[Federal Register: August 17, 2005 (Volume 70, Number 158)]
[Rules and Regulations]               
[Page 48321-48323]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 48321]]



Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AT48

Marine Mammals; Native Exemptions

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the Fish and Wildlife Service (Service), amend regulations 
implementing the Marine Mammal Protection Act of 1972 (MMPA), as 
amended. This action revises 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: Effective date: The amendments in this final rule are effective 
September 16, 2005.

ADDRESSES: Comments and materials received in response to 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 Habitat and Resource Conservation, 4401 North 
Fairfax Drive, Suite 400, Arlington, Virginia. To be sure someone is 
available to help you, please call (703) 358-2161 before visiting.

FOR FURTHER INFORMATION CONTACT: Diane Bowen, Division of Habitat and 
Resource Conservation, in Arlington, Virginia, at 703/358-2161.



    After passage of the Marine Mammal Protection Act (16 U.S.C. 1361, 
et seq.) 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 which read:
    `` * * * 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 other 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 painting.''
    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 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, for the most part, identical to the 1974 
rule. However, the rule included a qualifying statement with regard to 
sea otters 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 18.3.
    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.

Notice of Proposed Rulemaking

    On June 4, 2004, we published a proposed rule (69 FR 31582) and 
requested public comment on the rulemaking to revise our regulations in 
50 CFR part 18 and make them consistent with the court rulings 
described above. Specifically, the 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

[[Page 48322]]

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.''

Comments on the Proposed Rule

    We received two comments on the proposed rule. One commenter fully 
supported the amendment and urged the agency to make the changes as 
soon as possible. The other commenter did not indicate whether they 
supported the amendment but, instead requested that the Secretary of 
the Department of the Interior reevaluate the regulations regarding 
native take exemptions should the southwest Alaska distinct population 
segment of the northern sea otter be listed as threatened under the 
U.S. Endangered Species Act and, therefore, automatically deemed 
depleted under the MMPA. This comment is beyond the scope of this 
rulemaking process, which is to amend the regulatory definition of 
``authentic native handicraft'' consistent with a Court ruling. There 
is a separate rulemaking process that deals with the status of the 


    The Service has concluded that, based on the information presented 
above and, in consideration of public comments, amendment of the 
definition of ``authentic native handicraft'' is appropriate and is 
warranted to be in compliance with a Court ruling.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is not a significant regulatory action. The Office of Management and 
Budget makes the final determination under Executive Order 12866.
    a. This 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 were 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 rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    c. This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    d. This rule will not raise novel legal or policy issues.

Regulatory Flexibility Act

    We certify that this 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 rule is not a major rule under 5 U.S.C. 804(2). This rule:
    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 
et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required.
    b. This 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 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 removes a regulatory definition 
determined by a Federal Court to exceed the statutory provisions of the 
MMPA. A takings implication assessment is not required.


    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This 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 rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Paperwork Reduction Act

    This regulation does not contain collections of information that 
require approval by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. The 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 
rule amends a regulation, in response to 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 and have determined that 
this rule will have a positive effect on tribes as it relieves a 
regulatory restriction consistent with a Court ruling.

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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. Because this rule is 
not a significant regulatory action under Executive Order 12866, it is 
not expected to significantly affect 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 
requirements, Transportation.

In consideration of the foregoing, 50 CFR part 18, subpart A of chapter 
I, title 50 of the Code of Federal Regulations, is amended as follows:


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: August 2, 2005.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-16277 Filed 8-16-05; 8:45 am]