HAR §13-300-39. Department determinations

(a) When determining appropriate treatment of a previously identified non Native Hawaiian burial site, the department shall: (1) Fully consider all provisions of the burial treatment plan developed according to section 13-300-34; (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 13- 300-37(a); (4) Fully consider any other relevant factors concerning appropriate treatment including those stated in section 13-300-37(b); and (5) Render a determination to preserve in place or relocate and make any related recommendations within thirty days of submittal of an acceptable burial treatment plan, unless extended by agreement between the applicant and the department. (b) Within ten business days, the department shall notify the applicant in writing of its determination and state: (1) Any recommendations relating to burial site treatment; (2) That the applicant has the option, should it disagree with the determination, to request reconsideration; and (3) That should the applicant accept the 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 department determination upon submittal of a written request within ten business days following receipt of written notice of the decision 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 department determined burial site treatment; (2) The department shall have sole discretion to grant or deny a request for reconsideration; (3) The department shall notify the applicant of it's decision regarding reconsideration; and (d) Where a department 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 13-300-34(b)(3)(A) and any accepted recommendations relating to burial site treatment. Within ninety days of its determination, the department shall approve the plan following consultation with the applicant, any known lineal descendants, and any appropriate ethnic organizations. (e) Where a department 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 13-300-34(b)(3)(B), and any accepted recommendations relating to burial site treatment. Within ninety days of its determination, the department shall approve the plan following consultation with the applicant, any known lineal descendants, and any appropriate ethnic organizations. (f) In order to provide perpetual protection for previously identified non Native Hawaiian burial sites, all department 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-43.5, 91-2) (Imp: HRS §6E-43)