[Federal Register Volume 66, Number 14 (Monday, January 22, 2001)]
[Proposed Rules]
[Pages 6516-6521]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1743]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 7

RIN 1024-AC86


Special Regulations; Areas of the National Park System; Religious 
Ceremonial Collection of Golden Eaglets From Wupatki National Monument

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service (NPS) has preliminarily determined 
that under certain circumstances it is appropriate to allow the Hopi 
Tribe to collect golden eaglets within Wupatki National Monument, a 
unit of the National Park System, for religious ceremonial purposes. 
This rule would authorize this activity upon terms and conditions 
sufficient to protect park resources against impairment, and consistent 
with the Bald and Golden Eagle Protection Act.

DATES: Written comments will be accepted by mail, fax, or electronic 
mail through March 23, 2001.

ADDRESSES: Comments should be addressed to: Kym Hall, National Park 
Service, 1849 C Street, N.W., Room 7413, Washington, DC 20240. Fax: 
(202) 208-6756. Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Sam Henderson, Superintendent, Wupatki 
National Monument, 6400 N. Highway 89, Flagstaff, Arizona 86004. 
Telephone: (520) 526-1157. Fax: (520) 526-4259. Email: 
[email protected] or Dr. Patricia Parker, Chief, American 
Indian Liaison Office, National Park Service, 1849 C Street, N.W., Room 
3410, Washington, DC 20240. Telephone: (202) 208-5475. Fax: (202) 208-
0870. Email: [email protected]

SUPPLEMENTARY INFORMATION:

Existing Regulations

    A subsection of NPS regulations, promulgated in 1983, prohibits 
``possessing, destroying, injuring, defacing, removing, digging, or 
disturbing from its natural state'' living or dead wildlife or fish, 
plants, paleontological specimens, or mineral resources, or the parts 
or products of any of these items, except as otherwise provided. 36 CFR 
2.1(a).
    Another provision of these regulations authorizes NPS to issue 
permits allowing the collection of national park system resources for 
research upon certain conditions. 36 CFR 2.5(b). No such permit may be 
issued except to:

an official representative of a reputable scientific or educational 
institution or a State or Federal agency for the purpose of 
research, baseline inventories, monitoring, impact analysis, group 
study, or museum display when the superintendent determines that the 
collection is necessary to the stated scientific or resource 
management goals of the institution or agency and that all 
applicable Federal and State permits have been acquired, and that 
the intended use of the specimens and their final disposal is in 
accordance with applicable law and Federal administrative policies.

    In addition, a permit may not be issued if ``removal of the 
specimen would result in damage to other natural or cultural resources, 
affect adversely environmental or scenic values, or if the specimen is 
readily available outside of the park area.''
    Subsection 2.5(c) prohibits issuing a permit to take a specimen 
that is listed as an endangered or threatened species under state or 
federal law unless the specimen ``cannot be obtained outside of the 
park area and the primary purpose of the collection is to enhance the 
protection or management of the species.'' Subsection 2.5(f) prohibits 
issuing a research collection permit in park areas where the enabling 
legislation prohibits the killing of wildlife.
    NPS regulations allow a park superintendent to ``designate certain 
fruits, berries, nuts or unoccupied seashells which may be gathered by 
hand for personal use or consumption'' if ``the gathering or 
consumption will not adversely affect park wildlife,'' or otherwise 
adversely affect the plant species, or park resources. 36 CFR 
2.1(c)(1). Another subsection addresses the ceremonial use of NPS 
resources, stating that the regulations ``shall not be construed as 
authorizing the taking, use or possession of fish, wildlife or plants 
for ceremonial or religious purposes, except where specifically 
authorized by Federal statutory law, treaty rights, or in accordance 
with Sec. 2.2 [wildlife protection] or Sec. 2.3 [fishing].'' 36 CFR 
Sec. 2.1(d). The preamble to this rulemaking explained that the 
provision was added in response to comments that had ``questioned the 
applicability'' of the regulation in such circumstances, and went on to 
say:


    The Service recognizes the American Indian Religious Freedom Act 
directs the exercise of discretion to accommodate Native religious 
practice consistent with statutory management obligations. The 
Service intends to provide reasonable access to, and use of, park 
lands and park resources by Native Americans for religious and 
traditional

[[Page 6517]]

activities. However, the National Park Service is limited by law and 
regulations from authorizing the consumptive use of park resources. 
(48 FR 30,252 (1983)).

