[Federal Register Volume 71, Number 157 (Tuesday, August 15, 2006)]
[Rules and Regulations]
[Pages 46864-46870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-13322]


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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: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), under the 
Endangered Species Act (Act), as amended, 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. This special rule allows 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 also allows for 
cultural exchange by Alaska Natives and activities conducted by persons 
registered as an agent or tannery under existing law. We also amend our 
definition of ``Authentic native articles of handicrafts and clothing'' 
by striking the stipulation that such items were commonly produced on 
or before December 28, 1973. This 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 
current definition of ``Authentic native articles of handicrafts and 
clothing'' under the Marine Mammal Protection Act (MMPA) of 1972.

DATES: This rule is effective on September 14, 2006.

ADDRESSES: The complete file for this final rule is available for 
inspection, by appointment, during normal business hours at the Marine 
Mammals Management Office, U.S. Fish and Wildlife Service, 1011 East 
Tudor Road, Anchorage, Alaska 99503.

FOR FURTHER INFORMATION CONTACT: Charles Hamilton (see ADDRESSES), 
telephone, 907-786-3800; facsimile, 907-786-3816, e-mail, [email protected]. 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

    On August 9, 2005, we published a final rule (70 FR 46366) to list 
the southwest Alaska DPS of the northern sea otter as threatened under 
the Act (Act), as amended (16 U.S.C. 1531 et seq.). 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 Sec.  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

[[Page 46865]]

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. On August 9, 2005, we proposed a special rule for the 
Southwest Alaska DPS of the northern sea otter (70 FR 46387).
    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 
MMPA (16 U.S.C. 1361 et seq.), which also provides for the conservation 
of sea otters and 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. 
The 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 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 otter 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, 70 FR 46366), 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 this DPS, and northern sea otters throughout 
Alaska, could benefit from continued involvement of

[[Page 46866]]

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 rule 
aligns the provisions of the Act 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 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 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 50 CFR 17.32. The deviations in this rule from the 
standard provisions found at 50 CFR 17.31 and 17.32 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 legally 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 special rule does 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 special 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 are allowed under this special rule have been identified as 
threats to the DPS.
    One of the activities addressed in this 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 serves to ensure 
that such exchanges are not 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 may also continue. The special rule clarifies 
that all such imports and exports involving DPS sea otters 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 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 by Alaska Natives. 
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'' as well as 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 Act 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. The 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. The CITES applies to

[[Page 46867]]

the transport of 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, including obtaining any required 
CITES documents, as well as the requirements of the Act, all of which 
will work together to conserve animals in the DPS.
    This rulemaking revises 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 
special rule encourages cooperative management efforts between the 
Service and Alaska Natives by recognizing and providing for the 
cultural, social, and economic activities of Alaska Natives. It 
supports 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 regulations are necessary and advisable for 
the conservation of the southwest Alaska DPS of the northern sea otter.

Definition Change

    This rule also adopts a change to the definition of ``Authentic 
native articles of handicrafts and clothing'' similar to that adopted 
on August 17, 2005, under 50 CFR 18.3 (70 FR 48321). Specifically, this 
change eliminates 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 this change to the 
definition at 50 CFR 17.3 are similar to those provided in the final 
rule published on August 17, 2005, and are explained below.
    The Service's definition of ``Authentic native articles of 
handicrafts and clothing'' at 50 CFR 17.3 included 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 previous definition 
for that term in 50 CFR 18.3 (Service regulations implementing the 
MMPA), which included a requirement that such items were commonly 
produced on or before December 21, 1972 (the effective date of the 
MMPA). These definitions reflected 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, April 
20, 1990). 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 previous definition at 
50 CFR 18.3 also applies to our definition at 50 CFR 17.3. Therefore, 
this final rule changes our definition at 50 CFR 17.3 to delete the 
provision that the item be commonly produced on or before December 28, 
1973.

