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a substantial direct effect on the States, discovery of a significant environmental (4) Vessel operators desiring to enter on the relationship between the national impact from this rule. or operate within the safety zone must government and the States, or on the contact the Captain of the Port Buffalo G. Protest Activities distribution of power and or his on-scene representative to obtain responsibilities among the various The Coast Guard respects the First permission to do so. The Captain of the levels of government. We have analyzed Amendment rights of protesters. Port Buffalo or his on-scene this rule under that Order and have Protesters are asked to contact the representative may be contacted via determined that it is consistent with the person listed in the FOR FURTHER VHF Channel 16. Vessel operators given fundamental federalism principles and INFORMATION CONTACT section to permission to enter or operate in the preemption requirements described in coordinate protest activities so that your safety zone must comply with all E.O. 13132. message can be received without directions given to them by the Captain Also, this rule does not have tribal jeopardizing the safety or security of of the Port Buffalo, or his on-scene implications under E.O. 13175, people, places or vessels. representative. Consultation and Coordination with List of Subjects in 33 CFR Part 165 Dated: April 22, 2016. Indian Tribal Governments, because it Harbors, Marine safety, Navigation B.W. Roche, does not have a substantial direct effect (water), Reporting and record keeping Captain, U.S. Coast Guard, Captain of the on one or more Indian tribes, on the requirements, Security measures, Port Buffalo. relationship between the Federal Waterways. [FR Doc. 2016–11363 Filed 5–12–16; 8:45 am] Government and Indian tribes, or on the For the reasons discussed in the BILLING CODE 9110–04–P distribution of power and preamble, the Coast Guard amends 33 responsibilities between the Federal CFR part 165 as follows: Government and Indian tribes. If you believe this rule has implications for PART 165—REGULATED NAVIGATION DEPARTMENT OF THE INTERIOR federalism or Indian tribes, please AREAS AND LIMITED ACCESS AREAS contact the person listed in the FOR Office of the Secretary FURTHER INFORMATION CONTACT section ■ 1. The authority citation for part 165 above. continues to read as follows: 43 CFR Parts 47 and 48

E. Unfunded Mandates Reform Act Authority: 33 U.S.C. 1231; 50 U.S.C. 191; [167D0102DM; DLSN00000.000000; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; DS61400000; DX61401] The Unfunded Mandates Reform Act Department of Homeland Security Delegation of 1995 (2 U.S.C. 1531–1538) requires No. 0170.1. RIN 1090–AA98 Federal agencies to assess the effects of ■ 2. § 165.T09–0265 Safety Zone; their discretionary regulatory actions. In National Grid—Beck Lockport 104 & Land Exchange Procedures and particular, the Act addresses actions Beck Harper 106 Removal Project; Procedures to Amend the Hawaiian that may result in the expenditure by a Niagara River, Lewiston, NY. Homes Commission Act, 1920 State, local, or tribal government, in the (a) Location. This zone will AGENCY: aggregate, or by the private sector of encompass all waters of the Niagara Office of the Secretary, Interior. $100,000,000 (adjusted for inflation) or River; Lewiston, NY starting at position ACTION: Final rule. more in any one year. Though this rule 43° 8′44.8692″ N., and 079° 2′32.8842″ SUMMARY: This rule provides clarity in will not result in such an expenditure, W. then extending approximately 3,300 how the Department of the Interior we do discuss the effects of this rule feet north along the international administers certain provisions of the elsewhere in this preamble. maritime border ending at position 43° Hawaiian Homes Commission Act and 9′9.9648″ N., and 079° 2′39.681″ W., F. Environment the Hawaiian Home Lands Recovery then south to the shoreline (NAD 83). We have analyzed this rule under (b) Enforcement period. This Act. It facilitates the goal of the Department of Homeland Security regulation will be enforced rehabilitation of the Native Hawaiian Management Directive 023–01 and intermittently while power line removal community, including the return of Commandant Instruction M16475.lD, operations are taking place from 7:45 native Hawaiians to the land, consistent which guide the Coast Guard in a.m. on May 16, 2016 through 6:15 p.m. with the Hawaiian Homes Commission 1 complying with the National on May 18, 2016. Act, the State of Hawai i Admission Act, Environmental Policy Act of 1969 (42 (c) Regulations. (1) In accordance with and the Hawaiian Home Lands Recovery U.S.C. 4321–4370f), and have the general regulations in § 165.23 of Act. The rule clarifies the land exchange determined that this action is one of a this part, entry into, transiting, or process for Hawaiian home lands, the category of actions that do not anchoring within this safety zone is documents required for land exchanges, individually or cumulatively have a prohibited unless authorized by the and the respective responsibilities of the significant effect on the human Captain of the Port Buffalo or his Department of the Interior, the environment. This rule involves the designated on-scene representative. Department of Hawaiian Home Lands, establishment of a safety zone and, (2) This safety zone is closed to all the Hawaiian Homes Commission, and therefore it is categorically excluded vessel traffic, except as may be other entities engaged in land exchanges from further review under paragraph permitted by the Captain of the Port of Hawaiian home lands. It also 34(g) of Figure 2–1 of the Commandant Buffalo or his designated on-scene identifies the documentation Instruction. An environmental analysis representative. requirements and the responsibilities of checklist supporting this determination (3) The ‘‘on-scene representative’’ of the Secretary of the Interior in the and a Categorical Exclusion the Captain of the Port Buffalo is any approval process for State of Hawai1i Determination are available in the Coast Guard commissioned, warrant or proposed amendments to the Hawaiian docket where indicated under petty officer who has been designated Homes Commission Act, 1920. ADDRESSES. We seek any comments or by the Captain of the Port Buffalo to act DATES: This rule is effective July 12, information that may lead to the on his behalf. 2016.

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ADDRESSES: The final rule is available the HHCA. The purposes and goals of While the Secretary has broad on the internet at: http:// these funds reflect congressionally responsibilities under the HHCA and www.regulations.gov. identified purposes and goals of the the Admissions Act, the HHLRA FOR FURTHER INFORMATION CONTACT: HHCA. clarifies the scope of the continuing Ka‘i‘ini Kimo Kaloi, Director, Office of In 1959, Congress enacted the Hawai1i responsibilities of the Federal Native Hawaiian Relations, telephone Admission Act, 73 Stat. 4 (Admission Government with regard to the HHCA. (202) 208–7462. Act), to admit the Territory of Hawai1i Two of these responsibilities are 1 addressed in the final rule. First, it SUPPLEMENTARY INFORMATION: (Hawai i or State) into the United States as a state. In compliance with the clarifies the role of the Secretary in land I. Background Admission Act, and as a compact exchanges and, second, clarifies the In 1921, Congress enacted the between the State and the United States process for the Secretary’s review of Hawaiian Homes Commission Act, 1920 relating to the management and State-proposed amendments to the (HHCA), 42 Stat. 108, to provide a disposition of the Hawaiian home lands, HHCA. As to HHC Chairman-proposed homesteading program for native the State adopted the HHCA, as land exchanges, the HHLRA provides Hawaiians by placing approximately amended, as a law of the State through that the HHC Chairman submit a report 200,000 acres of land (known as Article XII of its Constitution. to the Secretary, including identification Hawaiian home lands) into the In section 223 of the HHCA, Congress of the benefits to the parties of the Hawaiian Home Lands Trust. The day- reserved to itself the right to alter, proposed exchange. The Secretary shall to-day administration of Hawaiian amend, or repeal the HHCA. Consistent approve or disapprove the proposed Home Lands Trust is by the Department with this provision, section 4 of the exchange depending on whether it of Hawaiian Home Lands (DHHL), an Admission Act provides limitations on advances the interests of the agency of the State of Hawai1i, headed the State’s administration of the beneficiaries. As to State-proposed by an executive board known as the Hawaiian Home Lands Trust and the amendments to the HHCA, the HHLRA Hawaiian Homes Commission (HHC). Hawaiian Home Lands Trust Funds requires the State to notify the Secretary The HHCA provides the Chairman of (hereafter referred to together as the of any amendment it proposes to the the HHC the authority to propose to the Trust) and also provides that the HHCA HHCA and then requires the Secretary Secretary of the Interior (Secretary) the is subject to amendment or repeal by the to determine whether it impacts Federal exchange of Hawaiian home lands for State only with the consent of the responsibilities under the HHCA or land privately or publicly owned in United States. Recognizing, however, infringes on Federal interests or those of furtherance of the purposes of the that it was vesting the State with day- the HHCA beneficiaries. If the Secretary HHCA. to-day administrative authority, determines the State’s proposed The HHCA also created a series of Congress in section 4 of the Admission amendment of the HHCA impacts the funds (the Hawaiian Home Lands Trust Act also provided exceptions within Federal responsibilities or infringes on Funds, or ‘‘trust funds’’) See, HHCA which the State could amend certain either the Federal or beneficiaries’ section 213 as amended. The purpose of administrative provisions of the HHCA interests, the Secretary must submit the one of these trust funds is the without the consent of the United amendment to Congress for approval. ‘‘rehabilitation of native Hawaiians, States. The HHCA is a cooperative Since Hawai1i’s admission to the native Hawaiian families, and Hawaiian federalism statute, a compound of Union, both Secretarial reviews homestead communities,’’ which shall interdependent Federal and State law occurred on an ad hoc basis using include ‘‘the educational, economic, that establishes a Federal law procedures accepted by the State and political, social, and cultural processes framework but also provides for the Department. See, letter dated August by which the general welfare and implementation through State law. 21, 1987 to Chairman Morris Udall of conditions of native Hawaiians are Consistent with the provisions of the the House Committee on Interior and thereby improved and perpetuated.’’ Id. HHCA and the Admission Act, Congress Insular Affairs. This rule establishes a Another in this series of trust funds enacted the Hawaiian Home Lands clear process for Secretarial review and seeks, for instance, to enhance Recovery Act in 1995 (HHLRA), 109 approval of land exchanges proposed by construction of replacement homes, Stat. 357, which provides that the the HHC Chairman under the HHCA repairs or additions, and enhance Secretary shall determine whether a and HHLRA (Part 47), and of State- development of farms, ranches or State-proposed amendment to the proposed amendments to the HHCA aquaculture, and to provide farm loans, HHCA requires the consent of the (Part 48). United States under section 4 of the including for soil and water II. Responses to Comments on the May Admission Act. It is appropriately the conservation. Still another trust fund 12, 2015 Notice of Proposed function of the United States to ensure provides money for construction, Rulemaking reconstruction operations and conformance with the limitations in the maintenance of revenue-producing Admissions Act and protect the On May 12, 2015, the Secretary issued improvements intended to benefit integrity of this statutory framework. a Notice of Proposed Rulemaking occupants of Hawaiian home lands; for The HHLRA also clarified the (NPRM), entitled ‘‘Land Exchange investments in water and other utilities, Secretary’s role in the oversight of the Procedures and Procedures to Amend supplies, equipment, and goods; and for Hawaiian Home Lands Trust. Section the Hawaiian Homes Commission Act.’’ professional services needed to plan, 204(a)(3) of the HHCA, in conjunction 80 FR 27134–27141 (May 12, 2015). The implement, develop or operate such with Section 205 of the HHLRA, NPRM sought input from leaders and projects that will improve the value of requires the approval or disapproval of members of the Native Hawaiian Hawaiian home lands for their current the Secretary for the exchange of community, HHCA beneficiaries, and and future occupants. Other money is Hawaiian home lands. The HHLRA the public about how the Secretary provided to establish and maintain an details the Secretary’s responsibilities to reviews land exchanges involving account to serve as a reserve for loans ensure that Hawaiian home lands are Hawaiian home lands proposed by the issued or backed by the Federal administered in a manner that advances HHC Chairman and State-proposed Government, to further the purpose of the interests of the beneficiaries. amendments to the HHCA.

