[Federal Register Volume 64, Number 99 (Monday, May 24, 1999)]
[Rules and Regulations]
[Pages 27925-27928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13083]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990414095-9095-01; I.D. 033199B]
RIN 0648-AM57


Regulations Governing the Taking of Marine Mammals by Alaskan 
Natives; Marking and Reporting of Beluga Whales Harvested in Cook Inlet

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

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule amends 50 CFR 216.23 to require the 
marking and reporting of beluga whales, Delphinapterus leucas, 
harvested from Cook Inlet, Alaska, by Alaskan Natives. Comments are 
requested. The marking and reporting is necessary to provide essential 
biological data for the management and conservation of the stock. The 
effect of the information will be to provide a more sound scientific 
basis for management of the stock.

DATES: Effective May 24, 1999. Comments on the interim rule will be 
accepted until June 23, 1999.
ADDRESSES: Comments on the interim rule should be addressed to the 
Assistant Regional Administrator for Protected Resources, National 
Marine Fisheries Service, P.O. Box 21668, Juneau, Alaska 99802-1668. A 
copy of the Environmental Assessment for this action may be obtained by 
contacting Brad Smith; NMFS, 222 West 7th Avenue, Box 43, 
Anchorage, Alaska 99513. Comments regarding the burden-hour estimate or 
any other aspect of the collection of information in this rule should 
be sent to the preceding individual and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget (OMB), 
Attention: NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Brad Smith: telephone (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act of 1972 (MMPA), as amended, was 
enacted for the purpose of ensuring the long-term survival of marine 
mammals by establishing Federal responsibility for their conservation 
and management. The MMPA imposed a general

[[Page 27926]]

moratorium on the taking of marine mammals. Section 101(b) of the MMPA 
provides an exemption allowing Alaskan Natives to harvest marine 
mammals for subsistence or for purposes of Native handicraft. The 
Congress, on October 9, 1981, amended the MMPA with the passage of 
Public Law 97-58 that, among other things, added section 109(i). This 
section authorizes the Secretary of Commerce (Secretary) to prescribe 
regulations requiring the marking, tagging, and reporting of animals 
taken pursuant to section 101(b) ``after providing notice thereof in 
the Federal Register and in newspapers of general circulation, and 
through appropriate electronic media, in the affected area and 
providing opportunity for a hearing thereon in such area.'' Section 
109(i) was enacted to enable the Secretary to gather sufficient 
information on the harvest and biology of marine mammals taken by 
Alaskan Natives to determine what effect such taking was having on 
these populations.
    The interim final rule requires Alaskan Natives, upon harvesting a 
beluga whale from Cook Inlet, Alaska, to (1) remove the lower left 
jawbone, (2) provide the jawbone to NMFS, and (3) provide information 
on the circumstances of the harvesting of the whale.

Status of Stock

    The Cook Inlet stock of beluga whale is genetically and 
geographically isolated from other Alaskan populations of beluga 
whales. NMFS has conducted annual surveys of the Cook Inlet beluga 
whale between 1994 and 1998. Results show a severe decline in estimated 
abundance, with the 1998 estimate (347 animals) nearly 50 percent lower 
than the 1994 estimate (653 animals). Reliable historical estimates of 
abundance are not available; however, Native hunters have stated their 
belief the stock numbered at least 1,000 animals as recently as the 
1980s.
    Responding to the dramatic decline in this stock, NMFS initiated a 
Status Review of the Cook Inlet stock on November 11, 1998. This 
process will evaluate the health of the stock and make recommendations 
for possible designation under the MMPA and/or Endangered Species Act 
(ESA).
    Recommendations from this review are expected to be published at 
the end of May 1999.

