[Federal Register Volume 69, Number 58 (Thursday, March 25, 2004)]
[Proposed Rules]
[Pages 15286-15288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6641]


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DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 51

RIN 1024-AD20


Authentic Native Handicrafts

AGENCY: National Park Service, Interior.

ACTION: Proposed rule.

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SUMMARY: Section 416 of the National Parks Omnibus Management Act of 
1998 encourages the sale of authentic United States Indian, Native 
Alaskan, Native Samoan and Native Hawaiian handicrafts relating to the 
cultural, historical, and geographic characteristics of units of the 
national park system. This proposed rule would implement this and 
related requirements in 36 CFR 51.83.

DATES: Written comments must be received on or before May 24, 2004.

ADDRESSES: Written comments should be sent to Cynthia Orlando, 
Concession Program Manager, National Park Service, 1849 C Street, NW. 
(2410), Washington, DC 20240. Fax: 202/371-2090. E-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Cynthia Orlando, Concession Program 
Manager, National Park Service, 1849 C Street, NW. (2410), Washington, 
DC 20240.

SUPPLEMENTARY INFORMATION: For many years it has been the policy of the 
National Park Service (NPS) to encourage its concessioners to sell 
native handicrafts to park area visitors. The Congress, through Section 
416 of the National Parks Omnibus Management Act of 1998 (1998 Act), 
embodied this policy into law, stating that:

    Promoting the sale of authentic United States Indian, Alaskan 
Native, Native Samoan, and Native Hawaiian handicrafts relating to 
the cultural, historical, and geographic characteristics of units of 
the National Park System is encouraged, and the Secretary shall 
ensure that there is a continuing effort to enhance the handicraft 
trade where it exists and establish the trade in appropriate areas 
where the trade currently does not exist.

    In furtherance of this objective, Section 416(b) of the 1998 Act 
exempts the revenue derived by NPS concessioners from the sale of 
United States Indian, Alaskan Native, Native Samoan and Native Hawaiian 
handicrafts from concession contract franchise fees. This proposed 
regulation collectively refers to these handicrafts as ``authentic 
native handicrafts.''
    Also, Section 417 of the 1998 Act requires the Secretary of the 
Interior (Secretary) to promulgate a regulation that further defines 
United States Indian, Alaskan Native and Native Hawaiian handicrafts.
    Section 409 of the 1998 Act (16 U.S.C. 5958) requires the National 
Park Service Concessions Management Advisory Board (Advisory Board) to 
make recommendations to the Secretary regarding the nature and scope of 
products that qualify as authentic native handicrafts within the 
meaning of the 1998 Act. This proposed regulation has been developed in 
consideration of the recommendations of the Advisory Board.
    When finalized, the proposed regulation will give guidance to the 
NPS and NPS concessioners as to what products meet the definition of 
authentic native handicrafts for purposes of franchise fee exemptions 
and other elements of the NPS concessions management program.
    In developing the proposed regulation, NPS, upon the recommendation 
of the Advisory Board, incorporated to the extent appropriate the 
relevant definitions established by the Indian Arts and Crafts Board of 
the Department of the Interior (IACB) in 25 CFR part 309 in recognition 
of the native handicraft expertise of the IACB.
    Please note that Section 417 of the 1998 Act requires the Secretary 
to further define ``United States Indian, Alaskan Native, and Native 
Hawaiian handicraft.'' However, section 416 of the 1998 Act 
additionally refers to Native Samoan handicraft. Accordingly, although 
the term ``Native Samoan handicraft'' is not defined in the proposed 
regulation, the proposed regulation specifies that the sale of Native 
Samoan handicrafts is encouraged and exempt from NPS concession 
contract franchise fees. An administrative definition of ``Native 
Samoan handicraft'' will be developed by NPS in consultation with 
appropriate Samoans and Samoan organizations.
    The source of the definition of ``Alaskan Native'' contained in the 
proposed regulation is section 1602(b) of the Alaska Native Claims 
Settlement Act (43 U.S.C. 1602(b)).
    The source of the term ``arts and crafts objects'' is 25 CFR part 
309 (the regulations of the IACB) as adapted for purposes of this 
regulation.
    The source of the definition of ``authentic native handicrafts'' 
contained in the proposed regulation is 25 CFR part 309 as adapted for 
the purposes of this proposed regulation.
    The source of the term ``Native Hawaiian'' is Section 3001(10) of 
the Native American Graves Protection Act (25 U.S.C. 3001(10) and 
Section 14(10)) of the National Museum of the American Indian Act (Pub. 
L. 101-185).
    The source of the term ``United States Indian'' is the applicable 
portion of the term ``Indian'' as defined in 25 CFR part 309.

Drafting Information

    The primary authors of this rule are NPS officials that manage the 
concession program in units of the national park system with the advice 
and assistance of the Advisory Board.

[[Page 15287]]

Compliance With Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Order 12866)

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget makes the final determination as to the 
significance of this regulatory action and it has determined that this 
document is not a significant rule and is not subject to review as:
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    This rule is not subject to the Regulatory Flexibility Act as it is 
not required to be published for comment before adoption by 5 U.S.C. 
553 or other law. (Section 553 of title 5 does not apply to regulations 
regarding contracts or public lands.) NPS is soliciting public comment 
on this proposed rule as a matter of policy.

Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule does not have 
an annual effect on the economy of $100 million or more; will not cause 
a major increase in costs or prices for consumers, individual entities, 
Federal, State, or local government agencies, or geographic regions; 
and 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. The 
effect of the proposed rule is to establish definitions for the sale of 
native handicrafts in areas of the national park system.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local or tribal governments or the private sector.

