Announcement of Hearing Regarding Proposed Waiver and Regulations Governing the Taking of Marine Mammals, 13639-13643 [2019-06336]

Download as PDF khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Notices These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376. Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to NMFS.Pr1Comments@noaa.gov. Please include the File No. in the subject line of the email comment. Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate. FOR FURTHER INFORMATION CONTACT: Sara Young or Shasta McClenahan, (301) 427–8401. SUPPLEMENTARY INFORMATION: The subject amendment to Permit No. 19108–03 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216). Permit No. 19108, issued on June 30, 2015 (80 FR 39750), authorizes the permit holder to conduct research on northern elephant seal population status, reproduction, diving and fasting, physiology, and metabolism. Research methods include behavioral observations, marking, capture and sampling, instrumentation, translocation, short-term captive holding, physiology studies, and acoustic studies. Research is permitted from California to Washington, but occurs primarily at An˜o Nuevo. Incidental harassment and mortalities of northern elephant seals, and incidental harassment of California sea lions (Zalophus californianus), northern fur seals (Callorhinus ursinus), and Steller sea lions (Eumetopias jubatus) of the Eastern Distinct Population Segment is authorized. The permit holder is requesting the permit be amended to include authorization for an increase in annual take from 10 to 20 animals for elephant seals that can be instrumented and translocated and receive thermistor placement annually. This annual increase would allow all of the translocations in this category to be conducted during the spring molt, which further ensures that animals are able to be recaptured for instrument VerDate Sep<11>2014 18:46 Apr 04, 2019 Jkt 247001 removal. The applicant also requests permission to use an intravascular electrocardiogram within existing catheter placement (20 animals annually). The applicant is authorized to experimentally alter the buoyancy of seals during translocations, including use of a neutral buoyancy control that alters the drag surface of the animal. The applicant requests to explicitly modify drag outside of the context of a buoyancy modification experiments and to add additional drag surface to subjects on one of the two translocations allowed per individual elephant seal to assess the impact of increased swimming effort on blood oxygen utilization (20 animals annually). The applicant also requests to add a headmounted instrument for electroencephalography on translocated animals to give insight into the potential use of bihemispheric or unihemispheric sleep and the level of brain oxygenation during diving. The instrument uses near-infrared spectroscopy sensors or up to six electrodes (20 animals annually). In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of this application to the Marine Mammal Commission and its Committee of Scientific Advisors. Dated: April 1, 2019. Amy Sloan, Deputy Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. 2019–06628 Filed 4–4–19; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 181019964–9283–01] RIN 0648–XG584 Announcement of Hearing Regarding Proposed Waiver and Regulations Governing the Taking of Marine Mammals National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of hearing. AGENCY: PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 13639 This notice announces an agency hearing to be convened by the National Marine Fisheries Service before an administrative law judge (ALJ) and the process by which interested persons can participate in the hearing. The hearing involves a proposed waiver under the Marine Mammal Protection Act (MMPA) and proposed regulations governing the hunting of eastern North Pacific (ENP) gray whales by the Makah Indian Tribe in northwest Washington State. A proposed rule relating to the proposed waiver and regulations is published elsewhere in today’s issue of the Federal Register. DATES: NMFS has scheduled a hearing before Administrative Law Judge George J. Jordan to consider the proposed MMPA waiver and the proposed regulations. It will begin on August 12, 2019 at 9:30 a.m. PDT in the Henry M. Jackson Federal Building, 915 Second Ave., 4th Floor Auditorium, Seattle, WA 98174. A pre-hearing conference is scheduled on June 17, 2019, at 10:00 a.m. PDT in the Henry M. Jackson Federal Building, 915 Second Ave., Seattle, WA 98174 (room location to be set by the ALJ). Persons interested in participating as a party in the hearing should consult regulations at 50 CFR part 228 and this notice and notify NMFS by the filing deadline below. Filing deadlines: Any person desiring to participate as a party at the hearing must notify the NMFS West Coast Region Regional Administrator, by certified mail, postmarked on or before May 6, 2019. Any person desiring to participate as a party must submit initial written direct testimony by May 20, 2019, as specified below. All notices, testimony, and other filings must include the following Hearing Docket Number assigned to this matter: 19– NMFS–0001. Interested persons should consult the remainder of this notice and the procedural regulations at 50 CFR part 228 for additional deadlines, hearing procedures, and other opportunities for participation in the process. ADDRESSES: Any person desiring to participate as a party in the hearing must notify NMFS, by certified mail, at the following address: Mr. Barry Thom, Regional Administrator, NMFS, West Coast Region, 1201 NE Lloyd Boulevard, Suite 1100, Portland, OR 97232. Any person desiring to participate as a party in the hearing should also send an electronic copy to aljseattle@ uscg.mil. All documents pertaining to the hearing, including initial direct testimony, shall be filed with the ALJ. All documents should, to the extent SUMMARY: E:\FR\FM\05APN1.SGM 05APN1 khammond on DSKBBV9HB2PROD with NOTICES 13640 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Notices possible, be formatted in a way that makes them accessible to individuals with disabilities or otherwise compliant with the Section 508 Amendment of the Rehabilitation Act of 1973, 29 U.S.C. 794d. More information on creating accessible documents may be found at https://www.section508.gov/create. Parties are encouraged to submit direct testimony and other documents via email to the ALJ at aljseattle@uscg.mil (noting the Hearing Docket Number assigned to this matter: 19–NMFS– 0001). If the size of the attachment exceeds email capacity, parties are then encouraged to mail a CD–ROM with the document included to the ALJ (at the address listed below). If a party is unable to file electronic documents, parties shall file paper hardcopies of the documents with the ALJ (at the address listed below). Only a single copy of any filing is required, whether filed electronically or hardcopy. The mailing address for any CD–ROM or paper hardcopy is: ALJ Docketing Center, U.S. Custom House, Attn: Hearing Docket Clerk, 40 S Gay Street, Room 412, Baltimore, MD 21202. All filings associated with the hearing become part of the record, which will be available for public viewing and inspection at the ALJ’s hearing website: https://www.uscg.mil/Resources/ Administrative-Law-Judges/Decisions/ ALJ-Decisions-2016/NOAA-FormalRulemaking-Makah-Tribe/. These filings will include the initial direct testimony of NMFS in support of the proposed regulations and waiver and, upon issuance, the ALJ’s preliminary determination of the issues of fact that may be addressed at the hearing. Information pertaining to this hearing is also available at the NMFS West Coast Region website: https:// www.fisheries.noaa.gov/action/formalrulemaking-proposed-mmpa-waiverand-hunt-regulations-governing-graywhale-hunts-makah. NMFS prepared a draft environmental impact statement (DEIS) (80 FR 13373; March 13, 2015) for the proposed waiver and regulations. The DEIS and comments thereon may be accessed at the Federal eRulemaking Portal http:// www.regulations.gov