[Federal Register Volume 63, Number 65 (Monday, April 6, 1998)]
[Rules and Regulations]
[Pages 16701-16704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8845]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 230

[I.D. 022398A]


Whaling Provisions; Aboriginal Subsistence Whaling Quotas

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice of aboriginal subsistence whaling quotas.

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SUMMARY: NMFS announces aboriginal subsistence whaling quotas and other 
limitations deriving from regulations adopted at the 1997 Annual 
Meeting of the International Whaling Commission (IWC). For 1998, the 
quotas are 77 bowhead whales struck, and 5 gray whales landed. These 
quotas and other limitations will govern the harvest of bowhead whales 
by members of the Alaska Eskimo Whaling Commission (AEWC) and the 
harvest of gray whales

[[Page 16702]]

by members of the Makah Indian Tribe (Tribe). These are initial quotas 
that will remain in effect for the 1998 season unless they are revised 
as a result of the completion of arrangements with the Russian 
Federation. Any revisions to the quotas will be published in the 
Federal Register.

DATES: Effective April 6, 1998. Comments on the aboriginal subsistence 
whaling quotas and related limitations must be received by May 6, 1998.
ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Catherine Corson, (301) 713-2322.

SUPPLEMENTARY INFORMATION: Aboriginal subsistence whaling in the United 
States is governed by the Whaling Convention Act (WCA), 16 U.S.C. 916 
et seq., and by rules at 50 CFR part 230. The rules require the 
Secretary of Commerce (Secretary) to publish, at least annually, 
aboriginal subsistence whaling quotas and any other limitations on 
aboriginal subsistence whaling deriving from regulations of the IWC.
    At the 1997 Annual Meeting of the IWC, the Commission set quotas 
for aboriginal subsistence use of bowhead whales from the Bering-
Chukchi-Beaufort Seas stock, and gray whales from the Eastern stock in 
the North Pacific. The bowhead quota was based on a joint request by 
the United States and the Russian Federation, accompanied by 
documentation concerning the needs of two Native groups, Alaska Eskimos 
and Chukotka Natives in the Russian Far East. The gray whale quota was 
also based on a joint request by the Russian Federation and the United 
States, again with documentation of the needs of two Native groups, the 
Chukotka Natives and the Makah Indian Tribe in Washington State.
    These actions by the IWC thus authorized aboriginal subsistence 
whaling by the AEWC for bowhead whales, and by the Tribe for gray 
whales, as discussed in greater detail in this document (see 
``Background information'' and ``1997 Annual Meeting''). The harvests 
will be conducted in accordance with cooperative agreements between 
NOAA and the AEWC, and between NOAA and the Makah Tribal Council 
(Council); these agreements are the means by which NOAA recognizes the 
AEWC and the Tribe as Native American whaling organizations under 50 
CFR part 230.

Quotas

    The IWC set a 5-year block quota of 280 bowhead whales landed. For 
each of the years 1998-2002, the number of bowhead whales struck may 
not exceed 67, except that any unused portion of a strike quota from 
any year, including 15 unused strikes from the 1995-97 quota, may be 
carried forward. No more than 15 strikes may be added to the strike 
quota for any 1 year. At the end of the 1997 harvest, there were 15 
unused strikes available for carry-forward, so the combined strike 
quota for 1998 is 82 (67 + 15). Because the quota approved by the IWC 
in 1997 was based in part on a request for five bowheads a year for the 
Chukotka people, the 1998 quota for the AEWC is 77 strikes (82 - 5). 
The AEWC will allocate these strikes among the 10 villages whose 
cultural and subsistence needs have been documented in past requests 
for bowhead quotas from the IWC.
    The United States and the Russian Federation plan to conclude an 
arrangement to ensure that the total quota of bowhead whales landed and 
struck will not exceed the quotas set by the IWC.
    The IWC also set a 5-year block quota (1998-2002) of 620 gray 
whales, with an annual cap of 140 animals taken. The IWC regulation 
does not address the number of allowed strikes. The requested quota and 
accompanying documentation assumed an average annual harvest of 120 
whales by the Chukotka people and an average annual harvest of 4 whales 
by the Makah Indian Tribe. In accordance with the agreement between 
NOAA and the Council, the Makah hunters will take no more than five 
gray whales in any 1 year. The Council will manage the harvest to use 
no more than 33 strikes over the 5-year period, and will take measures 
to ensure that the overall ratio of struck whales to landed whales does 
not exceed 2:1. Because the U.S. request for a gray whale quota was not 
based on the needs of separate whaling villages, but rather on the 
needs of the Tribe as a whole, the Council will allocate the quota 
among whaling captains to whom permits have been issued.
    The United States and the Russian Federation will also conclude an 
arrangement to ensure that the block quota and annual cap for gray 
whales are not exceeded.

