[Federal Register Volume 84, Number 66 (Friday, April 5, 2019)]
[Proposed Rules]
[Pages 13604-13624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06337]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 190212104-9261-01]
RIN 0648-BI58
Regulations Governing the Taking of Marine Mammals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Proposed rule.
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SUMMARY: On February 14, 2005, NMFS received a request from the Makah
Indian Tribe for a waiver of the Marine Mammal Protection Act (MMPA)
moratorium on take of Eastern North Pacific (ENP) gray whales
(Eschrichtius robustus). The Tribe requested that NMFS authorize a
tribal hunt in the coastal portion of the Tribe's usual and accustomed
fishing area (U&A) for ceremonial and subsistence purposes, and
authorize the making and sale of handicrafts. The MMPA imposes a
general moratorium on the taking of marine mammals but authorizes the
Secretary of Commerce to waive the moratorium and issue regulations
governing the take of marine mammals if certain statutory criteria are
met. The decision to waive the moratorium and issue regulations must be
made on the record after an opportunity for an agency hearing on both
the waiver and regulations. The hearing is governed by agency
regulations, which call for the appointment of a presiding officer and
prescribe other procedures. This notice announces the proposed waiver
and regulations. A related notice announcing a hearing on the proposed
waiver and regulations is published elsewhere in this issue of the
Federal Register.
DATES: NMFS has scheduled a hearing before an Administrative Law Judge
at 9:30 a.m. PDT on August 12, 2019, to consider the issuance of a
waiver of the take moratorium and the regulations (see ADDRESSES).
Parties interested in participating in the hearing process should
consult the related notice of hearing published elsewhere in this issue
of the Federal Register.
Filing deadlines: Any person desiring to participate as a party in
the hearing must notify the Regional Administrator (see ADDRESSES), by
certified mail, postmarked on or before May 6, 2019. Interested parties
should consult the related notice of hearing and regulations at 50 CFR
part 228 for additional deadlines and hearing procedures.
ADDRESSES: The hearing before Administrative Law Judge George J. Jordan
will be held beginning at 9:30 a.m. PDT on August 12, 2019, at the
Henry M. Jackson Federal Building, 915 Second Avenue, 4th Floor
Auditorium, Seattle, WA 98174.
Information related to the hearing and the Draft Environmental
Impact Statement (DEIS), a complete list of references cited in this
rulemaking, and background on the Makah Tribe's waiver request will be
available on the NMFS website at: https://www.fisheries.noaa.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt-regulations-governing-gray-whale-hunts-makah.
FOR FURTHER INFORMATION CONTACT: Michael Milstein, NMFS West Coast
Region, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274; 503-
231-6268.
SUPPLEMENTARY INFORMATION: The following table of contents is intended
as an aid to readers:
I. List of Acronyms
II. Background
A. Relevant MMPA Provisions
B. Whaling Convention Act
C. North Pacific Gray Whales
III. Proposed Regulations
A. Measures To Limit the Likelihood That Tribal Hunters Would
Strike a WNP Whale
B. Measures To Maintain PCFG Abundance by Limiting Lethal
Impacts
C. Additional Management Considerations
1. Use of Marine Mammal Products
2. Humane Killing
3. Approaches, Unsuccessful Strike Attempts, and Hunt Training
Provisions
4. NMFS Oversight
5. Identification of Individual Gray Whales
6. Impacts to Species Other Than ENP Gray Whales
IV. Consistency With MMPA Requirements
A. The Proposed Waiver Is Consistent With the MMPA
1. The Proposed Waiver Is Based on the Best Scientific Evidence
Available
2. The Proposed Waiver Was Made in Consultation With the MMC
3. The Proposed Waiver Demonstrates Due Regard for the
Distribution, Abundance, Breeding Habits, and Times and Lines of
Migratory Movements of ENP Gray Whales
4. NMFS Is Assured That the Proposed Waiver Is in Accord With
the MMPA's Purposes and Policies
B. The Proposed Regulations are Consistent With the MMPA
1. The Proposed Regulations Are Based on the Best Scientific
Evidence Available and Consultation With the Marine Mammal
Commission
2. The Proposed Regulations Will Not Disadvantage the ENP Gray
Whale Stock
3. The Proposed Regulations Are Consistent With the Purposes and
Policies of the MMPA
4. We Have Fully Considered the Effects of the Proposed
Regulations on the Statutory Factors
C. The Proposed Waiver and Regulations Appropriately Manage Risk
to WNP Gray Whales
V. Required Statements Related to the Intention To Issue Regulations
A. A Statement of the Estimated Existing Levels of the Species
and Population Stocks of the Marine Mammal Concerned
B. A Statement of the Expected Impact of the Proposed
Regulations on the Optimum Sustainable Population of Such Species or
Population Stock
C. A Statement Describing the Evidence Before the Agency That
Forms the Basis for the Regulations
D. Any Studies or Recommendations Made By or For the Agency or
the MMC That Relate to the Establishment of the Regulations
VI. Classification
I. List of Acronyms
AWMP Aboriginal Whaling Management Plan
CFR Code of Federal Regulations
DEIS Draft Environmental Impact Statement
ENP Eastern North Pacific
ESA Endangered Species Act
E.O. Executive Order
ICRW International Convention for the Regulation of Whaling
IWC International Whaling Commission
K Carrying Capacity
[[Page 13605]]
MMC Marine Mammal Commission
MMPA Marine Mammal Protection Act
NEPA National Environmental Policy Act
NMFS National Marine Fisheries Service
OSP Optimum Sustainable Population
PBR Potential Biological Removal
PCFG Pacific Coast Feeding Group
SAR Stock Assessment Report
U&A Usual and Accustomed Fishing Area (of the Makah Tribe)
U.S.C. United States Code
WCA Whaling Convention Act
WNP Western North Pacific
II. Background
On February 14, 2005, the Makah Indian Tribe, consistent with its
treaty right to hunt whales as defined in the 1855 Treaty of Neah Bay
and with the International Convention for the Regulation of Whaling
(ICRW), submitted a request seeking authorization under the MMPA for a
whale hunt. The Tribe requested a waiver of the MMPA take moratorium to
authorize a tribal hunt for ENP gray whales in the coastal portion of
the Tribe's U&A in northwest Washington State for ceremonial and
subsistence purposes and to allow the making and sale of handicrafts.
The Tribe submitted its 2005 request to the Assistant Administrator
of NMFS, who delegated to the Northwest Region (now the West Coast
Region) of NMFS authority to complete an analysis under the National
Environmental Policy Act (NEPA) and make the initial waiver
determination under the MMPA (NMFS, 2005; Makah Tribe, 2006). On May 9,
2008, we, the West Coast Region of NMFS, released a DEIS. We later
terminated that DEIS because of new scientific information, published a
notice of intent to prepare a new DEIS, and opened a scoping process
(77 FR 29967, May 21, 2012). On March 13, 2015, we released a new DEIS
(80 FR 13373). The Tribe's request is included as an attachment to the
DEIS. After full consideration of the detailed information found in the
2015 DEIS (NMFS, 2015), public comments on our NEPA analysis,
consultation with the Marine Mammal Commission (MMC), and information
obtained during our review of the Tribe's request, we are proposing to
issue a waiver and regulations that would authorize a limited Tribal
hunt for ENP gray whales over a 10-year period. The proposed waiver and
regulations also reflect our consultation with the Makah Tribe pursuant
to Executive Order 13175 (see Section VI).
A. Relevant MMPA Provisions
The primary objective of marine resource management under the MMPA
is to maintain the health and stability of the marine ecosystem (16
U.S.C. 1361). The MMPA states that species and population stocks of
marine mammals should not be permitted to diminish beyond the point at
which they cease to be a significant functioning element of the
ecosystem, and they should not be permitted to diminish below their
optimum sustainable population (OSP). The MMPA defines the term
``population stock'' or ``stock'' as a group of marine mammals of the
same species or smaller taxa in a common spatial arrangement, that
interbreed when mature (16 U.S.C. 1362(11)). OSP is defined in the MMPA
and NMFS regulations as a population size that is within a range from
the carrying capacity of the ecosystem (abbreviated as K) down to the
number of animals that results in the maximum productivity of the
population or the species.
The MMPA requires NMFS (or the U.S. Fish and Wildlife Service) to
prepare a stock assessment report (SAR) for each marine mammal stock
occurring in waters under U.S. jurisdiction (16 U.S.C. 1386(a)). The
SAR must, among other things, describe the stock's geographic range,
estimate its minimum abundance (Nmin) and productivity, estimate human-
caused mortality, and estimate the potential biological removal (PBR)
for the stock. In most cases, Nmin is the lower 20th percentile of the
distribution of the most recent abundance estimate and is the value
selected by Wade (1998) in developing the PBR methodology. The MMPA
defines PBR as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its OSP and includes a formula
for calculating PBR (16 U.S.C. 1362(20)).
The MMPA establishes a moratorium on the taking and importing of
marine mammals (16 U.S.C. 1371(a)). ``Take'' means to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any
marine mammal (16 U.S.C. 1362(13)). The moratorium is not absolute. One
exception allows NMFS to waive the take moratorium from time to time
(16 U.S.C. 1371(a)(3)(A)), adopt suitable regulations governing that
take (16 U.S.C. 1373), and issue permits authorizing the take (16
U.S.C. 1374), if certain criteria are met. The Makah Tribe has
requested that NMFS waive the take moratorium and issue regulations
allowing a tribal hunt for ENP gray whales and the making and sale of
handicrafts. If a waiver is granted and regulations are promulgated,
then the Tribe must separately seek an MMPA permit to implement a hunt
(16 U.S.C. 1374).
A decision to waive the MMPA take moratorium must: Be based on the
best scientific evidence available; be made in consultation with the
MMC; and have due regard to the distribution, abundance, breeding
habits, and times and lines of migratory movements of the marine mammal
stock subject to take. Also, in order to waive the moratorium, NMFS
must be assured that the taking is in accord with sound principles of
resource protection and conservation as provided in the purposes and
policies of the MMPA (which include maintaining marine mammals as a
significant functioning element in the ecosystem of which they are a
part, maintaining the health and stability of the marine ecosystem, and
obtaining an optimum sustainable population keeping in mind the
carrying capacity of the habitat) (16 U.S.C. 1371(a)(3)(A)).
A decision to waive the take moratorium must be accompanied by
regulations governing the take. Regulations to implement a waiver must
ensure that the taking will not be to the disadvantage of the stock and
will be consistent with the purposes and policies of the MMPA (16
U.S.C. 1373(a)). NMFS has interpreted ``disadvantage'' in relation to
the impact of take on the stock's OSP (e.g., 45 FR 72178, 72185,
October 31, 1980).
In prescribing regulations, NMFS must give full consideration to
all factors that may affect the extent to which the stock may be taken,
including but not limited to: Existing and future levels of marine
mammal species and population stocks; existing international treaty and
agreement obligations of the United States; the marine ecosystem and
related environmental considerations; the conservation, development,
and utilization of fishery resources (in this case, fishery resources
will not be affected); and the economic and technological feasibility
of implementation (16 U.S.C. 1373(b)). The regulations may restrict,
among other things, the number, age, size, and sex of animals taken and
the season, manner, and location of the taking (16 U.S.C. 1373(c)).
Regulations are subject to periodic review and modification to carry
out the purposes of the MMPA (16 U.S.C. 1373(e)).
The MMPA (16 U.S.C. 1373(d)) provides that an agency decision to
waive the take moratorium and issue regulations governing the take of
marine mammals must be made on the record after an opportunity for an
agency hearing. Agency regulations govern the conduct of the agency
hearing, call for the appointment of a presiding officer,
[[Page 13606]]
and prescribe other procedures (50 CFR part 228). Either before or
concurrent with the public notice of our intention to issue
regulations, we must make available to the public:
1. A statement of the estimated existing levels of the species and
population stocks of the marine mammal concerned;
2. A statement of the expected impact of the proposed regulations
on the OSP of such species or population stock;
3. A statement describing the evidence before the agency that forms
the basis for the regulations; and
4. Any studies made by or for the agency or any recommendations
made by or for the agency or the MMC that relate to the establishment
of the regulations.
16 U.S.C. 1373(d). These statements are provided in Section V below.
If NMFS waives the MMPA take moratorium for ENP gray whales and
issues regulations governing a tribal hunt, the Makah Tribe would have
to obtain a permit from NMFS prior to taking any whales. The permit
process includes the opportunity for public notice and comment (16
U.S.C. 1374). Under the MMPA, the permit applicant must demonstrate
that the taking of marine mammals under the permit would be consistent
with the purposes and policies of the MMPA and the applicable
regulations. A permit must specify the following:
1. The number and kinds of animals authorized to be taken;
2. The location and manner (which the Secretary must determine to
be humane) in which they may be taken;
3. The period during which the permit is valid; and
4. Other terms or conditions that the Secretary deems appropriate.
The MMPA defines ``humane'' as that method of taking which involves
the least possible degree of pain and suffering practicable to the
mammal involved (16 U.S.C. 1362(4)). NMFS has worked within the IWC to
improve the humaneness of whale-killing methods in aboriginal
subsistence whaling, focusing on reducing the length of time to death
of a whale (i.e., reducing the amount of time between the strike and
the death) to improve humaneness (IWC, 2004; IWC, 2007; IWC, 2012) as
well as to address hunting efficiency. The Makah Tribe proposed to use
a toggle point harpoon as the weapon for striking whales and a .50
caliber rifle as the weapon for killing whales. The DEIS describes the
detailed analyses commissioned by NMFS and others to examine the
suitability of using a .50 caliber rifle to dispatch a gray whale and
the conclusions of the reviewers that a .50 caliber rifle is capable of
quickly killing a gray whale (DEIS Subsection 3.4.3.5.4, Method of
Killing and Time to Death). A determination regarding whether the
Tribe's proposed method of hunting is humane and meets the other
requirements listed above for issuance of a permit would be decided
through the permit process (16 U.S.C. 1374). The permit process is
subsequent to and separate from the waiver process and therefore not
part of this proceeding. The permit process is described here and
discussed elsewhere in this proposed rule to provide context for the
proposed regulations. In addition to a NMFS-issued permit, the Tribe
would establish a separate process for the issuance of tribal whaling
permits by the Makah Tribal Council (Makah Tribe, 2005; Makah Tribe,
2013).
B. Whaling Convention Act
Because the Tribe's request involves a large whale species, the
Tribe would need to obtain authorization from NMFS in accordance with
the Whaling Convention Act (WCA), which implements the United States'
obligations under the ICRW. The ICRW establishes the International
Whaling Commission (IWC), an inter-governmental organization whose
purpose is the conservation of whales and the management of whaling.
The ICRW includes a legally binding document called the ``Schedule,''
which, among other things, sets out catch limits for aboriginal
subsistence whaling.
Since 1997, the Russian Federation and the United States have
regularly submitted a joint proposal to the IWC for an aboriginal
subsistence whaling catch limit for ENP gray whales on behalf of
Chukotkan natives and the Makah Tribe, respectively. In response, the
IWC has repeatedly established catch limits for ENP gray whales. At its
September 2018 meeting, the IWC approved a new catch limit of 980 ENP
gray whales for the period 2019-2025 with an annual cap of 140 whales.
