[Federal Register Volume 70, Number 191 (Tuesday, October 4, 2005)]
[Notices]
[Pages 57860-57862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19886]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 092805F]


Notice of Additional Public Scoping Meeting Related to the Makah 
Tribe's Continuation of Treaty Right Hunting of Gray Whales

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

ACTION: Notice; scoping meeting.

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SUMMARY: NMFS announces its intent to conduct an additional public 
scoping meeting to gather information to prepare an Environmental 
Impact Statement (EIS) pursuant to the National Environmental Policy 
Act (NEPA), related to the Makah Tribe's request that NMFS waive the 
take moratorium of the Marine Mammal Protection Act (MMPA) to allow for 
treaty right hunting of eastern North Pacific gray whales in usual and 
accustomed grounds off the coast of Washington State. This notice 
briefly describes the background of the Makah's request for waiver; 
gives the date, time, and location of the additional public scoping 
meeting; and identifies a set of preliminary alternatives.

DATES: The additional public scoping meeting is scheduled in the 
Washington, D.C. area (Silver Spring, MD) for October 18, 2005, 10 am - 
1 pm. Prospective attendees must register for the scoping meeting not 
later than 4 pm EDT, October 14, 2005.
    In addition to the meeting, written or electronic comments from all 
interested parties are encouraged and must be received no later than 5 
p.m. PDT October 24, 2005.

[[Page 57861]]


ADDRESSES: The additional public scoping meeting will be held at the 
NOAA Auditorium, 1301 East-West Highway, Silver Spring, MD. People may 
register for the public scoping meeting by sending their first and last 
names to Tom Eagle via email to [email protected] or by telephone to 
(301)713-2322, ext. 105.
    All comments concerning preparation of the EIS and NEPA process 
should be addressed to: Kassandra Brown, NMFS Northwest Region, 
Building 1, 7600 Sand Point Way NE, Seattle, WA 98115. Comments may 
also be submitted via fax (206)526-6426, Attn: Makah Tribe Whale Hunt 
EIS, or by electronic mail to [email protected] with a subject line 
containing the document identifier: Makah Whale EIS.

FOR FURTHER INFORMATION CONTACT: Kassandra Brown, NMFS Northwest 
Region, (206)526-4348, or Tom Eagle, NMFS Office of Protected 
Resources, (301)713-2322, ext. 105.

SUPPLEMENTARY INFORMATION:

Background

    NMFS announced its intent to prepare an EIS pursuant to the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.) and conduct 
public scoping meetings August 25, 2005 (70 FR 49911). Due to requests 
from the public for additional scoping meetings, NMFS has scheduled an 
additional public scoping meeting in the Washington, D.C., area at the 
NOAA Auditorium in Silver Spring, MD (See ADDRESSES).
    The Makah Indian Tribe of Washington State (Makah) seeks to 
continue its subsistence hunting of eastern North Pacific (ENP) gray 
whales, a tradition dating back at least 1,500 years. The Makah's right 
to hunt whales at usual and accustomed grounds and stations off the 
coast of Washington was secured in Article 4 of the 1855 Treaty of Neah 
Bay in exchange for most of the land in the Olympic Peninsula. The 
Treaty of Neah Bay is the primary instrument defining the legal 
relationship between the United States Government and the Makah.
    The Makah hunted whales until the 1920s when commercial whaling had 
drastically reduced the numbers of ENP gray whales available to the 
Makah hunters for harvest. Prior to enactment of the Endangered Species 
Act of 1973 (16 U.S.C. 1351 et seq.), the U.S. Fish and Wildlife 
Service included gray whales (among several genera of baleen whales) on 
its 1970 list of endangered species (35 FR 8491, June 2, 1970). The ENP 
distinct population segment was subsequently delisted on June 16, 1994 
(59 FR 31094). In 1999, Makah hunters killed one ENP gray whale 
pursuant to an aboriginal subsistence harvest quota granted for 1998 
through 2002 by the International Whaling Commission (IWC) and 
domestically implemented by NMFS under the Whaling Convention Act 
(WCA)(16 U.S.C. 916 et seq.). Due to a series of lawsuits, no whales 
were hunted by the Makah for the remainder of the 1998 through 2002 
quota.
    In May 2002, the IWC approved another aboriginal subsistence 
harvest quota of 620 gray whales for 2003 through 2007, on the basis of 
a joint request by the Russian Federation (approved for 600 whales) and 
the United States (approved for 20 whales). The United States' request 
was made on behalf of the Makah. On March 6, 2003 NMFS initiated an EIS 
to assess the environmental impacts of allocating the 2003 through 2007 
quota to the Makah by soliciting comments and information to facilitate 
the environmental analysis (68 FR 10703). Due to litigation (described 
below), NMFS did not complete the EIS and did not allocate the quota 
under the WCA. The Makah have not conducted subsistence hunts to date 
under the 2003 through 2007 IWC quota.
    On June 7, 2004, the Ninth Circuit Court of Appeals in the second 
amended version of Anderson v. Evans, 371 F.3d 475, held that the 
Tribe, to pursue any treaty rights for whaling, must comply with the 
process prescribed in the MMPA (16 U.S.C. 1361 et seq.) for authorizing 
take of marine mammals otherwise prohibited by a 
moratorium in section 101(a)(16 U.S.C. 1371(a)). The term 
take means to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 
1362(13)). Subsequent to the Anderson v. Evans ruling, the Makah 
submitted a request for a limited waiver of the moratorium on taking 
marine mammals, which we received on February 14, 2005. We published 
notice of availability of the waiver request for public inspection on 
March 3, 2005 (70 FR 10369), available online at http://www.nwr.noaa.gov/mmammals/graywhales/index.html.
    To exercise subsistence hunting treaty rights of gray whales, the 
Makah Tribe must undergo three separate but related processes: (1) The 
United States must obtain an aboriginal subsistence quota from the IWC 
on the Makah Tribe's behalf, (2) NMFS must decide whether to waive the 
MMPA take moratorium for the Makah Tribe, including conducting a NEPA 
review and issuing possible regulations and permits (see Proposed 
Action for more details), and (3) NMFS must allocate the IWC quota 
under the WCA. More information regarding these processes will soon be 
available to the public under the NMFS Northwest Region website 
gray whale link at http://www.nwr.noaa.gov. The 
NEPA review initiated by this notice of intent is to comply with 
process number (2) described above, which requires preparation of a 
site-specific EIS related to the Makah Tribe's request for a waiver of 
the MMPA take moratorium.

