[Federal Register Volume 84, Number 213 (Monday, November 4, 2019)]
[Notices]
[Pages 59360-59362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24042]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 181019964-9283-01]
RIN 0648-XG584


Announcement of Hearing and Final Agenda Regarding Proposed 
Waiver and Regulations Governing the Taking of Marine Mammals

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

ACTION: Notice of hearing; final agenda.

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SUMMARY: This notice announces modifications to the final agenda for a 
hearing before an Administrative Law Judge (ALJ), which was originally 
published in the Federal Register on June 26, 2019.

DATES: NMFS has scheduled a hearing before Administrative Law Judge 
George J. Jordan to consider the proposed MMPA waiver and the proposed 
regulations previously published on April 5, 2019 (84 FR 13604). It 
will begin on Thursday, November 14, 2019 at 1:00 p.m. PDT in the Henry 
M. Jackson Federal Building, 915 Second Avenue, 4th Floor Auditorium, 
Seattle, WA 98174.

ADDRESSES: The hearing will be held before Administrative Law Judge 
George J. Jordan of the United States Coast Guard at the Henry M. 
Jackson Federal Building, 915 Second Avenue, 4th Floor Auditorium, 
Seattle, WA 98174.

FOR FURTHER INFORMATION CONTACT: Michael Milstein, NMFS West Coast 
Region, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274; 503-
231-6268.

SUPPLEMENTARY INFORMATION: On February 14, 2005, NMFS received a 
request from the Makah Indian Tribe for a waiver of the MMPA moratorium 
on the take of marine mammals to allow for take of ENP gray whales 
(Eschrichtius robustus). The Tribe requested that NMFS authorize a 
tribal hunt for ENP gray whales in the coastal portion of the Tribe's 
usual and accustomed fishing area for ceremonial and subsistence 
purposes and the making and sale of handicrafts. The MMPA imposes a 
general moratorium on the taking of marine mammals but authorizes the 
Secretary of Commerce to waive the moratorium and issue regulations 
governing the take if certain statutory criteria are met.
    On April 5, 2019, NMFS published a Notice of Hearing and the 
associated proposed regulations in the Federal Register (84 FR 13639 
and 84 FR 13604). Pursuant to an interagency agreement, a Coast Guard 
Administrative Law Judge was assigned to conduct the formal hearing and 
issue a recommended decision in this matter under the procedures set 
forth at 50 CFR part 228.
    On June 26, 2019, Judge George J. Jordan issued a notice of final 
agenda for publication in the Federal Register (84 FR 30088). On August 
2, 2019, Judge George J. Jordan issued a notice of change to the 
hearing date and related deadlines for publication in the Federal 
Register (84 FR 37837). Several parties filed motions requesting 
amendments to the final agenda. After considering these motions and the 
replies of other parties, Judge Jordan determined certain issues in the 
Final Agenda should be removed or modified for purposes of clarity and 
efficiency. These modifications do not present any new issues of fact 
not previously identified in the Notice of Hearing or the previously 
published version of the Final Agenda.

Issues To Be Addressed at the Hearing

I. Should a waiver be granted pursuant to 16 U.S.C. 1371(a)(3)(A)?

    A. Did NMFS give due regard to the distribution, abundance, 
breeding habits, and times and lines of migratory movements of the 
stock subject to the waiver? Will the proposed waiver have a meaningful 
effect on the distribution, abundance, breeding habits, or migratory 
movements of the stock subject to the waiver?
    1. Distribution and Abundance:
    a. What numbers are appropriate to use for ENP, WNP, and PCFG:
    i. Carrying capacity.
    ii. Current abundance estimates.
    iii. Population stability and/or historical fluctuation.
    iv. Optimum sustainable population (OSP) levels.
    b. What are the maximum number of ENP and PCFG whale deaths and 
maximum percentage reduction in ENP and PCFG abundance expected to 
result from Makah hunting over the 10-year waiver period?
    i. Would this reduction have any impact on ENP or PCFG abundance?
    c. Is the ENP stock currently undergoing an Unusual Mortality Event 
(UME)? If so, does this merit further consideration before a waiver may 
be granted?
    d. Is the carrying capacity of ENP stock in the summer feeding 
areas being reduced and does this merit further consideration before a 
waiver may be granted?
    2. Facts pertaining to Breeding Habits:
    a. Under the proposed waiver, will hunting or hunt training overlap 
with the breeding season? Will this most likely occur in December-
January?
    i. What is the expected frequency of hunt activities during the 
relevant time period?
    ii. Will the boundaries set for the proposed hunt adversely affect 
mating whales or mothers and calves?
    3. Facts pertaining to Time and Lines of Migratory Movements:
    a. Does the majority of the ENP stock range from the winter/spring 
breeding grounds in northern Mexico and southern California to the 
summer/fall feeding grounds in the Bering, Beaufort, and Chukchi seas? 
Should the Okhotsk Sea be included in the migratory range?
    b. Does the ENP stock migrate between the breeding and feeding 
grounds between December and May?
    i. Is the timing of the southbound migration being altered due to a 
longer feeding season in the Arctic?
    c. Will migrating ENP whales generally be encountered only during 
even-year hunts?
    i. How long is it expected to take for a migrating ENP whale to 
pass through the proposed hunt boundary?
    ii. Proportionally, how much of the migratory range is included in 
the proposed hunt boundary?
    iii. What is the expected range and duration of hunting activities 
during the even-year hunts?
    iv. How many whales are likely to be subjected to hunt or training 
activities?

