[Senate Report 115-415]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 718
115th Congress          }                    {                Report
                                 SENATE
 2d Session             }                    {                 115-415
_______________________________________________________________________

      
      

ALLOWING ALASKA TO IMPROVE VITAL OPPORTUNITIES IN THE RURAL ECONOMY ACT

                               __________

                              R E P O R T

                                 of the

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 1965

                             together with

                           SUPPLEMENTAL VIEWS
                           
                           
                           
                           


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








                December 5, 2018.--Ordered to be printed
                                   ______

                         U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                         WASHINGTON : 2018





                
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred fifteenth congress
                             second session

                   JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi         BILL NELSON, Florida
ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
TED CRUZ, Texas                      AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska                RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada                  TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma            GARY C. PETERS, Michigan
MIKE LEE, Utah                       TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin               TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia  MARGARET WOOD HASSAN, New Hampshire

CORY GARDNER, Colorado               CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana               JON TESTER, Montana
                       Nick Rossi, Staff Director
                 Adrian Arnakis, Deputy Staff Director
                    Jason Van Beek, General Counsel
                 Kim Lipsky, Democratic Staff Director
           Christopher Day, Democratic Deputy Staff Director








                                                    Calendar No. 718
115th Congress       }                         {            Report
                                 SENATE
 2d Session          }                         {             115-415

======================================================================



 
ALLOWING ALASKA TO IMPROVE VITAL OPPORTUNITIES IN THE RURAL ECONOMY ACT

                                _______
                                

                December 5, 2018.--Ordered to be printed

                                _______
                                

Mr. Thune, from the Committee on Commerce, Science, and Transportation, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1965]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 1965) to amend the Marine 
Mammal Protection Act of 1972 to protect the cultural practices 
and livelihoods of producers of Alaska Native handicrafts and 
traditional mammoth ivory products, and for other purposes, 
having considered the same, reports favorably thereon with an 
amendment (in the nature of a substitute) and recommends that 
the bill (as amended) do pass.

                          Purpose of the Bill

    The purpose of S. 1965 is to amend the Marine Mammal 
Protection Act of 1972 (MMPA)\1\ to do the following: clearly 
define traditional and authentic native handicrafts and 
clothing; explicitly state that these items may be sold in 
interstate commerce; and prohibit States from prohibiting the 
possession or sale of certain Alaska Native-produced ivory 
handicrafts that are legal under Federal law.
---------------------------------------------------------------------------
    \1\16 U.S.C. 1361 et seq.
---------------------------------------------------------------------------

