[Federal Register Volume 69, Number 66 (Tuesday, April 6, 2004)]
[Rules and Regulations]
[Pages 17973-17980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7660]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 000922272-4087-02 ; I.D. 061600A]
RIN 0648-AO16


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

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

ACTION: Final rule, response to comments.

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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA), 
NMFS issues regulations to govern the taking of Cook Inlet (CI) beluga 
whales by Alaska Natives for subsistence purposes. These regulations 
were developed after considering comments received from the public, 
stipulations agreed to in the record of hearing before Administrative 
Law Judge Parlen L. McKenna (Judge McKenna) in December 2000, in 
Anchorage, AK, and subsequent negotiations with the parties to the 
hearing. The regulations are intended to conserve and manage CI beluga 
whales under applicable provisions of the MMPA.

DATES: Effective May 6, 2004.

ADDRESSES: Copies of the final Environmental Impact Statement (EIS), 
Record of Decision (ROD) and other information related to this rule may 
be obtained by writing to Chief, Protected Resources Division, NMFS 
Alaska Regional Office, P.O. Box 21668, Juneau, AK 99802. Documents 
related to these harvest regulations and on related actions, including 
the EIS and ROD, are available on the Internet at the following 
address: http://www.fakr.noaa.gov/protectedresources/whales/beluga.htm.

FOR FURTHER INFORMATION CONTACT: Barbara Mahoney or Brad Smith, NMFS, 
Alaska Region, Anchorage Field Office, (907) 271-5006, fax (907) 271-
3030; or Thomas Eagle, NMFS Office of Protected Resources, (301) 713-
2322, ext. 105, fax (301) 713-0376.

SUPPLEMENTARY INFORMATION:

Background

    On October 4, 2000, NMFS proposed harvest regulations (65 FR 59164) 
governing the take of CI beluga whales by Alaska Natives. In accordance 
with the Administrative Procedure Act, 5

[[Page 17974]]

