Title 43—Public Lands: Interior--Volume 1
PART 48—AMENDMENTS TO THE HAWAIIAN HOMES COMMISSION ACT
§ 48.5   What is the purpose of this part?
(a) This part sets forth the policies and procedures for:
(1) Review by the Secretary of amendments to the Hawaiian Homes Commission Act proposed by the State of Hawai'i; and
(2) Determination by the Secretary whether the proposed amendment requires congressional approval.
(b) This part implements requirements of the Hawaiian Homes Commission Act, the State of Hawai'i Admission Act, 1959, and the Hawaiian Home Lands Recovery Act, 1995.
§ 48.6   What definitions apply to terms used in this part?
As used in this part, the following terms have the meanings given in this section.
Beneficiary or beneficiaries means “native Hawaiian(s)” as that term is defined under section 201(a) of the Hawaiian Homes Commission Act.
Chairman means the Chairman of the Hawaiian Homes Commission designated under section 202 of the Hawaiian Homes Commission Act.
Commission means the Hawaiian Homes Commission, established by section 202 of the Hawaiian Homes Commission Act, which serves as the executive board of the Department of Hawaiian Home Lands.
Consultation or consult means representatives of the government engaging in an open discussion process that allows interested parties to address potential issues, changes, or actions. Consultation does not necessarily require formal face-to-face meetings. The complexity of the matter along with the potential effects that the matter may have on the Trust or beneficiaries will dictate the appropriate process for consultation. Consultation requires dialogue (oral, electronic, or printed) or a good faith, dialogue or documented effort to engage with the beneficiaries, consideration of their views, and, where feasible, seek agreement with the beneficiaries when engaged in the land exchange process.
DHHL or Department of Hawaiian Home Lands means the department established by the State of Hawai'i under sections 26-4 and 26-17 of the Hawai'i Revised Statutes to exercise the authorities and responsibilities of the Hawaiian Homes Commission under the Hawaiian Homes Commission Act.
Hawaiian Home Lands Trust means all trust lands given the status of Hawaiian home lands under section 204 of the Hawaiian Homes Commission Act, and those lands obtained through approval under part 47, and as directed by Congress.
Hawaiian Home Lands Trust Funds means the funds established in the HHCA section 213.
HHCA or Hawaiian Homes Commission Act means the Hawaiian Homes Commission Act, 1920, 42 Stat. 108 et seq., as amended.
HHCA Beneficiary Association means an organization controlled by beneficiaries who submitted applications to the DHHL for homesteads and are awaiting the assignment of a homestead; represents and serves the interests of those beneficiaries; has as a stated primary purpose the representation of, and provision of services to, those beneficiaries; and filed with the Secretary a statement, signed by the governing body, of governing procedures and a description of the beneficiaries it represents.
HHLRA or Hawaiian Home Lands Recovery Act means the Hawaiian Home Lands Recovery Act, 1995, 109 Stat. 537.
Lessee means either a:
(1) Beneficiary who has been awarded a lease under section 207(a) of the Hawaiian Homes Commission Act;
(2) Person to whom land has been transferred under section 208(5) of the Hawaiian Homes Commission Act; or
(3) Successor lessee under section 209 of the Hawaiian Homes Commission Act.
Homestead Association means a beneficiary controlled organization that represents and serves the interests of its homestead community; has as a stated primary purpose the representation of, and provision of services to, its homestead community; and filed with the Secretary a statement, signed by the governing body, of governing procedures and a description of the territory it represents.
Secretary means the Secretary of the Interior or the individual to whom the authority and responsibilities of the Secretary have been delegated.
Trust means the Hawaiian Home Lands Trust and the Hawaiian Home Lands Trust Funds.
§ 48.10   What is the Secretary's role in reviewing proposed amendments to the HHCA?
(a) The Secretary must review proposed amendments to the Hawaiian Homes Commission Act (HHCA) by the State of Hawai'i to determine whether the proposed amendment requires approval of Congress.
(b) The Secretary will notify the Chairman and Congress of this determination, and if approval is required, submit to Congress the documents required by § 48.35(b).
§ 48.15   What are the Chairman's responsibilities in submitting proposed amendments to the Secretary?
(a) Not later than 120 days after the State approves a proposed amendment to the HHCA, the Chairman must submit to the Secretary a clear and complete:
(1) Copy of the proposed amendment;
(2) Description of the nature of the change proposed by the proposed amendment; and,
(3) Opinion explaining whether the proposed amendment requires the approval of Congress.
(b) The following information must also be submitted:
(1) A description of the proposed amendment, including how the proposed amendment advances the interests of the beneficiaries;
(2) All testimony and correspondence from the Director of the Department of Hawaiian Home Lands, Hawaiian Homes Commissioners, Homestead Associations, HHCA Beneficiary Associations, and beneficiaries providing views on the proposed amendment;
(3) An analysis of the law and policy of the proposed amendment by the Department of Hawaiian Home Lands and the Hawaiian Homes Commission;
(4) Documentation of the dates and number of hearings held on the measure, and a copy of all testimony provided or submitted at each hearing;
(5) Copies of all committee reports and other legislative history, including prior versions of the proposed amendment;
(6) Final vote totals by the Commission and the legislature on the proposed amendment;
(7) Summaries of all consultations conducted with the beneficiaries regarding the proposed amendment; and
(8) Other additional information that the State believes may assist in the review of the proposed amendment.
§ 48.20   How does the Secretary determine if the State is seeking to amend Federal law?
