[Federal Register: June 4, 2004 (Volume 69, Number 108)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 18
Marine Mammals; Native Exemptions
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
SUMMARY: We, the Fish and Wildlife Service (Service), propose to amend
regulations implementing the Marine Mammal Protection Act of 1972
(MMPA), as amended. This action would revise our existing definition of
``authentic native articles of handicrafts and clothing'' to reflect a
December 28, 1992, Court ruling, which found that our regulation
defining ``authentic native articles of handicrafts and clothing'' is
inconsistent with the MMPA.
DATES: We will consider comments on the proposed rule if received by
August 3, 2004.
ADDRESSES: You may submit comments by any of the following methods:
By mail or hand-delivery to: Diane Bowen, Division of
Federal Program Activities, U.S. Fish and Wildlife Service, Attention:
Native Handicrafts, Room 400, ARLSQ, 4401 North Fairfax Drive,
Arlington, Virginia 22203.
By fax to: (703) 358-1869, Attention: Diane Bowen.
By Internet, electronic mail by sending to:
FW9MMM@fws.gov. Please submit Internet comments as an ASCII file
avoiding the use of special characters and any form of encryption.
Please also include ``Attn: RIN 1018-AT48'' and your name and return
address in your Internet message subject header. If you do not receive
a confirmation from the system that we have received your Internet
message, contact us directly at U.S. Fish and Wildlife Service, Branch
of Resource Management Support, (703) 358-2161.
Background information and any comments that we receive on this
action are available for inspection during normal business hours from 8
a.m. to 4:30 p.m., Monday through Friday, at the U.S. Fish and Wildlife
Service, Division of Federal Program Activities, Room 400, Arlington
Square, 4401 North Fairfax Drive, Arlington, Virginia. To be sure
someone is available to help you, please call (703) 358-2161 before
FOR FURTHER INFORMATION CONTACT: Diane Bowen, Division of Federal
Program Activities, in Arlington, Virginia, at 703/358-2161.
After passage of the Marine Mammal Protection Act in 1972, we
promulgated regulations at 50 CFR part 18 to implement this authority.
We included in our proposed regulations a definition similar to that in
section 101(b)(2) of the MMPA for ``authentic native articles of
handicrafts and clothing'' (37 FR 25524; December 1, 1972), part of
. . . items composed wholly or in some significant respect of
natural materials, and which are produced, decorated, or fashioned
in the exercise of traditional native handicrafts. Traditional
native handicrafts include, but are not limited to weaving, carving,
stitching, sewing, lacing, beading, drawing, and painting, so long
as the use of pantographs, multiple carvers, or similar mass copying
devises, or other improved methods of production utilizing modern
implements, such as sewing machines, are not utilized. . .
The final rule (37 FR 28173; December 21, 1972) added the
requirement that these items must be ``commonly produced on or before
December 21, 1972'' and read:
. . . items which (a) were commonly produced on or before
December 21, 1972, and (b) are composed wholly or in some
significant respect of natural materials, and (c) which are
produced, decorated, or fashioned in the exercise of traditional
native handicrafts without the use of pantographs, multiple carvers,
or similar mass copying devises, or other improved methods of
production utilizing modern implements, such as sewing machines.
Traditional native handicrafts include, but are not limited to
weaving, carving, stitching, sewing, lacing, beading, drawing, and
Although our MMPA implementing regulations were published on
December 21, 1972, as a final rule, we invited the public to provide
comments, suggestions, and objections for a 60-day period. Based on
comments received, we issued a proposed rule to amend our implementing
regulations (38 FR 22143; August 16, 1973), followed by a final rule
(38 FR 7262; February 25, 1974). The definition for ``authentic native
articles of handicrafts and clothing'' at 50 CFR 18.3 was amended by
the following additions: (1) The articles must have been made by an
Indian, Aleut, or Eskimo; (2) the articles must be significantly
altered from their natural form; (3) modern techniques at a tannery
registered pursuant to Sec. 18.23(c) may be used so long as no large
scale mass production industry results; and (4) the formation of
traditional native groups, such as cooperatives, is permitted as long
as no large scale mass production results.
The regulations were enforced and subsequently challenged in court.
