Hawaii Admin. Code Title 5 | Hawaii Administrative Rules, Title 5 — Department of the Attorney General

Subtitle 1 General Departmental Provisions and Programs

Chapter 1 GENERAL ORGANIZATION, PRACTICE, AND PROCEDURE

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 5-1-1 Statement of purpose

This chapter shall govern the practice and procedure before the department of the attorney general. It is the intention that this chapter shall, in part, effectuate and carry out the purposes and policies of chapters 91 and 92, Hawaii Revised Statutes, and shall be construed and interpreted in the manner most favorable to secure the just, speedy, and inexpensive determination of every proceeding authorized by law.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-1-2 Definitions

Whenever used in this chapter, unless the context otherwise requires:

"Complainant" means the person, agency, or officer upon whose complaint a proceeding is instituted.

"Contested case" means a proceeding in which the legal rights, duties, or privileges of specific parties are required by law to be determined after opportunity for hearing before the director.

"Department" means the department of the attorney general, including all administrative offices, agencies, boards, and commissions placed or established within the department.

"Director" means the attorney general or the head of a board, commission, agency, or office placed within the department for administrative purposes.

"Hearing" means any formal proceeding for the determination of the legal rights of specific parties that is authorized by law or rules in a matter which is initiated by action taken, or to be taken, by the department or which may be initiated by a petition or application for the granting of any right, privilege, authority, or relief from or after administrative action.

"Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in a hearing.

"Person" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies.

"Petitioner" means the person making or on whose behalf a petition or application is made for a hearing which the director may hold under statutory or other authority delegated to the director or for a declaratory ruling, as to the applicability of any statutory provision or of any department rule or order, or for the adoption, amendment, or repeal of any department rule.

"Presiding officer" means the person conducting the hearing and may be the director or the director's representative.

"Public records" means those government records that the department may disclose pursuant to chapter 92F, Hawaii Revised Statutes.

"Respondent" means the party in a contested case against whom an order to show cause has been issued by the director on the director's own initiative or a notice of hearing has been issued on the basis of a complaint filed with the director.

"Rulemaking" means any formal action for the adoption, amendment, or repeal of any rule of the department.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-1-3 Offices of the department

(a) The central office of the department and the office of the attorney general are located in Hale Auhau at 425 Queen Street, Honolulu, Hawaii 96813.

(b) The department has divisions that are either legal services providers or administrative in functions. These divisions are located in Hale Auhau and in other locations in Honolulu, Oahu, in Hilo and Kealakekua, Hawaii, in Wailuku, Maui, and in Lihue, Kauai. For the purposes of facilitating the request of information directly from offices in other locations, the following are some of the other office locations:

(1) Oahu:

(A) Hawaii Criminal Justice Data Center

Kekuanao'a Building

465 South King Street

Honolulu, Hawaii 96813

(B) Office of Information Practices

Kapuaiwa Building, Room 201

426 Queen Street

Honolulu, Hawaii 96813

City Center, Suite 701

810 Richards Street

Honolulu, Hawaii 96813

(D) Child Support Enforcement Agency

(principal office)

680 Iwilei Road, Suite 490

Honolulu, Hawaii 96817

(E) Office of Child Support Hearings

680 Iwilei Road, Suite 435

Honolulu, Hawaii 96817

(2) Hawaii:

(A) Child Support Enforcement Agency

400 Hualani Street, No. 13A

Hilo, Hawaii 96720

(B) Child Protective Services Unit, Social Services Division

101 Aupuni Street, Suite PH1014D

Hilo, Hawaii 96720

Ashikawa Building, No. 1

Corner of Mamalahoa Highway and Keekee Street

P.O. Box 249

Kealakekua, Hawaii 96750

(3) Maui:

(A) Child Support Enforcement Agency

2145 Kaohu Street, No. 105

Wailuku, Hawaii 96793

(B) Family Support Unit, Social Services Division

2145 Kaohu Street, No. 106 Wailuku, Hawaii 96793

2145 Kaohu Street, No. 104

P.O. Box 1707

Wailuku, Hawaii 96793

(4) Kauai:

(A) Child Support Enforcement Agency

4180 Rice Street, No. 104

Lihue, Kauai 96766

(B) Child Protective Services Unit, Social Services Division

3060 Eiwa Street, No. 302A

Lihue, Hawaii 96766

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-1-4 Office hours

The offices of the department shall be open from 7:45 a.m. to 4:30 p.m., Monday to Friday, except state holidays and except that, pursuant to executive orders issued by the governor of Hawaii, the civil identification section of the Hawaii criminal justice data center shall be open from 7:45 a.m. only to 3:30 p.m. and the child support enforcement agency offices shall be open only from 9:00 a.m. to 3:00 p.m.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 80-1; Exec. Order Nos. 90-2 and 91-4)

Haw. Code R. § 5-1-5 Public records

All public records of the department shall be available for inspection during established office hours, subject to chapter 92F, Hawaii Revised Statutes, and rules adopted under that chapter.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-2, ch. 92F)

Haw. Code R. § 5-1-6 Public information and submittals

(a) Any person may obtain information available for public dissemination concerning the activities of the department from the appropriate offices of the department during established business hours.

(b) Any person may file in the office of the director requests, objections, or views on any matter in any proceedings before the department in accordance with this chapter.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-1-7 Seal of the attorney general

(a) The official seal of the attorney general shall be circular in shape, one and fifteen-sixteenths inches in diameter, with the heraldic shield of the great seal of the State of Hawaii in the center. Framing the heraldic shield at the top and sides shall be an equal-arm balance symbolizing the scales of justice, with the beam above the heraldic shield being arched or curved as a yoke and with bowl-shaped scalepans suspended on each side by three cords. Below the heraldic shield shall be a banner bearing the latin words "LEX SUPREMA EST," meaning "the law is supreme." The heraldic shield, the equal-arm balance, and the banner shall be encircled concentrically first by a string of beads and then by a rope. In the area between the concentric circles formed by the string of beads and by the rope, there shall be the words "ATTORNEY GENERAL" on the scroll or curve in the top portion and the words "STATE OF HAWAII" on the scroll or curve in the bottom portion. Between those words, level with the scalepans, there shall be one five-pointed star on each side. For illustrative purposes, a black and white drawing of the official seal is attached at the end of this section as Exhibit "A," titled "Seal of the Attorney General," and dated November 1, 1988, and made a part of this section.

(b) The official seal of the attorney general shall be embossed near the signature of the attorney general to verify commissions of appointment of deputy attorneys general and notaries public, certificates, and other formal official documents on which the official seal has been customarily used or is appropriate to be used, as the attorney general may determine on a case-by-case basis.

(c) The seal of the attorney general may also be reproduced, in either an enlarged or a reduced size, on official stationery, reports, certificates, equipment, supplies, uniform insignia, and other objects and items to be used or produced by the department of the attorney general, but the reproduction and use of the seal of the attorney general shall always be subject to the exclusive control of the attorney general.

(d) A reproduction of the seal may be a black and white drawing, an engraved image, or a colored image, whether printed, painted, or embroidered, as approved by the attorney general for a particular use.

(e) A colored reproduction of the seal of the attorney general shall conform to the following description. The heraldic shield shall bear the colors specified for the heraldic shield of the state coat of arms described in section 5-5, Hawaii Revised Statutes. The yoke-shaped beam and the scalepans of the equal-arm balance and the banner shall be in gold, with the cords suspending the scalepans and the motto on the banner in black. Appropriate shading shall be used to present a three-dimensional appearance. The background within the string of beads shall be white. The string of beads, the outer circle of rope, and the letters and stars between the beads and rope shall be in gold. The background area between the string of beads and outer circle of rope shall be in royal blue.

History

[Eff JAN. 16, 1993] (Auth: HRS § 28-12) (Imp: HRS § 28-12)

Subchapter 2 MEETINGS

Haw. Code R. § 5-1-21 Applicability

This subchapter shall apply to any agency, board, commission, authority, or committee of the department that is a "board" as defined by section 92-2, Hawaii Revised Statutes.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS §§ 91-2, 92-3)

Haw. Code R. § 5-1-22 Conduct of meetings

(a) Unless otherwise required by statute or administrative rule, meetings shall be conducted in accordance with the current edition of Robert's Rules of Order.

(b) Interested persons wishing to submit data, views, or arguments, in writing, on any agenda item shall submit to the agency, board, commission, authority, or committee, no later than the workday prior to the day of the meeting, a legibly written or typed copy of the information, on 8 1/2 by 11 inch paper. The information must be in a form that may be reproduced by xerographic means for distribution to the members of the agency, board, commission, authority, or committee.

(c) Oral testimony may be given to the agency, board, commission, authority, or committee on any agenda item, but the presiding officer may limit each person to no more than five minutes per agenda item and may further limit or terminate testimony that the presiding officer determines to be repetitious or given solely for purposes of delay. The presiding officer may at any time require any person appearing before the agency, board, commission, authority, or committee in a representative capacity to show that person's authority and qualifications to act in such a representative capacity and to identity the persons and interests that are being represented.

(d) The presiding officer may order the removal of any person who wilfully disrupts a meeting or otherwise interferes with the proper and expeditious conduct of the meeting.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2, 92-3) (Imp: HRS §§ 91-1, 92-3)

Subchapter 3 GENERAL PROCEDURES FOR CONTESTED CASES

Haw. Code R. § 5-1-31 Applicability

The general procedures specified in this chapter shall apply to all contested cases that may come before any division or administratively attached agency, board, commission, or office of the department to the extent that specific procedures, such as those for child support enforcement and for information practices, are not otherwise provided.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-32 Docket

The director or the director's representative shall maintain a docket of all contested cases processed under this subchapter and not under other specific procedures and each case shall be assigned a number.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-33 Hearings; request for and scheduling

(a) A hearing on a contested matter shall be scheduled by the department on its own motion or upon the complaint or petition of any interested person or any agency of the state or county governments when the processing of a complaint or petition necessitates such a hearing.

(b) A complaint or petition by an aggrieved person or proper party or by an interested agency of the state or county governments requesting such a hearing shall contain concise statements of:

(1) the legal authority under which the proceeding, hearing, or action is to be held or made;

(2) the disagreement, denial, grievance, or matter that is being contested by the complainant or petitioner;

(3) the basic facts and issues raised; and

(4) the relief to which the party, complainant, or petitioner deems itself entitled. The department may prepare departmental forms that may be substituted for any complaint or petition which may be required for any authorized proceedings pursuant to law or rules.

(c) No hearing on a contested case shall be held until due notice is given to all parties as provided in sections 91-9 and 91-9.5, Hawaii Revised Statutes.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-34 Presiding officer of hearings; duties and powers

(a) The director shall conduct the hearings on a contested case, shall render the decision, and shall issue such orders and take such actions as may be required; provided that the director may designate a representative who shall be the presiding officer, conduct the hearings, and make recommendations in writing to the director, which recommendations shall include recommendations as to findings of fact and conclusions of law. The director shall then render the decisions as to findings of fact and conclusions of law and shall issue such orders and take such actions as may be further required.

(b) In all such hearings, the presiding officer shall have the power to give notice of the hearing, arrange for the administration of oaths, examine witnesses, certify to official acts, rule on offers of proof, receive relevant evidence, regulate the course and conduct of the hearing, including regulating the manner of any examination of a witness to prevent harassment or intimidation and ordering the removal of disruptive individuals, and perform such other duties necessary for the proper conduct of the hearings.

(c) Any rule of these rules of practice and procedure may be suspended or waived by the department or by the presiding officer, before whom the matter is heard, to prevent undue hardship in any particular instance.

(d) The presiding officer may engage the services of a stenographer, or someone similarly skilled, to take a verbatim record of the evidence presented at any hearing. If a verbatim record is taken, any party may request a certified transcript of the proceedings. The party making the request shall be responsible for the fees for the transcript.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-35 Disqualification of presiding officers

(a) A presiding officer shall be disqualified from deciding a contested matter if the presiding officer:

(1) Has a substantial financial interest, as defined by section 84-3, Hawaii Revised Statutes, in a business or other undertaking that will be directly affected by the decision of the contested case;

(2) Is related within the third degree by blood or marriage to any party to the proceeding or any party's representative or attorney;

(3) Has participated in the investigation preceding the institution of the contested case proceedings or has participated in the development of the evidence to be introduced in the hearing; or

(4) Has a personal bias or prejudice concerning a party that will prevent a fair and impartial decision involving that party.

(b) A presiding officer shall withdraw from further participation in the proceedings upon discovery of a disqualifying conflict of interest or bias if the factual circumstances are undisputed. If the allegation of a disqualifying conflict of interest or bias is not clearly substantiated, the presiding officer need not voluntarily withdraw and the party seeking the disqualification may file a motion to disqualify the presiding officer. The motion shall be filed and decided before the evidentiary portion of the hearing on the contested matter to be decided. If a presiding officer designated by the director is disqualified, the director shall designate another representative to serve as the presiding officer. If the disqualified presiding officer is the director, the director shall designate a representative to serve as the presiding officer whose findings of fact, conclusions of law, and decision and order shall be final and binding on the director without the director's review and concurrence, notwithstanding section 5-1-34(a).

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS §§ 84-14, 91-9)

Haw. Code R. § 5-1-36 Substitute presiding officers

If a presiding officer is absent from a scheduled hearing or is incapacitated from performance of duty, the director may designate another representative to serve as a substitute presiding officer without abatement of the proceedings.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-37 Communications with presiding officers

(a) No person shall communicate with the presiding officer regarding matters to be decided by the presiding officer with the intent, or the appearance of the intent, to influence the decision of the presiding officer, unless all of the parties to the proceedings are given notice of communication and an opportunity to also communicate with the presiding officer.

(b) If a communication is made privately with the presiding officer in violation of subsection (a), the presiding officer shall disclose the communication to all parties on the record of the proceedings and afford all parties [an opportunity] to respond to, refute, or otherwise comment on the exparte communication.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-38 Computation of time

In computing any period of time prescribed or allowed by these or other applicable rules or by order of the department, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday, in which event the period runs until the next day that is not a Saturday, a Sunday, or a holiday. Intermediate Saturdays, Sundays, and holidays shall be excluded in the computation when the period of time prescribed or allowed is seven days or less. As used in this section, "holiday" includes any day designated as such pursuant to section 8-1, Hawaii Revised Statutes.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-39 Filing of documents

(a) All pleadings, submittals, petitions, applications, charges, reports, maps, exceptions, briefs, memorandums, and other papers required to be filed in any proceeding, shall be filed with the director or as instructed by the director. Such papers may be sent by mail or hand-carried to the appropriate office of the department, within the time limit, if any, or as set forth in any statute or rule, for such filing. The date on which the papers are actually received by the department or at the hearing shall be deemed to be the date of filing.

(b) All papers filed with the department shall be written in ink, typewritten, mimeographed, or printed, shall be plainly legible, shall be on strong durable paper, not larger than § 8-1/2 by 11 inches in size except that tables, maps, charts, and other documents may be larger, but shall be folded to the size of the documents to which they are attached.

(c) All papers must be signed in ink by the party or a duly authorized agent or attorney. The signature shall constitute a certification that the party in interest has read the document; that to the best of the party's knowledge, information, and belief every statement contained in the document is true and no such statements are misleading; and that the document is not interposed for delay.

(d) Unless otherwise specifically provided by a particular rule or order of the department, an original and two copies of all papers shall be filed.

(e) The initial document filed by any person in any proceeding shall state on the document's first page the name and mailing address of the person or persons who may be served with any documents filed in the proceeding.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-40 Amendment of documents and dismissal

If any document initiating, or filed in, a contested case is not in substantial conformity with the applicable rules of the department as to the document's contents, or is otherwise insufficient, the department, on its own motion, or on motion of any party, may strike the document, or require its amendment. If amended, the document shall be effective as of the date of the original filing.

History

[Eff JAN. 13, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-41 Retention of documents by the department

All documents filed with or presented to the department shall be retained in the files of the department, except that the department may permit the withdrawal of original documents upon submission of properly authenticated copies to replace the original documents.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-42 Filed documents available for public inspection; exceptions

(a) Unless otherwise provided by statute, rule, or order of the department, all information contained in any pleading, submittal, petition, application, charge, statement, recommendation, report, map, exception, brief, memorandum, or other document filed with the department pursuant to the requirements of a statute or rule or order of this department shall be available for inspection by the public after final decision.

(b) Confidential treatment may be requested where authorized by statute. For good cause shown, the presiding officer shall grant such a request.

(c) When permitted or authorized, matters of public record may be inspected in the appropriate offices of the department during regular office hours.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-43 Appearances before the department

(a) An individual may appear in the individual's own behalf; a general partner may represent a partnership; a bona fide officer or employee of a corporation, trust, or association may represent the corporation, trust, or association; and an officer or employee of a governmental agency may represent that agency in any hearing.

(b) A person may be represented by an attorney or attorneys-at-law qualified to practice before the supreme court of Hawaii in any hearing under these rules.

(d) When an individual acting in a representative capacity appears in person before the department, the personal appearance or signature of the individual shall constitute a representation to the department that under the provisions of these rules and the law, the individual is authorized and qualified to represent the particular person on whose behalf the individual acts. The department may at any time require any person acting in a representative capacity to show proof of authority and qualification to act in that capacity.

History

[Eff. JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-44 Substitution of parties

Upon motion and for good cause shown, the presiding officer may order substitution of parties, except that in case of death of a party, substitution may be ordered without the filing of a motion.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-45 Consolidation

The presiding officer, upon the officer's own initiative or upon motion, may consolidate for hearing or for other purposes or may contemporaneously consider two or more proceedings that involve substantially the same parties, or issues that are the same or closely related, if the officer finds that the consolidation or contemporaneous hearing will be conducive to the proper dispatch of the business of the department and to the ends of justice and will not unduly delay the proceedings.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-46 Intervention

Applications to intervene in a proceeding shall comply with section 5-1-35 and shall be served upon all parties. Applications for intervention will be granted to persons properly seeking and entitled as of right to be admitted as a party; otherwise, at the discretion of the presiding officer, they may be denied. As a general policy, such applications shall be denied unless the petitioner shows that it has an interest in a question of law or fact involved in the contested matter.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-47 Prehearing conferences; exchange of exhibits; briefs

(a) The presiding officer may hold or cause to be held prehearing conferences with the parties for the purpose of formulating or simplifying the issues, arranging for the exchange of proposed exhibits or proposed written testimony, setting of schedules, exchanging names of witnesses, limitation of number of witnesses, and such other matters as may expedite orderly conduct and disposition of the proceeding as permitted by law.

(b) The presiding officer may request briefs setting forth the issues, facts, and legal arguments upon which the parties intend to rely and the presiding officer may fix the conditions and time for the filing of briefs and the number of pages. Exhibits may be reproduced in an appendix to a brief. A brief of more than twenty pages shall contain a subject index and table of authorities.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-48 Motions

(a) All motions other than those made during a hearing shall be made in writing to the presiding officer, shall state the relief sought, and shall be accompanied by an affidavit or memorandum setting forth the grounds upon which they are based. The presiding officer shall set the time for all motions and opposing memorandum, if any.

(b) The moving party shall serve a copy of all motions on all other parties at least forty-eight hours prior to the hearing on the motion and shall file with the presiding officer the original with proof of service.

(c) A memorandum in opposition or a counter affidavit shall be served on all parties not later than twenty-four hours prior to the hearing. The original and proof of service shall be filed with the presiding officer.

(d) Failure to serve or file a memorandum in opposition to a motion or failure to appear at the hearing shall be deemed a waiver of objection to the granting or denial of the motion.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-49 Evidence

(a) The presiding officer may exercise discretion in the admission or rejection of evidence and the exclusion of immaterial, irrelevant, or unduly repetitious evidence as provided by law with a view to doing substantial justice.

(b) The presiding officer shall rule on the admissibility of all evidence.

(c) When objections are made to the admission or exclusion of evidence, the grounds relied upon shall be stated briefly. Formal exceptions to rulings are unnecessary and need not be taken.

(d) An offer of proof for the record shall consist of a statement of the substance of the evidence to which objection has been sustained, or the submission of the evidence itself.

(e) With the approval of the presiding officer, a witness may read testimony into the record on direct examination. Before any prepared testimony is read, unless excused by the presiding officer, the witness shall deliver copies thereof to the presiding officer and all counsel parties. Admissibility shall be subject to the rules governing oral testimony. If the presiding officer deems that substantial savings in time will result, a copy of the prepared testimony may be received in evidence without reading; provided that copies of the prepared testimony shall have been served upon all parties and the presiding officer five days before the hearing to permit proper cross examination of the witnesses on matters contained in the prepared testimony.

(f) If relevant and material matter is offered in evidence in a document containing other matters, the party offering it shall designate specifically the matter so offered. If the other matter in the document would burden the record, at the discretion of the presiding officer, the relevant and material matter may be read into the record or copies of it received as an exhibit. Other parties shall be afforded opportunity at the time to examine the document, and to offer in evidence other portions believed material and relevant.

(g) Exhibits shall be prepared as follows:

(1) Documents, pleadings, correspondence, and other exhibits shall be legible and must be prepared on paper § 8-1/2 by 11 inches in size. Charts and other oversize exhibits must be bound or folded to the respective approximate size, where practical. Wherever practicable, sheets of each exhibit shall be numbered and data and other figures shall be set forth in tabular form.

(2) When exhibits are offered in evidence, the original and copies in the number specified by the presiding officer shall be furnished to the presiding officer for use, with adequate copies for review by other parties, unless the copies have been previously furnished or the presiding officer directs otherwise.

(h) If any matter contained in a document on file as a public record with the department is offered in evidence, unless directed otherwise by the presiding officer, the document need not be produced as an exhibit, but may be received in evidence by reference; provided that the particular portions of the document are specifically identified and otherwise competent, relevant, and material. If testimony in proceedings other than the one being heard is offered in evidence, a copy shall be presented as an exhibit, unless otherwise ordered by the presiding officer.

(i) Official notice may be taken of such matters as may be judicially noticed by the courts of the State of Hawaii. Official notice may also be taken of generally recognized technical or scientific facts when parties are given notice either before or during the hearing of the material so noticed and afforded the opportunity to contest the facts so noticed.

(j) At the hearing, the presiding officer may require the production of further evidence upon any issue. Upon agreement of the parties, the presiding officer may authorize the filing of specific documentary evidence as a part of the record within a fixed time.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9, 91-10)

Haw. Code R. § 5-1-50 Subpoena of witnesses before boards

(a) If the contested case is before a board under part II of chapter 92, Hawaii Revised Statutes, witnesses may be subpoenaed as set forth below:

(1) Requests for the issuance of subpoenas, requiring the attendance of a witness for the purpose of taking oral testimony before the board shall be in writing, and shall state the reasons why the testimony of the witness is believed to be material and relevant to the issues involved. Only parties or a board member may request the issuance of a subpoena.

(2) Request for the issuance of subpoenas for the production of documents or records shall be in writing, shall specify the particular document or record, or part thereof, desired to be produced, and shall state the reasons why the production of the particular document or record is believed to be material and relevant to the issues involved. Only parties or a board member may request the issuance of a subpoena ducestecum.

(b) Subpoenas may be issued by the presiding officer. No subpoena shall be issued unless the party requesting the subpoena has complied with this section giving the name and address of the desired witness and tendering the proper witness and mileage fees. Signed and sealed blank subpoenas shall not be issued to anyone. The name and address of the witness shall be inserted in the original subpoena, a copy of which shall be filed in the proceeding. Subpoenas shall state at whose request the subpoena is issued. Requests for subpoenas shall be filed not later than three days before the scheduled hearing.

(c) Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in circuit courts of the State of Hawaii and such fees and mileage shall be paid by the party at whose request the witness appears.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 92-16)

Haw. Code R. § 5-1-51 Continuances or extensions of time

Whenever a person or agency has a right or is required to take action within the period prescribed or allowed by this chapter, by notice given as prescribed by this chapter or by an order or rule, the presiding officer may (1) before the expiration of the prescribed period, with or without notice, extend such period; or (2) upon motion, permit the act to be done after the expiration of a specified period where the failure to act is reasonably shown to be excusable.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Haw. Code R. § 5-1-52 Service of decisions

All final orders, opinions, or rulings entered by the department in a hearing shall be served upon the parties or persons participating in the hearing by regular mail or personal delivery by the department.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-12)

Haw. Code R. § 5-1-53 Correction of transcript

Motions to correct the transcript shall be made within five days after receipt of the transcript and shall be acted upon by the presiding officer.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-9)

Subchapter 4 PROCEDURES FOR RULEMAKING

Haw. Code R. § 5-1-61 Petitions for adoption, amendment, or repeal of rules

(a) Any interested person or any agency of the state or county government may petition the department for the adoption, amendment, modification, or repeal of any rule which is designed to implement, interpret, or prescribe law, policy, procedure, or practice requirements of the department.

