[Federal Register Volume 73, Number 200 (Wednesday, October 15, 2008)]
[Rules and Regulations]
[Pages 60976-60986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24511]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 080302353-8620-01]
RIN 0648-AO16


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

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

ACTION:  Final rule.

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SUMMARY:  NMFS issues final regulations establishing long-term limits 
on the maximum number of Cook Inlet beluga whales that may be taken by 
Alaska Natives for subsistence and handicraft purposes. These 
regulations were developed after proceedings and public comment 
connected to an on-the-record rule-making and hearings before 
Administrative Law Judge (ALJ) Parlen L. McKenna (Judge McKenna); 
consultations with the parties to the hearings, including Alaska Native 
Organizations; and comments received from the public on the Cook Inlet 
Beluga Whale Subsistence Harvest Draft Supplemental Environmental 
Impact Statement (SEIS). These regulations are intended to conserve and 
manage Cook Inlet belugas under applicable provisions of the Marine 
Mammal Protection Act ( MMPA) until the whales are no longer depleted 
under the MMPA.

DATES:  Effective November 14, 2008.

ADDRESSES:  Information related to this rule-making process, including 
the Final SEIS and Record of Decision (ROD), is available on the 
Internet at the following address: http://www.fakr.noaa.gov/protected 
resources/whales/beluga.htm.
    Copies of the Final SEIS, ROD, and other information related to 
this rule may also be obtained by writing to Kaja Brix, Assistant 
Regional Administrator for Protected Resources, NMFS Alaska Regional 
Office, P.O. Box 21668, Juneau, AK 99802.

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

SUPPLEMENTARY INFORMATION: This final rule implements long-term limits 
on the maximum number of Cook Inlet beluga whales that may be taken by 
Alaska Natives for subsistence purposes. This final rule is based upon 
the complete record of the hearing process and on comments and other 
information obtained since receipt of Judge McKenna's recommended 
decision in November 2005. The action is needed to allow Alaska Natives 
to continue subsistence harvests that support traditional, cultural, 
and nutritional needs without preventing or unreasonably delaying the 
recovery of, and not disadvantaging, this depleted beluga whale stock.

Background

    The MMPA established a moratorium on the taking of marine mammals, 
including whales such as the Cook Inlet beluga whale. However, MMPA 
section 101(b) (16 U.S.C. 1371(b)) provides an exception to the 
moratorium which allows certain Alaska Indian, Aleut, and Eskimo 
residents 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.
    MMPA section 101(b) also authorizes NMFS to prescribe regulations 
for subsistence harvests on depleted marine mammal stocks. In 
accordance with MMPA sections 101(b) and 103 (16 U.S.C. 1373), such 
regulations must be adopted using formal rulemaking procedures, 
including an agency hearing on the record before an Administrative

[[Page 60977]]

Law Judge. The subsistence harvest regulations resulting from the 
administrative process must be supported by substantial evidence 
submitted through the administrative hearing proceedings and other 
authorized sources.
    After monitoring a decline in the beluga population from 1994 
through 1998, NMFS designated Cook Inlet belugas as a depleted 
population under the MMPA (65 FR 34590, May 31, 2000). In October 2000 
(65 FR 59164, October 4, 2000), NMFS proposed regulations to set upper 
limits on the number of Cook Inlet beluga whales that could be taken 
for subsistence purposes by Alaska Natives and to establish other terms 
and conditions upon which taking of this beluga stock could be 
authorized through co-management agreements.
    In December 2000, the first of two evidentiary hearings on NMFS' 
proposed rule was held before an Administrative Law Judge in Anchorage, 
AK. After considering the administrative record, written records 
forwarded to his office, and stipulations and evidence adduced at the 
formal hearing, Judge McKenna forwarded his first recommended decision, 
as approved by the parties, to NMFS on March 29, 2002, for an interim 
harvest for the years 2001-2004 (67 FR 30646, May 7, 2002); however, 
provisions governing the taking of belugas during 2005 and subsequent 
years were not finalized for reasons discussed below. Based on the 
first ALJ recommended decision, NMFS issued interim regulations (69 FR 
1973, April 6, 2004) to govern the subsistence taking of Cook Inlet 
beluga whales. These regulations included provisions for (1) an interim 
limit on the number of strikes and an allocation of these strikes on 
beluga whales by Alaska Natives during the years 2001 through 2004, (2) 
the requirement for a cooperative agreement pursuant to MMPA section 
119 (16 U.S.C. 1388), (3) a prohibition on the sale of certain parts of 
Cook Inlet beluga whales, (4) a prohibition on the taking of beluga 
calves and adults with calves, and (5) a restriction on the timing of 
beluga whale hunts. The impacts of alternatives for the interim harvest 
regulations, including the preferred alternative, were analyzed in the 
June 2003 EIS, which is available on the Internet (see ADDRESSES). 
Additional relevant background can be found in the interim harvest 
rule.
    As part of the stipulation the parties submitted to the ALJ after 
the initial hearing, they agreed to certain principles that the long-
term harvest limits should be based upon. The parties agreed to develop 
a long-term harvest regime that:
    (a) Provides reasonable assurance that the population will recover, 
within an acceptable period of time, to the point where it is no longer 
considered depleted under the MMPA;
    (b) Takes into account the uncertainty concerning the available 
knowledge of the population dynamics and vital rates of the Cook Inlet 
beluga whale population;
    (c) Allows for periodic adjustment on the allowable strike levels 
based upon the results of the population abundance surveys and other 
relevant information, recognizing the strike level set forth in the 
2001-2004 interim harvest regime will not be reduced below this minimum 
without substantial information (for example documented ``unusual 
mortalities'') demonstrating that subsistence takes must be reduced 
below this minimum level to allow recovery of the Cook Inlet beluga 
population from its depleted status); and
    (d) Can be readily understood by diverse constituencies.
    Concurrent with the issuance of his first recommended decision and 
publication of the interim harvest rule, Judge McKenna directed the 
parties to work together to develop long-term harvest limits and for 
NMFS to submit a proposed harvest plan based on the efforts by the 
participating agencies and Alaska Natives. Following Judge McKenna's 
direction, the parties agreed to several elements for the harvest 
regime in early discussions and to convene a working group of 
scientific experts (Technical Team) to propose and evaluate 
alternatives for harvest limits. Among the general agreements was that 
(1) harvest limits should be established in blocks of multiple years, 
(2) there should be a mechanism to reduce remaining harvest if an 
emergency arose during a multi-year block, and (3) there is a minimum 
abundance threshold below which harvest should not be allowed. The 
Technical Team agreed upon a population model to create the harvest 
regime and to evaluate performance of alternative strategies to control 
harvest limits. As directed by Judge McKenna, NMFS, in consultation 
with the other parties in the proceeding, drafted a proposal for a 
long-term harvest plan to complete the rule-making process that was 
initiated in 2000. NMFS submitted its revised proposed long term 
harvest plan to Judge McKenna on April 30, 2004.
    NMFS proposed the use of 5-year blocks for establishing harvest 
levels, which would provide a reasonable planning time for affected 
Alaska Natives, so that hunters could prepare and proportion the 
harvest appropriately, while allowing NMFS a certain amount of 
flexibility to adjust the harvest based on abundance estimates and the 
rate of population growth. The 5-year blocks were incorporated into 
subsequent proposals, negotiations, and discussions by agreement of the 
parties.
    The parties were unable to reach full agreement on a long-term 
harvest plan. To resolve differences, in August 2004, Judge McKenna 
convened another hearing in Anchorage, Alaska. The following parties 
participated at the hearing: National Marine Fisheries Service, the 
Marine Mammal Commission, the Native Village of Tyonek, Joel and 
Deborah Blatchford, and the Cook Inlet Treaty Tribes. At the hearing, 
testimony was received into the record addressing NMFS' proposed long-
term harvest plan and to consider other parties' proposals.
    The hearing addressed a variety of issues, some more significant 
than others. The significant issues were as follows:
    (1) Development of triggers that would stop harvest should the 
abundance estimate decline to a specific floor;
    (2) Development of triggers that would reduce the harvest should 
NMFS detect a specified probability that the population's growth rate 
is less than a specific level;
    (3) Whether the harvest level should increase if an intermediate 
vs. low growth rate is determined; and
    (4) How NMFS would account for unusually high mortalities and the 
affect on mortalities of harvest reduction or stoppage.
    Following the hearing, Judge McKenna received further submissions 
and evidence, all of which were incorporated into the record for this 
final rule.

