Report Title:

Burial Councils; OHA; Conveyance Tax Increase; Burial Council Fund

Description:

Transfers burial council responsibilities from DLNR to OHA. Provides funding for administration of the burial council through a two cents per $100 conveyance tax increase. Establishes the burial council fund under the office of Hawaiian affairs.

THE SENATE

S.B. NO.

1074

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to burial councils.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the full recognition and protection of the unique cultural values of the multi-ethnic peoples of Hawaii are directly affected by historic preservation decisions. Of particular sensitivity to each group is the impact and response of governmental decisions on the cultural values related to the treatment and protection of burials. Native Hawaiian traditional prehistoric and unmarked burials are especially vulnerable and often not afforded the protection of law which assures dignity and freedom from unnecessary disturbance. Serving as the principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians, the office of Hawaiian affairs is therefore better suited to oversee the affairs of the burial council.

The purpose of this Act is to transfer burial council responsibilities from the department of land and natural resources to the office of Hawaiian affairs.

Additionally, this Act augments the dedicated funding source for the office of Hawaiian affairs to meet the added administrative costs of the burial council under its jurisdiction. This Act increases the conveyance tax from ten cents to twelve cents per $100, the increase in proceeds from which are directed to a newly created burial council fund to meet these costs.

SECTION 2. Chapter 10, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§10- Island burial councils; creation; appointment; composition; duties. (a) The office shall establish island burial councils for Hawaii, Maui/Lanai, Molokai, Oahu, and Kauai/Niihau, to implement section 6E-43.

(b) Appointment of members to the councils shall be made by the governor, in accordance with section 26-34, from a list provided by the office. The office shall develop the list in consultation with appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawai`i Nei. The membership of each council shall include at least one representative from each geographic region of the island as well as representatives of development and large property owner interests. Regional representatives shall be selected from the Hawaiian community on the basis of their understanding of the culture, history, burial beliefs, customs, and practices of native Hawaiians. The councils shall have a minimum of nine and a maximum of fifteen members, and have a ratio of not more than three to one and no less than two to one in favor of regional representatives.

(c) The office, in consultation with the councils, representatives of development and large property owner interests, and appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawai`i Nei, shall adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section. The council members shall serve without compensation, but shall be reimbursed for necessary expenses incurred during the performance of their duties. The councils shall be a part of the office for administrative purposes.

(d) The councils shall hold meetings and acquire information as they deem necessary and shall communicate their findings and recommendations to the office. Notwithstanding section 92-3, whenever the location and description of burial sites are under consideration, the councils may hold closed meetings. Concurrence of a majority of the members present at a meeting shall be necessary to make any action of a council valid.

(e) Records of the Department of land and natural resources relating to the location and description of historic sites, including burial sites, if deemed sensitive by a council or the Hawaii historic places review board, shall be confidential.

(f) The councils shall:

(1) Determine the preservation or relocation of previously identified native Hawaiian burial sites;

(2) Assist the department of land and natural resources in the inventory and identification of native Hawaiian burial sites;

(3) Make recommendations regarding appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites;

(4) Elect a chairperson for a four-year term who shall serve for not more than two consecutive terms; and

(5) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of remains.

§10- Burial council special fund. (a) There is established a burial council special fund to assist burial councils established pursuant to §10-   in the performance of their duties.

(b) The following may be deposited into the burial council special fund: appropriations made by the legislature, private contributions, repayment of loans, interest, other returns, and moneys from other sources."

SECTION 3. Section 247-2, Hawaii Revised Statutes, is amended to read as follows:

"§247-2 Basis and rate of tax. The tax imposed by section 247-1 shall be based on the actual and full consideration (whether cash or otherwise, including any promise, act, forbearance, property interest, value, gain, advantage, benefit, or profit) paid or to be paid, which shall include any liens or encumbrances thereon at the time of sale, lease, sublease, assignment, transfer, or conveyance, and shall be at the rate of [10] 12 cents per $100 of such actual and full consideration; provided that in the case of a lease or sublease, this chapter shall apply only to a lease or sublease whose full unexpired term is for a period of five years or more, and in those cases, including (where appropriate) those cases where the lease has been extended or amended, the tax in this chapter shall be based on the cash value of the lease rentals discounted to present day value and capitalized at the rate of six per cent, plus the actual and full consideration paid or to be paid for any and all improvements, if any, which shall include on-site as well as offsite improvements, applicable to the leased premises; and provided further that the tax imposed for each transaction shall be not less than $1."

