[Senate Report 115-415]
[From the U.S. Government Publishing Office]
Calendar No. 718
115th Congress } { Report
SENATE
2d Session } { 115-415
_______________________________________________________________________
ALLOWING ALASKA TO IMPROVE VITAL OPPORTUNITIES IN THE RURAL ECONOMY ACT
__________
R E P O R T
of the
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 1965
together with
SUPPLEMENTAL VIEWS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 5, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred fifteenth congress
second session
JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi BILL NELSON, Florida
ROY BLUNT, Missouri MARIA CANTWELL, Washington
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD J. MARKEY, Massachusetts
DEAN HELLER, Nevada TOM UDALL, New Mexico
JAMES M. INHOFE, Oklahoma GARY C. PETERS, Michigan
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin TAMMY DUCKWORTH, Illinois
SHELLEY MOORE CAPITO, West Virginia MARGARET WOOD HASSAN, New Hampshire
CORY GARDNER, Colorado CATHERINE CORTEZ MASTO, Nevada
TODD C. YOUNG, Indiana JON TESTER, Montana
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Christopher Day, Democratic Deputy Staff Director
Calendar No. 718
115th Congress } { Report
SENATE
2d Session } { 115-415
======================================================================
ALLOWING ALASKA TO IMPROVE VITAL OPPORTUNITIES IN THE RURAL ECONOMY ACT
_______
December 5, 2018.--Ordered to be printed
_______
Mr. Thune, from the Committee on Commerce, Science, and Transportation,
submitted the following
R E P O R T
[To accompany S. 1965]
[Including cost estimate of the Congressional Budget Office]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 1965) to amend the Marine
Mammal Protection Act of 1972 to protect the cultural practices
and livelihoods of producers of Alaska Native handicrafts and
traditional mammoth ivory products, and for other purposes,
having considered the same, reports favorably thereon with an
amendment (in the nature of a substitute) and recommends that
the bill (as amended) do pass.
Purpose of the Bill
The purpose of S. 1965 is to amend the Marine Mammal
Protection Act of 1972 (MMPA)\1\ to do the following: clearly
define traditional and authentic native handicrafts and
clothing; explicitly state that these items may be sold in
interstate commerce; and prohibit States from prohibiting the
possession or sale of certain Alaska Native-produced ivory
handicrafts that are legal under Federal law.
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\1\16 U.S.C. 1361 et seq.
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Background and Needs
Under the MMPA, any Indian, Aleut, or Eskimo who resides in
Alaska and who dwells on the coast of the North Pacific Ocean
or the Arctic Ocean, described as Alaska Natives, may legally
produce and sell traditional handicrafts from marine mammal
parts.\2\ These parts include walrus ivory and whale baleen
(also known as whalebone). Alaska Natives also produce and sell
raw ivory of extinct wooly mammoths, as well as handicrafts
made from mammoth ivory. Walruses are not listed as endangered
under the Endangered Species Act (ESA), but only Alaska Natives
may harvest them and carve their ivory. Once carved and sold,
anyone may resell or export Alaska Native art made of walrus
ivory. Alternatively, bowhead whales, the most common source of
baleen for Alaska Native crafts, are listed as endangered under
the ESA, and bowhead baleen may be sold by Alaska Natives and
be transported out of Alaska, but may not be subsequently
resold or exported. Mammoth and mastodon ivory is generally
unregulated as these species are extinct and not protected by
Federal wildlife laws.
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\2\16 U.S.C. 1371(b).
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The sale of arts and crafts produced by Alaska Natives from
legally and sustainably harvested marine mammal parts,
especially in subsistence economies, provides critical
financial benefits to Alaska Native villages that otherwise
lack economic opportunities.\3\ In July 2016, the Fish and
Wildlife Service (FWS) enacted a near-total ban on commercial
trade in African elephant ivory, which does not affect ivory
from marine species.\4\ A number of States, including New
York,\5\ New Jersey,\6\ California,\7\ Hawaii,\8\ Oregon,\9\
and Washington,\10\ have broad laws prohibiting the sale or
possession of ivory and do not specifically exempt mammoth
ivory or items legally produced by Alaska Natives. While
Federal law already preempts State law, public misunderstanding
of State laws that broadly prohibit ivory and ivory products,
in addition to FWS regulations on elephant ivory, has created a
perception that marine mammal and mammoth ivory handicrafts
produced by Alaska Natives are illegal. As a result of public
confusion, Alaska Native artisans have experienced reduced
demand for their artwork.\11\
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\3\U.S. Senate Committee on Environment and Public Works,
Subcommittee on Fisheries, Water, and Wildlife. Field Hearing on
Examining the Impacts of the Federal African Elephant Ivory Ban and
Related State Laws, October 20, 2016. 114th Cong. 2nd Sess. Washington:
GPO, 2016 (statement of Rosita Worl, president, Sealaska Heritage,
Inc.).
