[Federal Register Volume 70, Number 152 (Tuesday, August 9, 2005)]
[Proposed Rules]
[Pages 46387-46392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15717]



  Federal Register / Vol. 70, No. 152 / Tuesday, August 9, 2005 / 
Proposed Rules  

[[Page 46387]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU21


Endangered and Threatened Wildlife and Plants; Special Rule for 
the Southwest Alaska Distinct Population Segment of the Northern Sea 
Otter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to amend 
the regulations at 50 CFR part 17, which implement the Endangered 
Species Act (Act), as amended (16 U.S.C. 1531 et seq.), to create a 
special rule for the southwest Alaska distinct population segment (DPS) 
of the northern sea otter (Enhydra lutris kenyoni). This DPS of the 
northern sea otter is listed as threatened under the Act. The special 
rule would allow for the limited, noncommercial import and export of 
items that qualify as authentic native articles of handicrafts and 
clothing that were derived from sea otters legally taken for 
subsistence purposes by Alaska Natives from the listed population. This 
special rule would also allow for cultural exchange by Alaska Natives 
and activities conducted by persons registered as an agent or tannery 
under existing law. We also propose to amend our definition of 
``Authentic native articles of handicrafts and clothing'' which 
currently stipulates, among other things, that such items were commonly 
produced on or before December 28, 1973. We propose to strike the 
requirement with respect to December 28, 1973. We believe that such a 
definition change is appropriate in light of a court ruling on the 
Service's definition of ``Authentic native articles of handicrafts and 
clothing'' and consistent with our proposed rule regarding the 
definition of ``Authentic native articles of handicrafts and clothing'' 
published on June 4, 2004.

DATES: We will consider comments on the proposed rule if received by 
October 11, 2005.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments to the Supervisor, U.S. Fish and 
Wildlife Service, Marine Mammals Management Office, 1011 East Tudor 
Road, Anchorage, Alaska 99503.
    2. You may send comments by electronic mail (e-mail) to: [email protected]. See the Public Comments Solicited section below 
for file format and other information about electronic filing.

FOR FURTHER INFORMATION CONTACT: Charles Hamilton, (see ADDRESSES) 
(telephone 907/786-3800; facsimile 907/786-3816). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 
days a week.

SUPPLEMENTARY INFORMATION:

Background

    In the Rules and Regulations section of today's Federal Register, 
we published a final rule to list the southwest Alaska DPS of the 
northern sea otter as threatened. Section 4(d) of the Act specifies 
that for species listed as threatened, the Secretary shall develop such 
regulations as determined necessary and advisable for the conservation 
of the species. Our regulations at 50 CFR 17.31 provide that all the 
prohibitions for endangered wildlife under 50 CFR 17.21, with the 
exception of 17.21(c)(5), will generally also be applied to threatened 
wildlife. Prohibitions include, among others, take, import, export, and 
shipment in interstate or foreign commerce in the course of a 
commercial activity. The general provisions for issuing a permit for 
any activity otherwise prohibited with regard to threatened species are 
found at 50 CFR 17.32.
    The Service may, however, also develop a special rule for a 
threatened species that specifies prohibitions and authorizations that 
are necessary and advisable for the conservation of that particular 
species. In such cases, some of the prohibitions and authorizations 
under 50 CFR 17.31 and 17.32 may be appropriate for the species and 
incorporated into the special rule, but the rule will include special 
provisions tailored to the specific conservation needs of the listed 
species.
    Section 10(e) of the Act provides an exemption for Alaska Natives 
that allows for the taking and importation of listed species if such 
taking is primarily for subsistence purposes. Nonedible by-products of 
species taken in accordance with the exemption, when made into 
authentic native articles of handicraft and clothing, may be 
transported, exchanged, or sold in interstate commerce. The Act defines 
authentic native articles of handicraft and clothing as 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 (16 U.S.C. 1539(e)(3)(ii). That definition 
also provides that traditional native handicrafts include, but are not 
limited to, weaving, carving, stitching, sewing, lacing, beading, 
drawing, and painting. These exemptions are similar to those under the 
Marine Mammal Protection Act of 1972 (MMPA) as amended (16 U.S.C. 1361 
et seq.), which likewise includes special provisions for subsistence 
harvest and the creation and sale of authentic native articles of 
handicrafts or clothing by Alaska Natives. For more information on the 
definition of authentic native articles of handicrafts and clothing, 
see the Definition Change section of this document.
    Both the Act and the MMPA recognize the intrinsic role that marine 
mammals have played and continue to play in the subsistence, cultural, 
and economic lives of Alaska Natives. The Service, in turn, recognizes 
the important role that Alaska Natives can play in the conservation of 
marine mammals. Amendments to the MMPA in 1994 acknowledged this role 
by authorizing the Service to enter into cooperative agreements with 
Alaska Natives for the conservation and co-management of subsistence 
use of marine mammals (16 U.S.C. 1388). Since 1997, the Service has 
entered into annual cooperative agreements with The Alaska Sea Otter 
and Steller Sea Lion Commission (TASSC) under this section of the MMPA. 
TASSC was established in 1988 as the Alaska Sea Otter Commission to 
represent the interests of subsistence users and sea otter hunters on 
issues relating to the subsistence harvest of sea otters in Alaska. 
Through these cooperative agreements, the Service has worked with TASSC 
to better understand the status and trends of sea otters throughout 
Alaska. For example, Alaska Natives collect and contribute biological 
specimens from subsistence-harvested animals for biological analysis. 
Analysis of these samples allows us to monitor the health and status of 
sea otter stocks. Additionally, some communities that harvest sea 
otters conduct skiff surveys of sea otters in their local areas. The 
results of these surveys may serve to complement the Service's own 
surveying and monitoring program, and provide us with a better 
understanding of sea otter distribution and abundance. Further, the 
Service and TASSC are exploring the development of harvest management 
programs that are consistent with both sound wildlife management 
techniques and the

