[Federal Register Volume 84, Number 191 (Wednesday, October 2, 2019)]
[Rules and Regulations]
[Pages 52372-52383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21450]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 190926-0046]
RIN 0648-BH25
Subsistence Taking of Northern Fur Seals on the Pribilof Islands
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is modifying the subsistence use regulations for the
Eastern Pacific stock of northern fur seals (Callorhinus ursinus) in
response to a petition from the Aleut Community of St. Paul Island,
Tribal Government (ACSPI). This rule simplifies the regulations and
authorizes Pribilovians who reside on St. Paul Island, Alaska, to kill
for subsistence uses each year up to 2,000 male fur seals less than
seven years old (defined as juvenile males), including young of the
year (also called pups). This rule authorizes up to 20 mortalities of
female fur seals per year (and any female mortality will be included in
the 2,000 fur seals authorized for subsistence use per year). This rule
allows the taking of fur seals on St. Paul Island over two subsistence
use seasons annually: One season from January 1 through May 31 using
firearms to hunt, and the second season from June 23 through December
31 without using firearms for the harvest. In addition, the rule
authorizes Pribilovians who reside on St. George Island, Alaska, to
kill each year up to 500 male fur seals during harvests for subsistence
use, including authorization of up to three female mortalities each
year (and any female mortality will be included in the 500 fur seals
authorized for subsistence use per year). Finally, the rule streamlines
and simplifies the regulations by eliminating several duplicative and
unnecessary regulations governing Pribilovians on St. Paul and St.
George Islands.
DATES: Effective on September 27, 2019.
ADDRESSES: A 2005 Final Environmental Impact Statement for Setting
Annual Subsistence Harvest of Northern Fur Seals on the Pribilof
Islands (EIS), 2014 Final Supplemental EIS (SEIS) for Management of
Subsistence Harvest of Northern Fur Seals on St. George Island, the
2019 Supplementary Information Report to the 2014 Final SEIS for
Management of Subsistence Harvest of Northern Fur Seals on St. George
Island, and 2019 Final SEIS for Management of Subsistence Harvest of
Northern Fur Seals on St. Paul Island are available on the internet at
the following address under the NEPA Analyses tab https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/northern-fur-seal-subsistence-harvest-estimates-and-reports.
Electronic copies of the Regulatory Impact Review (RIR) prepared
for this action are available at https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/northern-fur-seal-subsistence-harvest-estimates-and-reports.
A list of all the references cited in this final rule may be found
on https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/northern-fur-seal-subsistence-harvest-estimates-and-reports.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
final rule may be submitted to NMFS at the above ADDRESSES and by email
to [email protected], or fax to (202) 395-5806.
FOR FURTHER INFORMATION CONTACT: Michael Williams, NMFS Alaska Region,
907-271-5117, [email protected].
SUPPLEMENTARY INFORMATION:
Background
NMFS published a proposed rule on August 14, 2018 (83 FR 40192) to
modify the subsistence harvest regulations for northern fur seals on
the Pribilof Islands based on the petition from the ACSPI (77 FR 41168;
July 12, 2012). The rule streamlines and simplifies the regulations by
eliminating several duplicative and unnecessary regulations governing
Pribilovians on St. Paul and St. George Islands (Islands). The rule
simplifies the regulations and authorizes Pribilovians who reside on
St. Paul Island to kill for subsistence uses each year up to 2,000 male
fur seals less than 7 years old, including pups during two seasons. The
rule defines the first season from January 1 through May 31 and
authorizes the use firearms to take juvenile fur seals during this
first season. The rule defines the second season from June 23 through
December 31 and authorizes the harvest of juvenile fur seals without
the use of firearms. This rule authorizes up to 20 mortalities of
female fur seals per year (of the 2,000 fur seals authorized for
subsistence use per year) on St. Paul Island. In addition, the rule
simplifies the regulations and authorizes Pribilovians who reside on
St. George Island to kill up to 500 male fur seals during harvests for
subsistence use, including authorization of up to three female
mortalities each year. These annual levels of authorized subsistence
use of fur seals are consistent with levels that NMFS has authorized
under previous regulations since the early 1990s, as discussed further
below. Finally, the rule streamlines and simplifies the regulations by
eliminating several duplicative and unnecessary provisions
[[Page 52373]]
governing Pribilovians on St. Paul and St. George Islands.
St. Paul Island and St. George Island are remote islands located in
the Bering Sea populated by Alaska Native residents who rely upon
marine mammals as a major food source and cornerstone of their culture.
The taking of North Pacific fur seals (northern fur seals) is
prohibited by the Fur Seal Act (FSA, 16 U.S.C. 1151-1175) unless
expressly authorized by the Secretary of Commerce through regulation.
Pursuant to the FSA, it is unlawful, except as provided in the FSA or
by regulation of the Secretary of Commerce, for any person or vessel
subject to the jurisdiction of the United States to engage in the
taking of fur seals in the North Pacific Ocean or on lands or waters
under the jurisdiction of the United States (16 U.S.C. 1152). Section
105(a) of the FSA authorizes the promulgation of regulations with
respect to the taking of fur seals on the Pribilof Islands as the
Secretary of Commerce deems necessary and appropriate for the
conservation, management, and protection of the fur seal population (16
U.S.C. 1155(a)). Existing regulations issued under the FSA authorize
Pribilovians to take fur seals on the Pribilof Islands if such taking
is for subsistence uses and not accomplished in a wasteful manner (50
CFR 216.71).
For both Islands, the number of fur seals authorized to be
harvested annually was established every year from 1985-1994. The
regulations were revised on July 12, 1994 (59 FR 35471) to authorize an
annual harvest range to last for three-year periods, in accordance with
50 CFR 216.72(b), based on an estimate of the number of fur seals
expected to satisfy the Pribilovians' subsistence requirements. The
history of regulatory revisions can be found in the 2019 SEIS (NMFS
2019) for the management of the subsistence harvest of northern fur
seals on St. Paul Island, Alaska (the 2019 St. Paul SEIS), and in the
2014 SEIS for management of subsistence harvest of northern fur seals
on St. George Island, Alaska (the 2014 St. George SEIS) (see
ADDRESSES).
Northern fur seals were killed for their skins for at least 200
years during commercial operations on the Pribilof Islands (Scheffer et
al., 1984, and NMFS 2007). Northern fur seal population trends are most
closely related to the number of females because a single territorial
adult male inseminates multiple reproductive females. Thus, the number
of males in the population is much less important to the stability of
the population. This understanding of population dynamics provided the
basis for the commercial harvest levels established under the FSA
(Scheffer et al., 1984). Gentry (1998) and NMFS (2007) summarized the
extensive research on the direct and indirect effects of the commercial
harvest on fur seal behavior and the population. NMFS has examined the
abundance and trend of the population compared to the number of sub-
adult male fur seals killed and the number of fur seals likely harassed
during the historical commercial harvest and later subsistence
harvests. The harvest management and intensity of harvest changed
drastically during the transition from commercial harvest to
subsistence use on the Pribilof Islands. Seals were harvested
commercially five days a week during the month of July from all haulout
areas. The abrupt reduction from commercial harvest levels to
subsistence harvest levels in the 1980s did not result in a
corresponding change in the estimates of the number of pups born on the
Pribilof Islands. NMFS did not observe a statistically significant
change in the estimate of pup production until after 1994 on St. Paul
Island. Thus, for both St. Paul and St. George Islands, when the
harvest of sub-adult males was reduced by over 90 percent, there was no
change in the trend of number of pups born, regardless of whether the
underlying population trend was declining (as on St. George Island from
1973-1982) or stable (as on St. Paul Island from 1985-1994).
Therefore, NMFS concluded in the 2014 St. George SEIS and the 2019
St. Paul SEIS that subsistence harvest mortality of sub-adult male fur
seals has not contributed to a detectable change in the population
trends since the implementation of the subsistence use regulations (51
FR 24828; July 9, 1986). NMFS assumes that some level of harassment
occurs during the subsistence take of fur seals. NMFS analyzed the
impact of harassment on non-harvested seals and concluded in the 2014
St. George SEIS and the 2019 St. Paul SEIS that harassment associated
with subsistence take would have short-term energetic effects on those
seals, but no detectable population consequences. Further, NMFS (2014,
2019), Fowler et al. (2009), Towell and Williams (2016), and Towell
(2019) analyzed the direct mortality and harassment associated with
authorizing the Pribilovians on St. Paul to take male pups and males
less than 7 years old for subsistence use up to the levels authorized
in this final rule. NMFS (2014), Fowler (2009), and Towell and Williams
(2016) analyzed direct mortality and harassment associated with
authorizing Pribilovians on St. George to take sub-adult male and male
young of the year for subsistence use up to levels authorized in the
2014 final rule (79 FR 65327; November 14, 2014). Towell (2019) modeled
the population composition after 25 years of annual mortality of up to
2,000 six year old males on St. Paul Island compared to similar
mortality of up to 2,000 male pups prior to weaning. Based on our
understanding of fur seal ecology and modeling the response of the
population to subsistence mortality of pups, these analyses conclude
that the mortality of male pups results in fewer population
consequences than a similar harvest of males older than two years
because pups have a high level of natural mortality after weaning.
