Proposed Rule to Allow Hopi Tribal Members
To Take Golden Eagles in Wupatki National Monument
JANUARY 24, 2001
[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Proposed Rules]
[Page 6516-6521]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-49]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AC86
Special Regulations; Areas of the National Park System; Religious
Ceremonial Collection of Golden Eaglets From Wupatki National Monument
AGENCY: National Park Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The National Park Service (NPS) has preliminarily determined
that under certain circumstances it is appropriate to allow the Hopi
Tribe to collect golden eaglets within Wupatki National Monument, a
unit of the National Park System, for religious ceremonial purposes.
This rule would authorize this activity upon terms and conditions
sufficient to protect park resources against impairment, and consistent
with the Bald and Golden Eagle Protection Act.
DATES: Written comments will be accepted by mail, fax, or electronic
mail through March 23, 2001.
ADDRESSES: Comments should be addressed to: Kym Hall, National Park
Service, 1849 C Street, N.W., Room 7413, Washington, DC 20240. Fax:
(202) 208-6756. Email: WASO_Regulations@nps.gov.
FOR FURTHER INFORMATION CONTACT: Sam Henderson, Superintendent, Wupatki
National Monument, 6400 N. Highway 89, Flagstaff, Arizona 86004.
Telephone: (520) 526-1157. Fax: (520) 526-4259. Email:
WUPA_superintendent@nps.gov or Dr. Patricia Parker, Chief, American
Indian Liaison Office, National Park Service, 1849 C Street, N.W., Room
3410, Washington, DC 20240. Telephone: (202) 208-5475. Fax: (202) 208-
0870. Email: Pat_Parker@nps.gov
SUPPLEMENTARY INFORMATION:
Existing Regulations
A subsection of NPS regulations, promulgated in 1983, prohibits
``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. 36 CFR
2.1(a).
Another provision of these regulations authorizes NPS to issue
permits allowing the collection of national park system resources for
research upon certain conditions. 36 CFR 2.5(b). No such permit may be
issued except to:
an official representative of a reputable scientific or educational
institution or a State or Federal agency for the purpose of
research, baseline inventories, monitoring, impact analysis, group
study, or museum display when the superintendent determines that the
collection is necessary to the stated scientific or resource
management goals of the institution or agency and that all
applicable Federal and State permits have been acquired, and that
the intended use of the specimens and their final disposal is in
accordance with applicable law and Federal administrative policies.
In addition, a permit may not be issued if ``removal of the
specimen would result in damage to other natural or cultural resources,
affect adversely environmental or scenic values, or if the specimen is
readily available outside of the park area.''
Subsection 2.5(c) prohibits issuing a permit to take a specimen
that is listed as an endangered or threatened species under state or
federal law unless the specimen ``cannot be obtained outside of the
park area and the primary purpose of the collection is to enhance the
protection or management of the species.'' Subsection 2.5(f) prohibits
issuing a research collection permit in park areas where the enabling
legislation prohibits the killing of wildlife.
NPS regulations allow a park superintendent to ``designate certain
fruits, berries, nuts or unoccupied seashells which may be gathered by
hand for personal use or consumption'' if ``the gathering or
consumption will not adversely affect park wildlife,'' or otherwise
adversely affect the plant species, or park resources. 36 CFR
2.1(c)(1). Another subsection addresses the ceremonial use of NPS
resources, stating that the regulations ``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].'' 36 CFR
Sec. 2.1(d). The preamble to this rulemaking explained that the
provision was added in response to comments that had ``questioned the
applicability'' of the regulation in such circumstances, and went on to
say:
The Service recognizes the American Indian Religious Freedom Act
directs the exercise of discretion to accommodate Native religious
practice consistent with statutory management obligations. The
Service intends to provide reasonable access to, and use of, park
lands and park resources by Native Americans for religious and
traditional
activities. However, the National Park Service is limited by law and
regulations from authorizing the consumptive use of park resources.
(48 FR 30,252 (1983)).
