Regulations Governing the Taking of Marine Mammals, 13604-13624 [2019-06337]

Download as PDF 13604 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules collection, make your comments as specific as possible, confine them to issues pertinent to the proposed regulations, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph that you are addressing. The Service will consider all comments that are received by the close of the comment period (see DATES). Comments, including names and street addresses of respondents, will become part of the administrative record. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comments to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so. Dated: March 27, 2019. Karen Clark, Acting Regional Director. [FR Doc. 2019–06677 Filed 4–2–19; 11:15 am] BILLING CODE 4333–15–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 190212104–9261–01] RIN 0648–BI58 Regulations Governing the Taking of Marine Mammals National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration, Commerce. ACTION: Proposed rule. AGENCY: On February 14, 2005, NMFS received a request from the Makah Indian Tribe for a waiver of the Marine Mammal Protection Act (MMPA) moratorium on take of Eastern North Pacific (ENP) gray whales (Eschrichtius robustus). The Tribe requested that NMFS authorize a tribal hunt in the coastal portion of the Tribe’s usual and accustomed fishing area (U&A) for ceremonial and subsistence purposes, and authorize 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 khammond on DSKBBV9HB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 19:01 Apr 04, 2019 Jkt 247001 moratorium and issue regulations governing the take of marine mammals if certain statutory criteria are met. The decision to waive the moratorium and issue regulations must be made on the record after an opportunity for an agency hearing on both the waiver and regulations. The hearing is governed by agency regulations, which call for the appointment of a presiding officer and prescribe other procedures. This notice announces the proposed waiver and regulations. A related notice announcing a hearing on the proposed waiver and regulations is published elsewhere in this issue of the Federal Register. DATES: NMFS has scheduled a hearing before an Administrative Law Judge at 9:30 a.m. PDT on August 12, 2019, to consider the issuance of a waiver of the take moratorium and the regulations (see ADDRESSES). Parties interested in participating in the hearing process should consult the related notice of hearing published elsewhere in this issue of the Federal Register. Filing deadlines: Any person desiring to participate as a party in the hearing must notify the Regional Administrator (see ADDRESSES), by certified mail, postmarked on or before May 6, 2019. Interested parties should consult the related notice of hearing and regulations at 50 CFR part 228 for additional deadlines and hearing procedures. ADDRESSES: The hearing before Administrative Law Judge George J. Jordan will be held beginning at 9:30 a.m. PDT on August 12, 2019, at the Henry M. Jackson Federal Building, 915 Second Avenue, 4th Floor Auditorium, Seattle, WA 98174. Information related to the hearing and the Draft Environmental Impact Statement (DEIS), a complete list of references cited in this rulemaking, and background on the Makah Tribe’s waiver request will be available on the NMFS website at: https:// www.fisheries.noaa.gov/action/formalrulemaking-proposed-mmpa-waiverand-hunt-regulations-governing-graywhale-hunts-makah. 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: The following table of contents is intended as an aid to readers: I. List of Acronyms II. Background A. Relevant MMPA Provisions B. Whaling Convention Act C. North Pacific Gray Whales III. Proposed Regulations PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 A. Measures To Limit the Likelihood That Tribal Hunters Would Strike a WNP Whale B. Measures To Maintain PCFG Abundance by Limiting Lethal Impacts C. Additional Management Considerations 1. Use of Marine Mammal Products 2. Humane Killing 3. Approaches, Unsuccessful Strike Attempts, and Hunt Training Provisions 4. NMFS Oversight 5. Identification of Individual Gray Whales 6. Impacts to Species Other Than ENP Gray Whales IV. Consistency With MMPA Requirements A. The Proposed Waiver Is Consistent With the MMPA 1. The Proposed Waiver Is Based on the Best Scientific Evidence Available 2. The Proposed Waiver Was Made in Consultation With the MMC 3. The Proposed Waiver Demonstrates Due Regard for the Distribution, Abundance, Breeding Habits, and Times and Lines of Migratory Movements of ENP Gray Whales 4. NMFS Is Assured That the Proposed Waiver Is in Accord With the MMPA’s Purposes and Policies B. The Proposed Regulations are Consistent With the MMPA 1. The Proposed Regulations Are Based on the Best Scientific Evidence Available and Consultation With the Marine Mammal Commission 2. The Proposed Regulations Will Not Disadvantage the ENP Gray Whale Stock 3. The Proposed Regulations Are Consistent With the Purposes and Policies of the MMPA 4. We Have Fully Considered the Effects of the Proposed Regulations on the Statutory Factors C. The Proposed Waiver and Regulations Appropriately Manage Risk to WNP Gray Whales V. Required Statements Related to the Intention To Issue Regulations A. A Statement of the Estimated Existing Levels of the Species and Population Stocks of the Marine Mammal Concerned B. A Statement of the Expected Impact of the Proposed Regulations on the Optimum Sustainable Population of Such Species or Population Stock C. A Statement Describing the Evidence Before the Agency That Forms the Basis for the Regulations D. Any Studies or Recommendations Made By or For the Agency or the MMC That Relate to the Establishment of the Regulations VI. Classification I. List of Acronyms AWMP Aboriginal Whaling Management Plan CFR Code of Federal Regulations DEIS Draft Environmental Impact Statement ENP Eastern North Pacific ESA Endangered Species Act E.O. Executive Order ICRW International Convention for the Regulation of Whaling IWC International Whaling Commission K Carrying Capacity E:\FR\FM\05APP1.SGM 05APP1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS MMC Marine Mammal Commission MMPA Marine Mammal Protection Act NEPA National Environmental Policy Act NMFS National Marine Fisheries Service OSP Optimum Sustainable Population PBR Potential Biological Removal PCFG Pacific Coast Feeding Group SAR Stock Assessment Report U&A Usual and Accustomed Fishing Area (of the Makah Tribe) U.S.C. United States Code WCA Whaling Convention Act WNP Western North Pacific II. Background On February 14, 2005, the Makah Indian Tribe, consistent with its treaty right to hunt whales as defined in the 1855 Treaty of Neah Bay and with the International Convention for the Regulation of Whaling (ICRW), submitted a request seeking authorization under the MMPA for a whale hunt. The Tribe requested a waiver of the MMPA take moratorium to authorize a tribal hunt for ENP gray whales in the coastal portion of the Tribe’s U&A in northwest Washington State for ceremonial and subsistence purposes and to allow the making and sale of handicrafts. The Tribe submitted its 2005 request to the Assistant Administrator of NMFS, who delegated to the Northwest Region (now the West Coast Region) of NMFS authority to complete an analysis under the National Environmental Policy Act (NEPA) and make the initial waiver determination under the MMPA (NMFS, 2005; Makah Tribe, 2006). On May 9, 2008, we, the West Coast Region of NMFS, released a DEIS. We later terminated that DEIS because of new scientific information, published a notice of intent to prepare a new DEIS, and opened a scoping process (77 FR 29967, May 21, 2012). On March 13, 2015, we released a new DEIS (80 FR 13373). The Tribe’s request is included as an attachment to the DEIS. After full consideration of the detailed information found in the 2015 DEIS (NMFS, 2015), public comments on our NEPA analysis, consultation with the Marine Mammal Commission (MMC), and information obtained during our review of the Tribe’s request, we are proposing to issue a waiver and regulations that would authorize a limited Tribal hunt for ENP gray whales over a 10-year period. The proposed waiver and regulations also reflect our consultation with the Makah Tribe pursuant to Executive Order 13175 (see Section VI). A. Relevant MMPA Provisions The primary objective of marine resource management under the MMPA is to maintain the health and stability of VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 the marine ecosystem (16 U.S.C. 1361). The MMPA states that species and population stocks of marine mammals should not be permitted to diminish beyond the point at which they cease to be a significant functioning element of the ecosystem, and they should not be permitted to diminish below their optimum sustainable population (OSP). The MMPA defines the term ‘‘population stock’’ or ‘‘stock’’ as a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature (16 U.S.C. 1362(11)). OSP is defined in the MMPA and NMFS regulations as a population size that is within a range from the carrying capacity of the ecosystem (abbreviated as K) down to the number of animals that results in the maximum productivity of the population or the species. The MMPA requires NMFS (or the U.S. Fish and Wildlife Service) to prepare a stock assessment report (SAR) for each marine mammal stock occurring in waters under U.S. jurisdiction (16 U.S.C. 1386(a)). The SAR must, among other things, describe the stock’s geographic range, estimate its minimum abundance (Nmin) and productivity, estimate human-caused mortality, and estimate the potential biological removal (PBR) for the stock. In most cases, Nmin is the lower 20th percentile of the distribution of the most recent abundance estimate and is the value selected by Wade (1998) in developing the PBR methodology. The MMPA defines PBR as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its OSP and includes a formula for calculating PBR (16 U.S.C. 1362(20)). The MMPA establishes a moratorium on the taking and importing of marine mammals (16 U.S.C. 1371(a)). ‘‘Take’’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal (16 U.S.C. 1362(13)). The moratorium is not absolute. One exception allows NMFS to waive the take moratorium from time to time (16 U.S.C. 1371(a)(3)(A)), adopt suitable regulations governing that take (16 U.S.C. 1373), and issue permits authorizing the take (16 U.S.C. 1374), if certain criteria are met. The Makah Tribe has requested that NMFS waive the take moratorium and issue regulations allowing a tribal hunt for ENP gray whales and the making and sale of handicrafts. If a waiver is granted and regulations are promulgated, then the Tribe must separately seek an PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 13605 MMPA permit to implement a hunt (16 U.S.C. 1374). A decision to waive the MMPA take moratorium must: Be based on the best scientific evidence available; be made in consultation with the MMC; and have due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of the marine mammal stock subject to take. Also, in order to waive the moratorium, NMFS must be assured that the taking is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of the MMPA (which include maintaining marine mammals as a significant functioning element in the ecosystem of which they are a part, maintaining the health and stability of the marine ecosystem, and obtaining an optimum sustainable population keeping in mind the carrying capacity of the habitat) (16 U.S.C. 1371(a)(3)(A)). A decision to waive the take moratorium must be accompanied by regulations governing the take. Regulations to implement a waiver must ensure that the taking will not be to the disadvantage of the stock and will be consistent with the purposes and policies of the MMPA (16 U.S.C. 1373(a)). NMFS has interpreted ‘‘disadvantage’’ in relation to the impact of take on the stock’s OSP (e.g., 45 FR 72178, 72185, October 31, 1980). In prescribing regulations, NMFS must give full consideration to all factors that may affect the extent to which the stock may be taken, including but not limited to: Existing and future levels of marine mammal species and population 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 (in this case, fishery resources will not be affected); and the economic and technological feasibility of implementation (16 U.S.C. 1373(b)). The regulations may restrict, among other things, the number, age, size, and sex of animals taken and the season, manner, and location of the taking (16 U.S.C. 1373(c)). Regulations are subject to periodic review and modification to carry out the purposes of the MMPA (16 U.S.C. 1373(e)). The MMPA (16 U.S.C. 1373(d)) provides that an agency decision to waive the take moratorium and issue regulations governing the take of marine mammals must be made on the record after an opportunity for an agency hearing. Agency regulations govern the conduct of the agency hearing, call for the appointment of a presiding officer, E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 13606 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules and prescribe other procedures (50 CFR part 228). Either before or concurrent with the public notice of our intention to issue regulations, we must make available to the public: 1. A statement of the estimated existing levels of the species and population stocks of the marine mammal concerned; 2. A statement of the expected impact of the proposed regulations on the OSP of such species or population stock; 3. A statement describing the evidence before the agency that forms the basis for the regulations; and 4. Any studies made by or for the agency or any recommendations made by or for the agency or the MMC that relate to the establishment of the regulations. 16 U.S.C. 1373(d). These statements are provided in Section V below. If NMFS waives the MMPA take moratorium for ENP gray whales and issues regulations governing a tribal hunt, the Makah Tribe would have to obtain a permit from NMFS prior to taking any whales. The permit process includes the opportunity for public notice and comment (16 U.S.C. 1374). Under the MMPA, the permit applicant must demonstrate that the taking of marine mammals under the permit would be consistent with the purposes and policies of the MMPA and the applicable regulations. A permit must specify the following: 1. The number and kinds of animals authorized to be taken; 2. The location and manner (which the Secretary must determine to be humane) in which they may be taken; 3. The period during which the permit is valid; and 4. Other terms or conditions that the Secretary deems appropriate. The MMPA defines ‘‘humane’’ as that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved (16 U.S.C. 1362(4)). NMFS has worked within the IWC to improve the humaneness of whale-killing methods in aboriginal subsistence whaling, focusing on reducing the length of time to death of a whale (i.e., reducing the amount of time between the strike and the death) to improve humaneness (IWC, 2004; IWC, 2007; IWC, 2012) as well as to address hunting efficiency. The Makah Tribe proposed to use a toggle point harpoon as the weapon for striking whales and a .50 caliber rifle as the weapon for killing whales. The DEIS describes the detailed analyses commissioned by NMFS and others to examine the suitability of using a .50 caliber rifle to dispatch a gray whale and the conclusions of the reviewers VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 that a .50 caliber rifle is capable of quickly killing a gray whale (DEIS Subsection 3.4.3.5.4, Method of Killing and Time to Death). A determination regarding whether the Tribe’s proposed method of hunting is humane and meets the other requirements listed above for issuance of a permit would be decided through the permit process (16 U.S.C. 1374). The permit process is subsequent to and separate from the waiver process and therefore not part of this proceeding. The permit process is described here and discussed elsewhere in this proposed rule to provide context for the proposed regulations. In addition to a NMFS-issued permit, the Tribe would establish a separate process for the issuance of tribal whaling permits by the Makah Tribal Council (Makah Tribe, 2005; Makah Tribe, 2013). B. Whaling Convention Act Because the Tribe’s request involves a large whale species, the Tribe would need to obtain authorization from NMFS in accordance with the Whaling Convention Act (WCA), which implements the United States’ obligations under the ICRW. The ICRW establishes the International Whaling Commission (IWC), an intergovernmental organization whose purpose is the conservation of whales and the management of whaling. The ICRW includes a legally binding document called the ‘‘Schedule,’’ which, among other things, sets out catch limits for aboriginal subsistence whaling. Since 1997, the Russian Federation and the United States have regularly submitted a joint proposal to the IWC for an aboriginal subsistence whaling catch limit for ENP gray whales on behalf of Chukotkan natives and the Makah Tribe, respectively. In response, the IWC has repeatedly established catch limits for ENP gray whales. At its September 2018 meeting, the IWC approved a new catch limit of 980 ENP gray whales for the period 2019–2025 with an annual cap of 140 whales. This catch limit became effective December 29, 2018 (IWC, 2018a). A bilateral agreement between the United States and Russian Federation sets overall and annual limits for the two countries (Fominykh and Wulff, 2018), with the Makah Tribe entitled to a maximum of 5 whales per year. This agreement also specifies that any quota unused by one country may be transferred to the other. In past years, the United States has transferred its entire quota to Russia for use by the Chukotkan hunters (e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and DeMaster, 2012; PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 Fominykh and Smith, 2016; Fominykh and Wulff, 2017). If NMFS waives the MMPA take moratorium for ENP gray whales and issues regulations governing a tribal hunt, the Makah Tribe and NMFS would need to complete procedures established in the WCA and implementing regulations at 50 CFR part 230 to allocate a domestic catch limit for ENP gray whales to the Makah Tribe consistent with the IWC Schedule and the bilateral agreement. This would include publishing those catch limits and entering into a cooperative agreement with the Tribe. Those processes are subsequent to and separate from the MMPA process of waiving the take moratorium and issuing regulations. C. North Pacific Gray Whales The life history, status, and distribution of North Pacific gray whales are described in detail in the DEIS (Subsection 3.4, Gray Whales). We summarize that information here and discuss the ENP gray whale stock in more detail in a companion biological report (NMFS, 2019a), which we incorporate by reference. NMFS recognizes two stocks of gray whales, one from the western North Pacific (WNP stock) and one from the eastern North Pacific (ENP stock). Through the SAR process, NMFS concluded that the best scientific information available consists of genetic information showing significant mitochondrial and nuclear genetic differences between the WNP and ENP stocks (Carretta et al., 2017). The IWC also manages the two stocks separately (IWC, 2018a), and the International Union for Conservation of Nature recognizes them as two subpopulations (Reilly et al., 2008). Commercial whaling from the midnineteenth through early twentieth centuries dramatically reduced the abundance of the gray whale, leading to its protection by a suite of international agreements and federal laws including the WCA and MMPA. The gray whale was listed as an endangered species under the Endangered Species Act (ESA) and its predecessor statute beginning in 1970 (35 FR 8495, June 2, 1970). As a result of protection from commercial exploitation, the ENP gray whale stock recovered and in 1994 was removed from the ESA’s list of endangered and threatened wildlife (59 FR 21094, June 16, 1994). It currently numbers approximately 27,000 animals (Durban et al., 2017). NMFS has continued monitoring the population since its delisting (Carretta et al., 2017). The WNP stock remains listed as E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules endangered (50 CFR 223.102) and numbers approximately 200 non-calf animals (Cooke, 2018). The ENP gray whale stock spends the winter as far south as the Baja California Peninsula and Gulf of California in northwestern Mexico and migrates north to summer feeding areas as far as the Chukchi and Beaufort Seas. A small group of ENP whales, referred to as the Pacific Coast Feeding Group (PCFG) exhibits seasonal fidelity to feeding grounds off the West Coast of the United States and Canada. Whales that are photo-identified within the region between northern California and northern Vancouver Island (from 41°N lat. to 52°N lat.) during the summer feeding period of June 1 to November 30, in two or more years, are defined by the IWC as belonging to the PCFG (IWC, 2011a; IWC, 2011b; IWC, 2011c). NMFS has adopted this definition (Carretta et al., 2017). Scientists have studied the PCFG for several decades, and NMFS has monitored the PCFG for more than 15 years. The size of the group has remained relatively stable at about 200 animals since 2002 and is recently increasing (Calambokidis et al., 2017). NMFS scientists and others have examined genetic and other information to determine whether the PCFG should be considered a separate stock under the MMPA (Frasier et al., 2011; Lang et al., 2011b). They found that sampled whales that meet the definition of the PCFG have small but significant differences in the diversity of mitochondrial DNA (mtDNA), which is inherited only from the mother, compared to whales on the northern feeding grounds of the Bering, Chukchi, and Beaufort Seas. However, no significant differences were found between these two groups when nuclear microsatellite data, which represent the DNA inherited from both parents, were analyzed. Similar results were found by other researchers (D’Intino et al., 2013) despite different sample collections used to represent the PCFG and the larger ENP stock. These results indicate that calves likely follow their mothers to feeding areas and to some extent return to those feeding areas in subsequent years. Whales that frequent one feeding area, however, are not necessarily reproductively isolated from whales that frequent other feeding areas. NMFS considered whether the PCFG warrants designation as a stock under the MMPA through the SAR process. NMFS has issued several SARs addressing this issue (78 FR 19446, April 1, 2013; 79 FR 49053, August 19, 2014; 80 FR 50599, August 20, 2015). NMFS continues to find that the VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 existing information does not support a conclusion that the PCFG is a stock. This finding is based in part on the deliberations of a NMFS task force that found the evidence equivocal as to whether the population dynamics of the PCFG are more a product of internal recruitment (calves coming to the area with mothers) versus external recruitment (whales recruiting to the area who are not calves of PCFG mothers) (Weller et al. 2013). The current SAR (Carretta et al., 2017) represents NMFS’ determination on this issue, although NMFS will continue to evaluate through the SAR process any new science on this issue as it does for the identification of marine mammal stocks in general. Accordingly, this waiver process applies at the level of the ENP gray whale stock as a whole (which includes whales in the PCFG). In the 2012 SAR, NMFS determined that the ENP gray whale stock was within its OSP range (Carretta et al., 2013). It has remained within OSP since that time. The most recent ENP gray whale SAR notes that abundance will continue to fluctuate in response to human and natural factors affecting carrying capacity, consistent with a population approaching carrying capacity (K) (Carretta et al., 2017). The SAR calculates the PBR for the ENP gray whale stock to be 624 whales per year (Carretta et al., 2017). The primary source of human-caused mortality is the Chukotkan hunt, which took 127 whales per year on average from 2008 to 2012 (Carretta et al., 2017). Other sources of human-caused mortality in U.S. waters, such as ship strikes and entanglement in fishing gear, result in about 6 ENP gray whale deaths per year. The SAR does not calculate a separate PBR for ENP gray whales in U.S. waters, or report on human-caused mortality outside of U.S. waters except for ENP gray whales killed in the Chukotkan hunt. NMFS guidance on preparing stock assessments (NMFS, 2016) advises calculating a PBR for U.S. waters for transboundary stocks when there is no international conservation regime in place and it is reasonable to do so. Although NMFS does not recognize the PCFG as a separate stock, the 2012 SAR (Carretta et al., 2013) and subsequent SARs have reported on population parameters and calculated an informational PBR for the PCFG, because the PCFG appears to be a feeding aggregation and may warrant consideration as a stock in the future. The term ‘‘feeding aggregation’’ is used by biologists in the scientific literature to describe concentrations of whales that forage in a specific area but the term is not intended to signify that such PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 13607 whales constitute a stock as that term is defined under the MMPA. The SAR notes that calculating this separate PBR allows NMFS to assess whether levels of human-caused mortality are a management concern for this group. (The SAR uses the term ‘‘local depletion,’’ which is not defined in agency regulations or guidelines, so we have not adopted that concept here.) It is unknown whether the PCFG, if it were eventually designated a stock, would be within OSP due to uncertainties in population parameters such as emigration and immigration rates, bycatch mortality, and recruitment (Punt and Moore, 2013). The most recent (2015) abundance estimate of PCFG whales (Calambokidis et al., 2017) is 243 whales with an Nmin of 228. Calambokidis et al. (2017) note that PCFG abundance estimates show a high rate of increase in the late 1990s and early 2000s and now appear to be relatively stable since 2002. The most recent SAR (Carretta et al., 2017) reports human-caused mortality of PCFG whales in U.S. waters as 0.25 whales per year, based on data from 2008 through 2012. As with most SARs, this is a minimum estimate because not all whales killed as a result of human actions are documented. Similar to the analysis for the entire ENP stock, the SAR does not calculate a separate informational PBR for PCFG whales in U.S. waters, or report on human-caused mortality outside of U.S. waters. Concerns for ENP gray whales identified in the SAR include injuries due to fisheries interactions, ship strikes, and marine debris, as well as a number of habitat concerns such as industrialization, pollution, and shipping congestion throughout the nearshore migratory corridors. Climate change is likely to affect the availability of habitat and prey species, but species such as the gray whale (which feed on both benthic and pelagic prey) have been predicted in some studies (e.g., Bluhm and Gradinger, 2008) to adapt better than trophic specialists. Human exploration and development activities (e.g., for oil and gas deposits) are also expected to increase in the Arctic and elsewhere, which in turn could increase risks to whales from spills, ship strikes, and anthropogenic noise. The SAR does not indicate that these factors are a threat to the OSP status of the ENP stock at this time. III. Proposed Regulations The Tribe has requested a waiver allowing the harvest of 20 ENP gray whales every 5 years and a limit of 7 strikes per hunting season, with the presumption that a struck whale would E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 13608 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules die. The Tribe proposes hunting only in the coastal portion of their U&A. Its request included provisions to satisfy IWC requirements, avoid local depletion of PCFG whales, safeguard public and hunter safety, and preserve cultural aspects of the hunt while promoting humaneness. The Tribe is also requesting authorization to use nonedible whale products for the making and sale of handicrafts. Our proposed waiver and regulations respond to the Tribe’s request by authorizing a more limited hunt for ENP gray whales for a 10-year period and allowing for the making and sale of handicrafts. Our proposed regulations adopt the Tribe’s proposals to limit hunting to the coastal portion of the Tribe’s U&A (the hunt area) and to presume that any struck whale will die. Two key management goals shaped many of the provisions in the proposed regulations: (1) Limiting the likelihood that tribal hunters would strike or otherwise harm a WNP gray whale and (2) ensuring that hunting does not reduce PCFG abundance below recent stable levels. Regarding the first management goal, in adopting regulations to implement a waiver, NMFS must consider all factors that may affect the allowable level of take (16 U.S.C. 1373(b)). Although the Tribe has not requested a waiver of the take moratorium for WNP gray whales, we determined that potential effects of a hunt on WNP whales are a relevant consideration. While uncommon, there are documented occurrences of WNP whales transiting the Makah U&A, and hunters would not be able to visually distinguish WNP whales from ENP whales during a hunt. The regulations are designed to minimize the risk of a WNP whale being struck or harmed over the duration of the waiver. Regarding the second management goal, the MMPA requires that in waiving the take moratorium we give due regard to, among other things, the distribution and times and lines of migratory movements of the stock subject to waiver, and that the waiver be in accord with the purposes and policies of the MMPA, which include maintaining marine mammals as a functioning element of their ecosystem. PCFG whales exhibit site fidelity during the feeding season to the northern California current ecosystem, a unique area within the range of the ENP gray whale stock. The proposed regulations would limit lethal and sub-lethal effects to PCFG whales to ensure that hunting does not reduce their abundance and distribution within the PCFG range. VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 Measures in the proposed regulations to achieve these two management goals include: • Alternating Hunt Seasons. Evenyear hunts would occur during the migration season (December 1 of an odd-numbered year through May 31 of the subsequent even-numbered year) to reduce risk to PCFG whales. Odd-year hunts would occur during the feeding season (July 1 through October 30 of odd-numbered years) to reduce risk to WNP whales. • Strike Limits. 