04-6641. Authentic Native Handicrafts

AGENCY:

National Park Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

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

DATES:

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

ADDRESSES:

Written comments should be sent to Cynthia Orlando, Concession Program Manager, National Park Service, 1849 C Street, NW. (2410), Washington, DC 20240. Fax: [phone]. E-mail: [e-mail].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

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

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

In furtherance of this objective, Section 416(b) of the 1998 Act exempts the revenue derived by NPS concessioners from the sale of United States Indian, Alaskan Native, Native Samoan and Native Hawaiian handicrafts from concession contract franchise fees. This proposed regulation collectively refers to these handicrafts as “authentic native handicrafts.”

Also, Section 417 of the 1998 Act requires the Secretary of the Interior (Secretary) to promulgate a regulation that further defines United States Indian, Alaskan Native and Native Hawaiian handicrafts.

Section 409 of the 1998 Act (16 U.S.C. 5958) requires the National Park Service Concessions Management Advisory Board (Advisory Board) to make recommendations to the Secretary regarding the nature and scope of products that qualify as authentic native handicrafts within the meaning of the 1998 Act. This proposed regulation has been developed in consideration of the recommendations of the Advisory Board.

When finalized, the proposed regulation will give guidance to the NPS and NPS concessioners as to what products meet the definition of authentic native handicrafts for purposes of franchise fee exemptions and other elements of the NPS concessions management program.

In developing the proposed regulation, NPS, upon the recommendation of the Advisory Board, incorporated to the extent appropriate the relevant definitions established by the Indian Arts and Crafts Board of the Department of the Interior (IACB) in 25 CFR part 309 in recognition of the native handicraft expertise of the IACB.

Please note that Section 417 of the 1998 Act requires the Secretary to further define “United States Indian, Alaskan Native, and Native Hawaiian handicraft.” However, section 416 of the 1998 Act additionally refers to Native Samoan handicraft. Accordingly, although the term “Native Samoan handicraft” is not defined in the proposed regulation, the proposed regulation specifies that the sale of Native Samoan handicrafts is encouraged and exempt from NPS concession contract franchise fees. An administrative definition of “Native Samoan handicraft” will be developed by NPS in consultation with appropriate Samoans and Samoan organizations.

The source of the definition of “Alaskan Native” contained in the proposed regulation is section 1602(b) of the Alaska Native Claims Settlement Act (43 U.S.C. 1602(b)).

The source of the term “arts and crafts objects” is 25 CFR part 309 (the regulations of the IACB) as adapted for purposes of this regulation.

The source of the definition of “authentic native handicrafts” contained in the proposed regulation is 25 CFR part 309 as adapted for the purposes of this proposed regulation.

The source of the term “Native Hawaiian” is Section 3001(10) of the Native American Graves Protection Act (25 U.S.C. 3001(10) and Section 14(10)) of the National Museum of the American Indian Act (Pub. L. 101-185).

The source of the term “United States Indian” is the applicable portion of the term “Indian” as defined in 25 CFR part 309.

Drafting Information

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

Compliance With Laws, Executive Orders and Department Policy

Regulatory Planning and Review (Executive Order 12866)

In accordance with the criteria in Executive Order 12866, the Office of Management and Budget makes the final determination as to the significance of this regulatory action and it has determined that this document is not a significant rule and is not subject to review as:

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act (SBREFA)

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

Unfunded Mandates Reform Act

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

Takings (Executive Order 12630)

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

Federalism (Executive Order 13132)

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

Civil Justice Reform (Executive Order 12998)

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

Paperwork Reduction Act

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

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

Clarity of This Rule

Executive Order 12866 requires Federal agencies to write regulations that are easy to understand. Comment is invited on how to make this rule easier to understand, including answers to the following questions: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain undefined technical language or jargon that interferes with its clarity? (3) Does the format of the rule (groupings and order of sections, use of headings, paragraphing, etc.) aid in or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more but shorter sections? (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the proposed rule? (6) What else could be done to make the rule easier to understand?

Please send a copy of any comments that concern how this rule could be made easier to understand to: Office of Regulatory Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240.

Public Comment Solicitation

If you wish to comment, you may submit your comments by any one of several methods. You may mail comments to Cindy Orlando, National Park Service, 1849 C Street, NW., (2410), Washington, DC 20240. You may also comment via the Internet to [e-mail]. Please also include “Attn: RIN 1024-AD20” in the subject line and your name and return address in your Internet message. You may fax your comments to 202/371-2090. Finally, you may hand-deliver comments to National Park Service, Concession Program, 1201 Eye Street, NW., 11th Floor, Washington, DC. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses available for public inspection in their entirety.

List of Subjects in 36 CFR Part 51

• Concessions
• Government contracts
• National parks
• Reporting and recordkeeping requirements

The Proposed Rule

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

PART 51—CONCESSION CONTRACTS

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

Authority: The Act of August 25, 1916, as amended and supplemented, 16 U.S.C. 1 et seq., particularly, 16 U.S.C. 3 and Title IV of the National Parks Omnibus Management Act of 1998 (Pub. L. 105-391).

Source: 65 FR 20668, Apr. 17, 2000, unless otherwise noted.

Subpart I—Concession Contract Provisions

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

§ 51.83

Sale of Native Handicrafts.

(a) In General: Where authorized by an applicable concession contract, concessioners are encouraged to sell authentic native handicrafts that reflect the cultural, historical, and geographic characteristics of the related park area. To further this objective, concession contracts will contain a provision that exempts the revenue of a concessioner derived from the sale of authentic native handicrafts from the concession contract's franchise fee.

(b) Definitions: For purposes of this section, the term:

(1) Alaskan Native means a citizen of the United States who is a person of one-fourth degree or more Alaskan Indian (including Tsimshian Indians not enrolled in the Metalakatla Indian Community), Eskimo, or Aleut blood, or combination thereof. The term includes any person as so defined either or both of whose adoptive parents are not Alaskan Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaskan native by the Alaskan native village or native group of which he or she claims to be a member and whose father or mother is (or, if deceased, was) regarded as an Alaskan native by any village or group.

(2) Arts and crafts objects are art works and crafts that are in a traditional or non-traditional style or medium.

(3) Authentic native handicrafts are arts and crafts objects created by a United States Indian, Alaskan Native, Native Samoan or Native Hawaiian that are made with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual object.

(4) Native Hawaiian means any individual who is a descendant of the aboriginal people that, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.

(5) United States Indian means any individual that is a member of an Indian tribe as defined in 18 U.S.C. Section 1159.

Dated: March 5, 2004.

Craig Manson,

Assistant Secretary for Fish and Wildlife and Parks.