Posted on Apr 16, 2014 in Featured, What's New

The Legislature passed Senate Bill 2249, S.D. 1, H.D. 1, which would conform the notice requirements for all agency proposals to adopt, amend, or repeal administrative rules to those found in the Hawaii Administrative Procedures Act, HRS Chapter 91, requiring a statement on the topic of the proposed rules or a general description of the subject involved and a statement of when and where the proposed rules may be viewed in person and on the Internet.  With this amendment, Sunshine Law boards will no longer have to go through a different notice procedure than non-Sunshine Law boards. 

The Hawaii Administrative Procedures Act sets various additional requirements for an agency to give 30-days’ advance notice of rule-making hearings, to allow interested persons to submit statements, and to provide access to copies of proposed administrative rules or amendments.  The rule-making procedures assume that the public will get detailed information about proposed rules by reading the rules themselves, so the required notice focuses on providing information on how the public can get a copy of the proposed rules and requires only a general description of the topic the proposed rules will address. 

When the agency in question is a board subject to the Sunshine Law and wants to discuss the proposed rules, it has also been subject to the Sunshine Law’s more detailed standards for public meeting notices.  Unlike the rule-making procedures, the Sunshine Law assumes that the agenda itself must provide all the necessary public notice because documents referred to in the agenda (in this case, the rules) need not be attached and those reading the agenda will not necessarily have access to additional information in extrinsic documents.  Consequently, a Sunshine Law agenda must list each rule being created or amended and, briefly, what the effect will be.  This requirement has been a particular challenge for agencies like the Small Business Regulatory Review Board, which is not responsible for creating the rules and may not be familiar with all aspects of the rules’ content, but is required to review certain aspects of the proposal as part of the administrative rule-making process. 

The new law eliminates the inconsistencies between the Sunshine Law and rule-making statutes, and between Sunshine Law boards’ and non-Sunshine Law agencies’ rule-making, while still ensuring that members of the public can readily go to the rules themselves for detailed information on what changes are being proposed. 

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