(b) Petitions for rulemaking action shall conform to the requirements of section 5-1-35. The petition shall set forth the text of the proposed rule or amendment desired or specify the rule the repeal of which is desired, state concisely the nature of the petitioner's interest in the subject matter and the reasons for seeking the adoption, amendment, or repeal of the rule, and include any facts, views, arguments, and data deemed relevant by the petitioner. The department may also require the petitioner to serve other persons or governmental agencies known to be interested in the proposed rulemaking. No request for the adoption, amendment, modification, or repeal of a rule that does not conform to the requirements set forth above shall be considered by the department.

(c) A petition for a change of rules shall be given a docket number and shall become a matter of public record upon filing. The department shall within thirty days following the filing of the petition either deny the petition in writing or initiate the rulemaking procedure. No public hearing, oral argument, or other form of proceedings, shall be held directly on any petition, but if the department determines that a petition discloses sufficient reasons in support of the relief requested to justify the institution of a public hearing, the procedures to be followed will be as set forth in sections 5-1-62 to 5-1-64. When the department determines that a petition does not disclose sufficient reasons to justify the institution of a public rulemaking action, or when the petition for a change of rules fails in material respect to comply with the requirements of these rules, the petitioner shall be so notified together with the grounds for such denial, or the department may request additional data and supporting authorities before proceeding on the petition. Failure on the part of the petitioner to furnish data or supporting authorities within the time specified in the request shall be deemed to be a withdrawal of the petition. The provisions of this section shall not operate to prevent the department, on its own motion, from acting on any matter set forth in any petition.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-6)

Haw. Code R. § 5-1-62 Notice of proposed rulemaking

When the department proposes to adopt, amend, or repeal an administrative rule, a notice of the proposed rulemaking action will be published, pursuant to section 91-3, Hawaii Revised Statutes, at least once in a newspaper of general circulation in the State and, pursuant to section 92-41, Hawaii Revised Statutes, at least once in a newspaper that is printed at least twice weekly in the county affected by the proposed rulemaking action. In addition, notice shall be mailed to all persons who make a timely request for advance notice of a rulemaking hearing.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS §§ 91-3, 92-41)

Haw. Code R. § 5-1-63 Conduct of hearing

(a) Each rulemaking hearing shall be presided over by the director or the director's representative. The hearing shall be conducted in such a way as to afford to any interested person a reasonable opportunity to be heard on matters relevant to the issues involved and so as to obtain a clear and orderly record. The presiding officer shall have authority to take all actions necessary for the orderly conduct of the hearing.

(b) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Testimony shall then be received with respect to the matters specified in the notice of hearing in such order as the presiding officer shall prescribe.

(c) All interested persons shall be given reasonable opportunity to offer testimony with respect to the matters specified in the notice of hearing. Every witness shall, before proceeding to testify, state the witness's name, address, and whom the witness represents at the hearing, and shall give such other information respecting the witness's appearance as the presiding officer may request. The presiding officer shall confine the testimony to the questions before the hearing. Every witness shall be subject to questioning by the presiding officer, but cross-examination by private persons shall not be permitted unless the presiding officer expressly permits it.

(d) All interested persons or agencies of the State or counties of the State will be afforded an opportunity to submit during the hearing data, views, or arguments that are relevant to the issues. In addition, or in lieu thereof, persons or agencies may also file with the department within five calendar days following the close of the hearing a written protest, other comments, or recommendations in support of or in opposition to the proposed rulemaking. Written protest, comments, or recommendations or replies thereto will not be accepted unless an original and two copies are filed. The period for filing a written protest, comments, or recommendations may be extended by the presiding officer for good cause.

(e) Unless otherwise specifically ordered by the presiding officer, testimony given at a rulemaking hearing need not be reported verbatim. All supporting written statements, maps, charts, tabulations, or similar data offered in evidence to the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, two copies of the exhibits shall be submitted.

(f) A rulemaking hearing shall be held at the time and place set in the notice of hearing, but the hearing may be continued by the presiding officer from day to day or adjourned to a later date or to a different place without notice other than the announcement of the continuation or adjournment during or at the end of the hearing held at the scheduled time and place.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-3)

Haw. Code R. § 5-1-64 Department action

At the close of the final public hearing, the presiding officer shall announce the decision, or the date when the decision is intended to be made.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-3)

Haw. Code R. § 5-1-65 Emergency rulemaking

Notwithstanding the foregoing rules, if the department finds that an imminent peril to public health, safety, or morals or to livestock and poultry health requires adoption, amendment, or repeal of a rule upon less than thirty days' notice of hearing, and states in writing its reason for such finding, it may proceed without prior notice or hearing or upon such abbreviated notice and hearing as it finds practicable to adopt an emergency rule to be effective for a period not longer than one hundred twenty days without renewal.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-3)

Subchapter 5 SPECIAL PROCEEDINGS

Haw. Code R. § 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 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 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.

History

[Eff JAN. 16, 1993] (Auth: HRS §§ 28-10.8, 91-2) (Imp: HRS § 91-8)

Chapter 11 NOTARIES PUBLIC

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 5-11-1 Purpose

This chapter is intended to clarify and implement chapter 456, Hawaii Revised Statutes (HRS), as amended, to the end that the provisions thereunder, for the protection of the general public, may best be effectuated and the public interest most effectively served.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-1.5 Definitions

As used in this chapter, unless the context requires otherwise:

"Affirmation" or "oath" means a solemn pledge made orally or in writing by a person to attest to the truth of the person's statement.

"Appear personally" means:

(1) Being in the same physical location as another person and close enough to see, hear, communicate with, and exchange proof of the signer's signature and identity with that person; or

(2) Interacting with a remotely located individual by means of communication technology that complies with the provisions of section 456-23, HRS, and this chapter.

"Conviction" means a formal judgment entered by a court based on a verdict or plea of guilty or a plea of nolo contendere.

"Department" means the department of the attorney general.

"Electronic notary seal" or "electronic seal" means an electronic image that contains information attached to or logically associated with an electronic record and that contains the notary public's name, the notary public's commission number, and the words

"notary public" and "State of Hawaii".

"Electronic signature" has the same meaning as in section 456-1.6, HRS.

"Identity proofing" has the same meaning as in section 456-23, HRS.

"Notarial act" has the same meaning as in section 456-1.6, HRS.

"Notary public" has the same meaning as in section 456-1.6, HRS.

"Person" means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Remote online notary public" has the same meaning as in section 456-23, HRS.

"Signature" has the same meaning as in section 456-1.6, HRS.

"Stamping device" has the same meaning as in section 456-1.6, HRS.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-2, 456-13, 456-22, 456-23, 456-24, 456-25)

Haw. Code R. § 5-11-2 Commission required to act as a notary public

No person shall act as a notary public, advertise or represent oneself as a notary public, or perform notarial acts, without a current commission obtained from the attorney general.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-3 Conduct

Every notary public shall perform notarial acts in accordance with chapter 456, HRS, this chapter, other laws in Hawaii, and official guidelines (e.g., Notary Manual) that pertain to notarial acts and shall follow recognized industry best practice standards that do not conflict with Hawaii law.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-7)

Haw. Code R. § 5-11-4 Powers

Every notary public shall take acknowledgments, administer oaths and affirmations, witness the signing of documents, attest to the identity of the signer of a document, note protests, and perform any other act permitted by chapter 456, HRS.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-10, 456-11, 456-13, 456-14, 456-17, 456-18, 456-19)

Haw. Code R. § 5-11-4.5 Prohibited acts

(a) A notary public shall not do any of the following:

(1) Refuse to perform a lawful and proper notarial act because of the race; sex, including gender identity or expression; sexual orientation; color; ancestry; nationality; ethnicity; religion; politics; advanced age; or disability, including the use of a service animal, of the person appearing before the notary public; or any disagreement with the statements or purpose of a document;

(2) Base the charging of a fee for performing a notarial act or the amount of the fee on the race; sex, including gender identity or expression; sexual orientation; color; ancestry; nationality; ethnicity; religion; politics; advanced age; or disability, including the use of a service animal, of the person appearing before the notarypublic; or any disagreement with the statements or purpose of a document;

(3) Notarize the notary public's own signature;

(4) Perform a notarial act if the notary public has an actual and apparent conflict of interest regarding the transaction in question;

(5) Deliver a signed notarial certificate to another person and authorize that person to attach the certificate to a document outside of the notary public's presence; or

(6) Provide legal advice, unless the notary public is an attorney licensed to practice law in this State.

(b) Nothing contained in this section shall be construed to limit or deny the enforcement of any provision of chapters 456 and 502, HRS, or this chapter.

(c) Nothing contained in subsection (a)(2) shall be construed to prohibit reducing or waiving a fee at the notary public's discretion, provided that doing so is not done for an unlawful or discriminatory purpose.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-1.5, 456-2, 456-9, 456-17, 456-22, 456-23, 456-24, 456-26)

Haw. Code R. § 5-11-5 Notary seal

(a) A notary public shall obtain and keep a rubber stamp notary seal that, when stamped or impressed upon a tangible document, shall clearly show the name of the notary public, the commission number of the notary public, and the words "notary public" and "State of Hawaii". The notary public shall not possess more than one rubber stamp notary seal at a time.

(b) The notary public shall authenticate all of the notary public's notarial acts, attestations, certifications, and instruments with the notary public's notary seal contemporaneously with the performance of the notarial act, as prescribed by chapter 456, HRS.

(c) The rubber stamp notary seal of every notary public shall be a circular, rubber stamping device with a serrated or milled edge border between one inch and two inches in diameter and shall include the required wording and information specified in subsection (a).

(d) The notary public shall safeguard and maintain sole control of the notary seal.

(e) The notary public shall surrender the rubber stamp notary seal to the attorney general within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal. Failure to comply with this requirement may result in an administrative fine of $200.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-3)

Haw. Code R. § 5-11-6 Official signature

(a) A notary public shall sign on every notarial certificate, at the time of notarization, the notary public's official signature as filed with the clerk of the circuit court in the circuit in which the notary public resides and as the notary public's name appears on the notary public's notary seal.

(b) The notary public shall always add to the notary public's official signature the typed or printed name of the notary public and a statement indicating the date of expiration of the notary public's commission.

History

[Eff WAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-3)

Haw. Code R. § 5-11-7 Acceptable forms of identification of signers

A notary public shall not perform a notarial act unless there is proof of the signer's signature and identity as defined in section 456-1.6, HRS, or as otherwise provided in sections 5-11-69 and 5-11-70.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-15)

Haw. Code R. § 5-11-8 Acknowledgments; jurats

Every acknowledgment or jurat shall be evidenced by a certificate signed and dated by a notary public contemporaneously with the performance of the notarial act, as prescribed by chapter 456, HRS. The certificate shall include the printed name of the notary public, the expiration date, the notary seal of the notary public, and identification of the jurisdiction in which the notarial act is performed.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.3, 456-8) (Imp: HRS § 456-15)

Haw. Code R. § 5-11-9 Journal

(a) A notary public shall create, maintain, and retain a journal in which the notary public chronicles all notarial acts performed by the notary public in accordance with the requirements of section 456-15, HRS, and this chapter.

(b) The tangible journal shall be bound with a soft cover and shall not exceed eleven inches in height and sixteen and one-half inches in width when fully opened.

(d) The notary public shall always provide and print legibly on the information page of each tangible journal the notary public's name, business address, commission number, commission expiration date, journal number, and the beginning and ending dates of the notarial acts recorded in that journal.

(e) The notary public shall always print legibly the notary public's name on the top left corner and the notary public's commission number on the top right corner of each set of pages of transactions in each tangible journal.

(f) The notary public shall retain the notary public's journal for ten years after the performance of the last notarial act chronicled in the journal. The notary public shall provide to the attorney general the location of the journal upon resignation from, or revocation, abandonment, or suspension of the notary public's commission, or the expiration of a commission without renewal. At any time, the journal shall be subject to an audit pursuant to section 45615, HRS. Failure to comply with this requirement may result in an administrative fine of no less than $50 and no more than $500.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-15, 456-16)

Haw. Code R. § 5-11-10 Notification and filing of names, addresses, and changes; failure to notify

(a) Each notary public shall file with the attorney general the notary public's name, employer, residence and business addresses, telephone numbers, email address, and occupation and shall notify the attorney general of any change, in writing, within thirty days of the change.

(b) The notice from the notary public of the notary public's name change shall state the old and new names and the effective date of the notary public's name change and shall include a copy of the legal documentation recording the name change and the new signature of the notary public.

(c) The notice from the notary public of the notary public's address change shall state the old and new addresses of the notary public's residence, if there is a change in the notary public's residence address, the old and new addresses of the notary public's business, if there is a change in the notary public's business address, and the effective date of the notary public's address change.

(d) Failure to provide timely written notification to the attorney general of any change shall subject the notary public to a $25 administrative fine. Failure to provide timely written notification to the attorney general of any change of address that results in renewal forms being mailed to an incorrect address shall subject the notary public to a $50 administrative fine.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-10.5 Notification of status change

(a) Each notary public or the notary public's representative or guardian shall notify the attorney general in writing of an adjudication of the notary public's incompetency within thirty days of the adjudication.

(b) Each notary public shall notify the attorney general in writing of a criminal conviction against the notary public of any felony, or a misdemeanor related to the qualifications, functions, or duties of the notary public or involving fraud, false statements or omissions, wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses.

(c) Each notary public shall notify the attorney general in writing of any professional disciplinary decision issued against the notary public in this or another jurisdiction within thirty days of the disciplinary decision.

(d) Failure to provide timely written notification to the attorney general of any change, as prescribed under this section, shall subject the notary public to an administrative fine of $25 per violation.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-9)

Haw. Code R. § 5-11-11 Repealed

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-12 Term of commission

The term of commission of a notary public shall be four years from the date of the notary public's commission, unless sooner terminated by the notary public's resignation, death, or abandonment of commission, or revoked or suspended by action of the attorney general. Any notarial act performed after the termination, revocation, or suspension of a commission shall be invalid.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-13 Forfeited commission

(a) The commission of a notary public is forfeited if the notary public knowingly fails to submit a completed renewal application, pay the renewal fee, or complete the processing and filing of a commission for renewal by the date of expiration of the notary public's commission. A failure to renew shall be deemed knowingly if notice of renewal is sent to the last address on file for the notary public and the notary public fails to complete all the requirements of this subsection.

(b) Any person seeking to restore the person's forfeited commission more than one year from the date of expiration of the commission shall reapply as a new applicant for a notary public commission.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-14 Suspended commission

No commission shall be suspended by the attorney general for a period exceeding five years. A person whose commission has been suspended may apply for reinstatement of the commission upon complete compliance with all terms and conditions imposed by the order of suspension. The application for reinstatement shall be accompanied by all applicable fees. If the person fails to file for reinstatement within thirty days after the end of suspension, the person's commission shall be forfeited.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-15 Revoked commission

A person may apply for a new commission after five years from the effective date of the revocation of the commission by filing an application and complying with all current requirements for new applicants.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-16 Resignation of commission

(a) A notary public may resign the notary public's commission, and shall:

(1) Surrender the notary public's commission certificate and rubber stamp notary seal as provided in sections 5-11-5(e) and 5-11-17(a) and provide to the attorney general the location of the journal as provided in section 5-11-9(f); and

(2) Cease conducting all notarial services.

(b) The resignation or surrender shall not bar jurisdiction by the attorney general to proceed with any investigation, action, or proceeding to revoke, suspend, condition, or limit the notary public's commission or fine the notary public.

(c) A person may obtain a new commission by successfully applying as a new applicant should the person desire to engage in any notarial services.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-17 Surrender of notary public commission certificate and notary seal; retention of journal; failure to comply

(a) Within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, the notary public shall:

(1) Surrender the notary public's commission certificate, including the remote online notary public's commission certificate, if applicable, to the attorney general for the purpose of destruction;

(2) Surrender the notary public's rubber stamp notary seal to the attorney general for the purpose of defacement; and

(3) Retain, or cause to be retained, the notary public's journal and inform the attorney general of the location of the journal.

(b) Upon the death of a current notary public, the notary public's employer, personal representative, or any other person knowingly in possession of the notary public's certificate or notary seal shall within ninety days fulfill the requirements of subsection (a) (1) and (2).

(c) Upon the death of a current or former notary public, the notary public's employer, personal representative, or any other person knowingly in possession of the notary public's journal shall transmit the journal to the attorney general or a repository approved by the attorney general as provided in section 456-15(h), HRS, and notify the attorney general of the location of the repository.

(d) Failure to comply with subsection (a)(2) may result in an administrative fine of not more than $200. Failure to comply with subsection (a)(3) or (c) may result in an administrative fine of no less than $50 and no more than $500. Failure to comply with any paragraph of subsection (a) shall preclude the reissuance of a notary public's commission. Strict compliance with subsection (a) shall be a condition for the reissuance of a notary public's commission.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-1, 456-3, 456-7, 456-16)

Haw. Code R. § 5-11-18 Loss, misplacement, or theft of notary public certificate, notary seal, or journal

Within ten days after loss, misplacement, or theft of the notary public's notary seal or journal or both, a notary public shall transmit written notification to the attorney general of the loss, misplacement, or theft. The notary public also shall inform the appropriate law enforcement agency in the case of theft and deliver a copy of the law enforcement agency's report of the theft to the attorney general. Failure to comply with this section shall result in an administrative fine of $20.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-3, 456-16)

Subchapter 2 APPLICATIONS

Haw. Code R. § 5-11-21 Application for notary public commission

(a) Each applicant for a notary public commission shall complete and file an application with the attorney general. A completed application shall include:

(1) A non-refundable application fee;

(2) A letter of character recommendation from a person residing in this State, who is not a relative or an employer of the applicant and who can attest to the applicant's honesty, trustworthiness, financial integrity, and moral character; and

(3) A letter of justification from the applicant's employer or, if the applicant is self-employed, from the applicant, explaining in detail the reasons why the commission is being sought.

(b) The application may require the applicant to provide the following:

(1) The applicant's legal name;

(2) Verification that the applicant is at least eighteen years of age;

(3) The applicant's current residence, business, mailing, and email addresses;

(4) The date and place of a conviction of any felony, or a misdemeanor related to the qualifications, functions, or duties of a notary public or involving fraud, false statements or omissions, wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses;

(5) Proof that the applicant is a United States citizen, a United States national, or an alien authorized to work in the United States;

(6) Proof of the applicant's identity by a current government-issued photo identification; and

(7) Proof that the applicant is a resident of the State;

(8) Proof that the applicant has executed an official surety bond that has been approved by a judge of the circuit court;

(9) Any other information the attorney general may require to investigate the applicant's qualifications for a notary public commission.

(c) When an application is made for a commission as a government notary public, the application shall be accompanied by a letter of justification from the head of every department (which includes any department, board, commission, bureau, or establishment of the United States, the State, or any political subdivision thereof) where the applicant is employed and shall designate the applicant to perform, without charge, the services of a notary public in all matters of business pertaining to the business of the governmental entity employing the applicant.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 56-1, 456-2, 456-9, 456-18)

Haw. Code R. § 5-11-22 Action on application

(a) Unless otherwise provided by law, the attorney general shall take the following actions within six months after the filing of a complete application for a commission:

(1) If the attorney general deems appropriate, conduct an investigation of the applicant; and

(2) After completing any necessary investigation, provide written notification to the applicant of the status of the application for a commission. If the application is denied, written notification of the denial shall state the reason for denying the application and shall inform the applicant of the right to a hearing in accordance with chapter 91, HRS, and chapter 5-1.

(b) An application may be considered abandoned if the application is not completed and the required documents and other information are not submitted to the attorney general within ninety days from the date the application is first filed with the attorney general. The attorney general shall not be required to act on any abandoned application, and the abandoned application may be destroyed by the attorney general.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 28-10.8, 91-13.5, 456-8)

Haw. Code R. § 5-11-23 Application for renewal of notary public commission

(a) Each notary public shall be responsible for timely renewing the notary public's commission and satisfying the renewal requirements provided by law. A completed renewal application received by the attorney general within sixty calendar days prior to the expiration of the notary public's current commission shall be considered timely filed.

(b) At the time of commission renewal, each notary public shall submit a completed renewal application, pay all applicable fees, and comply with any other requirement provided by law.

(c) The failure to timely renew a commission, the failure to pay all applicable fees, the dishonoring of any check upon first deposit, or the failure to comply with any other requirement may cause the commission to be automatically forfeited.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-1, 456-2, 456-9, 456-18)

Subchapter 3 EXAMINATIONS

Haw. Code R. § 5-11-32 Examination

(a) No notary public commission shall be issued to any person unless the person pays the examination fee and takes and passes a written examination as prescribed by the attorney general. The minimum passing score is eighty per cent. Failure to obtain a passing score shall result in failure of examination, and no commission shall be issued.

(b) The applicant shall take the examination on the date specified on the notification of approval of the application for a commission and of the scheduled examination date. Failure to take the notary public examination on the scheduled examination date without advance notice, as follows, to the attorney general to reschedule the examination shall require that the applicant submit a new application for a notary public commission with updated supporting letters and also pay a $25 no-show examination fee. The fee to reschedule an examination shall be $15 if an applicant requests to reschedule more than forty-eight hours before the examination. The fee to reschedule an examination shall be $20 if the applicant requests to reschedule less than forty-eight hours before the examination.

(d) The attorney general shall notify an applicant in writing of the examination result within thirty calendar days of the examination.

(e) An applicant who fails to attain a passing score may take a reexamination without submitting a new application, provided that the applicant requests, pays the examination fee, and reschedules a reexamination within fourteen calendar days from the date of the notification of the applicant's failure to attain a passing score on the first examination. If the applicant fails to request, pay for, and reschedule a reexamination within the fourteen calendar days, the applicant shall submit a new application and pay the applicable application and examination fees.

(f) An applicant who fails the examination twice shall wait ninety days from the date of the last examination to reapply for a notary public commission.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS §§ 456-1, 456-7, 456-8)

Haw. Code R. § 5-11-33 Examination subject matter

The examination shall test whether applicants have a reasonable knowledge of the general principles and practices of notarial acts, and the laws and rules pertaining to notaries public, including chapter 456, HRS, sections 502-41 to 502-74, HRS, and this chapter.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1, 456-7)

Subchapter 4 DISCIPLINARY SANCTIONS

Haw. Code R. § 5-11-39 Grounds for refusal to renew, reinstate, or restore, and for revocation, suspension, denial, or condition of commissions

In addition to any other acts or conditions provided by law, the attorney general may refuse to renew, reinstate, or restore, or may revoke, suspend, or deny a commission of any applicant or notary public who violates any of the provisions of chapter 456, HRS, and this chapter, and may seek administrative fines for each occurrence or otherwise discipline a former or current notary public for any cause authorized by law, including but not limited to the following:

(1) Failing to meet and sustain the conditions and requirements necessary to maintain a commission;

(2) Submitting an application for a new commission, renewed commission, restoration of a forfeited commission, or reinstatement of a suspended commission that contains a false statement, an omission of fact, or a substantial misstatement;

(3) Failing to complete the processing of the notary public's commission by filing the notary public's commission with the clerk of the circuit court of the judicial circuit in which the notary public resides;

(4) Failing to maintain a business or residence address in the State while practicing as a notary public in the State;

(5) Being incapable of reading, writing, or speaking the English language with understanding;

(6) Allowing the notary public's name or title to be used deceptively, fraudulently, or in false or misleading advertising, or making untruthful or improbable statements;

(7) Being addicted to, dependent on, or a habitual user of a narcotic, barbiturate, amphetamine, hallucinogen, opium, or cocaine, or other drugs or derivatives of a similar nature;

(8) Practicing as a notary public while the ability to practice is impaired by alcohol, drugs, or mental instability, or substantially impaired by physical disability;

(9) Procuring a commission through fraud, misrepresentation, or deceit;

(10) Professional misconduct, incompetence, gross negligence, or manifest incapacity in the practice of a notary public;

(11) Failure to maintain a record or history of competency, trustworthiness, fair dealing, and financial integrity;

(12) Engaging in business under a past or present commission issued pursuant to the notary public laws, in a manner causing injury to one or more members of the public;

(13) Failure to comply with, observe, or adhere to any law in a manner such that the attorney general deems the holder of a notary public commission to be unfit or an improper person to hold a commission;

(14) Revocation, suspension, restriction, or denial of a professional license or notary public commission if that action was for misconduct, dishonesty, or any cause that relates to the duties or responsibilities of a notary public;

(15) Criminal conviction, whether by nolo contendere or otherwise, of any felony, or a misdemeanor related to the qualifications, functions, or duties of a notary public or involving theft, fraud, dishonesty, or false statement;

(16) Failure to report in writing to the attorney general any disciplinary decision issued against the notary public or the applicant in this jurisdiction or another jurisdiction within thirty days of the disciplinary decision; and

(17) Violating this chapter, the applicable laws governing notaries public, or any rule or order of the attorney general.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1, 456-1)

Haw. Code R. § 5-11-40 Forfeited commission

(b) Any person seeking to restore the person's forfeited commission more than one year from the date of expiration of the commission shall reapply as a new applicant for a notary public commission.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-24)

Haw. Code R. § 5-11-41 Suspended commission

A notary public commission may be suspended by the attorney general for a period not exceeding ten years. A person whose commission has been suspended pursuant to section 511-39 may apply for reinstatement of the commission upon strict compliance with all terms and conditions imposed by the order of suspension. The application for reinstatement shall be accompanied by all applicable fees. If the person fails to file for reinstatement within thirty days after the end of suspension, the person's commission shall be forfeited.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-24)

Haw. Code R. § 5-11-42 Revoked commission

A person whose commission is revoked pursuant to section 5-11-39 may apply for a new commission, unless the revocation is permanent, after five years from the effective date of the revocation of the commission by filing an application and complying with all current requirements for new applicants.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-24)

Subchapter 5 FEES AND ADMINISTRATIVE FINES

Haw. Code R. § 5-11-46 Fees and administrative fines

(a) Pursuant to section 456-9, HRS, the attorney general shall charge and collect the following fees, which shall be nonrefundable:

(1) Application for notary public commission, $2 0;

(2) Application for renewal of notary public commission, $20;

(3) Application for restoration of forfeited commission, $10;

(4) Application for reinstatement of suspended commission, $10;

(5) Issuance of notary public commission, $100;

(6) Renewal of notary public commission, $100;

(7) Each examination, $10;

(8) Administrative fee to process and catalogue notary public journals, $10;

(9) Restoration of forfeited commission, $80;

(10) Change in name, employer, residential, or business address, telephone number, or judicial circuit, $10;

(11) Notary public manual, $3 if the manual is picked up at the notary public office or $5 if the manual is to be mailed;

(12) Certification of each notarial transaction from a notary public's journal in the disposition of the attorney general, $5 per notarial transaction;

(13) Copying, per printed page, 25 cents;

(14) Replacement commission certificate, $10;

(15) Request to reschedule examination more than forty-eight hours before the examination, $15;

(16) Request to reschedule examination less than forty-eight hours before the examination, $2 0;

(17) Administrative fee to process returned documents from the court, $15;

(18) Application for remote online notary public commission, $20;.