3 strikes during evenyear hunts and 2 strikes during odd-year hunts. • PCFG Strike Limits. 16 strikes over 10 years. • Landing Limits. 3 whales in evenyear hunts and 1 whale in odd-year hunts. • PCFG Abundance Trigger. Hunting ceases if PCFG abundance falls below 192 whales (or the PCFG minimum abundance estimate falls below 171 whales). Other management measures in the proposed regulations are described in Subsection III(C) below. A. Measures To Limit the Likelihood That Tribal Hunters Would Strike a WNP Whale The Tribe originally proposed a hunting season of December 1 through May 31, when most ENP gray whales are migrating to and from northern feeding grounds (the migration season), to minimize the potential that a PCFG whale would be killed. Scientists subsequently observed WNP whales in the ENP, including in the Tribe’s U&A, during the migration season (Mate et al., 2015). Although the risk is very small (there are about 200 WNP whales and about 27,000 ENP whales), this creates the possibility that a tribal hunt at that time could strike a WNP whale that is mixed in with ENP whales. To limit the risk of a WNP whale being struck, the proposed regulations would authorize a hunt during the migration season with two important restrictions: (1) Hunting would only be allowed every other year, proposed for even years, and (2) only three whales could be struck in an evenyear hunt. The proposed regulations would also authorize a hunt in odd years during the feeding season (July 1 through October 31), when WNP whales would be feeding in the western North Pacific. Because WNP whales are not expected to be in the Tribe’s U&A during the feeding season, authorizing a hunt at this time would avoid impacts to WNP whales. During an even-year hunt, the regulations would allow only one strike in a 24-hour period as a precaution PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 against striking multiple WNP gray whales that might be travelling together in a group (Weller et al., 2012). Also, once a whale were landed, the Tribe could not hunt again until NMFS notified the Tribe whether the landed whale was a WNP whale. In the unlikely event the Tribe did strike a WNP whale (in either an even- or odd-year hunt), all hunting would cease unless and until the Regional Administrator determined that measures were taken to ensure that no additional WNP gray whales were struck during the waiver period. In addition to limits on strikes, the regulations would impose limits on approaches, hunt training activities, and unsuccessful strike attempts, as explained in Subsection III(C) below. Finally, the regulations would not allow hunting in the month preceding and the month following the migration season (i.e., November and June) to provide extra protection against striking or otherwise harming a WNP whale. B. Measures To Maintain PCFG Abundance by Limiting Lethal Impacts The proposed regulations contain a number of restrictions to limit PCFG mortality, with the goal of maintaining ENP gray whale distribution and functioning within the PCFG feeding area. Consistent with the Tribe’s proposal, the regulations would prohibit hunting in the portion of the Tribe’s U&A within the Strait of Juan de Fuca, in part as a human safety measure, but also because during the migration season there is a higher proportion of PCFG whales in the Strait. Also, the regulations would allow only 2-strikes during odd-year (summer/fall) hunts, when PCFG whales are most likely to be present in the hunt area. As an additional protection, the regulations would impose a limit of one landed whale in odd-year hunts, creating the potential for a single strike. The proposed regulations would include a cumulative limit of 16 strikes on PCFG whales over the 10 years of the regulations (for an average of 1.6 whales per year), of which no more than 8 could be females. The strike limit for PCFG females is a precautionary measure given recent evidence that PCFG whales may be recruited through maternally directed site fidelity (Frasier et al., 2011; Lang et al., 2011b). The regulations would also limit approaches, training activities, and unsuccessful strike attempts on PCFG whales, as discussed in Subsection III(C) below, to minimize the risk that the hunt would cause PCFG whales to avoid the PCFG feeding area. Under the proposed regulations, strikes and unsuccessful strike attempts E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules would be counted against the PCFG strike limits in various ways depending on the season and whether the whale’s identity (PCFG or non-PCFG) could be determined through photographic or genetic matching. The regulations propose that any whale struck (landed or struck and lost) during odd-year (summer/fall) hunts would count as a PCFG whale, unless identified as a WNP gray whale. This method of accounting is conservative, as PCFG whales are currently estimated to comprise about 48 percent of gray whales in the hunt area during this time (Calambokidis et al., 2017). During even-year (winter/ spring) hunts, a struck whale identified as a PCFG whale would be counted against the PCFG strike limit, while a whale not identified as PCFG would not count against that limit. Struck whales for which identification could not be performed due to lack of a useable photograph or tissue sample would be counted in proportion to the estimated percentage of PCFG whales in the hunt area during the month of the strike, based on the best available information (the current estimate is that about 28 percent of whales in the hunt area during the migration season are PCFG whales (IWC, 2018b)). Females are currently estimated to comprise 50 percent of the PCFG (A. Lang, NMFS, personal communication, 2017), which would be factored into the accounting for struck and lost whales if the animal’s sex was unknown. Finally, in addition to these limits, the proposed regulations would not allow hunting in a given year if the estimated PCFG abundance for that year were below 192 whales or the Nmin were below 171 whales (low abundance triggers). The purpose of this additional measure is to ensure that, in the event PCFG abundance declines, for whatever reason, the hunt would not exacerbate the decline. Given that recent PCFG abundance estimates are around 240 whales with an overall increasing trend and the proposed strike limits would result in PCFG mortality of 1.6 whales per year on average, a reduction on this scale would likely be due to some cause unrelated to the hunt. Because published population estimates typically lag one or more years behind the most currently available survey data, estimates for an upcoming hunting season would be projected using a population forecast model fit to the time series of data. The threshold values of 192 and 171 represent the best and minimum (20th percentile) estimates of abundance for the PCFG in 2007. We selected these levels as the lowabundance triggers because they are the VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 lowest values estimated for the population during the recent period of stability starting in 2002 (Calambokidis et al., 2017). The Tribe’s request, as well as some of the DEIS alternatives, used PBR-based approaches to manage impacts on PCFG whales instead of the combination of PCFG strike limits and low-abundance triggers that we are now proposing. After considering the best available scientific information, including the Tribe’s proposal, public and MMC comments on the DEIS, and recommendations from the MMC, we chose the current approach for a number of reasons. First, some public comments and the MMC suggested that a PBR approach should account for total human-caused mortality, including deaths and serious injuries that occur outside U.S. waters. As noted above, the SAR for ENP gray whales (Carretta et al., 2017) calculates an informational PBR overall for the PCFG, not an allocation of PBR for U.S. waters, and reports only human-caused mortality in U.S. waters. Though future SARs might attempt such estimates, we currently lack sufficient information to do so. Second, the PBR approach establishes a precautionary way (use of PBR achieves the abundance goals in 95 percent of model runs) to manage marine mammal stocks for which relatively little population data exist, such as imprecise and infrequent abundance estimates or little information on trends and productivity, as is often the case for cetaceans and other marine mammals (Taylor et al., 2000; Wade, 1998). For the PCFG, population dynamics are well understood (for example population size and growth are measured accurately and frequently), allowing us to make informed management decisions using other tools. Over 20 years of annual photo-identification surveys have been conducted for the PCFG, yielding relatively precise abundance estimates compared to other cetacean populations. These estimates allow us to employ the population forecast model mentioned above to assist in making more timely decisions for managing PCFG mortality (NMFS, 2019a). This approach is appropriate for the PCFG, where population information is readily available and abundance has been stable over a period of nearly 15 years. Third, the PBR approach was developed for ‘‘closed’’ populations, where the maximum rate of recruitment is determined in part by the number of births that are biologically possible. In the case of the PCFG, new recruits come from immigration as well as births, and whales leave the population by PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 13609 emigration as well as death. While the informational PBR in the SAR represents a useful tool for the agency to monitor the stability of the PCFG, it may not reflect actual population dynamics because recruitment for an open population is not limited by reproductive biology. Given these considerations, we concluded that reliance on the informational PCFG PBR was not the best available tool for managing the proposed hunt and that the PCFG strike limits and lowabundance triggers would provide a more robust and timely mechanism for achieving our management goal of maintaining PCFG abundance. C. Additional Management Considerations In addition to the management goals stated above, the management considerations described below informed our proposed waiver and regulations. 1. Use of Marine Mammal Products The proposed regulations would allow the Makah Tribe to use edible and nonedible ENP gray whale products with certain restrictions. Tribal members would be able to use, share or gift (i.e., voluntarily transfer to another person without compensation), and barter (i.e., noncommercial exchange for items other than money) edible whale products with other members, both within and outside the reservation. Tribal members could also share edible products with non-members within the reservation, but could only share them with non-members outside the reservation as part of a gathering sanctioned by the tribal council where limited quantities were served. This would allow Makah tribal members wide use of edible products within the reservation, including sharing with nontribal members. Limitations on use outside the reservation are intended to prevent opportunities for commercial exchange. No person would be allowed to sell or purchase edible ENP gray whale products. For non-edible products, permissible uses would depend on the type and location (on or off the reservation) of the product. The regulations identify three types of non-edible products: Unaltered products (those that have not been fashioned into handicrafts), handicrafts that have been marked and certificated by the Tribe, and handicrafts that have not been marked and certificated. Only handicrafts made by tribal members and marked and certificated by the Tribe could be sold or be possessed offreservation by non-tribal members. The regulations would allow tribal members E:\FR\FM\05APP1.SGM 05APP1 13610 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS to freely exchange unaltered products with one another for personal use or for later fabrication into handicrafts and would allow tribal members to share their handicrafts with non-members without going through the marking and certification process, however possession of non-certificated handicrafts by non-tribal members would be allowed only within the reservation boundaries. To ensure compliance with these provisions, the Tribe would be required to maintain an official record of all articles of Makah Indian handicraft certificated by the Tribe. Some of the proposed definitions and concepts regarding the use of marine mammal products are similar to those governing the take of marine mammals by Alaska Natives. For example, the definition for barter is consistent with agency regulations at 50 CFR 216.3 pertaining to subsistence use of marine mammals by Alaskan Natives, and the definition for Makah Indian handicrafts is largely based on the agency’s definition of authentic native articles of handicrafts in 50 CFR 216.3. Additionally, similar to regulations in 50 CFR 216.23 on Alaska Native exceptions to the marine mammal take moratorium, the proposed regulations provide for different uses of edible and non-edible products, and restrict the location and types of transactions that may occur. 2. Humane Killing As explained in Section II, if NMFS issues a waiver and regulations allowing a tribal hunt, the Tribe would be required to follow a separate MMPA process to obtain a permit before carrying out a hunt (16 U.S.C. 1374). Prior to issuing any MMPA permit, NMFS must determine, among other things, that the proposed method of taking is ‘‘humane,’’ as defined in the MMPA (16 U.S.C. 1362(4), 1374(b)). To ensure that advances in science and methodology addressing efficiency and humaneness are incorporated in a timely fashion, NMFS would regularly review this issue through the permit process. The proposed regulations provide that NMFS will convene a team of experts to evaluate hunt humaneness and effectiveness after 8 gray whales have been struck, to inform any subsequent hunt permits. 3. Approaches, Unsuccessful Strike Attempts, and Hunt Training Provisions Recognizing that actions by tribal hunters short of killing a gray whale may affect whales and may constitute a take under the MMPA, the proposed regulations would limit the number of VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 approaches and unsuccessful strike attempts, including those associated with hunt training. The regulations define a ‘‘hunting approach’’ as causing a vessel to be within 100 yards of a gray whale during a hunt. The 100-yard limit is consistent with permit conditions NMFS imposes for research vessels on large cetaceans (e.g., 60 FR 3775, January 19, 1995; 66 FR 29502, May 31, 2001), as well as guidelines for all motorized and non-motorized vessels as defined in NMFS’ ‘‘Be Whale Wise’’ guidelines that recommend staying 100 yards (91 m) from all marine mammals, noting that there is a regulation prohibiting approaches closer than 200 yards (183 m) for killer whales in inland waters of Washington (50 CFR 224.103(e)). The regulations would authorize no more than 353 approaches of ENP gray whales (including both hunting and training approaches) each calendar year, of which no more than 142 could be of PCFG whales. As with strikes, approaches would be accounted for proportionally in even-year (winter/ spring) hunts and presumed to all be PCFG whales in odd-year (summer/fall) hunts. These values were analyzed in the DEIS and are maximum estimates based on observations during the Tribe’s hunt in 2000 (Gearin and Gosho, 2000). The purpose of this provision is to limit the extent to which WNP and PCFG whales may be encountered and possibly disturbed in the hunt area. The proposed regulations would authorize no more than 18 unsuccessful strike attempts during even-year hunts and 12 unsuccessful strike attempts during odd-year hunts. These limits are based on experience gained from Makah gray whale hunts conducted in 1999 and 2000 and, as described in the DEIS, rely on a 6:1 ratio of unsuccessful strike attempts to successful strikes. Each training harpoon throw would count as an unsuccessful strike attempt because the level of impact on whales is expected to be similar. Training harpoon throws could occur in any month in even-numbered years but would be restricted to the hunting season (July through October, when WNP whales are not expected in the hunt area) in odd-numbered years to reduce the risk of encountering WNP whales over the waiver period. All training harpoon throws would count against the unsuccessful strike attempt limit in effect during the calendar year of the throw. Similar to the limit on approaches, the purpose of these provisions is to limit the risk of nonlethal impacts, particularly to WNP and PCFG whales. PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 The proposed regulations recognize training as an important component of the management of a tribal hunt. The proposed regulations define training vessels as those not carrying hunting weapons; training approaches as those made by training vessels; and a training harpoon throw as the use of a blunted spear incapable of penetrating a whale’s skin. The proposed regulations would authorize training approaches at any time but would limit the times when training harpoon throws could occur as described above. 4. NMFS Oversight Although we expect the Makah tribal government to manage any hunting by tribal members, the proposed regulations anticipate an ongoing oversight role by NMFS through the Regional Administrator for the West Coast Region. The regulations include a number of provisions that facilitate NMFS’ oversight. For example, the Tribe must provide NMFS advance notice of hunts; hunt parties must accommodate a NMFS observer on hunt expeditions if requested; and the Tribe must allow NMFS to sample and photograph landed whales. The first hunt permit must be limited to a 3-year term (as opposed to the 5-year maximum under the MMPA) to allow for adjustments in future years if areas for improvement are identified. 5. Identification of Individual Gray Whales The regulations include provisions for photographic (or genetic) identification of WNP and PCFG gray whales. For PCFG whales, we expect most identifications would be performed by the Cascadia Research Collective (Cascadia), which has maintained photo-identification catalogs for many years. Cascadia receives some but not all of its catalog funding for gray whales from NMFS. Several researchers participate in Cascadia’s photoidentification program and provide photographs to Cascadia. Photographs taken by researchers under NMFS funding are also provided to the NMFS Marine Mammal Lab in Seattle, Washington. For WNP gray whales, there are currently two catalogs maintained by Russian researchers. The IWC is currently facilitating the development of a unified WNP catalog and related database to be held under the auspices of the IWC (IWC, 2017). Once developed, we expect that Cascadia will have access to this unified catalog and be able to provide identifications of WNP gray whales to NMFS via a contractual agreement. E:\FR\FM\05APP1.SGM 05APP1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules To ensure that the photo-ID requirements can be effectively implemented, the regulations would require that, before issuing a hunt permit to the Tribe, the Regional Administrator determine that there are adequate photo-identification catalogs and processes available to allow for the identification of PCFG and WNP whales. In addition to the quality of the catalogs, there must be reliable processes in place for making identifications. Currently Cascadia provides this service for the PCFG catalog and has demonstrated an ability to make matches within 24 hours (J. Calambokidis, Cascadia Research Collective, personal communication, 2017). As with the PCFG catalog, Cascadia and curators of the WNP catalogs are able to rapidly compare newly obtained photographs of whales with existing photographs in the WNP catalogs to look for individual matches (J. Calambokidis, Cascadia Research Collective, and Dave Weller, NMFS, personal communication 2019). NMFS will either develop a contractual mechanism or in-house expertise prior to issuing permits to ensure adequate catalogs for PCFG and WNP whales are maintained and matches can be quickly made. Also, we have developed a protocol that describes the requirements for adequate catalogs and for photo and genetic identification processes (NMFS, 2019b). khammond on DSKBBV9HB2PROD with PROPOSALS 6. Impacts to Species Other Than ENP Gray Whales Under the proposed regulations, any hunt permit issued by the Regional Administrator could require that hunters avoid specified areas to prevent and/or reduce the risk of disturbance to Olympic Coast National Marine Sanctuary resources such as seabirds and pinnipeds. This provision is intended to protect other living resources in the hunt area. Also, if a hunt for ENP gray whales is expected to result in the incidental take of other marine mammals, the regulations require that the Tribe obtain separate MMPA authorizations for such take, as determined necessary by the Regional Administrator, before a hunt permit may be issued. IV. Consistency With MMPA Requirements Relying on the best available scientific evidence and the statutory factors related to gray whale biology and ecosystem considerations, this section presents our determination that the proposed waiver and the proposed regulations are consistent with MMPA requirements. VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 A. The Proposed Waiver Is Consistent With the MMPA As discussed above, the MMPA requires that any decision to waive the MMPA take moratorium be based on the best scientific evidence available; be made in consultation with the MMC; and have due regard to the distribution, abundance, breeding habits, and migratory movements of the marine mammal stock subject to take. Also, we must be assured that the taking is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of the MMPA (16 U.S.C. 1361, 1371(a)(3)(A)). 1. The Proposed Waiver Is Based on the Best Scientific Evidence Available In developing the proposed waiver, we relied on the best available scientific evidence related to the statutory requirements, including the following: the most recent SARs for ENP and WNP gray whales (Carretta et al., 2017); the 2015 DEIS (NMFS, 2015); the NMFS gray whale stock identification workshop (Weller et al., 2013); the NMFS analysis estimating the probability of encountering WNP gray whales during a Makah hunt (Moore and Weller, 2018); IWC modeling of our proposed regulations relative to IWC conservation objectives for North Pacific gray whales (IWC, 2018b); and the NMFS biological report (NMFS, 2019a). We incorporate by reference those documents and the documents cited in those reports. 