NMFS, therefore, does not expect a detectable change in population
trends from future subsistence harvests authorized under this rule of
up to 500 sub-adult male fur seals 124.5 cm or less in length (i.e.,
sub-adult) annually on St. George (of which up to three may be female
fur seals and of which up to 150 may be male young of the year seals
authorized for harvest in 50 CFR 216.72(d)(6)-(d)(10)). This continues
the currently authorized methods and level of subsistence use on St.
George Island. NMFS also does not expect a detectable change in
population trends from future subsistence use authorized under this
rule of up to 2,000 juvenile fur seals annually on St. Paul (of which
any number may be pups, but of the 2,000 authorized for subsistence use
only up to 20 may be female fur seals). This continues the currently
authorized level of subsistence use on St. Paul Island, but with
methods and seasons modified by this final rule, as explained further
below.
For St. George Island, the regulations will continue to use the
term ``sub-adult'' to refer to those fur seals authorized for
subsistence use in the sub-adult season from June 23 through August 8
annually (50 CFR 216.72(d)(1)-(5)) and will continue to use the term
``young of the year'' to refer to those fur seals authorized for
subsistence use in the male young of the year season from September 16
through November 30 annually (50 CFR 216.72(d)(6)-(10)). For St. Paul,
this final rule authorizes in 50 CFR 216.72(e) take by hunt and harvest
of juvenile male fur seals, and defines juvenile as non-breeding male
fur seals less than seven years old (i.e., including pups, which also
are called young of the year).
[[Page 52374]]
Petition for Rulemaking To Change Management on St. Paul Island
The process to change subsistence use management of northern fur
seals on St. Paul Island began on February 16, 2007, with the receipt
of Tribal Resolution 2007-09 from ACSPI. In that resolution, ACSPI
requested NMFS immediately start the process to impose a moratorium on
the regulations at 50 CFR 216, Subpart F or revise the regulations. On
May 7, 2007, NMFS determined that an immediate moratorium was not
warranted and that the Marine Mammal Protection Act (MMPA) co-
management process described in an agreement between NMFS and ACSPI was
the best means to determine what regulatory changes were needed to
allow the community to meet its subsistence needs while continuing to
promote the conservation of northern fur seals on St. Paul Island
consistent with the MMPA and FSA.
On October 21, 2009, ACSPI submitted resolution 2009-57 with
supporting information to NMFS as a basis to modify the regulations
governing the subsistence use of northern fur seals on St. Paul Island.
NMFS evaluated the resolution and worked with ACSPI over the next two
years to clarify details of the request and supporting documents. Based
on those clarifications, NMFS determined that there was adequate
information to publish a notice of receipt of petition for rulemaking
and opportunity for public comment under the Administrative Procedure
Act (77 FR 41168; July 12, 2012). ACSPI subsequently approved
resolution 2015-04, amending resolution 2009-57, to assist NMFS to
respond to comments received on the petition. NMFS then published a
Notice of Intent to prepare an SEIS to evaluate alternatives to
managing the subsistence use of northern fur seals on St. Paul Island
(80 FR 44057; July 24, 2015), and completed a draft SEIS for public
comment (82 FR 4336; January 13, 2017), as well as a proposed rule (83
FR 40192; August 14, 2018).
The 2019 St. Paul SEIS (NMFS 2019) analyzes the effects of the
status quo, the petitioned alternative, preferred alternative, and
other alternative subsistence use management regimes. NMFS concluded in
the SEIS that the preferred alternative including subsistence use of up
to 2,000 juvenile northern fur seals, of which up to 20 may be females
killed during the subsistence use seasons, would have a minor effect on
the population of about 424,531 fur seals residing seasonally on St.
Paul Island. ACSPI petitioned NMFS to define the seals that may be
taken for subsistence uses as ``juvenile'' male fur seals. A
``juvenile'' would be defined as a seal less than seven years old,
inclusive of pups. This rule does not designate pups as a separate sub-
category of juveniles, and ACSPI seeks flexibility to harvest any male
seals less than seven years old. ACSPI also petitioned NMFS to remove a
restriction on the length of seal that may be taken for subsistence
use. These changes streamline and simplify the regulations because
those distinctions were unnecessary from a conservation perspective
(per the analysis in the 2019 St. Paul SEIS--NMFS 2019; and the
proposed rule--83 FR 40192).
ACSPI petitioned NMFS to revise the subsistence use regulations,
suggesting that four regulatory provisions were necessary to improve
management of the subsistence use of northern fur seals on St. Paul
Island: (1) Subsistence use of up to 2,000 juvenile male fur seals
annually; (2) hunting of juvenile male fur seals from January 1 to May
31 annually using firearms; (3) harvesting of juvenile male fur seals
from June 23 to December 31 annually without the use of firearms; and
(4) co-management of subsistence use by ACSPI and NMFS under the co-
management agreement. Subsequent discussions with ACSPI clarified that
their request was to revise the co-management agreement signed in 2000
and to establish in a revised agreement a process to cooperatively
manage and restrict subsistence use, such as location and frequency of
harvesting and hunting, without additional regulatory provisions.
NMFS entered into a co-management agreement with the ACSPI in 2000
under Section 119 of the MMPA (16 U.S.C. 1388). The co-management
agreement (available at https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/co-management-marine-mammals-alaska) established a
Co-management Council with equal membership between NMFS and ACSPI to
work cooperatively in the conservation and management of fur seals and
Steller sea lions on St. Paul Island. The co-management agreement
includes a guiding principle ``that provides for full participation by
the Unangan of St. Paul, through the [ACSPI], in decisions affecting
the management of marine mammals used for subsistence purposes,''
including the management of subsistence use of northern fur seals.
NMFS and ACSPI revised and aligned the co-management agreement for
consistency with this final rule, while maintaining the guiding
principles set out in the original agreement. The revised co-management
agreement recognizes shared responsibilities in the conservation and
cooperative management of fur seals, as well as Steller sea lions and
harbor seals, and allows the co-management process to address
monitoring and reporting of the subsistence seasons and the details of
management of subsistence use. Specifically, the Co-management Council
will use an adaptive management framework to make non-regulatory in-
season adjustments to management decisions such as the locations,
timing, and methods of subsistence use, within the regulatory
parameters allowed by this rule. This also includes, but is not limited
to, monitoring and management of mortality of female fur seals and
seals struck and lost during the hunting season. The Co-management
Council will use environmental, community, and subsistence use data and
information to make in-season decisions regarding how the harvest is
prosecuted, ensuring adherence to the regulatory seasons and the
regulatory limit on the subsistence use of up to 2,000 juvenile fur
seals, of which up to 20 may be female fur seals killed during the
subsistence use seasons.
Changes to Management on St. George Island
In 2006, the Traditional Council of St. George Island, Tribal
Government (Traditional Council) petitioned NMFS to change the
subsistence use management of northern fur seals on St. George. NMFS
worked with the Traditional Council to clarify the petitioned changes
and authorize the annual harvest of up to 150 male young of the year
seals during a second season from September 16 through November 30
within the limits already established every three years under 50 CFR
216.72(b). The action included changes to the authorized subsistence
use locations on St. George applicable to both young of the year and
sub-adult harvests, as well as other regulatory provisions for
conservation of fur seals.
In 2014, NMFS finalized the rule that authorized on St. George the
harvest of up to 150 male young of the year seals, allowed harvests of
sub-adults and young of the year seals at all areas capable of
sustaining a harvest, added a harvest suspension provision if two
females were killed during the year, and specified termination of the
subsistence use seasons for the remainder of the year if three females
were killed (79 FR 65327; November 4, 2014). NMFS changed 50 CFR 216.74
to reflect that the Traditional Council and NMFS had developed a
different subsistence management relationship under Section
[[Page 52375]]
119 of the MMPA. At that time, NMFS did not change the process used to
establish the subsistence needs of the Pribilovians on St. George, so
we continued to specify in triennial notices in the Federal Register
the lower and upper limit of the number of seals required to meet the
subsistence needs on both Islands, per 50 CFR 216.72(b).
ACSPI petitioned for the removal of 50 CFR 216.72(b), which is
applicable to both Islands. In this rule, NMFS removes the requirement
for triennial notices for both Islands, and NMFS establishes in
regulation the maximum number of seals that may be harvested on St.
