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: Final rule.

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SUMMARY: The National Park Service (NPS) is issuing this final rule to

prohibit public nudity within the boundaries of Kaloko-Honokohau

National Historical Park, Hawaii. 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.

EFFECTIVE DATE: This rule becomes effective on May 21, 1999.

FOR FURTHER INFORMATION CONTACT: Bryan Harry, Superintendent, National

Park Service, Pacific Islands Support Office, 300 Ala Moana Blvd.,

Suite 6-226, P.O. Box 50165, Honolulu, Hawaii 96850. Telephone 808-541-

2693.

SUPPLEMENTARY INFORMATION:

Background

Public Law 95-625 (16 U.S.C. 396d) established Kaloko-Honokohau

National Historical Park 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

native Hawaiian practices.

In traditional Hawaiian culture, public nudity had strong social

connotations. The following excerpts, pertaining to nudity, document

the traditional viewpoint of Hawaiians. Nudity and public display of

genitals was very strictly regulated within a defined traditional

social context.

Mourning: * * * displaying genitals was 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 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 (hoopohopoho) 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

echoes 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.

The park initially attempted to encourage voluntary compliance to

prohibit 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.

A proposed rule was published in the Federal Register April 20,

1998 (63 FR 19436). The public comment period for the proposed rule was

open for 60 days.

Summary of Comments

We received a total of 1,355 letters and five petitions with

comments on the proposed rule during the public comment period ending

June 19, 1998. We have carefully considered all comments received. The

legitimate concerns of both Hawaiian residents and of individuals from

areas outside Hawaii were given consideration in the review process. In

addition, we completed a critical review of the content and format of

the final regulation. A summary of comments and our response to these

comments follows.

A total of 468 letters opposed the proposed rule to ban public

nudity at Kaloko-Honokohau. Of the 468 letters opposing the proposed

rule, 47 were from the State of Hawaii and 375 were from out-of-state.

Twenty-eight of the 47 Hawaii addresses were from the island of Hawaii

where this national historical park is located. The addresses of origin

of 46 of the letters opposing the rule could not be determined.

A total of 887 letters and the five petitions, containing a total

of 74 signatures, were in support of the proposed rule and against

public nudity at Kaloko-Honokohau. Of the 887 letters supporting the

rule, 849 had addresses from the State of Hawaii and eight had out-of-

state addresses. A total of 815 of the 887 Hawaii addresses were from

the island of Hawaii where this national historical park is located.

The addresses of origin of 30 letters could not be determined.

More than three hundred letters of comment opposing the rule

appeared to come from members of the Naturist Society and the American

Association for Nude Recreation (AANR). These letters contained

statements similar to those found in advisory alerts forwarded to

members by the Naturist Action Committee and contained in the AANR's

monthly publication, The Bulletin. Members were asked to submit

individual letters and were provided with the following suggested

points to make in those letters:

1. State that you are a federal taxpayer objecting to the proposed

rule against Nudity at Honokohau National Park.

2. You can also mention: That, as a federal taxpayer, you believe

national parks are for everyone; that, with the right planning, nude

recreation and other uses such as educational tours of the historic

park can be accommodated; and that the availability of nude beaches is

a factor in your decision-making about where you and your family choose

to spend vacation dollars.

A total of 317 letters opposing the proposed rule contained

references to the above points.

A total of 173 of the letters opposing the proposed rule disputed

or disagreed that public nudity could be construed as contemptuous and

insulting in traditional native Hawaiian culture and in conflict with

the stated purpose of the Kaloko-Honokohau National Historical Park.

These letters contained statements that native Hawaiians swam nude at

Honokohau beach for centuries and that nude use was not in conflict

with traditional practices by native Hawaiians, and that nude use of

Honokohau beach is not offensive to native Hawaiians.

Letters were received from members of Hawaii's Congressional

Delegation, a member of the State Legislature, the

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Office of Hawaiian Affairs, the Kaloko-Honokohau Advisory Commission,

the Naturist Society, the Naturist Action Committee, the American

Association of Nude Recreation, the Western Sunbathing Association, and

organizations and foundations representing Native Hawaiians. The

content of these letters is summarized below.

