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§10-1-1

HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 1

GENERAL PROVISIONS

§10-1-1 Purpose§10-1-2 Information§10-1-3 Government records§10-1-4 Terms§10-1-5 Definitions§10-1-6 Numbering§10-1-7 Severability

Historical Note: Chapter 1 of Title 10, HawaiiAdministrative Rules, is based substantially upon PartsI and XIII, Rules and Regulations, Department ofHawaiian Home Lands. [Eff 8/18/72; am 11/14/77; R7/30/81]

§10-1-1 Purpose. These rules are adopted underChapter 91, HRS, and implement the Hawaiian HomesCommission Act of 1920, as amended. They are adoptedin accordance with section 222 of the Hawaiian HomesCommission Act of 1920, as amended, for:

(1) Effective execution of functions vested inthe department by the act;

(2) To provide for management of lands and fundsentrusted to the department; and

(3) To further rehabilitation of the Hawaiianrace as stated in article XII, section 2 ofthe constitution of the State of Hawaii.[Eff 7/30/81; am and comp 10/26/98] (Auth:HHC Act §222) (Imp: HHC Act)

§10-1-2

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§10-1-2 Information. (a) Information about thedepartment, submittals, or requests may be obtainedfrom:

(1) The main office, P.O. Box 1879, Honolulu,Hawaii 96805, twelfth and twentieth floors,1099 Alakea Street Honolulu, Hawaii; or

(2) Neighbor island district offices as follows:(A) West Hawaii: P.O. Box 125, Kamuela,

Hawaii 96743 MamalahoaHighway, Kamuela, Hawaii96743;

(B) East Hawaii: 160 Baker Avenue, Hilo,Hawaii 96720;

(C) Kauai: 3060 Eiwa Street, Room203, Lihue, Kauai 96766;

(D) Maui: Puuone Plaza, Room C-206,1063 East Main Street,Wailuku, Maui 96793; or

(E) Molokai: P.O. Box 198, Hoolehua,Hawaii 96729 PuukapeleStreet, Hoolehua, Molokai96729.

(b) The department shall disseminate informationto the public through available news media in orderthat provisions of the act may be understood.

(c) Unless otherwise provided by law, allinformation contained in any document or other papersfiled with the commission pursuant to the requirementsof law, rule or order of the commission shall beavailable for inspection; provided that no writtencomplaint or charges filed against an applicant or theholder of a lease or license shall be open toinspection unless and until the commission has orderedthat the matter be set for hearing and a notice ofhearing has been issued to the person against whom acomplaint or charge has been filed. [Eff 7/30/81 amand comp 10/26/98] (Auth: HHC Act §222) (Imp: HRS§91-2)

§10-1-5

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§10-1-3 Government records. (a) All governmentrecords will be available for inspection during workinghours unless otherwise provided by law.

(b) Copies of government records will be madeavailable to any person requesting same upon payment ofthe fee imposed by law.

(c) Requests for copies of government recordsshall be signed and made on department provided formsunless otherwise provided by law.

(d) Personal data received or recorded by thedepartment shall be held in absolute confidence and norelease of information shall be made without writtenapproval of the individual concerned. [Eff 7/30/81; amand comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS §§91-2, Chapter 92F)

§10-1-4 Terms. Unless otherwise specificallystated, the meaning of terms used in Title 10 shallhave the same meaning as provided by law. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act)

§10-1-5 Definitions. As used in this title,unless the context clearly provides otherwise:

“Act” means the Hawaiian Homes Commission Act of1920, as amended;

“Advisory council” means the park advisory councilestablished in section 10-4-34 for the purpose ofadvising the department on rules, practices andactivities on or affecting parks on Hawaiian homelands;

“Agency” means an agency of the federal, state, orcounty government;

“Appraisal” means the process of estimating value;“Authorized representative” means any person

permitted by the commission to act on its behalfincluding the chairman and the chairman’s designee;

§10-1-5

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“Available lands” means public lands designated asavailable lands under section 203 of the act;

“Camper” means any person who remains or intendsto remain at a park on Hawaiian home lands in order touse the park for overnight accommodations;

“Camping” means the use and occupation of any parkon Hawaiian home lands on which at least one personremains or intends to remain overnight;

“Chairman” means the chairman of the commission;“Commission” means the Hawaiian homes commission;“Complainant” means the person or agency upon

whose complaint a proceeding is instituted;“Contested case” means a proceeding in which the

legal rights, duties, or privileges of specific partiesare required by law to be determined after anopportunity for hearing before the commission, andshall include but not be limited to proceedingsinvolving the denial or cancellation ofhomestead leases issued by the department, and loan ortax delinquencies;

“Deferred status” means the status of an applicantin which the applicant will not be considered for anaward, but will retain one's position on the waitinglist;

“Department” means the department of Hawaiian homelands;

“Government records” has the same meaning asdefined in chapter 92F, HRS;

“Hawaiian home lands” means all lands given thestatus of Hawaiian home lands under section 204 of theact;

“Hearing officer” means a person appointed by thecommission or chairman at the request of thecommission, authorized and qualified to hold a hearingfor the purpose of taking evidence and makingrecommended decisions in any contested case;

“Homesteader” means the holder or successorthereto of a lease which may be of the followingclasses issued under section 207 of the act:

(1) Residential or residence lot lease;(2) Pastoral or pastoral lot lease; and(3) Agricultural or agricultural lot lease;

§10-1-5

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“HRS” means the Hawaii revised statutes, asamended;

“Lessee” has the same meaning as homesteader;“Native Hawaiian” means any descendant of not less

than one-half part of the blood of the races inhabitingthe Hawaiian islands previous to 1778;

“Party” means each person or agency named oradmitted as such, or properly seeking and entitled as amatter of right to be admitted as such in a proceeding.

“Person” includes any individual, partnership,corporation, association, or public or privateorganization of any character other than an agency;

“Petitioner” means any interested person who in anindividual or representative capacity requests:

(1) A hearing as authorized by statute, law, orthese rules;

(2) A declaratory ruling;(3) Applicability of a departmental rule or

order; or(4) Adoption, amendment, or repeal of any

departmental rule;“Picnic” means use of a park on Hawaiian home

lands that does not include overnight accommodation;“Presiding officer” means the person conducting a

hearing and may be the chairman or a duly appointedrepresentative;

“Public lands” has the same meaning as defined inchapter 171, HRS;

“Respondent” means the party in a contested caseagainst whom an order to show cause has been issued bythe commission on its own initiative or a notice ofhearing has been issued on the basis of a complaintfiled with the commission;

“Rule” means a statement of general or particularapplicability and future effect that implements,interprets, or prescribes law or policy, or describesthe organization, procedure or practice requirements ofthe department;

“Rulemaking procedure” means any formal action toadopt, amend, or repeal any rule of the department;

“State” means the State of Hawaii; and

§10-1-5

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“Tract” means any tract of Hawaiian home landsleased, as authorized by section 207 of the act. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act)

§10-1-6 Numbering. Words importing the singularnumber may be applied to several persons or things;words importing the plural may include the singular.[Eff 7/30/81 am and comp 10/26/98] (Auth: HHC Act§222) (Imp: HRS §91-2)

§10-1-7 Severability. If any section, sentence,clause, or phrase of Title 10 be for any reason held bya court of competent jurisdiction to be invalid, thedecision shall not affect the validity of the remainingportion of this title. [Eff 7/30/81; am 2/3/83; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HRS §91-2)

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HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 2

ORGANIZATION AND MANAGEMENT

Subchapter 1 The Commission

§10-2-1 Office§10-2-2 Sessions§10-2-3 Commission meetings§10-2-4 Special meetings§10-2-5 Quorum; votes§10-2-6 Schedule of meetings§10-2-7 Agenda§10-2-8 Order of business§10-2-9 Suspension of discussion agenda items§10-2-10 Attendance at meetings§10-2-11 Requests for appearance at commission meeting§10-2-12 Time allowed at commission meetings§10-2-13 Minutes§10-2-14 Confidential information§10-2-15 Absence, disability of chairman§10-2-16 Delegation of duties to chairman§10-2-17 Ratification of chairman’s actions§10-2-18 Responsibility of commissioners§10-2-19 Duties of commissioners as trustees§10-2-20 Appointment of commissioner to committee§10-2-21 Submittals§§10-2-22 to 30 (Reserved)

Subchapter 2 The Department

§10-2-31 Office

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§10-2-1

§10-2-32 Hours§10-2-33 Personnel§10-2-34 Absence, disability of chairman§§10-2-35 to 40 (Reserved)

Subchapter 3 The Management

§10-2-41 Chairman to sign for commission§10-2-42 Chairman to sign for department§10-2-43 Chairman responsible for administration§10-2-44 Administrative manual§10-2-45 Chairman to present annual report§10-2-46 Chairman to develop plans for lands

Historical Note: Chapter 2 of Title 10, HawaiiAdministrative Rules, is based substantially upon PartII, Rules and Regulations, Department of Hawaiian HomeLands. [Eff 8/18/72; am 11/14/77; R 7/30/81]

SUBCHAPTER 1THE COMMISSION

§10-2-1 Office. The office of the commission isat Honolulu, Hawaii. All communications to thecommission shall be addressed to the Hawaiian homescommission, as in section 10-1-2(a)(1). [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §202)

§10-2-2 Sessions. The commission may meet andexercise its powers in any part of the State. Allmeetings of the commission shall be open to the public,except that the commission may meet in executivesession as permitted under chapter 92, HRS, from whichthe public may be excluded by a recorded vote of notless than two-thirds of the total membership of the

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§10-2-5

commission. Unless otherwise permitted under chapter92, HRS, no contract, appointment, or decision shall befinally acted upon at any such executive session. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222;HRS §91-2) (Imp: HHC Act §202; HRS §§ 91-3, 91-4, 91-5)

§10-2-3 Commission meetings. The commissionshall meet at least once a month. The commission shallmeet at least once a year on the islands of Kauai,Hawaii, Molokai, and Maui, and at various homesteadcommunities on each island as practicable. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §202; HRS §92-7)

§10-2-4 Special meetings. Special meetings maybe called by the chairman or at the request of amajority of all members to which the commission isentitled. The chairman shall notify the members of thecommission of the time, place, and purpose of thespecial meeting. Special meetings are not to take theplace of regular commission meetings. [Eff 7/30/81; amand comp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§202; HRS §92-7)

§10-2-5 Quorum; votes. A majority of all themembers to which the commission is entitled shallconstitute a quorum to transact business. Except asotherwise provided by law, the concurrence of amajority of all the members to which the commission isentitled shall be necessary to make any action of thecommission valid. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222; HRS §92-15) (Imp: HHCAct §202; HRS §92-15)

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§10-2-6

§10-2-6 Schedule of meetings. A schedule of themeetings to be held in the coming year will be preparedand submitted to the commission at its regular Decembermeeting. [Eff 7/30/81; comp 10/26/98] (Auth: HHC Act§222; HRS §91-2) (Imp: HHC Act §202; HRS §91-2)

§10-2-7 Agenda. A copy of the regular agenda,less any confidential information concerning applicantsor lessees, shall be posted at every office of thedepartment throughout the State and shall be filed withthe lieutenant governor’s office at least six calendardays before every meeting of the commission. [Eff7/30/81; am 11/17/84; am and comp 10/26/98] (Auth:HHC Act §222) (Imp: HHC Act §202; HRS §92-7)

§10-2-8 Order of business. The agenda shallstate the order of business to be conducted by thecommission at its meeting. Persons wishing items ofbusiness to be placed on the agenda shall contact thechairman not later than two weeks before the scheduledmeeting. [Eff 7/30/81; am and comp 10/26/98] (Auth:HHC Act §222; HRS §91-2) (Imp: HHC Act §202; HRS §92-7)

§10-2-9 Suspension of discussion agenda items.The commission, for good cause by majority vote, maysuspend discussion of any item on the agenda. At itsdiscretion the commission shall continue discussionafter all other agenda items have been completed orshall continue the discussion at no later than the nextregular scheduled meeting. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §202)

§10-2-11

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§10-2-10 Attendance at meetings. Unless excused,meetings shall be attended by all commissioners, by thechairman, and by such members of the staff as areinstructed to attend by the chairman. [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§202)

§10-2-11 Requests for appearance at commissionmeeting. (a) Any person shall be afforded anopportunity to present written or oral testimony to thecommission at its regular monthly meeting.

(b) In order to ensure an orderly and efficientmeeting, any person who wants to appear before thecommission to present testimony is requested to notifythe chairman at least two weeks before the commissionmeeting and, if possible, submit a written copy of thetestimony to the commission secretary before themeeting. The chairman shall reply in writing at leastone week before the meeting.

(c) The chairman shall have the authority tolimit or terminate any testimony which the chairmandetermines to be repetitious or made solely forpurposes of delay. The chairman shall also have theauthority to impose reasonable conditions to ensure anorderly and efficient meeting, which shall include butnot be limited to the removal, from a meeting, of anyperson or persons whom the chairman determines to bedisruptive. This subsection shall not limit theauthority granted in sections 10-2-16 through 10-2-20to the commission or the chairman.

(d) A person may be represented by or withcounsel or other duly qualified representative beforethe commission. The commission may at any time requireany person appearing before the commission in arepresentative capacity to show the person’s authorityand qualification to act in such capacity. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222;HRS §91-2) (Imp: HHC Act §202; HRS §92-3)

§10-2-12

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§10-2-12 Time allowed at commission meetings.Persons who have requested to appear before thecommission at its meeting as provided in section 10-2-11 will have fifteen minutes to present suchinformation, data, material and testimony relevant toand as set forth in the request. The chairman mayprovide additional time if so desired by the requestingperson and if time permits. When time permits, thechairman may allow any other person to speak before thecommission whether or not such person has requested toappear as provided in section 10-2-11. [Eff 7/30/81;am and comp 10/26/98] (Auth: HHC Act §222; HRS §91-2)(Imp: HHC Act §202; HRS §92-3)

§10-2-13 Minutes. A running account of allproceedings of each meeting of the commission shall bekept in as complete detail as is reasonably possible.Minutes comprising a summary account of the proceedingsand containing as much detail as is necessary toindicate the course of the proceedings and the actionstaken by the commission shall be transcribed under thedirection of the chairman. The minutes shall besubmitted by the chairman for approval at the nextregular meeting. Upon approval, the chairman shallsign and enter the date of approval upon the minutes.The chairman shall also note thereon any changesordered before approval and shall communicate them tothe district office managers. All approved minutesshall be available for inspection by any interestedperson. Except as otherwise provided by law, copies ofthe approved minutes shall be kept on file at the mainoffice of the department and also distributed to eachcommissioner and district office. [Eff 7/30/81; am andcomp 10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp:HHC Act §202; HRS §92-9)

§10-2-14 Confidential information. Noinformation of a personal or private nature regarding

§10-2-16

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any individual shall be included in the minutes. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222;HRS §91-2) (Imp: HHC Act §202; HRS Chapter 92F)

§10-2-15 Absence, disability of chairman.Whenever the chairman is absent or disabled fromperforming the duties of the office, the vice-chairmanshall assume the duties of the chairman. [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp:HHC Act §202)

§10-2-16 Delegation of duties to chairman. (a)It is the desire of the commission that functions andduties, administrative in nature, be delegated to thechairman and duties requiring the exercise of judgementor discretion continue to reside with the commission.

(b) The commission shall be deemed to havedelegated to the chairman duties, powers, and authorityas may be lawful or proper for the performance offunctions vested in the commission, including thefollowing:

(1) To appoint special committees and prescribetheir powers and duties;

(2) To preside over all meetings of thecommission;

(3) To approve and sign all vouchers, and toapprove the assignment of funds to bereceived;

(4) To approve leaves of absence;(5) To approve plans for construction of homes

and improvements;(6) To screen matters referred to the chairman by

staff and to select those of sufficientimportance to place on the agenda forconsideration by the commission; and

(7) To sign commission resolutions, licenses,leases, and contracts approved by thecommission.