SECTION 4. Section 247-7, Hawaii Revised Statutes, is amended to read as follows:

"§247-7 Disposition of taxes. (a) All taxes collected under this chapter shall be paid into the state treasury to the credit of the general fund of the State, to be used and expended for the purposes for which the general fund was created and exists by law; provided that of the taxes collected each fiscal year, twenty-five per cent shall be paid into the rental housing trust fund established by section 201G-432 and twenty-five per cent shall be paid into the natural area reserve fund established by section 195-9; provided that the funds paid into the natural area reserve fund shall be annually disbursed by the department of land and natural resources after joint consultation with the forest stewardship committee and the natural area reserves system commission in the following priority:

(1) To natural area partnership and forest stewardship programs;

(2) Projects undertaken in accordance with watershed management plans pursuant to section 171-58 or watershed management plans negotiated with private landowners; and

(3) The youth conservation corps established under chapter 193.

(b) Notwithstanding subsection (a), 16.67 per cent of all taxes collected under this chapter shall be paid into the burial council fund established by section 10- ."

SECTION 5. Section 6E-43.5, Hawaii Revised Statutes, is repealed.

["§6E-43.5 Island burial councils; creation; appointment; composition; duties. (a) The department shall establish island burial councils for Hawaii, Maui/Lanai, Molokai, Oahu, and Kauai/Niihau, to implement section 6E-43.

(b) Appointment of members to the councils shall be made by the governor, in accordance with section 26-34, from a list provided by the department, provided that a minimum of twenty per cent of the regional representatives shall be appointed from a list of at least nine candidates provided by the office of Hawaiian affairs. The department shall develop the list in consultation with appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawai`i Nei. The membership of each council shall include at least one representative from each geographic region of the island as well as representatives of development and large property owner interests. Regional representatives shall be selected from the Hawaiian community on the basis of their understanding of the culture, history, burial beliefs, customs, and practices of native Hawaiians. The councils shall have a minimum of nine and a maximum of fifteen members, and have a ratio of not more than three to one and no less than two to one in favor of regional representatives.

(c) The department, in consultation with the councils, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawai`i Nei, shall adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section. The council members shall serve without compensation, but shall be reimbursed for necessary expenses incurred during the performance of their duties. The councils shall be a part of the department for administrative purposes.

(d) The councils shall hold meetings and acquire information as they deem necessary and shall communicate their findings and recommendations to the department. Notwithstanding section 92-3, whenever the location and description of burial sites are under consideration, the councils may hold closed meetings. Concurrence of a majority of the members present at a meeting shall be necessary to make any action of a council valid.

(e) Department records relating to the location and description of historic sites, including burial sites, if deemed sensitive by a council or the Hawaii historic places review board, shall be confidential.

(f) The councils shall:

(1) Determine the preservation or relocation of previously identified native Hawaiian burial sites;

(2) Assist the department in the inventory and identification of native Hawaiian burial sites;

(3) Make recommendations regarding appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites;

(4) Elect a chairperson for a four-year term who shall serve for not more than two consecutive terms; and

(5) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of remains."]

SECTION 6. All rules adopted by the department of land and natural resources or an island burial council for any burial council duties or policies shall remain in force and effect, and may be enforced by the office of Hawaiian affairs and the burial council until such time as they are repealed by the adopting agency and new rules are adopted by the office of Hawaiian affairs or an island burial council pursuant to chapter 91.

SECTION 7. All rights, powers, functions, and duties of all island burial councils are transferred from the department of land and natural resources to the office of Hawaiian affairs.

All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.

No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.

An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.

If an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect upon its approval.

INTRODUCED BY:

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