![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Marine Mammals; Native Exemptions
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[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]
[DOCID:fr17au05-24]
=======================================================================
-----------------------------------------------------------------------
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: 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.
SUPPLEMENTARY INFORMATION:
Background
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
population.
Conclusion
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
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 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.
Takings
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.
Federalism
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.
[[Page 48323]]
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:
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: 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]
BILLING CODE 4310-55-P