ALJ's Recommended Decision

    On November 8, 2005, Judge McKenna issued his second recommended 
decision. This decision recommended a plan for long-term limits on the 
maximum number of Cook Inlet beluga whales that may be taken by Alaska 
Natives for subsistence purposes. NMFS announced the availability of 
Judge McKenna's recommended decision (72 FR 8268, February 16, 2006) 
and provided a 20-day comment period on the recommended decision. Four 
letters with comments were received. Summaries of those comments and 
responses appear below.

[[Page 60978]]

    Comment 1: Hunting should not be allowed to resume on a proposed 
endangered stock until such time that the Cook Inlet beluga population 
goals have been achieved.
    Response: Under these harvest regulations, subsistence harvest is 
allowed only when the 5-year abundance average is more than 350 
belugas. NMFS plans to provide for the recovery of the beluga 
population while recognizing the needs of Alaska Natives for 
subsistence purposes. The MMPA provides for the taking of marine 
mammals by Alaska Natives for subsistence and handicraft purposes. The 
MMPA also limits the government's authority to restrict harvest of 
these species by Alaska Natives. There is no legal basis to eliminate 
opportunity for subsistence harvest of a species that has been proposed 
as endangered, under the Endangered Species Act (ESA). NMFS determined 
that this final rule provides reasonable assurance that the harvest 
would not cause a significant delay in recovery of the Cook Inlet 
beluga population. Accordingly, the harvest limits in this rule would 
not jeopardize the continued existence of Cook Inlet beluga whales, and 
a conference pursuant to ESA section 7(a)(4) was not conducted. If Cook 
Inlet beluga whales are listed as an endangered species, ESA section 
10(e) provisions would apply; however, such listing would not affect 
this final rule.
    Comment 2: Hunting should continue and Alaska Native hunters should 
get at least two belugas per year.
    Response: Given the lack of population growth since harvest was 
limited in 1999, hunting as suggested in this comment would not provide 
reasonable assurance that the harvest would result in an insignificant 
delay in recovery. Accordingly, it is inconsistent with guiding 
principles adopted by the parties in the administrative hearing.
    Comment 3: NMFS should retain the option to reconsider the interim 
harvest limits that would be established through 2009.
    Response: NMFS selected Alternative 2 Option B, in which the 
harvest table would be put into effect immediately (in 2008).
    Comment 4: If NMFS is not able to meet the level of survey effort 
capable of detecting population declines with reasonable certainty, 
sufficient flexibility needs to be incorporated into the harvest plan 
to add additional protections to the beluga that offsets increased 
uncertainty in abundance estimates.
    Response: Conducting annual abundance estimates would provide more 
frequent information on population trends, but NMFS cannot guarantee 
funding for annual estimates during the life of this harvest plan. The 
harvest plan does not require annual surveys; however, the ability to 
detect population trends is lower if surveys are conducted less 
frequently. Greater uncertainty in the growth rate as a result of fewer 
surveys, however, would likely result in the specification of a lower 
harvest level in the harvest plan.
    Comment 5: The harvest management regime should consider population 
trends over shorter intervals (e.g., 5 to 10 years) rather than relying 
on the long-term trends relative to 1994.
    Response: In this final rule, NMFS modified Judge McKenna's 
recommended decision by calculating population growth rate on the most 
recent 10-years of abundance estimates (see Decision of the Assistant 
Administrator for Fisheries, NOAA, for a discussion related to 
modifying the population growth rate used in long-term harvest limits).
    Comment 6: NMFS statement that co-management agreements may include 
provisions regarding the sex composition of the harvest should clarify 
that the rationale for such limitations would be to minimize the taking 
of reproductively active females in the harvest.
    Response: In his recommended decision, Judge McKenna noted that the 
Commission and NMFS advocated that Alaska Natives should try to harvest 
male beluga whales because such selection was believed to have less 
negative effect on the population's reproductive potential. NMFS has 
adopted Judge McKenna's findings to allow sex composition of the 
harvest to specified in 5-year co-management agreements and his reasons 
for this finding (see Decision of the Assistant Administrator for 
Fisheries, NOAA). NOAA also believes that targeting males would 
minimize the taking of reproductively active females.
    Comment 7: Because the 5-year abundance average is already below 
350 belugas, the Administrative Law Judge's recommendation for NMFS to 
commit to and seek funding for beluga studies is underscored.
    Response: The current low abundance is reason for concern, and NMFS 
recognizes that additional funding is necessary to monitor the 
population and identify and address other factors that may be limiting 
growth of this small population.

Decision of the Assistant Administrator for Fisheries, NOAA

    Pursuant to Section 101(b) of the MMPA, NMFS is authorized to 
prescribe regulations for any depleted marine mammal species that is 
taken for subsistence or for creating and selling authentic native 
articles of handicrafts and clothing. NMFS prescribes the regulations 
after notice and hearing conducted pursuant to Section 103. NMFS must 
demonstrate that the regulations and decision are supported by 
substantial evidence based on the record in this matter.
    In his recommended decision issued in 2005, Judge McKenna 
identified several issues of fact and law. He provided his recommended 
findings on issues of fact and rulings on issues of law, and his 
reasoning for these findings and rulings. He also listed six ultimate 
findings of fact and rulings of law, and the reasons supporting these 
findings and rulings. In each instance where a specific determination 
is made, the decision of the ALJ is referenced. In those instances in 
which NMFS finds the justification supporting the ALJ's recommended 
decision persuasive and convincing, we have adopted the decision and 
rationale without further elaboration. Where we differ with the ALJ's 
recommended decision, or concur but believe that modification of or 
addition to the ALJ's recommended decision is justified, we have made 
appropriate determinations. Section 103 of the MMPA requires that NMFS' 
decision be supported by the evidence on the record and that the 
evidence be the best scientific evidence available. After reviewing the 
record, including the 2008 Environmental Impact Statement and its 
record, it is our conclusion that the decision is well substantiated 
and based upon the best scientific information available at this time. 
We have determined that the proposal, procedures, and the decision 
satisfy the requirements of Section 103 of the MMPA and that the long-
term harvest plan will not be to the disadvantage of the marine mammal 
involved and is otherwise consistent with the policies and purposes of 
the MMPA. Judge McKenna's findings, rulings, and rationales are 
summarized below.

