[Federal Register Volume 65, Number 193 (Wednesday, October 4, 2000)]
[Proposed Rules]
[Pages 59164-59170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25481]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 000922272-0272-01;I.D. 061600A]
RIN 0648-AO16


Taking of the Cook Inlet (CI), Alaska, Stock of Beluga Whales by 
Alaska Natives

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

ACTION: Proposed rule; notice of hearing; request for comments.

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SUMMARY: NMFS is proposing regulations under the Marine Mammal 
Protection Act (MMPA) that would limit the harvest and use of CI beluga 
whales. The management objectives of the proposed regulations are to 
recover this depleted stock to its Optimum Sustainable Population (OSP) 
level, and to provide for the continued traditional subsistence use by 
Alaska Natives. The MMPA imposes a general moratorium on the taking of 
marine mammals; however, it provides an exception to the moratorium 
that allows Alaska Natives to harvest marine mammals for subsistence 
use or for traditional Native handicrafts. Under the MMPA, the Federal 
government may regulate Native subsistence harvest when the stock in 
question is designated as depleted pursuant to the MMPA and after 
regulations specific to the depleted stock are issued. NMFS designated 
the CI beluga whale stock as depleted on May 31, 2000 and believes that 
control of the harvest is necessary to promote recovery of this stock. 
NMFS has also prepared a National Environmental Policy Act (NEPA) Draft 
Environmental Impact Statement (DEIS) on this proposed action. NMFS 
solicits public comments on the proposed rule and the DEIS..

DATES: Comments on the proposed rule and on the DEIS must be received 
in the Office of Protected Resources (see ADDRESSES no later than 5 pm, 
eastern standard time, on November 27, 2000.
    NMFS has scheduled a formal on-the-record hearing regarding these 
proposed regulations before Administrative Law Judge Parlen McKenna, to 
commence at 9 am, December 5, 2000, in Anchorage, Alaska, at the 
Federal Building. A pre-hearing conference is scheduled at 9 am, 
November 15, 2000.
    Filing Deadlines: By November 1, 2000, any interested person or 
party must file an initial notice of intent to participate in the 
hearing, any direct testimony and any documentary evidence. By November 
15, 2000, any rebuttal testimony and documentary evidence must be 
filed. Interested parties should consult procedural regulations at 50 
CFR part 228 (65 FR 39560, June 27, 2000) for additional deadlines and 
hearing procedures.

ADDRESSES: Written comments on the proposed rule and DEIS should be 
sent to Chief, Marine Mammal Division, Office of Protected Resources, 
Silver Spring, MD 20910. Comments will not be accepted if submitted via 
e-mail or Internet.
    All filings, including those of NMFS, become part of the record. 
The record for the proposed rule and the DEIS are available and all 
original filings and written comments should be filed at: Chief, Marine 
Mammal Division, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910. One copy should also be filed at: ALJ 
Docketing Center, 40 South Gay Street, Room 412, Baltimore, Maryland 
21202-4022. Fax copies are accepted at (410) 962-1746 or -1742. Another 
copy should also be filed at: Judge Parlen McKenna, U.S. Coast Guard 
Island, Building 54-C, Alameda, California 94501, email 
[email protected], (510) 437-3361, fax (510) 437-2717.
    Also, the record for the proposed rule and the DEIS is available at 
NMFS Alaska Region, 709 W. 9th St, Federal Building room 461, Juneau, 
AK 99802. Information related to the hearing and the DEIS will be 
available on the NMFS, Alaska Region Protected Resources website at: 
http://www.fakr.noaa.gov/protectedresources/whales/beluga.htm

FOR FURTHER INFORMATION CONTACT: Barbara Mahoney, NOAA/NMFS, Alaska 
Region, Anchorage Field Office, (907) 271-5006, fax (907) 271-3030, or 
Michael Payne, NOAA/NMFS, Alaska Region, (907) 586-7235, fax (907) 586-
7012, or Thomas Eagle, Office of