[[Page 46388]]

socioeconomic requirements of Alaska Native subsistence hunters. We 
recognize the unique contributions Alaska Natives are able to provide 
to the Service's understanding of sea otters, and their interest in 
ensuring that northern sea otters stocks are conserved and managed for 
healthy populations throughout the range in coastal Alaska.
    As discussed in our proposed and final rules listing this DPS of 
the northern sea otter as threatened (69 FR 6600 and a rule in today's 
Federal Register), since 1989, the annual subsistence harvest of sea 
otters from the southwest Alaska DPS has averaged fewer than 100 otters 
per year. During that time period, nearly 80 percent of the harvest 
occurred in the Kodiak archipelago. Areas that have experienced the 
most severe population declines within the southwest Alaska DPS have 
had little or no subsistence harvest. In our final rule to list the 
southwest Alaska DPS of the northern sea otter as threatened, we found 
that the current level and geographic distribution of the subsistence 
harvest was neither negatively nor materially impacting the DPS. Thus, 
at this time, the harvest of northern sea otters from this DPS and 
associated creation, sale, and shipment of authentic handicrafts and 
clothing are not threats to the DPS. Nor does the Service find that 
Alaska Native activities associated with subsistence harvests 
negatively affect our efforts at recovery for this DPS. The Service 
will continue to monitor the subsistence harvest of sea otters from the 
southwest Alaska DPS, and will periodically reevaluate the impact of 
the subsistence harvest on the conservation of the species.
    The Service, 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, and Secretarial Order 
3225, acknowledges our responsibility to communicate meaningfully with 
federally recognized Tribes on a government-to-government basis. During 
the public comment period following our proposal to list the southwest 
Alaska DPS of the northern sea otter as threatened (69 FR 6600), Alaska 
Native tribes and tribally-authorized organizations were among those 
that provided comments on the listing action. Alaska Natives noted to 
the Service that prohibitions on export and import under the Act could 
limit their ability to participate in cultural exchanges that foster 
the sharing and exchange of ideas, information, gifts, clothing, or 
handicrafts between Indians, Aleuts, and Eskimos residing in Alaska and 
Native inhabitants of Russia, Canada, and Greenland. Further, Alaska 
Natives noted their concern that foreign visitors to the United States 
might be restricted from leaving the country with their lawfully 
acquired and possessed authentic Native articles of handicrafts or 
clothing derived from sea otters from the southwest Alaska DPS, thus 
limiting Alaska Natives' ability to sell authentic native handicrafts 
to foreign visitors or tourists.
    We are mindful of the unique exemptions from the prohibitions 
against take, import, and interstate sale of authentic native 
handicrafts and clothing provided to Alaska Natives under the Act. 
These exemptions are similar to the exemptions provided Alaska Natives 
under the MMPA. Furthermore, as discussed above, the Service has 
determined that not only is the listed population of northern sea 
otters subjected to little or no impact from Alaska Native harvest, but 
TASSC and its constituent members are working with the Service to 
better understand this DPS and the possible causes for its decline. The 
Service recognizes that there is a benefit to this DPS, and northern 
sea otters throughout Alaska, to maintain and encourage involvement of 
the Alaska Native community in the conservation of sea otters. 
Therefore we have developed this special rule to provide for the 