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The NPRM set an initial 60-day Land exchanges. In the late 1970’s, Responses to Specific Issues Raised in comment period that ended on July 13, the State and the DHHL were resolving the NPRM Comments 2015. In response to requests from claims between themselves over lands 1. How do claims concerning the United commenters, including the HHC on that the State had allegedly withdrawn States occupation of the Hawaiian behalf of itself and HHCA beneficiaries, illegally from the Hawaiian Home Lands Islands impact the rule? the Secretary extended the comment Trust, while also addressing claims deadline another 30 days, ending on against the United States for lands Issue: Multiple commenters who August 12, 2015. 80 FR 39991 (July 13, allegedly withdrawn illegally from the objected to Federal rulemaking based 2015). Hawaiian Home Lands Trust or used by their objections on the assertion that the The Secretary received over 500 the United States during the territorial United States violated and continues to written comments by the August 12, period. Congress considered addressing violate international law by illegally 2015 deadline. All comments received these claims and implementing some occupying the Hawaiian Islands and thus is without jurisdiction on the on the NPRM are available in the NPRM recommendations of the Federal-State Islands. docket at http://www.regulations.gov/ Task Force Report from 1983, such as #!documentDetail;D=DOI-2015-0002- Response: The Department is an the existing informal process of 0001. Most of the comments revolved agency of the United States. The Secretarial review of land exchanges around a limited number of issues. The Secretary’s authority to issue this rule issues discussed below encompass the proposed by the HHC Chairman. derives from the United States range of substantive issues presented in Accordingly, Congress passed the Constitution and from Acts of Congress, comments on the NPRM. HHLRA which provides procedures for and the Secretary’s authority is confined After careful review and analysis of settlement of federal claims (section within that structure. The Secretary is the comments on the NPRM, the 203); approval of amendments to the bound by Congressional enactments Department concludes that it is HHCA (section 204); and approval of concerning the status of Hawai1i. Under appropriate to publish a final rule that exchanges involving Hawaiian home those enactments and under the United would set forth the administrative lands (section 205). The HHLRA also States Constitution, Hawai1i is a State of procedures for the review of land designated a federal official within the the United States of America. exchanges involving Hawaiian home Department ‘‘to administer the In 1893, a United States officer, acting lands proposed by the HHC Chairman responsibilities of the United States’’ without authorization of the U.S. and amendments to the HHCA proposed under the HHCA and the HHLRA, and government, conspired with residents of by the State. to protect and advance HHCA Hawai1i to overthrow the Kingdom of beneficiaries’ rights and interests, Hawaii. In the years following the 1893 Overview of Comments including promoting homesteading overthrow, Congress annexed the The Department received comments opportunities, economic self- Territory of Hawai1i and established a from the Native Hawaiian community, sufficiency, and social well-being government for the Territory of Hawai1i. the State, HHCA beneficiaries, and (section 206). See, Hawaiian Home See, Joint Resolution to Provide for others. One fundamental question raised Lands Recovery Act: Hearing before the Annexing the Hawaiian Islands to the in the comments was whether the rule Senate Committee on Energy and United States, 30 Stat. 750 (1898); Act expands the Secretary’s authority Natural Resources on S. 2174, 103d of Apr. 30, 1900, 31 Stat. 141. In 1959, beyond the HHCA, Admission Act, and Cong., 9–10, 19 (1994). See, response to Congress admitted Hawai1i to the Union HHLRA. We conclude that the rule is questions 3 and 40. as the 50th State. In 1993, Congress, within the Secretary’s authority and through a joint resolution, apologized to consistent with long-standing practice HHCA beneficiaries. The HHLRA Native Hawaiians for the overthrow and under the HHCA, Admission Act, and defines ‘‘beneficiary’’ in the same terms the deprivation of the rights of Native HHLRA. as ‘‘native Hawaiian’’ is defined in the Hawaiians to self-determination, and State-proposed amendments. On HHCA, which was adopted as a expressed its support for reconciliation August 21, 1987, the Secretary provision of the constitution of the State efforts with Native Hawaiians. Joint forwarded to the House Committee on as a compact with the United States. In Resolution of November 23, 1993, 107 Interior and Insular Affairs, a proposed 1959, when section 4 of the Admission Stat. 1510, 1513 (commonly known as procedure, agreed upon by the State and Act referred to amendments that the ‘‘Apology Resolution’’). Secretary, for obtaining the consent of ‘‘increase the benefits to lessees of The Apology Resolution, however, the United States to State-proposed Hawaiian home lands,’’ all lessees met did not effectuate any changes to amendments to the HHCA. That the definition of ‘‘native Hawaiian’’ and existing law. See, Hawai1i v. Office of procedure provided for the HHC had a blood quantum of at least 50 Hawaiian Affairs, 556 U.S. 163, 175 Chairman forwarding the proposed percent. Beginning in 1986, however, (2009). Thus, the Admission Act amendment to the Secretary with an certain persons with a lesser blood established the current status of the opinion from an appropriate legal quantum could obtain lessees through State of Hawai1i. The Admission Act officer of the State, followed by the succession or transfer. See, 100 Stat. proclaimed in section 1 that ‘‘the State Secretary examining the material 3143 (1986). The HHLRA, nevertheless, of Hawai1i is hereby declared to be a transmitted and then submitting to defined beneficiary in terms of the State of the United States of America, Congress a proposed report and bill. The HHCA definition, not in terms of [and] is declared admitted into the parties anticipated that most State- lessees. Therefore, the rule evaluates Union on an equal footing with the proposed amendments would be free of and advances the interests of the other States in all respects whatever.’’ controversy and national implications The Admission Act was consented to by beneficiaries as distinguished from all and would be submitted to Congress the people of Hawai1i through an lessees. once every one to two years. The election held on June 27, 1959. The Department endeavored to follow these comments in response to the NPRM that procedures subsequently embodied in call into question the legitimacy of the the HHLRA and in this rule. State of Hawai1i are inconsistent with

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the express determination of Congress, 3. Is the Hawaiian Homes Commission political, cultural, and social which is binding on the Department. Act still Federal Law? reorganization is consistent with both the statutory text and legislative history 2. Is the definition of a beneficiary of the Issue: Commenters questioned whether the HHCA remains a Federal of HHCA. The term ‘‘rehabilitation’’ was HHCA consistent with the requirements added to the HHCA through the 1978 of Federal law? law, presuming that the passage of the Admission Act repealed it. amendments to the Hawaiian Constitution. Section 213(i) of the Issue: Commenters questioned the Response: Yes, the HHCA remains a HHCA, as amended, creates a Secretary’s constitutional authority to Federal law. As explained in more ‘‘rehabilitation fund’’ that can be used promulgate rules for the Hawaiian detail above under ‘‘Background,’’, in compliance with the Admission Act, for ‘‘the rehabilitation of native Home Lands Trust, arguing that Hawaiians’’ including ‘‘educational, Congress’s definition of a Native and as a compact between the State and the United States relating to the economic, political, social, and cultural Hawaiian beneficiary is race-based management and disposition of the processes.’’ Congress consented to this because its use of a ‘‘blood quantum’’ Hawaiian home lands, the State adopted language through a joint resolution violates the Constitution’s guarantee of the HHCA, as amended, as a law of the approved October 27, 1986, thereby equal protection. State through Article XII of its amending the HHCA. 100 Stat. 3143. Response: The Federal Government Constitution as a condition of its The purposes and goals of the has broad authority to regulate with admission in 1959. The HHCA is a rehabilitation fund are congressionally respect to Native American cooperative federalism statute, a identified as some of the purposes and communities. See, U.S. Const. art. I, sec. compound of interdependent Federal goals of the HHCA. Furthermore, the legislative history of 8, cl. 3 (Commerce Clause); U.S. Const. and State law that establishes a Federal the HHCA indicates that the bill’s art. II, sec. 2, cl. 2 (Treaty Clause); law framework but also provides for purpose was to protect the welfare of Morton v. Mancari, 417 U.S. at 551–52 implementation through State law. Furthermore, consistent with the the Native Hawaiian people. See, 67 (‘‘The plenary power of Congress to deal Cong. Rec. 3263 (1921) (statement of with the special problems of Indians is provisions of the HHCA and the Admission Act, the HHLRA provides Rep. Almon). Methods to achieve that drawn both explicitly and implicitly that the Secretary shall determine purpose included revitalizing the ‘‘mode from the Constitution itself.’’). In the whether a proposed amendment to the of living’’ of Native Hawaiians from case of the Hawaiian Home Lands Trust, HHCA requires the consent of the prior generations. See, Rehabilitation Congress specifically chose to use a 50 United States under section 4 of the and Colonization of Hawaiians and percent blood quantum requirement for Admission Act. It is appropriately the Other Proposed Amendments to the all beneficiaries of the HHCA rather function of the United States to ensure Organic Act of the Territory of Hawai1i: than a 1/32 blood quantum in order to conformance with the limitations in the Before the House Comm. on the make the bill more distinctly a Admission Act and protect the integrity Territories, 66th Cong 4 (1920) (quoting Hawaiian rehabilitation scheme. of this statutory framework. Sen. John H. Wise’s testimony before the Proposed Amendments to the Organic The HHLRA also clarified the role of Territorial Legislature that: ‘‘[t]he Act of the Territory of Hawai1i: Hearings the Secretary in the oversight of the Hawaiian people are a farming people on H.R. 7257 Before the House Comm. Hawaiian Home Lands Trust. Section and fishermen, out-of-door people, and On the Territories, 66th Cong. 15 (1921). 204(a)(3) of the HHCA, in conjunction [being] frozen out of their lands.... is Acknowledging that the United States with section 205 of the HHLRA, requires one of the reasons why the Hawaiian implemented similar rehabilitation the approval or disapproval of the people are dying. Now, the only way to save them, I contend, is to take them programs for Indians because the Secretary for the exchange of Hawaiian home lands. The HHLRA details the back to the lands and give them the government took away their lands mode of living that their ancestors were without payment and violated treaties, Secretary’s responsibilities to ensure that the administration of Hawaiian accustomed to and in that way Congressman Charles Curry, Chairman Home Lands Trust advances the rehabilitate them.’’). of the Committee on the Territories, said interests of the beneficiaries. In 1982 the Secretary and the that it should be constitutional to do the The HHLRA thus confirms the Governor of Hawai1i created a task force same for the Hawaiians whose land had continuing role of the Secretary in whose purpose was to consider how to been taken away from them and noted implementing the HHCA and defines better effectuate the purposes of the that the Committee received opinions the scope of the continuing HHCA. Federal-State Task Force on the supporting the constitutionality of the responsibilities of the Federal Hawaiian Homes Commission Act proposed legislation from the Attorney Government related to approval of land Report to the Secretary of the Interior General of Hawai1i and the Solicitor of exchanges of Hawaiian home lands and and the Governor of the State of Hawai1i, the Department of the Interior. Id. at state-proposed amendments to the Honolulu, Hawai1i, August 1983, pp. 4, 141–142. Blood quantum reflects ties to HHCA. 8. That task force found that the term ‘‘rehabilitation’’ ‘‘implies that the Native Hawaiian political 4. Is the Secretary’s interpretation of the community, as individuals marry within traditional and cultural practices of term ‘‘rehabilitation’’ as including native beneficiaries, to the extent not it. Id. at 140. And, as Congress political, cultural and social explained, Congress ‘‘does not extend precluded by law, should be respected reorganization correct? and acknowledged by the DHHL in services to Native Hawaiians because of Response: The meaning of the term order to enable native beneficiaries to their race, but because of their unique ‘‘rehabilitation’’ under the HHCA was return to their lands and to provide for status as the indigenous peoples of a provided for background purposes in their self-sufficiency and initiative and once sovereign nation as to whom the the proposed rule, and resulted in a for the preservation of their culture.’’ Id. United States has established a trust number of comments. We now clarify at 55. Thus, the term ‘‘rehabilitation’’ relationship.’’ 114 Stat. 2968 (2000) the Department’s position. has been consistently interpreted in (Hawaiian Homelands Homeownership The Secretary’s interpretation of the ways that support the development of Act). term ‘‘rehabilitation’’ to include the Hawaiian community itself. The