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Protected Resources, (301) 713-2322, ext. 105, fax (301) 713-4060.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA was enacted to conserve and protect marine mammals by 
regulating activities of U.S. citizens and activities of all persons 
conducted within the jurisdiction of the United States. As such, the 
MMPA imposes a general moratorium on the taking of marine mammals. 
However, it also provides an exception to the moratorium by allowing 
``any Indian, Aleut or Eskimo who resides in Alaska and who dwells on 
the coast of the North Pacific Ocean or the Arctic Ocean . . .'' to 
take any marine mammal if such taking is for subsistence purposes or 
for creating traditional Native handicrafts and is not accomplished in 
a wasteful manner.
    Under the MMPA, the Federal government may regulate Native 
subsistence harvest when the stock in question is designated as 
depleted pursuant to the MMPA, and after regulations specific to the 
depleted stock are issued (16 U.S.C. 1371). Whenever a species or stock 
of marine mammal subject to taking by Indian, Aleut, or Eskimo has been 
determined to be depleted, the Secretary of Commerce (Secretary) may 
limit the harvest using the following procedures, which are found in 
section 101(b)(3) of the MMPA:
    [The Secretary] may prescribe regulations upon such taking of 
such marine mammals by any Indian, Aleut, or Eskimo described in 
this subsection. Such regulations may be established with reference 
to species or stocks, geographical description of the area included, 
the season for taking, or any other factors related to the reason 
for establishing such regulations and consistent with the purposes 
of this Act. Such regulations shall be prescribed after notice and 
hearing required by section 103 of this title and shall be removed 
as soon as possible as the Secretary determines that the need for 
their imposition has disappeared.
    On May 31, 2000, NMFS designated the CI stock of beluga whales as 
depleted pursuant to the MMPA (65 FR 34590). Abundance estimates from 
surveys conducted between 1994 and 1998 indicated that the number of 
individuals in this stock declined dramatically during this period. The 
1998 estimate (347 animals) was nearly 50 percent lower than the 1994 
estimate (653 animals). This represents a decline of 15 percent per 
year. The Native harvest is the only factor that has been identified to 
account for the observed level of decline, and, therefore, the control 
of the harvest is directly related to the immediate protection for this 
stock.
    Furthermore, reports from Alaska Native hunters and estimates 
derived from counts made by the Alaska Department of Fish and Game in 
the 1960s and 1970s indicate that the historical abundance of the stock 
exceeded 1,000 beluga whales. Observations of Alaska Native hunters 
also support these numbers. NMFS currently estimates that the maximum 
historical abundance of the stock is 1,300 whales. This estimate is 
based on the results of an abundance survey by the Alaska Department of 
Fish and Game (ADFG) in 1979 that resulted in a minimum abundance 
estimate of 1,293 whales (Calkins, 1989). Therefore, the extent of 
depletion (as a proportion of maximum historical abundance) is much 
greater than the dedicated surveys from 1994-1999 indicate.
    The following information is a summary of available information on 
the abundance, trend and harvest levels for the CI stock of beluga 
whales. A more detailed discussion of this information is included in 
the final rule to designate the stock as depleted (65 FR 34590, May 31, 
2000) and in the final determination on the status of the stock under 
the Endangered Species Act (ESA) (65 FR 38778, June 22, 2000).
    The CI stock is genetically and geographically isolated from the 
other Alaskan stocks of beluga whales. When NMFS learned that the 
harvest may be above levels that the stock could sustain, NMFS 
initiated studies to document the levels of the harvest and the 
abundance and trend of the stock. Abundance surveys from 1994 though 
1998 indicated a decline from 653 to 347 whales during that period. 
However, NMFS believes that the stock was in decline when the abundance 
surveys were initiated.
    There are no reliable mortality estimates prior to 1994. Prior to 
1994 the harvest estimates do not include an estimate of those struck 
but lost, nor do they represent a complete effort of harvest. However, 
Native hunter groups and some individual hunters provided NMFS with 
documented information on the harvest levels from 1995 through 1998. 
The sources of these data include estimates by ADFG, the Cook Inlet 
Marine Mammal Council (CIMMC), and data compiled by NMFS based on 
reports from hunters, and from the direct observation of harvested 
whales.
    Based on this information, NMFS estimated that the average annual 
take in this harvest, including whales that were struck and lost, was 
65 whales per year from 1994 through 1998. The estimated annual average 
harvest from 1995 thru 1997 (including struck but lost) was 87 whales. 
Annual harvest estimates for 1994 thru 1998 are 21 whales (1994), 68 
whales (1995), 123 whales (1996), 70 whales (1997) and 42 whales 
(1998). The harvest, which was as high as 20 percent of the stock in 
1996, was sufficiently high to account for the 14 percent annual rate 
of decline in the stock during the period from 1994 through 1998. The 
numbers of animals harvested between 1994 and 1998 can account for the 
estimated decline of the stock during that interval. Therefore, the 
annual harvest estimates and rate of decline from 1994 through 1998 
clearly indicate that the harvest was unsustainable prior to 
restriction in 1999. Therefore, the protection of this stock of beluga 
whales is directly related to the control of the harvest.
    In 1999, there was no subsistence harvest. On May 21, 1999, 
President Clinton signed into effect Pub. L. 106-31, 113 Stat. 100 
(hereafter referred to as Pub. L. 106-31). As a result of this 
legislation, and in combination with the voluntary moratorium by the 
hunters in spring, there were no CI beluga whales harvested in 1999. 
NMFS and CIMMC have negotiated a co-management agreement under this 
legislation that authorized the harvest of a single beluga whale in 
Cook Inlet in 2000.
    The 1999 abundance estimate was 357 whales. Although a single year 
under the restricted harvest is insufficient to detect a population 
response, the lack of continued decline is an encouraging indication 
that restricting the harvest could promote recovery of the stock.