Native Harvest

    The Cook Inlet beluga whale stock is hunted by Alaskan Natives, 
some of whom reside in communities on or near Cook Inlet and some of 
whom are from other Alaskan towns and villages. The whales concentrate 
off the mouths of several rivers entering upper Cook Inlet during the 
ice-free season, making them especially vulnerable to hunting. Most 
hunters use small motorboats launched from Anchorage, and hunt near the 
river mouths. Common hunting technique is to isolate a whale from a 
group and pursue it into shallow waters. Whales are shot with high 
powered rifles and may be harpooned to aid in recovery. The muktuk 
(skin and blubber), flippers, and tail flukes are normally harvested 
for food, while some hunters may also retain the meat. Subsistence 
harvest levels of Cook Inlet beluga whales are largely unreported.
    The Cook Inlet Marine Mammal Council (CIMMC) is an organization of 
Cook Inlet treaty tribes, Native hunters, and concerned Alaskan 
Natives. The CIMMC was established to promote conservation, management, 
and utilization of Cook Inlet marine mammals by Alaskan Natives. The 
CIMMC provided estimates of Native harvest for 1995 and 1996, which 
indicated 42 beluga whales were landed in 1995 with an additional 26 
struck and lost. The 1996 harvest was estimated as 49 beluga whales 
landed and 49-98 additional whales struck and lost. Because many Native 
hunters in Cook Inlet are not affiliated with the CIMMC, these 
estimates may not include a substantial portion of the overall harvest. 
Similarly, reports of the number of beluga whales that are struck and 
lost are not accurately reported because (1) surveys within the hunting 
community have been sporadic, (2) hunters have stated reluctance to 
report, (3) surveys have been conducted after the hunting season, 
relying on accurate memory of multiple events, and (4) a portion of 
these hunters are not known to NMFS or CIMMC and have not been 
surveyed. Therefore, NMFS has determined that promulgation of reporting 
regulations is necessary to establish reliable harvest estimates.
    NMFS has modeled the viability of the Cook Inlet beluga whale 
stock. Analyses indicate that annual recruitment for this stock of 
beluga whales is 4 percent. NMFS has determined that no more than 2 
percent of the population should be removed annually in order to 
prevent further decline and provide for the recovery and conservation 
of the stock. Recent Native subsistence harvest removals, therefore, 
are in excess of ten times this level. At a current population decline 
of 15 percent per year, which accounts for some recruitment to the 
population, the Cook Inlet beluga whale stock would be reduced to 50 
percent of its current level within 5 years. Without accurate and 
timely information on the Native subsistence harvest, NMFS' ability to 
execute its Federal mandate to conserve this stock will be greatly 
compromised. Harvest reductions may be achieved through on-going 
efforts for the cooperative management of this stock between NMFS and 
CIMMC. Additionally, NMFS may promulgate regulations to regulate Native 
harvest under the MMPA or ESA. However, such regulations require the 
stock to first be listed as a threatened or endangered species, or as a 
depleted stock under the MMPA. Because of this requirement and the 
procedural requirements for rulemaking to regulate the harvest, such 
regulations cannot be completed in time to address the 1999 harvest 
season. The potential impact of the 1999 harvest on the stock 
necessitates an accurate count of the number of whales harvested. If 
the effort to obtain a co-management agreement is successful, the data 
will provide information on how well the agreement is working. If 
unsuccessful, information on harvest levels becomes important to 
management actions that will be required in the future.

Marking

    The interim regulation requires each whaling captain to collect the 
left lower jawbone (with teeth left in place) from beluga whales 
harvested from Cook Inlet. The jawbone may be removed with a knife, 
labeled, and placed into a plastic (garbage) bag for transport. The 
left lower jawbone weighs less than 5 pounds and does not represent a 
hardship to collect or transport. The whaling captain or vessel 
operator is required to provide these samples to the NMFS Anchorage 
Field Office at 222 West 7th Avenue, Anchorage, Alaska 
99513, within 72 hours of returning from the hunt. NMFS biologists, or 
a NMFS-designated contact, will receive and tag these samples and 
provide a reporting form to the whaling captain or vessel operator.

