§91-3  Procedure for adoption, amendment, orrepeal of rules.  (a)  Except as provided in subsection (f), prior to theadoption of any rule authorized by law, or the amendment or repeal thereof, theadopting agency shall:

(1)  Give at least thirty days' notice for a publichearing.  The notice shall include:

(A)  A statement of the topic of the proposedrule adoption, amendment, or repeal or a general description of the subjectsinvolved; and

(B)  A statement that a copy of the proposedrule to be adopted, the proposed rule amendment, or the rule proposed to berepealed will be mailed to any interested person who requests a copy, pays therequired fees for the copy and the postage, if any, together with a descriptionof where and how the requests may be made;

(C)  A statement of when, where, and duringwhat times the proposed rule to be adopted, the proposed rule amendment, or therule proposed to be repealed may be reviewed in person; and

(D)  The date, time, and place where the publichearing will be held and where interested persons may be heard on the proposedrule adoption, amendment, or repeal.

The notice shall be mailed to all persons whohave made a timely written request of the agency for advance notice of itsrulemaking proceedings, given at least once statewide for state agencies and inthe county for county agencies.  Proposed state agency rules shall also beposted on the Internet as provided in section 91-2.6; and

(2)  Afford all interested persons opportunity tosubmit data, views, or arguments, orally or in writing.  The agency shall fullyconsider all written and oral submissions respecting the proposed rule.  Theagency may make its decision at the public hearing or announce then the datewhen it intends to make its decision.  Upon adoption, amendment, or repeal of arule, the agency, if requested to do so by an interested person, shall issue aconcise statement of the principal reasons for and against its determination.

(b)  Notwithstanding the foregoing, if anagency finds that an imminent peril to the public health, safety, or morals, orto livestock and poultry health, requires adoption, amendment, or repeal of arule upon less than thirty days' notice of hearing, and states in writing itsreasons for such finding, it may proceed without prior notice or hearing orupon such abbreviated notice and hearing, including posting the abbreviatednotice and hearing on the Internet as provided in section 91-2.6, as it findspracticable to adopt an emergency rule to be effective for a period of notlonger than one hundred twenty days without renewal.

(c)  The adoption, amendment, or repeal of anyrule by any state agency shall be subject to the approval of the governor.  Theadoption, amendment, or repeal of any rule by any county agency shall besubject to the approval of the mayor of the county.  This subsection shall notapply to the adoption, amendment, and repeal of the rules of the county boardsof water supply.

(d)  The requirements of subsection (a) may bewaived by the governor in the case of the State, or by the mayor in the case ofa county, whenever a state or county agency is required by federal provisionsto adopt rules as a condition to receiving federal funds and the agency isallowed no discretion in interpreting the federal provisions as to the rulesrequired to be adopted; provided that the agency shall make the adoption,amendment, or repeal known to the public by:

(1)  Giving public notice of the substance of theproposed rule at least once statewide prior to the waiver of the governor orthe mayor; and

(2)  Posting the full text of the proposed rulemakingaction on the Internet as provided in section 91-2.6.

(e)  No adoption, amendment, or repeal of anyrule shall be invalidated solely because of:

(1)  The inadvertent failure to mail an advance noticeof rulemaking proceedings;

(2)  The inadvertent failure to mail or the nonreceiptof requested copies of the proposed rule to be adopted, the proposed ruleamendment, or the rule proposed to be repealed; or

(3)  The inadvertent failure on the part of a stateagency to post on the website of the office of the lieutenant governor allproposed rulemaking actions of the agency and the full text of the agency'sproposed rules as provided in section 91-2.6.

Any challenge to the validity of the adoption,amendment, or repeal of an administrative rule on the ground of noncompliancewith statutory procedural requirements shall be forever barred unless thechallenge is made in a proceeding or action, including an action pursuant tosection 91-7, that is begun within three years after the effective date of theadoption, amendment, or repeal of the rule.

(f)  Whenever an agency seeks only to repealone or more sections, chapters, or subchapters of the agency's rules becausethe rules are either null and void or unnecessary, and not adopt, amend, orcompile any other rules:

(1)  The agency shall give thirty days' public noticeat least once statewide of the proposed date of repeal and of:

(A)  A list of the sections, chapters, orsubchapters, as applicable, being repealed; and

(B)  A statement of when, where, and duringwhat times the sections, chapters, or subchapters proposed to be repealed maybe reviewed in person;

(2)  The agency shall post the full text of theproposed sections, chapters, or subchapters to be repealed on the Internet asprovided in section 91-2.6; and

(3)  Any interested person may petition the agencyregarding the sections, chapters, or subchapters proposed to be repealed,pursuant to section 91-6.

