TITLE 8. PUBLIC PROCEEDINGS AND
RECORDS
Chapter
91 Administrative Procedure
92 Public Agency Meetings and Records
92E Fair Information Practice (Confidentiality of Personal
Record)--Repealed
92F Uniform Information Practices Act (Modified)
93 Government Publications
94 Public Archives; Disposal of Records
95 Destroying or Defacing Official Notices--Repealed
96 The Ombudsman
97 Lobbyists
Cross References
Alternative dispute resolution center, see chapter 613.
Uniform electronic transactions act, see chapter 489E.
CHAPTER 91
ADMINISTRATIVE PROCEDURE
Section
91-1 Definitions
91-2 Public information
91-2.5 Fees for proposed and final rules
91-2.6 Proposed rulemaking actions and rules; posting on
the lieutenant governor's internet website
91-3 Procedure for adoption, amendment, or repeal of
rules
91-4 Filing and taking effect of rules
91-4.1 Rulemaking actions; copies in Ramseyer format
91-4.2 Rule format; publication of index
91-4.3 Price
91-4.4 Form of publication
91-5 Publication of rules
91-6 Petition for adoption, amendment or repeal of rules
91-7 Declaratory judgment on validity of rules
91-8 Declaratory rulings by agencies
91-8.5 Mediation in contested cases
91-9 Contested cases; notice; hearing; records
91-9.5 Notification of hearing; service
91-10 Rules of evidence; official notice
91-11 Examination of evidence by agency
91-12 Decisions and orders
91-13 Consultation by officials of agency
91-13.1 Administrative review of denial or refusal to issue
license or certificate of registration
91-13.5 Maximum time period for business or
development-related permits, licenses, or
approvals; automatic approval; extensions
91-14 Judicial review of contested cases
91-15 Appeals
91-16 Severability
91-17 Federal aid
91-18 Short title
Cross References
Small business regulatory flexibility act, see chapter 201M.
Attorney General Opinions
Because this chapter provides for a decision in a contested case to be rendered by an agency, a decision rendered by an official who is not within that agency would be the exception and not the rule. This chapter does not require a hearings officer from outside the department for administrative hearings. Att. Gen. Op. 98-6.
Law Journals and Reviews
Sandy Beach Defense Fund v. City and County of Honolulu: The Sufficiency of Legislative Hearings in an Administrative Setting. 12 UH L. Rev. 499.
The Lum Court, Land Use, and the Environment: A Survey of Hawai‘i Case Law 1983 to 1991. 14 UH L. Rev. 119.
Residential Use of Hawai‘i's Conservation District. 14 UH L. Rev. 633.
Case Notes
Statutory authority is necessary for administrative body to reconsider prior quasi-judicial decisions on its own initiative. 54 H. 621, 513 P.2d 1001.
Under doctrine of necessity, official otherwise disqualified can act if jurisdiction is exclusive and substitution is not provided. 54 H. 621, 513 P.2d 1001.
University rules do not have force of law unless Hawaii administrative procedure act is complied with. 56 H. 680, 548 P.2d 253.
Rehearings before administrative bodies are addressed to their own discretion and only the clearest abuse of discretion could sustain an exception to rule. 60 H. 166, 590 P.2d 524.
Where health department did not have rules adopted under this chapter governing the standards of emissions of hydrogen sulfide into the air as required by §342B-32 (1991) at the time geothermal well developer was issued permit, department was required to refuse the issuance of the permit. 73 H. 56, 828 P.2d 801.
Department did not violate Hawaii administrative procedure act when it circulated a memorandum interpreting "sole source" provisions of Hawaii purchasing law to other state agencies. 76 H. 332, 876 P.2d 1300.
Giving precedential effect to prior commission decisions does not constitute rule-making. 81 H. 459, 918 P.2d 561.
Public utilities commission did not violate Hawaii administrative procedure act by not promulgating rules to establish when transmission lines will be placed underground. 81 H. 459, 918 P.2d 561.
Public utilities commission's reliance on adjudication to develop underground transmission line policy not abuse of discretion where commission did not circumvent requirements of Hawaii administrative procedure act and appellants did not suffer undue hardship relying on past commission policy. 81 H. 459, 918 P.2d 561.
A water management area designation is not the product of a contested case hearing, under this chapter, from which a direct appeal to the supreme court may be brought under §174C-60. 83 H. 484, 927 P.2d 1367.
Where administrative rules failed to set forth the method by which department determined general assistance amounts, and the method used by department to determine amounts was adopted without compliance with this chapter, administrative rules contravened statutory mandate of §346-71(f) (1996) and were thus void and unenforceable. 88 H. 307, 966 P.2d 619.