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Secretary’s interpretation of the term 7. Do parts 47 and 48 create an limited delegation to the State in the ‘‘rehabilitation’’ to include political, administrative burden that would make Admission Act; thus, no federalism cultural, and social reorganization is it more difficult for the State to move assessment needs to be performed. consistent with the statutory language, forward with land exchanges or Recognizing the direct effect the three congressional intent, and longstanding amendments to the HHCA that would statutes have on the State and the interpretation of the HHCA. benefit the Hawaiian home lands benefits of working with the State to The funds Congress provided for in program? protect the beneficiaries and the the HHCA represent factors that Issue: Commenters stated that while it Hawaiian Home Lands Trust, the Department held high level discussions Congress identified as some of the may be lawful for the Secretary to with State officials as early as 2011 that purposes and goals of the HHCA. These engage in rulemaking, administrative resulted in this rulemaking to formalize purposes and goals guide the Secretary’s requirements and criteria may constrain the process for review of land exchanges review in determining whether a state officials and make it more difficult and State proposed amendments to the proposal advances the interests of the for them to proceed with land beneficiaries. Section 48.25 has been HHCA. exchanges or amendments to the HHCA As discussed above, the statutory modified in response to these that they consider beneficial to the comments. framework of the HHCA, the Admission program. Act, and the HHLRA result in a 5. Should leaseholds to beneficiaries be Response: The three main Hawaiian compound of interdependent Federal converted to fee simple allocations of Home Lands Trust statutes (the HHCA, and State law. Those laws undoubtedly land? the Admission Act, and the HHLRA) have federalism implications. This rule, establish a trust relationship and grant however, does not. In accordance with Issue: Commenters recommend a path the Secretary authority to protect and that would convert HHCA leaseholders E.O. 13132, rules or policies have advance the interests of the federalism implications if they ‘‘have into the outright owners of their beneficiaries. Section 206 of the HHLRA leasehold property. substantial direct effects on the States, charges the Secretary with advancing on the relationship between the national Response: Allowing for the the interests of the beneficiaries in government and the States, or on the conversion of leaseholds into fee simple administering the HHCA. Parts 47 and distribution of power and ownership of Hawaiian home lands 48 will assist the Secretary in carrying responsibilities among the various properties, which resembles the out this responsibility and make the levels of government.’’ Parts 47 and 48 allotment process that was repudiated Secretary’s actions more transparent to have none of those effects. The rule by Congress in 1934, is prohibited by the public. Similarly, the rule will assist merely formalizes the process the current Federal law and is not within the State in understanding what Secretary will use in reviewing and the scope of the rule. information the Secretary considers approving land exchanges and in 6. Does the State of Hawai1i have the necessary in order to evaluate the reviewing proposed amendments to the ability to amend the HHCA? proposed actions. As evidenced by the HHCA under existing law, and clarifies fact that the HHLRA requires the the documentation that the HHC Issue: Commenters allege that the Secretary to approve or disapprove all Chairman, an officer of the State of State has no ability to amend the HHCA land exchanges involving Hawaiian Hawai1i, must submit to implement through the process outlined in the home lands and to review all proposed existing law. The relationship between Admission Act because it remains a amendments to the HHCA proposed by the State and the Secretary is unchanged Federal law. the State, Congress not only recognized by this rule. We expect the HHC Response: The HHCA is a cooperative the benefit of an independent Federal Chairman will continue to submit federalism statute, a compound of determination that the proposal proposed land exchanges and proposed interdependent Federal and State law advances the interests of the amendments to the Secretary as it has that establishes a Federal law beneficiaries, but also recognized that since passage of the HHRLA. The framework but also provides for the interests of the Hawaiian Home distribution of power and implementation through State law. The Lands Trust and its beneficiaries may responsibilities remains unchanged; the Admission Act provided that the State not always coincide with the interests of respective decision making authority of could amend certain provisions of the the State and their overall program. the Secretary and State are limited by HHCA but expressly limited the State’s Congress prioritized the interests of the section 4 of the Admission Act and authority. The HHLRA provides further beneficiaries and in doing so sections 205 and 206 of the HHLRA. clarification, providing that the circumscribed the day-to-day The only ‘‘direct effect’’ imposed on the Secretary shall determine whether a administration of the Trust by the State, State by this rule is the requirement to State-proposed amendment to the notwithstanding benefits to other State submit some additional documentation, HHCA requires the consent or approval goals. which, given the level of documentation of Congress under section 4 of the required and the frequency of Admission Act. If the State-proposed 8. Should a federalism assessment be performed for this rule? submissions, does not rise to a amendment is found not to require the ‘‘substantial direct effect.’’ We therefore approval of the United States, the rule Issue: One commenter suggests that conclude that no federalism analysis is provides that the effective date of the the rule has sufficient federalism necessary. State-proposed amendment is the date implications to warrant the preparation of the Secretary’s notification letter to of a federalism assessment in 9. Do parts 47 and 48 allow the the Congressional Committee Chairmen accordance with Executive Order 13132. Secretary to amend the HHCA? that Congressional approval was not Response: No. While the HHCA, the Issue: Commenters suggest that parts required. It is appropriately the function Admission Act, and the HHLRA, limit 47 and 48 amend or allow the Secretary of the United States to ensure what the State can do in administering to amend the HHCA. conformity with the limitations in the the Trust, 43 CFR parts 47 and 48 Response: The rule does not amend Admission Act and protect the integrity merely provide a path for administering the HHCA. Parts 47 and 48 merely assist of this Federal statutory framework. those Federal laws within the original in the administration of the HHCA. One

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of the purposes of part 48 is, however, the United States is provided through straight forward to those that are multi- to provide clarity, consistent with the approval by Congress. Thus, faceted and complicated or complex. Federal law, on what subjects under the approval is required. Such actions may also vary from those HHCA the State may amend on its own Section 204(c)(1) also requires the that are mandatory to others that allow and which subjects Congress must Secretary to submit to Congress a draft greater discretion. Face-to-face meetings approve. Similarly, part 47 adds clarity joint resolution approving the proposed may be necessary under certain to Federal review of land exchanges. amendment. Section 397, Joint circumstances while other means of This rulemaking process provided the Resolutions, of Jefferson’s Manual of the communications, including but not House of Representatives of the United public and all interested parties an limited to letters delivered by the postal States Congress, provides, with the opportunity to review and comment on service, email, teleconferences, etc., may the Department’s existing process before exception of joint resolutions proposing be just as effective in other it is replaced with a formalized one amendments to the Constitution, all under this rule. resolutions are sent to the President for circumstances. approval and have the full force of law. One commenter suggested requiring 10. Should the Secretary monitor State face-to-face consultations with legislation that poses a threat to the 12. Does § 47.50(a)(8)(i) authorize the beneficiaries and lessees who live HHCA? State of Hawai1i to evict tenants from within a 50-mile radius of the existing Issue: Commenters recommend that property being considered for a land exchange? Hawaiian home lands to be exchanged under part 48 the Secretary adequately or received into the Trust. While the monitor any legislation that would pose Issue: Multiple commenters expressed rationale for not requiring face-to-face concern that § 47.50(a)(8)(i) authorizes a threat to the HHCA. consultations presented in the previous Response: Section 204 of the HHLRA the State to evict tenants from property paragraph still holds true, the Secretary requires that the Chairman of the HHC being considered for a land exchange. submit for review by the Secretary and Response: Section 47.50(a)(8)(i) does encourages the State to engage in face- if required, congressional approval, all not authorize the State or any other to-face consultations, at a minimum, State enactments proposing to amend entity to evict tenants from property within a 50-mile radius. The the HHCA. Any proposed amendments being considered for a land exchange. beneficiaries who live within a 50-mile to any terms or provisions of the HHCA This provision asks that if a party to the radius of a proposed exchange will by the State should also specify that the exchange will evict a tenant from land likely have a great deal of information proposed amendment seeks to amend being exchanged under separate legal important in making a decision about an the HHCA, which puts all persons on authority, the party should provide the exchange that would assist the notice that the amendment needs review Secretary details of arrangements for the Department in its review. by the Secretary. Consistent with the relocation of the tenants. The provision The final rule modified the definition Admission Act and HHCA, if Federal in § 47.50(a)(8)(i) does not expand or of consultation in response to these review finds that any State enactment grant such authority. The provision in comments. impacts any of the factors in § 48.20 of § 47.50(a)(8)(i) is almost identical to this rule, Congressional action is section 43 CFR 2201.1(c)(11) which 14. Does § 47.45(a) impede the State’s required before it has any effect on the applies to other Federal land exchanges. ability to engage in land exchanges provisions of the HHCA or The purpose of both 43 CFR involving Hawaiian home lands? administration of the Trust. It is the 2201.1(c)(11) and final rule 43 CFR responsibility of the HHC Chairman to 47.50(a)(8)(i) is to assist the Secretary in Issue: Commenters raised the question monitor the State’s legislative activities identifying all costs, both economic and whether § 47.45(a), which recommends and to obtain the required review by the social, to all persons directly affected by the HHC Chairman and the other party Secretary if it is the State’s intent to an exchange. seeking the exchange meet with the Department prior to finalizing an amend the HHCA. 13. Should the definition of Once the Department determines that exchange, would hamper the progress of consultation in both parts 47 and 48 of Congress must approve a proposed land exchanges involving Hawaiian this rule require face-to-face meetings amendment to the HHCA and the with beneficiaries to be valid? home lands. Department transmits the proposed Response: Section 47.45(a) is a amendment to Congress, there is no Issue: Commenters question whether consultation with beneficiaries without suggested course of action and does not requirement that the Administration require pre-land exchange meetings. monitor or advocate its passage. The face-to-face meetings will allow for a The Department finds, however, that Administration may oppose an sufficient opportunity to engage in getting all parties who are interested in amendment that does not advance the dialogue with the beneficiaries, consider interests of the HHCA beneficiaries. their views, and, where feasible, seek a particular land exchange talking to agreement with them. one another can be extremely useful and 11. Do State-proposed amendments to Response: The definition of time-saving. It is especially useful to the HHCA require Congressional consultation in this rule provides a have this type of pre-meeting to avoid approval or consent? minimum requirement and is intended the submission of a presumed final Issue: A commenter suggests that to give the Secretary, the HHC document that cannot be approved by Congressional consent and not approval Chairman, as well as beneficiaries and the Department. The language of is required for certain proposed interested parties, flexibility in the § 47.45(a) would leave it to the amendments to the HHCA. consultation process in order to discretion of the HHC Chairman as to Response: Congress provided in efficiently and effectively engage whether to engage in the pre-land section 4 of the Admission Act that beneficiaries and interested parties in exchange meeting. The meeting may be certain amendments to the HHCA informed consideration of proposed conducted via teleconferencing or web- would require the consent of the United actions. Such actions may involve a conferencing rather than in-person. States. Congress also clarified in section wide spectrum of issues ranging from 204 of the HHLRA that the consent of those that are singular, simple, and