Other Limitations

    The IWC regulations, as well as the NOAA rule at 50 CFR 230.4(c), 
forbid the taking of calves or any whale accompanied by a calf.
    NOAA rules (at 50 CFR part 230) contain a number of other 
provisions relating to aboriginal subsistence whaling, some of which 
are summarized here. Only licensed whaling captains, or crew under the 
control of those captains, may engage in whaling. They must follow the 
provisions of the relevant cooperative agreement between NOAA and a 
Native American whaling organization (the AEWC or the Council), as well 
as applicable rules in part 230. The aboriginal hunters must have 
adequate crew, supplies, and equipment. They may not receive money for 
participating in the hunt. No person may sell or offer for sale whale 
products from whales taken in the hunt, except for authentic articles 
of Native handicrafts. Captains may not continue to whale after the 
relevant quota is taken, the season has been closed, or their licenses 
have been suspended. They may not engage in whaling in a wasteful 
manner.

Background Information

    The United States is a member of the IWC, the body established by 
the International Convention for the Regulation of Whaling (ICRW). U.S. 
participation in the IWC and management of whaling activities under 
U.S. jurisdiction are governed by the WCA, which requires that relevant 
IWC regulations be submitted by the Secretary for publication in the 
Federal Register. This notice fulfills that requirement.
    The IWC's primary function is the adoption of regulations (called 
the ``Schedule''), which are considered an integral part of the 
Convention. Since the late 1970s, the IWC has set quotas for the 
aboriginal subsistence harvest of whales from several stocks, including 
bowhead whales from the Bering-Chukchi-Beaufort Seas stock and gray 
whales from the Eastern stock in the North Pacific. Although the IWC 
sets quotas for the aboriginal subsistence harvest of these stocks at 
the request of a Contracting Government, the quotas are not assigned to 
a particular group of aborigines or to a particular country. The reason 
for this is found in Article V.2.c of the ICRW, which specifies that 
regulations may not ``allocate specific quotas to any factory or ship 
or land station or to any group of factory ships or land stations.''
    During the 2 decades that the IWC has set quotas for aboriginal 
whaling, it has been the case that only one Contracting Government has 
made a request for a quota from any one stock. During the 1980s, 
however, up to 10 animals of the gray whale quota based on the Soviet 
Union's request were understood by the IWC to be available for take by 
Alaska Eskimos, through an informal

[[Page 16703]]