The Need To Revise the Regulations

    In 1999, members of the Hopi Tribe requested permission from the 
NPS to take golden eaglets from Wupatki National Monument for religious 
purposes. Citing the National Park Service Organic Act and 36 CFR 2.1, 
2.2, and 2.5, the NPS denied the Hopi request. The Assistant Secretary 
for Fish and Wildlife and Parks then withdrew the NPS denial in order 
to reconsider the issue. Upon advice of the Solicitor, as explained 
below, the proposal is being made to change the regulation to allow 
favorable action on the Hopi request.
    The practice of eagle gathering is at the heart of the Hopi 
religious ceremonial cycle and the Hopi culture. The eagle serves as 
the link between the spiritual world and the physical world of the 
Hopi, a connection that embodies the very essence of Hopi spirituality 
and belief. Golden eaglets are gathered from nests soon after birth and 
are kept and raised to fledglings in Hopi villages. Later, during the 
Niman Kachina ceremony, the golden eagles are sacrificed and ``sent'' 
to their spiritual home. The eagles' feathers are subsequently used in 
all Hopi religious ceremonies such as the Kachina, Flute, and Snake 
ceremonies. The cyclical relationship between the eagle and the Hopi is 
renewed annually through the practice of eaglet gathering, sustaining 
the connection between the spiritual and physical worlds for the next 
generation of Hopi.
    The importance that the Hopi attach to the ceremonial gathering of 
eagles is expressed in Article IV of the Tribal Constitution approved 
by Secretary of the Interior Ickes on December 19, 1936:

    The Tribal Council shall negotiate with the United States 
Government agencies concerned, and with other tribes and other 
persons concerned, in order to secure protection of the right of the 
Hopi Tribe to hunt for eagles in its traditional territories, and to 
secure adequate protection for its outlying, established shrines.

    Only a few of the Hopi clan and religious societies bear the 
important ceremonial obligation of eagle gathering, and each of these 
has a traditional area from which it--and no other clan or society that 
is not related to it--may gather eagles. Hopi clan ownership of 
traditional eagle nests is well documented in the anthropological 
literature. ``The nests of eagles near village ruins are owned by the 
descendants of clans which once lived in their neighborhood.'' Jesse 
Walter Fewkes, Property Rights in Eagles Among the Hopi, 2 American 
Anthropologist (n.s.), 690-707, 693 (1900). ``The territory around the 
Hopi villages where eagles may be found is, and has been from time 
immemorial, divided into portions or allotments, which are controlled 
by certain clans or families. These territories extend as far as 50 and 
60 miles from the villages.'' H.R. Voth, Notes on the Eagle Cult of the 
Hopi, collected in H.R. Voth, Brief Miscellaneous Hopi Papers, Field 
Columbian Museum, Publication 157, 107-109, Anthropological Series 
11(2)(1912). Clan ownership of eagle nesting areas corresponds to the 
early settlement areas and migration routes of the clans before they 
arrived at their modern villages. The Hopi regard the eagles as 
embodying the spirits of their ancestors, and the clan areas often 
contain, or are very close to, Hopi clan ruins.
    Anthropologists have described the ``famous nest at Wupatki'' as an 
important area for traditional eagle gathering by the Hopi. Florence H. 
Ellis, The Hopi: Their History and Use of Lands (n.d.) 149-154, 
collected in Hopi Indians (1974). Wupatki National Monument was set 
aside by President Coolidge in 1924 under the authority of the 
Antiquities Act, 16 U.S.C. Secs. 431-33. The Proclamation is silent on 
eagle gathering. It identified the purpose of the monument in language 
common to the time; that is, to reserve and protect ``prehistoric ruins 
built by the ancestors of a most picturesque tribe of Indians still 
surviving in the United States, the Hopi or People of Peace.'' Proc. 
No. 1721 (43 Stat. 1977).

