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[Federal Register Volume 80, Number 75 (Monday, April 20, 2015)]
[Proposed Rules]
[Pages 21674-21681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08852]

[[Page 21674]]

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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 2

[NPS-WASO-AILO-15846; PCU00RP14.R50000, PPWOCRADI0]
RIN 1024-AD84

Gathering of Certain Plants or Plant Parts by Federally 
Recognized Indian Tribes for Traditional Purposes

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The National Park Service proposes to authorize agreements 
between the National Park Service and federally recognized Indian 
tribes to allow the gathering and removal of plants or plant parts by 
designated tribal members for traditional purposes. The agreements 
would facilitate continuation of tribal cultural traditions on 
traditionally associated lands that are now included within units of 
the National Park System without a significant adverse impact to park 
resources and values. The proposed rule respects tribal sovereignty and 
the government-to-government relationship between the United States and 
the tribes, and would provide system-wide consistency to this aspect of 
National Park Service-tribal relations. The proposed rule would provide 
opportunities for tribal youth, the National Park Service, and the 
public to understand tribal traditions.

DATES: Comments must be received by July 20, 2015. Comments on the 
information collection requirements must be received by May 20, 2015.

ADDRESSES: You may submit your comments, identified by Regulation 
Identifier Number (RIN) 1024-AD84, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: National Park Service, Joe Watkins, Office of Tribal 
Relations and American Cultures, 1201 Eye Street NW., Washington, DC 
20005.
     All submissions received must include the agency name and 
RIN. For additional information see Public Participation under 
SUPPLEMENTARY INFORMATION.
     Send your comments and suggestions on the information 
collection requirements to the Desk Officer for the Department of the 
Interior at OMB-OIRA at (202) 395-5806 (fax) or 
[email protected] (email). Please provide a copy of your 
comments to the Information Collection Clearance Officer, National Park 
Service, 1849 C Street NW., Washington, DC 20240 (mail); or 
[email protected] (email). Please reference ``1024-AD84'' in the 
subject line of your comments. You may review our Information 
Collection Request online at http://www.reginfo.gov. Follow the 
instructions to review Department of the Interior collections under 
review by OMB.

FOR FURTHER INFORMATION CONTACT: National Park Service, Joe Watkins, 
Office of Tribal Relations and American Cultures, 1201 Eye Street NW., 
Washington, DC 20005, 202-354-2126, [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The National Park Service (NPS) has a unique relationship with 
Indian tribes that is strengthened by a shared commitment to 
stewardship of the land and resources. This relationship is augmented 
by the historical, cultural, and spiritual relationships that Indian 
tribes have with the park lands and resources with which they are 
traditionally associated.
    Indian tribes practiced their traditional harvests of plants and 
plant parts on or from lands that are now included in units of the 
National Park System long before the arrival of the European settlers. 
Much of this activity was prohibited upon the promulgation of 36 CFR 
part 2 in 1983. The fundamental purpose of the proposed rule is to lift 
this prohibition and allow for gathering and removal of traditional 
plants or plant parts while ensuring there is no significant adverse 
impact to park resources and values. The proposed rule would also 
provide opportunities for tribal youth, the NPS, and the public to 
understand tribal traditions.
    The NPS is responsible for managing all units of the National Park 
System in such a manner and by such means as will leave them unimpaired 
for future generations. Park managers are given the discretion to 
manage public use within the parks in a manner that ensures that there 
is no impairment.
    Managing the various areas of the National Park System in a manner 
that helps tribes maintain their cultural traditions and relationships 
with the land may contribute to the protection and stewardship of such 
areas. The sustainable uses envisioned by the proposed rule would 
approximate some part of the pre-existing, pre-European environment of 
the park and thus would not be considered to be consumptive use. The 
proposed rule would provide a recognized exception to current 
regulations by offering resource and location-specific agreements 
between the NPS and federally recognized Indian tribes to gather and 
remove plants or plant parts for traditional purposes.
    Cooperation in the continuation of tribal traditions is at the 
heart of this proposed rule change. The NPS has a long history of 
encouraging Indian arts and crafts in national parks for the education 
and enjoyment of the public, and to support the continued practice of 
cultural traditions. The teaching and sharing of tribal traditions 
associated with national parks is an important part of the NPS mission. 
The proposed rule would provide new opportunities for the NPS and 
tribal governments to work together in support of the continuation of 
sustainable Indian cultural traditions that make up a unique and 
irreplaceable part of our national heritage. Limited gathering by hand 
of certain renewable natural resources has been allowed by the NPS for 
more than 50 years. See 36 CFR 1.2(c) (1960) (authorizing hand picking 
and eating of designated native fruits and berries). In 1966, the NPS 
expanded this authority for NPS recreation areas, authorizing the 
gathering and collection of reasonable quantities of natural, renewable 
products (e.g. seashells, fruits, berries, driftwood, and marine 
deposits of natural origin) for personal, non-commercial use. (31 FR 
16651, December 29, 1966).
    Existing NPS regulations at 36 CFR 2.1(c), promulgated in 1983, 
allow for the personal consumption of ``fruits, berries, nuts, or 
unoccupied seashells'' by the general public, subject to certain 
conditions. The proposed rule would be an additional form of gathering, 
but would be limited to only members of federally recognized Indian 
tribes that have traditional associations with specific park areas and 
resources and that wish their members to be able to gather and remove 
plants or plant parts within those park areas for traditional uses.
    Existing NPS regulations at 36 CFR 2.1(d) do not allow tribes or 
tribal members to gather plants or plant parts on parklands for 
traditional purposes except where specific statutes or treaties grant 
rights to do so. However, traditional tribal gathering and removal 
occurred in many areas that are now part of the National Park System. 
The proposed rule would provide an orderly and consistent process for 
such gathering and removal by authorizing agreements between the NPS 
and federally recognized Indian tribes to