The Need To Revise the Regulations
In 1999, members of the Hopi Tribe requested permission from the
NPS to take golden eaglets from Wupatki National Monument for religious
purposes. Citing the National Park Service Organic Act and 36 CFR 2.1,
2.2, and 2.5, the NPS denied the Hopi request. The Assistant Secretary
for Fish and Wildlife and Parks then withdrew the NPS denial in order
to reconsider the issue. Upon advice of the Solicitor, as explained
below, the proposal is being made to change the regulation to allow
favorable action on the Hopi request.
The practice of eagle gathering is at the heart of the Hopi
religious ceremonial cycle and the Hopi culture. The eagle serves as
the link between the spiritual world and the physical world of the
Hopi, a connection that embodies the very essence of Hopi spirituality
and belief. Golden eaglets are gathered from nests soon after birth and
are kept and raised to fledglings in Hopi villages. Later, during the
Niman Kachina ceremony, the golden eagles are sacrificed and ``sent''
to their spiritual home. The eagles' feathers are subsequently used in
all Hopi religious ceremonies such as the Kachina, Flute, and Snake
ceremonies. The cyclical relationship between the eagle and the Hopi is
renewed annually through the practice of eaglet gathering, sustaining
the connection between the spiritual and physical worlds for the next
generation of Hopi.
The importance that the Hopi attach to the ceremonial gathering of
eagles is expressed in Article IV of the Tribal Constitution approved
by Secretary of the Interior Ickes on December 19, 1936:
The Tribal Council shall negotiate with the United States
Government agencies concerned, and with other tribes and other
persons concerned, in order to secure protection of the right of the
Hopi Tribe to hunt for eagles in its traditional territories, and to
secure adequate protection for its outlying, established shrines.
Only a few of the Hopi clan and religious societies bear the
important ceremonial obligation of eagle gathering, and each of these
has a traditional area from which it--and no other clan or society that
is not related to it--may gather eagles. Hopi clan ownership of
traditional eagle nests is well documented in the anthropological
literature. ``The nests of eagles near village ruins are owned by the
descendants of clans which once lived in their neighborhood.'' Jesse
Walter Fewkes, Property Rights in Eagles Among the Hopi, 2 American
Anthropologist (n.s.), 690-707, 693 (1900). ``The territory around the
Hopi villages where eagles may be found is, and has been from time
immemorial, divided into portions or allotments, which are controlled
by certain clans or families. These territories extend as far as 50 and
60 miles from the villages.'' H.R. Voth, Notes on the Eagle Cult of the
Hopi, collected in H.R. Voth, Brief Miscellaneous Hopi Papers, Field
Columbian Museum, Publication 157, 107-109, Anthropological Series
11(2)(1912). Clan ownership of eagle nesting areas corresponds to the
early settlement areas and migration routes of the clans before they
arrived at their modern villages. The Hopi regard the eagles as
embodying the spirits of their ancestors, and the clan areas often
contain, or are very close to, Hopi clan ruins.
Anthropologists have described the ``famous nest at Wupatki'' as an
important area for traditional eagle gathering by the Hopi. Florence H.
Ellis, The Hopi: Their History and Use of Lands (n.d.) 149-154,
collected in Hopi Indians (1974). Wupatki National Monument was set
aside by President Coolidge in 1924 under the authority of the
Antiquities Act, 16 U.S.C. Secs. 431-33. The Proclamation is silent on
eagle gathering. It identified the purpose of the monument in language
common to the time; that is, to reserve and protect ``prehistoric ruins
built by the ancestors of a most picturesque tribe of Indians still
surviving in the United States, the Hopi or People of Peace.'' Proc.
No. 1721 (43 Stat. 1977).
Legal Considerations
The National Park Organic Act created the NPS and defined its
purpose in relevant part as follows:
The service * * * shall promote and regulate the use of the
Federal areas known as national parks, monuments and reservations *
* * by such means and measures as conform to the fundamental purpose
* * * which purpose is to conserve the scenery and the natural and
historic objects and the wildlife therein and to provide for the
enjoyment of the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations. 16 U.S.C.
1.
The 1916 Act further authorizes the Secretary of the Interior to
make ``such rules and regulations as he may deem necessary or proper
for the use and management of'' the National Park System, and to
``provide in his discretion for the destruction of such animals and of
such plant life as may be detrimental to the use of'' units of the
National Park System. 16 U.S.C. 3.