arrangement between the Soviet Union and the United States. This 
arrangement was modeled on the bilateral or multilateral arrangements 
of Contracting Parties to allocate commercial quotas set by the IWC 
before the moratorium on commercial whaling took effect. Catches of 
gray whales for aboriginal subsistence use by Alaska Eskimos, when they 
occurred, were reported by the United States each year and were 
published in the Annual Reports of the IWC. No IWC member objected to 
these catches.
    During these 2 decades, the IWC has never established a mechanism 
for recognizing the subsistence needs of an aboriginal group, other 
than by setting a quota based on the documentation of those needs by 
the Contracting Government. The IWC has never adopted a resolution or 
taken any other action explicitly recognizing subsistence needs of a 
particular group. While Alaska Eskimos were taking gray whales in the 
1980s, the only indications in the IWC record of the U.S.-Soviet 
arrangement were brief floor statements noting the existence of the 
bilateral agreement.
    The IWC has developed the practice of setting aboriginal quotas 
that are in place for 3 or 4 years. For example, the IWC in 1994 set a 
quota of 140 gray whales for each of the years 1995-97, based on a 
proposal by the Russian Federation. At the same meeting, the IWC 
adopted by consensus a proposal by the United States for a total of 204 
bowhead whales for the years 1995-98, where an annual cap on strikes 
was also specified.
    In 1996, when the United States first put forward the proposal for 
a gray whale quota for the Makah Indian Tribe, the U.S. delegation did 
not ask the Russians to share the existing (1995-97) quota of 140 per 
year, which had been based on the subsistence needs of the Chukotka 
people. Instead, it requested an increase in the existing quota; the 
U.S. proposed to allow an additional take from the same stock of up to 
five gray whales a year in the years 1997-2000 from waters off the west 
coast of the United States. This approach was consistent with the U.S. 
position that each country wishing to establish or continue an 
aboriginal subsistence hunt must submit its own unique documentation 
(``needs statement''), justifying its request for the setting of an 
appropriate quota. While the U.S. proposal had considerable support at 
the 1996 annual meeting, it did not appear to have the necessary three-
quarters majority vote for a Schedule amendment and was withdrawn 
before a vote was taken.

1997 Annual Meeting

    In preparation for the IWC's Annual Meeting in October 1997, the 
U.S. delegation began considering suggestions from other Commissioners 
that the United States should find a way to share a gray whale quota 
with the Russians, preferably a quota lower than the combined requests 
of 145 per year. This approach had implications for the U.S. position 
that aboriginal subsistence quotas should be based on unique 
documentation of the needs of each aboriginal group, as well as on the 
conservation requirements of each stock.
    Because the gray whale quota of 140 per year would expire in 1997, 
the Russians had to propose a new Schedule amendment at the 1997 annual 
meeting. Extensions of quotas are not automatic; they require the same 
three-quarters or consensus vote as any other Schedule amendment. In 
August 1997 the Russian government submitted to the IWC a request for 
an annual quota of 140 gray whales for the years 1998-2002. At the same 
time, the U.S. government stated its intention to propose an amendment 
to the Schedule for gray whales. Both countries submitted needs 
statements documenting the subsistence needs of their Native groups. 
Both governments also indicated they would propose amendments to the 
Schedule provision on bowhead whales.
    As explained, 1997 was the first year when two Contracting 
Governments were simultaneously requesting quotas from the same stock 
for purposes of aboriginal subsistence whaling. After extensive 
discussions with the AEWC about bowhead whales and the Makah Tribe 
about gray whales, as well as an internal policy review, the U.S. 
delegation consulted with the Russian delegation on the appropriate 
formulation of Schedule language, given the Convention's prohibition 
against allocating quotas to individual countries and the desire 
expressed by some delegations for a shared quota.
    The Russian and U.S. delegations each made a presentation about the 
needs of their Native groups for gray whales and bowhead whales at the 
meeting of the IWC's Aboriginal Subsistence Whaling Subcommittee on 
October 18, 1997. The needs statements were each discussed at 
considerable length by the Subcommittee.
    Following the meeting of the Subcommittee, the two delegations 
again consulted and decided to submit joint proposals for Schedule 
amendments for the gray whale and bowhead whale quotas. The joint 
proposal for a block quota for bowhead whales was adopted by consensus 
on the afternoon of October 22, 1997.
    The joint proposal for a gray whale quota began with the customary 
introductory language:

    The taking of gray whales from the Eastern stock in the North 
Pacific is permitted, but only by aborigines or a Contracting Party 
on behalf of aborigines, and then only when the meat and products of 
such whales are to be used exclusively for local consumption by the 
aborigines.