George Island (500), which is based on the upper limit established by
NMFS (82 FR 39044; August 17, 2017) and agreed to by the Traditional
Council since 1990 (55 FR 30919; July 30, 1990). NMFS also removes
duplicative and unnecessary regulations applicable to subsistence use
on St. George based on the determination that the statutory take
prohibition in the FSA does not also require regulatory prohibitions.
Population and Demographics
NMFS currently manages the northern fur seal population as two
stocks in the U.S.: The Eastern Pacific and the San Miguel stocks. The
Eastern Pacific stock includes northern fur seals breeding on St. Paul,
St. George, and Bogoslof islands and Sea Lion Rock, AK. NMFS designated
the Pribilof Islands northern fur seal population as depleted under the
MMPA on May 18, 1988 (53 FR 17888). Loughlin et al. (1994) estimated
approximately 1.3 million northern fur seals existed worldwide in 1992,
and the Pribilof Islands portion (which later was designated the
Eastern Pacific stock) accounted for about 982,000 seals (74 percent of
the worldwide total). In 1995, NMFS included fur seals breeding on
Bogoslof Island in the estimate of 1,019,192 northern fur seals for the
Eastern Pacific stock (Small and DeMaster 1995). The most recent
estimate for the number of fur seals in the Eastern Pacific stock,
based on pup production estimates from Sea Lion Rock (2014), on St.
Paul and St. George (mean of 2012, 2014, and 2016), and on Bogoslof
Island (mean of 2011 and 2015), is 620,660 (Muto et al. 2019). The
annual pup production trends for the breeding islands in the Eastern
Pacific stock from 1998 to 2016 vary between islands. Between 1998 and
2016, the St. Paul pup production declined 4.12 percent per year (SE =
0.49%; P <0.01); the most recent biennial pup production estimate in
2018 shows continued decline of pup production on St. Paul and an
increase on St. George (Towell et al. 2019). There is no new estimate
for Bogoslof Island. The ongoing decline in pup production at St. Paul
is the determining factor for the overall declining stock estimate
(Muto et al. 2019). The causes of the different trends among breeding
areas are unknown.
Northern fur seals seasonally occupy specific breeding and non-
breeding sites. The age and breeding status of the seals are the main
determinants of where they are found on land during the breeding and
non-breeding season. Non-breeding males occupy resting sites commonly
called hauling grounds or haulout areas during the breeding season and
are excluded from the breeding sites (i.e., rookeries) by adult males.
Adult males defend territories on the breeding sites occupied by
females and pups through August. Beginning about September 1, non-
breeding males of all sizes can be found inter-mixed with breeding aged
females and nursing pups on both rookeries and haulout areas. The
harvests (both commercial and subsistence) of non-breeding males occurs
on these separate hauling grounds. All of the seals begin to comingle
in similar areas in September after adult male fur seals stop defending
habitat. The terrestrial cycles of fur seals are described in detail in
the SEIS (NMFS 2019) and the proposed rule (83 FR 40192, August 14,
2018).
Mixed ages and both sexes of fur seals occupy this larger area that
includes the rookery and haulout areas until December. Thus from
approximately September through December all fur seals generally occupy
similar terrestrial habitat, and there is little if any predictable
separation among males and females as is found earlier in the year.
Pups begin to occupy separate terrestrial areas from non-pups in
September, and make daily transits among the two terrestrial habitat
areas, while spending progressively more time in the water prior to
weaning (Baker and Donahue 2000). They return daily to their nursing
sites, and if their mothers have not returned from a foraging trip the
pups rest or move to the exclusive pup sites. Both areas have been
successfully harvested on St. George Island since the subsistence use
of pups was authorized in 2014 (79 FR 65327, November 4, 2014).
Male fur seals are sexually mature and begin to show secondary
sexual characteristics (e.g., growth of mane, prominent saggital crest,
extreme growth of shoulders and neck) at about seven years old (Gentry
1998). These distinguishing characteristics are the basis for hunters
to target males less than seven years old.
Female fur seals can be distinguished from male fur seals based on
size, canine tooth size, and whisker color. Male fur seals are larger
at all ages, beginning at birth. Males grow faster and larger than
females. As male and female fur seals age, their whiskers change color
from all black (pup) to mixed black and white (two to seven years old)
to all white (older than seven). This whisker color distinction is
important because a four-year-old male is similar in size to a six-
year-old or older female, but the female's whiskers will be all white
and the male's whiskers will be mixed black and white. The size
difference between males and females from birth to two years old is
difficult to visually distinguish from a distance. Upon close
inspection, the lower canine teeth of females are relatively narrower
than a male's lower canine teeth. There are also some differences in
fur coloration, head shape, and behavior between two- to four-year old
males and females, but these characteristics are highly variable and
prone to misclassification when considered alone. Thus, even though the
Priblovians target male fur seals exclusively, the final rule
authorizes the mortality of up to 20 females annually on St. Paul and
up to three females annually on St. George to account for
misidentification of females for males. Towell (2019) modeled the
effects of 20 female mortalities on St. Paul per year, and Towell and
Williams (2016) modeled the effects of three female mortalities on St.
George per year. NMFS (2014, 2019) summarized the results of these and
other analyses to reveal no population level consequences were expected
to occur.
Deregulation of Aspects of the Subsistence Use of Northern Fur Seals
NMFS will continue to regulate the subsistence taking of fur seals
on the Pribilof Islands by sex, age, and season, as contemplated in the
emergency final rule that NMFS promulgated after the cessation of the
commercial harvest of northern fur seals in 1984 (51 FR 24828; July 9,
1986).
Removal of Duplicative Regulatory Provisions Governing Subsistence Use
on St. Paul and St. George Islands
Section 102 of the FSA broadly prohibits the ``taking'' of northern
fur seals (16 U.S.C. 1152). The current regulations governing
subsistence harvest for St. Paul and St. George Islands include
specific prohibitions on the take of certain age classes of fur seals
and the intentional take of female fur seals (50 CFR 216.72(d)(5),
(d)(9), (e)(4)). NMFS has determined that these specific regulatory
provisions prohibiting take were duplicative of the
[[Page 52376]]
more general statutory prohibition on ``taking'' in Section 102 of the
FSA, and thus this rule removes these sections from 50 CFR 216.72:
(d)(5) Any taking of adult fur seals or young of the year, or the
intentional taking of sub-adult female fur seals is prohibited;
(d)(9) Any harvest of sub-adult or adult fur seals or intentional
harvest of young of the year female fur seals is prohibited; and
(e)(4) Any taking of adult fur seals or pups, or the intentional
taking of sub-adult female fur seals is prohibited.
The removal of these duplicative regulatory restrictions will not
result in any changes to subsistence use of northern fur seals on St.
George Island or St. Paul Island.
NMFS determined that the following provisions for St. Paul and St.
George Islands are duplicative of the regulations (50 CFR 216.41)
promulgated for permitting scientific research under the MMPA (16
U.S.C. 1361-1407) and authorizing stranding response under Section 403
of the MMPA (16 U.S.C. 1421b), and thus these sections are removed from
50 CFR 216.72:
(d)(3) Seals with tags and/or entangling debris may only be taken
if so directed by NMFS scientists, and
(e)(6) Seals with tags and/or entangling debris may only be taken
if so directed by NMFS scientists.
NMFS removes these provisions in this final rule, and will continue
to rely on the more recent regulatory processes established under the
MMPA to authorize taking associated with response to fur seals
entangled in marine debris or previously tagged for scientific
research. The removal of these duplicative regulatory restrictions will
not result in any changes to the process to receive authorization for
take associated with response to fur seals entangled in marine debris
or previously tagged for scientific research.
Removal of Unnecessary Regulatory Provisions Governing Subsistence Use
on St. Paul and St. George Islands
This final rule specifies in regulation the maximum number of fur
seals that may be killed for subsistence uses annually on each Island.
Per 50 CFR 216.72(e), Pribilovians on St. Paul may take by hunt and
harvest up to 2,000 juvenile (less than 7 years old, including pups)
fur seals per year for subsistence uses over the course of the hunting
and harvest seasons, including up to 20 female fur seals per year. Per
50 CFR 216.72(d), Pribilovians on St. George may take by harvest for
subsistence uses up to 500 fur seals per year over the course of the
sub-adult male harvest and the young of the year harvest, including up
to 3 female fur seals per year. The maximum harvest of fur seals
authorized is based on the previously established upper limit of the
subsistence need for each Island (82 FR 39044; August 17, 2017), which
has been unchanged since 1992 for St. Paul Island (57 FR 34081; August
3, 1992) and since 1990 for St. George Island (55 FR 30919; July 30,
1990). More detailed information on the basis for setting take at the
levels authorized in this final rule can be found in the proposed rule
(83 FR 40192; August 14, 2018).