Previous Federal Action

    On August 9, 2005, the Service published a final rule (70 FR 46366) 
listing the southwest Alaska DPS of northern sea otter as threatened 
under the Act. On that same day the Service also published a proposed 
rule for this DPS of northern sea otter under Section 4(d) of the Act 
(70 FR 46387). In that proposed rule, we requested all interested 
parties to submit comments and suggestions and opened a 60-day public 
comment period, which closed on October 11, 2005. Simultaneous with our 
notification of listing the southwest Alaska DPS of northern sea otter 
as threatened under the Act, we provided information regarding the 
proposed rule to Federal agencies, State agencies, and Alaska Native 
Tribes and tribal organizations to request comments.
    In accordance with Secretarial Order 3225 regarding the Act and 
subsistence uses in Alaska, we engaged in government-to-government 
consultation with Alaska Native organizations (ANOs). Specifically, we 
attended board meetings of TASSC and the Aleutian Pribilof Islands 
Association, Inc.; the former is a tribally-authorized ANO that 
represents the interests of sea otter hunters throughout the State of 
Alaska, while the latter is a Federally recognized ANO of the Aleut 
people in Alaska. During these Board meetings, we provided information 
on both the listing action and the proposed special rule. We also 
provided written notification to Tribal Organizations in Alaska 
regarding both the listing of the DPS of northern sea otters as well as 
the proposed special rule. We also provided a teleconference 
opportunity, in conjunction with the TASSC Board meeting, during which 
Alaska Natives and ANOs could provide us with information regarding the 
proposed rule.

Summary of Comments and Recommendations

    During the public comment period on the proposed special rule, we 
received a total of 3 comments by electronic mail and 1 comment by 
regular mail as well as approximately 100 e-mails that were irrelevant 
to the proposed rule. We received comments from Alaska Native Tribes, 
ANOs, wildlife protection organizations, and a private citizen. Two 
commenters opposed the proposed rule, one commenter provided qualified 
support of the proposed rule, and one commenter supported the proposed 
rule without providing specific comments.

[[Page 46868]]

We address the specific comments received on the proposed rule below.
    Comment: One commenter opposed the take of northern sea otters by 
Alaska Natives for any purpose.
    Response: Section 10(e) of the Act provides an exemption for Alaska 
Natives to allow for taking of species listed under the Act for 
subsistence purposes. This exemption is provided by statute. This rule 
does not affect the existing exemption or the ability of Alaska Natives 
to take southwest Alaska DPS northern sea otters.
    Comment: The Service has misapplied the exemption afforded Alaska 
Natives under the Act allowing take for subsistence purposes because 
northern sea otters are not being taken for subsistence purposes but 
``rather for the sole purpose of the creation of handicrafts.''
    Response: We disagree. The taking of sea otters from the DPS by 
Alaska Natives as it is currently conducted qualifies as take that is 
primarily for subsistence purposes. The existing regulations define 
subsistence as ``the use of endangered or threatened wildlife for food, 
clothing, shelter, heating, transportation and other uses necessary to 
maintain the life of the taker of the wildlife, or those who depend 
upon the taker to provide them with such subsistence, and includes 
selling any edible portions of such wildlife in native villages and 
towns in Alaska for native consumption within native villages and 
towns'' (50 CFR 17.3). The use of northern sea otter harvested by 
Alaska Natives is consistent with this definition, with pelts being 
used to make authentic Native handicrafts and clothing. These, in turn, 
may be used by the hunter, or gifted, traded, or sold once the pelt is 
made into an authentic Native handicraft or clothing. In addition, the 
exemption provides that the taking must be ``primarily'' for 
subsistence purposes and does not require that the taking be solely for 
subsistence purposes. It is correct, however, that any proposed taking 
by an Alaska Native that does not fit the requirements of the exemption 
would have to be separately authorized under the Act or otherwise would 
be a violation of law.
    Comment: The Service is authorizing take through this regulation 
without showing how the regulation is ``necessary and advisable to 
provide for the conservation of [the] species,'' as required under 
section 4(d) of the Act.
    Response: As explained in the preamble, this special rule does not 
authorize the taking of northern sea otters from the DPS. Rather, that 
taking is authorized under Section 10(e) of the Act, which provides an 
exception for taking and importation of threatened or endangered 
species by Alaska Natives if the taking is primarily for subsistence 
purposes and as long as the taking is not accomplished in a wasteful 
manner. That exception also allows the sale in interstate commerce of 
authentic native articles of handicrafts and clothing made from 
specimens taken under the exception. Because the Service is not 
authorizing take under this regulation, there is no need to show that 
take of sea otters from the DPS by Alaska Natives is necessary and 
advisable to provide for the conservation of the species. This rule 
allows those activities that are currently authorized under the MMPA 
and that are not covered by the Act's statutory exception, and the rule 
explains how the activities authorized under the rule--cultural 
exchange, limited types of travel, and the activities related to the 
creation and shipment of authentic native handicrafts and clothing--
meet the standard as necessary and advisable to provide for the 
conservation of the species.
    Comment: The Service has failed to support their statement that the 
harvest by Alaska Natives from the DPS is not negatively or materially 
impacting the DPS.
    Response: Our analysis indicates that there is no relationship 
between the magnitude and geographic distribution of the sea otter 
harvest and the observed population decline in southwest Alaska (Table 
1). For example, areas with some of the most severe population 
declines, i.e., in excess of 90 percent, such as the Near Islands and 
Rat Islands in the western Aleutians, have no human settlements or 
subsistence harvest at all. With the exception of the Kodiak 
Archipelago where the harvest rate is 1.022 percent, the average 
reported harvest rates are less than one-tenth of one percent of the 
estimated population size. Based on these harvest levels for this DPS, 
which overall, including the Kodiak Archipelago, are 0.178-0.204 
percent, or 2 orders of magnitude below the maximum net productivity 
rate of 20 percent used in our stock assessment reports (67 FR 62979, 
October 9, 2002), we have concluded that the subsistence harvest is not 
materially or negatively impacting the DPS.