§10-2-16

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(c) Subject to the provisions of section 10-2-17,the chairman may:

(1) Grant loans from any loan fund;(2) Approve the designation of successors;(3) Accept surrenders of homestead leases; and(4) Approve, in regards to general leases, plans,

assignments, subleases, and mortgages.(d) The chairman or a designee may approve and

sign contracts under $25,000 which are included in thecommission's prior approved budget. [Eff 7/30/81; am11/17/84; am and comp 10/26/98] (Auth: HHC Act §222;HRS §91-2) (Imp: HHC Act §202)

§10-2-17 Ratification of chairman’s actions. Thechairman shall report to the commission forratification of any actions taken as permitted undersection 10-2-16(c). [Eff 7/30/81; am 11/17/84; am andcomp 10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp:HHC Act §202)

§10-2-18 Responsibility of commissioners. (a)It is the responsibility of each commissioner to:

(1) Attend all meetings of the commission unlessexcused;

(2) Undertake all duties assigned by thecommission;

(3) Keep generally informed of all matterspertinent to the determination of policy bythe commission and effectuation thereof;

(4) Be available to lessees in the representativearea at reasonable times;

(5) Be present at hearings affecting the rightsof a lessee from the representative area; and

(6) Have a working knowledge of the act.(b) No commissioner may individually direct

administrative orders. Instructions or complaintsintended for staff members shall be referred to the

§10-2-30

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chairman. [Eff 7/30/81; am and comp 10/26/98] (Auth:HHC Act §222; HRS §91-2) (Imp: HHC Act §202)

§10-2-19 Duties of commissioners as trustees. Astrustees, it shall be the duty of commissioners to:

(1) Act exclusively in the interest ofbeneficiaries under the act;

(2) Hold and protect the trust property forbeneficiaries under the act;

(3) Exercise such care and skill as a person ofordinary prudence would exercise in dealingwith one's own property in the management ofHawaiian home lands; and

(4) Adhere to the terms of the trust as set forthin the act. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222; HRS §91-2)(Imp: HHC Act §202)

§10-2-20 Appointment of commissioner tocommittee. The chairman shall appoint to any committeeformed to decide rights of a lessee, the commissionerfrom the area of the affected lessee. [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp:HHC Act §202)

§10-2-21 Submittals. All applications,certificates, or other papers or documents required tobe filed with the commission shall be filed in theoffice of the commission within such time limits asprescribed by law, rules, or by order of thecommission. [Eff 7/30/81; am and comp 10/26/98](Auth: HHC Act §222; HRS §91-2) (Imp: HHC Act §202)

§§10-2-22 to 10-2-30 (Reserved)

§10-2-31

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SUBCHAPTER 2THE DEPARTMENT

§10-2-31 Office. The main office of thedepartment is at Honolulu, Hawaii. All communicationsto the department shall be addressed as in section 10-1-2(a)(1). [Eff 7/30/81; am and comp 10/26/98] (Auth:HHC Act §222; HRS §91-2) (Imp: HHC Act §202)

§10-2-32 Hours. The office of the departmentshall be open from 7:45 a.m. to 4:30 p.m., Mondaythrough Friday, unless otherwise provided by thestatute or executive order. [Eff 7/30/81; am andcomp 10/26/98] (Auth: HHC Act §222; HRS §§80-1, 91-2)(Imp: HHC Act §202)

§10-2-33 Personnel. All personnel on thedepartment's staff are under the direction of and areresponsible to the chairman. The chairman, subject tolaw and civil service rules, shall select and dischargepersonnel for the department's staff. The commissionshall be informed of all changes in staff personnel.[Eff 7/30/81; comp 10/26/98] (Auth: HHC Act §222; HRS§91-2) (Imp: HRS §26-38)

§10-2-34 Absence, disability of chairman.Whenever the chairman is absent or disabled fromperforming the duties of office, the deputy to thechairman shall assume the duties of the chairman,unless the chairman designates otherwise. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222;HRS §91-2) (Imp: HHC Act §202)

§10-2-44

§§10-2-35 to 10-2-40 (Reserved)

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SUBCHAPTER 3THE MANAGEMENT

§10-2-41 Chairman to sign for commission. Allorders and other actions of the commission shall beauthenticated or signed by the chairman. [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp:HHC Act §202; HRS §21-38)

§10-2-42 Chairman to sign for department. Thechairman shall approve and sign all vouchers andassignment of funds to be received under pineapple orgrazing contracts. After approval of the commission,chairman shall sign all licenses, leases, loancontracts, assignments of pineapple and grazingcontracts, contracts with other governmental agenciesand commission resolutions. [Eff 7/30/81; comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §202)

§10-2-43 Chairman responsible for administration.The chairman shall have full charge of andresponsibility for the administration and execution ofall actions approved by the commission and ineffectuating commission policy. [Eff 7/30/81; comp10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp: HHCAct §202)

§10-2-44 Administrative manual. The chairmanshall prepare and distribute to each commissioner and

§10-2-44

district office an administrative manual describingdepartment operating procedures. The procedures shall

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be open to the public and shall not be in conflict withtitle 10 or the act. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp: HHCAct §202)

§10-2-45 Chairman to present annual report. Thechairman shall present to the commission, beforesubmission to the governor and legislature, the annualreport of the department. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222; HRS §91-2) (Imp: HHCAct §202)

§10-2-46 Chairman to develop plans for lands.The chairman shall develop and present to thecommission plans for lands entrusted to the department.[Eff 7/30/81; am and comp 10/26/98] (Auth: HHC Act§222; HRS §91-2) (Imp: HHC Act §202)

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HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 3

NATIVE HAWAIIAN REHABILITATION PROGRAM

Subchapter 1 Applications for Homestead Leases

§10-3-1 Application forms§10-3-2 Qualifications of applicants§10-3-3 Application processing§10-3-4 Residential lot application§10-3-5 Agricultural or pastoral lot application§10-3-6 Island-wide waiting lists§10-3-7 Priority and preference for award of leases§10-3-8 Transfer of application rights§10-3-9 Posting lease awards§10-3-10 Requirement for current information;

placement on deferred status§§10-3-11 to 20 (Reserved)

Subchapter 2 Leases to Native Hawaiians

§10-3-21 Award of leases§10-3-22 Award of leases with outstanding indebtedness§10-3-23 Awards to previous lessees, when§10-3-24 Agricultural and pastoral leases§10-3-25 Award of additional acreage§10-3-26 Residence permitted on agricultural and

pastoral lot§10-3-27 Livestock and crops§10-3-28 Lease cancellation§10-3-29 Repealed§10-3-30 Kuleana homestead leases

Subchapter 3 Conditions in Leases

§10-3-31 Additional conditions, generally

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§10-3-32 Industrial activities§10-3-33 Commercial activities§10-3-34 Building requirements§10-3-35 Contracts covering lease lands§10-3-36 Transfer of homestead leases§10-3-37 Repealed§10-3-38 Subdivision and transfer of a portion of

residential lot leasehold§10-3-39 Occupancy and other requirements§10-3-40 (Reserved)

Subchapter 4 Loans and Funds

§10-3-41 Funds and accounts§10-3-42 Purposes of loans§10-3-43 Authorized actions§10-3-44 Loan applications§10-3-45 Application processing§10-3-46 Loan standards§10-3-47 Loan conditions§10-3-48 Farm loans§10-3-49 Borrowed funds§10-3-50 Additional funds§10-3-51 Operation of funds§10-3-52 Hawaiian home receipts fund§§10-3-53 to 60 (Reserved)

Subchapter 5 Successors to Lessees

§10-3-61 Designation of successor§10-3-62 Reversion to the department§10-3-63 Notice to successors§10-3-64 Appraisals§10-3-65 Payments§10-3-66 Cancellation and surrender§10-3-67 Cancellation of lease when tract is abandoned§§10-3-68 to 70 (Reserved)

Subchapter 6 Community Pastures, Fees, and Charges

§10-3-71 Location of community pastures§10-3-72 Records

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§10-3-2

§10-3-73 Responsibilities§10-3-74 Liability for loss§10-3-75 Community pasture terms and conditions§10-3-76 Fees and charges

Historical Note: Chapter 3 of Title 10, HawaiiAdministrative Rules, is based substantially upon PartsIV, V, VI, VII, VIII, and XI, Rules and Regulations,Department of Hawaiian Home Lands. [Eff 8/18/72; am10/25/73; am 4/10/76; am 11/14/77; am 11/18/79;4/15/79; R 7/30/81]

SUBCHAPTER 1APPLICATIONS FOR HOMESTEAD LEASES

§10-3-1 Application forms. Applications forresidential, agricultural, or pastoral lot leases shallbe made on forms provided by the department and shallbe made under oath. Deliberate falsification of amaterial fact on an application form shall be groundsfor removal of the applicant's name from the waitinglist, or cancellation of any lease awarded theapplicant, and may subject the applicant to prosecutionfor perjury. [Eff 7/30/81; am and comp 10/26/98](Auth: HHC Act §222; HRS §91-2) (Imp: HHC Act §207)

§10-3-2 Qualifications of applicants. (a)Applicants for residential, agricultural, or pastorallot leases shall provide the department with documentedproof that the applicant is:

(1) At least eighteen years of age; and(2) A native Hawaiian.(b) In addition to the qualifications required in

subsection (a), a person applying for an agriculturalor pastoral lease may be required to comply with

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§10-3-2

section 10-3-24 before a lease award for anagricultural or pastoral lot can be made. [Eff7/30/81; am 1/20/86; comp 10/26/98] (Auth: HHC Act§222; HRS §91-2) (Imp: HHC Act §207)

§10-3-3 Application processing. (a)Applications shall be dated and signed by the applicantand by an authorized department representative. Thedepartment shall acknowledge in writing receipt of allproperly completed applications. An incompleteapplication shall be returned to the applicant withinstructions necessary to complete the applicationproperly. Completed applications shall be timestamped, and if accepted, assigned a numericaldesignation, and filed in the order of receipt.Additions, corrections, or deletions may be made onlywith the approval of the applicant and the chairman orthe chairman's designee. A copy of the applicationshall be given to the applicant. Except as otherwiseprovided in this chapter, a numerical designation shallnot be reassigned to any other person.

(b) Within thirty days after the submission andfiling of the completed application and all such otherdocuments as the department shall require of theapplicants, and any investigation the department shallrequire of the applicants, and any investigation thedepartment may conduct, the chairman or chairman’sdesignee shall make a determination as to whether theapplicant qualifies as an applicant. The determinationshall be based upon the application form, birth,marriage, and death certificates, such other documentsas the department may require the applicant to produce,and any investigation the department may conduct. Anapplicant who disagrees with any action taken by thedepartment shall have thirty days from receipt ofwritten notice of such action within which to petitionthe department for appearance before the next regularmeeting of the commission concerning the action takenon the application. [Eff 7/30/81; am and comp10/26/98]

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§10-3-6

(Auth: HHC Act §222) (Imp: HHC Act §207)

§10-3-4 Residential lot application. (a) Thedepartment shall establish and maintain an island-wideresidential lot waiting list for each of the islands ofHawaii, Kauai, Maui, Molokai, and Oahu.

(b) A person may submit only one application fora residential lot lease.

(c) A person may apply for a residential lotlease and an agricultural or pastoral lot lease, butnot for both agricultural and pastoral lot leases.[Eff 7/30/81; am 1/20/86; comp 10/26/98] (Auth: HHCAct §222; HRS §91-2) (Imp: HHC Act §207)

§10-3-5 Agricultural or pastoral lot application.(a) Applications for an agricultural or pastoral lotlease may be made for any island of the State wherelands are designated for those purposes. Forapplication purposes, the department shall establishand maintain an island-wide agricultural lot waitinglist for each of the islands of Hawaii, Kauai, Maui,Molokai, and Oahu, and an island-wide pastoral lotwaiting list for each of the islands of Hawaii, Kauai,Maui, and Molokai.

(b) A lessee of a residence lot may apply for anagricultural or pastoral lot lease only on the islandon which the lessee resides. [Eff 7/30/81; am 8/1/85;am and comp 10/26/98] (Auth: HHC Act §222; HRS §91-2)(Imp: HHC Act §207)

§10-3-6 Island-wide waiting lists. (a) Thedepartment shall maintain area waiting lists until thelists are exhausted. Applicants on a waiting list forany area will be placed on the respective island-wideresidential lot, agricultural lot, or pastoral lot

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§10-3-6

waiting list according to the date of application.Applicants on a waiting list for an area will beconsidered first for award of any lots in the area.Applicants on the island-wide waiting list shall beconsidered for award according to the date ofapplication.

(b) Applicants wishing to transfer theircompleted application on one island-wide waiting listto another island-wide waiting list may do so. Uponthe completion of the transfer, the transfer date willreplace the original date of application. Noapplications will be accepted for any area waitinglist. [Eff 7/30/81; am and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §207)

§10-3-7 Priority and preference for award ofleases. (a) Applicants shall be considered for awardin the order in which their completed applications werereceived by the department; provided that awards shallfirst be made according to ranking in existing priorityI, II, and III waiting lists in that order until thosewaiting lists are exhausted. Thereafter, awards shallbe based on numerical designation by date of completedapplication on the area waiting list, then on theisland-wide waiting list, except as otherwise providedin this chapter.

(b) In making awards, the department shall givepreference to an applicant who is not a lessee, orwhose spouse is not a lessee.

(c) An applicant who is a lessee, or whose spouseis a lessee, shall be placed on a deferred status untileach applicant given preference as provided bysubsection (b) has been offered a lot; provided that anapplicant who is a lessee, or whose spouse is a lessee,shall not be placed on a deferred status and may beoffered a lot if the applicant or the applicant'sspouse states in writing that the applicant or theapplicant's spouse, as the case may be, will transferan existing lease or surrender an existing lease to the

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§10-3-8

department before, and as a condition for, the award ofa new lease.

(d) An exception to subsection (c) may be made ifthe lessee of a residential lot or the spouse of alessee of a residential lot is awarded a newagricultural or pastoral lot which is unimproved and onwhich a residence cannot be constructed. In this case,the transfer or surrender of the residential lease maybe postponed until such time as the new agricultural orpastoral lot is improved and a residence can beconstructed on the new lot. [Eff 7/30/81; am 1/20/86;am and comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §207)

§10-3-8 Transfer of application rights. (a) Anapplicant may designate an individual relative who isat least eighteen years of age and a native Hawaiianfrom among the following to succeed to the applicant’sapplication rights upon the death of the applicant:

(1) Husband or wife;(2) Child;(3) Grandchild;(4) Father or mother;(5) Widow or widower of a child;(6) Brother or sister;(7) Widow or widower of a brother or a sister; or(8) Niece or nephew.To the extent possible applicants shall designate

a successor at the time that the application is filedat the department; provided that the designation shallbe filed in writing at the department and thedepartment shall acknowledge the designation in orderfor the designation to be deemed filed. An applicantmay change the designation of successor at any time;provided that the applicant shall file the change ofdesignation in writing at the department and thedepartment shall acknowledge the change of designationin order for the change of designation to be deemedfiled. The department shall determine whether adesignated successor is qualified to be an applicant

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§10-3-8

for a Hawaiian home lands lease. A designatedsuccessor shall be required to provide proof to thedepartment that the individual is at least eighteenyears of age, a native Hawaiian, and a relative asidentified in this subsection.

(b) If an applicant dies without designating asuccessor as provided in subsection (a), the

commission may designate a successor applicant fromonly the following relatives of the applicant who areat least eighteen years of age, native Hawaiian, andwho made a request to succeed to the application rightsas provided in subsection (d):

(1) Husband or wife; or(2) If no husband or wife requests, then a

child; or(3) If no husband, wife, or child requests,

then a grandchild; or(4) If no husband, wife, child or grandchild

requests, then from among the followingrelatives of the applicant who arenative Hawaiian and at least eighteenyears of age: father and mother, widowsor widowers of the children, brothersand sisters, widows or widowers ofbrothers and sisters, or nieces andnephews.

Any individual who requests to succeed to thedecedent’s application rights shall provide proof tothe department that the individual is at least eighteenyears of age, a native Hawaiian, and a relative asidentified in this subsection.

(c) Once every calendar year, the departmentshall publish a notice setting forth a list of thenames of all applicants whom the department has reasonto believe have died without designating a successorand whose names do not appear in a list previouslypublished by the department. The noticeshall also state briefly that individuals requesting tosucceed to the application shall submit a requestwithin the deadline established in subsection (d). Thenotice shall be published in a newspaper of general

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§10-3-9

circulation in the State, once in each of twosuccessive weeks.