via the following Docket Identification: NOAA–NMFS– 2012–0104. The DEIS and comments, along with any communications falling under 50 CFR 228.10(b) (ex parte communications), also are available for viewing at the address for the Regional Administrator listed above. FOR FURTHER INFORMATION CONTACT: Michael Milstein, NMFS West Coast Region, 1201 NE Lloyd Blvd., Suite VerDate Sep<11>2014 18:46 Apr 04, 2019 Jkt 247001 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. After full evaluation of the Tribe’s request, NMFS is proposing to authorize a limited tribal hunt for ENP gray whales and the making and sale of handicrafts. Additional information regarding the Tribe’s request and NMFS’ proposed waiver and regulations is provided in the associated proposed rule published elsewhere in today’s issue of the Federal Register. Under the MMPA, a decision to waive the take moratorium and issue regulations governing the take must be made on the record after an opportunity for an agency hearing on the proposed waiver and regulations (16 U.S.C. 1373(d)). The hearing is governed by agency regulations at 50 CFR part 228, which call for the appointment of a presiding officer and prescribe other procedures. At the conclusion of the hearing process, the presiding officer will make a recommended decision based on the hearing record and transmit the decision and record to the NOAA Assistant Administrator for Fisheries. Pursuant to the regulations, this notice of hearing shall include the following information: 1. The nature of the hearing. The subject of the hearing is NMFS’ proposal to issue a waiver and regulations under the MMPA (16 U.S.C. 1371(a)(3)(A) and 1373) regarding the take of ENP gray whales and the making and sale of handicrafts by the Makah Indian Tribe. NMFS’ proposed waiver and regulations are published elsewhere in today’s Federal Register. The hearing is governed by the requirements of the Administrative Procedure Act (5 U.S.C. 553, 555–557) and agency regulations at 50 CFR part 228. In particular, interested persons should be aware of the restrictions on communications that apply to the hearing process set forth in PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 5 U.S.C. 557(d)(1) and 50 CFR 228.10. These and additional restrictions on communications are described in a NOAA memorandum entitled ‘‘Restrictions on Communications Pertaining to Makah Indian Tribe’s Request for Waiver of Moratorium on Take of Eastern North Pacific Gray Whales,’’ available on the NMFS West Coast Region website (see ADDRESSES). 2. The place and date of the hearing. See DATES above. 3. The legal authority under which the hearing is to be held. 16 U.S.C. 1371(a)(3)(A) and 1373; 50 CFR part 228. 4. The proposed regulations and waiver and a summary of the statements required by 16 U.S.C. 1373(d). This information is provided in the proposed rule, published elsewhere in today’s issue of the Federal Register. 5. Issues of fact that may be involved in the hearing. See below. 6. The date of publication of a draft environmental impact statement associated with the proposed waiver and regulations and the place where the draft and comments thereon may be viewed and copied (see ADDRESSES). 7. Any written advice received from the Marine Mammal Commission. A summary of the recommendations provided by the Marine Mammal Commission on the proposed waiver and regulations is provided in the proposed rule published elsewhere in today’s Federal Register. Complete copies of the Commission’s written advice are available on the NMFS West Coast Region website (see ADDRESSES). 8. The place where records and submitted direct testimony will be kept for public inspection. All filings and submitted direct testimony forming the record for this hearing will be available at ALJ’s hearing website (see ADDRESSES). Documents pertaining to this hearing are available for public inspection at the address for the Regional Administrator (see ADDRESSES). Persons interested in reviewing these documents may contact the Regional Administrator (see ADDRESSES) to schedule a time to inspect them. 9. The final date for filing notice of intent to participate in the hearing. See filing deadlines under the DATES section above. 10. The final date for submission of direct testimony on the proposed regulations and waiver and the number of copies required. Direct testimony should be submitted as specified under ADDRESSES by the date specified under filing deadlines (see DATES). 11. The docket number assigned to the case. 19–NMFS–0001. E:\FR\FM\05APN1.SGM 05APN1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Notices 12. The date and place of the prehearing conference. See DATES above. Issues of Fact That May Be Involved in the Hearing Based on the best available scientific evidence related to the applicable MMPA criteria, NMFS has determined that the following facts support issuance of the proposed waiver and regulations, described in the proposed rule published elsewhere in today’s issue of the Federal Register. khammond on DSKBBV9HB2PROD with NOTICES I. Waiver A. NMFS gave due regard to the potential effects of the proposed waiver on the distribution, abundance, breeding habits, and times and lines of migratory movements of the ENP gray whale stock. 1. The proposed waiver will not have a meaningful effect on the distribution, abundance, breeding habits, or migratory movements of the ENP gray whale stock. 2. NMFS recognizes two stocks of gray whales under the MMPA, the western North Pacific (WNP) stock and the eastern North Pacific (ENP) stock. 3. Under the MMPA, NMFS defines the Pacific Coast Feeding Group (PCFG) as gray whales observed between June 1 and November 30 within the region between northern California and northern Vancouver Island (from 41° N lat. to 52° N lat.) and photo-identified within this area during two or more years. The PCFG is part of the ENP stock. 4. The ENP stock ranges 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. The ENP stock migrates between the breeding and feeding grounds between December and May. The PCFG spends the summer and fall feeding season off the Pacific coast of North America from northern California to northern Vancouver Island. 5. The best available abundance estimate for the ENP stock is 26,960. 6. The best available abundance estimate for the PCFG is 243. 7. The proposed waiver, at a maximum, would result in the deaths of 25 whales over 10 years, or an average of 2.5 per year. The proposed waiver, at a maximum, would reduce the ENP gray whale stock by 0.09 percent over 10 years, or an average of 0.009 percent per year. 8. Reducing the ENP stock by 0.009 percent per year or 0.09 percent over 10 years would not have a discernable effect on the ENP stock’s abundance. VerDate Sep<11>2014 18:46 Apr 04, 2019 Jkt 247001 9. 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, among other things, establishes catch limits for aboriginal subsistence whaling by member states. 10. 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. The United States and the Russian Federation have been routinely, and currently are, 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. 11. The United States has routinely transferred its unused share of the IWC catch limit to the Russian Federation for use by Chukotkan hunters. 12. Based on long-standing practice and the current United States-Russian Federation bilateral agreement, the United States would likely continue to transfer any unused IWC catch limit to the Russian Federation for use by Chukotkan natives, so that the net effect of the hunt on ENP gray whale abundance would be the same with or without the proposed waiver. 13. The proposed waiver, at a maximum, would result in a total of 150 unsuccessful strike attempts and training harpoon throws, combined, over 10 years, or an average of 15 per year. 14. The proposed waiver, at a maximum, would result in a total of 353 approaches (causing a hunt or training vessel to be within 100 yards of a gray whale) per year, with a sub-limit of 142 approaches of PCFG whales. 