This catch limit became effective December 29, 2018 (IWC, 2018a). A
bilateral agreement between the United States and Russian Federation
sets overall and annual limits for the two countries (Fominykh and
Wulff, 2018), with the Makah Tribe entitled to a maximum of 5 whales
per year. This agreement also specifies that any quota unused by one
country may be transferred to the other. In past years, the United
States has transferred its entire quota to Russia for use by the
Chukotkan hunters (e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and
DeMaster, 2012; Fominykh and Smith, 2016; Fominykh and Wulff, 2017).
If NMFS waives the MMPA take moratorium for ENP gray whales and
issues regulations governing a tribal hunt, the Makah Tribe and NMFS
would need to complete procedures established in the WCA and
implementing regulations at 50 CFR part 230 to allocate a domestic
catch limit for ENP gray whales to the Makah Tribe consistent with the
IWC Schedule and the bilateral agreement. This would include publishing
those catch limits and entering into a cooperative agreement with the
Tribe. Those processes are subsequent to and separate from the MMPA
process of waiving the take moratorium and issuing regulations.
C. North Pacific Gray Whales
The life history, status, and distribution of North Pacific gray
whales are described in detail in the DEIS (Subsection 3.4, Gray
Whales). We summarize that information here and discuss the ENP gray
whale stock in more detail in a companion biological report (NMFS,
2019a), which we incorporate by reference.
NMFS recognizes two stocks of gray whales, one from the western
North Pacific (WNP stock) and one from the eastern North Pacific (ENP
stock). Through the SAR process, NMFS concluded that the best
scientific information available consists of genetic information
showing significant mitochondrial and nuclear genetic differences
between the WNP and ENP stocks (Carretta et al., 2017). The IWC also
manages the two stocks separately (IWC, 2018a), and the International
Union for Conservation of Nature recognizes them as two subpopulations
(Reilly et al., 2008).
Commercial whaling from the mid-nineteenth through early twentieth
centuries dramatically reduced the abundance of the gray whale, leading
to its protection by a suite of international agreements and federal
laws including the WCA and MMPA. The gray whale was listed as an
endangered species under the Endangered Species Act (ESA) and its
predecessor statute beginning in 1970 (35 FR 8495, June 2, 1970). As a
result of protection from commercial exploitation, the ENP gray whale
stock recovered and in 1994 was removed from the ESA's list of
endangered and threatened wildlife (59 FR 21094, June 16, 1994). It
currently numbers approximately 27,000 animals (Durban et al., 2017).
NMFS has continued monitoring the population since its delisting
(Carretta et al., 2017). The WNP stock remains listed as
[[Page 13607]]
endangered (50 CFR 223.102) and numbers approximately 200 non-calf
animals (Cooke, 2018).
The ENP gray whale stock spends the winter as far south as the Baja
California Peninsula and Gulf of California in northwestern Mexico and
migrates north to summer feeding areas as far as the Chukchi and
Beaufort Seas. A small group of ENP whales, referred to as the Pacific
Coast Feeding Group (PCFG) exhibits seasonal fidelity to feeding
grounds off the West Coast of the United States and Canada. Whales that
are photo-identified within the region between northern California and
northern Vancouver Island (from 41[deg]N lat. to 52[deg]N lat.) during
the summer feeding period of June 1 to November 30, in two or more
years, are defined by the IWC as belonging to the PCFG (IWC, 2011a;
IWC, 2011b; IWC, 2011c). NMFS has adopted this definition (Carretta et
al., 2017).
Scientists have studied the PCFG for several decades, and NMFS has
monitored the PCFG for more than 15 years. The size of the group has
remained relatively stable at about 200 animals since 2002 and is
recently increasing (Calambokidis et al., 2017).
NMFS scientists and others have examined genetic and other
information to determine whether the PCFG should be considered a
separate stock under the MMPA (Frasier et al., 2011; Lang et al.,
2011b). They found that sampled whales that meet the definition of the
PCFG have small but significant differences in the diversity of
mitochondrial DNA (mtDNA), which is inherited only from the mother,
compared to whales on the northern feeding grounds of the Bering,
Chukchi, and Beaufort Seas. However, no significant differences were
found between these two groups when nuclear microsatellite data, which
represent the DNA inherited from both parents, were analyzed. Similar
results were found by other researchers (D'Intino et al., 2013) despite
different sample collections used to represent the PCFG and the larger
ENP stock. These results indicate that calves likely follow their
mothers to feeding areas and to some extent return to those feeding
areas in subsequent years. Whales that frequent one feeding area,
however, are not necessarily reproductively isolated from whales that
frequent other feeding areas.
NMFS considered whether the PCFG warrants designation as a stock
under the MMPA through the SAR process. NMFS has issued several SARs
addressing this issue (78 FR 19446, April 1, 2013; 79 FR 49053, August
19, 2014; 80 FR 50599, August 20, 2015). NMFS continues to find that
the existing information does not support a conclusion that the PCFG is
a stock. This finding is based in part on the deliberations of a NMFS
task force that found the evidence equivocal as to whether the
population dynamics of the PCFG are more a product of internal
recruitment (calves coming to the area with mothers) versus external
recruitment (whales recruiting to the area who are not calves of PCFG
mothers) (Weller et al. 2013). The current SAR (Carretta et al., 2017)
represents NMFS' determination on this issue, although NMFS will
continue to evaluate through the SAR process any new science on this
issue as it does for the identification of marine mammal stocks in
general. Accordingly, this waiver process applies at the level of the
ENP gray whale stock as a whole (which includes whales in the PCFG).
In the 2012 SAR, NMFS determined that the ENP gray whale stock was
within its OSP range (Carretta et al., 2013). It has remained within
OSP since that time. The most recent ENP gray whale SAR notes that
abundance will continue to fluctuate in response to human and natural
factors affecting carrying capacity, consistent with a population
approaching carrying capacity (K) (Carretta et al., 2017). The SAR
calculates the PBR for the ENP gray whale stock to be 624 whales per
year (Carretta et al., 2017). The primary source of human-caused
mortality is the Chukotkan hunt, which took 127 whales per year on
average from 2008 to 2012 (Carretta et al., 2017). Other sources of
human-caused mortality in U.S. waters, such as ship strikes and
entanglement in fishing gear, result in about 6 ENP gray whale deaths
per year. The SAR does not calculate a separate PBR for ENP gray whales
in U.S. waters, or report on human-caused mortality outside of U.S.
waters except for ENP gray whales killed in the Chukotkan hunt. NMFS
guidance on preparing stock assessments (NMFS, 2016) advises
calculating a PBR for U.S. waters for transboundary stocks when there
is no international conservation regime in place and it is reasonable
to do so.
Although NMFS does not recognize the PCFG as a separate stock, the
2012 SAR (Carretta et al., 2013) and subsequent SARs have reported on
population parameters and calculated an informational PBR for the PCFG,
because the PCFG appears to be a feeding aggregation and may warrant
consideration as a stock in the future. The term ``feeding
aggregation'' is used by biologists in the scientific literature to
describe concentrations of whales that forage in a specific area but
the term is not intended to signify that such whales constitute a stock
as that term is defined under the MMPA. The SAR notes that calculating
this separate PBR allows NMFS to assess whether levels of human-caused
mortality are a management concern for this group. (The SAR uses the
term ``local depletion,'' which is not defined in agency regulations or
guidelines, so we have not adopted that concept here.) It is unknown
whether the PCFG, if it were eventually designated a stock, would be
within OSP due to uncertainties in population parameters such as
emigration and immigration rates, bycatch mortality, and recruitment
(Punt and Moore, 2013).
The most recent (2015) abundance estimate of PCFG whales
(Calambokidis et al., 2017) is 243 whales with an Nmin of 228.
Calambokidis et al. (2017) note that PCFG abundance estimates show a
high rate of increase in the late 1990s and early 2000s and now appear
to be relatively stable since 2002. The most recent SAR (Carretta et
al., 2017) reports human-caused mortality of PCFG whales in U.S. waters
as 0.25 whales per year, based on data from 2008 through 2012. As with
most SARs, this is a minimum estimate because not all whales killed as
a result of human actions are documented. Similar to the analysis for
the entire ENP stock, the SAR does not calculate a separate
informational PBR for PCFG whales in U.S. waters, or report on human-
caused mortality outside of U.S. waters.
Concerns for ENP gray whales identified in the SAR include injuries
due to fisheries interactions, ship strikes, and marine debris, as well
as a number of habitat concerns such as industrialization, pollution,
and shipping congestion throughout the nearshore migratory corridors.
Climate change is likely to affect the availability of habitat and prey
species, but species such as the gray whale (which feed on both benthic
and pelagic prey) have been predicted in some studies (e.g., Bluhm and
Gradinger, 2008) to adapt better than trophic specialists. Human
exploration and development activities (e.g., for oil and gas deposits)
are also expected to increase in the Arctic and elsewhere, which in
turn could increase risks to whales from spills, ship strikes, and
anthropogenic noise. The SAR does not indicate that these factors are a
threat to the OSP status of the ENP stock at this time.
III. Proposed Regulations
The Tribe has requested a waiver allowing the harvest of 20 ENP
gray whales every 5 years and a limit of 7 strikes per hunting season,
with the presumption that a struck whale would
[[Page 13608]]
die. The Tribe proposes hunting only in the coastal portion of their
U&A. Its request included provisions to satisfy IWC requirements, avoid
local depletion of PCFG whales, safeguard public and hunter safety, and
preserve cultural aspects of the hunt while promoting humaneness. The
Tribe is also requesting authorization to use non-edible whale products
for the making and sale of handicrafts.
Our proposed waiver and regulations respond to the Tribe's request
by authorizing a more limited hunt for ENP gray whales for a 10-year
period and allowing for the making and sale of handicrafts. Our
proposed regulations adopt the Tribe's proposals to limit hunting to
the coastal portion of the Tribe's U&A (the hunt area) and to presume
that any struck whale will die.
Two key management goals shaped many of the provisions in the
proposed regulations: (1) Limiting the likelihood that tribal hunters
would strike or otherwise harm a WNP gray whale and (2) ensuring that
hunting does not reduce PCFG abundance below recent stable levels.
Regarding the first management goal, in adopting regulations to
implement a waiver, NMFS must consider all factors that may affect the
allowable level of take (16 U.S.C. 1373(b)). Although the Tribe has not
requested a waiver of the take moratorium for WNP gray whales, we
determined that potential effects of a hunt on WNP whales are a
relevant consideration. While uncommon, there are documented
occurrences of WNP whales transiting the Makah U&A, and hunters would
not be able to visually distinguish WNP whales from ENP whales during a
hunt. The regulations are designed to minimize the risk of a WNP whale
being struck or harmed over the duration of the waiver.
Regarding the second management goal, the MMPA requires that in
waiving the take moratorium we give due regard to, among other things,
the distribution and times and lines of migratory movements of the
stock subject to waiver, and that the waiver be in accord with the
purposes and policies of the MMPA, which include maintaining marine
mammals as a functioning element of their ecosystem. PCFG whales
exhibit site fidelity during the feeding season to the northern
California current ecosystem, a unique area within the range of the ENP
gray whale stock. The proposed regulations would limit lethal and sub-
lethal effects to PCFG whales to ensure that hunting does not reduce
their abundance and distribution within the PCFG range.
Measures in the proposed regulations to achieve these two
management goals include:
Alternating Hunt Seasons. Even-year hunts would occur
during the migration season (December 1 of an odd-numbered year through
May 31 of the subsequent even-numbered year) to reduce risk to PCFG
whales. Odd-year hunts would occur during the feeding season (July 1
through October 30 of odd-numbered years) to reduce risk to WNP whales.
Strike Limits. 3 strikes during even-year hunts and 2
strikes during odd-year hunts.
PCFG Strike Limits. 16 strikes over 10 years.
Landing Limits. 3 whales in even-year hunts and 1 whale in
odd-year hunts.
PCFG Abundance Trigger. Hunting ceases if PCFG abundance
falls below 192 whales (or the PCFG minimum abundance estimate falls
below 171 whales).
Other management measures in the proposed regulations are described
in Subsection III(C) below.
A. Measures To Limit the Likelihood That Tribal Hunters Would Strike a
WNP Whale
The Tribe originally proposed a hunting season of December 1
through May 31, when most ENP gray whales are migrating to and from
northern feeding grounds (the migration season), to minimize the
potential that a PCFG whale would be killed. Scientists subsequently
observed WNP whales in the ENP, including in the Tribe's U&A, during
the migration season (Mate et al., 2015). Although the risk is very
small (there are about 200 WNP whales and about 27,000 ENP whales),
this creates the possibility that a tribal hunt at that time could
strike a WNP whale that is mixed in with ENP whales. To limit the risk
of a WNP whale being struck, the proposed regulations would authorize a
hunt during the migration season with two important restrictions: (1)
Hunting would only be allowed every other year, proposed for even
years, and (2) only three whales could be struck in an even-year hunt.
The proposed regulations would also authorize a hunt in odd years
during the feeding season (July 1 through October 31), when WNP whales
would be feeding in the western North Pacific. Because WNP whales are
not expected to be in the Tribe's U&A during the feeding season,
authorizing a hunt at this time would avoid impacts to WNP whales.
During an even-year hunt, the regulations would allow only one
strike in a 24-hour period as a precaution against striking multiple
WNP gray whales that might be travelling together in a group (Weller et
al., 2012). Also, once a whale were landed, the Tribe could not hunt
again until NMFS notified the Tribe whether the landed whale was a WNP
whale. In the unlikely event the Tribe did strike a WNP whale (in
either an even- or odd-year hunt), all hunting would cease unless and
until the Regional Administrator determined that measures were taken to
ensure that no additional WNP gray whales were struck during the waiver
period. In addition to limits on strikes, the regulations would impose
limits on approaches, hunt training activities, and unsuccessful strike
attempts, as explained in Subsection III(C) below. Finally, the
regulations would not allow hunting in the month preceding and the
month following the migration season (i.e., November and June) to
provide extra protection against striking or otherwise harming a WNP
whale.
B. Measures To Maintain PCFG Abundance by Limiting Lethal Impacts
The proposed regulations contain a number of restrictions to limit
PCFG mortality, with the goal of maintaining ENP gray whale
distribution and functioning within the PCFG feeding area. Consistent
with the Tribe's proposal, the regulations would prohibit hunting in
the portion of the Tribe's U&A within the Strait of Juan de Fuca, in
part as a human safety measure, but also because during the migration
season there is a higher proportion of PCFG whales in the Strait. Also,
the regulations would allow only 2-strikes during odd-year (summer/
fall) hunts, when PCFG whales are most likely to be present in the hunt
area. As an additional protection, the regulations would impose a limit
of one landed whale in odd-year hunts, creating the potential for a
single strike.
The proposed regulations would include a cumulative limit of 16
strikes on PCFG whales over the 10 years of the regulations (for an
average of 1.6 whales per year), of which no more than 8 could be
females. The strike limit for PCFG females is a precautionary measure
given recent evidence that PCFG whales may be recruited through
maternally directed site fidelity (Frasier et al., 2011; Lang et al.,
2011b). The regulations would also limit approaches, training
activities, and unsuccessful strike attempts on PCFG whales, as
discussed in Subsection III(C) below, to minimize the risk that the
hunt would cause PCFG whales to avoid the PCFG feeding area.