Hawaii Senator Daniel K. Inouye stated he was pleased to learn

that a proposed rule had appeared in the April 20, 1998 Federal

Register to prohibit nude sunbathing at Kaloko-Honokohau National

Historical Park. Senator Inouye requested that the proposed rule be

approved and ratified. The letter closed with the following: ``I am

convinced that this rule is essential to the proper management of

the national park, and as a means of demonstrating federal

sensitivity to native Hawaiian cultural practices and historic

sites.''

Hawaii Senator Daniel Akaka expressed full support for the

proposed rule to prohibit public nudity within the boundaries of

Kaloko-Honokohau National Historical Park. The senator added that

``[p]ublic nudity was never intended to be permitted on park

premises when Congress considered the establishment of the park.''

U.S. Congresswoman Patsy T. Mink, within whose district the

national historical park is located, wrote, ``to urge the adoption

of the proposed rule to prohibit nude sunbathing at Kaloko-Honokohau

National Historical Park.'' Congresswoman Mink further stated that

as the sponsor of legislation to establish Kaloko-Honokohau as a

national park, ``it was not my intention nor the intention of

Congress to allow public nudity at this significant Native Hawaiian

site.''

State of Hawaii Representative Paul Whalen, whose legislative

district contains Kaloko-Honokohau, supported including the proposed

rule in the Code of Federal Regulations. Representative Whalen's

letter stated ``[g]iven the stated purpose of the park and the

native Hawaiian view of public nudity, nude sunbathing at the park

site is both inappropriate for such a learning center and culturally

insensitive.''

The Hawaii Island Trustee of the Office of Hawaiian Affairs

supported the proposed regulation prohibiting public nudity at

Kaloko-Honokohau National Historical Park. The Trustee stated that

public nudity runs counter to the purpose of the park which is for

reorientation to things Hawaiian. The Office of Hawaiian Affairs was

established by the Hawaii Legislature as a self-governing, corporate

body whose purpose is the betterment of conditions for all

Hawaiians.

A letter was received from the Chairman of the Na Hoa Pili O

Kaloko-Honokohau, the Advisory Commission established by Congress to

advise NPS ``with respect to the historical, archeological,

cultural, and interpretive programs of the park.'' The letter stated

that at the Commission's December 13, 1997 meeting the members

present voted unanimously in favor of an amended motion to ban all

nudity in the park. The letter further stated that at their March

28, 1998 meeting, the Commission reiterated its position that nudity

at the park be prohibited.

The Founder and President of the Naturist Society (TNS)

requested that the proposed rule be discarded and in its place a

Special Regulation be formulated to provide for the management of

nude recreation at Honokohau Beach. TNS has been actively engaged

for nearly two decades in promoting nude recreation on appropriate

public lands.

The American Association of Nude Recreation (AANR), on behalf of

its more than 50,000 members wrote to request that the proposed rule

be delayed and ultimately rescinded. The AANR based its request on

pending cases related to the current ban on nudity at Kaloko-

Honokohau and their awareness of a forthcoming lawsuit challenging

both the current ban and the proposed rule. Further, AANR's letter

presented the view that informational signs could be posted in the

park to manage conflicting uses.

The Naturist Action Committee (NAC), affiliated with the

Naturist Society, expressed opposition to the proposal to prohibit

public nudity at Honokohau Beach. The letter asked that the proposed

rule be abandoned and a Special Regulation be established to express

a more positive attitude toward nude recreation at Kaloko-Honokohau.

NAC's stated objectives focus on perpetuating nude recreational

activities that have existed on federal and state-managed

recreational lands for many generations.