2. The Proposed Waiver Was Made in Consultation With the MMC Subsection V(D) describes the consultation we completed with the MMC. 3. The Proposed Waiver Demonstrates Due Regard for the Distribution, Abundance, Breeding Habits, and Times and Lines of Migratory Movements of ENP Gray Whales The biological report (NMFS, 2019a) provides a detailed description of our consideration of the distribution, abundance, breeding habits, and migration of ENP gray whales. Below we summarize our assessment of those criteria. Distribution The proposed waiver is unlikely to have an appreciable effect on the distribution of ENP gray whales through mortality of PCFG whales or disturbance of migrating whales or feeding whales. The proposed waiver and regulations demonstrate due regard for the possibility that hunting could result in PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 13611 changes in distribution by including provisions limiting mortality of PCFG whales and limiting interactions with ENP whales in general and PCFG whales in particular. No more than 25 whales could be struck, and only 16 of the strikes could be PCFG whales (average 1.6/year), with a limit of 8 strikes (average 0.8/year) of PCFG females. Unsuccessful strike attempts would be limited to 18 during even-year hunts and 12 in odd-year hunts, and approaches within 100 yards would be limited to 353 (142 PCFG) per year. In addition, the PCFG low abundance triggers would require that hunting cease if PCFG abundance declined below recent stable levels. Through hunt-related mortality, the proposed waiver may reduce the abundance of PCFG whales by up to 16 whales over a 10-year period. The proposed waiver demonstrates due regard for this possibility by including provisions to maintain PCFG abundance. We conclude that these measures will ensure that the waiver does not reduce range-wide distribution of the ENP stock, including distribution within the PCFG range, based on the following considerations: (1) Agency modeling indicates that the PCFG is likely to grow in the future with or without a tribal hunt (NMFS 2018a). The proposed regulations include protections in the event the PCFG declines rather than increases; (2) If PCFG abundance continues to be stable, removal by hunting of 16 PCFG whales over 10 years is projected to result in an abundance of around 227 whales, which is well above the lowest abundance level observed during the recent period of stability. That level was 192 whales in 2007, and by 2015 the population had grown 25 percent to 243 animals; (3) From 2002 through 2015, the PCFG grew from 197 to 243 animals, which is a total of 46 whales, or an average annual increase of 3.5 whales over 13 years. At that rate of increase, the PCFG would grow by an additional 35 animals over the 10 years of the proposed waiver. That number is twice the maximum number of PCFG whales that could be killed (16) under the proposed regulations; and (4) If PCFG abundance declines, the low abundance trigger would ensure that no hunting will occur if abundance falls below the levels observed during a recent 14-year stable period, specifically 192 animals or an Nmin of 171 animals. Also, the inclusion of an Nmin trigger provides a safeguard against incomplete or lagging abundance estimates. Though hunt-related activities might cause ENP gray whales to alter their distribution in the hunt area E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 13612 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules temporarily, it is unlikely that ENP gray whales will exhibit noticeable redistribution during either the migration or feeding seasons. Even-year hunts and training exercises conducted from December through May would encounter mostly migrating whales that must pass through the ocean portion of the Makah U&A during their lengthy north- and southbound transits. These whales are slow but steady swimmers that often exhibit directed swimming and predictable breathing and dive patterns (Jones and Swartz, 2002). Whales travelling at 3–6 miles per hour (5–10 km per hour; Jones and Swartz, 2002) would be able to transit the widest portion of the Makah U&A (approximately 32 miles or 51 km northsouth) in several hours. During migration, gray whales generally remain close to shore (especially where the continental shelf is narrow) and the best available information indicates that most northbound and southbound whales migrate within 27 miles (43 km) of shore (Pike, 1962; Green et al., 1992; Green et al., 1995). Some researchers have suggested that gray whales alter their migration distance from shore in response to vessels and other human activity (Rice, 1965; Hubbs and Hubbs, 1967; Wolfson, 1977; Schulberg et al., 1989; Mate and Urba´n-Ramirez, 2003), however the ENP population has also demonstrated a tolerance and resiliency to decades of active hunting by Chukotkan natives (Borodin et al., 2012; IWC, 2016). During even-year hunts, adverse weather conditions in the Makah U&A in winter and early spring coupled with shorter periods of daylight would keep most hunts and training exercises close to shore and of shorter duration than during the summer. There would be only a few vessels associated with the hunt (generally 5 or less). Chukotkan hunters typically use a similar number of motorized vessels to pursue individual whales (IWC, 2018c). Since the 1950s, Chukotkan hunters have landed, on average, over 100 ENP gray whales per year (Borodin et al., 2012), and an average of 126 whales per year during the past decade (IWC, 2016). During that decade the majority of whales have consistently been killed in the Chukotsky region with no apparent change in the distance offshore that whales are killed (IWC, 2016). Given these considerations, it is reasonable to expect that most of the roughly 27,000 ENP whales would be subject to little or no hunting pressure in the Makah U&A. Those animals subject to hunting and hunt training activities would experience them as temporary and VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 localized nearshore events within the vast area of the Pacific Ocean. We therefore expect that whales traveling through the Makah U&A during the migration season will not change their migration patterns and avoid the area. Odd-year hunts during July through October would likely encounter whales exhibiting feeding behavior, including milling in small, localized areas close to shore and typically within 3 miles (5 km) of shore (Brueggeman et al., 1992; Darling, 1984; Sumich, 1984; Mallone´e, 1991; Dunham and Duffus, 2001; Scordino et al., 2011). Some animals have been seen clustering relatively far offshore (12–16 miles or 19–26 km) but these sightings are considered unusual (Calambokidis et al., 2009). During summer hunts and training exercises most whales would be found in the PCFG range from northern California to northern Vancouver Island, within which the Makah U&A is a relatively small portion (less than 5 percent of the coastline in the PCFG range). Whales are known to focus on specific areas within this range but also move extensively in search of food (Calambokidis et al., 1999; Calambokidis et al., 2004; Calambokidis et al., 2014). Odd-year hunts would result in fewer whales being struck (1 or 2 per year) than in even-year hunts (up to 3 per year). As noted above, despite hundreds of whales being hunted and killed in Chukotkan hunts (many of which are killed during the summer months) there has not been a discernible change in the availability and location of hunted whales (IWC, 2016). The proposed waiver allows for over 350 approaches of gray whales each year, most of these approaches would likely involve paddle-driven canoes that, compared to the motorized vessels used in Chukotkan hunts, have much less speed and maneuverability to pursue and maintain close contact with approached whales. This is a very small number of approaches compared with what NMFS authorizes for research permits. Activities that employ vessel approaches on large whales are regularly reviewed by NMFS under the MMPA. When issuing permits under the MMPA, NMFS generally limits the number of approaches within defined distances (typically 100 yards or less for large cetaceans) because of the potential for such approaches within those limits to affect or disrupt whale behavior. For example, NMFS Permit #15569 for ENP gray whales (77 FR 35657, June 14, 2012) authorized 5,000 approaches of gray whales over the course of 5 years. While this is a large number of authorized approaches, the NEPA analysis prepared for that permit found PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 that approaches during research have not been shown to result in long-term or permanent adverse effects on individual animals or their behavior regardless of the number of times the activity occurs because the frequency and duration of the activities allows adequate time for animals to recover from any potential adverse effects such that additive or cumulative effects of the action on its own are not expected. That analysis further notes that no measurable effects on population demographics are anticipated because any sub-lethal effects are expected to be short-term, and the proposed action is not expected to result in mortality of any animals. Given these considerations, we expect that animals exposed to approaches and hunt training activities within the Makah U&A would experience the encounter as a temporary and localized nearshore event that would be insufficient to discourage them from a known source of food. As a result, we do not expect the proposed waiver to cause PCFG whales to abandon the Makah U&A or to otherwise affect ENP gray whale distribution. Abundance The proposed waiver and regulations are unlikely to have an appreciable effect on the ENP gray whale stock’s abundance. The proposed waiver would result in a maximum of 3 strikes/deaths per even year hunt and 2 strikes/deaths per odd year hunt, or an average of 2.5 deaths per year. Two and a half animals represent 0.009 percent of the population of 27,000 animals. This level of mortality is a small fraction of the annual variability in the stock’s abundance (∼16,000–27,000 animals since the mid-1990s) and well below the PBR level (624 whales per year) for the ENP gray whale stock (Carretta et al., 2017). This small number of removals would not have an appreciable effect on the stock’s abundance, especially given that any portion of the IWC quota for ENP gray whales that is not harvested by the Makah Tribe is likely to be allocated to Chukotkan hunters, based on recent practice and as articulated in a joint U.S.-Russia monitoring agreement (e.g., Fominykh and Wulff, 2017). If that practice continues, the total harvest of ENP gray whales would be the same with or without the waiver. Breeding Habits Male and female gray whales are thought to be promiscuous breeders and copulate repeatedly with more than one mate (Jones and Swartz, 1984). Mating occurs throughout the southward migration in the migratory corridor with a mean conception date of December 5 E:\FR\FM\05APP1.SGM 05APP1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules (Rice and Wolman, 1971). Females that have not successfully bred may enter a second estrous cycle within 40 days (Rice and Wolman, 1971). Hunting or hunt training is most likely to overlap with gray whale breeding in December– January. As described in the DEIS Subsection 3.15.3.2.2, Description of Weather and Sea Conditions in the Project Area, NMFS expects that few if any hunt activities would occur in December–January due to inclement weather (NMFS, 2015). While it is possible that hunt activities could occur in December–January and could encounter mating whales, we do not expect adverse biological effects due to the small portion of the migration corridor where hunt activities could occur. The limited level of hunt activity likely to occur, and the fact that whales can mate repeatedly throughout the migration, suggests that any whales disturbed by hunt activities would have additional opportunities to breed. Times and Lines of Migratory Movements Based on the analysis above regarding effects on distribution of ENP gray whales, the proposed waiver is not expected to affect the times and lines of migratory movements of ENP gray whales. khammond on DSKBBV9HB2PROD with PROPOSALS 4. NMFS Is Assured That the Proposed Waiver Is in Accord With the MMPA’s Purposes and Policies The purposes and policies of the MMPA include maintaining marine mammal stocks as a significant functioning element in the ecosystem of which they are a part, maintaining the health and stability of the marine ecosystem, and obtaining an optimum sustainable population keeping in mind the carrying capacity of the habitat (16 U.S.C. 1361). Thus we considered the effects of the proposed waiver on both the ecosystem and on the ENP stock and documented those findings in the Biological Report (NMFS, 2019a). We summarize those findings below. (a) Effect of the Proposed Waiver on the Role of ENP Gray Whales in Their Ecosystem, and on the Health and Stability of That Ecosystem The MMPA does not specify a geographic scale for identifying marine mammal ecosystems. Because of their long migration route, ENP gray whales occupy multiple large marine ecosystems at different times. The hunt area is located within what oceanographers call the California Current System (Sherman and Alexander, 1989) or Province (Longhurst, 1998), a part of the North VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 Pacific Gyre that moves cool ocean waters south along the western coast of North America, beginning off British Columbia, flowing southward past Washington, Oregon and California, and ending off Baja California. Within that province, scientists regularly study and predict physical and biological features and processes in the northern California Current ecosystem, which is generally described as extending from northern California to Vancouver Island (e.g., Field et al., 2001; Field et al., 2006; Hickey and Banas, 2008; Sydeman and Elliott, 2008; Harvey et al., 2017; Wells et al., 2017), though some studies extend only to the U.S.-Canada border in the north because of differing management regimes between the two countries (Field et al., 2001; Field et al., 2006). For purposes of the MMPA analysis, we took a precautionary approach of examining the impact of the proposed waiver and regulations on the smaller northern California Current ecosystem. This area also corresponds to the seasonal range of the PCFG. The entire range of the ENP gray whale stock is vast and crosses many large marine ecosystems, including the Pacific Central American Coast, California Current, Gulf of Alaska, and Bering and Chukchi Seas (Longhurst, 1998; Sherman and Alexander, 1989). The proposed waiver could result in the removal of up to 2.5 whales annually, on average, from the hunt area. This level of removal is an order of magnitude less than the natural variability of the population, which numbered nearly 27,000 individuals in 2016, and would not have an appreciable effect on the functioning of ENP gray whales as an element of these large ecosystems, or on the health of the ecosystems themselves. To the extent approaches and attempted strikes affect whales, those actions would do so in a very small portion of one of these large ecosystems and would therefore be unlikely to result in a change in gray whale use of any of these large ecosystems. Also, the proposed waiver will not result in gray whales ceasing to be a significant functioning element of the smaller northern California Current ecosystem or the environment of the northern Washington coast for at least two reasons. First, these habitats are shaped by dynamic, highly energetic, large-scale processes, and the role of ENP gray whales in structuring these habitats is limited. Second, the proposed waiver and regulations are unlikely to result in an appreciable decrease in the numbers of whales present in the northern California Current ecosystem or the northern PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 13613 Washington coastal environment because of the limits on ENP and PCFG strikes. Based on the best available evidence as summarized in the Biological Report, we conclude that the proposed waiver and regulations would not cause ENP gray whales to cease to be a significant functioning element in the ecosystem of which they are a part. To summarize: • ENP gray whales annually traverse five large marine ecosystems; • Average annual removal by Makah hunters of up to 2.5 ENP gray whales from a population of approximately 27,000 individuals would not have an appreciable effect on the functioning of ENP gray whales in any of these large marine ecosystems or on the ecosystems themselves; • The northern California Current ecosystem is the smallest recognized marine ecosystem that encompasses the area of the proposed hunt; • ENP gray whales play a limited role in structuring the northern California Current ecosystem, which is shaped by dynamic, highly energetic, large-scale ecosystem processes; • There will continue to be approximately 27,000 ENP gray whales migrating along the coast through the northern California Current ecosystem, thus the functioning of ENP gray whales in that ecosystem will not change; • Although it is not considered a separate ecosystem, even at the scale of the northern Washington coast (the coastal portion of the Makah U&A) we would not expect the proposed waiver to have any meaningful effects on the marine environment, because ENP gray whales play a limited role in structuring the habitat, which is shaped by dynamic, highly energetic, large-scale ecosystem processes; • The best available evidence indicates the proposed waiver would not cause gray whales to abandon the hunt area as a summer feeding area or interfere with the PCFG being a significant functioning element of their ecosystem during the summer feeding period in the PCFG range. (b) Effect of the Proposed Waiver on the Status of the ENP Gray Whale Stock Relative to OSP The proposed waiver would result in a maximum of 3 strikes/deaths per even year hunt and 2 strikes/deaths per odd year hunt, or an average of 2.5 deaths per year. Two and a half animals represent 0.009 percent of the population of 27,000 animals. This number of removals would not have a discernable effect on the status of the ENP stock relative to OSP. Moreover, E:\FR\FM\05APP1.SGM 05APP1 13614 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules any portion of the IWC quota for ENP gray whales that is not harvested by the Makah Tribe is likely to be allocated to Chukotkan hunters, based on recent practice and as articulated in joint U.SRussia monitoring agreements dating back to the IWC catch limit set in 2003 (e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and DeMaster, 2012; Fominykh and Smith, 2016; Fominykh and Wulff, 2017). Assuming this practice continues, the proposed waiver would have no net effect on ENP gray whale abundance or OSP. B. The Proposed Regulations Are Consistent With the MMPA The MMPA directs NMFS to adopt regulations implementing an MMPA waiver that NMFS deems necessary and appropriate to insure that the taking will not be to the disadvantage of the affected stock and will be consistent with the purposes and policies of the MMPA (16 U.S.C. 1373(a)). Regulations must be based on the best scientific evidence available and consultation with the MMC. NMFS must give full consideration to all relevant factors affecting the extent to which the marine mammals may be taken, including but not limited to: Existing and future levels of marine mammal stocks; international treaty and agreement obligations of the United States; the marine ecosystem and related environmental considerations; the conservation, development, and utilization of fishery resources; and, the economic and technological feasibility of implementation (16 U.S.C. 1373(b)). In addition to these factors, we have considered the potential effects of the proposed regulations on the WNP stock. khammond on DSKBBV9HB2PROD with PROPOSALS 1. The Proposed Regulations Are Based on the Best Scientific Evidence Available and Consultation With the Marine Mammal Commission 4. We Have Fully Considered the Effects of the Proposed Regulations on the Statutory Factors (a) Existing and Future Levels of Marine Mammal Species and Population Stocks The proposed regulations are unlikely to have any effect on the future levels of ENP gray whales, as described above under Subsection IV(A)(4)(b), Effect of the proposed waiver on the status of the ENP gray whale stock relative to OSP. (b) Existing International Treaty and Agreement Obligations of the United States The proposed regulations limit the harvest of ENP gray whales consistent with the ICRW Schedule, Article 13, and the U.S.-Russia bilateral agreement. In March 2018 the U.S. requested that the IWC Scientific Committee (specifically the Standing Work Group on Aboriginal Subsistence Whaling Management Procedures or AWMP) evaluate a potential Makah gray whale hunt under the proposed regulations. The goal of the AWMP’s review was to determine if the aboriginal harvest of gray whales under hunt proposals by the U.S. and the Russian Federation would meet the IWC’s conservation objectives. Those objectives focus on ensuring that aboriginal hunt requests (1) do not seriously increase risks of extinction (highest priority), (2) enable hunts ‘‘in perpetuity,’’ and (3) maintain stocks at the highest net recruitment level (and if below that, ensure they move towards it). After modeling the available data (i.e., biology, ecology, abundance and trends, removals including direct hunting, ship strikes and bycatches), the AWMP agreed (and the Scientific Committee supported) that the proposed hunt management plan for a Makah tribal hunt meets the IWC conservation objectives for ENP gray whales as well as for PCFG and WNP gray whales (IWC, 2018b). See Subsections IV(A)(1) and IV(A)(2) above. (c) The Marine Ecosystem and Related Environmental Considerations 2. The Proposed Regulations Will Not Disadvantage the ENP Gray Whale Stock The biological report (NMFS, 2019a) describes our consideration of effects on the marine ecosystem and Subsection IV(A)(4)(a) describes our conclusion regarding ecosystem function and health. The DEIS (NMFS, 2015) describes our consideration of other elements of the marine environment. Because the proposed regulations will not affect the status of the ENP gray whale stock relative to its OSP, we conclude that the proposed regulations will not disadvantage the ENP gray whale stock. 3. The Proposed Regulations Are Consistent With the Purposes and Policies of the MMPA These findings are described above in Subsection IV(A)(4) above. VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 (d) The Conservation, Development, and Utilization of Fishery Resources The proposed regulations would have no effect on the conservation, development, or utilization of fishery resources. PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 (e) The Economic and Technological Feasibility of Implementation Subsection 4.6.2.5 of the DEIS analyzes the economic costs of hunt management and law enforcement. NMFS’ costs would primarily involve the continuation of longstanding 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. As noted in the DEIS, the annual NMFS budget for marine mammal management in the West Coast Region is over $700,000, so such costs are feasible to obtain and are not expected to affect NMFS’ ability to regulate a hunt. The Tribe’s 1999 gray whale hunt successfully demonstrated the economic and technological feasibility of prosecuting a hunt according to the proposed regulations. Also, the Tribe has a detailed Tribal Whaling Ordinance in effect, which demonstrates the Tribe’s ability to regulate a tribal ceremonial and subsistence whale hunt (Makah Tribe, 2013). The proposed regulations include provisions for matching photographs of killed whales to those of known whales, a procedure which is technologically feasible (Calambokidis et al., 2017; NMFS, 2019b). The proposed regulations include provisions for marking and tracking handicrafts made from harvest whale parts, which is technologically feasible. C. The Proposed Waiver and Regulations Appropriately Manage Risk to WNP Gray Whales In evaluating the Tribe’s waiver request, we determined that the potential effect of the proposed hunt on the WNP stock was an additional relevant factor that should be considered in the proposed regulations. To evaluate the risk to WNP gray whales we considered both: (1) The probability of encountering a WNP gray whale (exposure) during an ENP gray whale hunt or training; and (2) the likelihood that an encounter would kill or otherwise harm a WNP whale. To address the first question and to reduce the risk of encountering WNP gray whales during an ENP hunt, the regulations include several important restrictions: (1) Hunting would only be allowed every other year (proposed for even-numbered years) during the migration season when WNP gray whales may be present; (2) only three whales could be struck in an even-year hunt; (3) training harpoon throws would be restricted to the non-migration season in odd-numbered years; and (4) E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules if a WNP is confirmed to be struck in any year, the hunt will cease until steps are taken to ensure such an event will not recur. To address the second question, we considered the biological impact of strikes, strike attempts, and approaches on WNP whales. Striking a WNP gray whale has the potential to kill or injure it. An unsuccessful strike attempt, training harpoon throw, or approach of a WNP gray whale might or might not harm a whale by disrupting its behavior, depending on the reaction of the whale to the encounter. With hunting at the time of year when WNP gray whales may be present limited to every other year and strikes limited to 3 (and thus limited to 15 over the 10-year regulation period), there is about a 6 percent probability of hunters striking one WNP gray whale over the 10 years of the regulations (Moore and Weller, 2018). This probability is the most likely point estimate; the 95 percent confidence interval ranges from 3.0 percent to 9.3 percent. Stated another way, the most likely point estimates indicate that one in 17 10-year hunt periods (i.e., one year out of 170) would result in an individual WNP gray whale being struck by Makah hunters, 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 (Moore and Weller, 2018). If the 95 percent confidence interval is considered, the expectation is that one WNP whale would be struck out of every 108 years of hunting. By comparison, the PBR for WNP gray whales reported in the current SAR is 0.06 WNP gray whales per year, or approximately 1 whale every 17 years. Based on this analysis, we conclude that the risk of a lethal take or injury to WNP gray whales posed by the proposed regulations is slight. With unsuccessful strike attempts during even-year hunts limited to 18, there is about a 30 percent probability (95 percent confidence interval, range from 17 percent to 44 percent) that one WNP whale would be subjected to an unsuccessful strike attempt over the 10 years of the regulations (Moore and Weller, 2018), 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 (Moore and Weller, 2018). If the 95 percent confidence interval is considered, the expectation is that one WNP whale would be subjected to an unsuccessful strike attempt every 23 years. Making an unsuccessful strike VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 attempt or training harpoon throw on a WNP gray whale is a concern but would not result in death or injury and would likely elicit a response similar to that observed in whales that are tagged or biopsied for research purposes (DEIS Subsection 4.4.3.3.2, Change in Abundance and Viability of the WNP Gray Whale Stock). As summarized above in Subsection III(C)(3), the best available scientific evidence suggests that such encounters would be unlikely to have a lasting effect on the health or behavior of the affected animal because there is no mortality associated with unsuccessful strike attempts and impacts associated with such an event are temporary. Based on the best available information and as observed during the Chukotkan hunt, gray whales would likely display a range of reactions to hunting- or training-related approaches, and it is uncertain whether any of the approaches would disrupt normal whale behavior. However, to be precautionary we believe it is reasonable to conclude that some of those approaches have the potential to disrupt whale behavior, so the regulations limit the number of approaches. The geographical area where the approaches might occur is not known to be biologically important for WNP gray whales and the very limited number of likely approaches on WNP whales does not create the magnitude, frequency (repetitive, chronic), and duration of encounter that might cumulatively disrupt their behavior (NMFS, 2015). Actual approach distances are not possible to predict. However, as was the case in the Tribe’s 1999 and 2000 hunts, even-year hunts would occur during a time when gray whales are migrating, which may further limit close and sustained approaches on gray whales and chronic, repeated, or cumulative exposure to individual whales. Also, some of the approaches could be made during training exercises involving only paddle-driven canoes that have limited ability to pursue and maintain close contact with whales that are actively migrating. Our risk analysis predicts that approximately 14 WNP gray whales would be approached within 100 yards over the duration of the waiver period (Moore and Weller, 2018). This analysis assumed that all 353 approaches would be made each year, and all of them, including all training approaches, would be made between December 1 and May 31, when WNP gray whales could be present in the hunt area. These conservative assumptions are a useful management tool for understanding the maximum potential impacts to WNP gray whales, but present an unlikely PO 00000 Frm 00061 Fmt 4702 Sfmt 4702 13615 scenario given that hunting in oddnumbered years may also be authorized during the summer and fall when weather and ocean conditions are more suitable for hunting and training. In our 2015 DEIS, we estimated that there would be almost twice as many suitable days for hunting and training during odd-year hunts as during even-year hunts. So, for example, if half of the allowed number of approaches were made during even-year hunts, we would expect that less than one WNP gray whale (0.7) would be approached per year. Even if all approaches were made between December 1 and May 31, potentially exposing 1.4 WNP gray whales per year to an approach, we consider any risks to such whales to be slight because there is no mortality associated with approaches, some approaches may be so far away as to be undetectable by the whales, and any reactions by approached whales would likely be temporary and not interfere with the whales’ active migration. To summarize, under the proposed regulations, there is a 6 percent probability of killing a gray whale over the 10-year waiver period (put another way, it is likely that one WNP whale would be killed every 170 years), which we consider to be a remote risk. There is a 30 percent probability of an unsuccessful strike attempt on at least one WNP gray whale (or one every 33 years) and a near 100 percent probability of a WNP gray whale being approached (average of 1.4 whales per year), based on conservative assumptions, over the 10-year period of the regulations (Moore and Weller, 2018). We find that this constitutes an acceptable level of risk for management purposes and under the MMPA. In addition, prior to issuing final regulations, NMFS would be required to ensure, pursuant to the consultation requirements of ESA section 7(a)(2), that the hunt would not be likely to jeopardize the WNP stock (16 U.S.C. 1376(a)(2)). V. Required