15. The ENP stock has demonstrated resiliency to decades of active hunting by Chukotkan natives and other human activities. Gray whales were classified as an endangered species under U.S. law in 1970 (the original listing included both ENP and WNP gray whales). Subsequently, the ENP stock recovered and was de-listed in 1994. The ENP stock grew from 12,771 animals to approximately 27,000 animals between 1970 and 2016. 16. Despite over a hundred gray whales being pursued and killed in aboriginal subsistence hunts off Chukotka each year, many of which are killed during the summer feeding months, there has not been a discernible change in the availability or location of gray whales in the Chukotkan hunt area. 17. Unsuccessful strike attempts and training harpoon throws are expected to result in temporary disturbance but not PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 13641 to have a lasting effect on the affected whale’s health or behaviors. 18. Approaches are not expected to have a lasting effect on the affected whale’s health or behaviors. 19. Photo-identification is a reliable, feasible method of identifying PCFG and WNP whales. 20. The proposed waiver, at a maximum, would result in 16 strikes of PCFG whales over the 10-year duration of the waiver period (average of 1.6 per year), of which only 8 strikes would be of PCFG females (average of 0.8 per year). 21. Under the proposed waiver, NMFS would manage impacts of the proposed waiver to PCFG whales through photo-identification and specified assumptions. 22. The proposed waiver would require that hunting cease if PCFG abundance were to fall below set levels. The levels, referred to as low-abundance triggers, are 192 whales, or a minimum abundance estimate of 171 whales. 23. NMFS would use a forecasting model to provide up-to-date PCFG abundance estimates during the waiver period. 24. PCFG abundance has been stable or increasing since around 2002, with an average annual increase in abundance of 3.5 animals between 2002 and 2015. 25. The combination of strike limits and low-abundance triggers will ensure that the proposed waiver will not cause PCFG abundance to decline below recent stable levels. 26. Because the proposed waiver will not cause PCFG abundance to decline below recent stable levels, the proposed waiver is not expected to affect the range-wide distribution of the ENP stock, including the stock’s distribution within the PCFG range. 27. Under the proposed waiver, hunting or hunt training is most likely to overlap with gray whale breeding in December–January. NMFS expects that few if any hunt activities would occur in December–January due to inclement weather and unfavorable ocean conditions, but it is possible that hunt activities could occur in DecemberJanuary and could encounter mating whales. 28. The proposed waiver would not adversely affect ENP gray whale breeding, because the proportion of the migration corridor where hunt activities could occur is small, the level of hunt activity likely to occur in December– January is low, the number of whales that could be struck is extremely small, and any whales that were disturbed would likely have repeated E:\FR\FM\05APN1.SGM 05APN1 khammond on DSKBBV9HB2PROD with NOTICES 13642 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Notices opportunities to mate throughout the remainder of the southward migration. 29. Migrating ENP gray whales are only expected to be encountered during even-year hunts. Migrating whales are steady swimmers that would transit the hunt area within several hours. The hunt area is a very small portion of the ENP gray whale stock’s migration corridor. 30. During even-year hunts, adverse weather and ocean conditions coupled with shorter periods of daylight would keep most hunts and training exercises close to shore and of short duration. 31. A very small number of migrating ENP gray whales would be subjected to hunt or training activities. Any gray whale subject to such activities (but not struck) would likely experience the encounter as a temporary and localized near-shore event that would not result in a lasting effect on the whale’s migratory movements. B. NMFS properly concluded that the proposed waiver is in accord with the MMPA’s purposes and policies because it will not affect the health, stability, or functioning of the marine ecosystem or the ENP stock’s abundance relative to its optimum sustainable population (OSP) levels. 1. The proposed waiver is not expected to have a meaningful effect on the health, stability, or functioning of the marine ecosystem or on the ENP stock’s abundance relative to OSP. 2. The level of hunting that could occur under the proposed waiver would affect only a small fraction of the ENP stock and the stock’s ecosystems. Most effects of the hunt would be temporary and localized. 3. The ENP stock functions within many large ecosystems shaped by a variety of processes. The smallest recognized ecosystem that encompasses the hunt area is the northern California Current ecosystem. 4. The northern California Current ecosystem is shaped by dynamic, highly energetic, large-scale processes, including currents, upwelling, freshwater runoff, seasonal wind/storm patterns, and variable climate patterns such as El Nin˜o. The role of ENP gray whales in structuring this ecosystem is limited. 5. The number of removals of gray whales that could occur under the proposed waiver is too small to have a discernable effect on the northern California Current ecosystem. 6. Even at the smallest biologically relevant scale, the northern Washington coastal environment, the level of hunting that could occur under the proposed waiver would not have a perceptible effect on the health or VerDate Sep<11>2014 18:46 Apr 04, 2019 Jkt 247001 stability of the marine ecosystem or the functioning of the ENP stock within the ecosystem. 7. The ENP stock has been within OSP levels since at least 1995. In 2012, NMFS concluded that the ENP stock was at 85 percent of carrying capacity with an 88 percent likelihood that the stock was above its maximum net productivity level. NMFS’s current stock assessment report for the ENP stock continues to adopt this conclusion. 8. The removal of up to 25 whales from the ENP stock over 10 years, or 2.5 whales average per year, is not expected to affect the ENP stock’s abundance relative to its OSP levels. II. Regulations A. The proposed regulations are necessary and appropriate to ensure that a tribal hunt will not disadvantage the ENP gray whale stock, because the proposed regulations will have no discernable effect on the ENP gray whale stock’s abundance relative to OSP. See Issues of Fact I.A.7–8, I.B.7– 8. B. The proposed regulations are necessary and appropriate to ensure that a tribal hunt will be consistent with the purposes and policies of the MMPA. See Issues of Fact I.B.1–8. C. NMFS gave full consideration to all relevant factors in prescribing the proposed regulations, including existing and future levels of marine mammals stocks, existing international treaty and agreement obligations of the United States, the marine ecosystem and related environmental considerations, the conservation, development, and utilization of fishery resources, the economic and technological feasibility of implementation, and potential effects to the WNP stock. 1. NMFS fully considered the effects of the proposed regulations on the existing and future levels of the ENP gray whale stock. See Issues of Fact I.A.7–8, I.B.7–8. 2. NMFS fully considered the effects of the proposed regulations on existing international treaty and agreement obligations of the United States. 3. Under the ICRW and through the bilateral agreement between the United States and the Russian Federation, the Makah Tribe can harvest up to five ENP gray whales per year. 4. The proposed regulations would not authorize the Tribe to harvest more ENP gray whales than available under the ICRW and the U.S.-Russian Federation bilateral agreement. 5. The IWC Scientific Committee’s Standing Work Group on Aboriginal Subsistence Whaling Management PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 Procedures evaluated a Makah tribal hunt as would be carried out under the proposed regulations and determined that the hunt would meet the IWC conservation objectives for ENP, WNP, and PCFG whales. 