[Federal Register Volume 64, Number 76 (Wednesday, April 21, 1999)]
[Rules and Regulations]
[Pages 19480-19483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9958]
[[Page 19480]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC66
Kaloko-Honokohau National Historical Park, Hawaii; Public Nudity
AGENCY: National Park Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Park Service (NPS) is issuing this final rule to
prohibit public nudity within the boundaries of Kaloko-Honokohau
National Historical Park, Hawaii. Public nudity is in conflict with the
enabling legislation of the park and the traditional values of native
Hawaiian culture, which the park was created to perpetuate and
preserve.
EFFECTIVE DATE: This rule becomes effective on May 21, 1999.
FOR FURTHER INFORMATION CONTACT: Bryan Harry, Superintendent, National
Park Service, Pacific Islands Support Office, 300 Ala Moana Blvd.,
Suite 6-226, P.O. Box 50165, Honolulu, Hawaii 96850. Telephone 808-541-
2693.
SUPPLEMENTARY INFORMATION:
Background
Public Law 95-625 (16 U.S.C. 396d) established Kaloko-Honokohau
National Historical Park on November 10, 1978 ``to provide a center for
the preservation, interpretation and perpetuation of traditional native
Hawaiian activities and culture, and to demonstrate historic land use
patterns as well as to provide needed resources for the education,
enjoyment and appreciation of such traditional native Hawaiian
activities and culture by local residents and visitors * * *'' Public
nudity, an activity that can be construed as contemptuous and insulting
in traditional native Hawaiian culture, is in conflict with the above
stated purpose for which this park was established. Continued use of
the park in this manner derogates resources that are used traditionally
and creates a condition that is in conflict with related traditional
native Hawaiian practices.
In traditional Hawaiian culture, public nudity had strong social
connotations. The following excerpts, pertaining to nudity, document
the traditional viewpoint of Hawaiians. Nudity and public display of
genitals was very strictly regulated within a defined traditional
social context.
Mourning: * * * displaying genitals was neither common nor
approved, Mrs. Pukui explains. Such actions were excusable only because
the mourner was considered pupule (crazy) from grief. (Kamakau 1919-
20:2-45; Campbell 1967:101; Pukui, Haertig, and Lee, 1972 Vol. I:
124,133; 1972 Vol. II:183; Valeri 1985:261, 308).
Sorcery: As nudity is excused during mourning, nudity in the
ceremony of anewanewa, was excused due to fear of sorcery. These two
circumstances were probably the only time Hawaiians of both sexes were
ever nude in public. Exposure of the genitals was not approved. (Pukui,
Haertig, and Lee, 1972:124).
Nudity, general: Hawaiian tradition, for those following the kapu
exposing the buttocks (hoopohopoho) was a gesture of complete contempt
* * * and a grave insult to the beholder and for this reason even the
slit-in-the-back hospital gown thus becomes a threat to ordinary
courtesy. (Pukui, Haertig, and Lee, 1972:91).
Today, the reaction of Hawaiian cultural experts to public nudity
echoes the past pre-missionary view towards nakedness (personal
communication with Pat Bacon, who is Mary Kawena Pukui's daughter).
Specifically, she was asked as to what circumstances in the Hawaiian
culture would nudity be acceptable. Ms. Bacon stated that
traditionally, children were allowed to go naked until they were about
10 years old, and that adult, female or male, nudity was not
acceptable, and that men were nude only for rituals.
The park initially attempted to encourage voluntary compliance to
prohibit public nudity. When this failed, the park enacted a temporary
restriction of public nudity through the Superintendent's Compendium
(36 CFR 1.5(a)(2)). This temporary prohibition is currently in place.
A proposed rule was published in the Federal Register April 20,
1998 (63 FR 19436). The public comment period for the proposed rule was
open for 60 days.
Summary of Comments
We received a total of 1,355 letters and five petitions with
comments on the proposed rule during the public comment period ending
June 19, 1998. We have carefully considered all comments received. The
legitimate concerns of both Hawaiian residents and of individuals from
areas outside Hawaii were given consideration in the review process. In
addition, we completed a critical review of the content and format of
the final regulation. A summary of comments and our response to these
comments follows.
A total of 468 letters opposed the proposed rule to ban public
nudity at Kaloko-Honokohau. Of the 468 letters opposing the proposed
rule, 47 were from the State of Hawaii and 375 were from out-of-state.
Twenty-eight of the 47 Hawaii addresses were from the island of Hawaii
where this national historical park is located. The addresses of origin
of 46 of the letters opposing the rule could not be determined.