(d) Requests for succession to application rightsshall be made to the department in writing not laterthan one hundred eighty days after the date of the lastpublication of the applicant’s name; otherwise, theapplication will be canceled and the applicant’s nameshall be removed from the respective waiting list orlists, as the case may be. The commission, for goodcause, may extend the time beyond one hundred eightydays in which requests for succession to an applicationmay be made.

(e) The department shall determine whether anindividual is qualified to succeed to the applicant’sapplication not later than three hundred sixty fivedays following the one hundred eighty days after thedate of the last publication of the applicant’s name.The department shall submit a recommendation to thecommission regarding the designation of a successor. Ifan individual who has requested to succeed to anapplication disagrees with the commission’s designationof a successor, the individual may request a contestedcase hearing as provided in section 10-5-31. Thedepartment, for good cause, may extend the time beyondthree hundred sixty five days in which it is todetermine whether an individual is qualified to succeedto an application. [Eff 7/30/81; am 8/1/85; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §207)

§10-3-9 Posting lease awards. The departmentshall post in district offices in the area where awardsare made, the names and application dates of all whoreceive lease awards within two weeks after awards aremade. The notice shall remain posted for a period oftwo months. [Eff 7/30/81; am and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §207)

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§10-3-10

§10-3-10 Requirement for current information;placement on deferred status. (a) An applicant for ahomestead lease shall notify the department, inwriting, of any change in address within fifteencalendar days of such change. Whenever the departmentinitiates action to award leases, all applicants whoseaddresses are not current and who cannot be contactedby mail shall be placed on a deferred status.

(b) The department shall contact applicants atleast once every two years to request updatedinformation. Whenever an applicant does not respond toany two successive requests from the department forupdated information, the department shall place theapplicant on a deferred status until such time asupdated information is received.

(c) A list of all applicants placed on deferredstatus and the reasons therefor shall be submitted tothe commission, which shall act upon the matter at themeeting next following. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §207)

§§ 10-3-11 to 10-3-20 (Reserved)

SUBCHAPTER 2LEASES TO NATIVE HAWAIIANS

§10-3-21 Award of leases. (a) Wheneverhomestead lots are available, the department shallaward leases to applicants who meet the qualificationrequirements of section 10-3-2 and are selected inaccordance with section 10-3-7.

(b) The department may hold an orientationmeeting to inform applicants of the lots to be awardedand the lot selection procedures, before the lotselection meeting. The department shall notifyapplicants of the date, time, and place of theorientation meeting and of the lot selection meeting.

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§10-3-23

The department shall place applicants who fail toappear at the lot selection meeting or who fail toselect a lot on a deferred status. [Eff 7/30/81; am1/20/86; comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §207)

§10-3-22 Award of leases with outstandingindebtedness. No award of a residential, agricultural,or pastoral lot lease shall be made to an applicant whohas not submitted sufficient evidence to thesatisfaction of the department that the applicant isfinancially able to assume any indebtedness outstandingagainst the premises after the lease is awarded. [Eff7/30/81; am 1/20/86; comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §207)

§10-3-23 Awards to previous lessees, when. Noaward of a residence lot lease shall be made to anapplicant who at the time of application has previouslybeen a lessee of a Hawaiian home lands residence lot;or who at the time of consideration for award hadbecome a lessee of a Hawaiian home lands residence lotthrough transfer or successorship; provided, thatexceptions to this limitation may be made in thefollowing conditions:

(1) Award of a residence lot lease to anapplicant who had been a lessee may be madeif the department determines that thetransfer or surrender of the previous leasewas made under compelling circumstances andthat denial of award of another residence lotlease would be unreasonably unfair to theapplicant.

(2) Transfer of a residence lot lease throughsuccessorship may be made to an otherwisequalified designated successor who had been alessee if at the time of the designation theformer lessee had already transferred or

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§10-3-23

surrendered the lease and if the designationwas filed with and approved by thedepartment.

(3) Award of a residence lot lease may be made toa present lessee of a residence lot if thedepartment determines an emergency situationas follows:(A) Due to circumstances beyond the control

of and not caused by the lessee, thelessee's health, safety, and welfare areendangered by continued occupancy of thepremises, or the further rehabilitationof the lessee is highly improbablewithout relocation to another residencelot;

(B) The lessee has agreed to surrender thepresent lease and has waived all rightsto the appraisal value of allimprovements on the presently leasedresidence lot;

(C) The lessee has agreed and is financiallyable to pay all expenses for the move tothe residence lot to be leased;

(D) The lessee is financially able toassume:(i) The indebtedness outstanding

against the residence lot to beleased; or

(ii) The indebtedness that must beincurred to enable the lessee tooccupy the residence lot within oneyear after the lease is awarded; or

(E) The circumstances of the present lesseeindicate sufficient need for relocationto justify the department's withholdingof the residence lot to be leased fromavailability to qualified applicants, ifany, for leases in that area and thedepartment's awarding of a lease of thatresidence lot to the relocating lessee.

(4) Exceptions to this limitation shall be madeonly after notice of the department's

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§10-3-24

consideration of such action has been giventhrough the posting of the agenda and afterfull disclosure of the material facts hasbeen made in a public meeting. [Eff 7/30/81;comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §207)

§10-3-24 Agricultural and pastoral leases. (a)When agricultural or pastoral lots become available foraward, the applicant shall be contacted in accordancewith section 10-3-7.

(b) The department shall notify applicants of thedate, time, and place of lot selection. The departmentshall defer applicants who fail to appear or select.

(c) Not later than three months following lotselection, the applicant shall submit a plan for thedevelopment of the lot. The plan shall include but notbe limited to:

(1) Crops to be grown or livestock to be raised;(2) Estimated expenses;(3) Estimated gross income;(4) Method of financing;(5) Market plan;(6) Timetable for operation;(7) Purpose of farm - subsistence, supplemental,

commercial, or otherwise; and(8) Other assistance needed in terms of:

(A) Labor, number of individuals, tasks tobe performed; and

(B) Technical assistance.(d) Decision for award shall be based upon:(1) Review and acceptance of the plan’s

feasibility; and(2) Evaluation of the general knowledge and

experience of the applicant or theexperienced individual who will assist in thedevelopment of the lot. That generalknowledge or experience or combinationthereof may include but not be limited to thefollowing:

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§10-3-24

(A) Member of the Hawaii young farmerassociation or a future farmer ofAmerica graduate with two years oftraining with farming projects;

(B) Satisfactory vocational agriculturecourse in high school;

(C) Satisfactory completion of anagricultural curriculum at a universityor community college leading to abachelor of science or an associatedegree in agriculture;

(D) One year full-time work experience on afarm or ranch;

(E) Completion of study at classes conductedby the University of Hawaii extensionservice; or

(F) Persons who have had at least two yearsexperience as part-time farmers orranchers.

(e) In recognition of the shortage of availablelands on the island of Oahu in relation to availablelands in the State, an award of an agricultural lot onOahu shall be made to applicants who are residing onthe island of Oahu at time of application; providedfurther that a lessee of an agricultural lot on Oahushall not be allowed to hold any other homestead lease.[Eff 7/30/81; am 2/3/83; am 8/1/85; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §207)

§10-3-25 Award of additional acreage. (a) Alessee of an agricultural or pastoral lot may apply foradditional acreage of the same class.

(b) A lessee shall be contacted for an award inaccordance with section 10-3-24(a).

(c) A lessee shall be eligible for lot selectionprovided the lessee has actively cultivated and usedthe agricultural or pastoral lot and is in compliancewith all terms and conditions of existing leases.

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§10-3-26

(d) Following determination that a lessee iseligible for lot selection, the lessee shall benotified as provided in section 10-3-24(b).

(e) Following lot selection, the lessee shallsubmit a plan as required in section 10-3-24(c)incorporating into the plan, all existing acreage.

(f) Decision for award shall be based upon theprovisions of section 10-3-24(d). [Eff 7/30/81; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§207)

§10-3-26 Residence permitted on agricultural andpastoral lot. (a) Upon award of an agricultural orpastoral lot, the applicant shall reside on the islandon which the leasehold is located.

(b) Residences shall be permitted on agriculturalor pastoral lots. Only one residence shall bepermitted per lessee on Hawaiian home lands. Inaddition, a workers' quarters may be permitted perlessee subject to the following conditions:

(1) The lessee has actively cultivated ordeveloped at least two-thirds of theagricultural or pastoral tracts at all times;

(2) The lessee shall submit a plan justifying theconstruction of a workers' quarters includingbut not limited to production processes andprojections, number of workers and laborrequirements, jobs to be performed, site andplot plan, house construction plans, andbenefits accrued by the addition of aworkers' quarters;

(3) Approval by the commission;(4) Conformance to all state and county zoning

and building requirements;(5) Adequate infrastructure, i.e., water, power,

etc., shall be available to service theworkers' quarters;

(6) The lessee shall finance the construction ofthe workers' quarters and the department

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§10-3-26

shall not loan or guarantee funds forconstruction of workers' quarters;

(7) Removal of workers' quarters and relatedaccess and utility improvements at theexpense of the lessee upon cancellation orsurrender of agricultural or pastoral leases;

(8) Upon transfer of agricultural or pastoralleases with workers' quarters, the transfereemust justify the continued use of theworkers' quarters, otherwise, removal of theworkers' quarters and related access andutility improvements will be required at theexpense of the transferor;

(9) Not more than one workers' quarters shall beallowed per lessee, notwithstanding the sizeof the lot or lots, or the number of leases;and

(10) Workers' quarters shall not be allowed forsubsistence farming operations.

(c) A lessee possessing a residence lot lease mayconstruct a residence on the lessee's agricultural orpastoral lot provided that the lessee complies with thefollowing conditions:

(1) The lessee makes prior arrangements tosurrender or transfer the resident lot leaseupon the completion of construction of theresidence on the lessee's agricultural orpastoral lot. Should it be feasible, thelessee may relocate the present house;

(2) The lessee is financially able to assume thecost of relocation or construction of the newresidence plus any related expenses necessaryto maintain the agricultural or pastoral lot.The department may assist the Lessee undersections 10-3-41 to 10-3-52; and

(3) In the event the lessee surrenders theresidence lot lease, the net proceeds thereofshall be first credited to any loan grantedby the department for the construction of ahome on the agricultural or pastoral lot;

and all other conditions imposed by this section andsection 10-3-34.

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§10-3-26

(d) The department shall not be liable forexpenses incurred by the lessee for amenities broughtto the lot. The department shall not provide nor berequired to provide any amenities, except as it maydetermine in the planned development of its lands.

(e) Upon cancellation or surrender of theagricultural or pastoral lot, the lessee shallrelinquish the entire leasehold interest including theresidence.

(f) Subdivision and transfer of a portion ofagricultural or pastoral lot lease may be permittedupon commission approval for the remaining term of thelease to any individual who qualifies under the act,subject to the following conditions:

(1) Upon such transfer, each resultant subdividedlot meets department criteria for designationas agricultural or pastoral;

(2) The department shall not be obliged tofinance the construction of a residence onany transferred portion;

(3) Plans for all residences to be constructed ontransferred portions of leases shall besubmitted to and approved by the departmentbefore construction thereof;

(4) The department shall not be obliged to payfor any costs incurred in the processing andobtaining of the subdivision;

(5) The department shall not be liable forexpenses incurred by the lessee for amenitiesbrought to the lot. The department shall notprovide nor be required to provide anyamenities except as it may determine in theplanned development of its lands; and

(6) A farm plan may be required by transfereesfor all transfers involving the subdividedagricultural or pastoral lots. Whererequired, the farm plan shall be submittedto, reviewed and accepted by the department.[Eff 7/30/81; am 9/24/83; am 11/17/84; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §208)

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§10-3-27

§10-3-27 Livestock and crops. (a) Lessees mayraise animals intended for consumption on theiragricultural leasehold to supply immediate familyneeds.

(b) Lessees may raise animals on a commercialbasis on their agricultural leasehold only after thefollowing conditions are met:

(1) Submission of a plan for commercialproduction of animals which shall include,but not be limited to, projections forproduction, methods of production, sanitationcontrol measures, and proximity tosurrounding residences;

(2) Approval by the commission;(3) Conformance to all state and county zoning

and health laws and rules; and(4) The operation is restricted to confined

feeding and not for open grazing.(c) Lessees with pastoral lots may raise crops

for fodder to be used only for animals on the lot. Aportion of the lot may be utilized to raise vegetablesor fruit crops for consumption by the lessee'simmediate family. [Eff 7/30/81; am 2/3/83; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §§207,208)

§10-3-28 Lease cancellation. (a) The departmentmay cancel a lease issued to a homesteader for thefollowing reasons:

(1) Violation by the lessee of a conditionenumerated in sections 208 or 209 of the act;

(2) Violation of a condition enumerated in alease document;

(3) Violation of a condition enumerated in thistitle; or

(4) Intentional falsification of materialinformation by the lessee on application forloan forms submitted to the department.

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10-3-30

(b) No lease shall be cancelled without firstaffording the lessee the right to a hearing asprescribed in chapter 5. [Eff 7/30/81; comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §§210,216)

§10-3-29 Repealed. [Eff 7/30/98; R ]

§10-3-30 Kuleana homestead leases. (a) Thecommission may establish a homestead program forsettlement on unimproved available Hawaiian home landsto be known as the kuleana homestead program.

(b) The commission may set aside a tract ortracts of unimproved “available lands” as defined insection 203 of the Act, for award under the kuleanahomestead program. All lots awarded under this programshall be known as kuleana homestead lots.

(c) In determining whether a tract should be setaside for award as kuleana homestead lots, thecommission shall consider the following:

(1) Physical and environmental characteristics ofthe land;

(2) Excessive cost to develop the tract for anyreason including: the physicalcharacteristics of the land, the distance ofthe land from existing electrical, water,waste water disposal, communications, andother utility systems;

(3) Department land management plans andprograms;

(4) Applicant interest or proposals identifyingtracts of land; and

(5) Suitability for use by lessees who wishimmediate access to the land for subsistenceuses and who are willing to live on the landand accept an unimproved lot.

(d) The commission shall determine whichhomestead waiting list, or combinations thereof, may be

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§10-3-30

used to make the awards and what list, or combinationsthereof, may be used if the original list used to makethe awards is exhausted.

(e) The department, together with interestedapplicants, shall develop a plan for settlement anddevelopment of the designated tract. All settlementplans shall be subject to approval by the commission.The plan shall include, but not be limited to thefollowing:

(1) Location and description of the tract ofland;

(2) Approximate size and number of lots to beawarded;

(3) Approximate location of community center andcommon areas;

(4) Preliminary conceptual proposals forcommunity management and economic developmentof adjacent department lands, if applicable;

(5) Plan for the identification, protection andpreservation of all significant historical,archaeological, and biological sites; and

(6) Settlement timetable to commence after theaward of the lots.

(f) The department shall provide the followingfor the kuleana homestead lots:(1) Metes and bounds descriptions of lots; and(2) An unpaved right-of-way to the awarded lots.(g) A lessee of a kuleana homestead lot shall be

subject to all applicable state codes, countyordinances, and departmental rules and policiesgoverning land use, building, health, and safety unlessand until the kuleana homestead association’s building,health, and safety codes and permitting process becomeeffective for that particular tract. The kuleanahomestead association for that particular tract, inconsultation with a licensed architect, registered inthe State, may develop, adopt, and enforce its ownzoning, building, and permitting process on thecondition that standards contained in state healthcodes and health and safety sections and provisionscontained in the Uniform Building Code are met and thata licensed architect, registered in the State, is

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§10-3-31

willing to certify all building plans as part of thecommunity developed permitting process. No kuleanahomestead association developed zoning, building,health and safety codes and permitting processes shallbe effective unless and until they are approved by thecommission.

