Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes, 45024-45039 [2016-16434]

Agencies

• DEPARTMENT OF THE INTERIOR
• National Park Service

[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Rules and Regulations]
[Pages 45024-45039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16434]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 2

[NPS-WASO-AILO-15846; PX.XVPAD0522.0.1]
RIN 1024-AD84


Gathering of Certain Plants or Plant Parts by Federally 
Recognized Indian Tribes for Traditional Purposes

AGENCY: National Park Service, Interior.

ACTION: Final rule.

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SUMMARY: The National Park Service is establishing a management 
framework to allow the gathering and removal of plants or plant parts 
by enrolled members of federally recognized Indian tribes for 
traditional purposes. The rule authorizes agreements between the 
National Park Service and federally recognized tribes that will 
facilitate the continuation of tribal cultural practices on lands 
within areas of the National Park System where those practices 
traditionally occurred, without causing a significant adverse impact to 
park resources or values. This rule respects those tribal cultural 
practices, furthers the government-to-government relationship between 
the United States and the tribes, and provides system-wide consistency 
for this aspect of National Park Service-tribal relations.

DATES: This rule will be effective on August 11, 2016.

FOR FURTHER INFORMATION CONTACT: Joe Watkins, Office of Tribal 
Relations and American Cultures, National Park Service, 1201 Eye Street 
NW., Washington, DC 20005, 202-354-2126, joe_watkins@nps.gov.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Gathering and removing plants or plant parts is currently 
prohibited in National Park System areas unless specifically authorized 
by federal statute

[[Page 45025]]

or treaty rights or conducted under the limited circumstances 
authorized by an existing regulation codified at 36 CFR 2.1(c).
    This rule authorizes the National Park Service (NPS) to enter into 
agreements with federally recognized Indian tribes to allow for the 
gathering and removal of plants or plant parts from National Park 
System areas for traditional purposes. Only enrolled members of a 
federally recognized tribe will be allowed to collect plants or plant 
parts, and the tribe must be traditionally associated with the specific 
park area. This traditional association must predate the establishment 
of the park. The plant gathering must meet a traditional purpose that 
is a customary activity and practice rooted in the history of the tribe 
and is important for the continuation of the tribe's distinct culture. 
Authorized plant gathering must be sustainable and may not result in a 
significant adverse impact on park resources or values. The sale and 
commercial use of plants or plant parts within areas of the National 
Park System will continue to be prohibited by NPS regulations at 36 CFR 
2.1(c)(3)(v).
    This rule does not affect any existing statutory or treaty right to 
gather plants within areas of the National Park System.
    Before gathering may occur within a park area, an Indian tribe must 
submit a written request to the park Superintendent for an agreement to 
allow tribal members to collect plants or plant parts. After a request 
is made, the Superintendent has 90 days to acknowledge receipt of the 
request and initiate consultation with the tribe. If the Superintendent 
does not initiate consultation within 90 days, then the tribe may 
submit the request to the Regional Director. If all of the criteria for 
entering into an agreement are met, the Superintendent will begin 
negotiations with the tribe for a gathering agreement in consultation 
with any other tribe that has gathering rights under treaty or federal 
statute or is party to a valid plant-gathering agreement with the NPS 
for that area. The NPS must prepare an environmental assessment meeting 
the requirements of the National Environmental Policy Act of 1969 
(NEPA). If the proposed gathering would have a significant adverse 
impact on the environment, then the NPS will not authorize it. The NPS 
must prepare a finding of no significant impact before any plant 
gathering agreement may become effective. All plant-gathering 
agreements must contain the specific elements set forth in the rule and 
must receive the concurrence of the Regional Director, and all plant-
gathering activities must be conducted in accordance with the terms and 
conditions of a special use permit issued by the Superintendent. The 
activities allowed by the permit must fall within the scope of 
activities agreed upon in the gathering agreement and analyzed in the 
environmental assessment.
    The NPS will provide guidance to the park areas and participating 
tribes about how to implement this rule. Model agreements, templates, 
and other documents may be a part of the guidance, including 
suggestions for baseline documentation and monitoring protocols for 
gathering activities in each park area.

Background

    The NPS has a unique relationship with Indian tribes, which is 
strengthened by a shared commitment to stewardship of the land and 
resources. This relationship is augmented by the historical, cultural, 
and spiritual relationships that Indian tribes have with the park lands 
and resources with which they are traditionally associated.
    Indian tribes practiced their traditional harvests of plants and 
plant parts on or from lands that are now included in areas of the 
National Park System long before the arrival of European settlers. Much 
of this activity is currently prohibited by NPS regulations in 36 CFR 
part 2. The fundamental purpose of this rule is to relax this 
prohibition in limited circumstances to allow traditional gathering and 
removal of plants or plant parts while ensuring that there is no 
significant adverse impact to park resources and values.
    Cooperation in the continuation of tribal traditions is at the 
heart of this rule. The NPS has a long history of encouraging Indian 
arts and crafts in national parks for the education and enjoyment of 
the public, and to support the continued practice of cultural 
traditions. The teaching and sharing of tribal traditions associated 
with national parks is an important part of the NPS mission. The rule 
provides new opportunities for the NPS and tribal governments to work 
together in support of the continuation of sustainable Indian cultural 
traditions that make up a unique and irreplaceable part of our national 
heritage.
    The NPS has allowed limited gathering by hand of certain renewable 
natural resources since at least 1960. See 36 CFR 1.2(c) and 2.10(b) 
(1960) (allowing visitors to ``pick and eat . . . such native fruits 
and berries as the superintendent may designate'' in most NPS-
administered areas and authorizing the superintendent of a national 
recreation area to ``permit the collection or removal of natural 
objects,'' respectively). In 1966 the NPS expanded this authority for 
NPS-administered recreational areas, allowing the gathering or 
collecting for personal use of reasonable quantities of natural, 
renewable products (e.g., seashells, fruits, berries, driftwood, and 
marine deposits of natural origin). 31 FR 16650, 16654 (1966). Existing 
NPS regulations at 36 CFR 2.1(c), promulgated in 1983, allow for the 
personal use or consumption of ``fruits, berries, nuts, or unoccupied 
seashells'' by the general public, subject to certain conditions.
    Existing NPS regulations at 36 CFR 2.1(d) do not allow tribal 
members to gather plants or plant parts in park areas for ceremonial or 
religious purposes, except where federal statutes or treaties grant 
rights to do so. Traditional tribal gathering and removal, however, 
occurred in many areas that are now part of the National Park System, 
and not all of these activities are authorized by treaty or federal 
statute. This rule provides an orderly and consistent process to allow 
limited gathering and removal of plants or plant parts for traditional 
purposes under agreements between the NPS and federally recognized 
Indian tribes.
    Over the past 20 years, studies in ethnobotany and traditional 
plant management, along with consideration of traditional ecological 
knowledge in scientific symposia and scholarly gatherings, have 
increased greatly. Research findings have shown that traditional 
conservation of plant species includes gathering and management 
techniques as well as social and cultural rules for avoiding over-
exploitation (Berkes 2012; Blackburn and Anderson 1993; Anderson 2005; 
Deur and Turner 2005). Traditional gathering is carried out in ways 
that ensure plant replacement and abundance by using specific harvest 
criteria and foraging and cultivation strategies (Anderson 1993; Turner 
and Peacock 2005). The example of Pomo basketry and the husbandry and 
gathering of sedge plants to ensure continuing quality and quantity of 
basketry supplies is well known (Peri and Patterson 1976), and other 
wild plant species necessary for basket making such as willow and fern 
are managed similarly through harvesting, burning, and cultivation 
techniques (Ortiz 1993). Wild plant species used for food have been 
managed for thousands of years by native groups using specific 
gathering techniques to maximize both harvest

[[Page 45026]]

and sustainability (McCarthy 1993; Farris 1993; Parlee and Berkes 
2006), and the general management of landscapes and ecosystems by 
native peoples have been well documented (e.g. Hammett 2000; Nabhan 
2000).
    Research has shown that traditional gathering, when done with 
traditional methods (i.e., by hand, without power tools) and in 
traditionally customary quantities, may help to conserve plant 
communities. Hand tools--for example, rakes, sticks, and knives--were 
the dominant means used by tribes to harvest plants in the past. 
Limiting plant harvesting to hand tools (those not powered by fossil 
fuels or electricity) limits secondary auditory and visual impacts of 
plant gathering. In addition, hand tools are consistent with activities 
that are allowed in areas that are categorized as eligible, study, 
proposed, recommended, or designated wilderness. A definition of 
``traditional gathering'' has been added to the rule to clarify that 
gathering activities may be conducted only using hand tools.
    This rule is consistent with NPS Management Policies 2006 
(Management Policies) 4.2.1, the agency's top-tier written policy 
guidance, which directs the NPS to inventory, monitor, and research 
traditional knowledge and authorizes the NPS to support studies 
designed to understand the traditional resource management practices of 
Native Americans. The NPS Cultural Anthropology Program has engaged in 
research on traditional ecological knowledge and indigenous resource 
management for over 20 years. A recent example is centered on Sleeping 
Bear Dunes National Lakeshore in Michigan, where tribal members of the 
Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse 
Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians 
helped to document the presence of culturally significant Odawa plant 
species and the specifics of cultural use (Stoffle et al. 2015). The 
NPS and tribal governments can draw on this research and may conduct 
further research to ensure that traditional tribal gathering and 
removal does not have a significant adverse impact on park resources or 
values. To the extent that it is appropriate and does not compromise 
tribal traditional knowledge, park visitors may also learn about the 
cultures associated with traditional tribal gathering practices.
    This rule requires that the NPS comply with all applicable federal 
laws, including NEPA, before entering enter into an agreement that will 
allow gathering and removal of plants or plant parts in a National Park 
System area. These environmental reviews will document how the proposed 
traditional gathering activities may affect particular species of 
plants in ecosystems and locations within a park area.

Authority To Promulgate the Rule

    What is commonly known as the NPS Organic Act, as amended and 
supplemented, established what is now the NPS and directed the 
Secretary of the Interior, acting through the NPS, to ``promote and 
regulate the use of the National Park System by means and measures that 
conform to the fundamental purpose of the System units, which purpose 
is to conserve the scenery, natural and historic objects, and wild life 
in the System units and to provide for the enjoyment of the scenery, 
natural and historic objects, and wild life in such manner and by such 
means as will leave them unimpaired for the enjoyment of future 
generations.'' 54 U.S.C. 100101(a). The NPS Organic Act further 
authorizes the Secretary to prescribe ``such regulations as the 
Secretary considers necessary or proper for the use and management of 
[National Park] System units.'' 54 U.S.C. 100751(a).