A total of 887 letters and the five petitions, containing a total
of 74 signatures, were in support of the proposed rule and against
public nudity at Kaloko-Honokohau. Of the 887 letters supporting the
rule, 849 had addresses from the State of Hawaii and eight had out-of-
state addresses. A total of 815 of the 887 Hawaii addresses were from
the island of Hawaii where this national historical park is located.
The addresses of origin of 30 letters could not be determined.
More than three hundred letters of comment opposing the rule
appeared to come from members of the Naturist Society and the American
Association for Nude Recreation (AANR). These letters contained
statements similar to those found in advisory alerts forwarded to
members by the Naturist Action Committee and contained in the AANR's
monthly publication, The Bulletin. Members were asked to submit
individual letters and were provided with the following suggested
points to make in those letters:
1. State that you are a federal taxpayer objecting to the proposed
rule against Nudity at Honokohau National Park.
2. You can also mention: That, as a federal taxpayer, you believe
national parks are for everyone; that, with the right planning, nude
recreation and other uses such as educational tours of the historic
park can be accommodated; and that the availability of nude beaches is
a factor in your decision-making about where you and your family choose
to spend vacation dollars.
A total of 317 letters opposing the proposed rule contained
references to the above points.
A total of 173 of the letters opposing the proposed rule disputed
or disagreed that public nudity could be construed as contemptuous and
insulting in traditional native Hawaiian culture and in conflict with
the stated purpose of the Kaloko-Honokohau National Historical Park.
These letters contained statements that native Hawaiians swam nude at
Honokohau beach for centuries and that nude use was not in conflict
with traditional practices by native Hawaiians, and that nude use of
Honokohau beach is not offensive to native Hawaiians.
Letters were received from members of Hawaii's Congressional
Delegation, a member of the State Legislature, the
[[Page 19481]]
Office of Hawaiian Affairs, the Kaloko-Honokohau Advisory Commission,
the Naturist Society, the Naturist Action Committee, the American
Association of Nude Recreation, the Western Sunbathing Association, and
organizations and foundations representing Native Hawaiians. The
content of these letters is summarized below.
Hawaii Senator Daniel K. Inouye stated he was pleased to learn
that a proposed rule had appeared in the April 20, 1998 Federal
Register to prohibit nude sunbathing at Kaloko-Honokohau National
Historical Park. Senator Inouye requested that the proposed rule be
approved and ratified. The letter closed with the following: ``I am
convinced that this rule is essential to the proper management of
the national park, and as a means of demonstrating federal
sensitivity to native Hawaiian cultural practices and historic
sites.''
Hawaii Senator Daniel Akaka expressed full support for the
proposed rule to prohibit public nudity within the boundaries of
Kaloko-Honokohau National Historical Park. The senator added that
``[p]ublic nudity was never intended to be permitted on park
premises when Congress considered the establishment of the park.''
U.S. Congresswoman Patsy T. Mink, within whose district the
national historical park is located, wrote, ``to urge the adoption
of the proposed rule to prohibit nude sunbathing at Kaloko-Honokohau
National Historical Park.'' Congresswoman Mink further stated that
as the sponsor of legislation to establish Kaloko-Honokohau as a
national park, ``it was not my intention nor the intention of
Congress to allow public nudity at this significant Native Hawaiian
site.''
State of Hawaii Representative Paul Whalen, whose legislative
district contains Kaloko-Honokohau, supported including the proposed
rule in the Code of Federal Regulations. Representative Whalen's
letter stated ``[g]iven the stated purpose of the park and the
native Hawaiian view of public nudity, nude sunbathing at the park
site is both inappropriate for such a learning center and culturally
insensitive.''
The Hawaii Island Trustee of the Office of Hawaiian Affairs
supported the proposed regulation prohibiting public nudity at
Kaloko-Honokohau National Historical Park. The Trustee stated that
public nudity runs counter to the purpose of the park which is for
reorientation to things Hawaiian. The Office of Hawaiian Affairs was
established by the Hawaii Legislature as a self-governing, corporate
body whose purpose is the betterment of conditions for all
Hawaiians.
A letter was received from the Chairman of the Na Hoa Pili O
Kaloko-Honokohau, the Advisory Commission established by Congress to
advise NPS ``with respect to the historical, archeological,
cultural, and interpretive programs of the park.'' The letter stated
that at the Commission's December 13, 1997 meeting the members
present voted unanimously in favor of an amended motion to ban all
nudity in the park. The letter further stated that at their March
28, 1998 meeting, the Commission reiterated its position that nudity
at the park be prohibited.
