Land Exchange Procedures and Procedures To Amend the Hawaiian Homes Commission Act, 1920, 27134-27141 [2015-11401]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 80, Number 91 (Tuesday, May 12, 2015)]
[Proposed Rules]
[Pages 27134-27141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-11401]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Parts 47 and 48

RIN 1090-AA98


Land Exchange Procedures and Procedures To Amend the Hawaiian 
Homes Commission Act, 1920

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: This rule would remove ambiguities the State of Hawai`i faces 
in administration of the Hawaiian Homes Commission Act. It would 
facilitate the goal of the rehabilitation of the Native Hawaiian 
community, including the return of native Hawaiians to the land, 
consistent with the Hawaiian Homes Commission Act, the State of Hawai`i 
Admission Act, and the Hawaiian Home Lands Recovery Act. The rule 
clarifies the land exchange process, the documents required, and the 
respective responsibilities of the Department of the Interior, the 
Department of Hawaiian Home Lands, and other entities engaged in land 
exchanges of Hawaiian home lands. It also clarifies the documents 
required and the responsibilities of the Secretary of the Interior in 
the approval process for proposed amendments by the State of Hawai`i to 
the Hawaiian Homes Commission Act, 1920, as amended.

DATES: Comments must be submitted on or before July 13, 2015.

ADDRESSES: You may submit comments on the rulemaking by either of the 
methods listed below. Please use Regulation Identifier Number 1090-AA98 
in your message.
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions on the Web site for submitting comments.
    2. U.S. mail, courier, or hand delivery: Office of Native Hawaiian 
Relations, Department of the Interior, 1849 C Street NW., Washington, 
DC 20240.

FOR FURTHER INFORMATION CONTACT: Ka`i`ini Kimo Kaloi, Director, Office 
of Native Hawaiian Relations, telephone (202) 208-7462.

SUPPLEMENTARY INFORMATION:

I. Background

    In 1921, Congress enacted the Hawaiian Homes Commission Act (HHCA), 
42 Stat. 108, to provide a homesteading program for native Hawaiians by 
placing approximately 200,000 acres of land (known as Hawaiian home 
lands) into trust. The HHCA and the Hawaiian Home Lands Trust are 
administered by the Department of Hawaiian Home Lands (DHHL), an agency 
of the State of Hawai`i. The HHCA provides the DHHL the authority to 
propose to the Secretary of the Interior the exchange of Hawaiian home 
lands for land privately or publicly owned in furtherance of the 
purposes of the HHCA.
    The Hawaiian Homes Commission Act, among other things, created a 
series of funds HHCA section 213, 42 Stat. 108 (as amended). The intent 
of one of these funds is the ``rehabilitation of native Hawaiians,'' 
which includes the rehabilitation of ``the educational, economic, 
political, social, and cultural processes by which the general welfare 
and conditions of native Hawaiians are thereby improved and 
perpetuated.'' Id. The Department of the Interior interprets the term 
``rehabilitation'' to include political, cultural and social 
reorganization that would facilitate the stated goals of 
rehabilitation.\1\ By providing a clear process for the Department's 
review and approval of land exchanges and HHCA amendments, this 
regulation will further the goals of the HHCA, including 
rehabilitation.
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    \1\ See generally Hearings on the Rehabilitation and 
Colonization of Hawaiians and Other Proposed Amendments to the 
Organic Act of the Territory of Hawai'i before the House Committee 
on the Territories, H.R. Rep. No. 839, 66th Cong., 2d Sess., at 4 
(1920) (Sen. John H. Wise testified, ``The Hawaiian people are a 
farming people and fishermen, out-of-door people, and [being] frozen 
out of their lands . . . is one of the reasons why the Hawaiian 
people are dying. Now, the only way to save them, I contend, is to 
take them back to the lands and give them the mode of living that 
their ancestors were accustomed to and in that way rehabilitate 
them.'').
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    In 1959, Congress enacted the Hawai`i Admission Act, 73 Stat. 4, to 
admit the State of Hawai`i into the United States. In compliance with 
the Hawai`i Admission Act, and as a compact between the State of 
Hawai`i and the United States relating to the management and 
disposition of the Hawaiian home lands, the State of Hawai`i adopted 
the HHCA, as amended, as a law of the State through Article XII of the 
Constitution of the State. Because Congress in the HHCA section 223 
reserved the right to alter, amend, or repeal Title 2 of the HHCA, 
section 4 of the Hawai`i Admission Act provides that the HHCA is 
subject to amendment or repeal by the State of Hawai`i only with the 
consent of the United States. Recognizing, however, that it was 
granting the State administrative authority, Congress in section 4 also 
provided exceptions within which the State could amend certain 
administrative provisions of the HHCA without the consent of the United 
States.
    During the territorial period of Hawai`i, the HHCA was included in 
the compilation of the Revised Laws of Hawai`i. Following Hawai`i's 
statehood, the HHCA was not repealed and remains in effect with 
elements of both Federal and State law. The compilation of the HHCA was 
removed from the text of the United States Code and inserted into a 
note in the Code, recognizing the State's authority to amend provisions 
of the HHCA that do not alter the responsibilities of the United States 
or infringe upon its interests or the interests of the beneficiaries.