The Proposed Regulations

    The depleted determination on May 31, 2000 (65 FR 34590), was a 
preliminary step for the Federal government to regulate the taking of 
marine mammals by Alaska Natives. NMFS is proposing to regulate the 
harvest of CI beluga whales by Alaska Natives under section 101(b)(3) 
of the MMPA. Because Native harvest is believed to be responsible for 
the observed level of decline, NMFS believes this action is necessary 
to recover this stock to its OSP level. This proposed rule would 
provide a long-term mechanism to control the harvest.
    NMFS is proposing to regulate the harvest of CI beluga whales by 
Alaska Natives by requiring: (1) that subsistence hunting can only 
occur under an agreement between NMFS and an Alaska Native organization 
pursuant to section 119 of the MMPA; (2) that the harvest shall be 
limited to no more than two strikes annually until the stock is no 
longer considered depleted under the MMPA; (3) that the sale of CI 
beluga

[[Page 59166]]

whale products shall be prohibited; (4) that all hunting shall occur 
after July 15, to minimize the harvest of pregnant females; and (5) 
that the taking of newborn calves, or adult whales with maternally 
dependent calves shall be prohibited (calves may remain dependent for 
several years after birth). The following discussion describes the 
regulatory measures contained in the proposed rule and the 
justification for their implementation.
    (1) Subsistence hunting of CI beluga whales can occur only under an 
agreement between NMFS and an Alaska Native organization pursuant to 
section 119 of the MMPA: This provision is based upon Pub. L. 106-31, 
which provides that the taking of a Cook Inlet beluga whale 
under (MMPA section 101(b)) shall be a violation of (the MMPA) unless 
such taking occurs pursuant to a cooperative agreement between (NMFS) 
and affected (ANOs). It eliminates the primary threat to CI 
beluga whales because it prohibits hunting CI beluga whales except 
under an agreement between NMFS and an ANO.
    (2) The harvest shall be limited to no more than 2 strikes 
annually: The best estimate of abundance for this stock is currently 
357 animals (from 1999 survey). NMFS developed a logistic growth 
population model to project the recovery of the population (expressed 
in terms of years to recovery) under various levels of annual harvest 
and compared this to a no-harvest scenario. Annual changes in the 
population were then modeled using the following population parameters:
    Maximum net productivity rate = 4 percent per year,
    carrying capacity (K) = 1,300 individuals, and
    starting population size = 357 whales (based on NMFS 1999 survey 
results).
    Using this model, the size of the population and recovery time can 
be estimated for any year, simulating the impacts of differing levels 
of harvest on recovery times. The results of these analyses are 
described in detail in the DEIS. Without a harvest, this population 
should recover to a level where it would no longer be depleted under 
the MMPA in 22 years (i.e., to the lower level of OSP). In this case, 
the lower level of OSP would be equal to 60 percent of K (1,300) or 780 
whales.
    With a harvest of 1 whale per year the population should reach 780 
whales in 23 years (a delay in recovery of 1 year). A harvest of 2 
whales per year should require approximately 25 years for the 
population to recover to OSP. Under either harvest scenario, the 
population is predicted to double in size over the next 2 decades and 
reach OSP in 23-25 years (See DEIS for further information).
    NMFS' management objectives for CI beluga whales are to recover 
this stock while still providing an opportunity for a traditional 
harvest that does not significantly increase the amount of time to 
recovery. A harvest level of either 1 or 2 whales per year would meet 
both of those objectives. NMFS will review the harvest and its effect 
on the stock on a periodic basis, and, if appropriate, may adjust the 
number of allowable annual strikes through notice and comment 
rulemaking.
    (3) Prohibition on the sale of Cook Inlet beluga whale products: 
The sale of edible portions of subsistence-harvested marine mammals is 
allowed under certain conditions by the MMPA. Some muktuk (the skin and 
a thin layer of blubber) from subsistence harvests has appeared in 
Native food stores in the Anchorage area in recent years. At least some 
of this muktuk was identified by DNA analyses as having come from CI 
beluga whales. Some hunters have sold beluga whale meat and muktuk by 
word-of-mouth within the local Native community. One Native hunter said 
he supported his family by hunting beluga whales and selling the meat 
and muktuk to Native families (Anchorage Daily News, 1994). While the 
amount of CI beluga whale products sold commercially in Anchorage and 
elsewhere has not been determined, one local Anchorage retailer 
estimated selling approximately 3,000 lb (1,360.8 kg) of beluga muktuk 
annually. A single adult beluga may provide 200 lb (90.72 kg) of 
muktuk. By this measure, the retailer may have sold the muktuk from 15 
beluga whales per year.
    Some of this product might have come from beluga whales from other 
stocks. However, NMFS analyzed nine samples of beluga whale muktuk sold 
in Anchorage from June through November, 1998. The genetic analysis of 
these samples determined that they came from 5 individual beluga 
whales, all of which came from the CI population.
    NMFS believes that allowing the sale of CI beluga whale products or 
meat may provide an incentive that is unacceptable given the current 
depleted status of the population. The concentration of more than 
20,000 Alaska Natives in the Anchorage area apparently creates a demand 
for beluga products that exceeds the level of harvest that the small, 
isolated stock of CI beluga whales can sustain. Therefore, as part of 
the regulations on the harvest, NMFS would prohibit the sale of edible 
portions of CI beluga whales. NMFS will also prohibit the sale of CI 
beluga whale products under this rule. NMFS intends to provide for a 
traditional harvest while eliminating any commercial incentive;
    (4) All hunting shall occur after July 15 of each year: Calving by 
beluga whales in CI is generally complete by July 1 of each year; 
therefore, a harvest season beginning July 15 would minimize the 
probability of killing a pregnant female. This is consistent with the 
intent to promote recovery of this stock of whales yet allowing a 
harvest to occur.
    (5) The taking of calves or adult whales with calves is prohibited: 
This prohibition is necessary to ensure that cow-calf pairs are not 
disturbed. For the purposes of this proposed rule a calf is any beluga 
whale that is maternally dependent (maternally dependent animals may be 
a year or more of age). The season limitation and prohibition on taking 
calves and adults with calves should protect reproductively active 
adult females.
    Other harvest specifics, including specific locations or techniques 
for taking whales, can be established through a co-management agreement 
rather than through regulation. This restricts the scope of the 
regulations to the population effects of the harvest.