The Founder and President of the Naturist Society (TNS)
requested that the proposed rule be discarded and in its place a
Special Regulation be formulated to provide for the management of
nude recreation at Honokohau Beach. TNS has been actively engaged
for nearly two decades in promoting nude recreation on appropriate
public lands.
The American Association of Nude Recreation (AANR), on behalf of
its more than 50,000 members wrote to request that the proposed rule
be delayed and ultimately rescinded. The AANR based its request on
pending cases related to the current ban on nudity at Kaloko-
Honokohau and their awareness of a forthcoming lawsuit challenging
both the current ban and the proposed rule. Further, AANR's letter
presented the view that informational signs could be posted in the
park to manage conflicting uses.
The Naturist Action Committee (NAC), affiliated with the
Naturist Society, expressed opposition to the proposal to prohibit
public nudity at Honokohau Beach. The letter asked that the proposed
rule be abandoned and a Special Regulation be established to express
a more positive attitude toward nude recreation at Kaloko-Honokohau.
NAC's stated objectives focus on perpetuating nude recreational
activities that have existed on federal and state-managed
recreational lands for many generations.
A letter was received from Ms. Mililani Trask on behalf of Ka Lahui
Hawaii, a native Hawaiian organization claiming membership of 23,000
individuals of Hawaiian heritage. The letter, in part, states:
Nudity in our Hawaiian culture was not and is not culturally
appropriate. In our culture, public nudity was considered insulting
and contemptuous and where it occurred in relation to sacred sites
(wahi pana), it was considered an act of desecration. The only
exceptions to this rule are religious ritual and mourning. These
exceptions do not apply to Pu'uoina Heiau [a sacred Hawaiian temple
near Honokohau beach]. Our cultural practices regarding nudity have
been well documented by Ms. Mary Kawena Pukui, a renowned and often
cited cultural expert.
The Edith Kanaka'ole Foundation, a private non-profit organization
established to uphold and practice the indigenous Hawaiian culture,
opposed naked sunbathing in the National Park of Kaloko-Honokohau. The
letter states why nudity in general and naked sunbathing in particular
was not and is not a traditional Hawaiian cultural practice.
The President of the Western Sunbathing Association, an affiliate
of AANR, wrote to oppose the proposed ban on nudity at Honokohau Beach.
The letter stated that until the enactment of the temporary ban on
nudity effective January 1, 1997, nudists had peacefully coexisted with
other beach users for many years. The association has over 8,000
members and is affiliated with the Kona Sun Club.
The chairperson of Na Kokua Kaloko-Honokohau, a non-profit
organization established to assist NPS at Kaloko-Honokohau, wrote in
opposition to nude sunbathing in Kaloko-Honokohau National Historical
Park and in support of the proposed rule.
A letter and a petition containing 25 signatures were received from
the Waimea Hawaiian Civic Club. These civic organizations were formed
throughout the State of Hawaii to promote the interests of native
Hawaiians. The purpose of the Waimea Hawaiian Civic Club's letter was
to inform NPS of their stand banning nudity in public places in Hawaii,
particularly at Kaloko-Honokohau.
None of the letters of comment supporting the proposed rule
included suggestions or recommendations for any modification in content
or format. Therefore, we have not prepared responses to comment letters
supporting the proposed rule.
The following are responses to statements and suggestions made in
several hundred comment letters opposing the proposed rule:
Comment: With the right planning, nude recreation can be
accommodated at the park.
Response: The practice of nude sunbathing at Kaloko-Honokohau is a
recreational activity that has been the cause of many complaints over
the past decade from visitors and is therefore considered to be
disruptive to orderly management of the park. Restricting this activity
to certain locations within the park and/or to certain times has been
eliminated as a management option because Honokohau beach is a small
area and cultural practices take place throughout the park at different
times. More important, nude sunbathing is a recreational activity that
is in conflict with the purpose for which this national historical park
was established. Therefore, anything less than a prohibition of public
nudity at Kaloko-Honokohau is judged to be not feasible.
Comment: Public nudity is consistent with native Hawaiian culture
and the stated purpose of the park and is not offensive to the native
Hawaiians.
Response: The published cultural and historical record and the
views of contemporary cultural experts, including native Hawaiians, do
not support this view. Historically, in Hawaii, nudity has a wide range
of strong social connotations from submission to spiritual ties to the
aina, or earth. When done without purpose,
[[Page 19482]]
the exposure of the buttocks and anal area could be construed as a
supreme gesture of contempt. Displaying genitals was neither common nor
approved. Such actions were excusable during mourning only because the
mourner was considered pupule (crazy) from grief. In general, adult
nudity, outside of the family and without a reason for it, was
disapproved. Today, the reaction of contemporary cultural experts to
public nudity is consistent with the Hawaiian pre-missionary view of
nakedness.
