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

§ 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.

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 § 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 § 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 § 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.

(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 § 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.

[81 FR 45037, July 12, 2016]