Required Procedure for Proposed Regulations

    Section 101(b) and section 103(d) of the MMPA require that 
regulations prescribed to limit the subsistence harvest of Alaska 
Natives be made on the record after opportunity for an agency hearing.
    Notice of Hearing: Newly re-established regulations at 50 CFR part 
228 (65 FR 39560, June 27, 2000) contain detailed requirements for the 
procedures for conducting an agency hearing on the proposed regulations 
to limit the harvest. People interested in participating in the hearing 
are advised to review these procedural regulations. The procedures 
require specific information to be included in the notice of the 
hearing, and that information follows.
    (1) The nature of the hearing: The purpose of the hearing is to 
allow parties affected by the agency's proposed regulations to present 
additional testimony and evidence for inclusion in the administrative 
record. At the conclusion of the hearing and after consideration of the 
whole record, the Administrative Law Judge shall make a recommendation 
to the Secretary regarding adoption of the regulations.
    (2) The place and date of the hearing: (see ADDRESSES and DATES).

[[Page 59167]]

    (3) The legal authority for the hearing: The hearing is held under 
the authority of Section 103 of the MMPA (16 U.S.C. 1373) and 
implementing regulations (50 CFR part 228).
    (4) The proposed regulations and statements required by section 
103(d) of the Act (16 U.S.C. 1373(d)): See the proposed regulatory text 
at the end of this document.
    (a) Estimated existing levels of the species and stock: The 
worldwide abundance of beluga whales is unknown but, according to 
International Whaling Commission estimates, exceeds 100,000 whales. 
Based on the 1999 surveys, the abundance estimate for the CI beluga 
whale stock, which is discrete and genetically isolated from other 
stocks of beluga whales in waters under U.S. jurisdiction, is 357 
animals.
    (b) Expected impact of the proposed regulations on the OSP of the 
stock: The proposed regulations are not expected to alter the existing 
estimates of the OSP levels of the stocks. The proposed regulations are 
expected to allow the stock to recover to OSP levels in about 25 years.
    (c) Description of the evidence before the Secretary:
    Related to stock structure: results of a multi-year study on the 
molecular genetics of beluga whales.
    Related to carrying capacity (K): ADFG surveys producing direct 
counts of beluga whales in CI in the 1960s and 1970s, observations of 
Alaska Native hunters.
    Related to current abundance (1994-1999): results of dedicated 
aerial surveys conducted by NMFS scientists.
    Related to mortality estimates: reports from NMFS contract with 
CIMMC and NMFS harvest estimates.
    Related to productivity rates: life history traits comparable to 
other small cetaceans and use of the general default value for cetacean 
maximum net productivity levels.
    (d) Studies by or for the Secretary or recommendations by or for 
the Marine Mammal Commission (MMC): Relevant studies include those on 
stock structure (O'Corry-Crowe, et al.1997), abundance estimates (Hobbs 
et al. in press), Alaska Native harvest (NMFS and CIMMC contract 
report). Relevant recommendations include those by the Alaska 
Scientific Review Group (SRG)--list of recommendations related to the 
harvest regulations; and those by the MMC--see item 7 below. 
Note that the Alaska SRG was established by NMFS pursuant to the 1994 
amendments to the MMPA to provide advice on marine mammal research and 
conservation to the Secretary.
    (5) Issues of fact which may be involved in the hearing: Public 
comments related to the status review and subsequent actions related to 
CI beluga whales indicate that there may be several disputed facts 
regarding the biology and conservation of the Cook Inlet Beluga whale 
populations. Among the potential factual issues are the following:
    (A) What is the carrying capacity of the Cook Inlet Beluga whale 
stock?;
    (B) How many Cook Inlet Beluga whales currently exist?; and