The stated purpose of the park is to ``provide a center for the
preservation, interpretation, and perpetuation of the traditional
native Hawaiian activities and culture* * *'' Public nudity, an
activity that can be construed as contemptuous and insulting to
traditional native Hawaiian culture, is in direct conflict with the
above stated purpose.
Letters of comment received from contemporary native Hawaiian
individuals and organizations consistently maintain that they regard
public nudity is regarded by them to be offensive.
Comment: Rescind the proposed rule because of the pending criminal
case involving the nudity prohibition in the superintendent's
compendium. Because the case raises several Constitutional issues, its
outcome could well conflict with the proposed rule.
Response: The defendants in that case withdrew their constitutional
challenge to the compendium closure. Therefore, the ruling on this case
will not conflict with this rulemaking.
Comment: The proposed rule should be rescinded because the AANR is
aware of a civil lawsuit about to be filed in federal court, which
poses similar concerns.
Response: The possibility of future lawsuits is not a sufficient
basis for NPS to rescind this rulemaking.
Comment: A preferable way to prevent conflict among users of
Honokohau is with informational signs providing notice of areas where
clothes-free swimming and sunbathing occur.
Response: Informational signs would not prevent the conflicts
between users engaged in public nudity and the traditional Hawaiian
cultural purposes for which the park was established.
Comment: Formulate a new Special Regulation that provides FOR the
management of nude recreation.
Response: Such a rule would be inconsistent with the park's
enabling legislation and would derogate the values and purposes for
which the park was established. The purpose of the proposed rule is to
create an ambience and setting that fosters rather than inhibits the
preservation and perpetuation of the traditional Hawaiian culture.
Comment: Until the enactment of the temporary ban on nudity
effective January 1, 1997, nudists had peacefully coexisted with other
beach users for many years.
Response: Since acquiring the property on which nude sunbathing is
occurring, NPS has regularly received complaints from visitors--
cultural education groups, the native Hawaiian community, school
groups, and segments of the general public--regarding the presence of
nude sunbathers in the park. Park rangers, in a lengthy series of case
incident reports, document all these complaints. Some visitors stated
they would choose to stay away rather than to visit the park where this
kind of recreational activity was taking place.
Comment: Nude recreation is a legal activity on federal property, a
point well established by NPS's own Special Directive 91-3 (Information
on Public Nudity) dated May 29, 1991.
Response: This Special Directive, which Kaloko-Honokohau has
followed, provides the following information on NPS policy regarding
recreational activities:
The National Park Service will encourage recreational activities
that are consistent with applicable legislation, and that are
compatible with other visitor uses.
Unless the activity is mandated by statute, the National Park
Service will not allow a recreational activity in a park or in
certain locations within a park if it would involve or result in * *
* unacceptable impacts on visitor enjoyment due to interference with
or conflict with other visitor use activities, among other things.
When unacceptable visitor conflicts occur, as a result of public
nudity, a resolution of the situation should be attempted
informally, if appropriate, with the persons who are the subjects of
the complaint. If informal attempts fail to resolve the conflict and
enforcement action becomes necessary, the option may exist of either
applying NPS regulations, or State or local laws that specifically
prohibit public nudity. The latter method has the advantage of
providing consistency in enforcement on both Federal lands and
adjacent areas.
Park areas experiencing a particularly difficult situation that
cannot be solved by the above methods may wish to propose park
specific rulemaking that will address these problems.
Notwithstanding that nude sunbathing is inconsistent with the
park's enabling legislation and that the park received many complaints
from visitors about this recreational activity, the NPS, over a period
of several years, attempted to resolve the situation informally with
the persons who were the subjects of the complaint. In addition,
attempts were made to apply State or county laws that prohibit public
nudity. None of these attempts succeeded in resolving the situation and
the Superintendent subsequently chose to propose park specific
rulemaking to address this problem.
Comment: Naturist individuals and organizations in Hawaii were
unable to gain a place at the table in the discussion of management
options at Kaloko-Honokohau National Historical Park.
Response: The proponents of recreational nudity, including
naturists, stated their views in substantial numbers at the public
scoping meetings held in 1991 on the proposed general management plan.
At these meetings and during the open public comment period that
followed, the NPS was asked to designate Honokohau beach as clothing
optional. In 1992, during the public meetings on the draft general
management plan and during the open public comment period that
followed, proponents of public nudity at Honokohau beach again asked
that Honokohau beach be designated clothing optional. The NPS carefully
weighed the feasibility of these requests against the park's enabling
legislation and other public comments received during the development
of the general management plan. Approved in 1994, the plan, while
recognizing the use of Honokohau beach by nude sunbathers, states that
this use will be prohibited in the future as the park is developed.