(h) All leases awarded by the department pursuantto the kuleana homestead program shall comply with thissubchapter and subchapter 3 unless otherwise supersededby the settlement plan approved by the commission for aparticular tract. In addition, all lessees shallcomply with the following conditions:

(1) Lessee agrees to participate as an activemember in the kuleana homestead associationfor that particular tract and to comply withrules developed and agreements entered intoby the kuleana homestead association;

(2) Lessee agrees to accept the lot in its “asis” condition with no expectation ofadditional improvements beyond thosespecified in subsection (f); and

(3) Lessee agrees to participate in themaintenance of the right-of-way to thekuleana homestead tract and lots. [Eff andcomp 10/26/98] (Auth: HHC Act §§ 207,219.1, 222) (Imp: HHC Act §§ 207, 219.7)

SUBCHAPTER 3CONDITIONS IN LEASES

§10-3-31 Additional conditions, generally. Inaddition to the conditions in leases set forth insection 208 of the act, and in the lease document, alllessees shall be subject to the restrictions set forthin this subchapter. [Eff 7/30/81; comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §208)

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§10-3-32

§10-3-32 Industrial activities. No industrialactivities shall be allowed on homestead leaseholds.[Eff 7/30/81; comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §208)

§10-3-33 Commercial activities. Except as may beotherwise provided, no homestead leasehold or portionthereof shall be used for commercial activities of sucha nature as to constitute a nuisance. [Eff 7/30/81; am2/3/83; comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §208)

§10-3-34 Building requirements. No buildingstructure or improvement may be constructed on thepremises without written approval from the commission.Such an approval shall be considered only aftersubmission of a plan as to design, materials, andprobable value and use of the structure to be built onthe leasehold. Building structures or improvementsshall meet building and zoning codes and otherordinances and regulations of the respective countiesexcept as otherwise provided by the commission. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §208)

§10-3-35 Contracts covering lease lands. Nolessee may, without written approval from thecommission, enter into any contract, joint venture,agreement or other arrangement of any sort with a thirdperson on lands covered by lessee's lease for thecultivation of crops or the raising of livestock. [Eff7/30/81; comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §208)

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§10-3-39

§10-3-36 Transfer of homestead leases. A lessee,with the written approval of the commission, maytransfer the leasehold to any individual who is anative Hawaiian and is at least eighteen years old.The transferee shall immediately occupy the residencelot or use or cultivate the agricultural, pastoral, orkuleana lot. Failure to occupy or use the lot withinsixty days from date of transfer shall constitutegrounds for cancellation of the lease. A transfereemay own an interest in non-Hawaiian home lands realproperty, regardless of degree of ownership. [Eff7/30/81; am 2/3/83; am 9/24/83; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §208)

§10-3-37 REPEALED. [Eff 7/30/81; R 1/20/86]

§10-3-38 Subdivision and transfer of a portion ofresidential lot leasehold. A lessee of a residentiallot, with the approval of the commission, may subdivideand transfer a portion of the lot for the remainingterm of the lease to any individual who is a nativeHawaiian and is at least eighteen years old; providedthat after the transfer, each lot conforms to countyzoning standards. The department shall not be requiredto finance the construction of the house on thetransferred portion. Plans for construction of thehouse shall be subject to the approval of the chairman.The department shall not be required to pay for anycosts incurred in the processing and obtaining of thesubdivision. [Eff 7/30/81; am 1/20/86; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §208)

§10-3-39 Occupancy and other requirements. (a)The time period by which a lessee is required to occupy

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§10-3-39

a residential lot or to commence to use or to cultivatean agricultural or pastoral lot shall be stipulated inthe lease.

(b) Except as otherwise provided in the lease,the department may require a lessee of an agriculturalor pastoral lot to have under development, cultivation,or use at least two-thirds of the useable acreage atall times.

(c) Lessees shall be responsible for maintainingtheir premises secure from fire, theft, and vandalismand shall comply with the requirements of their leaseat all times.

(d) A lessee who does not have a house on the lotshall provide the department with a current mailingaddress and such other information as the departmentmay require. [Eff 7/30/81; am 1/20/86; comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §208)

§10-3-40 (Reserved)

SUBCHAPTER 4LOANS AND FUNDS

§10-3-41 Funds and accounts. There shall beestablished in the treasury of the State such revolvingfunds, special, and other funds as set forth in theact. [Eff 7/30/81; am and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §§213, 214)

§10-3-42 Purposes of loans. The department maymake loans from any loan fund to lessees, and whereapplicable, to any cooperative association all of whose

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§10-3-43

members are lessees. Such loans may be made for thefollowing purposes:

(1) The repair, maintenance, purchase, orerection of dwellings on Hawaiian home lands,and the undertaking of other permanentimprovements thereon;

(2) The purchase of livestock, swine, poultry,fowl, and farm equipment; and

(3) Otherwise assisting in the development oftracts, and farm and ranch operations;

(4) The cost of:(A) Breaking up, planting, and cultivating

land and harvesting crops;(B) Purchase of seeds, fertilizers, feeds,

insecticides, medicines, and chemicalsfor disease and pest control for animalsand crops, and related supplies requiredfor farm and ranch operations;

(C) The erection of fences and otherpermanent improvements for farm or ranchpurposes; and

(D) Marketing farm or ranch products; and(5) To assist lessees in the operation or

erection of theaters, garages, servicestations, markets, stores, and othermercantile establishments, all of which shallbe owned by lessees of the department or byorganizations formed and controlled bylessees. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §214)

§10-3-43 Authorized actions. For purposesauthorized under the act, the department may:

(1) Use moneys in the operating fund, with theprior approval of the governor, to matchfederal, state, or county funds available forthe same purposes and to that end, to enterinto such undertaking, agree to suchconditions, transfer funds therein available

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§10-3-43

for such expenditure, and to do and performsuch other acts and things, as may benecessary or required, as a condition tosecuring matching funds for such projects orworks;

(2) Use available funds, except moneys from theHawaiian home loan fund, to secure, pledge,or otherwise guarantee the repayment ofmoneys borrowed by the department fromgovernment agencies or private lendinginstitutions and to pay the interim interestor advances required for loans;

(3) Contract private agencies to service loansmade by the department to lessees orcooperative associations, the fees for suchservicing shall be assumed by the lessee orcooperative association, or from a portion ofthe interest charged by the department onloans to lessees or cooperative associations;

(4) Guarantee the repayment of loans made tohomestead lessees of Hawaiian home lands byother governmental agencies or privatelending institutions as provided by the act;

(5) Combine available moneys from variousrevolving funds to make loans to lessees forthe purposes enumerated in section 10-3-42;and

(6) Exercise such other powers as authorized bythe act. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §214)

§10-3-44 Loan applications. (a) Applicationsfor a loan or a loan guarantee shall be made on formsprovided by the department. All applications shall befiled with the department. The filing may be made withdistrict offices of the department.

(b) The applicant shall not be required to payany fees in connection with the filing of anapplication but shall be charged for the cost incurred

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§10-3-46

by the department in obtaining credit reports and otherfinancial information deemed necessary by thedepartment.

(c) A holder of a homestead lease may apply tothe department for the approval of a loan to be made byother government agencies or private lendinginstitutions. Upon receipt of an application, thedepartment shall review the application, and determinewhether or not to guarantee the loan based on loanstandards set forth in section 10-3-46. [Eff 7/30/81;am and comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §§213, 214)

§10-3-45 Application processing. Applicationsapproved by the department shall be submitted to thecommission within sixty working days of receipt by thedepartment together with a summary of the applicant'sfinancial situation including gross and net monthlyincome, outstanding indebtedness, and the number ofdependents. [Eff 7/30/81; am and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §§213, 214)

§10-3-46 Loan standards. Loans may be made toapplicants who are residential lessees, based on thefollowing criteria:

(1) Income ratio: the relation that grossmonthly income bears to monthly payment ofprincipal and interest;

(2) Family size: each person supported from theincome of the lessee and co-applicant shallbe counted as a family member for the purposeof computing and qualifying for a loan andterm. The lessee shall submit to thedepartment a notarized statement to thiseffect.

(3) Applications for loans for any familyreceiving public assistance from the

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§10-3-46

department of human services will beconsidered for approval if:(A) The monthly payment for the loan is

within the amount that is available forhousing--shelter allowance minusanticipated utilities--in accordancewith current department of humanservices standards; and

(B) The applicant is able to assume thefinancial obligation imposed by a loan;

(4) Credit standing: the applicant shall havesatisfactory credit standing in the communityas determined by the department. Thedepartment may waive this requirement if uponconsideration of all the circumstancessurrounding the applicant's financialcondition, it finds that the applicant willbe able to repay the loan in accordance withthe loan contract; and

(5) If the loan applicant is found by thedepartment to have sufficient resources orcredit to secure financing from non-departmental sources to undertake the purposefor which the loan is sought, no departmentalloan shall be made. [Eff 7/30/81; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §§213, 214)

§10-3-47 Loan conditions. (a) Generally, indetermining the term of loans, the department shallconsider the following:

(1) The applicant's financial capacity; and(2) Age and condition of dwelling or building,

based on the estimated expected remaining life span.The term of a loan shall be determined by thedepartment, but in no event be longer than the term asmay be authorized by the act.

(b) Loans shall be made in an amount to bedetermined by the commission, but in no event be morethan the amount authorized by the act.

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§10-3-47

(c) Loans shall bear interest at the rateauthorized by the act and rules.

(d) Loan interest rates shall be determined basedon the availability and source of funds as well as thecurrent interest rate for such loans in the privatesector; provided that the department, on a case-by-casebasis, may establish such rates as it shall determinebest effectuate the purposes of the individualborrower, and to offer loans of comparable interestrates to all borrowers.

(e) Interest on loans made by the departmentshall commence to accrue on the disbursed amount on thetwentieth day of the month or on the day of actualdisbursement following the twentieth day of the monthin which the first disbursement of funds is made.

(f) Repayment of loans made by the departmentshall commence on the nineteenth day of the monthfollowing the month in which the first disbursement offunds is made.

(g) The borrower may be required to pay a monthlyservice fee when loan payments are made payable to, orcollected by a private lending institution.

(h) The payment of any installment due may bepostponed in whole or in part by the department forreasons as it deems good and sufficient and until suchlater date as it deems advisable. Postponed paymentsshall continue to bear interest on the unpaid principalat the rate established for the loan.

(i) Whenever a borrower is delinquent with loanrepayments, the department may demand that the borrowerassign wages in part or all moneys due or to become dueto such borrower by reason of any agreement or contractto which the borrower is a party, to the department toassure repayment of the loan.

(j) Whenever a borrower is more than one hundredtwenty days delinquent on loan repayments, thedepartment may start garnishment proceedings inaccordance with the applicable statute, or startcancellation proceedings as authorized under the act.[Eff 7/30/81; am and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §§213, 214, 215, 216)

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§10-3-48

§10-3-48 Farm loans. (a) Farm loans shall begoverned by sections 213, 214 and 215 of the act.

(b) The maximum loan for an individualagricultural lot lessee shall be determined by thecommission, but in no event be more than the amountauthorized by the act. For an agricultural cooperativeassociation, the maximum amount shall be determined bythe commission on the basis of proposed operations ofthe cooperative and the available security. Farm loansshall bear interest at the rates authorized by the actor these rules.

(c) Cost estimates from the supplier or materialhouse for labor and for building requirements,materials, machinery, equipment, seed, etc., must besubmitted to the department within thirty days afterapplication for a farm loan is made for items orservices to be purchased with the proceeds of theloans. An annual or monthly projected income forreturn of investment shall also be submitted along withthe cost estimates.

(d) A feasibility study of repayment schedules toprojected income from operations shall be submitted toapplications for review and recommendation for loanapproval. The department may establish repaymentschedules that vary based on projected income fromoperations, the type of loan, and the amount of theloan.

(e) Each farm loan shall be subject to whateverconcurrently executed security agreement is in currentuse by the department pursuant to HRS, chapter 490.[Eff 7/30/81; am and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §§213, 214)

§10-3-49 Borrowed funds. The department mayborrow funds for the purpose of making loans to lesseesof residence lots for purchasing, repairing,maintaining, erecting or improving homes on Hawaiianhome lands. Such loans shall bear interest at the samerate of interest as that paid by the department to thelender, plus one-half of one percent per year. The

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§10-3-52

term of such loans shall not exceed thirty years. [Eff7/30/81; comp 10/26/98] (Auth: HHC Act §222) (Imp:HHC Act §§213, 214)

§10-3-50 Additional funds. The department maymake loans at such terms and conditions from anyadditional funds as the legislature may hereafterprovide. In the event such additional funds are madeavailable to the department without any specific terms,conditions, restrictions, such funds shall be subjectto the conditions and restrictions imposed by sections214 and 215 of the act. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §§213,214)

§10-3-51 Operation of funds. The department mayinvest and reinvest any of its funds, not otherwiseimmediately needed for the purposes of the funds, insuch bonds and securities as authorized by state lawfor the investment of sinking fund moneys. Anyinterest or other earnings arising out of suchinvestment shall be credited to and deposited in suchfunds as may be authorized by the act. [Eff 7/30/81;am and comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §§213, 225)

§10-3-52 Hawaiian home receipts fund. (a) Atthe end of each quarter, all moneys in the Hawaiianhome receipts fund shall be transferred as authorizedby the act. At the commission meeting immediatelybefore or at the end of each quarter, the department orcommission on its own motion may recommend forcommission approval a plan for transfer of all moneysin the Hawaiian home receipts fund for that respectivequarter. The plan for transfer shall take intoconsideration the department's budget projections as

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§10-3-52

well as priorities established by the commission forthe moneys.

(b) If the commission fails to approve a plan fortransfer, all moneys in the Hawaiian home receipts fundshall be transferred at the end of that respectivequarter as follows:

(1) Nine per cent to the operatingfund; and

(2) Ninety-one per cent to the general loan fund.[Eff 7/30/81; am 11/17/84; am and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §213)

§§10-3-53 to 10-3-60 (Reserved)

SUBCHAPTER 5SUCCESSORS TO LESSEES

§10-3-61 Designation of successor. As provided insection 209 of the act and in this section, the lesseeshall designate the relative or relatives to whom thelessee directs the interest in the tract to vest uponthe lessee's death from among the following relatives:

(1) Husband, wife, children or grandchildren whoare at least one-quarter Hawaiian; or

(2) Father, mother, widows or widowers of thechildren, brothers and sisters, widows orwidowers of the brothers and sisters, ornieces and nephews who are native Hawaiian.

A lessee may designate a successor or successorsat the time of execution of the lease; provided thatthe lessee shall file the designation in writing at thedepartment and the department shall acknowledge thedesignation in order for the designation to be deemedfiled. A lessee may change the designation ofsuccessor or successors at any time; provided that thelessee shall file the change of designation in writing

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§10-3-63

at the department and the department shall acknowledgethe change of designation in order for the change ofdesignation to be deemed filed.

The department shall determine whether adesignated successor is qualified to be a lessee ofHawaiian home lands. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §209)

§10-3-62 Reversion to the department. Where alessee dies having failed to designate a qualifiedsuccessor, the department may select a successor underthe procedure provided in section 209 of the act. If noselection can be made, the lease shall be cancelled.As provided in section 209 of the act and in thissubchapter, the department shall make any authorizedpayments to the appropriate recipient. The landsubject to the lease shall resume its status asunleased Hawaiian home lands, and the department shallbe authorized to lease the land to a native Hawaiian asprovided in the act. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §209)

§10-3-63 Notice to successors. Upon the death ofa lessee leaving no designated successor, thedepartment shall publish a public notice at least oncein each of four successive weeks in a newspaper ofgeneral circulation in the State. The notice shallstate briefly that all persons claiming to be relativesof the lessee qualified to succeed to the lease shallpresent themselves at the department with proof oftheir qualifications, within four months from the firstday of publication of the notice or be forever barredfrom succeeding to the lease. Those persons failing topresent themselves within four months from the firstday of publication of the notice shall be foreverbarred from succeeding to the lease in question. [Eff

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§10-3-63

7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §209)

§10-3-64 Appraisals. (a) As provided in the actand in this section, the department shall appraise thevalue of all improvements of the tract or tracts andgrowing crops and stock including aquaculturalimprovements or stock, if any, if:

(1) A lessee surrenders his lease;(2) A lessee dies leaving no person or persons

qualified to be successor lessee orlessees;

(3) The department is unable to designate asuccessor; or

(4) The department cancels a lease.(b) An appraisal made pursuant to this section

shall be made by one of the following methods:(1) By a disinterested appraiser hired and paid

by the department;(2) By a disinterested appraiser mutually agreed

to by the department and the lessee or thedeceased lessee's legal representative;provided that the cost of the appraisal shallbe borne equally by the two parties; or,

(3) By not more than three disinterestedappraisers of which the first shall be hiredand paid by the department. If the lessee orthe deceased lessee's legal representativedoes not agree with the appraised value, thelessee or the deceased lessee's legalrepresentative shall hire and pay for theservices of a second appraiser. The secondappraiser’s report shall be submitted to thedepartment not later than ninety days fromthe date of the first appraisal report. Thefirst appraisal shall be used if the secondappraiser is not hired within thirty daysfrom the date the department transmits thefirst appraisal report to the lessee or thedeceased lessee's legal representative. The

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§10-3-65

first appraisal shall also be used if thesecond appraiser does not submit an appraisalreport to the department within ninety daysfrom the date of the first appraisal report.If the values of the first and secondappraisals are different and the two partiesdo not agree to a compromise value betweenthe first and second appraisals, a thirdappraisal shall be made. An appraiser whoshall be appointed by the first twoappraisers not later than ninety days fromthe date of the second appraisal report shallmake the third appraisal. The thirdappraiser shall determine the final value.The cost of the third appraisal shall beborne equally by the two parties.