Proposed Action

    The Makah's proposed action is to kill up to 20 ENP gray whales 
during a 5-year period, subject to a maximum of five gray whales in any 
calendar year, within its adjudicated usual and accustomed grounds 
(See, United States v. Washington, 626 F.Supp. 1405, 1467 (W.D. Wash 
1985)), subject to quotas granted by the IWC. The Makah proposes to 
strike (strike is defined at 50 CFR 230.2 to mean hitting a whale with 
a harpoon, lance, or explosive device) up to seven gray whales per 
year. The Makah's proposal to continue subsistence hunting of gray 
whales includes other standards for hunting, such as: (1) time and area 
restrictions designed to avoid any intentional harvest of gray whales 
comprising the Pacific Coast Feeding Aggregation (PCFA), (2) monitoring 
and adaptive management measures to ensure that any incidental harvest 
of gray whales from the PCFA remains at or below the annual strike 
limit, (3) measures to ensure that hunting is conducted in the most 
humane manner practicable, consistent with continued use of traditional 
hunting methods, and (4) measures to protect public safety. The full 
waiver request is posted online at http://www.nwr.noaa.gov/mmammals/graywhales/index.html.
    Based on the Makah's waiver request, the Federal action consists of 
three parts: (1) Waiving the moratorium on take of marine mammals under 
section 101(a)(3)(A)(16 U.S.C. 1371(3)(A)) of the MMPA, and 
subsequently (2) promulgating hunting regulations implementing the 
waiver in accordance with section 103 (16 U.S.C. 1373) of the MMPA, and 
(3) issuing any necessary permit(s) to the Makah for whale hunting.
    If NMFS waives the MMPA take moratorium and issues the necessary 
regulations and permit(s), the Makah would be allowed to continue 
subsistence hunting of ENP gray whales, subject to IWC quotas and 
allocation of those quotas under the WCA. The NEPA review initiated by 
this notice of intent, therefore, involves preparation of a site-
specific EIS related to the Makah Tribe's

[[Page 57862]]

proposed action of continuing treaty right subsistence ENP whale 
hunting (i.e., request for a waiver of the MMPA take moratorium), and 
alternatives to the waiver request.