Under the proposed regulations, strikes and unsuccessful strike
attempts
[[Page 13609]]
would be counted against the PCFG strike limits in various ways
depending on the season and whether the whale's identity (PCFG or non-
PCFG) could be determined through photographic or genetic matching. The
regulations propose that any whale struck (landed or struck and lost)
during odd-year (summer/fall) hunts would count as a PCFG whale, unless
identified as a WNP gray whale. This method of accounting is
conservative, as PCFG whales are currently estimated to comprise about
48 percent of gray whales in the hunt area during this time
(Calambokidis et al., 2017). During even-year (winter/spring) hunts, a
struck whale identified as a PCFG whale would be counted against the
PCFG strike limit, while a whale not identified as PCFG would not count
against that limit. Struck whales for which identification could not be
performed due to lack of a useable photograph or tissue sample would be
counted in proportion to the estimated percentage of PCFG whales in the
hunt area during the month of the strike, based on the best available
information (the current estimate is that about 28 percent of whales in
the hunt area during the migration season are PCFG whales (IWC,
2018b)). Females are currently estimated to comprise 50 percent of the
PCFG (A. Lang, NMFS, personal communication, 2017), which would be
factored into the accounting for struck and lost whales if the animal's
sex was unknown.
Finally, in addition to these limits, the proposed regulations
would not allow hunting in a given year if the estimated PCFG abundance
for that year were below 192 whales or the Nmin were below 171 whales
(low abundance triggers). The purpose of this additional measure is to
ensure that, in the event PCFG abundance declines, for whatever reason,
the hunt would not exacerbate the decline. Given that recent PCFG
abundance estimates are around 240 whales with an overall increasing
trend and the proposed strike limits would result in PCFG mortality of
1.6 whales per year on average, a reduction on this scale would likely
be due to some cause unrelated to the hunt. Because published
population estimates typically lag one or more years behind the most
currently available survey data, estimates for an upcoming hunting
season would be projected using a population forecast model fit to the
time series of data. The threshold values of 192 and 171 represent the
best and minimum (20th percentile) estimates of abundance for the PCFG
in 2007. We selected these levels as the low-abundance triggers because
they are the lowest values estimated for the population during the
recent period of stability starting in 2002 (Calambokidis et al.,
2017).
The Tribe's request, as well as some of the DEIS alternatives, used
PBR-based approaches to manage impacts on PCFG whales instead of the
combination of PCFG strike limits and low-abundance triggers that we
are now proposing. After considering the best available scientific
information, including the Tribe's proposal, public and MMC comments on
the DEIS, and recommendations from the MMC, we chose the current
approach for a number of reasons. First, some public comments and the
MMC suggested that a PBR approach should account for total human-caused
mortality, including deaths and serious injuries that occur outside
U.S. waters. As noted above, the SAR for ENP gray whales (Carretta et
al., 2017) calculates an informational PBR overall for the PCFG, not an
allocation of PBR for U.S. waters, and reports only human-caused
mortality in U.S. waters. Though future SARs might attempt such
estimates, we currently lack sufficient information to do so.
Second, the PBR approach establishes a precautionary way (use of
PBR achieves the abundance goals in 95 percent of model runs) to manage
marine mammal stocks for which relatively little population data exist,
such as imprecise and infrequent abundance estimates or little
information on trends and productivity, as is often the case for
cetaceans and other marine mammals (Taylor et al., 2000; Wade, 1998).
For the PCFG, population dynamics are well understood (for example
population size and growth are measured accurately and frequently),
allowing us to make informed management decisions using other tools.
Over 20 years of annual photo-identification surveys have been
conducted for the PCFG, yielding relatively precise abundance estimates
compared to other cetacean populations. These estimates allow us to
employ the population forecast model mentioned above to assist in
making more timely decisions for managing PCFG mortality (NMFS, 2019a).
This approach is appropriate for the PCFG, where population information
is readily available and abundance has been stable over a period of
nearly 15 years.
Third, the PBR approach was developed for ``closed'' populations,
where the maximum rate of recruitment is determined in part by the
number of births that are biologically possible. In the case of the
PCFG, new recruits come from immigration as well as births, and whales
leave the population by emigration as well as death. While the
informational PBR in the SAR represents a useful tool for the agency to
monitor the stability of the PCFG, it may not reflect actual population
dynamics because recruitment for an open population is not limited by
reproductive biology. Given these considerations, we concluded that
reliance on the informational PCFG PBR was not the best available tool
for managing the proposed hunt and that the PCFG strike limits and low-
abundance triggers would provide a more robust and timely mechanism for
achieving our management goal of maintaining PCFG abundance.
C. Additional Management Considerations
In addition to the management goals stated above, the management
considerations described below informed our proposed waiver and
regulations.
1. Use of Marine Mammal Products
The proposed regulations would allow the Makah Tribe to use edible
and nonedible ENP gray whale products with certain restrictions. Tribal
members would be able to use, share or gift (i.e., voluntarily transfer
to another person without compensation), and barter (i.e.,
noncommercial exchange for items other than money) edible whale
products with other members, both within and outside the reservation.
Tribal members could also share edible products with non-members within
the reservation, but could only share them with non-members outside the
reservation as part of a gathering sanctioned by the tribal council
where limited quantities were served. This would allow Makah tribal
members wide use of edible products within the reservation, including
sharing with non-tribal members. Limitations on use outside the
reservation are intended to prevent opportunities for commercial
exchange. No person would be allowed to sell or purchase edible ENP
gray whale products.
For non-edible products, permissible uses would depend on the type
and location (on or off the reservation) of the product. The
regulations identify three types of non-edible products: Unaltered
products (those that have not been fashioned into handicrafts),
handicrafts that have been marked and certificated by the Tribe, and
handicrafts that have not been marked and certificated. Only
handicrafts made by tribal members and marked and certificated by the
Tribe could be sold or be possessed off-reservation by non-tribal
members. The regulations would allow tribal members
[[Page 13610]]
to freely exchange unaltered products with one another for personal use
or for later fabrication into handicrafts and would allow tribal
members to share their handicrafts with non-members without going
through the marking and certification process, however possession of
non-certificated handicrafts by non-tribal members would be allowed
only within the reservation boundaries. To ensure compliance with these
provisions, the Tribe would be required to maintain an official record
of all articles of Makah Indian handicraft certificated by the Tribe.
Some of the proposed definitions and concepts regarding the use of
marine mammal products are similar to those governing the take of
marine mammals by Alaska Natives. For example, the definition for
barter is consistent with agency regulations at 50 CFR 216.3 pertaining
to subsistence use of marine mammals by Alaskan Natives, and the
definition for Makah Indian handicrafts is largely based on the
agency's definition of authentic native articles of handicrafts in 50
CFR 216.3. Additionally, similar to regulations in 50 CFR 216.23 on
Alaska Native exceptions to the marine mammal take moratorium, the
proposed regulations provide for different uses of edible and non-
edible products, and restrict the location and types of transactions
that may occur.
2. Humane Killing
As explained in Section II, if NMFS issues a waiver and regulations
allowing a tribal hunt, the Tribe would be required to follow a
separate MMPA process to obtain a permit before carrying out a hunt (16
U.S.C. 1374). Prior to issuing any MMPA permit, NMFS must determine,
among other things, that the proposed method of taking is ``humane,''
as defined in the MMPA (16 U.S.C. 1362(4), 1374(b)). To ensure that
advances in science and methodology addressing efficiency and
humaneness are incorporated in a timely fashion, NMFS would regularly
review this issue through the permit process. The proposed regulations
provide that NMFS will convene a team of experts to evaluate hunt
humaneness and effectiveness after 8 gray whales have been struck, to
inform any subsequent hunt permits.
3. Approaches, Unsuccessful Strike Attempts, and Hunt Training
Provisions
Recognizing that actions by tribal hunters short of killing a gray
whale may affect whales and may constitute a take under the MMPA, the
proposed regulations would limit the number of approaches and
unsuccessful strike attempts, including those associated with hunt
training. The regulations define a ``hunting approach'' as causing a
vessel to be within 100 yards of a gray whale during a hunt. The 100-
yard limit is consistent with permit conditions NMFS imposes for
research vessels on large cetaceans (e.g., 60 FR 3775, January 19,
1995; 66 FR 29502, May 31, 2001), as well as guidelines for all
motorized and non-motorized vessels as defined in NMFS' ``Be Whale
Wise'' guidelines that recommend staying 100 yards (91 m) from all
marine mammals, noting that there is a regulation prohibiting
approaches closer than 200 yards (183 m) for killer whales in inland
waters of Washington (50 CFR 224.103(e)).
The regulations would authorize no more than 353 approaches of ENP
gray whales (including both hunting and training approaches) each
calendar year, of which no more than 142 could be of PCFG whales. As
with strikes, approaches would be accounted for proportionally in even-
year (winter/spring) hunts and presumed to all be PCFG whales in odd-
year (summer/fall) hunts. These values were analyzed in the DEIS and
are maximum estimates based on observations during the Tribe's hunt in
2000 (Gearin and Gosho, 2000). The purpose of this provision is to
limit the extent to which WNP and PCFG whales may be encountered and
possibly disturbed in the hunt area.
The proposed regulations would authorize no more than 18
unsuccessful strike attempts during even-year hunts and 12 unsuccessful
strike attempts during odd-year hunts. These limits are based on
experience gained from Makah gray whale hunts conducted in 1999 and
2000 and, as described in the DEIS, rely on a 6:1 ratio of unsuccessful
strike attempts to successful strikes. Each training harpoon throw
would count as an unsuccessful strike attempt because the level of
impact on whales is expected to be similar. Training harpoon throws
could occur in any month in even-numbered years but would be restricted
to the hunting season (July through October, when WNP whales are not
expected in the hunt area) in odd-numbered years to reduce the risk of
encountering WNP whales over the waiver period. All training harpoon
throws would count against the unsuccessful strike attempt limit in
effect during the calendar year of the throw. Similar to the limit on
approaches, the purpose of these provisions is to limit the risk of
non-lethal impacts, particularly to WNP and PCFG whales.
The proposed regulations recognize training as an important
component of the management of a tribal hunt. The proposed regulations
define training vessels as those not carrying hunting weapons; training
approaches as those made by training vessels; and a training harpoon
throw as the use of a blunted spear incapable of penetrating a whale's
skin. The proposed regulations would authorize training approaches at
any time but would limit the times when training harpoon throws could
occur as described above.
4. NMFS Oversight
Although we expect the Makah tribal government to manage any
hunting by tribal members, the proposed regulations anticipate an
ongoing oversight role by NMFS through the Regional Administrator for
the West Coast Region. The regulations include a number of provisions
that facilitate NMFS' oversight. For example, the Tribe must provide
NMFS advance notice of hunts; hunt parties must accommodate a NMFS
observer on hunt expeditions if requested; and the Tribe must allow
NMFS to sample and photograph landed whales. The first hunt permit must
be limited to a 3-year term (as opposed to the 5-year maximum under the
MMPA) to allow for adjustments in future years if areas for improvement
are identified.
5. Identification of Individual Gray Whales
The regulations include provisions for photographic (or genetic)
identification of WNP and PCFG gray whales. For PCFG whales, we expect
most identifications would be performed by the Cascadia Research
Collective (Cascadia), which has maintained photo-identification
catalogs for many years. Cascadia receives some but not all of its
catalog funding for gray whales from NMFS. Several researchers
participate in Cascadia's photo-identification program and provide
photographs to Cascadia. Photographs taken by researchers under NMFS
funding are also provided to the NMFS Marine Mammal Lab in Seattle,
Washington. For WNP gray whales, there are currently two catalogs
maintained by Russian researchers. The IWC is currently facilitating
the development of a unified WNP catalog and related database to be
held under the auspices of the IWC (IWC, 2017). Once developed, we
expect that Cascadia will have access to this unified catalog and be
able to provide identifications of WNP gray whales to NMFS via a
contractual agreement.
[[Page 13611]]
To ensure that the photo-ID requirements can be effectively
implemented, the regulations would require that, before issuing a hunt
permit to the Tribe, the Regional Administrator determine that there
are adequate photo-identification catalogs and processes available to
allow for the identification of PCFG and WNP whales. In addition to the
quality of the catalogs, there must be reliable processes in place for
making identifications. Currently Cascadia provides this service for
the PCFG catalog and has demonstrated an ability to make matches within
24 hours (J. Calambokidis, Cascadia Research Collective, personal
communication, 2017). As with the PCFG catalog, Cascadia and curators
of the WNP catalogs are able to rapidly compare newly obtained
photographs of whales with existing photographs in the WNP catalogs to
look for individual matches (J. Calambokidis, Cascadia Research
Collective, and Dave Weller, NMFS, personal communication 2019). NMFS
will either develop a contractual mechanism or in-house expertise prior
to issuing permits to ensure adequate catalogs for PCFG and WNP whales
are maintained and matches can be quickly made. Also, we have developed
a protocol that describes the requirements for adequate catalogs and
for photo and genetic identification processes (NMFS, 2019b).
6. Impacts to Species Other Than ENP Gray Whales
Under the proposed regulations, any hunt permit issued by the
Regional Administrator could require that hunters avoid specified areas
to prevent and/or reduce the risk of disturbance to Olympic Coast
National Marine Sanctuary resources such as seabirds and pinnipeds.
This provision is intended to protect other living resources in the
hunt area. Also, if a hunt for ENP gray whales is expected to result in
the incidental take of other marine mammals, the regulations require
that the Tribe obtain separate MMPA authorizations for such take, as
determined necessary by the Regional Administrator, before a hunt
permit may be issued.
IV. Consistency With MMPA Requirements
Relying on the best available scientific evidence and the statutory
factors related to gray whale biology and ecosystem considerations,
this section presents our determination that the proposed waiver and
the proposed regulations are consistent with MMPA requirements.
A. The Proposed Waiver Is Consistent With the MMPA
As discussed above, the MMPA requires that any decision to waive
the MMPA take moratorium be based on the best scientific evidence
available; be made in consultation with the MMC; and have due regard to
the distribution, abundance, breeding habits, and migratory movements
of the marine mammal stock subject to take. Also, we must be assured
that the taking is in accord with sound principles of resource
protection and conservation as provided in the purposes and policies of
the MMPA (16 U.S.C. 1361, 1371(a)(3)(A)).
1. The Proposed Waiver Is Based on the Best Scientific Evidence
Available
In developing the proposed waiver, we relied on the best available
scientific evidence related to the statutory requirements, including
the following: the most recent SARs for ENP and WNP gray whales
(Carretta et al., 2017); the 2015 DEIS (NMFS, 2015); the NMFS gray
whale stock identification workshop (Weller et al., 2013); the NMFS
analysis estimating the probability of encountering WNP gray whales
during a Makah hunt (Moore and Weller, 2018); IWC modeling of our
proposed regulations relative to IWC conservation objectives for North
Pacific gray whales (IWC, 2018b); and the NMFS biological report (NMFS,
2019a). We incorporate by reference those documents and the documents
cited in those reports.