A letter was received from Ms. Mililani Trask on behalf of Ka Lahui

Hawaii, a native Hawaiian organization claiming membership of 23,000

individuals of Hawaiian heritage. The letter, in part, states:

Nudity in our Hawaiian culture was not and is not culturally

appropriate. In our culture, public nudity was considered insulting

and contemptuous and where it occurred in relation to sacred sites

(wahi pana), it was considered an act of desecration. The only

exceptions to this rule are religious ritual and mourning. These

exceptions do not apply to Pu'uoina Heiau [a sacred Hawaiian temple

near Honokohau beach]. Our cultural practices regarding nudity have

been well documented by Ms. Mary Kawena Pukui, a renowned and often

cited cultural expert.

The Edith Kanaka'ole Foundation, a private non-profit organization

established to uphold and practice the indigenous Hawaiian culture,

opposed naked sunbathing in the National Park of Kaloko-Honokohau. The

letter states why nudity in general and naked sunbathing in particular

was not and is not a traditional Hawaiian cultural practice.

The President of the Western Sunbathing Association, an affiliate

of AANR, wrote to oppose the proposed ban on nudity at Honokohau Beach.

The letter stated that until the enactment of the temporary ban on

nudity effective January 1, 1997, nudists had peacefully coexisted with

other beach users for many years. The association has over 8,000

members and is affiliated with the Kona Sun Club.

The chairperson of Na Kokua Kaloko-Honokohau, a non-profit

organization established to assist NPS at Kaloko-Honokohau, wrote in

opposition to nude sunbathing in Kaloko-Honokohau National Historical

Park and in support of the proposed rule.

A letter and a petition containing 25 signatures were received from

the Waimea Hawaiian Civic Club. These civic organizations were formed

throughout the State of Hawaii to promote the interests of native

Hawaiians. The purpose of the Waimea Hawaiian Civic Club's letter was

to inform NPS of their stand banning nudity in public places in Hawaii,

particularly at Kaloko-Honokohau.

None of the letters of comment supporting the proposed rule

included suggestions or recommendations for any modification in content

or format. Therefore, we have not prepared responses to comment letters

supporting the proposed rule.

The following are responses to statements and suggestions made in

several hundred comment letters opposing the proposed rule:

Comment: With the right planning, nude recreation can be

accommodated at the park.

Response: The practice of nude sunbathing at Kaloko-Honokohau is a

recreational activity that has been the cause of many complaints over

the past decade from visitors and is therefore considered to be

disruptive to orderly management of the park. Restricting this activity

to certain locations within the park and/or to certain times has been

eliminated as a management option because Honokohau beach is a small

area and cultural practices take place throughout the park at different

times. More important, nude sunbathing is a recreational activity that

is in conflict with the purpose for which this national historical park

was established. Therefore, anything less than a prohibition of public

nudity at Kaloko-Honokohau is judged to be not feasible.

Comment: Public nudity is consistent with native Hawaiian culture

and the stated purpose of the park and is not offensive to the native

Hawaiians.

Response: The published cultural and historical record and the

views of contemporary cultural experts, including native Hawaiians, do

not support this view. Historically, in Hawaii, nudity has a wide range

of strong social connotations from submission to spiritual ties to the

aina, or earth. When done without purpose,

[[Page 19482]]

the exposure of the buttocks and anal area could be construed as a

supreme gesture of contempt. Displaying genitals was neither common nor

approved. Such actions were excusable during mourning only because the

mourner was considered pupule (crazy) from grief. In general, adult

nudity, outside of the family and without a reason for it, was

disapproved. Today, the reaction of contemporary cultural experts to

public nudity is consistent with the Hawaiian pre-missionary view of

nakedness.

The stated purpose of the park is to ``provide a center for the

preservation, interpretation, and perpetuation of the traditional

native Hawaiian activities and culture* * *'' Public nudity, an

activity that can be construed as contemptuous and insulting to

traditional native Hawaiian culture, is in direct conflict with the

above stated purpose.

Letters of comment received from contemporary native Hawaiian

individuals and organizations consistently maintain that they regard

public nudity is regarded by them to be offensive.

Comment: Rescind the proposed rule because of the pending criminal

case involving the nudity prohibition in the superintendent's

compendium. Because the case raises several Constitutional issues, its

outcome could well conflict with the proposed rule.