U.S.C. 551-559, and the procedures (50 CFR part 228) for hearings 
pursuant to section 103(d) of the MMPA, a public evidentiary hearing 
was held before Judge McKenna, in Anchorage, AK, on December 5-8, 2000. 
The following participants appeared at the hearing represented by 
either legal counsel or a designated non-attorney representative: 
Alaska Oil and Gas Association, Joel and Debra Blatchford, Cook Inlet 
Treaty Tribes, Marine Mammal Commission (MMC), Native Village of 
Tyonek, Trustees for Alaska, and NMFS. After considering the 
administrative record, written records forwarded to his office, and 
stipulations and evidence adduced at the formal hearing, Judge McKenna 
forwarded a recommended decision to NMFS on March 29, 2002. A notice of 
availability of the recommended decision was published on May 7, 2002, 
(67 FR 30646) with a 20-day comment period. NMFS did not receive any 
comments on the recommended decision.
    The CI stock of beluga whales is one of five recognized stocks in 
Alaska and is genetically and geographically isolated from the other 
Alaska beluga whale stocks. The distribution of the CI stock is 
centered in the upper portion of the inlet during much of the year, 
which makes them especially susceptible to hunting and the effects of 
other human-related activities, due to their proximity to Anchorage, 
AK. The CI beluga whale stock was hunted by Alaska Natives who reside 
in communities on or near the inlet, and by hunters who have moved into 
Anchorage from other Alaska towns and villages.
    The CI beluga whale stock declined dramatically between 1994 and 
1998. Results of aerial surveys conducted by the National Marine Mammal 
Laboratory, NMFS, indicated that the CI beluga whale stock declined by 
47 percent between 1994 (estimate of beluga whales in Cook Inlet, n = 
653) and 1998 (n = 347). According to a study conducted by Alaska 
Native hunters during 1995 and 1996, the estimated harvest of CI beluga 
whales (including struck and lost whales) averaged 97 whales per year. 
Based on information collected by the Alaska Department of Fish and 
Game, the Cook Inlet Marine Mammal Council, data compiled by NMFS based 
on reports from hunters, and the direct observation by NMFS on 
harvested whales, NMFS estimated that harvest from 1994 through 1998 
averaged 67 whales per year. Harvest at these rates could account for 
the 15 percent per year decline observed between 1994 and 1998. The 
annual harvest estimates and rate of decline from 1994 through 1998 
indicate that the harvest was unsustainable.
    NMFS initiated a status review of the CI beluga whale stock on 
November 19, 1998 (63 FR 64228). As a result of this review, NMFS 
determined that the stock had declined by approximately 50 percent 
between 1994 and 1998, falling below its maximum net productivity level 
(MNPL) and, therefore, was depleted as defined in the MMPA. NMFS 
published a proposed rule to designate the CI stock of beluga whales as 
depleted under the MMPA on October 19, 1999 (64 FR 56298). Estimates 
derived from counts made by the Alaska Department of Fish and Game in 
the 1960s and 1970s, indicated that the abundance of CI beluga whales 
was as high as 1,293 individuals as recently as 1979. These estimates 
supported NMFS' ``depleted'' determination and indicated that the 
extent of depletion (as a proportion of maximum historical abundance) 
was much greater than the surveys from 1994-1998 indicated. NMFS 
published the final depleted designation on May 31, 2000 (65 FR 34590).
    MMPA section 101(b), 16 U.S.C. 1371(b), provides an exception to a 
general moratorium on the taking of marine mammals by allowing any 
Indian, Aleut, or Eskimo who resides in Alaska and 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 and 
selling authentic Native articles of handicrafts and clothing and is 
not accomplished in a wasteful manner. Under this exemption, the large 
population of Alaska Natives in the CI area hunted beluga whales in 
large numbers to meet local needs. Recognizing that the CI stock could 
no longer withstand the level of known hunting that occurred between 
1994 and 1998, and observing fewer beluga whales in Cook Inlet, the 
hunters voluntarily imposed a moratorium on hunting in 1999. To further 
address this critical issue, the following temporary moratorium was 
enacted (Pub. L. 106-31, section 3022, 113 Stat. 57, 100 (May 21, 
1999)):
    Notwithstanding any other provision of law, the taking of a Cook 
Inlet beluga whale under the exemption provided in Section 101(b) of 
the Marine Mammal Protection Act between the date of the enactment 
of this Act and October 1, 2000, shall be considered a violation of 
such Act unless such taking occurs pursuant to a cooperative 
agreement between the National Marine Fisheries Service and affected 
Alaska Native Organizations.
    This moratorium was made permanent on December 21, 2000 (Pub. L. 
106-553, 114 Stat. 2762, 2762A-108). As a result of this statutory 
moratorium, hunting CI beluga whales is prohibited unless an Alaska 
Native organization (ANO) enters into a cooperative agreement with 
NMFS. The agreement will provide for the management of CI beluga whales 
and will include a limited harvest that will allow successful recovery 
of this stock.
    NMFS has continued beluga whale abundance surveys in CI during June 
of each year. The abundance estimates from the June 1999 through June 
2003 surveys were 357, 435, 386, 313, and 357 animals, respectively.
    NMFS may regulate the taking of marine mammals by Alaska Natives 
when the stock in question is designated as ``depleted'' pursuant to 
the MMPA and is followed by an agency public hearing on the record 
(pursuant to sections 101(b) and 103(d) of the MMPA). Therefore, the 
designation of the CI beluga whale stock as depleted under the MMPA was 
necessary prior to any rulemaking that might limit their taking by 
Alaska Natives.
    On October 4, 2000, proposed regulations were published (65 FR 
59164) that would limit the harvest of CI beluga whales by Alaska 
Natives. Simultaneously, a draft EIS filed with the Environmental 
Protection Agency was made available to other Federal agencies and the 
public for comment. The regulations proposed by NMFS would require 
that: (1) takes can only occur under an agreement between NMFS and an 
ANO pursuant to section 119 of the MMPA, (2) takes shall be limited to 
no more than two strikes annually, (3) the sale of CI beluga whale 
products shall be prohibited, (4) all hunting shall occur on or after 
July 15 of each year, and (5) the harvest of calves, or adult whales 
with calves, shall be prohibited. The objective of the regulations is 
to recover the depleted stock of CI beluga whales to its optimum 
sustainable population (OSP) level, while preserving the traditional 
subsistence use of the CI beluga whale to support the cultural, 
spiritual, social, economic and nutritional needs of Alaska Natives.
    The proposed regulations and all relevant available information 
were reviewed on the record in a hearing held pursuant to MMPA section 
103(d), implementing regulations at 50 CFR part 228, and 5 U.S.C. 551-
559. The hearing focused primarily on the following issues: (1) 
existing population estimates of CI beluga whales; (2) the expected 
impact of the proposed regulations on the optimum sustainable CI beluga 
whale population; and (3) the effect of regulating the take of CI 
beluga whales to the Native communities.

[[Page 17975]]

    Judge McKenna issued his recommended decision on March 29, 2002. 
That decision addressed all the immediate issues raised by the parties 
at the hearing and subsequent meetings. However, provisions governing 
the taking of beluga whales during 2005 and subsequent years were 
reserved to allow additional studies. Judge McKenna, in consultation 
with the parties to this proceeding, will recommend appropriate harvest 
levels for hunting CI beluga whales for 2005 and subsequent years. NMFS 
will consider that recommendation when promulgating regulations for 
subsistence harvests of CI beluga whales after 2004.

Decision of the Assistant Administrator

    The Assistant Administrator for Fisheries finds that the recovery 
of CI beluga whales can occur while allowing a small take by Alaska 
Natives. The decision is based on scientific research on this 
population of beluga whales, the record of hearing, Judge McKenna's 
recommended decision, comments from the general public, and the final 
EIS. For purposes of interim harvest for 2001-2004, the record 
indicates the interim harvest of six whales in four years would not 
significantly disadvantage CI beluga whales. To insure the recovery of 
this beluga stock, NMFS will continue to monitor and assess the status 
of CI beluga whales.