The final rule removes reference to a lower limit of the
subsistence need and removes references to the lower limit of the
harvest range for regulations governing harvest on St. George of sub-
adult male fur seals (previously 50 CFR 216.72(d)(1)) and male young of
the year fur seals (previously 50 CFR 216.72(d)(6)). The final rule
eliminates the process to re-assess every three years the subsistence
requirements of the Pribilovians residing on St. Paul and St. George
Islands that was codified at 50 CFR 216.72(b). The final rule
eliminates the suspension of subsistence use when the lower limit of
the range of the subsistence need is reached that was codified at 50
CFR 216.72(f)(1)(iii) and 216.72(f)(3). The final rule removes the
provision for the suspension of subsistence harvest on St. Paul Island
or St. George Island if NMFS determines that the subsistence needs of
the Pribilovians on that Island have been satisfied, which was codified
at 50 CFR 216.72(f)(1)(i). The final rule removes the provision
previously at 50 CFR 216.72(g)(2) that required the termination of the
subsistence harvest if NMFS determines that the upper limit of the
subsistence need has been reached or if NMFS determines that the
subsistence needs of the Pribilovians on either Island have been
satisfied.
The final rule revises the subsistence use termination provisions
at 50 CFR 216.72(g) to be consistent with the new hunting and harvest
seasons for St. Paul and the subsistence use limits for each Island.
The provision at 50 CFR 216.72(g)(1) applies to only St. Paul Island
and: (i) For hunting of juvenile male fur seals with firearms,
terminates the hunting season at the end of the day on May 31 or when
2,000 fur seals have been killed, whichever comes first; (ii) for the
harvest of juvenile male fur seals without firearms, terminates the
harvest season at the end of the day on December 31 or when 2,000 fur
seals have been killed during the year, whichever comes first; or (iii)
terminates the subsistence use seasons when 20 female fur seals have
been killed during the year.
In addition, 50 CFR 216.72(g)(2) applies only to St. George Island
and: (i) For the sub-adult male harvest, terminates the season at the
end of the day on August 8 or when 500 sub-adult male seals have been
harvested, whichever comes first; (ii) for the male young of the year
harvest, terminates the harvest at the end of the day on November 30 or
earlier when the first of either the following occurs: 150 male young
of the year fur seals have been harvested or a total of 500 sub-adult
male fur seals and male young of the year fur seals have been harvested
during the year; or (iii) terminates the subsistence harvest seasons
when 3 female fur seals have been killed during the year.
For St. Paul Island, the final rule removes the regulatory
provision at 50 CFR 216.72(e)(5) that specified the taking of only fur
seals 124.5 cm or less in length. The final rule amends 50 CFR
216.72(e) to authorize take by hunting and harvesting of juvenile seals
(defined as seals under 7 years old) (1) annually from January 1
through May 31 with firearms; and (2) annually from June 23 through
December 31 without the use of firearms. The final rule authorizes up
to 20 female fur seals to be killed during subsistence activities per
year. More detailed information on the age classes authorized for
subsistence use, the hunting and harvest seasons, and female mortality
for St. Paul Island can be found in the proposed rule (83 FR 40192;
August 14, 2018).
Co-Management Provisions
ACSPI's petition did not include regulations authorizing the
incidental take of female fur seals. NMFS evaluated ACSPI's petition
for rulemaking along with other alternatives in the SEIS (NMFS 2019)
and determined that the ``taking'' of fur seals, including incidental
taking of females, must be authorized by regulation (16 U.S.C. 1152,
1155(a)). As noted previously, the final rule authorizes for St. Paul
Island mortality of up to 20 female fur seals each year.
ACSPI petitioned NMFS to include a regulatory provision that would
allow ACSPI to co-manage subsistence use of northern fur seals under a
co-management agreement. The final rule does not include this
regulatory provision because co-management of subsistence use is
authorized under Section 119 of the MMPA (16 U.S.C. 1388) and no
implementing regulations under the FSA are necessary to allow for co-
management between NMFS and ACSPI. ACSPI and NMFS will continue
[[Page 52377]]
their co-management partnership under the MMPA.
NMFS and ACSPI have revised and aligned the Co-management Agreement
to reflect the new regulatory framework governing the subsistence take
of fur seals on St. Paul Island. NMFS and ACSPI will also develop and
finalize in-season monitoring and management plan(s), which would
specify details of monitoring, reporting, and hunting and harvest
management that the Co-management Council would implement via consensus
within the parameters of the regulations. This approach will strengthen
co-management consistent with Section 119 of the MMPA (16 U.S.C. 1388),
insofar as ACSPI would be an equal partner with NMFS in determining the
details of how the subsistence use seasons are managed under the
regulations. ACSPI would monitor the juvenile male hunting and harvest
seasons with independent monitoring by NMFS representatives, while
ensuring compliance with regulatory requirements and any restrictions
or limitations identified in the in-season monitoring and management
plan(s). NMFS and ACPSI would monitor the subsistence use of pups
consistent with the intent of the revised Co-management Agreement,
while also ensuring compliance with regulatory requirements and any
restrictions or limitations identified in the in-season monitoring and
management plan(s).
The final rule removes the heading ``St. George Island'' from
section 50 CFR 216.74(a). The final rule at 50 CFR 216.74 describes the
co-management process and the respective roles of NMFS and the tribes,
clarifying its applicability to both St. George and St. Paul. The final
rule removes 50 CFR 216.74(b), thus, section 216.74 no longer has
subsections.
The final rule replaces all the regulatory restrictions at 50 CFR
216.72(e) to establish a new regulatory framework for St. Paul Island
that is largely consistent with the petition from ACSPI. This includes
removing regulatory restrictions on the location and scheduling of
harvests, the requirement that only experienced sealers are authorized
to harvest seals, and the size restriction authorizing the take of only
furs seals 124.5 cm or less in length. NMFS (2019) determined that most
of the details of subsistence use activities on St. Paul Island,
including the location and scheduling of subsistence use, methods, and
the individuals authorized to participate in the hunting and harvest
seasons, would be more effectively managed by NMFS and ACSPI via the
St. Paul Co-management Council, rather than prescribed by regulation.
The Co-management Council can consider the availability of subsistence
users to participate at different times, while ensuring that
Pribilovians can preserve their cultural practices and environmental
stewardship of fur seals in partnership with NMFS under the regulatory
limits in the final rule. More detailed information on the basis for
removing these regulatory requirements at 50 CFR 216.72(e) can be found
in the proposed rule (83 FR 40192; August 14, 2018).
Comments and Responses
NMFS received comments on the proposed rule (83 FR 40192; August
14, 2018) from ACSPI, the Humane Society of the United States and
Humane Society Legislative Fund, the Marine Mammal Commission
(Commission), and three individuals. A summary of the comments received
and NMFS's responses follows.
Comment 1: Two commenters reiterated their comments submitted on
the draft SEIS. The major issues or statements of concern from these
commenters included: Female mortality, MMPA authority, transparency of
co-management, use of PBR, apparent stock sub-division, availability of
referenced scientific reports, perceived increases to subsistence use,
subsistence use and user monitoring, self-reporting, analysis of
disturbance, wasteful take, struck and lost seals, use of firearms to
hunt, inconsistent use of the term ``negligible,'' edible portion of
meat versus the subsistence need, more recent information on the
population status, and law enforcement.
Response 1: NMFS is authorizing 20 female mortalities, and
population modeling (Towell 2019) suggests this annual level of
subsistence-related female mortality will not have significant
consequences to the population. NMFS corrected the commenter that the
MMPA was not the authority for the regulations, and was instead the
authority for co-management and no implementing regulations were
required to co-manage subsistence use of fur seals. NMFS disagreed with
the comments related to the applicability of using of PBR to manage
human-caused mortality and the implication that NMFS was proposing to
sub-divide the stock. NMFS acknowledges the inadvertent mistakes in
referencing the report by Towell and Williams (2016, replaces Towell
and Williams 2014 or 2015) and the additional analysis applicable to
St. Paul Island (Towell 2019, replaces Towell and Williams
unpublished). NMFS made both references available on the web when the
proposed rule was available for public comment (https://www.fisheries.noaa.gov/action/proposed-modification-subsistence-use-regulations-eastern-pacific-stock-northern-fur-seals). NMFS and ACSPI
are committed to independent and joint subsistence use and user
monitoring under the Co-management Agreement. NMFS disagreed with the
comments about self-reporting and its applicability to monitoring
aspect subsistence use. NMFS disagreed with comments regarding the
population consequences of disturbance. NMFS disagreed with the
suggestion that there were alternatives to hunting with firearms and it
would result in taking in a wasteful manner. NMFS disagreed that the
references of struck and lost from other hunting examples were more
applicable than those NMFS used in their analysis from Steller sea lion
hunting on St. Paul Island over the past 15 years. NMFS disagreed that
we used the term ``negligible'' incorrectly in terms of the NEPA
significance criteria. NMFS disagreed with the request to analyze the
edible portion of meat from different age seals in order to establish
the subsistence needs of St. Paul Island. NMFS does not comment on law
enforcement investigations and provided information on previous
completed cases. NMFS updated the FSEIS with the current population
information. Please see the responses to comments 1, 3-20, 22, 27, 32-
34, 38, and 39 in the Comment Analysis Report (Appendix B) in the 2019
St. Paul final SEIS (NMFS 2019) for further details of the responses
and any revisions in the final SEIS as a result of those public
comments.