Statements Related to the Intention To Issue Regulations The MMPA requires that, either before or concurrent with publication of our notice of intent to prescribe regulations, we publish certain statements (16 U.S.C. 1373(d)). This section includes those statements. A. A Statement of the Estimated Existing Levels of the Species and Population Stocks of the Marine Mammal Concerned ENP gray whales are the subject of the proposed waiver and regulations and E:\FR\FM\05APP1.SGM 05APP1 13616 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules are recognized as a population stock under the MMPA (Carretta et al., 2017). The most recent population assessment by Durban et al. (2017) estimates the abundance of the ENP gray whale stock at 24,420 to 29,830 whales, with a point estimate of 26,960 and resultant minimum abundance estimate, used for calculating PBR, of 25,849. B. A Statement of the Expected Impact of the Proposed Regulations on the Optimum Sustainable Population of Such Species or Population Stock The proposed regulations will not have a discernible effect on the ENP gray whale stock relative to its OSP (see Subsection IV(B), The Proposed Regulations are Consistent with the MMPA). khammond on DSKBBV9HB2PROD with PROPOSALS C. A Statement Describing the Evidence Before the Agency That Forms the Basis for the Regulations In proposing the waiver and regulations, we relied on the references cited in the March 2015 Draft Environmental Impact Statement on the Makah Tribe Request to Hunt Gray Whales (NMFS, 2015). We also list relevant references to the scientific literature in a separate biological report (NMFS, 2019a), which identifies other and more recent studies not included in the DEIS. We incorporate by reference the 2015 DEIS and the Biological Report and their associated references. The proposed regulations were also informed by the public comments on the DEIS and our consultation with the MMC. D. Any Studies or Recommendations Made By or For the Agency or the MMC That Relate to the Establishment of the Regulations Relevant studies made by or for NMFS include those on gray whale abundance and stock structure (Punt and Wade, 2012; Weller et al., 2013; Calambokidis et al., 2017), estimation of potential biological removal levels and human caused mortalities (Carretta et al., 2017), forecasting PCFG abundance estimates (NMFS, 2019a), estimating the probability of encountering WNP gray whales (Moore and Weller, 2018) and modeling the proposed regulations relative to IWC conservation objectives for North Pacific gray whales (IWC, 2018b). Also, the DEIS (NMFS, 2015) analyzes the principle components of a Makah gray whale hunt. Regarding recommendations by the Marine Mammal Commission, the MMC submitted comments on the 2015 DEIS and provided written advice in response to two NMFS requests for consultation in 2017. We first requested consultation VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 with the MMC on May 12, 2017, and shared a preliminary draft of our proposed waiver determination and regulations along with supporting rationale. The MMC replied to our request with a letter dated July 11, 2017, endorsing our plan to issue a waiver determination and recommending several issues for further consideration. After further evaluation and review, and based on comments from the MMC and others on the DEIS related to managing impacts to PCFG whales, we modified our proposal to adopt a non-PBR framework for the PCFG and presented it to the MMC for continued consultation on December 19, 2017. On March 13, 2018, the MMC replied with a second letter expressing support for our modified regulations and encouraging flexibility in hunt management so as to give due regard to the Tribe’s identified subsistence and cultural needs. The following summarizes the MMC’s advice contained in those consultation letters. MMC Consultation Letter Dated July 11, 2017: 1. The MMC believed that the draft documents lay out a prima facie case that the requirements for granting a waiver under the MMPA have been met and recommended that NMFS proceed with issuing a proposed rule and scheduling an administrative hearing in accordance with the requirements of section 103 of the MMPA and sections 554, 556, and 557 of the Administrative Procedure Act. 2. The MMC noted that its primary concern has been the need to avoid, to the maximum extent practicable, the accidental taking of gray whales from the endangered WNP stock, and secondarily, to avoid taking that could disadvantage the PCFG regardless of whether it is considered a stock. The MMC acknowledged that the design of an odd year/even year hunting pattern is key to both controlling the harvest of PCFG whales and minimizing any take of WNP gray whales. 3. The MMC recommended that NMFS clarify what the implications would be if the PCFG were recognized as a separate stock, especially whether hunting would be allowed to continue under this rule or if new rulemaking would be necessary to consider the status of PCFG whales relative to OSP before the taking of PCFG whales could be authorized. 4. The MMC recommended that the ability to distinguish between WNP and ENP gray whales be addressed in the rulemaking, either by including mechanisms to ensure that current survey and cataloging efforts are PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 maintained or by making hunting during the specified season contingent on having available and reliable means of distinguishing WNP or PCFG whales (as relevant) from other whales. 5. The MMC recommended that NMFS review the proposed numbers of takes that would be authorized for approaches and attempted strikes, and suggested that NMFS consider separate authorizations for attempted strikes and approaches depending on whether they occur during hunting or training exercises. The MMC further noted that it would be unfortunate, and perhaps counterproductive to achieving an effective and efficient hunt, to limit the level of training because of the specified caps. 6. The MMC recommended that NMFS revise the provisions of the draft rule to allow training activities to be conducted throughout the year, subject to appropriate limitations, despite one of the take limits for hunting activities (e.g., strikes or landings) having been reached. 7. The MMC recommended that NMFS discuss with the Makah Tribe provisions related to how whale meat and non-edible products can be used and distributed by Tribal members to determine whether there are any proposed restrictions on the use and distribution of whale products to which the Tribe objects and, if there are, request that the Tribe suggest alternatives for consideration as part of the rulemaking. 8. The MMC recommended that NMFS consider building some flexibility into the regulations to allow a small increase in the numbers of whales that can be struck and landed in odd-year hunts should it become necessary to close the even-year hunt. 9. The MMC recommended that NMFS address whether there are circumstances (e.g., a die-off of gray whales) that would prompt it to revisit or revise the regulations before the end of their anticipated lifetime. MMC Consultation Letter Dated March 13, 2018 1. The MMC reiterated its earlier primary concerns regarding the need to avoid, to the maximum extent practicable, the accidental taking of gray whales from the endangered WNP stock, and secondarily, to avoid taking that could disadvantage PCFG whales regardless of whether they are considered a separate stock. The MMC noted that our modified proposal (compared to our initial request for consultation) is not expected to have any negative effect on the possibility that WNP gray whales will be taken and, E:\FR\FM\05APP1.SGM 05APP1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules as such, the MMC stands by its earlier comment that the risk of killing or seriously injuring a WNP gray whale appears to be sufficiently low that it should not present an insurmountable obstacle to NMFS moving forward with a proposed rule to authorize the Makah Tribe to take whales from the ENP stock. 2. The MMC agreed that, given the availability of reliable information on the abundance, trends, and rates of recruitment for the PCFG, there is no reason to manage removals under a PBR framework. Further, the MMC believed that setting the allowable strike limit at 16 PCFG whales over a 10-year period should provide reasonable certainty that the proposed level of hunting PCFG whales will not have adverse impacts on this group of animals. 3. The MMC noted that proposed harvest levels (no more than one whale landed per year during odd-year hunts and up to three whales landed per year during even-year hunts) falls well short of the Makah Tribe’s identified subsistence need and the Tribe’s initial waiver request, and encouraged NMFS to assess the relationship between the adopted harvests levels and the Tribe’s subsistence and cultural needs as part of the final environmental impact statement on this action. 4. The MMC concurred—from a biological standpoint—with NMFS’ proposal to limit strikes on female PCFG whales, but noted that the strike limit may cause additional shortfalls in meeting the Tribe’s subsistence needs. Therefore, the MMC recommended that NMFS and other appropriate experts work with the Tribe to develop hunting methods that minimize the chances that the female strike limit will be reached early in any 10-year period. 5. The MMC agreed that setting such minimum abundance thresholds for the PCFG is appropriate and that the values proposed are good starting points for examination in the course of the rulemaking. However, the MMC also noted that this approach was akin to an on-off switch and suggested that NMFS explore whether strikes might be reduced more gradually using intermediate abundance thresholds. VI. Classification khammond on DSKBBV9HB2PROD with PROPOSALS National Environmental Policy Act NMFS has prepared a DEIS under the requirements of NEPA and published a notice of availability on March 20, 2015 (80 FR 14912). NMFS believes that a waiver of the MMPA take moratorium along with federally approved hunt regulations for gray whales constitutes a major federal action subject to the requirements of NEPA. Therefore, these VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 proposed regulations will not be finalized until a final Environmental Impact Statement has been issued and a Record of Decision is made. Endangered Species Act The ESA provides for the conservation of endangered and threatened species of fish, wildlife, and plants. The program is administered jointly by NMFS (for most marine species) and the U.S. Fish and Wildlife Service (for terrestrial and freshwater species). The ESA requires federal agencies to consult with NMFS or the U.S. Fish and Wildlife Service to ensure that activities authorized, funded, or carried out by federal agencies are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Prior to issuance of final regulations, NMFS will fulfill its obligations under section 7(a)(2) of the Endangered Species Act for the ESA-listed species and designated critical habitat in the project area. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice of proposed rulemaking requirements under the Administrative Procedure Act unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA defines small entities, in pertinent part, as small businesses, small organizations and small governmental jurisdictions. This rule only affects a single tribe. Tribes are not considered small entities under the RFA. Accordingly, an attorney acting on behalf of the Chief Counsel for Regulation of the Department of Commerce, in accordance with the RFA, has reviewed this proposed rule and certifies that it will not have a significant economic impact on a substantial number of small entities. Therefore, neither the RFA nor any other law require a regulatory flexibility analysis, and none has been prepared. Paperwork Reduction Act This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980, because the Paperwork Reduction Act does not apply to record-keeping requirements of a single tribe. PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 13617 Executive Orders 12866—Regulatory Planning and Review, 13771—Reducing Regulation and Controlling Regulatory Costs, and Executive Order13563— Improving Regulation and Regulatory Review Executive Order (E.O.) 12866 provides that significant regulatory actions be submitted for review to the Office of Information and Regulatory Affairs, and OMB. E.O. 13771 provides that it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with federal regulations. Toward that end, E.O. 13771 directs that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. In accordance with 16 U.S.C. 1373(d), the regulations proposed here are subject to 50 CFR 228.3, which provides that this proceeding will be governed by 5 U.S.C. 556 and 557 of the Administrative Procedure Act. Executive Order 12866 per Section 3(d) does not apply to regulations issued in accordance with the formal rulemaking procedures of 5 U.S.C. 556, 557, thus the regulatory action is not considered significant under E.O. 12866. Executive Order 13771 only applies to regulatory actions that are defined as significant under E.O. 12866. Therefore, this proceeding is exempt from review under E.O. 12866 and E.O. 13771. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation. We have developed this rule in a manner consistent with these requirements. Executive Order 12898—Environmental Justice Under E.O. 12898 each federal agency must conduct its programs, policies, and activities that substantially affect human health or the environment, in a manner that ensures that those programs, policies, and activities do not have the E:\FR\FM\05APP1.SGM 05APP1 13618 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules effect of excluding persons from participation in, denying persons the benefits of, or subjecting persons to discrimination because of their race, color, or national origin. Section 4–4, Subsistence Consumption of Fish and Wildlife, of E.O. 12898, requires federal agencies to ensure protection of populations with differential patterns of subsistence consumption of fish and wildlife and to communicate to the public the human health risks of those consumption patterns. NMFS has evaluated the data available on contaminant loads in ENP gray whales, and has summarized this information in the DEIS and in more recent analyses (Ylitalo et al., 2018) and communicated those findings to the Makah Indian tribe. khammond on DSKBBV9HB2PROD with PROPOSALS Executive Order 13132—Federalism Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. This rule does not have substantial direct effects on the States and therefore does not have the type of federalism implications contemplated by the Executive Order. We do not foresee that the rule would affect significantly the distribution of power and responsibilities among the various levels of government or limit the policymaking discretion of the States. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments Executive Order 13175, the American Indian and Alaska Native Policy of the U.S. Department of Commerce (March 30, 1995), and the Tribal Consultation and Coordination Policy of the U.S. Department of Commerce (May 21, 2013) outline the responsibilities of NMFS in matters affecting tribal interests. These directives require that NMFS have an accountable process to ensure meaningful and timely input by tribal officials in developing policies that have tribal implications. Executive Order 13175 requires that NMFS: (1) Have regular and meaningful consultation and collaboration with VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 Indian tribal governments in the development of federal regulations that significantly or uniquely affect their communities; (2) reduce the imposition of unfunded mandates on Indian tribal governments; and (3) streamline the applications process for and increase the availability of waivers to Indian tribal governments. We developed these proposed regulations in response to the Makah Indian Tribe’s request on February 14, 2005 for a waiver of the MMPA’s take moratorium. Consistent with the Executive Order directives we consulted with the Makah Indian Tribe in developing the proposed regulations. The Makah Indian Tribe and members of other tribes submitted comments in response to the DEIS; we will provide responses to those comments at the hearing for this matter. Consultation With State and Local Government Agencies In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and federal interest, NMFS shared the release of the DEIS with 26 state and local government agencies and various elected officials and governmental committees. A complete list of all references cited in this rulemaking is available on our website and upon request from the NMFS office in Portland, Oregon (see ADDRESSES). List of Subjects in 50 CFR Part 216 Administrative practice and procedure, Exports, Fish, Imports, Indians, Labeling, Marine mammals. Dated: March 27, 2019. Barry A. Thom, Regional Administrator, West Coast Region, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 216 is proposed to be amended as follows: PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 216 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. 2. Subpart J is added to read as follows: ■ Frm 00064 Fmt 4702 Sec. 216.110 Purpose. 216.111 Scope. 216.112 Definitions. 216.113 Take authorizations. 216.114 Accounting and identification of gray whales. 216.115 Prohibited acts. 216.116 Applications for hunt permits. 216.117 Requirements for monitoring, reporting, and recordkeeping. 216.118 Expiration and amendment. § 216.110 Sfmt 4702 Purpose. The purpose of this subpart is to establish regulations governing the take of whales from the eastern North Pacific (ENP) gray whale (Eschrichtius robustus) stock by the Makah Indian Tribe and its enrolled members in accordance with the Secretary’s determination to issue a waiver of the MMPA take moratorium pursuant to 16 U.S.C. 1371(a)(3). § 216.111 Scope. This subpart authorizes only the taking of ENP gray whales and only by enrolled members of the Makah Indian Tribe. § 216.112 References Cited PO 00000 Subpart J—Taking of Eastern North Pacific (ENP) Gray Whales (Eschrichtius robustus) by the Makah Indian Tribe off the Coast of Washington State Definitions. In addition to the definitions provided in the MMPA, for purposes of this subpart, the following definitions apply: Barter means the exchange of parts from gray whales taken under these regulations for other wildlife or fish or their parts or for other food or for nonedible items other than money if the exchange is of a noncommercial nature. Bonilla-Tatoosh Line means the line running from the western end of Cape Flattery (48°22′53″ N lat., 124°43′54″ W long.) to Tatoosh Island Lighthouse (48°23′30″ N lat., 124°44′12″ W long.) to the buoy adjacent to Duntze Rock (48°28′00″ N lat., 124°45′00″ W long.), then in a straight line to Bonilla Point (48°35′30″ N lat., 124°43′00″ W long.) on Vancouver Island, British Columbia. Calf means any gray whale less than 1 year old. Enrolled member or member of the Makah Indian Tribe means a person whose name appears on the membership roll maintained by the Makah Tribal Council. ENP gray whale means a member of the eastern North Pacific stock of gray whales (Eschrichtius robustus). Even-year hunt means a hunting season spanning six consecutive months E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules from December 1 in an odd-numbered year to May 31 in the following evennumbered year. Gray whale means a member of the species Eschrichtius robustus. Harpooner means a member of the Makah Indian Tribe who has been certified by the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of harpooning a gray whale. Hunt and hunting mean to pursue, strike, harpoon, shoot, or land a gray whale under a hunt permit issued under § 216.113(a), or to attempt any such act, but does not include hunting approaches, training approaches, or training harpoon throws. A ‘‘hunt’’ means any act of hunting. Hunt permit means a permit issued by NMFS in accordance with 16 U.S.C. 1374 and this subpart. Hunting approach means to cause, in any manner, a vessel to be within 100 yards of a gray whale during a hunt. Land and landing mean bringing a gray whale or any products thereof onto the land in the course of hunting. Makah Indian handicrafts means articles made by a member of the Makah Indian Tribe that contain any nonedible products of an ENP gray whale that was obtained pursuant to a permit issued under this subpart; and are significantly altered from their natural form and which are produced, decorated, or fashioned in the exercise of traditional Makah Indian handicrafts without the use of pantographs, multiple carvers, or similar mass copying devices. Makah Indian handicrafts include, but are not limited to, articles that are carved, beaded, drawn, or painted. Makah Indian Tribe or Tribe means the Makah Indian Tribe of the Makah Indian Reservation as described in the list of federally recognized Indian tribes maintained by the U.S. Department of the Interior. Minimum population estimate for PCFG gray whales is the lower 20th percentile of the PCFG population estimate; NMFS hunt observer means a person designated by NMFS to accompany and observe a hunt. Odd-year hunt means a hunting season spanning four consecutive months from July 1 to October 31 in an odd-numbered year. Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale means an ENP gray whale photo-identified during two or more years 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 entered into a photo- VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 identification catalog(s) recognized by the Regional Administrator. PCFG population estimate means an abundance estimate based on data derived from photo-identification surveys and catalog(s) recognized by the Regional Administrator. Such data will also be the basis for projecting PCFG population estimates in future hunting seasons. Recordkeeping and reporting mean the collection and delivery of photographs, biological data, harvest data, and other information regarding activities conducted under the authority of this subpart. Regional Administrator means the Regional Administrator of NMFS for the West Coast Region. Rifleman means a member of the Makah Indian Tribe who has been certified by the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of shooting a gray whale. Safety officer means a member of the Makah Indian Tribe who has been certified by the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of evaluating hunt conditions including but not limited to visibility, target range and bearing, and sea condition. Strike or struck means to cause a harpoon or other device to penetrate a gray whale’s skin or an instance in which a gray whale’s skin is penetrated by a harpoon or other device while hunting. Struck and lost refers to a gray whale that is struck but not landed. Training approach means to cause, in any manner, a training vessel to be within 100 yards of a gray whale. Training harpoon throw means an attempt to contact a gray whale with a blunted spear-like device that is incapable of penetrating the skin of a gray whale. Training vessel means a canoe or other watercraft used to train for a hunt that does not carry weapons ordinarily used by a harpooner or rifleman to strike a gray whale. Tribal hunt observer means a tribal member or representative designated by the Tribe who has been certified by the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of monitoring and reporting on a hunt. U&A or Makah Indian Tribe’s U&A means the Tribe’s usual and accustomed fishing grounds, which area consists of the United States waters in the western Strait of Juan de Fuca west of 123°42′17″ W long. and waters of the Pacific Ocean PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 13619 off the mainland shoreline of the Washington coast north of 48°02′15″ N lat. (Norwegian Memorial) and east of 125°44′00″ W long. Unsuccessful strike attempt means any attempt to strike a gray whale while hunting that does not result in a strike. WNP gray whale means a member of the western North Pacific stock of gray whales (Eschrichtius robustus). Whaling captain means a member of the Makah Indian Tribe who has been certified by the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of leading a hunt and is authorized by the Makah Indian Tribe to be in control of the whaling crew. Whaling crew means those members of the Makah Indian Tribe taking part in a hunt under the control of a whaling captain, not including the tribal hunt observer. § 216.113 Take authorizations. (a) The Regional Administrator may issue hunt permits to the Makah Indian Tribe authorizing hunting of ENP gray whales, as well as hunting approaches, training approaches, and training harpoon throws by enrolled members in accordance with 16 U.S.C. 1374 and the requirements of this subpart. (1) Hunt permit duration. The duration of the initial hunt permit may not exceed three years from its effective date, and thereafter the duration of a hunt permit may not exceed five years. (2) Hunting seasons. Even-year hunts and hunting approaches will only be authorized from December 1 of an oddnumbered year through May 31 of the following even-numbered year. Oddyear hunts and hunting approaches will only be authorized from July 1 through October 31 in an odd-numbered year. (3) Training period. Hunt permits may authorize training approaches in any month and training harpoon throws in any month, except as provided in § 216.113(a)(4)(ii). (4) Limits on the number of gray whales approached, subjected to unsuccessful strike attempts, struck, struck and lost, and landed. (i) Approaches. A hunt permit may authorize no more than 353 approaches, including both hunting and training approaches, each calendar year of which no more than 142 of such approaches may be on PCFG whales. (ii) Unsuccessful strike attempts and training harpoon throws. A hunt permit may authorize no more than 18 unsuccessful strike attempts during even-year hunts and no more than 12 unsuccessful strike attempts during odd-year hunts. Training harpoon throws may occur at any time during E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 13620 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules even-numbered years and between July 1 and October 31 in odd-numbered years. Each training harpoon throw will count against the unsuccessful strike attempt limit in effect during the calendar year that the throw is made. (iii) Strikes. A hunt permit may authorize no more than three strikes in an even-year hunt and no more than two strikes in an odd-year hunt. In an evenyear hunt, no more than one strike may be authorized within the 24-hour period commencing at the time of strike. The Regional Administrator may authorize the full number of strikes in the initial hunt permit and will adjust strikes downward in subsequent permits if necessary to ensure that strikes on PCFG whales do not exceed 16 over the waiver period, of which no more than 8 strikes may be on PCFG females. (iv) Struck and lost. A hunt permit may authorize no more than three gray whales to be struck and lost in any calendar year. (v) Landings. A hunt permit may authorize no more than three gray whales to be landed in an even-year hunt and no more than one gray whale to be landed in an odd-year hunt; the number of gray whales that the hunt permit may authorize to be landed in any calendar year will not exceed the number agreed between the United States and the Russian Federation as the U.S. share of the catch limit established by the International Whaling Commission. (vi) PCFG whales. Notwithstanding the limits specified in this section, no hunting will be authorized for an upcoming season if the Regional Administrator determines, and notifies the Makah Indian Tribe pursuant to § 216.114(a)(1) of this subpart, that either of the following conditions applies: (A) The most recent PCFG population estimate, based on photo-identification surveys, is less than 192 whales or the associated minimum population estimate is less than 171 whales; or (B) The PCFG population estimate for the upcoming hunting season is projected to be less than 192 whales or the associated minimum population estimate is projected to be less than 171 whales. (vii) WNP gray whales. The hunt permit will provide that in the event the Regional Administrator determines a WNP gray whale was struck during a hunt, the Regional Administrator will notify the Makah Indian Tribe in writing, and require that