[[Page 27135]]

    The HHCA is a compound of interdependent Federal and State law. 
Congress enacted the Hawaiian Home Lands Recovery Act, 1995, (HHLRA), 
Public Law 104-42, 109 Stat. 357, which provides that the Secretary of 
the Interior shall determine whether a proposed amendment to the HHCA 
requires the consent of the United States under section 4 of the 
Hawai`i Admission Act. It is appropriately the function of the United 
States to ensure conformance with the limitations in the Admissions Act 
and protect the integrity of this statutory framework.
    The HHLRA also clarified the role of the Secretary in the oversight 
of the Hawaiian Home Lands Trust. Section 204(a)(3) of the HHCA, in 
conjunction with Section 205 of the HHLRA, requires the approval or 
disapproval of the Secretary of the Interior for the exchange of 
Hawaiian home lands. The HHLRA details the Secretary's responsibilities 
to ensure that Hawaiian home lands are administered in a manner that 
advances the interests of the beneficiaries.
    The HHLRA clarifies the scope of two of the continuing 
responsibilities of the Federal Government with regard to the HHCA. It 
clarifies the role of the Secretary in land exchanges and requires the 
State of Hawai`i to notify the Secretary of the Interior of any 
amendment it proposes to the HHCA and requires the Secretary to 
determine whether the State is proposing to amend the Federal 
responsibilities under the HHCA, or infringe on Federal interests or 
those of the beneficiaries, thus requiring Congress to approve the 
proposed amendment. 43 CFR part 47 of the proposed regulations sets 
forth the Secretary's process for approving or disapproving land 
exchanges of Hawaiian home lands conducted by DHHL under the HHCA and 
HHLRA. 43 CFR part 48 of the proposed regulations establishes the 
review and approval process for State of Hawai`i proposed amendments to 
the HHCA.

II. Summary of Impacts

1. Regulatory Planning and Review (Executive Orders 12866 and 13563.)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. This proposed rule is consistent with these 
requirements.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.).

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This proposed rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act

    This proposed rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The proposed rule does not have a significant or 
unique effect on State, local or tribal governments or the private 
sector. A statement containing the information required by the Unfunded 
Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required.

6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment. It would not substantially and directly 
affect the relationship between the Federal and state governments. The 
Secretary of the Department of the Interior has oversight to ensure 
that land under the HHCA is administered in a manner that advances the 
interests of the beneficiaries. A Federalism Assessment is not 
required.

7. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor determined that this proposed rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

8. Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, the Department 
evaluated this proposed rule and determined that it has no potential 
effects on federally recognized Indian tribes. This proposed rule does 
not have tribal implications that impose substantial direct compliance 
costs on Indian Tribal governments.

9. Paperwork Reduction Act

    This proposed rule does not require an information collection from 
10 or more parties and a submission under the Paperwork Reduction Act 
is not required. An OMB form 83-I is not required.

