Kaloko-Honokohau National Historical Park, Hawaii Public Nudity

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

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