Response: The defendants in that case withdrew their constitutional

challenge to the compendium closure. Therefore, the ruling on this case

will not conflict with this rulemaking.

Comment: The proposed rule should be rescinded because the AANR is

aware of a civil lawsuit about to be filed in federal court, which

poses similar concerns.

Response: The possibility of future lawsuits is not a sufficient

basis for NPS to rescind this rulemaking.

Comment: A preferable way to prevent conflict among users of

Honokohau is with informational signs providing notice of areas where

clothes-free swimming and sunbathing occur.

Response: Informational signs would not prevent the conflicts

between users engaged in public nudity and the traditional Hawaiian

cultural purposes for which the park was established.

Comment: Formulate a new Special Regulation that provides FOR the

management of nude recreation.

Response: Such a rule would be inconsistent with the park's

enabling legislation and would derogate the values and purposes for

which the park was established. The purpose of the proposed rule is to

create an ambience and setting that fosters rather than inhibits the

preservation and perpetuation of the traditional Hawaiian culture.

Comment: Until the enactment of the temporary ban on nudity

effective January 1, 1997, nudists had peacefully coexisted with other

beach users for many years.

Response: Since acquiring the property on which nude sunbathing is

occurring, NPS has regularly received complaints from visitors--

cultural education groups, the native Hawaiian community, school

groups, and segments of the general public--regarding the presence of

nude sunbathers in the park. Park rangers, in a lengthy series of case

incident reports, document all these complaints. Some visitors stated

they would choose to stay away rather than to visit the park where this

kind of recreational activity was taking place.

Comment: Nude recreation is a legal activity on federal property, a

point well established by NPS's own Special Directive 91-3 (Information

on Public Nudity) dated May 29, 1991.

Response: This Special Directive, which Kaloko-Honokohau has

followed, provides the following information on NPS policy regarding

recreational activities:

The National Park Service will encourage recreational activities

that are consistent with applicable legislation, and that are

compatible with other visitor uses.

Unless the activity is mandated by statute, the National Park

Service will not allow a recreational activity in a park or in

certain locations within a park if it would involve or result in * *

* unacceptable impacts on visitor enjoyment due to interference with

or conflict with other visitor use activities, among other things.

When unacceptable visitor conflicts occur, as a result of public

nudity, a resolution of the situation should be attempted

informally, if appropriate, with the persons who are the subjects of

the complaint. If informal attempts fail to resolve the conflict and

enforcement action becomes necessary, the option may exist of either

applying NPS regulations, or State or local laws that specifically

prohibit public nudity. The latter method has the advantage of

providing consistency in enforcement on both Federal lands and

adjacent areas.

Park areas experiencing a particularly difficult situation that

cannot be solved by the above methods may wish to propose park

specific rulemaking that will address these problems.

Notwithstanding that nude sunbathing is inconsistent with the

park's enabling legislation and that the park received many complaints

from visitors about this recreational activity, the NPS, over a period

of several years, attempted to resolve the situation informally with

the persons who were the subjects of the complaint. In addition,

attempts were made to apply State or county laws that prohibit public

nudity. None of these attempts succeeded in resolving the situation and

the Superintendent subsequently chose to propose park specific

rulemaking to address this problem.

Comment: Naturist individuals and organizations in Hawaii were

unable to gain a place at the table in the discussion of management

options at Kaloko-Honokohau National Historical Park.

Response: The proponents of recreational nudity, including

naturists, stated their views in substantial numbers at the public

scoping meetings held in 1991 on the proposed general management plan.

At these meetings and during the open public comment period that

followed, the NPS was asked to designate Honokohau beach as clothing

optional. In 1992, during the public meetings on the draft general

management plan and during the open public comment period that

followed, proponents of public nudity at Honokohau beach again asked

that Honokohau beach be designated clothing optional. The NPS carefully

weighed the feasibility of these requests against the park's enabling

legislation and other public comments received during the development

of the general management plan. Approved in 1994, the plan, while

recognizing the use of Honokohau beach by nude sunbathers, states that

this use will be prohibited in the future as the park is developed.