(c) The lessee or the deceased lessee's legalrepresentative shall indicate, on a form provided bythe department, which of the three appraisal methodsdescribed in subsection (b) shall be followed. Theselection of appraisal method shall be made not laterthan thirty days from the date the form is provided tothe lessee or the deceased lessee’s legalrepresentative by the department. If no selection ofappraisal method is made in thirty days, the departmentshall hire and pay for the services of a disinterestedappraiser whose appraisal shall be used. [Eff 7/30/81;am and comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §209)

§10-3-65 Payments. (a) The department shall payto the appropriate recipient as specified in section209 of the act or to the previous lessee, as the casemay be, the appraisal value less:

(1) Any indebtedness to the department;(2) Taxes;(3) Any other indebtedness the payment of which

has been assured by the department;

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§10-3-65

(4) Any costs incurred by the department for theupkeep and cleaning of the leased premises;and

(5) Any costs incurred by the department for theremoval of any crops or improvements.

(b) Payments provided in subsection (a) shall bemade out of the loan funds and shall be considered anadvance therefrom, reimbursable out of payments by thetransferee or new lessee to the tract involved.

(c) The department may make the payment onlyafter a new lessee is found and upon commencement ofthe new lease. [Eff 7/30/81; am 2/3/83; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §209)

§10-3-66 Cancellation and surrender. (a) Uponreceipt of written notification of a lessee's intent tosurrender the lessee’s leasehold interest, thedepartment shall process the same. The department mayforego acceptance of a surrender until a new lessee isfound and it is determined by the department thatsufficient funds are available to meet the paymentsrequired. At all times until acceptance of surrenderthe lessee shall remain responsible for the demisedleasehold together with any improvements thereon, andshall remain liable for all taxes, assessments andcharges of whatever kind and nature, on said tract andimprovements thereon, and shall keep insured anystructures thereon.

(b) Upon the cancellation or surrender of ahomestead lease, if the department determines that anystructure on the premises is in such disrepair thatdemolition of the structure is required, the lesseeshall be allowed to sell the structure within ninetydays from the date of the cancellation or acceptance ofsurrender; provided that any proceeds be first used tosatisfy any indebtedness to the department, taxes, orany other indebtedness the payment of which has beenassured by the department, or any costs incurred by thedepartment for upkeep and cleaning of the leased

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§10-3-70

premises. If the lessee does not sell or remove thestructure, the department shall demolish the structureand the cost thereof shall be assessed the lessee.[Eff 7/30/81; am and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §209)

§10-3-67 Cancellation of lease when tract isabandoned. If a lessee has abandoned the tract byfailing to use or occupy the premises or cannot belocated after at least two attempts to contact thelessee by certified mail, the department shall publisha public notice at least once in each of foursuccessive weeks in a newspaper of general circulationin the State. The notice shall direct the lessee topresent himself or herself at the department within onehundred twenty days from the first day of publicationof the notice. The notice shall also state that thelease will be canceled in accordance with sections 210and 216 of the act and that the department shallappraise the value of the improvements and growingcrops and stock, if any, if the lessee fails to respondby the date set by the public notice. In addition, thedepartment shall post a public notice on the abandonedtract. After cancellation of the lease and completionof the appraisal, the department shall make the paymentin accordance with section 10-3-65 if there are any netproceeds and if the previous lessee is located. [Effand comp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§209)

§§10-3-68 to 10-3-70 (Reserved).

SUBCHAPTER 6COMMUNITY PASTURES, FEES, AND CHARGES

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§10-3-71

§10-3-71 Location of community pastures. Thedepartment when practicable and as authorized by theact may maintain community pastures in such locationsas it may determine. [Eff 7/30/81; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §211)

§10-3-72 Records. A record of all stock in thecommunity pastures shall be kept by the department.[Eff 7/30/81; comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §211)

§10-3-73 Responsibilities. (a) The lessee shallbe responsible for:

(1) Permanently branding all animals with aregistered brand of the lessee;

(2) Worming, and testing all animals andconfirming district origin;

(3) Removing sick, diseased, or severely injuredanimals; and

(4) Arranging for removal of animals at leastforty-eight hours in advance of the move withthe district manager.

(b) The department shall be responsible for:(1) Managing and supervising the operation;(2) Providing and maintaining adequate fence,

locked gates, water, salt and forage;(3) Providing adequate facilities for working

cattle;(4) Notifying lessee of any disease, injury,

theft, sickness or loss of weight with regardto any animal; and

(5) Identifying newborn calves with ear markspending branding (Molokai only). [Eff7/30/81; am and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §211)

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§10-3-75

§10-3-74 Liability for loss. The departmentshall not be held liable for any death, loss, injury,theft, sickness, or loss of weight to any animal. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §211)

§10-3-75 Community pasture terms and conditions.(a) The approximate number of heads to be carried inthe community pastures shall be set by the chairmanfrom time to time according to the carrying capacity ofthe pastures.

(b) Until further action by the department, fourhead of cattle of any age per lessee shall beconsidered the maximum number of cattle in anycommunity pasture.

(c) In the case of extreme shortage of feed orthe imminent lack of stock feed, all persons utilizingthe pasture shall be required to remove the marketstock to the amount designated by the chairman, withinten days after notice.

(d) Holders of agricultural leases shall havefirst priority of running stock in community pastures.Other lessees may use residual quotas as determined bythe department.

(e) Each lessee shall have one, and only one,brand which shall be registered with the department ofagriculture. Lessee shall supply the department with afacsimile of the brand and shall brand cattle belongingto the lessee. All animals on community pastures shallbe owned by lessees and shall be branded with thelessee's brand before entering the community pasture.

(f) Only one type of ear mark or tag shall beused by lessee; this ear mark or tag shall beregistered with the department.

(g) At no time shall any of the lessees or theirrepresentatives be allowed to enter community pasturesfor purposes of removing or inspecting stock withoutfirst obtaining written permission from the authorizedagent of the department. This written permission shallbe presented to the pasture keeper, who shall then

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§10-3-75

accompany the permit holder. Only such authority as iscontained in the permit may be exercised by the holderthereof.

(h) One general drive shall be conducted in Julyon Molokai for the purpose of branding, castrating,counting and testing. Branding shall be allowed in thepasture only during this period. All stock ownersshall assist in drives and properly identify stockbelonging to them, either in person or by dulyauthorized representatives. All owners of livestockshall be notified one week in advance of each drive.Owners failing to attend shall be bound by the count ofthe department. [Eff 7/30/81; am and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §211)

§10-3-76 Fees and charges. (a) All chargesshall be paid before withdrawal of stock, or properguarantee of such payments shall be made.

(b) Pasture fee charges for animals that dieshall be paid up to the date the animals died.

(c) Pasture fees shall be:(1) $5 per month per head, billed quarterly; and(2) $6 for dehorning, etc., per calf.(d) The fees shall be subject to increase when,

in the determination of the department, the increase isnecessary to cover the cost of operating andmaintaining the community pasture. The departmentshall establish for any pasture such fees as shall benecessary to operate and maintain the pasture.

(e) Cattle purchases from outside districts shallbe blood tested and all cattle shall be treated inaccordance with good animal husbandry practices beforeentering the pasture. Proof that cattle have beenblood tested and treated shall be required.

(f) The department shall assess the followingfees for scaling services:

(1) Lessees:(A) $2--pick-up towed trailers; and(B) $0.25--per head truck loads.

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§10-3-76

(2) Non-lessees:(A) $4--pick-up towed trailers; and(B) $0.50--per head truck loads.

(g) For trucking, the department shall assess afee of $6 per head for hauling cattle from communitypasture to home or slaughterhouse. Hauling made by thedepartment shall be made only by the department driver.Hauling services by the department shall be made onlywhen a satisfactory hauling truck is available. At thetime of hauling, the lessee shall be present toidentify and designate in writing the cattle to beremoved.

(h) Except as the commission may otherwiseprovide, the rental fee for the use of a meeting roomor hall shall be $50 per day or fraction thereof. Asused in this section, a day shall mean a twenty-fourhour period beginning at noon one day and ending atnoon the next succeeding day.

(i) Water from department systems shall be soldat rates established by the commission. The departmentshall establish the frequency of billing and maydetermine a minimum monthly charge. [Eff 7/30/81; am2/3/83; am 11/17/84; am and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §211)

4-1

HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 4

MANAGEMENT OF HAWAIIAN HOME LANDS

Subchapter 1 Land Management§10-4-1 Lease of lands§10-4-2 General Plan§§10-4-3 to 20 (Reserved)

Subchapter 2 Licenses§10-4-21 General provisions§10-4-22 Licenses for easements and public purposes§10-4-23 Repealed§10-4-24 Licenses for mercantile establishments§10-4-25 Licenses to the United States§10-4-26 Licenses to churches§§10-4-27 to 30 (Reserved)

Subchapter 3 Parks§10-4-31 Parks managed by the department§10-4-32 Parks managed by other organizations on

Hawaiian home lands§10-4-33 Park advisory councils, established§10-4-34 Use of parks§10-4-35 Hours of operation§10-4-36 Closure§10-4-37 Permits§10-4-38 Permit application§10-4-39 Permit approval§10-4-40 Permit denial§10-4-41 Permit priorities§10-4-42 Fees§10-4-43 Penalties§10-4-44 Commercial and private operations

4-2

§10-4-1

Historical Note: Chapter 4 of Title 10, HawaiiAdministrative Rules, is based substantially upon PartsIII and V, Rules and Regulations, Department ofHawaiian Home Lands. [Eff 8/11/72; am 11/14/77; R7/30/81]

SUBCHAPTER 1LAND MANAGEMENT

§10-4-1 Lease of lands. The department maylease, license, or otherwise deal with any Hawaiianhome lands as may not be immediately needed for thepurposes of the act as provided by section 204(2) ofthe act and chapter 171, HRS, upon such terms andconditions as it may deem fair and reasonable. [Eff7/30/81; am and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §204)

§10-4-2 General Plan. The department shalldevelop and maintain a general plan providing for thedevelopment and use of land needed for the purposes ofthe act. The general plan shall be based uponsociological, financial and economic considerations,among others. A public hearing shall be held before ageneral plan is adopted or amended. [Eff 7/30/81; amand comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct, all)

§§10-4-3 to 10-4-20 (Reserved).

SUBCHAPTER 2LICENSES

§10-4-21

4-3

§10-4-21 General provisions. (a) Applicationsfor licenses shall be made in writing and shall statethe applicant's status, type and location of the landdesired, proposed use of the land, the services orfacilities to be provided and the term of the license.

(b) The department may negotiate the issuance ofa license. The department shall determine such termsand conditions of a license as it deems prudent,reasonable, and proper and in accordance with thischapter and subject to the commission’s approval.

(c) Except as provided in subsection (d), theapplicant shall pay all costs incurred by thedepartment for the processing of a license application,including but not limited to, costs of advertisement,survey, and appraisal. The applicant shall remit tothe department, together with its application, a non-refundable deposit in the sum of $200. The applicantshall pay upon execution, the balance of the costincurred by the department for processing theapplication in excess of the deposit.

(d) All processing costs may be reduced or waivedwhen the department initiates action for licenseawards, or the department determines that the licensebenefits native Hawaiians or the department.

(e) The license rental rate shall be establishedby appraisal whenever prudent management so dictates.The department may:

(1) Require the licensee to hire an independentappraiser, provided the appraiser is mutuallyagreed upon by the department and thelicensee;

(2) Enter into contracts for appraisal; or(3) Make its own appraisal.

The licensee shall pay the cost of all appraisals,whether hired by the licensee or contracted for by thedepartment. When a member of the department staff doesthe required appraisal, the applicant shall pay to thedepartment a sum which is reasonably comparable to thecurrent rate for similar appraisals contracted for inthe private sector. Where prudent management does notdictate the rental rate be established by appraisal,the department may negotiate the rental rate of a

§10-4-21

4-4

license. If the proposed use benefits other than nativeHawaiians, the department may grant the license and theannual rental shall be established by appraisal. If theuse benefits the department or native Hawaiians, thedepartment may set a nominal rental rate.

(f) If a survey of the requested licensed area isrequired by the department, the licensee shall have thesurvey performed at the licensee's own cost. If thedepartment is requested to provide the survey, thelicensee shall pay all costs incurred by the departmentfor the survey. The department may require anadditional deposit in the amount of the estimated costfor such survey as determined by the department. [Eff7/30/81; am 2/3/83; am 11/17/84; am and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §207(c))

§10-4-22 Licenses for easements and publicpurposes. Licenses as easements for railroads,telephone lines, electric power and light lines, gasmains and the like, and licenses for improvements forpublic purposes, including but not limited to schools,post offices, parks, beaches, fire stations, and otherpublic facilities may be granted, in perpetuity or aspecified term, subject to reverter to the departmentupon termination or abandonment, on such terms andconditions as may be prudently and reasonably set bythe department. [Eff 7/30/81; am 11/17/84; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §207(c))

§10-4-23 REPEALED. [R 11/17/84]

§10-4-24 Licenses for mercantile establishments.(a) The department may issue licenses for mercantileestablishments, all of which shall be owned by native

§10-4-24

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Hawaiians or organizations formed and controlled bynative Hawaiians as provided in section 207(c)(1)(B) ofthe act.

(b) Mercantile licenses offered upon departmentinitiative shall be disposed of in the followingmanner:

(1) The department shall give notice, once ineach of two successive weeks in a newspaperof general circulation in the State, of itsintention to license Hawaiian home lands formercantile purposes setting forth the minimumconditions thereunder and the use for whichthe land will be licensed. Any nativeHawaiian or organizations formed orcontrolled by native Hawaiians interested insecuring the license shall file anapplication with the department not laterthan thirty days after the publication of thenotice;

(2) If there is only one applicant for thelicense, the department, after notice asprovided in paragraph (1), may dispose of thelicense; and

(3) If there are two or more applicants for thelicense, the department shall select theapplicant who submits the highest offercontained in a sealed bid deposited with thedepartment.

(c) The rental for the license to be issued shallbe determined by the department, based on the flat rateper square foot, or appraisal, or on a percentage ofthe gross sales receipt of the licensee. Upon arequest of a native Hawaiian, the department maynegotiate the issuance of a mercantile license subjectto the approval of the commission under section 10-4-21(b).

(d) Section 10-4-21(d) shall not apply to thissection. Mercantile licensees shall pay all processingcosts, including but not limited to advertisement,survey, and appraisal. [Eff 7/30/81; am 11/17/84; amand comp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§207(c))

§10-4-25

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§10-4-25 Licenses to the United States. (a) Thedepartment may grant licenses to the United States forreservations, roads, and other rights-of-way, waterstorage and distribution facilities.

(b) Licenses issued or granted to the UnitedStates shall not restrict the area required by thedepartment in carrying on its duties nor interfere inany way with the department's operation or maintenanceactivities.

(c) Licenses issued to the United States shall beat rentals as established by appraisal.

(d) The method of rental payment may include, butnot be limited to, compensatory services rendered tothe department. [Eff 7/30/81; am 11/17/84; am and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§207(c))

§10-4-26 Licenses to churches. (a) Thedepartment may issue licenses to churches within ahomestead district provided:

(1) The aggregate number of churches in thehomestead district does not exceed two percent of the total number of lessees in thedistrict; and

(2) If land is available, a petition of those whowish to establish a church shall includenames of at least twenty per cent of thelessees in the homestead district.