Marking Objectives

    The collection of the intact lower jawbone from each harvested 
beluga whale will improve the present accuracy of estimated Native 
harvest. Teeth from the jawbone will be analyzed to determine the age 
of the animal. Flesh from the jawbone will be used to determine the sex 
of the whale and for genetic studies of the Cook Inlet beluga whale 
stock. NMFS surveys often find dead beluga whales along Cook Inlet, and 
the removal of the lower left jawbone would distinguish carcasses as

[[Page 27927]]

Native harvest rather than struck and lost or death by other causes.

Reporting

    Each whaling captain or vessel operator, upon killing and landing a 
beluga whale from Cook Inlet, is required to remove and label the 
described sample and deliver it to NMFS (marking) and to complete a 
reporting form providing supporting biological or management 
information on that harvest. The captain or vessel operator is required 
to complete the form and return it to NMFS Anchorage Field Office, 
within 30 days.
    The data from reporting forms will provide more complete estimates 
of harvest levels. Additional information provided will include the 
date and time of the harvest, the coloration of the whale, the area 
from which it was harvested, the method of harvest, and other comments 
such as stomach contents and any unusual physical or behavioral 
observations. The information contained on these forms will be held by 
NMFS and made available to the hunters, other Alaskan Native 
organizations, and the public.
    This information is necessary to evaluate the health and stability 
of the Cook Inlet beluga whale stock and to manage these whales in 
order to both preserve the stock and provide for the sustainable 
subsistence harvest by Alaskan Natives. Because the most recent 
population analysis indicates that no more than 2 percent of a 
population of 347 beluga whales should be harvested, and because the 
potential harvest during the 1999 season may greatly exceed this 
amount, NMFS believes regulations are needed immediately. In the 
absence of such reporting, NMFS will be unable to monitor harvest 
levels, and removals from this population may reach levels that could 
harm the continued existence of this stock.

Request for Comments

    NMFS will accept written comments (see ADDRESSES) on this interim 
final rule until June 23, 1999. A public hearing on the interim final 
rule will be held in the Cook Inlet area. A notification of the date 
and location of the hearing will be published in the Federal Register.

Classification

    An Environmental Assessment (EA) has been prepared by NMFS to 
address this action and is available for public review and comment. 
Persons wishing to obtain this EA should contact NMFS Anchorage Field 
Office (see ADDRESSES).
    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    The Assistant Administrator for Fisheries (AA), NOAA, finds that 
good cause exists, under 5 U.S.C. 553(b)(B), to waive prior notice and 
an opportunity for comment on this rule. It is impracticable and 
contrary to the public interest to provide prior notice and opportunity 
for public comment because the subsistence harvest of beluga whales 
will start sometime in May.
    The Cook Inlet population of beluga whales has dramatically 
declined from an estimated 653 animals in 1994 to a recently completed 
estimate of 347 animals in 1998. Estimates from the 1995 subsistence 
harvest were 42 beluga whales landed and 26 struck and lost. The 1996 
harvest was estimated as 49 whales landed and 49-98 additional whales 
struck and lost.
    NMFS is in the process of a status review to determine whether the 
stock should be listed as endangered or threatened under the ESA or 
designated as depleted under the MMPA. Because of the potential impact 
of the 1999 harvest on the stock, it is important to have an accurate 
number of the whales harvested. If the effort to obtain a co-management 
agreement is successful, the data will provide information on how well 
the agreement is working. If unsuccessful, information on harvest 
levels becomes the key to management actions that will be required in 
the future.
    For these reasons, the Assistant Administrator for Fisheries also 
finds that good cause exists under 5 U.S.C. 553(d)(3), that the rule 
should not be subject to a 30-day delay in effective date.
    Because prior notice and opportunity for public comment are not 
required by 5 U.S.C. 553 or by any other law, under 5 U.S.C. 603(b) the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq. are not applicable to this rule. Accordingly, an initial 
Regulatory Flexibility Analysis was not prepared for this rule.
    This rule contains a collection of information requirement subject 
to the provisions of the Paperwork Reduction Act (PRA). This collection 
was submitted to OMB for review under section 3540(b) of the PRA and 
was approved by OMB on May 11, 1999 (OMB no. 0648-0382) with an 
expiration date of October 31, 1999.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to the requirements of the 
PRA unless that collection of information displays a currently valid 
OMB control number.
    The reporting burden for this collection is estimated to be 
approximately one-half hour per response, including time necessary to 
remove and label the jawbone and to complete the reporting form. 
Comments are invited on (1) whether the proposed collection of 
information is necessary for the proper performance and function of the 
agency, including whether the information shall have practical utility; 
(2) the accuracy of the agency's estimate of the burden of the proposed 
collection of information; (3) ways to enhance the quality, utility, 
and clarity of the information to be collected; and (4) ways to 
minimize the burden of the collection on respondents, including, 
through use of automated collection techniques or other forms of 
information technology. Please send any comments to NMFS and OMB (see 
ADDRESSES).