Government-to-Government Relationship With Indian Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175, ``Consultation and 
Coordination with Indian Tribal Governments,'' of November 6, 2000; 
President Obama's Executive Memorandum on Tribal Consultation of 
November 5, 2009; Department of the Interior Secretarial Order No. 3317 
of December 1, 2011, and Department of the Interior Departmental Manual 
Part 512, ``American Indian and Alaska Native Programs;'' the NPS has 
evaluated the potential effects of this rule on federally recognized 
Indian tribes and has determined that it has direct tribal 
implications.

Tribal Consultation

    The NPS held six tribal consultation meetings in the ``Lower 48'' 
regarding this rule. NPS regional and park staff consulted with Indian 
tribes to select meeting locations in or near areas of the National 
Park System where gathering by tribal members has been discussed. One 
hundred and fifty representatives from 50 tribes attended meetings held 
from May through July 2010, in Bar Harbor, Maine; Flagstaff, Arizona; 
Pipestone, Minnesota; Yurok, California; Suquamish, Washington; and 
Cherokee, North Carolina. An additional meeting was held at Pipestone, 
Minnesota, in September 2010. Staff in Alaska contacted more than 70 
federally recognized Indian tribes traditionally associated with parks 
in Alaska. Consultation then occurred with those tribes that requested 
it. Additionally, general presentations were given at two statewide 
conventions: The Alaska Tribal Leaders Summit in Fairbanks during the 
annual meetings of the Alaska Federation of Natives in October 2010 and 
the annual Bureau of Indian Affairs Providers Conference in Anchorage 
in December 2010. A conference call with traditional elders and tribal 
people not representing tribal governments was conducted in June 2010 
at the request of Arvol Looking Horse, Keeper of the Sacred White 
Buffalo Calf Pipe of the Lakota, Dakota, and Nakota Nation of the 
Sioux. Park managers and staff attended these consultation meetings and 
participated in the discussions. The major concerns of representatives 
of tribal governments and the NPS are summarized and addressed here.

Gathering Limited to Enrolled Members of Federally Recognized Indian 
Tribes

    Tribal representatives supported the concept that only enrolled 
members of federally recognized Indian tribes be allowed to gather and 
remove park resources for traditional purposes. This rule limits 
gathering and removal of plants or plant parts to members of an Indian 
tribe or Alaska Native tribe, band, nation, pueblo, village, or 
community that the Secretary of the Interior acknowledges to exist as 
an Indian tribe under the Federally Recognized Tribe List Act of 1994, 
25 U.S.C. 479a. This requirement limits gathering and removal to 
members of Indian tribes with which the United States has a government-
to-government relationship. Other groups that may be traditionally 
associated with park areas, including non-federally recognized tribes 
and Native Hawaiian groups, do not have the same legal and political 
relationship with the United States and therefore this rule does not 
extend to such groups. If a group later becomes federally recognized, 
the rule would then extend to it. The rule provides avenues for 
cooperative NPS-tribal government oversight of member activities on 
park lands to ensure that traditional gathering and removal remains 
sustainable with no significant adverse impacts to park resources or 
values, consistent with Management Policies 8.2.

[[Page 45027]]

Gathering Limited to Indian Tribes Traditionally Associated With 
Specific Park Lands

    A central purpose of the rule is to support the continuation of 
Indian cultural traditions on lands that are now administered as areas 
of the National Park System. The rule allows gathering only by members 
of Indian tribes traditionally associated with specific park areas. 
Respecting the special and longstanding connections that Indian tribes 
have with parklands prior to the establishment of park areas is 
specifically acknowledged in Management Policies 1.11, which states 
that the ``formal legal rationale for the relationship between the NPS 
and tribes is augmented by the historical, cultural, and spiritual 
relationships that American Indian tribes have with park lands and 
resources.'' The NPS believes there are approximately 433 federally-
recognized tribes that may be traditionally associated with locations 
within approximately 215 areas of the National Park System. The NPS 
does not know, and has no way to estimate, how many of those tribes 
will be interested in entering into gathering agreements under this 
rule.

Government-to-Government Agreements

    The NPS and tribal representatives supported agreements between 
tribal governments and the NPS to establish the conditions for 
gathering in park areas. These agreements will respect both tribal 
sovereignty and the NPS's authority to manage park resources and will 
authorize traditional tribal gathering in ways that may be administered 
flexibly to respond to local resource concerns. The participating 
tribal government will be responsible for designating which tribal 
members may gather in accordance with the terms and conditions set 
forth in the agreement and the subsequently issued special use permit.

Protecting Park Resources

    Tribal representatives expressed deep concern for the long-term 
health of park ecosystems. Reminding the NPS of their long history of 
productive and protective relationships with such ecosystems, they 
expressed willingness to accept limitations on gathering to protect 
park resources. Although not required by this rule, NPS and tribal 
representatives may use this opportunity to develop park-specific plant 
gathering management plans to ensure the long-term health of any park 
resource that may be gathered. These plans would be in addition to the 
environmental review documents that are required by this rule and NEPA.

Respect for Tribal Cultural Traditions

    Tribal representatives stressed that each Indian tribe is unique 
and that tribal agreements entered into under the rule should allow for 
traditional cultural practices specific to each tribe.

Traditional Gathering Needs May Be Site-Specific to National Park Lands

    Tribal representatives expressed that some national park areas 
contain places where tribal members historically have gathered plant 
resources. Using a particular gathering site within a national park 
area may be vital to the continuation of a cultural tradition that 
cannot be met at locations outside the park, or even at alternative 
locations within it. Thus, even though some plants or plant parts may 
be available outside park lands, tribal members may still reasonably 
desire to gather at traditionally significant locations inside a park 
area. The rationale for in-park gathering of plants or plant parts that 
are also available outside park boundaries must be documented on a 
case-by-case basis under Sec.  2.6(d) of the rule. The information used 
to make this determination may be subjected to peer review by qualified 
specialists from both the tribal and academic communities.

Collaborative Research and Administration

    Tribal representatives expressed the desire to work with the NPS to 
create and maintain the knowledge base needed to manage gathering and 
removal and to leave park resources unimpaired for future generations. 
This may include joint research and monitoring, training programs for 
tribal members and park staff, and ongoing consultation regarding park 
resources.

Relationship of the Rule to Existing Regulations

    Existing NPS regulations, promulgated in 1983, prohibit 
``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 in NPS 
regulations. 36 CFR 2.1. The new rule, to be codified at 36 CFR 2.6, 
creates an exception to current regulations by authorizing resource- 
and location-specific agreements between the NPS and federally 
recognized Indian tribes to gather and remove plants or plant parts for 
traditional purposes.
    Plants or plant parts gathered under this rule may not be used for 
``benefits sharing,'' which allows for the commercial use of research 
results derived from material collected in a park area through the 
specimen collection permit procedures in 36 CFR 2.5. See Management 
Policies 4.2.4.
    This rule does not affect 36 CFR 2.1(c)(1), which allows a park 
Superintendent to designate certain fruits, berries, nuts, or 
unoccupied seashells that may be gathered by hand for personal use and 
consumption, subject to a determination that the gathering or 
consumption will not adversely affect park wildlife, the reproductive 
potential of a plant species, or otherwise adversely affect park 
resources.
    This rule amends Sec.  2.1(d), which now states that ``[t]his 
section [36 CFR 2.1] 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].'' This rule authorizes the 
gathering and removal of plants or plant parts for traditional purposes 
under NPS-tribal agreements but does not alter the prohibition on 
taking, using, or possessing fish or wildlife for such purposes.

NPS Areas in Alaska

    In many of the National Park System units in Alaska, 36 CFR 13.35 
regulates the gathering and collection of natural products and allows 
for the limited gathering of a wider range of natural products than are 
included in this rule. Except for the four park areas \1\ listed in 
Sec.  13.35(a), Sec.  13.35(c) allows gathering, by hand and for 
personal use only, of renewable resources like natural plant food items 
(e.g., fruits, berries, and mushrooms) that are not threatened or 
endangered species; driftwood and uninhabited seashells; and plant 
materials and minerals that are essential to the conduct of traditional 
ceremonies by Native Americans. This rule has no practical effect 
within these units in Alaska where Sec.  13.35(c) applies, because this 
rule allows for a more limited scope of collection than does the 
Alaska-specific regulation. The rule applies to the park areas in 
Alaska listed in Sec.  13.35(a) and to parks in the remainder of the 
United States. The rule does not address subsistence activities that 
are

[[Page 45028]]

authorized in Alaska by 36 CFR 13.400-13.495.
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    \1\ Klondike Gold Rush National Historical Park, Sitka National 
Historical Park, the former Mt. McKinley National Park, and the 
former Katmai National Monument.
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Summary of and Responses to Public Comments

    On April 20, 2015, the NPS published the proposed rule in the 
Federal Register (80 FR 21674). The rule was open for public comment 
for 90 days, until July 20, 2015. The NPS reopened the comment period 
from August 12 through September 28, 2015 (80 FR 48280). The NPS 
invited comments through the mail and the Federal eRulemaking Portal at 
https://www.regulations.gov.
    The NPS received 90 pieces of correspondence with comments on the 
proposed rule: 37 from federally recognized tribes, 40 from private 
citizens, 10 from non-profit organizations, and three from state 
governments. In general, the comments fell into the following 
categories:

 Authority to promulgate the rule
 Compliance with NEPA
 Tribal consultation process
 Process for authorizing gathering activities
 Commercial use of gathered plants and plant parts
 Treaty rights
 Tribal Self-Governance Act
 National Historic Preservation Act and Traditional Cultural 
Properties

    A summary of comments and NPS responses is provided below followed 
by a table that lists changes the NPS has made in the final rule based 
on comment analysis and other considerations.

