12-53 Rules of Practice for Variance

§12-53
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HAWAII ADMINISTRATIVE RULES
TITLE 12
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
SUBTITLE 8
HAWAII OCCUPATIONAL SAFETY AND HEALTH DIVISION
PART 1
GENERAL, LEGAL, AND ADMINISTRATIVE PROVISIONS
FOR OCCUPATIONAL SAFETY AND HEALTH
CHAPTER 53
RULES OF PRACTICE FOR VARIANCES
SUBCHAPTER 1-GENERAL
§12-53-1 Purpose and scope
§12-53-2 Effect of variances
§12-53-3 Public notice of a granted variance
§12-53-4 Form of documents
§12-53-5 Repealed
SUBCHAPTER 2-APPLICATION FOR VARIANCES AND OTHER RELIEF
§12-53-6 Variance and other relief for inability to comply
§12-53-7 Variances and other relief for use of alternate safety
practices, etc.
§12-53-8 Modification, revocation, and renewal of rules and orders
§12-53-9 Action on applications
§12-53-10 Requests for hearing on applications
§12-53-11 Consolidation of proceedings
SUBCHAPTER 3-HEARINGS
§12-53-12 Notice of hearing
§12-53-13 Manner of service
§12-53-14 Hearing examiners; powers and duties
§12-53-15 Prehearing conferences
§12-53-16 Consent findings and rules or orders
§12-53-17 Discovery
§12-53-18 Hearings
§12-53-19 Decisions of hearing examiners
§12-53-20 Appeals
§12-53-21 Transmission of record
§12-53-22 Decision of the director
SUBCHAPTER 4-SUMMARY DECISIONS

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§12-53-23 Motion for summary decision
§12-53-24 Summary decision
SUBCHAPTER 5-EFFECT OF INITIAL DECISIONS
§12-53-25 Appeal of a hearing examiner's decision
§12-53-26 Finality for appeals board review
Historical Note: Chapter 53 of title 12 is based upon chapter 104 of
the Hawaii Occupational Safety and Health Standards, Rules and Regulations.
[Eff. 7/11/74; am 6/7/76; am 8/23/79; R 7/12/82]
SUBCHAPTER I –GENERAL
§12-53-1 Purpose and scope. This chapter contains rules of practice
for administrative proceedings to grant variances and other relief under the
law. [Eff 7/12/82; am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-2 Effect of variances. All variances granted pursuant to this
chapter shall have only future effect. The director may decline to entertain
an application for a variance on a subject or issue for which a citation has
been issued to the employer involved and a proceeding on the citation or a
related issue concerning a proposed penalty or period of abatement is pending
before the appeals board until the completion of the proceeding.
[Eff. 7/12/82] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-3 Public notice of a granted variance. (a) Every final action
granting a variance shall be published for general circulation in the State
at least once within three weeks following the action. Every final action
shall specify the alternative to the standard involved which the particular
variance permits.
(b) The applicant shall pay for the publication cost of publishing the
granted variance notice as required in section 12-56-3 prior to the public
notice being published. [Eff 7/12/82; am 8/15/87; am 2/14/00]
(Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-4 Form of documents. (a) No particular form is prescribed for
an application, which may be filed in proceedings under this chapter. Any
application and supporting documentation, if any shall be clearly legible and
one original and one copy shall be filed. The original shall be typewritten,
and the copy may be carbon, printed, or processed. An application shall be
considered complete when it contains comprehensive information to satisfy the
requirements of sections 12-53-6 or 12-53-7.
(b) Each application or any other paper which is filed in proceedings
under this section shall be signed by the person filing or an attorney, or by
any other authorized representative.
Applications.
(1) If an application filed pursuant to sections 12-53-6 or 12-53-7 is
incomplete or does not conform to the applicable section, the
director may deny the application.