Comments and Responses

    NMFS received 15 letters from the public during the comment period 
on the proposed regulations and the draft EIS. The content of most of 
the comments focused on the draft EIS (i.e., on alternatives to the 
proposed regulations identified as the preferred alternative in the 
draft EIS or on the analyses contained in the draft EIS) rather than 
the proposed regulations. NMFS has responded to all the comments 
received on both the proposed regulations and the draft EIS, as well as 
those made on the stipulations agreed upon by the parties in the record 
of the Judge McKenna's decision, in the final EIS. The final EIS was 
approved prior to the publication of these regulations and is now 
available. (See ADDRESSES). As a result, only those comments that 
specifically addressed the proposed harvest regulations are addressed 
here.
    Comment 1: The regulations should limit the Native harvest at a 
level that would not exceed two (2) strikes annually, until such time 
that the stock has recovered to OSP as this level of harvest would have 
minimal effect on the time to recovery to OSP.
    Response: Although NMFS proposed to limit subsistence harvest by 
Alaska Natives to no more than two strikes per year, the final rule has 
been revised downward to 1.5 strikes per year. During the hearing 
before Judge McKenna, one of the parties noted that NMFS analyses 
supporting the proposed rule (found in the draft EIS) did not 
adequately account for uncertainty, and incorporating that uncertainty 
suggested that the impact to the stock (resulting delay in recovery) 
was greater than NMFS stated in the draft EIS. Other parties at the 
hearing were interested in allowing the level of harvest to be 
increased as the population size increased. Consequently, NMFS and the 
other parties to the hearing agreed to an interim harvest limit of 6 
whales over a 4-year period and to submit a long-term (2005 and beyond) 
harvest strategy to Judge McKenna in March 2004. The parties to the 
hearing agreed that the interim approach would allow a limited harvest 
to meet traditional subsistence needs and would not cause a significant 
adverse impact to the stock.
    Comment 2: No harvest should occur (a moratorium) until such time 
that the stock recovers to the lower limit of the OSP.
    Response: The management objective of this final rule is twofold: 
(1) to recover this depleted stock to its OSP level, and (2) to provide 
for a continued traditional harvest by Alaska Natives in the CI region. 
Prohibiting a traditional harvest entirely would not provide for Alaska 
Native needs.
    Comment 3: Additional hunting regulations are required and all 
hunting should occur after July 15 of each year, the taking of calves 
or adult whales with calves should be prohibited, and the protocols to 
maximize strike efficiency should be included.
    Response: Specific hunting restrictions and mitigating measures 
will be included in annual co-management agreements which specify the 
terms of each year's hunt. The taking of calves or adult whales with 
calves will be prohibited. Native hunters have informed NMFS that 
favorable weather conditions in early July allow for improved hunt 
efficiency. There is sufficient information regarding the calving of CI 
beluga whales to prohibit hunting prior to July 1 of each year in order 
to protect pregnant females. However, at least for these regulations 
for the period of 2001 through 2004, there is insufficient information 
to suggest that July 15, rather than July 1, would provide additional 
insurance against taking pregnant females. Therefore, the harvest could 
begin on July 1 of each year so that hunters could obtain the increased 
efficiency expected in early July. Protocols for the harvest, including 
how to maximize strike efficiency, will be included in co-management 
agreements.
    Comment 4: The hunt should not cause an additional delay in the 
recovery of the beluga whales.
    Response: For the 2001-2004 period, a not-to-exceed harvest of 
three strikes every two years (1.5 whales per year), as compared to a 
``no harvest'' alternative, minimally extends the CI beluga whale 
estimated time of recovery to OSP. The allowable harvest addresses the 
second management objective of allowing a traditional use by Alaska 
Natives.
    Comment 5: The harvest was the only known cause of the decline of 
the beluga whale population in Cook Inlet.
    Response: Available information suggests that harvest was the 
principal factor in the decline of the CI stock of beluga whales in the 
past decade, and additional discussion is included in the EIS.
    Comment 6: The subsistence harvest should not be the only factor to 
be considered in planning for the recovery and protection of these 
whales.
    Response: Subsistence harvest should not be the only factor 
considered in the development of a conservation plan for this stock. 
NMFS has stated that harvest was the principal factor implicated in the 
decline. However, the draft and final EIS examined items such as 
habitat needs, vessel traffic, availability of prey, disturbance, 
contaminant loads in CI beluga whales, mass stranding and predation, 
disease, as well as other factors that need to be considered in the 
development of a conservation plan for this stock.
    Comment 7: NMFS should collect more data through observations 
before placing any restrictions on the harvest. The comment also 
reminded NMFS that beluga whales are an important food source for 
Alaska Natives who live in the area.
    Response: NMFS will continue to collect information on the CI stock 
of beluga whales to better understand their population abundance and 
biology. However, implementing regulations to restrict the harvest 
should not be delayed. The available information indicates that the CI 
beluga whale stock has experienced a significant decline, and continued 
unregulated harvest would exacerbate that decline. Therefore, harvest 
regulations need to be in place to promote the recovery of this beluga 
whale stock. NMFS has considered the cultural needs of Alaska Natives 
and supports a continued, but limited, harvest for subsistence.