While initially upheld in court, the U.S. District Court for the
District of Alaska called for a thorough administrative review of the
section of the regulations (50 CFR 18.23) that addresses the taking of
northern sea otters under the native exemptions. Following the review,
the Service published a notice of proposed rulemaking on November 14,
1988, to clarify the regulations as they apply to the sea otter (53 FR
45788). Those proposed regulations would prohibit all takings of sea
otters by Alaska Natives for the purpose of creating and selling
handicrafts or clothing. An interim rule was subsequently published on
April 20, 1990 (55 FR 14973). This 1990 rule was identical to the 1974
rule, but included an additional restriction that stated ``[P]rovided
that it has been determined that no items created in whole or in part
from sea otter meet part (a) [that is, ``were commonly produced on or
before December 21, 1972''] of this definition and therefore no such
items may be sold'' (55 FR 14973). We further stated in the rule that,
following the completion of a management plan for northern sea otter,
we would replace the interim rule with a final rule, if appropriate.
The interim rule became effective on May 21, 1990. Although we
developed and issued a ``Conservation Plan for the Sea Otter in
Alaska'' in June 1994, we did not revisit the regulatory definition put
into place by our interim rule, and the language still exists in 50 CFR
In 1990, a number of parties challenged our definition as violating
the MMPA. On July 17, 1991, in Didrickson v. U.S. Department of the
Interior, the U.S. District Court for the District of Alaska ruled in
favor of the Plaintiffs. The Court wrote that we had defined
``authentic,'' as used in the phrase, ``authentic native articles of
handicrafts and clothing * * *'' (in the Native exemption section of
the Act), ``in such a way as to broaden [the Service's] own regulatory
authority over [Native] activities that the plain language of the
statute would not otherwise permit.'' The Court further ruled that the
MMPA did not mandate restriction of its Alaska native handicraft
exemption to apply only to artifacts commonly produced on or before
December 21, 1972. In its conclusion, the Court stated that, while its
``opinion should not be construed as authorizing a ``free-for-all''
killing of hundreds of sea otters,'' the Service ``does not have the
authority to regulate the harvesting of sea otters for purposes of
creating native handicrafts absent a finding of depletion.'' The Court
also stated that the Service has the authority to take enforcement
action against any takings that are wasteful. This decision was
appealed to the Ninth Circuit Court of Appeals, which, on December 28,
1992, affirmed the District Court's ruling.
Our present proposed rulemaking revises our regulations in 50 CFR
part 18 to make them consistent with the court rulings described above.
Specifically, this action would eliminate the requirement in 50 CFR
18.3 for ``Authentic native articles of handicrafts and clothing'' to
have been commonly produced on or before December 21, 1972, and would
delete the language at the end of the definition that states:
``Provided that, it has been determined that no items created in
whole or in part from sea otter meet part (a) of this definition and
therefore no such items may be sold.''
Public Comments Solicited
We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule.
Our practice is to make all comments, including names and home
respondents, available for public review during regular business hours.
Individual respondents may request that we withhold their home address
from the rulemaking record, which we will honor to the extent allowable
by law. In some circumstances, we would withhold also from the
rulemaking record a respondent's identity, as allowable by law. If you
wish for us to withhold your name and/or address, you must state this
prominently at the beginning of your comments. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, available for public inspection in their entirety.
Clarity of the Rule
Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand, including answers to
questions such as the following: (1) Are the requirements in the
proposed rule clearly stated? (2) Does the proposed rule contain
unnecessary technical language or jargon that interferes with the
clarity? (3) Does the format of the proposed rule (grouping and order
of sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Is the description of the proposed rule in the
``Supplementary Information'' section of the preamble helpful in
understanding the proposed rule? (5) What else could we do to make the
proposed rule easier to understand?
Send a copy of any comments that concern how we could make this
proposed rule easier to understand to: Office of Regulatory Affairs,
Department of the Interior, Room 7229, 1849 C Street, NW., Washington,
DC 20240. You may e-mail your comments to the following address:
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this
proposed rule is not a significant regulatory action. The Office of
Management and Budget makes the final determination under Executive
a. This proposed rule will not have an annual economic impact of
$100 million or adversely affect an economic sector, productivity,
jobs, the environment, or other units of government. There are no
compliance costs to any sector of the economy. A cost-benefit analysis
is not required. We do not expect that any significant economic impacts
would result from the revision of this definition. The only expenses
related to this will be to the Federal government to write the rule and
required Record of Compliance, and to publish the final rule in the
Federal Register; these costs should not exceed $25,000.
b. This proposed rule will not create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency.
c. This proposed rule will not materially affect entitlements,
grants, user fees, loan programs, or the rights and obligations of
d. This proposed rule will not raise novel legal or policy issues.
