[Federal Register Volume 72, Number 112 (Tuesday, June 12, 2007)]
[Rules and Regulations]
[Pages 32188-32190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11274]


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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: Final rule.

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SUMMARY: The National Parks Omnibus Management Act of 1998 encourages 
the sale of authentic United States Indian, Alaska Native, Native 
Samoan and Native Hawaiian handicrafts relating to the cultural, 
historical, and geographic characteristics of units of the national 
park system. This final rule implements the requirements of the act.

DATES: Effective Date: This rule is effective on July 12, 2007.

FOR FURTHER INFORMATION CONTACT: Jo Pendry, Concessions Program 
Manager, National Park Service, 1201 I Street NW., Washington, DC 
20005. (202-513-7156).

SUPPLEMENTARY INFORMATION:

Background

    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, Alaska 
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, Alaska Native, Native Samoan and Native Hawaiian 
handicrafts from concession contract franchise fees. This final 
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, Alaska 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 regulation has been developed in 
consideration of the recommendations of the Advisory Board.
    This regulation will give guidance to the NPS and NPS concessioners 
to determine 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 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, Alaska 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

[[Page 32189]]

regulation, the 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 for the definition of ``Alaska Native'' found in this 
regulation is from 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 regulation is 25 CFR part 309 as adapted for the 
purposes of this regulation.
    The source of the term ``Native Hawaiian'' is Section 3001(10) of 
the Native American Graves Protection and Repatriation Act (25 U.S.C. 
3001(10)) and Section 16(11) of the National Museum of the American 
Indian Act (20 U.S.C. 80q-14(11)).
    The source of the term ``United States Indian'' is the applicable 
portion of the term ``Indian'' as defined in 25 CFR part 309. The term 
``label'' means a separate tag, paper, sign, sticker, or signed 
document attesting to the authenticity of the item as ``authentic 
native handicraft.''

Notice of Proposed Rulemaking

    On March 25, 2004, the National Park Service published a Notice of 
Proposed Rulemaking (NPRM) for Authentic Native Handicrafts (69 FR 
15286). The comment period was open for 60 days. No public comments 
were received.
    During the review process two comments were received from within 
the Department. One comment from the Office of the Assistant Secretary 
for Policy, Management, and Budget requested that we consider requiring 
concessioners to mark sales items that are authentic native handicrafts 
marked with a label to attest to the item's authenticity, in order to 
be eligible for franchise fee exemption. This requirement is in 
addition to the standard concession contract requirement that 
concessioners provide receipts from the sale of handicrafts that have 
been approved for sales by the Director as constituting authentic 
American Indian, Alaska Native, Native Samoan, or Native Hawaiian 
handicrafts. The regulation was changed to incorporate these 
recommendations.
    The second comment, from the Department's Office of the Solicitor, 
Division of Indian Affairs, asked that we use the term Alaska Native 
instead of Alaskan Native or Native Alaskan. It was felt that Native 
Alaskan was a broader term that included more than those intended to 
benefit by this rule. The term Native Alaskan would include all people 
born in Alaska.

Compliance With Other Laws

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

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
If there is an effect it will be a positive effect by exempting revenue 
derived by the sales of Native American Handicraft from concession 
contract franchise fees.

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 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. An OMB form 83-I 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 
12.5(A)(10). 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

[[Page 32190]]

effects on federally recognized Indian tribes and have determined that 
there are no potential effects on the tribes.

Clarity of Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to read if it were divided into 
more (but shorter) sections? (A ``section'' appears in bold type and is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example 
Sec.  7.XX .........) (5) Is the description of the rule in the 
``Supplementary Information'' section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the rule 
easier to understand?
    Send a copy of any comments that concern how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You may also e-mail the comments to this address: [email protected].
    Drafting Information: The principal contributors to this final rule 
were: Jo Pendry, Chief Concession Program, WASO; Judy Bassett, 
Concession Policy Analyst, WASO; Meridith Stanton, Director, and Jill 
Moran, Program Specialist, IACB, and Jerry Case, Regulations Program 
Manager, WASO.

List of Subjects in 36 CFR Part 51

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

0
For the reasons stated in the preamble, the National Park Service 
amends 36 CFR Part 51 as follows:

PART 51--CONCESSION CONTRACTS

0
1. The authority 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).


0
2. Section 51.83 is added to read as follows:


Sec.  51.83  Sale of Native Handicrafts.

    (a) Where authorized by an applicable concession contract, 
concessioners are encouraged to sell authentic native handicrafts 
appropriately labeled or denoted as authentic 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 appropriately labeled or denoted authentic native handicrafts 
from the concession contract's franchise fee.
    (b) The sale of products as authentic native handicrafts is further 
regulated under the Indian Arts and Crafts Act, Public Law 101-644, as 
amended.
    (c) Definitions. (1) Alaska Native means any 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 so defined either or both of whose adoptive parents 
are not Alaska Natives. It also includes, in the absence of a minimum 
blood quantum, any citizen of the United States who is regarded as an 
Alaska Native by the Alaska native village or native groups of which he 
or she claims to be a member and whose father or mother is (or, if 
deceased, was) regarded as an Alaska Native by any village or group.
    (2) Arts and crafts objects means art works and crafts that are in 
a traditional or non-traditional style or medium.
    (3) Authentic native handicrafts means arts and crafts objects 
created by a United States Indian, Alaska 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. 1159(c)(3).

    Dated: May 22, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-11274 Filed 6-11-07; 8:45 am]
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