[[Page 17976]]

    Comment 8: The depleted determination and hunting restrictions are 
very necessary (and belated). NMFS should also implement a conservation 
plan under the MMPA to address other issues such as education and 
enforcement.
    Response: NMFS recognized the need for the depleted determination 
and the harvest restrictions in this rule. NMFS also intends to develop 
a conservation plan for these whales. NMFS agrees that education and 
enforcement are necessary and intends for these elements to be part of 
a conservation plan.
    Comment 9: The management approach suggested by NMFS in the 
proposed rule (i.e., a combination of Federal regulations and co-
management agreements that will allow recovery of the beluga whale 
stock) was supported by several comments.
    Response: The harvest management strategy represents a combination 
of Federal statutory measures (MMPA and Pub. L. 106-553, 114 Stat. 
2762, 2762A-108), regulations, and co-management agreements. 
Regulations will establish a harvest limit to provide for the recovery 
of the stock. The co-management agreements will authorize the strikes, 
set specific harvest practices to improve efficiency and report on 
strikes, and establish a cooperative effort to recover the stock.
    Comment 10: Subsistence hunting needs to be managed through a co-
management agreement to ensure hunter involvement.
    Response: The annual allocation and harvest of beluga whales will 
be coordinated through a co-management agreement with ANOs pursuant to 
the recommended decision by Judge McKenna and section 119 of the MMPA.
    Comment 11: A substantial increase in the funding committed to co-
management is needed.
    Response: Additional funding would allow Alaska Natives greater 
participation in the conservation of marine mammals.
    Comment 12: A limited hunt is supported only if NMFS can enforce 
the strike limit. The mechanisms to enforce and monitor the hunt are 
not well described in the proposed rule.
    Response: NMFS Enforcement has increased its efforts since 1999 to 
monitor the hunting activity allowed through the co-management 
agreements to ensure the strike limit is enforced. All co-management 
agreements for CI beluga whales have included provisions to ensure 
compliance with the agreement and an efficient, non-wasteful harvest, 
including provisions for notifying NMFS Enforcement prior to the hunt 
and for providing a jawbone to NMFS soon after any harvest. Copies of 
co-management agreements were appended to the draft and final EIS.
    Comment 13: NMFS should be the primary authority to enforce any 
harvest restrictions adopted pursuant to a co-management agreement or 
to regulations. The enforcement plan needs to be explained in the EIS 
along with a description of NMFS' efforts to work within the Native 
communities to develop a system of community self-monitoring.
    Response: NMFS may assert its Federal authority to enforce any 
provisions of the MMPA that are applicable to the Native harvest of 
beluga whales. Such assertions of Federal authority would be preceded 
by consultation with co-management partners as specified in the co-
management agreement. In all cases, NMFS and its co-management partners 
will communicate on an as-needed basis concerning matters related to 
the enforcement of the agreement or the harvest. Under each agreement, 
either party may initiate an enforcement action for a violation of a 
prohibition involving the Native take of the CI whale. Therefore, self-
policing or monitoring is a component of each agreement. Copies of co-
management agreements were appended to the draft and final EIS.
    Comment 14: Any take by any Alaska Native in violation of the final 
regulations to restrict the harvest should be viewed as a violation of 
the MMPA.
    Response: NMFS agrees.
    Comment 15: The sale of edible products from CI beluga whales 
should be prohibited. The sale of all beluga whale edible parts 
(excluding traditional trade and barter) should be prohibited to 
simplify enforcement.
    Response: NMFS is prohibiting the sale of CI beluga whale products, 
except those used for authentic Native articles of handicraft and 
clothing, to eliminate any commercial incentive, while allowing for a 
traditional harvest. Thus, these regulations prohibit the sale of 
edible products from CI beluga whales. It is not necessary to prohibit 
the sale of edible parts of other stocks of beluga whales through 
Federal regulations because other ANOs have management plans that 
prohibit the sale of edible products from other beluga whale stocks.
    Comment 16: An explanation of the proposed periodic review of the 
harvest, population status and trends, and allowance to adjust the 
number of strikes is needed. NMFS should consider a more restrictive 
alternative (i.e., no harvest) if the population decline does not stop. 
Alternatively, the harvest limits should be revised appropriately 
should the population increase significantly.
    Response: Stock status and trends should be reviewed. This is also 
consistent with the recommended decision by Judge McKenna. Section 
103(e) of the MMPA also requires that NMFS conduct a periodic review of 
any regulation promulgated pursuant to that section, and modifications 
may be made in such a manner as the Secretary deems consistent with and 
necessary to carry out purposes of the MMPA. The review will compare 
the results of the annual survey data with the management of the 
harvest to determine the status of the CI beluga whale population and 
to determine whether changes in the harvest or level of harvest should 
occur.
    Comment 17: The regulation provides no provision for increasing the 
number of strikes if new information regarding the health of the CI 
beluga whale population comes to light. The regulations should make 
provisions for altering the number of strikes for subsistence harvest 
if new, valid information changes the analysis of the CI beluga whale 
population.
    Response: See response to Comment 16 above. In addition, this final 
rule is an interim measure to govern a short-term harvest (2001 through 
2004) while NMFS, in consultation with the other parties to the 
hearing, prepares a recommended harvest strategy that would allow the 
harvest to be adjusted depending upon the status of the population.
    Comment 18: NMFS placed too much blame on the Native harvest for 
the observed decline in CI beluga whales. While Native hunting may have 
played a role in the decline of the whales, nobody is really sure why 
the population is suffering.
    Response: The record indicates that the unregulated harvest of CI 
beluga whales between 1994 and 1998 resulted in high levels of removals 
from this population. These harvest levels alone could account for the 
decline. However, while harvest has not occurred or has been at a very 
low level since 1999, the population has not shown signs of recovery. 
NMFS acknowledges other factors may be contributing to the apparent 
failure of the population to increase. NMFS will continue to examine 
other factors that may be affecting the population. See responses to 
comments 5 and 6 for additional information.
    Comment 19: Whether or not a harvest was needed to promote Native 
culture and tradition was questioned. Hunting for CI beluga whales has 
ceased