    (C) Should the subsistence harvest of Cook Inlet Beluga whales be 
restricted to no more than two annually?
    (6) Draft Environmental Impact Statement (DEIS): The DEIS is 
available and may be viewed upon request (see ADDRESSES).
    (7) Written advice received from the MMC: The following summarizes 
a record of three letters forwarded to NMFS by the MMC with 
recommendations specific to the CI beluga whale stock. These letters 
contained additional advice on CI beluga whales (e.g., recommendations 
to list under the ESA). However, these recommendations did not pertain 
to the harvest regulations nor directly to the information needed to 
implement these regulations. Therefore, the additional advice is not 
included in this summary.

Letter dated January 22, 1999

    1. A brief summary of the information that NMFS has reported in 
various outlets (SRG meetings, reports, Stock Assessment Reports).
    2. MMC stated that ``Clearly, a main part of the problem with the 
Cook Inlet beluga population is the fact that the number of animals 
being killed by Alaska Natives greatly exceeds the number that can be 
supported by the population on a sustainable basis.''
    3. The sale of muktuk in Anchorage compounds the problem; 
therefore, the sale of CI beluga products should be prohibited.
    4. MMC stated that the preferred approach for addressing 
overharvest should be through a co-management agreement.
    5. NMFS should act quickly and decisively to protect the stock 
through rulemaking under the ESA and MMPA to limit the harvest. The 
process could be completed in as little as 6 weeks; therefore, in time 
to address the 1999 harvest.
    6. If a regulatory approach to limit the harvest is not feasible in 
a timely manner, NMFS should work with Congress to seek a legislative 
solution.
    7. NMFS should implement a marking, tagging and reporting program 
for CI beluga.

Letter dated July 23, 1999

    1. Based upon the portions of the preliminary analyses provided to 
the MMC, the MMC advised that the limited information that NMFS had 
provided would not adequately support a depletion finding.
    2. Despite the lack of detailed analyses provided by NMFS, the MMC 
advised that the population is likely below its OSP and, therefore, 
should be designated as depleted.
    3. The MMC advised to incorporate a discussion of historical 
abundance or carrying capacity, an estimate of the percentage of 
historical populations size that would correspond to the maximum net 
productivity level, and to compare the current population size to the 
best estimates of historical abundance and MNPL.

Letter dated December 21, 1999

    1. The MMC acknowledged the proposed depletion rule and advised to 
publish a final rule as quickly as possible after the comment period is 
closed.
    2. The MMC recognized that the overharvest by Alaska Natives for 
subsistence purposes was the primary factor contributing to the 
decline, acknowledged the special legislation that restricted harvest 
until October 1, 2000, and recommended that NMFS make it a high 
priority to implement regulations to govern the harvest by the 
expiration of the legislation.
    3. MMC advised that the co-management process is the preferred 
approach to establishing harvest limits; however, NMFS should pursue 
regulations and additional legislation to ensure no gap in protection 
of the stock.
    (8) Places where records and submitted direct testimony will be 
kept for public inspection: See ADDRESSES.
    (9) Final date for filing with the Assistant Administrator a notice 
of intent to participate in the hearing: See DATES.
    (10) Final date for submission of direct testimony on the proposed 
regulations and the number of copies required: Parties must submit the 
original and two copies of all filings. All documents and exhibits must 
be clearly marked with the docket number of the proceedings (see 
below). See ADDRESSES and DATES for deadlines and addresses for 
filings.
    (11) Docket number assigned to the case: 000922272-0272-01.
    (12) Place and date of the pre-hearing conference: (see ADDRESSES 
and DATES).