This subsection does not apply to the repeal ofone or more subsections, paragraphs, subparagraphs, clauses, words, phrases, orother material within a section that does not constitute the entire section tobe repealed. [L 1961, c 103, §3; am L 1965, c 96, §139a; Supp, §6C-3; HRS§91-3; am L 1973, c 13, §1; am L 1979, c 64, §1; am L 1985, c 68, §2; am L1989, c 64, §2; am L 1998, c 2, §§27, 28; am L 1999, c 301, §2(2); am L 2000, c283, §6]

 

Cross References

 

  Additional requirements for publication of notice of publichearings, see §92-41.

 

Attorney General Opinions

 

  The "General Requirements and Covenants" of publicworks contracts are rules as defined by section 91-1 and any amendments requirenotice and a public hearing.  Att. Gen. Op. 66-10.

  Section is limited to rules having the force and effect oflaw; AG Opinion 66-10 superseded.  Att. Gen. Op. 72-5.

  State agency required by subsection (a)(1) to publish noticeof hearing must in addition comply with publication requirements of section92-41.  Att. Gen. Op. 73-12.

  Board cannot adopt "policy" which would have theeffect of amending a rule, without following HAPA requirements.  Att. Gen. Op.81-11.

  Notices are not required to be in the legal section of anewspaper.  Att. Gen. Op. 89-4.

  Substantial changes in proposed rules made after publichearing require additional hearing where material is included on subject notcovered in original notice or change was not advocated or discussed at originalhearing.  Att. Gen. Op. 91-05.

  For the repeal of rules, this section and §92-41 did notrequire individual notice to all property owners potentially affected by thechange in the rules but only notice by publication, and a mailing to thosepersons who requested advance notice of department's rulemaking proceedings. Att. Gen. Op. 97-4.

 

Case Notes

 

  Where defendant did not give notice and hold public hearingpursuant to subsection (a) before issuing approval of use of wood preservative,defendant's approval, together with defendant's conditions of approval, wouldappear to be rulemaking.  939 F. Supp. 746.

  Department provided adequate notice under this chapter of itsintent to hold public hearings on proposed amendments to its administrativerules; nothing in chapter or case law requires that notice of public hearingson proposed amendments be published only after the effective date of thestatute authorizing such amendments.  88 H. 307, 966 P.2d 619.

  Where city appraiser's unwritten methodology for determiningimparted value fell within definition of a rule for purposes of §91-1(4), cityneeded to follow rulemaking procedures set forth in this section prior toapplying imparted value deductions toward golf course assessments.  89 H. 381,974 P.2d 21.

  Changes may be made in a rule between the original proposedand presented at a public hearing and as finally adopted.  Substantial changein a rule after a public hearing may require another public hearing.  50 H.156, 434 P.2d 516.

  Notice should fairly apprise interested parties of what isbeing proposed so they can formulate and present rational responses to theproposal.  64 H. 389, 642 P.2d 530.

  "Substance" of proposed rules defined.  64 H. 389,642 P.2d 530.

  Rule enabling insurance commissioner to prescribeendorsements did not give carte blanche authority to sidestep the independentrequirements of chapter 91.  67 H. 148, 682 P.2d 73.

  Adoption by reference of future amendments unlawful.  67 H.451, 691 P.2d 365.

  No waiver of notice and hearing requirements allowed whereagency had discretion to interpret federal provisions as to required rules.  68H. 80, 705 P.2d 17.

  Inadequate notice, discussed.  70 H. 135, 764 P.2d 1233.

  Notice of public hearing met all requirements of thissection; no merit to points on appeal that court erroneously dismissed claimsthat proposed hearing room was too small and that separate hearings should beheld on neighbor islands.  10 H. App. 210, 863 P.2d 344.

  Sections 183D-22 and 183D-10.5 provided the authority for thedepartment of land and natural resources to require payment of a fee for ahunting-related article such as a stamp; however, since game bird hunting wasan activity permitted under chapter 183D, the department was required under§183D-3 to adopt a rule pursuant to this section when setting the stamp feesfor hunting.  117 H. 16 (App.), 175 P.3d 126.

  Since the addition of two extra hunting days to each week ofthe hunting season concerned "conditions for entry into game managementareas, and public hunting areas designated by the department of land andnatural resources" and "open seasons" for hunting, the expresslanguage of §183D-3 mandated that in order to add the two weekdays for birdhunting, the department had to amend Hawaii administrative rule 13-122-4pursuant to chapter 91.  117 H. 16 (App.), 175 P.3d 126.

 

Hawaii Legal Reporter Citations

 

  Public hearing necessary before rules can be adopted.  77-2HLR 77-793.

  Substance of proposed rules.  78-2 HLR 781.