6. NMFS fully considered the effects of the proposed regulations on the marine ecosystem. See Issues of Fact II.A.2.a–f. See Issues of Fact I.B.1–6. 7. NMFS fully considered the effects of the proposed regulations on environmental considerations related to the marine ecosystem, including potential effects to water quality, pelagic and benthic habitats, other species of fish and wildlife, and marine noise levels. 8. The proposed regulations would have no effect on the conservation, development, or utilization of fishery resources. 9. NMFS fully considered the economic and technological feasibility of implementation of the proposed regulations. 10. NMFS’s costs associated with the proposed regulations would primarily involve the continuation of longstanding gray whale surveys and photo-identification work, with additional funding of approximately $2,000 per day of hunting needed to support NMFS monitoring and enforcement personnel. The annual NMFS budget for marine mammal management in the West Coast Region is over $700,000. 11. The costs to NMFS associated with regulating a hunt under the proposed regulations are feasible. 12. The Tribe’s 1999 gray whale hunt successfully demonstrated the economic and technological feasibility of the Tribe prosecuting a gray whale hunt. The Tribe has enacted a detailed Tribal Whaling Ordinance, which demonstrates the feasibility of tribal hunt management. 13. The proposed regulations include provisions for matching photographs of struck whales to those of known whales, a procedure which is technologically feasible. 14. The proposed regulations include provisions for marking and tracking handicrafts made from non-edible whale products, which is technologically feasible. 15. NMFS determined that potential risks to WNP gray whales from implementation of the proposed regulations is an additional relevant factor in prescribing the regulations and fully considered such risks. 16. The proposed regulations contain a number of restrictions to limit the risk of death, injury, or other harm to WNP whales. These include alternating hunt E:\FR\FM\05APN1.SGM 05APN1 khammond on DSKBBV9HB2PROD with NOTICES Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Notices 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 during 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. 17. NMFS’s scientists undertook a risk analysis to quantify risk to WNP whales based on the best scientific evidence available and using conservative assumptions. 18. NMFS’s risk analysis concludes that there is a 5.8 percent probability of hunters striking one WNP gray whale over the 10 years of the regulations, meaning over the course of seventeen 10-year hunt periods, one WNP gray whale would be expected to be struck (i.e., in one year out of 170), if the Tribe made the maximum number of strikes attempts allowed in even-year hunts and if ENP and WNP population sizes and migration patterns remained constant. 19. NMFS’s risk analysis concludes that there is about a 30 percent probability that one WNP whale would be subjected to an unsuccessful strike attempt or training harpoon throw over the 10 years of the regulations, or one such encounter every 33 years, if the Tribe made the maximum number of strike attempts allowed in even-year hunts and if ENP and WNP population sizes and migration patterns remained constant. 20. Unsuccessful strike attempts and training harpoon throws are expected to result in temporary disturbance but not to have a lasting effect on the affected whale’s health or behaviors. 21. NMFS’s risk analysis concludes that a maximum of 14 WNP gray whales could be approached within 100 yards over the ten years of the waiver period, or an average of 1.4 per year, if ENP and WNP population sizes and migration patterns remain constant. This analysis assumes that all allowed approaches (3,530 over 10 years) are made and all occur between December 1 and May 31, meaning that no hunting would occur during odd-year hunts. 22. Approximately twice as many suitable days for hunting and training occur during the months of odd-year hunt seasons than during the months of even-year hunt seasons, considering weather conditions and whale availability. 23. If the Tribe made the full number of approaches allowed under the proposed regulations each year of the waiver period, and those approaches were divided evenly between odd-year VerDate Sep<11>2014 18:46 Apr 04, 2019 Jkt 247001 and even-year hunts, then approximately 0.7 WNP whales would be subjected to an approach annually. 24. Approaches are not expected to have a lasting effect on the whale’s health or behaviors. Authority: 16 U.S.C. 1371(a)(3)(A) and 1373; 50 CFR part 228. Dated: March 27, 2019. Barry A. Thom, Regional Administrator, West Coast Region, National Marine Fisheries Service. [FR Doc. 2019–06336 Filed 4–4–19; 8:45 am] BILLING CODE 3510–22–P COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions and Deletions 13643 Services Service Type: Grounds Maintenance Mandatory for: Federal Aviation Administration, Norfolk Air Traffic Control Tower, Virginia Beach, VA and Patrick Henry Field Air Traffic Control Tower, Newport News, VA Mandatory Source of Supply: Portco, Inc., Portsmouth Mandatory for: Federal Aviation Administration, Patrick Henry Field (PHF) Air Traffic Control Tower, Newport News, VA Mandatory Source of Supply: VersAbility Resources, Inc., Hampton, VA Contracting Activity: Federal Aviation Administration, FAA, Regional Acquisitions Services Deletions The following product and services are proposed for deletion from the Procurement List: Product AGENCY: Committee for Purchase From People Who Are Blind or Severely Disabled. ACTION: Proposed additions to and deletions from the Procurement List. NSNs—Product Names: 3740–01–096– 1632—Trap, Roach, Monitor Mandatory Source of Supply: The Arc of Alachua County, Inc., Gainesville, FL Contracting Activity: DLA Aviation, Richmond, VA The Committee is proposing to add services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes product and services previously furnished by such agencies. DATES: Comments must be received on or before: May 5, 2019. ADDRESSES: Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202–4149. FOR FURTHER INFORMATION CONTACT: For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 603–2117, Fax: (703) 603–0655, or email CMTEFedReg@AbilityOne.gov. SUPPLEMENTARY INFORMATION: This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions. Services SUMMARY: Additions If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities. The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed: PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 Service Type: Administrative Services Mandatory for: GSA, Northeast Distribution Center: Federal Supply Service (3FS), Burlington, NJ Mandatory Source of Supply: Occupational Training Center of Burlington County, Burlington, NJ Contracting Activity: Federal Acquisition Service, GSA/FAS Tools Acquisition Division II Service Type: Janitorial/Elevator Operator Mandatory for: Southeast Federal Center: Buildings 159, 159E & 160, 2nd & M Streets SE, Washington, DC Mandatory Source of Supply: Davis Memorial Goodwill Industries, Washington, DC Contracting Activity: Dept of the Navy, U.S. Fleet Forces Command Service Type: Janitorial/Custodial Mandatory for: Internal Revenue Service: 120 Church Street, New York, NY Mandatory Source of Supply: Fedcap Rehabilitation Services, Inc., New York, NY Contracting Activity: Treasury, Department of the, Dept of Treas/ Service Type: Janitorial/Custodial Mandatory for: U.S. Army Reserve Center: Elkins, Beverly, WV Mandatory Source of Supply: BuckhannonUpshur Work Adjustment Center, Inc., Buckhannon, WV Contracting Activity: Dept of the Army, W40M RHCO-Atlantic USAHCA Patricia Briscoe, Deputy Director, Business Operations (Pricing and Information Management). [FR Doc. 2019–06661 Filed 4–4–19; 8:45 am] BILLING CODE 6353–01–P E:\FR\FM\05APN1.SGM 05APN1

