[Federal Register Volume 69, Number 108 (Friday, June 4, 2004)]
[Proposed Rules]
[Pages 31582-31585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12139]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 18

RIN 1018-AT48


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.

[[Page 31583]]

     By fax to: (703) 358-1869, Attention: Diane Bowen.
     By Internet, electronic mail by sending to: 
[email protected]. 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 
visiting.

FOR FURTHER INFORMATION CONTACT: Diane Bowen, Division of Federal 
Program Activities, in Arlington, Virginia, at 703/358-2161.

SUPPLEMENTARY INFORMATION:

Background

    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 
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 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 
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 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 
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.
    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 
addresses of

[[Page 31584]]

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: 
[email protected].

Required Determinations

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 
Order 12866.
    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 
their recipients.
    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 
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.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    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.

Takings

    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 
required.

Federalism

    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

[[Page 31585]]

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 
requirements, Transportation.

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 
follows:

    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 
results.
* * * * *

    Dated: May 20, 2004.
Paul Hoffman,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12139 Filed 6-3-04; 8:45 am]
BILLING CODE 4310-55-P