[[Page 17977]]

in the past for up to 30 years without harming the Native culture.
    Response: The Native Village of Tyonek has a history of harvesting 
beluga whales in Cook Inlet and has continued this practice since the 
1970s. Although Tyonek hunters did not take CI beluga whales between 
the 1940s and 1970s, beluga whale hunting based out of the Anchorage 
area did occur during this period, and the products were available to 
Anchorage and other local communities. Generally, subsistence foods 
other than beluga whales, as well as non-subsistence foods, have become 
more prevalent in the diet of Alaska Natives who live in the CI area in 
recent years. As a result, the reliance on whales as a primary food 
source has diminished. However, the cultural importance of whaling has 
never disappeared. Alaska Natives continue to share the meat and 
blubber in traditional patterns that reaffirm social ties and promote 
ethnic identity. The use of beluga whale products and other subsistence 
resources continues to be economically, nutritionally, and culturally 
valuable to Alaska Natives in the CI area.
    Comment 20: NMFS should reinstate the legislative prohibitions that 
expired 1 October 2000 to prevent a resumption of unregulated hunting.
    Response: NMFS cannot reinstate legislative provisions. However, 
Congress reinstated the requirement for co-management agreements to 
govern beluga whale hunting in Cook Inlet on December 21, 2000, without 
an expiration date (Pub. L. 106-553, section 1(a)(2), 114 Stat. 2762, 
2762A-108).
    Comment 21: Observed or potential decreases in other beluga whale 
stocks throughout Alaska might result in problems similar to that found 
in Cook Inlet (depleted population with harvest limitations).
    Response: The abundance estimates and harvest reports for the other 
four beluga whale populations in Alaska indicate they are healthy and 
not in danger of depletion at this time. The Alaska Beluga Whale 
Committee (ABWC), a statewide ANO consisting of beluga whale hunters, 
co-manages the four other stocks of beluga whales in Alaska. The ABWC 
flies aerial surveys for abundance estimates and collects harvest 
information on the beluga whale stocks to monitor the abundance and 
health of these stocks. This monitoring helps prevent problems similar 
to those experienced in CI. Furthermore, the situation in CI is unique 
in that more than 20,000 Alaska Natives, each of which enjoys the 
Native exemption to the MMPA, are concentrated in a relatively small 
area. The CI beluga population is isolated from other beluga stocks and 
is the only beluga population near the large concentration of Alaska 
Natives that inhabit Anchorage. Therefore, this small, isolated 
population is subject to over-harvest if conservation measures are not 
implemented.

Final Rule as Compared to the Proposed Rule

    The final regulations are similar to and logically follow from the 
proposed regulations (65 FR 59164). Both the proposed and final 
regulations require that any taking of a CI beluga whale by an Alaska 
Native must be authorized under a co-management agreement between NMFS 
and an ANO. The proposed regulations would have allowed two strikes 
annually on CI beluga whales. The strike limitations in the final 
regulations, which are limited to a 4-year period, allow a total of six 
strikes in four years allocated through co-management agreement(s). 
These harvest levels are a small fraction of the harvest that occurred 
prior to 1999.
    Provisions to govern the taking of CI beluga during 2005 and 
subsequent years will be prepared during 2004 and submitted to Judge 
McKenna in March 2004. Judge McKenna will retain jurisdiction over the 
rulemaking pending the gathering of data by NMFS, in consultation with 
the other parties to this proceeding, so that the harvest regime can be 
developed for establishing appropriate harvest levels for 2005 and 
subsequent years.
    The regulations include emergency provisions for suspension of 
takes during 2001-2004. The taking of CI beluga whales authorized under 
these regulations will be suspended whenever unusual mortalities exceed 
six whales in any year. Unusual mortalities include documented human-
caused mortality (excluding legal harvests but including illegal 
takings, net entanglements, and boat strikes) and all documented 
mortality resulting from unknown or natural causes that occur above 
normal levels, considered at this time to be 12 per year. The final 
regulations provide more detail on recovery from unusually high 
mortality events by stating that whenever mortalities exceed 18, 
subsequent harvests would be stopped until this loss is recovered 
through foregone future harvests and natural recruitment. Legally-
harvested whales were not to have been included in calculating unusual 
mortalities, and the final regulations have been reworded to clarify 
this point.
    The proposed and final regulations prohibit the sale of CI beluga 
whale parts or products, including food stuffs, except those used for 
authentic Native articles of handicraft and clothing. Instead of the 
whale hunt beginning on or after July 15 of each year, the final 
regulations allow the take to occur no earlier than July 1 of each 
year. This change in date should still protect near-term pregnant 
females while allowing Alaska Natives more opportunities to hunt during 
their traditional season. See response to comment 3.
    The proposed rule did not include provisions related to the 
allocation of strikes. In accordance with agreement of the parties of 
the hearing and Judge McKenna's recommended decision, the final rule 
governs the allocation of strikes.
    The proposed regulations prohibited the taking of a calf or an 
adult whale accompanied by a maternally-dependent calf, and the final 
regulations prohibit the taking of any calf or an adult accompanied by 
a calf. This change is necessary because the condition of being 
maternally-dependent cannot be defined or ascertained, nor would such a 
condition be enforceable. Finally, the organizational structure of the 
proposed regulations has been reconfigured to make the format of these 
final regulations adaptable to or compatible with the forthcoming 
harvest regulations for 2005 and subsequent years.