the Tribe cease hunting for the duration of the permit, unless and until the Regional Administrator determines that measures have been taken to ensure no additional VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 WNP gray whales are struck during the duration of the permit. No further hunt permits will be issued unless and until the Regional Administrator determines that measures have been taken to prevent additional WNP gray whale strikes during the remainder of the waiver period. (5) Images and samples. NMFS hunt observers, tribal hunt observers, and members of the Makah Indian Tribe may collect still or motion pictures as needed to document hunting and training approaches, strikes (successful and unsuccessful attempts), and landings. Persons designated by NMFS and by the Makah Indian Tribe may also collect, store, transfer, and analyze specimen samples from struck gray whales. (6) Hunt permit terms and conditions. Each hunt permit will specify: (i) Those terms required by 16 U.S.C. 1374(b); (ii) The limits established under paragraph (a)(4) of this section; (iii) The area where hunts, hunting approaches, training approaches, and training harpoon throws are allowed, which will be limited to the waters of the Makah Indian Tribe’s U&A west of the Bonilla-Tatoosh Line except as provided in § 216.115(a)(7), and any site and time restrictions to protect Olympic Coast National Marine Sanctuary resources pursuant to consultation under 16 U.S.C. 1434(d) of the National Marine Sanctuary Act; (iv) The type and timing of notice that the Makah Indian Tribe must provide to NMFS before issuing a tribal whaling permit authorizing a hunt, hunting or training approaches, or training harpoon throws; (v) Measures to be taken by the hunt permit holder to provide for the safety of the whaling crew, the public, and others during a hunt; (vi) That the hunt permit authorizes only the take of ENP gray whales and not the take of any other marine mammals; and (vii) Such other provisions as the Regional Administrator deems necessary. (7) Required determinations. Before issuing a hunt permit the Regional Administrator must make the following determinations: (i) The authorized manner of hunting is humane; (ii) The Makah Indian Tribe has enacted a tribal ordinance governing hunting that is consistent with these regulations; (iii) The Makah Indian Tribe has in place certification procedures for whaling captains, riflemen, harpooners, tribal hunt observers, and safety officers PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 and a process to ensure compliance with those procedures; (iv) There are adequate photoidentification catalogs and processes available to allow for the identification of WNP gray whales and PCFG whales as described in § 216.114(b); (v) The most recent PCFG population estimate is at least 192 whales and the associated minimum population estimate is at least 171 whales; (vi) The PCFG population estimate for the first hunting season covered by the permit is projected to be at least 192 whales and the associated minimum population estimate is projected to be at least 171 whales; and (vii) The Makah Indian Tribe has obtained any relevant incidental take authorization for other marine mammals. (viii) Except for the initial hunt permit, before issuing a hunt permit the Regional Administrator must determine that the Makah Indian Tribe has complied with the requirements of these regulations and all prior permit terms and conditions, or if the Makah Indian Tribe has not fully complied, that it has adopted measures to ensure compliance. (b) Gray whales landed under a hunt permit may be utilized as follows: (1) Edible products of ENP gray whales—(i) Enrolled members of the Makah Indian Tribe may possess, consume, and transport edible whale products, and may share and barter such products with other enrolled members, both within and outside the Makah Indian Tribe’s reservation boundaries. Within the Tribe’s reservation boundaries, enrolled members of the Makah Indian Tribe may share edible ENP gray whale products with any person. Outside the Makah Indian Tribe’s reservation boundaries, enrolled members of the Makah Indian Tribe may share edible ENP gray whale products with any person attending a tribal or intertribal gathering sanctioned by the Makah Tribal Council, so long as there is not more than two pounds of such edible product per person attending the gathering. (ii) Any person who is not an enrolled member of the Makah Indian Tribe may possess, consume, and transport edible ENP gray whale products within the Makah Indian Tribe’s reservation boundaries so long as the products are shared by an enrolled member of the Makah Indian Tribe. Outside the Tribe’s reservation boundaries, any person who is not an enrolled member of the Makah Indian Tribe may possess and consume edible gray whale products at a tribal or intertribal gathering sanctioned by the Makah Tribal Council if such products are shared by an enrolled member of the E:\FR\FM\05APP1.SGM 05APP1 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules Makah Indian Tribe and the person consumes the products at the gathering. (2) Nonedible products of ENP gray whales—(i) Enrolled members of the Makah Indian Tribe may possess nonedible whale products that have not been fashioned into Makah Indian handicrafts, and Makah Indian handicrafts that have not been marked and certificated per § 216.113(b)(2)(iii), may transport such products, and may share and barter such products with other enrolled members, both within and outside the Makah Indian Tribe’s reservation boundaries. (ii) Enrolled members of the Makah Indian Tribe may share or barter Makah Indian handicrafts that have not been marked and certificated per § 216.113(b)(2)(iii) with any person within the Tribe’s reservation boundaries. (iii) Any person may possess, transport, share, barter, offer for sale, sell, or purchase a Makah Indian handicraft in the United States, provided the handicraft is permanently marked with a distinctive marking approved by the Makah Tribal Council, and is accompanied by a certificate of authenticity issued by the Makah Tribal Council or its designee and entered in the Tribe’s official record of Makah Indian handicrafts. Such handicrafts may be delivered, carried, transported, or shipped in interstate commerce. (iv) Within the Makah Indian Tribe’s reservation boundaries, any person who is not an enrolled member of the Makah Indian Tribe may possess and transport Makah Indian handicrafts that have not been marked and certificated per § 216.113(b)(2)(iii), provided the handicraft was shared by or bartered from an enrolled member. Within the Makah Indian Tribe’s reservation boundaries, persons not enrolled as a member of the Makah Indian Tribe may share or barter such handicrafts only with enrolled members. (c) The Makah Indian Tribe is responsible for managing all activities of any Makah Indian tribal member carried out under this section. khammond on DSKBBV9HB2PROD with PROPOSALS § 216.114 Accounting and identification of gray whales. (a) Notifications—(1) Thirty days prior to the beginning of a hunting season specified in § 216.113(a)(2), the Regional Administrator will notify the Makah Indian Tribe in writing of the maximum number of PCFG whales, including females, that may be struck during the upcoming hunting season. The limit will take into account the abundance of PCFG whales relative to VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 the conditions specified under § 216.113(a)(4)(vi) and the number of strikes made on PCFG whales as described under § 216.113(a)(4)(iii). (2) By November 1 of each year, the Regional Administrator will notify the Makah Indian Tribe in writing of the proportion of gray whales in the hunt area that will be presumed to be PCFG whales and the proportion of PCFG whales that will be presumed to be females for each month of the upcoming calendar year. The presumed proportion of PCFG whales will be based on the best available evidence for the months of December and January through May, and will be 100 percent for the months of June through November. The presumed proportion of female PCFG whales will be based on the best available information for each month. These proportions will be used for purposes of accounting for PCFG whales that are not otherwise identified or accounted for as provided under subsection § 216.114(b). (3) The Regional Administrator will notify the Makah Indian Tribe in writing when the Tribe has reached the limit of PCFG whales that may be struck in any hunting season. (b) Identification and accounting of gray whales—(1) Even-year hunts. Based on the best available evidence, the Regional Administrator will determine in writing whether a gray whale that is struck in an even-year hunt is a WNP gray whale or a PCFG whale or neither, or cannot be identified due to a lack of photographs or genetic data useful for making identifications. A whale affirmatively identified as a PCFG whale will be counted accordingly. A whale that cannot be identified will be presumed to be a PCFG whale in accordance with the proportions specified in § 216.114(a)(2) and will be counted accordingly. If the sex of a whale that is counted, in whole or in part, as a PCFG whale cannot be identified, the proportions specified in § 216.114(a)(2) will be applied. (2) Odd-year hunts. Based on available evidence, the Regional Administrator will determine in writing whether a gray whale that is struck in an odd-year hunt is a WNP gray whale or cannot be identified due to a lack of photographs or genetic data useful for making identifications. A gray whale that cannot be identified as a WNP gray whale will be counted as a PCFG whale. If the sex of a whale that is counted as a PCFG whale cannot be identified, the proportions specified in § 216.114(a)(2) will be applied. PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 13621 (3) Hunting and training approaches. Gray whales subjected to hunting or training approaches are presumed to be PCFG whales in accordance with the proportions specified in § 216.114(a)(2). (4) Unauthorized strikes. If a tribal member strikes an ENP gray whale without authorization under this subpart, the strike will be counted against the total number of strikes allowed under these regulations and will be counted against the U.S. share of any applicable catch limit established by the International Whaling Commission. § 216.115 Prohibited acts. (a) It is unlawful for the Makah Indian Tribe or any enrolled Makah Indian tribal member to: (1) Take any gray whale except as authorized by a hunt permit issued under § 216.113(a) or by any other provision of part 216. (2) Participate in a hunt while failing to carry onboard the vessel at all times a hunt permit issued by NMFS and a tribal whaling permit issued by the Makah Indian Tribe, or an electronic copy or photocopy of these permits. (3) Make a training approach or a training harpoon throw while failing to carry onboard the training vessel at all times an electronic copy or photocopy of the hunt permit issued by NMFS and a training logbook approved by the Makah Indian Tribe for recording training approaches and training harpoon throws. (4) Participate in a hunt as a whaling captain, rifleman, harpooner, tribal hunt observer, or safety officer, unless the individual’s name is included in a tribal certification report issued under § 216.117(a)(6)(i). (5) Violate any provision of any hunt permit issued under § 216.113(a). (6) Hunt or make a training harpoon throw on a calf or an adult gray whale accompanying a calf. (7) Hunt outside the geographic area identified in § 216.113(a)(6)(iii), unless in pursuit of a gray whale that has already been struck within that area. (8) Hunt, make a hunting or training approach, or make a training harpoon throw after reaching the limits specified in the hunt permit per § 216.113(a)(4)(i) through (v). (9) Hunt if the limit on PCFG whales or PCFG females that may be struck is less than one as a result of accounting per § 216.114(b)(1) through (3). E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS 13622 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules (10) Hunt after the Makah Indian Tribe has been notified in writing by the Regional Administrator under § 216.114(a)(3) that the limit of PCFG whales that may be struck has been reached or that the PCFG abundance is below the limits specified in § 216.113(a)(4)(vi). (11) Hunt after a gray whale has been landed and before the Makah Indian Tribe has received notification from the Regional Administrator in accordance with § 216.114(b). (12) Sell, offer for sale, purchase, or export any gray whale products, except Makah Indian handicrafts that have been marked and certificated per § 216.113(b)(2)(iii). (13) Barter edible gray whale products with any person not enrolled as a member of the Makah Indian Tribe. (14) Share edible gray whale products outside the Makah Indian Tribe’s reservation boundaries with any person not enrolled as a member of the Makah Indian Tribe, except with persons attending a tribal or intertribal gathering sanctioned by the Makah Tribal Council, so long as there is not more than two pounds of edible product per person attending the gathering per § 216.113(b)(1)(i). (15) Share or barter nonedible gray whale products: (i) Outside the Makah Indian Tribe’s reservation boundaries with any person not enrolled as a Makah Indian tribal member, except Makah Indian handicrafts that are permanently marked and certificated per § 216.113(b)(2)(iii). (ii) Within the Makah Indian Tribe’s reservation boundaries with any person not enrolled as a Makah Indian tribal member except a product that has been fashioned into a Makah Indian handicraft. (16) Make a false statement in an application for a hunt permit or in a report required under this subpart. (17) Transfer or assign a hunt permit issued under this subpart. (18) Fail to submit reports required by this subpart. (19) Deny persons designated by NMFS access to landed gray whales for the purpose of collecting specimen samples. (20) Fail to provide required permits and reports for inspection upon request by persons designated by NMFS. (21) Allow anyone other than enrolled Makah Indian tribal members to be part of a whaling crew or to allow anyone other than such members or tribal hunt observers to be in a training vessel engaged in hunt training. VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 (b) It is unlawful for any person who is not an enrolled member of the Makah Indian Tribe to: (1) Gift, barter, purchase, sell, export, or offer to gift, barter, purchase, sell, or export edible gray whale products. (2) Possess or transport edible gray whale products except products shared by an enrolled Makah Indian tribal member and possessed or transported within the Makah Indian Tribe’s reservation boundaries, or possessed outside the Makah Indian Tribe’s reservation boundaries as part of a tribal or intertribal gathering sanctioned by the Makah Tribal Council. (3) Purchase, sell, export, or offer to purchase, sell, or export nonedible gray whale products except Makah Indian handicrafts that are marked and certificated per § 216.113(b)(2)(iii). (4) Outside the Makah Indian Tribe’s reservation boundaries, possess, transport, gift, or barter nonedible gray whale products except Makah Indian handicrafts that are marked and certificated per § 216.113(b)(2)(iii). (5) Within the Makah Indian Tribe’s reservation boundaries, possess, transport, gift, or barter any nonedible gray whale product other than a Makah Indian handicraft that is marked and certificated per § 216.113(b)(2)(iii), unless the product has been fashioned into a Makah Indian handicraft and was shared by or with, or bartered from or to, an enrolled member of the Makah Indian Tribe. § 216.116 Applications for hunt permits. (a) To obtain an initial hunt permit, the Makah Indian Tribe must submit an application to the Regional Administrator, signed by an official of the Makah Tribal Council, that contains the following information and statements: (1) The maximum number of gray whales to be subjected to hunting or training approaches, struck, landed, and subjected to unsuccessful strike attempts; (2) A demonstration that the proposed method of taking is humane; (3) A demonstration that the proposed taking is consistent with these regulations; (4) A copy of the currently enacted Makah Indian tribal ordinance governing whaling by Makah Indian tribal members; and (5) A description of the certification process for whaling captains, riflemen, harpooners, tribal hunt observers, and safety officers, including any guidelines or manuals used by the Tribe to certify such persons. (b) To obtain subsequent hunt permits, the Makah Indian Tribe must PO 00000 Frm 00068 Fmt 4702 Sfmt 4702 submit an application to the Regional Administrator, signed by an official of the Makah Tribal Council, that contains the information required in § 216.116(a) and the following information and statements: (1) A description of how the Makah Indian Tribe has complied with the requirements of these regulations and previously issued hunt permits; (2) A description of circumstances associated with gray whale(s) struck and lost under the most recently issued hunt permit, a description of the measures taken to retrieve such whale(s), and a description of measures taken by the Makah Indian Tribe to minimize future incidents of struck and lost gray whales; and (3) A description of products obtained from gray whales landed under the most recently issued hunt permit, including a description of the disposition of any gray whale products deemed unsuitable for use by Makah Indian tribal members. (c) The Regional Administrator will notify the Makah Indian Tribe of receipt of the application and will review the application for completeness. Incomplete applications will be returned with explanation. If the Makah Indian Tribe fails to resubmit a complete application within 60 days, the application will be deemed withdrawn. (d) After receipt of a complete application, and the preparation of any NEPA documentation that the Regional Administrator has determined to be necessary, the Regional Administrator will publish a notice of receipt in the Federal Register and review the application as required by 16 U.S.C. 1374. § 216.117 Requirements for monitoring, reporting, and recordkeeping. (a) In addition to the reporting provisions described in 50 CFR 230.8, the Makah Indian Tribe will: (1) Ensure a certified tribal hunt observer accompanies each hunt. The tribal hunt observer will record in a hunting logbook the time, date, and location (latitude and longitude, accurate to at least the nearest second) of each hunting approach of a gray whale, each attempt to strike a gray whale, and each gray whale struck. For each gray whale struck, the tribal hunt observer will record whether the whale was landed. If not landed, the tribal hunt observer will describe the circumstances associated with the striking of the whale and estimate whether the animal suffered a wound that might be fatal. For every gray whale approached by the whaling crew, the tribal hunt observer will attempt to E:\FR\FM\05APP1.SGM 05APP1 khammond on DSKBBV9HB2PROD with PROPOSALS Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules collect digital photographs useful for photo-identification purposes. (2) Ensure that each vessel involved in a training approach has onboard a training logbook for recording the date, location, and number of gray whales approached and the number of training harpoon throws. Each training approach and training harpoon throw must be reported to the tribal hunt observer within 24 hours. (3) Maintain hunting and training logbooks specified in § 216.117(a)(1) and (2) and allow persons designated by NMFS to inspect them upon request. (4) Ensure that each whaling captain allows a NMFS hunt observer to accompany and observe any hunt. (5) Maintain an official record of all articles of Makah Indian handicraft, including the following information for each article certified by the Makah Tribal Council or its designee: The date of the certification; the permanent distinctive mark identifying the article as a Makah Indian handicraft; a brief description of the handicraft, including artist’s full name, gray whale product(s) used, and approximate size; and at least one digital photograph of the entire handicraft. A copy of the official record of Makah Indian handicrafts must be provided to NMFS personnel, including NMFS enforcement officers, upon request. (6) Ensure that the following reports are filed electronically with the NMFS West Coast Region’s office in Seattle, Washington, by the indicated date: (i) Tribal certification report. Thirty days prior to the beginning of a hunting season, the Makah Indian Tribe must provide NMFS with a report that includes the names of all tribal hunt observers and enrolled Makah Indian tribal members who have been certified to participate in a hunt as whaling captains, riflemen, harpooners, and safety officers. The Tribe may provide additional names during the hunting season. (ii) Incident report. After striking a gray whale, the Makah Indian Tribe must submit an incident report within 48 hours to NMFS. A report may address multiple gray whales so long as the Tribe submits the report within 48 hours of the first gray whale being struck. For any gray whale(s) struck and lost, the report must contain the information in paragraph (a)(1) of this section and for any gray whale(s) struck and landed the report must contain the information in paragraph (a)(2) of this section: (A) Struck and lost gray whale(s): The whaling captain’s name; the tribal hunt observer’s name; the date, location (latitude and longitude, accurate to at VerDate Sep<11>2014 19:01 Apr 04, 2019 Jkt 247001 least the nearest second), time, and number of strikes and attempted strikes if any; the method(s) of strikes and attempted strikes; an estimate of the whale’s total length. The report will describe the circumstances associated with the striking of the whale and estimate whether the animal suffered a wound that might be fatal. The report will include all photographs taken by a tribal hunt observer of gray whales struck and lost by the whaling crew. The report may also contain any other observations by the Makah Indian Tribe concerning the struck and lost whale(s) or circumstances of the hunt. (B) Struck and landed gray whale(s): The whaling captain’s name; the tribal hunt observer’s name; the date, location (latitude and longitude, accurate to at least the nearest second), time, and number of strikes and attempted strikes if any; the method(s) of strikes and attempted strikes; the whale’s body length as measured from the point of the upper jaw to the notch between the tail flukes; an estimate of the whale’s maximum girth; the extreme width of the tail flukes; the whale’s sex and, if female, lactation status; the length and sex of any fetus in the landed whale; photographs of the whale(s), including the entire dorsal right side, the entire dorsal left side, the dorsal aspect of the fluke, and the ventral aspect of the fluke. All such photographs must include a ruler to convey scale and a sign specifying the Makah Indian Tribe’s name, whaling captain’s name, whale species, and date. The report must also describe the time to death (measured from the time of the first strike to the time of death as indicated by relaxation of the lower jaw, no flipper movement, or sinking without active movement) and the disposition of all specimen samples collected and whale products, including any whale products deemed unsuitable for use by Makah Indian tribal members. The report may also contain any other observations by the Makah Indian Tribe concerning the landed whale or circumstances of the hunt. (iii) Hunt report. Within 30 days after the end of each hunting season the Makah Indian Tribe must submit a report to NMFS that describes the following information for each day of hunting: (A) Struck and lost gray whale(s): The report must contain the information specified in § 216.117(a)(6)(ii)(A). (B) Struck and landed gray whale(s): The report must contain the information specified in § 216.117(a)(6)(ii)(B). (C) Hunting approaches and unsuccessful strike attempt(s): For each gray whale approached or subjected to PO 00000 Frm 00069 Fmt 4702 Sfmt 4702 13623 an unsuccessful strike attempt(s), the report must contain: The whaling captain’s name; the tribal hunt observer’s name; the date, location (latitude and longitude, accurate to at least the nearest second), time, and number of approaches and unsuccessful strike attempts; the method of attempted strikes; an estimate of the total length of any whale subjected to an unsuccessful strike attempt; and all photographs taken by a tribal hunt observer of gray whales approached by the whaling crew. The report may also contain any other observations by the Makah Indian Tribe concerning the whale(s) approached or subjected to unsuccessful strike attempts or circumstances of the hunt. (iv) Annual approach report. By January 15 of each year, the Makah Indian Tribe must submit a report to NMFS containing the dates, location, and number of gray whales subjected to hunting approaches, training approaches, and training harpoon throws during the previous calendar year. The report may also contain any other observations by the Makah Indian Tribe concerning the approached whales or circumstances of the approaches and training harpoon throws. (v) Annual handicraft report. By April 1 of each year, the Makah Indian Tribe must submit a report to NMFS which describes all Makah Indian handicrafts certified by the Makah Tribal Council or its designee during the previous calendar year. The report must contain the following information for each handicraft certified: The date of the certification; the permanent distinctive mark identifying the article as a Makah Indian handicraft; a brief description of the handicraft, including artist’s full name, gray whale product(s) used, and approximate size; and at least one digital photograph of the entire handicraft. (vi) The hunt report, annual approach report, and annual handicraft report collected pursuant to this section will be maintained and made available for public review in the NMFS West Coast Region’s office in Seattle, Washington. (b) Upon receiving an incident report specified in § 216.117(a)(6)(ii) documenting that 8 gray whales have been struck, the Regional Administrator will evaluate: (1) The photo-identification and notification requirements described in § 216.113(a)(7)(iv) and § 216.114. The evaluation will address the status of gray whale photo-identification catalogs used to manage gray whale hunts authorized under this subpart, the E:\FR\FM\05APP1.SGM 05APP1 13624 Federal Register / Vol. 84, No. 66 / Friday, April 5, 2019 / Proposed Rules khammond on DSKBBV9HB2PROD with PROPOSALS survey efforts employed to keep those catalogs updated, the level of certainty associated with identifying cataloged WNP gray whales and PCFG whales, the role of ancillary information such as genetic data during catalog review, and any other elements deemed appropriate by the Regional Administrator. The evaluation will be made available to the public no more than 120 days after receiving the subject incident report. (2) The humaneness of the authorized manner of hunting as specified in § 216.113(a)(7)(i). To evaluate humaneness, NMFS will convene a team composed of a veterinarian, a VerDate Sep<11>2014 16:17 Apr 04, 2019 Jkt 247001 marine mammal biologist, and all tribal hunt observers and NMFS hunt observers who were witness to the strikes described in the incident reports required by this section. The team’s evaluation will address the effectiveness of the hunting methods used by the Makah Indian Tribe, the availability and practicability of other such methods, and the time to death of hunted whales, and any other matters deemed appropriate by the Regional Administrator and the team. The team’s evaluation will be made available to the public no more than 120 days after receiving the subject incident report. PO 00000 Frm 00070 Fmt 4702 Sfmt 9990 (c) The NMFS West Coast Region’s Seattle office is located at 7600 Sand Point Way NE, Seattle, WA 98115–0070. § 216.118 Expiration and amendment. (a) These regulations will expire 10 years after the effective date of the initial hunt permit specified under § 216.113(a)(1), unless extended. (b) These regulations may be periodically reviewed and modified as provided in 16 U.S.C. 1373(e). [FR Doc. 2019–06337 Filed 4–4–19; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\05APP1.SGM 05APP1