Agencies

[Federal Register Volume 84, Number 66 (Friday, April 5, 2019)]
[Notices]
[Pages 13639-13643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06336]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

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


Announcement of Hearing 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.

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SUMMARY: This notice announces an agency hearing to be convened by the 
National Marine Fisheries Service before an administrative law judge 
(ALJ) and the process by which interested persons can participate in 
the hearing. The hearing involves a proposed waiver under the Marine 
Mammal Protection Act (MMPA) and proposed regulations governing the 
hunting of eastern North Pacific (ENP) gray whales by the Makah Indian 
Tribe in northwest Washington State. A proposed rule relating to the 
proposed waiver and regulations is published elsewhere in today's issue 
of the Federal Register.

DATES: NMFS has scheduled a hearing before Administrative Law Judge 
George J. Jordan to consider the proposed MMPA waiver and the proposed 
regulations. It will begin on August 12, 2019 at 9:30 a.m. PDT in the 
Henry M. Jackson Federal Building, 915 Second Ave., 4th Floor 
Auditorium, Seattle, WA 98174. A pre-hearing conference is scheduled on 
June 17, 2019, at 10:00 a.m. PDT in the Henry M. Jackson Federal 
Building, 915 Second Ave., Seattle, WA 98174 (room location to be set 
by the ALJ). Persons interested in participating as a party in the 
hearing should consult regulations at 50 CFR part 228 and this notice 
and notify NMFS by the filing deadline below.
    Filing deadlines: Any person desiring to participate as a party at 
the hearing must notify the NMFS West Coast Region Regional 
Administrator, by certified mail, postmarked on or before May 6, 2019. 
Any person desiring to participate as a party must submit initial 
written direct testimony by May 20, 2019, as specified below. All 
notices, testimony, and other filings must include the following 
Hearing Docket Number assigned to this matter: 19-NMFS-0001. Interested 
persons should consult the remainder of this notice and the procedural 
regulations at 50 CFR part 228 for additional deadlines, hearing 
procedures, and other opportunities for participation in the process.

ADDRESSES: Any person desiring to participate as a party in the hearing 
must notify NMFS, by certified mail, at the following address: Mr. 
Barry Thom, Regional Administrator, NMFS, West Coast Region, 1201 NE 
Lloyd Boulevard, Suite 1100, Portland, OR 97232.
    Any person desiring to participate as a party in the hearing should 
also send an electronic copy to [email protected].
    All documents pertaining to the hearing, including initial direct 
testimony, shall be filed with the ALJ. All documents should, to the 
extent

[[Page 13640]]

possible, be formatted in a way that makes them accessible to 
individuals with disabilities or otherwise compliant with the Section 
508 Amendment of the Rehabilitation Act of 1973, 29 U.S.C. 794d. More 
information on creating accessible documents may be found at https://www.section508.gov/create. Parties are encouraged to submit direct 
testimony and other documents via email to the ALJ at 
[email protected] (noting the Hearing Docket Number assigned to this 
matter: 19-NMFS-0001). If the size of the attachment exceeds email 
capacity, parties are then encouraged to mail a CD-ROM with the 
document included to the ALJ (at the address listed below). If a party 
is unable to file electronic documents, parties shall file paper 
hardcopies of the documents with the ALJ (at the address listed below). 
Only a single copy of any filing is required, whether filed 
electronically or hardcopy. The mailing address for any CD-ROM or paper 
hardcopy is: ALJ Docketing Center, U.S. Custom House, Attn: Hearing 
Docket Clerk, 40 S Gay Street, Room 412, Baltimore, MD 21202.
    All filings associated with the hearing become part of the record, 
which will be available for public viewing and inspection at the ALJ's 
hearing website: https://www.uscg.mil/Resources/Administrative-Law-Judges/Decisions/ALJ-Decisions-2016/NOAA-Formal-Rulemaking-Makah-Tribe/. These filings will include the initial direct testimony of NMFS 
in support of the proposed regulations and waiver and, upon issuance, 
the ALJ's preliminary determination of the issues of fact that may be 
addressed at the hearing. Information pertaining to this hearing is 
also available at the NMFS West Coast Region website: https://www.fisheries.noaa.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt-regulations-governing-gray-whale-hunts-makah.
    NMFS prepared a draft environmental impact statement (DEIS) (80 FR 
13373; March 13, 2015) for the proposed waiver and regulations. The 
DEIS and comments thereon may be accessed at the Federal eRulemaking 
Portal http://www.regulations.gov via the following Docket 
Identification: NOAA-NMFS-2012-0104. The DEIS and comments, along with 
any communications falling under 50 CFR 228.10(b) (ex parte 
communications), also are available for viewing at the address for the 
Regional Administrator listed above.