    The proposal then specified, for the years 1998-2002, that the 
number of gray whales not exceed 620, provided that the number of gray 
whales taken in any 1 of the years 1998-2002 not exceed 140.
    The two delegations also circulated a written explanation and 
delivered oral statements demonstrating the basis for the proposed 
numbers. The 5-year block quota of 620 represented a reduction of 105 
from the combined original requests. The total of 620 assumed an 
average annual harvest of 120 by the Chukotka people and 4 by the Makah 
Tribe. The joint explanation said that the block quota would be 
allocated through a bilateral arrangement.
    The gray whale proposal was debated in a plenary session on the 
afternoon of October 22, 1997. Some delegations suggested that an 
amendment should be made to the introductory portion of the proposal. 
Debate was then adjourned to allow for consultation among the 
delegations.
    One delegation proposed to the U.S. delegation that the following 
words be added: ``whose traditional subsistence and cultural needs have 
been recognized by the International Whaling Commission''. U.S. 
delegates responded that the words ``by the International Whaling 
Commission'' were not acceptable, because the IWC had no established 
mechanism for recognizing such needs, other than adoption of a quota.
    At a Commissioners-only meeting the next morning, the U.S. 
representatives expressed their understanding that adoption of a quota 
in the Schedule constituted IWC approval, with no further action 
required. A clear majority of Commissioners then expressed their 
support for the U.S. approach. When the plenary session resumed, the 
Chair announced that a consensus had been achieved. The Russia-United 
States proposal for a gray whale quota was adopted on October 23, 1997, 
without a vote or further debate, with the addition of the words 
``whose traditional aboriginal subsistence and cultural needs have been 
recognized''.

[[Page 16704]]

    NOAA therefore concludes that the gray whale quota set by the IWC 
is available for use, under the limitations set forth above, by members 
of the Makah Tribe. The Tribe's subsistence and cultural needs have 
been recognized by the IWC's setting a quota for gray whales based on 
the documentation of those needs, and by the United States in the NOAA-
Council agreement and other documents.