[[Page 21675]]

gather and remove plants or plant parts for traditional purposes.
    In designing the proposed rule, the NPS has applied principles used 
by Congress when it has addressed the issue of tribal gathering, 
usually in the context of establishing new units of the National Park 
System or establishing new management systems within existing units. 
For instance, the enabling legislation for El Malpais National 
Monument, New Mexico, states: ``In recognition of the past use of 
portions of the monument and the conservation area by Indian people for 
traditional cultural and religious purposes, the Secretary shall assure 
nonexclusive access to the monument . . . by Indian people for 
traditional cultural and religious purposes, including the harvesting 
of pine nuts.'' (Pub. L. 100-225, 101 Stat. 1548). In this and other 
cases, Congress has provided for gathering on parklands by 
traditionally associated Indian tribes for traditional purposes that 
predate the establishment of the park. It is, however, impractical to 
seek specific legislative language for each unit of the National Park 
System in which there were individual tribal traditional uses.
    In the 20 years since Indian tribes brought the issue of gathering 
to the attention of NPS leadership, studies in the fields of 
ethnobotany, traditional plant management, and consideration of 
traditional ecological knowledge in scientific symposia and scholarly 
gatherings have increased greatly. Research has shown that traditional 
gathering, when done with traditional methods and in traditionally 
established quantities, does not impair the ability to conserve plant 
communities and can help to conserve them, thus supporting the NPS 
conclusion that cooperation with Indian tribes in the management of 
plant resources is consistent with the preservation of national park 
lands for all American people. This concept is incorporated into 
National Park Service Management Policies 2006 at Section 4.2.1, which 
directs the NPS to inventory, monitor, and research traditional 
knowledge and authorizes the NPS to support studies designed to 
``understand the ceremonial and traditional resource management 
practices of Native Americans. . . .'' The NPS and tribal governments 
can draw on this research and may conduct further research to ensure 
that traditional tribal gathering and removal does not have a 
significant adverse impact on park resources and values. To the extent 
that it is appropriate, park visitors can learn about the cultures 
associated with traditional tribal gathering practices. The proposed 
rule would require that environmental reviews and further studies be 
undertaken, as needed, prior to entering into agreements that would 
allow gathering and removal in national park units. These environmental 
reviews would include consulting with other, nearby tribes, especially 
those tribes that may also have traditional associations with those 
park units.

Authority

    Authority for the proposed rule is the statute commonly known as 
the NPS Organic Act of 1916, as amended. The NPS Organic Act created 
the NPS and defined its purpose by stating that the NPS shall promote 
and regulate the use of the National Park System by means and measures 
that conform to the fundamental purpose of the System units, which 
purpose is to conserve the scenery, natural and historic objects, and 
wild life in the System units and to provide for the enjoyment of the 
scenery, natural and historic objects, and wild life in such manner and 
by such means as will leave them unimpaired for the enjoyment of future 
generations. (54 U.S.C. 100101)
    The Organic Act further authorizes the Secretary of the Interior to 
make ``such regulations as the Secretary considers necessary or proper 
for the use and management of [National Park] System units.'' (54 
U.S.C. 100751(a)).
    The proposed rule would authorize the NPS to enter into agreements 
with federally recognized Indian tribes to allow for the gathering and 
removal of plants or plant parts for traditional purposes. The proposed 
rule is intended to continue Indian tribal cultural traditions that are 
rooted in the history of specific parks.

Government-to-Government Relationship With Indian Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' of November 6, 2000; 
President Obama's Executive Memorandum on Tribal Consultation of 
November 5, 2009; Department of the Interior Secretarial Order No. 3317 
of December 1, 2011, and Department of the Interior Departmental Manual 
Part 512,''American Indian and Alaska Native Programs;'' we have 
evaluated the potential effects on federally recognized Indian tribes 
and have determined that this proposed rule would have direct tribal 
implications.