Marine Mammal Commission's Standing

    Alaska Native parties requested that the Commission be dismissed 
from the proceedings, but not strike any information or testimony that 
the Commission has provided thus far. Judge McKenna rejected this 
request because it was untimely. Although Judge McKenna noted his 
reservations about the Commission's participation as a party, he 
acknowledged that no other parties objected to their participation at

[[Page 60979]]

the December 2000 hearing or in any submission to the court, including 
to his order of June 10, 2004. The request for the Commission's 
dismissal was raised during the final administrative hearing in August 
2004.

Deference to NMFS' Proposals

    The Commission contested NMFS' argument that its proposed plan was 
entitled to deference by the court. Judge McKenna ruled that NMFS' 
proposed plan was not entitled to deference because it was a proposal 
and had not been adopted by the agency (Assistant Administrator for 
Fisheries).

Burden of Proof

    In response to questions about the burden of proof NMFS must carry 
in this proceeding, Judge McKenna reasoned that under NMFS' regulations 
at 50 CFR 228, the hearing is governed by provisions of the 
Administrative Procedure Act (5 U.S.C. 556 and 557), which provides 
that a rule may not be issued in this case except in consideration of 
the record as a whole and in accordance with reliable, probative, and 
substantial evidence. Judge McKenna noted that the Supreme Court had 
interpreted the phrase ``substantial evidence'' to mean the 
preponderance of the evidence. NMFS further notes that the MMPA 
provides that regulation of subsistence harvest must be supported by 
``substantial evidence on the basis of the record as a whole.'' Judge 
McKenna concluded that NMFS is entitled to have their harvest plan 
evaluated under the preponderance of the evidence standard.

Harvest Subservient to Recovery

    A question debated at length in this proceeding was whether or not 
subsistence harvest should be allowed if there is no detectable 
population growth. NMFS argued that subsistence hunts are an integral 
part of Alaska Native culture, and the MMPA allows restriction of 
subsistence hunts only under very limited circumstances. Alaska Native 
representatives noted that subsistence harvest had been strictly 
curtailed since 1999 and the population had not increased as predicted; 
therefore, if the population were going to die-out regardless of what 
anyone does, then the hunters should be allowed to hunt the whales. The 
Commission noted that the purposes and policies of the MMPA (16 U.S.C. 
1361) included as a major goal, that marine mammal populations should 
not be permitted to diminish below their Optimum Sustainable Population 
(OSP) and that measures should be immediately taken to replenish any 
depleted stock. Judge McKenna's ruling on this issue of law stated that 
subsistence harvest is subservient to recovery of depleted stocks under 
the MMPA. He reasoned that the MMPA provides that, on the basis of the 
best scientific evidence available and in consultation with the 
Commission, NMFS must prescribe regulations regarding the taking and 
importing of marine mammals as deemed necessary and appropriate, to 
insure that such taking will not be to the disadvantage of the affected 
stocks of marine mammals and will be consistent with the MMPA's 
purposes and policies. Because the MMPA requires regulations on takings 
so as not to disadvantage the species or stock, subsistence hunting 
must be subservient to the recovery of a depleted stock.

Population Abundance Threshold

    Although the parties agreed that there was an abundance level below 
which no harvest should be allowed, there was disagreement about what 
that abundance level should be. NMFS first proposed a threshold of 260 
belugas arguing that at such abundance, there was 95 percent confidence 
that the population would be at least 200 whales. After considering an 
Allee effect, inbreeding depression, loss of genetic variability, 
vulnerability to environmental perturbations due to reduced range or 
reduced population size, and vulnerability to demographic 
stochasticity, NMFS believed that loss of genetic variability was the 
most important factor in considering a minimum abundance subject to 
harvest. NMFS further believed that harvest from a population of less 
than 200 belugas could represent an irreplaceable loss of genetic 
diversity in the beluga population. The Commission presented compelling 
evidence that the minimum abundance should be higher than 260 belugas. 
Accordingly, NMFS revised this threshold abundance in its second 
harvest plan proposal to 350 belugas. Tyonek subsequently proposed a 
threshold of 310 belugas as sufficient protection for the population. 
Thus, the contested issue was whether to use an abundance estimate of 
310 or 350 beluga whales as the threshold below which no harvest could 
be allowed. After reviewing the evidence, Judge McKenna ruled there was 
insufficient evidence to support one of these alternatives over the 
other. He ruled on this issue as a matter of law, reasoning that 
Congress enacted a moratorium on subsistence harvest other than that 
conducted through cooperative agreements with NMFS when the population 
size was about 367 belugas; furthermore, the MMPA required that such 
taking would not disadvantage the stock. Judge McKenna reasoned that 
allowing a harvest below the abundance level in 1999 (367 belugas), 
when Congress enacted its moratorium on the unrestricted harvest of 
Cook Inlet beluga whales, was not the intent of Congress. Considering 
that the Cook Inlet beluga abundance estimates are not exact population 
counts, he concluded that NMFS proposed floor of 350 belugas 
represented a reasonable reflection of Congressional intent.

Immediate Recovery

    Another issue was the recovery rate allowed by the harvest. The 
Commission argued that the MMPA requires NMFS take immediate action to 
replenish depleted marine mammal stocks and that Congress' use of the 
word ``immediate'' indicated that recovery should be achieved as 
quickly as possible. The Commission noted the parties' agreed-upon 
principle that the harvest plan provide ``reasonable certainty that the 
population will recover, within an acceptable period of time, to the 
point where it is no longer considered to be depleted'' and argued that 
the terms ``reasonable certainty'' and ``acceptable period of time'' 
should be quantified as 95 percent certainty that the population 
recover in 100 years. The Commission acknowledged use of the 95/25 
criterion (95 percent certainty that harvest would delay recovery by no 
more than 25 percent) as a performance standard in NMFS' second 
proposal, but remained concerned that the proposal would not be 
appropriately responsive to situations where harvest levels need to be 
reduced in response to the population trend. NMFS argued that the 
second proposal contained sufficient safeguards that allow response to 
population trends. Judge McKenna considered the entire record and found 
that NMFS' second proposal was supported by a preponderance of the 
evidence. He noted that given the future uncertainty of the population 
dynamics of Cook Inlet beluga whales, independent, intervening 
variables may foreclose a population recovery within 100 years, an 
outcome that could materialize even in the absence of a harvest. He 
added that such variability in potential for recovery could render the 
proposed benchmarks of 95/25 criterion or 100 years as meaningless. 
After considering the uncertainties about the population's recovery, 
Judge McKenna noted that NMFS should view ``with a jaundiced eye'' that 
100 years is an ``acceptable period of time'' for recovery and that the 
adoption of a mathematical formula such as the 95/25

[[Page 60980]]

criterion should be a goal and not mandatory. Accordingly, he 
recommended that such criteria be adopted as ``goals'' so that the 
decision-maker could use his or her best judgment in the future.

Adjusting Harvest for Low Population Growth Rate

    In its second proposal, NMFS proposed that subsistence harvest be 
reduced or eliminated under specific criteria when the population 
growth rate is negative or abnormally low. The first of these criteria 
was that the harvest should be stopped if the 5-year average population 
abundance was below 350 whales. This criterion and findings related to 
it are discussed above (see Population Abundance Threshold). The second 
and third criteria were (1) that the harvest would be reduced if in 
2020 there is more than a 20-percent probability that the population 
growth rate is less than 1 percent and (2) that the harvest would be 
stopped if there were more than a 20 percent probability that the 
population growth rate was less than 1 percent in 2035.
    The Commission argued that these criteria would respond too slowly 
to situations where there is continued low growth; however, NMFS noted 
that the criteria in its second proposal were part of a plan that 
strictly limited harvest for low growth rate populations. The Cook 
Inlet Treaty Tribes (CITT) proposed that the minimum harvest should not 
be below two whales in any year. Judge McKenna rejected the proposal 
from CITT because the overwhelming evidence in the record did not 
support such a proposal. Judge McKenna considered the entire record and 
supported NMFS' proposed criteria.