Authority To Promulgate the Rule

    1. Comment: Several comments questioned the NPS's authority to 
promulgate the rule, asserting that the NPS Organic Act precludes the 
NPS from allowing any ``consumptive'' uses of park resources like the 
gathering and removal of plants or plant parts.
    NPS Response: The NPS Organic Act, as amended and supplemented, 
directs the NPS ``to conserve the scenery, natural and historic 
objects, and wild life'' in areas of the National Park System. 54 
U.S.C. 100101(a). The conservation mandate in the Organic Act does not 
mean, however, that the NPS must preserve every individual member of 
every species of plant and animal and every rock, mineral, and other 
inorganic feature in a park area. Likewise, it does not mean that the 
NPS may not authorize members of the public to collect, gather, or 
consume certain park resources under carefully circumscribed 
conditions. Indeed, the NPS has long interpreted the conservation 
mandate in the Organic Act to allow the limited collection, gathering, 
or consumption of specifically identified park resources as long as the 
impacts from those activities do not result in the impairment of park 
resources or values.
    For example, as mentioned above, the NPS has allowed the limited 
gathering by hand of certain renewable natural resources in park areas 
for personal use or consumption since at least 1960,\2\ an activity 
currently authorized under 36 CFR 2.1(c).\3\ The NPS has also allowed 
recreational fishing in park areas since at least 1943,\4\ an activity 
currently authorized under 36 CFR 2.3. NPS regulations also allow the 
taking of plants, fish, wildlife, rocks, and minerals pursuant to a 
specimen collection permit, which may be issued for the purpose of 
research, baseline inventories, monitoring, impact analysis, group 
study, or museum display. 36 CFR 2.5. The NPS believes that the 
gathering and removal activities authorized by this rule, conducted in 
accordance with the terms and conditions of the NPS-tribal gathering 
agreements and the NPS-issued special use permits that will implement 
those agreements, constitute a limited and appropriate (albeit 
consumptive) use of park resources that will not result in the 
impairment of those resources.
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    \2\ See 36 CFR 1.2(c) and 2.10(b) (1960) (allowing visitors to 
``pick and eat, but not carry out of the parks and monuments, such 
native fruits and berries as the superintendent may designate'' in 
most NPS-administered areas and authorizing the superintendent of a 
national recreation area to ``permit the collection or removal of 
natural objects,'' respectively).
    \3\ The NPS promulgated the current authorization in 1983, when 
it last comprehensively revised its public-use regulations. 48 FR 
30252 (1983).
    \4\ See 36 CFR 2.4 and 6.4 (1943) (allowing fishing in various 
national parks and monuments and in recreational demonstration 
areas, respectively).
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    The fact that Congress has in certain instances explicitly directed 
the Secretary to allow the gathering or consumption of park resources 
by members of American Indian tribes \5\ does not call into question 
the NPS's discretionary authority to promulgate this rule under the 
authority of the NPS Organic Act. On the contrary, those park-specific 
statutes reflect Congress's awareness that the NPS's now-longstanding 
regulatory limitation on the taking, use, or possession of fish, 
wildlife, or plants for ceremonial or religious purposes in 36 CFR 
2.1(d) \6\ has had a negative impact on tribes and traditional tribal 
cultural practices and its recognition that allowing traditional uses 
of park resources is an issue of great importance to federally 
recognized Indian tribes (as well as to the United States government). 
Accordingly, Congress acted to nullify the NPS's regulatory provision 
in those specific instances. Congress's actions, however, do not imply 
that the NPS lacks discretionary authority under the NPS Organic Act to 
modify its general regulatory scheme to better address and accommodate 
tribal interests and concerns throughout the National Park System.
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    \5\ See, e.g., Sec.  5(e) of the Timbisha Shoshone Homeland Act, 
Public Law 106-423, 114 Stat. 1875, 1879 (2000) (directing Secretary 
of Interior to permit Timbisha Shoshone Tribe's continued use of 
park resources in ``special use areas'' in Death Valley National 
Park, California, ``for traditional tribal purposes, practices, and 
activities,'' not including the taking of wildlife); Sec.  2101 of 
the Cerro Grande Fire Supplemental, Division C of the Act of July 
13, 2000, Public Law 106-246, 114 Stat. 583, 592 (directing 
Secretary of Interior to allow enrolled members of Pueblos of San 
Ildefonso and Santa Clara to collect plants or plant products and 
minerals in Bandelier National Monument, New Mexico); 16 U.S.C. 
460uu-47 (directing Secretary of Interior to ``assure nonexclusive 
access to [El Malpais National Monument and El Malpais National 
Conservation Area, New Mexico] by Indian people for traditional 
cultural and religious purposes, including the harvesting of pine 
nuts''); and 16 U.S.C. 698j (directing Secretary of Interior to 
permit members of Miccosukee Tribe and Seminole Tribe ``to continue 
their usual and customary use and occupancy of Federal or federally 
acquired lands and waters within [Big Cypress National Preserve, 
Florida], including hunting, fishing, and trapping on a subsistence 
basis and traditional tribal ceremonials'').
    \6\ 36 CFR 2.1(d) is currently phrased as a limitation on a 
Superintendent's authority under other subsections of 36 CFR 2.1: 
``This section 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 or 
Sec.  2.3.'' That language first appeared in the NPS's regulations 
in 1983, when the NPS last comprehensively revised its public-use 
regulations. The NPS added that language to the final rule in 
response to comments on the proposed rule. In doing so, the NPS 
explained, ``The Service recognizes that 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 30255 
(1983) (emphasis added). The NPS Organic Act does indeed limit the 
NPS's authority to allow the consumptive use of park resources; 
however, it does not prohibit it. As discussed above, the NPS has 
long allowed certain consumptive uses of park resources and may 
allow the park-specific consumptive use of resources authorized by 
this rule as long as those resources are conserved overall and the 
consumptive use does not result in the impairment of park resources 
or values.
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    This rule is also consistent with written guidance interpreting the 
NPS Organic Act that is contained in the Management Policies, the 
agency's top-tier written policy guidance. As discussed above, the NPS 
has long understood that the mandate in the

[[Page 45029]]

Organic Act to avoid impairment does not mean a mandate to avoid all 
impacts to park resource or values. The policies expressly acknowledge 
that ``virtually every form of human activity that takes place within a 
park has some degree of effect on park resources or values, but that 
does not mean the impact is unacceptable or that a particular use must 
be disallowed.'' Management Policies 1.4.7.1. They also emphasize that 
the NPS Organic Act and other relevant statutes ``give the [NPS] the 
management discretion to allow impacts to park resources and values 
when necessary and appropriate to fulfill the purposes of a park, so 
long as the impact does not constitute impairment of the affected 
resources and values.'' Management Policies 1.4.3. The policies define 
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impairment as:

an impact that, in the professional judgment of the responsible NPS 
manager, would harm the integrity of park resources or values, 
including the opportunities that otherwise would be present for the 
enjoyment of those resources or values. Whether an impact meets this 
definition depends on the particular resources and values that would 
be affected; the severity, duration, and timing of the impact; the 
direct and indirect effects of the impact; and the cumulative 
effects of the impact in question and other impacts.
Management Policies 1.4.5
    In addition to impairment, the policies discuss the related 
concepts of ``unacceptable impacts'' to park resources or values and 
``appropriate use'' of park areas. Unacceptable impacts ``are impacts 
that fall short of impairment, but are still not acceptable within a 
particular park's environment,'' Management Policies 1.4.7.1, and an 
appropriate use of a park area is one that is ``suitable, proper, or 
fitting for a particular park, or to a particular location within a 
park.'' Management Policies 1.5. Under the policies the NPS manager 
must determine which uses are appropriate in a particular location 
within the particular park area and may not allow unacceptable impacts 
to park resources or values.
    If the traditional gathering and removal of certain plants or plant 
parts for traditional purposes by enrolled members of federally 
recognized Indian tribes that are traditionally associated with the 
park area is authorized and conducted in accordance with this rule, 
then the NPS believes that it is a suitable, proper, and fitting--and 
therefore appropriate--use of park resources. The rule defines 
``traditional association'' as ``a longstanding relationship of 
historical or cultural significance between an Indian tribe and a park 
area predating the establishment of the park area'' and a ``traditional 
purpose'' as ``a customary activity or practice that is rooted in the 
history of an Indian tribe and is important to the continuation of that 
tribe's distinct culture.'' Under the rule a tribe that wishes to 
gather and remove plants or plant parts from a park area must provide 
certain information to the NPS about its traditional association with 
the park area, and the NPS must determine, based on all available 
information, that the tribe is in fact traditionally associated with 
the park area and is proposing to gather and remove plants or plant 
parts within the park area for a traditional purpose.
    Helping tribes maintain traditional cultural practices through 
access to plants or plant parts in park areas where the tribe has a 
traditional association helps fulfill one of the purposes of the 
National Park System, as described in Management Policies 1.11:

    As the ancestral homelands of many American Indian tribes, parks 
protect resources, sites, and vistas that are highly significant for 
the tribes. Therefore, the Service will pursue an open, 
collaborative relationship with American Indian tribes to help 
tribes maintain their cultural and spiritual practices and enhance 
the Park Service's understanding of the history and significance of 
sites and resources in the parks. Within the constraints of legal 
authority and its duty to protect park resources, the Service will 
work with tribal governments to provide access to park resources and 
places that are essential for the continuation of traditional 
American Indian cultural or religious practices.

    The tribal gathering of plants or plant parts authorized by this 
rule is also consistent with Management Policies 8.9, which states that 
the NPS ``generally supports the limited and controlled consumption of 
natural resources for traditional religious and ceremonial purposes and 
is moving toward a goal of greater access and accommodation.''

    The NPS also believes that the elements of this rule, and the 
requirements embedded in them, will ensure that any gathering and 
removal activities authorized by the rule will not result in 
unacceptable impacts to, or impairment of, park resources or values. 
Requests for gathering activities that would result in unacceptable 
impacts or impairment will be denied. The safeguarding elements of the 
rule include:

 Requiring that before tribal gathering activities may occur, 
the NPS and the tribe enter into a formal gathering agreement and the 
NPS issue the tribe a special use permit implementing the agreement. 
Sec.  2.6(b)
 Requiring that a tribe submit a formal request demonstrating 
threshold eligibility for negotiating a gathering agreement with the 
NPS. Sec.  2.6(c)
 Requiring that the Superintendent complete certain 
requirements before the NPS will enter into a gathering agreement. 
Sec.  2.6(d)
 Requiring that the NPS complete an environmental assessment 
and a finding of no significant impact under NEPA prior to entering 
into a gathering agreement with an Indian tribe. Sec.  2.6(d)
 Requiring that specific terms be included in each gathering 
agreement. Sec.  2.6(f)
 Requiring that each gathering agreement be concurred in by the 
NPS Regional Director. Sec.  2.6(g)
 Allowing the Superintendent to close park areas to gathering 
of plants and plant parts to protect environmental or scenic values or 
to protect natural resources. Sec.  2.6(h)
 Allowing the Superintendent to suspend an agreement or permit 
if terms or conditions are violated or if unanticipated or significant 
adverse impacts occur. Sec.  2.6(i)