Legal Considerations

    The National Park Organic Act created the NPS and defined its 
purpose in relevant part as follows:

    The service * * * shall promote and regulate the use of the 
Federal areas known as national parks, monuments and reservations * 
* * by such means and measures as conform to the fundamental purpose 
* * * which purpose is to conserve the scenery and the natural and 
historic objects and the wildlife therein and to provide for the 
enjoyment of the same in such manner and by such means as will leave 
them unimpaired for the enjoyment of future generations. 16 U.S.C. 
1.

    The 1916 Act further authorizes the Secretary of the Interior to 
make ``such rules and regulations as he may deem necessary or proper 
for the use and management of'' the National Park System, and to 
``provide in his discretion for the destruction of such animals and of 
such plant life as may be detrimental to the use of'' units of the 
National Park System. 16 U.S.C. 3.
    In 1978, section 1 of the Organic Act was amended to include these 
provisions:

    Congress declares * * * [that the] National Park System [shall 
be] preserved and managed for the benefit and inspiration of all the 
people of the United States * * * [and] directs that the promotion 
and regulation of the various areas of the National Park System * * 
* shall be consistent with and founded in the purpose established by 
Section 1 * * * to the common benefit of all the people of the 
United States. The authorization of activities shall be construed 
and the protection, management, and administration of these areas 
shall be conducted in light of the high public value and integrity 
of the National Park System and shall not be exercised in derogation 
of the values and purposes for which these various areas have been 
established except as may have been or shall be directly and 
specifically provided by Congress. 16 U.S.C. 1a-1.

    With some exceptions, the NPS has generally prohibited consumptive 
uses of National Park System resources except as specifically 
authorized by Congress. Applicable regulations generally prohibit 
hunting of wildlife, and prohibit removal of plants, paleontological, 
archeological, cultural or mineral resources, but allow recreational 
fishing and the collection of fruits, nuts, and berries for personal 
consumption. See 36 CFR 2.1(a); 2.1(c); 2.2 and 2.3.

Constitutional Considerations and Statutes, Court Decisions, and 
Executive Orders that Address Indian Religious Ceremonial Concerns

    The following discussion explains why we believe applicable laws 
and policies allow the NPS to accommodate the Hopi's religious 
ceremonial interest in collecting golden eaglets (Aquila chrysaeots) at 
Wupatki National Monument to the extent it will not result in 
impairment of the resources protected by the National Park Service 
Organic Act.
    Constitutional considerations. The leading judicial guidance on the 
intersection between management of federal non-Indian lands and Indian 
religious practices is Lyng v. Northwest Indian Cemetery Protective 
Ass'n, 485 U.S. 439 (1988). The Supreme Court there made clear that the 
First Amendment's free exercise clause permits curtailing Indian 
religious practices on federal lands in appropriate circumstances. See 
also U.S. v. Hugs, 109 F.3d 1375 (9th Cir. 1997) (permit requirement of 
Bald and Golden Eagle Protection Act does not violate free exercise 
clause when applied to Native

[[Page 6518]]