Comment 2: One commenter indicated that the proposed rule was based
on faulty documents. The commenter indicated the 2014 FSEIS for
regulatory changes to authorize the St. George subsistence harvest
changes and 2017 DSEIS for the regulatory changes to authorize
subsistence use changes on St. Paul and St. George Islands are the
faulty documents that form the basis of the proposed rule.
Response 2: NMFS disagrees that any faulty documents form the basis
of our decision making in the final rule. The FSEIS for subsistence
harvest management on St. George Island (NMFS 2014), and the DSEIS for
subsistence harvest management on St. Paul Island (NMFS 2017), as well
as the FSEIS for subsistence harvest management on St. Paul Island
(NMFS 2019), contain the required information and analysis for the
development of the proposed (83 FR 40192; August 14,
[[Page 52378]]
2018) and this final rule. Please see the responses to comments 1, 5,
6, 7, 8, 10-19, 22, 27, 32, 33, and 38 in the Comment Analysis Report
(Appendix B) in the 2019 St. Paul final SEIS (NMFS 2019).
Comment 3: One commenter suggested that deregulation of the
subsistence use of northern fur seals is impermissibly risk prone.
Response 3: NMFS disagrees that the removal of certain regulatory
provisions via this rulemaking is risk prone. NMFS's decision to remove
regulatory provisions applicable to the subsistence use of northern fur
seals is based on our determination that a number of regulatory
provisions were redundant, duplicative, and/or unnecessary. Section 102
of the FSA prohibits all taking of northern fur seals (16 U.S.C. 1152)
in the absence of regulations under Section 105 authorizing the taking
of northern fur seals on the Pribilof Islands (16 U.S.C. 1155(a)).
Thus, specific prohibitions or restrictions do not need to be codified
in regulations because the final rule provides the only authorized
subsistence taking of northern fur seals on the Pribilof Islands, and
any other taking of northern fur seals is prohibited directly by the
FSA. The final rule removes other regulatory provisions that were
redundant with the regulations (50 CFR 216.41) promulgated for
permitting scientific research under the MMPA (16 U.S.C. 1361-1407) and
authorizing stranding response under the MMPA (16 U.S.C. 1421b). The
final rule also removes regulatory provisions requiring that NMFS re-
assess every three years the subsistence requirements of the
Pribilovians residing on St. Paul and St. George Islands that was
codified at 50 CFR 216.72(b). NMFS determined this process was
unnecessary because the annual subsistence needs of the Pribilovians
have remained consistent since at least the early 1990s and the
corresponding limits on subsistence use can be codified in regulations
rather than revisited every three years. If circumstances change, NMFS
could reconsider the limits on subsistence use via subsequent
rulemaking.
NMFS also notes that this final rule does not deregulate all
aspects of subsistence use. This final rule establishes a regulatory
limit on the total number of fur seals that may be killed on each
Island each year, including a total limit on female mortality, and
establishes hunting and harvest seasons on St. Paul Island. Existing
regulations on the harvest seasons on St. George Island are unchanged
(50 CFR 216.72(d)). Moreover, the regulations retain the requirement
that all taking of fur seals must be for subsistence uses and not
accomplished in a wasteful manner (50 CFR 216.71).
Comment 4: One commenter suggested the proposed rule would increase
human related mortality in contravention to the goals of the
Conservation Plan for the Eastern Pacific Stock of Northern Fur Seal,
Callorhinus ursinus, specifically the first objective listed in the
Conservation Plan to identify and eliminate or mitigate the cause or
causes of human related mortality of northern fur seals.
Response 4: NMFS disagrees with this comment. The level of
subsistence mortality in the final rule is the same as has been
authorized for many years, and multiple analyses indicate that there
are no adverse population consequences as a result of subsistence
mortality at the levels authorized in the final rule. The number of fur
seals killed may increase relative to the number harvested in recent
years, but would not exceed the level that has been authorized every
year since the early 1990s.
NMFS has identified both authorized and illicit causes of mortality
of northern fur seals related to subsistence use, and this rule will
reduce illicit causes of fur seal mortality as discussed in the DSEIS
(NMFS 2017) and FSEIS (NMFS 2019). The outcome of this rule will allow
NMFS and ACSPI to identify and characterize the full range of
subsistence use mortality on St. Paul Island. In addition, through the
advancement of the co-management partnership with ACSPI, we will be
able to eliminate or mitigate causes of mortality by making annual in-
season adjustments to subsistence activities based on real-time
monitoring data and regular reporting to the Co-management Council. The
combined regulatory and non-regulatory approach to managing subsistence
use mortality is consistent with the first objective of the
Conservation Plan. Further, the Conservation Plan goal referenced by
the commenter includes numerous conservation actions. Conservation
Action 1.3 Evaluate harvests and harvest practices is intended to
understand and mitigate causes of human mortality, and this final rule
would strengthen implementation of that action via improved co-
management. In addition this rule supports Conservation Action 2.1 Work
with the Tribal governments under co-management agreements. We also
refer the reader to response to comment 2 in the Comment Analysis
Report (Appendix B) for the 2019 St. Paul final SEIS (NMFS 2019).
Comment 5: Two commenters indicated that there was not an adequate
justification for the subsistence need, and that NMFS was increasing
the subsistence need.
Response 5: NMFS disagrees that the Pribilovians' subsistence needs
have not been adequately justified. The commenters base their rationale
on the number of seals recently taken for subsistence use as an
indication of the Pribilovians' subsistence needs. The Pribilovians
have long maintained that the current regulatory and management regime
does not allow them to meet their subsistence need (which NMFS
evaluated most recently at 82 FR 39044, August 17, 2017), and NMFS
concurs. As explained in the 2019 St. Paul SEIS and in the proposed
rule, recent harvest levels are not indicative of current and future
subsistence need for each Island. On St. Paul Island, for example, the
current season is limited to only 47-days, from June 23 to August 8,
which conflicts with the commercial halibut season and one of the few
employment opportunities for Pribilovians on the Island. Other
regulatory restrictions, such as the requirement that only experienced
sealers are authorized to take fur seals, can restrict the ability of
Pribilovians to harvest fur seals to meet their subsistence need (83 FR
40192, August 14, 2018; 56 FR 36735, 36739, August 1, 1991).
Moreover, NMFS determined that the existing regulatory approach to
establishing the subsistence need on St. Paul and St. George Islands is
no longer necessary for the several reasons, including: (1) The
estimates of yield of edible meat per fur seal, which were used to
approximate the number of seals thought to fulfill subsistence needs,
are no longer germane factors when evaluating the subsistence needs of
Pribilovians; (2) the use of the lower and upper limit of the
subsistence requirement has not provided the expected flexibility to
the Pribilovians to meet their annual subsistence needs and has proven
to be an unnecessary restriction; (3) estimating the subsistence need
based on nutritional, socio-economic, and cultural factors results in a
more realistic assessment of subsistence need than the exclusive use of
nutritional factors; and (4) given the consistency of the determination
of Pribilovians' subsistence needs for more than 25 years, codifying
the maximum subsistence use levels in regulation would be much more
efficient than continuing to revisit the subsistence need every three
years.
Regarding this final basis, while the final rule could result in
increased numbers of seals killed for subsistence
[[Page 52379]]
uses, the total mortality authorized in regulation would be no greater
than has been authorized continuously for over two decades (St. Paul:
57 FR 34081; August 3, 1992 & St. George: 55 FR 30919; July 30, 1990).
Moreover, total mortality authorized in regulation by this final rule
would have no adverse population-level consequences.
Comment 6: Three commenters expressed concerns about monitoring,
two suggesting the proposed rule would result in a reduction in Federal
monitoring and the need for regulatory requirements for monitoring the
subsistence use of northern fur seals on St. Paul Island. The other
commenter suggested there was a need for continued monitoring of the
population and subsistence.
Response 6: NMFS disagrees that the new regulations will result in
a reduction in Federal monitoring of subsistence use of northern fur
seals. NMFS will continue to independently monitor subsistence use of
northern fur seals on St. Paul to ensure compliance with the
regulations and to inform the decisions of the St. Paul Co-management
Council. Local subsistence use monitoring will also be implemented by
ACSPI. The results of all the monitoring will be shared in-season with
the St. Paul Co-management Council to inform in-season adjustments and
decision-making to ensure authorized take levels (including female
mortality) are not exceeded, subsistence use is not being accomplished
in a wasteful manner, and stress on non-targeted seals is being
minimized.