Harvest with Small Population and Intermediate Growth Rate

    NMFS' second proposal, which incorporated most of Tyonek's 
proposal, allows the take of five whales over a 5-year interval if the 
population were growing at an intermediate rate and the 5-year 
abundance average was between 350 and 399 belugas. Tyonek's proposal 
argued for eight strikes over a 5-year period with intermediate 
population growth rates, suggesting that the smaller allowable take in 
NMFS' proposal would not contribute meaningfully to the population's 
recovery. NMFS noted that there was a significant likelihood that a 
population with a 5-year average abundance of 350-399 belugas with an 
intermediate growth rate would actually be growing at the low rate. 
Judge McKenna recommended NMFS' proposal because it was intended to 
insure that the harvest would not disadvantage the Cook Inlet beluga 
population.

Unusual Mortality Events

    Although the parties all agreed there should be a mechanism to 
reduce the harvest if there were an unusual mortality event, such as a 
mass stranding in which several whales died, they did not agree on the 
details governing such a reduction. Most beluga mortalities not related 
to harvest are reported due to the carcass stranding; therefore, NMFS 
proposed to use strandings for the basis for normal and unusual 
mortalities. For any year, NMFS proposed to estimate the actual number 
of mortalities by expanding the reported number of deaths by a factor 
of two. An expected number of beluga mortalities may be estimated as a 
proportion of the population size, and these mortality numbers, for 
ranges of abundance, are listed under the heading ``Expected Mortality 
Limit'' in the Harvest Table. If the reported number of deaths in a 
year exceeds the Expected Mortality Limit, then the difference 
(Estimated Excess Mortalities) is subtracted from the current 5-year 
mean abundance, and the harvest levels for the remainder of the 5-year 
period are recalculated.
    Tyonek argued that the expansion factor of two applied to the 
number of reported deaths was conservative because dead whales in some 
parts of the inlet would not likely strand and be reported before they 
drifted out to sea. Tyonek also questioned whether the same factor 
should be applied to immature beluga mortalities as is applied to adult 
whales.
    Tyonek asserted that before whale deaths were counted, NMFS should 
consult with the Cook Inlet Marine Mammal Council through a co-
management process to agree upon dead beluga whales that are reported 
by reliable sources but not confirmed by NMFS. Tyonek also suggested 
that some years may have higher than expected mortalities and some 
years may have lower than expected mortalities. Therefore, excess 
mortality should be estimated as a 5-year average rather than as a 
single year's calculation.
    NMFS argued that (1) anecdotal information indicates a substantial 
fraction of dead beluga whales are unreported, (2) few of the observed 
mortalities are reported in winter, and (3) there is not sufficient 
data available to quantify the likelihood that a dead beluga will 
strand and be reported; therefore, an expansion factor of two is 
reasonable. NMFS also argued that its method for counting mortalities 
is not necessarily biased by differing probabilities of an animal 
stranding or the stranding being reported. Although most strandings are 
reported in Turnagain Arm, it may be that more deaths occur in or near 
Turnagain Arm because whales spend much time there when the waters and 
tides there are most dangerous to whales. NMFS also noted that its 
interim final harvest regulations reduced harvest directly by the 
number of excess mortalities, whereas its second proposal applied 
excess mortalities to the 5-year average abundance and re-estimated 
harvest levels.
    The Commission was concerned that the period since 1999 may have 
elevated mortality rates, noting that the population has not appeared 
to grow despite the subsistence harvest restrictions. Thus, mortality 
may have been unusually high during this period and inappropriate for 
use as the baseline for normal mortality. The Commission suggested that 
more research should be conducted to validate the assumptions 
underlying mortality estimates. NMFS replied that the number of 
stranded dead whales between 1998 and 2004 remained fairly constant, 
between 2.6 percent and 4.2 percent of the abundance. This mortality 
level is below expected mortality rates for most marine mammal 
populations, therefore, the reported mortality figures are likely not 
high.
    Judge McKenna noted that Tyonek's and the Commission's concerns 
amounted to a request for better science, but better science is not 
currently available. Furthermore, Tyonek and the Commission both argued 
about potential problems, which may or may not materialize, but did not 
indicate there was better evidence than that used by NMFS. Accordingly, 
Judge McKenna found that NMFS' proposal was based upon the best 
available information. He concluded that it was up to NMFS whether to 
conduct additional research to validate assumptions in its proposal.

Funding for Future Surveys

    NMFS noted that annual surveys were important for the harvest 
regime to function well, but future surveys were subject to annual 
appropriations and could not be guaranteed. Tyonek argued that NMFS 
should enter into discussions with the Alaska Native parties and the 
Commission to review the need for changes to the harvest limits, should 
the frequency of future surveys decrease. The Commission also raised 
concerns because reduced survey effort may reduce the ability to detect 
a population decline. NMFS argued that their harvest plan allowed for 
abundance surveys every other year, if

[[Page 60981]]

such a frequency could meet the information requirements of the harvest 
regime, and that there is no need to open negotiations whenever annual 
surveys do not occur.
    Judge McKenna noted that the circumstances that affect availability 
of funds for future surveys are subject to Congressional 
appropriations, and did not recommend a position on the need for an 
automatic review of the harvest plan if surveys were less frequent. 
Noting that all proposals are science-based, he further recommended 
that it is a matter for NMFS scientists to determine whether population 
surveys should be conducted annually or every other year.

``On the Ground'' Abundance Estimates

    Alaska Native hunters consistently questioned the accuracy of NMFS' 
population abundance estimates. Tyonek requested that abundance 
estimates, which are the basis for the harvest limits, include an ``on 
the ground'' count by hunters. Such counts could validate abundance 
estimates for some parts of Cook Inlet, and survey methodology could be 
refined accordingly. NMFS states that such ``on the ground'' surveys 
were unreliable compared to aerial surveys, which offer a broader 
visual perspective and provide more robust estimates.
    Judge McKenna noted that MMPA section 103(a) (16 U.S.C. 1373(a)) 
required regulations to be based upon the best available scientific 
evidence and that testimony during the hearing noted that ``on the 
ground'' surveys were not as reliable as aerial surveys. He, therefore, 
found that it would not be appropriate to incorporate a mechanism into 
the regulation providing for ``on the ground'' counting. He recommended 
that such counts be incorporated into co-management agreements.
    The MMPA requires use of the best available scientific evidence or 
information in regulating the take of marine mammals or in assessing 
the status of marine mammal stocks. While information on Cook Inlet 
belugas obtained by hunting the whales may provide additional insights 
into beluga whale behavior and distribution where relevant, it does not 
replace aerial surveys as the best available scientific information and 
will not be used to validate survey results. However, such information 
could be used to help improve survey efforts and locations and could be 
incorporated into co-management agreements. Any changes in survey 
design resulting from these improvements should be made only with due 
awareness to the consequence that estimates obtained from such modified 
surveys may not be comparable to abundance estimates obtained from 
earlier surveys.