Findings of the Assistant Administrator

    The Assistant Administrator made 8 findings on issues identified 
for the hearing, and these were based on Judge McKenna's recommended 
decision.
    1. The CI beluga whale stock is a ``depleted'' marine mammal 
population within the meaning of the MMPA.
    2. The Alaska Native subsistence harvest of CI beluga whales is 
subject to regulation in accordance with the MMPA.
    3. The proposed regulations published in the Federal Register on 
October 4, 2000, should be modified in such a way as to promote 
additional scientific research and data collection and analysis of the 
CI beluga whales and their habitat to address remaining uncertainty in 
the population dynamics of the CI beluga whales.
    4. An interim subsistence harvest regime should be established for 
the period 2001-2004 which provides for the allocation of a total of 
six strikes of CI beluga whales pursuant to co-management agreements. 
To address remaining uncertainty concerning the population dynamics of 
the CI beluga whales, these interim regulations should provide for the 
collection and analysis

[[Page 17978]]

of scientific data which can be used to establish a harvest regime for 
future years.
    5. Based on the parties' stipulations, over four years (2001-2004) 
four strikes, not to exceed one strike per year, are allocated to the 
Native Village of Tyonek pursuant to a co-management agreement. The 
remaining two strikes, with no more than one strike being allocated 
every other year, are allocated to other CI Alaska Native subsistence 
community hunters.
    6. The best scientific evidence available demonstrates that the 
interim harvest regime agreed to by the parties will not significantly 
disadvantage the CI beluga whale population.
    7. Based on the parties' stipulations, Judge McKenna should retain 
jurisdiction over the rulemaking, pending data collection and 
developments (by NMFS in consultation with the participants to this 
proceeding) of a regime for determining allowable subsistence harvest 
levels for 2005 and subsequent years.
    8. Based on the parties' stipulations, NMFS should submit a final 
recommendation on the long term subsistence harvest regime for 2005 and 
subsequent years to Judge McKenna and the other parties no later than 
March 15, 2004.

Evidence to Support the Assistant Administrator's Findings

    The critical evidence for all of the findings are the data and 
analyses supporting population estimates and management actions. The 
pertinent sources of data in the record are aerial surveys and reports, 
harvest information and reports, and testimony from witnesses.
    Aerial survey data are collected by NMFS observers from a fixed 
wing aircraft. Aerial surveys were conducted in June of each year since 
1994, except for a survey in July 1995, with multiple surveys in upper 
CI. Four or five observers, often including a Native hunter 
representative, have undertaken the surveys, looking for and counting 
beluga whales while videotaping the whale groups. The CI coastline is 
surveyed and east-west transects are flown in the middle Inlet, 
covering 25 to 30 percent of the entire CI. The videotapes are later 
analyzed to provide a correction factor that is used to convert the 
observer counts to an estimate of the abundance.
    Harvest reports have been provided to NMFS from the Alaska 
Department of Fish and Game, ABWC, the Cook Inlet Marine Mammal 
Council, and Alaska Native beluga hunters. The most thorough reports 
were provided, under co-management efforts, by the Cook Inlet Marine 
Mammal Council in 1995 and 1996. These reports stated that the two-year 
harvest of CI beluga whales (including struck and lost whales) averaged 
97 whales per year. The other reports, although not as reliable because 
of fewer direct contacts with the CI beluga hunters, also demonstrated 
a large harvest, with an annual harvest estimate of 67 whales from 1994 
through 1998 (including struck and lost).

A. Population Estimates

    Parties to the hearing addressed several estimates related to the 
population in an attempt to resolve uncertainties related to them.
    (1) Current Population Size. The parties to the hearing agreed to 
defer a ruling on the current population size, and Judge McKenna's 
recommended decision included such a deferral. NMFS will continue its 
annual abundance surveys for this population in the immediate future.
    (2) Carrying Capacity. Based on the evidence adduced at the 
hearing, NMFS would need a number of years of annual abundance 
estimates to accurately determine the carrying capacity of CI beluga 
whales with any reliable degree of certainty. However, NMFS believes 
the estimate of carrying capacity presented in the EIS is reasonable 
for interim management purposes.
    (3) Intrinsic Rate of Growth (Rmax). Rmax is the maximum net 
productivity rate of CI beluga whales on an annual basis. Rmax is 
derived by subtracting natural mortality from the gross annual 
reproduction rate. NMFS determined that 4 percent, amounting to 10 to 
12 marine mammals added to the population on an annual basis, is 
reasonable for cetacean populations similar in size to the CI beluga 
whales. However, Rmax for CI beluga whales will be reassessed as new 
data become available.
    (4) Optimum Sustainable Population (OSP). When a population like CI 
beluga whales is below OSP, it is considered depleted as defined under 
the MMPA. OSP is a range of population sizes, the upper end of which is 
the maximum number of animals that the ecosystem can support (carrying 
capacity). The lower end is determined by estimating what stock 
abundance, in relation to the carrying capacity, will produce the 
maximum net increase in the population and is called the MNPL. 
Historically, NMFS has used 60 percent of the carrying capacity as the 
MNPL for regulatory purposes, and there was insufficient information to 
deviate from that value for CI beluga whales. An improved estimate of 
OSP may be derived after future abundance data are acquired.
    (5) Recovery time. The estimated recovery time NMFS used in the 
proposed rule was subject to an appreciable degree of uncertainty, and 
the parties at the hearing agreed to defer a ruling on recovery time. 
Judge McKenna's recommended decision incorporated this agreement to 
defer an estimate of recovery time until additional information had 
been collected.