NMFS's implementation of this new local participatory monitoring
approach is more likely to improve conservation outcomes based on
research by Danielsen et al. (2007) and Eerkes-Medrano et al. (2019).
The commenters indicate that more Federal regulation of subsistence use
of northern fur seals will ensure greater conservation value; however,
Danielsen et al. (2007) shows that ``investment in monitoring that
combines scientific with participatory methods is strikingly more
effective than a similar level of investment alone in generating
conservation management interventions.'' Eerkes-Medrano et al. (2019)
suggests that communities with negative previous experiences with
scientists (e.g., St. Paul) mistrust new projects and engagement by
scientists and managers. They suggest that attempted top-down (i.e.,
regulatory) approaches to management and monitoring are often
unsuccessful and that only through respect and openness to local
perspectives can engagement with local communities improve
communication and conservation outcomes. Consistent with this research,
NMFS expects that the approach adopted in the final rule that increases
the role of co-management in the monitoring and management of the
hunting and harvest seasons on St. Paul Island will improve trust and
communication between NMFS and the St. Paul community.
Comment 7: Two commenters expressed concerns about the reliability
of self-reporting and that NMFS was relying solely on self-reporting to
monitor subsistence use and delegating all subsistence use monitoring
to the ACSPI.
Response 7: See response to comment 6. NMFS is not relying solely
on self-reporting and intends to develop for St. Paul Island
independent monitoring of the new subsistence hunting season and
harvesting after August 8 while continuing to monitor, as needed,
subsistence harvests at other times of the year. This approach of using
multiple methods to monitor natural resource use is encouraged by Gavin
et al. (2010). Multiple methods includes use of independent
investigators (i.e., NMFS, third party contractors, university
researchers, and ACPSI) and retrospective surveys, self-reporting, and
real-time observations to validate results and inform management. In
addition, NMFS is investigating the use of randomized response
techniques (Gavin et al., 2010; Blair et al., 2015; Blank and Gavin
2009) to assess compliance with regulatory and non-regulatory
conservation measures and will work within the St. Paul Co-management
Council process to implement such measures to evaluate compliance.
Comment 8: One commenter indicated that ACSPI maintains the
authority for terminating the hunt at a specific threshold.
Response 8: NMFS disagrees that the ACSPI maintains the authority
for terminating the hunting season on St. Paul Island. Under the final
rule for St. Paul, the hunting and harvest seasons would terminate at
the close of the seasons, if 20 female fur seals are killed, or when
total mortality (juvenile males and females) reaches 2,000 fur seals.
Under the final rule, the St. Paul Co-management Council will implement
non-regulatory restrictions on St. Paul subsistence users, including
decisions as to whether to terminate the hunt and/or harvest prior to
reaching the regulatory limit on annual subsistence use. The St. Paul
Co-management Council includes equal membership by NMFS and ACSPI.
Comment 9: Two commenters identified concerns about the level of
repeated disturbances to females as a result of subsistence use and
need for regulatory restrictions to manage disturbances.
Response 9: We refer the reader to the responses to comments 5, 11,
and 12 in the Comment Analysis Report (Appendix B) in NMFS (2019) (the
2019 St. Paul final SEIS). In summary, NMFS acknowledges concerns about
the possible of effects of repeated subsistence use disturbance;
however, the subsistence harvester behavior and research results to
date on the Pribilof Islands indicate that it is unlikely that
disturbance effects decrease the ability of the population to recover.
For example, while it is possible under the regulations for harvests on
St. George to occur twice per week, that has seldom occurred, and data
indicate the harvest typically happens one time per week during either
season (see https://www.fisheries.noaa.gov/alaska/marine-mammal-protection/northern-fur-seal-subsistence-harvest-estimates-and-reports#subsistence-harvest-estimates). Moreover, as explained in the
2014 St. George SEIS and the 2019 St. Paul SEIS, Ream and Sterling
(2019) and Merrill (2019) found no differences in adult female foraging
trip duration, on-shore attendance duration, and time of departure on
the winter migration between harvested and non-harvested sites using
the comparisons identified in their study design to detect effects from
the pup harvest on St. George Island from 2016 through 2018. Gentry
(1998) and Gentry (1981) examined numerous aspects of the commercial
harvest of northern fur seals on the population. Gentry (1998)
concluded in regards to juvenile males that, ``It is the location of
that site, not the location of kills, that makes a site favorable to
fur seals. Fur seals appear not to choose sites by comparisons; any
predictions that they will move among islands to avoid human activities
is likely to be wrong.'' Further, in regards to females, ``If they
abandon a site it is because they are unable to reach it and still
avoid males, not because some physical quality of the site is
repellant'' (Gentry 1998).
The commenters are asking NMFS to use Federal regulations to
attempt to prevent a perceived problem that past evidence suggests will
not occur. NMFS will continue to work through the St. George and St.
Paul Co-management Councils to assess subsistence user behavior and
determine appropriate non-regulatory measures to mitigate disturbance
to females and other harassment of fur seals incidental to subsistence
use as identified through co-management monitoring, NMFS
[[Page 52380]]
monitoring, and other observations by the public or fur seal
researchers.
Comment 10: One commenter indicated that NMFS should not permit the
use of firearms for subsistence use, as this will result in higher
rates of struck and lost seals, and lead to a wasteful hunt.
Response 10: NMFS has identified that the subsistence needs of the
Pribilovians on St. Paul Island are not currently being met during the
winter and spring, and that the use of firearms is the only practical
method to obtain fresh fur seal meat during those seasons. This method
would be implemented for fur seals similarly to Steller sea lion
hunting. The comparison to struck and lost rates during the terrestrial
subsistence harvest is invalid, because fur seals are not reliably
found on land during winter and spring and the hunting and harvest
methods are very different. NMFS therefore used available data from
hunts of Steller sea lions to estimate fur seal struck and loss rates
during the hunting season. Although struck and lost rates per landed
seal for hunting may be higher than for harvesting, the analyses in the
2014 St. George SEIS and 2019 St. Paul SEIS indicate that the expected
level of struck and lost fur seals will remain low. NMFS expects
hunting to comprise a small proportion of ACSPI's overall effort to
obtain seals for subsistence use, so even if struck and lost rates
initially are higher than anticipated, NMFS expects the number of seals
lost to be small relative to the total take. In addition, the number of
seals struck and lost by subsistence hunters will be estimated from
monitoring by both NMFS and ACSPI, and those losses will be counted
towards the total take each year.
NMFS and ACSPI will address the use of firearms and rates of struck
and lost seals through the co-management process in order to monitor
struck and lost rates based on hunting from land of seals in the water
or on land and hunting from water of seals that are in water. Once data
are available on hunting effort and performance, NMFS and ACSPI will
review the data to make co-management decisions to identify hunting
methods or locations to reduce struck and lost rates as needed.
Overall, the intent is to assess the circumstance and locations that
account for relatively higher struck and lost rates and to subsequently
work with subsistence users to use hunting methods or alternative
hunting locations that result in lower rates of struck and lost seals.
NMFS and ACSPI will work through the co-management process to identify
solutions and implement through co-management, if additional
limitations are required to limit high loss rates in order to ensure
retrieval of struck fur seals consistent with the requirements of 50
CFR 216.71 and 50 CFR 216.3 regarding wasteful manner.
We also refer to the Comment Analysis Report (Response to Comments
14 and 15 in Appendix B) in the 2019 St. Paul Final SEIS (NMFS 2019).
Comment 11: One commenter expressed the need for the co-management
process to solicit public input, provide transparency, and promote
accountability.
Response 11: Co-management of subsistence use is authorized under
Section 119 of the MMPA (16 U.S.C. 1388), and the negotiation of a
revised co-management agreement is a government-to-government process
between NMFS and ACSPI. Nevertheless, NMFS agrees that transparency and
accountability are important considerations for improving co-
management. NMFS will discuss with our co-management partners on St.
Paul and St. George ways to promote accountability and increase
transparency, such as posting subsistence harvest reports, subsistence
use research reports, and the minutes from Co-management Council
meetings on the web as soon as practical. In addition, NMFS notes that
meetings of the Co-management Council are open to the public.
Comment 12: Two commenters recommend a regulatory prohibition on
the intentional taking of female fur seals. One recommended this in
addition to the authorization to take 20 females and the other
commenter proposed the regulation instead of the authorization for 20
female mortalities.