Takings (Executive Order 12630)

    In accordance with Executive Order 12360, this rule does not have 
significant takings implications. A takings assessment is not required.

Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. The rule imposes no requirements on any 
governmental entity other than NPS.

Civil Justice Reform (Executive Order 12998)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and does not meet the requirements of sections 3(a) and 
3(b)(2) of the Order.

Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties. Accordingly, a submission under the Paperwork Reduction 
Act is not required.

National Environmental Policy Act

    This rule does not constitute a major Federal action affecting the 
quality of the human environment. A detailed statement under the 
National Environment Policy Act is not required. The rule will not 
increase public use of park areas, introduce non-compatible uses into 
park areas, conflict with adjacent land ownerships or land uses, or 
cause a nuisance to property owners or occupants adjacent to park 
areas. Accordingly, this rule is categorically excluded from procedural 
requirements of the National Environmental Policy Act by 516 DM 6, App. 
7.4A(10).

Government-to-Government Relationship With Tribes

    In accordance with Executive Order 13175 ``Consultation and 
Coordination With Indian Tribal Governments'' (65 FR 67249), the 
President's memorandum of April 29, 1994, ``Government-to-Government 
Relations With Native American Tribal Governments'' (59 FR 22951) and 
512 DM 2, we have evaluated potential effects on federally recognized 
Indian tribes and have determined that there are no potential effects 
on the tribes.

Clarity of This Rule

    Executive Order 12866 requires Federal agencies to write 
regulations that are easy to understand. Comment is invited on how to 
make this rule easier to understand, including answers to the following 
questions: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain undefined technical language or jargon that 
interferes with its clarity? (3) Does the format of the rule (groupings 
and order of sections, use of headings, paragraphing, etc.) aid in or 
reduce its clarity? (4) Would the rule be easier to understand if it 
were divided into more but shorter sections? (5) Is the description of 
the rule in the ``Supplementary Information'' section of the preamble 
helpful in understanding the proposed rule? (6) What else could be done 
to make the rule easier to understand?
    Please send a copy of any comments that concern how this rule could 
be made easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240.

Public Comment Solicitation

    If you wish to comment, you may submit your comments by any one of 
several methods. You may mail comments to Cindy Orlando, National Park 
Service, 1849 C Street, NW., (2410), Washington, DC 20240. You may also 
comment via the Internet to [email protected]. Please also 
include ``Attn: RIN 1024-AD20'' in the subject line and your name and 
return address in your Internet message. You may fax your comments to 
202/371-2090. Finally, you may hand-deliver comments to National Park 
Service, Concession Program, 1201 Eye Street, NW., 11th Floor, 
Washington, DC. Our practice is to make comments, including names and 
home addresses of 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. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment. 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.

List of Subjects in 36 CFR Part 51

    Concessions, Government contracts, National parks, Reporting and 
recordkeeping requirements.

[[Page 15288]]

The Proposed Rule

    For the reasons stated in the preamble, we propose to add to 
Subpart I of 36 CFR part 51, a Sec.  51.83 as set forth below:

PART 51--CONCESSION CONTRACTS

    1. The authority citation for part 51 continues to read as follows:

    Authority: The Act of August 25, 1916, as amended and 
supplemented, 16 U.S.C. 1 et seq., particularly, 16 U.S.C. 3 and 
Title IV of the National Parks Omnibus Management Act of 1998 (Pub. 
L. 105-391).
    Source: 65 FR 20668, Apr. 17, 2000, unless otherwise noted.

Subpart I--Concession Contract Provisions

    Add section 51.83 (currently reserved for Handicrafts) to read as 
follows:


Sec.  51.83  Sale of Native Handicrafts.

    (a) In General: Where authorized by an applicable concession 
contract, concessioners are encouraged to sell authentic native 
handicrafts that reflect the cultural, historical, and geographic 
characteristics of the related park area. To further this objective, 
concession contracts will contain a provision that exempts the revenue 
of a concessioner derived from the sale of authentic native handicrafts 
from the concession contract's franchise fee.
    (b) Definitions: For purposes of this section, the term:
    (1) Alaskan Native means a citizen of the United States who is a 
person of one-fourth degree or more Alaskan Indian (including Tsimshian 
Indians not enrolled in the Metalakatla Indian Community), Eskimo, or 
Aleut blood, or combination thereof. The term includes any person as so 
defined either or both of whose adoptive parents are not Alaskan 
Natives. It also includes, in the absence of proof of a minimum blood 
quantum, any citizen of the United States who is regarded as an Alaskan 
native by the Alaskan native village or native group of which he or she 
claims to be a member and whose father or mother is (or, if deceased, 
was) regarded as an Alaskan native by any village or group.
    (2) Arts and crafts objects are art works and crafts that are in a 
traditional or non-traditional style or medium.
    (3) Authentic native handicrafts are arts and crafts objects 
created by a United States Indian, Alaskan Native, Native Samoan or 
Native Hawaiian that are made with the help of only such devices as 
allow the manual skill of the maker to condition the shape and design 
of each individual object.
    (4) Native Hawaiian means any individual who is a descendant of the 
aboriginal people that, prior to 1778, occupied and exercised 
sovereignty in the area that now constitutes the State of Hawaii.
    (5) United States Indian means any individual that is a member of 
an Indian tribe as defined in 18 U.S.C. Section 1159.

    Dated: March 5, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-6641 Filed 3-24-04; 8:45 am]
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