(19) Application for renewal of remote online notary public commission, $20;

(20) Issuance of remote online notary public commission, $100;

(21) Renewal of remote online notary public commission, $100;

(22) Administrative fee to process and catalogue audiovisual recordings, $10; and

(23) Any other fees or charges referenced in chapter 456, HRS, or this chapter.

(b) The attorney general may impose and collect the following administrative fines for each occurrence of the following:

(1) Failure to timely notify the attorney general of change of any item specified in section 5-11-10, $25 per occurrence;

(2) Failure to timely notify the attorney general of change of address that results in mailing of renewal forms to incorrect address, $5 0;

(3) Failure to timely notify the attorney general of loss, misplacement, or theft of the notary public's notary seal or journal, $20;

(4) Failure to appear at the examination without request or notification to reschedule examination received prior to the time of the examination, $25;

(5) Failure to pick up commission certificate from the attorney general within sixty days of notification from the attorney general of the availability of the certificate, $40;

(6) Failure to surrender the notary public's rubber stamp notary seal to the attorney general within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, $200;

(7) Failure to surrender the notary public's commission certificate to the attorney general within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, $2 00;

(8) Failure to destroy or disable the remote online notary public's electronic stamping device and to submit a declaration to the attorney general within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal that the electronic stamping device was destroyed or disabled, $200;

(9) Possessing more than one rubber stamp notary seal at a time, $200;

(10) Failure to retain the notary public's journal for ten years after the performance of the last notarial act chronicled in the journal, no less than $50 and no more than $500;

(11) Failure to comply with the audit or inspection of the notary public's journal by the attorney general, no less than $50 and no more than $500;

(12) Failure to inform the attorney general of the location of the notary public's journal, no less than $50 and no more than $500;

(13) Failure to transmit the notary public's journal to the attorney general or a repository approved by the attorney general upon the notary public's death, no less than $50 and no more than $5 00;

(14) Failure to timely notify the attorney general of the notary public's status change as required by section 5-11-10.5, $25; and

(15) Any other administrative fines referenced in chapter 456, HRS, or this chapter.

(c) All fees and administrative fines prescribed by this chapter shall be deposited to the credit of the department of the attorney general's notaries public revolving fund.

(d) All unpaid fees and administrative fines shall constitute a debt due and owing to the State.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-9)

Subchapter 6 PRACTICE AND PROCEDURE

Haw. Code R. § 5-11-51 Administrative practice and procedure

The rules of practice and procedure for notaries public shall be as provided in chapter 5-1, the rules of practice and procedure for administrative process of the department of the attorney general.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-52 Notification of denial of application for commission or renewal, or of proposed disciplinary action

In the event an application for commission or renewal is denied, or a notary public is to be disciplined, the attorney general shall provide written notification to the applicant or notary public of the attorney general's intended action, which shall include a concise statement of the reasons therefor and a statement informing the applicant or notary public of the right to a hearing if the applicant or notary public so desires.

History

[Eff MAY 05 2008] (Auth: HRS § 456-1) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-53 Demand for a hearing

Any person whose application is denied, or notary public who is to be disciplined by the attorney general, shall be entitled to a hearing if a demand for hearing is filed with the attorney general within sixty days of the date of the letter informing the applicant or notary public of the denial of application, or intent to discipline the notary public, respectively.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 91-9, 456-8) (Imp: HRS § 456-1)

Haw. Code R. § 5-11-54 Proceedings upon demand for a hearing

If a demand for a hearing is filed within sixty days of the date of the denial or intent to discipline, the attorney general shall order a hearing pursuant to chapter 91, HRS, and chapter 5-1.

History

[Eff MAY 05 2008] (Auth: HRS §§ 28-10.8, 91-9, 456-8) (Imp: HRS §§ 91-13.1, 456-1)

Haw. Code R. § 5-11-55 Exceptions

If any requirement of this chapter results in undue hardship for the applicant or notary public, the attorney general may, upon written request from the applicant or notary public, grant an exception to that requirement if the attorney general determines such action to be in the best interest of the State.

History

[Eff MAY 05 2008] (Auth HRS §§ 28-10.8, 456-6) (Imp: HRS § 456-1)

Subchapter 7 REMOTE ONLINE NOTARIZATION

Haw. Code R. § 5-11-61 Authority to perform remote online notarization

No person shall perform notarial acts for remotely located individuals or advertise or represent oneself as a notary public who is able to do so, without a current commission as a remote online notary public obtained from the attorney general.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.88, 456-1.5, 456-8, 456-23) (Imp: HRS § 456-24)

Haw. Code R. § 5-11-62 Application for a remote online notary public commission

(a) Only a notary public with an active commission may apply for a remote online notary public commission.

(b) Each applicant for a remote online notary public commission shall complete and file with the attorney general an application for commission of remote online notary public. In addition to the information required under section 5-11-21(b), a completed application shall include:

(1) A non-refundable application fee;

(2) The applicant's email address;

(3) The applicant's notary public commission number;

(4) A description of the communication technologies and devices that the applicant intends to use to perform remote online notarization;

(5) The name, address, and website address of any vendors or other persons that will directly supply to the notary public the technologies and devices that the notary public intends to use;

(6) A description of the data storage methods to maintain a secure backup of electronic journals and audiovisual recordings;

(7) A statement certifying that the applicant has obtained a digital certificate from a qualified certificate authority or a trusted service provider to be used by the applicant in performing remote online notarizations; and

(8) A statement of compliance that the technologies named in the application are fully compliant with chapter 456, HRS, and this chapter.

(c) If, during the term of a remote online notary public's commission, the remote online notary public intends to use the technologies or devices of a vendor or person other than those identified in the application submitted under subsection (b), the remote online notary public shall notify the attorney general identifying such other business or other person as required by this section.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-24, 456-25)

Haw. Code R. § 5-11-63 Action on application for remote online notary public commission

(a) Unless otherwise provided by law, the attorney general shall take the following actions within six months after the filing of a complete application for a commission as an online notary public:

(1) If the attorney general deems appropriate, conduct an investigation of the applicant; and

(b) An application may be considered abandoned if the application is not completed and the required documents and other information are not submitted to the attorney general within ninety days from the date the application is first filed with the attorney general. The attorney general shall not be required to act on any abandoned application and the abandoned application may be destroyed by the attorney general.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS § 456-24)

Haw. Code R. § 5-11-64 Remote online notary public examination

No remote online notary public commission shall be issued to any notary public unless the notary public pays the examination fee and takes and passes an examination specific to notarization of remotely located individuals as prescribed by the attorney general and pursuant to the requirements of section 5-11-32.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS § 456-24)

Haw. Code R. § 5-11-65 Remote online notary public commission

The attorney general shall commission a notary public to perform remote online notarization, provided that no remote online notary public commission shall be in effect, nor shall a notary public perform remote online notarization unless, in addition to the requirements of sections 5-11-62 and 5-11-64, the notary public:

(1) Files a literal or photostatic copy of the notary public's remote online notary public commission issued by the attorney general with the clerk of the circuit court of the circuit in which the remote online notary public resides within thirty days of the receipt of the commission; and

(2) Submits to the attorney general a tangible copy of the notary public's electronic seal and electronic signature.

History

[Eff and comp 2/27/2022] (Auth: §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS § 456-24)

Haw. Code R. § 5-11-66 Term of commission as remote online notary public

A remote online notary public's commission to perform notarial acts for remotely located individuals shall expire on the same date as the notary public's commission.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-1, 456-24)

Haw. Code R. § 5-11-67 Application for renewal of remote online notary public commission

(a) Each remote online notary public shall be responsible for timely renewing the remote online notary public's commission and satisfying the renewal requirements provided by law. A completed renewal application to perform remote online notarial acts received by the attorney general within sixty calendar days prior to the expiration of the notary public's current commission shall be considered timely filed.

(b) At the time of commission renewal as a remote online notary public, each remote online notary public shall submit a completed renewal application, pay all applicable fees, and comply with any other requirement provided by law.

(c) The failure to timely renew a commission as a remote online notary public, the failure to pay all applicable fees, the dishonoring of any check upon first deposit, or the failure to comply with any other requirement may cause the commission to be automatically forfeited.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-24, 456-25)

Haw. Code R. § 5-11-68 Means of performing a remote online notarial act

(a) A remote online notary public located in the State may perform a notarial act for remotely located individuals only if the remotely located individual personally appears before the remote online notary public at the time of the notarization.

(b) A remotely located individual may comply with the requirement to appear personally before a remote online notary public by appearing before the remote online notary public by means of communication technology.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS § 465-23)

Haw. Code R. § 5-11-69 Identity proofing

(a) If a remote online notary public does not have satisfactory evidence of the identity of a remotely located individual, the remote online notary public shall reasonably verify the remotely located individual's identity through two different types of identity proofing consisting of a multi-factor authentication procedure as provided in this section. The procedure shall analyze the remotely located individual's identity credential against trusted third-person data sources, bind the remotely located individual's identity to the remotely located individual following successful knowledge-based authentication, and permit the remote online notary public visually to compare the identity credential and the remotely located individual.

(b) The analysis of the identity credential and the knowledge-based authentication shall conform to the following requirements:

(1) Credential analysis. The analysis of an identity credential shall use public or private data sources to confirm the validity of the identity credential presented by a remotely located individual and shall, at a minimum:

(A) Use automated software processes to aid the remote online notary public in verifying the identity of each remotely located individual;

(B) Require that the identity credential passes an authenticity test, consistent with sound commercial practices that use appropriate technologies to confirm the integrity of visual, physical, or cryptographic security features and to confirm that the identity credential is not fraudulent or inappropriately modified;

(C) Use information held or published by the issuing source or an authoritative source, as available and consistent with sound commercial practices, to confirm the validity of personal details and identity credential details; and

(D) Enable the remote online notary public visually to compare for consistency the information and photograph on the identity credential and the remotely located individual as viewed by the remote online notary public in real time through communication technology; and

(2) Knowledge-based authentication. A knowledge-based authentication is successful if it meets the following requirements:

(A) The remotely located individual shall answer a quiz consisting of a minimum of five questions related to the remotely located individual¹s personal history or identity formulated from public or private data sources;

(B) Each question shall have a minimum of five possible answer choices;

(D) All questions shall be answered within two minutes;

(E) If the remotely located individual fails the first attempt, the remotely located individual may retake the quiz one time within twenty-four hours;

(F) During a retake of the quiz, a minimum of forty per cent of the prior questions shall be replaced;

(G) If the remotely located individual fails the second attempt, the remotely located individual is not allowed to retry with the same remote online notary public within twenty-four hours of the second failed attempt; and

(H) The remote online notary public shall not be able to see or record the questions or answers.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-20, 456-23)

Haw. Code R. § 5-11-70 Other methods of identity verification

A remote online notary public has satisfactory evidence of the identity of a remotely located individual if the remote online notary public has personal knowledge, as defined in paragraph (1), of the identity of the remotely located individual or if the remote online notary public has satisfactory evidence of the identity of the remotely located individual by oath or affirmation of a credible witness, as defined in paragraph (2), appearing before the remote online notary public.

(1) Personal knowledge. A remote online notary public has personal knowledge of the identity of the remotely located individual appearing before the remote online notary public if the remotely located individual is personally known to the remote online notary public through dealings sufficient to provide reasonable certainty that the remotely located individual has the identity claimed; or

(2) Credible witness. To be a credible witness, the witness shall have personal knowledge of the remotely located individual who has made a statement in or executed a signature on the record that is the subject of the notarial act. The remote online notary public shall have personal knowledge of the credible witness or shall have verified the identity of the credible witness under section 5-11-69. A credible witness may be a remotely located individual if the remote online notary public, credible witness, and remotely located individual whose statement or signature is the subject of the notarial act can communicate by using communication technology.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 45623) (Imp: HRS §§ 456-20, 456-23)

Haw. Code R. § 5-11-71 Standards for communication technology

(a) A remote online notary public may not perform a notarial act for a remotely located individual unless the technology identified by the remote online notary public satisfies all of the following:

(1) Provides continuous synchronous audiovisual feeds;

(2) Provides sufficient video resolution and audio clarity to enable the remote online notary public and remotely located individual to see and speak with each other simultaneously through live, real-time transmission;

(3) Provides sufficient captured-image resolution for identity proofing;

(4) Provides a means of authentication that reasonably ensures only authorized parties have access to the audiovisual record of the performed notarial act;

(5) Provides for the recording of the remote online notarial act in compliance with this chapter in sufficient quality to ensure the verification of the remote online notarial act;

(6) Ensures that any change to or tampering with an electronic record is evident after the electronic notary signature and notary seal have been affixed and the remote online notarial act has been;

(7) Provides confirmation that the electronic record presented is the same electronic record notarized;

(8) Provides the notary public with a means of electronically affixing the notary public's notary seal, signature, and notarial certificate to the notarized document based on an electronic technology standard that utilizes public key infrastructure (PKI) technology from a PKI service provider that is X.50 9 compliant;

(9) Provides an electronic-format notary journal that complies with the provisions of chapter 456, HRS, and this chapter to document the remote online notarial acts;

(10) Provides that if a remotely located individual shall exit the workflow or if the workflow is interrupted for any reason, the remotely located individual shall restart the identity verification process under section 5-11-69 or 5-11-70 from the beginning; and

(11) Provides security measures the attorney general deems reasonable to prevent unauthorized access to:

(A) The live transmission of the audiovisual communication;

(B) A recording of the audiovisual communication;

(D) The electronic records presented for online notarization; and

(E) Any personally identifiable information used in the identity proofing.

(b) The online notary public shall immediately cease performing remote online notarial acts and notify the attorney general if:

(1) The technology no longer permits the remote online notary public to meet the requirements of chapter 456, HRS, or this chapter;

(2) The vendor ceases to provide the technology, which met the requirements of this section;

(3) The vendor has failed to protect from unauthorized access any information it is required to protect under chapter 456, HRS, this chapter, or any other laws in Hawaii; or

(4) Any other grounds that may materially affect the ability of notaries public to meet the requirements of Hawaii law.

History

[Eff and comp 2/27/2022] (Auth: §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-9, 456-23, 456-25)

Haw. Code R. § 5-11-72 Electronic signature and electronic notary seal; electronic stamping device; electronic notarial certificate

(a) In addition to the rubber stamp notary seal required for all notaries public pursuant to section 456-3, HRS, and section 5-11-5, a remote online notary public shall obtain and keep one or more electronic stamping devices. An electronic stamping device shall consist of a digital certificate complying with the X.509 standard adopted by the International Telecommunication Union. A remote online notary public shall attach or logically associate the remote online notary public's electronic signature and electronic notary seal to an electronic document that is the subject of a notarial act for a remotely located individual by use of a digital certificate. A remote online notary public may not perform a notarial act for a remotely located individual if the digital certificate:

(1) Has expired;

(2) Does not comply with section 5-11-71;

(3) Is invalid; or

(4) Is incapable of authentication at the time the notarial act is performed.

(b) Prior to the application of a digital certificate on an electronic document, the remote online notary public shall apply their electronic signature, notarial certificate, and electronic notary seal, that, when logically associated with an electronic document, shall contain the name of the notary public, the commission number of the notary public, and the words "notary public" and "State of Hawaii".

(c) The remote online notary public shall use technology from a third-party provider of the communication technology for an electronic stamping device, electronic signature, electronic notary seal, and electronic notarial certificate.

(d) The electronic notarial certificate shall comply with sections 456-21 and 456-23, HRS, the form of certificate provided in section 502-41, HRS, if applicable, or the form of certificate provided by other applicable law, and this chapter, and shall indicate that the notarial act was performed using communication technology.

(e) A remote online notary public shall safeguard and maintain sole control of the remote online notary public's electronic notary seal and electronic stamping device by means of use of a password or other secure method of authentication.

(f) Upon resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal, the remote online notary public shall destroy or disable the remote online notary public's electronic stamping device, including but not limited to, any coding, disk, digital certificate, card, software, or password, that enables the notary public to attach the electronic notary seal to an electronic record. The remote online notary public shall submit a declaration to the attorney general within ninety days of resignation from, or revocation or abandonment of, a commission, or the expiration of a commission without renewal in which the remote online notary public declares that the electronic stamping device was disabled and indicates the date and manner in which the electronic stamping device was disabled. Failure to comply with this section may result in an administrative fine of $200.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 456-8, 456-23) (Imp: HRS §§ 456-9, 456-21, 456-23, 456-35, 503-41)

Haw. Code R. § 5-11-73 Retention and repositories of electronic journal and audiovisual recording

(a) In addition to the tangible journal required of all notaries public pursuant to section 456-15, HRS, a remote online notary public shall retain an electronic journal as required under section 456-15, HRS, and this chapter and any audiovisual recording created under section 456-23, HRS, in a computer or other electronic storage device that protects the journal and recording against unauthorized access by password or cryptographic process. The electronic journal and audiovisual recording shall be maintained and retained in an industry-standard audiovisual file format that can be viewed by the attorney general without the need for additional software. An electronic journal kept. by the remote online notary public and the audiovisual recording created pursuant to this subchapter are not subject to the requirements of section 5-11-9.

(b) A remote online notary public shall take reasonable steps to ensure that a backup of the electronic journal and audiovisual recording exists and is secure from unauthorized use.

(c) On the death or adjudication of incompetency of a current or former remote online notary public, the remote online notary public's personal representative or guardian, or any other person knowingly in possession of an electronic journal or audiovisual recording shall comply with the retention requirements of chapter 456, HRS, and this chapter and transmit the journal and recording to:

(1) One or more repositories under subsection (d); or

(2) The attorney general in an industry-standard data storage device that is readable without the need for additional software or password or cryptographic process.

(d) A remote online notary public, a guardian or personal representative of a remote online notary public, or any other person knowingly in possession of an electronic journal or audiovisual recording may, by written contract, engage a third person to act as a repository to provide the storage required by this chapter. A third person under a contract pursuant to this subsection shall be deemed a repository under chapter 456, HRS. The contract shall:

(1) Enable the notary public, the guardian or personal representative, or the person in possession to comply with the retention requirements of chapter 456, HRS, and this chapter, even if the contract is terminated; or

(2) Provide that the information will be transferred to the attorney general in an industry-standard data storage device that is readable without the need for additional software or password or cryptographic process upon the attorney general's request or if the contract is terminated.

(e) At any time, the electronic journal and audiovisual recording shall be subject to reasonable periodic, special, or other audits or inspections by the department as required under section 456-15, HRS.

(f) The remote online notary public shall retain the remote online notary public's electronic journal and audiovisual recording for ten years after the performance of the last notarial act chronicled in the journal. The notary public shall provide to the attorney general the location of the electronic journal upon resignation from, or revocation or abandonment or suspension of, a commission, or the expiration of a commission without renewal.

(g) The failure to comply with this section may result in an administrative fine of no less than $50 and no more than $500.

History

[Eff and comp 2/27/2022] (Auth: HRS §§ 28-10.8, 456-1.5, 4568, 456-23) (Imp: HRS §§ 456-15, 456-23, 456-24)

Chapter 12 SECURITY REQUIREMENTS FOR THE STORAGE AND TRANSPORTATION OF FIREARMS AND EXPLOSIVES USED FOR MOTION PICTURE FILMS OR TELEVISION PROGRAM PRODUCTION

Haw. Code R. § 5-12-1 Definitions

As used in this chapter, unless a different meaning clearly appears in the context:

"Applicant" means any person who submits the required documentation, application form, and fee for a permit as defined in this section.

"Chief of police" means the chief of police of the counties of Hawaii, Maui, or Kauai, or of the city and county of Honolulu.

"Explosive" means any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion including, but not limited to, dynamite, black power, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, ignitor cord, ignitors, and any material classified as an explosive in the regulations of the United States Department of Transportation and any material determined to be within the coverage of 18 U.S.C. chapter 40, Importation, Manufacture, Distribution, and Storage of Explosive Materials.

"Firearm" means "firearm" as defined in section 134-1, Hawaii Revised Statutes.

"Permit" means a permit to possess, transport, or use, with blank cartridges, firearms or explosives solely as props for motion picture films or television program productions.

"State" means the state of Hawaii.

History

[Eff FEB 29 1992] (Auth: HRS §§ 28-10.a, 134-2.5) (Imp: HRS § 134-2.5)

Haw. Code R. § 5-12-2 Security requirements; storage of firearms

(a) The place of storage of firearms shall meet the following exterior building security requirements:

(1) All perimeter doors to the building shall be solid core and have dead-bolt locks or the equivalent. Sliding glass doors shall have steel window guards or be connected to an audible or silent alarm to detect entry.

(2) Ail direct entries into the interior storage room from the exterior of the building, including windows and skylights, require steel window guards (not recommended for private residences), or audible, silent, or sonic alarm to detect entry, or twenty-four hour security service as required by the chief of police of the appropriate county.

(3) If the firearms will be stored at a location different from the principal place of business, or at the applicant's residence and that residence is rented or leased, the applicant shall submit written approval from the owner and the location shall meet all specified exterior and interior security requirements.

(4) When the size of the firearms prohibits storage in a residence or room of a business, the firearms shall be permanently secured to prohibit easy removal, and the firing mechanism and any ammunition shall be removed and stored in a separate and locked room, or separate and locked cabinet or box outside of the storage area for the firearms.

(b) The place of storage of firearms shall meet the following interior building security requirements:

(1) The firearms shall be stored in a separate room away from any general living area or work area.

(2) All doors leading into the storage room shall be solid core with a dead-bolt lock or the equivalent and be locked while unattended, or the firearms shall be stored in an anchored, locked metal box in the room. "Anchored" means permanently mounted to the floor or having a gross weight of one thousand pounds or more so that heavy equipment or tools would be required to remove the box.

(3) Any ammunition shall be removed and stored in a separate and locked room, or separate and locked cabinet or box outside of the storage area for the weapon. Ammunition may be stored with a firearm if locked in a safe designed to protect its contents from the effects of heat and fire.

History

[Eff FEB 29 1992] (Auth: HRS §§ 28-10.8, 134-2.5(c)) (Imp: HRS § 134-2.5)

Haw. Code R. § 5-12-3 Security requirements; transport of firearms

(a) The following security requirements shall be met for transporting firearms:

(1) When size or quantity of the firearms permit storage inside the vehicle:

(A) The firearms shall be transported either concealed in the locked storage area of the vehicle, or in a locked metal box or the equivalent which is bolted to the floor of the vehicle. The vehicle shall be locked at all times while unattended.

(B) All locking devices shall be in good operating condition.

(2) When size or quantity of the firearms prohibit storage inside the vehicle:

(A) If the firearms are transported exposed on a pick-up truck or other vehicle, a locking device connecting the firearms to the vehicle is required. The locking mechanism shall be able to resist common tools such as bolt cutters, hammers, and cold chisels.

(B) If the firearms are transported on a trailer, the firearms shall be locked to the trailer and the trailer locked to the vehicle at all times while unattended. The locking mechanism shall be able to resist common tools such as bolt cutters, hammers, and cold chisels.

(C) If the firearms are mounted on an axle, the trailer hitch or tongue shall have a locking device connected to the transporting vehicle at all times while unattended. The locking mechanism shall be able to resist common tools such as bolt cutters, hammers, and cold chisels.

(D) If a padlock is used to secure the firearms, it shall be a high security, case-hardened, large shackle padlock which is in good operating condition.