Tribal Consultation

    Six tribal consultation meetings were held in the ``Lower 48'' to 
consult with Indian tribes on this proposed rule. Locations in or near 
units of the National Park System where gathering by tribal members has 
been discussed over the years were selected in consultation with Indian 
tribes and NPS regional and park staff. One hundred and fifty 
representatives from 50 tribes attended meetings held from May through 
July 2010, in Bar Harbor, Maine; Flagstaff, Arizona; Pipestone, 
Minnesota; Yurok, California; Suquamish, Washington; and Cherokee, 
North Carolina. An additional meeting was held at Pipestone, Minnesota, 
in September 2010. Staff in Alaska contacted more than 70 federally 
recognized Indian tribes traditionally associated with parks in Alaska. 
Consultation then occurred with those tribes that requested it. 
Additionally, general presentations were given at two statewide 
conventions: The Alaska Tribal Leaders Summit in Fairbanks during the 
annual meetings of the Alaska Federation of Natives in October 2010 and 
at the annual Bureau of Indian Affairs Providers Conference in 
Anchorage in December 2010. A conference call with traditional elders 
and tribal people not representing tribal governments was also 
conducted in June 2010 at the request of Arvol Looking Horse, Keeper of 
the Sacred White Buffalo Calf Pipe of the Lakota, Dakota, and Nakota 
Nation of the Sioux. Park managers and staff also attended these 
consultation meetings and participated in the discussions. The major 
concerns of representatives of tribal governments and the NPS are 
summarized and addressed here.

Gathering To Be Limited to Members of Federally Recognized Indian 
Tribes

    Tribal representatives expressed support for the concept that only 
members of federally recognized Indian tribes be allowed to gather and 
remove park resources for traditional purposes. The proposed rule 
limits gathering and removal to members of an Indian tribe or Alaska 
Native tribe, band, nation, pueblo, village or community that the 
Secretary of the Interior acknowledges to exist as an Indian tribe 
under the Federally Recognized Tribe List Act of 1994, 25 U.S.C. 479a. 
This provision will limit gathering and removal to members of Indian 
tribes with which the United States has a government-to-government 
relationship. The proposed rule provides avenues for cooperative NPS-
tribal government oversight of member activities on park lands to

[[Page 21676]]

ensure that traditional gathering and removal remains sustainable with 
no significant adverse impacts to park resources and values, consistent 
with NPS Management Policies 2006, 8.2.

 Gathering To Be Limited to Those Indian Tribes Traditionally 
Associated With Specific Park Lands

    A central purpose of the proposed rule is to support the 
continuation of Indian cultural traditions on lands that are now 
administered as units of the National Park System. The proposed rule 
would apply only to those Indian tribes traditionally associated with 
specific park units. The concept of acknowledging and respecting the 
special and longstanding connections that Indian tribes have with 
parklands prior to the establishment of park units is specifically 
described in NPS Management Policies 2006, 1.11.

Government-to-Government Agreements

    The NPS and tribal representatives expressed support for agreements 
between tribal governments and the NPS to establish the conditions for 
gathering in park units. These agreements would respect both tribal 
sovereignty and NPS authority to manage park resources. These 
agreements would authorize traditional tribal gathering in ways that 
could be administered flexibly to respond to local resource concerns. 
The participating tribal government would be responsible for 
designating which tribal members would be allowed to gather in 
accordance with the terms and conditions set forth in the agreement.

Park Resource Protection

    Tribal representatives expressed deep concern for the long-term 
health of park ecosystems. Reminding the NPS of their long history of 
productive and protective relationships with such ecosystems, they 
expressed willingness to accept limitations on gathering to protect 
park resources. The NPS and tribal representatives are interested in 
jointly developing park specific plant gathering management plans to 
ensure the long-term health of any park resource that may be gathered.

Respect for Tribal Cultural Traditions

    Tribal representatives stressed that each Indian tribe is unique, 
and that tribal agreements entered into under the proposed rule should 
allow for traditional cultural practices specific to each tribe.

Traditional Gathering Needs May Be Site-Specific to National Park Land

    Some national park units contain places where tribal members 
historically have gathered plant resources. Using a particular 
gathering site within a national park unit may be vital to the 
continuation of a cultural tradition that cannot be met at locations 
outside the park, or even at alternative locations within it. Thus, 
even though some plant materials may be available outside park lands, 
tribal members may still reasonably desire to gather at traditionally 
significant locations inside a park unit. The rationale for in-park 
gathering of materials available outside park boundaries needs to be 
documented on a case-by-case basis as outlined in Sec.  2.6(d) of the 
proposed rule. The information used to make this determination may be 
subject to peer review by qualified specialists from both the tribal 
and academic communities.

