase or decrease fees or nontax
 
 6           revenues shall be subject to the approval of the
 
 7           governor and extend only to the following:  chapters
 
 8           36, 92, 94, 142, 144, 145, 147, 150, 171, 188, 189,
 
 9           231, 269, 271, 321, 338, 373, 412, 415, 421, 425, 431,
 
10           438, 439, 440, 442, 447, 448, 452, 453, 455, 456, 457,
 
11           458, 459, 460, 461, 463, 464, 466, 467, 469, 471, 482,
 
12           485, 501, 502, 505, 572, 574, and 846 (pt II);
 
13      (2)  The authority to increase or decrease fees or nontax
 
14           revenues established by the University of Hawaii under
 
15           chapters 304, 305, 306, and 308 shall be subject to the
 
16           approval of the board of regents; provided that the
 
17           board's approval of any increase or decrease in tuition
 
18           for regular credit courses shall be preceded by an open
 
19           public meeting held during or prior to the semester
 
20           preceding the semester to which the tuition applies;
 
21      (3)  This section shall not apply to judicial fees as may be
 
22           set by any chapter cited in this section; [and]
 
23      (4)  The authority to increase or decrease fees or nontax
 

 
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                                     S.B. NO.           1016
                                                        
                                                        

 
 1           revenues pursuant to this section shall be exempt from
 
 2           the public notice and public hearing requirements of
 
 3           chapter 91[.]; and
 
 4      (5)  Fees for copies of proposed and final rules and public
 
 5           notices of proposed rulemaking actions under chapter 91
 
 6           shall not exceed 10 cents a page, as required by
 
 7           section 91-A."
 
 8      SECTION 4.  In codifying the new sections added to chapter
 
 9 91, Hawaii Revised Statutes, by section 2 of this Act, the
 
10 revisor of statutes shall substitute appropriate section numbers
 
11 for the letters used in the designation of the new sections in
 
12 this Act.
 
13      SECTION 5.  Statutory material to be repealed is bracketed.
 
14 New statutory material is underscored.
 
15      SECTION 6.  This Act shall take effect upon its approval.
 
16 
 
17                              INTRODUCED BY:______________________