    The required agreement between the NPS and the tribe must include 
the elements listed in Sec.  2.6(f) of the rule. These elements 
include:
     A description of the specific plants or plant parts that 
may be gathered and removed.
     Specification of the size and quantity of the plants or 
plant parts that may be gathered and removed.
     Identification of the times and locations at which the 
plants or plant parts may be gathered and removed.
     Identification of the methods that may be used for 
gathering and removal, which will be limited to gathering by hand 
without power tools.
     Protocols for monitoring gathering and removal activities 
and thresholds above which NPS and tribal management intervention will 
occur.
    These contractual provisions will enable the NPS to monitor the 
severity, duration, and timing of any impacts from the gathering 
activities to prevent unacceptable impacts to, or impairment of, park 
resources or values.
    In addition to the terms of the gathering agreement, gathering 
activities will be subject to the terms and conditions of a special use 
permit issued by the NPS to the tribe that will further ensure that 
gathering and removal of plants or plant parts do not cause 
unacceptable impacts to, or impair, park resources or values. The 
permit requirement will enable the NPS to modify the terms and 
conditions

[[Page 45030]]

governing the collecting of plants or plant parts as circumstances 
change or new information comes to light. The permits will also 
identify the specific members of the tribe who are designated by the 
tribe to gather plants at a particular location within a park area. The 
NPS may not issue a permit unless it first determines that doing so is 
consistent with the criteria listed in 36 CFR 1.6(a). Finally, the rule 
allows the Superintendent to close any park area to gathering 
activities for various reasons, including the need to protect natural 
resources. These closures will apply notwithstanding the terms or any 
agreement or permit executed under the rule. The Superintendent may 
also suspend an agreement or permit if terms or conditions are violated 
or if unanticipated or significant adverse impacts occur.
    This rule also requires the NPS to analyze the potential impacts of 
the proposed gathering and removal activities in accordance with the 
requirements of NEPA (by preparing an environmental assessment and a 
finding of no significant impact), the National Historic Preservation 
Act (NHPA), the Endangered Species Act (ESA), and other applicable 
laws. The NPS may allow gathering and removal activities only if, 
during that compliance process, it determines that the proposed 
activities will not result in a significant adverse impact on park 
resources or values.
    Some comments suggested that that if Congress intended 54 U.S.C. 
100101 to give the NPS discretion to allow plant gathering, it would 
have been unnecessary for Congress to grant the Secretary of the 
Interior specific authority in 54 U.S.C. 100752 ``to provide for the 
destruction of such . . . plant life as may be detrimental to the use 
of any System unit.'' The NPS believes that the latter statute is not 
relevant to this rule because by its own terms it concerns and 
authorizes management actions by the NPS or its agents or contractors; 
it does not apply to the consumptive use of park resources by members 
of the public. Rather, this rule falls under the broad discretionary 
authority granted to the NPS by 54 U.S.C. 100101(a) and 54 U.S.C. 
100751(a). Moreover, 54 U.S.C. 100752 authorizes management actions 
directed at plants that the NPS has determined are ``detrimental'' to 
the use of a particular park area. Those management actions are often 
intended to eradicate plant species that are exotic or otherwise 
inimical to a park area. The tribal gathering authorized by this rule 
is not directed at ``detrimental'' plants. In any event, because of the 
requirements and safeguards built into this rule, the tribal gathering 
authorized by it will never result in the destruction or eradication of 
any plant species in a park area.
    Finally, some comments stated that the Food, Conservation, and 
Energy Act of 2008 (Farm Bill) suggests that Congress must grant the 
NPS specific statutory authority to allow tribes to gather plants in 
NPS areas. The Farm Bill authorizes the U.S. Forest Service (USFS) to 
provide trees, portions of trees, or forest products from lands 
administered by the USFS to Indian tribes free of charge for 
noncommercial traditional and cultural purposes (25 U.S.C. 3055). As 
explained above, the NPS believes that the NPS Organic Act already 
grants it the discretionary authority to allow the limited consumptive 
use of plants or plant parts authorized by this rule.
    In the proposed rule the NPS requested comment about how the NPS 
and the USFS can coordinate their separate processes for requesting 
approval to remove natural products from their adjacent lands. Some 
comments encouraged the NPS to adopt the USFS rule rather than create a 
rule specific to NPS areas. This the NPS may not do. The NPS and the 
USFS operate under significantly different statutory regimes. As a 
result, the gathering and removal of plants or plant parts from NPS 
lands must be governed by regulations and policies different from the 
regulations and policies that will govern the removal of trees, 
portions of trees, or forest products from adjacent USFS lands. 
Therefore, it is not possible for the NPS to simply adopt the USFS 
rule. Although the NPS will encourage its park managers to coordinate 
informally with the managers of nearby USFS lands to eliminate 
duplicative requests for information and to more efficiently 
accommodate tribal requests and concerns, Indian tribes must negotiate 
a gathering agreement with the NPS in addition to any requirements 
imposed by the USFS on its adjacent lands.

Compliance With NEPA

    2. Comment: Many comments questioned the appropriateness of the NPS 
using a NEPA categorical exclusion for the promulgation of this rule. 
Additional comments requested that the NPS prepare a national 
environmental impact statement to assess the environmental impacts of 
the rule on all areas of the National Park System. Several comments 
stated that extraordinary circumstances listed in 43 CFR 46.215 exist 
and that a categorical exclusion therefore may not be used, per 43 CFR 
46.205(c).
    NPS Response: The Department of the Interior's regulations 
implementing NEPA state that regulations whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis, which will later be subject to the NEPA compliance 
process, are categorically excluded from the requirement to prepare an 
environmental assessment or an environmental impact statement. 43 CFR 
46.210(i).
    The only action occurring at this time is the publication of the 
rule. The only immediate result of this action will be that Indian 
tribes may submit to the NPS requests to enter into agreements. The 
specifics of those agreements and any implementing permits are not 
known at the time of adoption of the rule. The effects of these future 
potential actions cannot be analyzed now because they are too broad, 
speculative, and conjectural to be meaningfully evaluated. They can be 
evaluated only at the time of the negotiation of a gathering agreement 
between the NPS and the tribe.
    The rule requires that before entering into a gathering agreement 
with an Indian tribe, the NPS must analyze potential impacts of the 
proposed gathering and removal under all applicable federal laws, 
including NEPA, and that the NEPA compliance process must conclude with 
a finding of no significant impact. All proposed gathering activities 
in particular park areas or locations will therefore be subjected to 
analysis through the NEPA compliance process, after the NPS has 
received enough information about those activities (e.g., Indian tribe, 
location, duration, plant species, timing) to conduct a meaningful 
analysis of potential impacts to the environment. This analysis will 
include impacts, including cumulative impacts, to relevant plant 
species that are gathered illegally in some park areas (such as ramps 
and ginseng, where appropriate). Any gathering activities that would 
cause a significant impact may not be authorized. The NPS accordingly 
expects that parks will not prepare any environmental impact statements 
under this rule.
    The NPS has reviewed the extraordinary circumstances listed in 43 
CFR 46.215 and has confirmed that none apply to this action.

Tribal Consultation Process

    3. Comment: Several comments questioned whether the NPS adequately 
consulted with tribes prior to the publication of the proposed rule, 
and

[[Page 45031]]

some comments requested the NPS redo consultation with all individual 
tribes with face-to-face meetings.
    NPS Response: The NPS held six consultation meetings across the 
country to discuss the proposed rule. All federally recognized tribes 
located in the 48 contiguous states received invitations to attend one 
or more of these meetings. NPS staff in Alaska conducted consultation 
with tribal entities who requested it, and a telephone conference was 
requested and held. Any gathering agreements developed as a result of 
this rule will be established after consultation between the specific 
tribe and NPS staff at the relevant park. The NPS believes it has met 
its consultation requirements under Executive Order 13175 and the 
Department of Interior Consultation Policy and does not plan to hold 
any additional consultation meetings regarding the promulgation of this 
rule.
    4. Comment: Many comments called for a more explicit statement of 
when and with whom consultation should occur before entering into a 
gathering agreement, and periodically during the term of the agreement.
    NPS Response: Language has been added to the rule requiring park 
Superintendents to engage in a consultation process with any tribe 
requesting a gathering agreement both before finalizing the details of 
the agreement and during periodic reviews of the status of the 
gathering activities under the agreement. The number of meetings and 
length of the initial consultation process will vary by park and local 
circumstances, but park Superintendents will undertake the NPS 
consultation process with tribes as the mechanism for creating the 
agreements. This includes consultation with any tribes that have 
gathering rights under treaty that may be impacted by an agreement with 
another tribe. It is possible that periodic consultation will be called 
for and necessary during the life of the agreements, not just for their 
creation. It is also expected that consultation will be required for 
the periodic review of the gathering activity results and analysis of 
impacts. The gathering agreements should stipulate when such 
consultation will occur, while leaving open the possibility of 
additional ad hoc consultation as necessary.

Process for Authorizing Gathering Activities

    5. Comment: Many comments noted that the process for requesting and 
entering into an agreement is burdensome to tribes. Some tribes noted 
they will need to negotiate and execute different agreements with 
different park areas. Other comments called for the process to be 
simplified, such as allowing any member of a tribe with a valid 
agreement to gather plants rather than requiring the tribes to provide 
the names of specific tribal members who may gather within the park. 
One comment noted that the process will be harder on smaller tribes 
with less staff to work on the process.
    NPS Response: As explained in more detail above, the process for 
requesting and entering into a gathering agreement ensures that the 
gathering activities do not result in unacceptable impacts to park 
resources, particularly plants. Formal requests for gathering 
agreements, the terms of each gathering agreement, the environmental 
analyses required for each agreement, and the terms and conditions of 
each special use permit must be tailored to the unique biological 
conditions, resources, values, and enabling legislation for each park 
area. Requiring the permits to identify the members who are designated 
by the tribe to gather plants will allow the NPS to verify that a 
person gathering plants within the park is authorized to conduct that 
activity.
    6. Comment: A number of comments suggested that the tribes, not the 
NPS, should permit plant gatherers and manage the process of gathering 
plants within park areas.
    NPS Response: Congress delegated management responsibility for the 
National Park System to the NPS. Only the NPS has the legal authority 
to issue discretionary special use permits to authorize the gathering 
of plants or plant parts in areas of the National Park System. This 
rule does not apply to situations where a tribe has a legal right to 
gather plants or plant parts in the park area under a treaty or federal 
statute.
    7. Comment: A number of comments stated that the overall process 
from initial request to permitting of gatherers is antithetical to 
traditional plant gathering practices, which is conducted primarily in 
private or with families and is based upon traditional knowledge that 
is not necessarily in written form or derived through a formal process 
that requires the submission of paperwork and formal determinations.
    NPS Response: The rule establishes a fair and transparent process 
to allow plant gathering that requires deliberation, defines key terms 
and common language, and identifies actions that must be taken before 
gathering activities can occur. Although the process in this rule may 
run counter to traditional methods of gathering, the NPS believes the 
steps required by this rule are necessary to safeguard plant 
communities and the larger biological communities and processes, 
consistent with the NPS's statutory mandates to conserve the resources 
and values of the National Park System. The NPS believes that the 
documentation required by this rule will best ensure that impacts to 
park resources or values have been objectively and rigorously 
considered and that gathering activities comply with the terms and 
conditions agreed upon by the NPS and the tribes.
    8. Comment: A number of comments suggested there should be a time 
limit for the NPS to answer a tribal request for a gathering agreement.
    NPS Response: The NPS agrees there should be a time limit for an 
initial response from the park Superintendent, but the NPS also needs 
adequate time to review the merits of a request. The NPS has added a 
90-day limit for a park Superintendent to initially respond to a 
tribe's request to enter into a plant gathering agreement. The time 
needed to enter into the agreement will not be subject to a deadline 
and will vary based on negotiations between the tribe and the NPS, and 
will be influenced by the resources, values, and other circumstances 
present at the park. The NPS believes that requiring a set amount of 
time for finalizing any agreement would be detrimental to the 
government-to-government consultation process, which should be given 
the time necessary to reach a conclusion.
    9. Comment: A number of comments noted there was no conflict 
resolution or alternative dispute resolution section in the rule and 
that there should be some means for tribes to appeal NPS decisions.
    NPS Response: The NPS has added an appeal process to the rule. If a 
Superintendent denies a tribe's request for a gathering agreement, then 
the Superintendent will provide the tribe with a written decision 
setting forth the reasons for the denial. The tribe may appeal the 
Superintendent's written decision to the NPS Regional Director within 
60 days after receiving it. The appeal should set forth in writing the 
basis for the tribe's disagreement with the Superintendent's decision. 
Within 45 days after receipt of the tribe's written appeal, the 
Regional Director will affirm, reverse, or modify the Superintendent's 
decision, explaining the reasons for the appeal decision in writing, 
and promptly send a copy of the decision to the tribe. The Regional 
Director's appeal decision will constitute the NPS's final agency 
decision on the matter.
    10. Comment: A number of comments asked who will monitor plant 
gathering

