VOTING MEMBERSDAVID IGE

SUZANNE CASE
DEPARTMENT OF LAND & NATURALRESOURCESGOVERNOR OF HAWAIISHAN TSUTSUISCOTT ENRIGHTHAWAII DEPARTMENT OF AGRICULTURE

LIEUTENANT GOVERNORKEITH KAWAOKA, D.Env
DEPARTMENT OF HEALTH
MARIA GALLO, PhD
UNIVERSITY OF HAWAI‘IHAWAII INVASIVE SPECIES COUNCIL
1151 PUNCHBOWL ST, #325
HONOLULU, HAWAII 96813

LEO ASUNCION
OFFICE OF PLANNING, DEPARTMENT OF
BUSINESS, ECONOMIC DEVELOPMENT &TOURISMDAVID RODRIGUEZDEPARTMENT OF TRANSPORTATION

June 10, 2015SUBMITTALTO:Co-chairs and Members
Hawaii Invasive Species Council
State of Hawaii

FROM:Joshua Atwood, Program Supervisor
Hawaii Invasive Species Council

SUBJECT:

Requesting direction on the promulgation of administrative rules relating to theHawaii Invasive Species Council

BackgroundIn 2003, the Hawaii Invasive Species Council (HISC) was established by the passage of Senate
Bill 1505 and the signing of Act 85 by Governor Linda Lingle. Chapter 194, Hawaii Revised
Statutes (HRS) describes the HISC’s membership and provides certain authorities andresponsibilities to the HISC, including the mandate to “identify and record all invasive species
present in the State (HRS 194-2). At the HISC’s first meeting in October 2003, the HISC voted
to adopt three existing lists codified in Hawaii Administrative Rules (HAR) as an “initial list ofinvasive species” with the stated intent of producing a more comprehensive list at a later date.
The three existing lists voted to be considered as “invasive” included:• Species prohibited for import (HAR 71-6, Hawaii Department of Agriculture [HDOA])• Noxious weeds for eradication or control (HAR 68, HDOA)• Injurious wildlife (HAR 124, DLNR)The HISC assigned the Established Pests Working Group to develop a method for updating thelist, but no such method was produced.
In 2008, the DLNR Invasive Species Coordinator solicited assistance from attorney Justine Hurain analyzing the legal authorities and responsibilities assigned to the HISC by HRS 194. One ofthe outcomes of this legal review was the advice that the designation of species as “invasive”
should based on an administrative rule process, due to the relationship between the HISC’sauthority to designate invasive species and the authority to enter private property for the control
or eradication of species identified by the HISC as invasive (HRS 194-5). In 2011, the HISC
directed its support staff to begin drafting rules to this effect. Since 2011, HISC staff haveworked with agency staff, the Department of the Attorney General, and other partners to explore
options for administrative rule processes that would allow the HISC to maintain an official
invasive species list.

Discussion
The maintenance of regulatory lists is generally accomplished pursuant to HRS 91, which
describes the state’s rulemaking process and public hearing requirements. Under this model oflist maintenance, additions to or deletions from a list require the completion of the fullrulemaking process described in HRS 91. For example, the list of injurious wildlife and the listof noxious weeds are incorporated into HAR 124 and HAR 68, respectively, and any updates tothese lists require the formal rulemaking procedure described in HRS 91. As a result, these lists
are updated infrequently or not at all.
An alternative model for list maintenance is utilized by the HDOA for the lists of animals that
may or may not be imported into the state. Under this model, the HDOA may develop rules todescribe the process by which these lists are updated, and then make additions to or deletions
from the list by action of the Board of Agriculture. The authority to utilize this method isprovided in statute:
HRS 150A-6.6: Import lists amendment. Without regard to the notice and public hearing
requirements of chapter 91, the board may adopt rules to make additions to or deletions
from the lists required to be maintained in sections 150A-6.1 through 150A-6.3; provided
that the board shall adopt rules pursuant to chapter 91 to establish methods to obtain
public input and notify the public of additions to or deletions from the lists required under
sections 150A-6.1 through 150A-6.3.
The methods to obtain public input and notify the public are described in rule:
HAR 4-71-4.2: Public input and notification for listing. (a) By order, the board may adopt
additions to or deletions from the lists of animals without regard to the notice and public
hearing requirements of chapter 91, HRS, provided that thirty days or more prior to theeffective date of the order, the department shall issue a press release and mail notices to
the Office of Environmental Quality Control for publication and to all persons who havemade a timely written request of the department for advance notice of the order or thedepartment's rulemaking proceedings. The press release and the notice shall include:(1) A statement summarizing the substance of the proposed order which may
include examples of the kinds of animals being added to or deleted from the lists required
under section 150A-6.2, HRS;
(2) A statement that a copy of the proposed order and the proposed exact changes
will be mailed to any interested person who requests a copy upon payment in advance ofcosts for photocopying, preparing, and mailing the copy;(3) A statement as to where to obtain a copy of the proposed order and theproposed exact changes for inspection, or for pick-up after payment in full of costs forphotocopying and preparing; and(4) A statement that the department is soliciting comments regarding the proposedorder during the next thirty days, where comments may be forwarded to, and where theproposed order will be discussed.
(b) The department shall consider all oral and written comments and may
incorporate the same in its review of the proposed order by the advisorycommittee on plants and animals in a noticed, public meeting.
(c) Upon approval by the board at a noticed, public meeting, the order toadopt additions to or deletions from the lists of animals shall take effect ten days
after the department gives public notice of the order in a daily or weekly
publication of statewide circulation or in separate daily or weekly publications
whose combined circulation is statewide.

This model of list maintenance allows for public input and notification while greatly reducing thetime and cost associated with rulemaking. This model could be utilized by the HISC to develop a
relatively dynamic invasive species list that may be updated as species are introduced to oreradicated from the state. In order to utilize this model, HRS 194 would need to be amended toprovide authorities similar to those found in HRS 150A-6.6.
Legal Authority• HRS 194-2 (a)(6); directing the HISC to identify and record all invasive species presentin the state• HRS 194-7; authorizing the HISC to adopt administrative rules to effectuate HRS 194
Recommendations
That the Hawaii Invasive Species Council (HISC) direct staff to:
1. Work with the Department of Land and Natural Resources, as the administrative host of
the HISC, to draft legislation for the regular legislative session of 2016 that would amend
Chapter 194, Hawaii Revised Statutes (HRS), to authorize the HISC to adopt rules tomake additions or deletions from the list of invasive species without regard to Chapter91, HRS
2. Draft administrative rules, pursuant to Chapter 91, to establish methods to obtain public
input and notify the public of additions to or deletions from the list.