Periodic Review of the Plan

    Noting that the harvest plan contains numerous assumptions and 
uncertainty about the population, Tyonek argued that the plan should be 
reviewed through the co-management process every ten years. 
Furthermore, either party should be able to call for a review before 
the ten year period if (1) new information becomes available that may 
affected the plan, (2) the harvest falls below one whale per year, or 
(3) if the harvest stagnates at low levels. NMFS argued that a review 
every ten years would be overly restrictive and time-consuming, and 
that the plan was intended to provide harvest levels until the stock 
was recovered under the MMPA.
    Judge McKenna noted that the MMPA requires that subsistence harvest 
regulations be reviewed periodically. After considering the arguments 
of both parties, Judge McKenna found that there is no legal requirement 
to review the harvest plan every ten years, and NMFS should be able to 
determine whether the plan requires modification without a formal 
review process. He added, however, that if the harvest falls below one 
whale per year, NMFS should seriously consider listing the Cook Inlet 
beluga whale population under the ESA. NMFS has proposed to list this 
beluga population under the ESA (72 FR 19854, April 20, 2007) and is 
considering public comment received on this proposal.

Calculating Population Growth Rate

    In his recommended decision, Judge McKenna supported NMFS' proposal 
before the second hearing that the population growth rate should be 
based upon the probability distribution for the population trend using 
data from 1994 until the date in which it was to be updated. The 
Commission had suggested that the population growth rate be calculated 
over shorter time periods that would more accurately reflect the 
current status of the beluga stock. In supporting this aspect of NMFS 
proposal, Judge McKenna noted that NMFS second proposal had not been 
vetted through cross-examination, and that any technical rationale for 
using the full data set was not clear to him. He recommended, 
therefore, that NMFS give serious consideration to the Commission's 
suggestion to use a shorter (e.g., 5-10-year) period to calculate the 
population growth rate.
    After receiving Judge McKenna's recommended decision, NMFS 
reconsidered calculating the population growth rate and determined that 
the long-term harvest limits would use data available for the previous 
10 years when using the Harvest Table to set harvest limits for each 5-
year period in the future. NMFS second harvest plan established long-
term harvest limits, which were supported by Judge McKenna's 
recommended decision, and would have included the population trend from 
1994 to 1998 when the population was subjected to unrestricted hunting. 
Accordingly, the large decline in the population during these years is 
not an accurate reflection of population growth under the new harvest 
regime. Furthermore, the use of data from the previous 10 years would 
be more responsive to the current and future dynamics of the population 
and is less likely to result in over- or under-protection.

Technical Team Review of Proposed Rule

    The Commission argued that there was insufficient time after 
receiving NMFS' second proposal to conduct scientific review and 
advocated that Judge McKenna focus on the principles in the plan rather 
than the specific numbers or charts proposed by NMFS. The Commission 
also argued that the Technical Team be given appropriate guidance 
(criteria) concerning the decision and given additional time to assess 
whether the proposed harvest regime meets those criteria. NMFS opposed 
the request to reconvene the Technical Team.
    Judge McKenna rejected the Commission's recommendation to refrain 
from using specific numbers or charts in the harvest plan. He 
reiterated that NMFS should view values for underlying principles as 
goals rather than hard-and-fast rules (see Immediate Recovery). Such an 
approach would permit NMFS maximum flexibility to balance the recovery 
needs with the needs of the subsistence hunters in establishing the 
allowable harvests. Although the Commission's request to reconvene the 
Technical Team would result in a more complete record, the parties all 
stipulated that the recommended decision be issued without further 
hearings. Accordingly, he denied the Commission's request to reconvene 
the Technical Team.

Sex Composition of the Harvest

    No proposals included regulations addressing the sex composition of 
the harvest, although the Commission and NMFS advocated that hunters 
target males because such an approach would have less effect on the 
population's

[[Page 60982]]

reproductive potential. The Commission requested that the final 
regulations require NMFS to conduct additional research needed to 
ascertain the impact of a harvest targeted on males and that the 
regulations include sufficient flexibility for establishing additional 
requirements in the future with respect to sex and/or age composition 
of the harvest. NMFS argued that such a regulation is not appropriate 
and that the sex and age composition issue should be specified in 
required co-management agreements.
    Judge McKenna noted that the scientific community does not know how 
many males are needed in one generation to genetically contribute to 
the next generation, or what breeding or social structure is required 
by Cook Inlet beluga whales. He also noted that the regulation is for 
long-term harvest limits and that there is considerable uncertainty 
about the benefits of adding a provision that addresses sex composition 
of the harvest. He suggested that adding such a provision to the 
harvest regulations would increase the chances that the final 
regulations would have to be modified in the future, which, in turn, 
would have the entire proceedings repeated. Therefore, he found that 
any provisions governing the sex composition of the harvest should be 
left to the co-management agreements. NMFS adopts Judge McKenna's 
ruling related to inclusion of sex composition of the harvest in co-
management agreements for the reasons he stated and because targeting 
males in the hunt would minimize the taking of reproductively active 
females in the harvest.

Use of Stranded Whales

    Some Alaska Natives requested permission to harvest stranded whales 
that are going to die anyway. Such harvest would have certain benefits 
without a cost to the population. Tyonek, however, suggested that such 
harvest may not be a viable option for all beluga hunters, because 
weather and inlet conditions could prevent members from reaching 
Turnagain Arm, where most strandings occur.
    Judge McKenna noted that none of the formal proposals to the 
hearing process included a provision that allowed strikes of stranded 
whales that are going to die anyway; therefore, he recommended that it 
was not advisable to include such a provision in the regulations. He 
also noted there were no scientific criteria to distinguish between 
whales that were likely to die and those that were likely to survive a 
stranding. Judge McKenna noted that the issue raised several questions. 
Who determines when a whale will not survive? Will the whale count one 
harvest ``take'' for the year? Who will share in the harvest of 
stranded whales? He noted that these questions are best left to the co-
management process, and recommended that NMFS resolve this issue within 
one year from the date of issuance of the final rule.
    NMFS has observed belugas live-strand on mudflats at low tide and 
swim or float off at high tides, so there is no documentation of 
accessible belugas that are going to die anyway at a later time. That 
being said, NMFS finds that stranding response is governed under the 
MMPA and that, pursuant to the MMPA, NMFS issues letters of 
authorization to qualified experts who, among other things, judge 
whether a stranded marine mammal is likely to die. Therefore, if NMFS 
staff, after consulting with a qualified expert working under such a 
letter of authorization who responded to a Cook Inlet beluga stranding, 
determines that a stranded Cook Inlet beluga whale is likely to die and 
would be euthanized for humane reasons, euthanasia may be accomplished 
through a means that would not prohibit consumption of edible products 
from the whale.
    Judging whether a beluga whale may die as a result of stranding 
will be subject to uncertainty. Because the population is currently 
severely depleted, and, as noted above (see Harvest Subservient to 
Recovery), the Alaska Native subsistence exemption was ruled 
subservient to the MMPA's recovery goal for depleted marine mammal 
stocks, any determination that a stranded beluga whale is likely to die 
as a result of the stranding must be supported by sufficient 
information so that determination is reasonably certain.
    The death of a marine mammal from a stranding is unrelated to the 
subsistence harvest. Therefore, NMFS finds that taking such a whale 
should not be counted as a ``strike'' under the harvest limits in this 
final rule; however, such a death should be added to the stranding 
database and would, therefore, be added to the unusual levels of 
mortality (see Unusual Mortality Events), and the harvest could be 
adjusted if necessary.
    A mechanism to share edible portions of stranded beluga whales 
should be included, as allocation of ``strike'' under the harvest 
limits should be included, in co-management agreements for each 5-year 
period. NMFS expects that a reasonable allocation of strikes or shares 
of stranded whales among the Alaska Native community within Cook Inlet 
is best resolved through agreements among the affected Alaska Natives. 
Furthermore, members of the Alaska Native community should base the use 
of marine mammal products under this harvest plan on historical and 
traditional use of beluga whales. Therefore, the ANOs involved in co-
management agreements under these harvest regulations are expected to 
resolve questions on allocation or sharing before negotiating such 
agreements for each 5-year period.