2. The Proposed Waiver Was Made in Consultation With the MMC
Subsection V(D) describes the consultation we completed with the
MMC.
3. The Proposed Waiver Demonstrates Due Regard for the Distribution,
Abundance, Breeding Habits, and Times and Lines of Migratory Movements
of ENP Gray Whales
The biological report (NMFS, 2019a) provides a detailed description
of our consideration of the distribution, abundance, breeding habits,
and migration of ENP gray whales. Below we summarize our assessment of
those criteria.
Distribution
The proposed waiver is unlikely to have an appreciable effect on
the distribution of ENP gray whales through mortality of PCFG whales or
disturbance of migrating whales or feeding whales. The proposed waiver
and regulations demonstrate due regard for the possibility that hunting
could result in changes in distribution by including provisions
limiting mortality of PCFG whales and limiting interactions with ENP
whales in general and PCFG whales in particular. No more than 25 whales
could be struck, and only 16 of the strikes could be PCFG whales
(average 1.6/year), with a limit of 8 strikes (average 0.8/year) of
PCFG females. Unsuccessful strike attempts would be limited to 18
during even-year hunts and 12 in odd-year hunts, and approaches within
100 yards would be limited to 353 (142 PCFG) per year. In addition, the
PCFG low abundance triggers would require that hunting cease if PCFG
abundance declined below recent stable levels.
Through hunt-related mortality, the proposed waiver may reduce the
abundance of PCFG whales by up to 16 whales over a 10-year period. The
proposed waiver demonstrates due regard for this possibility by
including provisions to maintain PCFG abundance. We conclude that these
measures will ensure that the waiver does not reduce range-wide
distribution of the ENP stock, including distribution within the PCFG
range, based on the following considerations: (1) Agency modeling
indicates that the PCFG is likely to grow in the future with or without
a tribal hunt (NMFS 2018a). The proposed regulations include
protections in the event the PCFG declines rather than increases; (2)
If PCFG abundance continues to be stable, removal by hunting of 16 PCFG
whales over 10 years is projected to result in an abundance of around
227 whales, which is well above the lowest abundance level observed
during the recent period of stability. That level was 192 whales in
2007, and by 2015 the population had grown 25 percent to 243 animals;
(3) From 2002 through 2015, the PCFG grew from 197 to 243 animals,
which is a total of 46 whales, or an average annual increase of 3.5
whales over 13 years. At that rate of increase, the PCFG would grow by
an additional 35 animals over the 10 years of the proposed waiver. That
number is twice the maximum number of PCFG whales that could be killed
(16) under the proposed regulations; and (4) If PCFG abundance
declines, the low abundance trigger would ensure that no hunting will
occur if abundance falls below the levels observed during a recent 14-
year stable period, specifically 192 animals or an Nmin of 171 animals.
Also, the inclusion of an Nmin trigger provides a safeguard against
incomplete or lagging abundance estimates.
Though hunt-related activities might cause ENP gray whales to alter
their distribution in the hunt area
[[Page 13612]]
temporarily, it is unlikely that ENP gray whales will exhibit
noticeable redistribution during either the migration or feeding
seasons. Even-year hunts and training exercises conducted from December
through May would encounter mostly migrating whales that must pass
through the ocean portion of the Makah U&A during their lengthy north-
and southbound transits. These whales are slow but steady swimmers that
often exhibit directed swimming and predictable breathing and dive
patterns (Jones and Swartz, 2002). Whales travelling at 3-6 miles per
hour (5-10 km per hour; Jones and Swartz, 2002) would be able to
transit the widest portion of the Makah U&A (approximately 32 miles or
51 km north-south) in several hours. During migration, gray whales
generally remain close to shore (especially where the continental shelf
is narrow) and the best available information indicates that most
northbound and southbound whales migrate within 27 miles (43 km) of
shore (Pike, 1962; Green et al., 1992; Green et al., 1995). Some
researchers have suggested that gray whales alter their migration
distance from shore in response to vessels and other human activity
(Rice, 1965; Hubbs and Hubbs, 1967; Wolfson, 1977; Schulberg et al.,
1989; Mate and Urb[aacute]n-Ramirez, 2003), however the ENP population
has also demonstrated a tolerance and resiliency to decades of active
hunting by Chukotkan natives (Borodin et al., 2012; IWC, 2016).
During even-year hunts, adverse weather conditions in the Makah U&A
in winter and early spring coupled with shorter periods of daylight
would keep most hunts and training exercises close to shore and of
shorter duration than during the summer. There would be only a few
vessels associated with the hunt (generally 5 or less). Chukotkan
hunters typically use a similar number of motorized vessels to pursue
individual whales (IWC, 2018c). Since the 1950s, Chukotkan hunters have
landed, on average, over 100 ENP gray whales per year (Borodin et al.,
2012), and an average of 126 whales per year during the past decade
(IWC, 2016). During that decade the majority of whales have
consistently been killed in the Chukotsky region with no apparent
change in the distance offshore that whales are killed (IWC, 2016).
Given these considerations, it is reasonable to expect that most of the
roughly 27,000 ENP whales would be subject to little or no hunting
pressure in the Makah U&A. Those animals subject to hunting and hunt
training activities would experience them as temporary and localized
nearshore events within the vast area of the Pacific Ocean. We
therefore expect that whales traveling through the Makah U&A during the
migration season will not change their migration patterns and avoid the
area.
Odd-year hunts during July through October would likely encounter
whales exhibiting feeding behavior, including milling in small,
localized areas close to shore and typically within 3 miles (5 km) of
shore (Brueggeman et al., 1992; Darling, 1984; Sumich, 1984;
Mallon[eacute]e, 1991; Dunham and Duffus, 2001; Scordino et al., 2011).
Some animals have been seen clustering relatively far offshore (12-16
miles or 19-26 km) but these sightings are considered unusual
(Calambokidis et al., 2009). During summer hunts and training exercises
most whales would be found in the PCFG range from northern California
to northern Vancouver Island, within which the Makah U&A is a
relatively small portion (less than 5 percent of the coastline in the
PCFG range). Whales are known to focus on specific areas within this
range but also move extensively in search of food (Calambokidis et al.,
1999; Calambokidis et al., 2004; Calambokidis et al., 2014). Odd-year
hunts would result in fewer whales being struck (1 or 2 per year) than
in even-year hunts (up to 3 per year). As noted above, despite hundreds
of whales being hunted and killed in Chukotkan hunts (many of which are
killed during the summer months) there has not been a discernible
change in the availability and location of hunted whales (IWC, 2016).
The proposed waiver allows for over 350 approaches of gray whales
each year, most of these approaches would likely involve paddle-driven
canoes that, compared to the motorized vessels used in Chukotkan hunts,
have much less speed and maneuverability to pursue and maintain close
contact with approached whales. This is a very small number of
approaches compared with what NMFS authorizes for research permits.
Activities that employ vessel approaches on large whales are regularly
reviewed by NMFS under the MMPA. When issuing permits under the MMPA,
NMFS generally limits the number of approaches within defined distances
(typically 100 yards or less for large cetaceans) because of the
potential for such approaches within those limits to affect or disrupt
whale behavior. For example, NMFS Permit #15569 for ENP gray whales (77
FR 35657, June 14, 2012) authorized 5,000 approaches of gray whales
over the course of 5 years. While this is a large number of authorized
approaches, the NEPA analysis prepared for that permit found that
approaches during research have not been shown to result in long-term
or permanent adverse effects on individual animals or their behavior
regardless of the number of times the activity occurs because the
frequency and duration of the activities allows adequate time for
animals to recover from any potential adverse effects such that
additive or cumulative effects of the action on its own are not
expected. That analysis further notes that no measurable effects on
population demographics are anticipated because any sub-lethal effects
are expected to be short-term, and the proposed action is not expected
to result in mortality of any animals. Given these considerations, we
expect that animals exposed to approaches and hunt training activities
within the Makah U&A would experience the encounter as a temporary and
localized nearshore event that would be insufficient to discourage them
from a known source of food. As a result, we do not expect the proposed
waiver to cause PCFG whales to abandon the Makah U&A or to otherwise
affect ENP gray whale distribution.
Abundance
The proposed waiver and regulations are unlikely to have an
appreciable effect on the ENP gray whale stock's abundance. The
proposed waiver would result in a maximum of 3 strikes/deaths per even
year hunt and 2 strikes/deaths per odd year hunt, or an average of 2.5
deaths per year. Two and a half animals represent 0.009 percent of the
population of 27,000 animals. This level of mortality is a small
fraction of the annual variability in the stock's abundance (~16,000-
27,000 animals since the mid-1990s) and well below the PBR level (624
whales per year) for the ENP gray whale stock (Carretta et al., 2017).
This small number of removals would not have an appreciable effect on
the stock's abundance, especially given that any portion of the IWC
quota for ENP gray whales that is not harvested by the Makah Tribe is
likely to be allocated to Chukotkan hunters, based on recent practice
and as articulated in a joint U.S.-Russia monitoring agreement (e.g.,
Fominykh and Wulff, 2017). If that practice continues, the total
harvest of ENP gray whales would be the same with or without the
waiver.
Breeding Habits
Male and female gray whales are thought to be promiscuous breeders
and copulate repeatedly with more than one mate (Jones and Swartz,
1984). Mating occurs throughout the southward migration in the
migratory corridor with a mean conception date of December 5
[[Page 13613]]
(Rice and Wolman, 1971). Females that have not successfully bred may
enter a second estrous cycle within 40 days (Rice and Wolman, 1971).
Hunting or hunt training is most likely to overlap with gray whale
breeding in December-January. As described in the DEIS Subsection
3.15.3.2.2, Description of Weather and Sea Conditions in the Project
Area, NMFS expects that few if any hunt activities would occur in
December-January due to inclement weather (NMFS, 2015). While it is
possible that hunt activities could occur in December-January and could
encounter mating whales, we do not expect adverse biological effects
due to the small portion of the migration corridor where hunt
activities could occur. The limited level of hunt activity likely to
occur, and the fact that whales can mate repeatedly throughout the
migration, suggests that any whales disturbed by hunt activities would
have additional opportunities to breed.
Times and Lines of Migratory Movements
Based on the analysis above regarding effects on distribution of
ENP gray whales, the proposed waiver is not expected to affect the
times and lines of migratory movements of ENP gray whales.
4. NMFS Is Assured That the Proposed Waiver Is in Accord With the
MMPA's Purposes and Policies
The purposes and policies of the MMPA include maintaining marine
mammal stocks as a significant functioning element in the ecosystem of
which they are a part, maintaining the health and stability of the
marine ecosystem, and obtaining an optimum sustainable population
keeping in mind the carrying capacity of the habitat (16 U.S.C. 1361).
Thus we considered the effects of the proposed waiver on both the
ecosystem and on the ENP stock and documented those findings in the
Biological Report (NMFS, 2019a). We summarize those findings below.
(a) Effect of the Proposed Waiver on the Role of ENP Gray Whales in
Their Ecosystem, and on the Health and Stability of That Ecosystem
The MMPA does not specify a geographic scale for identifying marine
mammal ecosystems. Because of their long migration route, ENP gray
whales occupy multiple large marine ecosystems at different times. The
hunt area is located within what oceanographers call the California
Current System (Sherman and Alexander, 1989) or Province (Longhurst,
1998), a part of the North Pacific Gyre that moves cool ocean waters
south along the western coast of North America, beginning off British
Columbia, flowing southward past Washington, Oregon and California, and
ending off Baja California. Within that province, scientists regularly
study and predict physical and biological features and processes in the
northern California Current ecosystem, which is generally described as
extending from northern California to Vancouver Island (e.g., Field et
al., 2001; Field et al., 2006; Hickey and Banas, 2008; Sydeman and
Elliott, 2008; Harvey et al., 2017; Wells et al., 2017), though some
studies extend only to the U.S.-Canada border in the north because of
differing management regimes between the two countries (Field et al.,
2001; Field et al., 2006). For purposes of the MMPA analysis, we took a
precautionary approach of examining the impact of the proposed waiver
and regulations on the smaller northern California Current ecosystem.
This area also corresponds to the seasonal range of the PCFG.
The entire range of the ENP gray whale stock is vast and crosses
many large marine ecosystems, including the Pacific Central American
Coast, California Current, Gulf of Alaska, and Bering and Chukchi Seas
(Longhurst, 1998; Sherman and Alexander, 1989). The proposed waiver
could result in the removal of up to 2.5 whales annually, on average,
from the hunt area. This level of removal is an order of magnitude less
than the natural variability of the population, which numbered nearly
27,000 individuals in 2016, and would not have an appreciable effect on
the functioning of ENP gray whales as an element of these large
ecosystems, or on the health of the ecosystems themselves. To the
extent approaches and attempted strikes affect whales, those actions
would do so in a very small portion of one of these large ecosystems
and would therefore be unlikely to result in a change in gray whale use
of any of these large ecosystems.
Also, the proposed waiver will not result in gray whales ceasing to
be a significant functioning element of the smaller northern California
Current ecosystem or the environment of the northern Washington coast
for at least two reasons. First, these habitats are shaped by dynamic,
highly energetic, large-scale processes, and the role of ENP gray
whales in structuring these habitats is limited. Second, the proposed
waiver and regulations are unlikely to result in an appreciable
decrease in the numbers of whales present in the northern California
Current ecosystem or the northern Washington coastal environment
because of the limits on ENP and PCFG strikes.
Based on the best available evidence as summarized in the
Biological Report, we conclude that the proposed waiver and regulations
would not cause ENP gray whales to cease to be a significant
functioning element in the ecosystem of which they are a part.
To summarize:
ENP gray whales annually traverse five large marine
ecosystems;
Average annual removal by Makah hunters of up to 2.5 ENP
gray whales from a population of approximately 27,000 individuals would
not have an appreciable effect on the functioning of ENP gray whales in
any of these large marine ecosystems or on the ecosystems themselves;
The northern California Current ecosystem is the smallest
recognized marine ecosystem that encompasses the area of the proposed
hunt;
ENP gray whales play a limited role in structuring the
northern California Current ecosystem, which is shaped by dynamic,
highly energetic, large-scale ecosystem processes;
There will continue to be approximately 27,000 ENP gray
whales migrating along the coast through the northern California
Current ecosystem, thus the functioning of ENP gray whales in that
ecosystem will not change;
Although it is not considered a separate ecosystem, even
at the scale of the northern Washington coast (the coastal portion of
the Makah U&A) we would not expect the proposed waiver to have any
meaningful effects on the marine environment, because ENP gray whales
play a limited role in structuring the habitat, which is shaped by
dynamic, highly energetic, large-scale ecosystem processes;
The best available evidence indicates the proposed waiver
would not cause gray whales to abandon the hunt area as a summer
feeding area or interfere with the PCFG being a significant functioning
element of their ecosystem during the summer feeding period in the PCFG
range.