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Prior to the conference, the ALJ will determine whether parties may 
participate by telephone as well as the location of the conference if 
personal appearances are necessary.
    Section 103(e) also requires that NMFS conduct a periodic review of 
the regulations promulgated pursuant to this section, and modifications 
may be made in such a manner as the Secretary deems consistent with and 
necessary to carry out purposes of the Act. This review will compare 
the results of the survey data with the management of the harvest to 
determine that the CI beluga whale population is increasing as 
projected, and to determine whether changes in the harvest or level of 
harvest could occur without compromising the recovery of the 
population. NMFS has also scheduled a hearing on the record, consistent 
with the requirements of this section of the MMPA (see DATES).

Discussion

    Throughout this process, NMFS has provided an opportunity for 
comment during the status review of CI beluga whales, following the 
proposed depleted determination, and at the initiation of the NEPA 
process. NMFS has also convened workshops and public meetings on this 
subject. It remains the intent of NMFS to insure that the depleted 
determination, and any proposed regulations subsequent to this 
determination, be as accurate and as effective as possible. Therefore, 
comments or suggestions from the public, Native organizations, other 
governmental agencies, the scientific community, industry, or other 
interested parties concerning these issues have always been solicited 
and taken into account prior to any final action. Throughout this 
process there has been considerable comment provided on the subsistence 
harvest of beluga whales in Cook Inlet and its impact on the stock. 
Some of the most common comments received by NMFS on this subject are 
reviewed in this section.
    The most immediate concerns by those who petitioned NMFS to list 
the CI beluga whale population under the ESA were (1) the level of 
mortality as a result of subsistence harvest, and (2) the inability of 
NMFS, at the time of the petition, to control this harvest. The 
petitioners further stated that the MMPA was inadequate to protect CI 
beluga whales. They stated that, under the MMPA, NMFS can pursue a co-
management agreement with the tribes in the Cook Inlet region. However, 
the petitioners noted that such an agreement provided no additional 
legal authority to NMFS to prosecute violations of the MMPA. Therefore, 
there was no guarantee that a harvest would not occur outside of the 
agreement by Native hunters who were not part of the agreement. Even 
with a co-management agreement in place, neither NMFS, nor the co-
management body, can enforce its recommendations if hunters choose not 
to comply. As such, the petitioners stated that a co-management 
agreement was unlikely to reduce the Native hunt to sustainable levels.
    NMFS agreed, generally, that the management of the CI beluga whale 
stock could be achieved through voluntary and cooperative efforts 
within a traditional Native community, or through a co-management 
agreement. However, Anchorage provides an exception to what is 
generally considered as a traditional Native community. Although tribal 
authority may apply to Alaska Natives who live in local communities, 
there is a lack of area-wide tribal authorities or traditional Native 
laws that would apply to the harvest of CI beluga whales by Alaska 
Natives of non-local origin and now reside in Anchorage. Because of 
this, and prior to Pub. L. 106-31, an Alaska Native could have 
harvested beluga whales from Cook Inlet without the approval of local 
tribal authorities or governing bodies. For this reason, and in this 
particular situation, NMFS agreed with the petitioners in stating that 
a co-management agreement would not necessarily provide the level of 
authority that would ensure that over harvest would not occur outside 
an agreement.
    NMFS received several recommendations to expeditiously enter into a 
co-management agreement with an Alaska Native Organization (ANO) and 
most of these suggested that NMFS should coordinate this agreement with 
CIMMC. A few commenters thought the most effective way to achieve 
conservation and subsistence goals for CI beluga whales is through a 
single, comprehensive co-management agreement and this should be an 
agency priority. A few commenters stated the agreement should strictly 
limit hunting to personal and family subsistence and ban the sale of 
beluga whale products.
    NMFS agrees that a co-management agreement with an ANO is both 
desirable and necessary, and has signed into an agreement with CIMMC 
for the harvest of one CI beluga whale for the year 2000. Further, NMFS 
has authority to co-manage subsistence harvest under section 119 of the 
MMPA. However, any restrictions on the level of subsistence harvest 
through a co-management agreement would be enforced by tribal 
authority, not by Federal regulation, unless specific regulations are 
established under section 101(b) and 103 of the MMPA. As stated 
earlier, NMFS believes that a co-management agreement would not 
necessarily provide the level of authority that would ensure that over- 
harvest would not occur outside of an agreement. Therefore, NMFS 
believes that the recovery of this stock requires not only the 
authority of a co-management agreement, but also a Federal authority to 
protect and conserve CI beluga whales. For that reason, NMFS is 
proposing these regulations on the subsistence harvest.
    One commenter on the proposed depleted determination indicated that 
if NMFS designates CI beluga whales as depleted, NMFS will regulate the 
harvest with little regard for the opinions of Alaska Native hunters. 
NMFS does not believe it is possible to effectively manage the CI 
beluga whale stock without input from local Native groups in Cook 
Inlet. Also, NMFS does not want to unilaterally manage CI beluga whales 
without input from local Natives. NMFS recognizes the importance of 
beluga whales to the Native Cook Inlet communities. NMFS believes it 
should work with them to develop a co-management agreement that 
protects and conserves CI beluga whales while preserving traditional 
beluga subsistence hunting activities. Co-management will involve both 
Federal and Tribal authorities.
    With these proposed regulations, Federal authority is established 
to enforce harvest regulation at levels that are sustainable while 
assuring that the stock can recover. This proposed rule establishes 
harvest levels until such time the stock reaches the lower level of 
OSP, i.e., until it is no longer depleted. These regulations will be 
reviewed and modified as appropriate but remain in effect unless 
otherwise rescinded or modified through notice and comment rulemaking.