                          Background and Needs

    Under the MMPA, any Indian, Aleut, or Eskimo who resides in 
Alaska and who dwells on the coast of the North Pacific Ocean 
or the Arctic Ocean, described as Alaska Natives, may legally 
produce and sell traditional handicrafts from marine mammal 
parts.\2\ These parts include walrus ivory and whale baleen 
(also known as whalebone). Alaska Natives also produce and sell 
raw ivory of extinct wooly mammoths, as well as handicrafts 
made from mammoth ivory. Walruses are not listed as endangered 
under the Endangered Species Act (ESA), but only Alaska Natives 
may harvest them and carve their ivory. Once carved and sold, 
anyone may resell or export Alaska Native art made of walrus 
ivory. Alternatively, bowhead whales, the most common source of 
baleen for Alaska Native crafts, are listed as endangered under 
the ESA, and bowhead baleen may be sold by Alaska Natives and 
be transported out of Alaska, but may not be subsequently 
resold or exported. Mammoth and mastodon ivory is generally 
unregulated as these species are extinct and not protected by 
Federal wildlife laws.
---------------------------------------------------------------------------
    \2\16 U.S.C. 1371(b).
---------------------------------------------------------------------------
    The sale of arts and crafts produced by Alaska Natives from 
legally and sustainably harvested marine mammal parts, 
especially in subsistence economies, provides critical 
financial benefits to Alaska Native villages that otherwise 
lack economic opportunities.\3\ In July 2016, the Fish and 
Wildlife Service (FWS) enacted a near-total ban on commercial 
trade in African elephant ivory, which does not affect ivory 
from marine species.\4\ A number of States, including New 
York,\5\ New Jersey,\6\ California,\7\ Hawaii,\8\ Oregon,\9\ 
and Washington,\10\ have broad laws prohibiting the sale or 
possession of ivory and do not specifically exempt mammoth 
ivory or items legally produced by Alaska Natives. While 
Federal law already preempts State law, public misunderstanding 
of State laws that broadly prohibit ivory and ivory products, 
in addition to FWS regulations on elephant ivory, has created a 
perception that marine mammal and mammoth ivory handicrafts 
produced by Alaska Natives are illegal. As a result of public 
confusion, Alaska Native artisans have experienced reduced 
demand for their artwork.\11\
---------------------------------------------------------------------------
    \3\U.S. Senate Committee on Environment and Public Works, 
Subcommittee on Fisheries, Water, and Wildlife. Field Hearing on 
Examining the Impacts of the Federal African Elephant Ivory Ban and 
Related State Laws, October 20, 2016. 114th Cong. 2nd Sess. Washington: 
GPO, 2016 (statement of Rosita Worl, president, Sealaska Heritage, 
Inc.).
    \4\U.S. Fish and Wildlife Service, ``Endangered and Threatened 
Wildlife and Plants; Revision of the Section 4(d) Rule for the African 
Elephant (Loxodonta africana),'' 81 Federal Register 36387, July 6, 
2016.
    \5\New York Consolidated Laws, Environmental Conservation Law 11-
0535-A.
    \6\New Jersey Status Annotated 23:2A-13.3(c)-(f).
    \7\California's Fish and Wildlife Code, 2022.
    \8\Hawaii Revised Statutes 183D-66.
    \9\Oregon Revised Statutes 49022.
    \10\Revised Code of Washington 77.15.135.
    \11\National Public Radio, ``Ivory Ban Hurts Alaska Natives Who 
Legally Carve Walrus Tusks,'' November 24, 2016 (https://www.npr.org/
2016/11/24/503036303/ivory-ban-hurts-native-
alaskans-who-legally-carve-walrus-tusks) (accessed July 25, 2018).
---------------------------------------------------------------------------

                         Summary of Provisions

    If enacted, S. 1965, the Allowing Alaska IVORY Act would 
amend the MMPA to do the following: clearly define traditional 
and authentic native handicrafts and clothing; explicitly state 
that these items may be sold in interstate commerce; and 
prohibit States from prohibiting the possession or sale of 
certain Alaska Native-produced ivory handicrafts that are legal 
under Federal law.

                          Legislative History

    S. 1965 was introduced on October 17, 2017, by Senator 
Sullivan (for himself and Senator Murkowski) and was referred 
to the Committee on Commerce, Science, and Transportation of 
the Senate. On September 5, 2018, the Committee met in open 
Executive Session and by voice vote ordered S. 1965 to be 
reported favorably with an amendment (in the nature of a 
substitute).

                            Estimated Costs

    In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

S. 1965--Allowing Alaska IVORY Act

    S. 1965 would amend the Marine Mammal Protection Act of 
1972 to prohibit any state or locality from banning the 
importation, sale, barter, or possession of an authentic native 
handicraft article of mammoth, mastodon, or walrus ivory or 
marine mammal bones that have been produced by an Alaska 
Native. Authentic native articles are defined by the bill as 
items composed of natural materials produced or fashioned 
through traditional native handicraft procedures.
    Because S. 1965 would not change federal policy related to 
the sale of marine mammal bones, CBO estimates that 
implementing the bill would not affect the federal budget.
    CBO estimates that enacting S. 1965 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    CBO estimates that enacting S. 1965 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 1965 would preempt state and local laws governing the 
possession, trade, or sale of handicrafts or clothing produced 
by certain Alaska Natives using animal ivory or bone. That 
preemption would be a mandate as defined in the Unfunded 
Mandates Reform Act (UMRA). Although the bill would limit the 
application of state and local laws, it would impose no duty on 
state or local governments that would result in additional 
spending.
    S. 1965 contains no private-sector mandates as defined by 
UMRA.
    The CBO staff contacts for this estimate are Robert Reese 
(for federal costs) and Rachel Austin (for mandates). The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       number of persons covered

    S. 1965, as reported, would not create any new programs or 
impose any new regulatory requirements. Therefore, it would not 
subject any individuals or businesses to new regulations.