conservation of sea otters, while at the same time accommodating Alaska 
Natives' subsistence, cultural, and economic interests. This proposed 
rule would align the provisions of the ESA relating to the creation, 
shipment, and sale of authentic native handicrafts and clothing by 
Alaska Natives with what is already allowed under the MMPA.
    Under this proposed special rule, except for persons and activities 
covered by the specific provisions relating to authentic native 
handicrafts and clothing, cultural exchange, and limited types of 
travel, all of the prohibitions under 50 CFR 17.31 would apply. Thus, 
import, export, take, possession of unlawfully taken sea otters, 
interstate or foreign commerce in the course of a commercial activity, 
and sale would be generally prohibited unless the activity qualifies 
for a permit for purposes of science, enhancement of propagation or 
survival, economic hardship, zoological exhibition, education, or other 
special purpose, or the activity qualifies for incidental take 
authorization, and the person has received the necessary approval. Who 
may qualify for such permits and the criteria we use to evaluate 
applications are found at 50 CFR part 13 and Sec.  17.32. The 
deviations in this proposed rule from the standard provisions found at 
50 CFR 17.31 and 17.32 would apply only to cultural exchange, limited 
types of travel, or to activities associated with the creation and sale 
of authentic native articles of handicrafts and clothing from sea 
otters taken by Alaska Natives.
    This special rule is also limited to activities that are not 
already exempted under the Act. The Act itself provides a statutory 
exemption to Alaska Natives for the harvesting of sea otters from the 
wild as long as the taking is for primarily subsistence purposes. The 
Act then specifies that sea otters taken under this provision can be 
used to create handicrafts and clothing and that these items can be 
sold in interstate commerce. Thus this proposed rule would not regulate 
the taking or importation of northern sea otters nor the sale in 
interstate commerce of authentic native articles of handicrafts and 
clothing by qualifying Alaska Natives; these have already been exempted 
by statute. The proposed rule addresses only activities relating to 
cultural exchange and limited types of travel, and to the creation and 
shipment of authentic native handicrafts and clothing that are 
currently allowed under section 101 of the MMPA that are not already 
clearly exempted under the Act. As discussed earlier, neither the 
activities already exempted under the Act nor the associated activities 
that would be allowed under this proposed rule have been identified as 
threats to the DPS.
    One of the activities addressed in the proposed special rule is 
cultural exchange between Alaska Natives and Native inhabitants of 
Russia, Canada, and Greenland with whom Alaska Natives share a common 
heritage. The MMPA allows the import and export of marine mammal parts 
and products that are components of a cultural exchange, which is 
defined as the sharing or exchange of ideas, information, gifts, 
clothing, or handicrafts. Cultural exchange has been an important 
exemption for Alaska Natives under the MMPA, and this special rule 
would ensure that such exchanges would not be interrupted.
    The limited, noncommercial import and export of authentic native 
articles of handicrafts and clothing that are created from sea otters 
taken by Alaska Natives would also continue. The proposed rule 
clarifies that all such imports and exports involving DPS sea otters 
would need to conform to what is currently allowed under the MMPA, 
comply with our import and export regulations found at 50 CFR part 14, 
and be noncommercial in nature. Service