Classification

NEPA

    NMFS has prepared an Draft Environmental Impact Statement (DEIS) 
under the requirements of NEPA. Because the CI beluga whale stock is 
depleted, NMFS believes that any long term federally-approved harvest 
plan constitutes a major action subject to the requirements of NEPA. 
Therefore, these proposed regulations will not be finalized until an 
Environmental Impact Statement has been finalized and a Record of 
Decision is made. NMFS has

[[Page 59169]]

prepared a DEIS to address actions taken by NMFS to manage and recover 
this stock. The primary management action proposed is to limit Native 
subsistence harvest of CI beluga whales. The impact of this action was 
evaluated in the DEIS through a model that examines the length of time 
it would take for the stock to recover under different harvest 
alternatives. The preferred harvest plan provides for the cultural 
needs of Alaska Natives by allowing up to 2 strikes (multiple strikes 
on one whale equals one strike), while not significantly extending the 
time required for this stock to recover. The DEIS also presents an 
assessment of the impacts of other anthropogenic activities, which 
occur in Cook Inlet, that might impact the CI beluga whales, or their 
habitat. This assessment includes a discussion of the cumulative 
impacts and evaluates the need for measures for the protection and 
conservation of important CI beluga whale habitat.

Paperwork Reduction Act

    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980.

ESA

    The ESA provides for the conservation of endangered and threatened 
species of fish, wildlife, and plants. The program is administered 
jointly by NMFS (for most marine species) and the U.S. Fish and 
Wildlife Service (for terrestrial and freshwater species). The ESA 
provides for listing species as either threatened or endangered, based 
on the biological health of a species. Threatened species are those 
likely to become endangered in the foreseeable future (16 U.S.C. 
1532(20)). Endangered species are those in danger of becoming extinct 
throughout all or a significant portion of their range (16 U.S.C. 
1532(20)). The Secretary, acting through NMFS, is authorized to list 
selected marine mammals, including beluga whales, and fish species.
    On March 3, 1999, NMFS received a petition from seven organizations 
and one individual to list the CI stock of beluga whale as 
``endangered'' under the ESA. This petition requested emergency listing 
under section 4(b)(7) of the ESA, designation of critical habitat, and 
immediate action to implement regulations to regulate the subsistence 
harvest of these whales. NMFS determined that these petitions presented 
substantial information which indicated the petitioned actions may be 
warranted in April 1999 (64 FR 17347). Upon further review, and taking 
into account legislative and management measures put in place to 
regulate the subsistence harvest following receipt of the petition, and 
measures proposed in this regulation, NMFS, on June 22, 2000, 
determined that an ESA listing is not warranted at this time. Based on 
that determination, this proposed rule does not impact any ESA listed 
species or its habitat.

Executive Order 12866--Regulatory Planning and Review

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.

Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed action would not have a significant 
economic impact on a substantial number of small entities as follows:
    The proposed rule would limit the subsistence harvest of Cook 
Inlet, Alaska, beluga whales and require that subsistence hunting 
can only occur under an agreement between the National Marine 
Fisheries Service (NMFS) and Alaska Native organizations pursuant to 
section 119 of the MMPA.
    The MMPA imposes a general moratorium on the taking of marine 
mammals. However, section 101(b) of the MMPA provides an exemption 
to the taking by allowing Alaskan Natives to harvest marine mammals 
for subsistence use or for purposes of traditional Native 
handicraft. Under the MMPA, the Federal Government may regulate 
Native subsistence harvest after the stock in question is designated 
as depleted and after formal rulemaking.
    NMFS designated the CI beluga whale stock as depleted on May 31, 
2000 (65 FR 34590), due to a 50 percent decline in the abundance of 
the stock between 1994 and 1998. Native harvest is believed to be 
responsible for the observed decline, and NMFS believes that the 
control of the harvest is necessary to provide continued protection 
for this stock.
    Therefore, a regulatory flexibility analysis was not prepared.

Executive Order 12898--Federal Actions to Address Environmental Justice 
in Minority Populations and Low-Incomed Populations

    Section 4-4, Subsistence Consumption of Fish and Wildlife, of 
Executive Order 12898, requires Federal agencies to ensure protection 
of populations with differential patterns of subsistence consumption of 
fish and wildlife and to communicate to the public the human health 
risks of those consumption patterns. NMFS has monitored and evaluated 
contaminant loads in all populations of beluga whales in Alaska for 
nearly a decade, and has reported this information to Alaska Native 
communities as these analyses have become available. A summary is 
available in the DEIS.

Consultation with State and Local Government Agencies

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, NMFS has conferred with state and local 
government agencies in the course of assessing the status of CI beluga 
whales. State and local governments have expressed support for the 
conservation of this stock of beluga whales. Dialogue with state and 
local agencies included an exchange and discussion of scientific 
information regarding beluga whales, factors that may be affecting 
them, and their status under the ESA and MMPA.

Executive Order 13084-Consultation and Coordination with Indian Tribal 
Governments

    This proposed rule is consistent with policies and guidance 
established in Executive Order 13084 of May 14, 1998 (63 FR 27655). 
Executive Order 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. NMFS has taken 
several steps to consult and inform affected tribal governments and 
solicit their input during development of these proposed regulations 
including the development of a co-management agreement with the Cook 
Inlet Marine Mammal Council which provides for the harvest of 1 whale 
during 2000. This proposed rule does not impose substantial direct 
compliance costs on the communities of Indian tribal governments.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Exports, Imports, Marine 
mammals, Transportation.

    Dated: September 26, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service .

    For the reasons set out in the preamble, 50 CFR part 216 is 
proposed to be amended as follows:

[[Page 59170]]

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

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

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

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


Sec. 216.23  Native exceptions.

* * * * *
    (f) Cook Inlet beluga whales.
    (1) Cooperative Agreement. Notwithstanding the provisions of 16 
U.S.C. 1371(b) or paragraph (a) of this section, any taking of a Cook 
Inlet beluga whale by an Alaska Native must be authorized under a 
cooperative agreement between the National Marine Fisheries Service and 
an Alaska Native organization(s). The Cook Inlet beluga whale stock 
includes all beluga whales occurring in waters of the Gulf of Alaska 
north of 58 degrees North latitude including, but not limited to, Cook 
Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince William Sound, 
Yakutat Bay, Shelikof Strait, and off Kodiak Island and freshwater 
tributaries to these waters.
    (2) Limitations on the Number of Cook Inlet Beluga Whales Taken for 
Subsistence. Notwithstanding the provisions of 16 U.S.C. 1371(b) or 
paragraph (a) of this section, the number of whales that may be taken 
(killed or struck and lost) each year from the Cook Inlet, Alaska, 
stock of beluga whales for subsistence purposes shall be limited to no 
more than two (2) strikes annually until the stock is no longer 
designated as depleted.
    (3) Prohibition on the Sale of Cook Inlet Beluga Whale. 
Notwithstanding the provisions of 16 U.S.C. 1371(b) or paragraph (b) of 
this section, the sale of products or foodstuffs from Cook Inlet beluga 
whales is prohibited.
    (4) Season. Notwithstanding the provisions of 16 U.S.C. 1371(b) or 
paragraph (a) of this section, all hunting shall only occur after July 
15 of each year.
    (5) Beluga calves or adult belugas with calves. Notwithstanding the 
provisions of 16 U.S.C. 1371(b) or paragraph (a) of this section, the 
taking of beluga whale newborn calves, or adult whales with older, 
maternally dependent calves is prohibited.
[FR Doc. 00-25481 Filed 10-3-00; 8:45 am]
BILLING CODE 3510-22-S