                            economic impact

    Enactment of this legislation is not expected to have a 
negative impact on the Nation's economy and will provide 
positive impacts to rural Alaska Native communities.

                                privacy

    The reported bill is not expected to impact the personal 
privacy of individuals.

                               paperwork

    S. 1965 would not create increases in paperwork burdens if 
enacted.

                   Congressionally Directed Spending

    In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Short title.

    This section would provide that the bill may be cited as 
the ``Allowing Alaska to Improve Vital Opportunities in the 
Rural Economy Act,'' or the ``Allowing Alaska IVORY Act.''

Section 2. Alaska Native handicrafts.

    This section would restructure section 101(b) of the 
MMPA\12\ to clearly define traditional and authentic native 
handicrafts and clothing and to explicitly state that authentic 
native articles of handicrafts and clothing may be sold in 
interstate commerce. This section also would prohibit States 
from prohibiting the importation, sale, trade, or possession of 
mammoth, mastodon, or walrus ivory or marine mammal bones, 
teeth, or baleen produced as a native handicraft.
---------------------------------------------------------------------------
    \12\16 U.S.C. 1371(b).
---------------------------------------------------------------------------

                  Supplemental Views of Senator Nelson

    The Allowing Alaska IVORY Act would restate the authority 
of Alaska Natives to sell handicrafts made from legally 
acquired marine mammal parts under the MMPA and ESA. This bill 
would also amend the MMPA to allow exemptions for the sale of 
Alaska Native-carved handicrafts made of mastodon and mammoth 
ivory. Carving and selling mammoth and mastodon ivory is 
already legal for Alaska Natives and non-Natives since mammoths 
and mastodons are extinct, and hence not covered by the MMPA or 
ESA. Since the commerce in marine mammal, mammoth, and mastodon 
ivory is already legal, further legislating of existing 
authorities is unnecessary. If enacted, this bill would be the 
first time the MMPA--the United States' only marine mammal 
protective bill--covered non-marine mammal species. There are 
concerns from environmentalists that amending the MMPA in this 
way could weaken protections for marine mammals and create 
legal precedent for other non-marine mammal exemptions to be 
added in the future.
    There are also concerns from wildlife protection groups 
about the potential unintended consequences of this bill to the 
global and domestic efforts to curb the illegal trade of 
elephant ivory. While the international trade in elephant ivory 
has been banned since 1990, global demand for ivory remains. 
Smugglers attempt to sell elephant ivory by claiming it is 
legal mammoth ivory, both of which look nearly identical to the 
untrained eye. It is also difficult to differentiate walrus, 
mammoth, and mastodon ivory. Enforcement of illegal ivory trade 
remains challenging because there is currently no instant, 
easy, and inexpensive test to differentiate these ivories.\13\
---------------------------------------------------------------------------
    \13\Vigne, Lucy and Martin, Esmond. ``China Faces a Conservation 
Challenge: The Expanding Elephant and Mammoth Ivory Trade in Beijing 
and Shanghai.'' 2014. (http://savetheelephants.org/wp-content/uploads/
2014/12/2014_ChinaConservationChallenge.pdf)
---------------------------------------------------------------------------
    Due to concerns for the illegal elephant ivory trade, some 
States have passed bans that prohibit some combination of 
walrus, mammoth, and mastodon ivory and marine mammal parts in 
intrastate commerce. The Allowing Alaska IVORY Act would 
preempt these State laws. However, all of the existing State 
laws (except for New York's\14\) exempt federally authorized 
products from their ivory prohibitions, thus allowing for 
continued intrastate commerce in Alaska Native-carved walrus, 
mammoth, and mastodon ivory and marine mammal parts.
---------------------------------------------------------------------------
    \14\New York State Law S. 7890. (https://legislation.nysenate.gov/
pdf/bills/2013/S7890)
---------------------------------------------------------------------------