10. National Environmental Policy Act

    This proposed rule does not constitute a major Federal action 
significantly affecting the quality of the human environment. A 
detailed statement under the National Environmental Policy Act, 1969, 
is not required. Under Departmental Manual 516 DM 2.3A(2), Section 1.10 
of 516 DM 2, Appendix 1 excludes from documentation in an environmental 
assessment or impact statement ``policies, directives, regulations and 
guidelines of an administrative, financial, legal, technical or 
procedural nature; or the environmental effects of which are too broad, 
speculative or conjectural to lend themselves to meaningful analysis 
and will be subject later to the NEPA process, either collectively or 
case-by-case.''

11. Effects on the Energy Supply (E.O. 13211)

    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required. This proposed rule will not have a significant effect on 
the nation's energy supply, distribution, or use.

[[Page 27136]]

12. Clarity of This Regulation

    The Department is required by Executive Orders 12866 and 12988 and 
by the Presidential Memorandum of June 1, 1998, to write all rules in 
plain language. This means that each rule the Department publishes 
must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that the Department did not meet these requirements, 
please send comments by one of the methods listed in the ADDRESSES 
section. To better help the Department revise the rule, your comments 
should be as specific as possible. For example, you should tell us the 
numbers of the sections or paragraphs that you find unclear, which 
sections or sentences are too long, the sections where you feel lists 
or tables would be useful, etc.

13. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask the Department in your comment to withhold your personal 
identifying information from public review, the Department cannot 
guarantee that it will be able to do so.

List of Subjects in 43 CFR Parts 47 and 48

    Hawaii, Intergovernmental programs, Land, State-Federal relations.

    Dated: May 6, 2015.
Kristen J. Sarri,
Principal Deputy Assistant Secretary for Policy, Management and Budget.
    For the reasons stated in the preamble, the Department of the 
Interior proposes to amend title 43 of the Code of Federal Regulations 
by adding new parts 47 and 48 as set forth below:

PART 47--LAND EXCHANGE PROCEDURES

Sec.
47.5 What is the purpose of this part?
47.10 What definitions apply to terms used in this part?
47.15 What laws apply to exchanges made under this part?
Subpart A--The Exchange Process
47.20 What factors will the Secretary consider in analyzing a land 
exchange?
47.30 When does a land exchange advance the interests of the 
beneficiaries?
47.35 Must lands exchanged be of equal value?
47.40 How must properties be described?
47.45 How does the exchange process work?
47.50 What should DHHL include in a land exchange proposal for the 
Secretary?
47.55 What are the minimum requirements for appraisals used in a 
land exchange?
47.60 What documentation must DHHL submit to the Secretary in the 
land exchange packet?
Subpart B--Approval and Finalization
47.65 When will the Secretary approve or disapprove the land 
exchange?
47.70 How does DHHL complete the exchange once approved?

    Authority:  State of Hawai`i Admission Act, 73 Stat. 4, chapter 
339, approved March 18, 1959; Hawaiian Homes Commission Act, 1920, 
as amended, Act of July 9, 1921, chapter 42, 42 Stat. 108; Hawaiian 
Home Lands Recovery Act, 1995, 109 Stat. 537, Public Law 104-42; 5 
U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; 112 Departmental 
Manual 28.


Sec.  47.5  What is the purpose of this part?

    This part sets forth the procedures for conducting land exchanges 
of Hawaiian home lands authorized by the Hawaiian Homes Commission Act 
(HHCA), 1920, as amended.


Sec.  47.10  What definitions apply to terms used in this part?