In 1978, section 1 of the Organic Act was amended to include these
provisions:
Congress declares * * * [that the] National Park System [shall
be] preserved and managed for the benefit and inspiration of all the
people of the United States * * * [and] directs that the promotion
and regulation of the various areas of the National Park System * *
* shall be consistent with and founded in the purpose established by
Section 1 * * * to the common benefit of all the people of the
United States. The authorization of activities shall be construed
and the protection, management, and administration of these areas
shall be conducted in light of the high public value and integrity
of the National Park System and shall not be exercised in derogation
of the values and purposes for which these various areas have been
established except as may have been or shall be directly and
specifically provided by Congress. 16 U.S.C. 1a-1.
With some exceptions, the NPS has generally prohibited consumptive
uses of National Park System resources except as specifically
authorized by Congress. Applicable regulations generally prohibit
hunting of wildlife, and prohibit removal of plants, paleontological,
archeological, cultural or mineral resources, but allow recreational
fishing and the collection of fruits, nuts, and berries for personal
consumption. See 36 CFR 2.1(a); 2.1(c); 2.2 and 2.3.
Constitutional Considerations and Statutes, Court Decisions, and
Executive Orders that Address Indian Religious Ceremonial Concerns
The following discussion explains why we believe applicable laws
and policies allow the NPS to accommodate the Hopi's religious
ceremonial interest in collecting golden eaglets (Aquila chrysaeots) at
Wupatki National Monument to the extent it will not result in
impairment of the resources protected by the National Park Service
Organic Act.
Constitutional considerations. The leading judicial guidance on the
intersection between management of federal non-Indian lands and Indian
religious practices is Lyng v. Northwest Indian Cemetery Protective
Ass'n, 485 U.S. 439 (1988). The Supreme Court there made clear that the
First Amendment's free exercise clause permits curtailing Indian
religious practices on federal lands in appropriate circumstances. See
also U.S. v. Hugs, 109 F.3d 1375 (9th Cir. 1997) (permit requirement of
Bald and Golden Eagle Protection Act does not violate free exercise
clause when applied to Native
American religious practices, even though it imposed a substantial
burden on the practice of Native American religions in which eagles and
eagle parts ``play a central role,'' because it was the least
restrictive means of serving the compelling governmental interest of
protecting eagles, while permitting access to eagles and eagle parts
for religious purposes); Regulation of Hardrock Mining (Solicitor's
Opinion M #36999, Dec. 27, 1999) (Constitution does not compel
rejection of the proposed mining plan on BLM-managed public land even
though it would seriously and irreparably degrade a cultural resource
of importance to a nearby Indian Tribe). The Constitution does not, in
other words, require the National Park Service to accommodate uses, by
Indians or others, of national park system resources for religious
ceremonial purposes. The Supreme Court also said in Lyng, however, that
``the Government's rights to the use of its own land * * * need not and
should not discourage it from accommodating [Indian] religious
practices * * *'' 485 U.S. at 454. See also Solicitor's Opinion M
#36999, at 5. Such accommodations may be undertaken in appropriate
cases without raising questions under the establishment clause of the
First Amendment. See Bear Lodge Multiple Use Assoc. v. Babbitt, 175
F.3d 814 (10th Cir. 1999), cert. denied, 2000 WL 305849 (March 27,
2000) (upholding Park Service's encouragement of a voluntary month-long
``no-climb'' period at Devil's Tower National Monument in order to
accommodate Indian religious practices); Office of Legal Counsel,
Department of Justice, Memorandum to the Secretary of the Interior--
Permissible Accommodation of Sacred Sites, September 18, 1996, p. 1
(federal government ``has broad latitude to accommodate the use of
sacred sites by federally recognized Indian tribes'' without violating
the establishment clause).