(3) All firearms shall be unloaded during transport and all ammunition shall be transported in a separate and locked cabinet or box. All locking devices shall be in good operating condition.

(b) Any vehicle used for transporting firearms and any operator of such vehicle shall meet all requirements of federal, state, and county laws to be validly upon the roads and highways of this state

History

[Eff FEB 29 1992] (Auth: HRS §§ 28-10.8, 134-2.5(c)) (Imp: HRS § 134-2.5)

Haw. Code R. § 5-12-4 Security requirements; storage of explosives

Explosives shall be stored in accordance with sections 12-98-4, 12-98-5, and 12-98-5.1.

History

[Eff FEB 29 1992] (Auth: HRS §§ 28-10.8, 134-2.5(c)) (Imp: HRS § 134-2.5)

Haw. Code R. § 5-12-5 Security requirements; transport of explosives

(a) Explosives shall be transported in accordance with section 12-98-6.

(b) Any vehicle used for transporting explosives and any operator of such vehicle shall meet all requirements of federal, state, and county laws to be validly upon the roads and highways of this State.

History

[Eff FEB 29 1995] (Auth: HRS § 134-2.5(C)) (Imp: HRS §§ 28-10.8, 134-2.5)

Subtitle 2 HAWAII CRIMINAL JUSTICE DATA CENTER

Chapter 22 CIVIL IDENTIFICATION

Haw. Code R. § 5-22-1 Purpose

The purpose of this chapter is to outline the application procedures for issuance of a state identification card.

History

[Eff 2/9/2006; comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS §§ 846-28, 846-32)

Haw. Code R. § 5-22-2 Application for original state identification card

(a) Application for an original state identification card shall be made in person.

(b) All applicants shall provide the following supporting documents at the time of application. All of the documents shall be originals or certified copies where an original is not expressly required.

(1) Documents verifying social security number: Original social security card or a social security health insurance card with an "A" designation after the social security number, or a valid or expired Hawaii driver's license with a social security number or a Form W2. All applicants not eligible to receive a social security card must present a letter from the Social Security Administration stating their ineligibility. If there are any discrepancies with the name on the social security card and other required documents, the applicant must work with the Social Security Administration for an acceptable resolution to the discrepancy. No identification card will be issued until the discrepancy is resolved;

(2) Documents verifying legal name: One of the items described in subparagraphs (A) to (H):

(A) Certified birth certificate issued by the state repository in the state where the applicant was born.

(i) The applicant must provide a computer printout from the Social Security Administration to verify the information on the social security card and the birth certificate under certain conditions. Some examples of these conditions are situations where the social security card does not have a title (Jr., II, III, IV, etc.) and the birth certificate has a title, or where there is a typographical error in the first letter of the surname on the social security card, or where the name on a birth certificate has been amended (different local received date and state received date) with no indication of the previous name, and the person presents a social security card in a different name;

(ii) Foreign/English translation names: when there is a foreign first name on the birth certificate, the applicant may request to have the English equivalent appear on the state ID card (e.g., foreign first name "Giuseppe" with English equivalent of "Joseph", which can be displayed on the state ID card as "Joseph" Giuseppe XYZ) by providing proof of the translated name from a dictionary or other recognized source;

(iii) Birth certificate in foreign name: when an applicant has adopted the use of an English name prior to 1950 but has not obtained a legal name change, the applicant may request to have the English name appear on the state ID card (e.g., an applicant has a birth certificate that reads "Hanako" XYZ, and wants to use the adopted English name, "Ethel", which can be displayed on the state ID card as "Ethel" Hanako XYZ) by presenting one of the following that shows the English name: marriage certificate or social security computer printout;

(B) Certificate of child born abroad to American parent(s);

(D) Original alien resident card. If the alien resident card lists two surnames and the social security card lists only one surname, the applicant must complete a Social Security Administration verification form or provide a social security computer printout so that the name can be verified;

(E) Original foreign passport, unexpired, issued by the applicant's country of citizenship, with a valid visa;

(F) Original Form 1-94 departure card (refugee status);

(G) Certificate of identity for United States nationals; or

(H) Original unexpired United States passport and completed state identification passport supplemental information form:

and as many of the following items in subparagraphs (I) to (N), which apply to the applicant:

(I) Certified marriage certificate issued by the state health department or country where the event occurred; provided that documentation of a union entered into in other jurisdictions between two individuals not recognized under section 572-3, Hawaii Revised Statutes, shall be recognized as a civil union; and provided further that women who married prior to 1991 and were not given a middle name at birth may adopt the usage of their maiden name as their middle name or, if given a middle at birth, may adopt the usage of their maiden name as their middle name or with their middle name;

(J) Certified copy of a divorce decree, especially if there is a resumption of middle or surname clause;

(K) Certified copy of decree of legal adoption;

(L) Certified decree or order of legal name change;

(M) Certified marriage annulment; or

(N) Certified civil union certificate issued by State of Hawaii department of health;

(3) Documents verifying proof of birthdate: One of the following items in subparagraphs (A) to (G):

(A) Certified birth certificate issued by the state repository in the state where the applicant was born;

(B) Certified certificate of child born abroad to American parent(s);

(D) Original alien resident card;

(E) Original unexpired foreign passport, issued by the applicant's country, with a valid visa;

(F) Original Form 1-94 departure card (refugee status); or

(G) Original unexpired United States passport and completed state identification passport supplemental information form; and

(4) Documents verifying proof of citizenship:

(A) United States citizen: One of the following items described in clauses (i) to (vi):

(i) Certified birth certificate issued by the state repository in the state where the applicant was born;

(ii) Certificate of citizenship or naturalization;

(iii) Certificate of child born abroad to American parent(s);

(iv) Original United States embassy letter for persons born in a foreign country that indicates their petition for United States citizenship has been granted, along with a United States passport;

(v) Original Form G-342 issued by the United States Immigration and Customs Enforcement; or

(vi) Original unexpired United States passport and completed state identification passport supplemental information form; or

(B) United States national: certified birth certificate with certificate of identity; or

(i) Original alien resident card issued by the United States Immigration and Customs Enforcement;

(ii) An original passport or certificate of citizenship for the country for which the applicant claims citizenship, if the applicant presents an original alien resident card but claims citizenship other than that of the country of birth;

(iii) Original foreign passport issued by the applicant's country, with valid visa, and Form 1-94 card. Form 1-2 0 or Form is also required for foreign students and student trainees;

(iv) Original Form 1-94 card for refugees with Employment Authorization Card; or

(v) Original Form G-342 issued by the United States Immigration and Customs Enforcement.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS §§ 572B-8, 572B-10, 846-23, 846-28)

Haw. Code R. § 5-22-3 Application for alteration of state identification card

(a) All persons desiring to alter their state identification card shall follow the procedures and present the documents as required in section 5-22-2 for an original application.

(b) For those persons desiring alteration based on change of citizenship status, proof of the new citizenship shall be presented. For a new United States citizen, one of the following items shall be presented:

(1) Original United States certificate of naturalization;

(2) Original certificate of citizenship; or

(3) Original unexpired United States passport and a completed state identification supplemental information form.

(c) In addition, for those persons desiring alteration of the state identification card regarding gender designation, a gender designation form in a form acceptable to the civil identification section, shall be presented.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-32)

Haw. Code R. § 5-22-4 Application for correction of state identification card

(a) Persons applying for correction of an error on the state identification card shall produce the original state identification card and be fingerprinted to verify identity. In addition, documented evidence shall be presented by the applicant pertaining to that item of information on the state identification card to be corrected.

(b) No fee will be assessed for a replacement card if the correction is requested within thirty calendar days of the issuance of the original card. If the correction is requested more than thirty calendar days after the original card was issued, the applicable fee will be assessed as provided in section 5-22-7.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-32)

Haw. Code R. § 5-22-5 Application for a duplicate or renewal of a state identification card

Persons applying for a duplicate or renewal of a state identification card shall follow procedures and must present supporting documentation required by section 5-22-2. If there was a stipulation for further documentation when the card was previously issued, then such further documentation shall be presented at the time of application for duplicate or renewal.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS §§ 846-27, 846-28, 846-29)

Haw. Code R. § 5-22-6 Permanent address

The state identification card shall include the applicant's permanent address. An applicant's permanent address can be determined by one of the following with administrative approval:

(1) Department of taxation form A-6, application for tax clearance;

(2) Current property tax assessment form;

(3) Current rental agreement for six months or more;

(4) Current time-share agreement for six months or more;

(5) Current Hawaii utility bill with the applicant's name;

(6) Hawaii state income tax return from the preceding year with W-2 form;

(7) Hawaii State driver's license or motor vehicle registration form;

(8) Student identification card issued by a Hawaii school;

(9) Medical card issued by a Hawaii health insurance agency;

(10) For an individual claiming that the individual had no income to file a tax return and is receiving state welfare assistance, a letter from the Hawaii state department of human services dated not more than ninety days prior to the application for a state identification card certifying that the individual is receiving state assistance;

(11) Mail addressed to the applicant from a government or medical entity;

(12) Homeless applicants may use the address of their current shelter agency or, if not staying in a shelter, may use the general delivery of the post office nearest where they spend most of their time; or

(13) If an applicant is in a shelter because of abuse, the applicant may display the address of a relative or friend or a post office box number on the card but must provide the applicant's permanent address for file purposes.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-28)

Haw. Code R. § 5-22-7 Fees

(a) The fee for a state identification card for applicants age sixty-five years and older is $15; for all others the fee is $20. All fees are payable in cash or money order.

(b) Web applicants will pay a state portal convenience fee and a reduced fee for their state identification card. Web applicants age sixty-five years and older will pay a fee of $10 and all other web applicants will pay a fee of $15.

(c) Fees may be waived, except for web applicants, in cases of extreme hardship upon approval by the attorney general or the attorney general's designee. Extreme hardship is when there are no funds available to the applicant to pay for the state identification card. The applicant requesting a fee waiver must provide evidence via a letter from a social service agency, welfare agency, or nonprofit entity to indicate all efforts to obtain the necessary funds have been exhausted.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-23)

Haw. Code R. § 5-22-8 Fingerprints

(a) The applicant's right index and left index fingerprints shall be obtained for purposes of identification, as required by section 846-28, Hawaii Revised Statutes.

(b) If a clear impression of the right or left index fingerprint cannot be obtained due to injury, allergy, amputation, deformity, paralysis, or other causes, then alternate fingerprints will be taken in the following successive order until at least two clear impressions are obtained:

(1) Right thumb;

(2) Right middle finger;

(3) Right ring finger;

(4) Right little finger;

(5) Left thumb;

(6) Left middle finger;

(7) Left ring finger; or

(8) Left little finger.

(c) When the applicant's fingerprints must be verified against a record stored on microfilm, the classifier may select additional or all fingers to be fingerprinted in order to aid in the verification of identity against the microfilmed records.

History

[Eff 2/9/2006; comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-28)

Haw. Code R. § 5-22-9 Renewal by mail

(a) Cardholders age sixty-five years and older who obtained state identification cards on or after November 1, 1998, may renew their state identification card by mail if there are no changes in name and citizenship. The completed application form shall be mailed back to the state identification office with a money order, cashier's check, or personal check. If the cardholder wants to update the cardholder's photograph, the cardholder may call the nearest state identification office for an appointment.

(b) An applicant with a physical or mental disability who had obtained a state identification card on or after November 1, 1998, may renew the applicant's state identification card by mail, if the applicant has the certification statement signed by the applicant's primary care physician that the applicant is, for a reason related to the applicant's physical or mental disability, unable to appear at the nearest office where renewals for state identification cards are being processed. A qualifying applicant may apply for renewal through the mail by:

(1) Completing the applicable application form;

(2) Affixing the qualifying applicant's signature;

(3) Affixing the appropriate fingerprints as listed in section 5-22-8;

(4) Providing a recent color photograph that meets the specifications described on the application form and affixing the photograph to the application form;

(5) Enclosing a money order or cashier's check as listed in section 5-22-7; and

(6) Enclosing the application form, fee, and all applicable supporting documents required by section 5-22-5, including the signed certification by the qualifying applicant's primary care physician on the application form.

History

[Eff 2/9/2006; am and comp DEC 17 2012] (Auth: HRS § 846-27) (Imp: HRS § 846-27)

Haw. Code R. § 5-22-10 Expiration date

State identification cards shall expire eight years from the year of issuance on the applicant's birthday, except for legal non-immigrants (foreign tourists, students, or employees who are not legal permanent residents), in which case the card shall bear the same expiration date as the expiration date on the Form I-94 departure card.

(1) For Canadian visitors who are allowed to stay in the United States for up to six months at a time, the card's expiration date shall be six months from the date of entry into the United States;

(2) For foreign students and student trainees, the date on the Form 1-20 or Form lAP that presumes his or her completion of studies or student training shall be used as the expiration date. If only the month and year are noted, the last day of that month shall be used as the expiration date;

(3) For conditional resident aliens, the expiration date displayed at the bottom of the resident alien card shall be used as the expiration date;

(4) For individuals covered under the Compact of Free Association, the expiration date shall be eight years from the year of issuance on the applicant's birthday. These individuals are allowed unrestricted entry between their countries and the United States and include Micronesia, Marshall Islands, Palau, and the Northern Marianas;

(5) For individuals paroled indefinitely, the expiration date shall be either the expiration date on their Immigration and Customs Enforcement employment authorization card or the expiration date on their passport, if Immigration and Customs Enforcement has not confiscated the passport. This applies to those individuals who are illegally in the United States, but due to the politics of their country, are not allowed reentry to their country. Immigration and Customs Enforcement allows them to work and remain in the United States until conditions in their country change to allow them reentry; and

(6) For individuals who enter the United States on a K status (fiance/fiancee), the expiration date will be the date on the individual's Immigration and Customs Enforcement employment authorization card or the date of the interview which is set after the sponsor petitions the Immigration and Customs Enforcement for permanent residency. The applicant must present the applicant's employment authorization card or evidence of the interview date.

History

[Eff 2/9/2006: am and comp DEC 17 2012] (Auth: HRS §§ 846-23, 846-30.5) (Imp: HRS § 846-30.5)

Haw. Code R. § 5-22-11 Advance health-care directive

A cardholder who has an advance health-care directive may choose to have the state identification card issued with a symbol or abbreviation indicating that the cardholder has an individual instruction in writing, a living will, or a durable power of attorney for health care decisions.

History

[Eff 2/9/2006; comp DEC 17 2012] (Auth: HRS § 846-28) (Imp: HRS § 846-28)

Haw. Code R. § 5-22-12 Severability

If any provision of this chapter, or the application thereof to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.

History

[Eff 2/9/2006; comp DEC 17 2012] (Auth: HRS § 846-23) (Imp: HRS § 846-23)

Chapter 24 FEES FOR HAWAII CRIMINAL JUSTICE DATA CENTER SERVICES

Haw. Code R. § 5-24-1 Purpose

The purpose of this chapter is to establish fees for services provided by the Hawaii criminal justice data center and state and county criminal justice agencies, and to establish exemptions from the requirement to pay fees.

History

[Eff MAR 27 2009] (Auth: HRS § 846-10.5) (Imp: HRS § 846-10.5)

Haw. Code R. § 5-24-2 Fee schedule

The fees for the following services are:

(1)	For each search performed on the adult criminal conviction information website (eCrim)	$ 5.00
(2)	For each printout from the adult criminal conviction information website (eCrim)	$ 12.00
(3)	For each printout from a public access terminal	$ 25.00
(4)	For each initial application for the expungement of arrest records, including a $10.00 non-refundable processing fee	$ 35.00
(5)	For each subsequent application for the expungement of arrest records, including a $10.00 non-refundable processing fee	$ 50.00
(6)	For each duplicate expungement certificate	$ 20.00
(7)	For each fingerprint-based or name-based criminal history-record check conducted by the data center and other state and county agencies	$ 30.00
(8)	For each complete set of fingerprints taken	$ 25.00
(9)	For each certification of a document	$ 20.00
(10)	For each manual fingerprint card scanned to electronic format	$ 5.00
(11)	Monthly fee for criminal history record checks conducted by government agencies not covered by an exemption set forth in section 5-24-3 or HRS § 846-10.5.	$ 500.00
(12)	Monthly fee for unlimited searches on the adult criminal conviction information website eCrim)	$1,000.00
(13)	For each bulk download of public sex offender registration information	$ 100.00

History

[Eff 3/27/09; am APR 20 2012] (Auth: HRS § 846-10.5) (Imp: HRS § 846-10.5)

Haw. Code R. § 5-24-3 Exemptions

The exemptions from the fees established in this chapter and HRS § 846-10.5 are limited to requests from the following:

(1) Criminal justice agencies for criminal justice purposes;

(2) State or county agencies for criminal history .record checks for employment or enlistment purposes;

(3) Child care facilities for criminal history record checks for licensing purposes;

(4) Non profit charitable organizations that are tax exempt under Internal Revenue Code section 501(c)(3)for criminal history record checks on their adult volunteers having direct contact with minors, the elderly or the disabled;

(5) Criminal justice or law enforcement agencies for the expungement of an arrest, upon approval of the administrator of the Hawaii criminal justice data center; and

(6) Federal, state, or county agencies for the purposes of security checks, military intelligence, homeland security, civil defense, anti-terrorism, counterintelligence and national security as authorized by law.

History

[Eff 3/27/09; am APR 20 2012] (Auth: HRS § 846-10.5) (Imp: HRS § 846-10.5)

Haw. Code R. § 5-24-4 Federal Bureau of Investigation fees

The applicant fees charged by the Federal Bureau of Investigation for national fingerprint-based criminal history record checks shall be paid to the Hawaii criminal justice data center and held in the criminal history record improvement revolving fund until the fees are passed to the Federal Bureau of Investigation. The portion of the fee that the Federal Bureau of Investigation allows the State to keep in return for processing the fingerprint cards shall be held in the criminal history record improvement revolving fund.

History

[Eff APR 20 2012] (Auth: HRS § 846-10.5) (Imp: HRS § 846-10.5)

Chapter 25 COVERED OFFENDER REGISTRATION

Haw. Code R. § 5-25-1 Purpose

The purposes of this chapter are to establish procedures for in-person verification of covered offenders and community notification to subscribers and to establish provisions for special classes of offenders.

History

[Eff JUN 29 2012] (Auth: HRS §§ 846E-2(g), 28-10.8) (Imp: HRS §§ 846E-2(g), 846E-3(c), 846E-4(e))

Haw. Code R. § 5-25-2 In-person verification

(a) A covered offender shall report in person, every year, within the thirty-day period following the covered offender's date of birth, to one of the following agencies:

(1) The chief of police where the covered offender resides;

(2) The Hawaii paroling authority of the department of public safety; or

(3) The investigations division of the department of the attorney general.

(b) Upon reporting to the agency, the covered offender shall review the existing information in the registry that is within the offender's knowledge, correct any information that has changed or is inaccurate, provide new registration information, and allow the agency to take a current photograph of the covered offender.

History

[Eff JUN 29 2012] (Auth: HRS §§ 846E-2(g), 846E-4(e)) (Imp: HRS §§ 846E-2(g), 846E-4(e))

Haw. Code R. § 5-25-3 Community notification

(a) Community notification is a free service that notifies a subscriber electronically when a covered offender, within a specified zip code or a specified geographic range of an address provided by the subscriber, registers or updates registration information. The notification consists of a link to the covered offender's public registration record.

(b) Any individual or group with a valid email address may sign up for a subscription account at the Hawaii sex offender website at www.sexoffenders.hawaii.gov [File Link Not Available].

(d) The following information will be required from the subscriber:

(1) Email address,-

(2) Location description;

(3) Address; and

(4) Geographic range or zip code area.

(e) The notification will work in the following manner:

(1) When a covered offender's registration record is entered or updated, the registered addresses will be run against the subscription database;

(2) When any of the registered addresses falls within the requested geographic range of a subscriber address in the subscription database or matches a requested zip code, an electronic notification will be sent to the subscriber.

(f) The department reserves the right to terminate a subscription upon finding misuse of the information by the subscriber.

History

[Eff JUN 29 2012] (Auth: HRS § 846E-3Cc)) (Imp: HRS § 846E-3(c))

Haw. Code R. § 5-25-4 Treatment of special classes of covered offenders

(a) The special classes of covered offenders are:

(1) Class 1. Registered covered offenders who are not in Hawaii and are confirmed to be registered in another state or territory.

(2) Class 2. Registered covered offenders who are not in Hawaii and are confirmed to be deported to another country.

(b) Registration for the classes of covered offenders named in subsection (a) shall be as required by law, but subject to the following provisions:

(1) The registration information for the covered offender shall continue to be maintained by the attorney general for law enforcement and criminal justice purposes;

(2) The covered offender shall not be subject to the requirements of chapter 846E, HRS, until such time that the covered offender returns to the State; and

(3) The registration information for a class 1 offender shall not be made available to the public.

History

[Eff JUN 29 2012] (Auth: HRS § 28-10.8) (Imp: HRS § 28-10.8)

Subtitle 3 CHILD SUPPORT ENFORCEMENT

Chapter 31 CHILD SUPPORT

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 5-31-1 Statement of purpose

This chapter shall implement the child support enforcement plan as required under title IV-D of the Social Security Act (42 United States Code §§ 652 - 658a, 664, 666, 667, 668, and 669), 45 Code of Federal Regulations parts 300-399, and chapter 576D, Hawaii Revised Statutes.

History

[Eff 2/13/89; comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 91-2) (Imp: HRS § 576D-2; 45 C.F.R. §302.10)

Haw. Code R. § 5-31-2 Definitions

For the purpose of this chapter:

"Administrative hearing" means a hearing conducted in accord with chapter 91 of the Hawaii Revised Statutes and presided by a hearing officer from the office of child support hearings.

"Administrative order" means a child support order resulting from an administrative, rather than a judicial, determination.

"Administrative review" means a review by the agency based on all information available to the agency at the time of the review.

"Administrator" means the administrator of the agency.

"Agency" means the child support enforcement agency established under section 576D-2, Hawaii Revised Statutes.

"Alleged father" means any person who may be identified as a biological father of a child.

"Annual fee" means a fee imposed by the child support enforcement agency for services provided under the child support program during the federal fiscal year.

"Applicant" means persons or entities that have completed an application requesting title IV-D services, persons with whom the subject child resides and receives temporary assistance for needy families or title XIX benefits, and department of human services in title IV-E cases.

"Arrearages" means past due, unpaid amounts owed by the noncustodial parent resulting from a child support order.

"Authorized representative" means a person who is designated in writing by the custodial parent, the non-custodial parent, or the alleged father as his or her representative in the case.

"Central registry" means a function at the state level responsible for receiving, distributing, and responding to inquiries on all incoming interstate, tribal, and international title IV-D cases.

"Certified account balance" means an official reconciliation by the agency of both the amounts of child support collected from a non-custodial parent and the amounts distributed to the custodial parent or other appropriate entities during a specified time period.

"Child support" means an obligation to pay for the necessary support and maintenance of a child as required by law. This definition includes both financial and medical support. Except in establishment actions under section 5-31-22, modification actions under section 5-31-24, and termination actions under section 5-31-43, child support may include court-ordered spousal support when spousal support is being enforced in conjunction with the financial support of a child.

"Child support order" means an order to pay for the necessary support and maintenance of a child resulting from a judicial or an administrative proceeding that may include financial and medical support for the child. Except in establishment actions under section 5-31-22, modification actions under section 5-31-24, and termination actions under section 5-31-43, child support order may include court-ordered spousal support when spousal support is being enforced in conjunction with the financial support of a child.

"Consumer reporting agency" means any person or entity which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.

"Court order" means a child support order resulting from a judicial, rather than an administrative, adjudication.

"Custodial parent" means a parent, guardian, other person, or entity having physical custody of the child.

"Department" means the department of the attorney general.

"Financial institution data match" means the process of identifying the financial account of a non-custodial parent as a means of locating and seizing financial resources to satisfy obligations owed by the non-custodial parent.

"Income withholding" means the withholding or assignment of future income under sections 571-52, 571-52.2, 571-52.3, 576D-14, and 576E-16, Hawaii Revised Statutes.

"Lien" means a legal claim upon property to prevent sale or transfer of that property until arrearages are satisfied.

"Medical support" means a form of child support where either or both parents provide for medical insurance, which may include dental, drug, or vision services or all, for the children in the case or the payment of a specific amount in lieu of providing medical insurance.

"Non-custodial parent" means a parent who is absent from the family, whether or not the parent is required to pay child support.

"Obligee" means any person or entity designated to receive payments under the terms of a child support order.

"Obligor" means any person or entity that is required to make payments pursuant to a child support order.

"Office of Child Support Hearings" means the office bf child support hearings established pursuant to chapter 576E, Hawaii Revised Statutes.

"Other state" includes:

(1) All states of the United States other than the State of Hawaii;

(2) The District of Columbia;

(3) Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States;

(4) Any Indian or Alaska Native Tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe and is included in the list of federally recognized Indian Tribal governments as published in the Federal Register that is operating under title IV-D; and

(5) A foreign country or a political subdivision thereof:

(i) Declared to be a foreign reciprocating country under title IV-D; or

(ii) With which the State has entered into a reciprocal arrangement for the establishment and enforcement of child support obligations to the extent consistent with title IV-D. "State" means the State of Hawaii.