    As used in this part, the following terms have the meanings given 
in this section.
    Appraisal or Appraisal report means a written statement 
independently and impartially prepared by a qualified appraiser setting 
forth an opinion as to the market value of the lands or interests in 
lands to be exchanged as of a specific date(s), supported by the 
presentation and analysis of relevant market information.
    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 also serves as 
the executive board of the Department of Hawaiian Homes Lands.
    Consultation means an open discussion process that allows 
interested parties to address potential issues, changes, or actions. 
Consultation does not require formal face to face meetings. However, it 
does require dialogue (verbal, electronic, or printed) or at least a 
good faith effort to engage in dialogue between the DHHL and 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 administer the Hawaiian Homes 
Commission Act. This department assumes the authorities and 
responsibilities of the Hawaiian Homes Commission and the Commission 
serves as the department's executive board under amended section 202 of 
the Hawaiian Homes Commission Act.
    Hawaiian home lands 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 this part, and as 
directed by Congress.
    Hazardous substances means those substances designated under 
Environmental Protection Agency regulations at 40 CFR part 302.
    HHCA or Hawaiian Homes Commission Act means the Hawaiian Homes 
Commission Act, 1920, Act of July 9, 1921, chapter 42, 42 Stat. 108, as 
amended.
    HHLRA or Hawaiian Home Lands Recovery Act means the Hawaiian Home 
Lands Recovery Act, 1995, Public Law 104-42, 109 Stat. 357.
    Land exchange is any transaction, other than a sale, that transfers 
Hawaiian home lands from DHHL to another entity and in which DHHL 
receives the other entity's land as Hawaiian home lands. A land 
exchange can involve trading Hawaiian home lands for private land, but 
it can also involve trading land between DHHL and State or Federal 
agencies.
    Market value means the most probable price in cash, or terms 
equivalent to cash, that lands or interests in lands should bring in a 
competitive and open market under all conditions requisite to a fair 
sale, where the buyer and seller each acts prudently and knowledgeably, 
and the price is not affected by undue influence.
    Native Hawaiian or native Hawaiian has the same meaning as that 
term defined under section 201(a) of the Hawaiian Homes Commission Act.
    Office of Valuation Services (OVS) means the Office with real 
estate appraisal functions within the Office of the Assistant 
Secretary--Policy, Management, and Budget of the Department of the 
Interior.
    Outstanding interests means rights or interests in property 
involved in a land

[[Page 27137]]

exchange held by an entity other than a party to the exchange.
    Secretary means the Secretary of the Interior or the individual to 
whom the authority and responsibilities of the Secretary have been 
delegated.


Sec.  47.15  What laws apply to exchanges made under this part?

    (a) DHHL may only exchange land under the authority of the HHCA in 
conformity with the HHLRA.
    (b) When DHHL makes any land exchange, the following laws and 
regulations constitute a partial list of applicable laws and 
regulations:

----------------------------------------------------------------------------------------------------------------
            Legislation or regulation                                        Citation
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(1) The National Historic Preservation Act, 1966  16 U.S.C. 470 et seq.
(2) Implementing regulations for the National     36 CFR part 800
 Historic Preservation Act.
(3) Section 3 of the Native American Graves       25 U.S.C. 3002
 Protection and Repatriation Act (NAGPRA).
(4) Implementing regulations for the Native       43 CFR part 10
 American Graves Protection and Repatriation Act.
(5) The National Environmental Policy Act, 1969   42 U.S.C. 4371 et seq.
 (NEPA).
(6) Implementing regulations for NEPA...........  40 CFR parts 1500-1508; 43 CFR part 46
(7) The State of Hawai`i Admission Act..........  73 Stat. 4, Public Law 86-3
(8) Hawaiian Homes Commission Act, 1920, as       42 Stat. 108
 amended.
(9) Hawaiian Home Lands Recovery Act, 1995......  109 Stat. 537, Public Law 104-42
(10) Comprehensive Environmental Response,        42 U.S.C. 9601 et seq.
 Compensation, and Liability Act (CERCLA).
(11) Implementing regulations for CERCLA........  40 CFR part 312
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    (c) No new legal rights or obligations are created through listing 
applicable laws and regulatory provisions in this section.

Subpart A--The Exchange Process


Sec.  47.20  What factors will the Secretary consider in analyzing a 
land exchange?

    The Secretary may approve an exchange only after making a 
determination that the exchange will advance the interests of the 
beneficiaries. In considering whether a land exchange will advance the 
interests of the beneficiaries, the Secretary will evaluate the extent 
to which it will:
    (a) Achieve better management of Hawaiian home lands;
    (b) Meet the needs of HHCA beneficiaries and their economic 
circumstances by promoting:
    (1) Homesteading opportunities,
    (2) Economic self-sufficiency, and,
    (3) Social well-being;
    (c) Promote development of Hawaiian home lands for residential, 
agricultural, and pastoral use;
    (d) Protect cultural resources and watersheds;
    (e) Consolidate lands or interests in lands, such as agricultural 
and timber interests, for more logical and efficient management and 
development;
    (f) Expand homestead communities;
    (g) Accommodate land use authorizations;
    (h) Address HHCA beneficiary needs; and
    (i) Advance other identifiable interests of the beneficiaries 
consistent with the HHCA.