American religious practices, even though it imposed a substantial 
burden on the practice of Native American religions in which eagles and 
eagle parts ``play a central role,'' because it was the least 
restrictive means of serving the compelling governmental interest of 
protecting eagles, while permitting access to eagles and eagle parts 
for religious purposes); Regulation of Hardrock Mining (Solicitor's 
Opinion M #36999, Dec. 27, 1999) (Constitution does not compel 
rejection of the proposed mining plan on BLM-managed public land even 
though it would seriously and irreparably degrade a cultural resource 
of importance to a nearby Indian Tribe). The Constitution does not, in 
other words, require the National Park Service to accommodate uses, by 
Indians or others, of national park system resources for religious 
ceremonial purposes. The Supreme Court also said in Lyng, however, that 
``the Government's rights to the use of its own land * * * need not and 
should not discourage it from accommodating [Indian] religious 
practices * * *'' 485 U.S. at 454. See also Solicitor's Opinion M 
#36999, at 5. Such accommodations may be undertaken in appropriate 
cases without raising questions under the establishment clause of the 
First Amendment. See Bear Lodge Multiple Use Assoc. v. Babbitt, 175 
F.3d 814 (10th Cir. 1999), cert. denied, 2000 WL 305849 (March 27, 
2000) (upholding Park Service's encouragement of a voluntary month-long 
``no-climb'' period at Devil's Tower National Monument in order to 
accommodate Indian religious practices); Office of Legal Counsel, 
Department of Justice, Memorandum to the Secretary of the Interior--
Permissible Accommodation of Sacred Sites, September 18, 1996, p. 1 
(federal government ``has broad latitude to accommodate the use of 
sacred sites by federally recognized Indian tribes'' without violating 
the establishment clause).
    Such accommodations may appropriately provide preferences for 
Indian tribes and their members. Such preferences have unique and deep 
roots in American law, and may be upheld when similar practices 
involving others might not pass muster. See, e.g., Morton v. Mancari, 
417 U.S. 535 (1974) (Bureau of Indian Affairs hiring preference for 
Indians upheld because policy was based on political relationship 
between Tribes and Federal Government); Rupert v. Director, U.S. Fish & 
Wildlife Service, 857 F. 2d 32 (1st. Cir. 1992) (upholding exemption 
from criminal prosecution for possession of eagle feathers by members 
of federally recognized tribes); Peyote Way Church of God v. 
Thornburgh, 922 F.2d 1210, 1217 (5th Cir. 1991) (upholding statutory 
exemption from laws prohibiting peyote possession for Native American 
Church members, the court noting that the federal-tribal relationship 
``precludes the degree of separation between church and state 
ordinarily required by the First Amendment''); United States v. Gibson, 
2000 WL 117987 (11th Cir. Aug. 21, 2000) (limitation of religious use 
exemption under Bald and Golden Eagle Protection Act to Indians who 
were members of federally recognized tribes did not violate non-tribal 
members'' constitutional or statutory free exercise rights).
    The Religious Freedom Restoration Act (RFRA). RFRA, enacted in 
1993, 42 U.S.C. 2000bb et seq., provides that the government may 
substantially burden a person's exercise of religion only if the 
exercise is in furtherance of a compelling governmental interest and it 
is the least restrictive means of furthering that compelling 
governmental interest.\1\ There is a reasonable argument that the NPS 
regulations prohibiting collection of golden eaglets in Wupatki 
National Monument may substantially burden the Hopis' exercise of 
religion, to the extent that collection of these resources may be 
regarded as a necessary element in the Hopis' religious ceremony. 
Whether the prohibition could be sustained under RFRA would depend on 
whether there is a compelling governmental interest at stake, and 
whether the prohibition is the least restrictive means of furthering 
it. Since the NPS is charged with the conservation of wildlife under 
its Organic Act, 16 U.S.C. 1, it is understood that the NPS has a 
compelling governmental interest in the absolute bar on the take of 
wildlife for all purposes except scientific research. There is a 
question however if this prohibition is the least restrictive means to 
further that interest. The question becomes more difficult given the 
Hopi religion's necessity of taking a golden eaglet from a specific 
location of historical and religious importance, in this instance, 
Wupatki National Monument. Prohibiting this religious exercise may 
amount to a substantial burden on their religion. Cf. Callahan v. 
Woods, 736 F.2d 1269, 1272 (9th Cir. 1984) (``If the compelling state 
goal can be accomplished despite the exemption of a particular 
individual, then a regulation which denies an exemption is not the 
least restrictive means of furthering the state interest.'') We do not 
have to reach these questions here, however, if the NPS has the 
authority to, and has decided to accommodate, the Hopi Tribe's 
religious ceremonial collection of golden eaglets at Wupatki National 
Monument. Plainly the RFRA encourages, and does not prohibit, such 
accommodation.
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    \1\ The Supreme Court has held that RRA is unconstitutional as 
applied to state governments, City of Boerne v. Flores, 521 U.S. 
507, 117 S.Ct. 2157 (1997), but the question here is the impact of 
RFRA on the federal government.
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    The American Indian Religious Freedom Act (AIRFA). This Act, 
enacted in 1978, declares ``the policy of the United States to protect 
and preserve for American Indians their inherent right of freedom to 
believe, express and exercise the[ir] traditional religions * * * 
including but not limited to access to sites, use and possession of 
sacred objects, and the freedom to worship through ceremonials and 
traditional rites.'' 42 U.S.C. 1996. The second section of AIRFA, not 
codified in the U.S. Code, requires the President to direct the various 
federal agencies responsible for administering relevant laws to 
``evaluate their policies and procedures in consultation with native 
traditional religious leaders in order to determine appropriate changes 
necessary to protect and preserve Native American religious cultural 
rights and practices,'' and directed the President to report to 
Congress with twelve months of enactment the results of the evaluation. 
92 Stat. 469.
    The Secretary of the Interior convened a task force of federal 
agencies, which issued the report called for by Congress. American 
Indian Religious Freedom Act Report (Federal Agencies Task Force, 
August 1979). The Task Force discussed, among other things, the problem 
of restricting the gathering of indigenous natural substances from 
federal lands for use in Indian religious ceremonies and practices, 
noting in particular that the ``gathering of a specific plant or animal 
may be forbidden or limited by conservation statutes.'' Id. at 51-53. 
It recommended that each agency ``accommodate Native American religious 
practices to the fullest extent possible'' under existing statutes, and 
also that agencies ``revise existing regulations, policies and 
practices to provide for separate consideration of any Native American 
religious concerns * * *. Id. at 62-63. The report also recommended 
that agencies ``provide exemptions from restrictions on access to and 
gathering, use and possession of federal property for Native American 
religious purposes similar to those provided for scientific purposes.'' 
Id. at 63.
    AIRFA does not create any judicially enforceable rights. Lyng v. 
Northwest