Response 12: NMFS disagrees that prohibiting intentional taking of
females in the regulations is necessary for fur seal subsistence use
management. Enforcing a prohibition on intentional taking of females is
problematic because of the difficulty in establishing intent. Also, as
discussed in the response to comment 3 above, Section 102 of the FSA
prohibits all taking of northern fur seals (16 U.S.C. 1152) in the
absence of regulations under Section 105 authorizing the taking of
northern fur seals on the Pribilof Islands (16 U.S.C. 1155(a)). Thus,
no female fur seals may be taken beyond the specific limits in the
final rule to account for unintended or accidental female takes: 20
females per year for St. Paul and 3 per year for St. George. If these
limits are reached at any point during the year, the regulations
require the termination of subsistence use activities for the remainder
of the year. The regulations also retain the suspension provision for
St. George Island when 2 female fur seals have been killed (50 CFR
216.72(f)). For St. Paul, interim thresholds of female mortality to
suspend subsistence use or other non-regulatory measures to avoid
female mortality and harassment will be developed through the co-
management process between NMFS and ACSPI.
Comment 13: One commenter recommends the need to retain the
regulatory prohibition on harvesting sub-adult seals on St. Paul Island
after August 8.
Response 13: NMFS disagrees with this recommendation. Please refer
to the discussion in the SEIS (NMFS 2019), including responses to
comments 1, 13, and 20 in the Comment Analysis Report (Appendix B) in
the 2019 St. Paul final SEIS. In summary, the termination of
subsistence use in the regulations if 20 females are killed is a strong
incentive for subsistence users to make local decisions about whether
to harvest sub-adult seals after August 8 (when more females are likely
to be present among sub-adult male seals) and what precautions to use
to avoid incidental take of females to lessen the risk of termination
of subsistence use for the remainder of the year. Moreover, ACSPI and
NMFS can adopt additional controls as needed via co-management, such as
establishing separate seasons or limitations at specific locations or
more strict limitations on female mortality, in addition to the
regulatory limit on total annual female mortality. NMFS expects that
these measures create sufficient incentives and controls to minimize
the accidental taking of female fur seals in the future (including
after August 8).
Comment 14: One commenter recommended the regulations include a
number of requirements designed to minimize chances of taking female
seals, limit disturbance, ensure humane taking, and independent
monitoring.
Response 14: NMFS disagrees with this recommendation. Instead of
prescribing additional regulatory limits on subsistence use, NMFS has
determined that broad regulatory limitations of the total annual number
of female and juvenile male mortalities and the hunting and harvesting
seasons are sufficient to conserve and manage the northern fur seal
population on St. Paul Island. Additional limitations on subsistence
activities or use will be determined by consensus of the Co-management
Council to be implemented and monitored to achieve positive
conservation outcomes as described in the northern fur seal
conservation plan.
Please refer to responses to comments 6, 7, and 9 above. Please
also refer to the
[[Page 52381]]
discussion in the SEIS, including the response to comments 5 and 18 in
the Comment Analysis Report in the 2019 St. Paul final SEIS (Appendix B
of NMFS 2019).
Comment 15: One commenter indicated they were not in favor of
changing the regulations to satisfy the Pribilof Island people.
Response 15: The FSA and MMPA both provide for the taking of
northern fur seals to meet the subsistence needs of the Pribilof
Islands Alaska Native residents (Pribilovians). NMFS's federal trust
responsibilities under federal law and under the FSA and MMPA include
recognizing the subsistence food needs (including nutritional and
cultural needs) of Alaska Natives on St. Paul and St. George Islands to
the fullest extent possible consistent with applicable statutes,
implementing regulations, and co-management provisions, which allow for
a formal framework for Alaska Native Organizations (like ACSPI) to
develop co-management agreements with NMFS to conserve marine mammals
and to cooperatively manage those stocks of marine mammals used for
subsistence purposes. Please refer to the discussion in the 2019 St.
Paul SEIS, Chapters 1.5 and 1.6, for more information on NMFS's Federal
Trust Responsibilities and Co-Management of Fur Seals on the Pribilof
Islands.
Comment 16: Two commenters expressed no concerns with the proposed
rule.
Response 16: NMFS appreciates the public support for the rule.
Comment 17: One commenter encouraged NMFS to replace ``traditional
harvest methods'' with ``established harvest methods'' under Sec.
216.72(e)(2) as revised.
Response 17: NMFS agrees. The subsistence harvest methods that
Pribilovians have used under the regulations were modeled after the
methods used in the commercial harvest, and although they are
considered humane for fur seals, they are not traditional methods used
by the Unangan people prior to the commercial harvest. NMFS will revise
the term as suggested by the commenter.
Changes From the Proposed Rule to the Final Rule
NMFS replaced ``traditional harvest methods'' with ``established
harvest methods'' under Sec. 216.72(e)(2), as suggested by a commenter
(see response to comment 17 above).
NMFS made minor changes to the regulatory text from the proposed
rule that do not change the intent or effect of these regulations. NMFS
made minor revisions to the regulatory text in Sec. 216.72(d) and
(e)(3) to clarify that any female mortality during the year will be
counted towards the total authorized mortality each year for each
Island. NMFS also made minor revisions to the regulatory text in Sec.
216.72(g)(2) to clarify that, for St. George Island, the male young of
the year harvest will terminate when any of the following occurs: 150
young of the year fur seals have been harvested during that season, 500
fur seals total have been harvested over the course of both seasons
(the male sub-adult season and the male young of the year season), or
three females are killed.
NMFS replaced ``harvest'' with ``subsistence use'' under Sec.
216.72(a), (f), and (g) and under Sec. 216.74, where those regulations
were referring to subsistence use on both St. Paul Island and St.
George Island, for clarity and consistency with other regulatory
changes. As addressed in this final rule, NMFS is establishing two
subsistence use seasons on St. Paul: A hunting season from January 1 to
May 31 (during which the use of firearms is allowed) and a harvest
season from June 23 to December 31 (during which the use of firearms is
prohibited and harvest will be by established harvest methods). The
harvest seasons established in regulation for St. George are unchanged
(the sub-adult harvest season from June 23 through August 8 and the
young of the year harvest from September 16 through November 30) (50
CFR 216.72(d)). To ensure consistency within the regulations and to
avoid confusion between the hunting and harvest seasons on St. Paul and
the harvest seasons on St. George, NMFS replaced the term ``harvest''
when referring to subsistence use on both Islands with the term
``subsistence use'' throughout 50 CFR 216.72(a), (f), and (g) and 50
CFR 216.74.
Classification
NMFS has determined that this final rule is consistent with the
FSA, MMPA, and other applicable laws. Pursuant to 5 U.S.C. 553(d), the
NMFS Assistant Administrator finds good cause to waive the 30-day delay
in the effective date of this rule because such a delay would be
contrary to the public interest. A delay in effectiveness of the
revised regulations would preclude St. Paul residents from meeting
their subsistence needs this year by delaying the resumption of the
traditional pup fur seal harvest for a full year until 2020, and would
delay regulatory revisions that implement more sustainable subsistence
use practices. In addition, the Assistant Administrator finds that the
regulations would relieve some unnecessary subsistence use restrictions
currently imposed on St. Paul residents by expanding the number of
areas on the island where subsistence activities may occur, by allowing
for subsistence use during a longer season, and by allowing for
subsistence harvests of a younger age class of fur seals. The revised
regulations would allow for sustainable harvesting and hunting
practices that occurred historically, some of which are prohibited
under the current regulations.
National Environmental Policy Act
NMFS prepared an SEIS evaluating the impacts on the human
environment of the subsistence harvest of northern fur seals on St.
Paul Island (NMFS 2019). NMFS also prepared a Supplemental Information
Report to the St. George SEIS (NMFS 2014).
Executive Order 12866 and Regulatory Flexibility Act
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
NMFS prepared a Regulatory Impact Review to carefully assess the
costs and benefits of available regulatory alternatives and to assess
those measures that maximize net benefits to the Nation. A copy of this
Analysis is available from NMFS (see ADDRESSES).
The Chief Counsel for Regulation of the Department of Commerce
certified to the Chief Counsel for Advocacy of the Small Business
Administration (SBA) that this final rule will not have a significant
economic impact on a substantial number of small entities. NMFS
published a proposed rule on August 14, 2018 (83 FR 40192). An initial
regulatory flexibility analysis (IRFA) was prepared and included in the
``Classification'' section of the proposed rule. The comment period
closed on September 13, 2018. No comments were received on the IRFA or
regarding the potential certification at the final rule stage. The
factual basis for certification is as follows:
This action directly regulates the subsistence use of northern fur
seals by Alaska Natives residing in the communities of St. Paul and St.