Procedural Matters

    Licensing: A question has been raised about the method of issuing 
licenses to aboriginal hunters. Since 1979, NOAA's rules (at 50 CFR 
230.5) have automatically issued a license to whaling captains 
identified by the relevant Native American whaling organization. The 
Assistant Administrator for Fisheries, as well as the two 
organizations, may suspend the license of any captain who does not 
comply with NOAA's rules.
    This rule serves the statutory purposes of identifying hunters who 
are allowed to take whales in the subsistence harvest; ensuring that 
hunters have adequate crews, supplies, and equipment; and enforcing 
applicable rules, including the prohibition against receiving money for 
participation in the hunt. NOAA relies upon the Native American whaling 
organizations to make the administrative decision as to the eligibility 
of whaling captains. The rule thus minimizes Federal interference in 
the Native American organizations' administration of the subsistence 
hunt. Over the years, it has proved to be an effective and efficient 
means of complying with the WCA while allowing self-governance by 
Native groups.
    Environmental assessment: A draft environmental assessment (EA) on 
the Makah harvest of gray whales was made available for public comment 
on August 22, 1997. The final EA was completed on October 17, 1997 (see 
62 FR 5393). The EA weighed the impacts of the U.S. government's 
support of the Makah request to continue their traditional practice of 
whaling, and considered several alternatives. The EA, which 
incorporated and responded to public comments, concluded that the 
proposed action would have no significant impact on the human 
environment.
    Monitoring program: NMFS and the IWC have been monitoring the 
status and population trends of the gray whale for several decades. 
NMFS and its predecessor agencies have monitored the eastern North 
Pacific stock of gray whale during its southbound migration since 1952; 
annual gray whale shore surveys off California were conducted between 
1967-68 and 1980-81, and between 1984-85 and 1987-88. NMFS conducted a 
status review for the gray whale and certain other species in 1984 (49 
FR 44774, November 9, 1984) and 1991 (56 FR 29471, June 27, 1991). For 
the status reviews, NMFS estimated that the eastern North Pacific stock 
of gray whale was increasing at an annual rate of approximately 2.5 
percent, and had recovered to or exceeded its population size prior to 
commercial exploitation. By the time of the 1991 status review, the 
estimate of abundance for this stock was 21,113.
    With the determination to remove the eastern North Pacific stock of 
the gray whale from the List of Endangered and Threatened Wildlife, 
NMFS indicated its intention to implement a 5-year program to monitor 
the status of this stock, 58 FR 3121 at 3135 (January 7, 1993). The 
contents of this monitoring program are summarized in 59 FR 28846 (June 
3, 1994), and Gray Whale Monitoring Task Group, A 5-year Plan for 
Research and Monitoring of the Eastern North Pacific Population of Gray 
Whales (NMFS, October 1993). NMFS is now implementing this monitoring 
program.
    Results from research conducted under the 5-year monitoring program 
indicate that the population remains healthy and is continuing to 
recover to levels approaching its carrying capacity, i.e., its 
equilibrium population. Surveys of northbound migrating cow/calf pairs 
were conducted between 1994 and 1997. Indices of calf production 
(estimate of number of calves/total population estimate) were 4.4 
percent in 1994, 2.6 percent in 1995, 5.1 percent in 1996, and 6.5 
percent in 1997. These values were similar to values reported from 
surveys of northbound migrating cow/calf pairs conducted in the early 
1980s. Another northbound survey will be conducted in 1998.
    Estimates of abundance from the southbound migration were made 
during the winters of 1992-93, 1993-1994, and 1995-96. The population 
estimate from the 1992-93 survey was 17,674 and the 1993-94 estimate 
was 23,109. The most recent shore count of the southbound migration was 
made between December 1995 and February 1996; the resulting estimate 
was 22,571. The 1993-94 and 1995-96 estimates are not statistically 
different from each other. The final southbound migration shore survey 
for the 5-year period following delisting had to be suspended in early 
February 1998 due to severe weather.
    Data from all the surveys will be used to assess the status of this 
stock (e.g., estimated population status relative to carrying capacity, 
estimated rate of increase). A workshop to review a draft status report 
is scheduled for the summer of 1999.
    Research concerning the carrying capacity for the eastern North 
Pacific stock of gray whale also was recommended in the 5-year research 
and monitoring plan. Based on a revised Bayesian analysis of gray whale 
population dynamics, point estimates for the equilibrium population 
(i.e., the carrying capacity) ranged from 25,130 to 30,140, depending 
upon the starting year of the trajectory.
    Results from research conducted under the 5-year research and 
monitoring program and earlier studies indicate that the eastern North 
Pacific stock of gray whale continues to increase at a rate of 
approximately 2.5 percent per year. These results are consistent with 
the conclusion that the take of five additional gray whales per year by 
the Makah Tribe will have no significant impact on the eastern North 
Pacific stock of gray whale.

Classification

    The Assistant Administrator is issuing the aboriginal subsistence 
whaling quotas for the 1998 season, consistent with action taken by the 
International Whaling Commission, as required by the Whaling Convention 
Act, 16 U.S.C. 916 et seq. Consequently, this notice constitutes a 
foreign affairs function, exempt from the requirement to provide prior 
notice and opportunity for public comment under 5 U.S.C. 553(a)(1).
    Because prior notice and an opportunity for public comment are not 
required to be provided for this notice by 5 U.S.C. 553,or any other 
law, the analytical requirements for the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., are not applicable.

    Dated: March 30, 1998.
Dave Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 98-8845 Filed 3-31-98; 3:13 pm]
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