(b) Effect of the Proposed Waiver on the Status of the ENP Gray Whale
Stock Relative to OSP
The proposed waiver would result in a maximum of 3 strikes/deaths
per even year hunt and 2 strikes/deaths per odd year hunt, or an
average of 2.5 deaths per year. Two and a half animals represent 0.009
percent of the population of 27,000 animals. This number of removals
would not have a discernable effect on the status of the ENP stock
relative to OSP. Moreover,
[[Page 13614]]
any portion of the IWC quota for ENP gray whales that is not harvested
by the Makah Tribe is likely to be allocated to Chukotkan hunters,
based on recent practice and as articulated in joint U.S-Russia
monitoring agreements dating back to the IWC catch limit set in 2003
(e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and DeMaster, 2012;
Fominykh and Smith, 2016; Fominykh and Wulff, 2017). Assuming this
practice continues, the proposed waiver would have no net effect on ENP
gray whale abundance or OSP.
B. The Proposed Regulations Are Consistent With the MMPA
The MMPA directs NMFS to adopt regulations implementing an MMPA
waiver that NMFS deems necessary and appropriate to insure that the
taking will not be to the disadvantage of the affected stock and will
be consistent with the purposes and policies of the MMPA (16 U.S.C.
1373(a)). Regulations must be based on the best scientific evidence
available and consultation with the MMC. NMFS must give full
consideration to all relevant factors affecting the extent to which the
marine mammals may be taken, including but not limited to: Existing and
future levels of marine mammal stocks; international treaty and
agreement obligations of the United States; the marine ecosystem and
related environmental considerations; the conservation, development,
and utilization of fishery resources; and, the economic and
technological feasibility of implementation (16 U.S.C. 1373(b)). In
addition to these factors, we have considered the potential effects of
the proposed regulations on the WNP stock.
1. The Proposed Regulations Are Based on the Best Scientific Evidence
Available and Consultation With the Marine Mammal Commission
See Subsections IV(A)(1) and IV(A)(2) above.
2. The Proposed Regulations Will Not Disadvantage the ENP Gray Whale
Stock
Because the proposed regulations will not affect the status of the
ENP gray whale stock relative to its OSP, we conclude that the proposed
regulations will not disadvantage the ENP gray whale stock.
3. The Proposed Regulations Are Consistent With the Purposes and
Policies of the MMPA
These findings are described above in Subsection IV(A)(4) above.
4. We Have Fully Considered the Effects of the Proposed Regulations on
the Statutory Factors
(a) Existing and Future Levels of Marine Mammal Species and Population
Stocks
The proposed regulations are unlikely to have any effect on the
future levels of ENP gray whales, as described above under Subsection
IV(A)(4)(b), Effect of the proposed waiver on the status of the ENP
gray whale stock relative to OSP.
(b) Existing International Treaty and Agreement Obligations of the
United States
The proposed regulations limit the harvest of ENP gray whales
consistent with the ICRW Schedule, Article 13, and the U.S.-Russia
bilateral agreement. In March 2018 the U.S. requested that the IWC
Scientific Committee (specifically the Standing Work Group on
Aboriginal Subsistence Whaling Management Procedures or AWMP) evaluate
a potential Makah gray whale hunt under the proposed regulations. The
goal of the AWMP's review was to determine if the aboriginal harvest of
gray whales under hunt proposals by the U.S. and the Russian Federation
would meet the IWC's conservation objectives. Those objectives focus on
ensuring that aboriginal hunt requests (1) do not seriously increase
risks of extinction (highest priority), (2) enable hunts ``in
perpetuity,'' and (3) maintain stocks at the highest net recruitment
level (and if below that, ensure they move towards it). After modeling
the available data (i.e., biology, ecology, abundance and trends,
removals including direct hunting, ship strikes and bycatches), the
AWMP agreed (and the Scientific Committee supported) that the proposed
hunt management plan for a Makah tribal hunt meets the IWC conservation
objectives for ENP gray whales as well as for PCFG and WNP gray whales
(IWC, 2018b).
(c) The Marine Ecosystem and Related Environmental Considerations
The biological report (NMFS, 2019a) describes our consideration of
effects on the marine ecosystem and Subsection IV(A)(4)(a) describes
our conclusion regarding ecosystem function and health. The DEIS (NMFS,
2015) describes our consideration of other elements of the marine
environment.
(d) The Conservation, Development, and Utilization of Fishery Resources
The proposed regulations would have no effect on the conservation,
development, or utilization of fishery resources.
(e) The Economic and Technological Feasibility of Implementation
Subsection 4.6.2.5 of the DEIS analyzes the economic costs of hunt
management and law enforcement. NMFS' costs would primarily involve the
continuation of longstanding whale surveys and photo-identification
work, with additional funding of approximately $2,000 per day of
hunting needed to support NMFS monitoring and enforcement personnel. As
noted in the DEIS, the annual NMFS budget for marine mammal management
in the West Coast Region is over $700,000, so such costs are feasible
to obtain and are not expected to affect NMFS' ability to regulate a
hunt. The Tribe's 1999 gray whale hunt successfully demonstrated the
economic and technological feasibility of prosecuting a hunt according
to the proposed regulations. Also, the Tribe has a detailed Tribal
Whaling Ordinance in effect, which demonstrates the Tribe's ability to
regulate a tribal ceremonial and subsistence whale hunt (Makah Tribe,
2013). The proposed regulations include provisions for matching
photographs of killed whales to those of known whales, a procedure
which is technologically feasible (Calambokidis et al., 2017; NMFS,
2019b). The proposed regulations include provisions for marking and
tracking handicrafts made from harvest whale parts, which is
technologically feasible.
C. The Proposed Waiver and Regulations Appropriately Manage Risk to WNP
Gray Whales
In evaluating the Tribe's waiver request, we determined that the
potential effect of the proposed hunt on the WNP stock was an
additional relevant factor that should be considered in the proposed
regulations. To evaluate the risk to WNP gray whales we considered
both: (1) The probability of encountering a WNP gray whale (exposure)
during an ENP gray whale hunt or training; and (2) the likelihood that
an encounter would kill or otherwise harm a WNP whale. To address the
first question and to reduce the risk of encountering WNP gray whales
during an ENP hunt, the regulations include several important
restrictions: (1) Hunting would only be allowed every other year
(proposed for even-numbered years) during the migration season when WNP
gray whales may be present; (2) only three whales could be struck in an
even-year hunt; (3) training harpoon throws would be restricted to the
non-migration season in odd-numbered years; and (4)
[[Page 13615]]
if a WNP is confirmed to be struck in any year, the hunt will cease
until steps are taken to ensure such an event will not recur.
To address the second question, we considered the biological impact
of strikes, strike attempts, and approaches on WNP whales. Striking a
WNP gray whale has the potential to kill or injure it. An unsuccessful
strike attempt, training harpoon throw, or approach of a WNP gray whale
might or might not harm a whale by disrupting its behavior, depending
on the reaction of the whale to the encounter.
With hunting at the time of year when WNP gray whales may be
present limited to every other year and strikes limited to 3 (and thus
limited to 15 over the 10-year regulation period), there is about a 6
percent probability of hunters striking one WNP gray whale over the 10
years of the regulations (Moore and Weller, 2018). This probability is
the most likely point estimate; the 95 percent confidence interval
ranges from 3.0 percent to 9.3 percent. Stated another way, the most
likely point estimates indicate that one in 17 10-year hunt periods
(i.e., one year out of 170) would result in an individual WNP gray
whale being struck by Makah hunters, if the Tribe made the maximum
number of strike attempts allowed in even-year hunts and if ENP and WNP
population sizes and migration patterns remained constant (Moore and
Weller, 2018). If the 95 percent confidence interval is considered, the
expectation is that one WNP whale would be struck out of every 108
years of hunting. By comparison, the PBR for WNP gray whales reported
in the current SAR is 0.06 WNP gray whales per year, or approximately 1
whale every 17 years. Based on this analysis, we conclude that the risk
of a lethal take or injury to WNP gray whales posed by the proposed
regulations is slight.
With unsuccessful strike attempts during even-year hunts limited to
18, there is about a 30 percent probability (95 percent confidence
interval, range from 17 percent to 44 percent) that one WNP whale would
be subjected to an unsuccessful strike attempt over the 10 years of the
regulations (Moore and Weller, 2018), or one such encounter every 33
years if the Tribe made the maximum number of strike attempts allowed
in even-year hunts and if ENP and WNP population sizes and migration
patterns remained constant (Moore and Weller, 2018). If the 95 percent
confidence interval is considered, the expectation is that one WNP
whale would be subjected to an unsuccessful strike attempt every 23
years. Making an unsuccessful strike attempt or training harpoon throw
on a WNP gray whale is a concern but would not result in death or
injury and would likely elicit a response similar to that observed in
whales that are tagged or biopsied for research purposes (DEIS
Subsection 4.4.3.3.2, Change in Abundance and Viability of the WNP Gray
Whale Stock). As summarized above in Subsection III(C)(3), the best
available scientific evidence suggests that such encounters would be
unlikely to have a lasting effect on the health or behavior of the
affected animal because there is no mortality associated with
unsuccessful strike attempts and impacts associated with such an event
are temporary.
Based on the best available information and as observed during the
Chukotkan hunt, gray whales would likely display a range of reactions
to hunting- or training-related approaches, and it is uncertain whether
any of the approaches would disrupt normal whale behavior. However, to
be precautionary we believe it is reasonable to conclude that some of
those approaches have the potential to disrupt whale behavior, so the
regulations limit the number of approaches. The geographical area where
the approaches might occur is not known to be biologically important
for WNP gray whales and the very limited number of likely approaches on
WNP whales does not create the magnitude, frequency (repetitive,
chronic), and duration of encounter that might cumulatively disrupt
their behavior (NMFS, 2015). Actual approach distances are not possible
to predict. However, as was the case in the Tribe's 1999 and 2000
hunts, even-year hunts would occur during a time when gray whales are
migrating, which may further limit close and sustained approaches on
gray whales and chronic, repeated, or cumulative exposure to individual
whales. Also, some of the approaches could be made during training
exercises involving only paddle-driven canoes that have limited ability
to pursue and maintain close contact with whales that are actively
migrating.
Our risk analysis predicts that approximately 14 WNP gray whales
would be approached within 100 yards over the duration of the waiver
period (Moore and Weller, 2018). This analysis assumed that all 353
approaches would be made each year, and all of them, including all
training approaches, would be made between December 1 and May 31, when
WNP gray whales could be present in the hunt area. These conservative
assumptions are a useful management tool for understanding the maximum
potential impacts to WNP gray whales, but present an unlikely scenario
given that hunting in odd-numbered years may also be authorized during
the summer and fall when weather and ocean conditions are more suitable
for hunting and training. In our 2015 DEIS, we estimated that there
would be almost twice as many suitable days for hunting and training
during odd-year hunts as during even-year hunts. So, for example, if
half of the allowed number of approaches were made during even-year
hunts, we would expect that less than one WNP gray whale (0.7) would be
approached per year.
Even if all approaches were made between December 1 and May 31,
potentially exposing 1.4 WNP gray whales per year to an approach, we
consider any risks to such whales to be slight because there is no
mortality associated with approaches, some approaches may be so far
away as to be undetectable by the whales, and any reactions by
approached whales would likely be temporary and not interfere with the
whales' active migration.
To summarize, under the proposed regulations, there is a 6 percent
probability of killing a gray whale over the 10-year waiver period (put
another way, it is likely that one WNP whale would be killed every 170
years), which we consider to be a remote risk. There is a 30 percent
probability of an unsuccessful strike attempt on at least one WNP gray
whale (or one every 33 years) and a near 100 percent probability of a
WNP gray whale being approached (average of 1.4 whales per year), based
on conservative assumptions, over the 10-year period of the regulations
(Moore and Weller, 2018). We find that this constitutes an acceptable
level of risk for management purposes and under the MMPA. In addition,
prior to issuing final regulations, NMFS would be required to ensure,
pursuant to the consultation requirements of ESA section 7(a)(2), that
the hunt would not be likely to jeopardize the WNP stock (16 U.S.C.
1376(a)(2)).
V. Required Statements Related to the Intention To Issue Regulations
The MMPA requires that, either before or concurrent with
publication of our notice of intent to prescribe regulations, we
publish certain statements (16 U.S.C. 1373(d)). This section includes
those statements.
A. A Statement of the Estimated Existing Levels of the Species and
Population Stocks of the Marine Mammal Concerned
ENP gray whales are the subject of the proposed waiver and
regulations and
[[Page 13616]]
are recognized as a population stock under the MMPA (Carretta et al.,
2017). The most recent population assessment by Durban et al. (2017)
estimates the abundance of the ENP gray whale stock at 24,420 to 29,830
whales, with a point estimate of 26,960 and resultant minimum abundance
estimate, used for calculating PBR, of 25,849.
B. A Statement of the Expected Impact of the Proposed Regulations on
the Optimum Sustainable Population of Such Species or Population Stock
The proposed regulations will not have a discernible effect on the
ENP gray whale stock relative to its OSP (see Subsection IV(B), The
Proposed Regulations are Consistent with the MMPA).
C. A Statement Describing the Evidence Before the Agency That Forms the
Basis for the Regulations
In proposing the waiver and regulations, we relied on the
references cited in the March 2015 Draft Environmental Impact Statement
on the Makah Tribe Request to Hunt Gray Whales (NMFS, 2015). We also
list relevant references to the scientific literature in a separate
biological report (NMFS, 2019a), which identifies other and more recent
studies not included in the DEIS. We incorporate by reference the 2015
DEIS and the Biological Report and their associated references. The
proposed regulations were also informed by the public comments on the
DEIS and our consultation with the MMC.
D. Any Studies or Recommendations Made By or For the Agency or the MMC
That Relate to the Establishment of the Regulations
Relevant studies made by or for NMFS include those on gray whale
abundance and stock structure (Punt and Wade, 2012; Weller et al.,
2013; Calambokidis et al., 2017), estimation of potential biological
removal levels and human caused mortalities (Carretta et al., 2017),
forecasting PCFG abundance estimates (NMFS, 2019a), estimating the
probability of encountering WNP gray whales (Moore and Weller, 2018)
and modeling the proposed regulations relative to IWC conservation
objectives for North Pacific gray whales (IWC, 2018b). Also, the DEIS
(NMFS, 2015) analyzes the principle components of a Makah gray whale
hunt.
Regarding recommendations by the Marine Mammal Commission, the MMC
submitted comments on the 2015 DEIS and provided written advice in
response to two NMFS requests for consultation in 2017. We first
requested consultation with the MMC on May 12, 2017, and shared a
preliminary draft of our proposed waiver determination and regulations
along with supporting rationale. The MMC replied to our request with a
letter dated July 11, 2017, endorsing our plan to issue a waiver
determination and recommending several issues for further
consideration. After further evaluation and review, and based on
comments from the MMC and others on the DEIS related to managing
impacts to PCFG whales, we modified our proposal to adopt a non-PBR
framework for the PCFG and presented it to the MMC for continued
consultation on December 19, 2017. On March 13, 2018, the MMC replied
with a second letter expressing support for our modified regulations
and encouraging flexibility in hunt management so as to give due regard
to the Tribe's identified subsistence and cultural needs. The following
summarizes the MMC's advice contained in those consultation letters.