Where a public hearing pertaining to the issuance of a liquor license was statutorily required under §§281-52 and 281-57, and petitioner's legal rights, duties, and privileges were determined based on the public hearing regarding the decision to grant or deny a liquor license to petitioner, the public hearing was a "contested case" hearing governed by this chapter; thus, (1) petitioner was entitled to judicial review under §91-14, (2) §91-11 applied to proceedings on petitioner's application for liquor license, and (3) the liquor commission did not comply with §91-11. 118 H. 320, 189 P.3d 432.
Planning and permitting department's policy of refusing to publicly disclose developer's engineering reports prior to their approval constituted a "rule"; as this policy was not "published or made available for public inspection" nor did plaintiff have actual knowledge of the policy prior to its initial request for the reports, department did not comply with this chapter and was proscribed from invoking this policy; thus, department violated this chapter by refusing to publicly disclose any unaccepted engineering reports and written comments, and all of department's files, including developer's file, were public records that could be examined upon request. 119 H. 90, 194 P.3d 531.
Right to appeal from administrative agency's decision is limited by this chapter. 9 H. App. 298, 837 P.2d 311.
Section 52D-8 provides officers with a constitutionally protected property interest – the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under this chapter before an officer can be deprived of this interest. 89 H. 221 (App.), 971 P.2d 310.
In the context of parole hearings, the Hawaii paroling authority does not "adjudicate contested cases" because a Hawaii paroling authority parole proceeding is not a "contested case" as defined under this chapter. 93 H. 298 (App.), 1 P.3d 768.
Since the addition of two extra hunting days to each week of the hunting season concerned "conditions for entry into game management areas, and public hunting areas designated by the department of land and natural resources" and "open seasons" for hunting, the express language of §183D-3 mandated that in order to add the two weekdays for bird hunting, the department had to amend Hawaii administrative rule 13-122-4 pursuant to this chapter. 117 H. 16 (App.), 175 P.3d 126.
§91-1 Definitions. For the purpose of this chapter:
(1) "Agency" means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.
(2) "Persons" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies.
(3) "Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in any court or agency proceeding.
(4) "Rule" means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.
(5) "Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after an opportunity for agency hearing.
(6) "Agency hearing" refers only to such hearing held by an agency immediately prior to a judicial review of a contested case as provided in section 91-14. [L 1961, c 103, §1; Supp, §6C-1; HRS §91-1]
Law Journals and Reviews
The Protection of Individual Rights Under Hawai‘i's Constitution. 14 UH L. Rev. 311.
Case Notes
Agency.
Generally. 55 H. 538, 524 P.2d 84.
Administrative agency is not a "person" under Civil Rights Act, 42 USCA 1983. 396 F. Supp. 375.
City council is not subject to the procedural requirements of Hawaii administrative procedure act when acting in either a legislative or nonlegislative capacity. 70 H. 361, 773 P.2d 250.
Executive director of Hawaii civil rights commission was not an "agency" because the director neither made rules nor adjudicated contested cases. 104 H. 158, 86 P.3d 449.
County of Hawai`i department of finance was an "agency" within the meaning of chapter 91, and was not a "person" entitled to appeal under §91-14 (prior to 1993 amendment). 77 H. 396 (App.), 885 P.2d 1137.
Agency hearing.
Hearing concerning transfer of prisoner to mainland prison not an "agency hearing". 63 H. 138, 621 P.2d 976.
Hearing before zoning board of appeals was properly denominated as the "agency hearing", as contemplated by the definition of "contested case" in paragraph (5), where appellant temple was permitted to introduce relevant evidence and cross-examine witnesses. 87 H. 217, 953 P.2d 1315.
Contested case.
Generally. 55 H. 538, 524 P.2d 84.
A hearing "required by law" includes those required by due process. 55 H. 478, 522 P.2d 1255.
"Contested case" construed. 56 H. 680, 548 P.2d 253.
Hearing "required by law" includes constitutional and statutory law. 58 H. 386, 570 P.2d 563.
Public hearing conducted pursuant to public notice has been deemed a contested case. 65 H. 506, 654 P.2d 874.
"Fair hearing" regarding the reduction of welfare benefits was a "contested case". 66 H. 485, 666 P.2d 1133.
Evidentiary hearing under PURPRA was contested case rather than rulemaking. 66 H. 538, 669 P.2d 148.
Granting of special management area permit did not involve a "contested case". 69 H. 81, 734 P.2d 161.
