§91-1 - Definitions.

§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.