MMC Consultation Letter Dated July 11, 2017:
1. The MMC believed that the draft documents lay out a prima facie
case that the requirements for granting a waiver under the MMPA have
been met and recommended that NMFS proceed with issuing a proposed rule
and scheduling an administrative hearing in accordance with the
requirements of section 103 of the MMPA and sections 554, 556, and 557
of the Administrative Procedure Act.
2. The MMC noted that its primary concern has been the need to
avoid, to the maximum extent practicable, the accidental taking of gray
whales from the endangered WNP stock, and secondarily, to avoid taking
that could disadvantage the PCFG regardless of whether it is considered
a stock. The MMC acknowledged that the design of an odd year/even year
hunting pattern is key to both controlling the harvest of PCFG whales
and minimizing any take of WNP gray whales.
3. The MMC recommended that NMFS clarify what the implications
would be if the PCFG were recognized as a separate stock, especially
whether hunting would be allowed to continue under this rule or if new
rulemaking would be necessary to consider the status of PCFG whales
relative to OSP before the taking of PCFG whales could be authorized.
4. The MMC recommended that the ability to distinguish between WNP
and ENP gray whales be addressed in the rulemaking, either by including
mechanisms to ensure that current survey and cataloging efforts are
maintained or by making hunting during the specified season contingent
on having available and reliable means of distinguishing WNP or PCFG
whales (as relevant) from other whales.
5. The MMC recommended that NMFS review the proposed numbers of
takes that would be authorized for approaches and attempted strikes,
and suggested that NMFS consider separate authorizations for attempted
strikes and approaches depending on whether they occur during hunting
or training exercises. The MMC further noted that it would be
unfortunate, and perhaps counterproductive to achieving an effective
and efficient hunt, to limit the level of training because of the
specified caps.
6. The MMC recommended that NMFS revise the provisions of the draft
rule to allow training activities to be conducted throughout the year,
subject to appropriate limitations, despite one of the take limits for
hunting activities (e.g., strikes or landings) having been reached.
7. The MMC recommended that NMFS discuss with the Makah Tribe
provisions related to how whale meat and non-edible products can be
used and distributed by Tribal members to determine whether there are
any proposed restrictions on the use and distribution of whale products
to which the Tribe objects and, if there are, request that the Tribe
suggest alternatives for consideration as part of the rulemaking.
8. The MMC recommended that NMFS consider building some flexibility
into the regulations to allow a small increase in the numbers of whales
that can be struck and landed in odd-year hunts should it become
necessary to close the even-year hunt.
9. The MMC recommended that NMFS address whether there are
circumstances (e.g., a die-off of gray whales) that would prompt it to
revisit or revise the regulations before the end of their anticipated
lifetime.
MMC Consultation Letter Dated March 13, 2018
1. The MMC reiterated its earlier primary concerns regarding the
need to avoid, to the maximum extent practicable, the accidental taking
of gray whales from the endangered WNP stock, and secondarily, to avoid
taking that could disadvantage PCFG whales regardless of whether they
are considered a separate stock. The MMC noted that our modified
proposal (compared to our initial request for consultation) is not
expected to have any negative effect on the possibility that WNP gray
whales will be taken and,
[[Page 13617]]
as such, the MMC stands by its earlier comment that the risk of killing
or seriously injuring a WNP gray whale appears to be sufficiently low
that it should not present an insurmountable obstacle to NMFS moving
forward with a proposed rule to authorize the Makah Tribe to take
whales from the ENP stock.
2. The MMC agreed that, given the availability of reliable
information on the abundance, trends, and rates of recruitment for the
PCFG, there is no reason to manage removals under a PBR framework.
Further, the MMC believed that setting the allowable strike limit at 16
PCFG whales over a 10-year period should provide reasonable certainty
that the proposed level of hunting PCFG whales will not have adverse
impacts on this group of animals.
3. The MMC noted that proposed harvest levels (no more than one
whale landed per year during odd-year hunts and up to three whales
landed per year during even-year hunts) falls well short of the Makah
Tribe's identified subsistence need and the Tribe's initial waiver
request, and encouraged NMFS to assess the relationship between the
adopted harvests levels and the Tribe's subsistence and cultural needs
as part of the final environmental impact statement on this action.
4. The MMC concurred--from a biological standpoint--with NMFS'
proposal to limit strikes on female PCFG whales, but noted that the
strike limit may cause additional shortfalls in meeting the Tribe's
subsistence needs. Therefore, the MMC recommended that NMFS and other
appropriate experts work with the Tribe to develop hunting methods that
minimize the chances that the female strike limit will be reached early
in any 10-year period.
5. The MMC agreed that setting such minimum abundance thresholds
for the PCFG is appropriate and that the values proposed are good
starting points for examination in the course of the rulemaking.
However, the MMC also noted that this approach was akin to an on-off
switch and suggested that NMFS explore whether strikes might be reduced
more gradually using intermediate abundance thresholds.
VI. Classification
National Environmental Policy Act
NMFS has prepared a DEIS under the requirements of NEPA and
published a notice of availability on March 20, 2015 (80 FR 14912).
NMFS believes that a waiver of the MMPA take moratorium along with
federally approved hunt regulations for gray whales constitutes a major
federal action subject to the requirements of NEPA. Therefore, these
proposed regulations will not be finalized until a final Environmental
Impact Statement has been issued and a Record of Decision is made.
Endangered Species Act
The ESA provides for the conservation of endangered and threatened
species of fish, wildlife, and plants. The program is administered
jointly by NMFS (for most marine species) and the U.S. Fish and
Wildlife Service (for terrestrial and freshwater species). The ESA
requires federal agencies to consult with NMFS or the U.S. Fish and
Wildlife Service to ensure that activities authorized, funded, or
carried out by federal agencies are not likely to jeopardize the
continued existence of a listed species or result in the destruction or
adverse modification of designated critical habitat. Prior to issuance
of final regulations, NMFS will fulfill its obligations under section
7(a)(2) of the Endangered Species Act for the ESA-listed species and
designated critical habitat in the project area.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA)
requires an agency to prepare a regulatory flexibility analysis of any
rule subject to notice of proposed rulemaking requirements under the
Administrative Procedure Act unless the agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. The RFA defines small entities, in pertinent part, as
small businesses, small organizations and small governmental
jurisdictions. This rule only affects a single tribe. Tribes are not
considered small entities under the RFA. Accordingly, an attorney
acting on behalf of the Chief Counsel for Regulation of the Department
of Commerce, in accordance with the RFA, has reviewed this proposed
rule and certifies that it will not have a significant economic impact
on a substantial number of small entities. Therefore, neither the RFA
nor any other law require a regulatory flexibility analysis, and none
has been prepared.
Paperwork Reduction Act
This proposed rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act of 1980,
because the Paperwork Reduction Act does not apply to record-keeping
requirements of a single tribe.
Executive Orders 12866--Regulatory Planning and Review, 13771--Reducing
Regulation and Controlling Regulatory Costs, and Executive Order13563--
Improving Regulation and Regulatory Review
Executive Order (E.O.) 12866 provides that significant regulatory
actions be submitted for review to the Office of Information and
Regulatory Affairs, and OMB. E.O. 13771 provides that it is essential
to manage the costs associated with the governmental imposition of
private expenditures required to comply with federal regulations.
Toward that end, E.O. 13771 directs that for every one new regulation
issued, at least two prior regulations be identified for elimination,
and that the cost of planned regulations be prudently managed and
controlled through a budgeting process. In accordance with 16 U.S.C.
1373(d), the regulations proposed here are subject to 50 CFR 228.3,
which provides that this proceeding will be governed by 5 U.S.C. 556
and 557 of the Administrative Procedure Act. Executive Order 12866 per
Section 3(d) does not apply to regulations issued in accordance with
the formal rulemaking procedures of 5 U.S.C. 556, 557, thus the
regulatory action is not considered significant under E.O. 12866.
Executive Order 13771 only applies to regulatory actions that are
defined as significant under E.O. 12866. Therefore, this proceeding is
exempt from review under E.O. 12866 and E.O. 13771.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The E.O. directs agencies to consider regulatory approaches that reduce
burdens and maintain flexibility for the public where these approaches
are relevant, feasible, and consistent with regulatory objectives.
Executive Order 13563 emphasizes that regulations must be based on the
best available science and that the rulemaking process must allow for
public participation. We have developed this rule in a manner
consistent with these requirements.
Executive Order 12898--Environmental Justice
Under E.O. 12898 each federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment, in a manner that ensures that those programs, policies,
and activities do not have the
[[Page 13618]]
effect of excluding persons from participation in, denying persons the
benefits of, or subjecting persons to discrimination because of their
race, color, or national origin. Section 4-4, Subsistence Consumption
of Fish and Wildlife, of E.O. 12898, requires federal agencies to
ensure protection of populations with differential patterns of
subsistence consumption of fish and wildlife and to communicate to the
public the human health risks of those consumption patterns. NMFS has
evaluated the data available on contaminant loads in ENP gray whales,
and has summarized this information in the DEIS and in more recent
analyses (Ylitalo et al., 2018) and communicated those findings to the
Makah Indian tribe.
Executive Order 13132--Federalism
Executive Order 13132 sets forth principles and criteria that
agencies must adhere to in formulating and implementing policies that
have federalism implications, that is, regulations that have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. Federal
agencies must examine the statutory authority supporting any action
that would limit the policymaking discretion of the States, and to the
extent practicable, must consult with State and local officials before
implementing any such action. This rule does not have substantial
direct effects on the States and therefore does not have the type of
federalism implications contemplated by the Executive Order. We do not
foresee that the rule would affect significantly the distribution of
power and responsibilities among the various levels of government or
limit the policymaking discretion of the States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175, the American Indian and Alaska Native Policy
of the U.S. Department of Commerce (March 30, 1995), and the Tribal
Consultation and Coordination Policy of the U.S. Department of Commerce
(May 21, 2013) outline the responsibilities of NMFS in matters
affecting tribal interests. These directives require that NMFS have an
accountable process to ensure meaningful and timely input by tribal
officials in developing policies that have tribal implications.
Executive Order 13175 requires that NMFS: (1) Have regular and
meaningful consultation and collaboration with Indian tribal
governments in the development of federal regulations that
significantly or uniquely affect their communities; (2) reduce the
imposition of unfunded mandates on Indian tribal governments; and (3)
streamline the applications process for and increase the availability
of waivers to Indian tribal governments.
We developed these proposed regulations in response to the Makah
Indian Tribe's request on February 14, 2005 for a waiver of the MMPA's
take moratorium. Consistent with the Executive Order directives we
consulted with the Makah Indian Tribe in developing the proposed
regulations. The Makah Indian Tribe and members of other tribes
submitted comments in response to the DEIS; we will provide responses
to those comments at the hearing for this matter.
Consultation With State and Local Government Agencies
In keeping with the intent of the Administration and Congress to
provide continuing and meaningful dialogue on issues of mutual state
and federal interest, NMFS shared the release of the DEIS with 26 state
and local government agencies and various elected officials and
governmental committees.
References Cited
A complete list of all references cited in this rulemaking is
available on our website and upon request from the NMFS office in
Portland, Oregon (see ADDRESSES).
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Exports, Fish, Imports,
Indians, Labeling, Marine mammals.
Dated: March 27, 2019.
Barry A. Thom,
Regional Administrator, West Coast Region, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 216 is
proposed to be amended as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. Subpart J is added to read as follows:
Subpart J--Taking of Eastern North Pacific (ENP) Gray Whales
(Eschrichtius robustus) by the Makah Indian Tribe off the Coast of
Washington State
Sec.
216.110 Purpose.
216.111 Scope.
216.112 Definitions.
216.113 Take authorizations.
216.114 Accounting and identification of gray whales.
216.115 Prohibited acts.
216.116 Applications for hunt permits.
216.117 Requirements for monitoring, reporting, and recordkeeping.
216.118 Expiration and amendment.
Sec. 216.110 Purpose.
The purpose of this subpart is to establish regulations governing
the take of whales from the eastern North Pacific (ENP) gray whale
(Eschrichtius robustus) stock by the Makah Indian Tribe and its
enrolled members in accordance with the Secretary's determination to
issue a waiver of the MMPA take moratorium pursuant to 16 U.S.C.
1371(a)(3).
Sec. 216.111 Scope.
This subpart authorizes only the taking of ENP gray whales and only
by enrolled members of the Makah Indian Tribe.
Sec. 216.112 Definitions.
In addition to the definitions provided in the MMPA, for purposes
of this subpart, the following definitions apply:
Barter means the exchange of parts from gray whales taken under
these regulations for other wildlife or fish or their parts or for
other food or for nonedible items other than money if the exchange is
of a noncommercial nature.
Bonilla-Tatoosh Line means the line running from the western end of
Cape Flattery (48[deg]22'53'' N lat., 124[deg]43'54'' W long.) to
Tatoosh Island Lighthouse (48[deg]23'30'' N lat., 124[deg]44'12'' W
long.) to the buoy adjacent to Duntze Rock (48[deg]28'00'' N lat.,
124[deg]45'00'' W long.), then in a straight line to Bonilla Point
(48[deg]35'30'' N lat., 124[deg]43'00'' W long.) on Vancouver Island,
British Columbia.
Calf means any gray whale less than 1 year old.
Enrolled member or member of the Makah Indian Tribe means a person
whose name appears on the membership roll maintained by the Makah
Tribal Council.
ENP gray whale means a member of the eastern North Pacific stock of
gray whales (Eschrichtius robustus).
Even-year hunt means a hunting season spanning six consecutive
months
[[Page 13619]]
from December 1 in an odd-numbered year to May 31 in the following
even-numbered year.
Gray whale means a member of the species Eschrichtius robustus.
Harpooner means a member of the Makah Indian Tribe who has been
certified by the Tribe as having demonstrated the qualifications
commensurate with the duties and responsibilities of harpooning a gray
whale.
Hunt and hunting mean to pursue, strike, harpoon, shoot, or land a
gray whale under a hunt permit issued under Sec. 216.113(a), or to
attempt any such act, but does not include hunting approaches, training
approaches, or training harpoon throws. A ``hunt'' means any act of
hunting.
Hunt permit means a permit issued by NMFS in accordance with 16
U.S.C. 1374 and this subpart.
Hunting approach means to cause, in any manner, a vessel to be
within 100 yards of a gray whale during a hunt.
Land and landing mean bringing a gray whale or any products thereof
onto the land in the course of hunting.
Makah Indian handicrafts means articles made by a member of the
Makah Indian Tribe that contain any nonedible products of an ENP gray
whale that was obtained pursuant to a permit issued under this subpart;
and are significantly altered from their natural form and which are
produced, decorated, or fashioned in the exercise of traditional Makah
Indian handicrafts without the use of pantographs, multiple carvers, or
similar mass copying devices. Makah Indian handicrafts include, but are
not limited to, articles that are carved, beaded, drawn, or painted.
Makah Indian Tribe or Tribe means the Makah Indian Tribe of the
Makah Indian Reservation as described in the list of federally
recognized Indian tribes maintained by the U.S. Department of the
Interior.
Minimum population estimate for PCFG gray whales is the lower 20th
percentile of the PCFG population estimate;
NMFS hunt observer means a person designated by NMFS to accompany
and observe a hunt.
