HAR §13-300-38. Council determinations

(a) When determining appropriate treatment of a previously identified Native Hawaiian burial site, the council shall: (1) Fully consider all provisions of the burial treatment plan developed according to section 13-300-33; (2) Weigh all other written and oral evidence and assess the credibility of witnesses; (3) Carefully consider and apply the preservation criteria stated in section 6E- 43, HRS and developed in section 13-300-36(a); (4) Fully consider any other relevant factors concerning appropriate treatment including those stated in section 13-300-36(b); and (5) Render a determination to preserve in place or relocate and make any related recommendations within forty-five days of referral by the department, unless extended by agreement between the applicant and the department. (b) Within ten business days, the department shall notify the applicant in writing of the council determination and state: (1) Any recommendations relating to burial site treatment accepted by the department; (2) That an applicant who disagrees with the determination has the option to request reconsideration or appeal the decision as a contested case; and (3) That should the applicant accept the council determination as final, the burial site component of a preservation or archaeological data recovery plan, whichever is applicable, is required to be developed and submitted to the department for approval within ninety days. (c) An applicant may request reconsideration of a council determination upon submittal of a written request within ten business days following receipt of written notice of the council determination from the department, provided that: (1) A request for reconsideration shall be granted only on the basis of newly discovered information not available at the time the council determined burial site treatment; (2) The council shall have sole discretion to grant or deny a request for reconsideration; and (3) The department, after consultation and approval by the council chairperson, shall notify the applicant of the council's decision regarding reconsideration. (d) An applicant may appeal a council determination in accordance with section 6E-43, HRS, and subchapter 5. (e) Where a council determination to preserve in place is accepted as final, the applicant shall develop the burial site component of the preservation plan consisting of the requirements of section 13-300-33(b)(3)(A) and any accepted recommendations relating to burial site treatment. Within ninety days of the council determination, the department shall approve the plan following consultation with the applicant, any known lineal descendants, the appropriate council, and any appropriate Hawaiian organizations. (f) Where a council determination to relocate is accepted as final, the applicant shall develop the burial site component of the archaeological data recovery plan, consisting of the requirements of section 13-300-33(b)(3)(B), and any accepted recommendations relating to burial site treatment. Within ninety days of the council determination, the department shall approve the plan following consultation with the applicant, any known lineal descendants, the appropriate council, and any appropriate Hawaiian organizations. (g) In order to provide perpetual protection for previously identified Native Hawaiian burial sites, all council determinations to preserve in place or relocate shall be recorded in the bureau of conveyances by the department following acceptance by the applicant, or upon completion of reconsideration or appeal. Any affected landowner may enter into an in situ burial or a reburial agreement with the State. [Eff SEP 28 1996 ] (Auth: HRS §§6E-43, 6E-43.5, 91-2) (Imp: HRS §§6E-43, 6E-43.5)