Ultimate Findings of Fact and Conclusions of Law

    Judge McKenna's recommended decision also contained ultimate 
findings of fact and conclusions of law. His ultimate rulings and 
findings, and the reasons for them, are as follows:
    (1) This is a formal rulemaking proceeding commenced pursuant to 
the authority contained in the MMPA (16 U.S.C. 1361 et. seq.) and the 
Administrative Procedure Act (5 U.S.C. 556 and 557).
    (2) NMFS' second proposed rule is hereby adopted based upon the 
preponderance of the evidence contained in this record.
    (3) NMFS' first proposed rule, Tyonek's first proposed rule, and 
Tyonek's second proposed rule (to the extent not incorporated into 
NMFS' second proposal) are hereby rejected. NMFS' first proposal and 
Tyonek's first proposal are rejected because they were superseded by 
new proposals. Tyonek's second proposal (to the extent not incorporated 
into NMFS' second proposal) is hereby rejected based upon the 
preponderance of the record evidence.
    (4) Tyonek's objection to the Commission's standing to participate 
in this formal rulemaking is untimely and therefore rejected.
    (5) NMFS' second proposed rule is supported by the preponderance of 
the evidence and based on the best scientific evidence available.
    (6) Tyonek's second proposed rule (to the extent not incorporated 
into NMFS' second proposal) is not supported by the preponderance of 
the evidence because it does not insure that the harvest will not 
disadvantage the Cook Inlet beluga whale population.
    Judge McKenna adopted NMFS' second proposal to the hearing process 
in its entirety. After receiving his recommended decision, NMFS has 
received and considered new information since the hearing and based on 
this information, that proposal is modified in the following respects:
    First, NMFS modified its second proposal related to the calculation 
of the population growth. Judge McKenna recommended, based upon NMFS'

[[Page 60983]]

proposal at the hearing, to estimate population growth rate from the 
entire series of abundance estimates, dating back to 1994. NMFS has 
modified this recommendation to use only the most recent 10 years of 
abundance estimates for calculating population growth rate. The three 
reasons for this modification are as follows (also see Calculating the 
Population Growth Rate for additional discussion of Judge McKenna's 
recommendation and NMFS' decision):
    (1) Judge McKenna noted in his recommended decision that NMFS 
consider using the Commission's suggestion for a shorter time to 
calculate population growth rate;
    (2) The shorter period would result in a more accurate assessment 
of current rate of population growth under a regulated harvest because 
it eliminates a period (1994-1998) of unregulated harvest; and
    (3) The shorter period would be more responsive to the current and 
future dynamics of the population.
    NMFS' second modification to the recommended decision is to 
implement the Harvest Table immediately rather than in 2010. Judge 
McKenna's recommended decision included, based upon NMFS second 
proposal, that use of the Harvest Table begin in 2010, allowing a 
limited harvest of three beluga whales in the 2-year period, 2008 and 
2009. NMFS has determined that implementing use of the Harvest Table 
immediately (starting in 2008) is less likely to disadvantage the 
population of Cook Inlet beluga whales. At the time of the 2004 hearing 
on this rule, the population 5-year average abundance exceeded 350 
whales although it was suspected, but not confirmed, that the 
population was continuing to decline even with a limited harvest. 
Abundance estimates from 2004 and 2005 confirmed that the population 
was in decline, and the 5-year average abundance was below 350 belugas 
(the threshold abundance level below which harvest would not be 
allowed). The 2006 and 2007 abundance estimates were higher than the 
2005 estimate, and the declining trend of the population after harvest 
restrictions were enacted was no longer statistically significantly 
different from zero. However, the 5-year average abundance (2003-2007) 
was below 350 whales, and there was no evidence that the population has 
increased since 1999 when the harvest was first restricted. In his 
recommended decision, Judge McKenna noted that Congress felt a 
moratorium on harvest was necessary in 1999 when the abundance was 
about 350 beluga whales, and he ruled, as a matter of law, that 350 
belugas was an appropriate threshold below which a harvest was not 
allowed. Based on these considerations, NMFS implements the Harvest 
Table immediately, rather than in 2010. Because the 5-year average 
abundance is below 350 whales, the allowable harvest during the next 5-
year period, 2008-2012, is zero.

Final Rule

    This final rule establishes long-term limits to the annual number 
of Cook Inlet beluga whales that can be taken by Alaska Natives for 
subsistence and handicraft purposes. The rule completes a provision for 
such long-term limits that was not finalized when regulations governing 
the taking of Cook Inlet beluga whales were issued in 2004 (69 FR 
17973, April 6, 2004). This final rule establishes only long-term 
limits and does not modify any other aspect of the 2004 rule (i.e., 
requirement for co-management agreements, prohibition on sale of Cook 
Inlet beluga parts, seasonal restriction on taking Cook Inlet beluga 
whales, and prohibition on taking calves or adults accompanied by 
calves).
    This final rule does not include provisions related to strike 
allocation for two reasons. First, the purpose of the rule is to 
establish long-term harvest limits for Cook Inlet beluga whales. 
Second, the allocation of limited strikes should be an issue determined 
among the affected ANOs and Alaska Natives. Accordingly, the 
regulations require allocation issues be addressed in the co-management 
agreements signed by NMFS and appropriate ANOs, to allow the taking of 
Cook Inlet beluga whales pursuant to the pertinent provisions of Public 
Law 106-55 and implementing regulations (50 CFR 216.23(f)(1)).
    The harvest limits in this final rule are established for 5-year 
periods and are displayed in a Harvest Table that was drafted by NMFS 
and subjected to judicial review through an administrative hearing. The 
use of 5-year intervals was agreed upon by the parties in the hearing 
process and was, thus, not among the contested issues. The key 
requirements for selecting the harvest levels for each 5-year period 
are (1) the prior 5-year average abundance estimates of Cook Inlet 
beluga whales, (2) the prior 10-year growth rate, and (3) the total 
Unusual Mortality Events for Cook Inlet belugas, from sources other 
than subsistence harvest.
    The current 5-year population average is the abundance calculated 
using peer-reviewed methods, from surveys conducted by, or under the 
direction of, NMFS scientists, from the five years prior to the start 
of a 5-year interval. Although NMFS anticipates annual surveys 
(therefore, five abundance estimates to be used to calculate of current 
5-year population average), future effort depends upon funding 
appropriations for each year, and availability of future appropriations 
is not certain. Such surveys are a high priority for NMFS particularly 
while the population is below 500 whales; is growing slowly, if at all; 
and is proposed to be listed as an endangered species under the ESA. 
The use of a 5-year average abundance was not among the contested 
issues during the hearing process.
    The population growth rate is estimated using information obtained 
in the 10 years prior to each 5-year interval. As noted above (see 
Decision of the Assistant Administrator), the use of abundance 
estimates from the most current 10-year period was among the contested 
issues during the hearing process. This estimate of the population 
growth rate is a modification of Judge McKenna's recommended decision, 
which was, in turn, based upon NMFS' proposal to the administrative 
hearing. However, in his recommended decision, Judge McKenna encouraged 
NMFS to consider the use of a short period (e.g., 5-10 years) so that 
the estimate of population growth is most recent.
    NMFS scientists will recommend the use of a low, intermediate, or 
high population growth rate to be used in the model. This 
recommendation will be based upon criteria included in the final rule 
that were designed to ensure, with reasonable certainty, that any 
allowed harvest mortality not prevent the beluga population from 
recovering to its OSP within an acceptable period. ``Reasonable 
certainty'' and ``acceptable period'' were interpreted as having a goal 
(but not a hard-and-fast requirement) of being 95 percent confident the 
harvest would delay the Cook Inlet beluga recovery, to its OSP, by no 
more than 25 percent of the time the population would recover in the 
absence of a harvest. These assurances are consistent with the MMPA's 
goal of immediate recovery for depleted marine mammal stocks, yet allow 
a small, but important, harvest by Alaska Natives for subsistence or 
handicraft purposes as a part of their culture.
    The relative importance of recovery versus the subsistence use of 
Cook Inlet belugas was among the contested issues at the administrative 
hearing, and Judge McKenna ruled that subsistence use was subservient 
to recovery of the depleted stock under the MMPA.
    After calculating the 5-year average abundance and determining 
whether the current population growth rate was low, intermediate, or 
high, the number of strikes will be determined from the