"State plan" means the state child support enforcement plan as required under title IV-D.

"Spousal support" means a legally enforceable obligation against an individual for the support of a spouse or former spouse.

"Temporary assistance for needy families" means financial assistance provided under the federal Personal Responsibility and Work Opportunity Reconciliation Act, Public Law 104-193, (title IV-A), formerly known as "Aid to Families With Dependent Children".

"Title IV-A", "title IV-D", "title IV-E", and "title XIX" mean title IV-A {temporary assistance for needy families), title IV-D (child support), title IV-E (foster care), and title XIX (medicaid), respectively, of the federal Social Security Act (August 14, 1935, chapter 531, 49 Stat. 620) as amended.

"Uniform Interstate Family Support Act" means the uniform law that sets forth the requirements of processing child support orders in interstate and international cases established under chapter 576B, Hawaii Revised Statutes.

"Unreimbursed assistance" means the amount of temporary assistance for needy families benefits paid to the family by the department of human services that has not been recovered by the State.

History

[Eff 2/13/89; am and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS §§576B, 576D-2, 576E-2; 45 C.F.R. § 303.1)

Haw. Code R. § 5-31-3 Authorization of services

(a) The agency shall provide services authorized by chapter 576D, Hawaii Revised Statutes.

(b) Any individual or organization providing custodial care on behalf of a child, an alleged father, or any non-custodial parent, may apply to the agency for services. Applications shall not be accepted for the establishment of paternity or child support or both of a child who is emancipated or is beyond the age of eighteen.

(1) Rights to child and spousal support from any other person(s) to which the applicant or recipient may be entitled;

(2) Amounts that have accrued at the time the assignment is executed for the period of time that the recipient received temporary assistance for needy families; and

(3) Payments received by the recipient directly from the non-custodial parent for the period of time that the recipient received temporary assistance for needy families.

(d) An applicant or recipient of temporary assistance for needy families shall cooperate (unless good cause for refusing to do so is determined by the department of human services) with the agency in:

(1) Identifying and locating the non-custodial parent(s) of a child;

(2) Establishing paternity of a child born out of wedlock;

(3) Obtaining child and spousal support payments; and

(4) Obtaining any other payments due the applicant or recipient or the child.

(e) Those persons not receiving temporary assistance for needy families who apply for services, shall receive services for an application fee of $1 to be paid by the agency. However, where the agency is ordered to collect and distribute child support payments under section 5-31-4(b)(6) for a case in which there is no applicant, no fees shall apply.

(f) In title IV-D cases where the custodial parent has never received temporary assistance for needy families, there shall be an annual fee of $25, once there has been a total disbursement to the custodial parent of $5 0 0 within the federal fiscal year. The custodial parent shall be responsible for this annual fee. Upon the disbursement of the $500, the fee shall be retained from child support payments collected. The retention of this fee shall not adversely affect the child support amounts owed by the non-custodial parent. The fee shall not be imposed in responding interstate cases. Notwithstanding any other provision, the non-custodial parent shall be responsible for the annual fee in international cases and shall not receive child support credit for this amount. The collected fees are retained for the agency's operational expenses without the usual federal matching portion and are not considered as administrative cost of the agency's program. The collected fees are considered to be income to the program.

(g) The agency shall not accept applications for the sole purpose of disestablishing paternity.

(h) The agency shall not accept applications from children for their own support, regardless of age.

History

[Eff 2/13/89; am 7/27/90; am and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS §§ 576D-3, 576D-6; 45 C.F.R. §§302.31, 302.33)

Haw. Code R. § 5-31-4 Scope

(a) The agency shall formulate and administer the state plan as required pursuant to section 576D-2, Hawaii Revised Statutes.

(b) The agency may undertake any or all legal or administrative actions to:

(1) Locate non-custodial parents;

(2) Establish paternity;

(3) Establish non-custodial parents' obligation to support their child or children;

(4) Review non-custodial parents' obligation to support their child or children;

(5) Modify non-custodial parents' obligation to support their child or children;

(6) Collect and distribute voluntary payments or child support payments or both when a child support order requires collection and distribution, except that disbursement in temporary assistance for needy families cases shall be made in accordance with 4 5 C.F.R. §302.51 ; and

(7) Enforce collection of child support by any or a

combination of all appropriate enforcement methods available to the agency, including, but not limited to:

(A) Judicial process;

(B) Administrative process,-

(D) Interception and retention of state tax refunds;

(E) Interception and retention of periodic or lump-sum payments from unemployment benefits, workers' compensation benefits, assets, settlements, proceeds, awards, judgments, lotteries, and any other entitlement to money due to non-custodial parents;

(F) Establishment of liens;

(G) Establishment and enforcement of income withholding orders;

(H) Financial institution data match resulting in the freezing of financial accounts and the seizing of funds;

(I) Referrals to consumer reporting agencies;

(J) Referrals to licensing agencies for the suspension of driver or professional licenses;

(K) Referrals for the denial of passports;

(L) Referrals for administrative offsets; and

(M) Referrals for federal prosecution in interstate cases.

(c) The agency may decline to establish paternity, to pursue child support, and to initiate review and modification of child support when:

(1) Incest or forcible rape is involved;

(2) Legal proceedings for adoption are involved;

(3) The parent is receiving pre-adoption services not to exceed three months; or

(4) There is actual or potential physical or emotional harm to parents, children, or caretakers.

(d) The agency shall cooperate with other states in:

(1) Locating a non-custodial parent;

(2) Establishing paternity and child support orders;

(3) Enforcing child support orders,-

(4) Collecting and disbursing child support payments; and

(5) Reviewing and modifying child support orders.

History

[Eff 2/13/89; am 7/27/90; am and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS §§ 576D-3, 576D-4, 576D-6, 576D-10, 576E-2; 45 C.F.R. §§302.51, 302.60, 303.5, 303.71,)

Haw. Code R. § 5-31-5 REPEALED

History

R MAR 30 2014

Haw. Code R. § 5-31-7 REPEALED

History

R OCT 31 1991

Subchapter 2 INTAKE OP CASES FOR TITLE IV-D SERVICES

Haw. Code R. § 5-31-12 Application process

(a) The application to obtain title IV-D child support services shall be made on forms supplied by the title IV-D agency and completed in a manner prescribed thereon.

(b) The agency shall provide the appropriate application forms to individuals who make a request in person or send the appropriate application forms upon receiving a written or telephone request. Application forms shall be provided within timeframes prescribed by federal regulation, 45 C.F.R. §303.2(a) (2).

(c) Information describing available child support services, individual's rights and responsibilities, fees, cost recovery, and distribution policies shall be provided to applicants with the application form and to all applicants referred to the agency within five working days of referral.

(d) No application shall be necessary in title IV-A, title IV-E, and title XIX cases. In such cases, referrals are made through an electronic interface with the department of human services.

(e) In cases where there is a protective order or where the custodial parent discloses that the custodial parent or the child(ren), or both may be in danger from the non-custodial parent, an application for family violence indicator shall be completed by the custodial parent. If this application is approved by the agency, the agency will not disclose the location of the custodial parent and the subject child(ren) to other states or persons through the federal parent locator service without court approval or the custodial parent's written authorization.

(f) Any current recipient of temporary assistance for needy families who believes he or she or the subject child(ren) or both are in danger of physical harm may notify the department of human services. Should the agency receive referrals of temporary assistance for needy families cases identifying this situation, no action to establish paternity or establish or enforce child support shall be taken until the agency is notified otherwise by the department of human services.

History

[Eff and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C. F. R. §303.2(a) (2))

Haw. Code R. § 5-31-13 Case opening

(a) An application or referral is considered filed on the date the appropriate unit office receives a completed, signed application form, or complete referral information, and any applicable fees.

(b) Upon the filing of an application or referral, the agency may establish a case record, assess the case and determine necessary action, solicit necessary and relevant information, initiate verification, and refer for location services, if necessary. In addition, the agency shall refer the case, including all necessary documents as prescribed by federal regulations, to another state's title IV-D central registry when the application or referral form indicates that the non-custodial parent or putative father resides in that state. These actions shall be completed within timeframes prescribed by federal regulations, 45 C.F.R. §§303.2(b), 303.7(b).

(c) Upon receiving an interstate title IV-D case, the agency shall review the documentation for completeness, establish a case record, forward the case to the appropriate unit for processing, acknowledge to the initiating state receipt of the case, inform the initiating state where the case was sent for action, and request the initiating state to provide additional documentation if necessary. These actions shall be completed within timeframes prescribed by federal regulation, 45 C.F.R. § 303.7(a) (2).

History

[Eff and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS §§ 576D-2, 576D-6; 45 C.F.R. §§ 303.2, 303.7)

Haw. Code R. § 5-31-14 Orientation

A specially designed orientation session may be presented by the agency to familiarize applicants with the rights and responsibilities of the parties.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-6) (Imp: HRS §§ 576D-2, 576D-6; 45 C.F.R. §302.30)

Haw. Code R. § 5-31-15 Application information

The following information may be required to complete the application:

(1) The applicant's social security number and date of birth;

(2) The applicant's last four pay stubs;

(3) The applicant's most recent federal or state income tax return;

(4) Child care receipts for the last three months;

(5) Birth certificates for each child in the family;

(6) Social security numbers and dates of birth for each child and non-applicant party;

(7) Address information for all parties;

(8) Information when the child has received temporary-assistance for needy families or medicaid any time in the State or in other states;

(9) Information on the applicant's employer and work history;

(10) Information on the employer and work history of the other parent of the child(ren);

(11) Information on or availability and cost of medical coverage for the child(ren) by either parent;

(12) All child support orders;

(13) Information on ownership of real property by the noncustodial parent;

(14) Information on financial accounts held by either parent;

(15) Work, home, and cellular telephone numbers for both parents;

(16) Information on both paternal and maternal grandparents for each child;

(17) Caretaker information if the children are not living with the mother or the father;

(18) Marriage or divorce or separation history of both parties, marriage certificate, and divorce decree; and

(19) Restraining orders issued by the court.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-6) (Imp: HRS §§ 576D-2, 576D-6; 45 C.F.R. §303.2)

Subchapter 3 LOCATION OF ABSENT PARENTS

Haw. Code R. § 5-31-17 Locate

(a) The agency shall access available and appropriate sources to obtain information concerning the custodial and non-custodial parent. All appropriate location sources shall be accessed within timeframes prescribed by federal regulation, 45 C.F.R. § 303.3(b)(3).

(b) Where efforts to locate a non-custodial parent have failed, attempts shall be repeated periodically within timeframes prescribed by federal regulation, 45 C.F.R. § 303.3(b)(5), or immediately upon receipt of new and relevant information, whichever is earlier.

(c) Upon receipt of sufficient and necessary locate information, the case shall be forwarded immediately for the next appropriate action.

History

[Eff and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-6; 45 C.F.R. §303.3)

Haw. Code R. § 5-31-18 Interstate locate

(a) Requests from other jurisdictions for locate services only shall be processed pursuant to section 5-31-17(a).

(b) Results of actions completed to locate a non-custodial parent shall be communicated to the requesting jurisdiction. No further action shall be required by the agency unless specified by the requesting jurisdiction and determined to be appropriate by the agency.

History

[Eff and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-6; 45 C.F.R. §§303.3, 303.7)

Subchapter 4 ESTABLISHMENT OF SUPPORT

Haw. Code R. § 5-31-21 Establishment of paternity

(a) When a referral is received from the department of human services, another state, or the applicant, a determination is made whether paternity for a child is at issue.

(b) Paternity is at issue when natural parents are not married to each other at the time of the birth of the child.

(1) By the voluntary establishment of paternity pursuant to section 584-3.5, Hawaii Revised Statutes;

(2) By a court ordered judgment of paternity; or

(3) By a decree of divorce naming the child as a child of the marriage.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 584-3.5, 584-8.5, 584-15) (Imp: HRS §§ 584-3.5, 584-8.5, 584-15; 45 C.F.R. §§302.70, 303.5)

Haw. Code R. § 5-31-21.1 Non-pursuit of paternity

(a) The agency shall not initiate paternity proceedings in the following situations:

(1) Where paternity has been established by court order or voluntary establishment of paternity pursuant to section 584-3.5, Hawaii Revised Statutes; or

(2) Where the mother was married at the time of the birth of the child or the child was born within three hundred days of the divorce of the mother, and no alleged natural father has been identified.

(b) The agency may not initiate paternity proceedings in the following situations:

(1) Where incest or forcible rape is involved;

(2) Where legal proceedings for adoption are involved; or

(3) Where the department of human services has made a good cause determination.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-6) (Imp: HRS §§ 576D-2, 576D-6, 584-3.5; 45 C.F.R. §§302.31, 302.70, 303.5)

Haw. Code R. § 5-31-21.2 Procedures when paternity is at issue

(a) A complaint for paternity initiated by the agency is filed with the court.

(b) Service of the complaint, which includes a court hearing date, is made upon the parties named in the complaint.

(c) Any named party in the complaint may request genetic testing and genetic testing will be ordered by the court. In such instance, the agency will advance the genetic testing cost subject to reimbursement by any party.

(d) The genetic testing report will be filed with the court and sent to the named parties on the complaint.

(e) If genetic testing does not result in exclusion of the alleged father and testing has been conducted in accordance with sections 584-11(a)(2), Hawaii Revised Statutes, the alleged father is presumed to be the father of the subject child pursuant to section 584-4(a)(5), Hawaii Revised Statutes.

(f) A party who has been excluded by genetic testing may have the paternity action dismissed by the court and will not be responsible for the genetic testing cost.

(g) A party has a right to request a non-jury trial on the issue of paternity.

(h) Where paternity has been established pursuant to admission or court order, a judgment of paternity is issued by the court.

(i) Once paternity is established and the parents and the child are residing together, no further action will be taken.

History

[Eff and comp MAR 30 2014] (Auth: §§ 576D-2, 576D-3, 576D-4, 576D-6) (Imp: §§ 576D-2, 576D-3, 576D-4, 576D-6, 576E-2, 584-4, 584-11; 45 C.F.R. §§302.70, 303.5)

Haw. Code R. § 5-31-22 Establishment of child support orders

(a) Child support is addressed in conjunction with paternity establishment or through the administrative process when paternity is not at issue.

(b) Within time frames prescribed by federal regulation, 45 C.F.R. § 303.4(d), the agency must establish an order for child support, or complete service of process necessary to establish an order, or document unsuccessful attempts to serve process.

(c) If there is no existing order and paternity is not at issue, the administrative process to establish a child support order is initiated when appropriate information is received. Information that is necessary to initiate order establishment are:

(1) Income information from the applicant if the applicant is not receiving temporary assistance for needy families; and

(2) A serviceable address for both parties in the case.

(d) Once it is determined that it is appropriate to initiate an administrative process to establish a child support order, the following steps are taken:

(1) Notice is sent to the other party in the case requesting income information;

(2) Automated inquiries for income information are made to state and federal agencies;

(3) After ten calendar days have passed, a proposed administrative order that includes the amount for child support and medical insurance provision is generated and served upon the parties by certified mail or personal service pursuant to section 576E-4, Hawaii Revised Statutes. The amount of child support is determined by using the child support guidelines as required by section 576D-7, Hawaii Revised Statutes;

(4) Once a party has been served with the proposed administrative order, that party has ten working days to request an administrative hearing;

(5) If neither party requests a hearing, the proposed administrative order is signed by the administrator or a hearings officer with the office of child support hearings. If applicable, an income withholding order, in the standard format prescribed by title IV-D, is issued;

(6) The signed administrative order and income withholding order are filed with the family court. Filed copies of the child support order are sent to the parties. A certified copy of the child support order is sent to the bureau of conveyances for recordation purposes and a notice of income withholding is sent to the noncustodial parent's employer, if applicable;

(7) If an administrative hearing is requested, a hearing is scheduled and notice of the hearing is sent to the parties once both parties are served with the proposed administrative order. Administrative hearings are scheduled at one-half hour intervals Tuesdays through Fridays from 9:00 a.m. through 11:30 a.m. Administrative hearings that are continued may be scheduled at other times as necessary;

(8) Prior to the hearing the agency representative meets with the parties to determine if a settlement can be reached or to obtain updated information on the parties;

(9) At the time of the hearing, the agency representative provides case information to the administrative hearings officer. The parties are allowed to provide information to the administrative hearings officer that supports their position on the issues being addressed;

(10) After the administrative hearing has been completed and a signed child support order is received from the administrative hearings officer, the process described in paragraph (6) is followed;

(11) Both parties must be served before the administrative process can continue.

(i) If the unserved party is the applicant, attempts will be made to contact the applicant to complete service of process. If such attempts are unsuccessful, case closure may be initiated,

(ii) If the unserved party is not the applicant, the unserved party may be referred to locate or case closure may be initiated.

(e) If the administrative process to establish a child support order is dismissed without prejudice, the agency shall determine the appropriate action to be taken. Appropriate actions include, but are not limited to:

(1) Sending the case for locate;

(2) Appealing the dismissal; or

(3) Seeking an order for child support at a later date.

(f) Child support orders shall include a provision requiring either parent or both to provide medical support.

History

[Eff and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-6; 45 C.F.R. §303.4)

Haw. Code R. § 5-31-23 Guidelines for determining the amount of the child support obligation

(a) The agency shall review the child support guidelines mandated by section 57SD-7, Hawaii Revised Statutes, at least once every four years. Recommendations on amendments to the child support guidelines shall be communicated to the family court.

(b) Where the non-custodial parent is incarcerated, a presumption of exceptional circumstance is created and the agency may initiate administrative proceedings to set current child support at zero.

History

[Eff and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-7; P.L. 103, § 103 (1988))

Haw. Code R. § 5-31-24 Modification of child support orders

(a) If there is an existing child support order, the administrative process to modify child support is initiated when a request is received from one of the parties. Information that is necessary to initiate order modification are:

(1) A written request specifying the reason for the modification;

(2) Income information from the requesting party if the requesting party is not receiving temporary assistance for needy families; and

(3) A serviceable address for both parties in the case.

(b) Once it is determined that it is appropriate to initiate an administrative process to modify a child support order, the following steps are taken:

(1) A notice is sent to both parties in the case indicating that the agency is reviewing the current child support obligation for possible modification and requesting income information;

(2) Automated inquiries for income information are made to state and federal agencies,-

(3) Ten calendar days after the date of notice, a proposed administrative order with modified child support is generated if the threshold under section 576E-14(c), Hawaii Revised Statutes, has been met. If the threshold under section 576E-14(c), Hawaii Revised Statutes, has not been met, a statement of no change is generated. The proposed administrative order or the statement of no change is served upon the parties by regular mail pursuant to section 576E-4, Hawaii Revised Statutes. The amount of child support is determined by using the child support guidelines as required by section 576D-7, Hawaii Revised Statutes; and

(4) Once a party has been served with the proposed administrative order or the statement of no change, the party has thirty calendar days to request an administrative hearing.

History

[Eff and comp MAR 30 2014] (Auth: §§ 576D-2, 576D-6, 576E-2, 576E-5, 576E-6) (Imp: §§ 576D-2, 576D-6, 576E-2, 576E-5, 576E-6; 45 C.F.R. §§302.70, 303.8)

Haw. Code R. § 5-31-25 Review and adjustment for temporary assistance for needy families cases

(a) The agency shall review and, if appropriate, adjust the current child support order in accordance with the guidelines for temporary assistance for needy family cases every three years from the filed date of the most recent order or the date of the most recent review, whichever is later.

(b) The process described in section 5-31-24 is followed except that no written request from a party is necessary.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-6) (Imp: HRS §§ 576D-2, 576D-6, 576E-2; 45 C.F.R. §§302.70, 303.8)

Subchapter 5 ENFORCEMENT

Haw. Code R. § 5-31-27 Identifying arrearages and initiating enforcement

(a) The agency shall maintain a system for identifying title IV-D cases in which there is a failure to make payments in accordance with the child support order.

(b) Upon identifying arrearages or receiving a request for enforcement from other states, the agency shall proceed to take appropriate enforcement action to collect child support as currently ordered, within timeframes prescribed by federal regulations, 45 C.F.R. §303.6(c)(2) and (3).

(c) Upon identifying arrearages in a title IV-D case where the non-custodial parent resides in another state, the title IV-D agency in the other state shall be requested to provide enforcement services when appropriate. The request shall be made as prescribed by federal regulation, 45 C.F.R. §303.7(b).

(d) Information maintained in computerized systems available to the agency shall be adequate basis to identify an obligor as owing arrearages or to impose enforcement.

History

[Eff and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-6; 45 C.F.R. §§303.6, 303.7)

Haw. Code R. § 5-31-28 Requiring a security bond or other guarantee from a non-custodial parent

(a) A non-custodial parent owing arrearages exceeding the amount of child support due for a six month period may be required by child support order to give security, post bond, or give some other guarantee to secure payment of such arrearages.

(b) The non-custodial parent shall not be required to provide such security when:

(1) The non-custodial parent is receiving public assistance for the benefit of minor children;

(2) The non-custodial parent does not have means to post bond or other security; or

(3) It is not in the best interest of all the non-custodial parent's dependent children.

(c) When commencing administrative process to require a non-custodial parent to give security, post bond, or give some other guarantee of payment, the agency shall proceed under section 5-31-22.

History

[Eff 2/13/89; § 5-31-6; am, ren, and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-6(b)) (Imp: HRS §§ 576D-6(a)(5), 576E-5; 45 C.F.R. §303.104)

Haw. Code R. § 5-31-29 Information of arrearages to consumer reporting agencies

(a) Information of arrearages owed by a non-custodial parent that exceeds $2,500 may be released to consumer reporting agencies.

(b) The agency shall provide advance written notice to the non-custodial parent by mailing the notice to the non-custodial parent's last known address. The notice shall inform the noncustodial parent of the following:

(1) The amount of the arrearages;

(2) The agency's intent to release information of the arrearages owed by the non-custodial parent to consumer reporting agencies;

(3) A statement that the non-custodial parent may contest the agency's action by requesting an administrative review in writing within fourteen calendar days of the date of the notice; and

(4) The only issues that may be raised when contesting the intended action are limited to either an error in the amount of the arrearages or an error in the identity of the non-custodial parent,

(c) If a written objection is received by the agency from the non-custodial parent within the timeframe specified in the advance written notice, the agency shall suspend further action related to releasing information on the case to consumer reporting agencies and shall proceed under section 5-31-35.1.

History

[Eff 2/13/89; § 5-31-8; am, ren, and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-6(b)) (Imp: HRS § 576D-6(a)(6))

Haw. Code R. § 5-31-30 Property Liens

(a) Liens on real and personal property shall be established pursuant to section 576D-10.5, Hawaii Revised Statutes.

(b) The agency shall be responsible for intercepting and seizing assets, settlements, proceeds, awards, judgments, lotteries, and any other entitlement to money due to noncustodial parents who owe arrearages.

(c) A notice of the amount owed by the non-custodial parent shall be provided to any entity that may be holding funds on behalf of a non-custodial parent to whom subsection (b) applies.

(d) Upon receipt of a written request by the non-custodial parent for an administrative review on the seizure of the funds, the agency shall proceed under section 5-31-35.1.

(e) Prior to the agency receiving the funds, if the agency is served with proper notice that the non-custodial parent is contesting the seizure through a judicial proceeding, the agency shall notify the entity to hold the funds until the proceeding has been completed.

(f) If, after the judicial proceeding has been completed, it is determined that the seizure is proper and the funds have not been released to the agency, the agency shall notify the entity to release the funds to the agency.

(g) If, after an administrative review or a judicial proceeding, it is determined that the seizure is improper and the funds have not been released to the agency, the agency shall notify the entity that the lien is withdrawn.

(h) Liens may not be enforced if the administrator determines that it is not in the best interest of the child.

History

[Eff 2/13/89; § 5-31-9; am, ren, and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-6(b)) (Imp: HRS §§ 576D-6(a)(7), 576D-10.5)

Haw. Code R. § 5-31-31 State income tax refund setoff and overpayment refund

(a) The agency shall refer those persons who owe arrearages in an amount that meet the requirements of section 231-53, Hawaii Revised Statutes, to the state department of accounting and general services for income tax refund setoff.

(b) The agency shall provide advance written notice to the non-custodial parent by pre-setoff letter of the initial referral of the non-custodial parent for state income tax refund setoff. The pre-setoff letter shall be mailed to the non-custodial parent's last known address and shall include:

(1) The amount of the arrearages;

(2) The agency's intent to refer the non-custodial parent for state income tax refund setoff due to arrearages owed ;

(3) A statement that the non-custodial parent may contest the agency's action by requesting an administrative review in writing within fourteen calendar days of the date of the notice; and

(4) An explanation that the issues that may be raised when contesting the action are limited to either an error in the amount of the arrearages or an error in the identity of the non-custodial parent.