B. Co-management and Enforcement

    Judge McKenna recommended that the harvest regulations should 
address allocation of strikes through a co-management process. 
Regulations for long term harvest will be deferred until more 
information is collected and analyzed during the interim harvest period 
(2001-2004). Enforcement will also be addressed in the co-management 
context.

Regulations

    NMFS has proposed regulations governing the harvest of CI beluga 
whales for the years 2001-2004. A long term harvest plan is deferred 
pending further discussions among the parties to the proceedings.
    In addition to the alternative NMFS has adopted from the final EIS, 
NMFS considered all regulatory alternatives contained in the final EIS, 
and concluded that the recommended action is the preferred alternative, 
which also represents the best approach under the MMPA. The final EIS 
is incorporated by reference in this final rule. The evidence does not 
support a ``no harvest'' approach, as proposed in Alternatives 1 and 6 
because a ``no harvest'' regime would fail to meet the objective of 
meeting traditional subsistence needs. The reduced harvest regimes in 
Alternatives 2 (one strike annually until the stock recovers to OSP) 
and 3 (one strike annually for eight years then two strikes annually 
until the stock recovers to its OSP) are also insufficient to meet 
traditional subsistence needs of all CI beluga whale hunters. 
Alternative 5 (annual take level based on a fixed percentage of stock 
size until the stock recovers to OSP) would result in an unacceptable 
delay in the recovery of the stock to its OSP. Alternative 4 (two 
strikes annually until the stock recovered to its OSP) was rejected 
because NMFS' analysis of the effects of this harvest (delay in the 
time for the stock to recover to OSP) did not adequately incorporate 
scientific uncertainty. NMFS has, therefore, agreed to this short-term 
alternative

[[Page 17979]]

pending a more thorough analysis that incorporates scientific 
uncertainty and additional data.
    Pursuant to sections 101 and 103(d) of the MMPA and regulations at 
50 CFR Part 228, NMFS initiated an on-the-record, administrative 
hearing process regarding the proposed regulations. The hearing was 
convened before Judge McKenna. Seven parties participated in the 
hearing. After considering the administrative record, written records 
forwarded to him, and stipulations and evidence adduced at the formal 
hearing, Judge McKenna forwarded a recommended decision to NMFS on 
March 29, 2002.
    On May 7, 2002, NMFS published a notice (67 FR 30646) announcing 
the receipt of the recommended decision and made it available for 
review, as required by regulations (50 CFR 228.20(c)). NMFS provided a 
20-day comment period for the recommended decision as required by 
procedural regulations. NMFS received no comments on the recommended 
decision during the comment period.
    NMFS is required to make a final decision on the proposed 
regulations following the comment period that includes (1) a statement 
containing a description of the history of the proceeding, (2) findings 
on the issues of fact with the reasons therefore, and (3) rulings on 
issues of law. The decision must be published in the Federal Register 
and final regulations must be promulgated with the decision. NMFS 
publishes these final regulations for the harvest of CI beluga whales 
from 2001 through 2004.
    These regulations do not define the term ``calf''. For the purposes 
of these short-term harvest regulations, a definition of ``calf'' will 
be included in authorizing co-management agreements subsequent to the 
publication of the regulations. This definition
    would provide sufficient guidance to hunters and enforcement 
officials for implementation of the regulations.

Classification

National Environmental Policy Act

    NMFS has prepared a final EIS to address actions taken to manage 
and recover this stock. The primary management action is to limit 
Native harvest of CI beluga whales. The impact of this action was 
evaluated in the final EIS through a model which examined the length of 
time it would take for the stock to recover under different harvest 
alternatives. The preferred harvest plan provided for the cultural 
needs of Alaska Natives by allowing up to six (6) strikes (multiple 
strikes on one whale equals one (1) strike) in four (4) years, while 
not significantly extending the time required for this stock to 
recover. The final EIS also presented an assessment of the impacts of 
other anthropogenic activities that might impact CI beluga whales or 
their habitat. This assessment included a discussion of the cumulative 
impacts and evaluated the measures needed for the protection and 
conservation of important CI beluga whale habitats.

Paperwork Reduction Act

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

Endangered Species Act (ESA)

    This rule does not affect other species listed under the ESA and 
whose distribution includes the lower part of CI. These species include 
humpback and fin whales and the western Distinct Population Segment of 
Steller sea lions. Therefore, this final rule making does not impact 
any ESA listed species or its critical habitat.