Such accommodations may appropriately provide preferences for
Indian tribes and their members. Such preferences have unique and deep
roots in American law, and may be upheld when similar practices
involving others might not pass muster. See, e.g., Morton v. Mancari,
417 U.S. 535 (1974) (Bureau of Indian Affairs hiring preference for
Indians upheld because policy was based on political relationship
between Tribes and Federal Government); Rupert v. Director, U.S. Fish &
Wildlife Service, 857 F. 2d 32 (1st. Cir. 1992) (upholding exemption
from criminal prosecution for possession of eagle feathers by members
of federally recognized tribes); Peyote Way Church of God v.
Thornburgh, 922 F.2d 1210, 1217 (5th Cir. 1991) (upholding statutory
exemption from laws prohibiting peyote possession for Native American
Church members, the court noting that the federal-tribal relationship
``precludes the degree of separation between church and state
ordinarily required by the First Amendment''); United States v. Gibson,
2000 WL 117987 (11th Cir. Aug. 21, 2000) (limitation of religious use
exemption under Bald and Golden Eagle Protection Act to Indians who
were members of federally recognized tribes did not violate non-tribal
members'' constitutional or statutory free exercise rights).
The Religious Freedom Restoration Act (RFRA). RFRA, enacted in
1993, 42 U.S.C. 2000bb et seq., provides that the government may
substantially burden a person's exercise of religion only if the
exercise is in furtherance of a compelling governmental interest and it
is the least restrictive means of furthering that compelling
governmental interest.\1\ There is a reasonable argument that the NPS
regulations prohibiting collection of golden eaglets in Wupatki
National Monument may substantially burden the Hopis' exercise of
religion, to the extent that collection of these resources may be
regarded as a necessary element in the Hopis' religious ceremony.
Whether the prohibition could be sustained under RFRA would depend on
whether there is a compelling governmental interest at stake, and
whether the prohibition is the least restrictive means of furthering
it. Since the NPS is charged with the conservation of wildlife under
its Organic Act, 16 U.S.C. 1, it is understood that the NPS has a
compelling governmental interest in the absolute bar on the take of
wildlife for all purposes except scientific research. There is a
question however if this prohibition is the least restrictive means to
further that interest. The question becomes more difficult given the
Hopi religion's necessity of taking a golden eaglet from a specific
location of historical and religious importance, in this instance,
Wupatki National Monument. Prohibiting this religious exercise may
amount to a substantial burden on their religion. Cf. Callahan v.
Woods, 736 F.2d 1269, 1272 (9th Cir. 1984) (``If the compelling state
goal can be accomplished despite the exemption of a particular
individual, then a regulation which denies an exemption is not the
least restrictive means of furthering the state interest.'') We do not
have to reach these questions here, however, if the NPS has the
authority to, and has decided to accommodate, the Hopi Tribe's
religious ceremonial collection of golden eaglets at Wupatki National
Monument. Plainly the RFRA encourages, and does not prohibit, such
accommodation.
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\1\ The Supreme Court has held that RRA is unconstitutional as
applied to state governments, City of Boerne v. Flores, 521 U.S.
507, 117 S.Ct. 2157 (1997), but the question here is the impact of
RFRA on the federal government.
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The American Indian Religious Freedom Act (AIRFA). This Act,
enacted in 1978, declares ``the policy of the United States to protect
and preserve for American Indians their inherent right of freedom to
believe, express and exercise the[ir] traditional religions * * *
including but not limited to access to sites, use and possession of
sacred objects, and the freedom to worship through ceremonials and
traditional rites.'' 42 U.S.C. 1996. The second section of AIRFA, not
codified in the U.S. Code, requires the President to direct the various
federal agencies responsible for administering relevant laws to
``evaluate their policies and procedures in consultation with native
traditional religious leaders in order to determine appropriate changes
necessary to protect and preserve Native American religious cultural
rights and practices,'' and directed the President to report to
Congress with twelve months of enactment the results of the evaluation.
92 Stat. 469.
The Secretary of the Interior convened a task force of federal
agencies, which issued the report called for by Congress. American
Indian Religious Freedom Act Report (Federal Agencies Task Force,
August 1979). The Task Force discussed, among other things, the problem
of restricting the gathering of indigenous natural substances from
federal lands for use in Indian religious ceremonies and practices,
noting in particular that the ``gathering of a specific plant or animal
may be forbidden or limited by conservation statutes.'' Id. at 51-53.