Sec.  47.30  When does a land exchange advance the interests of the 
beneficiaries?

    A determination that an exchange advances the interests of the 
beneficiaries must find that:
    (a) The exchange supports perpetuation and administration of 
Hawaiian home lands;
    (b) The interests of the beneficiaries in obtaining non-Hawaiian 
home lands exceeds the interests of the beneficiaries in retaining the 
Hawaiian home lands proposed for the exchange, based on an evaluation 
of the factors in Sec.  47.20; and
    (c) The intended use of the conveyed Hawaiian home lands will not 
significantly conflict with the beneficiaries' interests in adjacent 
Hawaiian home lands.


Sec.  47.35  Must lands exchanged be of equal value?

    Hawaiian home lands to be exchanged must be of equal or lesser 
value than the lands to be received in the exchange, as determined by 
the appraisal. Once the market value is established by an approved 
appraisal, an administrative determination as to the equity of the 
exchange can be made based on the market value reflected in the 
approved appraisal.


Sec.  47.40  How must properties be described?

    The description of properties involved in a land exchange must be 
either:
    (a) Based upon a survey completed in accordance with the Public 
Land Survey System laws and standards of the United States; or
    (b) If Public Land Survey System laws and standards cannot be 
applied, based upon a survey that both:
    (1) Uses other means prescribed or allowed by applicable law; and
    (2) Clearly describes the property and allows it to be easily 
located.


Sec.  47.45  How does the exchange process work?

    (a) The Secretary recommends the parties prepare a land exchange 
proposal in accordance with Sec.  47.50. The Secretary also recommends 
the DHHL and the non-DHHL party in the exchange meet with the 
Department before finalizing a land exchange proposal and signing an 
agreement to initiate the land exchange to informally discuss:
    (1) The review and processing procedures for Hawaiian home lands 
exchanges;
    (2) Potential issues involved that may require more consideration; 
or
    (3) Any other matter that may make the proposal more complete 
before submission to us.
    (b) Whether or not a land exchange proposal is completed, the DHHL 
initiates the exchange by preparing the documentation, conducting 
appropriate studies, and submitting them to the Secretary in accordance 
with Sec.  47.60.
    (c) Upon completing the review of the final land exchange packet 
under Sec.  47.60, the Secretary will issue a Notice of Decision 
announcing the approval or disapproval of the exchange.
    (d) If the Secretary approves an exchange, title will transfer in 
accordance with State law.


Sec.  47.50  What should DHHL include in a land exchange proposal for 
the Secretary?

    (a) A land exchange proposal should include the following 
documentation:

[[Page 27138]]



------------------------------------------------------------------------
 The proposal should include . . .        that should contain . . .
------------------------------------------------------------------------
(1) Identifying information.......  (i) The identity of the parties
                                     involved in the proposed exchange;
                                     and
                                    (ii) The status of their ownership
                                     of the properties in the exchange,
                                     or their ability to provide title
                                     to the properties.
(2) Descriptive information.......  A legal description of:
                                    (i) The land considered for the
                                     exchange; and
                                    (ii) The appurtenant rights proposed
                                     to be exchanged or reserved.
(3) Authorized use information....  (i) Any authorized uses including
                                     grants, permits, easements, or
                                     leases; and
                                    (ii) Any known unauthorized uses,
                                     outstanding interests, exceptions,
                                     adverse claims, covenants,
                                     restrictions, title defects or
                                     encumbrances.
(4) A time schedule for completing  Expected dates of significant
 the exchange.                       transactions or milestones.
(5) Assignment of responsibilities  Responsibilities for:
                                    (i) Performance of required actions;
                                     and
                                    (ii) Costs associated with the
                                     proposed exchange.
(6) Hazardous substance             Notice of:
 information.
                                    (i) Any known release, storage, or
                                     disposal of hazardous substances on
                                     non-DHHL properties in the
                                     exchange;
                                    (ii) Any commitments regarding
                                     responsibility for removal or
                                     remedial actions concerning
                                     hazardous substances on non-DHHL
                                     properties; and
                                    (iii) All terms and conditions
                                     regarding hazardous substances on
                                     non-DHHL properties.
(7) Grants of permission by each    Permission to enter the properties
 party to the other.                 for the purpose of conducting
                                     physical examination and studies in
                                     preparation for the exchange.
                                     Written permission to appraise the
                                     properties should also be included.
(8) Three statements..............  Details of:
                                    (i) Arrangements for relocating
                                     tenants occupying the DHHL and non-
                                     DHHL properties involved in the
                                     exchange;
                                    (ii) How the land exchange proposal
                                     complies with the HHCA and HHLRA;
                                     and
                                    (iii) How the documents of
                                     conveyance will be exchanged once
                                     the Secretary has approved the
                                     exchange.
------------------------------------------------------------------------