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. After full 
evaluation of the Tribe's request, NMFS is proposing to authorize a 
limited tribal hunt for ENP gray whales and the making and sale of 
handicrafts. Additional information regarding the Tribe's request and 
NMFS' proposed waiver and regulations is provided in the associated 
proposed rule published elsewhere in today's issue of the Federal 
Register.
    Under the MMPA, a decision to waive the take moratorium and issue 
regulations governing the take must be made on the record after an 
opportunity for an agency hearing on the proposed waiver and 
regulations (16 U.S.C. 1373(d)). The hearing is governed by agency 
regulations at 50 CFR part 228, which call for the appointment of a 
presiding officer and prescribe other procedures. At the conclusion of 
the hearing process, the presiding officer will make a recommended 
decision based on the hearing record and transmit the decision and 
record to the NOAA Assistant Administrator for Fisheries.
    Pursuant to the regulations, this notice of hearing shall include 
the following information:
    1. The nature of the hearing. The subject of the hearing is NMFS' 
proposal to issue a waiver and regulations under the MMPA (16 U.S.C. 
1371(a)(3)(A) and 1373) regarding the take of ENP gray whales and the 
making and sale of handicrafts by the Makah Indian Tribe. NMFS' 
proposed waiver and regulations are published elsewhere in today's 
Federal Register. The hearing is governed by the requirements of the 
Administrative Procedure Act (5 U.S.C. 553, 555-557) and agency 
regulations at 50 CFR part 228. In particular, interested persons 
should be aware of the restrictions on communications that apply to the 
hearing process set forth in 5 U.S.C. 557(d)(1) and 50 CFR 228.10. 
These and additional restrictions on communications are described in a 
NOAA memorandum entitled ``Restrictions on Communications Pertaining to 
Makah Indian Tribe's Request for Waiver of Moratorium on Take of 
Eastern North Pacific Gray Whales,'' available on the NMFS West Coast 
Region website (see ADDRESSES).
    2. The place and date of the hearing. See DATES above.
    3. The legal authority under which the hearing is to be held. 16 
U.S.C. 1371(a)(3)(A) and 1373; 50 CFR part 228.
    4. The proposed regulations and waiver and a summary of the 
statements required by 16 U.S.C. 1373(d). This information is provided 
in the proposed rule, published elsewhere in today's issue of the 
Federal Register.
    5. Issues of fact that may be involved in the hearing. See below.
    6. The date of publication of a draft environmental impact 
statement associated with the proposed waiver and regulations and the 
place where the draft and comments thereon may be viewed and copied 
(see ADDRESSES).
    7. Any written advice received from the Marine Mammal Commission. A 
summary of the recommendations provided by the Marine Mammal Commission 
on the proposed waiver and regulations is provided in the proposed rule 
published elsewhere in today's Federal Register. Complete copies of the 
Commission's written advice are available on the NMFS West Coast Region 
website (see ADDRESSES).
    8. The place where records and submitted direct testimony will be 
kept for public inspection. All filings and submitted direct testimony 
forming the record for this hearing will be available at ALJ's hearing 
website (see ADDRESSES). Documents pertaining to this hearing are 
available for public inspection at the address for the Regional 
Administrator (see ADDRESSES). Persons interested in reviewing these 
documents may contact the Regional Administrator (see ADDRESSES) to 
schedule a time to inspect them.
    9. The final date for filing notice of intent to participate in the 
hearing. See filing deadlines under the DATES section above.
    10. The final date for submission of direct testimony on the 
proposed regulations and waiver and the number of copies required. 
Direct testimony should be submitted as specified under ADDRESSES by 
the date specified under filing deadlines (see DATES).
    11. The docket number assigned to the case. 19-NMFS-0001.

[[Page 13641]]

    12. The date and place of the pre-hearing conference. See DATES 
above.

Issues of Fact That May Be Involved in the Hearing

    Based on the best available scientific evidence related to the 
applicable MMPA criteria, NMFS has determined that the following facts 
support issuance of the proposed waiver and regulations, described in 
the proposed rule published elsewhere in today's issue of the Federal 
Register.