(a) The Secretary will determine that Congressional approval is required if the proposed amendment, or any other legislative action that directly or indirectly has the effect of:
(1) Decreasing the benefits to the beneficiaries of the Trust;
(2) Reducing or impairing the Hawaiian Home Land Trust Funds;
(3) Allowing for additional encumbrances to be placed on Hawaiian home lands by officers other than those charged with the administration of the HHCA;
(4) Changing the qualifications of who may be a lessee;
(5) Allowing the use of proceeds and income from the Hawaiian home lands for purposes other than carrying out the provisions of the HHCA; or
(6) Amending a section other than sections 202, 213, 219, 220, 222, 224, or 225, or other provisions relating to administration, or paragraph (2) of section 204, section 206, or 212 or other provisions relating to the powers and duties of officers other than those charged with the administration of the HHCA.
(b) The Secretary may consult with the beneficiaries when making a determination.
§ 48.25   How does the Secretary determine if the proposed amendment decreases the benefits to beneficiaries of Hawaiian home lands?
(a) In determining benefits to the beneficiaries, the Secretary will consider the goals and purposes of the Trust, including, but not limited to, the following:
(1) The provision of homesteads to beneficiaries;
(2) The rehabilitation of beneficiaries and their families and Hawaiian homestead communities;
(3) The educational, economic, political, social, and cultural processes by which the general welfare and conditions of beneficiaries are improved and perpetuated;
(4) The construction of replacement homes, repairs or additions;
(5) The development of farm, ranch or aquaculture, including soil and water conservation;
(6) The enhanced construction, reconstruction, operation and maintenance of revenue-producing improvements intended to benefit occupants of Hawaiian home lands;
(7) The making of investments in water and other utilities, supplies, equipment, and goods, as well as professional services needed to plan, implement, develop or operate such projects that will improve the value of Hawaiian home lands for their current and future occupants; and,
(8) The establishment and maintenance of an account to serve as a reserve for loans issued or backed by the Federal Government.
(b) The Secretary will determine if the proposed amendment or any other legislative action decreases the above-described or similar benefits to the beneficiaries, now or in the future, by weighing the answers to the following questions:
(1) How would the proposed amendment impact the benefits to current lessees of Hawaiian home lands?
(2) How would the proposed amendment impact the benefits to beneficiaries currently on a waiting list for a Hawaiian home lands lease?
(3) How would the proposed amendment impact the benefits to beneficiaries who have not yet applied for a Hawaiian home lands lease?
(4) If the interests of the beneficiaries who have not been awarded a Hawaiian home lands lease and the lessees differ, how does the proposed amendment weigh the interests of beneficiaries who have not been awarded a Hawaiian home lands lease with the interests of Hawaiian home lands lessees?
(5) If the interests of the beneficiaries who have not been awarded a Hawaiian home lands lease and the lessees differ, do the benefits to the lessees outweigh any detriment to the beneficiaries who have not been awarded a Hawaiian home lands lease?
(6) If the interests of the beneficiaries differ from the interests of the lessees, do the benefits to the beneficiaries outweigh any detriment to the lessees?
§ 48.30   How does the Secretary determine if Congressional approval is unnecessary?
The Secretary will determine that Congressional approval is unnecessary if the proposed amendment meets none of the criteria in § 48.20.
§ 48.35   When must the Secretary determine if the proposed amendment requires Congressional approval?
The Secretary will review the documents submitted by the Chairman, and if they meet the requirements of § 48.15, the Secretary will determine within 60 days after receiving them if the proposed amendment requires Congressional approval.
§ 48.40   What notification will the Secretary provide?
(a) If the Secretary determines that Congressional approval of the proposed amendment is unnecessary, the Secretary will:
(1) Notify the Chairmen of the Senate Committee on Energy and Natural Resources and of the House Committee on Natural Resources, the Governor, Speaker of the House of Representatives and President of the Senate of the State of Hawai'i, and the Chairman of the Hawaiian Homes Commission; and
(2) Include, if appropriate, an opinion on whether the proposed amendment advances the interests of the beneficiaries.
(b) If the Secretary determines that Congressional approval of the proposed amendment is required, the Secretary will notify the Chairmen of the Senate Committee on Energy and Natural Resources and of the House Committee on Natural Resources, the Governor, Speaker of the House of Representatives and President of the Senate of the State of Hawai'i, and the Chairman of the Hawaiian Homes Commission. The Secretary will also submit to the Committees the following:
(1) A draft joint resolution approving the proposed amendment;
(2) A description of the change made by the proposed amendment and an explanation of how the proposed amendment advances the interests of the beneficiaries;
(3) A comparison of the existing law with the proposed amendment;
(4) A recommendation on the advisability of approving the proposed amendment;
(5) All documentation concerning the proposed amendment received from the Chairman; and
(6) All documentation concerning the proposed amendment received from the beneficiaries.
(c) The Secretary will post notice of the determination on the Department of the Interior's Web site.
§ 48.45   When is a proposed amendment deemed effective?
(a) If the Secretary determines that a proposed amendment meets none of the criteria in § 48.20, the effective date of the proposed amendment is the date of the notification letter to the Congressional Committee Chairmen.
(b) If the Secretary determines that the proposed amendment requires congressional approval then the effective date of the proposed amendment is the date that Congress's approval becomes law.
§ 48.50   Can the State of Hawai'i amend the Hawaiian Homes Commission Act without Secretarial review?
The Secretary must review all proposed amendments to the Hawaiian Homes Commission Act. Any proposed amendments to any terms or provisions of the Hawaiian Homes Commission Act by the State must also specifically state that the proposed amendment proposes to amend the Hawaiian Homes Commission Act. Any state enactment that impacts any of the criteria in § 48.20 shall have no effect on the provisions of the HHCA or administration of the Trust, except pursuant to this part.