Collaborative Research and Administration

    Tribal representatives expressed the desire to work with the NPS to 
create and maintain the knowledge base needed to manage gathering and 
removal and to leave park resources unimpaired for future generations. 
This would include joint research and monitoring, training programs for 
tribal members and park staff, and ongoing consultation regarding park 
resources.

Relationship of the Proposed Rule to Existing Regulations

    Existing NPS regulations, promulgated in 1983, prohibit 
``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 in NPS 
regulations. The proposed rule, to be codified at 36 CFR 2.6, would be 
consistent with this general prohibition. It would provide a recognized 
exception to current regulations by authorizing resource- and location-
specific agreements between the NPS and federally recognized Indian 
tribes to gather and remove plants or plant parts for traditional 
purposes.
    Gathered plants or plant parts, as envisioned under this proposed 
rule, are not meant to be used for ``benefits sharing,'' which allows 
for commercial use of the results of research on material collected in 
a park area under a specimen collection permit under 36 CFR 2.5. See 
NPS Management Policies 2006, 4.2.4.
    The proposed rule would leave in place 36 CFR 2.1(c)(1), which 
allows a park Superintendent to authorize gathering of designated 
fruits, berries, nuts, or unoccupied seashells by all park visitors, 
subject to certain conditions. The proposed rule would amend section 
2.1(d), which currently states that 36 CFR 2.1 ``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).'' The 
proposed rule would permit the gathering and removal of plants or plant 
parts for traditional purposes under specific tribal agreements, but 
would not alter the prohibition on taking fish or wildlife for such 
purposes.

NPS Units in Alaska

    Title 36 CFR 13.35 regulates the gathering and collection of 
natural products in many of the National Park System units in Alaska, 
and allows for the limited gathering of a wider range of natural 
products than are included in the proposed rule. Except for the park 
areas listed in Sec.  13.35(a), Sec.  13.35(c) permits gathering, by 
hand and for personal use only, of renewable resources such as natural 
plant food items (e.g. fruits, berries, and mushrooms) that are not 
threatened or endangered species; driftwood and uninhabited seashells; 
and plant materials and minerals that are essential to the conduct of 
traditional ceremonies by Native Americans. Therefore, the proposed 
rule would have no discernable effect upon National Park System units 
in Alaska where Sec.  13.35(c) applies. The proposed rule would apply 
to the park units in Alaska listed in Sec.  13.35(a) and to parks in 
the contiguous United States. The proposed rule would not address 
subsistence issues authorized in Alaska by 36 CFR 13.400-13.495.

Section-by-Section Analysis

Sec. 2.1(d) Authorization of Agreements

    The proposed rule would remove the existing prohibition on the 
taking, use, or possession of plants or plant parts, provided such 
taking, use or possession was done under an agreement described in this 
rule. The proposed rule would have no effect on existing statutory or 
treaty rights, or on the taking of wildlife or fish.

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Sec. 2.6(a) Definitions

    The rule proposes to define the following terms for use in this 
section: Indian tribe, Traditional association, Traditional purpose, 
and Tribal official.

Sec. 2.6(b) Agreements Between the NPS and Indian Tribes

    The proposed rule would authorize agreements allowing and 
regulating tribal gathering and removal of plants or plant parts for 
traditional purposes in park units where such gathering and removal 
have not been specifically authorized by Congress. The agreements would 
explicitly recognize the special government-to-government relationship 
between Indian tribes and the United States, and would be based upon 
mutually agreed upon terms and conditions subject to the requirements 
of Sec.  2.6(d). The agreements would serve as the framework under 
which the NPS would allow tribal gathering and removal and would be 
implemented by an accompanying permit under Sec.  1.6, which would 
authorize the gathering and removal activities.

Sec. 2.6(c) Tribal Request

    The NPS would respond to a request from the appropriate tribal 
official expressing interest in entering into an agreement for 
gathering and removal based on tribal traditional association with the 
park unit, and on the continuation of tribal cultural traditions on 
park land. The tribal request would include a description of the 
traditional association that the Indian tribe has to the park area, a 
brief explanation of the traditional purposes to which the gathering 
and removal activities will relate, and a description of the gathering 
and removal activities that the Indian tribe is interested in 
conducting.
    The NPS believes that under existing law it can protect sensitive 
or confidential information submitted by tribes (see e.g., 54 U.S.C. 
307103).

Sec. 2.6(d) Criteria for Entering Into Agreement

    The proposed rule would require the Superintendent to determine 
that the proposed gathering is a traditional use of the park area by 
the Indian tribe, analyze any potential impacts of the proposed 
gathering in accordance with the National Environmental Policy Act and 
other applicable laws, and document a determination that the proposed 
gathering and removal will not result in a significant adverse impact 
(i.e., make a Finding of No Significant Impact (FONSI)), and is 
consistent with the requirements of other applicable laws and 
regulations.