\4\U.S. Fish and Wildlife Service, ``Endangered and Threatened
Wildlife and Plants; Revision of the Section 4(d) Rule for the African
Elephant (Loxodonta africana),'' 81 Federal Register 36387, July 6,
2016.
\5\New York Consolidated Laws, Environmental Conservation Law 11-
0535-A.
\6\New Jersey Status Annotated 23:2A-13.3(c)-(f).
\7\California's Fish and Wildlife Code, 2022.
\8\Hawaii Revised Statutes 183D-66.
\9\Oregon Revised Statutes 49022.
\10\Revised Code of Washington 77.15.135.
\11\National Public Radio, ``Ivory Ban Hurts Alaska Natives Who
Legally Carve Walrus Tusks,'' November 24, 2016 (https://www.npr.org/
2016/11/24/503036303/ivory-ban-hurts-native-
alaskans-who-legally-carve-walrus-tusks) (accessed July 25, 2018).
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Summary of Provisions
If enacted, S. 1965, the Allowing Alaska IVORY Act would
amend the MMPA to do the following: clearly define traditional
and authentic native handicrafts and clothing; explicitly state
that these items may be sold in interstate commerce; and
prohibit States from prohibiting the possession or sale of
certain Alaska Native-produced ivory handicrafts that are legal
under Federal law.
Legislative History
S. 1965 was introduced on October 17, 2017, by Senator
Sullivan (for himself and Senator Murkowski) and was referred
to the Committee on Commerce, Science, and Transportation of
the Senate. On September 5, 2018, the Committee met in open
Executive Session and by voice vote ordered S. 1965 to be
reported favorably with an amendment (in the nature of a
substitute).
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
S. 1965--Allowing Alaska IVORY Act
S. 1965 would amend the Marine Mammal Protection Act of
1972 to prohibit any state or locality from banning the
importation, sale, barter, or possession of an authentic native
handicraft article of mammoth, mastodon, or walrus ivory or
marine mammal bones that have been produced by an Alaska
Native. Authentic native articles are defined by the bill as
items composed of natural materials produced or fashioned
through traditional native handicraft procedures.
Because S. 1965 would not change federal policy related to
the sale of marine mammal bones, CBO estimates that
implementing the bill would not affect the federal budget.
CBO estimates that enacting S. 1965 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
CBO estimates that enacting S. 1965 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 1965 would preempt state and local laws governing the
possession, trade, or sale of handicrafts or clothing produced
by certain Alaska Natives using animal ivory or bone. That
preemption would be a mandate as defined in the Unfunded
Mandates Reform Act (UMRA). Although the bill would limit the
application of state and local laws, it would impose no duty on
state or local governments that would result in additional
spending.
S. 1965 contains no private-sector mandates as defined by
UMRA.
The CBO staff contacts for this estimate are Robert Reese
(for federal costs) and Rachel Austin (for mandates). The
estimate was reviewed by H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
number of persons covered
S. 1965, as reported, would not create any new programs or
impose any new regulatory requirements. Therefore, it would not
subject any individuals or businesses to new regulations.
economic impact
Enactment of this legislation is not expected to have a
negative impact on the Nation's economy and will provide
positive impacts to rural Alaska Native communities.
privacy
The reported bill is not expected to impact the personal
privacy of individuals.
paperwork
S. 1965 would not create increases in paperwork burdens if
enacted.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides that no
provisions contained in the bill, as reported, meet the
definition of congressionally directed spending items under the
rule.
Section-by-Section Analysis
Section 1. Short title.
This section would provide that the bill may be cited as
the ``Allowing Alaska to Improve Vital Opportunities in the
Rural Economy Act,'' or the ``Allowing Alaska IVORY Act.''
Section 2. Alaska Native handicrafts.
This section would restructure section 101(b) of the
MMPA\12\ to clearly define traditional and authentic native
handicrafts and clothing and to explicitly state that authentic
native articles of handicrafts and clothing may be sold in
interstate commerce. This section also would prohibit States
from prohibiting the importation, sale, trade, or possession of
mammoth, mastodon, or walrus ivory or marine mammal bones,
teeth, or baleen produced as a native handicraft.