I. Waiver

    A. NMFS gave due regard to the potential effects of the proposed 
waiver on the distribution, abundance, breeding habits, and times and 
lines of migratory movements of the ENP gray whale stock.
    1. The proposed waiver will not have a meaningful effect on the 
distribution, abundance, breeding habits, or migratory movements of the 
ENP gray whale stock.
    2. NMFS recognizes two stocks of gray whales under the MMPA, the 
western North Pacific (WNP) stock and the eastern North Pacific (ENP) 
stock.
    3. Under the MMPA, NMFS defines the Pacific Coast Feeding Group 
(PCFG) as gray whales observed between June 1 and November 30 within 
the region between northern California and northern Vancouver Island 
(from 41[deg] N lat. to 52[deg] N lat.) and photo-identified within 
this area during two or more years. The PCFG is part of the ENP stock.
    4. The ENP stock ranges 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. The ENP stock 
migrates between the breeding and feeding grounds between December and 
May. The PCFG spends the summer and fall feeding season off the Pacific 
coast of North America from northern California to northern Vancouver 
Island.
    5. The best available abundance estimate for the ENP stock is 
26,960.
    6. The best available abundance estimate for the PCFG is 243.
    7. The proposed waiver, at a maximum, would result in the deaths of 
25 whales over 10 years, or an average of 2.5 per year. The proposed 
waiver, at a maximum, would reduce the ENP gray whale stock by 0.09 
percent over 10 years, or an average of 0.009 percent per year.
    8. Reducing the ENP stock by 0.009 percent per year or 0.09 percent 
over 10 years would not have a discernable effect on the ENP stock's 
abundance.
    9. 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, among other things, 
establishes catch limits for aboriginal subsistence whaling by member 
states.
    10. 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. The United States and the Russian 
Federation have been routinely, and currently are, 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.
    11. The United States has routinely transferred its unused share of 
the IWC catch limit to the Russian Federation for use by Chukotkan 
hunters.
    12. Based on long-standing practice and the current United States-
Russian Federation bilateral agreement, the United States would likely 
continue to transfer any unused IWC catch limit to the Russian 
Federation for use by Chukotkan natives, so that the net effect of the 
hunt on ENP gray whale abundance would be the same with or without the 
proposed waiver.
    13. The proposed waiver, at a maximum, would result in a total of 
150 unsuccessful strike attempts and training harpoon throws, combined, 
over 10 years, or an average of 15 per year.
    14. The proposed waiver, at a maximum, would result in a total of 
353 approaches (causing a hunt or training vessel to be within 100 
yards of a gray whale) per year, with a sub-limit of 142 approaches of 
PCFG whales.
    15. The ENP stock has demonstrated resiliency to decades of active 
hunting by Chukotkan natives and other human activities. Gray whales 
were classified as an endangered species under U.S. law in 1970 (the 
original listing included both ENP and WNP gray whales). Subsequently, 
the ENP stock recovered and was de-listed in 1994. The ENP stock grew 
from 12,771 animals to approximately 27,000 animals between 1970 and 
2016.
    16. Despite over a hundred gray whales being pursued and killed in 
aboriginal subsistence hunts off Chukotka each year, many of which are 
killed during the summer feeding months, there has not been a 
discernible change in the availability or location of gray whales in 
the Chukotkan hunt area.
    17. Unsuccessful strike attempts and training harpoon throws are 
expected to result in temporary disturbance but not to have a lasting 
effect on the affected whale's health or behaviors.
    18. Approaches are not expected to have a lasting effect on the 
affected whale's health or behaviors.
    19. Photo-identification is a reliable, feasible method of 
identifying PCFG and WNP whales.
    20. The proposed waiver, at a maximum, would result in 16 strikes 
of PCFG whales over the 10-year duration of the waiver period (average 
of 1.6 per year), of which only 8 strikes would be of PCFG females 
(average of 0.8 per year).
    21. Under the proposed waiver, NMFS would manage impacts of the 
proposed waiver to PCFG whales through photo-identification and 
specified assumptions.
    22. The proposed waiver would require that hunting cease if PCFG 
abundance were to fall below set levels. The levels, referred to as 
low-abundance triggers, are 192 whales, or a minimum abundance estimate 
of 171 whales.
    23. NMFS would use a forecasting model to provide up-to-date PCFG 
abundance estimates during the waiver period.
    24. PCFG abundance has been stable or increasing since around 2002, 
with an average annual increase in abundance of 3.5 animals between 
2002 and 2015.
    25. The combination of strike limits and low-abundance triggers 
will ensure that the proposed waiver will not cause PCFG abundance to 
decline below recent stable levels.
    26. Because the proposed waiver will not cause PCFG abundance to 
decline below recent stable levels, the proposed waiver is not expected 
to affect the range-wide distribution of the ENP stock, including the 
stock's distribution within the PCFG range.
    27. Under the proposed waiver, hunting or hunt training is most 
likely to overlap with gray whale breeding in December-January. NMFS 
expects that few if any hunt activities would occur in December-January 
due to inclement weather and unfavorable ocean conditions, but it is 
possible that hunt activities could occur in December-January and could 
encounter mating whales.
    28. The proposed waiver would not adversely affect ENP gray whale 
breeding, because the proportion of the migration corridor where hunt 
activities could occur is small, the level of hunt activity likely to 
occur in December-January is low, the number of whales that could be 
struck is extremely small, and any whales that were disturbed would 
likely have repeated

[[Page 13642]]

opportunities to mate throughout the remainder of the southward 
migration.
    29. Migrating ENP gray whales are only expected to be encountered 
during even-year hunts. Migrating whales are steady swimmers that would 
transit the hunt area within several hours. The hunt area is a very 
small portion of the ENP gray whale stock's migration corridor.
    30. During even-year hunts, adverse weather and ocean conditions 
coupled with shorter periods of daylight would keep most hunts and 
training exercises close to shore and of short duration.
    31. A very small number of migrating ENP gray whales would be 
subjected to hunt or training activities. Any gray whale subject to 
such activities (but not struck) would likely experience the encounter 
as a temporary and localized near-shore event that would not result in 
a lasting effect on the whale's migratory movements.
    B. NMFS properly concluded that the proposed waiver is in accord 
with the MMPA's purposes and policies because it will not affect the 
health, stability, or functioning of the marine ecosystem or the ENP 
stock's abundance relative to its optimum sustainable population (OSP) 
levels.
    1. The proposed waiver is not expected to have a meaningful effect 
on the health, stability, or functioning of the marine ecosystem or on 
the ENP stock's abundance relative to OSP.
    2. The level of hunting that could occur under the proposed waiver 
would affect only a small fraction of the ENP stock and the stock's 
ecosystems. Most effects of the hunt would be temporary and localized.
    3. The ENP stock functions within many large ecosystems shaped by a 
variety of processes. The smallest recognized ecosystem that 
encompasses the hunt area is the northern California Current ecosystem.
    4. The northern California Current ecosystem is shaped by dynamic, 
highly energetic, large-scale processes, including currents, upwelling, 
freshwater runoff, seasonal wind/storm patterns, and variable climate 
patterns such as El Ni[ntilde]o. The role of ENP gray whales in 
structuring this ecosystem is limited.
    5. The number of removals of gray whales that could occur under the 
proposed waiver is too small to have a discernable effect on the 
northern California Current ecosystem.
    6. Even at the smallest biologically relevant scale, the northern 
Washington coastal environment, the level of hunting that could occur 
under the proposed waiver would not have a perceptible effect on the 
health or stability of the marine ecosystem or the functioning of the 
ENP stock within the ecosystem.
    7. The ENP stock has been within OSP levels since at least 1995. In 
2012, NMFS concluded that the ENP stock was at 85 percent of carrying 
capacity with an 88 percent likelihood that the stock was above its 
maximum net productivity level. NMFS's current stock assessment report 
for the ENP stock continues to adopt this conclusion.
    8. The removal of up to 25 whales from the ENP stock over 10 years, 
or 2.5 whales average per year, is not expected to affect the ENP 
stock's abundance relative to its OSP levels.