Moreover, during the 60-day comment period on the proposed rule,

naturists were able to express their views regarding recreational

nudity at Kaloko-Honokohau. Over the past several years, there have

been many opportunities for naturists to discuss the future of

recreational nudity at Kaloko-Honokohau with the NPS.

After careful review and analysis of the comments received during

the public review period, NPS finds that the proposed rule is in accord

with the congressionally established purpose of this national

historical park. Specifically, the NPS judges the proposed rule to be

consistent with Section 505(a) of Public Law 95-625 which states the

purpose of Kaloko-Honokohau National Historical Park to be ``the

preservation, interpretation, and perpetuation of traditional native

Hawaiian activities and culture.* * *'' Further, the NPS finds the

proposed rule to be consistent with what past and contemporary cultural

experts inform the Park Superintendent is Hawaiian tradition. Finally,

the letters of comment contained no information that would

[[Page 19483]]

cause the NPS to modify either the content or format of the proposed

rule.

Drafting information. The principal authors of this final rule are

James Martin, Superintendent, Hawaii Volcanoes National Park; Bryan

Harry, Superintendent, National Park Service, Pacific Islands Support

Office; Laura Carter-Schuster, Resource Manager, Kaloko-Honokohau

National Historical Park; Dennis Burnett and Chip Davis, Washington

Office of Ranger Activities, National Park Service.

Compliance With Other Laws

Regulatory Planning and Review (E.O. 12866)

This document is not a significant rule and has been reviewed by

the Office of Management and Budget under Executive Order 12866.

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.

This rule will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency. The rule

is local in nature and only impacts visitors to the Kaloko-Honokohau

National Historical Park. Visitor conflicts will be reduced, enhancing

the enjoyment of the area for the vast majority of visitors, who were

previously offended by public nudity.

This rule does not alter the budgetary effects or entitlements,

grants, user fees, or loan programs or the rights or obligations of

their recipients. The rule will not adversely impact public visitation

or perpetuation and observance of traditional Native Hawaiian cultural

practices for which the park was established.

This rule does raise novel legal or policy issues.

Regulatory Flexibility Act

The Department of the Interior certifies that this document will

not have a significant economic effect on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The economic effects of this rulemaking 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. This rule:

a. Does not have an annual effect on the economy of $100 million or

more.

b. Does not represent a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions.

c. 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.

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.

Federalism (E.O. 12612)

In accordance with Executive Order 12612, the rule does not have

sufficient federalism implications to warrant the preparation of a

Federalism Assessment. State Representatives and organizations

expressed support for the rule.

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.

Paperwork Reduction Act

This regulation does not require an information collection from 10

or more parties and submissions under the Paperwork Reduction Act or

OMB form 83-I are not required. The visitor use management aspect of

this rule does not require information collection.

National Environmental Policy Act

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 that 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 upon 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, a Final EIS and Record of Decision were issued in 1994 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, 36 CFR Chapter I is amended 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 Sec. 7.87 is added to read as follows:

Sec. 7.87 Kaloko-Honokohau National Historical Park.

(a) Is public nudity prohibited at Kaloko-Honokohau National

Historical Park? Yes. Public nudity, including nude bathing, by any

person on Federal land or water within the boundaries of Kaloko-

Honokohau National Historical Park is prohibited. This section does not

apply to a person under 10 years of age.

(b) What is public nudity? Public nudity is a person's failure,

when in a public place, to cover with a fully opaque covering that

person's genitals, pubic areas, rectal area or female breast below a

point immediately above the top of the areola.

(c) What is a public place? A public place is any area of Federal

land or water subject to Federal jurisdiction within the boundaries of

Kaloko-Honokohau National Historical Park, except the enclosed portions

of restrooms or other structures designed for privacy or similar

purposes.

Dated: April 7, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-9958 Filed 4-20-99; 8:45 am]

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