[[Page 45032]]

and some suggested that tribes monitor plant gathering.
    NPS Response: The rule requires that all gathering agreements 
contain protocols for monitoring gathering and removal activities, and 
thresholds above which NPS or tribal management intervention will 
occur. The NPS has on-going inventorying and monitoring projects for 
vascular plants in most park areas. Additionally, the NPS or other 
federal agencies may be monitoring federally threatened and endangered 
species in certain park areas. Tribes may request to join the NPS's 
efforts to monitor any effects of gathering of plant species on NPS-
administered lands. Joint monitoring work will be agreed upon in the 
gathering agreement and may also be included in the terms and 
conditions of a special use permit.
    11. Comment: Many tribes questioned the ability of the NPS to 
protect confidential information about who does the gathering and where 
the gathering occurs within a park area. These comments were based on a 
desire to prevent unauthorized people from collecting plants or plant 
parts and to protect the privacy of qualified plant gatherers as they 
participate in ceremonies associated with plant gathering.
    NPS Response: During the process of consulting with tribes in order 
to enter into gathering agreements and to issue permits for gathering 
activities, the NPS may obtain information that the tribes consider 
sensitive or confidential, including the identity of tribal members who 
are authorized to gather plants or plant parts. As part of these 
consultations, the NPS will discuss ways to limit the scope of such 
information to the extent possible and to avoid releasing such 
information to the extent permitted by applicable laws. For example, in 
some circumstances NPS may be able to use identifiers other than 
personal names to designate tribal members who are authorized to gather 
plants or plant parts. To the extent permitted by applicable law, 
including 54 U.S.C. 100707, the Archaeological Resources Protection 
Act, and the NHPA, the NPS will withhold from public disclosure 
information about the specific location, character, and nature of 
resources on park lands.
    12. Comment: Several comments felt that too much discretion is 
vested in the park Superintendent. For example, the rule states the 
Superintendent ``may'' negotiate and enter into an agreement with a 
tribe. The rule also allows the Superintendent to determine and 
document, based on information provided by the Indian tribe or others, 
that the Indian tribe has a traditional association with the park area, 
and that the Indian tribe is proposing to gather and remove plants or 
plant parts in the park area for a traditional purpose.
    NPS Response: The discretionary authority granted to 
Superintendents recognizes that they are subject-matter experts 
regarding management of the park area and and have been delegated 
responsibility to take action and respond to changing circumstances 
that may affect the values and resources of a park area. The discretion 
granted to Superintendents is consistent with long-established 
discretionary authority granted to Superintendents in other sections of 
36 CFR to make management decisions for NPS areas based upon a variety 
of criteria. The rule also requires Superintendents to obtain the 
written concurrence of the Regional Director to any agreement before it 
goes into effect. When reviewing formal requests for agreements and 
when determining whether the criteria have been met to enter into an 
agreement, Superintendents consult with the tribe and rely upon 
information provided by the tribe, as well as input and advice from NPS 
staff with subject matter expertise.
    Superintendents will use all relevant forms of evidence made 
available to them to make a decision on traditional association, 
including oral history and evidence from the Indian Claims Commission.
    13. Comment: Some comments requested that the Regional Director's 
role in agreements be circumscribed, while others requested the 
Regional Director's role be expanded in decision making.
    NPS Response: NPS Regional Directors supervise park 
Superintendents. Requiring the Regional Director to concur before any 
agreement is signed ensures an important layer of review of decisions 
made by Superintendents that will help ensure that decision-making 
criteria are applied consistently across the regions of the National 
Park System. Regional Directors have regional staff that can assist 
park staff with the work required to negotiate gathering agreements and 
issue permits. The proposed rule required the Superintendent to obtain 
the Regional Director's written concurrence before issuing or 
terminating a permit. The NPS has removed this requirement in the final 
rule to allow Superintendents and Regional Directors to determine what 
type of permit review process is most appropriate for a particular park 
and region. The rule still requires the Regional Director to concur 
with all gathering agreements. Superintendents may not issue permits 
that authorize activities that exceed the scope of activities agreed to 
by the Regional Director in the gathering agreement.
    14. Comment: A few comments asked the NPS to clarify the type of 
agreement that will be used, while others suggested the use of a 
Memorandum of Understanding (MOU) or Memorandum of Agreement (MOA).
    NPS Response: Section 5.2.2 of the Management Policies directs the 
NPS to establish mutually beneficial agreements with interested groups 
to facilitate consultation and cooperative management approaches with 
respect to culturally important natural resources. The goal of such 
agreements is to allow traditionally associated peoples, such as tribes 
eligible to negotiate gathering agreements under this rule, to exercise 
traditional cultural practices in parks to the extent those practices 
are allowable by law, are appropriate uses for the park area, and will 
not cause unacceptable impacts or impairment.
    The selection of a specific type of agreement depends upon what is 
agreed upon between the NPS and the tribe. For example, depending on 
the details of the arrangement, the NPS may use a memorandum of 
understanding, a memorandum of agreement, or a general agreement to 
document its relationship and agreement with the tribe. The type of 
agreement for plant gathering is best left to the consultation and 
negotiation process rather than specified in the rule.
    15. Comment: A few comments believe the rule is too rigid and will 
preclude ``opportunistic'' plant gathering when a gatherer sees a plant 
they did not anticipate.
    NPS Response: As explained in more detail above, the process for 
requesting and entering into a gathering agreement, and the requirement 
to obtain a permit for gathering activities, exist to ensure that the 
gathering activities do not result in unacceptable impacts to park 
resources, particularly plants. Opportunistic or spontaneous gathering 
of plants not identified in the gathering agreement and permit issued 
by the NPS will not be allowed. Tribal members may gather only plants 
or plant parts identified in the gathering agreement and permit, 
subject to the terms and conditions listed in the permit. An agreement 
and permit may be amended, however, to include additional plant species 
as explained in the response to the following comment.
    16. Comment: A few comments asked if a gathering agreement could be 
amended at a later date.
    NPS Response: An agreement may be amended if the proposed change is 
mutually agreed upon by the NPS and

[[Page 45033]]

the tribe, concurred with by the Regional Director, and formally 
executed either as an amendment to the existing agreement or as an 
entirely new agreement. Adjustments to gathering activities that are 
consistent with an existing agreement will not require a new agreement 
and may be included in the terms and conditions of the special use 
permit issued by the NPS. Amendments or adjustments to gathering 
activities that are not within the scope of environmental impacts 
analyzed under NEPA when the original agreement was executed must be 
subject to additional environmental review prior to taking effect.
    17. Comment: A number of comments suggested that all agreements 
should have a clause prohibiting the gathering of species listed as 
threatened or endangered under the ESA.
    NPS Response: The NPS agrees and has modified the rule to require 
all agreements to prohibit the gathering of any species listed as 
threatened or endangered under the ESA. In addition the required 
environmental assessment should analyze whether to prohibit gathering 
activities in critical habitat for any species designated under the ESA 
and analyze any other plant species of special concern. The NPS will 
engage in consultation under Section 7 of the ESA if the environmental 
analyses required before entering into a gathering agreement identify 
potential adverse effects upon listed species or critical habitat.

Commercial Use of Gathered Plants and Plant Parts

    18. Comment: A number of comments objected to the prohibition 
against any commercial use of plants or plant parts gathered under this 
rule. Comments generally agreed that there should be no sale of raw 
plants or plant parts. However, they requested that the NPS reconsider 
the use of limited quantities of plants and plant parts in the 
manufacture of traditional American Indian handicrafts.
    NPS Response: The rule requires that gathering agreements contain a 
statement that the sale or commercial use of natural products is 
prohibited under existing NPS regulations at 36 CFR 2.1(c)(3)(v). This 
prohibition applies, like other NPS regulations, to activities 
occurring within the boundaries of areas of the National Park System, 
as described in 36 CFR 1.2. The NPS acknowledges that some tribal 
members may wish to use plants or plant parts gathered under this rule 
to make and sell traditional handicrafts such as baskets outside of the 
park area. This limited commercial use of plants or plant parts 
gathered in park areas may help tribes maintain traditional cultural 
practices, which is a primary purpose of this rule. Accordingly, this 
rule does not purport to regulate or prohibit this activity. The NPS 
will continuously monitor the impact of plant gathering on park 
resources and values and will adjust, through the permitting process, 
the quantity of plants or plant parts that may be gathered by tribal 
members in the park. If the use of plants or plant parts gathered in 
the park to make and sell traditional handicrafts begins to have an 
impact on park resources or values, then the NPS will curtail the 
authorized gathering activities accordingly.