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(2) Notice of the denial of an application shall be given to the
applicant within ninety days of the director’s receipt of the
application packet.
(3) A notice of denial shall include a brief statement of the grounds
for the denial.
(4) A denial of an application shall be without prejudice to the
filing of another application.
(5) If an application is accepted, the applicant will be so notified
by telephone, facsimile transmission, or letter within ninety days
of the submission of the complete application to the director.
[Eff 7/12/82; am 8/15/87; am 2/14/00] (Auth: HRS §396-4)
(Imp: HRS §396-4)
SUBCHAPTER 2--APPLICATION FOR VARIANCES AND
OTHER RELIEF
§12-53-6 Variance and other relief for inability to comply. (a) Any
employer, or class of employers, desiring a variance from a standard, or
portion of it, for inability to comply with any rule shall file a written
application with the director.
(b) All applications filed pursuant to subsection (a) above shall be in
writing and shall include:
(1) The name and address of the applicant;
(2) The address of the place or places of employment involved;
(3) A specification of the rule or portion from which the applicant
seeks a variance;
(4) A representation by the applicant, supported by representations
from qualified persons having first-hand knowledge of the facts
represented, that the applicant is unable to comply with the rule
or portion of it by its effective date and a detailed statement of
the reasons;
(5) A statement of the steps the applicant has taken and will take,
with specific dates where appropriate, to protect employees
against the hazards for which the standards provide protection;
(6) A statement of when the applicant expects to be able to comply
with the standard and what steps has been taken and will be taken,
with specific dates where appropriate, to achieve compliance with
the rule;
(7) A statement of the facts the applicant would present to establish
that:
(A) The applicant is unable to comply with a standard by its
effective date because of unavailability of professional or
technical personnel or of materials and equipment needed to
achieve compliance with the standard or because necessary
construction or alteration of facilities cannot be completed
by the effective date;
(B) All available steps to safeguard employees against the hazards
for which the standard provides protection are being taken;
and
(C) An effective program is in operation for achieving compliance
with the standard as quickly as practicable;
(8) A certification that the applicant has informed employees of the
application by:
(A) Giving a copy to their designated representatives;
(B) Posting a statement giving a summary of the application and
specifying where a copy may be examined, at the place or

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places where notices to employees are normally posted (or in
lieu of the summary, the posting of the application itself);
and
(9) A description of how affected employees have been informed of the
application and of their right to petition the director for a
hearing; and
(10) When the requested variance would be applicable to employment or
places of employment in more than one state and concerns a Hawaii
OSH standard or portion thereof, identical in requirements and
substance to a federal standard, the applicant shall:
(A) Identify the identical Federal standard;
(B) Certify whether or not the applicant has filed for such a
variance, on the same facts, with the Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor; and
(C) Certify whether or not any citations for violations of the
identical federal standard, or portion thereof, have been
issued to the applicant by the federal government, and, if
citations have been issued, copies of the citations shall be
included.
(c) Interim order.
(1) A written application may also be made for an interim order to be
effective until a decision is rendered for the variance filed
previously or concurrently. An application for an interim order
shall include statements of fact and arguments as to why the order
should be granted. The director or the administrator may rule ex
parte upon the application for an interim order.
(2) If an application for an interim order is denied, the applicant
shall be given notice of the denial within forty-five days of the
filing of the complete application for the interim order which
shall include a brief statement of the grounds for denial.
(3) If an interim order is granted, a copy of the order shall be
served upon the applicant.
(4) The employer shall give notice to affected employees, by the same
means used to inform them of an application for a variance, that
an interim order has been granted.
(d) A variance and other relief for inability to comply may be granted
for up to six months and can be renewed once for an additional six months. A
written request for an extension shall be filed not less than thirty days
prior to the expiration date of the original variance and shall include the
reason(s) for the extension request with supporting documentation if any. If
an interim order is granted, the duration of the interim order is not
included in the six-month period for the variance. [Eff 7/12/82; am 8/15/87;
am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-7 Variances and other relief for use of alternate safety
practices, etc. (a) Any employer, or class of employers, desiring a variance
for use of alternative safety procedures shall file a written application
with the director.
(b) An application filed pursuant to subsection (a) above shall be in
writing and shall include:
(1) The name and address of the applicant;
(2) The address of the place or places of employment involved;
(3) A description of the conditions, practices, means, methods,
operations, or processes used or proposed to be used by the
applicant;
(4) A statement showing how the conditions, practices, means, methods,