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15. Should § 47.65(b) clarify the Response: The definition of land Hawaiian Home Lands Trust. The circumstances under which the exchanges in section 47.10 is based example given by the commenter is that Secretary will consult with the upon section 204 of the HHCA and the the return on the generation of beneficiaries when making a Secretary’s experience with reviewing electricity on a current trust property determination if a land exchange land exchanges involving Hawaiian and the revenue it can potentially advances the interests of the home lands and other properties generate is more important than its beneficiaries? throughout the United States. Exchanges present cash value of the property. can be a valuable tool for the HHCA Response: The definition of market Issue: Commenters suggest that it is Chairman in managing the Hawaiian value used in this rule requires that the unclear when and under what Home Lands Trust and advancing the estimate of value be made in terms of circumstances consultation might occur interests of the beneficiaries. Part 47 cash or its equivalent. The appreciation by the Secretary when reviewing a HHC seeks to clarify the section 205 of rate and rate of return reflect future Chairman-proposed land exchange. HHLRA to ensure it is carried out in income potential, of the properties being Response: When reviewing a land compliance with section 206 of the considered in an exchange and will be exchange proposal submitted by the HHLRA that requires the Secretary, in considered in the appraisal of a property HHC Chairman, it is essential to the administering the HHCA, to advance the if the highest and best use of the Secretary’s decision-making process to interests of the beneficiaries. The property is for generating income. have input from the beneficiary protections provided by the HHCA, Properties considered for exchange will community about the effect the land Admission Act, and HHLRA, along with be valued at their highest and best use exchange may have on the beneficiaries the details laid out in part 47, allow the as required by UASFLA for market and the Hawaiian Home Lands Trust. HHC Chairman to engage in land value appraisals. The income The reason for making consultation exchanges involving Hawaiian home capitalization approach, which is under § 47.65(b) permissive is that if the lands without endangering the Trust. required to be completed on income HHC Chairman has already consulted producing properties under UASFLA, with the beneficiaries on the land 18. Should the definition of ‘‘market requires the appraiser to analyze a exchange proposal that is before the value’’ be amended to take into property’s ability to generate future Secretary, and records of this consideration such things as utility and benefits and capitalizes the income into consultation provide the input that the cultural significance of the properties? an indication of present cash value. The Secretary seeks, then no further Issue: Commenters suggest that when result is that the market value of the consultation by the Secretary may be there are multiple reasons for a land property as of the date of appraisal takes necessary. If the HHC Chairman forgoes exchange to occur that the appraisals of into account future income and any consultation on a land exchange or a the properties should take those reasons appreciation by converting future proposed amendment to the HHCA, the into account. benefits into a present cash value. If the Secretary may be required to consult Response: The Secretary is authorized two exchange properties have similar directly with the beneficiaries in order to approve a land exchange under highest and best uses, similar to approve the exchange or to find that section 204 of the HHCA if the property capitalization rates would likely be used an amendment does not require to be added to the Hawaiian Home ensuring equal treatment of the Congressional approval. Lands Trust is of ‘‘equal value’’ to the properties under appraisal. Upon consideration of the comments, property leaving the Hawaiian Home language similar to that in § 47.65(b) Lands Trust. The Secretary interprets 20. Should only Federal employees was inserted into § 48.20. this requirement to be referring to licensed in the State of Hawai1i be market value, similarly to the BLM land allowed to conduct appraisals of 16. Should the term ‘‘consultation’’ be exchange regulations included in 43 properties involved in an exchange better defined? CFR part 2200 that only consider the involving Hawaiian home lands? Issue: Commenters suggested that economic uses of the subject property. Issue: A commenter suggests only there be greater clarity and In order to approve the exchange, Federal employees licensed in the State formalization as to when the Secretary however, the Secretary must determine of Hawai1i be allowed to conduct would seek such consultation, what whether the proposed exchange appraisals of properties involved in an such consultation would entail, and advances the interests of the exchange of Hawaiian home lands. how beneficiary input will be taken into beneficiaries as required by section 206 Response: The vast majority of account in any decision making process. of the HHLRA and as implemented in Department’s appraisals are completed Response: The Department agrees section 47.20 of this rule. At that point, by private contract appraisers under the with this point and modified the the Secretary may take into account direction of the Department. The review definition of consultation in both parts things such as the utility and cultural of those reports is done, however, 47 and 48 so that they are consistent significance of the properties. exclusively by Federal employees. with the definition used by Federal Requiring that appraisals be conducted 19. Should the Secretary ensure that the agencies when consulting with the by only Federal employees would place appreciation rate of any new property Native Hawaiian community under an unnecessary obstacle in the path of being proposed for inclusion in the section 106 of the National Historic completing these land exchanges. Preservation Act. Hawaiian Home Lands Trust be at least equal to the rate of return for the 21. Should the Secretary include in 43 17. Are the standards for the review of property proposed to leave the CFR part 47 a process that addresses land exchanges sufficiently clear to Hawaiian Home Lands Trust? section 205(c) of the HHLRA which protect the interests of the beneficiaries? Issue: A commenter suggests that an authorizes the Secretary to initiate a Issue: Commenters suggest the appreciation rate of any new property land exchange involving Hawaiian standards for review of land exchanges being proposed for inclusion in the home lands? is not sufficient to guarantee the Hawaiian Home Lands Trust be at least Issue: Commenters suggest 43 CFR Hawaiian Home Lands Trust will be equal to the rate of return for the trust part 47 include a process that addresses preserved. property proposed to leave the section 205(c) of the HHLRA which

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authorizes the Secretary to initiate a such as these, the State is merely taking Secretary will consider in analyzing a land exchange involving Hawaiian on a general advisory role and providing land exchange. These factors themselves home lands. advice to Congress on what Federal laws are purposefully broad to allow Response: In this rule, the Department they should pass. Congress may flexibility in the analysis. did not include procedures governing consider the proposed amendment Moreover, in order for the exchange to land exchanges involving Hawaiian offered by the State of Hawai1i and this be approved, the purpose of the land home lands initiated by the Secretary, does not require a review under section exchange must be well documented and but chose to address the primary way in 206 of HHLRA. demonstrate how the land exchange which land exchanges are currently advances the interests of the 25. Is it the responsibility of DHHL and initiated. The Department is unaware of beneficiaries. For instance, it would be the HHC to determine whether proposed any land exchange involving Hawaiian insufficient under the rule for the party land exchanges are appropriate for the home lands being initiated or proposed proposing the exchange to make only a Hawaiian people? to be initiated by the Secretary. Thus, conclusory statement that the exchange the need to address such an exchange Response: In accordance with section advances the interests of the through rulemaking is not necessary. 205(b) of the HHLRA, ‘‘the Secretary beneficiaries without further Should the Secretary decide to engage shall approve or disapprove the explanation. Sections 47.20 and 47.30 in a land exchange involving Hawaiian proposed exchange’’ submitted by the provide the necessary information for home lands under the authority of HHC Chairman. While the Chairman the Secretary to make a reasoned section 205(c) and (d), we will consider may propose an exchange, the ultimate decision to approve or disapprove a then what process is required and if a responsibility for determining the proposed land exchange. appropriateness of the proposed rule is warranted. 28. Should there be a requirement that exchange remains with the Secretary. 22. Should the factors listed in section land exchanges not increase or decrease 47.20 include ‘‘reduce the diversion of 26. Are the factors the Secretary will the acreage in the Trust in order to keep staff resources dedicated to deriving consider in analyzing a land exchange it whole? revenues from land dispositions to fund listed in section 47.20 too restrictive to Response: While acreage is an the DHHL’s administrative and allow for the proper use of the land important aspect of determining the operating expenses’’? exchange tool by the HHC Chairman? market value of properties involved in Response: It is unnecessary to Issue: A commenter suggests that the a land exchange, it is not the exclusive specifically insert the suggested rule relies solely on the language listed determining factor. For example, 50 language as it is encompassed within in section 204(3) of the HHCA, which acres of heavily sloped rocky land will section 47.20(i). provides for an exchange of equal value likely not be as valuable as a smaller ‘‘to consolidate its holdings or to better number of acres of usable farm land or 23. After approving or disapproving a effectuate the purposes of the HHCA.’’ other more readily developable acres. proposed amendment to the HHCA, Response: Section 206 of the HHLRA Therefore, the HHCA requires that the should the Secretary provide an email requires that the Secretary ‘‘advance the exchange be of equal value, not that the notice to the Native Hawaiian interest of the beneficiaries’’ in acreage be the same. The Secretary Organization List maintained by the administering the HHCA. needs to ensure the market value of the Secretary and post on the Department of Implementation of this provision is property coming into the Hawaiian the Interior’s Web site? consistent with the purposes of section Home Lands Trust is equal to or greater Response: The Secretary does not 204(a)(3) of the HHCA, which is to than the property leaving the trust as approve or disapprove proposed advance the interest of its beneficiaries required by section 204(c) of the HHCA, amendments to the HHCA but merely when managing the Hawaiian Home rather than rely on identical acreages. reviews proposed amendments to Lands Trust. Section 47.20 articulates 29. Should the rule provide a more determine if Congressional approval is factors that are consistent with the defined role for the Hawaiian Homes required. Following the required review, purposes of the HHCA and with Commission in the review of land the Secretary will post notice of the advancing the interest of the exchanges and amendments to the determination on the Department of the beneficiaries to provide transparency in HHCA? Interior Web site. the Secretary’s decision making process. Section 47.20 of the rule implements Issue: Commenters suggest that the 24. Should the Secretary review and both statutes in a consistent manner and rule specifically recognize the role of provide rulings to Congress and the utilizes the Secretary’s expertise in the HHC because of its fiduciary duty to HHC Chairman on State-proposed reviewing land exchanges involving the beneficiaries of the HHCA. amendments to the HHCA that in trust lands held for other U.S. Response: Section 202 of the HHCA accordance with their own provisions indigenous communities. provides that the DHHL be headed by an require Congressional approval to executive board known as the HHC. The become effective? 27. Should the factors the Secretary will HHC and its Chairman are appointed by Issue: The State will sometimes pass consider in analyzing a land exchange the Governor of the State of Hawai1i. The legislation that proposes to amend the listed in section 47.20 be expanded to Chairman of the HHC is also the HHCA but is expressly contingent on include such things as the development Director of DHHL and an Officer of the approval by Congress. of Hawaiian home lands for mercantile State of Hawaii. As officers of the State Response: When the State passes use and to protect ecological and who are placed in their positions as legislation that proposes to amend the cultural resources? Hawaiian Homes Commissioners to HHCA but includes a provision that the Response: Section 47.20 specifies that oversee the day-to-day management of effectiveness of the proposed the main purpose of engaging in a land the Hawaiian Home Lands Trust, the amendment is contingent on approval exchange must be to advance the Secretary values their input. In response by Congress, no proposal to amend the interests of the beneficiaries as provided to comments, section 47.60(a)(1) now HHCA was made for purposes of section in section 206 of the HHLRA. requires a statement of approval for a 206 of the HHLRA. In circumstances Accordingly, it lists the factors the land exchange from the HHC, including