Regulatory Flexibility Act
We certify that this proposed rule will not have a significant
economic effect on a substantial number of small entities as defined
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An
initial/final Regulatory Flexibility Analysis is not required.
Accordingly, a Small Entity Compliance Guide is not required.
Small Business Regulatory Enforcement Fairness Act
This proposed rule is not a major rule under 5 U.S.C. 804(2). This
a. Does not have an annual effect on the economy of $100 million or
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.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
a. This proposed rule will not ``significantly or uniquely'' affect
small governments. A Small Government Agency Plan is not required.
b. This proposed rule will not produce a Federal mandate of $100
million or greater in any year. As such, it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act.
In accordance with Executive Order 12630, this proposed rule does
not have significant takings implications. We have determined that the
rule has no potential takings of private property implications as
defined by this Executive Order because it will remove a regulatory
definition determined by a Federal Court to exceed the statutory
provisions of the MMPA. A takings implication assessment is not
In accordance with Executive Order 13132, this proposed rule does
not have significant federalism effects. A federalism assessment is not
required. This proposed rule will not have substantial direct effects
on the State, in the relationship between the Federal government and
the State, or on the distribution of power and responsibilities among
the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Paperwork Reduction Act
This proposed regulation does not contain collections of
information that require approval by the Office of Management and
Budget under 44 U.S.C. 3501 et seq. The proposed regulation will not
impose new record keeping or reporting requirements on State or local
governments, individuals, and businesses, or organizations.
National Environmental Policy Act
We have considered this action with respect to section 102(2)(C) of
the National Environmental Policy Act of 1969, and have determined that
the action is categorically excluded, pursuant to U.S. Department of
the Interior criteria, from the NEPA process; the preparation of an
Environmental Assessment is not required as defined by USDI categorical
exclusion 1.10 (516 DM, Chapter 2, Appendix 1, Departmental Categorical
Exclusions). This categorical exclusion exempts ``[p]olicies,
directives, regulations, and guidelines of an administrative,
financial, legal, technical, or procedural nature.'' Given that this
proposed rule seeks to amend a regulation to make the regulation
consistent with a court ruling, the exclusion applies to this action.
Government-to-Government Relationship With 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 and the Department of the Interior's manual at 512 DM 2, we
readily acknowledge our responsibility to communicate meaningfully with
federally recognized tribes on a government-to-government basis. We
have evaluated possible effects on federally recognized Indian tribes.
Because this rule would amend our regulations to lift regulatory
restrictions consistent with a court order, we have determined that
there are no negative effects.
Energy Supply, Distribution or Use (Executive Order 13211)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not a
significant regulatory action under Executive Order 12866 and it is not
expected to have any effect on energy supplies, distribution, and use.
Therefore, this action is a not a significant energy action and no
Statement of Energy Effects is required.
List of Subjects in 50 CFR Part 18
Administrative practice and procedure, Alaska, Imports, Indians,
Marine mammals, Oil and gas exploration, Reporting and recordkeeping
Proposed Regulation Promulgation
Accordingly, we propose to amend part 18, subpart A of chapter I,
title 50 of the Code of Federal Regulations, as follows:
PART 18--MARINE MAMMALS
1. The authority citation for 50 CFR part 18 continues to read as
Authority: 16 U.S.C. 1361 et seq.
2. In Sec. 18.3, revise the definition for Authentic native
articles of handicrafts and clothing as follows:
Sec. 18.3 Definitions.
* * * * *
Authentic native articles of handicrafts and clothing means items
made by an Indian, Aleut, or Eskimo that (a) are composed wholly or in
some significant respect of natural materials and (b) are significantly
altered from their natural form and are produced, decorated, or
fashioned in the exercise of traditional native handicrafts without the
use of pantographs, multiple carvers, or similar mass-copying devices.
Improved methods of production utilizing modern implements such as
sewing machines or modern techniques at a tannery registered pursuant
to Sec. 18.23(c) may be used so long as no large-scale mass-production
industry results. Traditional native handicrafts include, but are not
limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. The formation of traditional native groups, such
as cooperatives, is permitted so long as no large-scale mass production
* * * * *
Dated: May 20, 2004.
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12139 Filed 6-3-04; 8:45 am]
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