    (b) When the parties to the exchange agree to proceed with the land 
exchange proposal, they may sign an agreement that DHHL will initiate 
the exchange.


Sec.  47.55  What are the minimum requirements for appraisals used in a 
land exchange?

    (a) The following table shows the steps in the appraisal process.

------------------------------------------------------------------------
      Appraisal process step                    Requirements
------------------------------------------------------------------------
(1) The parties to the exchange     (i) The parties must arrange for
 must arrange for appraisals.        appraisals within 90 days after
                                     executing the agreement to initiate
                                     the land exchange, unless the
                                     parties agree to another schedule.
                                    (ii) The parties must give the
                                     appraiser the land exchange
                                     proposal, if any, and the agreement
                                     to initiate the land exchange, and
                                     any attachments and amendments.
                                    (iii) The DHHL is encouraged to
                                     request assistance from the
                                     Department's Office of Valuation
                                     Services (OVS). OVS can provide
                                     valuation services to DHHL,
                                     including appraisal, appraisal
                                     review, and appraisal consultation
                                     on a reimbursable basis. OVS is
                                     also available for post-facto
                                     program review to ensure that
                                     appraisals conducted by the State
                                     are in conformance with the Uniform
                                     Standards of Professional Appraisal
                                     Practice and the Uniform Appraisal
                                     Standards for Federal Land
                                     Acquisitions as appropriate.
(2) The qualified appraiser must    The appraiser must:
 provide an appraisal report.       (i) Meet the qualification
                                     requirements in paragraph (b) of
                                     this section;
                                    (ii) Produce a report that meets the
                                     qualifications in paragraph (c) of
                                     this section; and
                                    (iii) Complete the appraisal under
                                     the timeframe and terms negotiated
                                     with the parties in the exchange.
(3) The Secretary will review       The Secretary will evaluate the
 appraisal reports.                  reports using:
                                    (i) The Uniform Standards of
                                     Professional Appraisal Practice;
                                     and
                                    (ii) The Uniform Appraisal Standards
                                     for Federal Land Acquisitions.
------------------------------------------------------------------------

    (b) To be qualified under paragraph (a)(2) of this section, an 
appraiser must:
    (1) Be competent, reputable, impartial, and experienced in 
appraising property similar to the properties involved in the appraisal 
assignment; and
    (2) Be approved by the OVS, if required by the Department's Office 
of Native Hawaiian Relations.
    (3) Be licensed to perform appraisals in the State of Hawai'i 
unless a Federal employee whose position requires the performance of 
appraisal duties. Federal employees only need to be licensed in one 
State or territory to perform real estate appraisal duties as Federal 
employees in all States and territories.
    (c) Appraisal reports for the exchange must:
    (1) Be completed in accordance with the current edition of the 
Uniform Standards of Professional Appraisal Practice (USPAP) and the 
Uniform Appraisal Standards for Federal Land Acquisition (UASFLA); and
    (2) Include the estimated market value of Hawaiian home lands and 
non-Hawaiian home lands properties involved in the exchange.

[[Page 27139]]

Sec.  47.60  What documentation must DHHL submit to the Secretary in 
the land exchange packet?