Odd-year hunt means a hunting season spanning four consecutive
months from July 1 to October 31 in an odd-numbered year.
Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale means
an ENP gray whale photo-identified during two or more years between
June 1 and November 30 within the region between northern California
and northern Vancouver Island (from 41[deg] N. lat. to 52[deg] N. lat.)
and entered into a photo-identification catalog(s) recognized by the
Regional Administrator.
PCFG population estimate means an abundance estimate based on data
derived from photo-identification surveys and catalog(s) recognized by
the Regional Administrator. Such data will also be the basis for
projecting PCFG population estimates in future hunting seasons.
Recordkeeping and reporting mean the collection and delivery of
photographs, biological data, harvest data, and other information
regarding activities conducted under the authority of this subpart.
Regional Administrator means the Regional Administrator of NMFS for
the West Coast Region.
Rifleman means a member of the Makah Indian Tribe who has been
certified by the Tribe as having demonstrated the qualifications
commensurate with the duties and responsibilities of shooting a gray
whale.
Safety officer means a member of the Makah Indian Tribe who has
been certified by the Tribe as having demonstrated the qualifications
commensurate with the duties and responsibilities of evaluating hunt
conditions including but not limited to visibility, target range and
bearing, and sea condition.
Strike or struck means to cause a harpoon or other device to
penetrate a gray whale's skin or an instance in which a gray whale's
skin is penetrated by a harpoon or other device while hunting.
Struck and lost refers to a gray whale that is struck but not
landed.
Training approach means to cause, in any manner, a training vessel
to be within 100 yards of a gray whale.
Training harpoon throw means an attempt to contact a gray whale
with a blunted spear-like device that is incapable of penetrating the
skin of a gray whale.
Training vessel means a canoe or other watercraft used to train for
a hunt that does not carry weapons ordinarily used by a harpooner or
rifleman to strike a gray whale.
Tribal hunt observer means a tribal member or representative
designated by the Tribe who has been certified by the Tribe as having
demonstrated the qualifications commensurate with the duties and
responsibilities of monitoring and reporting on a hunt.
U&A or Makah Indian Tribe's U&A means the Tribe's usual and
accustomed fishing grounds, which area consists of the United States
waters in the western Strait of Juan de Fuca west of 123[deg]42'17'' W
long. and waters of the Pacific Ocean off the mainland shoreline of the
Washington coast north of 48[deg]02'15'' N lat. (Norwegian Memorial)
and east of 125[deg]44'00'' W long.
Unsuccessful strike attempt means any attempt to strike a gray
whale while hunting that does not result in a strike.
WNP gray whale means a member of the western North Pacific stock of
gray whales (Eschrichtius robustus).
Whaling captain means a member of the Makah Indian Tribe who has
been certified by the Tribe as having demonstrated the qualifications
commensurate with the duties and responsibilities of leading a hunt and
is authorized by the Makah Indian Tribe to be in control of the whaling
crew.
Whaling crew means those members of the Makah Indian Tribe taking
part in a hunt under the control of a whaling captain, not including
the tribal hunt observer.
Sec. 216.113 Take authorizations.
(a) The Regional Administrator may issue hunt permits to the Makah
Indian Tribe authorizing hunting of ENP gray whales, as well as hunting
approaches, training approaches, and training harpoon throws by
enrolled members in accordance with 16 U.S.C. 1374 and the requirements
of this subpart.
(1) Hunt permit duration. The duration of the initial hunt permit
may not exceed three years from its effective date, and thereafter the
duration of a hunt permit may not exceed five years.
(2) Hunting seasons. Even-year hunts and hunting approaches will
only be authorized from December 1 of an odd-numbered year through May
31 of the following even-numbered year. Odd-year hunts and hunting
approaches will only be authorized from July 1 through October 31 in an
odd-numbered year.
(3) Training period. Hunt permits may authorize training approaches
in any month and training harpoon throws in any month, except as
provided in Sec. 216.113(a)(4)(ii).
(4) Limits on the number of gray whales approached, subjected to
unsuccessful strike attempts, struck, struck and lost, and landed.
(i) Approaches. A hunt permit may authorize no more than 353
approaches, including both hunting and training approaches, each
calendar year of which no more than 142 of such approaches may be on
PCFG whales.
(ii) Unsuccessful strike attempts and training harpoon throws. A
hunt permit may authorize no more than 18 unsuccessful strike attempts
during even-year hunts and no more than 12 unsuccessful strike attempts
during odd-year hunts. Training harpoon throws may occur at any time
during
[[Page 13620]]
even-numbered years and between July 1 and October 31 in odd-numbered
years. Each training harpoon throw will count against the unsuccessful
strike attempt limit in effect during the calendar year that the throw
is made.
(iii) Strikes. A hunt permit may authorize no more than three
strikes in an even-year hunt and no more than two strikes in an odd-
year hunt. In an even-year hunt, no more than one strike may be
authorized within the 24-hour period commencing at the time of strike.
The Regional Administrator may authorize the full number of strikes in
the initial hunt permit and will adjust strikes downward in subsequent
permits if necessary to ensure that strikes on PCFG whales do not
exceed 16 over the waiver period, of which no more than 8 strikes may
be on PCFG females.
(iv) Struck and lost. A hunt permit may authorize no more than
three gray whales to be struck and lost in any calendar year.
(v) Landings. A hunt permit may authorize no more than three gray
whales to be landed in an even-year hunt and no more than one gray
whale to be landed in an odd-year hunt; the number of gray whales that
the hunt permit may authorize to be landed in any calendar year will
not exceed the number agreed between the United States and the Russian
Federation as the U.S. share of the catch limit established by the
International Whaling Commission.
(vi) PCFG whales. Notwithstanding the limits specified in this
section, no hunting will be authorized for an upcoming season if the
Regional Administrator determines, and notifies the Makah Indian Tribe
pursuant to Sec. 216.114(a)(1) of this subpart, that either of the
following conditions applies:
(A) The most recent PCFG population estimate, based on photo-
identification surveys, is less than 192 whales or the associated
minimum population estimate is less than 171 whales; or
(B) The PCFG population estimate for the upcoming hunting season is
projected to be less than 192 whales or the associated minimum
population estimate is projected to be less than 171 whales.
(vii) WNP gray whales. The hunt permit will provide that in the
event the Regional Administrator determines a WNP gray whale was struck
during a hunt, the Regional Administrator will notify the Makah Indian
Tribe in writing, and require that the Tribe cease hunting for the
duration of the permit, unless and until the Regional Administrator
determines that measures have been taken to ensure no additional WNP
gray whales are struck during the duration of the permit. No further
hunt permits will be issued unless and until the Regional Administrator
determines that measures have been taken to prevent additional WNP gray
whale strikes during the remainder of the waiver period.
(5) Images and samples. NMFS hunt observers, tribal hunt observers,
and members of the Makah Indian Tribe may collect still or motion
pictures as needed to document hunting and training approaches, strikes
(successful and unsuccessful attempts), and landings. Persons
designated by NMFS and by the Makah Indian Tribe may also collect,
store, transfer, and analyze specimen samples from struck gray whales.
(6) Hunt permit terms and conditions. Each hunt permit will
specify:
(i) Those terms required by 16 U.S.C. 1374(b);
(ii) The limits established under paragraph (a)(4) of this section;
(iii) The area where hunts, hunting approaches, training
approaches, and training harpoon throws are allowed, which will be
limited to the waters of the Makah Indian Tribe's U&A west of the
Bonilla-Tatoosh Line except as provided in Sec. 216.115(a)(7), and any
site and time restrictions to protect Olympic Coast National Marine
Sanctuary resources pursuant to consultation under 16 U.S.C. 1434(d) of
the National Marine Sanctuary Act;
(iv) The type and timing of notice that the Makah Indian Tribe must
provide to NMFS before issuing a tribal whaling permit authorizing a
hunt, hunting or training approaches, or training harpoon throws;
(v) Measures to be taken by the hunt permit holder to provide for
the safety of the whaling crew, the public, and others during a hunt;
(vi) That the hunt permit authorizes only the take of ENP gray
whales and not the take of any other marine mammals; and
(vii) Such other provisions as the Regional Administrator deems
necessary.
(7) Required determinations. Before issuing a hunt permit the
Regional Administrator must make the following determinations:
(i) The authorized manner of hunting is humane;
(ii) The Makah Indian Tribe has enacted a tribal ordinance
governing hunting that is consistent with these regulations;
(iii) The Makah Indian Tribe has in place certification procedures
for whaling captains, riflemen, harpooners, tribal hunt observers, and
safety officers and a process to ensure compliance with those
procedures;
(iv) There are adequate photo-identification catalogs and processes
available to allow for the identification of WNP gray whales and PCFG
whales as described in Sec. 216.114(b);
(v) The most recent PCFG population estimate is at least 192 whales
and the associated minimum population estimate is at least 171 whales;
(vi) The PCFG population estimate for the first hunting season
covered by the permit is projected to be at least 192 whales and the
associated minimum population estimate is projected to be at least 171
whales; and
(vii) The Makah Indian Tribe has obtained any relevant incidental
take authorization for other marine mammals.
(viii) Except for the initial hunt permit, before issuing a hunt
permit the Regional Administrator must determine that the Makah Indian
Tribe has complied with the requirements of these regulations and all
prior permit terms and conditions, or if the Makah Indian Tribe has not
fully complied, that it has adopted measures to ensure compliance.
(b) Gray whales landed under a hunt permit may be utilized as
follows:
(1) Edible products of ENP gray whales--(i) Enrolled members of the
Makah Indian Tribe may possess, consume, and transport edible whale
products, and may share and barter such products with other enrolled
members, both within and outside the Makah Indian Tribe's reservation
boundaries. Within the Tribe's reservation boundaries, enrolled members
of the Makah Indian Tribe may share edible ENP gray whale products with
any person. Outside the Makah Indian Tribe's reservation boundaries,
enrolled members of the Makah Indian Tribe may share edible ENP gray
whale products with any person attending a tribal or intertribal
gathering sanctioned by the Makah Tribal Council, so long as there is
not more than two pounds of such edible product per person attending
the gathering.
(ii) Any person who is not an enrolled member of the Makah Indian
Tribe may possess, consume, and transport edible ENP gray whale
products within the Makah Indian Tribe's reservation boundaries so long
as the products are shared by an enrolled member of the Makah Indian
Tribe. Outside the Tribe's reservation boundaries, any person who is
not an enrolled member of the Makah Indian Tribe may possess and
consume edible gray whale products at a tribal or intertribal gathering
sanctioned by the Makah Tribal Council if such products are shared by
an enrolled member of the
[[Page 13621]]
Makah Indian Tribe and the person consumes the products at the
gathering.
(2) Nonedible products of ENP gray whales--(i) Enrolled members of
the Makah Indian Tribe may possess nonedible whale products that have
not been fashioned into Makah Indian handicrafts, and Makah Indian
handicrafts that have not been marked and certificated per Sec.
216.113(b)(2)(iii), may transport such products, and may share and
barter such products with other enrolled members, both within and
outside the Makah Indian Tribe's reservation boundaries.
(ii) Enrolled members of the Makah Indian Tribe may share or barter
Makah Indian handicrafts that have not been marked and certificated per
Sec. 216.113(b)(2)(iii) with any person within the Tribe's reservation
boundaries.
(iii) Any person may possess, transport, share, barter, offer for
sale, sell, or purchase a Makah Indian handicraft in the United States,
provided the handicraft is permanently marked with a distinctive
marking approved by the Makah Tribal Council, and is accompanied by a
certificate of authenticity issued by the Makah Tribal Council or its
designee and entered in the Tribe's official record of Makah Indian
handicrafts. Such handicrafts may be delivered, carried, transported,
or shipped in interstate commerce.
(iv) Within the Makah Indian Tribe's reservation boundaries, any
person who is not an enrolled member of the Makah Indian Tribe may
possess and transport Makah Indian handicrafts that have not been
marked and certificated per Sec. 216.113(b)(2)(iii), provided the
handicraft was shared by or bartered from an enrolled member. Within
the Makah Indian Tribe's reservation boundaries, persons not enrolled
as a member of the Makah Indian Tribe may share or barter such
handicrafts only with enrolled members.
(c) The Makah Indian Tribe is responsible for managing all
activities of any Makah Indian tribal member carried out under this
section.
Sec. 216.114 Accounting and identification of gray whales.
(a) Notifications--(1) Thirty days prior to the beginning of a
hunting season specified in Sec. 216.113(a)(2), the Regional
Administrator will notify the Makah Indian Tribe in writing of the
maximum number of PCFG whales, including females, that may be struck
during the upcoming hunting season. The limit will take into account
the abundance of PCFG whales relative to the conditions specified under
Sec. 216.113(a)(4)(vi) and the number of strikes made on PCFG whales
as described under Sec. 216.113(a)(4)(iii).
(2) By November 1 of each year, the Regional Administrator will
notify the Makah Indian Tribe in writing of the proportion of gray
whales in the hunt area that will be presumed to be PCFG whales and the
proportion of PCFG whales that will be presumed to be females for each
month of the upcoming calendar year. The presumed proportion of PCFG
whales will be based on the best available evidence for the months of
December and January through May, and will be 100 percent for the
months of June through November. The presumed proportion of female PCFG
whales will be based on the best available information for each month.
These proportions will be used for purposes of accounting for PCFG
whales that are not otherwise identified or accounted for as provided
under subsection Sec. 216.114(b).
(3) The Regional Administrator will notify the Makah Indian Tribe
in writing when the Tribe has reached the limit of PCFG whales that may
be struck in any hunting season.
(b) Identification and accounting of gray whales--(1) Even-year
hunts. Based on the best available evidence, the Regional Administrator
will determine in writing whether a gray whale that is struck in an
even-year hunt is a WNP gray whale or a PCFG whale or neither, or
cannot be identified due to a lack of photographs or genetic data
useful for making identifications. A whale affirmatively identified as
a PCFG whale will be counted accordingly. A whale that cannot be
identified will be presumed to be a PCFG whale in accordance with the
proportions specified in Sec. 216.114(a)(2) and will be counted
accordingly. If the sex of a whale that is counted, in whole or in
part, as a PCFG whale cannot be identified, the proportions specified
in Sec. 216.114(a)(2) will be applied.
(2) Odd-year hunts. Based on available evidence, the Regional
Administrator will determine in writing whether a gray whale that is
struck in an odd-year hunt is a WNP gray whale or cannot be identified
due to a lack of photographs or genetic data useful for making
identifications. A gray whale that cannot be identified as a WNP gray
whale will be counted as a PCFG whale. If the sex of a whale that is
counted as a PCFG whale cannot be identified, the proportions specified
in Sec. 216.114(a)(2) will be applied.
(3) Hunting and training approaches. Gray whales subjected to
hunting or training approaches are presumed to be PCFG whales in
accordance with the proportions specified in Sec. 216.114(a)(2).
(4) Unauthorized strikes. If a tribal member strikes an ENP gray
whale without authorization under this subpart, the strike will be
counted against the total number of strikes allowed under these
regulations and will be counted against the U.S. share of any
applicable catch limit established by the International Whaling
Commission.
Sec. 216.115 Prohibited acts.
