Hawaii Administrative Rules: Adoption, Petitions, and Appeals

Hawaii Administrative Rules are the enforceable regulations that state and county agencies adopt to carry out laws passed by the legislature, and Chapter 91 of the Hawaii Revised Statutes controls how those rules get made, changed, repealed, and challenged.¹ They cover environmental permits, professional licensing, land use, public health, and much of the rest of daily regulated life in the state. The same chapter gives you specific rights: to receive notice and testify before a rule is adopted, to petition for a new rule, to ask an agency how a rule applies to your situation, and to challenge a rule or an agency decision in court.

What Hawaii Administrative Rules Are

The legislature writes broad statutes and delegates the technical details to executive agencies. The Department of Health, the Department of Land and Natural Resources, and dozens of others each write rules within their assigned areas. Those rules carry the same legal force as the statutes that authorized them, so violating one can lead to penalties, license actions, or other enforcement.²

A rule is only valid so long as it stays within the authorizing statute and the state constitution. If an agency goes beyond what the legislature allowed, or skips a required step in adopting the rule, a court can invalidate it.³

How the Rules Are Organized and Where to Find Them

The HAR uses a three-part citation. Titles correspond to departments or agencies. Chapters group subject areas within a Title. Sections contain the specific requirements. A citation like HAR 11-200-1 points to Title 11, Chapter 200, Section 1.

The Office of the Lieutenant Governor keeps the official permanent register of all filed state rules, open to public inspection, and hosts them online.⁴⁵ County clerks hold the corresponding records for county rules. Each agency must also make its own rules and written policy statements available for review at its offices, and a rule that hasn’t been published or made available cannot be enforced against someone who had no actual knowledge of it.⁶ For legal purposes, the certified copies filed with the lieutenant governor are the authoritative version.

How a Rule Gets Adopted, Changed, or Repealed

The standard process under HRS §91-3 has four steps: public notice, a hearing, approval by the governor or mayor, and filing.

Notice and Hearing

An agency must give at least 30 days’ notice before holding a public hearing on a proposed rule.¹ The notice must describe the topic, tell you where to get a copy of the proposed rule and where to review it in person, and state the date, time, and place of the hearing. State agencies publish notice at least once statewide and post it online. Anyone who has previously asked an agency for advance notice of its rulemaking gets it by mail.

Under HRS §92-41, state agencies must also give notice in the affected county.⁷

At the hearing you can testify orally or submit written comments, and the agency must consider all submissions. It may decide at the hearing or set a later date. If you request one, the agency must issue a concise statement of the main reasons for and against its final decision.¹

Approval, Filing, and Effective Date

Once the rule is finalized, state rules need the governor’s approval and county rules need the mayor’s, except that county boards of water supply don’t need mayoral approval.¹ Certified copies then go to the Office of the Lieutenant Governor for state rules or to the county clerk for county rules, and county clerks forward theirs to the lieutenant governor.

A rule takes effect ten days after filing. The agency can pick a later effective date, but no more than 30 days after filing.⁵ Skipping any of these steps can leave the rule void.

Emergency Rules

An agency facing an imminent threat to public health, safety, or morals can adopt a rule without the 30-day notice period. The agency has to state in writing why the emergency justifies the shortcut, and the written finding becomes part of the filed rule. Emergency rules take effect immediately upon filing but expire after 120 days, and they cannot be renewed without going through the full notice-and-hearing process. The agency must publish the rule at least once in a newspaper of general circulation within five days of filing.⁵

Small Business Impact Statements

Before an agency sends a proposed rule to public hearing, it has to determine whether the rule affects small business. If it does, the agency must consider flexible compliance methods and prepare a small business impact statement, which goes to the departmental advisory committee on small business before the rule reaches the governor.⁸ This requirement does not apply to emergency rulemaking. It doesn’t guarantee the rule won’t be adopted, but it forces the agency to document whether it considered less restrictive alternatives.

