U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

89–010 

" ! SENATE 115TH CONGRESS

2d Session 

REPORT 

2018

115–415 

Calender No. 718 

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 

DECEMBER 5, 2018.—Ordered to be printed 


E:\Seals\Congress.#13
(II) 

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 

1 16 U.S.C. §1361 et seq. 

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. 

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 

2 

2 16 U.S.C. §1371(b). 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. 9Oregon 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-nativealaskans-who-legally-carve-walrus-tusks) (accessed July 25, 2018). 

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. 

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 neartotal 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

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. 

3 

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: 

4 

12 16 U.S.C. §1371(b). 

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. 

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 

5 

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) 14 New York State Law S. 7890. (https://legislation.nysenate.gov/pdf/bills/2013/S7890) 

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

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. 

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) * * * 

ø(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 

6 

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— 

ø(1) is for subsistence purposes; or¿ 

ƒ(2) is done≈ (A)(i) is for subsistence purposes; or 

(ii) is done for purposes of creating and selling authentic native articles of handicrafts ƒand 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 

øø(3)¿(B) in each case, is not accomplished in a wasteful 

manner.¿ 

øNotwithstanding 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 

7 

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 

8 

(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. 

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