(b) Churches existing on Hawaiian home landsbefore November 14, 1977 shall be exempt from therequirements of subsection (a)(1).

(c) The annual rental for licenses issued underthis section shall be one-half of one cent per squarefoot, or $200, whichever is greater.

(d) For the purposes of this section, homesteaddistricts are Hawaiian home lands which have beenhomesteaded within an ahupua'a or lesser subdivisionthereof. [Eff 7/3/81; am 2/3/83; am 11/17/84; am andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§207)

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§§10-4-27 to 10-4-30 (Reserved).

SUBCHAPTER 3PARKS

§10-4-31 Parks managed by the department. Thedepartment, from time to time, may establish and manageparks on lands not immediately needed for the purposesof the act. The department, in accordance with therules established in this chapter, shall make alldecisions with respect to the operations of theseparks. [Eff and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §204)

§10-4-32 Parks managed by other organizations onHawaiian home lands. The department may, from time totime, establish parks on lands not immediately neededfor the purposes of the act. The department may licenseparks for other organizations to manage under suchterms and conditions as the commission may deemnecessary as provided by sections 204 and 207 of theact and chapter 171, HRS. (a) In cases where parks arelicensed to county, state, or federal agencies formanagement, the applicable rules of the licensee, aslimited by the license’s terms and conditions, shall beused in the management of these parks; and it shall bethe licensee’s responsibility and duty to enforce theapplicable rules.

(b) In cases where parks are licensed to otherorganizations, the rules of the licensee, as approvedby the commission and as limited by the license’s termsand conditions, shall be used in the management ofthese parks; and it shall be the licensee’sresponsibility and duty to enforce the applicablerules. [Eff and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §204)

4-8

§10-4-33

§10-4-33 Park advisory councils, established.There shall be established a park advisory council ineach area where the department operates a districtoffice. Each council shall meet at least once a yearand shall be administratively attached to the districtoffice in which the council is established. Eachcouncil shall consist of five members appointed by thechairman and confirmed by the commission; provided thateach member shall be a native Hawaiian, at leasteighteen years of age and a resident of the area servedby the district office in which the council isestablished. Each member shall be appointed for a termof two years. Members of each park advisory councilshall serve without compensation. The purpose of eachpark advisory council shall be to advise the departmenton rules, practices and activities on and affectingparks that are in the area where the park advisorycouncil is established and are under the management ofthe department as provided in section 10-4-32. [Eff andcomp 10/26/98] (Auth: HHCA Act §222) (Imp: HHCA Act§204)

§10-4-34 Use of parks. The following minimumrestrictions apply to department parks:

(1) The use or possession of alcoholic beveragesis prohibited;

(2) Boating vessels or any similar buoyantdevices are prohibited where posted;

(3) The construction of any buildings,facilities, memorials, or other similarstructures is strictly prohibited except withwritten permission from the department;

(4) Fires may be built only in areas where thefire can be confined to fireplaces or grills.No person shall allow a fire to burn in amanner that surrounding shrubs, grasses,trees, or structures will be damaged. Firesshall not be left unattended. Portablestoves or warming devices may be used indesignated camping and picnicking areasunless otherwise prohibited;

§10-4-34

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(5) All geologic, historic, and archaeologicalfeatures must be left undisturbed;

(6) Unreasonably loud noises or unreasonably loudamplified music is prohibited. The decibellevel standards shall comply with chapter342F, HRS, state rules, and countyordinances;

(7) Activities which may cause disturbances areprohibited unless generally allowed withinspecific areas of the park. A list ofexamples of prohibited activities, if any,shall be established by the department inconsultation with the park advisory council.This list shall be posted within the districtoffice;

(8) Driving and parking of vehicles is allowedonly on defined roads and in designatedparking areas. Vehicles illegally parked orleft unattended in closed areas may beimpounded or towed to a place of storage,with towing and storage fines chargedpursuant to Section 290-11, HRS.

(9) Pets and other animals shall be leashed orotherwise under physical restrictive controlat all times, and are not permitted wheresigns prohibiting animals are posted.Persons responsible for any animal on thepremises shall also be responsible for theclean up and proper disposal of animaldroppings and for restoration for any damagecaused by the animal;

(10) Except for maintenance authorized by thedepartment, plants are to be leftundisturbed. Where permitted by thedepartment, reasonable quantities of plantmaterial such as leaves, flowers, fruits andseeds may be gathered for personal use;

(11) Skating, skateboarding, and golfing areprohibited unless otherwise posted;

(l2) Soliciting or panhandling is prohibited. Thesale of any goods, food, or services areprohibited unless specifically allowed in

§10-4-34

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writing by the department; such permissionwill require the appropriate health and otherpublic permits;

(13) All waste must be placed in trash cans.Trash from large events must be bagged,securely tied, and disposed of appropriately.The department may require that trash fromlarge events be removed from the premises bypark users;

(14) Wildlife and their habitats must be leftundisturbed except where hunting and fishingare permitted subject to all applicablefederal, state and county laws, rules, andregulations;

(15) Picnicking. A person may picnic in the parksexcept in designated campgrounds and in thoselocations where prohibited; the departmentshall post appropriate signage. Thedepartment may also establish reasonablelimitations on the length of time any personmay use picnicking facilities; and

(16) All criminal activities prohibited underfederal and state laws or county ordinancesare also prohibited on Hawaiian home lands.[Eff and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §204)

§10-4-35 Hours of operation. The departmentshall establish the hours during which the parks willbe open. Hours of operation shall be posted in eachdistrict office and may vary depending on the locationof the park and the season of the year. Anyone using apark during the hours when the park is closed may beconsidered a trespasser and may be subject toprosecution. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §204)

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§10-4-36 Closure. At the discretion of thedepartment, a park may be closed for renovation, forsafety or for security purposes. The department shallpost notice of closure at the district office in whichthe park is located and at the specific park. [Eff andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §204)

§10-4-37 Permits. The department shall postpermit requirements in the applicable district office.The department shall attach a copy of permitrequirements to approved permits. Park use permits arerequired for:

(1) Any group with 26 or more park users;(2) Exclusive use of any pavilions; or(3) Overnight camping.The department may require security, traffic

control, portable toilets, extra trash receptacles,lifeguards, insurance, security deposits or any otheritems that the department, in its sole discretion, maydeem necessary, given the size and complexity of theevent for which the permit is issued. The departmentshall determine the maximum size for any event and themaximum length of stay for overnight camping, and shallpost those limits in the district offices. Anyonerequired to have a permit shall have the appropriatepermit and identification at the park at all times andshall, upon request, show those items to lawenforcement officers and other authorizedrepresentatives. Anyone without a required permit maybe considered a trespasser and may be subject toprosecution. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §204)

§10-4-38 Permit application. An application fora park use permit may be obtained at the appropriatedistrict office, subject to the following minimum

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guidelines and any other additional provisions that thedepartment may deem necessary:

(1) Permit applications may be filed from 8:00a.m. to 4:00 p.m., Monday through Friday,except holidays;

(2) Permit applicants must be 18 years or older;(3) Permit applications must be in writing on a

form provided by the department and containall information required; and

(4) Permit applications for events or exclusiveuse of facilities must be received at leastfourteen calendar days before the event andno earlier than one calendar year in advance;

(5) Camping permit applications must be receivedat least one working day before the requesteddate and no earlier than ninety days inadvance. [Eff and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §204)

§10-4-39 Permit Approval. Park use permits shallbe approved or denied by the district office supervisorin whose jurisdiction the park is located. Persons whohave been denied a permit may make written requests forreconsideration to the chairperson. Permits shall notbe transferred. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §204)

§10-4-40 Permit Denial. Permits may be deniedwhen:

(1) The premises or park facilities are closed;(2) The person applying for the permit has

received a permit during the previous ninetydays;

(3) There are inadequate facilities to meet theneeds of the applicant for the permit;

(4) The premises or facilities will be used bypersons other than the person applying forthe permit; or

§10-4-43

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(5) The person applying for the permit has aprior record of noncompliance with permitconditions or has committed prior violationsof this subchapter. [Eff and comp10/26/98] (Auth: HHC Act §222) (Imp: HHC Act§204)

§10-4-41 Permit priorities. In general, permitsshall be issued on a first-come, first-served basis,with preference given to native Hawaiian beneficiariesand organizations. In no case, however, shall a nativeHawaiian be discriminated against because of place ofresidence. [Eff and comp 10/26/98] (Auth: HHC Act §222)(Imp: HHC Act §204)

§10-4-42 Fees. The department, in consultationwith the park advisory council, may establish fees forthe use of park facilities. Special fees may becharged for events that require unusual departmentalassistance. Fees charged by the department shall bemade known to the park user before a permit is issued.Additionally, deposits may be required of any permitrecipient in order to ensure that rules are met and thearea is left in a clean and sanitary condition. Anotice listing any required fees or deposits shall beposted in the applicable district office. [Eff andcomp 10/26/98] (Auth: HHC Act §222) (Imp: HHC Act §204)

§10-4-43 Penalties. (a) All permittees shall,upon request, show the permit to any law enforcementofficer or authorized representative. Anyone using thepark without a required permit may be asked to leave.Any such person who refuses to leave may be considereda trespasser and may be subject to prosecution.

§10-4-43

4-14

(b) Anyone violating the provisions of thissubchapter may be required to repair or pay for anydamage to public or private property, may be subject toconfiscation of equipment used in the violation, andmay be subject to applicable charges under the law.All plants, objects, or artifacts removed illegallyfrom the premises shall be returned to the department.[Eff and comp 10/26/98] (Auth: HHC Act §222) (Imp: HHCAct §204)

§10-4-44 Commercial and private operations. Thefollowing activities are prohibited in departmentparks:

(1) Engaging in or soliciting business;(2) Displaying, posting or distributing notices

or advertisements; and(3) Filming, photographing, video and audio

recording, or any other media production thatinvolves the use of professional casts,models, setting, or crews, by any personother than legitimate newspaper or televisionnews personnel.

Exceptions to the above may be granted in writingby the chairperson subject to any terms, conditions,and fees deemed by the chairperson to be fair andreasonable. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §204)

5-1

HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 5

RULES OF PRACTICE AND PROCEDURE

Subchapter 1 Rules of general applicability

§10-5-1 Scope of rules§10-5-2 Commission procedures§10-5-3 Suspension, waiver of rules§10-5-4 Appearances before the commission§10-5-5 Filing of documents§10-5-6 Docket§10-5-7 Time of computation§10-5-8 Amendments, dismissal of documents§10-5-9 Document retention§10-5-10 Commission decision§10-5-11 Commission counsel§10-5-12 Substitution of parties§10-5-13 Consolidations§10-5-14 Ex parte communication§§10-5-15 to 20 (Reserved)

Subchapter 2 Rulemaking procedures

§10-5-21 Rule change petitions, procedures§10-5-22 Proposed rulemaking notice§10-5-23 Hearing conduct§10-5-24 Commission action§10-5-25 Emergency rulemaking§§10-5-26 to 30 (Reserved)

Subchapter 3 Contested case rules

§10-5-31 Contested case hearing requests§10-5-32 Decision to hold hearing, scheduling§10-5-33 Hearing officer

5-2

§10-5-1

§10-5-34 Settlements§10-5-35 Service of papers§10-5-36 Deposition§10-5-37 Subpoenas§10-5-38 Witnesses, fees§10-5-39 Hearings§10-5-40 Contested case hearing procedures§10-5-41 Recommended decision of hearing officer§10-5-42 Commission decision§10-5-43 Court appeal§§10-5-44 to 50 (Reserved)

Subchapter 4 Petition for declaratory ruling

§10-5-51 Form and content§10-5-52 Additional data, supporting authority§10-5-53 Dismissal§10-5-54 Hearing request§10-5-55 Declaratory motion on commission's own motion

Historical Note: Chapter 5 of Title 10, HawaiiAdministrative Rules, is based substantially upon Part10, Rules and Regulations, Department of Hawaiian HomeLands. [Eff 11/14/77; R 7/30/81]

SUBCHAPTER 1RULES OF GENERAL APPLICABILITY

§10-5-1 Scope of rules. This chapter governspractice and procedure before the commission anddepartment pursuant to the act and the Hawaiiadministrative procedure act. These rules shall beconstrued to effect a just and speedy determination ofevery proceeding. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-4

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§10-5-2 Commission procedures. The commissionmay on its own motion or upon the petition of anyinterested person or agency, hold proceedings as itdeems necessary for the purpose of obtaininginformation necessary or helpful in the determinationof its policies, the carrying out of its duties, or theformulation of its rules. For such purposes, it maysubpoena witnesses and require the production ofevidence. Procedures to be followed by the commissionshall, unless specifically prescribed in these rules orby the Hawaii administrative procedures act, be such asin the opinion of the commission will best serve thepurposes of such proceedings. [Eff 7/30/81; am andcomp 10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-3 Suspension, waiver of rules. Any personor agency may submit a signed request that any rulecontained in this chapter not be applied and thecommission or the hearing officer before whom thematter is presented, upon such request may suspend orwaive such a rule to prevent hardship in any particularinstance. [Eff 7/30/81; comp 10/26/98] (Auth: HRS§91-2) (Imp: HRS §91-2)

§10-5-4 Appearances before the commission. (a)Any individual or agency or designated representativethereof may appear before the commission or hearingofficer in any proceeding, unless otherwise provided insubsection (c).

(b) When a person acting as a representativeappears in person or signs a paper before thecommission or hearing officer, the appearance orsignature shall constitute a representation to thecommission or hearing officer that under the provisionsof these rules or applicable law, the individual isauthorized and qualified to act as a representative.

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(c) No person who has been associated with thecommission or department as a member, officer,employee, or counsel shall represent in any manner, anyparty in connection with any proceeding or matter whichwas handled or passed upon by that person whileassociated in any capacity with the commission.

(d) No person who has been associated with thecommission or department as a member, officer,employee, or counsel shall represent in any manner, anyparty in connection with any proceeding or matter whichwas pending before the commission or hearing officer atthe time of the association with the commission unlessthe person shall first have obtained the commission'swritten consent upon a verified showing that the persondid not give personal consideration to the proceedingor matter as to which consent is sought or gainedparticular knowledge of the facts thereof during theassociation with the commission.

(e) No person appearing before the commission orhearing officer in any proceeding or matter shall inrelation thereto knowingly accept assistance from anyperson who would be precluded by this section fromappearing before the commission or hearing officer insuch proceeding or matter. [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-5 Filing of documents. (a) Any documentor other papers required to be filed with thecommission in any proceeding or matter shall be filedwith the department. Such document or paper may besent by mail or hand carried to the department officewithin the time limit for such filing. The date onwhich the papers are actually received shall be deemedto be the date of filing.

(b) Any document or other papers filed with thecommission shall be plainly legible.

(c) All documents or other papers must be signedby the party or a designated representative filing thesame. The signature of the person signing the documentshall represent that, to the best of the individual's

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knowledge, information, and belief, every statementcontained in the instrument is true and that nostatements are misleading, and that the document is notinterposed for delay.

(d) Unless otherwise specifically provided by aparticular rule or order of the commission, an originaland nine copies of all papers shall be filed.

(e) The initial document filed by any person inany proceeding shall state on the first page the name,mailing address, and telephone number of the person orpersons who may be served with any documents filed inthe proceeding. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-6 Docket. The department shall assign anumber to each proceeding and maintain a docket of allproceedings. [Eff 7/30/81; comp 10/26/98] (Auth: HRS§91-2) (Imp: HRS §91-2)

§10-5-7 Time computation. (a) In computing anyperiod of time prescribed or allowed by these rules,order of the commission, or any applicable law, the dayof the act, event, or default, after which thedesignated period of time is to run, shall not beincluded. The last day of the period so computed shallbe included unless it is a Saturday, Sunday, or legalState holiday in the State in which event the periodruns until the next day which is neither a Saturday,Sunday, or holiday. Intermediate Saturdays, Sundays,and holidays shall not be included in a computationwhen the period of time prescribed or allowed is tendays or less. A half holiday shall be considered asother days and not as a holiday.