[[Page 6519]]

Indian Cemetery Protective Ass'n, 485 U.S. 439, 455, 471 (1988). Courts 
have, however, construed AIRFA to require federal agencies to:

learn about, and to avoid unnecessary interference with, traditional 
Indian religious practices, [and to] evaluate their policies and 
procedures in light of the Act's purpose, and ordinarily should 
consult Indian leaders before approving a project likely to affect 
religious practices. AIRFA does not, however, declare the protection 
of Indian religions to be an overriding federal policy, or grant 
Indian religious practitioners a veto on agency action.

    Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) cert. denied, 
464 U.S. 956 (1983). Thus AIRFA requires federal agencies to consider, 
but not necessarily to defer to, Indian religious values. Id. at 747. 
See also Havasupai Tribe v. U.S., 752 F. Supp. 1471, 1488 (D. Ariz. 
1990), aff'd 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959 
(1992); cf. Lyng, supra, 485 U.S. at 454.
    Executive Orders and other Policy Statements. A 1994 policy 
statement, and Executive Orders issued in 1996 and 1998, have all 
promoted government accommodation of Indian religious practices within 
the limits of agency discretion. President Clinton's ``Policy 
Concerning Distribution of Eagle Feathers for Native American Religious 
Purposes'' (1994) recognizes the important place eagles occupy in many 
Native American religious and cultural practices and directs executive 
departments and agencies to ``work cooperatively with tribal 
governments and to reexamine broadly their practices and procedures to 
seek opportunities to accommodate Native American religious practices 
to the fullest extent under the law.'' 59 FR 22,953 (Apr. 29, 1994).
    President Clinton's 1996 Executive Order on Sacred Sites directs 
that federal agencies:

shall, to the extent practicable, permitted by law, and not clearly 
inconsistent with essential agency functions, (1) accommodate access 
to and ceremonial use of Indian sacred sites by Indian religious 
practitioners and (2) avoid adversely affecting the physical 
integrity of such sacred sites.