    The documents in the exchange packet submitted to us for approval 
must include the following:

------------------------------------------------------------------------
   The packet must contain . . .           that must include . . .
------------------------------------------------------------------------
(a) Required statements...........  (1) A statement of approval for the
                                     exchange from the Commission;
                                    (2) A statement of compliance with
                                     the National Historic Preservation
                                     Act and, as appropriate, a cultural
                                     and historic property review;
                                    (3) An explanation of how the
                                     exchange will advance the interests
                                     of the beneficiaries;
                                    (4) A summary of any consultation
                                     with any beneficiaries that may
                                     have occurred; and
                                    (5) A statement of compliance with
                                     the Native American Graves
                                     Protection and Repatriation Act.
(b) Required analyses and reports.  (1) Environmental analyses and
                                     records sufficient to meet CERCLA,
                                     NEPA, and all other pertinent
                                     Federal environmental requirements;
                                    (2) Land appraisal reports and
                                     statements of qualification of the
                                     appraisers in accordance with Sec.
                                      47.55; and
                                    (3) If property conveyed is adjacent
                                     to Hawaiian home lands:
                                    (i) An analysis of intended use of
                                     the Hawaiian home lands conveyed;
                                    (ii) A finding that the intended use
                                     will not conflict with established
                                     management objectives on the
                                     adjacent Hawaiian home lands; and
                                    (4) A copy of the land exchange
                                     proposal, if any.
(c) Relevant legal documents......  (1) Any land exchange agreements
                                     entered into regarding the subject
                                     properties between DHHL and the non-
                                     DHHL party;
                                    (2) Evidence of title; and
                                    (3) Deeds signed by the parties,
                                     with a signature block for the
                                     Secretary of the Interior or our
                                     authorized representative to
                                     approve the transaction.
------------------------------------------------------------------------

Subpart B--Approval and Finalization


Sec.  47.65  When will the Secretary approve or disapprove the land 
exchange?

    On receipt of the complete land exchange packet from the 
Commission, the Secretary will approve or disapprove the exchange 
within 120 calendar days.
    (a) Before approving or disapproving the exchange, the Secretary 
will review all environmental analyses, appraisals, and all other 
supporting studies and requirements to determine whether the proposed 
exchange complies with applicable law and advances the interests of the 
beneficiaries.
    (b) The Secretary may consult with the beneficiaries when making a 
determination if a land exchange advances the interests of the 
beneficiaries.
    (c) After approving or disapproving an exchange, the Secretary will 
notify DHHL, the Commission, and other officials as required by section 
205(b)(2) of the HHLRA.


Sec.  47.70  How does DHHL complete the exchange once approved?

    (a) The DHHL completes the exchange in accordance with the 
requirements of State law.
    (b) DHHL shall provide a title report to us as evidence of the 
completed exchange.

PART 48--AMENDMENTS TO THE HAWAIIAN HOMES COMMISSION ACT

Sec.
48.5 What is the purpose of this part?
48.6 What definitions apply to terms used in this part?
48.10 What is the Secretary's role in reviewing proposed amendments 
to the HHCA?
48.15 What are the State's responsibilities in proposing amendments?
48.20 How does the Secretary determine if the State is seeking to 
amend Federal law?
48.25 How does the Secretary determine if the proposed amendment 
decreases the benefits to beneficiaries of Hawaiian home lands?
48.30 How does the Secretary determine if Congressional approval is 
unnecessary?
48.35 When must the Secretary determine if the proposed amendment 
requires Congressional approval?
48.40 What notification will the Secretary provide?
48.45 When is a proposed amendment deemed effective?
48.50 Can the State of Hawai`i amend the Hawaiian Homes Commission 
Act without Secretarial review?

    Authority:  State of Hawai`i Admission Act, 73 Stat. 4, chapter 
339, approved March 18, 1959; Hawaiian Homes Commission Act, 1920, 
42 Stat. 108 et seq., chapter 42; Hawaiian Home Lands Recovery Act, 
1995, 109 Stat. 537; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 43 U.S.C. 
1457; 112 Departmental Manual 28.


Sec.  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 proposed amendments to the Hawaiian 
Homes Commission Act 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.