Because the subject matter of the underlying hearing did not involve the homestead lessees’ property interests, the Hawaiian homes commission hearing that transpired was not required by law and therefore was not a contested case as defined by paragraph (5). 76 H. 128, 870 P.2d 1272.
Public hearings held by department were "contested cases". 77 H. 64, 881 P.2d 1210.
Revocation of mooring permit not contested case. 3 H. App. 91, 641 P.2d 991.
In the context of parole hearings, the Hawaii paroling authority does not "adjudicate contested cases" because a Hawaii paroling authority parole proceeding is not a "contested case" as defined under this chapter. 93 H. 298 (App.), 1 P.3d 768.
Rules.
Generally. 55 H. 538, 524 P.2d 84.
Defendant's approval of use of wood preservative for treating structural lumber in Hawaii, together with defendant's conditions of approval, would appear to be rulemaking. 939 F. Supp. 746.
"General applicability;" "implement law or policy;" "internal management." 55 H. 478, 522 P.2d 1255.
Manual of instructions to personnel of department of social services and housing covering welfare fraud investigations dealt only with "internal management". 58 H. 94, 564 P.2d 1271.
Policy decisions governing transfer of prisoners from state to federal prison do not require publication. 58 H. 386, 570 P.2d 563.
Internal management; rule covering dress standards of visitors to prison. 59 H. 346, 581 P.2d 1164.
Hawaii administrative procedure act held not applicable to advisory functions of the county planning commission. 60 H. 428, 591 P.2d 602.
"Descriptive words and phrases" distributed by department to unemployment compensation appeals referees are rules. 62 H. 286, 614 P.2d 380.
Contract in which board of land and natural resources rented excess transmission capacity in Molokai Irrigation System is not a rule. Concerned only internal management because it dealt with a matter within the custodial management of the board. 62 H. 546, 617 P.2d 1208.
Internal management. 63 H. 117, 621 P.2d 957.
Agency's requirement that no-fault claimants submit to insurer-ordered medical exams is a "rule". 67 H. 148, 682 P.2d 73.
Approval of use of specific breath testing apparatus was not rulemaking. 67 H. 451, 691 P.2d 365.
State hospital's bylaws regarding corrective action against a doctor are not "rules". 68 H. 422, 717 P.2d 1029.
Circular was sent only to other state agencies and did not command or prohibit any action by any member of the public or any public employee; by the clear language of paragraph (4), therefore, Hawaii administrative procedure act did not apply, and conclusion of law stating that circular was not a rule or regulation, but was merely a guideline and was not subject to provisions of Hawaii administrative procedure act was not wrong. 76 H. 332, 876 P.2d 1300.
Water resource management commission's distinctive treatment of "nonagricultural uses", such as golf course irrigation, in its water use permit and policy decision did not constitute "illegal rulemaking" where commission did not propose any general rules automatically applicable in all circumstances, but instead devised a principled solution to a specific dispute based on "facts applied to rules that have already been promulgated by the legislature". 94 H. 97, 9 P.3d 409.
Planning and permitting department's policy of refusing to publicly disclose developer's engineering reports prior to their approval constituted a "rule"; as this policy was not "published or made available for public inspection" nor did plaintiff have actual knowledge of the policy prior to its initial request for the reports, department did not comply with this chapter and was proscribed from invoking this policy; thus, department violated this chapter by refusing to publicly disclose any unaccepted engineering reports and written comments, and all of its files, including developer's file, were public records that could be examined upon request. 119 H. 90, 194 P.3d 531.
Where city appraiser’s unwritten methodology for determining imparted value fell within definition of a rule for purposes of paragraph (4), city needed to follow rulemaking procedures set forth in §91-3 prior to applying imparted value deductions toward golf course assessments. 89 H. 381, 974 P.2d 21.
Agency's decision not a "rule" where it was made in a contested hearing that was accusatory in nature; distinction between rulemaking and adjudication discussed. 4 H. App. 463, 667 P.2d 850.
Police department regulation establishing procedures aimed at prescribing officers' activities regarding sobriety roadblocks was internal department regulation. 9 H. App. 98, 825 P.2d 1068.
Hawai`i county police department's field sobriety testing procedures are not "rules" subject to Hawaii administrative procedure act's rulemaking requirements. 9 H. App. 406, 844 P.2d 679.
Where Kauai police department's general order establishing authority and procedures at sobriety checkpoints concerned only the internal management of an agency and did not affect the private rights of or procedures available to the public, the general order was not required to be promulgated pursuant to this chapter. 111 H. 59 (App.), 137 P.3d 373.
Hawaii Legal Reporter Citations
Issuance of building permit. 79 HLR 79-0579.