Petitioning an Agency to Change a Rule

Any interested person can petition an agency to adopt a new rule, amend an existing one, or repeal one. Each agency prescribes its own form and procedures, so check with the agency first. The petition has to state the reasons for the request.⁹

The agency has 30 days to respond. It must either deny the petition in writing with an explanation or start the formal §91-3 rulemaking process.⁹ Ignoring the petition isn’t an option. If it moves forward, all the standard requirements apply.

Asking How a Rule Applies to You

If you’re unsure whether a statute, rule, or agency order applies to your situation, you can petition the agency for a declaratory ruling. The ruling has the same legal weight as any other agency order, so it’s a binding interpretation rather than informal guidance.¹⁰ Each agency sets its own form and procedure. It’s most useful when you’re planning something specific and want certainty before you commit resources.

Challenging a Rule’s Validity in Court

If you believe a rule itself is invalid, you can bring a declaratory judgment action in the circuit court of the county where you reside or maintain your principal place of business. You don’t have to ask the agency first. A court will invalidate a rule that violates constitutional or statutory provisions, exceeds the agency’s authority, or was adopted without following the required rulemaking procedures.³

This remedy attacks the rule itself. If your issue is how an agency applied a valid rule to your case, the path is a contested case followed by judicial review under §91-14.

Contested Case Hearings and Appeals

When an agency takes action that directly affects your rights or obligations, such as revoking a license, denying a permit, or imposing a fine, that’s a contested case. You get reasonable notice and a hearing before the final decision.¹¹

The hearing notice must include the date, time, and place, the legal authority for the hearing, the specific statutes and rules involved, a plain-language statement of the issues and the facts the agency is relying on, and a statement that you may hire an attorney. You can represent yourself, a partner can represent a partnership, and an authorized officer or employee can represent a corporation, trust, or association.

You have the right to present evidence and argument on every issue. Evidence rules are more relaxed than in regular court, but no sanction or order can issue except on reliable, probative, and substantial evidence in the record. The case can also end by settlement, stipulation, consent order, or default.¹¹

Appealing to Court

If you lose, you can appeal to circuit court, or to the environmental court for environmental matters. File within 30 days after being served with the certified copy of the agency’s final decision. Miss the deadline and you can lose the right to appeal entirely.¹²

The court reviews the agency record without a jury. It can reverse or modify if the agency’s findings or orders violate constitutional or statutory provisions, exceed the agency’s jurisdiction, resulted from unlawful procedure, are affected by other error of law, are clearly unsupported by the evidence, or are arbitrary and capricious.¹²

Getting a Stay

Filing for review does not automatically pause enforcement. To get a stay, you have to ask the court and show all four of these: you’re likely to win on the merits, you’ll suffer irreparable harm without a stay, the public won’t be irreparably harmed by the stay, and the public interest favors granting it.¹² Courts weigh the public-harm factor heavily in health and safety cases.

1
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-3 – Procedure for Adoption, Amendment, or Repeal of Rules
2
Hawaii State Legislature. Hawaii Revised Statutes Chapter 91 – Administrative Procedure
3
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-7 – Declaratory Judgment on Validity of Rules
4
Office of the Lieutenant Governor. Administrative Rules
5
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-4 – Filing and Taking Effect of Rules
6
Hawaii State Government. Hawaii Revised Statutes Chapter 91 – Administrative Procedure – Section 91-2
7
Justia Law. Hawaii Revised Statutes Title 8, Chapter 92, Section 92-41 – Giving Public Notices
8
Justia Law. Hawaii Revised Statutes Title 13, Chapter 201M, Section 201M-2 – Determination of Small Business Impact
9
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-6 – Petition for Adoption, Amendment, or Repeal of Rules
10
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-8 – Declaratory Rulings by Agencies
11
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-9 – Contested Cases, Notice, Hearing, Records
12
Justia Law. Hawaii Revised Statutes Title 8, Chapter 91, Section 91-14 – Judicial Review of Contested Cases