It recommended that each agency ``accommodate Native American religious
practices to the fullest extent possible'' under existing statutes, and
also that agencies ``revise existing regulations, policies and
practices to provide for separate consideration of any Native American
religious concerns * * *. Id. at 62-63. The report also recommended
that agencies ``provide exemptions from restrictions on access to and
gathering, use and possession of federal property for Native American
religious purposes similar to those provided for scientific purposes.''
Id. at 63.
AIRFA does not create any judicially enforceable rights. Lyng v.
Northwest
Indian Cemetery Protective Ass'n, 485 U.S. 439, 455, 471 (1988). Courts
have, however, construed AIRFA to require federal agencies to:
learn about, and to avoid unnecessary interference with, traditional
Indian religious practices, [and to] evaluate their policies and
procedures in light of the Act's purpose, and ordinarily should
consult Indian leaders before approving a project likely to affect
religious practices. AIRFA does not, however, declare the protection
of Indian religions to be an overriding federal policy, or grant
Indian religious practitioners a veto on agency action.
Wilson v. Block, 708 F.2d 735, 746 (D.C. Cir. 1983) cert. denied,
464 U.S. 956 (1983). Thus AIRFA requires federal agencies to consider,
but not necessarily to defer to, Indian religious values. Id. at 747.
See also Havasupai Tribe v. U.S., 752 F. Supp. 1471, 1488 (D. Ariz.
1990), aff'd 943 F.2d 32 (9th Cir. 1991), cert. denied, 503 U.S. 959
(1992); cf. Lyng, supra, 485 U.S. at 454.
Executive Orders and other Policy Statements. A 1994 policy
statement, and Executive Orders issued in 1996 and 1998, have all
promoted government accommodation of Indian religious practices within
the limits of agency discretion. President Clinton's ``Policy
Concerning Distribution of Eagle Feathers for Native American Religious
Purposes'' (1994) recognizes the important place eagles occupy in many
Native American religious and cultural practices and directs executive
departments and agencies to ``work cooperatively with tribal
governments and to reexamine broadly their practices and procedures to
seek opportunities to accommodate Native American religious practices
to the fullest extent under the law.'' 59 FR 22,953 (Apr. 29, 1994).
President Clinton's 1996 Executive Order on Sacred Sites directs
that federal agencies:
shall, to the extent practicable, permitted by law, and not clearly
inconsistent with essential agency functions, (1) accommodate access
to and ceremonial use of Indian sacred sites by Indian religious
practitioners and (2) avoid adversely affecting the physical
integrity of such sacred sites.
Executive Order 13,007, section 1, 61 FR 26,771 (1996). The Order
defines ``sacred site'' as a ``specific, discrete, narrowly delineated
location of Federal land'' identified by tribal interests as ``sacred
by virtue of its established religious significance to, or ceremonial
use by an Indian religion.'' Id. Sec. 1(b)(iii). While the Order does
not reach directly to the collection of plants or wildlife on federal
land for Indian religious purposes, it is suggestive of accommodation
where possible. The Departmental Manual implementing the Sacred Sites
Executive Order requires Interior agencies to establish procedures that
accommodate ``access to and ceremonial use by religious Indian
practitioners of Indian sacred sites'' and to ``consult with tribal
governments and give full consideration to tribal views in its decision
making process.'' 512 DM Secs. 3.4(1)(b); 3.7 (1998).
President Clinton's 1998 Executive Order on Consultation and
Coordination with Indian Tribal Governments states in pertinent part
that ``each agency shall, to the extent practicable and permitted by
law, consider any application by an Indian tribal government for a
waiver of statutory or regulatory requirements.'' No. 13,084, 63 FR
27655 (May 14, 1998). Recently, President Clinton reaffirmed the United
States' commitment to consultation with Indian tribal governments and
issued Executive Order 13175 (November 6, 2000) which details the
process agencies must follow to ensure meaningful and timely input from
tribal officials in the development of regulations or policies that
have tribal implications.