Agencies

[Federal Register Volume 84, Number 66 (Friday, April 5, 2019)]
[Proposed Rules]
[Pages 13604-13624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06337]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 190212104-9261-01]
RIN 0648-BI58


Regulations Governing the Taking of Marine Mammals

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

ACTION: Proposed rule.

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SUMMARY: On February 14, 2005, NMFS received a request from the Makah 
Indian Tribe for a waiver of the Marine Mammal Protection Act (MMPA) 
moratorium on take of Eastern North Pacific (ENP) gray whales 
(Eschrichtius robustus). The Tribe requested that NMFS authorize a 
tribal hunt in the coastal portion of the Tribe's usual and accustomed 
fishing area (U&A) for ceremonial and subsistence purposes, and 
authorize 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 of marine mammals if certain statutory criteria are 
met. The decision to waive the moratorium and issue regulations must be 
made on the record after an opportunity for an agency hearing on both 
the waiver and regulations. The hearing is governed by agency 
regulations, which call for the appointment of a presiding officer and 
prescribe other procedures. This notice announces the proposed waiver 
and regulations. A related notice announcing a hearing on the proposed 
waiver and regulations is published elsewhere in this issue of the 
Federal Register.

DATES: NMFS has scheduled a hearing before an Administrative Law Judge 
at 9:30 a.m. PDT on August 12, 2019, to consider the issuance of a 
waiver of the take moratorium and the regulations (see ADDRESSES). 
Parties interested in participating in the hearing process should 
consult the related notice of hearing published elsewhere in this issue 
of the Federal Register.
    Filing deadlines: Any person desiring to participate as a party in 
the hearing must notify the Regional Administrator (see ADDRESSES), by 
certified mail, postmarked on or before May 6, 2019. Interested parties 
should consult the related notice of hearing and regulations at 50 CFR 
part 228 for additional deadlines and hearing procedures.

ADDRESSES: The hearing before Administrative Law Judge George J. Jordan 
will be held beginning at 9:30 a.m. PDT on August 12, 2019, at the 
Henry M. Jackson Federal Building, 915 Second Avenue, 4th Floor 
Auditorium, Seattle, WA 98174.
    Information related to the hearing and the Draft Environmental 
Impact Statement (DEIS), a complete list of references cited in this 
rulemaking, and background on the Makah Tribe's waiver request will be 
available on the NMFS website at: https://www.fisheries.noaa.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt-regulations-governing-gray-whale-hunts-makah.

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: The following table of contents is intended 
as an aid to readers:

I. List of Acronyms
II. Background
    A. Relevant MMPA Provisions
    B. Whaling Convention Act
    C. North Pacific Gray Whales
III. Proposed Regulations
    A. Measures To Limit the Likelihood That Tribal Hunters Would 
Strike a WNP Whale
    B. Measures To Maintain PCFG Abundance by Limiting Lethal 
Impacts
    C. Additional Management Considerations
    1. Use of Marine Mammal Products
    2. Humane Killing
    3. Approaches, Unsuccessful Strike Attempts, and Hunt Training 
Provisions
    4. NMFS Oversight
    5. Identification of Individual Gray Whales
    6. Impacts to Species Other Than ENP Gray Whales
IV. Consistency With MMPA Requirements
    A. The Proposed Waiver Is Consistent With the MMPA
    1. The Proposed Waiver Is Based on the Best Scientific Evidence 
Available
    2. The Proposed Waiver Was Made in Consultation With the MMC
    3. The Proposed Waiver Demonstrates Due Regard for the 
Distribution, Abundance, Breeding Habits, and Times and Lines of 
Migratory Movements of ENP Gray Whales
    4. NMFS Is Assured That the Proposed Waiver Is in Accord With 
the MMPA's Purposes and Policies
    B. The Proposed Regulations are Consistent With the MMPA
    1. The Proposed Regulations Are Based on the Best Scientific 
Evidence Available and Consultation With the Marine Mammal 
Commission
    2. The Proposed Regulations Will Not Disadvantage the ENP Gray 
Whale Stock
    3. The Proposed Regulations Are Consistent With the Purposes and 
Policies of the MMPA
    4. We Have Fully Considered the Effects of the Proposed 
Regulations on the Statutory Factors
    C. The Proposed Waiver and Regulations Appropriately Manage Risk 
to WNP Gray Whales
V. Required Statements Related to the Intention To Issue Regulations
    A. A Statement of the Estimated Existing Levels of the Species 
and Population Stocks of the Marine Mammal Concerned
    B. A Statement of the Expected Impact of the Proposed 
Regulations on the Optimum Sustainable Population of Such Species or 
Population Stock
    C. A Statement Describing the Evidence Before the Agency That 
Forms the Basis for the Regulations
    D. Any Studies or Recommendations Made By or For the Agency or 
the MMC That Relate to the Establishment of the Regulations
VI. Classification

I. List of Acronyms

AWMP Aboriginal Whaling Management Plan
CFR Code of Federal Regulations
DEIS Draft Environmental Impact Statement
ENP Eastern North Pacific
ESA Endangered Species Act
E.O. Executive Order
ICRW International Convention for the Regulation of Whaling
IWC International Whaling Commission
K Carrying Capacity

[[Page 13605]]

MMC Marine Mammal Commission
MMPA Marine Mammal Protection Act
NEPA National Environmental Policy Act
NMFS National Marine Fisheries Service
OSP Optimum Sustainable Population
PBR Potential Biological Removal
PCFG Pacific Coast Feeding Group
SAR Stock Assessment Report
U&A Usual and Accustomed Fishing Area (of the Makah Tribe)
U.S.C. United States Code
WCA Whaling Convention Act
WNP Western North Pacific

II. Background

    On February 14, 2005, the Makah Indian Tribe, consistent with its 
treaty right to hunt whales as defined in the 1855 Treaty of Neah Bay 
and with the International Convention for the Regulation of Whaling 
(ICRW), submitted a request seeking authorization under the MMPA for a 
whale hunt. The Tribe requested a waiver of the MMPA take moratorium to 
authorize a tribal hunt for ENP gray whales in the coastal portion of 
the Tribe's U&A in northwest Washington State for ceremonial and 
subsistence purposes and to allow the making and sale of handicrafts.
    The Tribe submitted its 2005 request to the Assistant Administrator 
of NMFS, who delegated to the Northwest Region (now the West Coast 
Region) of NMFS authority to complete an analysis under the National 
Environmental Policy Act (NEPA) and make the initial waiver 
determination under the MMPA (NMFS, 2005; Makah Tribe, 2006). On May 9, 
2008, we, the West Coast Region of NMFS, released a DEIS. We later 
terminated that DEIS because of new scientific information, published a 
notice of intent to prepare a new DEIS, and opened a scoping process 
(77 FR 29967, May 21, 2012). On March 13, 2015, we released a new DEIS 
(80 FR 13373). The Tribe's request is included as an attachment to the 
DEIS. After full consideration of the detailed information found in the 
2015 DEIS (NMFS, 2015), public comments on our NEPA analysis, 
consultation with the Marine Mammal Commission (MMC), and information 
obtained during our review of the Tribe's request, we are proposing to 
issue a waiver and regulations that would authorize a limited Tribal 
hunt for ENP gray whales over a 10-year period. The proposed waiver and 
regulations also reflect our consultation with the Makah Tribe pursuant 
to Executive Order 13175 (see Section VI).

