[Federal Register Volume 65, Number 232 (Friday, December 1, 2000)]
[Proposed Rules]
[Pages 75230-75232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-30677]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[I.D. 112400A]


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: Notice of hearing; final agenda.

-----------------------------------------------------------------------

SUMMARY: This final agenda governs the formal on-the-record hearing 
regarding the proposed regulations to limit the taking of CI, AK stock 
of beluga whales by Alaska Natives.

DATES: The hearing will commence on Tuesday, December 5, 2000, at 9:30 
a.m. AKST.

ADDRESSES: The hearing will be held before Judge Parlen L. McKenna of 
the United States Coast Guard at the United States District Court 222 
West 7th Avenue, 2nd Floor Courtroom, Anchorage, Alaska 99513.

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

SUPPLEMENTARY INFORMATION: In an effort to recover CI beluga whales to 
its Optimum Sustainable Population, NMFS issued proposed regulations 
under the Marine Mammal Protection Act (MMPA) that would limit the 
subsistence harvest of the whales by Alaska Natives. Section 101(b) of 
the MMPA provides an exemption to the general moratorium on the taking 
of marine mammals and permits Alaska Natives to harvest marine mammals 
for subsistence purposes or for the purpose of creating traditional 
Native handicrafts and clothing. However, the Federal government may 
regulate Native subsistence harvest of marine mammals if the stock in 
question is designated as depleted after regulations specific to the 
depleted stock are issued and an opportunity for notice and hearing on 
the record has been provided.
    After a depleted determination was made on May 31, 2000 (65 FR 
34590), NMFS issued a proposed rule on October 4, 2000 (65 FR 59164), 
to regulate subsistence harvest of CI beluga whales by Alaska Natives. 
The proposed regulation provides that:
    (1) Subsistence harvest can only occur under an agreement between 
NMFS and an Alaska Native organization pursuant to section 119 of the 
MMPA;
    (2) Subsistence harvest shall be limited to no more than two 
strikes annually until the stock is no longer considered depleted under 
the MMPA;
    (3) The sale of CI beluga whale products shall be prohibited;
    (4) All hunting for subsistence purposes shall occur after July 15 
each year; and
    (5) The harvest of newborn calves, or adult whales with maternally 
dependent calves shall be prohibited.
    All interested persons or parties have been given an opportunity to 
file a notice of intent to participate in the hearing that will be 
conducted in accordance with section 103(d) of the MMPA. Such 
interested persons or parties have also been given an opportunity to 
file direct testimony and documentary exhibits. Parties who submitted 
notice of intent to participate in the hearing were advised to submit 
rebuttal testimony by Novenber 28, 2000. Pursuant to the procedural 
regulations governing the formal rulemaking hearing that was reinstated 
on June 27, 2000 (65 FR 39560), Judge Parlen McKenna issued the 
following notice identifying the participants and the final agenda as 
follows:

------------------------------------------------------------------------
              Participant                            Interest
------------------------------------------------------------------------
Thomas J. Meyer, Esq., NOAA, Office of   Represents NMFS (i.e., the
 General Counsel, Juneau, AK              proponent of the proposed
                                          regulations)
Joel and Debra Blatchford, Kasilof, AK   Represents Eskimo whale
                                          hunters. Generally supports
                                          the proposed regulations.
                                          However, he argues that
                                          Eskimos should be a party to
                                          any co-management agreement
                                          governing the harvest of CI
                                          beluga whales and one strike
                                          should be allocated to the
                                          Eskimos.
Steve Silver, Esq., Robertson, Monagle   Represents the Municipalities
 & Eastaugh, Arlington, VA                of Anchorage, Kenai Peninsula
                                          Borough, and Matankuska-
                                          Susistna Bourough. Generally
                                          supports the proposed
                                          regulations.
Judy Brady, Exec. Dir., Alaska Oil and   Represents Alaska Oil & Gas
 Gas, and Jeffrey W. Leppo, Esq., Stoel   Assoc. (``AOGA''). Generally
 Rives, LLP., Seattle, WA                 supports the proposed
                                          regulations. AOGA expresses
                                          concerns regarding (1) the
                                          effectiveness of the co-
                                          management agreement strategy;
                                          (2) the agency's ability to
                                          enforce the regulations and
                                          manage the subsistence harvest
                                          of CI beluga whales; and (3)
                                          whether illegal takes will be
                                          counted against the two-strike
                                          harvest limit.