Sec. 2.6(e) Denial of Request To Enter Into Agreement

    The proposed rule would require the NPS to deny a request to enter 
into an agreement if sufficient information does not exist to 
demonstrate the Indian tribe's traditional association or the 
traditional purposes for which the park resource would be gathered and 
removed, or if the analyses required by Sec.  2.6(d) indicate 
significant adverse impacts to park resources or values.

Sec. 2.6(f) Contents of Agreements

    The proposed rule outlines the required contents of agreements in 
detail. According to the terms of the agreement, the NPS would 
authorize the tribal government to manage gathering and removal by 
tribal members subject to the conditions of the agreement. The 
agreement could operate in a variety of ways, but, at a minimum, it 
would require that the tribal government identify who within the tribe 
is designated to gather and remove; how such individuals will be 
identified; what plants or plant parts may be gathered and removed; and 
limits on size, quantities, seasons, or locations where the gathering 
and removal may take place.
    Agreements would also establish NPS-tribal protocols for monitoring 
park resources subject to gathering and removal operating protocols, 
and remedies for noncompliance in addition to those set out in the 
proposed rule. In the case of noncompliance by members of the tribe, 
the NPS would initially apply these agreed-upon remedies and, if 
warranted, seek prosecution of specific violators, prior to terminating 
the agreement. This section also provides for any special conditions 
unique to the park unit or tribal tradition that may be included within 
the scope of existing law.

Sec. 2.6(g) Regional Office Concurrence

    The proposed rule would require the Regional Director to approve an 
agreement entered into under the proposed rule.

Sec. 2.6(h) Closure

    The proposed rule would provide for closures and restrictions on 
gathering and removal when necessary to provide for public health and 
safety or protect park resources and values, after providing 
appropriate public notice under Sec.  1.7 (Public notice).

Sec. 2.6(i) Termination or Suspension

    The proposed rule would provide for suspension or termination of an 
agreement where terms or conditions are violated or unanticipated or 
significant impacts occur. The Superintendent would be required to 
prepare a written determination justifying the action. A termination 
would be subject to the concurrence of the Regional Director. 
Termination of an agreement would be based on factors such as careful 
analysis of impacts on park resources and the effectiveness of NPS-
tribal agreement administration.

Sec. 2.6(j) Prohibitions

    Gathering and removal are prohibited, except as authorized under 
this regulation, or as otherwise authorized by Federal statute, treaty, 
or another NPS regulation. Any gathering and removal done under this 
regulation must be done according to the provisions of the applicable 
agreement and permit.

Relationship of the Proposed Rule to Proposed U.S. Forest Service 
Regulations

    On July 31, 2014, the United States Forest Service (USFS) published 
a proposed rule in the Federal Register (79 FR 44327) to implement 
section 8105 of the Food, Conservation, and Energy Act of 2008 (Farm 
Bill). The USFS proposed rule would authorize Regional Foresters or 
designated Forest Officers to provide trees, portions of trees, or 
forest products to Indian tribes free of charge for noncommercial 
traditional and cultural purposes. The rule would require federally-
recognized Indian tribes seeking products under the Farm Bill authority 
to submit a written request to the USFS for free use. The rule 
encourages tribal officials making the requests to explain their 
requests to the Regional Forester or designated Forest Officer, and, if 
necessary, how the requests fit a noncommercial traditional and 
cultural purpose. The comment period for the USFS rule closed on 
September 29, 2014.
    The NPS recognizes that a federally-recognized tribe may have a 
traditional association with an NPS unit that is adjacent to USFS 
lands. This tribe may seek to gather and remove natural products from 
the NPS and adjacent USFS lands for the same traditional or cultural 
purpose. In these circumstances, tribal officials would need to enter 
into an agreement with the NPS and obtain an NPS permit to gather and 
remove plants or plant parts from the NPS lands; and submit a written 
request to the USFS to remove trees, portions of trees, or forest 
products from the adjacent USFS lands.
    The NPS and USFS have distinct statutory mandates and authorities 
that result in separate regulations and policies that govern the 
resources they

[[Page 21678]]

manage. As a result, the process for removing plants and plant parts 
from NPS lands will be governed by regulations that are separate from 
the regulations that will govern the removal of trees, portions of 
trees, or forest products from USFS lands. The NPS seeks comment about 
how the NPS and the USFS can coordinate their separate processes for 
requesting approval to remove natural products from the respective 
lands they administer, in the circumstances described above. In 
particular, the NPS seeks comment on ways the NPS proposed rule can 
better align with the USFS proposed rule--for example, how a joint or 
coordinated permitting process between the two agencies would impact 
paperwork burden and regulatory compliance.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.). This certification is based on information contained in the 
report titled, ``Cost-Benefit and Regulatory Flexibility Analyses'' 
available for review at http://www.nps.gov/tribes/proposed_rule.htm.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    This determination is based on information from ``Cost-Benefit and 
Regulatory Flexibility Analyses'' available for review at http://www.nps.gov/tribes/proposed_rule.htm.