    Executive Order 13,007, section 1, 61 FR 26,771 (1996). The Order 
defines ``sacred site'' as a ``specific, discrete, narrowly delineated 
location of Federal land'' identified by tribal interests as ``sacred 
by virtue of its established religious significance to, or ceremonial 
use by an Indian religion.'' Id. Sec. 1(b)(iii). While the Order does 
not reach directly to the collection of plants or wildlife on federal 
land for Indian religious purposes, it is suggestive of accommodation 
where possible. The Departmental Manual implementing the Sacred Sites 
Executive Order requires Interior agencies to establish procedures that 
accommodate ``access to and ceremonial use by religious Indian 
practitioners of Indian sacred sites'' and to ``consult with tribal 
governments and give full consideration to tribal views in its decision 
making process.'' 512 DM Secs. 3.4(1)(b); 3.7 (1998).
    President Clinton's 1998 Executive Order on Consultation and 
Coordination with Indian Tribal Governments states in pertinent part 
that ``each agency shall, to the extent practicable and permitted by 
law, consider any application by an Indian tribal government for a 
waiver of statutory or regulatory requirements.'' No. 13,084, 63 FR 
27655 (May 14, 1998). Recently, President Clinton reaffirmed the United 
States' commitment to consultation with Indian tribal governments and 
issued Executive Order 13175 (November 6, 2000) which details the 
process agencies must follow to ensure meaningful and timely input from 
tribal officials in the development of regulations or policies that 
have tribal implications.
    None of these executive directives purport to (nor could they) 
provide legal authority to override existing laws such as those that 
govern management of the national park system. To the extent permitted 
by law, however, they direct federal agencies to accommodate uniquely 
Indian needs.
    General discussion and conclusion. In light of the statutes, court 
decisions, executive orders and other legal considerations discussed 
above, we believe the NPS has a reasonable legal basis for promulgating 
a regulation that allows the Hopi Tribe to collect golden eaglets at 
Wupatki National Monument for religious ceremonial purposes. The 
collection of golden eaglets from specific geographic areas is an 
important part of the Hopi religion, and there is an ancestral and 
historical connection between the Hopi Tribe and Wupatki National 
Monument. The proposed regulation would allow the NPS to include terms 
and conditions, including gathering times, take limits, and permit 
tenure, that are sufficient to protect the park resources against 
impairment, and would require compliance with the Bald and Golden Eagle 
Protection Act.
    The proposed regulation, and the accompanying environmental 
assessment, applies only to this narrow situation. It is possible that 
the NPS will receive requests from other tribes for similar rule 
changes to address their religious practices. Such requests will be 
addressed on their merits. Any further rule change must follow notice 
and comment and other procedures required by applicable law. The 
current proposal is to deal strictly and exclusively with the Hopi 
Tribe's proposal to collect golden eaglets at Wupatki National 
Monument.
    Public Participation: If you wish to comment, you may submit your 
comments by any one of several methods. You may mail comments to the 
National Park Service, Ranger Activities Division, Suite 7408, 1849 C 
St. NW., Room 7413, Washington, DC 20240. You may also comment via the 
Internet to [email protected]. Please submit Internet comments 
as an ASCII file avoiding the use of special characters and any form of 
encryption. Please include ``RIN 1024-AC86'' in your subject line and 
your name and return address in the body of your message. Finally, you 
may hand-deliver comments to Kym Hall, National Park Service, 1849 C 
St. NW., Room 7413, Washington, DC 20240. Our practice is to make 
comments, including names and home addresses of respondents, available 
for public review during regular business hours. Individual respondents 
may request that we withhold their home address from the rulemaking 
record, which we will honor to the extent allowable by law. There also 
may be circumstances in which we would withhold from the rulemaking 
record a respondent's identity, as allowable by law. If you wish us to 
withhold your name and/or address, you must state this prominently at 
the beginning of your comment. However, we will not consider anonymous 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    Drafting Information: The principal author of this proposed 
interpretive rule is John Leshy, Solicitor, Department of the Interior.

Compliance With Other Laws

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, OMB has 
determined the rule not to be significant.
    (1) 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.

[[Page 6520]]

    (2) This rule does not interfere with actions taken or planned by 
another agency. The Hopi must obtain a permit from the Fish and 
Wildlife Service before being allowed to collect golden eaglets. 
However, this rule does not at all affect the standards, times or 
necessary elements for obtaining that permit. This rule only addresses 
the ability of the Hopi to collect golden eaglets from Wupatki National 
Monument after they have received the necessary permit from FWS.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or monetary loan programs or the rights or 
obligations of their recipients.
    (4) This proposed rule may be controversial because it proposes to 
allow a new collection of wildlife, but it proposes to do so only in 
very extremely limited circumstances, for a single or very few 
specimens of a single species of non-endangered wildlife in a single 
unit of the National Park System for a very narrowly defined purpose by 
a single entity, and only then when it is determined by the U.S. Fish & 
Wildlife Service and the National Park Service to be consistent with 
the laws protecting wildlife and with the laws preventing impairment of 
natural resources in the National Park System, respectively.

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). 
The economic effects of this rule 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. The rule will have no 
effect on small or large businesses. It addresses only the Hopi Tribe's 
religious ceremonial collection of golden eaglets at Wupatki National 
Monument and involves no small businesses. This rule:
    1. Does not have an annual effect on the economy of $100 million or 
more.
    2. Does not represent a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    3. 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. The Department has 
determined that this rule meets the applicable standards provided in 
section 3(a) and 3(b)(2) of Executive Order 12988.