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operations, or processes used or proposed to be used would provide
employment and places of employment to employees which are as safe
and healthful as those required by the standard from which a
variance is sought;
(5) A certification that the applicant has informed employees of the
application by:
(A) Giving a copy to their designated representatives;
(B) Posting a statement giving a summary of the application and
specifying where a copy may be examined, at the place or
places where notices to employees are normally posted (or in
lieu of the summary, the posting of the application itself);
and
(C) Other appropriate means.
(6) A description of how employees have been informed of the
application and of their right to petition the director for a
hearing; and
(7) When the requested variance would be applicable to employment or
places of employment in more than one state and concerns a Hawaii
OSH standard or portion thereof, identical in requirements and
substance to a federal standard, the applicant shall:
(A) Identify the identical federal standard;
(B) Certify whether or not the applicant has filed for such a
variance, on the same facts, with the Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor; and
(C) Certify whether or not any citations for violations of the
identical federal standard, or portion thereof, have been
issued to the applicant by the federal government. If
citations have been issued, copies of the citations shall be
included.
(c) Interim order.
(1) A written application may also be made for an interim order to be
effective until a decision is rendered on the application for the
variance filed previously or concurrently. An application for an
interim order shall include statements of fact and arguments as to
why the order should be granted. The director or the
administrator may rule ex parte upon the application for an
interim order.
(2) If an application for an interim order is denied, the applicant
shall be given notice of the denial, within forty-five days of the
filing of the complete application for the interim order which
shall include, or be accompanied by, a brief statement of the
grounds for the denial.
(3) If an interim order is granted, a copy of the order shall be
served upon the applicant.
(4) The employer shall give notice to affected employees, by the same
means used to inform them of an application for a variance, that
an interim order has been granted. [Eff 7/12/82; am 8/15/87;
am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-8 Modification, revocation, and renewal of rules and orders.
(a) An employer or an affected employee may apply in writing to the director
for a modification or revocation of a rule, standard, or order issued under
sections 12-53-6 or 12-53-7. The application shall contain:
(1) The name and address of the applicant;
(2) A description of the relief, which is sought;
(3) A statement setting forth with particularity the grounds for

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relief;
(4) Certification, if the applicant is an employer, which the
applicant has informed affected employees of the application by:
(A) Giving a copy to their designated representatives;
(B) Posting at the place where notices to employees are normally
posted, a statement giving a summary of the application and
specifying where a copy of the full application may be
examined (or, in lieu of the summary, posting the application
itself); and
(C) Other appropriate means.
(5) A certification, if the applicant is an affected employee, that a
copy of the application has been furnished to the employer; and
(6) Any request for a hearing under subchapter 3 of this chapter.
(b) The director may modify or revoke a rule or order issued under
sections 12-53-6 or 12-53-7. When this occurs, the director shall publish a
notice of this for general circulation in the State of Hawaii at least once
within a three week period following the action, thereby affording interested
persons an opportunity to submit written data, views, or arguments regarding
the proposal and informing the affected employer and employees of their right
to request a hearing, and shall take other actions to give notice to affected
employees. Any request for a hearing shall include a short and plain
statement of:
(1) How the proposed modification or revocation would affect the
requesting party; and
(2) What the requesting party would seek to show on the subjects or
issues.
(c) Any final rule or order issued under sections 12-53-6 or 12-53-7
may be renewed or extended as permitted by the applicable section and in the
manner prescribed for its issuance. [Eff 7/12/82; am 8/15/87; am 2/14/00]
(Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-9 Action on applications. (a) Defective applications.
(1) If an application filed pursuant to sections 12-53-6 or 12-53-7 is
incomplete or does not conform to the applicable section, the
director may deny the application.
(2) Prompt notice of the denial of an application shall be given to
the applicant within ninety days of the director’s receipt of the
application packet.
(3) A notice of denial shall include a brief statement of the grounds
for the denial.
(4) A denial of an application shall be without prejudice to the
filing of another application.
(b) Adequate applications.
(1) If an application has been approved pursuant to sections 12-53-6
or 12-53-7, the director shall publish for general circulation in
the State, at least once within three weeks following the filing
of an application, a notice of the filing of an application.
(2) A notice of the filing of an application shall include:
(A) The terms or an accurate summary of the application;
(B) A reference to the section of the law under which the
application has been filed;
(C) An invitation to interested persons to submit within a stated
period of time written data, views, or arguments regarding the
application; and
(D) Information to affected employers and employees of any right
to request a hearing on the application.