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\12\16 U.S.C. 1371(b).
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Supplemental Views of Senator Nelson
The Allowing Alaska IVORY Act would restate the authority
of Alaska Natives to sell handicrafts made from legally
acquired marine mammal parts under the MMPA and ESA. This bill
would also amend the MMPA to allow exemptions for the sale of
Alaska Native-carved handicrafts made of mastodon and mammoth
ivory. Carving and selling mammoth and mastodon ivory is
already legal for Alaska Natives and non-Natives since mammoths
and mastodons are extinct, and hence not covered by the MMPA or
ESA. Since the commerce in marine mammal, mammoth, and mastodon
ivory is already legal, further legislating of existing
authorities is unnecessary. If enacted, this bill would be the
first time the MMPA--the United States' only marine mammal
protective bill--covered non-marine mammal species. There are
concerns from environmentalists that amending the MMPA in this
way could weaken protections for marine mammals and create
legal precedent for other non-marine mammal exemptions to be
added in the future.
There are also concerns from wildlife protection groups
about the potential unintended consequences of this bill to the
global and domestic efforts to curb the illegal trade of
elephant ivory. While the international trade in elephant ivory
has been banned since 1990, global demand for ivory remains.
Smugglers attempt to sell elephant ivory by claiming it is
legal mammoth ivory, both of which look nearly identical to the
untrained eye. It is also difficult to differentiate walrus,
mammoth, and mastodon ivory. Enforcement of illegal ivory trade
remains challenging because there is currently no instant,
easy, and inexpensive test to differentiate these ivories.\13\
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\13\Vigne, Lucy and Martin, Esmond. ``China Faces a Conservation
Challenge: The Expanding Elephant and Mammoth Ivory Trade in Beijing
and Shanghai.'' 2014. (http://savetheelephants.org/wp-content/uploads/
2014/12/2014_ChinaConservationChallenge.pdf)
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Due to concerns for the illegal elephant ivory trade, some
States have passed bans that prohibit some combination of
walrus, mammoth, and mastodon ivory and marine mammal parts in
intrastate commerce. The Allowing Alaska IVORY Act would
preempt these State laws. However, all of the existing State
laws (except for New York's\14\) exempt federally authorized
products from their ivory prohibitions, thus allowing for
continued intrastate commerce in Alaska Native-carved walrus,
mammoth, and mastodon ivory and marine mammal parts.
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\14\New York State Law S. 7890. (https://legislation.nysenate.gov/
pdf/bills/2013/S7890)
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Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
material is printed in italic, existing law in which no change
is proposed is shown in roman):
MARINE MAMMAL PROTECTION ACT OF 1972
[16 U.S.C. 1361 et seq.]
SEC. 101. MORATORIUM ON TAKING AND IMPORTING MARINE MAMMALS AND MARINE
MAMMAL PRODUCTS.
[16 U.S.C. 1371]
(a) * * *
[(b) Exemptions for Alaskan Natives.--Except as]
(b) Application to certain alaska natives.--(1)
Definitions.--In this subsection:
(A) Authentic native article of handicrafts
and clothing.--The term ``authentic native
article of handicrafts and clothing'' means an
item composed wholly or in some significant
respect of natural materials that is produced,
decorated, or fashioned in the exercise of
traditional native handicrafts without the use
of a pantograph, multiple carvers, or any other
mass copying device.
(B) Traditional native handicrafts.--The term
``traditional native handicrafts'' includes
weaving, carving, stitching, sewing, lacing,
beading, drawing, and painting.
(2) Application.--Except as provided in section 109,
the provisions of this Act shall not apply with respect
to the taking of any marine mammal by any Indian,
Aleut, or Eskimo who resides in Alaska and who dwells
on the coast of the North Pacific Ocean or the Arctic
Ocean if such taking--
[(1) is for subsistence purposes; or]
[(2) is done] (A)(i) is for subsistence
purposes; or
(ii) is done for purposes of creating
and selling authentic native articles
of handicrafts [and clothing: Provided,
That only authentic native articles of
handicrafts and clothing may be sold in
interstate commerce: And provided
further, That any edible portion of
marine mammals may be sold in native
villages and towns in Alaska or for
native consumption. For the purposes of
this subsection, the term "authentic
native articles of handicrafts and
clothing" means 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. Traditional
native handicrafts include, but are not
limited to weaving, carving, stitching,
sewing, lacing, beading, drawing, and
painting] and clothing; and
[[(3)](B) in each case, is not accomplished
in a wasteful manner.]