Treaty Rights

    19. Comment: Several comments referred to the possible abrogation 
or diminishment of, or infringement upon, existing treaty rights held 
by tribes to gather plants within NPS areas. Some comments identified 
concerns that plant gathering by members of a tribe operating under an 
agreement would negatively impact the ability of other tribes to 
exercise treaty rights to gather the same plant species.
    NPS Response: This rule does not purport to abrogate, diminish, or 
regulate the exercise of treaty rights held by federally recognized 
Indian tribes, including any rights to gather plants or plant parts in 
NPS-administered park areas.
    If the NPS determines that it is not sustainable to allow gathering 
under an agreement provided for in this rule and under a treaty, the 
rights to gather under treaty will take precedence over gathering under 
an agreement. It is possible that limits will need to be placed on 
gathering a particular plant species under an agreement to ensure that 
the activity is conducted in a sustainable manner. If the environmental 
analysis conducted prior to finalizing an agreement indicates that 
limits need to be stipulated, these limits will be included in the 
gathering agreement. If subsequent monitoring indicates an adverse 
impact to the species warranting additional limits, then the agreement 
can be amended to include those limits, or the additional limits can be 
placed in the permits issued for gathering activities. The rule also 
gives the Superintendent the authority to close park areas, or portions 
thereof, to gathering and removing plant species that are subject to 
gathering under an agreement and permit, in order to protect natural 
resources.

Tribal Self-Governance Act

    20. Comment: A few comments asked if the Tribal Self Governance Act 
could be employed to manage the plant gathering agreement at a park or 
as a method to substitute for the permit process.
    NPS Response: Title II of the Indian Self-Determination Act 
Amendments of 1994 (Pub. L. 103-413, the ``Tribal Self-Governance 
Act'') instituted a permanent self-governance program at the Department 
of the Interior. Under the self-governance program, certain programs, 
services, functions, and activities, or portions thereof, in Interior 
bureaus other than the Bureau Indian Affairs are eligible to be 
planned, conducted, consolidated, and administered by a tribe that has 
an executed self-governance compact with the Federal government. Under 
section 403(k) of the Tribal Self-Governance Act, funding agreements 
may not include programs, services, functions, or activities that are 
inherently federal or where the statute establishing the existing 
program does not authorize the type of participation sought by the 
tribe. The NPS believes that assessing the impacts of the gathering of 
plants or plant parts on park resources and values, negotiating an 
agreement with a tribe to gather plants or plant parts within a park 
area, and monitoring the impacts of the authorized gathering activities 
on park resources and values are inherently federal functions that are 
not eligible for inclusion in a self-governance funding agreement.

National Historic Preservation Act and Traditional Cultural Properties

    21. Comment: A number of comments noted there is a relationship 
between plant gathering areas in park areas and areas for which a 
Traditional Cultural Property (TCP) nomination would be appropriate or 
may already exist.
    NPS Response: A TCP is a natural resource or area eligible for 
nomination to the National Register of Historic Properties under the 
NHPA. National Register eligibility criteria are distinct from the 
considerations and determinations under this rule. While some plant 
species have enhanced cultural significance because of their specific 
location, not every plant-gathering location will have enhanced 
cultural significance simply because the plants are found there. TCPs 
do not necessarily correlate with plant-gathering locations. The 
different purposes and eligibility requirements for TCP nominations 
under the NHPA make using the TCP process an unworkable substitute for 
the process

[[Page 45034]]

for authorizing plant gathering under this rule.

Changes in the Final Rule

    After taking the public comments into consideration and after 
additional review, the NPS made the following substantive changes in 
the final rule:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Sec.   2.6(a)................  Added definitions for ``Plants or plant
                                parts'' and ``Traditional gathering''.
Sec.   2.6(c)(2).............  Clarified that after receiving a request
                                that contains the required information,
                                the Superintendent will begin
                                consultation with the requesting tribe
                                in order to develop an agreement and
                                will consult with any other tribe that
                                has gathering rights in that park area.
Sec.   2.6(c)(2).............  Added a requirement that the
                                Superintendent provide an initial
                                response within 90 days after receiving
                                a tribal request to enter into a
                                gathering agreement. If the
                                Superintendent fails to initiate
                                consultation within 90 days, then the
                                tribe may submit the request to the
                                Regional Director.
Sec.  Sec.   2.6(d)(2) and     Combined these two related paragraphs
 2.6(d)(3).                     into a single paragraph and added a
                                requirement that the NPS prepare an
                                environmental assessment and a finding
                                of no significant impact that meets the
                                requirements of NEPA before entering
                                into an agreement to allow traditional
                                gathering and removal.
Sec.   2.6(d)(4).............  Removed a redundant requirement that,
                                before entering into a gathering
                                agreement, the Superintendent must
                                determine that the proposed gathering
                                activities meet the requirements for
                                issuing a permit under 36 CFR 1.6(a).
                                This issue is addressed in paragraph
                                2.6(f)(2), which requires that permits
                                be issued in accordance with section 36
                                CFR 1.6.
Sec.   2.6(f)(1)(v) (Sec.      Added a requirement that all agreements
 2.6(f)(5) in proposed rule).   contain language prohibiting the
                                gathering of any species listed as
                                threatened or endangered under the
                                Endangered Species Act.
Sec.   2.6(f)(1)(xi).........  Added a requirement that all agreements
                                require periodic reviews of the status
                                of gathering activities under the
                                agreement.
Sec.   2.6(f)(1)(xiii).......  Added a requirement that a permit issued
                                under a gathering agreement identify the
                                tribal members designated by the tribe
                                to gather plants or plant parts under
                                the permit.
Sec.   2.6(g)................  Removed requirements that the
                                Superintendent must obtain the written
                                concurrence of the Regional Director
                                before issuing a permit.
Sec.   2.6(k)................  Added a new section explaining the right
                                of tribes to appeal decisions made by
                                the Superintendent to the Regional
                                Director.
------------------------------------------------------------------------

Section by Section Analysis

Section 2.1(d)--Preservation of Natural, Cultural and Archeological 
Resources

    The rule modifies the existing prohibition in this section on the 
taking, use, or possession of plants for ceremonial or religious 
purposes, by adding an exception for the gathering and removal of 
plants or plant parts by members of a federally-recognized Indian tribe 
in accordance with the requirements of this rule. The rule does not 
nullify or abrogate any existing statutory or treaty rights, nor does 
it affect rules governing the taking of fish or wildlife.

Section 2.6(a)--What terms do I need to know?

    This section defines the following terms that are used in the rule: 
Indian tribe, Plants or plant parts, Traditional association, 
Traditional purpose, Traditional gathering, and Tribal official. The 
NPS added a definition to the final rule that defines ``plants or plant 
parts'' as vascular plants or parts of vascular plants. No other types 
of plants may be gathered or removed under this rule. The NPS added 
this definition to clarify that non-vascular plants such as bryophytes 
(e.g. mosses, lichens, and liverworts) and fungi (e.g. mushrooms) are 
not covered under this rule and may not be collected under a gathering 
agreement. There is limited historical evidence that non-vascular 
plants were used by tribes for traditional purposes. The primary use of 
non-vascular plants is commercial.

Section 2.6(b)--How will the Superintendent authorize gathering and 
removal?

    This section provides a summary of the process for authorizing a 
tribe to gather and remove plants or plant parts in a park area. The 
rule authorizes agreements to allow and manage tribal gathering and 
removal of plants or plant parts for traditional purposes in park 
areas. The agreements will explicitly recognize the special government-
to-government relationship between Indian tribes and the United States, 
and will be based upon mutually agreed upon terms and conditions 
subject to the requirements of Sec.  2.6(d). The agreements will serve 
as the framework under which the NPS will allow tribal gathering and 
removal and will be implemented by an accompanying permit issued by the 
NPS under Sec.  1.6, which will authorize the gathering and removal 
activities.

Section 2.6(c)--How must a tribe request to enter into an agreement?

    This section explains how a tribe must request a gathering 
agreement from the NPS. The Superintendent will respond within ninety 
(90) days to a properly submitted request from the appropriate tribal 
official expressing interest in entering into an agreement for 
gathering and removal based on tribal traditional association with the 
park area, and on the continuation of traditional tribal cultural 
practices on park land. The tribal request must include a description 
of the traditional association that the Indian tribe has to the park 
area, a brief explanation of the traditional purposes to which the 
gathering and removal activities will relate, and a description of the 
gathering and removal activities that the Indian tribe is interested in 
conducting.

Section 2.6(d)--What are the criteria for entering into agreements?

    This section identifies criteria that must be met before the NPS 
will enter into a gathering agreement with a tribe. The rule requires 
the Superintendent to determine that the Indian tribe has a traditional 
association with the park area; determine that the Indian tribe is 
proposing to gather and remove plants or plant parts in the park area 
for a traditional purpose; analyze potential impacts of the proposed 
gathering activities under NEPA, NHPA, ESA, and other applicable laws; 
determine that the proposed gathering and removal activities will not 
result in a significant adverse impact on park resources or values; and 
determine that the agreement for the proposed gathering and removal 
meets the requirements for issuing a permit under 36 CFR 1.6(a).

Section 2.6(e)--When must the Superintendent deny a request to enter 
into an agreement?

    This section explains that the Superintendent must deny a request 
from a tribe to enter into a gathering

[[Page 45035]]

agreement if any of the criteria in pararaph (d) cannot be met.

Section 2.6(f)--How will agreements be implemented?

    This section explains that gathering agreements, at a minimum, must 
require that the tribal government identify who within the tribe is 
designated to gather and remove; how such individuals will be 
identified; what plants or plant parts may be gathered and removed; and 
limits on size, quantities, seasons, or locations where the gathering 
and removal may take place.
    Agreements will also establish NPS-tribal protocols for monitoring 
park resources subject to gathering and removal operating protocols, 
and remedies for noncompliance in addition to those set out in the 
rule. In the case of noncompliance by members of the tribe, the NPS 
will initially apply these agreed-upon remedies and, if warranted, seek 
prosecution of specific violators, prior to terminating the agreement. 
This section also provides for any special conditions unique to the 
park area or tribal tradition that may be included within the scope of 
existing law. The NPS will authorize the tribe to manage gathering and 
removal by tribal members, subject to the conditions of the agreement. 
Gathering agreements will be implemented through a permit issued by the 
park for the authorized gatherers under 36 CFR 1.6.

Section 2.6(g)--What concurrence must the Superintendent obtain?

    This section requires the Regional Director to approve any 
agreement entered into under the rule.

Section 2.6(h)--When will the Superintendent close areas to gathering 
and removal?