Unfunded Mandates Reform Act (UMRA)

    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. It addresses use of 
NPS lands only. A statement containing the information required by the 
UMRA (2 U.S.C. 1531 et seq.) is not required.

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, the rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement. This proposed rule only affects 
use of NPS administered lands. It has no outside effects on other 
areas. A Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all proposed 
rules be reviewed to eliminate errors and ambiguity and be written to 
minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
proposed rules be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175, and have identified direct tribal 
implications.
    Accordingly, we have consulted with tribes on a government-to-
government basis as detailed previously in this preamble.

Paperwork Reduction Act (PRA)

    This proposed rule contains a collection of information that we 
have submitted to the Office of Management and Budget (OMB) for review 
and approval under the PRA of 1995 (44 U.S.C. 3501 et seq.). We may not 
conduct or sponsor and you are not required to respond to a collection 
of information unless it displays a currently valid OMB control number.
    An Indian tribe that has a traditional association with a park area 
may request that we enter into an agreement with the tribe for 
gathering and removal from the park area of plants or plant parts for 
traditional purposes. The agreement will define the terms under which 
the Indian tribe may be issued permits that will designate the tribal 
members who may gather and remove plants or plant parts within the park 
area in accordance with the terms and conditions of the agreement and 
the permit. We collect the following information:
Initial Written Request From an Indian Tribal Official
    The request must include:
    (1) An explanation of the traditional association that the Indian 
tribe has to the park area;
    (2) An explanation of the traditional purposes to which the 
gathering activities will relate; and
    (3) A description of the gathering and removal activities that the 
Indian tribe is interested in conducting.
Agreement With Indian Tribes
    To make determinations based upon these requests or to enter into 
agreements, we may need to collect information from those Indian tribes 
who make requests and from the specific tribal members, who are 
proposed to participate in the authorization, including:

[[Page 21679]]

    (1) A description of the system to be used to administer gathering 
and removal, including a clear means of identifying appropriate tribal 
members who, under the permit, are designated by the Indian tribe to 
gather and remove and a means for the tribal government to keep the NPS 
regularly informed of which tribal members are the current gathering 
and removal designees of the Indian tribe;
    (2) A description of the specific plants or plant parts that may be 
gathered and removed;
    (3) Specification of the size and quantity of the plants or plant 
parts that may be gathered and removed;
    (4) Identification of the times and locations at which the plants 
or plant parts may be gathered and removed;
    (5) Identification of the methods that may be used for gathering 
and removal;
    (6) Protocols for monitoring gathering and removal activities;
    (7) Operating protocols and additional remedies for noncompliance 
with the terms of the agreement; and
    (8) Key officials.
    Title: Gathering of Certain Plants or Plant Parts by Federally 
Recognized Indian Tribes for Traditional Purposes, 36 CFR 2.
    OMB Control Number: 1024-XXXX.
    Service Form Number: None.
    Type of Request: Request for a new OMB Control Number.
    Description of Respondents: Indian tribes.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Estimated Number of Respondents: 20.

----------------------------------------------------------------------------------------------------------------
                                                                     Estimated      Completion
                                                                     number of       time per        Estimated
                            Activity                                  annual         response      total annual
                                                                     responses        (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
Initial written request from an Indian tribal official..........              20               4              80
Agreement with Indian Tribes....................................               5              20             100
                                                                 -----------------------------------------------
    Total.......................................................              25  ..............             180
----------------------------------------------------------------------------------------------------------------

    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of this information collection, including:
    (1) Whether or not the collection of information is necessary, 
including whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information;
    (3) Ways to enhance the quality, utility, and clarity of the 
information to be collected; and
    (4) Ways to minimize the burden of the collection of information on 
respondents.

Send your comments and suggestions on this information collection by 
the date indicated in the DATES section to the Desk Officer for the 
Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or 
[email protected] (email). Please provide a copy of your 
comments to the Information Collection Clearance Officer, National Park 
Service, 1849 C Street NW., Washington, DC 20240 (mail); or 
[email protected] (email). Please reference ``1024-AD84'' in the 
subject line of your comments.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the NEPA 1969 is not required because the rule is covered by a 
categorical exclusion. The Department of the Interior Regulations for 
implementing NEPA at 43 CFR 46.210(i) allow for the following to be 
categorically excluded: Policies, directives, regulations, and 
guidelines that are of an administrative, financial, legal, technical, 
or procedural nature; or whose environmental effects are too broad, 
speculative, or conjectural to lend themselves to meaningful analysis 
and will later be subject to the NEPA process, either collectively or 
case-by-case.''
    The NPS has determined that the environmental effects of this rule 
are too broad, speculative, or conjectural for a meaningful analysis. 
In order to enter into an agreement for gathering of natural products 
under the rule, the NPS would first need to receive a request from an 
appropriate tribal official. While there are a number of Indian tribes 
that may qualify for an agreement under the rule, the NPS can only 
speculate at this point as to which Indian tribes will request an 
agreement, which park units will be affected, and what specific 
resources specific Indian tribes will request to collect. Because of 
this, the NPS has explicitly required that each agreement will undergo 
its own NEPA analysis, on a case-by-case basis. No collection of plants 
or plant parts would occur under this rule until after a site-specific 
NEPA analysis is completed.
    The NPS has also determined that the rule does not involve any of 
the extraordinary circumstances listed in 43 CFR 46.215 that would 
require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Clarity of This Rule