II. Regulations

    A. The proposed regulations are necessary and appropriate to ensure 
that a tribal hunt will not disadvantage the ENP gray whale stock, 
because the proposed regulations will have no discernable effect on the 
ENP gray whale stock's abundance relative to OSP. See Issues of Fact 
I.A.7-8, I.B.7-8.
    B. The proposed regulations are necessary and appropriate to ensure 
that a tribal hunt will be consistent with the purposes and policies of 
the MMPA. See Issues of Fact I.B.1-8.
    C. NMFS gave full consideration to all relevant factors in 
prescribing the proposed regulations, including existing and future 
levels of marine mammals stocks, existing international treaty and 
agreement obligations of the United States, the marine ecosystem and 
related environmental considerations, the conservation, development, 
and utilization of fishery resources, the economic and technological 
feasibility of implementation, and potential effects to the WNP stock.
    1. NMFS fully considered the effects of the proposed regulations on 
the existing and future levels of the ENP gray whale stock. See Issues 
of Fact I.A.7-8, I.B.7-8.
    2. NMFS fully considered the effects of the proposed regulations on 
existing international treaty and agreement obligations of the United 
States.
    3. Under the ICRW and through the bilateral agreement between the 
United States and the Russian Federation, the Makah Tribe can harvest 
up to five ENP gray whales per year.
    4. The proposed regulations would not authorize the Tribe to 
harvest more ENP gray whales than available under the ICRW and the 
U.S.-Russian Federation bilateral agreement.
    5. The IWC Scientific Committee's Standing Work Group on Aboriginal 
Subsistence Whaling Management Procedures evaluated a Makah tribal hunt 
as would be carried out under the proposed regulations and determined 
that the hunt would meet the IWC conservation objectives for ENP, WNP, 
and PCFG whales.
    6. NMFS fully considered the effects of the proposed regulations on 
the marine ecosystem. See Issues of Fact II.A.2.a-f. See Issues of Fact 
I.B.1-6.
    7. NMFS fully considered the effects of the proposed regulations on 
environmental considerations related to the marine ecosystem, including 
potential effects to water quality, pelagic and benthic habitats, other 
species of fish and wildlife, and marine noise levels.
    8. The proposed regulations would have no effect on the 
conservation, development, or utilization of fishery resources.
    9. NMFS fully considered the economic and technological feasibility 
of implementation of the proposed regulations.
    10. NMFS's costs associated with the proposed regulations would 
primarily involve the continuation of longstanding gray whale surveys 
and photo-identification work, with additional funding of approximately 
$2,000 per day of hunting needed to support NMFS monitoring and 
enforcement personnel. The annual NMFS budget for marine mammal 
management in the West Coast Region is over $700,000.
    11. The costs to NMFS associated with regulating a hunt under the 
proposed regulations are feasible.
    12. The Tribe's 1999 gray whale hunt successfully demonstrated the 
economic and technological feasibility of the Tribe prosecuting a gray 
whale hunt. The Tribe has enacted a detailed Tribal Whaling Ordinance, 
which demonstrates the feasibility of tribal hunt management.
    13. The proposed regulations include provisions for matching 
photographs of struck whales to those of known whales, a procedure 
which is technologically feasible.
    14. The proposed regulations include provisions for marking and 
tracking handicrafts made from non-edible whale products, which is 
technologically feasible.
    15. NMFS determined that potential risks to WNP gray whales from 
implementation of the proposed regulations is an additional relevant 
factor in prescribing the regulations and fully considered such risks.
    16. The proposed regulations contain a number of restrictions to 
limit the risk of death, injury, or other harm to WNP whales. These 
include alternating hunt

[[Page 13643]]

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 during 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.
    17. NMFS's scientists undertook a risk analysis to quantify risk to 
WNP whales based on the best scientific evidence available and using 
conservative assumptions.
    18. NMFS's risk analysis concludes that there is a 5.8 percent 
probability of hunters striking one WNP gray whale over the 10 years of 
the regulations, meaning over the course of seventeen 10-year hunt 
periods, one WNP gray whale would be expected to be struck (i.e., in 
one year out of 170), if the Tribe made the maximum number of strikes 
attempts allowed in even-year hunts and if ENP and WNP population sizes 
and migration patterns remained constant.
    19. NMFS's risk analysis concludes that there is about a 30 percent 
probability that one WNP whale would be subjected to an unsuccessful 
strike attempt or training harpoon throw over the 10 years of the 
regulations, or one such encounter every 33 years, if the Tribe made 
the maximum number of strike attempts allowed in even-year hunts and if 
ENP and WNP population sizes and migration patterns remained constant.
    20. Unsuccessful strike attempts and training harpoon throws are 
expected to result in temporary disturbance but not to have a lasting 
effect on the affected whale's health or behaviors.
    21. NMFS's risk analysis concludes that a maximum of 14 WNP gray 
whales could be approached within 100 yards over the ten years of the 
waiver period, or an average of 1.4 per year, if ENP and WNP population 
sizes and migration patterns remain constant. This analysis assumes 
that all allowed approaches (3,530 over 10 years) are made and all 
occur between December 1 and May 31, meaning that no hunting would 
occur during odd-year hunts.
    22. Approximately twice as many suitable days for hunting and 
training occur during the months of odd-year hunt seasons than during 
the months of even-year hunt seasons, considering weather conditions 
and whale availability.
    23. If the Tribe made the full number of approaches allowed under 
the proposed regulations each year of the waiver period, and those 
approaches were divided evenly between odd-year and even-year hunts, 
then approximately 0.7 WNP whales would be subjected to an approach 
annually.
    24. Approaches are not expected to have a lasting effect on the 
whale's health or behaviors.

    Authority:  16 U.S.C. 1371(a)(3)(A) and 1373; 50 CFR part 228.

    Dated: March 27, 2019.
Barry A. Thom,
Regional Administrator, West Coast Region, National Marine Fisheries 
Service.
[FR Doc. 2019-06336 Filed 4-4-19; 8:45 am]
 BILLING CODE 3510-22-P