(c) A notice of proposed refund application shall be provided to the non-custodial parent once an actual setoff is identified. The notice shall be mailed to the non-custodial parent's last known address and shall include:

(1) The amount of the non-custodial parent's state income tax refund for a specified year;

(2) The amount of the arrearages;

(3) The amount that has been identified for setoff;

(4) The legal authority supporting the action;

(5) The right of the non-custodial parent to request an administrative hearing within thirty calendar days of the date of the notice;

(6) Procedures for requesting an administrative hearing; and

(7) An explanation that the action, when completed, is final, if the agency does not receive a request for an administrative hearing within thirty calendar days of the date of the notice.

(d) Upon receipt of a written request for an administrative hearing from the non-custodial parent on the matter of an identified tax refund setoff, the agency shall proceed under section 5-31-35.

(e) The agency shall provide advance notice to applicants that in cases where medical support rights have been assigned to the State, if state tax income refunds are setoff and applied to amounts designated in the child support order for medical purposes, the amounts shall be retained by the State.

(f) If the agency intercepts a state income tax refund and any portion has not been disbursed, the agency may reimburse the amount that exceeds the amount due or the amount that includes the non-custodial parent's spouse's share, up to the undisbursed amount. If the state income tax refund has been released to the obligee, the agency shall notify the obligee of any overpayment or claim made by the non-custodial parent's spouse for his or her share of the refund. The notice shall inform the obligee that he or she may have the obligation to refund the amount that was received by the obligee.

History

[Eff 2/13/89; § 5-31-10; am, ren, and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-6(b)) (Imp: HRS §§ 231-53, 576D-6(a)(8) and (9); 45 C.F.R. §303.102)

Haw. Code R. § 5-31-31.1 Federal income tax refund offset

(a) The agency shall refer to the federal Office of Child Support Enforcement, those persons who owe arrearages in an amount that meets the requirements for federal income tax refund offset.

(b) Referrals to the Office of Child Support Enforcement will result in a pre-offset notice to the non-custodial parent. Upon receiving the notice, the non-custodial parent may request that the agency conduct an administrative review of the arrearages owed.

(c) Once a federal income tax refund offset has been made, the Secretary of the United States Treasury will send notice to the non-custodial parent indicating that the offset has occurred. Upon receiving the notice, the non-custodial parent may challenge the offset and request an administrative review from the agency. Challenges received by the agency after the federal income tax refund offset has been disbursed may not result in a return of the offset amount.

(d) The agency shall refer any challenge to the offset by the non-custodial parent's spouse to the Secretary of the United States Treasury.

(e) Collections resulting from federal income tax refund offsets shall be distributed in accordance with federal regulations. When the offset is received, it may be held for up to thirty calendar days in single filed tax returns and for up to one hundred eighty calendar days in jointly filed tax returns.

(f) In cases where arrearages are owed to the State during the period that the custodial parent received temporary assistance for needy families, the amounts collected shall first be distributed to the federal and the state governments for reimbursement of the assistance paid.

(g) Upon receipt of a written request for an administrative review, the agency shall proceed under section 5-31-35.1. If the arrearages are based upon another state's child support order and the non-custodial parent requests that the administrative review be done by the state that issued the order, the agency shall send the non-custodial parent's request along with all necessary documentation to the appropriate entity in the state that issued the order.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-6) (Imp: HRS §§ 576D-2, 576D-6; 45 C.F.R. §§302.60, 303.72)

Haw. Code R. § 5-31-32 Income withholding

(a) The agency shall initiate income withholding for all title IV-D cases unless a determination has been made by the agency that income withholding would not be in the best interest of the child.

(b) If income withholding is initiated on the basis of an arrearage, the administrator or designee may sign an income withholding order which includes an additional amount to reduce the arrearages owed. A copy of the income withholding order shall be filed in the office of the clerk of the circuit court in the circuit where the child support order was issued.

(c) The agency shall send a filed copy of the income withholding order to the non-custodial parent and a notice of the income withholding to the employer. Such income withholding procedures and challenges thereto are specified in section 576D-14, Hawaii Revised Statutes.

(d) In those cases where current child support has been suspended or terminated and arrearages are owed, the most recent income withholding order that has not been terminated by court or administrative order shall continue in effect and may be served on current or future employers until such time as the arrearages are fully satisfied.

(e) Upon receipt of a written request for an administrative hearing regarding the income withholding action, the agency shall proceed under section 5-31-35.

History

[Eff and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS §§ 91-2, 576D-10) (Imp: HRS §§ 571-52.2, 576D-6(a)(10); 45 C.F.R. §303.100)

Haw. Code R. § 5-31-32.1 License suspension

(a) The agency may refer non-custodial parents who are delinquent in child support in an amount that would be owed for a three-month period to appropriate licensing authorities to suspend their driver's license.

(b) The agency may refer non-custodial parents who are delinquent in child support in an amount that would be owed for a six-month period to appropriate licensing authorities to suspend their professional license(s).

(c) The agency may refer individuals who have failed to comply with the subpoena or the warrant relating to a paternity or a child support proceeding to appropriate licensing authorities to suspend the individual's driver's or professional license(s) or both.

(d) The agency may refer individuals who have not obtained or maintained health insurance coverage as required by a child support order to appropriate licensing authorities to suspend the individual's driver's or professional license(s) or both.

(e) License suspension procedures and challenges thereto are specified in section 576D-13, Hawaii Revised Statutes.

(f) Where the non-custodial parent has entered into a repayment agreement in response to a notice of impending license suspension action and has failed to comply with the agreement, the agency shall refer the non-custodial parent to appropriate licensing authorities to suspend the individual's driver's or professional license(s) or both without further advance notice to the affected individual.

(g) Upon receipt of a written request for an administrative hearing regarding the license suspension action, the agency shall proceed under section 5-31-35.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-1, 576D-2, 576D-13) (Imp: HRS §§ 576D-1, 576D-2, 576D-13; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-32.2 Administrative financial institution data match

(a) The agency shall enter into agreements with financial institutions to exchange data related to non-custodial parents that owe arrearages.

(b) The agency may be responsible for freezing and seizing funds from the accounts of delinquent non-custodial parents that have active accounts. The administrative financial institution data match process may be initiated against a non-custodial parent who owes arrearages equal to or greater than the amount owed for one month of child support and the arrearages amount has been outstanding for a three month period.

(c) A notice of lien and levy shall be served on the financial institution that may be holding funds on behalf of a non-custodial parent to whom subsection (b) applies. Upon being served with notice, the financial institution:

(1) Notifies the account holders of the freeze of the account and the impending seizure;

(2) Discloses to the agency the amount being held, if any, pursuant to the notice of lien and levy, and also inform the agency of any safe deposit box held in the name of the non-custodial parent; and

(3) Sixty calendar days after being served with the lien, shall turn over the funds to the agency unless otherwise informed by the agency that the institution should hold onto the funds for a longer period.

(d) After serving the notice of lien and levy on the financial institution, the agency shall serve notice upon the non-custodial parent of the agency's intent to seize funds in the account held by the financial institution. The notice shall be sent by regular mail to both the last known address of record of the non-custodial parent as shown in the records of the financial institution and the address of record of the non-custodial parent as shown in the agency's child support record. For purposes of this section, the date of service means two working days following the date of mailing of the notice to the non-custodial parent by the agency. The notice shall contain the following information:

(1) Identification of the financial institution where the funds are being held;

(2) The name, the last four digits of the social security number, if available, and each applicable child support case number or numbers of the non-custodial parent;

(3) The amount of the arrears owed by the non-custodial parent; and

(4) A statement that the non-custodial parent may contest the seizure by requesting an administrative review in writing within fourteen calendar days of the date of service of the notice of intent to seize the funds.

(e) After receipt of a written request by the non-custodial parent for an administrative review on the seizure of the funds held by the financial institution, the agency shall proceed under section 5-31-35.1.

(f) If the agency receives a timely request for an administrative review prior to the agency receiving the funds from the financial institution, the agency may notify the financial institution to hold the funds until the administrative review has been completed.

(g) If, after the administrative review, it is determined that the seizure is proper and the funds have not been released to the agency, the financial institution shall be notified to release the funds to the agency.

(h) If, after the administrative review, it is determined that the seizure is improper and the funds have not been released to the agency, the financial institution shall be notified that the lien is released.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-15) (Imp: HRS § 576D-15; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-32.3 Referral for passport denial

(a) The agency may request the federal Office of Child Support Enforcement to deny, revoke, or limit the passport of any non-custodial parent that owes arrearages equal to or greater than $2,500.

(b) In cases where such requests are approved, passport privileges will not be restored unless the arrearages have been fully satisfied.

(c) The administrator has the discretion to request the restoration of passport privileges when the non-custodial parent clearly demonstrates an inability to fully satisfy the arrearages owed and that exigent circumstances exist.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-32.4 Other enforcement mechanisms

The agency may utilize other enforcement mechanisms to collect arrearages. These include, but are not limited to:

(1) Garnishment;

(2) Criminal forfeiture;

(3) Tax sale; and .,

(4) Foreclosure.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-10.5) (Imp: HRS §§ 576D-2, 576D-10.5; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-32.5 Referral for special prosecution

In cases where the non-custodial parent owes arrearages and the agency is not successful in securing his or her compliance in meeting child support obligations, the agency may refer the cases to the appropriate county, state, or federal agencies for special prosecution.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §§302.34, 303.6)

Haw. Code R. § 5-31-32.6 Bankruptcy

During the pendency of the noncustodial parent's bankruptcy proceeding, the agency may file a proof of claim and take all appropriate enforcement actions.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-32.7 Insurance company data match

(a) The agency may enter into agreements to obtain insurance claim information related to non-custodial parents that owe arrearages.

(b) The agency may institute such enforcement action as appropriate based upon the information obtained from the data match.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §303.6)

Haw. Code R. § 5-31-35 Requests for administrative hearings on enforcement actions

(a) After receipt of a written request for an administrative hearing on an enforcement action imposed by the agency, a determination shall be made whether the criteria for scheduling a hearing have been met.

(b) The criteria for scheduling an administrative hearing include:

(1) Receipt of the written request for a hearing on a timely basis as prescribed by the specific enforcement action; and

(2) The issues stated in the request are limited to those which are allowed to be considered by applicable state law and federal regulations.

(c) If the criteria for scheduling an administrative hearing have been met, the agency shall send a written notice of the date, place, and the time of the hearing to the individual requesting the hearing. The notice shall be sent by regular mail to the individual's last known address.

(d) If the criteria for scheduling an administrative hearing have not been met, the agency shall send the requestor a written notice that the request for hearing is denied.

History

[Eff and comp 10/31/91; am and comp MAR 30 2014] (Auth: HRS § 576E-8) (Imp: HRS § 576E-8; 45 C.F.R. §§303.100, 303.101)

Haw. Code R. § 5-31-35.1 Requests for administrative review on enforcement actions

(a) After receipt of a written request for an administrative review on an enforcement action imposed by the agency, a determination shall be made whether the criteria for scheduling an administrative review have been met.

(b) The criteria for scheduling an administrative review include:

(1) Receipt of the written request for a review on a timely basis as prescribed by the specific enforcement action; and

(2) The issues stated in the request are limited to those which are allowed to be considered by applicable state law and federal regulations.

(c) If the criteria for scheduling an administrative review have been met, the agency shall schedule and perform the review. The results of the review and relevant documentation shall be sent to the non-custodial parent. The agency shall notify the non-custodial parent that an in-person review may be scheduled if the non-custodial parent submits a written request for an in-person review within fourteen calendar days from the date that the results of the administrative review were sent to the noncustodial parent.

(d) If the criteria for granting an administrative review have not been met, the request is denied, and the agency shall send the non-custodial parent a written notice of denial.

(e) After receipt of a timely written request for an in-person review, the agency shall send a written notice to the noncustodial parent of the date, place, and the time of the in-person review. The notice shall inform the non-custodial parent to bring to the review all appropriate child support related documentation that the non-custodial parent wishes to be considered.

(f) Following the in-person review, the results of the review and relevant documentation shall be provided to the noncustodial parent.

(g) If the request for an in-person review has not been received on a timely basis, the request is denied and the agency shall send the non-custodial parent a written notice of denial.

(h) The applicable enforcement action shall continue if:

(1) The request for an administrative review has not been received or has been denied;

(2) The results of an administrative review was sent to the non-custodial parent and no written request for an in-person review was received in a timely manner,- or

(3) After an in-person review is conducted, the agency determines that the action shall continue.

(i) For enforcement actions related to federal tax or administrative offset, the results of the administrative review and the results of the in-person review, including relevant documentation, shall be provided to the custodial parent in a non-title IV-A case.

(j) The agency, at its discretion, may suspend taking an applicable enforcement action at any time.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576E-8) (Imp: 4 5 C.F.R. §§303.100, 303.101 )

Subchapter 5.1 COLLECTIONS AND DISBURSEMENTS

Haw. Code R. § 5-31-38 State collection and disbursement unit

(a) The agency shall maintain a statewide collection and disbursement unit. This unit shall receive child support collections and disburse funds to the proper parties as required by federal law.

(b) The agency shall meet the federal requirements governing the disbursement of money received pursuant to a child support order.

(c) When the non-custodial parent makes a child support payment by personal check and there are insufficient funds in the account, the non-custodial parent shall be instructed to submit future payments by cashier's check, certified bank check, money order, or another method that will ensure valid payment.

(d) When the non-custodial parent's employer makes a child support payment by company check and there are insufficient funds in the account, the employer shall be instructed to submit future payments by cashier's check, certified bank check, money order, or another method that will ensure valid payment.

(e) Any check received that does not clear due to insufficient funds or any other reason, may not be given credit as payment for child support.

(f) When the agency disburses a payment to the custodial parent, an assignment of the right to receive and retain the amount that the agency disbursed is created from the custodial parent to the agency in the following circumstances:

(1) Where a payment is disbursed to the custodial parent based upon a check received by the agency that does not clear due to insufficient funds or for any other reason;

(2) Where a payment is disbursed to the custodial parent based upon a federal or state tax intercept refund received by the agency that has subsequently been retracted by the federal or state tax authority; or

(3) Where a payment received by the agency is erroneously disbursed to the custodial parent.

The amount covered by the assignment may be established as an arrearage owed by the non-custodial parent to the agency and may include any applicable fees. Such arrearages shall be eligible for collection through all appropriate child support enforcement mechanisms.

(g) The agency may proceed against the custodial parent or non-custodial parent to recoup any payment disbursed inappropriately.

(h) If the agency has received child support in an amount that exceeds the amount due and has access to the overpayment, or if the agency determines that reimbursement can be made, the agency shall distribute all appropriate refunds within thirty calendar days to the non-custodial parent after the overpayment has been discovered. If the overpayment has been released to the obligee, the agency shall notify the obligee of the overpayment and inform the obligee of his or her obligation to refund the overpayment.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576D-6, 576D-10) (Imp: HRS §§ 576D-2, 576D-6, 576D-10; 45 C.F.R. 302.33(d))

Subchapter 6 MAINTENANCE OF RECORDS

Haw. Code R. § 5-31-39 Safeguarding information

The agency shall maintain such records as may be necessary and proper to carry out its functions in accordance with title IV-D of the Social Security Act and chapter 576D, Hawaii Revised Statutes. The use or disclosure of information concerning applicants and recipients shall be limited pursuant to section 576D-12, Hawaii Revised Statutes.

History

[Eff 2/13/89; am 7/27/90; § 5-31-11; ren and comp OCT 31 1991] (Auth: HRS § 576D-6(a)(10)), 92F-2, 92F-11, 92F-13, 92F-14, 576D-12; 45 C.F.R. §303.21)

Haw. Code R. § 5-31-40 Retention of records

(a) Case records shall be retained, by the agency for at least three years from the date of closure, in accordance with 45 C.F.R. Part 74, Subpart D.

(b) The agency may require of the requestor payment of a reasonable fee for the reproduction and processing of records.

History

[Eff and comp OCT 31 1991] (Auth: HRS §§ 91-2, 576D-2] (Imp: HRS § 92F-18; 45 C.F.R. §§74.20, 74.21, 74.22, 74.2374.24, 74.25, 303.11)

Haw. Code R. § 5-31-41 Electronic case records

The agency may establish, convert, and maintain the records for all agency cases in an electronic format.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 489E-12, 489E-17, 489E-18) (Imp: HRS §§ 489E-12, 489E-17, 489E-18; 45 C.F.R. §302.15)

Subchapter 7 CASE CLOSURE

Haw. Code R. § 5-31-43 Termination

(a) Child support shall automatically be terminated if the conditions for termination set forth in the child support order are met. Such conditions include, but are not limited to, the adoption, marriage, legal emancipation, enlistment in the military, and death of the child. Child support shall also terminate if the child reaches eighteen years of age and there is no provision in the child support order for continuing child support.

(b) The agency may initiate action to terminate child support when the conditions for termination are not set forth in the child support order and the agency determines that termination is appropriate. Such conditions include, but are not limited to, the court ordered change of custody of the child to the obligor, the parties residing together with the child as an intact family, and the conditions described in subsection (a). A proposed administrative order terminating child support is generated and served upon the parties by regular mail pursuant to section 576E-4, Hawaii Revised Statutes. The process as described in section 5-31-22(d)(4) through (11) is followed to complete the termination action.

(c) In cases where the child support order provides for child support past the age of eighteen due to continuing education and services are being provided under title IV-D, the agency shall seek verification of the child's continued educational status. If the child is in high school or is enrolled or plans to enroll full-time in a post-secondary educational or vocational institution, then child support shall continue un-interrupted upon receipt of such verification. The agency shall initially request verification of continued educational status three months prior to the child's eighteenth birthday and semiannually thereafter. The request for verification shall include the name and date of birth of the child for whom the verification is being sought and time frame when the verification must be returned to the agency before the agency's collection of child support is terminated. Verification of continuing school shall consist of:

(1) Registration confirmation from the high school;

(2) Prior to the beginning of the school year, an acceptance letter on school letterhead and the child's written statement indicating his or her intent to enroll on a full-time basis;

(3) The registration confirmation from the school of full-time enrollment or, if the full-time status is not indicated on the registration, a minimum of twelve credit hours per semester or its equivalent be reflected on the registration and indicating the school and student names;

(4) The receipt of tuition payment reflecting full-time enrollment and indicating the school and student names; or

(5) The school registrar's letter indicating full-time enrollment status.

If the agency does not receive verification within the timeframe stated in the request for verification, the agency's collection of child support shall be terminated. Once the agency's collection of child support has been terminated, future child support shall only be reinstated commencing the first of the month following the date proof of the child's full-time enrollment is received by the agency. Reinstatement of the agency's collection of child support shall only occur if the adult child has continuously attended post-high school education on a full-time basis.

(d) In cases where the child support order provides for child support past the age of eighteen due to continuing education and services are not being provided under title IV-D, the agency shall seek verification of the child's continued educational status three months prior to the child's nineteenth birthday. If the agency does not receive verification within the timeframe stated in the request for verification, the agency's collection of child support shall be terminated.

(e) In cases where the child support order provides for child support past the age of eighteen, the agency's collection of child support shall be terminated upon the child reaching twenty-three years of age unless the child support order provides for continuing child support past the age of twenty-three.

(f) The agency may terminate the income withholding as necessary.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576D-2, 576E-14) (Imp: HRS §§ 576D-2, 576E-14; 45 C.F.R. §303.11)

Haw. Code R. § 5-31-44 Criteria for case closure

(a) The agency may close a case without application by any party to the case.

(b) Cases may be closed if the case meets at least one of the following criteria:

(1) There is no longer a current support order and arrearage is under $500 or unenforceable under state law.

(2) The absent parent or putative father is deceased and no further action, including a levy against the estate, can be taken.

(3) Paternity has not been established and will not be pursued because:

(A) The child has reached the age of three years beyond the age of majority and the action is barred by a statute of limitations;

(B) All identified putative fathers have been excluded by genetic testa or legal process; or

(C) The agency has determined that it would not be in the best interests of the child, pursuant to section 5-31-4(c), to establish paternity.

(4) The agency is unable to locate the absent parent over a three-year period, having made periodic efforts according to schedules prescribed by federal regulations using available and appropriate location sources.

(5) The absent parent is institutionalized in a licensed facility for the mentally ill, incarcerated with no chance of parole, or medically totally and permanently disabled, and no income or assets are available.

(6) The absent parent is a citizen of and lives in a foreign country, does not work for the United States government or a company which has its headquarters or offices in the United States, has no accessible domestic income or assets, and the State has been unable to establish reciprocity with the foreign country in which the absent parent resides.

(7) The custodial parent has requested only location services from the Federal Parent Locator Service and the request has been completed.

(8) The custodial parent has requested case closure in a non-AFDC, former AFDC, Medicaid, or foster care case, and there is no assigned arrearage.

(9) There has been a finding of good cause for failure to cooperate and the title IV-A or title IV-E agency has determined that support enforcement may not proceed.

(10) The agency is unable to contact a non-AFDC custodial parent by telephone or letter over a period of thirty calendar days and at least one certified or registered letter has been sent.

(11) The non-AFDC custodial parent is uncooperative with the agency and the agency is unable to proceed with the case without the custodial parent's cooperation, and there is no assigned arrearage.

History

[Eff and comp OCT 31 1991] (Auth: HRS § 576D-2] (Imp: 45 C.F.R. §303.11)

Haw. Code R. § 5-31-45 Notice of case closure

(a) In cases meeting the criteria in section 5-31-44(b)(1) through (6), (10) and (11), the agency shall notify the applicant of the closing of a title IV-D case by sending written notice to the applicant's last known address. The notice shall be sent at least sixty calendar days prior to the effective date of closure.

(b) The notice shall inform the applicant of:

(1) The agency's intent to close the case;

(2) The effective date of closure,-

(3) The reasons for the intended action;

(4) The statutes and rules supporting the action; and

(5) An explanation that the applicant may submit information that was previously unknown to the agency, which may impact upon the disposition of the case, within sixty calendar days of the date of the notice.

(c) Upon closing a case pursuant to section 5-31-44(b)(12), the agency shall send written notice to the initiating state at least sixty calendar days prior to closure.

History

[Eff and comp 10/31/1991; am and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §§ 303.7, 303.11)

Haw. Code R. § 5-31-46 Maintaining active case status

If the agency receives information on a case in response to the notice of closure sent pursuant to section 5-31-45 of this chapter, within the specified timeframe, and the information enables the agency to proceed with the process of the case, the agency shall maintain the case as active and proceed with appropriate action.

History

[Eff and comp OCT 31 1991] (Auth: HRS § 576D-2) (Imp: 45 C.F.R. §§303.11)

Subchapter 8 INTERSTATE

Haw. Code R. § 5-31-49 Initiating and responding interstate cases

(a) Once proper application has been received and a determination has been made to initiate appropriate action to an other state, the agency shall send all necessary documentation to the other state for the locate of an individual, the establishment of paternity or child support or both, modification of an existing child support order, or the enforcement, and collection of child support.

(b) Upon receipt of a proper interstate request from an other state, the agency shall process the request and take all appropriate action.

(c) Where the agency is the responding state, information shall be disclosed in accordance with the requirements of the initiating state.

(d) All actions shall be taken within the time frames specified by federal law.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576B-304, 576B-305, 576B-307, 576B-310, 576D-2) (Imp: HRS §§ 576B-304, 576B-305, 576B-307, 576B-310, 576D-2; 45 C.F.R. §§302.36, 303.7)

Haw. Code R. § 5-31-50 Central registry

The agency shall maintain a central registry that receives and distributes interstate requests, and responds to interstate inquiries within the time frames, specified by federal law.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576B-307, 576B-310, 576D-2) (Imp: HRS §§ 576B-307, 576B-310, 576D-2; 45 C.F.R. §§302.36, 303.7)

Haw. Code R. § 5-31-51 Federal full faith and credit for child support orders act

Federal full faith and credit for child support orders act requires that a valid order issued by an other state be recognized and enforced as if the order were issued in this State.

History

[Eff and comp MAR 30 2014] (Auth: HRS § 576D-2) (Imp: HRS § 576D-2; 45 C.F.R. §§302.36, 302.70, 303.7; 28 U.S.C. §1738B)

Haw. Code R. § 5-31-52 Enforcement services

The agency shall provide the same level of service for interstate cases, as would be provided for in-state cases.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576B-305, 576D-2) (Imp: HRS §§ 576B-305, 576D-2; 45 C.F.R. §§302.36, 303.11)

Haw. Code R. § 5-31-53 Forwarding collections

The agency shall forward collections to the initiating state for distribution within the time frames specified by federal law.

History

[Eff and comp MAR 30 2014] (Auth: HRS §§ 576B-319, 576D-2) (Imp: HRS §§ 576B-319, 576D-2; 45 C.F.R. §§302.32, 302.70)

Subchapter 9 PENALTIES

Haw. Code R. § 5-31-58 Penalties for failure to cooperate with the agency's request for information

(a) Any person or entity that wilfully fails to promptly respond to the agency's request for information shall be subject to a fine of no more than $1,000.

(b) When there is wilful failure to promptly respond to the agency's request for information, the person or entity shall be sent a written notice of the agency's findings by regular mail and shall have fourteen calendar days to comply with the agency's request.