None of these executive directives purport to (nor could they)
provide legal authority to override existing laws such as those that
govern management of the national park system. To the extent permitted
by law, however, they direct federal agencies to accommodate uniquely
Indian needs.
General discussion and conclusion. In light of the statutes, court
decisions, executive orders and other legal considerations discussed
above, we believe the NPS has a reasonable legal basis for promulgating
a regulation that allows the Hopi Tribe to collect golden eaglets at
Wupatki National Monument for religious ceremonial purposes. The
collection of golden eaglets from specific geographic areas is an
important part of the Hopi religion, and there is an ancestral and
historical connection between the Hopi Tribe and Wupatki National
Monument. The proposed regulation would allow the NPS to include terms
and conditions, including gathering times, take limits, and permit
tenure, that are sufficient to protect the park resources against
impairment, and would require compliance with the Bald and Golden Eagle
Protection Act.
The proposed regulation, and the accompanying environmental
assessment, applies only to this narrow situation. It is possible that
the NPS will receive requests from other tribes for similar rule
changes to address their religious practices. Such requests will be
addressed on their merits. Any further rule change must follow notice
and comment and other procedures required by applicable law. The
current proposal is to deal strictly and exclusively with the Hopi
Tribe's proposal to collect golden eaglets at Wupatki National
Monument.
Public Participation: If you wish to comment, you may submit your
comments by any one of several methods. You may mail comments to the
National Park Service, Ranger Activities Division, Suite 7408, 1849 C
St. NW., Room 7413, Washington, DC 20240. You may also comment via the
Internet to WASO_Regulations@nps.gov. Please submit Internet comments
as an ASCII file avoiding the use of special characters and any form of
encryption. Please include ``RIN 1024-AC86'' in your subject line and
your name and return address in the body of your message. Finally, you
may hand-deliver comments to Kym Hall, National Park Service, 1849 C
St. NW., Room 7413, Washington, DC 20240. Our practice is to make
comments, including names and home addresses of respondents, available
for public review during regular business hours. Individual respondents
may request that we withhold their home address from the rulemaking
record, which we will honor to the extent allowable by law. There also
may be circumstances in which we would withhold from the rulemaking
record a respondent's identity, as allowable by law. If you wish us to
withhold your name and/or address, you must state this prominently at
the beginning of your comment. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
Drafting Information: The principal author of this proposed
interpretive rule is John Leshy, Solicitor, Department of the Interior.
Compliance With Other Laws
Regulatory Planning and Review (E.O. 12866)
In accordance with the criteria in Executive Order 12866, OMB has
determined the rule not to be significant.
(1) 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.
(2) This rule does not interfere with actions taken or planned by
another agency. The Hopi must obtain a permit from the Fish and
Wildlife Service before being allowed to collect golden eaglets.
However, this rule does not at all affect the standards, times or
necessary elements for obtaining that permit. This rule only addresses
the ability of the Hopi to collect golden eaglets from Wupatki National
Monument after they have received the necessary permit from FWS.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or monetary loan programs or the rights or
obligations of their recipients.
(4) This proposed rule may be controversial because it proposes to
allow a new collection of wildlife, but it proposes to do so only in
very extremely limited circumstances, for a single or very few
specimens of a single species of non-endangered wildlife in a single
unit of the National Park System for a very narrowly defined purpose by
a single entity, and only then when it is determined by the U.S. Fish &
Wildlife Service and the National Park Service to be consistent with
the laws protecting wildlife and with the laws preventing impairment of
natural resources in the National Park System, respectively.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).
The economic effects of this rule 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. The rule will have no
effect on small or large businesses. It addresses only the Hopi Tribe's
religious ceremonial collection of golden eaglets at Wupatki National
Monument and involves no small businesses. This rule:
1. Does not have an annual effect on the economy of $100 million or
more.
2. Does not represent a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
3. 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. The Department has
determined that this rule meets the applicable standards provided in
section 3(a) and 3(b)(2) of Executive Order 12988.
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. The rule addresses only Hopi collection of golden eaglets
from Wupatki National Monument, and no private property rights are
involved or affected.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This regulation will not have a substantial
direct effect on the states, or on the distribution of power and
responsibilities among the various levels of government. The rule
addresses only the collection of golden eaglets from Wupatki National
Monument, a unit of the national park system, and such activity does
not require state activity.