[[Page 59361]]

    d. Does the PCFG spend the summer and fall feeding season off the 
Pacific coast of North America from northern California to northern 
Vancouver Island? Are some PCFG whales also present in the feeding area 
throughout the winter?
    i. Are PCFG whales expected to be encountered during both even-and 
odd-year hunts?
    ii. Is the PCFG further delineated into sub-groups with distinct 
feeding areas? Do PCFG whales randomly choose feeding areas or are they 
internally or externally recruited into sub-groups?
    iii. Will the proposed waiver have a disproportionate impact on 
PCFG whales in the Makah Tribe's Usual and Accustomed (U&A) hunting 
area? Particularly, will it have an impact on reproductive females?
    e. Will non-lethal hunting activities result in a lasting effect on 
ENP/PCFG migratory movements?
    B. Are NMFS's Determinations Consistent with the MMPA's Purposes 
and Policies?
    1. Facts pertaining to the Health and Stability of the Marine 
Ecosystem and Functioning of Marine Mammals within their Ecosystems:
    a. Is the northern California Current ecosystem the appropriate 
ecosystem to focus on for this proceeding? Should the focus instead be 
on a smaller biologically relevant scale such as the northern 
Washington coastal environment or an even more localized area such as 
the Makah U&A?
    b. What effect would the waiver have on the relevant ecosystem(s) 
or area(s)?
    i. What role do gray whales play in structuring the relevant 
ecosystem? Does this differ in the various geographical areas in which 
gray whales are present?
    ii. In light of NMFS's assertion that ``most effects of the hunt 
would be temporary and localized,'' does the environmental role and 
impact of the small groups of whales feeding in the Makah U&A 
necessitate separate consideration under the MMPA?
    iii. Would the level of hunting proposed affect only a small 
fraction of the ENP stock and the stock's ecosystems? Should the 
effects on ENP stock as a whole be compared and contrasted to the 
effects on the PCFG subset?
    c. How do non-lethal activities such as training approaches and 
training harpoon throws affect whale health and behavior?
    d. Consideration of waiver's collateral effects on WNP stock.
    i. Do WNP whales occasionally migrate along with ENP whales to the 
North American breeding grounds, or are these whales in fact a Western 
Feeding Group (WFG) of the ENP stock?
    ii. If WNP whales are present in the ENP migration, how many are 
expected? Is this number constant or does it fluctuate?
    iii. What is the appropriate calculation for the likelihood that a 
WNP whale will be approached, struck, or killed?
    iv. Should struck or lost whales that cannot be identified as ENP 
stock be considered to be WNP whales rather than PCFG whales?
    2. Facts pertaining to Stocks to Attaining or Maintaining Optimum 
Sustainable Population (OSP) Levels:
    a. Is NMFS's conclusion that ENP stock are within OSP levels, at 85 
percent carrying capacity, and with an 88 percent likelihood that the 
stock is above its maximum net productivity level scientifically valid?
    i. Does this account for the possibility of an Unusual Mortality 
Event as discussed in section I.A.1.c., above?
    ii. Will the removal of whales pursuant to this waiver affect these 
calculations?
    b. What are the effects on the OSP of WNP whales if a WNP whale is 
killed?