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
material is printed in italic, existing law in which no change 
is proposed is shown in roman):

                  MARINE MAMMAL PROTECTION ACT OF 1972


                        [16 U.S.C. 1361 et seq.]

SEC. 101. MORATORIUM ON TAKING AND IMPORTING MARINE MAMMALS AND MARINE 
                    MAMMAL PRODUCTS.

                            [16 U.S.C. 1371]

  (a) * * *
  [(b) Exemptions for Alaskan Natives.--Except as]
          (b) Application to certain alaska natives.--(1) 
        Definitions.--In this subsection:
                  (A) Authentic native article of handicrafts 
                and clothing.--The term ``authentic native 
                article of handicrafts and clothing'' means an 
                item composed wholly or in some significant 
                respect of natural materials that is produced, 
                decorated, or fashioned in the exercise of 
                traditional native handicrafts without the use 
                of a pantograph, multiple carvers, or any other 
                mass copying device.
                  (B) Traditional native handicrafts.--The term 
                ``traditional native handicrafts'' includes 
                weaving, carving, stitching, sewing, lacing, 
                beading, drawing, and painting.
          (2) Application.--Except as provided in section 109, 
        the provisions of this Act shall not apply with respect 
        to the taking of any marine mammal by any Indian, 
        Aleut, or Eskimo who resides in Alaska and who dwells 
        on the coast of the North Pacific Ocean or the Arctic 
        Ocean if such taking--
          [(1) is for subsistence purposes; or]
                  [(2) is done] (A)(i) is for subsistence 
                purposes; or
                          (ii) is done for purposes of creating 
                        and selling authentic native articles 
                        of handicrafts [and clothing: Provided, 
                        That only authentic native articles of 
                        handicrafts and clothing may be sold in 
                        interstate commerce: And provided 
                        further, That any edible portion of 
                        marine mammals may be sold in native 
                        villages and towns in Alaska or for 
                        native consumption. For the purposes of 
                        this subsection, the term "authentic 
                        native articles of handicrafts and 
                        clothing" means 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 without the use of 
                        pantographs, multiple carvers, or other 
                        mass copying devices. Traditional 
                        native handicrafts include, but are not 
                        limited to weaving, carving, stitching, 
                        sewing, lacing, beading, drawing, and 
                        painting] and clothing; and
                  [[(3)](B) in each case, is not accomplished 
                in a wasteful manner.]
          [Notwithstanding the preceding provisions of this 
        subsection, when]
          (3) Limitations.--Notwithstanding paragraph (2), if, 
        under this Act, the Secretary determines any species or 
        stock of marine mammal subject to taking by Indians, 
        Aleuts, or Eskimos to be depleted, he may prescribe 
        regulations upon the taking of such marine mammals by 
        any Indian, Aleut, or Eskimo described in this 
        subsection. Such regulations may be established with 
        reference to species or stocks, geographical 
        description of the area included, the season for 
        taking, or any other factors related to the reason for 
        establishing such regulations and consistent with the 
        purposes of this Act. Such regulations shall be 
        prescribed after notice and hearing required by section 
        103 of this title and shall be removed as soon as the 
        Secretary determines that the need for their imposition 
        has disappeared. In promulgating any regulation or 
        making any assessment pursuant to a hearing or 
        proceeding under this subsection or section 117(b)(2), 
        or in making any determination of depletion under this 
        subsection or finding regarding unmitigable adverse 
        impacts under subsection (a)(5) that affects stocks or 
        persons to which this subsection applies, the Secretary 
        shall be responsible for demonstrating that such 
        regulation, assessment, determination, or finding is 
        supported by substantial evidence on the basis of the 