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. The preamble clearly explains that the rule creates a
special exception to 36 CFR 2.1(d) which allows the Hopi to collect
golden eaglets from Wupatki National Monument for religious ceremonial
purposes subject to conditions sufficient to prevent impairment.
Paperwork Reduction Act
This rule does not require an information collection from 10 or
more parties. It does not require submissions under the Paperwork
Reduction Act or OMB form 83-I.
National Environmental Policy Act
This rule does not constitute a major federal action significantly
affecting the quality of the human environment. A draft Environmental
Assessment has been completed. Copies of that assessment may be
obtained through one of several methods.
--Internet: http://www.nps.gov/wupa/
--By email: wupa_superintendent@nps.gov
--By mail: Superintendent, Wupatki National Monument, 6400 N. Highway
89, Flagstaff, Arizona 86004.
Public comments regarding the Environmental Assessment may be
submitted to Kym Hall, National Park Service, 1849 C Street NW., Room
7413, Washington, DC 20240, by email to WASO_regulations@nps.gov, or by
fax at (202) 208-6756. Public comments will be accepted through March
19, 2001.
Government-to-Government Relationship With Tribes
In accordance with the Executive Order 13175 ``Consultation and
Coordination with Indian Tribal Governments'' (65 FR 67249) and 512 DM
2, we have identified potential effects on the Hopi Indian Tribe. The
proposed regulation, and the accompanying environmental analysis,
applies only to this narrow situation. It is possible that the NPS will
receive requests from other tribes for similar rule changes to address
their religious practices. Such requests will be addressed on their
merits. Any further rule change must follow notice and comment and
other procedures required by applicable law. The current proposal is to
deal strictly and exclusively with the Hopi Tribe's proposal to collect
golden eaglets at Wupatki National Monument. We have consulted with the
Hopi Tribe regarding the proposed rule. We will further consider their
comments, and the comments of all interested parties, that are received
during the comment period.
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following: (1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (A ``section'' appears in body type
and is preceded by the symbol ``Sec. '' and a numbered heading; for
example, Sec. 7.101 Wupatki National Monument (5) Is the
description of the rule in the Supplementary Information section of the
preamble helpful in understanding the proposed rule? What else could we
do to make the rule easier to understand?
Send a copy of any comments that concern how we could make this
rule easier to understand to: Office of Regulatory Affairs, Department
of the Interior, Room 7229, 1849 C Street NW, Washington, DC 20240. You
may also email the comments to this address: Exsec@ios.doi.gov.
List of Subjects in 36 CFR Part 7
District of Columbia, National parks, Reporting and recordkeeping
requirements.
Accordingly, we propose to amend Part 7 of 36 CFR as set forth
below:
PART 7--SPECIAL REGULATIONS; AREAS OF THE NATIONAL PARK SYSTEM
1. The table of contents is amended by adding Sec. 7.101 to read as
follows:
Sec.
* * * * *
7.101 Wupatki National Monument.
2. The authority for Part 7 is revised 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); D.C. Code 40-721 (1981). Sec.
7.101 also issued under 42 U.S.C. 2000bb; 42 U.S.C. 1996; Executive
Orders No. 13084, 13007, 13175.
3. Add Sec. 7.101 to read as follows:
Sec. 7.101 Wupatki National Monument.
(a) Collection of golden eaglets from Wupatki National Monument by
Hopi Tribe. Upon terms and conditions sufficient to prevent impairment
to park resources, and upon a showing that the Tribe has a valid permit
to collect golden eaglets under the Bald and Golden Eagle Act, 16
U.S.C. 668-668d, the Superintendent of Wupatki National Monument shall
grant a permit to the Hopi Tribe to collect golden eaglets from Wupatki
National Monument for religious ceremonial purposes.
(b) [Reserved].
Dated: January 12, 2001.
Kenneth L. Smith,
Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 01-1743 Filed 1-19-01; 8:45 am]
BILLING CODE 4310-70-P
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