    The NPS is required by Executive Orders 12866 (section 1(b)(12) and 
12988 section 3(b)(1)(B)) and by the Presidential Memorandum of June 1, 
1998, to write all rules in plain language. This means that each rule 
we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the proposed rule, your comments should be as 
specific as possible. For example, you should tell us the numbers of 
the sections or paragraphs that you find unclear, which sections or 
sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

Drafting Information

    The primary authors of this proposed rule were Patricia L. Parker, 
Chief, American Indian Liaison Office; Frederick F. York, Regional 
Anthropologist, Pacific West Region; and Philip Selleck, Associate 
Regional

[[Page 21680]]

Director for Operations, National Capital Region.

Public Participation

    All submissions received must include the agency name and docket 
number or Regulation Identifier Number (RIN), 1024-AD84, for this 
rulemaking. All comments received will be posted without change to 
www.regulations.gov.
    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment_including your personal identifying 
information_may be made publically available at any time. While you 
can ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    For access to the docket to read background documents or comments 
received, go to www.regulations.gov and enter 1024-AD84 in the search 
box.

List of Subjects in Part 2

    National parks, Native Americans, Natural resources.

    For the reasons given in the preamble, the National Park Service 
proposes to amend 36 CFR part 2 as follows:

PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

0
1. The authority citation for Part 2 continues to read as follows:

    Authority: 54 U.S.C. 100101, 100751, 320102.

0
2. In Sec.  2.1, revise paragraph (d) to read as follows:

Sec.  2.1  Preservation of natural, cultural and archeological 
resources.

* * * * *
    (d) This section shall not be construed as authorizing the taking, 
use, or possession of fish, wildlife, or plants, except for the 
gathering and removal for traditional purposes of plants or plant parts 
by members of an Indian tribe under an agreement in accordance with 
Sec.  2.6, or where specifically authorized by Federal statutory law, 
treaty rights, or in accordance with Sec.  2.2 or Sec.  2.3.
* * * * *
0
3. Add Sec.  2.6 to read as follows:

Sec.  2.6  Gathering of plants or plant parts by federally recognized 
Indian tribes.

