[Federal Register: October 15, 2008 (Volume 73, Number 200)]
[Rules and Regulations]
[Page 60976-60986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15oc08-25]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
