91-3 Procedure for adoption, amendment, or repeal of rules. (a) Except as otherwise provided in this section, prior to the adoption of any rule authorized by law, or the amendment or repeal thereof, the adopting agency shall:

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

(A) A statement of the topic of the proposed rule adoption, amendment, or repeal or a general description of the subjects involved; and

(B) A statement that a copy of the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed will be mailed to any interested person who requests a copy, pays the required fees for the copy and the postage, if any, together with a description of where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

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where, and during what times the proposed rule to be adopted, the proposed rule amendment, or the rule proposed to be repealed may be reviewed in person; and

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

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

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

(b) Notwithstanding the requirements of subsection (a), if an agency finds that an imminent peril to the public health, safety, or morals, to livestock and poultry health, or to natural resources requires adoption, amendment, or repeal of a rule upon less than thirty days' notice of hearing, and states in writing its reasons for such finding, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing, including posting the abbreviated notice and hearing on the Internet as provided in section 91-2.6, as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal.

(c) In addition to emergency rules adopted pursuant to subsection (b), an agency may, in a similar manner, adopt emergency rules where new federal legislation or federal and state court decisions disrupt prior practice under any statute administered by the agency and adoption of an emergency rule is urgently needed to:

(1) Conform existing rules to new requirements;

(2) Implement newly-established rights;

(3) Clarify existing rules and prevent confusion among those covered by existing statutes;

(4) Stabilize a regulated industry or endeavor;

(5) Avoid disruption of governmental or industrial operations;

(6) Facilitate orderly agency or legislative study of the consequences of the new federal legislation or a federal or state court decision;

(7) Reinforce or preserve the unmodified goals of a statute administered by the agency; or

(8) Temporarily resolve any practical problems created by the new federal legislation or federal and state court decisions;

provided that an agency shall not adopt any emergency rule pursuant to this subsection without conducting a public hearing; provided further that an agency shall give no less than thirty days' notice of the hearing; provided further that any emergency rule adopted pursuant to this subsection shall be effective until no later than adjournment sine die of the next regular legislative session following adoption of the emergency rule.

(d) The adoption, amendment, or repeal of any rule by any state agency shall be subject to the approval of the governor. The adoption, amendment, or repeal of any rule by any county agency shall be subject to the approval of the mayor of the county. This subsection shall not apply to the adoption, amendment, and repeal of the rules of the county boards of water supply.

(e) The requirements of subsection (a) may be waived by the governor in the case of the State, or by the mayor in the case of a county, whenever a state or county agency is required by federal provisions to adopt rules as a condition to receiving federal funds and the agency is allowed no discretion in interpreting the federal provisions as to the rules required 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 the proposed rule at least once statewide prior to the waiver of the governor or the mayor; and

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

(f) No adoption, amendment, or repeal of any rule shall be invalidated solely because of:

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

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

(3) The inadvertent failure on the part of a state agency to post on the website of the office of the lieutenant governor all proposed rulemaking actions of the agency and the full text of the agency's proposed 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 noncompliance with statutory procedural requirements shall be forever barred unless the challenge is made in a proceeding or action, including an action pursuant to section 91-7, that is begun within three years after the effective date of the adoption, amendment, or repeal of the rule.

(g) Whenever an agency seeks only to repeal one or more sections, chapters, or subchapters of the agency's rules because the rules are either null and void or unnecessary, and not adopt, amend, or compile any other rules:

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

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

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

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

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

This subsection does not apply to the repeal of one or more subsections, paragraphs, subparagraphs, clauses, words, phrases, or other material within a section that does not constitute the entire section to be 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 L 1989, c 64, 2; am L 1998, c 2, 27, 28; am L 1999, c 301, 2(2); am L 2000, c 283, 6; am L 2012, c 149, 2; am L 2018, c 56, 2]

 

Cross References

 

Additional requirements for publication of notice of public hearings, see 92-41.

 

Attorney General Opinions

 

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

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

State agency required by subsection (a)(1) to publish notice of hearing must in addition comply with publication requirements of section 92-41. Att. Gen. Op. 73-12.

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

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

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

For the repeal of rules, this section and 92-41 did not require individual notice to all property owners potentially affected by the change in the rules but only notice by publication, and a mailing to those persons 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 hearing pursuant to subsection (a) before issuing approval of use of wood preservative, defendant's approval, together with defendant's conditions of approval, would appear to be rulemaking. 939 F. Supp. 746.

Changes may be made in a rule between the original proposed and presented at a public hearing and as finally adopted. Substantial change in 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 is being proposed so they can formulate and present rational responses to the proposal. 64 H. 389, 642 P.2d 530.

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

Rule enabling insurance commissioner to prescribe endorsements did not give carte blanche authority to sidestep the independent requirements 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 where agency had discretion to interpret federal provisions as to required rules. 68 H. 80, 705 P.2d 17.

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

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

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

The board of land and natural resources was not required to engage in rule-making to adopt a standardized methodology for valuation of damages to conservation lands before making a valuation of damage to land in the conservation district resulting from excessive sedimentation. 132 H. 247, 320 P.3d 912 (2014).

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

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

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 chapter 91. 117 H. 16 (App.), 175 P.3d 126.

Cited: 715 F. Supp. 2d 1115.

 

 

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