Alternatives

    Pursuant to NEPA, which requires Federal agencies to conduct an 
environmental analysis of proposed actions to determine if the actions 
may affect the human environment, and in recognition of the Ninth 
Circuit Court of Appeals ruling in Anderson v. Evans, we intend to 
conduct public scoping meetings and to prepare an EIS. Under NEPA, a 
reasonable range of alternatives to a proposed action must be developed 
and considered in our environmental review. Alternatives considered for 
analysis in this EIS may include: variations in the scope of the 
hunting activities, variations in the hunting location, or a 
combination of these elements. In addition, the EIS will identify 
potentially significant direct, indirect, and cumulative impacts on 
geology and soils, air quality, water quality, other fish and wildlife 
species and their habitat, vegetation, socioeconomics/tourism, treaty 
rights and Federal trust responsibilities, environmental justice, 
cultural resources, noise, aesthetics, transportation, public services, 
and human health and safety, and other environmental issues that could 
occur with the implementation of the Makah's proposed action and 
alternatives. For all potentially significant impacts, the EIS will 
identify avoidance, minimization, and mitigation measures to reduce 
these impacts, where feasible, to a level below significance.
    We have identified the following preliminary alternatives for 
public comment during the public scoping period, and encourage 
information on additional alternatives to consider:
    Alternative 1: No Action - Under the No Action Alternative, we 
would not approve the requested whale hunting, would not grant the 
waiver of the moratorium on take under the MMPA, nor issue the 
necessary regulations and permits.
    Alternative 2: The Proposed Action - Under the proposed action, the 
Makah Tribe would be allowed to continue treaty right subsistence 
hunting of gray whales imposing time and area restrictions designed to 
target migrating whales and to avoid any intentional harvest of whales 
from the PCFA. We would grant the waiver of the moratorium on take 
under the MMPA and issue the necessary regulations and permits.
    Alternative 3: The proposed action would be modified to allow 
limited take of gray whales from the PCFA during hunts.
    Alternative 4: The proposed action would be modified to remove time 
and area restrictions from the hunts.
    Alternative 5: The proposed action would be modified to allow 
hunting to target migrating whales, imposing time and area restrictions 
different than those contained in the proposed action that would 
maximize the likelihood of taking a migrating whale (and minimize the 
likelihood of taking a PCFA whale).

Request for Comments

    We provide this notice to advise the public of an additional 
meetings scheduled following public requests received after our initial 
announcement of scoping meetings. Comments and suggestions received 
during the prior public comment period for the 2003 through 2007 quota 
allocation (March 6 through April 21, 2003), will be considered in 
developing the current EIS. Other comments and suggestions are invited 
from all interested parties to ensure that the full range of issues 
related to the Makah's waiver request and all significant issues are 
identified. We request that comments be as specific as possible. We 
seek public input on the scope of the required NEPA analysis, including 
the range of reasonable alternatives; associated impacts of any 
alternatives on the human environment, including geology and soils, air 
quality, water quality, other fish and wildlife species and their 
habitat, vegetation, socioeconomics/tourism, treaty rights and Federal 
trust responsibilities, environmental justice, cultural resources, 
noise, aesthetics, transportation, public services, and human health 
and safety; and suitable mitigation measures.
    Comments concerning this environmental review process should be 
directed to NMFS (see ADDRESSES). See FOR FURTHER INFORMATION CONTACT 
for questions. All comments and material received, including names and 
addresses, will become part of the administrative record and may be 
released to the public.

Authority

    The environmental review of continuation of the Makah subsistence 
gray whale hunting will be conducted under the authority and in 
accordance with the requirements of NEPA, Council on Environmental 
Quality Regulations (40 CFR 1500-1508), other applicable Federal laws 
and regulations, and policies and procedures of NMFS for compliance 
with those regulations. This notice is being furnished in accordance 
with 40 CFR 1501.7 to obtain suggestions and information from other 
agencies and the public on the scope of issues and alternatives to be 
addressed in the EIS.

Security

    For access to a government building, the Department of Commerce 
Office of Security at NOAA has advised that all attendees must register 
for the hearing and must have a valid identification with a photograph. 
Prospective attendees may register by sending their first and last 
names by telephone or email to Tom Eagle (See ADDRESSES) by 4 pm EDT 
October 14, 2005.

Reasonable Accommodation

    Persons needing reasonable accommodations to attend and participate 
in the public meetings should contact Tom Eagle (see FOR FURTHER 
INFORMATION CONTACT). To allow sufficient time to process requests, 
please call at least 10 business days prior to the meeting. Information 
regarding the Makah's request is available in alternative formats upon 
request.

    Dated: September 29, 2005.
Thomas C. Eagle,
Acting Chief, Marine Mammal and Sea Turtle Conservation Division, 
Office of Protected Resources, National Marine Fisheries Service.
[FR Doc. 05-19886 Filed 10-3-05; 8:45 am]
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