               Table 1.--Reported Sea Otter Harvest by Geographic Survey Area in Southwest Alaska
----------------------------------------------------------------------------------------------------------------
                                                                                    Average
                                                                 Estimated          reported         Average
                      Geographic area                            abundance      harvest  (1996-   harvest  rate
                                                                                     2005)             (%)
----------------------------------------------------------------------------------------------------------------
Aleutian Islands...........................................        3,311-8,742              0.6      0.007-0.018
North Alaska Peninsula.....................................             11,253              3.8            0.034
South Alaska Peninsula.....................................              8,568              5.5            0.064
Kodiak Archipelago.........................................              6,284             64.2            1.022
Kamishak Bay...............................................              6,918                0                0
All Areas..................................................      36,334-41,765             74.1      0.178-0.204
----------------------------------------------------------------------------------------------------------------

    Comment: The Service has not complied with section 7(a)(2) of the 
Act, which requires Federal agencies to consult in order to insure that 
an agency action is not likely to jeopardize the continued existence of 
any endangered species or any threatened species or result in the 
destruction or adverse modification of designated critical habitat.
    Response: The Service is not required to consult on this rule under 
section 7(a)(2) of the Act. The development of protective regulations 
for a threatened species are an inherent part of the section 4 listing 
process. The Service must make this determination considering only the 
``best scientific and commercial data available.'' A necessary part of 
this listing decision is also determining what protective regulations 
are ``necessary and advisable to provide for the conservation of [the] 
species.'' Determining what prohibitions and authorizations are 
necessary to conserve the species, like the listing determination of 
whether the species meets the definition of threatened or endangered, 
is not a decision that

[[Page 46869]]

Congress intended to undergo section 7 consultation.
    Comment: The proposed rule is subject to the requirements of the 
National Environmental Policy Act (NEPA).
    Response: The rule is exempt from NEPA procedures. In 1983, upon 
recommendation of the Council on Environmental Quality, the Service 
determined that NEPA documents need not be prepared in connection with 
regulations adopted pursuant to section 4(a) of the Act. The Service 
subsequently expanded this determination to section 4(d) rules. A 4(d) 
rule provides the appropriate and necessary prohibitions and 
authorizations for a species that has been determined to be threatened 
under section 4(a) of the Act. NEPA procedures would confuse matters by 
overlaying its own matrix upon the section 4 decisionmaking process. 
The opportunity for public comment--one of the goals of NEPA--is also 
already provided through section 4 rulemaking procedures. This 
determination was upheld in Center for Biological Diversity v. U.S. 
Fish and Wildlife Service, No. 04-04324 (N.D. Cal. 2005).
    Comment: One commenter supported the proposed rule but sought 
clarification regarding the scope of the proposed regulation in 
conjunction with the Alaska Native subsistence take exemption under the 
Act.
    Response: As explained in the preamble, this rule will align 
activities that may be conducted with southwest Alaska DPS sea otters 
taken a by Alaska Natives for subsistence purposes under the Act with 
those activities that are already exempted under the MMPA. Alaska 
Native subsistence users will be able to continue to conduct the full 
range of activities that they currently are able to conduct under the 
MMPA.

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this 
final 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 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 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 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. The 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, and 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 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 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 maintains the status quo regarding activities 
that had previously been authorized or exempted under the MMPA, we are 
certifying that this rule does 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 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, if implemented, this special rule will 
maintain the status quo regarding activities currently allowed under 
the MMPA. A takings implication assessment is not required.

[[Page 46870]]

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 final rule does not contain any new collections of information 
that require approval by the Office of Management and Budget (OMB) 
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. 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.

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 rule aligns 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 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.

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
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.


0
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 as 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 as long as no large-scale mass production 
results;
* * * * *

0
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) of this part.
    (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 of this part 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 part; 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: July 7, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E6-13322 Filed 8-14-06; 8:45 am]
BILLING CODE 4310-55-P