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(3) Applicants will be notified by telephone, facsimile transmission
or letter within ninety days of the submission of a complete
application of its acceptance or denial. [Eff 7/12/82;
am 8/15/87; am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-10 Requests for hearing on applications. (a) Within the twenty
day time period allowed by a notice of the filing of an application, any
affected employer or employee may file with the director, a written request
for a hearing on the application.
(b) A request for a hearing filed pursuant to subsection (a) above
shall include:
(1) A concise statement of facts showing how the employer or employee
would be affected by the relief for which the application was
made;
(2) A specification of any statement or representation in the
application which is being challenged, and a concise summary of
the evidence rebutting any statement or representation made within
the application with specific reference to the statement or
representation being challenged; and
(3) Any views or arguments on any issue of fact or law presented.
[Eff 7/12/82; am 8/15/87; am 2/14/00] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-11 Consolidation of proceedings. The director may consolidate
or contemporaneously consider two or more proceedings, which involve the same
or closely related issues. [Eff. 7/12/82] (Auth: HRS §396-4)
(Imp: HRS §396-4)
SUBCHAPTER 3--HEARINGS
§12-53-12 Notice of hearing. (a) Upon request for a hearing pursuant
to this chapter, the director shall serve reasonable notice of hearing.
(b) A notice of hearing shall include:
(1) The time, place, and nature of the hearing;
(2) The legal authority under which the hearing is to be held;
(3) A specification of issues of fact and law; and
(4) A designation of a hearing examiner appointed by the director to
preside over the hearing.
(c) A copy of a notice of hearing shall be referred to the hearing
examiner together with the original application and any written request for a
hearing. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-13 Manner of service. Service of any document upon any party
may be made by personal delivery, or by mailing to the last known address of
the party. The person serving the document shall certify to the manner and
the date of the service. [Eff. 7/12/82] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-14 Hearing examiners; powers and duties. (a) A hearing
examiner designated to preside over a hearing shall have all powers necessary
or appropriate to conduct a fair, full, and impartial hearing, including the

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powers to:
(1) Administer oaths and affirmations;
(2) Rule upon offers of proof and receives relevant evidence;
(3) Provide for discovery and to determine its scope;
(4) Regulate the course of the hearing and the conduct of the parties
and their counsel;
(5) Consider and rule upon procedural requests;
(6) Hold conferences for the settlement or simplification of the
issues by consent of the parties;
(7) Make or to cause to be made, an inspection of the employment or
place of employment involved;
(8) Make decisions in accordance with this chapter and chapters 91
and 396, HRS; and
(9) Take any other appropriate action authorized by chapters 91 and
396, HRS.
(b) Except to the extent required for the disposition of ex parte
matters, a hearing examiner may not consult a person or a party on any fact
at issue, unless upon notice and opportunity for all parties to participate.
(c) When a hearing examiner disqualifies himself or herself to preside
over a particular hearing, the hearing examiner shall withdraw by notice on
the record to the director.
(d) Any party who believes a hearing examiner should be disqualified to
preside, or to continue to preside, over a particular hearing, may file with
the director a motion to disqualify and remove the hearing examiner. A
motion for disqualification shall be supported by affidavits setting forth
the alleged grounds for disqualification. The director shall rule upon the
motion.
(e) Unruly or obstinate conduct at any hearing shall be ground for
exclusion from the hearing.
(f) If a witness or a party refuses to answer a question after being
directed to do so, or refuses to obey an order to provide or permit
discovery, the hearing examiner may make orders with regard to the refusal as
are just and appropriate, including an order denying the application of an
applicant or regulating the contents of the record of the hearing.
(g) On any procedural question not regulated by this chapter or
chapters 91 and 396, HRS, a hearing examiner shall be guided to the extent
practicable by any pertinent provision of the Hawaii Rules of Civil
Procedure. [Eff 7/12/82; am 8/15/87; am 2/14/00] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-15 Prehearing conferences. (a) Upon a hearing examiner's own
motion or the motion of a party, the examiner may direct the parties or their
counsel to meet with the examiner for a prehearing conference to consider:
(1) Simplification of the issues;
(2) Necessity or desirability of amendments to documents for purposes
of clarification, simplification, or limitation;
(3) Stipulation, admissions of fact, and contents and authenticity of
documents;
(4) Limitations of the number of parties and of expert witnesses; and
(5) Other matters to expedite the disposition of the proceeding and to
assure a just conclusion.
(b) The hearing examiner shall make an order which recites the action
taken at the conference, the amendments allowed to any documents which have
been filed, and the agreements made between the parties as to any of the
matters considered, and which limits the issues for hearing to those not
disposed of by admissions or agreements. The order when entered controls the