    This section explains the Superintendent's authority to close park 
areas to gathering and removal, notwithstanding the terms of any 
agreement or permit executed under this rule. The Superintendent may 
close a park area to gathering and removal when necessary to maintain 
public health and safety, protect environmental or scenic values, 
protect park resources, aid scientific research, implement management 
responsibilities, equitably allocate the use of facilities, or avoid 
conflict among visitor use activities. Those criteria are drawn 
verbatim from the existing NPS regulation authorizing closures 
generally, 36 CFR 1.5(a). Under that regulation, the Superintendent may 
close all or a portion of a park area to all public use or to a 
specific activity or use for one of the enumerated reasons. It is 
important to note that an order closing a park area to gathering and 
removal does not suspend, rescind, or otherwise affect the underlying 
tribal gathering agreement, which remains in effect. Except for 
emergencies, the Superintendent will provide appropriate public notice 
of any closures in accordance with 36 CFR 1.7. The Superintendent will 
also provide written notice of the closure directly to any tribe that 
has an agreement to gather and remove plants or plant parts from the 
close area.

Section 2.6(i)--When may an agreement or permit be suspended or 
terminated?

    This section explains when an agreement or permit may be suspended 
or terminated by the NPS. The rule allows the NPS to suspend or 
terminate an agreement or permit where terms or conditions are violated 
or unanticipated or significant adverse impacts occur. The 
Superintendent must prepare a written determination justifying the 
action. A termination is subject to the concurrence of the Regional 
Director. Termination of an agreement or permit will be based on 
factors such as careful analysis of impacts on park resources and the 
effectiveness of NPS-tribal agreement administration. The NPS also may 
address violations of a permit under 36 CFR 1.6(g).

Section 2.6(j)--When is gathering prohibited?

    Gathering and removal of plants or plant parts remains prohibited, 
except as authorized under this rule (including the terms and 
conditions of an agreement and permit issued under this rule), or as 
otherwise authorized by federal statute, treaty, or another NPS 
regulation.

Section 2.6(k)--How may a tribe appeal a decision under this rule?

    This section explains that tribes have the right to appeal a 
decision made by the Superintendent to deny a request for an agreement. 
Decisions on appeal will be made by the Regional Director pursuant to 
the procedures in this rule.

Compliance With Other Laws, Executive Orders, and Department Policy

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
rule in a manner consistent with these requirements.

Regulatory Flexibility Act (RFA)

    This rule will not have a significant economic effect on a 
substantial number of small entities under the RFA (5 U.S.C. 601 et 
seq.). This certification is based on information contained in the 
report titled, ``Cost-Benefit and Regulatory Flexibility Analyses'' 
available for review at https://www.nps.gov/tribes/final_rule.htm.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. 
This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    This determination is based on information from ``Cost-Benefit and 
Regulatory Flexibility Analyses'' available for review at https://www.nps.gov/tribes/final_rule.htm.

Unfunded Mandates Reform Act (UMRA)

    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. It addresses use of 
NPS lands only. A statement containing the information required by the 
UMRA (2 U.S.C. 1531 et seq.) is not required.

[[Page 45036]]

Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630. A takings 
implication assessment is not required.

Federalism (Executive Order 13132)

    Under the criteria in Executive Order 13132, the rule does not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism summary impact statement. This rule only affects use of NPS-
administered lands. It has no outside effects on other areas. A 
Federalism summary impact statement is not required.

Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (b) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

Consultation With Indian Tribes (Executive Order 13175 and Department 
Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in Executive Order 13175, and have identified direct tribal 
implications. We have consulted with tribes on a government-to-
government basis as explained above in this rule.

Paperwork Reduction Act of 1995

    This rule contains a collection of information that the Office of 
Management and Budget (OMB) has approved under the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.). OMB has assigned OMB Control 
Number 1024-0271, which expires 07/31/2019. We may not conduct or 
sponsor and a person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number.
    Title: Gathering of Certain Plants or Plant Parts by Federally 
Recognized Indian Tribes for Traditional Purposes, 36 CFR 2.
    OMB Control Number: 1024-0271.
    Service Form Number: None.
    Type of Request: New Collection
    Description of Respondents: Indian tribes.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.
    Estimated Number of Respondents: 30.

----------------------------------------------------------------------------------------------------------------
                                                                     Estimated      Completion
                                                                     number of       time per        Estimated
                            Activity                                  annual         response      total annual
                                                                     responses        (hours)      burden hours
----------------------------------------------------------------------------------------------------------------
Initial written request from an Indian tribal official..........              20               4              80
Agreement with Indian tribe.....................................               5              20             100
Appeals.........................................................               5              10              50
                                                                 -----------------------------------------------
    Total.......................................................              30  ..............             230
----------------------------------------------------------------------------------------------------------------

    An Indian tribe that has a traditional association with a park area 
may request that we enter into an agreement with the tribe for 
gathering and removal from the park area of plants or plant parts for 
traditional purposes. The agreement will define the terms under which 
the Indian tribe may be issued permits that will designate the tribal 
members who may gather and remove plants or plant parts within the park 
area in accordance with the terms and conditions of the agreement and 
the permit.
    (1) The initial request from an Indian tribe that we enter into an 
agreement with the tribe for gathering and removal of plants or plant 
parts for traditional purposes. The request must include the 
information specified in Sec.  2.6(c).
    (2) The agreement, which defines the terms under which the Indian 
tribe may be issued a permit. To make determinations based upon tribal 
requests or to enter into an agreement, we may need to collect 
information from those Indian tribes who make requests and from the 
specific tribal members. The agreement must contain the information 
specified in Sec.  2.6(f).
    During the final rule stage, we made one change in our information 
collection requirements. We added a new section on the appeals process, 
outlining the right of tribes to appeal decisions made by the 
Superintendent to the Regional Director. Appeals should set forth the 
substantive factual or legal bases for the tribe's disagreement with 
the Superintendent's decision and any other information the tribe 
wishes the Regional Director to consider. During the proposed rule 
stage, we solicited comments on the information collection 
requirements. We addressed all comments in the preamble above. A number 
of comments addressed the issue of the information requested under this 
rule. These comments fell within three broad categories:
    (1) Is there a basic need for the information? Some comments 
questioned why we need to collect the information specified in the 
gathering rule, suggesting instead that the individual tribes are 
better suited to identify the people, plants, places, and methods by 
which plant gathering would take place.
    NPS Response: Under the rule, tribes identify the specific details 
of their proposed plant gathering and provide that information to the 
Superintendent for consideration. This information is necessary to meet 
our legislated and regulatory responsibilities to conserve park 
resources, particularly plants. Because parks have different biological 
conditions and plants as well as different enabling legislation, the 
information we collect under this rule is required to develop NEPA 
environmental documents and to determine whether specific communities 
of plants or plant parts are healthy enough to be included in a plant 
gathering agreement.
    (2) Why is there a need for a tribe to provide specific details 
about the plant gathering? Some comments called the level of detail 
required for the agreements ``overly burdensome'' and raised the 
question as to whether or not we need to collect: Specific lists of 
tribal members who would be allowed to collect plants and plant parts, 
specific lists of the plants targeted for gathering by the tribal 
members, specific locations

[[Page 45037]]

from which the plants would be gathered, specific times where the plant 
gathering would take place, and specific descriptions of the 
traditional methods to be used to gather the plants.
    NPS Response: We believe the information is necessary to minimize 
impacts to park resources and values, allow for efficient 
implementation of agreements, and prevent unauthorized gathering. We 
believe that this rule is broad enough to allow latitude in the 
specificity required to create workable agreements between the NPS and 
traditionally associated tribes. Permits issued under the agreements 
must list tribal members who will gather plants or plant parts during 
the time period covered by the permit. Tribal members who are 
authorized to gather plants are encouraged to have tribal 
identification cards in their possession during gathering activities. 
In addition to the permitted tribal members, tribes will need to 
provide a list of plants or plant parts to be gathered under the 
agreements, general time frames when the gathering of plants or plant 
parts would take place, and a general description of the proposed 
method of gathering so that the NPS can continue to ensure that there 
will be no significant adverse impacts to park resources. We believe 
that the categories of information that we will collect are necessary 
to develop the environmental assessment and finding of no significant 
impact under NEPA and to determine whether or not the communities of 
plants or plant parts desired are healthy enough to be included within 
a plant gathering agreement.
    (3) Can the NPS protect the sensitive information tribes provide 
about traditional methods of gathering, traditional uses of plants and 
plant parts, and so forth? Many tribal respondents questioned our 
ability to protect confidential information about who does the 
gathering and plant gathering locations.
    NPS Response: See NPS Response to Comment 11 above.
    We did not change our information collection requirements based on 
these comments. The public may comment at any time on the accuracy of 
the information collection burden in this rule. You may send comments 
on any aspect of these information collection requirements to the 
Information Collection Clearance Officer, National Park Service, 12201 
Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192.

National Environmental Policy Act (NEPA)

    This rule does not constitute a major federal action significantly 
affecting the quality of the human environment. A detailed statement 
under NEPA is not required because the rule is covered by a categorical 
exclusion. The Department of the Interior Regulations for implementing 
NEPA at 43 CFR 46.210(i) and the NPS NEPA Handbook at ] 3.2(H) allow 
for the following to be categorically excluded: ``policies, directives, 
regulations, and guidelines that are of an administrative, financial, 
legal, technical, or procedural nature; or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA-compliance 
process, either collectively or case-by-case.''
    The NPS has determined that the environmental effects of this rule 
are too broad, speculative, or conjectural for a meaningful analysis. 
In order to enter into an agreement for gathering of natural products 
under the rule, the NPS will first need to receive a request from an 
appropriate tribal official. While there are a number of Indian tribes 
that may qualify for an agreement under the rule, the NPS can only 
speculate at this point as to which Indian tribes will request an 
agreement, which park areas will be affected, and what specific 
resources specific Indian tribes will request to collect. Because of 
this, the NPS has explicitly required that it prepare an environmental 
assessment and a finding of no significant impact that meets the 
requirements of NEPA for each gathering agreement, on a case-by-case 
basis. The activities allowed by the permit must fall within the scope 
of activities agreed upon in the gathering agreement. As a result, no 
collection of plants or plant parts will occur under this rule until 
after a site-specific NEPA analysis is completed.
    The NPS has also determined that the rule does not involve any of 
the extraordinary circumstances listed in 43 CFR 46.215 that would 
require further analysis under NEPA.

Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

Drafting Information

    The primary authors of the proposed rule were Patricia L. Parker, 
Ph.D., Chief, American Indian Liaison Office; Frederick F. York, Ph.D., 
Regional Anthropologist, Pacific West Region; and Philip Selleck, 
Associate Regional Director for Operations, National Capital Region. 
The primary authors of the final rule were Joe Watkins, Ph.D., Chief, 
American Indian Liaison Office; Michael J. Evans, Ph.D., Chief, 
Cultural Anthropology/Ethnography, Midwest Region; Timothy Cochrane, 
Ph.D., Superintendent, Grand Portage National Monument; and Dr. 
Meredith Hardy, Archeologist, Southeast Archeological Center.

