[Federal Register Volume 63, Number 75 (Monday, April 20, 1998)]
[Proposed Rules]
[Pages 19436-19438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10322]


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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: Proposed rule.

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SUMMARY: The National Park Service (NPS) is proposing to prohibit 
public nudity within the boundaries of Kaloko-

[[Page 19437]]

Honokohau National Historical Park, Hawaii. The existing practice of 
recreational 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.

DATES: Written comments will be accepted through June 19, 1998.

ADDRESSES: Comments should be addressed to: Superintendent, Kaloko-
Honokohau National Historical Park, 734786 Kanalani St. # 14, Kailua-
Kona, Hawaii 96745.

FOR FURTHER INFORMATION CONTACT: Bryan Harry, Superintendent, National 
Park Service, Pacific Island Support Office, 300 Ala Moana Blvd., Suite 
6305, P.O. Box 50165, Honolulu, Hawaii 96850. Telephone 808-541-2693.

SUPPLEMENTARY INFORMATION:

Background

    Kaloko-Honokohau National Historical Park was established under 
Public Law 95-625 (16 U.S.C. 396d) 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 practices by native Hawaiians.
    In traditional Hawaiian culture, public nudity had strong social 
connotations as documented by the following excerpts pertaining to 
nudity and how it is viewed in the Hawaiian culture, stating 
specifically that such activity was very strictly regulated within a 
defined traditional social context.

    Mourning: ``* * * displaying genitals were 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 the 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 (ho'opohopoho) 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 
echos 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.

Existing Conditions

    Public nudity is currently taking place in a relatively confined 
area fronting one of the park's more important cultural features, 
``Aimakapa'' fishpond. The beach front at this location is visible from 
the proposed park observation platform and the boardwalk trail, both 
primary destination points for park visitors. Many more of the 
significant culture features of the park are located along the beach 
trail through the area currently used by the nudists. All park users 
must pass along this narrow coastal strip and therefore must confront 
any person(s) involved in public nudity. Native Hawaiians, school 
groups and other visitors with a strong identity to traditional 
Hawaiian culture have informed park management that they have chosen to 
abandon their visit to the park rather than confront this conflicting 
and distracting activity. The NPS has on file numerous letters and 
documents from the Hawaii Congressional Delegation and the native 
Hawaiian constituency relating to their views of an existing conflict 
between public nudity and the purposes for which the park was 
established.
    The park initially attempted to encourage voluntary compliance 
against 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 
and will remain in place while the park solicits public comment through 
this rulemaking.
    The creation of Kaloko-Honokohau National Historical Park was 
largely driven by the congressional delegations of the State of Hawaii. 
This congressional delegation, native Hawaiian community groups and 
leaders, and other special interest groups were influential in defining 
the nature and purpose of the park and maintain an active interest in 
the progress and direction of the park's development.
    The enabling legislation defines the intended purpose and 
management direction for the park, and recreational nudity, or any 
other recreational activity, must be compatible with NPS management's 
ability to carry out that legislated purpose. Mitigation efforts to 
resolve the issue to date have failed.
    The issue of public nudity was first addressed in public on 
December 12, 1990, when a Notice of Intent to prepare an environmental 
impact statement for a general management plan for Kaloko-Honokohau 
National Historical Park appeared in the Federal Register (55 FR 
51165). Following the Federal Register notice, scoping for the 
preparation of the General Management Plan (GMP) was initiated. Letters 
were sent to officials, organizations and individuals who were known to 
have an interest in the development of Kaloko-Honokohau National 
Historical Park, inviting them to attend scheduled public meetings or 
provide written comments expressing their views and concerns related to 
the future use and development of Kaloko-Honokohau National Historical 
Park.
    Public meetings were held on the islands of Hawaii (Kona and 
Waimea) and O'ahu (Honolulu) in January 1991 to receive comments from 
all interested parties in order to identify the full scope of issues 
relevant to the preparation of that GMP. During the public comment 
period, which ran to the end of February 1991, more than 900 responses 
to Kaloko-Honokohau's GMP initiative were received. These comments were 
carefully considered in drafting planning options to reflect all 
viewpoints. Planning issues evolving into the GMP included the 
following: future public use of Honokohau beach, protection of the 
fishpond's endangered biota, park development and accessibility, 
carrying capacities, and others.
    With regard to future use of Honokohau beach, 19 individuals either 
spoke or wrote in opposition to allowing nude sunbathing there. Three 
of the letters were accompanied by petitions. These petitions contained 
a total of 442 signatures from individuals who opposed nude sunbathing 
in national parks. There were a total of 42 individuals who either 
spoke or wrote in favor of designating Honokohau beach as clothing 
optional. One of the

[[Page 19438]]

letters was accompanied by a petition with 189 signatures of 
individuals recommending the NPS designate Honokohau beach as clothing 
optional. This response persuaded the park to move forward with comment 
rulemaking.

Public Participation

    It is the policy of the Department of the Interior, whenever 
practicable, to afford the public an opportunity to participate in the 
rulemaking process. Accordingly, interested persons may submit written 
comments regarding this proposed rule to the address noted at the 
beginning of this rulemaking. The NPS will review these comments, as 
well as the comments received from the previous public meetings 
concerning the future use of Honokohau beach, and consider making 
changes to the rule based upon an analysis of the comments.

Drafting Information

    The principal authors of this proposed rulemaking are James Martin, 
Superintendent, Hawaii Volcanoes National Park; Bryan Harry, 
Superintendent, National Park Service, Pacific Island Support Office; 
Laura Carter-Schuster, Resource Manager, Kaloko-Honokohau National 
Historical Park; and Dennis Burnett, Washington Office of Ranger 
Activities, National Park Service.

Paperwork Reduction Act

    This rulemaking does not contain collections of information 
requiring approval by the Office of Management and Budget under the 
Paperwork Reduction Act of 1995.

Compliance With Other Laws

    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866. The Department of the Interior determined 
that this document will not have a significant economic effect on a 
substantial number of small entities under Regulatory Flexibility Act 
(5 U.S.C. 601 et seq). The economic effects of this rulemaking are 
local in nature and negligible in scope.
    The Service has determined and certifies pursuant to the Unfounded 
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule 
will not impose a cost of $100 million or more in any given year on 
local, State, or tribal governments or private entities.
    The Department has determined that this rule meets the applicable 
standards provided in Section 3(a) and 3(b)(2) of Executive Order 
12988.
    This rule is not a major rule under the Congressional review 
provisions of the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 804(2)).
    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 which 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 on 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, an EIS was issued in 1992 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, the NPS proposes to amend 36 CFR 
Chapter I 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 Section 7.87 is added to read as follows:


Sec. 7.87  Kaloko-Honokohau National Historical Park.

    Public nudity, including public nude bathing, by any person on 
Federal land or water within the boundaries of Kaloko-Honokohau 
National Historical Park is prohibited. Public nudity is a person's 
failure to cover with a fully opaque covering that person's own 
genitals, pubic areas, rectal area or female breast below a point 
immediately above the top of the areola when in a public place. Public 
place is any area of Federal land or water within the Historical Park, 
except the enclosed portions of restrooms or other structures designed 
for privacy or similar purposes. This section shall not apply to a 
person under 10 years of age.

    Dated: January 30, 1998.
Donald J. Barry,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 98-10322 Filed 4-17-98; 8:45 am]
BILLING CODE 4310-70-P