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the Commissioners’ recorded vote on 32. Will the rule assist in meeting the Admission Act Section 4 (detailing the exchange, and § 48.15(b)(2) requires Congressional deadlines for the review circumstances in which Congress that all testimony and correspondence of State- proposed amendments to the reserved its own authority over the from the HHC and its Commissioners HHCA and HHC Chairman-proposed Trust). Consideration of whether a land related to proposed amendments be land exchanges involving Hawaiian exchange advances the interests of the submitted to the Secretary in order to home lands? beneficiaries or a proposed amendment better inform the Secretary’s review of Response: In order to provide a decreases the benefits to beneficiaries proposed amendments to the HHCA. In rational basis for decisions regarding are separate steps in the Secretary’s addition, the rule now specifically land exchanges involving Hawaiian review processes in both parts 47 and 48. references the Chairman of the HHC as home lands and proposed amendments submitting the State-proposed to the HHCA, the Secretary requires 34. Should the rule require public input amendments to the HHCA and sufficient information on which to base or a public vote when determining if a Chairman-proposed land exchanges to those decisions. This rule details what State-proposed amendment to the the Secretary to conform to the language information the Department requires to HHCA or HHC Chairman-proposed land in sections 204(a) and 205(a) of the make an informed decision. The exchange involving Hawaiian home HHLRA. intention of the rule is to reduce the lands is reviewed by the Secretary? 30. In addition to requiring the amount of time the Department takes to Response: When reviewing land submission of homestead association make an informed decision by providing exchanges involving Hawaiian home testimony and correspondence clarity on the information necessary lands proposed by the Chairman of the regarding proposed amendments to the from the State about proposed land HHC or State-proposed amendments to HHCA, should § 48.15 also require the exchanges involving Hawaiian home the HHCA, the Secretary will consider same documents from beneficiary lands or proposed amendments to the all information provided by the State, associations whose membership is HHCA. including any public input it received. composed of persons who have 33. Should the purpose of the rule For purposes of land exchanges, it is the submitted applications to the State for regarding land exchange procedures be Chairman’s decision as to whether to homesteads but are currently awaiting for the benefit of the beneficiaries of the include public input, including any vote the assignment of a lot? HHCA? results from the public, in a land exchange proposal submitted to the Response: The Department Response: While each part in the rule Secretary. Section 47.60 sets forth the appreciates the question. It is important has a specific purpose, the overall documentation that the Chairman must for the Secretary to obtain the input of purpose of the Secretary’s oversight of submit to the Secretary in a land beneficiaries who are on the State’s the Hawaiian Home Lands Trust is to exchange packet, which, in response to homestead waiting list as their priorities advance the interests of the beneficiaries this comment, now includes the may diverge from the priorities of those of the HHCA in accordance with section recorded vote of the Commissioners. beneficiaries who hold a homestead 206(b) of the HHLRA. Advancement of The rule requires in § 48.15 that the lease. Therefore, new definitions of these interests in both parts 47 and 48 final vote totals for votes taken by the HHCA Beneficiary Association and of must be specific to the interests of the HHC and the State of Hawai1i Homestead Association are included in beneficiaries, not others, and Legislature on a proposed HHCA the rule and are referenced in documented. For the purposes of an amendment be forwarded to the § 48.15(b)(2), and beneficiaries are HHCA review, the interests of parties Secretary when it is submitted for added to § 48.15(b)(2). other than the beneficiaries are not review. These vote totals help to relevant to the Secretary’s decision provide the Secretary with a full picture 31. Should the definition of making process; rather, the Secretary’s of the State’s position on a proposed ‘‘beneficiary’’ include those Native approval is contingent upon a amendment and whether that Hawaiians with a blood quantum of determination that the proposal does amendment decreases the benefits to the more than 25 percent but less than 50 not decrease benefits to the beneficiaries. This requirement is percent who qualify to receive a beneficiaries. In response to comment, retained in the final rule. homestead through transfer or § 48.25 was modified to require that the succession? Secretary consider the goals and 35. Should the rule require that the HHC purposes of the Trust when determining Chairman engage in consultation with Response: Section 202 of the HHLRA whether a proposed amendment to the the beneficiaries before any land states ‘‘the term ‘beneficiary’ has the HHCA decreases the benefits to the exchange involving Hawaiian home same meaning as given the term ‘native HHCA beneficiaries. lands is approved or the Secretary Hawaiian’ under section 201(7) of the It is important to note that there are makes a final determination regarding a Hawaiian Homes Commission Act.’’ other factors the Secretary must find to proposed amendment to the HHCA? Section 201(7) of the HHCA states, approve a proposed land exchange in Response: The HHCA, Admission Act, ‘‘Native Hawaiian means any addition to finding that the proposed and the HHLRA define the three parties descendant of not less than one-half part exchange advances the interest of the involved in reviewing land exchanges of the blood of the races inhabiting the beneficiaries. See, HHCA Section involving Hawaiian home lands and Hawaiian Islands previous to 1778.’’ 204(a)(3) and final rule § 47.35 requiring proposed amendments to the HHCA. Changing the definition of ‘‘beneficiary’’ the Department to ensure the market These parties are the State of Hawai1i to include those Native Hawaiians with value of the property coming into the (represented by the DHHL and HHC), a blood quantum of at least 25 percent Trust is equal or greater than the the HHCA beneficiary community, and but less than 50 percent who received property departing the Trust. Similarly, the Federal Government (represented by a homestead through transfer or a finding that a proposed amendment to the Secretary of the Interior). The succession is not consistent with the the HHCA advances the interests of the beneficiary community obtains much of HHLRA and HHCA and would require beneficiaries does not obviate the need this voice through consultation with Congressional action. for Congressional approval. See, either the State or the Department.

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Thus, while the HHC Chairman is not 39. Is the rule necessary to provide these and other applicable Federal laws, required to engage in consultation with HHCA beneficiaries with options to including those listed in § 47.15. It is the beneficiary community, without it hold the DHHL and the State important to note that Congress did not the Department may not have sufficient accountable when proposing land exempt the Secretary’s actions under the information to evaluate whether a exchanges involving Hawaiian home HHLRA from other applicable Federal Chairman-proposed land exchange or a lands and amendments to the HHCA? laws, such as Native American Graves State-proposed amendment advances Issue: A commenter questions the Protection and Repatriation Act that the interests of the HHCA beneficiaries. need for parts 47 and 48 and states directly apply to Hawaiian home lands. The information delineated in this ‘‘Beneficiaries have held DHHL as well 36. Should the rule provide a definition rule provides clarity in the Department’s as the State accountable through the of a homestead association? decisions regarding land exchanges judicial process, both federal and state; Response: The Department agrees that involving Hawaiian home lands and special legislative hearings; legislative amendments to the HHCA proposed by the rule should provide a definition of audits; and media reports (including a homestead association to provide the State. While the Secretary will give traditional print and TV media as well weight to the State in its findings and clarity to the definition in the HHCA. as social and internet based media The Secretary added a definition of analysis, the rule seeks to make certain resources). Statutorily, beneficiaries can the information gathered is substantive homestead association in § 48.6 of this pursue action for breaches of trust under rule based on the language provided in and reasonably verifiable in order to Hawaii Revised Statutes Chapter 673 ensure the Hawaiian Home Lands Trust sections 204(a)(2), 213, and 214(a) of the (Native Hawaiian Trusts Judicial Relief HHCA. This definition is also based on statutes are administered in a way that Act; aka Right to Sue).’’ advances the interests of the the definition of a Native Hawaiian Response: Parts 47 and 48 seek to beneficiaries as required by section 206 organization listed in the National provide clarity and transparency in the of the HHLRA. Historic Preservation Act and Native Federal administration of the Hawaiian American Graves Protection and Home Lands Trust statutes. By 41. Should the rule provide for recourse Repatriation Act (NAGPRA). The providing this clarity, the Secretary can if the Secretary fails to follow the rule Secretary will maintain a list of the better implement section 206(b) of the or act within specific timeframes? homestead associations that meet this HHLRA that requires the Secretary to Response: No. Congress provides for definition and file a statement, signed administer these statutes in a way that uniform and consistent systems of by the association’s governing body, of advances the interests of the recourse and judicial review through governing procedures and a description beneficiaries. This rule also seeks to other statutes, such as the of the territory it represents. provide transparency about what Administrative Procedure Act, and has 37. Should the purpose of consultation information is necessary to make not provided any other specific recourse be only to engage in good faith efforts decisions regarding HHC Chairman- with regard to the Secretary’s to educate the beneficiaries, discuss and proposed land exchanges involving responsibilities under the HHCA or solicit their comments, and not to seek Hawaiian home lands and State- HHLRA. agreement? proposed amendments to the HHCA. Such transparency should increase 42. Should the rule provide for Response: As the National Historic confidence of the beneficiary automatic approval of a HHC Chairman- Preservation Act provides Federal community in the decisions of the proposed land exchange or State- agencies with guidance on how to work Secretary and State, thus minimizing proposed amendments to the HHCA if with the Native Hawaiian community, any risk and need for litigation. the Secretary fails to follow the rule or the Department chose to use the Act’s The rule incorporates consultation act within specific timeframes? definition of consultation for working with the HHCA beneficiaries and Response: Automatic approval of with the Native Hawaiian beneficiary consideration of the interests of the HHC Chairman proposed land community. The National Historic HHCA beneficiaries as provided by exchanges or State-proposed Preservation Act defines consultation as Congress in the HHLRA during the amendments to the HHCA is the process of seeking, discussing, and proposal and review processes. Such inconsistent with sections 204 and 205 considering the views of other provisions address HHCA beneficiary of the HHLRA, section 4 of the participants, and, where feasible, concerns that they are often the last to Admission Act, and potentially section seeking agreement. be informed about proposed actions 206 of the HHLRA, which requires that 38. Do the rules already in place that affecting their interests and are often these Hawaiian Home Lands Trust deal with the treatment of land informed after-the-fact when decisions statutes be administered to advance the exchanges involving indigenous lands have already been made. Such interests of the beneficiaries. Moreover, held in trust for Federally recognized consultation should result in better- such automatic approvals would tribes with whom the United States has informed decision-making and lessen deprive the beneficiary community of a formal government-to-government the need of beneficiaries to seek the reasoned analysis and considered relationship provide sufficient guidance recourse after decisions have already judgment of the Department in its to the Secretary when reviewing land been made. exercise of these statutory exchanges involving Hawaiian home 40. Does the rule expand the Secretary’s responsibilities. lands? authority beyond the HHLRA? 43. Should part 47 include a fast-track Response: No. The rules related to Response: No. The rule simply process for approval of land exchanges exchanges to lands held in trust are provides uniform processes for involving emergency situations, smaller located in 25 CFR part 151 that do not implementing the authorities and acreages, less intense uses, or already apply to Hawaiian home lands. responsibilities Congress granted the developed land where the use will Congress enacted the HHCA and Secretary in the HHCA and HHLRA, remain the same? HHLRA to govern land exchanges consistent with the standards and By following the provisions of involving Hawaiian home lands. requirements established by Congress in sections 47.50–47.60, the HHC