        record as a whole. The preceding sentence shall only be 
        applicable in an action brought by one or more Alaska 
        Native organizations representing persons to which this 
        subsection applies.
          (4) Special rules.--
                  (A) Interstate commerce.--Only authentic 
                native articles of handicrafts and clothing may 
                be sold in interstate commerce.
                  (B) Edible portions of marine mammals.--Any 
                edible portion of a marine mammal may be sold 
                in a native village or town in Alaska or for 
                native consumption.
          (5) Prohibitions.--No State or political subdivision 
        thereof shall prohibit the importation, sale, offer for 
        sale, transfer, trade, barter, possession or possession 
        with the intent to sell, transfer, trade, or barter of 
        mammoth, mastodon, or walrus ivory, marine mammal 
        bones, teeth, or baleen produced under this title by an 
        Indian, Aleut, or Eskimo as an authentic native article 
        of handicrafts and clothing.
  (c) Taking in Defense of Self or Others.--It shall not be a 
violation of this Act to take a marine mammal if such taking is 
imminently necessary in self-defense or to save the life of a 
person in immediate danger, and such taking is reported to the 
Secretary within 48 hours. The Secretary may seize and dispose 
of any carcass.
  (d) Good Samaritan Exemption.--It shall not be a violation of 
this Act to take a marine mammal if--
          (1) such taking is imminently necessary to avoid 
        serious injury, additional injury, or death to a marine 
        mammal entangled in fishing gear or debris;
          (2) reasonable care is taken to ensure the safe 
        release of the marine mammal, taking into consideration 
        the equipment, expertise, and conditions at hand;
          (3) reasonable care is exercised to prevent any 
        further injury to the marine mammal; and
          (4) such taking is reported to the Secretary within 
        48 hours.
  (e) Act Not to Apply to Incidental Takings by United States 
Citizens Employed on Foreign Vessels Outside the United States 
EEZ.--The provisions of this Act shall not apply to a citizen 
of the United States who incidentally takes any marine mammal 
during fishing operations outside the United States exclusive 
economic zone (as defined in section 3 of the Magnuson-Stevens 
Fishery Conservation and Management Act (16 U.S.C. 1802)) when 
employed on a foreign fishing vessel of a harvesting nation 
which is in compliance with the International Dolphin 
Conservation Program.
  (f) Exemption of Actions Necessary for National Defense.--
          (1) The Secretary of Defense, after conferring with 
        the Secretary of Commerce, the Secretary of the 
        Interior, or both, as appropriate, may exempt any 
        action or category of actions undertaken by the 
        Department of Defense or its components from compliance 
        with any requirement of this Act, if the Secretary 
        determines that it is necessary for national defense.
          (2) An exemption granted under this subsection--
                  (A) subject to subparagraph (B), shall be 
                effective for a period specified by the 
                Secretary of Defense; and
                  (B) shall not be effective for more than 2 
                years.
          (3)(A) The Secretary of Defense may issue additional 
        exemptions under this subsection for the same action or 
        category of actions, after--
                          (i) conferring with the Secretary of 
                        Commerce, the Secretary of the 
                        Interior, or both as appropriate; and
                          (ii) making a new determination that 
                        the additional exemption is necessary 
                        for national defense.
                  (B) Each additional exemption under this 
                paragraph shall be effective for a period 
                specified by the Secretary of Defense, of not 
                more than 2 years.
          (4) Not later than 30 days after issuing an exemption 
        under paragraph (1) or an additional exemption under 
        paragraph (3), the Secretary of Defense shall submit to 
        the Committee on Armed Services of the House of 
        Representatives and the Committee on Armed Services of 
        the Senate notice describing the exemption and the 
        reasons therefor. The notice may be provided in 
        classified form if the Secretary of Defense determines 
        that use of the classified form is necessary for 
        reasons of national security.

                                  [all]