HAR §5-1-70. Petition for declaratory rulings

(a) Any interested person may petition the department for the issuance of a declaratory order as to the applicability of any statutory provision administered by the department or of any rule or order of the department. Petitions for the issuance of a declaratory order shall state clearly and concisely the controversy or uncertainty, shall cite the statutory authority or rule or order involved, shall 1-25 §5-1-70 include a detailed statement of all the facts and the reasons or grounds prompting the petition, together with full disclosure of the petitioner's interest, and shall conform to the requirements of section 5-1-35. The department, upon receipt of the petition, may require the petitioner to file additional data or a memorandum of legal authorities in support of the position taken by the petitioner. The department may summarily dismiss a petition for a declaratory order if the petition does not meet the requirements of this section and, after notification of the deficiencies and a reasonable opportunity to correct the deficiencies, the petitioner fails to comply with the requirements of this section in a material respect. (b) Although in the usual course of disposition of a petition for a declaratory ruling no formal hearing will be granted to the petitioner or to a party in interest, the director may in the director's discretion schedule a hearing. Any petitioner or party in interest, who desires a hearing on a petition for declaratory ruling, shall set forth in detail in its request the reasons why the matters alleged in the petition, together with supporting affidavits or other written evidence and briefs or memorandums of legal authorities, will not permit the fair and expeditious disposition of the petition, and, to the extent that the request for hearing is dependent upon factual assertion, the request shall be accompanied by an affidavit attesting to those facts. In the event a hearing is scheduled by the director, sections 5-1-31 to 5-1-49 shall govern the proceedings. (c) The director may, for good cause, deny the petition and refuse to issue a declaratory order. Without limiting what may constitute good cause, the director shall refuse to issue a declaratory order when: (1) The question is speculative or purely hypothetical and does not involve an existing situation or one that reasonably may be expected to occur in the near future; (2) The petitioner's interest is not of the type that would give the petitioner standing to maintain an action in a court of law regarding the same factual and legal circumstances presented in the petition; (3) The statutory provision cited in the petition is not administered by the department or the rule or order cited in the 1-26 §5-1-70 petition is not a rule or order of the department; or (4) The factual and legal circumstances presented in the petition are involved in pending administrative contested case proceedings or judicial proceedings that will result in a decision on the applicability of the statutory provision or rule or order cited in the petition. (d) Upon determination of the applicability or nonapplicability of the statutory provision or rule or order cited in the petition to the factual circumstances presented in the petition, the director shall issue a declaratory order in response to the petition. The declaratory order shall be served on the petitioner pursuant to section 5-1-48. [Eff Jan. 16, 1993] (Auth: HRS §§28-10.8, 91-2) (Imp: HRS §91-8) DEPARTMENT OF THE ATTORNEY GENERAL The Rules of the Department of the Attorney General relating to practice and procedure, adopted on October 30, 1969, were repealed and chapter 5-1, Hawaii Administrative Rules, on the Summary Page dated December 18, 1992, was adopted on December 18, 1992, following a public hearing held on December 17, 1992, after public notice was given in the Sunday Star-Bulletin & Advertiser, The Garden Island, the Hawaii Tribune-Herald, and the Maui News on November 15, 1992. The repeal of the 1969 rules of practice and procedure and the adoption of chapter 5-1 shall take effect ten days after filing with the Office of the Lieutenant Governor. /S/ R. A. Marks Robert A. Marks Attorney General APPROVED: /S/ John Waihee John Waihee Governor State of Hawaii Dated: Jan. 6, 1993 APPROVED AS TO FORM: /S/ Maurice S. Kato Deputy Attorney General Jan. 6, 1993 Filed