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regulations define commercial as related to the offering for sale or 
resale, purchase, trade, barter, or the actual or intended transfer in 
the pursuit of gain or profit, of any item of wildlife and includes the 
use of any wildlife article as an exhibit for the purpose of soliciting 
sales, without regard to the quantity or weight. There is a presumption 
that eight or more similar unused items are for commercial use. The 
Service or the importer/exporter/owner may rebut this presumption based 
upon the particular facts and circumstances of each case (see 50 CFR 
14.4).
    Finally, this rule adopts the registered agent and tannery process 
from the current MMPA regulations. In order to assist Alaska Natives in 
the creation of authentic native articles of handicrafts and clothing, 
the Service's MMPA implementing regulations at 50 CFR 18.23(b) and (d) 
allow persons who are not Alaska Natives to register as an agent or 
tannery. Once registered, agents are authorized to receive or acquire 
marine mammal parts or products from Alaskan Natives or other 
registered agents. They are also authorized to transfer (not sell) 
hides to registered tanners for further processing. A registered 
tannery may receive untanned hides from Alaska Natives or registered 
agents for tanning and return. The tanned skins may then be made into 
authentic articles of clothing or handicrafts. Registered agents and 
tanneries must maintain strict inventory control and accounting methods 
for any marine mammal part, including skins, they receive and provide 
accountings of such activities and inventories to the Service. These 
restrictions and requirements for agents and tanners allow the Service 
to monitor the processing of such items while ensuring that Alaska 
Natives can exercise their rights under the exemption. Adopting the 
registered agent and tannery process will align Act provisions relating 
to the creation of handicrafts and clothing by Alaska Natives with the 
current process under the MMPA.
    Any person engaging in activities under this special rule would 
also want to ensure that their actions are consistent with the other 
conservation laws that apply to the northern sea otter including other 
provisions of the MMPA and the Convention on International Trade in 
Endangered Species of Wild Fauna and Flora (CITES). For example, the 
exemption for Alaska Natives in section 10(e)(1) of the Act applies to 
``any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in 
Alaska'' and also applies to ``any non-native permanent resident of an 
Alaskan native village.'' However, the Alaska Native exemption under 
section 101 of the MMPA is limited to only an ``Indian, Aleut, or 
Eskimo who resides in Alaska and who dwells on the coast of the North 
Pacific Ocean or the Arctic Ocean.'' Because the MMPA is more 
restrictive, only a person who qualifies under the MMPA Native 
exemption may legally take sea otters for subsistence purposes, as a 
take by certain persons under the broader ESA Native exemption would 
not be exempted under the MMPA. This special rule is intended to 
reconcile Alaska Native subsistence activities under the Act with 
Alaska Native subsistence activities that have been conducted for more 
than 30 years under the MMPA, which is more restrictive in some areas 
than the Act. Therefore, all persons, including those who qualify under 
the Alaska Native exemption of the Act, should consult the MMPA and our 
regulations at 50 CFR part 18 before engaging in any activity that may 
result in a prohibited act to ensure that their activities will be 
consistent with both laws.
    Northern sea otters from the DPS are also listed under Appendix II 
of CITES. CITES regulates the import and export of listed specimens, 
which include live and dead animals and plants as well as parts and 
items made from the species. CITES applies if you transport legally 
possessed specimens from this DPS of sea otters over an international 
border, including driving from Alaska through Canada to a destination 
elsewhere in the United States. Appendix II specimens may not be 
exported from a member country without the prior grant of an export 
permit. Some limited exceptions to this permit requirement exist. For 
example, member countries may exempt personal and household effects 
from the permitting requirements. Personal and household effects must 
be personally owned for noncommercial purposes, and the quantity must 
be necessary or appropriate for the nature of the trip or stay or for 
household use. Persons who may cross an international border with a 
specimen of this DPS should check with the Service and the country of 
transit or destination in advance as to applicable requirements. Thus a 
person engaging in activities involving DPS sea otters must comply with 
the requirements of the MMPA and CITES, as well as the requirements of 
the Act, all of which will work together to conserve animals in the 
DPS.
    This proposed rulemaking would revise our regulations at 50 CFR 
part 17 to include a special rule that allows for activities associated 
with the use of animals taken by Alaska Natives for subsistence 
purposes. The proposed special rule would encourage cooperative 
management efforts between the Service and Alaska Natives by 
recognizing and providing for the cultural, social, and economic 
activities of Alaska Natives, and thus support conservation of the DPS 
by discouraging excessive harvests and by encouraging self-regulation 
of the northern sea otter harvest by subsistence hunters in ways that 
meet the Service's goal for recovery of the DPS. The taking of northern 
sea otters and the creation, shipment, and interstate sale of authentic 
native handicrafts and clothing derived from such taking are already 
exempted under the Act, and neither the take nor the activities 
associated with the creation and sale of handicrafts and clothing or 
with cultural exchange have been identified as threats to the DPS. The 
Service recognizes the important contributions Alaska Natives may make 
to our recovery effort for this species, including, for example, 
information gained from biological samples derived from subsistence 
harvested animals. Therefore, we find that the proposed regulations are 
necessary and advisable for the conservation of the southwest Alaska 
DPS of the northern sea otter.