[Notwithstanding the preceding provisions of this
subsection, when]
(3) Limitations.--Notwithstanding paragraph (2), if,
under this Act, the Secretary determines any species or
stock of marine mammal subject to taking by Indians,
Aleuts, or Eskimos to be depleted, he may prescribe
regulations upon the taking of such marine mammals by
any Indian, Aleut, or Eskimo described in this
subsection. Such regulations may be established with
reference to species or stocks, geographical
description of the area included, the season for
taking, or any other factors related to the reason for
establishing such regulations and consistent with the
purposes of this Act. Such regulations shall be
prescribed after notice and hearing required by section
103 of this title and shall be removed as soon as the
Secretary determines that the need for their imposition
has disappeared. In promulgating any regulation or
making any assessment pursuant to a hearing or
proceeding under this subsection or section 117(b)(2),
or in making any determination of depletion under this
subsection or finding regarding unmitigable adverse
impacts under subsection (a)(5) that affects stocks or
persons to which this subsection applies, the Secretary
shall be responsible for demonstrating that such
regulation, assessment, determination, or finding is
supported by substantial evidence on the basis of the
record as a whole. The preceding sentence shall only be
applicable in an action brought by one or more Alaska
Native organizations representing persons to which this
subsection applies.
(4) Special rules.--
(A) Interstate commerce.--Only authentic
native articles of handicrafts and clothing may
be sold in interstate commerce.
(B) Edible portions of marine mammals.--Any
edible portion of a marine mammal may be sold
in a native village or town in Alaska or for
native consumption.
(5) Prohibitions.--No State or political subdivision
thereof shall prohibit the importation, sale, offer for
sale, transfer, trade, barter, possession or possession
with the intent to sell, transfer, trade, or barter of
mammoth, mastodon, or walrus ivory, marine mammal
bones, teeth, or baleen produced under this title by an
Indian, Aleut, or Eskimo as an authentic native article
of handicrafts and clothing.
(c) Taking in Defense of Self or Others.--It shall not be a
violation of this Act to take a marine mammal if such taking is
imminently necessary in self-defense or to save the life of a
person in immediate danger, and such taking is reported to the
Secretary within 48 hours. The Secretary may seize and dispose
of any carcass.
(d) Good Samaritan Exemption.--It shall not be a violation of
this Act to take a marine mammal if--
(1) such taking is imminently necessary to avoid
serious injury, additional injury, or death to a marine
mammal entangled in fishing gear or debris;
(2) reasonable care is taken to ensure the safe
release of the marine mammal, taking into consideration
the equipment, expertise, and conditions at hand;
(3) reasonable care is exercised to prevent any
further injury to the marine mammal; and
(4) such taking is reported to the Secretary within
48 hours.
(e) Act Not to Apply to Incidental Takings by United States
Citizens Employed on Foreign Vessels Outside the United States
EEZ.--The provisions of this Act shall not apply to a citizen
of the United States who incidentally takes any marine mammal
during fishing operations outside the United States exclusive
economic zone (as defined in section 3 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C. 1802)) when
employed on a foreign fishing vessel of a harvesting nation
which is in compliance with the International Dolphin
Conservation Program.
(f) Exemption of Actions Necessary for National Defense.--
(1) The Secretary of Defense, after conferring with
the Secretary of Commerce, the Secretary of the
Interior, or both, as appropriate, may exempt any
action or category of actions undertaken by the
Department of Defense or its components from compliance
with any requirement of this Act, if the Secretary
determines that it is necessary for national defense.
(2) An exemption granted under this subsection--
(A) subject to subparagraph (B), shall be
effective for a period specified by the
Secretary of Defense; and
(B) shall not be effective for more than 2
years.
(3)(A) The Secretary of Defense may issue additional
exemptions under this subsection for the same action or
category of actions, after--
(i) conferring with the Secretary of
Commerce, the Secretary of the
Interior, or both as appropriate; and
(ii) making a new determination that
the additional exemption is necessary
for national defense.
(B) Each additional exemption under this
paragraph shall be effective for a period
specified by the Secretary of Defense, of not
more than 2 years.
(4) Not later than 30 days after issuing an exemption
under paragraph (1) or an additional exemption under
paragraph (3), the Secretary of Defense shall submit to
the Committee on Armed Services of the House of
Representatives and the Committee on Armed Services of
the Senate notice describing the exemption and the
reasons therefor. The notice may be provided in
classified form if the Secretary of Defense determines
that use of the classified form is necessary for
reasons of national security.
[all]