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Chairman and DHHL can dramatically 45. Does the language ‘‘benefits to the how the § 47.20 factors are to be reduce the amount of time necessary to parties of the proposed exchange’’ in weighed. section 205(a)(3) of the HHLRA require complete a land exchange and increase 48. The Factors Listed in § 47.30(a) and the Secretary to look at the benefits to the likelihood the exchange will be (c) Are Ambiguous acted on by the Secretary without the the DHHL because the parties to an delay necessitated by requests for exchange will always be DHHL and Response: The language in § 47.30(a) is not ambiguous. It requires the additional information. In cases where a another? exercise of judgment when reviewing proposed land exchange is between the Response: No. Such language requires land exchanges covering a wide range of DHHL and another agency of the State the Secretary to look at the benefits to circumstances. Section 47.30(a) or a Federal agency, where no change in the beneficiaries of the Hawaiian Home emphasizes the need for the Secretary to land use is planned, a categorical Lands Trust. This provision must be consider the long term effects a land exclusion under NEPA may be read to be consistent with section 206, exchange will have on the lands in the applicable as listed under Chapter 7.5 of which requires the Secretary to advance Hawaiian Home Lands Trust. These the Department of the Interior the interests of the beneficiaries. Such a trust lands are being held in order to Departmental Manual, which reduces reading is also consistent with the advance the interests of the HHCA the time required in preparation and purposes of the HHCA. The Hawaiian beneficiaries. Section 47.30(b) is review. Home Lands Trust was established for intended to ensure that beneficiaries the benefit of the HHCA beneficiaries. If the HHC Chairman chooses not to benefit from every exchange. Section Section 206(b)(1) of the HHLRA seek the assistance of the Secretary in 47.30(c) emphasizes the need for the specifically directs the Department to Secretary to consider whether a developing an exchange proposal, the ‘‘(1) advance the interests of the HHC Chairman may merely submit the proposed exchange will significantly beneficiaries.’’ To read the language in conflict with the beneficiaries’ interests documentation listed in § 47.60. In section 205(a)(1) as suggested by the in adjacent Hawaiian home lands. accordance with section 205 of the commenter, gives no weight to this HHLRA, the Secretary will approve or provision of section 206 and ignores the 49. Is the analysis presented in §§ 47.20 disapprove the proposed exchange not responsibilities of the State to the and 47.30 highly discretionary and later than 120 days after receiving the beneficiaries. In response to this provide for circumstances where the information required in § 47.60. comment, the language in § 47.30(a) was various factors may conflict? edited to remove the reference of Response: Section 204(a)(3) of the 44. Does an assessment of beneficiary ‘‘administration.’’ HHCA and section 205(b) of the HHLRA interests by the Secretary undermine the make clear that a land exchange is not State’s subject matter expertise and 46. Does the rule limit the amount of valid until it has been approved by the usurp the executive power of the HHC consultation that the HHC Chairman or Secretary, but does not suggest that the by re-evaluating the Commission’s the Secretary may engage in with Secretary is required to approve every determination? beneficiaries when reviewing Chairman- proposed land exchange. Indeed, proposed land exchanges involving Congress provided expressly in section Response: No. While the Hawaiian Hawaiian home lands or State-proposed 205(b) of the HHLRA that ‘‘the Secretary Home Lands Trust statutes provide the amendments to the HHCA? shall approve or disapprove the State and its subdivisions, including the Response: The definition of proposed exchange.’’ The Secretary HHC and its Chairman, certain consultation provided in both parts 47 must also, at a minimum, be satisfied responsibilities, nowhere do they and 48 outline the minimum that the purposes of the Hawaiian Home relieve the Secretary of the requirement requirements for consultation. If the Land Trust statutes are met. Each of in section 206(b) of the HHLRA to HHC Chairman chooses to engage in these factors requires the exercise of administer the Hawaiian Home Lands additional consultation efforts or judgment. Thus, the discharge of the Trust statutes in a way that advances the decides to require a higher standard, responsibility placed on the Secretary is interests of the beneficiaries. For proper such as holding face-to-face not ministerial. Nor is it ‘‘discretionary’’ care of the Trust to take place, all three consultation with beneficiaries on all as the factors to be considered are parties, the State, the Secretary, and the proposed land exchanges and enumerated. There is, nonetheless, some beneficiary community, must work amendments to the HHCA, the subjectivity in the evaluation. Sections together and fulfill their respective Department supports such efforts as 47.20 and 47.30 provide factors to duties assigned by Congress. It is beneficial to the beneficiaries, the clarify the weighing process the because the Federal government has an Chairman, and the Secretary. Secretary must engage in when determining if a land exchange independent interest in implementing 47. If the factors from § 47.20 refer to the advances the interests of the the Trust and because Congress non-Hawaiian home lands that would beneficiaries. The factors in § 47.20, understood that the State and its be received, how are the benefits in however, are not exhaustive. subdivisions might have interests that retaining Hawaiian home lands conflict with the interests of the It is possible certain proposed determined in order to apply the exchanges will present situations where beneficiaries, that Congress required balancing test in § 47.30(b)? certain factors listed in § 47.20 may Secretarial approval or disapproval of Response: The factors listed in § 47.20 conflict with each other. In those the HHC Chairman-proposed land are utilized by the Secretary to review circumstances the Department will be exchange or State proposed amendment both the non-Hawaiian home lands required to exercise expertise and to the HHCA in section 205 of the proposed to be received into the judgment within these limits in HHLRA and section 204 of the HHCA. Hawaiian Home Lands Trust and the weighing the factors in order to In addition, the Secretary has an interest Hawaiian home lands the HHC determine whether a proposed land in enforcing Federal law within her Chairman proposes to remove from the exchange advances the interests of the responsibility. Hawaiian Home Lands Trust. Section beneficiaries. If the factors listed in 47.30(b) provides explicit instruction on § 47.20 conflict with § 47.30 (a) and (c),

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however, the Secretary will be required (c) Does not have significant adverse consultation policy and under the to disapprove the proposed land effects on competition, employment, criteria in Executive Order 13175 and exchange. investment, productivity, innovation, or determined that it has no substantial the ability of U.S.-based enterprises to direct effects on federally recognized III. Summary of Impacts compete with foreign-based enterprises. Indian tribes and that consultation 1. Regulatory Planning and Review under the Secretary’s tribal consultation 4. Unfunded Mandates Reform Act (Executive Orders 12866 and 13563) policy is not required. This final rule does not impose an Executive Order 12866 provides that 9. Paperwork Reduction Act the Office of Information and Regulatory unfunded mandate on State, local, or Affairs will review all significant rules. tribal governments or the private sector This rule does not contain The Office of Information and of more than $100 million per year. The information collection requirements Regulatory Affairs determined that this final rule does not have a significant or subject to the Paperwork Reduction Act rule is not significant. unique effect on State, local or tribal and therefore a submission to the Office Executive Order 13563 reaffirms the governments or the private sector. A of Management and Budget under the principles of E.O. 12866 while calling statement containing the information Paperwork Reduction Act (44 U.S.C. for improvements in the nation’s required by the Unfunded Mandates 3501 et seq.) is not required. We may regulatory system to promote Reform Act (2 U.S.C. 1531 et seq.) is not not conduct or sponsor, and you are not predictability, to reduce uncertainty, required. required to respond to a collection of and to use the best, most innovative, 5. Takings (E.O. 12630) information unless it displays a and least burdensome tools for currently valid OMB control number. This rule does not affect a taking of achieving regulatory ends. The 10. National Environmental Policy Act executive order directs agencies to private property or otherwise have consider regulatory approaches that taking implications under Executive This final rule does not constitute a reduce burdens and maintain flexibility Order 12630 as the taking of private major Federal action significantly and freedom of choice for the public property is not a subject covered or even affecting the quality of the human where these approaches are relevant, contemplated under this rule. A takings environment. A detailed statement feasible, and consistent with regulatory implication assessment is not required. under the National Environmental objectives. E.O. 13563 emphasizes 6. Federalism (E.O. 13132) Policy Act, 1969 (NEPA) is not required. further that rules must be based on the Under Departmental Manual 516 DM best available science and that the In accordance with Executive Order 2.3A(2), Section 1.10 of 516 DM 2, rulemaking process must allow for 13132, the final rule does not have Appendix 1 excludes from public participation and an open sufficient federalism implications to documentation in an environmental exchange of ideas. This final rule is warrant the preparation of a federalism assessment or impact statement consistent with these requirements. summary impact statement. Based on ‘‘policies, directives, regulations and research and the deliberations outlined 2. Regulatory Flexibility Act guidelines of an administrative, in the response to questions number 8, financial, legal, technical or procedural The Department of the Interior the final rule does not substantially and nature; or the environmental effects of certifies that this final rule will not have directly affect the relationship between which are too broad, speculative or a significant economic effect on a the Federal and state governments. The conjectural to lend themselves to substantial number of small entities Secretary of the Department of the meaningful analysis and will be subject under the Regulatory Flexibility Act (5 Interior has oversight to ensure that land later to the NEPA process, either U.S.C. 601 et seq.) as the final rule under the HHCA is administered in a collectively or case-by-case.’’ We have merely describes agency procedures and manner that advances the interests of also determined that the rule does not practices when reviewing HHC the beneficiaries. A federalism involve any of the extraordinary Chairman-proposed land exchanges assessment is not required. circumstances listed in 43 CFR 46.215 involving Hawaiian home lands and 7. Civil Justice Reform (E.O. 12988) that would require further analysis State-proposed amendments to the under NEPA. HHCA. These procedures and practices This rule complies with the are not agency activities that will have requirements of Executive Order 12988. 11. Effects on the Energy Supply (E.O. a significant economic effect on a Specifically, this rule: 13211) substantial number of small entities. (a) Meets the criteria of section 3(a) requiring that all rules be reviewed to This final rule is not a significant This rule neither imposes burdens on energy action under the definition in small entities nor requires actions by eliminate errors and ambiguity and be written to minimize litigation; and Executive Order 13211. A Statement of them. As such, the Regulatory Energy Effects is not required. Flexibility Act does not apply. (b) Meets the criteria of section 3(b)(2) requiring that all rules be written in 12. Clarity of This Regulation 3. Small Business Regulatory clear language and contain clear legal Enforcement Fairness Act (SBREFA) standards. The Secretary is required by This is not a major rule under 5 U.S.C. Executive Orders 12866 (section 8. Consultation With Indian Tribes (E.O. 804(2), the Small Business Regulatory 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13175) Enforcement Fairness Act. This final 13563 (section 1(a)), and by the rule: The Department of the Interior strives Presidential Memorandum of June 1, (a) Does not have an annual effect on to strengthen its government-to- 1998, to write all rules in plain the economy of $100 million or more. government relationship with Indian language. This rule meets the (b) Will not cause a major increase in tribes through a commitment to requirements that each rule the costs or prices for consumers, consultation with Indian tribes and Secretary publishes must: individual industries, Federal, State, or recognition of their right to self- (a) Be logically organized; local government agencies, or governance and tribal sovereignty. We (b) Use the active voice to address geographic regions. evaluated this rule under the Secretary’s readers directly;

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(c) Use clear language rather than § 47.10 What definitions apply to terms HHCA or Hawaiian Homes jargon; used in this part? Commission Act means the Hawaiian (d) Be divided into short sections and As used in this part, the following Homes Commission Act, 1920, 42 Stat. sentences; and terms have the meanings given in this 108, as amended. section. HHCA Beneficiary Association means (e) Use lists and tables wherever Appraisal or Appraisal report means an organization controlled by possible. a written statement independently and beneficiaries who submitted List of Subjects in 43 CFR Parts 47 and impartially prepared by a qualified applications to the DHHL for 48 appraiser setting forth an opinion as to homesteads and are awaiting the the market value of the lands or assignment of a homestead; represents Hawaii, Intergovernmental Programs, interests in lands to be exchanged as of and serves the interests of those Land, State-Federal Relations. a specific date(s), supported by the beneficiaries; has as a stated primary presentation and analysis of relevant purpose the representation of, and Kristen J. Sarri, market information. provision of services to, those Principal Deputy Assistant Secretary for Beneficiary or beneficiaries means beneficiaries; and filed with the Policy, Management and Budget. ‘‘native Hawaiian(s)’’ as that term is Secretary a statement, signed by the For the reasons stated in the defined under section 201(a) of the governing body, of governing preamble, the Department of the Interior Hawaiian Homes Commission Act. procedures and a description of the Chairman means the Chairman of the amends title 43 of the Code of Federal beneficiaries it represents. Hawaiian Homes Commission HHLRA or Hawaiian Home Lands Regulations by adding new parts 47 and designated under section 202 of the Recovery Act means the Hawaiian Home 48 as set forth below: Hawaiian Homes Commission Act. Lands Recovery Act, 1995, 109 Stat. PART 47—LAND EXCHANGE Commission means the Hawaiian 357. PROCEDURES Homes Commission established by Homestead Association means a section 202 of the Hawaiian Homes beneficiary controlled organization that Sec. Commission Act, which serves as the represents and serves the interests of its 47.5 What is the purpose of this part? executive board of the Department of homestead community; has as a stated 47.10 What definitions apply to terms used Hawaiian Home Lands. primary purpose the representation of, in this part? Consultation or consult means and provision of services to, its 47.15 What laws apply to exchanges made representatives of the government homestead community; and filed with under this part? engaging in an open discussion process the Secretary a statement, signed by the Subpart A—The Exchange Process that allows interested parties to address governing body, of governing potential issues, changes, or actions. procedures and a description of the 47.20 What factors will the Secretary Consultation does not necessarily territory it represents. consider in analyzing a land exchange? require formal face-to-face meetings. Land exchange is any transaction, 47.30 When does a land exchange advance The complexity of the matter along with other than a sale, that transfers the interests of the beneficiaries? the potential effects that the matter may Hawaiian home lands from the 47.35 Must lands exchanged be of equal have on the Trust or beneficiaries will Hawaiian Home Lands Trust to another value? dictate the appropriate process for entity and in which the Hawaiian Home 47.40 How must properties be described? 47.45 How does the exchange process consultation. Consultation requires Lands Trust receives the entity’s land as work? dialogue (oral, electronic, or printed) or Hawaiian home lands. A land exchange 47.50 What should the Chairman include in a good faith, dialogue or documented can involve trading Hawaiian home a land exchange proposal for the effort to engage with the beneficiaries, lands for private land, but it can also Secretary? consideration of their views, and, where involve trading land between the 47.55 What are the minimum requirements feasible, seek agreement with the Hawaiian Home Lands Trust and State for appraisals used in a land exchange? beneficiaries when engaged in the land or Federal agencies. 47.60 What documentation must the exchange process. Market value means the most Chairman submit to the Secretary in the DHHL or Department of Hawaiian probable price in cash, or terms land exchange packet? Home Lands means the department equivalent to cash, that lands or established by the State of Hawai1i interests in lands should bring in a Subpart B—Approval and Finalization under sections 26–4 and 26–17 of the competitive and open market under all 47.65 When will the Secretary approve or Hawai1i Revised Statutes to exercise the conditions requisite to a fair sale, where disapprove the land exchange? authorities and responsibilities of the the buyer and seller each acts prudently 47.70 How does the Chairman complete the Hawaiian Homes Commission under the and knowledgeably, and the price is not exchange? Hawaiian Homes Commission Act. affected by undue influence. Authority: State of Hawai1i Admission Hawaiian Home Lands Trust means Native Hawaiian or native Hawaiian Act, 73 Stat. 4, approved March 18, 1959; all trust lands given the status of has the same meaning as that term Hawaiian Homes Commission Act, 1920, as Hawaiian home lands under section 204 defined under section 201(a) of the amended, Act of July 9, 1921, 42 Stat. 108; of the Hawaiian Homes Commission Hawaiian Homes Commission Act. Hawaiian Home Lands Recovery Act, 1995, Act, and those lands obtained through Office of Valuation Services (OVS) 109 Stat. 537, 5 U.S.C. 301; 25 U.S.C. 2 and approval under this part, and as means the Office with real estate 9; 43 U.S.C. 1457; 112 Departmental Manual directed by Congress. appraisal functions within the Office of 28. Hawaiian Home Lands Trust Funds the Assistant Secretary—Policy, § 47.5 What is the purpose of this part? means the funds established in the Management, and Budget of the HHCA section 213. Department of the Interior. This part sets forth the procedures for Hazardous substances means those Outstanding interests means rights or conducting land exchanges of Hawaiian substances designated under interests in property involved in a land home lands authorized by the Hawaiian Environmental Protection Agency exchange held by an entity other than a Homes Commission Act, 1920 (HHCA). regulations at 40 CFR part 302. party to the exchange.