[[Page 75231]]

 
Michael L. Gosliner, Esq., General       Represents the Marine Mammal
 Counsel, Marine Mammal Commission,       Commission (``MMC'').
 Bethesda, MD                             Generally supports the
                                          proposed regulations. MMC
                                          expresses concern about the
                                          allocation of the strikes to
                                          Native hunters. MMC challenges
                                          NMFS authority to adjust the
                                          number of annual strikes
                                          through notice and comment
                                          rulemaking after adoption of
                                          the proposed regulations. MMC
                                          expresses concern about the
                                          broad prohibition against the
                                          sale of CI beluga products,
                                          and recommends that the
                                          prohibition should only apply
                                          to edible portions of beluga
                                          whale products. MMC recommends
                                          expansion of the prohibition
                                          to cover purchase, as well as
                                          sale, of edible portions of CI
                                          beluga whale. MMC further
                                          expresses concern on the
                                          ability to differentiate
                                          between edible portions of CI
                                          beluga whales and other beluga
                                          whale stocks in the Anchorage
                                          area and recommends a broad
                                          prohibition against the sale
                                          and purchase of all edible
                                          portions of beluga whales in
                                          the area. MMC also expresses
                                          concern regarding the
                                          efficiency of the harvest of
                                          CI beluga whales and is
                                          equally concerned about the
                                          extent to which landed whales
                                          are fully utilized. In
                                          addition, MMC seeks
                                          clarification as to whether
                                          the proposed regulation
                                          limiting Native harvest
                                          applies to all maternally
                                          dependent calves or just
                                          newborn calves.
John M. Starkey, Esq., Homer, AK         Represents the Native Village
                                          of Tyonek (``Tyonek''). Tyonek
                                          claims to be the only
                                          federally recognized Indian
                                          tribe, which is historically
                                          known for hunting CI beluga
                                          whales and argues that 1 whale
                                          should be allotted to the
                                          tribe each year under the
                                          proposed regulations and
                                          management agreement.
Jack K. Sterne, Esq., Trustee for        Trustees for Alaska challenges
 Alaska, Center for Marine                the methodology and
 Conservation, Anchorage, AK              enforceability of the proposed
                                          regulations.
David Avraham Voluck, Esq., Landye       Represents Cook Inlet Treaty
 Bennett Blumstein, LLP, Anchorage, AK    Tribes (``CITT''). CITT is a
                                          federally recognized Indian
                                          tribe that criticizes the
                                          hearing process and procedures
                                          and sees it as a serious
                                          barrier to meaningful
                                          participation by Alaska
                                          Natives, who were given less
                                          than 1 month to file an
                                          initial notice of intent to
                                          participate, together with
                                          direct testimony. CITT also
                                          opposes the proposed
                                          regulations. CITT challenges
                                          NMFS scientific methodology
                                          for estimating the CI beluga
                                          whale stock. CITT argues that
                                          a more flexible regulatory
                                          regime should be applied to CI
                                          beluga whales that would
                                          easily provide for increasing
                                          the number of subsistence
                                          strikes if new information
                                          becomes available. CITT also
                                          claims that it is the
                                          sovereign governing tribes in
                                          CI and NMFS must deal directly
                                          with all the tribes of CI in
                                          their contemplated co-
                                          management agreement, and
                                          challenges authority and
                                          ability of NMFS to enforce the
                                          contemplated co-management
                                          agreement.
------------------------------------------------------------------------

Issues to be Addressed at the Hearing

A. Population Estimates

    1. What numbers are appropriate to use for:
    a. Carrying capacity (K)
    b. Current Population size (N2000)
    c. Intrinsic rate of growth (Rmax)
    d. The lower bound of the optimum sustainable population level 
(Maximum Net Productivity Level or MNPL) relative to the carrying 
capacity
    2. Whether 2000 Survey Data will be available. If so, why aren't 
they being used?
    3. Whether the recovery times projected by the National Marine 
Fisheries Service (NMFS) under different harvest regimes are 
appropriate?
    a. Whether recovery factor used by the NMFS is too conservative? If 
so, what is the appropriate recovery factor?
    b. Whether there is a consistent formula for estimating the 
recovery time?
    c. Have past formulas for population been developed? If so, what 
are the formulas and why weren't they adopted?
    4. What factors, other than Native harvest of Cook Inlet beluga 
whales, possibly contributed to the observed declines or slower than 
projected potential recovery of the stock?
    a. Whether the estimate of annual removals by Alaska Native 
subsistence hunters in Cook Inlet is accurate? Is the Cook Inlet Marine 
Mammal Council's report on 1998 harvest levels available?
    b. Whether NMFS has adequately accounted for risks to the 
population from orca predation, strandings, oil spills, and other 
stochastic events in calculating potential harvest removals and 
recovery times?
    c. Is there an Inlet-based decline in the availability of food or 
prey for the Beluga? If so, in what way has this affected the decline 
and potential recovery of the population?
    5. Whether a more flexible model that accounts for uncertainty in 
key population parameters is available? If so, why wasn't it used?
    6. What resources are available for monitoring beluga population 
and harvest?
    a. Will the beluga population be evaluated on an annual basis?
    b. Whether the regulations should contain a provision for altering 
the number of Native harvest strikes if new, valid information changes 
the analysis of Cook Inlet beluga population?
    7. Should a more flexible harvest regime be adopted? If so, what 
should it be?