Moreover, during the 60-day comment period on the proposed rule,
naturists were able to express their views regarding recreational
nudity at Kaloko-Honokohau. Over the past several years, there have
been many opportunities for naturists to discuss the future of
recreational nudity at Kaloko-Honokohau with the NPS.
After careful review and analysis of the comments received during
the public review period, NPS finds that the proposed rule is in accord
with the congressionally established purpose of this national
historical park. Specifically, the NPS judges the proposed rule to be
consistent with Section 505(a) of Public Law 95-625 which states the
purpose of Kaloko-Honokohau National Historical Park to be ``the
preservation, interpretation, and perpetuation of traditional native
Hawaiian activities and culture.* * *'' Further, the NPS finds the
proposed rule to be consistent with what past and contemporary cultural
experts inform the Park Superintendent is Hawaiian tradition. Finally,
the letters of comment contained no information that would
[[Page 19483]]
cause the NPS to modify either the content or format of the proposed
rule.
Drafting information. The principal authors of this final rule are
James Martin, Superintendent, Hawaii Volcanoes National Park; Bryan
Harry, Superintendent, National Park Service, Pacific Islands Support
Office; Laura Carter-Schuster, Resource Manager, Kaloko-Honokohau
National Historical Park; Dennis Burnett and Chip Davis, Washington
Office of Ranger Activities, National Park Service.
Compliance With Other Laws
Regulatory Planning and Review (E.O. 12866)
This document is not a significant rule and has been reviewed by
the Office of Management and Budget under Executive Order 12866.
This rule will not have an effect of $100 million or more on the
economy. It will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.
This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The rule
is local in nature and only impacts visitors to the Kaloko-Honokohau
National Historical Park. Visitor conflicts will be reduced, enhancing
the enjoyment of the area for the vast majority of visitors, who were
previously offended by public nudity.
This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. The rule will not adversely impact public visitation
or perpetuation and observance of traditional Native Hawaiian cultural
practices for which the park was established.
This rule does raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The economic effects of this rulemaking are local in nature and
negligible in scope.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Does not represent a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State
local or tribal governments or the private sector.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. No property acquisition or impacts on
private property owners are expected due to the administrative nature
of the rule.
Federalism (E.O. 12612)
In accordance with Executive Order 12612, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. State Representatives and organizations
expressed support for the rule.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and submissions under the Paperwork Reduction Act or
OMB form 83-I are not required. The visitor use management aspect of
this rule does not require information collection.
National Environmental Policy Act
The NPS has determined that this rulemaking will not have a
significant effect on the quality of the human environment, health and
safety because it is not expected to:
(a) Increase public use to the extent of compromising the nature
and character of the area or causing physical damage to it;
(b) Introduce incompatible uses that compromise the nature and
characteristics of the area or cause physical damage to it;
(c) Conflict with adjacent ownership or land uses; or
(d) Cause a nuisance to adjacent owners or occupants.
Based upon this determination, this rulemaking is categorically
excluded from the procedural requirements of the National Environmental
Policy Act (NEPA) by Departmental guidelines in 516 DM 6 (49 FR 21438).
As such, neither an Environmental Assessment nor an Environmental
Impact Statement has been prepared specifically for this regulation.
However, a Final EIS and Record of Decision were issued in 1994 along
with the General Management Plan for the management and development of
Kaloko-Honokohau National Historical Park under the provisions of NEPA.
List of Subjects in 36 CFR Part 7
District of Columbia, National parks, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 36 CFR Chapter I is amended as
follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
1. The authority citation for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); Sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
2. New Sec. 7.87 is added to read as follows:
Sec. 7.87 Kaloko-Honokohau National Historical Park.
(a) Is public nudity prohibited at Kaloko-Honokohau National
Historical Park? Yes. Public nudity, including nude bathing, by any
person on Federal land or water within the boundaries of Kaloko-
Honokohau National Historical Park is prohibited. This section does not
apply to a person under 10 years of age.
(b) What is public nudity? Public nudity is a person's failure,
when in a public place, to cover with a fully opaque covering that
person's genitals, pubic areas, rectal area or female breast below a
point immediately above the top of the areola.
(c) What is a public place? A public place is any area of Federal
land or water subject to Federal jurisdiction within the boundaries of
Kaloko-Honokohau National Historical Park, except the enclosed portions
of restrooms or other structures designed for privacy or similar
purposes.
Dated: April 7, 1999.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 99-9958 Filed 4-20-99; 8:45 am]
BILLING CODE 4310-70-P