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subsequent course of the hearing unless modified at the hearing to prevent
injustice. [Eff 7/12/82; am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-16 Consent findings and rules or orders. (a) At any time
before the reception of evidence in any hearing or during any hearing, a
reasonable opportunity may be given to permit the negotiation by the parties
of an agreement containing consent findings and a rule or order disposing of
the whole or any part of the proceeding. The allowance of the opportunity
shall be at the discretion of the presiding hearing examiner, after
consideration of the nature of the proceeding, the requirements of the public
interest, the representations of the parties, and the probability of an
agreement, which will result in a just disposition of the issues.
(b) Any agreement containing consent findings and rule or order
disposing of a proceeding shall also provide:
(1) That the rule or order shall have the same force and effect as if
made after a full hearing;
(2) That the entire record on which any rule or order may be based
shall consist solely of the application and the agreement;
(3) A waiver of any further procedural steps before the hearing
examiner and the director or designee; and
(4) A waiver of any right to challenge or contest the validity of the
findings and of the rule or order made in accordance with the
agreement.
(c) On or before the expiration of the time granted for negotiations,
the parties or their counsel may:
(1) Submit the proposed agreement to the presiding hearing examiner
for consideration; or
(2) Inform the presiding hearing examiner that agreement cannot be
reached.
(d) In the event an agreement containing consent findings and rule or
order is submitted within the time allowed, the presiding hearing examiner
may accept the agreement by issuing a decision based upon the agreed
findings. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-17 Discovery. (a) For reasons of unavailability or for other
good cause shown, the testimony of any witness may be taken by deposition.
Depositions may be taken orally or upon written interrogatories before any
person designated by the presiding hearing examiner and having power to
administer oaths.
(b) Any party desiring to take the deposition of a witness may make
application in writing to the presiding hearing examiner, setting forth:
(1) The reasons why the deposition should be taken;
(2) The time when, the place where, and the name and post office
address of the person before whom the deposition is to be taken;
(3) The name and address of each witness; and
(4) The subject matter concerning which each witness is expected to
testify.
(c) The notice, which the presiding hearing examiner may order, shall
be given by the party taking the deposition to every other party.
(d) Each witness testifying upon deposition shall be sworn, and the
parties not calling the witness shall have the right of cross-examination.
The questions and answers, together with all objections made, shall be
reduced to writing, read to and subscribed by the witness, and certified by
the officer before whom the deposition is taken. The officer shall seal the
deposition, with two copies in an envelope and send it by registered mail to