B. Co-Management and Enforcement

    1. What is the definition of the term ``Alaska Native Organization 
(ANO)?''
    a. How is an ANO recognized?
    b. Are there any ANOs in Cook Inlet with area-wide tribal authority 
to enforce laws against all members of the area tribes and enter into 
agreements on behalf of said tribes? How many exist and who are they? 
Which ANO(s) can enter into co-management agreement with NMFS?
    2. What mechanisms are available to enforce the Native harvest 
limitation and prohibition on the sale of products and foodstuff from 
Cook Inlet beluga whales?
    a. Who has authority to enforce the proposed regulations, if 
adopted? Will enforcement authority be shared between NMFS and the 
ANO(s)?
    b. What effect, if any, does the recent ruling in Alaska v. Native 
Village of Venetie Tribal Government, 522 U.S. 520 (1998) have on a 
tribal government's ability to enforce tribal laws on individuals?
    c. How will the strikes under the proposed regulation be allocated? 
Who will monitor the harvest of Cook Inlet beluga whales to ensure that 
the season is concluded as soon as the second strike has been made? How 
will the hunters and tribes be notified of season's closure?

[[Page 75232]]

    3. Are there methods to increase efficiency?
    4. Will there be sufficient funding for enforcement and 
prosecution?

C. Method and Means of Hunting

    1. Will illegal takings be counted against the two-strike Native 
harvest limitation?
    2. Will NMFS be able to stop Native harvest of Cook Inlet beluga 
whales under emergency circumstances by rule making? Will there be a 
legal mechanism to stop Native harvest of Cook Inlet beluga whales in 
the event of unrelated mortality that would affect the population 
recovery?
    3. Should juvenile whales be taken instead of mature adults if it 
is shown to enhance chances of population recovery?
    4. Should the proposed July 15 annual commencement date for Native 
harvest of beluga whales be moved forward to July 1 in view of 
deteriorating weather conditions?

D. Sale of Cook Inlet Beluga Whale Products

    1. Whether the term ``sale'' should include barter and other types 
of quasi-commercial transactions?
    2. Should attempts to sell Cook Inlet beluga whale products and/or 
foodstuff be deemed a violation? Should the purchase and attempts to 
purchase Cook Inlet beluga whale products or foodstuff be deemed a 
violation?
    3. For enforcement purposes, should the restriction on the sale of 
Cook Inlet beluga whale products and/or foodstuff be expanded to 
prohibit the sale of products and/or foodstuff from other beluga whale 
stock?
    4. Should restrictions be in place for all Cook Inlet beluga whale 
products, or just edible portions?

E. Cultural Interests

    1. Are there ways to encourage full utilization of those belugas 
taken pursuant to the proposed regulations?
    2. Is there sufficient emphasis on the importance of Native 
subsistence harvest in terms of balancing in favor of permitting the 
proposed harvest?
    These issues are subject to change as a result of stipulations of 
the participants. NMFS and all parties have submitted various documents 
and written testimony that bears on these issues.
    During the hearing, the NOAA Counsel will present his witnesses and 
documentary evidence first, and the participants will be given an 
opportunity to cross-examine the witnesses. The other parties listed 
above will also be given an opportunity to present witnesses and 
introduce documentary evidence in the order in which they are listed in 
this Notice of Final Agenda. Witnesses in the hearing include the 
following:
    (1) For NMFS, Douglas P. DeMaster, Ph.D., Director, National Marine 
Mammal Laboratory, NMFS; P. Michael Payne, Assistant Regional 
Administrator for Protected Resources, NMFS;
    (2) For Joel and Debra Blatchford: These participants will testify 
on their own behalf;
    (3) For the Municipality of Anchorage, the Mantanuska-Susitna 
Borough, and the Kenai Peninsula Borough: George Weurch, Mayor, 
Municipality of Anchorage; John Duffy, Acting Manager, Matanuska-
Susitna Borough; and Dale Bagley, Mayor, Kenai Peninsula Borough;
    (4) For Alaska Oil and Gas Association (AOGA): Judith M. Brady, 
Executive Director, AOGA;
    (5) For the Marine Mammal Commission: Daniel Goodman, Ph.D., 
Professor, Montana State University;
    (6) For the village of Tyonek: Peter Merryman, Chief, Village of 
Tyonek;
    (7) For the Trustees for Alaska: Not yet identified; and
    (8) For Cook Inlet Treaty Tribes: Delice calcote, Secretary, Cook 
Inlet Marine Mammal Council.

    Dated: November 27, 2000.
Don Knowles,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 00-30677 Filed 11-30-00; 8:45 am]
BILLING CODE 3510-22-S