II. Do NMFS's proposed regulations satisfy the regulatory requirements 
in 16 U.S.C. 1373?

    A. Did NMFS Consider all Enumerated Factors in Prescribing 
Regulations?
    1. Facts pertaining to the effect of regulations on existing and 
future levels of marine mammal species and population stocks (16 U.S.C. 
1373(b)(1)):
    a. Many issues related to this factor are discussed in Section I, 
pertaining to the Requirements for Waiver.
    b. Are the protections in the waiver, such as reduced strike and 
landing limits, new strike limits for PCFG whales and PCFG females, 
minimum abundance threshold for PCFG whales, photographic and genetic 
matching, restrictions on additional strikes, restriction of the hunt 
to U&A waters, 10-year sunset provision sufficiently protective?
    c. Are the protections for WNP whales sufficient and appropriate, 
including alternating hunt seasons, a limit of three strikes during 
even-year hunts, a ban on hunting during November and June, seasonal 
restriction on training harpoon throws in odd-numbered years, 
restriction on multiple strikes within 24 hours in even-year hunts, and 
the requirement that if a WNP is confirmed to be struck, the hunt will 
cease until steps are taken to ensure such an event will not recur?
    2. Facts pertaining to existing international treaty and agreement 
obligations of the United States (16 U.S.C. 1373(b)(2)):
    a. The United States is a signatory to the International Convention 
for the Regulation of Whaling (ICRW). The ICRW establishes the 
International Whaling Commission (IWC), which sets catch limits for 
aboriginal subsistence whaling.
    i. Since 1997, the IWC has routinely approved an aboriginal 
subsistence catch limit for ENP gray whales for joint use by the United 
States and the Russian Federation.
    ii. The United States and the Russian Federation have been 
routinely, and are currently, parties to a bilateral agreement that 
allocates the IWC catch limit between the two countries and allows 
either country to transfer to the other any unused allocation.
    iii. The IWC gray whale catch limit is currently 140 per year, with 
5 gray whales per year allocated to the United States
    iv. If the waiver at issue here is not approved, will the United 
States continue to transfer the unused portion of the gray whale catch 
limit to the Russian Federation for use by Chukotkan natives, as has 
been current practice?
    v. Does the proposed hunt comply with the IWC conservation 
objectives for WNP, ENP, and PCFG whales?
    vi. Is the proposed hunt an aboriginal subsistence hunt as defined 
by the IWC?
    3. Facts pertaining to the marine ecosystem and related 
environmental considerations (16 U.S.C. 1373(b)(3)):
    a. Is NMFS's risk analysis sufficiently conservative and based on 
the best available scientific evidence?
    b. Is consideration of cumulative impacts, including those from 
military exercises, marine energy and coastal development, and climate 
change, necessary under the MMPA? If so, is there evidence these 
factors were considered?
    c. Were all local impacts that must be considered under the MMPA 
adequately considered?
    4. Facts pertaining to the conservation, development, and 
utilization of fishery resources (16 U.S.C. 1373(b)(4)):
    a. NMFS asserts the proposed hunt will have no effect on the 
conservation, development, and utilization of fishery resources.
    5. Facts pertaining to the economic and technological feasibility 
of implementation (16 U.S.C. 1373(b)(5)):
    a. What are the specific costs to NMFS and to the Makah Tribe 
associated with

[[Page 59362]]