List of Subjects in 50 CFR Part 216

    Marine mammals, Reporting and recordkeeping requirements.

    Dated: May 18, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216---REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    1. The authority citation for 50 CFR part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    2. In Sec. 216.23, paragraph (e) is added to read as follows:


Sec. 216.23  Native exceptions.

* * * * *
     (e) Marking and reporting of Cook Inlet Beluga Whales. (1) 
Definitions. In addition to definitions contained in the MMPA and the 
regulations in this part:
    (i) Reporting means the collection and delivery of biological data, 
harvest data, and other information regarding the effect of taking a 
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by 
NMFS.
    (ii) Whaling captain or vessel operator means the individual who is 
identified by Alaskan Natives as the leader of each hunting team 
(usually the other crew on the boat) and who is the whaling captain; or 
the individual operating the boat at the time the whale is harvested or 
transported to the place of processing.

[[Page 27928]]

    (iii) Cook Inlet means all waters of Cook Inlet north of 59 deg. 
North latitude, including, but not limited to, waters of Kachemak Bay, 
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
    (2) Marking. Each whaling captain or vessel operator, upon killing 
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, 
Alaska, must remove the lower left jawbone, leaving the teeth intact 
and in place. When multiple whales are harvested during one hunting 
trip, the jawbones will be marked for identification in the field to 
ensure correct reporting of harvest information by placing a label 
marked with the date, time, and location of harvest within the 
container in which the jawbone is placed. The jawbone(s) must be 
retained by the whaling captain or vessel operator and delivered to 
NMFS at the Anchorage Field Office, 222 West 7th Avenue, 
Anchorage, Alaska 99513 within 72 hours of returning from the hunt.
    (3) Reporting. Upon delivery to NMFS of a jawbone, the whaling 
captain or vessel operator must complete and mail a reporting form, 
available from NMFS, to the NMFS Anchorage Field Office within 30 days. 
A separate form is required for each whale harvested.
    (i) To be complete, the form must contain the following 
information: the date and location of kill, the method of harvest, and 
the coloration of the whale. The respondent will also be invited to 
report on any other observations concerning the animal or circumstance 
of the harvest.
    (ii) Data collected pursuant to paragraph (e) of this section will 
be reported on forms obtained from the Anchorage Field Office. These 
data will be maintained in the NMFS Alaska Regional Office in Juneau, 
Alaska, where such data will be available for public review.
    (4) No person may falsify any information required to be set forth 
on the reporting form as required by paragraph (e) of this section.
    (5) The Anchorage Field Office of NMFS is located in room 517 of 
the Federal Office Building, 222 West 7th Avenue; its 
mailing address is: NMFS, Box 43, Anchorage, AK. 99513.
[FR Doc. 99-13083 Filed 5-21-99; 8:45 am]
BILLING CODE 3510-22-F