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the presiding hearing examiner. Subject to objections to the questions and
answers as noted at the time of taking the deposition, the deposition may be
read and offered in evidence by the party taking it as against any party who
was present, represented at the taking of the deposition or who had due
notice. No part of a deposition shall be admitted in evidence by the party
taking it as against any party who was present, represented at the taking of
the deposition, or who had due notice. No part of a deposition shall be
admitted in evidence unless there is a showing that the reasons for the
taking of the deposition in the first instance exist at the time of hearing.
(e) Whenever appropriate to a just disposition of any issue in a
hearing, the presiding hearing examiner may allow discovery by any other
appropriate procedure, such as by written interrogatories upon a party,
production of documents by a party, or by entry for inspection of the
employment or place of employment. [Eff. 7/12/82] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-18 Hearings. (a) Except as may be ordered otherwise by the
presiding hearing examiner, the party applicant for relief shall proceed
first at a hearing.
(b) The party applicant shall have the burden of proof.
(c) A party shall be entitled to present the case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such cross-
examination as may be required for a full and true disclosure of the facts.
Any oral or documentary evidence may be received, but a presiding hearing
examiner shall exclude evidence, which is irrelevant, immaterial, or unduly
repetitious.
(d) The testimony of a witness shall be upon oath or affirmation
administered by the presiding hearing examiner.
(e) If a party objects to the admission or rejection of any evidence,
or to the limitation of the scope of any examination or cross-examination, or
to the failure to limit the scope, the party shall state briefly the grounds
for the objection. Rulings on all objections shall appear in the record.
Only objections made before the presiding hearing examiner may be relied upon
subsequently in a proceeding.
(f) Formal exception to an adverse ruling is not required.
(g) Official notice may be taken of any material fact not appearing in
evidence in the record, which is among the traditional matters of judicial
notice or concerning which the department by reason of its functions is
presumed to be expert; provided, that the parties shall be given adequate
notice, at the hearing or by reference in the presiding hearing examiner's
decision, of the matters so noticed, and shall be given adequate opportunity
to show the contrary.
(h) The hearing shall be stenographically reported. Copies of the
transcript may be obtained by the parties upon written application filed with
the reporter, and upon the payment of fees at the rate provided in the
agreement with the reporter. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-19 Decisions of hearing examiners. (a) Within ten days after
receipt of notice that the transcript of the testimony has been filed or such
additional time as the presiding hearing examiner may allow, each party may
file with the hearing examiner proposed findings of fact, conclusions of law,
rule, or order, together with a supporting brief expressing the reasons for
the proposals. The proposals and brief shall be served on all other parties,
and shall refer to all portions of the record and to all authorities relied

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upon in support of each proposal.
(b) Within ninety days after the filing of proposed findings of facts,
conclusions of law, rule, or order, the presiding hearing examiner shall make
and serve the decision upon each party. The decision of the hearing examiner
shall include:
(1) A statement of findings and conclusions with reasons and based
upon each material issue of fact, law, or discretion presented on
the record; and
(2) The appropriate rule, order, relief, or denial.
The decision of the hearing examiner shall be based upon a consideration of
the whole record and shall state all facts officially noticed and relied
upon. [Eff 7/12/82; am 8/15/87; am 2/14/00; am 12/29/00] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-20 Appeals. Within twenty days after service of a decision of
a presiding hearing examiner, any party may file with the hearings examiner a
written motion for reconsideration. Any additional supporting documentation
that the requestor would like to submit shall be submitted along with the
request for reconsideration. A reconsideration hearing determination
decision will be issued within ninety days of the reconsideration hearing.
Within twenty days after service of the decision of a reconsideration
hearing, any party may file a written notice of contest with the director.
Upon receipt, the director shall advise the appeals board of any notice of
contest. [Eff 7/12/82; am 2/14/00] (Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-21 Transmission of record. If exceptions are filed, the hearing
examiner shall transmit the record of the proceeding to the director. The
record shall include: the application, any request for hearing, motions and
requests filed in written form, rulings, the transcript of the testimony
taken at the hearing, together with the exhibits admitted to evidence, any
documents or papers filed in connection with prehearing conferences, proposed
findings of fact, conclusions of law, rules or orders, and supporting
reasons, as may have been filed, the hearing examiner's decision, and
exceptions, statements of objections, and briefs in support, as may have been
filed in the proceeding. [Eff. 7/12/82] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-22 Decision of the director. If exceptions to a decision of a
hearing examiner are taken pursuant to section 12-53-20, the director shall
consider them, together with the record references and authorities cited in
support, and any objections to exceptions and supporting reasons, then make a
decision. The decision may affirm, modify, or set aside, in whole or part,
the findings, conclusions, and the rule or order contained in the decision of
the presiding hearing examiner, and shall include a statement of reasons or
basis for the actions taken on each exception presented. [Eff. 7/12/82;
am 8/15/87] (Auth: HRS §396-4) (Imp: HRS §396-4)
SUBCHAPTER 4--SUMMARY DECISIONS
§12-53-23 Motion for summary decision. (a) Any party may, at least
thirty days before the date fixed for any hearing under subchapter 3 of this
chapter, move with or without supporting affidavits for a summary decision on