(1) The first instance shall result in a fine of $250;

(2) The second instance shall result in a fine of $500; and

(3) The third and subsequent instances shall result in a fine of $1,000.

(d) The notification of imposition of the penalty will be sent by regular mail and the payment shall be made within thirty calendar days from the date of notification.

(e) Appeals may be made within thirty calendar days from the date of notification of the imposition of the penalty. All appeals shall be made to the attorney general or his or her designee.

History

[Eff and comp MAP 30 2014] (Auth: HRS § 576D-17) (Imp: HRS § 576D-17)

Chapter 34 PRACTICE AND PROCEDURE FOR ADMINISTRATIVE PROCESS

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 5-34-1 Purpose

This chapter provides rules of practice and procedure to govern expedited administrative proceedings commenced within the department of the attorney general pursuant to 42 United States Code section 666, and chapters 576E and 91, Hawaii Revised Statutes, for the purpose of establishing, modifying, suspending, terminating, and enforcing child support orders while guaranteeing a fair evidentiary hearing.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS § 91-2, HRS chapter 576E, 45 C.F.R. §303.101)

Haw. Code R. § 5-34-2 Definitions

For the purposes of this chapter:

"Administrator" means the hearings officer appointed and commissioned by the attorney general as the supervisor of the OCSH.

"Agency" means the child support enforcement agency as defined in section 576E-1, Hawaii Revised Statutes.

"Custodial parent" means the custodial parent as defined in section 576E-1, Hawaii Revised Statutes.

"Debt" means public assistance debt as described in section 346-37.1, Hawaii Revised Statutes.

"Department" means the department of the attorney general.

"Hearings officer" means a hearings officer as defined in section 576E-1, Hawaii Revised Statutes.

"Office" means the office of child support hearings as defined in section 576E-1, Hawaii Revised Statutes.

"Party" means a person, state, or agency named in a proceeding or any interested person or aggrieved person entitled as of right to participate in the proceeding before a hearings officer.

"Proceedings" means the expedited administrative proceedings under this chapter pursuant to chapters 576E and 91 and, when otherwise applicable, chapters 231, 571, 576B, 576D, 580, and 584, Hawaii Revised Statutes.

"Responsible parent" means a responsible parent as defined in section 576E-1, Hawaii Revised Statutes.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS §§ 91-2, 576E-1)

Haw. Code R. § 5-34-3 Office

All communications to the hearings officers as authorized by this chapter, unless otherwise specifically directed, shall be addressed to:

Office of Child Support Hearings

Department of the Attorney General

State of Hawaii

Kakuhihewa Building

601 Kamokila Boulevard, Room 436

Kapolei, HI 96707

All communications to the administrative process branch of the agency, unless otherwise specifically directed, shall be addressed to:

Administrative Process Branch

Child Support Enforcement Agency

Department of the Attorney General

State of Hawaii

Kakuhihewa Building

601 Kamokila Boulevard, Room 251

Kapolei, HI 96707

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-4 Pro se appearance

A party may appear on his or her own behalf at any stage of the proceedings.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24, 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS §§ 91-2, 576E-9)

Haw. Code R. § 5-34-5 Representation

A party, at his or her own expense, may be represented by legal counsel or any other individual authorized by the party at any stage of the proceedings. A representative may be required to furnish proof of authorization and qualification to act in that capacity.

History

[Eff 2/13/ 89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS§§ 91-2, 576E-9) (Imp: HRS §§ 91-2, 576E-9)

Haw. Code R. § 5-34-6 REPEALED

History

R DEC 24 2001

Haw. Code R. § 5-34-7 Consolidation

The hearings officer, sua sponte, or upon any party's motion timely made and for good cause shown, may consolidate two or more proceedings which involve substantially the same issues, arising out of the same general transaction, or involving the same person or persons.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-8 Requests and motions

(a) Requests and motions regarding a hearing shall be in writing, shall be signed by the party or representative submitting the request or motion, and shall include the following:

(1) The date the request is written;

(2) The name, address, and telephone number of the party or representative making the request;

(3) The names of the responsible parent and the custodial parent;

(4) The date, time, and location of the hearing;

(5) The agency's case number; and

(6) The request and the reason for the request,

(b) Unless otherwise provided, motions and requests regarding a hearing shall be submitted to the office.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (ImP: HRS § 91-2)

Haw. Code R. § 5-34-9 Computation of time

In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. As used in this rule, "holiday" includes any day designated as such pursuant to section 8-1 of the Hawaii Revised Statutes.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-10 Hearings officer

A hearings officer shall have the following powers:

(1) Issue notices;

(2) Administer oaths and affirmations;

(3) Consolidate hearings or sever proceedings;

(4) Subpoena and examine witnesses;

(5) Issue subpoenas;

(6) Rule upon offers of proof, receive relevant evidence, and exclude evidence which is irrelevant, immaterial, repetitious, or cumulative;

(7) Regulate the course and conduct of the hearing, including the referral for contempt proceedings;

(8) Regulate the manner of any examination so as to prevent the harassment, or intimidation, of any witness at the hearing;

(9) Remove disruptive individuals, including any party, legal counsel, witness, or observer;

(10) Hold conferences, before or during the hearing for the settlement or simplification of issues;

(11) Rule on motions and dispose of procedural matters;

(12) Conduct hearings and enter orders as authorized under chapter 576E, Hawaii Revised Statutes, and other applicable statutes;

(13) Dispose of other matters that properly arise in the course of contested proceedings;

(14) Continue hearings sua sponte or upon motion of the parties; and

(15) Dismiss the action whenever it appears by motion of the parties or sua sponte by the hearings officer for good cause shown.

History

[Eff 2/13/89; am and comp OCT. 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 576E-2, 576E-10) (Imp: HRS §§ 576E-2, 576E-10, 91-2, 45 C.F.R. §303.101)

Haw. Code R. § 5-34-11 Disqualification of hearings officer

(a) A hearings officer may disqualify himself or herself when the hearings officer's impartiality might reasonably be questioned, including, but not limited to instances where:

(1) The hearings officer has a financial interest in the subject matter in controversy or in a party to the proceeding such that the outcome of the proceeding will be substantially affected; or

(2) The hearings officer or his or her spouse is related to a party to the proceeding within the third degree.

(b) A hearings officer shall not be disqualified if after disclosing the basis of disqualification on the record, all parties agree the officer may nevertheless preside.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-12 Ex parte communications

(a) In any administrative proceeding before a hearings officer, the agency or any other government agency shall not privately communicate on the merits of the case with the hearings officer.

(b) It shall be improper for the department or any person interested in a proceeding to seek to influence the judgment of the hearings officer.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-13 Subpoenas; where provided by law; form

(a) A hearings officer, sua sponte, or at the request of a party, shall have the power to issue subpoenas requiring the attendance of witnesses or the production of documents or things at the hearing. The hearings officer may require that any request for the issuance of a subpoena identify with particularity the person to be subpoenaed or the documents or things desired. Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in family court in the state. Every subpoena shall state the name of the department and the title of the proceeding, and shall command the person to whom it is directed to attend and give testimony or to produce the documents or things designated. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to such person the fees for one day's attendance and the mileage allowed by law. The party requesting issuance of the subpoena shall be responsible for preparation and service of the subpoena and for tendering payment of any fees for attendance and mileage required by law. When the subpoena is issued on behalf of the State or a county, or an officer or agency of the State or a county, fees for attendance and mileage need not be tendered.

(b) Upon motion timely made, or upon the hearings officer's own motion, the hearings officer may quash or modify the subpoena if it is unreasonable or oppressive.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 576E-2, 91-2) (Imp: HRS §§ 91-2, 576E-2, 576E-10)

Subchapter 2 PROCEDURES

Haw. Code R. § 5-34-14 Administrative hearings; transmission of case file; notice

(a) Upon receipt of the request for hearing, the agency shall transmit a hearings case file to the office.

(b) All parties shall be given written notice of the hearing at least fifteen days before the hearing. The notice shall include the date, time, place, and nature of the hearing.

History

[Eff 2/13/89; 7/27/90; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 91-9, 576E-4, 576E-9) (Imp: HRS §§ 91-2, 91-9, 576E-4, 576E-9)

Haw. Code R. § 5-34-14.5 Disposition of actions prior to hearing

(a) Following a request for hearing, a hearings officer may grant:

(1) A waiver of the requested hearing;

(2) A motion to dismiss; or

(3) A motion to continue.

(b) The request of waiver or motion to dismiss or continue shall be made as soon as the facts requiring the request or motion become apparent.

History

[Eff 2/13/8 9; am and comp OCT 31, 19 91; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 576E-10) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-15 Conduct of hearings

(a) Unless authorized by the hearings officer, attendance at a hearing shall be limited to the parties. The hearing shall be recorded. A copy of the recording shall be available upon written request submitted to the office. The office does not provide transcripts of recordings.

(b) Hearings may be conducted by telephone or other electronic telecommunication methods at the discretion of the hearings officer.

(c) Hearings shall be conducted in the offices of the agency or at other locations as may be designated by the hearings officer.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 576E-9, 91-2) (Imp: HRS §§ 576E-9, 91-2)

Haw. Code R. § 5-34-16 Evidence; discovery; admissibility criteria

(a) All relevant and material evidence is admissible which, in the opinion of the hearings officer, is the best evidence reasonably obtainable, having due regard for its necessity, availability, and trustworthiness. In ruling upon the admissibility of evidence, the hearings officer shall give consideration to, but shall not be bound by, the rules of evidence governing civil proceedings.

(b) Documentary evidence may be received in the form of copies and excerpts or incorporated by reference; provided that, upon request, all other parties to the proceedings shall be given an opportunity to compare the copy with the original.

(c) The hearings officer shall give effect to the privileges recognized by law, and may take notice of judicially recognizable facts and of generally recognized technical or scientific facts.

(d) Every party shall have the right to cross-examine witnesses and to submit rebuttal evidence.

(e) When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The hearings officer may use discretion to exclude inadmissible or cumulative evidence. Parties objecting to the introduction of evidence shall state the precise ground of objection at the time the evidence is offered.

(f) Except as otherwise provided by law, the burden of proof shall be upon the party initiating the proceeding. Proof of a matter shall be by a preponderance of the evidence.

(g) Every party shall provide to the other parties copies of all documents intended to be offered or used as evidence.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 91-10, 576E-9, 576E-10) (Imp: HRS §§ 91-2, 91-10, 576E-9, 576E-10)

Haw. Code R. § 5-34-17 REPEALED

History

R DEC 24 2001

Haw. Code R. § 5-34-18 Duty to serve other parties

Unless otherwise provided by law, a party submitting a pleading, motion, memorandum, or request shall provide, in a timely manner, a copy to each of the other parties or their representatives.

History

[Eff 2/13/89; am and comp; OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 91-2) (Imp: HRS § 91-2)

Haw. Code R. § 5-34-19 Consent order

In any administrative proceeding under this chapter, attempts to reach an agreed disposition are encouraged. A case may be disposed by consent order which shall be deemed to be a waiver of the right to a hearing and the right to appeal to the family court.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 91-9, 576E-8) (Imp: HRS §§ 91-2, 91-9, 576E-8)

Haw. Code R. § 5-34-20 Default

If the party upon whom notice of hearing was served fails to appear at the time and place of the scheduled hearing, the hearings officer may, upon showing of valid notice, enter default against the party and enter orders and decisions as appropriate.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS § 576E-10) (Imp: HRS § 91-2, 45 C.F.R. §303.101)

Haw. Code R. § 5-34-21 Decision and order after hearing

After the close of a hearing, the hearings officer shall enter an administrative order or decision, together with findings of fact and conclusions of law.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS §§ 91-2, 576E-9, 45 C.F.R. §303.101)

Haw. Code R. § 5-34-22 REPEALED

History

R DEC 24 2001

Haw. Code R. § 5-34-23 Effective date of order

Only support obligation payments accruing subsequent to service of the request or proposed order on all parties may be modified, and only upon a showing of a substantial and material change of circumstances. The effective date of an order establishing or terminating a child support obligation shall be within the discretion of the hearings officer.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS §§ 91-2, 576E-9)

Haw. Code R. § 5-34-24 Appeal to family court

(a) Any party aggrieved by an administrative order is entitled to judicial review in conformance with sections 91-14 and 576E-13, Hawaii Revised Statutes.

(b) The parties on appeal shall follow applicable rules of the family courts and appellate procedure.

(c) The thirty-day period for filing a notice of appeal with the family court may be extended for good cause shown upon written motion or request submitted to the administrator within the thirty-day period.

History

[Eff 2/13/89; am and comp OCT 31, 1991; am and comp DEC 24 2001] (Auth: HRS §§ 91-2, 91-14, 576E-9) (Imp: HRS §§ 91-14; 576E-13)

Haw. Code R. § 5-34-25 Clerical mistakes, oversight, and omissions

Clerical mistakes in orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the hearings officer at any time, sua sponte, or on the motion or request of any party and after such notice, if any, as the hearings officer orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the family court, and thereafter while the appeal is pending may so corrected leave of the family court.

History

[Eff 24 2001] (Auth: HRS §§ 91-2, 576E-9) (Imp: HRS § 91-2, 576E-9)

Subtitle 5 FORFEITURES

Chapter 51 ADMINISTRATIVE ASSET FORFEITURE

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 5-51-1 Purpose

This chapter shall govern the practice and procedure for the filing and processing of petitions for administrative forfeiture, pursuant to section 712A-10, Hawaii Revised Statutes.

History

[Eff 1/17/2020] (Auth: HRS §§ 712A-10) (Imp: HRS §§ 712A-1, 712A-10, 712A-16)

Haw. Code R. § 5-51-2 Definitions

The definitions set forth in chapter 712A, Hawaii Revised Statutes, are incorporated herein by reference.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Subchapter 2 PETITIONS FOR ADMINISTRATIVE FORFEITURE

Haw. Code R. § 5-51-21 Petitions for administrative forfeiture

(a) In addition to the requirements set forth in section 712A-10, Hawaii Revised Statutes, the petition for administrative forfeiture provided in section 712A-10(1), Hawaii Revised Statutes, shall include:

(1) An itemized listing of all property subject to forfeiture in the caption;

(2) The estimated value of each item and the aggregate value of all subject property listed in the caption;

(3) The vehicle identification number of any vehicle listed in the caption (if no vehicle identification number can be ascertained, the petition shall include a statement setting forth the reason why the vehicle identification number is not ascertainable);

(4) A statement that all requirements and deadlines of chapter 712A, Hawaii Revised Statutes, have been met;

(5) A statement setting forth the applicable covered offense(s) and any lesser included offense(s) upon which the property is subject to forfeiture pursuant to section 712A-4, Hawaii Revised Statutes, and the basis for the forfeiture pursuant to section 712A-5, Hawaii Revised Statutes;

(6) A statement of relevant facts sufficient to support a finding of probable cause for forfeiture of the property pursuant to section 712A-6, Hawaii Revised Statutes;

(7) The identity of all persons who have an interest in the property;

(8) A statement setting forth the interest in the subject property held by each person known to have an interest in the subject property as defined in section 712A-1, Hawaii Revised Statutes; and

(9) Copies of all police reports pertaining to the covered offense(s) and any other documentation relevant to supporting a finding of probable cause as to the covered offense(s) as set forth in the petition shall be submitted as a separate document. Any police report or other confidential documentation submitted pursuant to this subsection shall be protected from disclosure as provided by law.

(b) There shall be only one petition filed in matters involving multiple interested parties when the forfeiture of subject property shares the same underlying factual basis.

(1) All subject currency shall:

(A) Be deposited in accordance with the procedures set forth in appendix E, "Deposit of Currency

Procedures"; and

(B) Be deposited after but no later than thirty days after the petition for administrative forfeiture is filed with the attorney general.

(2) After the subject currency has been deposited, proof of deposit shall be given to the attorney general by submitting the following:

(A) The completed "List of Deposits Form," attached hereto as appendix F;

(B) The bank's preprinted deposit ticket, a sample of which has been attached hereto as appendix G, "Preprinted Deposit Ticket"; and

(d) A petition for administrative forfeiture shall be filed with the attorney general within forty-five days of the prosecuting attorney receiving the written request for forfeiture from the seizing agency, calculated as set forth under section 712A-10, Hawaii Revised Statutes.

(e) In addition to the petition for administrative forfeiture, a "Notice of Intention to Administratively Forfeit Property," a sample template of which is attached as appendix B, shall be filed with the following attachments:

(1) As "Exhibit 1," the "Verified Petition for Remission or Mitigation Form," attached herein as appendix C; and

(2) As "Exhibit 2," the "Declaration in Support of Request to Proceed In Forma Pauperis Form," attached herein as appendix D.

(f) A petition may be sent by regular mail, email, or facsimile transmittal to the appropriate division within the department of the attorney general, within the time limit for such filing. The date on which the petition is received by the attorney general shall be deemed to be the date of filing.

(g) A petition that fails to comply with the requirements set forth in subchapter 2 herein may be dismissed or denied by the attorney general with or without prejudice. Any order of dismissal or denial issued pursuant to subchapter 2 shall state the underlying reason(s) for dismissal or denial.

(h) There shall be no appeal from the attorney general's decision or order pursuant to section 712A-10(11).

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-4, 712A-5, 712A-6, 712A-9, 712A-10)

Haw. Code R. § 5-51-22 Refiled petitions for administrative forfeiture

(a) A petition dismissed without prejudice may be refiled if filed with the attorney general within forty-five days of the date of the dismissal. Any and all refiled petitions shall comply with the filing requirements set forth in subchapter 2.

(b) The prosecuting attorney shall be barred from refiling a petition if the petition is not refiled within the forty-five-day deadline provided in section 5-51-22(a), unless the prosecuting attorney establishes good cause for failing to timely refile.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-23 Amended petitions for administrative forfeiture

(a) The prosecuting attorney may seek to amend a petition, provided the amended petition:

(1) Complies with the filing requirements set forth in subchapter 2 herein;

(2) Is received by the attorney general prior to the filing of any order in the matter;

(3) Includes a transmittal stating the good faith reason the amended petition is necessary; and

(4) Complies with deadlines set by the attorney general within the attorney general's discretion and pursuant to the applicable law.

(b) The attorney general shall not accept an amended petition for administrative forfeiture unless there is a good faith reason for the amendment.

(c) An amended petition that fails to comply with the requirements, set forth in subchapter 2 herein, may be dismissed or denied by the attorney general with or without prejudice. Any order of dismissal or denial issued pursuant to subchapter 2 herein shall state the underlying reason(s) for dismissal or denial.

(d) There shall be no appeal from the attorney general's decision or order pursuant to section 712A-10(11).

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-24 Withdrawal of petition for administrative forfeiture

(a) The prosecuting attorney may submit a motion to withdraw a petition for administrative forfeiture at any time prior to the filing of an order on the petition by the attorney general.

(b) Upon receipt of the motion to withdraw a petition, the attorney general shall file an order dismissing the petition without prejudice.

(c) Any petition dismissed without prejudice under this section shall comply with the refiling requirements set forth in section 5-51-22 herein.

(d) The prosecuting attorney shall be barred from refiling a petition that has been withdrawn if the petition is not refiled within the forty-five-day deadline provided in section 5-51-22(a) herein.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-25 Documentation of service efforts for notice of pending forfeiture and petition for administrative forfeiture

(a) In addition to complying with the notice requirements in sections 712A-10(2), 712A-10(3), and 712A-8, Hawaii Revised Statutes, when serving copies of the notice of pending forfeiture and petition for administrative forfeiture on any interested party or parties, the prosecuting attorney shall:

(1) Submit to the attorney general, as soon as practicable, a "Certificate of Service and Certificate of Attempt to Serve," a sample of which is attached hereto as appendix H, that indicates whether service was:

(A) Completed by personal service;

(B) Completed by certified mail;

(C) Attempted by certified mail, which was returned and marked "UNCLAIMED" or "REFUSED," and was subsequently completed by regular mail; or

(D) Attempted by both certified and regular mail and both were returned. In such instances, the prosecuting attorney shall also indicate all other efforts undertaken to serve the interested party and shall complete the "Certificate of Attempt to Serve" section of the sample form attached hereto as appendix H; and

(2) Submit to the attorney general either a copy of the original return receipt for certified mail or copy of the returned envelope.

(b) In matters for which service attempts are unsuccessful, the attorney general shall determine whether the service efforts are sufficient. In the event service efforts are deemed insufficient, the attorney general may require the prosecuting attorney to make further service efforts, which may include providing notice by publication pursuant to section 712A-8(c), Hawaii Revised Statutes.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-8, 712A-10)

Haw. Code R. § 5-51-26 Publication

Publication by the attorney general, as set forth under section 712A-10(3), Hawaii Revised Statutes, shall be completed as soon as practicable after the filing of a petition for administrative forfeiture or in accordance with a publication schedule established by the attorney general.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Subchapter 3 PETITIONS FOR REMISSION OR MITIGATION OF FORFEITURE; CLAIMS AND COST BONDS; AND CLAIMS AND IN FORMA PAUPERIS BONDS

Haw. Code R. § 5-51-31 Who may file a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond

The following persons may file a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond with the attorney general in any administrative forfeiture matter:

(1) Any person claiming ownership of seized property, pursuant to section 712A-10, Hawaii Revised Statutes;

(2) Any interest holder, including any lienholder; and

(3) Any person having due authority under the law to act on behalf of any person designated under section 712A-10(5), Hawaii Revised Statutes, or section (1) above, including:

(A) Any attorney duly licensed to engage in the practice of law within the State; and

(B) Any person not licensed to engage in the practice of law under subsection (A), who is authorized to so act under the law, as evidenced by a power-of-attorney.

History

[Eff 1/17/2020] (Auth: HRS S712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-32 Filing requirements for petitions for remission or mitigation of forfeiture; claims and cost bonds; and claims in forma pauperis bonds

In addition to the requirements set forth in section 712A-10, Hawaii Revised Statutes, the filing requirements for a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond are as follows:

(1) A party named as an interested party in a petition for administrative forfeiture shall file a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond with the attorney general within thirty days after being served with a copy of the notice of pending forfeiture and petition for administrative forfeiture. As defined by section 5-51-31 herein, a party other than the party named as an interested party, or any party served with written notice, shall file a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond with the attorney general within thirty days of notice by publication;

(2) Any request for an extension of time in which to file a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim in forma pauperis bond:

(A) Shall be made in writing; and

(B) May be submitted to the attorney general by e-mail, facsimile transmittal, or mail;

(3) When a party claiming an interest in the subject property submits a petition for remission or mitigation of forfeiture, the following procedures shall apply:

(A) Within thirty days of receipt of the petition, the attorney general shall review the petition and determine if it complies with the filing requirements set forth in chapter 712A, Hawaii Revised Statutes, and these rules;

(B) In matters where the attorney general determines that the petition fails to comply with the applicable filing requirements, the attorney general may:

(i) File both a notice of receipt of petition for remission or mitigation of forfeiture and an order denying the petition for remission or mitigation of forfeiture, and shall send copies of both the notice and order to the prosecuting attorney and all interested parties; or

(ii) Return the petition for remission or mitigation of forfeiture to the petitioner with a letter setting forth the underlying reasons why the petition was not accepted;

(C) In matters where the attorney general determines that the petition complies with the applicable filing requirements, the attorney general shall file a notice of receipt of petition for remission or mitigation of forfeiture and shall send a copy of both the notice of receipt and the filed petition to the prosecuting attorney and the petitioner; and

(D) In matters where the petitioner has not previously been served with the initial petition for administrative forfeiture, the prosecuting attorney shall then serve petitioner with a copy of the petition for administrative forfeiture as soon as practicable and report service efforts in accordance with section 5-51-25 herein;

(4) When a party claiming an interest in the subject property submits a claim and cost bond or a claim and in forma pauperis bond, the following procedures shall apply:

(A) Within thirty days of receipt of the claim and cost bond or the claim and in forma pauperis bond, the attorney general shall review the claim and cost bond or the claim and in forma pauperis bond and determine if it complies with the filing requirements set forth in chapter 712A, Hawaii Revised Statutes, and these rules;

(B) In matters where the attorney general determines that the claim and cost bond or the claim and in forma pauperis bond fails to comply with the applicable filing requirements, the attorney general shall return the claim and cost bond or the claim and in forma pauperis bond to the claimant with a letter setting forth the underlying reasons why the claim and cost bond or the claim and in forma pauperis was not accepted;

(C) In matters where the attorney general determines that the claim and cost bond or the claim and in forma pauperis bond comply with the applicable filing requirements, the attorney general shall file a notice of receipt of claim and cost bond or claim and in forma pauperis bond, and shall send a copy of the notice of receipt and the filed claim and cost bond or claim and in forma pauperis bond to the prosecuting attorney and the claimant; and

(D) In matters where the claimant has not previously been served with the initial petition for administrative forfeiture, the prosecuting attorney shall then serve claimant with a copy of the petition for administrative forfeiture as soon as practicable and report service efforts in accordance with section 5-51-25 herein;

(5) Within thirty days after the filing of the notice of receipt of either the petition for remission or mitigation of forfeiture; the claim and cost bond; or claim and in forma pauperis bond, the prosecuting attorney may file its opposition to such with the attorney general; and

(6) There shall be no appeal from the attorney general's decision or order pursuant to section 712A-10(ll).