(a) It is unlawful for the Makah Indian Tribe or any enrolled Makah
Indian tribal member to:
(1) Take any gray whale except as authorized by a hunt permit
issued under Sec. 216.113(a) or by any other provision of part 216.
(2) Participate in a hunt while failing to carry onboard the vessel
at all times a hunt permit issued by NMFS and a tribal whaling permit
issued by the Makah Indian Tribe, or an electronic copy or photocopy of
these permits.
(3) Make a training approach or a training harpoon throw while
failing to carry onboard the training vessel at all times an electronic
copy or photocopy of the hunt permit issued by NMFS and a training
logbook approved by the Makah Indian Tribe for recording training
approaches and training harpoon throws.
(4) Participate in a hunt as a whaling captain, rifleman,
harpooner, tribal hunt observer, or safety officer, unless the
individual's name is included in a tribal certification report issued
under Sec. 216.117(a)(6)(i).
(5) Violate any provision of any hunt permit issued under Sec.
216.113(a).
(6) Hunt or make a training harpoon throw on a calf or an adult
gray whale accompanying a calf.
(7) Hunt outside the geographic area identified in Sec.
216.113(a)(6)(iii), unless in pursuit of a gray whale that has already
been struck within that area.
(8) Hunt, make a hunting or training approach, or make a training
harpoon throw after reaching the limits specified in the hunt permit
per Sec. 216.113(a)(4)(i) through (v).
(9) Hunt if the limit on PCFG whales or PCFG females that may be
struck is less than one as a result of accounting per Sec.
216.114(b)(1) through (3).
[[Page 13622]]
(10) Hunt after the Makah Indian Tribe has been notified in writing
by the Regional Administrator under Sec. 216.114(a)(3) that the limit
of PCFG whales that may be struck has been reached or that the PCFG
abundance is below the limits specified in Sec. 216.113(a)(4)(vi).
(11) Hunt after a gray whale has been landed and before the Makah
Indian Tribe has received notification from the Regional Administrator
in accordance with Sec. 216.114(b).
(12) Sell, offer for sale, purchase, or export any gray whale
products, except Makah Indian handicrafts that have been marked and
certificated per Sec. 216.113(b)(2)(iii).
(13) Barter edible gray whale products with any person not enrolled
as a member of the Makah Indian Tribe.
(14) Share edible gray whale products outside the Makah Indian
Tribe's reservation boundaries with any person not enrolled as a member
of the Makah Indian Tribe, except with persons attending a tribal or
intertribal gathering sanctioned by the Makah Tribal Council, so long
as there is not more than two pounds of edible product per person
attending the gathering per Sec. 216.113(b)(1)(i).
(15) Share or barter nonedible gray whale products:
(i) Outside the Makah Indian Tribe's reservation boundaries with
any person not enrolled as a Makah Indian tribal member, except Makah
Indian handicrafts that are permanently marked and certificated per
Sec. 216.113(b)(2)(iii).
(ii) Within the Makah Indian Tribe's reservation boundaries with
any person not enrolled as a Makah Indian tribal member except a
product that has been fashioned into a Makah Indian handicraft.
(16) Make a false statement in an application for a hunt permit or
in a report required under this subpart.
(17) Transfer or assign a hunt permit issued under this subpart.
(18) Fail to submit reports required by this subpart.
(19) Deny persons designated by NMFS access to landed gray whales
for the purpose of collecting specimen samples.
(20) Fail to provide required permits and reports for inspection
upon request by persons designated by NMFS.
(21) Allow anyone other than enrolled Makah Indian tribal members
to be part of a whaling crew or to allow anyone other than such members
or tribal hunt observers to be in a training vessel engaged in hunt
training.
(b) It is unlawful for any person who is not an enrolled member of
the Makah Indian Tribe to:
(1) Gift, barter, purchase, sell, export, or offer to gift, barter,
purchase, sell, or export edible gray whale products.
(2) Possess or transport edible gray whale products except products
shared by an enrolled Makah Indian tribal member and possessed or
transported within the Makah Indian Tribe's reservation boundaries, or
possessed outside the Makah Indian Tribe's reservation boundaries as
part of a tribal or intertribal gathering sanctioned by the Makah
Tribal Council.
(3) Purchase, sell, export, or offer to purchase, sell, or export
nonedible gray whale products except Makah Indian handicrafts that are
marked and certificated per Sec. 216.113(b)(2)(iii).
(4) Outside the Makah Indian Tribe's reservation boundaries,
possess, transport, gift, or barter nonedible gray whale products
except Makah Indian handicrafts that are marked and certificated per
Sec. 216.113(b)(2)(iii).
(5) Within the Makah Indian Tribe's reservation boundaries,
possess, transport, gift, or barter any nonedible gray whale product
other than a Makah Indian handicraft that is marked and certificated
per Sec. 216.113(b)(2)(iii), unless the product has been fashioned
into a Makah Indian handicraft and was shared by or with, or bartered
from or to, an enrolled member of the Makah Indian Tribe.
Sec. 216.116 Applications for hunt permits.
(a) To obtain an initial hunt permit, the Makah Indian Tribe must
submit an application to the Regional Administrator, signed by an
official of the Makah Tribal Council, that contains the following
information and statements:
(1) The maximum number of gray whales to be subjected to hunting or
training approaches, struck, landed, and subjected to unsuccessful
strike attempts;
(2) A demonstration that the proposed method of taking is humane;
(3) A demonstration that the proposed taking is consistent with
these regulations;
(4) A copy of the currently enacted Makah Indian tribal ordinance
governing whaling by Makah Indian tribal members; and
(5) A description of the certification process for whaling
captains, riflemen, harpooners, tribal hunt observers, and safety
officers, including any guidelines or manuals used by the Tribe to
certify such persons.
(b) To obtain subsequent hunt permits, the Makah Indian Tribe must
submit an application to the Regional Administrator, signed by an
official of the Makah Tribal Council, that contains the information
required in Sec. 216.116(a) and the following information and
statements:
(1) A description of how the Makah Indian Tribe has complied with
the requirements of these regulations and previously issued hunt
permits;
(2) A description of circumstances associated with gray whale(s)
struck and lost under the most recently issued hunt permit, a
description of the measures taken to retrieve such whale(s), and a
description of measures taken by the Makah Indian Tribe to minimize
future incidents of struck and lost gray whales; and
(3) A description of products obtained from gray whales landed
under the most recently issued hunt permit, including a description of
the disposition of any gray whale products deemed unsuitable for use by
Makah Indian tribal members.
(c) The Regional Administrator will notify the Makah Indian Tribe
of receipt of the application and will review the application for
completeness. Incomplete applications will be returned with
explanation. If the Makah Indian Tribe fails to resubmit a complete
application within 60 days, the application will be deemed withdrawn.
(d) After receipt of a complete application, and the preparation of
any NEPA documentation that the Regional Administrator has determined
to be necessary, the Regional Administrator will publish a notice of
receipt in the Federal Register and review the application as required
by 16 U.S.C. 1374.
Sec. 216.117 Requirements for monitoring, reporting, and
recordkeeping.
(a) In addition to the reporting provisions described in 50 CFR
230.8, the Makah Indian Tribe will:
(1) Ensure a certified tribal hunt observer accompanies each hunt.
The tribal hunt observer will record in a hunting logbook the time,
date, and location (latitude and longitude, accurate to at least the
nearest second) of each hunting approach of a gray whale, each attempt
to strike a gray whale, and each gray whale struck. For each gray whale
struck, the tribal hunt observer will record whether the whale was
landed. If not landed, the tribal hunt observer will describe the
circumstances associated with the striking of the whale and estimate
whether the animal suffered a wound that might be fatal. For every gray
whale approached by the whaling crew, the tribal hunt observer will
attempt to
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collect digital photographs useful for photo-identification purposes.
(2) Ensure that each vessel involved in a training approach has
onboard a training logbook for recording the date, location, and number
of gray whales approached and the number of training harpoon throws.
Each training approach and training harpoon throw must be reported to
the tribal hunt observer within 24 hours.
(3) Maintain hunting and training logbooks specified in Sec.
216.117(a)(1) and (2) and allow persons designated by NMFS to inspect
them upon request.
(4) Ensure that each whaling captain allows a NMFS hunt observer to
accompany and observe any hunt.
(5) Maintain an official record of all articles of Makah Indian
handicraft, including the following information for each article
certified by the Makah Tribal Council or its designee: The date of the
certification; the permanent distinctive mark identifying the article
as a Makah Indian handicraft; a brief description of the handicraft,
including artist's full name, gray whale product(s) used, and
approximate size; and at least one digital photograph of the entire
handicraft. A copy of the official record of Makah Indian handicrafts
must be provided to NMFS personnel, including NMFS enforcement
officers, upon request.
(6) Ensure that the following reports are filed electronically with
the NMFS West Coast Region's office in Seattle, Washington, by the
indicated date:
(i) Tribal certification report. Thirty days prior to the beginning
of a hunting season, the Makah Indian Tribe must provide NMFS with a
report that includes the names of all tribal hunt observers and
enrolled Makah Indian tribal members who have been certified to
participate in a hunt as whaling captains, riflemen, harpooners, and
safety officers. The Tribe may provide additional names during the
hunting season.
(ii) Incident report. After striking a gray whale, the Makah Indian
Tribe must submit an incident report within 48 hours to NMFS. A report
may address multiple gray whales so long as the Tribe submits the
report within 48 hours of the first gray whale being struck. For any
gray whale(s) struck and lost, the report must contain the information
in paragraph (a)(1) of this section and for any gray whale(s) struck
and landed the report must contain the information in paragraph (a)(2)
of this section:
(A) Struck and lost gray whale(s): The whaling captain's name; the
tribal hunt observer's name; the date, location (latitude and
longitude, accurate to at least the nearest second), time, and number
of strikes and attempted strikes if any; the method(s) of strikes and
attempted strikes; an estimate of the whale's total length. The report
will describe the circumstances associated with the striking of the
whale and estimate whether the animal suffered a wound that might be
fatal. The report will include all photographs taken by a tribal hunt
observer of gray whales struck and lost by the whaling crew. The report
may also contain any other observations by the Makah Indian Tribe
concerning the struck and lost whale(s) or circumstances of the hunt.
(B) Struck and landed gray whale(s): The whaling captain's name;
the tribal hunt observer's name; the date, location (latitude and
longitude, accurate to at least the nearest second), time, and number
of strikes and attempted strikes if any; the method(s) of strikes and
attempted strikes; the whale's body length as measured from the point
of the upper jaw to the notch between the tail flukes; an estimate of
the whale's maximum girth; the extreme width of the tail flukes; the
whale's sex and, if female, lactation status; the length and sex of any
fetus in the landed whale; photographs of the whale(s), including the
entire dorsal right side, the entire dorsal left side, the dorsal
aspect of the fluke, and the ventral aspect of the fluke. All such
photographs must include a ruler to convey scale and a sign specifying
the Makah Indian Tribe's name, whaling captain's name, whale species,
and date. The report must also describe the time to death (measured
from the time of the first strike to the time of death as indicated by
relaxation of the lower jaw, no flipper movement, or sinking without
active movement) and the disposition of all specimen samples collected
and whale products, including any whale products deemed unsuitable for
use by Makah Indian tribal members. The report may also contain any
other observations by the Makah Indian Tribe concerning the landed
whale or circumstances of the hunt.
(iii) Hunt report. Within 30 days after the end of each hunting
season the Makah Indian Tribe must submit a report to NMFS that
describes the following information for each day of hunting:
(A) Struck and lost gray whale(s): The report must contain the
information specified in Sec. 216.117(a)(6)(ii)(A).
(B) Struck and landed gray whale(s): The report must contain the
information specified in Sec. 216.117(a)(6)(ii)(B).
(C) Hunting approaches and unsuccessful strike attempt(s): For each
gray whale approached or subjected to an unsuccessful strike
attempt(s), the report must contain: The whaling captain's name; the
tribal hunt observer's name; the date, location (latitude and
longitude, accurate to at least the nearest second), time, and number
of approaches and unsuccessful strike attempts; the method of attempted
strikes; an estimate of the total length of any whale subjected to an
unsuccessful strike attempt; and all photographs taken by a tribal hunt
observer of gray whales approached by the whaling crew. The report may
also contain any other observations by the Makah Indian Tribe
concerning the whale(s) approached or subjected to unsuccessful strike
attempts or circumstances of the hunt.
(iv) Annual approach report. By January 15 of each year, the Makah
Indian Tribe must submit a report to NMFS containing the dates,
location, and number of gray whales subjected to hunting approaches,
training approaches, and training harpoon throws during the previous
calendar year. The report may also contain any other observations by
the Makah Indian Tribe concerning the approached whales or
circumstances of the approaches and training harpoon throws.
(v) Annual handicraft report. By April 1 of each year, the Makah
Indian Tribe must submit a report to NMFS which describes all Makah
Indian handicrafts certified by the Makah Tribal Council or its
designee during the previous calendar year. The report must contain the
following information for each handicraft certified: The date of the
certification; the permanent distinctive mark identifying the article
as a Makah Indian handicraft; a brief description of the handicraft,
including artist's full name, gray whale product(s) used, and
approximate size; and at least one digital photograph of the entire
handicraft.
(vi) The hunt report, annual approach report, and annual handicraft
report collected pursuant to this section will be maintained and made
available for public review in the NMFS West Coast Region's office in
Seattle, Washington.
(b) Upon receiving an incident report specified in Sec.
216.117(a)(6)(ii) documenting that 8 gray whales have been struck, the
Regional Administrator will evaluate:
(1) The photo-identification and notification requirements
described in Sec. 216.113(a)(7)(iv) and Sec. 216.114. The evaluation
will address the status of gray whale photo-identification catalogs
used to manage gray whale hunts authorized under this subpart, the
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survey efforts employed to keep those catalogs updated, the level of
certainty associated with identifying cataloged WNP gray whales and
PCFG whales, the role of ancillary information such as genetic data
during catalog review, and any other elements deemed appropriate by the
Regional Administrator. The evaluation will be made available to the
public no more than 120 days after receiving the subject incident
report.
(2) The humaneness of the authorized manner of hunting as specified
in Sec. 216.113(a)(7)(i). To evaluate humaneness, NMFS will convene a
team composed of a veterinarian, a marine mammal biologist, and all
tribal hunt observers and NMFS hunt observers who were witness to the
strikes described in the incident reports required by this section. The
team's evaluation will address the effectiveness of the hunting methods
used by the Makah Indian Tribe, the availability and practicability of
other such methods, and the time to death of hunted whales, and any
other matters deemed appropriate by the Regional Administrator and the
team. The team's evaluation will be made available to the public no
more than 120 days after receiving the subject incident report.
(c) The NMFS West Coast Region's Seattle office is located at 7600
Sand Point Way NE, Seattle, WA 98115-0070.
Sec. 216.118 Expiration and amendment.
(a) These regulations will expire 10 years after the effective date
of the initial hunt permit specified under Sec. 216.113(a)(1), unless
extended.
(b) These regulations may be periodically reviewed and modified as
provided in 16 U.S.C. 1373(e).
[FR Doc. 2019-06337 Filed 4-4-19; 8:45 am]
BILLING CODE 3510-22-P