    (a) What terms do I need to know? The following definitions apply 
only to this section.
    Indian tribe means an American Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian tribe under the Federally 
Recognized Tribe List Act of 1994, 25 U.S.C. 479a.
    Traditional association means a longstanding relationship of 
historical or cultural significance between an Indian tribe and a park 
area predating the establishment of the park area.
    Traditional purpose means a customary activity or practice that is 
rooted in the history of an Indian tribe and is important to the 
continuation of that tribe's distinct culture.
    Tribal official means an elected or duly appointed official of the 
federally recognized government of an Indian tribe authorized to act on 
behalf of the tribe with respect to the subject matter of this 
regulation.
    (b) How will the Superintendent authorize gathering and removal? 
Upon the request of an Indian tribe that has a traditional association 
with a park area, the Superintendent may negotiate and enter into an 
agreement with the tribe to authorize the gathering and removal from 
the park area of plants or plant parts for traditional purposes. This 
agreement will define the terms and conditions under which the tribe 
may be issued permits that designate members who may gather and remove 
plants or plant parts within the park. The agreement will be 
implemented through permits, which the Superintendent will issue under 
Sec.  1.6 of this chapter.
    (c) How can a tribe request to enter into an agreement? An Indian 
tribe's request to enter into an agreement under this section must be 
submitted to the Superintendent by a tribal official and must contain:
    (1) An explanation of the Indian tribe's traditional association to 
the park area;
    (2) An explanation of the traditional purposes to which the 
gathering activities will relate; and
    (3) A description of the gathering and removal activities that the 
tribe is interested in conducting.
    (d) What are the criteria for entering into agreements? Before 
entering into an agreement to allow gathering and removal, the 
Superintendent must do all of the following:
    (1) Determine and document, based on information provided by the 
Indian tribe or others, and other available information, that:
    (i) The Indian tribe has a traditional association with the park 
area; and
    (ii) The proposed gathering and removal is a traditional use of the 
park area by the Indian tribe.
    (2) Analyze potential impacts of the proposed gathering and removal 
in accordance with the requirements of the National Environmental 
Policy Act, the National Historic Preservation Act, and other 
applicable laws.
    (3) Document a determination that the proposed gathering and 
removal activities will not result in a significant adverse impact on 
park resources or values.
    (4) Determine that the agreement for the proposed gathering and 
removal meets the requirements for issuing a permit under Sec.  1.6(a) 
of this chapter.
    (e) When will the Superintendent deny a request to enter into an 
agreement? The Superintendent must deny the request to enter into an 
agreement to gather if any of the determinations required by paragraph 
(d) of this section cannot be made.
    (f) How will agreements be implemented? An agreement to gather and 
remove plants or plant parts must be implemented through a permit 
issued in accordance with Sec.  1.6 of this chapter. The agreement must 
contain the following:
    (1) The name of the Indian tribe authorized to gather and remove 
plants and plant parts;
    (2) The basis for the tribe's eligibility under paragraphs (c)(1) 
and (c)(2) of this section to enter into the agreement;
    (3) A description of the system to be used to administer gathering 
and removal including a clear means of identifying appropriate tribal 
members who, under the permit, are designated by the Indian tribe to 
gather and remove;
    (4) A means for the tribal government to keep the NPS regularly 
informed of which tribal members are the current gathering and removal 
designees of the Indian tribe;
    (5) A description of the specific plants or plant parts that may be 
gathered and removed;
    (6) Specification of the size and quantity of the plants or plant 
parts that may be gathered and removed;
    (7) Identification of the times and locations at which the plants 
or plant parts may be gathered and removed;
    (8) Identification of the methods that may be used for gathering 
and removal;
    (9) A statement that commercial use of natural resources is 
prohibited under Sec.  2.1(c)(3)(v);
    (10) Protocols for monitoring gathering and removal activities and 
thresholds above which NPS and tribal management intervention will 
occur;
    (11) Operating protocols and additional remedies for non-compliance 
with the terms of the agreement beyond those provided in this section;
    (12) Any additional terms or conditions that the parties may agree 
to; and,

[[Page 21681]]

    (13) A list of key officials.
    (g) What concurrence must the Superintendent obtain? The 
superintendent must obtain the written concurrence of the Regional 
Director to any agreement before it can go into effect, and before any 
permit may be issued.
    (h) When will the Superintendent close areas to gathering and 
removal? Notwithstanding the terms of any agreement executed under this 
section, the Superintendent may close park areas, or portions thereof, 
to gathering and removal for any of the following reasons:
    (i) Maintenance of public health and safety;
    (ii) Protection of environmental or scenic values;
    (iii) Protection of natural or cultural resources;
    (iv) Aid to scientific research;
    (v) Implementation of management responsibilities;
    (vi) Equitable allocation and use of facilities; or
    (vii) Avoidance of conflict among visitor use activities.
    (2) Closed areas may not be reopened to traditional gathering and 
removal until the reasons for the closure have been resolved.
    (3) Except in emergency situations, the Superintendent will provide 
public notice of any closure or reopening under this section in 
accordance with Sec.  1.7 of this chapter.
    (i) When will the agreement and permit be suspended or terminated?
    (1) Notwithstanding any remedy provisions of an agreement, 
violation of the terms or conditions of an agreement or permit issued 
under this section may result in suspension or termination of the 
agreement and permit, and loss of authorization to gather and remove.
    (2) A Superintendent may suspend an agreement and implementing 
permit if terms or conditions are violated or if unanticipated or 
significant impacts occur. The Superintendent shall prepare a written 
determination justifying the action.
    (3) The Superintendent must have the written concurrence of the 
Regional Director before terminating an agreement or implementing 
permit.
    (j) When is gathering prohibited? Gathering, possession, or removal 
from a park area of plants or plant parts (including for traditional 
purposes), is prohibited except where specifically authorized by;
    (1) Federal statutory law;
    (2) Treaty rights;
    (3) Other regulations of this chapter; or
    (4) The terms and conditions of an agreement and permit issued 
under this section.
    (k) Have the information collection requirements been approved? The 
Office of Management and Budget has reviewed and approved the 
information collection requirements in this section and assigned OMB 
Control No. 1024-XXXX. We will use this information to determine 
whether a traditional association and purpose can be documented in 
order to authorize gathering. We may not conduct or sponsor and you are 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number. You may send comments on 
any aspect of this information collection to the Information Collection 
Clearance Officer, National Park Service, 1849 C Street NW., 
Washington, DC 20240.
* * * * *

    Dated: April 2, 2105.
Michael Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-08852 Filed 4-17-15; 8:45 am]
 BILLING CODE 4310-EJ-P
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