Sec.  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.
    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.
    Consultation means an open discussion process that allows 
interested parties to address potential issues, changes, or actions. 
Consultation does not require formal face-to-face meetings. However, it 
does require dialogue (verbal, electronic, or printed)

[[Page 27140]]

or at least a good faith effort to engage in dialogue with the 
beneficiaries.
    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 administer the Hawaiian Homes 
Commission Act. This department assumes the authorities and 
responsibilities of the Hawaiian Homes Commission and the Commission 
serves as the department's executive board under amended section 202 of 
the Hawaiian Homes Commission Act.
    HHCA or Hawaiian Homes Commission Act means the Hawaiian Homes 
Commission Act, 1920, 42 Stat. 108 et seq., chapter 42, as amended.
    HHLRA or Hawaiian Home Lands Recovery Act means the Hawaiian Home 
Lands Recovery Act, 1995, 109 Stat. 537, Public Law 104-42.
    Hawaiian home lands 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, Land 
Exchange Procedures, by the DHHL, and as directed by Congress.
    Lessee means either a:
    (1) Beneficiary who has been awarded a lease under section 207(a) 
of the Hawaiian Homes Commission Act;
    (2) Transferee lessee under section 208(5) of the Hawaiian Homes 
Commission Act; or
    (3) Successor lessee under section 209 of the Hawaiian Homes 
Commission Act.
    Secretary means the Secretary of the Interior or a designated 
employee.
    Special Trust Funds means the Hawaiian home-loan fund, the Hawaiian 
home-operating fund, and the Hawaiian home-development fund as defined 
under section 213 of the Hawaiian Homes Commission Act.


Sec.  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 Sec.  48.35(b).


Sec.  48.15  What are the State's responsibilities in proposing 
amendments?

    (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 regarding 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 why 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, and 
Homestead Associations, 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 forwarded to the Secretary of the Interior;
    (7) Summaries of all outreach or 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.


Sec.  48.20  How does the Secretary determine if the State is seeking 
to amend Federal law?

    The Secretary will determine that Congressional approval is 
required if the proposed amendment does any of the following:
    (a) Decreases benefits to the beneficiaries of Hawaiian home lands;
    (b) Reduces or impairs the Special Trust Funds;
    (c) Allows for additional encumbrances to be placed on Hawaiian 
home lands by officers other than those charged with the administration 
of the HHCA;
    (d) Changes the qualifications of who may be a lessee;
    (e) Allows the use of proceeds and income from the Hawaiian home 
lands for purposes other than carrying out the provisions of the HHCA; 
or
    (f) Amends 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.


Sec.  48.25  How does the Secretary determine if the proposed amendment 
decreases the benefits to beneficiaries of Hawaiian home lands?

    The Secretary will determine if the proposed amendment decreases 
the benefits to the beneficiaries, now or in the future, by weighing 
the answers to the following questions:
    (a) How would the proposed amendment advance or otherwise impact 
current lessees of Hawaiian home lands?
    (b) How would the proposed amendment advance or otherwise impact 
HHCA beneficiaries currently on a waiting list for a Hawaiian home 
lands lease?
    (c) How would the proposed amendment advance or otherwise impact 
HHCA beneficiaries who have not yet applied for a Hawaiian home lands 
lease?
    (d) 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 HHCA beneficiaries who have 
not been awarded a Hawaiian home lands lease with the interests of 
Hawaiian home lands lessees?
    (e) 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?
    (f) 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?


Sec.  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 circumstances 
in Sec.  48.20.


Sec.  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 Sec.  48.15, the Secretary will 
determine within 60 days after receiving them if the proposed amendment 
requires Congressional approval.

[[Page 27141]]

Sec.  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; 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 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.


Sec.  48.45  When is a proposed amendment deemed effective?

    (a) If the Secretary determines that a proposed amendment meets 
none of the criteria in Sec.  48.20, the effective date of the proposed 
amendment is the date of the notification letter to the 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' approval becomes law.


Sec.  48.50  Can the State of Hawai`i amend the Hawaiian Homes 
Commission Act without Secretarial review?

    The Secretary of the Interior 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 factors in Sec.  48.20 shall have no effect on the 
provisions of the HHCA or administration of the trust, except pursuant 
to this part.
[FR Doc. 2015-11401 Filed 5-8-15; 4:15 pm]
 BILLING CODE 4310-93-P