List of Subjects in 36 CFR Part 2

    National parks, Native Americans, Natural resources.

    For the reasons given in the preamble, the National Park Service 
amends 36 CFR part 2 as follows:

PART 2--RESOURCE PROTECTION, PUBLIC USE AND RECREATION

0
1. The authority citation for Part 2 continues to read as follows:

    Authority:  54 U.S.C. 100101, 100751, 320102.


0
2. In Sec.  2.1, revise paragraph (d) to read as follows:


Sec.  2.1  Preservation of natural, cultural and archeological 
resources.

* * * * *
    (d) This section shall not be construed as authorizing the taking, 
use, or possession of fish, wildlife, or plants for ceremonial or 
religious purposes, except for the gathering and removal of plants or 
plant parts by enrolled members of an Indian tribe in accordance with 
Sec.  2.6, or where specifically authorized by federal statutory law, 
treaty, or in accordance with Sec.  2.2 or Sec.  2.3.
* * * * *

0
3. Add Sec.  2.6 to read as follows:


Sec.  2.6  Gathering of plants or plant parts by federally recognized 
Indian tribes.

    (a) What terms do I need to know? The following definitions apply 
only to this section.
    Indian tribe means an American Indian or Alaska Native tribe, band, 
nation, pueblo, village, or community that the Secretary of the 
Interior acknowledges to exist as an Indian tribe under the Federally 
Recognized Tribe List Act of 1994, 25 U.S.C. 479a.
    Plants or plant parts means vascular plants or parts of vascular 
plants. No other types of plants may be gathered or removed under this 
section.
    Traditional association means a longstanding relationship of 
historical or cultural significance between an Indian tribe and a park 
area predating the establishment of the park area.

[[Page 45038]]

    Traditional gathering means the method of gathering plants or plant 
parts by hand or hand tools only. Traditional gathering does not 
include the use of tools or machinery powered by electricity, fossil 
fuels, or any other source of power except human power.
    Traditional purpose means a customary activity or practice that is 
rooted in the history of an Indian tribe and is important to the 
continuation of that tribe's distinct culture.
    Tribal official means an elected or duly appointed official of the 
federally recognized government of an Indian tribe authorized to act on 
behalf of the tribe with respect to the subject matter of this 
regulation.
    (b) How may the Superintendent authorize traditional gathering and 
removal? After receiving a request from an Indian tribe to gather 
plants or plant parts within a park area, the Superintendent may enter 
into an agreement with the tribe to authorize the traditional gathering 
and removal of plants or plant parts for traditional purposes. The 
agreement will describe the terms and conditions under which the 
Superintendent may issue a gathering permit to the tribe under Sec.  
1.6 of this chapter. The permit will designate the enrolled tribal 
members who are authorized to gather and remove plants or plant parts 
within the park area.
    (c) How must a tribe request to enter into an agreement? (1) A 
tribal official must submit to the Superintendent a written request to 
enter into an agreement under this section that contains the following:
    (i) A description of the Indian tribe's traditional association to 
the park area;
    (ii) A description of the traditional purposes to which the 
traditional gathering activities will relate; and
    (iii) A description of the traditional gathering and removal 
activities that the tribe is interested in conducting, including a list 
of the plants or plant parts that tribal members wish to gather and the 
methods by which those plants or plant parts will be gathered.
    (2) Within 90 days after receiving a request that contains the 
information required by paragraph (c)(1) of this section, the 
Superintendent will initiate consultation with the requesting tribe in 
order to develop an agreement. If a Superintendent fails to initiate 
consultation within 90 days after receiving such a request, then the 
tribe may submit the request to the Regional Director. The 
Superintendent will also consult with any other tribe that has 
gathering rights in that park area under a treaty or federal statute or 
is party to a valid plant-gathering agreement with the NPS for that 
park area.
    (d) What are the requirements for entering into agreements? Before 
entering into an agreement to allow gathering and removal, the 
Superintendent must:
    (1) Determine, based on available information, including 
information provided by the tribe itself, that the tribe has a 
traditional association with the park area and is proposing to gather 
and remove plants or plant parts within the park area for a traditional 
purpose; and
    (2) Comply with all applicable federal laws, including the National 
Environmental Policy Act of 1969, the National Historic Preservation 
Act, and the Endangered Species Act. The compliance for the National 
Environmental Policy Act of 1969 must consist of an environmental 
assessment and must conclude with a finding of no significant impact, 
which must also document the determinations required by paragraph 
(d)(1) of this section. The Superintendent may not enter into an 
agreement that will have a significant adverse impact on park area 
resources or values.
    (e) When must the Superintendent deny a tribe's request to enter 
into a gathering agreement? The Superintendent must deny a tribe's 
request to enter into a gathering agreement if any of the requirements 
of paragraph (d) of this section are not satisfied.
    (f) What must agreements contain and how will they be implemented? 
(1) An agreement to gather and remove plants or plant parts must 
contain the following:
    (i) The name of the Indian tribe authorized to gather and remove 
plants and plant parts;
    (ii) The basis for the tribe's eligibility under paragraphs 
(c)(1)(i) and (ii) of this section to enter into the agreement;
    (iii) A description of the system to be used to administer 
traditional gathering and removal, including a clear means of 
identifying the enrolled tribal members who, under the permit, are 
designated by the Indian tribe to gather and remove;
    (iv) A means for the tribal government to keep the NPS regularly 
informed of which enrolled tribal members are designated by the tribe 
to gather and remove;
    (v) A description of the specific plants or plant parts that may be 
gathered and removed. The gathering agreement may not authorize the 
gathering of any species listed as threatened or endangered under the 
Endangered Species Act;
    (vi) Specification of the size and quantity of the plants or plant 
parts that may be gathered and removed;
    (vii) Identification of the times and locations at which the plants 
or plant parts may be gathered and removed;
    (viii) A statement that plants or plant parts may be gathered only 
by traditional gathering methods, i.e., only by hand or hand tools;
    (ix) A statement that the sale or commercial use of natural 
products (including plants or plant parts gathered under the agreement) 
is prohibited in the park area under Sec.  2.1(c)(3)(v);
    (x) Protocols for monitoring traditional gathering and removal 
activities and thresholds above which NPS and tribal management 
intervention will occur;
    (xi) A requirement that the NPS and the tribe engage in periodic 
reviews of the status of traditional gathering activities under the 
agreement through consultation;
    (xii) Operating protocols and additional remedies for non-
compliance with the terms of the agreement beyond those provided in 
this section, including mitigation, restoration, and remediation;
    (xiii) A requirement that a permit issued under the agreement 
identify the tribal members who are designated by the tribe to gather 
plants or plant parts under the permit;
    (xiv) A list of key officials; and
    (xv) Any additional terms or conditions that the parties may agree 
upon.
    (2) Agreements will be implemented through a permit issued in 
accordance with Sec.  1.6 of this chapter. Activities allowed by a 
permit must fall within the scope of activities agreed upon in the 
agreement.
    (g) What concurrence must the Superintendent obtain? Before 
executing any gathering agreement, the Superintendent must obtain the 
written concurrence of the Regional Director.
    (h) When may the Superintendent close areas to gathering and 
removal? (1) Notwithstanding the terms of any agreement or permit 
executed under this section, the Superintendent may close park areas, 
or portions thereof, to the traditional gathering and removal of plants 
or plant products for any of the following reasons:
    (i) Maintenance of public health and safety;
    (ii) Protection of environmental or scenic values;
    (iii) Protection of natural or cultural resources;
    (iv) Aid to scientific research;
    (v) Implementation of management plans; or
    (vi) Avoidance of conflict among visitor use activities.

[[Page 45039]]

    (2) Closed areas may not be reopened to traditional gathering and 
removal until the reasons for the closure have been resolved.
    (3) Except in emergency situations, the Superintendent will provide 
public notice of any closure under this section in accordance with 
Sec.  1.7 of this chapter. The Superintendent will also provide written 
notice of the closure directly to any tribe that has an agreement to 
gather and remove plants or plant parts from the closed area.
    (i) When may the Superintendent suspend or terminate an agreement 
or permit?
    (1) The Superintendent may suspend or terminate a gathering 
agreement or implementing permit if the tribe or a tribal member 
violates any term or condition of the agreement or the permit.
    (2) The Superintendent may suspend or terminate a gathering 
agreement or implementing permit if unanticipated or significant 
adverse impacts to park area resources or values occur.
    (3) If a Superintendent suspends or terminates a gathering 
agreement or implementing permit, then the Superintendent must prepare 
a written determination justifying the action and must provide a copy 
of the determination to the tribe.
    (4) Before terminating a gathering agreement or implementing 
permit, the Superintendent must obtain the written concurrence of the 
Regional Director.
    (j) When is gathering prohibited? Gathering, possession, or removal 
from a park area of plants or plant parts (including for traditional 
purposes) is prohibited except where specifically authorized by:
    (1) Federal statutory law;
    (2) Treaty rights;
    (3) Other regulations of this chapter; or
    (4) An agreement and permit issued under this section.
    (k) How may a tribe appeal a Superintendent's decision not to enter 
into a gathering agreement under this rule? If a Superintendent denies 
a tribe's request to enter into a gathering agreement, then the 
Superintendent will provide the tribe with a written decision setting 
forth the reasons for the denial. Within 60 days after receiving the 
Superintendent's written decision, the tribe may appeal, in writing, 
the Superintendent's decision to the Regional Director. The appeal 
should set forth the substantive factual or legal bases for the tribe's 
disagreement with the Superintendent's decision and any other 
information the tribe wishes the Regional Director to consider. Within 
45 days after receiving the tribe's written appeal, the Regional 
Director will issue and send to the tribe a written decision that 
affirms, reverses, or modifies the Superintendent's decision. The 
Regional Director's appeal decision will constitute the final agency 
action on the matter. Appeals under this section constitute an 
administrative review and are not conducted as an adjudicative 
proceeding.
    (l) Have the information collection requirements been approved? The 
Office of Management and Budget has reviewed and approved the 
information collection requirements in this section and assigned OMB 
Control No. 1024-0271. We will use this information to determine 
whether a traditional association and purpose can be documented in 
order to authorize traditional gathering. We may not conduct or sponsor 
and you are not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. You may send 
comments on any aspect of this information collection to the 
Information Collection Clearance Officer, National Park Service, 12201 
Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192.

Karen Hyun,
Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-16434 Filed 7-11-16; 8:45 am]
 BILLING CODE 4310-EJ-P