regulating a hunt under the proposed regulations? Are these feasible?
    b. What are the specific technological requirements associated with 
managing and carrying out a hunt? Are these feasible?
    c. What are the costs of enforcing the various restrictions 
contained in the regulations? Are these feasible?
    d. Who is specifically tasked with each type of enforcement (i.e. 
training restrictions, strike restrictions, use and sale restrictions 
on edible and non-edible whale parts) and do those persons/
organizations have the necessary training and authority to carry out 
their obligations?
    e. How will records be kept and shared amongst the necessary 
parties? How will any discrepancies in the records be resolved?
    f. Is the use of photo-identification technology economically and 
technologically feasible? How quickly can identification be made? Is 
genetic identification more scientifically reliable and how does its 
economic and technological feasibility compare?
    6. Other factors not enumerated in 16 U.S.C. 1373(b), but raised by 
parties to this proceeding and meriting consideration:
    a. What is the appropriate degree to which the analysis in Anderson 
v. Evans, 371 F.3d 475 (9th Cir. 2011) should be considered in this 
proceeding?
    b. Are the definitions contained in the proposed regulations 
adequate or do they contain ambiguities, omissions, and/or 
inconsistencies?
    B. Restrictions in the Proposed Regulations.
    1. Issues pertaining to the proposed restrictions on the number of 
animals that may be taken in any calendar year (16 U.S.C. 1373(c)(1)):
    a. Hunt permits may authorize no more than three gray whales to be 
landed in an even-year hunt and no more than one to be landed in an 
odd-year hunt. No more than three strikes are permitted during an even-
year hunt and no more than two are permitted in an odd-year hunt.
    b. Additional restrictions are placed on the taking of PCFG whales 
and WNP whales.
    c. How were the low-abundance triggers for PCFG whales, which would 
cause hunting activity to cease, determined?
    2. Issues pertaining to the proposed restrictions on the age, size, 
sex, or any combination thereof of animals that may be taken (16 U.S.C. 
1373(c)(2)):
    a. Are the limits set on authorized strikes of PCFG females 
appropriate?
    b. Are there, or should there be, limitations on approaches or 
strikes on calves or mother-and-calf pairs?
    3. Issues pertaining to the season or other period of time within 
which animals may be taken (16 U.S.C. 1373(c)(3)):
    a. The hunting seasons are split into ``even-year hunts,'' during 
which hunting would be authorized from December 1 of an odd-numbered 
year until May 31 of the following even-numbered year, and ``odd-year 
hunts,'' during which hunting would be authorized from July 1 through 
October 31 of the odd-numbered year.
    4. Issues pertaining to the manner and locations in which animals 
may be taken (16 U.S.C. 1373(c)(4)):
    a. The proposed waiver and regulations authorize training 
exercises, including approaches and training harpoon throws. A question 
has been raised as to whether the inclusion of training exercises is 
necessary and/or appropriate.
    b. Do the definitions of ``land'' and ``landing'' provide 
sufficient information about where the Makah Tribe would be permitted 
to land whales? Are consultations with other Federal and state agencies 
necessary (see 16 U.S.C. 1382)?
    c. Are the definitions of ``strike'' and ``struck'' ambiguous? 
Specifically, issues have been raised regarding the single-strike limit 
within 24 hours (whether a harpoon strike followed by a firearm shot 
consist of a single ``strike'' or two separate strikes, and whether 
this will lead to unnecessary suffering on the part of a whale that is 
struck but not immediately killed); whether whales can be appropriately 
identified as belonging to WNP stock, ENP stock, or the PCFG during a 
24-hour post-strike period; whether the use of crossbows or other 
devices to obtain genetic material from a struck whale should also be 
considered a strike; and whether the struck-and-lost limits proposed 
are inconsistent with the definition of ``strike.''
    d. Will independent observers be present at every hunt or only 
certain hunts? How are these observers selected and trained?
    e. Should the potential for an off-shore hunt to result in the 
taking of more migratory ENP whales and fewer PCFG/Makah U&A whales be 
considered?
    5. Issues pertaining to techniques which have been found to cause 
undue fatalities to any species of marine mammal (16 U.S.C. 
1373(c)(5)):
    a. None identified.
    6. Issues related to other proposed restrictions not specifically 
enumerated in 16 U.S.C. 1373(c):
    a. Restrictions on the use or sale of gray whale products:
    i. Do the restrictions on utilization of edible products of ENP 
gray whales off-reservation unfairly burden enrolled Makah Tribe 
members living elsewhere? Are such members permitted to share ENP gray 
whale products with members of their immediate households who are not 
enrolled in the Makah Tribe?
    ii. Are there any restrictions on the resale of handicrafts by 
persons who are not enrolled members of the Makah tribe, either on a 
small or large scale?
    iii. Are there restrictions on the international sale or 
transportation of handicrafts?

III. Other Issues for Consideration

    A. What is the relevance in this proceeding of the Treaty of Neah 
Bay, between the Makah Tribe and the United States, which explicitly 
protects the tribe's right to hunt whales?
    1. Is the entire constellation of activities involved in hunting 
whales integral to the Makah Tribe?
    2. How central is whaling to Makah Tribal identity? Does the Tribe 
have a continuing traditional dependence?
    3. Does the Makah Tribe have a nutritional, subsistence, and 
cultural need for whaling?
    4. Is any traditional dependence on whaling obviated by the Makah 
Tribe's engagement in sealing starting in the latter half of the 19th 
century and the near-cessation of whale hunting after 1927?
    5. Is it possible for the Makah Tribe to substitute other, non-
lethal activities and maintain their traditional ties to whaling?
    The presiding officer, Judge George J. Jordan, prepared the 
contents of this notice. A copy of the draft notice Judge Jordan 
submitted to the NMFS Regulations Unit for filing with the Office of 
the Federal Register (OFR) was made available to all parties to this 
proceeding. The NMFS Regulations Unit reviewed the notice to ensure 
consistency with the OFR filing requirements. NMFS was otherwise not 
involved in the review of the contents of the notice. The signature of 
NMFS West Coast Regional Administrator Barry Thom is required to 
authorize the filing of the notice with the OFR.

    Dated: October 30, 2019.
Barry A. Thom,
Regional Administrator, West Coast Region, National Marine Fisheries 
Service.
[FR Doc. 2019-24042 Filed 11-1-19; 8:45 am]
 BILLING CODE 3510-22-P