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Secretary means the Secretary of the § 47.15 What laws apply to exchanges regulations constitute a partial list of Interior or the individual to whom the made under this part? applicable laws and regulations: authority and responsibilities of the (a) The Chairman may only exchange Secretary have been delegated. land under the authority of the HHCA Trust means the Hawaiian Home in conformity with the HHLRA. Lands Trust and the Hawaiian Home (b) When the Chairman makes any Lands Trust Funds. land exchange, the following laws and

Legislation or regulation Citation

(1) The National Historic Preservation Act, 1966 ...... 16 U.S.C. 470 et seq. (2) Implementing regulations for the National Historic Preservation Act ...... 36 CFR part 800. (3) Section 3 of the Native American Graves Protection and Repatriation Act (NAGPRA) ...... 25 U.S.C. 3002. (4) Implementing regulations for the Native American Graves Protection and Repatriation Act ...... 43 CFR part 10. (5) The National Environmental Policy Act, 1969 (NEPA) ...... 42 U.S.C. 4371 et seq. (6) Implementing regulations for NEPA ...... 40 CFR parts 1500–1508; 43 CFR part 46. (7) The State of Hawai1i Admission Act ...... 73 Stat. 4. (8) Hawaiian Homes Commission Act, 1920, as amended ...... 42 Stat. 108. (9) Hawaiian Home Lands Recovery Act, 1995 ...... 109 Stat. 537. (10) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) ...... 42 U.S.C. 9601 et seq. (11) Implementing regulations for CERCLA ...... 40 CFR part 312.

No new legal rights or obligations are § 47.30 When does a land exchange (1) Uses other means prescribed or created through listing applicable laws advance the interests of the beneficiaries? allowed by applicable law; and and regulatory provisions in this A determination that an exchange (2) Clearly describes the property and section. advances the interests of the allows it to be easily located. beneficiaries must find that: Subpart A—The Exchange Process (a) The exchange supports § 47.45 How does the exchange process work? perpetuation of the Hawaiian Home § 47.20 What factors will the Secretary (a) The Secretary recommends the consider in analyzing a land exchange? Lands Trust; (b) The interests of the beneficiaries in parties prepare a land exchange The Secretary may approve an obtaining non-Hawaiian home lands proposal in accordance with § 47.50. exchange only after making a exceeds the interests of the beneficiaries The Secretary also recommends the determination that the exchange will in retaining the Hawaiian home lands Chairman and the non-Chairman party advance the interests of the proposed for the exchange, based on an in the exchange meet with the Secretary beneficiaries. In considering whether a evaluation of the factors in § 47.20; and before finalizing a land exchange land exchange will advance the interests (c) The intended use of the conveyed proposal and signing an agreement to of the beneficiaries, the Secretary will Hawaiian home lands will not initiate the land exchange to informally evaluate the extent to which it will: significantly conflict with the discuss: (a) Achieve better management of beneficiaries’ interests in adjacent (1) The review and processing Hawaiian home lands; Hawaiian home lands. procedures for Hawaiian home lands exchanges; (b) Meet the needs of HHCA § 47.35 Must lands exchanged be of equal (2) Potential issues involved that may beneficiaries and their economic value? circumstances by promoting: require more consideration; or Hawaiian home lands to be exchanged (3) Any other matter that may make (1) Homesteading opportunities, must be of equal or lesser value than the the proposal more complete before (2) economic self-sufficiency, and, lands to be received in the exchange, as submission. (3) social well-being; determined by the appraisal. Once the (b) Whether or not a land exchange (c) Promote development of Hawaiian market value is established by an proposal is completed, the Chairman home lands for residential, agricultural, approved appraisal, an administrative initiates the exchange by preparing the and pastoral use; determination as to the equity of the documentation, conducting appropriate exchange can be made based on the studies, and submitting them to the (d) Protect cultural resources and market value reflected in the approved Secretary in accordance with § 47.60. watersheds; appraisal. (c) Upon completing the review of the (e) Consolidate lands or interests in final land exchange packet under lands, such as agricultural and timber § 47.40 How must properties be described? § 47.60, the Secretary will issue a Notice interests, for more logical and efficient of Decision announcing the approval or management and development; The description of properties disapproval of the exchange. (f) Expand homestead communities; involved in a land exchange must be (d) If the Secretary approves an either: (g) Accommodate land use exchange, title will transfer in (a) Based upon a survey completed in accordance with State law. authorizations; accordance with the Public Land Survey (h) Address HHCA beneficiary needs; System laws and standards of the § 47.50 What should the Chairman include and United States; or in a land exchange proposal for the (i) Advance other identifiable (b) If Public Land Survey System laws Secretary? interests of the beneficiaries consistent and standards cannot be applied, based (a) A land exchange proposal should with the HHCA. upon a survey that both: include the following documentation:

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The proposal should in- clude... 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 prop- erties. (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 com- Expected dates of significant transactions or milestones. pleting the exchange. (5) Assignment of responsibilities Responsibilities for: (i) Performance of required actions; and (ii) Costs associated with the proposed exchange. (6) Hazardous substance infor- Notice of: mation. (i) Any known release, storage, or disposal of hazardous substances on non-Hawaiian Home Land Trust properties in the exchange; (ii) Any commitments regarding responsibility for removal or remedial actions concerning hazardous sub- stances on non-Hawaiian Home Land Trust properties; and (iii) All terms and conditions regarding hazardous substances on non-Hawaiian Home Land Trust prop- erties. (7) Grants of permission by each Permission to enter the properties for the purpose of conducting physical examination and studies in prepa- party to the other. ration for the exchange. Written permission to appraise the properties should also be included. (8) Three statements ...... Details of: (i) Arrangements for relocating tenants, if there are tenants, occupying the Hawaiian Home Land Trust and non-Hawaiian Home Land Trust 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 ex- change.

(b) When the parties to the exchange § 47.55 What are the minimum agree to proceed with the land exchange requirements for appraisals used in a land proposal, they may sign an agreement exchange? that the Chairman will initiate the (a) The following table shows the exchange. steps in the appraisal process.

Appraisal process step Requirements

(1) The parties to the exchange (i) The parties must arrange for appraisals within 90 days after executing the agreement to initiate the land must arrange for appraisals. 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 Chairman may request assistance from the Office of Valuation Services (OVS). OVS can provide valuation services to the Chairman, including appraisal, appraisal review, and appraisal advice on a reim- bursable 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 Uni- form 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 ap- The Secretary will evaluate the reports using: praisal reports. (i) The Uniform Standards of Professional Appraisal Practice; and (ii) The Uniform Appraisal Standards for Federal Land Acquisitions.

(b) To be qualified to appraise land for (3) Be licensed to perform appraisals Standards of Professional Appraisal exchange under paragraph (a)(2) of this in the State of Hawai1i unless a Federal Practice (USPAP) and the Uniform section, an appraiser must: employee whose position requires the Appraisal Standards for Federal Land (1) Be competent, reputable, performance of appraisal duties. Federal Acquisition (UASFLA); and impartial, and experienced in employees only need to be licensed in (2) Include the estimated market value one State or territory to perform real appraising property similar to the of Hawaiian home lands and non- estate appraisal duties as Federal properties involved in the appraisal Hawaiian home lands properties employees in all States and territories. assignment; and involved in the exchange. (2) Be approved by the OVS, if (c) Appraisal reports for the exchange required by the Department of the must: Interior’s Office of Native Hawaiian (1) Be completed in accordance with Relations. the current edition of the Uniform

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§ 47.60 What documentation must the Chairman 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 that includes the recorded vote of 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 all consultations with beneficiaries, HHCA homestead associations, or HHCA beneficiary associations; and (5) A statement of compliance with the Native American Graves Protection and Repatriation Act. (b) Required analyses and re- (1) Environmental analyses and records sufficient to meet CERCLA, NEPA, and all other pertinent Federal ports. environmental requirements; (2) Land appraisal reports and statements of qualification of the appraisers in accordance with § 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 Chairman and the non-Chairman 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 rep- resentative to approve the transaction.

§ 47.65 When will the Secretary approve or (b) The Chairman shall provide a title 301; 25 U.S.C. 2 and 9; 43 U.S.C. 1457; 112 disapprove the land exchange? report to the Secretary as evidence of Departmental Manual 28. On receipt of the complete land the completed exchange. § 48.5 What is the purpose of this part? exchange packet from the Commission, PART 48—AMENDMENTS TO THE (a) This part sets forth the policies the Secretary will approve or HAWAIIAN HOMES COMMISSION ACT and procedures for: disapprove the exchange within 120 (1) Review by the Secretary of calendar days. Sec. amendments to the Hawaiian Homes (a) Before approving or disapproving 48.5 What is the purpose of this part? Commission Act proposed by the State the exchange, the Secretary will review 48.6 What definitions apply to terms used of Hawai1i; and all environmental analyses, appraisals, in this part? (2) Determination by the Secretary and all other supporting studies and 48.10 What is the Secretary’s role in whether the proposed amendment reviewing proposed amendments to the requirements to determine whether the requires congressional approval. HHCA? (b) This part implements proposed exchange complies with 48.15 What are the Chairman’s requirements of the Hawaiian Homes applicable law and advances the responsibilities in submitting proposed Commission Act, the State of Hawai1i interests of the beneficiaries. amendments to the Secretary? Admission Act, 1959, and the Hawaiian (b) The Secretary may consult with 48.20 How does the Secretary determine if Home Lands Recovery Act, 1995. the beneficiaries when making a the State is seeking to amend Federal determination if a land exchange law? § 48.6 What definitions apply to terms advances the interests of the 48.25 How does the Secretary determine if used in this part? beneficiaries. the proposed amendment decreases the As used in this part, the following benefits to beneficiaries of Hawaiian terms have the meanings given in this (c) After approving or disapproving an home lands? section. exchange, the Secretary will notify 48.30 How does the Secretary determine if Beneficiary or beneficiaries means DHHL, the Commission, and other Congressional approval is unnecessary? ‘‘native Hawaiian(s)’’ as that term is 48.35 When must the Secretary determine if officials as required by section 205(b)(2) defined under section 201(a) of the of the HHLRA. The Secretary will post the proposed amendment requires Congressional approval? Hawaiian Homes Commission Act. notice of the determination on the DOI Chairman means the Chairman of the Web site and give email notice of the 48.40 What notification will the Secretary provide? Hawaiian Homes Commission posting to all those on the notification 48.45 When is a proposed amendment designated under section 202 of the list maintained by the Office of Native deemed effective? Hawaiian Homes Commission Act. Hawaiian Relations requesting notice of 48.50 Can the State of Hawai1i amend the Commission means the Hawaiian actions by the Secretary. Hawaiian Homes Commission Act Homes Commission, established by without Secretarial review? section 202 of the Hawaiian Homes § 47.70 How does the Chairman complete the exchange once approved? Authority: State of Hawai1i Admission Act, Commission Act, which serves as the 73 Stat. 4, approved March 18, 1959; executive board of the Department of (a) The Chairman completes the Hawaiian Homes Commission Act, 1920, 42 Hawaiian Home Lands. exchange in accordance with the Stat. 108 et seq., Hawaiian Home Lands Consultation or consult means requirements of State law. Recovery Act, 1995, 109 Stat. 537; 5 U.S.C. representatives of the government