A. Relevant MMPA Provisions

    The primary objective of marine resource management under the MMPA 
is to maintain the health and stability of the marine ecosystem (16 
U.S.C. 1361). The MMPA states that species and population stocks of 
marine mammals should not be permitted to diminish beyond the point at 
which they cease to be a significant functioning element of the 
ecosystem, and they should not be permitted to diminish below their 
optimum sustainable population (OSP). The MMPA defines the term 
``population stock'' or ``stock'' as a group of marine mammals of the 
same species or smaller taxa in a common spatial arrangement, that 
interbreed when mature (16 U.S.C. 1362(11)). OSP is defined in the MMPA 
and NMFS regulations as a population size that is within a range from 
the carrying capacity of the ecosystem (abbreviated as K) down to the 
number of animals that results in the maximum productivity of the 
population or the species.
    The MMPA requires NMFS (or the U.S. Fish and Wildlife Service) to 
prepare a stock assessment report (SAR) for each marine mammal stock 
occurring in waters under U.S. jurisdiction (16 U.S.C. 1386(a)). The 
SAR must, among other things, describe the stock's geographic range, 
estimate its minimum abundance (Nmin) and productivity, estimate human-
caused mortality, and estimate the potential biological removal (PBR) 
for the stock. In most cases, Nmin is the lower 20th percentile of the 
distribution of the most recent abundance estimate and is the value 
selected by Wade (1998) in developing the PBR methodology. The MMPA 
defines PBR as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its OSP and includes a formula 
for calculating PBR (16 U.S.C. 1362(20)).
    The MMPA establishes a moratorium on the taking and importing of 
marine mammals (16 U.S.C. 1371(a)). ``Take'' means to harass, hunt, 
capture, or kill, or attempt to harass, hunt, capture, or kill any 
marine mammal (16 U.S.C. 1362(13)). The moratorium is not absolute. One 
exception allows NMFS to waive the take moratorium from time to time 
(16 U.S.C. 1371(a)(3)(A)), adopt suitable regulations governing that 
take (16 U.S.C. 1373), and issue permits authorizing the take (16 
U.S.C. 1374), if certain criteria are met. The Makah Tribe has 
requested that NMFS waive the take moratorium and issue regulations 
allowing a tribal hunt for ENP gray whales and the making and sale of 
handicrafts. If a waiver is granted and regulations are promulgated, 
then the Tribe must separately seek an MMPA permit to implement a hunt 
(16 U.S.C. 1374).
    A decision to waive the MMPA take moratorium must: Be based on the 
best scientific evidence available; be made in consultation with the 
MMC; and have due regard to the distribution, abundance, breeding 
habits, and times and lines of migratory movements of the marine mammal 
stock subject to take. Also, in order to waive the moratorium, NMFS 
must be assured that the taking is in accord with sound principles of 
resource protection and conservation as provided in the purposes and 
policies of the MMPA (which include maintaining marine mammals as a 
significant functioning element in the ecosystem of which they are a 
part, maintaining the health and stability of the marine ecosystem, and 
obtaining an optimum sustainable population keeping in mind the 
carrying capacity of the habitat) (16 U.S.C. 1371(a)(3)(A)).
    A decision to waive the take moratorium must be accompanied by 
regulations governing the take. Regulations to implement a waiver must 
ensure that the taking will not be to the disadvantage of the stock and 
will be consistent with the purposes and policies of the MMPA (16 
U.S.C. 1373(a)). NMFS has interpreted ``disadvantage'' in relation to 
the impact of take on the stock's OSP (e.g., 45 FR 72178, 72185, 
October 31, 1980).
    In prescribing regulations, NMFS must give full consideration to 
all factors that may affect the extent to which the stock may be taken, 
including but not limited to: Existing and future levels of marine 
mammal species and population 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 (in this case, fishery resources 
will not be affected); and the economic and technological feasibility 
of implementation (16 U.S.C. 1373(b)). The regulations may restrict, 
among other things, the number, age, size, and sex of animals taken and 
the season, manner, and location of the taking (16 U.S.C. 1373(c)). 
Regulations are subject to periodic review and modification to carry 
out the purposes of the MMPA (16 U.S.C. 1373(e)).
    The MMPA (16 U.S.C. 1373(d)) provides that an agency decision to 
waive the take moratorium and issue regulations governing the take of 
marine mammals must be made on the record after an opportunity for an 
agency hearing. Agency regulations govern the conduct of the agency 
hearing, call for the appointment of a presiding officer,

[[Page 13606]]

and prescribe other procedures (50 CFR part 228). Either before or 
concurrent with the public notice of our intention to issue 
regulations, we must make available to the public:
    1. A statement of the estimated existing levels of the species and 
population stocks of the marine mammal concerned;
    2. A statement of the expected impact of the proposed regulations 
on the OSP of such species or population stock;
    3. A statement describing the evidence before the agency that forms 
the basis for the regulations; and
    4. Any studies made by or for the agency or any recommendations 
made by or for the agency or the MMC that relate to the establishment 
of the regulations.
16 U.S.C. 1373(d). These statements are provided in Section V below.
    If NMFS waives the MMPA take moratorium for ENP gray whales and 
issues regulations governing a tribal hunt, the Makah Tribe would have 
to obtain a permit from NMFS prior to taking any whales. The permit 
process includes the opportunity for public notice and comment (16 
U.S.C. 1374). Under the MMPA, the permit applicant must demonstrate 
that the taking of marine mammals under the permit would be consistent 
with the purposes and policies of the MMPA and the applicable 
regulations. A permit must specify the following:
    1. The number and kinds of animals authorized to be taken;
    2. The location and manner (which the Secretary must determine to 
be humane) in which they may be taken;
    3. The period during which the permit is valid; and
    4. Other terms or conditions that the Secretary deems appropriate.
    The MMPA defines ``humane'' as that method of taking which involves 
the least possible degree of pain and suffering practicable to the 
mammal involved (16 U.S.C. 1362(4)). NMFS has worked within the IWC to 
improve the humaneness of whale-killing methods in aboriginal 
subsistence whaling, focusing on reducing the length of time to death 
of a whale (i.e., reducing the amount of time between the strike and 
the death) to improve humaneness (IWC, 2004; IWC, 2007; IWC, 2012) as 
well as to address hunting efficiency. The Makah Tribe proposed to use 
a toggle point harpoon as the weapon for striking whales and a .50 
caliber rifle as the weapon for killing whales. The DEIS describes the 
detailed analyses commissioned by NMFS and others to examine the 
suitability of using a .50 caliber rifle to dispatch a gray whale and 
the conclusions of the reviewers that a .50 caliber rifle is capable of 
quickly killing a gray whale (DEIS Subsection 3.4.3.5.4, Method of 
Killing and Time to Death). A determination regarding whether the 
Tribe's proposed method of hunting is humane and meets the other 
requirements listed above for issuance of a permit would be decided 
through the permit process (16 U.S.C. 1374). The permit process is 
subsequent to and separate from the waiver process and therefore not 
part of this proceeding. The permit process is described here and 
discussed elsewhere in this proposed rule to provide context for the 
proposed regulations. In addition to a NMFS-issued permit, the Tribe 
would establish a separate process for the issuance of tribal whaling 
permits by the Makah Tribal Council (Makah Tribe, 2005; Makah Tribe, 
2013).

B. Whaling Convention Act

    Because the Tribe's request involves a large whale species, the 
Tribe would need to obtain authorization from NMFS in accordance with 
the Whaling Convention Act (WCA), which implements the United States' 
obligations under the ICRW. The ICRW establishes the International 
Whaling Commission (IWC), an inter-governmental organization whose 
purpose is the conservation of whales and the management of whaling. 
The ICRW includes a legally binding document called the ``Schedule,'' 
which, among other things, sets out catch limits for aboriginal 
subsistence whaling.
    Since 1997, the Russian Federation and the United States have 
regularly submitted a joint proposal to the IWC for an aboriginal 
subsistence whaling catch limit for ENP gray whales on behalf of 
Chukotkan natives and the Makah Tribe, respectively. In response, the 
IWC has repeatedly established catch limits for ENP gray whales. At its 
September 2018 meeting, the IWC approved a new catch limit of 980 ENP 
gray whales for the period 2019-2025 with an annual cap of 140 whales. 
This catch limit became effective December 29, 2018 (IWC, 2018a). A 
bilateral agreement between the United States and Russian Federation 
sets overall and annual limits for the two countries (Fominykh and 
Wulff, 2018), with the Makah Tribe entitled to a maximum of 5 whales 
per year. This agreement also specifies that any quota unused by one 
country may be transferred to the other. In past years, the United 
States has transferred its entire quota to Russia for use by the 
Chukotkan hunters (e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and 
DeMaster, 2012; Fominykh and Smith, 2016; Fominykh and Wulff, 2017).
    If NMFS waives the MMPA take moratorium for ENP gray whales and 
issues regulations governing a tribal hunt, the Makah Tribe and NMFS 
would need to complete procedures established in the WCA and 
implementing regulations at 50 CFR part 230 to allocate a domestic 
catch limit for ENP gray whales to the Makah Tribe consistent with the 
IWC Schedule and the bilateral agreement. This would include publishing 
those catch limits and entering into a cooperative agreement with the 
Tribe. Those processes are subsequent to and separate from the MMPA 
process of waiving the take moratorium and issuing regulations.

C. North Pacific Gray Whales

    The life history, status, and distribution of North Pacific gray 
whales are described in detail in the DEIS (Subsection 3.4, Gray 
Whales). We summarize that information here and discuss the ENP gray 
whale stock in more detail in a companion biological report (NMFS, 
2019a), which we incorporate by reference.
    NMFS recognizes two stocks of gray whales, one from the western 
North Pacific (WNP stock) and one from the eastern North Pacific (ENP 
stock). Through the SAR process, NMFS concluded that the best 
scientific information available consists of genetic information 
showing significant mitochondrial and nuclear genetic differences 
between the WNP and ENP stocks (Carretta et al., 2017). The IWC also 
manages the two stocks separately (IWC, 2018a), and the International 
Union for Conservation of Nature recognizes them as two subpopulations 
(Reilly et al., 2008).
    Commercial whaling from the mid-nineteenth through early twentieth 
centuries dramatically reduced the abundance of the gray whale, leading 
to its protection by a suite of international agreements and federal 
laws including the WCA and MMPA. The gray whale was listed as an 
endangered species under the Endangered Species Act (ESA) and its 
predecessor statute beginning in 1970 (35 FR 8495, June 2, 1970). As a 
result of protection from commercial exploitation, the ENP gray whale 
stock recovered and in 1994 was removed from the ESA's list of 
endangered and threatened wildlife (59 FR 21094, June 16, 1994). It 
currently numbers approximately 27,000 animals (Durban et al., 2017). 
NMFS has continued monitoring the population since its delisting 
(Carretta et al., 2017). The WNP stock remains listed as

[[Page 13607]]

endangered (50 CFR 223.102) and numbers approximately 200 non-calf 
animals (Cooke, 2018).
    The ENP gray whale stock spends the winter as far south as the Baja 
California Peninsula and Gulf of California in northwestern Mexico and 
migrates north to summer feeding areas as far as the Chukchi and 
Beaufort Seas. A small group of ENP whales, referred to as the Pacific 
Coast Feeding Group (PCFG) exhibits seasonal fidelity to feeding 
grounds off the West Coast of the United States and Canada. Whales that 
are photo-identified within the region between northern California and 
northern Vancouver Island (from 41[deg]N lat. to 52[deg]N lat.) during 
the summer feeding period of June 1 to November 30, in two or more 
years, are defined by the IWC as belonging to the PCFG (IWC, 2011a; 
IWC, 2011b; IWC, 2011c). NMFS has adopted this definition (Carretta et 
al., 2017).
    Scientists have studied the PCFG for several decades, and NMFS has 
monitored the PCFG for more than 15 years. The size of the group has 
remained relatively stable at about 200 animals since 2002 and is 
recently increasing (Calambokidis et al., 2017).
    NMFS scientists and others have examined genetic and other 
information to determine whether the PCFG should be considered a 
separate stock under the MMPA (Frasier et al., 2011; Lang et al., 
2011b). They found that sampled whales that meet the definition of the 
PCFG have small but significant differences in the diversity of 
mitochondrial DNA (mtDNA), which is inherited only from the mother, 
compared to whales on the northern feeding grounds of the Bering, 
Chukchi, and Beaufort Seas. However, no significant differences were 
found between these two groups when nuclear microsatellite data, which 
represent the DNA inherited from both parents, were analyzed. Similar 
results were found by other researchers (D'Intino et al., 2013) despite 
different sample collections used to represent the PCFG and the larger 
ENP stock. These results indicate that calves likely follow their 
mothers to feeding areas and to some extent return to those feeding 
areas in subsequent years. Whales that frequent one feeding area, 
however, are not necessarily reproductively isolated from whales that 
frequent other feeding areas.
    NMFS considered whether the PCFG warrants designation as a stock 
under the MMPA through the SAR process. NMFS has issued several SARs 
addressing this issue (78 FR 19446, April 1, 2013; 79 FR 49053, August 
19, 2014; 80 FR 50599, August 20, 2015). NMFS continues to find that 
the existing information does not support a conclusion that the PCFG is 
a stock. This finding is based in part on the deliberations of a NMFS 
task force that found the evidence equivocal as to whether the 
population dynamics of the PCFG are more a product of internal 
recruitment (calves coming to the area with mothers) versus external 
recruitment (whales recruiting to the area who are not calves of PCFG 
mothers) (Weller et al. 2013). The current SAR (Carretta et al., 2017) 
represents NMFS' determination on this issue, although NMFS will 
continue to evaluate through the SAR process any new science on this 
issue as it does for the identification of marine mammal stocks in 
general. Accordingly, this waiver process applies at the level of the 
ENP gray whale stock as a whole (which includes whales in the PCFG).
    In the 2012 SAR, NMFS determined that the ENP gray whale stock was 
within its OSP range (Carretta et al., 2013). It has remained within 
OSP since that time. The most recent ENP gray whale SAR notes that 
abundance will continue to fluctuate in response to human and natural 
factors affecting carrying capacity, consistent with a population 
approaching carrying capacity (K) (Carretta et al., 2017). The SAR 
calculates the PBR for the ENP gray whale stock to be 624 whales per 
year (Carretta et al., 2017). The primary source of human-caused 
mortality is the Chukotkan hunt, which took 127 whales per year on 
average from 2008 to 2012 (Carretta et al., 2017). Other sources of 
human-caused mortality in U.S. waters, such as ship strikes and 
entanglement in fishing gear, result in about 6 ENP gray whale deaths 
per year. The SAR does not calculate a separate PBR for ENP gray whales 
in U.S. waters, or report on human-caused mortality outside of U.S. 
waters except for ENP gray whales killed in the Chukotkan hunt. NMFS 
guidance on preparing stock assessments (NMFS, 2016) advises 
calculating a PBR for U.S. waters for transboundary stocks when there 
is no international conservation regime in place and it is reasonable 
to do so.
    Although NMFS does not recognize the PCFG as a separate stock, the 
2012 SAR (Carretta et al., 2013) and subsequent SARs have reported on 
population parameters and calculated an informational PBR for the PCFG, 
because the PCFG appears to be a feeding aggregation and may warrant 
consideration as a stock in the future. The term ``feeding 
aggregation'' is used by biologists in the scientific literature to 
describe concentrations of whales that forage in a specific area but 
the term is not intended to signify that such whales constitute a stock 
as that term is defined under the MMPA. The SAR notes that calculating 
this separate PBR allows NMFS to assess whether levels of human-caused 
mortality are a management concern for this group. (The SAR uses the 
term ``local depletion,'' which is not defined in agency regulations or 
guidelines, so we have not adopted that concept here.) It is unknown 
whether the PCFG, if it were eventually designated a stock, would be 
within OSP due to uncertainties in population parameters such as 
emigration and immigration rates, bycatch mortality, and recruitment 
(Punt and Moore, 2013).
    The most recent (2015) abundance estimate of PCFG whales 
(Calambokidis et al., 2017) is 243 whales with an Nmin of 228. 
Calambokidis et al. (2017) note that PCFG abundance estimates show a 
high rate of increase in the late 1990s and early 2000s and now appear 
to be relatively stable since 2002. The most recent SAR (Carretta et 
al., 2017) reports human-caused mortality of PCFG whales in U.S. waters 
as 0.25 whales per year, based on data from 2008 through 2012. As with 
most SARs, this is a minimum estimate because not all whales killed as 
a result of human actions are documented. Similar to the analysis for 
the entire ENP stock, the SAR does not calculate a separate 
informational PBR for PCFG whales in U.S. waters, or report on human-
caused mortality outside of U.S. waters.
    Concerns for ENP gray whales identified in the SAR include injuries 
due to fisheries interactions, ship strikes, and marine debris, as well 
as a number of habitat concerns such as industrialization, pollution, 
and shipping congestion throughout the nearshore migratory corridors. 
Climate change is likely to affect the availability of habitat and prey 
species, but species such as the gray whale (which feed on both benthic 
and pelagic prey) have been predicted in some studies (e.g., Bluhm and 
Gradinger, 2008) to adapt better than trophic specialists. Human 
exploration and development activities (e.g., for oil and gas deposits) 
are also expected to increase in the Arctic and elsewhere, which in 
turn could increase risks to whales from spills, ship strikes, and 
anthropogenic noise. The SAR does not indicate that these factors are a 
threat to the OSP status of the ENP stock at this time.

III. Proposed Regulations

    The Tribe has requested a waiver allowing the harvest of 20 ENP 
gray whales every 5 years and a limit of 7 strikes per hunting season, 
with the presumption that a struck whale would

[[Page 13608]]

die. The Tribe proposes hunting only in the coastal portion of their 
U&A. Its request included provisions to satisfy IWC requirements, avoid 
local depletion of PCFG whales, safeguard public and hunter safety, and 
preserve cultural aspects of the hunt while promoting humaneness. The 
Tribe is also requesting authorization to use non-edible whale products 
for the making and sale of handicrafts.
    Our proposed waiver and regulations respond to the Tribe's request 
by authorizing a more limited hunt for ENP gray whales for a 10-year 
period and allowing for the making and sale of handicrafts. Our 
proposed regulations adopt the Tribe's proposals to limit hunting to 
the coastal portion of the Tribe's U&A (the hunt area) and to presume 
that any struck whale will die.
    Two key management goals shaped many of the provisions in the 
proposed regulations: (1) Limiting the likelihood that tribal hunters 
would strike or otherwise harm a WNP gray whale and (2) ensuring that 
hunting does not reduce PCFG abundance below recent stable levels. 
Regarding the first management goal, in adopting regulations to 
implement a waiver, NMFS must consider all factors that may affect the 
allowable level of take (16 U.S.C. 1373(b)). Although the Tribe has not 
requested a waiver of the take moratorium for WNP gray whales, we 
determined that potential effects of a hunt on WNP whales are a 
relevant consideration. While uncommon, there are documented 
occurrences of WNP whales transiting the Makah U&A, and hunters would 
not be able to visually distinguish WNP whales from ENP whales during a 
hunt. The regulations are designed to minimize the risk of a WNP whale 
being struck or harmed over the duration of the waiver.
    Regarding the second management goal, the MMPA requires that in 
waiving the take moratorium we give due regard to, among other things, 
the distribution and times and lines of migratory movements of the 
stock subject to waiver, and that the waiver be in accord with the 
purposes and policies of the MMPA, which include maintaining marine 
mammals as a functioning element of their ecosystem. PCFG whales 
exhibit site fidelity during the feeding season to the northern 
California current ecosystem, a unique area within the range of the ENP 
gray whale stock. The proposed regulations would limit lethal and sub-
lethal effects to PCFG whales to ensure that hunting does not reduce 
their abundance and distribution within the PCFG range.
    Measures in the proposed regulations to achieve these two 
management goals include:
     Alternating Hunt Seasons. Even-year hunts would occur 
during the migration season (December 1 of an odd-numbered year through 
May 31 of the subsequent even-numbered year) to reduce risk to PCFG 
whales. Odd-year hunts would occur during the feeding season (July 1 
through October 30 of odd-numbered years) to reduce risk to WNP whales.
     Strike Limits. 3 strikes during even-year hunts and 2 
strikes during odd-year hunts.
     PCFG Strike Limits. 16 strikes over 10 years.
     Landing Limits. 3 whales in even-year hunts and 1 whale in 
odd-year hunts.
     PCFG Abundance Trigger. Hunting ceases if PCFG abundance 
falls below 192 whales (or the PCFG minimum abundance estimate falls 
below 171 whales).
    Other management measures in the proposed regulations are described 
in Subsection III(C) below.

A. Measures To Limit the Likelihood That Tribal Hunters Would Strike a 
WNP Whale

    The Tribe originally proposed a hunting season of December 1 
through May 31, when most ENP gray whales are migrating to and from 
northern feeding grounds (the migration season), to minimize the 
potential that a PCFG whale would be killed. Scientists subsequently 
observed WNP whales in the ENP, including in the Tribe's U&A, during 
the migration season (Mate et al., 2015). Although the risk is very 
small (there are about 200 WNP whales and about 27,000 ENP whales), 
this creates the possibility that a tribal hunt at that time could 
strike a WNP whale that is mixed in with ENP whales. To limit the risk 
of a WNP whale being struck, the proposed regulations would authorize a 
hunt during the migration season with two important restrictions: (1) 
Hunting would only be allowed every other year, proposed for even 
years, and (2) only three whales could be struck in an even-year hunt. 
The proposed regulations would also authorize a hunt in odd years 
during the feeding season (July 1 through October 31), when WNP whales 
would be feeding in the western North Pacific. Because WNP whales are 
not expected to be in the Tribe's U&A during the feeding season, 
authorizing a hunt at this time would avoid impacts to WNP whales.
    During an even-year hunt, the regulations would allow only one 
strike in a 24-hour period as a precaution against striking multiple 
WNP gray whales that might be travelling together in a group (Weller et 
al., 2012). Also, once a whale were landed, the Tribe could not hunt 
again until NMFS notified the Tribe whether the landed whale was a WNP 
whale. In the unlikely event the Tribe did strike a WNP whale (in 
either an even- or odd-year hunt), all hunting would cease unless and 
until the Regional Administrator determined that measures were taken to 
ensure that no additional WNP gray whales were struck during the waiver 
period. In addition to limits on strikes, the regulations would impose 
limits on approaches, hunt training activities, and unsuccessful strike 
attempts, as explained in Subsection III(C) below. Finally, the 
regulations would not allow hunting in the month preceding and the 
month following the migration season (i.e., November and June) to 
provide extra protection against striking or otherwise harming a WNP 
whale.