Definition Change

    This rule also proposes to adopt a change to the definition of 
``Authentic native articles of handicrafts and clothing'' similar to 
that proposed for 50 CFR 18.3 on June 4, 2004 (69 FR 31582). 
Specifically, this change would eliminate the requirement in 50 CFR 
17.3 for authentic native articles of handicrafts and clothing to have 
been commonly produced on or before December 28, 1973. The reasons for 
the proposed change to the definition at 50 CFR 17.3 are similar to 
those provided in the proposed rule published on June 4, 2004, and are 
explained below.
    The Service's definition of ``Authentic native articles of 
handicrafts and clothing'' at 50 CFR 17.3 includes a requirement that 
such items were commonly produced on or before December 28, 1973 (the 
effective date of the Act), and is similar to the definition for that 
term in 50 CFR 18.3, Service regulations implementing the MMPA, which 
includes a requirement that such items were commonly produced on or 
before December 21, 1972 (the effective date of the MMPA). These 
definitions reflect the Service's determination at the time that the 
exemptions provided Alaska Natives under both the Act and the MMPA were 
to protect traditional ways of subsistence rather than to provide a 
means of initiating commercial activities (55 FR 14973).

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However, in 1990, a number of parties challenged our definition at 50 
CFR 18.3 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 ruled that the 
Service's definition was inconsistent with the language and overall 
regulatory scheme of the MMPA. This decision was appealed to the Ninth 
Circuit Court of Appeals, which, on December 28, 1992, affirmed the 
District Court's ruling. The Circuit Court examined the statutory 
definition of ``Authentic native articles of handicrafts and clothing'' 
and found that there was no statutory requirement that those items be 
made or sold prior to the date of the MMPA. The cut-off date in the 
definition at 50 CFR 17.3 was similarly based on the effective date of 
the Act. The statutory definition of ``Authentic native articles of 
handicrafts and clothing'' in the Alaska Native exemption of the Act is 
identical to the definition in the MMPA. We believe that the analysis 
of the court in its ruling on our definition at 50 CFR 18.3 also 
applies to our definition at 50 CFR 17.3. Therefore we are proposing to 
change our definition at 50 CFR 17.3 to delete the provision that the 
item be commonly produced on or before December 28, 1973.

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.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods, as listed above 
in ADDRESSES. If you submit comments by e-mail, please submit them as 
an ASCII file format and avoid the use of special characters and 
encryption. Please include ``Attn: [RIN 1018-AU21]'' and your name and 
return address in your e-mail message. Please note that this e-mail 
address will be closed out at the termination of the public comment 
period.
    Our practice is to make all 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. 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 promulgation of this special rule. 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.
    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 a novel legal issue.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the RFA to 
require Federal agencies to provide a statement of the factual basis 
for certifying that a rule will not have a significant economic impact 
on a substantial number of small entities. SBREFA also amended the RFA 
to require a certification statement. Based on the information that is 
available to us at this time, we are certifying that this proposed 
special rule to allow for the limited, noncommercial import and export 
of items that qualify as authentic native articles of handicrafts and 
clothing that were derived from sea otters legally taken for 
subsistence purposes by Alaska Natives from the listed population; the 
cultural exchange by Alaska Natives with Native inhabitants of Russia, 
Canada, or Greenland; and limited types of travel, as well as 
activities conducted by persons registered as an agent or tannery under 
existing law, will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
our rationale.
    According to the Small Business Administration (SBA), small 
entities include small organizations, including any independent 
nonprofit organization that is not dominant in its field, and small 
governmental jurisdictions, including school boards and city and town 
governments that serve fewer than 50,000 residents, as well as small 
businesses. The SBA defines small