§12-53
12
all or any part of the proceeding. Any other party may, within ten days
after service of the motion, serve opposing affidavits or countermove for
summary decision. The presiding hearing examiner may, at his or her
discretion, set the matter for argument and call for the submission of
briefs.
(b) The filing of any documents pursuant to subsection (a) above shall
be with the hearing examiner, and copies of any documents shall be served in
accordance with section 12-53-13.
(c) The hearing examiner may grant the motion pursuant to section 12-
53-24 if the pleadings, affidavits, material obtained by discovery or
otherwise obtained, or matters officially noticed show that there is no
genuine issue as to any material fact and that a party is entitled to summary
decision. The hearing examiner may deny the motion whenever the moving party
denies access to information by means of discovery to a party opposing the
motion.
(d) Affidavits shall set forth the facts as would be admissible in
evidence in a proceeding under chapter 91, HRS, and shall show affirmatively
that the affiant is competent to testify. When a motion for summary decision
is made and supported as provided in this section a party opposing the motion
may not rest upon the mere allegations or denials of his or her pleading but
shall respond by setting forth specific facts showing that there is a genuine
issue of fact for the hearing.
(e) Should it appear from the affidavits of a party opposing the motion
that, for reasons stated, facts essential to justify the opposition cannot be
presented, the hearing examiner may deny the motion for summary decision,
order a continuance to permit affidavits to be obtained or discovery to be
had, or make another order.
(f) The denial of all or any part of a motion for summary decision by
the hearing examiner shall not be subject to interlocutory appeal to the
director unless the hearing examiner certifies in writing that the ruling
involves an important question of law or policy as to which there is
substantial ground for difference of opinion and that an immediate appeal
from the ruling may materially advance the ultimate termination of the
proceeding. The allowance of an interlocutory appeal shall not stay the
proceeding before the hearing examiner unless the director, or designee,
shall so order. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4)
(Imp: HRS §396-4)
§12-53-24 Summary decision. (a) Where no genuine issue of a material
fact is found to have been raised, the hearing examiner may issue an initial
decision to become final twenty days after service unless within the period
of time any party has filed written exceptions to the decision. If any
timely exception is filed, the hearing examiner shall fix a time for filing
any objections to the exception and any supporting reasons. The director,
after consideration of the exceptions and any supporting briefs filed and of
any objections to the exceptions and any supporting reasons, may issue a
final decision.
(b) An initial decision and a final decision made pursuant to
subsection (a) above shall include a statement of:
(1) Findings and conclusions, and the reasons or basis on all
issues presented; and
(2) The terms and conditions of the rule or order made.
(c) A copy of an initial decision and a final decision under this
section shall be served on each party.
(d) Where a genuine material question of fact is raised, the hearing
examiner shall set the case for an evidentiary hearing in accordance with

§12-53
13
subchapter 3 of this chapter. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4)
(Imp: HRS §396-4)
SUBCHAPTER 5--EFFECT OF INITIAL DECISIONS
§12-53-25 Appeal of a hearing examiner's decision. A hearing
examiner's decision under this chapter shall not be operative unless it
becomes final pursuant to section 12-53-19(b). [Eff. 7/12/82; am 8/15/87]
(Auth: HRS §396-4) (Imp: HRS §396-4)
§12-53-26 Finality for appeals board review. Only a decision by the
director shall be final department action for purposes of appeals board
review. A decision by a hearing examiner, which becomes final for lack of
appeal is not final department action for purposes of appeal board review or
judicial review, or both. [Eff. 7/12/82; am 8/15/87] (Auth: HRS §396-4)
(Imp: HRS §396-4 and §396-11)