Kaloko-Honokohau National Historical Park, Hawaii Public Nudity

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.

-----------------------------------------------------------------------

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