History

[Eff 1/17/2020] (Auth: HRS S712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-33 Notary requirement

The notary requirement provided in sections 712A-10(5) and (9), Hawaii Revised Statutes, may be applied as follows:

(1) The attorney general, with sole discretion, may waive the notary requirement for a petition for remission or mitigation of forfeiture; a claim and cost bond; or a claim and in forma pauperis bond if the interested party is detained or incarcerated at a detention facility and a notary public is not available. In such cases, the interested party shall:

(A) Use only the "Verified Petition for Remission or Mitigation Form," attached as appendix C, when filing a petition for remission or mitigation of forfeiture or only the "Declaration in Support of Request to Proceed In Forma Pauperis Form," attached as appendix D, when filing a claim and in forma pauperis bond; and

(B) Sign the form in front of an employee of the detention facility, who may bear witness to said signature and in turn sign the document attesting to the process;

(2) Any petition for remission or mitigation of forfeiture; claim and cost bond; or claim and in forma pauperis bond submitted for filing by a duly licensed attorney pursuant to section 712A-10, Hawaii Revised Statutes, shall not be subject to the notary requirement but the licensed attorney shall submit a declaration under penalty of perjury attesting to his/her licensed attorney status; and

(3) Unless otherwise specified under these rules, any petition for remission or mitigation of forfeiture; claim and cost bond; or claim and in forma pauperis bond submitted for filing pursuant to section 712A-10, Hawaii Revised Statutes, by any person other than a duly licensed attorney must comply with the notary requirement.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-34 When remission is not warranted

Remission is not warranted and shall not be granted under any of the following conditions:

(1) When any person filing a petition pursuant to this section has been:

(A) Alleged to have engaged in the specific conduct that serves as the factual basis for the commission of the covered offense or offenses that have occurred, subjecting the subject property to forfeiture; and

(B) Convicted of the same or a substantially similar offense as the alleged covered offense under subsection (1)(A) above no earlier than five years prior to the alleged commission of that covered offense; or

(2) When any person filing a petition under this section who is not alleged to have committed the covered offense as set forth under section (1) above, either knew or reasonably should have known that the subject property would be used in furtherance of the commission, attempt to commit, or conspiracy to commit a covered offense, as evidenced by:

(A) Knowledge of any prior conviction of the person alleged to have committed the covered offense as set forth under section (1) above, for the same or substantially similar offense having occurred no earlier than five years prior as specified; or

(B) Knowledge of any prior history of engaging in the same or similar type of conduct by the person alleged to have committed the covered offense, which subjected the subject property to forfeiture, as set forth under subsection (1)(A) above, and such conduct having occurred no earlier than five years prior to the alleged commission of the covered offense.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-35 When mitigation may be warranted

If the attorney general, with sole discretion, determines that remission of subject property is not warranted, the attorney general may discretionally mitigate the forfeiture where the petitioner has not met the minimum requirements for remission but where there are other extenuating circumstances, as provided in section 712A-10(6), Hawaii Revised Statutes, indicating that some relief should be granted to avoid extreme hardship. Mitigation may also be granted where the minimum requirements for remission have been met but the overall circumstances are such that the attorney general determines that complete relief is not warranted. Mitigation shall take the form of a money penalty imposed upon the petitioner, which shall be deposited into the criminal defense fund established under section 712A-16, Hawaii Revised Statutes. In addition to the extenuating circumstances provided in section 712A-10(6), Hawaii Revised Statutes, the attorney general shall consider the following:

(1) Whether petitioner had any level of knowledge as set forth under section 5-51-33(2) herein, and if so, the degree of culpability attributed to petitioner based upon that level of knowledge; and

(2) Any extenuating circumstance, other than those identified in section 712A-10(6), Hawaii Revised Statutes, which the attorney general determines to be relevant, including the number of different extenuating circumstances present at the time of the alleged commission of the covered offense(s) and the degree to which each is present.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10, 712A-16)

Haw. Code R. § 5-51-36 False claims and misrepresentations

(a) Petitions and claims filed pursuant to this section shall not contain false claims or misrepresentations. Any petition or claim found to contain any false claim or misrepresentation that was knowingly made by the petitioner or claimant shall be dismissed with prejudice.

(b) If the attorney general finds that the false claim or misrepresentation has not been made knowingly, or the misrepresentation of facts is not material to its consideration of the petition, the attorney general may elect not to dismiss the petition and instead reduce the petitioner's interest in the subject property in an amount proportionate to the culpability of the petitioner in making the false claim or misrepresentation.

(c) The attorney general shall consider the following factors in determining any reduction in interest in the subject property:

(1) The overall effect of any false claim or misrepresentation on the merits of the petition;

(2) The likelihood that the false claim or misrepresentation was made knowingly; and

(3) The degree to which the petitioner reasonably should have known that the claim or misrepresentation was false.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Subchapter 4 ADMINISTRATIVE FORFEITURE SETTLEMENTS

Haw. Code R. § 5-51-41 Administrative forfeiture settlements

(a) All administrative forfeiture settlement agreements between a prosecuting attorney and the interested party or parties as to the disposition of the subject property any time during an administrative forfeiture proceeding shall be submitted to the attorney general for approval or denial.

(b) The attorney general shall only consider for approval, settlement agreements that have been filed:

(1) After property subject to administrative forfeiture has been seized for forfeiture and notice has been given to the known interested parties, and prior to the filing of a petition for administrative forfeiture by the prosecuting attorney;

(2) After a petition for administrative forfeiture has been filed by the prosecuting attorney and the matter is pending; or

(3) In a pending administrative forfeiture matter, after a claim and cost bond or a claim and in forma pauperis bond has been filed by an interested party or parties, and prior to the filing of a verified judicial petition by the prosecuting attorney with the circuit court and within the forty-five days in which the prosecuting attorney has to file the verified judicial petition for forfeiture with the circuit court.

(c) The attorney general may only consider settlement agreements, for which the subject property has been properly seized for forfeiture, notice to all persons known to have an interest in the property has been provided, and publication as set forth under section 712A-8(c), Hawaii Revised Statutes, has been made.

(d) All proposed settlement agreements must be submitted to the attorney general in writing and must be signed by the prosecuting attorney and all the parties known to have an interest in the subject property of the settlement agreement.

(e) The attorney general shall not approve any settlement agreement that fails to satisfy (via written approval of the settlement agreement, waiver of all claims, or failure to take action upon proper notification) the claims of all parties known to have an interest in the subject property.

(f) Pursuant to the attorney general's approval of a settlement agreement, the subject property shall be disposed of in accordance with subchapter 7 herein.

(g) All settlement agreements approved by the attorney general must include language indemnifying the State and the department of the attorney general.

(h) When a settlement agreement is entered into pursuant to this section, the prosecuting attorney shall bear the burden of providing notice by publication to any unknown interested parties as required by section 712A-8(c), Hawaii Revised Statutes.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-8, 712A-10)

Subchapter 5 JUDICIAL FORFEITURES

Haw. Code R. § 5-51-51 Responsibility of the prosecuting attorney

(a) The prosecuting attorney filing for judicial forfeiture shall be responsible for informing the attorney general of the judicial forfeiture proceedings, from the filing of the verified petition in circuit court to the final disposition or outcome of the matter.

(b) The prosecuting attorney shall provide the attorney general with a file-stamped copy of the verified petition. If real property is the subject of the judicial forfeiture:

(1) The prosecuting attorney shall inform the attorney general of its the intent to file for judicial forfeiture before filing a verified petition; and

(2) The prosecuting attorney shall submit a certified copy of the lis pendens for the real property to the attorney general upon the filing of the verified petition.

(c) The prosecuting attorney shall submit status updates of the case to the attorney general upon request until there is a final disposition in the matter.

(d) At the conclusion of the judicial forfeiture, the prosecuting attorney shall notify the attorney general in writing within forty-five days of the final judgment or order and shall provide the attorney general with a file-stamped copy of the judgment or order.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10, 712A-11, 712A-12, 712A-13)

Subchapter 6 MISCELLANEOUS PROCEEDINGS AND HEARINGS

Haw. Code R. § 5-51-61 Responsibility of the prosecuting attorney

The prosecuting attorney shall be responsible for responding to and appearing at all proceedings and hearings regarding or relating to the seizure and forfeiture of property that is the subject of a petition for administrative forfeiture, including but not limited to, any hearings on motions for return of property, motions to set aside an illegal judgment, or reconsideration of a court order.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Subchapter 7 DISPOSITION OF PROPERTY

Haw. Code R. § 5-51-71 Contraband and untaxed cigarettes

Contraband and untaxed cigarettes, as defined in chapter 245, Hawaii Revised Statutes, are not subject to the administrative forfeiture procedures set forth under chapter 712A, Hawaii Revised Statutes. As such:

(1) The attorney general assumes no jurisdiction over any property that is considered contraband or untaxed cigarettes;

(2) Any contraband or untaxed cigarettes seized under chapter 712A, Hawaii Revised Statutes, is automatically forfeited to the State, notwithstanding the procedures set forth under chapter 712A, Hawaii Revised Statutes, and likewise, notwithstanding the forfeiture program administered by the attorney general;

(3) The attorney general shall not accept possession of any contraband or untaxed cigarettes seized pursuant to forfeiture proceedings, because all contraband and untaxed cigarettes fall outside of the authority of the attorney general granted by chapter 712A, Hawaii Revised Statutes; and

(4) The prosecuting attorney, acting on behalf of the State in forfeiture proceedings, shall be responsible for arranging for the disposal of any contraband and untaxed cigarettes that have been seized pursuant to forfeiture proceedings.

History

[Eff 1/17/2020] (Auth: HRS §§ 712A-10, 712A-16) (Imp: HRS §§ 712A-10, 712A-16)

Haw. Code R. § 5-51-72 Return of property to an interested party

The return of property seized pursuant to an administrative forfeiture proceeding to an interested party or parties shall be accomplished as follows:

(1) In all administrative forfeiture proceedings where a petition for administrative forfeiture has been filed, property shall not be returned to any owner or interested party until the attorney general's order providing for such return has been filed and publication, as set forth under section 712A-8(c), Hawaii Revised Statutes, has been made;

(2) In administrative forfeiture proceedings where a settlement agreement has been proposed that provides for the return of property, property shall not be returned unt i1:

(A) All persons known to have an interest in the property have been notified;

(B) Publication as set forth under section 712A-8(c), Hawaii Revised Statutes, has been made; and

(3) In administrative forfeiture proceedings where a claim and cost bond or a claim and in forma pauperis bond has been filed by any interested party and the prosecuting attorney elects to honor the claim, the prosecuting attorney shall notify the attorney general of its decision to honor the claim and shall do so in writing within forty-five days of receipt of notice that the claim and cost bond or the claim and in forma pauperis bond has been filed. Upon receipt of notice that the prosecuting attorney has elected to honor the claim, the attorney general shall file an order directing the return of subject property to the interested party or parties;

(4) In matters initially filed as administrative forfeitures and then transferred to the court, after the court has issued a final judgment or order, the attorney general shall file an administrative order recognizing the judicial judgment or order. When a judicial order directs the return of subject property, the administrative order filed by the attorney general shall order the return of subject property to the seizing agency for return to the interested party or parties;

(5) In forfeiture matters that are initially filed judicially with the court and after the court issues a final judgment or order, no administrative order shall be filed by the attorney general and the subject property shall be disbursed pursuant to the order of the court; and

(6) Whenever the attorney general dismisses a petition with prejudice, the prosecuting attorney fails to refile a petition dismissed without prejudice, or the attorney general denies a petition, the attorney general may file an order directing the return of the subject property to the seizing agency so that the subject property may be returned to the interested party or parties.

History

[Eff 1/17/2020] (Auth: HRS §§ 712A-10, 712A-16) (Imp: HRS §§ 712A-1, 712A-8, 712A-10, 712A-16)

Haw. Code R. § 5-51-73 Disposition of subject property following an order granting a petition for administrative forfeiture

After an order granting a petition for administrative forfeiture is filed by the attorney general, the subject property that has been forfeited to the State shall be disposed of as follows:

(1) Any request by a governmental agency for the forfeited property pursuant to chapter 712A, Hawaii Revised Statutes, shall be made within ten days after the filing of the order by the attorney general;

(2) Forfeited property, other than currency, shall be disposed of by sale at public auction to be held by the attorney general as often as practicable;

(3) All persons are eligible to purchase forfeited property at public auction, except:

(A) Any person employed by the various county police departments;

(B) Any person employed by any county prosecuting attorney's office;

(D) Any person employed by any other public or private agency that serves as a seizing agency or petitioning agency or conducts sales of forfeited property;

(4) All proceeds from any public auction held by the attorney general under this section shall be disbursed and distributed as set forth under section 712A-16, Hawaii Revised Statutes; and

(5) Distributions from the revolving fund or criminal forfeiture fund shall be made in accordance with section 712A-16(4), Hawaii Revised Statutes, as follows:

(A) Asset forfeiture funds in excess of the amounts required for maintenance of the asset forfeiture program may be distributed upon written request by the various law enforcement agencies to the attorney general for the following purposes:

(i) As a supplemental sum to support a legitimate law enforcement purpose of any state or county law enforcement agency;

(ii) As expenses to supplement programs for training and education of law enforcement officers, as long as the primary purpose of the training is law enforcement; and

(iii) As payment of rewards for information or assistance leading to a criminal or civil proceeding;

(B) Written requests for funds shall be submitted to the attorney general utilizing the form entitled "Request for Funds Forms," attached as appendix I;

(C) No funds from the revolving fund shall be distributed to satisfy personnel staffing requirements, except in support of the asset forfeiture program administration in the department of the attorney general; and

(D) The attorney general shall make the final decision regarding whether a request for funds from the revolving fund is approved in whole or in part.

History

[Eff 1/17/2020] (Auth: HRS §§ 712A-10, 712A-16) (Imp: HRS §§ 712A-1, 712A-10, 712A-16)

Subchapter 8 ENFORCEMENT

Haw. Code R. § 5-51-81 Compliance with an administrative order

The specific provisions of any order filed by the attorney general in an administrative forfeiture proceeding shall be fully complied within no later than six months after the date that the order is filed.

History

[Eff 1/17/2020] (Auth: HRS §§ 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Haw. Code R. § 5-51-82 Recoupment

The attorney general may require recoupment from the prosecuting attorney or seizing agency for non-compliance with these rules, including but not limited to the following:

(1) Payment to the forfeiture fund for the amount of currency that was forfeited but not deposited into or missing from the forfeiture fund;

(2) Payment to the forfeiture fund for any costs related to the value of damaged or missing property;

(3) Payment to the forfeiture fund as reimbursement for any unauthorized release or return of subject property, or any loss of forfeited property, in the amount of the total value of the released or lost property; and

(4) Payment to the forfeiture fund for the reimbursement of shipping or transport costs of any property for which a petition has been filed and returned or released to any owner or interested party without the required approval of the attorney general.

History

[Eff 1/17/2020] (Auth: HRS § 712A-10) (Imp: HRS §§ 712A-1, 712A-10)

Subtitle 1 General Departmental Provisions and Programs

Chapter 1 GENERAL ORGANIZATION, PRACTICE, AND PROCEDURE

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. tit. 5, subtit. 1, ch. 1, subch. 1, exh. A Seal of the Attorney General

Click here to view Ehhibit A

History

November 1, 1988

Subtitle 5 FORFEITURES

Chapter 51 ADMINISTRATIVE ASSET FORFEITURE

Subchapter 8 ENFORCEMENT

Haw. Code R. tit. 5, subtit. 5, ch. 51, subch. 8, app B Notice of Intention to Administratively Forfeit Property

TO: (insert: interested parties) AND ANY AND ALL PERSONS WHO MAY HAVE INTERESTS IN THE DESCRIBED PROPERTY AND ALL KNOWN OR UNKNOWN INTERESTED PARTIES OF OR INTEREST HOLDERS IN THE DESCRIBED PORPERTY:

YOU ARE HEREBY NOTIFIED that a Petition for Administrative Forfeiture has been filed with the Department of the Attorney General seeking forfeiture of the property described above pursuant to the Hawaii Omnibus Forfeiture Act, Title 37, (hereinafter referred to as "Forfeiture Act"), Chapter 712A of the Hawaii Revised Statutes, as amended. The property was seized for forfeiture on (insert: date), in the County of (insert: county). State of Hawaii, and is alleged to be subject to forfeiture because of its connection with the violation of (insert: violations)

YOU ARE FURTHER NOTIFIED that you may respond to this notice by doing one, but only one of the following:

You may do nothing, in which case the property will be administratively forfeited;
You may file a Petition for Remission or Mitigation with the Department of the Attorney General. A Petition for Remission or Mitigation admits that the property is subject to forfeiture but asks the Attorney General to pardon the property, in whole or in part, due to extenuating circumstances. The Attorney General's decision is final, not subject to appeal, and may be made without hearing:

a. A Petition for Remission or Mitigation must be signed by the petitioner, and sworn on oath before a notary public (a suggested version of which is attached as Exhibit "1") and shall contain the following:

i. A reasonably complete description of the property;

ii. A statement of the interest of the petitioner in the property, as owner or interest-holder which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and

iii. Facts and circumstances sufficient to show whether you:

A. Own or hold an interest as defined by Section 712A-1, Hawaii Revised Statutes, in the seized property;

B. Had any knowledge that the property was or would be involved in any violation of the law;

C. Had any knowledge of the particular violation, which subjected the property to seizure and forfeiture; and

D. Had any knowledge that the user of the property had any record, including arrests, except where the person was acquitted or the charges dismissed due to lack of evidence, for the violation that subjected the property to seizure and forfeiture or for any crime which is similar in nature.

b. If the Attorney General, with sole discretion, determines that remission is not warranted, the Attorney General may, in his or her discretion, mitigate the forfeiture where the petitioner has met the minimum requirements for remission but where there are other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship. Extenuating circumstances include:

i. Language or cultural barrier;

ii. Humanitarian factors such as youth or extreme age;

iii. Presence of physical or mental disease, disorder or defect;

iv. Limited or peripheral criminal culpability;

v. Cooperation with the seizing agency or the prosecuting attorney; and

vi. Any contributory error on the part of government officials.

c. The Attorney General will inquire into the facts and circumstances alleged in the Petition for Remission or Mitigation and provide a written decision on the Petition within sixty (60) days. If the circumstances of the case require more time, the Petitioner will be notified in writing within the sixty (60)-day period, informed of the circumstances requiring more time, and further notified of the expected decision date; or

You may file a claim and a cost bond or a claim and an in forma pauperis bond with the Department of the Attorney General to seek judicial determination of the forfeiture:

a. A claim must be signed by the claimant, be sworn on oath before a notary public, and comply with the requirements of Section 712A-12(5), Hawaii Revised Statutes, as amended, and shall be accompanied by one of the following:

i. A cost bond in the amount of $2,500.00 or ten percent of the appraised or estimated value of the property, whichever is greater; or

ii. An in forma pauperis bond consisting of a declaration in the form of and containing the elements specified in the Appendix to the Hawaii Rules of Penal Procedure, a suggested version of which is attached as Exhibit "2".

b. Upon receipt of the claim and bond, the Attorney General will notify the Prosecuting Attorney who may either petition the Circuit Court for forfeiture of the property or may elect to honor the claim and forego further forfeiture proceedings. If the Prosecuting Attorney petitions the Circuit Court for forfeiture and prevails, all costs and expenses of the proceedings will be deducted from any cost bond filed. If the Prosecuting Attorney foregoes further proceedings, the seizing agency will be instructed to release the property, or some specified interest in it.

One extension of thirty (30) days for filing said petition or claim may be granted upon a written request to the Department of the Attorney General, demonstrating good cause, provided the request is received within the thirty (30) day period provided for filing of a petition or claim. The Attorney General shall decide and provide a written decision on the request for extension.

A Petition for Remission or Mitigation; a claim and bond; or a request for extension of thirty (30) days must be filed with the Department of the Attorney General, Civil Recoveries Division, 425 Queen Street, Honolulu, Hawaii, 96813, within thirty (30) days after you receive the Notice of Intention to Administratively Forfeit Property (Notice) or thirty (30) days after the date on which this Notice is published in a newspaper of general circulation in the county in which the seizure for forfeiture took place, whichever occurs first.

IF YOU FAIL TO FILE A PETITION FOR REMISSION OR MITIGATION; A CLAIM AND COST; A CLAIM AND IN FORMA PAUPERIS BOND; OR AN EXTENSION REQUEST IN A TIMELEY MANNER AND IN SUBSTANTIAL COMPLIANCE WITH SECTION 712A-10 OF THE HAW AH REVISED STATUTES, AS AMENDED, THE PETITION FOR ADMINISTRATIVE FORFEITURE WILL BE GRANTED AND THE PROPERTY SHALL BE FORFEITED TO THE STATE OF HAWAII.

DATED: Honolulu, Hawaii:__________________

(Insert: Name-PROSECUTING ATTORNEY)

Prosecuting Attorney for the

(insert: County Name)

Petitioner

(Insert: Name - DEPUTY PROSECUTING ATTORNEY)

Deputy Prosecuting Attorney

(insert: County Name)

Haw. Code R. tit. 5, subtit. 5, ch. 51, subch. 8, app C Verified Petition for Remission or Mitigation Form

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Haw. Code R. tit. 5, subtit. 5, ch. 51, subch. 8, app D Declaration in Support of Request to Proceed In Forma Pauperis Form

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Haw. Code R. tit. 5, subtit. 5, ch. 51, subch. 8, app E Deposit of Currency - Procedures

I. There are two different currency deposit designations:

Seized Currency

Seized currency is currency that has been seized for forfeiture (as opposed to being seized for evidence). A Notice of Seizure for Forfeiture should have been served upon all known parties by the police or other law enforcement agency (i.e. Narcotics Enforcement Division of the State Department of Public Safety),

Forfeited Currency

Forfeited currency is currency that has gone through the administrative forfeiture process and an Order was filed by the Attorney General granting the forfeiture of the currency or currency received/retained through a Settlement Stipulation.

II. Deposits with the Attorney General

The Attorney General has one First Hawaiian Bank account, into which agencies may deposit currency. Within that bank account are three funds:

906 Account is for seized currency.
320 Account is for forfeited currency.
A third fund is used by the Attorney General to hold cost bond monies paid by persons seeking the return of their seized property through the judiciary.

III. Which fund should the currency go into?

Is there an Order granting forfeiture of the currency (including any currency received/retained pursuant to a Settlement Stipulation)?

NO: Deposit currency into 906 Account
YES: Deposit currency into 320 Account

IV. Preparing the Deposit

Deposits to the same account may be made individually or in bulk. Deposits made individually have a deposit slip for each case. Deposits made in bulk will have a number of cases made utilizing one deposit slip.
Keep 906 Account deposits (seized currency) separate from 320 Account deposits (forfeited currency).
Prepare two (2) deposit slips.

NOTE: Original slip is for the bank.

b. The second slip should be validated by the bank on the front of the slip and along with the bank deposit receipt (looks like a cash register receipt) should be sent to the Attorney General. See Part VI. below.

NOTE: The State Department of Budget and Finance prefers the use of the pre-printed deposit slips. If you need to order more deposit slips, please contact the Legal Clerk of the Asset Forfeiture Unit to have more deposit slips ordered. Please have the number of slips needed, the branch you want to pick the slips up from, the contact person, and the contact phone number. The bank takes about 5-10 business days to have the slips completed and delivered.

V. Making the Deposit

Deposits can be made at any branch of First Hawaiian Bank.

VI. Sending Deposit Receipts to the Attorney General

Send the validated deposit slips and bank deposit receipts to the Attorney General as soon as possible.

NOTE: If a deposit receipt is received by the Attorney General and a Petition is not filed within one-year from date of deposit, the monies will be returned to the County Police Department.

Also complete and send the Deposit of Funds Form listing the following information (use separate forms for seized currency deposits (906) and for forfeited currency deposits (320)).

Report No: Your report number

A.G. No: Our A.G. or Court Case Number (For seized currency deposits (906), there may not be an A.G. Number assigned yet so unless you have an A.G. Number, this may be left blank.) Name(s): Provide at least one name of the interested part(ies)

Amount: Amount of the deposit

Deposit Date: Date of deposit

Send the Deposit of Funds form(s), validated deposit slip(s) and bank deposit receipt(s) to:

Department of the Attorney General Civil Recoveries Division

Asset Forfeiture Unit

425 Queen Street

Honolulu, Hawaii 96813-2903

NOTE: The Attorney General no longer receives a reconciliation report from the State Department of Budget and Finance. Therefore, the failure to properly account for the currency could result in the currency being transferred to the State's General Fund (and loss to Asset Forfeiture program). The loss to the General Funds will be the burden of the County if the Attorney General failed to receive deposit receipts.

VII. Contact Information

Civil Recoveries Division

Phone: (808)586-1100

Fax: (808) 586-8116

Haw. Code R. tit. 5, subtit. 5, ch. 51, subch. 8, app I Request for Funds Form

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