George. Individual Pribilovians, through the coordination of their
tribal governments, organize volunteer crews to take northern fur seals
consistent with the regulations. NMFS has identified two small tribal
government entities that may be affected by this action--the Aleut
Community of St. Paul Island, Tribal Government, and the Pribilof
Island Aleut Community of St. George Island, Traditional Council (i.e.,
both federally-recognized tribal
[[Page 52382]]
governments). The tribal governments on behalf of their members report
on the level of the subsistence use of northern fur seals to NMFS and
therefore may represent an affected small government jurisdiction. The
tribal governments also participate as equal partners with NMFS in the
co-management of subsistence resources and the conservation of marine
mammals, pursuant to co-management agreements authorized under the
MMPA.
NMFS expects this action to have positive economic impacts to the
small governmental entities affected by the rule; no negative economic
impacts are expected. This final rule, therefore, is not expected to
have a significant economic impact on a substantial number of the small
entities regulated by this proposed action. NMFS indicated its intent,
in the proposed rule, to certify under the Regulatory Flexibility Act
to provide potentially affected entities an opportunity to comment on
potential certification. NMFS received no comments regarding directly
regulated small entities and/or certification.
Executive Order 13175--Native Consultation
Executive Order 13175 of November 6, 2000, the executive Memorandum
of April 29, 1994, the American Indian Native Policy of the U.S.
Department of Commerce (March 30, 1995), and the Department of Commerce
Tribal Consultation and Coordination Policy Statement (78 FR 33331;
June 4, 2013) outline NMFS's responsibilities in matters affecting
tribal interests. Section 161 of Public Law 108-100 (188 Stat. 452), as
amended by section 518 of Public Law 108-447 (118 Stat. 3267), extends
the consultation requirements of E.O. 13175 to Alaska Native
corporations. This final rule was developed through timely and
meaningful consultation and collaboration with the tribal governments
of St. Paul and St. George Islands and the local Native Corporations
(Tanadgusix and Tanaq), and their input is incorporated herein.
Collection-of-Information Requirements
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA), and which has been
approved by OMB under control number 0648-0699. NMFS obtained OMB
control number 0648-0699 for the regulations at 50 CFR 216.71-74, which
apply to both St. Paul and St. George Islands. For St. Paul Island,
public reporting burden for hunt and harvest reporting is estimated to
average 40 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. There are no significant changes in the
collection-of-information requirements for St. Paul or St. George as
part of this action. Send comments regarding these burden estimates or
any other aspect of this data collection, including suggestions for
reducing the burden, to NMFS (see ADDRESSES) and by email to
[email protected], or fax to 202-395-5806.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number. All currently approved NOAA
collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.
Dated: September 27, 2019.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
List of Subjects in 50 CFR Part 216
Alaska, Marine mammals, Pribilof Islands, Reporting and
recordkeeping requirements.
For the reasons set out in the preamble, NMFS amends 50 CFR part
216 as follows:
PART 216--SUBPART F, PRIBILOF ISLANDS, TAKING FOR SUBSISTENCE
PURPOSES
0
1. The authority citation for 50 CFR part 216 continues to read as
follows:
Authority: 16 U.S.C. 1151-1175. 16 U.S.C. 1361-1384
0
2. Amend Sec. 216.72 by:
0
a. Revising the section heading;
0
b. Removing and reserving paragraph (b);
0
c. Revising paragraphs (d) introductory text and (d)(1);
0
d. Removing and reserving paragraphs (d)(3) and (5);
0
e. Revising paragraph (d)(6) introductory text;
0
f. Removing and reserving paragraph (d)(9); and
0
g. Revising paragraphs (e), (f), and (g).
The revisions read as follows:
Sec. 216.72 Restrictions on subsistence use of fur seals.
(a) St. George and St. Paul Islands. The subsistence use of seals
on St. Paul and St. George Islands shall be treated independently for
the purposes of this section. Any suspension, termination, or extension
of subsistence use is applicable only to the island for which it is
issued.
* * * * *
(d) St. George Island. The subsistence fur seal harvest
restrictions described in paragraphs (d)(1) through (5) of this section
apply exclusively to the harvest of sub-adult fur seals; restrictions
that apply exclusively to the harvest of young of the year fur seals
can be found in paragraphs (d)(6) through (11) of this section. For the
taking of fur seals for subsistence uses, Pribilovians on St. George
Island may harvest up to a total of 500 male fur seals per year over
the course of both the sub-adult male harvest and the male young of the
year harvest. Pribilovians are authorized each year up to three
mortalities of female fur seals associated with the subsistence
seasons. Any female fur seal mortalities will be included in the total
authorized subsistence harvest of 500 fur seals per year.
(1) Pribilovians may only harvest sub-adult male fur seals 124.5
centimeters or less in length from June 23 through August 8 annually on
St. George Island.
* * * * *
(6) Pribilovians may only harvest male young of the year from
September 16 through November 30 annually on St. George Island.
Pribilovians may harvest up to 150 male fur seal young of the year
annually.
* * * * *
(e) St. Paul Island. For the taking of fur seals for subsistence
uses, Pribilovians on St. Paul Island are authorized to take by hunt
and harvest up to 2,000 juvenile (less than 7 years old, including
pups) male fur seals per year.
(1) Juvenile male fur seals may be killed with firearms from
January 1 through May 31 annually, or may be killed using alternative
hunting methods developed through the St. Paul Island Co-management
Council if those methods are consistent with Sec. 216.71 and result in
substantially similar effects. A firearm is any weapon, such as a
pistol or rifle, capable of firing a missile using an explosive charge
as a propellant.
(2) Juvenile male fur seals may be harvested without the use of
firearms from June 23 through December 31 annually. Authorized harvest
may be by established harvest methods of herding and stunning followed
immediately by exsanguination, or by alternative harvest methods
developed through the St. Paul Island Co-management Council if those
methods are consistent with Sec. 216.71
[[Page 52383]]
and result in substantially similar effects.
(3) Pribilovians are authorized each year up to 20 mortalities of
female fur seals associated with the subsistence seasons. Any female
fur seal mortalities will be included in the total number of fur seals
authorized per year for subsistence uses (2,000).
(f) Subsistence use suspension provisions. (1) The Assistant
Administrator is required to suspend the take provided for in Sec.
216.71 on St. George and/or St. Paul Islands, as appropriate, when:
(i) He or she determines that subsistence use is being conducted in
a wasteful manner; or
(ii) With regard to St. George Island, two female fur seals have
been killed during the subsistence seasons on St. George Island.
(2) A suspension based on a determination under paragraph (f)(1)(i)
of this section may be lifted by the Assistant Administrator if he or
she finds that the conditions that led to the determination that
subsistence use was being conducted in a wasteful manner have been
remedied.
(3) A suspension based on a determination under paragraph
(f)(1)(ii) of this section may be lifted by the Assistant Administrator
if he or she finds that the conditions that led to the killing of two
female fur seals on St. George Island have been remedied and additional
or improved methods to detect female fur seals during the subsistence
seasons are being implemented.
(g) Subsistence use termination provisions. The Assistant
Administrator shall terminate the annual take provided for in Sec.
216.71 on the Pribilof Islands, as follows:
(1) For St. Paul Island:
(i) For the hunting of juvenile male fur seals with firearms, at
the end of the day on May 31 or when 2,000 fur seals have been killed,
whichever comes first;
(ii) For the harvest of juvenile male fur seals without firearms,
at the end of the day on December 31 or when 2,000 fur seals have been
killed, whichever comes first; or
(iii) When 20 female fur seals have been killed during the
subsistence seasons.
(2) For St. George Island:
(i) For the sub-adult male harvest, at the end of the day on August
8 or when 500 sub-adult male seals have been harvested, whichever comes
first;
(ii) For the male young of the year harvest, at the end of the day
on November 30 or earlier when either of the following occurs first:
150 male young of the year fur seals have been harvested or a total of
500 male sub-adult and male young of the year fur seals have been
harvested; or
(iii) When three female fur seals have been killed during the
subsistence seasons.
0
3. Revise Sec. 216.74 to read as follows:
Sec. 216.74 Cooperation between fur seal subsistence users, tribal
and Federal officials.
Federal scientists and Pribilovians cooperatively manage the
subsistence use of northern fur seals under section 119 of the Marine
Mammal Protection Act (16 U.S.C. 1388). The federally recognized tribes
on the Pribilof Islands have signed agreements describing a shared
interest in the conservation and management of fur seals and the
designation of co-management councils that meet and address the
purposes of the co-management agreements for representatives from NMFS,
St. George and St. Paul tribal governments. NMFS representatives are
responsible for compiling information related to sources of human-
caused mortality and serious injury of marine mammals. The Pribilovians
are responsible for reporting their subsistence needs and actual level
of subsistence take. This information is used to update stock
assessment reports and make determinations under Sec. 216.72.
Pribilovians who take fur seals for subsistence uses collaborate with
NMFS representatives and the respective Tribal representatives to
consider best subsistence use practices under co-management and to
facilitate scientific research.
[FR Doc. 2019-21450 Filed 9-27-19; 4:15 pm]
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