Executive Order 12866 - Regulatory Planning and Review

    This 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 action would not have a significant economic 
impact on a substantial number of small entities. The factual basis for 
the certification was published in the proposed rule. No comments were 
received regarding the economic impact of this rule. A final regulatory 
flexibility analysis is not required, and none was prepared.

Executive Order 12898 - Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, Section 4-
4, Subsistence Consumption of Fish and Wildlife

    Section 4-4 of Executive Order 12898 requires Federal agencies to 
protect populations who consume fish and wildlife as part of their 
subsistence lifestyle, and to communicate to the public the potential 
health risks (from contaminants) involved as a result of eating fish 
and wildlife. 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 the Alaska Department of Health and Social 
Service and to Alaska Native communities as this information becomes 
available.

Consultation with State and Local Government Agencies

    In keeping with the intent of Executive Order 13132 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 support the conservation of this stock of 
beluga whales. NMFS has convened scientific workshops that were open to 
the public and has routinely exchanged information on the status of 
these whales with state and local agencies, and tribal governments.

Executive Order 13084-Consultation and Coordination with Indian Tribal 
Governments

    This final rule is consistent with policies and guidance 
established in Executive Order 13084 of May 14, 1998, (63 FR 27655) and 
the Presidential Memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' 
(Presidential Memorandum). 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. 
The Presidential Memorandum requires that NMFS consult with tribal 
governments prior to taking actions that affect them and assess the 
impact of programs on tribal trust resources. Consistent with this 
Executive Order and the Presidential Memorandum, NMFS has taken several 
steps to consult and inform affected tribal governments and solicit 
their input during development of this rule, including the development 
of a co-management agreement with the Cook Inlet Marine Mammal Council 
in 2000-2003. This final rule does not impose substantial direct 
compliance costs on the communities of Indian tribal governments.

Consultation under the MMPA

    The MMC and ANOs were consulted prior to publication of the harvest 
regulation proposal, and they were parties to the proceedings. The MMC

[[Page 17980]]

and three ANOs filed briefs with Judge McKenna and will participate on 
the scientific review committee.

List of Subjects in 50 CFR part 216

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

    Dated: March 31, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
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

0
1. The authority citation for part 216 continues to read as follows:

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

0
2. In Sec.  216.23, add paragraph (f) to read as follows:


Sec.  216.23  Native exceptions.

* * * * *
    (f) Harvest management of Cook Inlet beluga whales. (1) Cooperative 
management of subsistence harvest. Subject to the provisions of 16 
U.S.C. 1371(b) and any further limitations set forth in Sec.  216.23, 
any taking of a Cook Inlet beluga whale by an Alaska Native must be 
authorized under an agreement for the co-management of subsistence uses 
(hereinafter in this paragraph ``co-management agreement'') between the 
National Marine Fisheries Service and an Alaska Native organization(s).
    (2) Limitations. (i) Sale of Cook Inlet beluga whale parts and 
products. Authentic Native articles of handicraft and clothing made 
from nonedible by-products of beluga whales taken in accordance with 
the provisions of this paragraph may be sold in interstate commerce. 
The sale of any other part or product, including food stuffs, from Cook 
Inlet beluga whales is prohibited, provided that nothing herein shall 
be interpreted to prohibit or restrict customary and traditional 
subsistence practices of barter and sharing of Cook Inlet beluga parts 
and products.
    (ii) Beluga whale calves or adults with calves. The taking of a 
calf or an adult whale accompanied by a calf is prohibited.
    (iii) Season. All takings of beluga whales authorized under Sec.  
216.23(f) shall occur no earlier than July 1 of each year.
    (iv) Taking during 2001-2004. The harvest of Cook Inlet beluga 
whales is restricted during the four-year period of 2001-2004 as 
follows:
    (A) Strike limitations. Subject to the suspension provision of 
subparagraph (C), a total of six (6) strikes, which could result in up 
to six landings, are to be allocated through co-management 
agreement(s).
    (B) Strike allocations. Four strikes, not to exceed one per year, 
are allocated to the Native Village of Tyonek. The remaining two 
strikes will be allocated over the 4-year period through co-management 
agreement with other Cook Inlet community hunters, with no more than 
one such strike being allocated during every other year.
    (C) Emergency provisions. Takings of beluga whales authorized under 
Sec.  216.23 will be suspended whenever unusual mortalities exceed six 
(6) whales in any year. ``Unusual mortalities'' include all documented 
human-caused mortality (including illegal takings and net entanglements 
but excluding all legally harvested whales) and all documented 
mortality resulting from unknown or natural causes that occur above 
normal levels, considered for the purposes of this provision to be 
twelve beluga whales per year. The level of unusual mortalities shall 
be calculated by documenting mortality for the calendar year and 
subtracting twelve. The sum of this result and the carry over of 
unusual mortality from any previous year from which the population has 
not recovered is the level of unusual mortalities for the current year. 
If in any year the number of unusual mortalities exceeds six whales, no 
strikes will be allowed in that year or in subsequent years until the 
population has recovered from those mortalities through foregone future 
harvests and natural recruitment.
    (v) Taking during 2005 and subsequent years. [Reserved]
[FR Doc. 04-7660 Filed 4-5-04; 8:45 am]
BILLING CODE 3510-22-S