(b) Upon written request, additional time will begranted to take actions or to file documents or otherpapers required or allowed by these rules where goodcause is clearly shown. [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-8

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§10-5-8 Amendments, dismissal of documents. Ifany document or other paper filed in a proceeding arenot in substantial conformity with these rules as tothe contents thereof, or are otherwise insufficient,the commission or hearing officer on its own motion, oron motion of any party, may strike or dismiss thedocument, or require its amendment. If amended, thedocument shall be effective as of the day of theoriginal filing. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-9 Document retention. All documents filedwith or presented to the commission may be retained inthe files of the commission. However, the commissionmay permit withdrawal of original documents uponsubmission of properly authenticated copies to replacesuch documents. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-10 Commission decisions. All final orders,opinions or rulings entered by the commission in aproceeding and rules adopted by the commission as aresult of a contested case hearing shall be releasedfor general publication. Copies of such publishedmaterials shall be available for public inspection inthe department office or may be obtained upon a signedrequest and payment of fees imposed by law. [Eff7/30/81; comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS§§91-2, 91-12)

§10-5-11 Commission counsel. The attorneygeneral or a designated representative shall serve ascounsel for the commission, or the department. [Eff7/30/81; comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS§28-4)

§10-5-14

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§10-5-12 Substitution of parties. Upon motionand for good cause shown, the commission may ordersubstitution of parties, except that, in the case ofdeath of a party, substitution may be ordered withoutthe filing of a motion. [Eff 7/30/81; comp 10/26/98](Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-13 Consolidations. The commission, uponits own initiation or upon motion, may consolidate forhearing or for other purposes or may contemporaneouslyconsider two or more proceedings which involvesubstantially the same parties, or issues which involvethe same parties or issues which are the same orclosely related if it finds that such consolidation orcontemporaneous hearing will be conducive to the properdispatch of its business, promote justice and will notunduly delay the proceedings. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-14 Ex parte communications. In anyproceeding to be determined by the commission after thenotice and hearing and upon a record:

(1) No person, either in private life or publiclife, shall communicate privately on themerits of the case to any member of thecommission or its staff or to the hearingofficer designated to hear and decide thematter unless specifically provided by law;

(2) No member of the commission's staff or anyother governmental agency who participates inthe hearing as a witness or counsel shallcommunicate privately on the merits of thecase to a member of the commission or to thehearing officer designated to hear and decidethe matter, unless specifically provided bylaw; and

(3) It shall be improper for any personinterested in a case to seek to sway the

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5-8

judgment of the commission by attempting toinfluence or bring pressure to bear upon anymember of the commission or its staff, or forsuch person or any member of the commission'sstaff directly or indirectly to givestatements to the press, radio, ortelevision, via paid advertisements orotherwise, designed to influence thecommission's judgment in the case. [Eff7/30/81; am and comp 10/26/98] (Auth: HRS§91-2) (Imp: HRS §91-2)

§§10-5-15 to 10-5-20 (Reserved).

SUBCHAPTER 2RULEMAKING PROCEDURES

§10-5-21 Rule change petitions, procedures. (a)Any person or agency may petition the commission forthe adoption, amendment or repeal of any rule. Thepetition shall set forth the text of any proposed ruleor amendment desired or specify the rule, the repeal ofwhich is desired and state concisely the nature ofpetitioner's interest in the subject matter and thereasons for seeking the change. No petition which doesnot conform to the requirements will be considered bythe commission.

(b) Petitions for rulemaking shall become mattersof public record upon filing. The commission shall,within thirty days following the filing of thepetition, either deny the petition in writing orinitiate public rulemaking procedures. No other publichearing, oral arguments, or other form of proceedingshall be held as a result of any such petition. Wherethe commission determines that the petition disclosessufficient reasons in support of the relief requestedto justify the institution of public rulemakingproceeding, the procedures to be followed shall be as

§10-5-22

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set forth in this chapter. Where the commissiondetermines that the petition does not disclosesufficient reasons to justify the institution of publicrulemaking procedures, or where the petition forrulemaking fails in material respect to comply with therequirements of these rules, the commission shall denythe petition and the petitioner will be so notified,together with the grounds for such denial. Theprovisions of this section shall not operate to preventthe commission, on its own motion, from acting on anymatter disclosed in any petition. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-6)

§10-5-22 Proposed rulemaking notice. (a) When,pursuant to a petition or upon its own motion, thecommission proposes to adopt, amend, or repeal a rule,the commission shall publish a notice of proposedrulemaking at least once in a newspaper of generalcirculation in the State. All rulemaking notices shallbe issued at least thirty days before the date set forpublic hearing.

(b) The proposed rulemaking notice shall include:(1) A statement of the topic of the proposed rule

adoption, amendment, or repeal or a generaldescription of the subjects involved; and

(2) A statement that a copy of the proposed ruleto be adopted, the proposed rule amendment,or the rule proposed to be repealed will bemailed to any interested person who requestsa copy, pays in advance for the copy and thepostage, together with a description of whereand how the requests may be made;

(3) A statement of when, where, and during whattimes the proposed rule to be adopted, theproposed rule amendment, or the rule proposedto be repealed may be viewed in person; and

(4) The date, time, and place where the publichearing will be held and where interestedpersons may be heard on the proposed ruleadoption, amendment, or repeal. The notice

§10-5-22

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shall be mailed to all persons or agencieswho have made timely written requests foradvance notice of the commission's rulemakingproceedings, and given at least oncestatewide.

(c) Copies of the proposed adoption, amendment,or repeal of a rule shall be sent at least thirty daysbefore the date set for public hearing as follows:

(1) Five copies to each district office;(2) Fifteen copies to the state library, main

branch, for distribution to selectedlibraries as suggested by the department;

(3) Two copies to each registered and recognizedhomestead association; and

(4) Five copies to the main office identified in§10-1-2(a)(1). [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-1) (Imp: HRS§91-2)

§10-5-23 Hearing conduct. (a) The publichearing shall be presided over by the chairman or, inthe absence of the chairman, by another memberdesignated by the commission. The hearing shall beconducted in such a way as to afford to interestedpersons a reasonable opportunity to be heard on mattersrelevant to the issues involved and to obtain a clearand orderly record. The presiding officer shall haveauthority to administer oaths or affirmations and totake all other actions necessary for the orderlyconduct of the hearing.

(b) Each such hearing shall be held at the timeand place set in the notice of hearing, but may at suchtime and place be continued by the chairman from day today or adjourned to a later date or to a differentplace without notice other than the announcementthereof at the hearing.

(c) At the commencement of the hearing, thepresiding officer shall read the notice of hearing andshall then outline briefly the procedure to befollowed. Evidence shall then be received with respect

§10-5-23

5-11

to the matters specified in the notice of hearing insuch order as the presiding officer shall prescribe.Persons testifying shall be limited to fifteen minutes.Whenever time permits, the presiding officer may allowadditional time upon request. After all persons whohave requested to appear before the commission hearinghave testified, any person whose request for additionaltime has been granted may present such additionalrelevant testimony.

(d) Submission of evidence shall include thefollowing:

(1) Before giving testimony, every witness shallstate his or her name, address, and anyrepresentative capacities in which thewitness serves and shall give otherinformation respecting appearance as thepresiding officer may request. The presidingofficer shall confine the evidence presentedto the questions before the hearing and mayreceive evidence whether or not the evidencewould be admissible in a court of law; and

(2) Every witness shall be subject to questioningby the members of the commission, butcross-examination by private persons shallnot be permitted unless expressly permittedby the presiding officer.

(e) All interested persons or agencies shall beafforded an opportunity to submit data, views orarguments which, in the opinion of the presidingofficer, are relevant to the matters specified in thenotice of the hearing. In addition, persons oragencies may also file with the commission signed,written protests, comments, or recommendations insupport of or in opposition to the proposed rulemaking.The period for filing written protest, comments, orrecommendations may be extended beyond the hearing dateby the presiding officer for good cause.

(f) Unless otherwise specifically ordered by thecommission or the presiding officer, testimony given atthe public hearing shall not be reported verbatim. Allsupporting written statements, maps, charts,tabulations or similar data offered in evidence at the

§10-5-23

5-12

hearing, and which are deemed by the presiding officerto be authentic and relevant, shall be received inevidence and made a part of the record. Unless thepresiding officer finds that the furnishing of copiesis impracticable, ten copies of the exhibits shall besubmitted. [Eff 7/30/81; am and comp 10/26/98] (Auth:HRS §91-2) (Imp: HRS §91-3)

§10-5-24 Commission action. The chairman orpresiding officer shall announce the date when itsdecision shall be made. The commission shall fullyconsider all relevant comments and material of recordbefore taking final action in a rulemaking proceeding.Upon adoption, amendment, or repeal of a rule, thecommission, if requested to do so by an interestedperson, shall issue a concise statement of theprincipal reasons for and against its determination.[Eff 7/30/81; am and comp 10/26/98] (Auth: HRS §91-2)(Imp: HRS §91-3)

§10-5-25 Emergency rulemaking. Subject to chapter91, HRS, and, notwithstanding the foregoing rules, ifthe commission finds that an imminent peril to publichealth, safety, or morals requires issuance, amendment,or repeal of a rule upon less than twenty days noticeof hearing, and states in writing its reason for suchfinding, it may proceed without prior notice or hearingupon such abbreviated notice and hearing as it findspracticable to adopt an emergency rule which will beeffective for a period not longer than one hundredtwenty days without renewal. [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-3)

§§10-5-26 to 10-5-30 (Reserved).

§10-5-31

SUBCHAPTER 3

5-13

CONTESTED CASE RULES

§10-5-31 Contested case hearing requests. (a)Any person or agency including the commission and thedepartment may request a contested case hearing andshall have the right and full opportunity to assert aclaim provided that the claim is based on a law or ruleover which the commission has jurisdiction.

(b) Such complaint shall be in writing, signed bythe complainant and shall contain a short and simplestatement of the facts constituting the allegedviolation and the name and address of the allegedviolator.

(c) Upon receipt of the complaint, the departmentshall initiate an investigation of the matterscontained in the complaint. The complaint shall bepresented within a reasonable time to the commission,together with investigator's report and staffrecommendation and on the basis thereof the commissionshall determine whether proceedings shall be initiatedand the matter set for hearing.

(d) It is the policy of the commission not toinitiate proceedings where the matters complained ofinvolve a private controversy redressable in the courtsand where the public interest is not involved, or whereit is clear on the face of the complaint that there hasbeen no violation of the law or any rule of thecommission.

(e) If the commission orders the matter to be setfor hearing, a notice of hearing pursuant to HRSsection 91-9.5 shall be served upon the respondent.The respondent shall specifically admit or deny orexplain the charges filed against him or her and setforth any other matters constituting an avoidance oraffirmative defense. [Eff 7/30/81; comp 10/26/98](Auth: HRS §91-2)(Imp: HRS §§91-9, 91-9.5)

§10-5-32

5-14

§10-5-32 Decision to hold hearing, scheduling.(a) The commission shall hold a contested case hearingwhenever it finds that:

(1) Such a hearing is required by Chapter 91,HRS;

(2) There is a reason to believe that a law orrule of the commission has been violated;

(3) Such a hearing would be in the best interestof one or more of the beneficiaries of theact; and

(4) A proceeding by the commission would be inthe interest of the department.

(b) Whenever the commission determines that acontested case hearing should be held, the matter shallbe set for a hearing and a notice of hearing shall beserved upon all parties as required by HRS section91-9.5. [Eff 7/30/81; am and comp 10/26/98] (Auth:HRS §91-2) (Imp: HRS §§91-9, 91-9.5, 91-10)

§10-5-33 Hearing officer. (a) No hearingofficer shall be assigned to serve in any proceedingwho:

(1) Has any pecuniary interest in any matter orbusiness involved in the proceeding;

(2) Is related within the third degree by bloodor marriage to any party to the proceeding;

(3) Has participated in the investigationproceeding, the institution of the proceedingor in a determination that it should beinstituted or in the preparation of thenotice of hearing or order to show cause orin the development of the evidence to beintroduced therein; and

(4) A hearing officer assigned by the commissionor the chairman to hold a hearing and to makea recommended decision shall withdraw from aproceeding at any time the hearing officer isdeemed disqualified; or the hearing officermay be withdrawn by the commission orchairman for good cause found after timely

§10-5-33

5-15

affidavits alleging personal bias or otherdisqualifications have been filed and thematter has been heard by the commission orchairman.

(b) The hearing officer shall conduct theproceeding in a fair and impartial manner and, exceptto the extent required for the disposition of ex partematters as authorized by law, no hearing officer shallconsult any person or party on any fact in issue unlessupon notice and opportunity for all parties toparticipate.

(c) A hearing officer designated by thecommission or chairman to hold a hearing and to make arecommended decision in a proceeding shall have thefollowing powers:

(1) To hold hearings;(2) To administer oaths and affirmations;(3) To examine witnesses;(4) To issue subpoenas;(5) To rule upon offers of proof and to receive

relevant evidence;(6) To regulate the course and conduct of the

hearing;(7) To hold conferences before or during the

hearing, for the settlement or simplificationof issues;

(8) To rule on motions and to dispose ofprocedural request or similar matters;

(9) Within the hearing officer's discretion, orupon the direction of the commission, tocertify any question to the commission forits consideration and disposition;

(10) To make a recommended decision to thecommission in writing to be acted upon by thecommission; and

(11) To dispose of any other matter that normallyand properly arises in the course of theproceedings.

(d) In the case of the absence of the hearingofficer or in the hearing officer's inability to act,the powers and duties to be performed under thissection in connection with the proceeding may, without

§10-5-33

5-16

abatement of the proceeding, be assigned to anotherhearing officer duly designated by the commission orchairman, unless otherwise ordered. [Eff 7/30/81; amand comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS §§91-9, 91-9.5, 91-10)

§10-5-34 Settlements. (a) In order to encourageand to provide opportunities for settlement ofdisputes, there may be held at any time before orduring contested case hearings, such informalconferences among the parties for the purpose ofsubmission and consideration of facts, arguments,proposal of adjustment or offers of settlement, as thenature of the proceeding, time and public interest maypermit.

(b) Any party may submit offers of settlement orproposals of adjustment to any other party or requestconferences for such purposes at any time.

(c) Rejected offers or proposals shall beprivileged and shall not be admissible in evidenceagainst any counsel or person claiming that privilege.

(d) Whenever a complaint has been satisfied or asettlement has been reached by all parties, a signedand verified statement to that effect, stating when andhow the complaint has been satisfied or the settlementhas been reached shall be filed with the commission andserved upon all parties of record. Such statement maybe by letter. Satisfied complaints may be dismissed atthe discretion of the commission with due regard to theinterests of the public. [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-9)

§10-5-35 Service of papers. (a) The commissionshall cause to be served all orders, notices, and otherpapers issued by the commission, together with anyother papers required by law to be served by thecommission. Every other paper shall be served by thefiling party.

§10-5-36

5-17

(b) All papers served by either the commission orany party shall be served upon all counsel of record atthe time of such filing and upon all parties notrepresented by counsel or upon their designated agents,in fact or by law. Any counsel entering an appearancesubsequent to the initiation of the proceeding shall sonotify all other counsel then of record and all partiesnot represented by counsel.

(c) The final order, and any other paper requiredto be served by the commission upon a party, shall beserved upon such party or upon the representativeauthorized to receive service of such papers, and acopy shall be furnished to all agents designated infact or by law.

(d) Service upon parties shall be regarded ascomplete by mail when deposited in the United Statesmail properly stamped and addressed. [Eff 7/30/81;comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-9)

§10-5-36 Deposition. (a) Upon the applicationof a party to a proceeding, and for good andexceptional cause shown, the commission or hearingofficer may, at any time after the filing of thecomplaint or order to show cause, order the taking oftestimony by oral deposition or by deposition uponwritten interrogatories.

(b) Any party desiring to take the deposition ofa witness shall make application in writing to thecommission or hearing officer setting out the reasonswhy such deposition should be taken, the character ofthe deposition, the time when; the place where; and thename and post office address of the person before whomsuch deposition should be taken, the name and postoffice address of each witness, and the subject matterconcerning which the witness is expected to testify.If good and exceptional cause is shown, an ordercontaining such instructions will be made and servedupon the parties.