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. The rule addresses only Hopi collection of golden eaglets 
from Wupatki National Monument, and no private property rights are 
involved or affected.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. This regulation will not have a substantial 
direct effect on the states, or on the distribution of power and 
responsibilities among the various levels of government. The rule 
addresses only the collection of golden eaglets from Wupatki National 
Monument, a unit of the national park system, and such activity does 
not require state activity.

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. The preamble clearly explains that the rule creates a 
special exception to 36 CFR 2.1(d) which allows the Hopi to collect 
golden eaglets from Wupatki National Monument for religious ceremonial 
purposes subject to conditions sufficient to prevent impairment.

Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties. It does not require submissions under the Paperwork 
Reduction Act or OMB form 83-I.

National Environmental Policy Act

    This rule does not constitute a major federal action significantly 
affecting the quality of the human environment. A draft Environmental 
Assessment has been completed. Copies of that assessment may be 
obtained through one of several methods.

--Internet: http://www.nps.gov/wupa/
--By email: [email protected]
--By mail: Superintendent, Wupatki National Monument, 6400 N. Highway 
89, Flagstaff, Arizona 86004.

    Public comments regarding the Environmental Assessment may be 
submitted to Kym Hall, National Park Service, 1849 C Street NW., Room 
7413, Washington, DC 20240, by email to [email protected], or by 
fax at (202) 208-6756. Public comments will be accepted through March 
19, 2001.

Government-to-Government Relationship With Tribes

    In accordance with the Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments'' (65 FR 67249) and 512 DM 
2, we have identified potential effects on the Hopi Indian Tribe. The 
proposed regulation, and the accompanying environmental analysis, 
applies only to this narrow situation. It is possible that the NPS will 
receive requests from other tribes for similar rule changes to address 
their religious practices. Such requests will be addressed on their 
merits. Any further rule change must follow notice and comment and 
other procedures required by applicable law. The current proposal is to 
deal strictly and exclusively with the Hopi Tribe's proposal to collect 
golden eaglets at Wupatki National Monument. We have consulted with the 
Hopi Tribe regarding the proposed rule. We will further consider their 
comments, and the comments of all interested parties, that are received 
during the comment period.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (A ``section'' appears in body type 
and is preceded by the symbol ``Sec. '' and a numbered heading; for 
example, Sec. 7.101 Wupatki National Monument (5) Is the

[[Page 6521]]

description of the rule in the Supplementary Information section of the 
preamble helpful in understanding the proposed rule? What else could we 
do to make the rule easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You 
may also email the comments to this address: [email protected].

List of Subjects in 36 CFR Part 7

    District of Columbia, National parks, Reporting and recordkeeping 
requirements.
    Accordingly, we propose to amend Part 7 of 36 CFR as set forth 
below:

PART 7--SPECIAL REGULATIONS; AREAS OF THE NATIONAL PARK SYSTEM

    1. The table of contents is amended by adding Sec. 7.101 to read as 
follows:
Sec.
* * * * *
7.101   Wupatki National Monument.

    2. The authority for Part 7 is revised 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); D.C. Code 40-721 (1981). Sec. 
7.101 also issued under 42 U.S.C. 2000bb; 42 U.S.C. 1996; Executive 
Orders No. 13084, 13007, 13175.
    3. Add Sec. 7.101 to read as follows:


Sec. 7.101  Wupatki National Monument.

    (a) Collection of golden eaglets from Wupatki National Monument by 
Hopi Tribe. Upon terms and conditions sufficient to prevent impairment 
to park resources, and upon a showing that the Tribe has a valid permit 
to collect golden eaglets under the Bald and Golden Eagle Act, 16 
U.S.C. 668-668d, the Superintendent of Wupatki National Monument shall 
grant a permit to the Hopi Tribe to collect golden eaglets from Wupatki 
National Monument for religious ceremonial purposes.
    (b) [Reserved].

    Dated: January 12, 2001.
Kenneth L. Smith,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 01-1743 Filed 1-19-01; 8:45 am]
BILLING CODE 4310-70-P