[[Page 60984]]

Harvest Table included in the harvest regulations, which is in the 
appropriate row for the 5-year population average and under the 
appropriate column for the population growth rate. If beluga mortality 
levels are below the Expected Mortality Limit, during the 5-year 
interval, the strike limit will remain fixed for the duration of the 5-
year interval. If, however, mortality exceeds the Expected Mortality 
Limit during the 5-year interval, the strike level may be reduced to 
account for the smaller beluga population. Although all parties in the 
hearing process agreed that an adjustment for unusual mortality levels 
was necessary, the details for computing the necessary adjustment were 
contested.
    The adjustment for Unusual Mortality Levels is calculated using an 
estimate of annual mortality for Cook Inlet beluga whales (other than 
subsistence harvest), the 5-year-average abundance estimate, and an 
expected level of mortality for a population with life history traits 
such as those for beluga whales. For the annual mortality estimate, 
NMFS multiplies the reported number of stranded, dead Cook Inlet beluga 
whales reported in a year by a factor of two. NMFS determined that 
correction factor on the reported number of beluga deaths was 
warranted, because a certain, but unknown, portion of beluga whales 
that die during a year do not strand or such strandings are not 
reported.
    The estimated number of deaths is compared to an expected mortality 
level for a population at the 5-year average population for the beluga 
whale population during that 5-year interval. The expected mortality 
level is 6 percent of the lower limit of the abundance range in each 
row in the Harvest Table; animal populations with life history traits 
like beluga whales may be expected to lose up to 6 percent of the 
population due to `natural' mortality on an annual basis.
    Excess mortalities are calculated as the difference between the 
estimated number of deaths in a year and the expected mortality level. 
If excess mortalities occur in any year during a 5-year interval, the 
number of excess mortalities will be subtracted from the 5-year-mean 
average abundance. If such a subtraction reduces the 5-year-average 
abundance to a lower range in the Harvest Table, the 5-year strike 
limit will be reduced accordingly for the remainder of that 5-year 
interval. For the next 5-year interval, the abundance estimates for 
that year (or years) in which excess mortalities occur will be reduced 
by the number of excess mortalities in that year. The reduced abundance 
estimate would be averaged in the 5-year average abundance estimate for 
the upcoming 5-year interval. Although parties in the administrative 
hearing process contested the details of this adjustment, Judge McKenna 
found that this method, which was included in NMFS' second proposal, 
was supported by the preponderance of evidence on the record.
    This final rule for establishing 5-year harvest limits for Cook 
Inlet beluga whales was prepared in accordance with provisions of the 
MMPA sections 101(b) and 103. Judge McKenna found, and NMFS concurred 
with his finding, that taking Cook Inlet beluga whales under these 
limits by Alaska Natives for subsistence purposes would not 
disadvantage the Cook Inlet beluga stock. Such limited taking would 
allow Alaska Natives to continue taking Cook Inlet beluga whales for 
subsistence purposes and would provide reasonable certainty that such 
taking would mean an acceptable delay in the recovery of the stock to 
its OSP.

Classification

National Environmental Policy Act

    On June 20, 2008, NMFS released a Final SEIS that analyzed a range 
of alternatives to manage a subsistence harvest and promote the whale's 
recovery. NMFS' primary management action is to establish an upper 
limit on the number of Cook Inlet beluga whales that can be taken by 
Alaska Natives for subsistence and handicraft purposes. The harvest 
alternatives and their environmental impacts were evaluated in the SEIS 
through a model that examined the length of time it would take for the 
stock to recover under different harvest alternatives. The preferred 
alternative provided for the cultural needs of Alaska Natives by 
allowing a harvest when the population has a 5-year abundance average 
above 350 belugas. The harvest level is based on the 5-year abundance 
average and 10 year trend analysis, with an increase in the harvest as 
the population increases and a decrease in the harvest when the 
population decreases; and no harvest below a 5-year average of 350 
belugas. The Final SEIS also presented an assessment on the impacts of 
other anthropogenic activities that might impact Cook Inlet 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 Cook Inlet beluga whale habitats.
    A total of 60 submissions were received from 63 people on the Draft 
SEIS, including 40 submitted by residents from the Native Village of 
Tyonek as a form letter. Three people submitted one letter jointly. 
Most commenters (78 percent) indicated support for Alternative 2, 
Option B, the preferred alternative. Six people (11 percent) preferred 
no harvest. No comments were received on Alternative 2A, which followed 
Judge McKenna's decision, or on Alternative 3, the Progressive Harvest 
alternative.

Paperwork Reduction Act

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

Endangered Species Act (ESA)

    This final rule does not affect species listed under the ESA and 
whose distribution primarily includes the lower part of Cook Inlet, 
where the subsistence harvest for belugas no longer occurs. These 
species include humpback and fin whales, the western Distinct 
Population Segment of Steller sea lions, the southwest Alaska Distinct 
Population Segment of northern sea otters, and Steller's eider. 
Therefore, this final rulemaking does not impact any ESA listed 
species, or their critical habitat. NMFS determined that this final 
rule provides reasonable assurance that the harvest would not cause a 
significant delay in recovery of the Cook Inlet beluga population. 
Accordingly, the harvest limits in this rule would not jeopardize the 
continued existence of Cook Inlet beluga whales, and a conference 
pursuant to ESA section 7(a)(4) was not conducted.

Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866. The Chief Counsel for Regulation of 
the Department of Commerce certified to the Chief Counsel for Advocacy 
of the Small Business Administration that this final 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, final interim rule, and NEPA documents. No comments were 
received regarding the economic impact of this final rule. A final 
regulatory flexibility analysis is not required, and none was prepared.

[[Page 60985]]

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, 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 
Cook Inlet and eastern Chukchi Sea beluga populations in Alaska for 
more than a decade and has published this information and provided 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 Cook Inlet beluga 
whales. State and local governments support the conservation of this 
beluga stock. NMFS has convened scientific workshops and public 
meetings, available to all the public, and has routinely exchanged 
information on the status of these whales with state and local 
agencies, and Tribal Governments.