[[Page 46391]]

businesses categorically and has provided standards for determining 
what constitutes a small business at 13 CFR 121.201 (also found at 
http://www.sba.gov/size/), which the RFA requires all federal agencies 
to follow. To determine if potential economic impacts to these small 
entities would be significant, we considered the types of activities 
that might trigger regulatory impacts if the activities were to be 
allowed as proposed. However, because this special rule for the 
northern sea otter DPS designated as threatened under the Act would 
allow for a maintenance of the status quo regarding activities that had 
previously been authorized or exempted under the MMPA, we are 
certifying that this rule would not have a significant economic impact 
on a substantial number of small entities, and thus a regulatory 
flexibility analysis 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, if implemented, this special 
rule will maintain the status quo regarding activities currently 
allowed under 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 any collections of 
information that require approval by the Office of Management and 
Budget (OMB) 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. We 
may not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    We have analyzed this rule in accordance with the criteria of the 
National Environmental Policy Act of 1969 (NEPA), and have determined 
that this rule does not constitute a major Federal action significantly 
affecting the quality of the human environment within the meaning of 
Section 102(2)(C) of the NEPA, and it would not involve unresolved 
conflicts concerning alternative uses of available resources (516 DM 
2.3A). Therefore, this rule is categorically excluded under 516 DM 2, 
Appendix 1.9.

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, Secretarial Order 
3225, 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 Alaska Native 
tribes. Because this proposed rule would align activities that are 
allowed under the Act with activities that are currently allowed under 
the MMPA, we have determined that there are no negative effects to 
Alaska Natives.

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 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec.  17.3, revise the definition for ``Authentic native 
articles of handicrafts and clothing'' as follows:


Sec.  17.3  Definitions.

* * * * *
    Authentic native articles of handicrafts and clothing means items 
made by an Indian, Aleut, or Eskimo that are composed wholly or in some 
significant respect of natural materials and 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) of this subchapter (in the case of marine mammals) 
may be used so long as no large-scale mass production industry results. 
Traditional native handicrafts

[[Page 46392]]

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;
* * * * *
    3. Amend Sec.  17.40 by adding paragraph (p) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (p) Northern sea otter (Enhydra lutris kenyoni).
    (1) To what population of sea otter does this special rule apply? 
The regulations in paragraph (p) of this section apply to the southwest 
Alaska distinct population segment (DPS) of the northern sea otter as 
set forth at Sec.  17.11(h).
    (2) What provisions apply to this DPS? Except as noted in paragraph 
(p)(3) of this section, all prohibitions and provisions of Sec. Sec.  
17.31 and 17.32 apply to the southwest Alaska DPS of the northern sea 
otter.
    (3) What additional activities are allowed for this DPS? In 
addition to the activities authorized under paragraph (p)(2) of this 
section, you may conduct any activity authorized or exempted under the 
Marine Mammal Protection Act (16 U.S.C. 1361 et seq.) with a part or 
product of a southwest Alaska DPS northern sea otter, provided that:
    (i) The product qualifies as an authentic native article of 
handicrafts or clothing as defined in Sec.  17.3 of this subchapter; 
and
    (A) It was created by an Indian, Aleut, or Eskimo who is an Alaskan 
Native, and
    (B) It is not being exported or imported for commercial purposes; 
or
    (ii) The part or product is owned by an Indian, Aleut, or Eskimo 
who is an Alaskan Native and resides in Alaska, or by a Native 
inhabitant of Russia, Canada, or Greenland, and is part of a cultural 
exchange; or
    (iii) The product is owned by a Native inhabitant of Russia, 
Canada, or Greenland, and is in conjunction with travel for 
noncommercial purposes; or
    (iv) The part or product has been received or acquired by a person 
registered as an agent or tannery under Sec.  18.23 of this subchapter.
    (4) What other wildlife regulations may apply? All applicable 
provisions of 50 CFR parts 14, 18, and 23 must be met.

    Dated: August 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-15717 Filed 8-4-05; 2:04 pm]
BILLING CODE 4310-55-P