§10-5-36

5-18

(c) Upon application granted, such deposition maybe taken before a person having power to administeroaths other than the person designated in the notice,provided reasonable written notice of such change isgiven to all parties. Each witness so testifying shallbe duly sworn and the adverse party shall have theright to cross-examine such witness and the answersthereto shall be reduced to writing, and in thepresence of the officer taking the deposition read tothe witness and subscribed by the witness and certifiedin the usual form by said officer. Thereafter theofficer shall forward said deposition with two copiesthereof, in an envelope under seal, endorsed with thetitle of the case and addressed to the office of thecommission.

(d) A deposition ordered and taken in accord withthe provisions of this section may be used in aproceeding if the commission or the hearing officerdesignated to preside at the hearing finds that theevidence is otherwise admissible and that:

(1) The witness is dead; or(2) The witness is outside the State of Hawaii,

unless it appears that the absence of thewitness is procured by the party, offeringthe deposition; or

(3) The witness is unable to attend or testifybecause of age, sickness, infirmity orimprisonment; or

(4) The party offering the deposition hasendeavored and has been unable to procure theattendance of the witness by subpoena; or

(5) In any event, upon application and noticethat such exceptional circumstances exist asto make it desirable, in the interest ofjustice and with due regard to the importanceof presenting the testimony orally before thecommission or hearing officer, to allow thedeposition to be used.

(e) If any part of the deposition is put inevidence by the offering party, any other party mayrequire the production of the remainder of any otherportions of the deposition. [Eff 7/30/81; comp

§10-5-39

5-19

10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-2)

§10-5-37 Subpoenas. Subpoenas requiring theattendance of a witness, or the production ofdocumentary evidence from any place within the State,at any designated place of hearing, may be issued bythe chairman, any member of the commission, or hearingofficer designated to preside at the hearing.Application therefor may be made either to thecommission or hearing officer.

(b) Application for subpoenas for the productionof documentary evidence shall be made in writing to thecommission or hearing officer designated to preside atthe hearing. The application must be reasonable inscope and must specify as precisely as possible thedocuments desired, and must show their generalrelevancy. The application shall be verified by oathor affirmation. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-10)(Imp: HRS §91-2)

§10-5-38 Witnesses, fees. Witnesses summonedshall be paid the same fees and mileage as are paidwitnesses in courts of the State and the fees andmileage shall be paid by the party at whose instancethe witnesses appear. Fees for depositions shall bepaid by the party at whose instance the depositions aretaken. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS§91-2) (Imp: HRS §92-16)

§10-5-39 Hearings. (a) All contested casesshall be heard either before the commission or ahearing officer duly designated by the commission orchairman.

(b) All contested case hearings shall be held onthe island where the affected lessee or applicantresides.

§10-5-39

5-20

(c) The record of the hearing shall be compiledin conformance with section 91-9, HRS. The commissionshall make provision for stenographic recording of thetestimony, but it shall not be necessary to transcribethe recording unless requested for the purposes ofrehearing or court review. Any person shall beentitled to a copy of the record of a hearing providedthat the cost of the preparation of the record is paidfor.

(d) Each party or the party's representativeshall have the following rights:

(1) To examine all documents; documents which aparty does not have an opportunity to seeshall not be made part of the hearing recordand shall not be used in making a decision inthe case;

(2) To bring witnesses to testify for the party;(3) To establish all relevant facts and

circumstances through verbal testimony ordocuments;

(4) To advance any arguments without undueinterference;

(5) To question or refute any testimony orevidence presented by another party includingthe opportunity to cross-examine witnessescalled by another party; and

(6) To be notified either before or during thehearing if the commission or hearing officerplans to consider facts not in evidence.[Eff 7/30/81; am and comp 10/26/98] (Auth:HRS §91-2) (Imp: HRS §91-9)

§10-5-40 Contested case hearing procedures. (a)The following procedures shall be followed inconducting a contested case hearing before thecommission or its duly appointed hearing officer:

(1) The chairman or hearing officer shall convenethe hearing and shall read the complaint andshall inquire whether there are anyamendments to be made;

§10-5-40

5-21

(2) The complainant or petitioner and therespondent shall have the opportunity tochallenge for bias any member of thecommission or hearing officer; and

(3) Before presentation of the case, the partiesshall have the opportunity to make openingstatements. The usual order of making suchstatements shall be as follows:(A) Opening statement by the complainant or

petitioner; and(B) Opening statement by the respondent,

unless the respondent reserves theopportunity to make an opening statementuntil after the witnesses for thepetitioner have been presented; or

(4) Opening statements may be waived by a party.(b) Witnesses shall testify in the following

order:(1) Witnesses for complainant or petitioner;(2) Witnesses for the respondent;(3) Witnesses for the complainant or petitioner

in rebuttal;(4) Witnesses for the respondent in rebuttal; and(5) Additional witnesses as the commission or the

hearing officer may deem necessary.(c) Witnesses shall be examined in the following

order:(1) Direct examination by the party calling the

witness;(2) Cross-examination by the other party;(3) Redirect examination by the party calling the

witness;(4) Re-cross examination by the other party; and(5) Examination by the commission or hearing

officer.(d) After the evidence has been presented, the

commission or hearing officer shall give the partiesopportunity to summarize. The usual order of finalargument shall be as follows:

(1) Final argument by the complainant orpetitioner;

(2) Final argument by the respondent;

§10-5-40

5-22

(3) Rebuttal argument by the complainant orpetitioner.

(e) Rebuttal argument shall be limited tocountering whatever may have been said by the otherparty during final argument.

(f) A reasonable time limit may be imposed by thecommission or hearing officer for the final argument.

(g) Final arguments may be waived by a party. (h) At the close of the presentation of evidence

before the hearing officer in all contested cases, orwithin a reasonable time thereafter, the hearingofficer may permit the filing of proposed findings andconclusions together with the reasons therefor. Theproposal shall be in writing and shall be furnished toall parties; ten copies including the signed original,shall be filed with the commission.

(i) Oral argument may be allowed at thediscretion of a hearing officer.

(j) Within a reasonable time, after finalarguments have been completed and all requestedmemoranda submitted, the commission or hearing officershall bring the matter to a close.

(k) At any time before the filing of arecommended decision, the hearing officer, for goodcause shown, may reopen the case for the reception offurther evidence. [Eff 7/30/81; am and comp10/26/98] (Auth: HRS §91-2)(Imp: HRS §91-9)

§10-5-41 Recommended decision of hearing officer.(a) Except when the individual shall becomeunavailable to the commission, the recommended decisionshall be made by the hearing officer who presided atthe hearing. All findings, conclusions and ordersrecommended by the hearing officer shall be based uponthe whole record and supported by the reliable,probative and substantial evidence, including facts ofwhich he may take official notice.

(b) The hearing officer shall as soon aspractical and not later than thirty days after theclose of the reception of evidence make and file a

§10-5-42

5-23

recommended decision which shall become a part of therecord and include separate findings of fact andconclusions of law as well as reasons or basis thereforupon all the material, issues of fact, law ordiscretion presented on the record. If any party tothe proceeding has been permitted to file proposedfindings of fact, the hearing officer shall incorporatein the recommended decision a ruling upon each proposedfinding so presented.

(c) A copy of the hearing officer's recommendeddecision shall be served upon each party or the counselof record.

(d) Any party may within fifteen days afterreceipt of a copy of the hearing officer's recommendeddecision file with the commission exceptions theretoand shall specify the portions of the record andauthorities relied on to sustain each point. Ninecopies of the exceptions and request for review shallbe filed with the commission and shall thereupon becomepart of the record. In addition, a copy of suchexceptions and request for review shall forthwith beserved upon the hearing officer and upon each of theparties and counsel who were served with a copy of thehearing officer's recommended decision. [Eff 7/30/81;am and comp 10/26/98] (Auth: HRS §91-2) (Imp: HRS§91-2)

§10-5-42 Commission decision. (a) Upon filingof exceptions by a party adversely affected by therecommended decision, the commission shall grant suchparty an opportunity to present argument and thecommission shall personally consider the whole recordor such portions thereof as may be cited by such party.

(b) If no exceptions or requests for review arefiled within the time specified, the recommendeddecision of the hearing officer shall become final uponapproval of the commission, unless the commission onits own motion orders further proceedings to be held.

(c) Where the hearing is held before thecommission or where exceptions to the recommended

§10-5-42

5-24

decision and a request for review have been filed withthe commission, the commission will consider the wholerecord, including, where applicable, the recommendeddecision of the hearing officer and exceptions thereto,and will resolve all questions of fact by what it deemsto be the greater weight of evidence thereon and make afinal decision stating the reasons or basis thereforand enter an appropriate order.

(d) The commission may entertain a writtenpetition to reconsider or re-hear its final order,decision or ruling. The petition shall be determinedwith reasonable expedition so that the aggrieved partymay have timely opportunity to appeal. Denial of suchpetition shall be in writing with the reasons statedtherefor.

(e) Petition to reconsider or re-hear any finalorder, decision or ruling of the commission shall befiled not later than ten days after a person is servedwith a certified copy of the final decision and orderof the commission. [Eff 7/30/81; am and comp10/26/98](Auth: HRS §91-2) (Imp: HRS §91-14)

§10-5-43 Court appeal. Any appeal to court forjudicial review of a final decision of the commissionmust be made within thirty days after a person isserved with a certified copy of the final decision andorder of the commission. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-2) (Imp: HRS §91-14)

§§10-5-44 to 10-5-50 (Reserved).

SUBCHAPTER 4PETITION FOR DECLARATORY RULING

§10-5-54

5-25

§10-5-51 Form and content. On petition of aninterested person, the commission may issue adeclaratory order as to the applicability of anystatutory authority involved, and include a completestatement of the facts and the reasons or groundsprompting the petition, together with full disclosureof petitioner's interest. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-8) (Imp: HRS §§91-7, 91-8)

§10-5-52 Additional data, supporting authority.Upon receipt of the petition, the commission mayrequire the petitioner to file additional data or amemorandum of legal authorities in support of theposition taken by the petitioner. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-8) (Imp: HRS §91-8)

§10-5-53 Dismissal. Without notice or hearing,the commission may dismiss a petition for declaratoryruling which fails in material respect to comply withthe requirements of this chapter. [Eff 7/30/81; comp10/26/98] (Auth: HRS §91-8) (Imp: HRS §91-8)

§10-5-54 Hearing request. (a) Although in theusual course of disposition of a petition for adeclaratory ruling no formal hearing will be granted tothe petitioner or to a party in interest, thecommission may order such proceeding set down forhearing. Any petitioner or party in interest whodesires a hearing on a petition for declaratory ruling,shall set forth in detail:

(1) The reasons why the matters alleged in thepetition, together with supporting affidavitsor other written evidence and briefs ormemoranda of legal authorities, will not

§10-5-54

permit the fair and expeditious dispositionof the petition; and

5-26

(2) To the extent that such request for hearingis dependent upon factual assertion,affidavits establishing such fact shallaccompany such request.

(b) In the event a hearing is ordered by thecommission, HRS, section 91-9, and sections 10-5-31through 10-5-43 of this chapter shall govern theproceedings. [Eff 7/30/81; am and comp 10/26/98](Auth: HRS §91-8) (Imp: HRS §91-8)

§10-5-55 Declaratory motion on commission's ownmotion. Notwithstanding the other provisions of thischapter, the commission may, on its own motion or uponrequest but without notice of hearing, issue adeclaratory order to terminate a controversy or toremove uncertainty. [Eff 7/30/81; comp 10/26/98](Auth: HRS §91-8) (Imp: HRS §91-8)

6.1-1

§10-6.1-2

HAWAII ADMINISTRATIVE RULES

TITLE 10

DEPARTMENT OF HAWAIIAN HOME LANDS

CHAPTER 6.1

NATIVE HAWAIIAN DEVELOPMENT PROGRAM

§10-6.1-1 Purpose§10-6.1-2 Native Hawaiian development program

structure§10-6.1-3 Native Hawaiian development program plan

content§10-6.1-4 Procedures for obtaining assistance§10-6.1-5 Eligibility§10-6.1-6 Funding§10-6.1-7 Reporting

§10-6.1-1 Purpose. The purpose of the NativeHawaiian development program is to improve the generalwelfare and condition of native Hawaiians througheducational, economic, political, social, cultural andother programs. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §222)

§10-6.1-2 Native Hawaiian development programstructure. (a) The native Hawaiian developmentprogram shall have a hierarchical structure of goals,objectives, and action plans. The primary goal of thenative Hawaiian development program shall be toincrease the self-sufficiency and self-determination ofnative Hawaiian individuals and native Hawaiiancommunities. Additional related goals may also beestablished by the commission. Objectives shall beestablished delineating a comprehensive strategy forreaching the goals. The department shall develop

§10-6.1-2

6.1-2

action plans to achieve the objectives. Each actionplan may have several implementing mechanisms such asgrants, scholarships, loans, technical assistance, andpartnerships.

(b) The goals, objectives, and action plansoffered during a given fiscal year shall be detailed ina native Hawaiian development program plan. The nativeHawaiian development program plan shall cover twofiscal years and shall be approved by the commissionbefore the beginning of each fiscal biennium. Thedepartment shall seek community input and participationin its development of the native Hawaiian developmentprogram plan. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §222)

§10-6.1-3 Native Hawaiian development programplan content. (a) The native Hawaiian developmentprogram plan shall specify the goals, objectives,action plans, and implementing mechanisms applicableduring the fiscal biennium covered by the plan.

(b) The department may utilize the followingresources to establish the goals, objectives, actionplans, and implementing mechanisms contained within thenative Hawaiian development program plan:

(1) An assessment of the needs of the nativeHawaiian community based on a review ofsocial and economic data on native Hawaiiansand assessments provided by native Hawaiiancommunity groups;

(2) A written questionnaire survey of Hawaiianagencies, organizations, and community groupsto obtain their opinion of the needs of thenative Hawaiian community and theirrecommendations for objectives, programs, andthe type of assistance to meet such needs;

(3) An assessment of the feasibility andpracticality of offering a given program ortype of assistance; and

§10-6.1-5

6.1-3

(4) An assessment of the progress made towardpreviously established goals, objectives,and programs.

(c) The native Hawaiian development program planshall specify for each action plan:

(1) A statement of the objectives;(2) A general description of the implementing

mechanisms; and(3) Where applicable, eligibility requirements,

application procedures, and selectioncriteria. [Eff and comp 10/26/98] (Auth: HHCAct §222) (Imp: HHC Act §222)

§10-6.1-4 Procedures for obtaining assistance.The department shall provide standard forms forrequesting financial assistance. The standard formsshall be designed for the specific type of assistancebeing requested. [Eff and comp 10/26/98] (Auth: HHC Act§222) (Imp: HHC Act §222)

§10-6.1-5 Eligibility. (a) Each type ofassistance offered may have unique eligibilityrequirements that shall be specified in the nativeHawaiian development program plan. Common to all typesof assistance shall be the minimum requirement that thebeneficiaries of the assistance must be nativeHawaiian.

(b) Additional basic eligibility requirements forspecific types of assistance are:

(1) Grants shall only be awarded to publicagencies and non-profit organizationsrecognized as tax-exempt by the U.S. InternalRevenue Service. Organizations who arerecognized by the State as non-profit butwhose operations do not require recognitionfrom the U.S. Internal Revenue Service mayalso be eligible to receive a grant; and

§10-6.1-5

6.1-4

(2) Technical assistance and partnerships shallbe available to any type of organization orpublic agency provided that the purpose ofthe assistance is to benefit nativeHawaiians. [Eff and comp 10/26/98] (Auth: HHCAct §222)(Imp: HHC Act §222)

§10-6.1-6 Funding. The native Hawaiiandevelopment program shall be funded by the nativeHawaiian rehabilitation fund, and federal, state,county, and private sources. [Eff and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §222)

§10-6.1-7 Reporting. (a) The department shallsubmit a report on the native Hawaiian developmentprogram to the commission. The report shall cover theactivities of the previous fiscal year, and include:

(1) A description of the plans of actionimplemented;

(2) A summary of specific projects,organizations, and individuals assisted;

(3) An assessment of the native Hawaiiandevelopment program;

(4) Recommendations for improvement ormodification to the goals, objectives, actionplans, implementing mechanisms, oroperational procedures; and

(5) A summary of the assistance provided by typeof assistance.

(b) The report shall be submitted no later thanDecember 31 of each year. [Eff and comp 10/26/98](Auth: HHC Act §222) (Imp: HHC Act §222)