Executive Order 13175-Consultation and Coordination with Indian Tribal 
Governments and Corporations

    This final rule is consistent with policies and guidance 
established in Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 
note) and the Executive Memorandum of April 29, 1994, (25 U.S.C. note), 
and the American Indian and Alaska Native Policy of the United States 
Department of Commerce (March 30, 1995) outline the responsibilities of 
the National Marine Fisheries Service in matters affecting tribal 
interests. Section 161 of Public Law 108-199 (188 Stat. 452), as 
amended by section 518 of Public Law 108-447 (118 Stat. 3287), extends 
consultation requirements of E.O. 13175 to Alaska Native corporations. 
Consistent with this Executive Order and the Presidential Memorandum, 
NMFS has taken several steps to consult and inform affected tribal 
governments and corporations and to solicit their input during 
development of this rule, including the development of co-management 
agreements with Cook Inlet Marine Mammal Council. The final rule does 
not impose substantial direct compliance costs on the communities of 
Indian tribal governments or corporations.

List of Subjects in 50 CFR Part 216

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

    Dated: October 8, 2008.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.

0
For the reasons identified 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, paragraph (f)(2)(v) is revised to read as follows:


Sec.  216.23  Native exceptions.

* * * * *
    (f) * * *
    (2) * * *
    (v) Taking during 2008 and subsequent years. (A) Co-management 
agreements pursuant to paragraph (f)(1) of this section may be 
established for 5-year intervals beginning in 2008. Agreements must 
include specific provisions regarding the number and allocation of 
strikes, hunting practices to promote consistency with limitations in 
paragraph (f)(2)(ii) of this section, and to improve efficiency of the 
harvest, mitigating measures, and enforcement. Agreements may include 
provisions regarding the sex composition of the beluga harvest.
    (B) Strike/harvest levels for each 5-year planning interval 
beginning in 2008 will be determined by the recovery of this stock as 
measured by the average abundance in the prior 5-year interval and the 
best estimate of the population growth rate using information obtained 
in the 10 years prior to each 5-year interval. Criteria for 
categorizing growth rates are presented below as an algorithm using the 
estimated abundance, the distribution statistics for growth rates, and 
the date. Harvest levels are subject to the Expected Mortality Limit. 
The established strike levels are presented in the Harvest Table and 
the following algorithm will be used to determine harvest levels for 
each 5-year period beginning in 2008.
    (1) NMFS will calculate the average stock abundance over the 
previous 5-year period.
    (2) NMFS will calculate a population growth rates from abundance 
estimates for the most recent 10-year period prior to the next 5-year 
period.
    (3) Using the abundance and growth information obtained in 
accordance with paragraphs (f)(2)(v)(B)(1) and (f)(2)(v)(B)(2), NMFS 
will calculate the probabilities that the growth rate within the 
population would be less than 1 percent, less than 2 percent, or 
greater than 3 percent. NMFS will then use paragraphs 
(f)(2)(v)(B)(3(i)) and (f)(2)(v)(B)(3)(vi) of this section to select 
the proper cell from the Harvest Table to determine the harvest levels 
for the next 5-year interval.
    (i) Is the average stock abundance over the previous 5-year period 
less than 350 beluga whales? If yes, the Harvest Table provides that 
the harvest is zero during the next 5-year period. If no, go to 
(f)(2)(v)(B)(3)(ii) of this section.
    (ii) Is the current year 2035 or later and is there more than a 20 
percent probability the growth rate is less than 1 percent? If yes, the 
harvest is zero during the next 5-year period. If no, go to paragraph 
(f)(2)(v)(B)(3)(iii) of this section.
    (iii) Is the current year between 2020 and 2034 and there is more 
than a 20 percent probability the growth rate is less than 1 percent? 
If yes, the harvest is three whales during the next 5-year period. If 
no, go to paragraph (f)(2)(v)(B)(3)(iv) of this section.
    (iv) Is the current year 2015 or later and is there more than a 25 
percent probability the growth rate is less than 2 percent? If yes, go 
to the harvest table using the ``Low'' growth rate column. If no, go to 
paragraph (f)(2)(v)(B)(3)(vi)) of this section.
    (v) Is the current year prior to 2015 and is there more than a 75 
percent probability the growth rate is less than 2 percent? If yes, go 
to the harvest table using the ``Low'' growth rate column. If no, go to 
paragraph (f)(2)(v)(B)(3)(vi) of this section.
    (vi) Is there more than a 25-percent probability the growth rate is 
more than 3 percent? If yes, go to the harvest table using the ``High'' 
growth rate column. If no, go to the harvest table using the 
``Intermediate'' growth rate column.

[[Page 60986]]



                                                                      Harvest Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Expected
               5-year population averages                            ``High'' growth rate             ``Intermediate''     ``Low'' growth     Mortality
                                                                                                         growth rate            rate            Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than 350...........................................                                          0                   0                   0            -
350-399.................................................                       8 strikes in 5 years      5 strikes in 5      5 strikes in 5           21
                                                                                                                  years               years
400-449.................................................                       9 strikes in 5 years      8 strikes in 5      5 strikes in 5           24
                                                                                                                  years               years
450-499.................................................                      10 strikes in 5 years      8 strikes in 5      5 strikes in 5           27
                                                                                                                  years               years
500-524.................................................                      14 strikes in 5 years      9 strikes in 5      5 strikes in 5           30
                                                                                                                  years               years
525-549.................................................                      16 strikes in 5 years     10 strikes in 5      5 strikes in 5           32
                                                                                                                  years               years
550-574.................................................                      20 strikes in 5 years     15 strikes in 5      5 strikes in 5           33
                                                                                                                  years               years
575-599.................................................                      22 strikes in 5 years     16 strikes in 5      5 strikes in 5           35
                                                                                                                  years               years
600-624.................................................                      24 strikes in 5 years     17 strikes in 5      6 strikes in 5           36
                                                                                                                  years               years
625-649.................................................                      26 strikes in 5 years     18 strikes in 5      6 strikes in 5           38
                                                                                                                  years               years
650-699.................................................                      28 strikes in 5 years     19 strikes in 5      7 strikes in 5           39
                                                                                                                  years               years
700-779.................................................                      32 strikes in 5 years     20 strikes in 5      7 strikes in 5           42
                                                                                                                  years               years
780 +...................................................         Consult with co-managers to expand  ..................  ..................  ...........
                                                              harvest levels while allowing for the
                                                                                 population to grow
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (C) At the beginning of each 5-year period, an Expected Mortality 
Limit is determined from the Harvest Table using the 5-year average 
abundance. During the course of each calendar year, the number of beach 
casts carcasses and carcasses found floating either reported to NMFS or 
observed by NMFS personnel will be the number of mortalities for that 
year. If at the end of each calendar year this number exceeds the 
Expected Mortality Limit, then an unusual mortality event has occurred. 
The Estimated Excess Mortalities will be calculated as twice the number 
of reported dead whales above the Expected Mortality Limit. The harvest 
will then be adjusted as follows:
    (1) The harvest level for the remaining years of the current 5-year 
period will be recalculated by reducing the 5-year average abundance 
from the previous 5-year period by the Estimated Excess Mortalities. 
The revised abundance estimate would then be used in the harvest table 
for the remaining years and the harvest adjusted accordingly.
    (2) For the subsequent 5-year period, for the purpose of 
calculating the 5-year average, the Estimated Excess Mortalities would 
be subtracted from the abundance estimates of the year of the excess 
mortality event so that the average would reflect the loss to the 
population. This average would then be used in the table to set the 
harvest level.
[FR Doc. E8-24511 Filed 10-14-08; 8:45 am]
BILLING CODE 3510-22-S