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engaging in an open discussion process Homestead Association means a (5) Copies of all committee reports that allows interested parties to address beneficiary controlled organization that and other legislative history, including potential issues, changes, or actions. represents and serves the interests of its prior versions of the proposed Consultation does not necessarily homestead community; has as a stated amendment; require formal face-to-face meetings. primary purpose the representation of, (6) Final vote totals by the The complexity of the matter along with and provision of services to, its Commission and the legislature on the the potential effects that the matter may homestead community; and filed with proposed amendment; have on the Trust or beneficiaries will the Secretary a statement, signed by the (7) Summaries of all consultations dictate the appropriate process for governing body, of governing conducted with the beneficiaries consultation. Consultation requires procedures and a description of the regarding the proposed amendment; and dialogue (oral, electronic, or printed) or territory it represents. (8) Other additional information that a good faith, dialogue or documented Secretary means the Secretary of the the State believes may assist in the effort to engage with the beneficiaries, Interior or the individual to whom the review of the proposed amendment. consideration of their views, and, where authority and responsibilities of the feasible, seek agreement with the Secretary have been delegated. § 48.20 How does the Secretary determine Trust means the Hawaiian Home if the State is seeking to amend Federal beneficiaries when engaged in the land law? exchange process. Lands Trust and the Hawaiian Home DHHL or Department of Hawaiian Lands Trust Funds. (a) The Secretary will determine that Home Lands means the department Congressional approval is required if the § 48.10 What is the Secretary’s role in proposed amendment, or any other established by the State of Hawai1i reviewing proposed amendments to the under sections 26–4 and 26–17 of the legislative action that directly or HHCA? indirectly has the effect of: Hawai1i Revised Statutes to exercise the (a) The Secretary must review authorities and responsibilities of the (1) Decreasing the benefits to the proposed amendments to the Hawaiian beneficiaries of the Trust; Hawaiian Homes Commission under the Homes Commission Act (HHCA) by the Hawaiian Homes Commission Act. (2) Reducing or impairing the State of Hawai1i to determine whether Hawaiian Home Land Trust Funds; Hawaiian Home Lands Trust means the proposed amendment requires all trust lands given the status of (3) Allowing for additional approval of Congress. encumbrances to be placed on Hawaiian Hawaiian home lands under section 204 (b) The Secretary will notify the of the Hawaiian Homes Commission home lands by officers other than those Chairman and Congress of this charged with the administration of the Act, and those lands obtained through determination, and if approval is approval under part 47, and as directed HHCA; required, submit to Congress the (4) Changing the qualifications of who by Congress. documents required by § 48.35(b). Hawaiian Home Lands Trust Funds may be a lessee; means the funds established in the § 48.15 What are the Chairman’s (5) Allowing the use of proceeds and HHCA section 213. responsibilities in submitting proposed income from the Hawaiian home lands HHCA or Hawaiian Homes amendments to the Secretary? for purposes other than carrying out the Commission Act means the Hawaiian (a) Not later than 120 days after the provisions of the HHCA; or Homes Commission Act, 1920, 42 Stat. State approves a proposed amendment (6) Amending a section other than 108 et seq., as amended. to the HHCA, the Chairman must submit sections 202, 213, 219, 220, 222, 224, or HHCA Beneficiary Association means to the Secretary a clear and complete: 225, or other provisions relating to an organization controlled by (1) Copy of the proposed amendment; administration, or paragraph (2) of (2) Description of the nature of the beneficiaries who submitted section 204, section 206, or 212 or other change proposed by the proposed applications to the DHHL for provisions relating to the powers and amendment; and, homesteads and are awaiting the duties of officers other than those (3) Opinion explaining whether the assignment of a homestead; represents charged with the administration of the proposed amendment requires the and serves the interests of those HHCA. approval of Congress. (b) The Secretary may consult with beneficiaries; has as a stated primary (b) The following information must purpose the representation of, and the beneficiaries when making a also be submitted: determination. provision of services to, those (1) A description of the proposed beneficiaries; and filed with the amendment, including how the § 48.25 How does the Secretary determine Secretary a statement, signed by the proposed amendment advances the if the proposed amendment decreases the governing body, of governing interests of the beneficiaries; benefits to beneficiaries of Hawaiian home procedures and a description of the (2) All testimony and correspondence lands? beneficiaries it represents. from the Director of the Department of (a) In determining benefits to the HHLRA or Hawaiian Home Lands Hawaiian Home Lands, Hawaiian beneficiaries, the Secretary will Recovery Act means the Hawaiian Home Homes Commissioners, Homestead consider the goals and purposes of the Lands Recovery Act, 1995, 109 Stat. Associations, HHCA Beneficiary Trust, including, but not limited to, the 537. Associations, and beneficiaries following: Lessee means either a: providing views on the proposed (1) The provision of homesteads to (1) Beneficiary who has been awarded amendment; beneficiaries; a lease under section 207(a) of the (3) An analysis of the law and policy (2) The rehabilitation of beneficiaries Hawaiian Homes Commission Act; of the proposed amendment by the and their families and Hawaiian (2) Person to whom land has been Department of Hawaiian Home Lands homestead communities; transferred under section 208(5) of the and the Hawaiian Homes Commission; (3) The educational, economic, Hawaiian Homes Commission Act; or (4) Documentation of the dates and political, social, and cultural processes (3) Successor lessee under section 209 number of hearings held on the by which the general welfare and of the Hawaiian Homes Commission measure, and a copy of all testimony conditions of beneficiaries are improved Act. provided or submitted at each hearing; and perpetuated;

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(4) The construction of replacement § 48.35 When must the Secretary the proposed amendment is the date of homes, repairs or additions; determine if the proposed amendment the notification letter to the requires Congressional approval? (5) The development of farm, ranch or Congressional Committee Chairmen. aquaculture, including soil and water The Secretary will review the (b) If the Secretary determines that the conservation; documents submitted by the Chairman, proposed amendment requires and if they meet the requirements of (6) The enhanced construction, congressional approval then the § 48.15, the Secretary will determine reconstruction, operation and effective date of the proposed within 60 days after receiving them if maintenance of revenue-producing amendment is the date that Congress’s the proposed amendment requires improvements intended to benefit approval becomes law. Congressional approval. occupants of Hawaiian home lands; § 48.50 Can the State of Hawai1i amend the (7) The making of investments in § 48.40 What notification will the Secretary Hawaiian Homes Commission Act without water and other utilities, supplies, provide? Secretarial review? equipment, and goods, as well as (a) If the Secretary determines that The Secretary must review all professional services needed to plan, Congressional approval of the proposed proposed amendments to the Hawaiian implement, develop or operate such amendment is unnecessary, the Homes Commission Act. Any proposed projects that will improve the value of Secretary will: amendments to any terms or provisions Hawaiian home lands for their current (1) Notify the Chairmen of the Senate of the Hawaiian Homes Commission Act and future occupants; and, Committee on Energy and Natural by the State must also specifically state (8) The establishment and Resources and of the House Committee that the proposed amendment proposes maintenance of an account to serve as on Natural Resources, the Governor, to amend the Hawaiian Homes a reserve for loans issued or backed by Speaker of the House of Representatives Commission Act. Any state enactment the Federal Government. and President of the Senate of the State that impacts any of the criteria in of Hawai1i, and the Chairman of the (b) The Secretary will determine if the § 48.20 shall have no effect on the Hawaiian Homes Commission; and proposed amendment or any other provisions of the HHCA or (2) Include, if appropriate, an opinion legislative action decreases the above- administration of the Trust, except on whether the proposed amendment described or similar benefits to the pursuant to this part. advances the interests of the beneficiaries, now or in the future, by [FR Doc. 2016–11146 Filed 5–11–16; 12:00 pm] beneficiaries. weighing the answers to the following BILLING CODE 4334–63–P (b) If the Secretary determines that questions: Congressional approval of the proposed (1) How would the proposed amendment is required, the Secretary ENVIRONMENTAL PROTECTION amendment impact the benefits to will notify the Chairmen of the Senate AGENCY current lessees of Hawaiian home lands? Committee on Energy and Natural (2) How would the proposed Resources and of the House Committee 48 CFR Parts 1519 and 1552 amendment impact the benefits to on Natural Resources, the Governor, beneficiaries currently on a waiting list Speaker of the House of Representatives [EPA–HQ–OARM–2015–0550; FRL 9945–69– for a Hawaiian home lands lease? and President of the Senate of the State OARM] of Hawai1i, and the Chairman of the (3) How would the proposed Environmental Protection Agency Hawaiian Homes Commission. The amendment impact the benefits to Acquisition Regulation; Small Secretary will also submit to the beneficiaries who have not yet applied Business Programs, Solicitation Committees the following: for a Hawaiian home lands lease? Provisions and Contract Clauses (4) If the interests of the beneficiaries (1) A draft joint resolution approving who have not been awarded a Hawaiian the proposed amendment; AGENCY: Environmental Protection home lands lease and the lessees differ, (2) A description of the change made Agency (EPA). how does the proposed amendment by the proposed amendment and an ACTION: Direct final rule. weigh the interests of beneficiaries who explanation of how the proposed have not been awarded a Hawaiian amendment advances the interests of SUMMARY: The Environmental Protection home lands lease with the interests of the beneficiaries; Agency (EPA) is issuing a final rule to Hawaiian home lands lessees? (3) A comparison of the existing law remove outdated information and make with the proposed amendment; administrative changes to the (5) If the interests of the beneficiaries (4) A recommendation on the Environmental Protection Agency who have not been awarded a Hawaiian advisability of approving the proposed Acquisition Regulation (EPAAR). EPA home lands lease and the lessees differ, amendment; does not anticipate any adverse do the benefits to the lessees outweigh (5) All documentation concerning the comments. any detriment to the beneficiaries who proposed amendment received from the DATES: This rule is effective on July 12, have not been awarded a Hawaiian Chairman; and 2016 without further action, unless EPA home lands lease? (6) All documentation concerning the receives adverse comment by June 13, (6) If the interests of the beneficiaries proposed amendment received from the 2016. If EPA receives adverse comment, differ from the interests of the lessees, beneficiaries. a timely withdrawal will be published do the benefits to the beneficiaries (c) The Secretary will post notice of in the Federal Register informing the outweigh any detriment to the lessees? the determination on the Department of public that the rule will not take effect. the Interior’s Web site. § 48.30 How does the Secretary determine ADDRESSES: Submit your comments, if Congressional approval is unnecessary? § 48.45 When is a proposed amendment identified by Docket ID No. EPA–HQ– The Secretary will determine that deemed effective? OARM–2015–0550, at http:// Congressional approval is unnecessary (a) If the Secretary determines that a www.regulations.gov. Follow the online if the proposed amendment meets none proposed amendment meets none of the instructions for submitting comments. of the criteria in § 48.20. criteria in § 48.20, the effective date of Once submitted, comments cannot be

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