B. Measures To Maintain PCFG Abundance by Limiting Lethal Impacts

    The proposed regulations contain a number of restrictions to limit 
PCFG mortality, with the goal of maintaining ENP gray whale 
distribution and functioning within the PCFG feeding area. Consistent 
with the Tribe's proposal, the regulations would prohibit hunting in 
the portion of the Tribe's U&A within the Strait of Juan de Fuca, in 
part as a human safety measure, but also because during the migration 
season there is a higher proportion of PCFG whales in the Strait. Also, 
the regulations would allow only 2-strikes during odd-year (summer/
fall) hunts, when PCFG whales are most likely to be present in the hunt 
area. As an additional protection, the regulations would impose a limit 
of one landed whale in odd-year hunts, creating the potential for a 
single strike.
    The proposed regulations would include a cumulative limit of 16 
strikes on PCFG whales over the 10 years of the regulations (for an 
average of 1.6 whales per year), of which no more than 8 could be 
females. The strike limit for PCFG females is a precautionary measure 
given recent evidence that PCFG whales may be recruited through 
maternally directed site fidelity (Frasier et al., 2011; Lang et al., 
2011b). The regulations would also limit approaches, training 
activities, and unsuccessful strike attempts on PCFG whales, as 
discussed in Subsection III(C) below, to minimize the risk that the 
hunt would cause PCFG whales to avoid the PCFG feeding area.
    Under the proposed regulations, strikes and unsuccessful strike 
attempts

[[Page 13609]]

would be counted against the PCFG strike limits in various ways 
depending on the season and whether the whale's identity (PCFG or non-
PCFG) could be determined through photographic or genetic matching. The 
regulations propose that any whale struck (landed or struck and lost) 
during odd-year (summer/fall) hunts would count as a PCFG whale, unless 
identified as a WNP gray whale. This method of accounting is 
conservative, as PCFG whales are currently estimated to comprise about 
48 percent of gray whales in the hunt area during this time 
(Calambokidis et al., 2017). During even-year (winter/spring) hunts, a 
struck whale identified as a PCFG whale would be counted against the 
PCFG strike limit, while a whale not identified as PCFG would not count 
against that limit. Struck whales for which identification could not be 
performed due to lack of a useable photograph or tissue sample would be 
counted in proportion to the estimated percentage of PCFG whales in the 
hunt area during the month of the strike, based on the best available 
information (the current estimate is that about 28 percent of whales in 
the hunt area during the migration season are PCFG whales (IWC, 
2018b)). Females are currently estimated to comprise 50 percent of the 
PCFG (A. Lang, NMFS, personal communication, 2017), which would be 
factored into the accounting for struck and lost whales if the animal's 
sex was unknown.
    Finally, in addition to these limits, the proposed regulations 
would not allow hunting in a given year if the estimated PCFG abundance 
for that year were below 192 whales or the Nmin were below 171 whales 
(low abundance triggers). The purpose of this additional measure is to 
ensure that, in the event PCFG abundance declines, for whatever reason, 
the hunt would not exacerbate the decline. Given that recent PCFG 
abundance estimates are around 240 whales with an overall increasing 
trend and the proposed strike limits would result in PCFG mortality of 
1.6 whales per year on average, a reduction on this scale would likely 
be due to some cause unrelated to the hunt. Because published 
population estimates typically lag one or more years behind the most 
currently available survey data, estimates for an upcoming hunting 
season would be projected using a population forecast model fit to the 
time series of data. The threshold values of 192 and 171 represent the 
best and minimum (20th percentile) estimates of abundance for the PCFG 
in 2007. We selected these levels as the low-abundance triggers because 
they are the lowest values estimated for the population during the 
recent period of stability starting in 2002 (Calambokidis et al., 
2017).
    The Tribe's request, as well as some of the DEIS alternatives, used 
PBR-based approaches to manage impacts on PCFG whales instead of the 
combination of PCFG strike limits and low-abundance triggers that we 
are now proposing. After considering the best available scientific 
information, including the Tribe's proposal, public and MMC comments on 
the DEIS, and recommendations from the MMC, we chose the current 
approach for a number of reasons. First, some public comments and the 
MMC suggested that a PBR approach should account for total human-caused 
mortality, including deaths and serious injuries that occur outside 
U.S. waters. As noted above, the SAR for ENP gray whales (Carretta et 
al., 2017) calculates an informational PBR overall for the PCFG, not an 
allocation of PBR for U.S. waters, and reports only human-caused 
mortality in U.S. waters. Though future SARs might attempt such 
estimates, we currently lack sufficient information to do so.
    Second, the PBR approach establishes a precautionary way (use of 
PBR achieves the abundance goals in 95 percent of model runs) to manage 
marine mammal stocks for which relatively little population data exist, 
such as imprecise and infrequent abundance estimates or little 
information on trends and productivity, as is often the case for 
cetaceans and other marine mammals (Taylor et al., 2000; Wade, 1998). 
For the PCFG, population dynamics are well understood (for example 
population size and growth are measured accurately and frequently), 
allowing us to make informed management decisions using other tools. 
Over 20 years of annual photo-identification surveys have been 
conducted for the PCFG, yielding relatively precise abundance estimates 
compared to other cetacean populations. These estimates allow us to 
employ the population forecast model mentioned above to assist in 
making more timely decisions for managing PCFG mortality (NMFS, 2019a). 
This approach is appropriate for the PCFG, where population information 
is readily available and abundance has been stable over a period of 
nearly 15 years.
    Third, the PBR approach was developed for ``closed'' populations, 
where the maximum rate of recruitment is determined in part by the 
number of births that are biologically possible. In the case of the 
PCFG, new recruits come from immigration as well as births, and whales 
leave the population by emigration as well as death. While the 
informational PBR in the SAR represents a useful tool for the agency to 
monitor the stability of the PCFG, it may not reflect actual population 
dynamics because recruitment for an open population is not limited by 
reproductive biology. Given these considerations, we concluded that 
reliance on the informational PCFG PBR was not the best available tool 
for managing the proposed hunt and that the PCFG strike limits and low-
abundance triggers would provide a more robust and timely mechanism for 
achieving our management goal of maintaining PCFG abundance.

C. Additional Management Considerations

    In addition to the management goals stated above, the management 
considerations described below informed our proposed waiver and 
regulations.
1. Use of Marine Mammal Products
    The proposed regulations would allow the Makah Tribe to use edible 
and nonedible ENP gray whale products with certain restrictions. Tribal 
members would be able to use, share or gift (i.e., voluntarily transfer 
to another person without compensation), and barter (i.e., 
noncommercial exchange for items other than money) edible whale 
products with other members, both within and outside the reservation. 
Tribal members could also share edible products with non-members within 
the reservation, but could only share them with non-members outside the 
reservation as part of a gathering sanctioned by the tribal council 
where limited quantities were served. This would allow Makah tribal 
members wide use of edible products within the reservation, including 
sharing with non-tribal members. Limitations on use outside the 
reservation are intended to prevent opportunities for commercial 
exchange. No person would be allowed to sell or purchase edible ENP 
gray whale products.
    For non-edible products, permissible uses would depend on the type 
and location (on or off the reservation) of the product. The 
regulations identify three types of non-edible products: Unaltered 
products (those that have not been fashioned into handicrafts), 
handicrafts that have been marked and certificated by the Tribe, and 
handicrafts that have not been marked and certificated. Only 
handicrafts made by tribal members and marked and certificated by the 
Tribe could be sold or be possessed off-reservation by non-tribal 
members. The regulations would allow tribal members

[[Page 13610]]

to freely exchange unaltered products with one another for personal use 
or for later fabrication into handicrafts and would allow tribal 
members to share their handicrafts with non-members without going 
through the marking and certification process, however possession of 
non-certificated handicrafts by non-tribal members would be allowed 
only within the reservation boundaries. To ensure compliance with these 
provisions, the Tribe would be required to maintain an official record 
of all articles of Makah Indian handicraft certificated by the Tribe.
    Some of the proposed definitions and concepts regarding the use of 
marine mammal products are similar to those governing the take of 
marine mammals by Alaska Natives. For example, the definition for 
barter is consistent with agency regulations at 50 CFR 216.3 pertaining 
to subsistence use of marine mammals by Alaskan Natives, and the 
definition for Makah Indian handicrafts is largely based on the 
agency's definition of authentic native articles of handicrafts in 50 
CFR 216.3. Additionally, similar to regulations in 50 CFR 216.23 on 
Alaska Native exceptions to the marine mammal take moratorium, the 
proposed regulations provide for different uses of edible and non-
edible products, and restrict the location and types of transactions 
that may occur.
2. Humane Killing
    As explained in Section II, if NMFS issues a waiver and regulations 
allowing a tribal hunt, the Tribe would be required to follow a 
separate MMPA process to obtain a permit before carrying out a hunt (16 
U.S.C. 1374). Prior to issuing any MMPA permit, NMFS must determine, 
among other things, that the proposed method of taking is ``humane,'' 
as defined in the MMPA (16 U.S.C. 1362(4), 1374(b)). To ensure that 
advances in science and methodology addressing efficiency and 
humaneness are incorporated in a timely fashion, NMFS would regularly 
review this issue through the permit process. The proposed regulations 
provide that NMFS will convene a team of experts to evaluate hunt 
humaneness and effectiveness after 8 gray whales have been struck, to 
inform any subsequent hunt permits.
3. Approaches, Unsuccessful Strike Attempts, and Hunt Training 
Provisions
    Recognizing that actions by tribal hunters short of killing a gray 
whale may affect whales and may constitute a take under the MMPA, the 
proposed regulations would limit the number of approaches and 
unsuccessful strike attempts, including those associated with hunt 
training. The regulations define a ``hunting approach'' as causing a 
vessel to be within 100 yards of a gray whale during a hunt. The 100-
yard limit is consistent with permit conditions NMFS imposes for 
research vessels on large cetaceans (e.g., 60 FR 3775, January 19, 
1995; 66 FR 29502, May 31, 2001), as well as guidelines for all 
motorized and non-motorized vessels as defined in NMFS' ``Be Whale 
Wise'' guidelines that recommend staying 100 yards (91 m) from all 
marine mammals, noting that there is a regulation prohibiting 
approaches closer than 200 yards (183 m) for killer whales in inland 
waters of Washington (50 CFR 224.103(e)).
    The regulations would authorize no more than 353 approaches of ENP 
gray whales (including both hunting and training approaches) each 
calendar year, of which no more than 142 could be of PCFG whales. As 
with strikes, approaches would be accounted for proportionally in even-
year (winter/spring) hunts and presumed to all be PCFG whales in odd-
year (summer/fall) hunts. These values were analyzed in the DEIS and 
are maximum estimates based on observations during the Tribe's hunt in 
2000 (Gearin and Gosho, 2000). The purpose of this provision is to 
limit the extent to which WNP and PCFG whales may be encountered and 
possibly disturbed in the hunt area.
    The proposed regulations would authorize no more than 18 
unsuccessful strike attempts during even-year hunts and 12 unsuccessful 
strike attempts during odd-year hunts. These limits are based on 
experience gained from Makah gray whale hunts conducted in 1999 and 
2000 and, as described in the DEIS, rely on a 6:1 ratio of unsuccessful 
strike attempts to successful strikes. Each training harpoon throw 
would count as an unsuccessful strike attempt because the level of 
impact on whales is expected to be similar. Training harpoon throws 
could occur in any month in even-numbered years but would be restricted 
to the hunting season (July through October, when WNP whales are not 
expected in the hunt area) in odd-numbered years to reduce the risk of 
encountering WNP whales over the waiver period. All training harpoon 
throws would count against the unsuccessful strike attempt limit in 
effect during the calendar year of the throw. Similar to the limit on 
approaches, the purpose of these provisions is to limit the risk of 
non-lethal impacts, particularly to WNP and PCFG whales.
    The proposed regulations recognize training as an important 
component of the management of a tribal hunt. The proposed regulations 
define training vessels as those not carrying hunting weapons; training 
approaches as those made by training vessels; and a training harpoon 
throw as the use of a blunted spear incapable of penetrating a whale's 
skin. The proposed regulations would authorize training approaches at 
any time but would limit the times when training harpoon throws could 
occur as described above.
4. NMFS Oversight
    Although we expect the Makah tribal government to manage any 
hunting by tribal members, the proposed regulations anticipate an 
ongoing oversight role by NMFS through the Regional Administrator for 
the West Coast Region. The regulations include a number of provisions 
that facilitate NMFS' oversight. For example, the Tribe must provide 
NMFS advance notice of hunts; hunt parties must accommodate a NMFS 
observer on hunt expeditions if requested; and the Tribe must allow 
NMFS to sample and photograph landed whales. The first hunt permit must 
be limited to a 3-year term (as opposed to the 5-year maximum under the 
MMPA) to allow for adjustments in future years if areas for improvement 
are identified.
5. Identification of Individual Gray Whales
    The regulations include provisions for photographic (or genetic) 
identification of WNP and PCFG gray whales. For PCFG whales, we expect 
most identifications would be performed by the Cascadia Research 
Collective (Cascadia), which has maintained photo-identification 
catalogs for many years. Cascadia receives some but not all of its 
catalog funding for gray whales from NMFS. Several researchers 
participate in Cascadia's photo-identification program and provide 
photographs to Cascadia. Photographs taken by researchers under NMFS 
funding are also provided to the NMFS Marine Mammal Lab in Seattle, 
Washington. For WNP gray whales, there are currently two catalogs 
maintained by Russian researchers. The IWC is currently facilitating 
the development of a unified WNP catalog and related database to be 
held under the auspices of the IWC (IWC, 2017). Once developed, we 
expect that Cascadia will have access to this unified catalog and be 
able to provide identifications of WNP gray whales to NMFS via a 
contractual agreement.

[[Page 13611]]

    To ensure that the photo-ID requirements can be effectively 
implemented, the regulations would require that, before issuing a hunt 
permit to the Tribe, the Regional Administrator determine that there 
are adequate photo-identification catalogs and processes available to 
allow for the identification of PCFG and WNP whales. In addition to the 
quality of the catalogs, there must be reliable processes in place for 
making identifications. Currently Cascadia provides this service for 
the PCFG catalog and has demonstrated an ability to make matches within 
24 hours (J. Calambokidis, Cascadia Research Collective, personal 
communication, 2017). As with the PCFG catalog, Cascadia and curators 
of the WNP catalogs are able to rapidly compare newly obtained 
photographs of whales with existing photographs in the WNP catalogs to 
look for individual matches (J. Calambokidis, Cascadia Research 
Collective, and Dave Weller, NMFS, personal communication 2019). NMFS 
will either develop a contractual mechanism or in-house expertise prior 
to issuing permits to ensure adequate catalogs for PCFG and WNP whales 
are maintained and matches can be quickly made. Also, we have developed 
a protocol that describes the requirements for adequate catalogs and 
for photo and genetic identification processes (NMFS, 2019b).
6. Impacts to Species Other Than ENP Gray Whales
    Under the proposed regulations, any hunt permit issued by the 
Regional Administrator could require that hunters avoid specified areas 
to prevent and/or reduce the risk of disturbance to Olympic Coast 
National Marine Sanctuary resources such as seabirds and pinnipeds. 
This provision is intended to protect other living resources in the 
hunt area. Also, if a hunt for ENP gray whales is expected to result in 
the incidental take of other marine mammals, the regulations require 
that the Tribe obtain separate MMPA authorizations for such take, as 
determined necessary by the Regional Administrator, before a hunt 
permit may be issued.

IV. Consistency With MMPA Requirements

    Relying on the best available scientific evidence and the statutory 
factors related to gray whale biology and ecosystem considerations, 
this section presents our determination that the proposed waiver and 
the proposed regulations are consistent with MMPA requirements.

A. The Proposed Waiver Is Consistent With the MMPA

    As discussed above, the MMPA requires that any decision to waive 
the MMPA take moratorium be based on the best scientific evidence 
available; be made in consultation with the MMC; and have due regard to 
the distribution, abundance, breeding habits, and migratory movements 
of the marine mammal stock subject to take. Also, we must be assured 
that the taking is in accord with sound principles of resource 
protection and conservation as provided in the purposes and policies of 
the MMPA (16 U.S.C. 1361, 1371(a)(3)(A)).
1. The Proposed Waiver Is Based on the Best Scientific Evidence 
Available
    In developing the proposed waiver, we relied on the best available 
scientific evidence related to the statutory requirements, including 
the following: the most recent SARs for ENP and WNP gray whales 
(Carretta et al., 2017); the 2015 DEIS (NMFS, 2015); the NMFS gray 
whale stock identification workshop (Weller et al., 2013); the NMFS 
analysis estimating the probability of encountering WNP gray whales 
during a Makah hunt (Moore and Weller, 2018); IWC modeling of our 
proposed regulations relative to IWC conservation objectives for North 
Pacific gray whales (IWC, 2018b); and the NMFS biological report (NMFS, 
2019a). We incorporate by reference those documents and the documents 
cited in those reports.
2. The Proposed Waiver Was Made in Consultation With the MMC
    Subsection V(D) describes the consultation we completed with the 
MMC.
3. The Proposed Waiver Demonstrates Due Regard for the Distribution, 
Abundance, Breeding Habits, and Times and Lines of Migratory Movements 
of ENP Gray Whales
    The biological report (NMFS, 2019a) provides a detailed description 
of our consideration of the distribution, abundance, breeding habits, 
and migration of ENP gray whales. Below we summarize our assessment of 
those criteria.
Distribution
    The proposed waiver is unlikely to have an appreciable effect on 
the distribution of ENP gray whales through mortality of PCFG whales or 
disturbance of migrating whales or feeding whales. The proposed waiver 
and regulations demonstrate due regard for the possibility that hunting 
could result in changes in distribution by including provisions 
limiting mortality of PCFG whales and limiting interactions with ENP 
whales in general and PCFG whales in particular. No more than 25 whales 
could be struck, and only 16 of the strikes could be PCFG whales 
(average 1.6/year), with a limit of 8 strikes (average 0.8/year) of 
PCFG females. Unsuccessful strike attempts would be limited to 18 
during even-year hunts and 12 in odd-year hunts, and approaches within 
100 yards would be limited to 353 (142 PCFG) per year. In addition, the 
PCFG low abundance triggers would require that hunting cease if PCFG 
abundance declined below recent stable levels.
    Through hunt-related mortality, the proposed waiver may reduce the 
abundance of PCFG whales by up to 16 whales over a 10-year period. The 
proposed waiver demonstrates due regard for this possibility by 
including provisions to maintain PCFG abundance. We conclude that these 
measures will ensure that the waiver does not reduce range-wide 
distribution of the ENP stock, including distribution within the PCFG 
range, based on the following considerations: (1) Agency modeling 
indicates that the PCFG is likely to grow in the future with or without 
a tribal hunt (NMFS 2018a). The proposed regulations include 
protections in the event the PCFG declines rather than increases; (2) 
If PCFG abundance continues to be stable, removal by hunting of 16 PCFG 
whales over 10 years is projected to result in an abundance of around 
227 whales, which is well above the lowest abundance level observed 
during the recent period of stability. That level was 192 whales in 
2007, and by 2015 the population had grown 25 percent to 243 animals; 
(3) From 2002 through 2015, the PCFG grew from 197 to 243 animals, 
which is a total of 46 whales, or an average annual increase of 3.5 
whales over 13 years. At that rate of increase, the PCFG would grow by 
an additional 35 animals over the 10 years of the proposed waiver. That 
number is twice the maximum number of PCFG whales that could be killed 
(16) under the proposed regulations; and (4) If PCFG abundance 
declines, the low abundance trigger would ensure that no hunting will 
occur if abundance falls below the levels observed during a recent 14-
year stable period, specifically 192 animals or an Nmin of 171 animals. 
Also, the inclusion of an Nmin trigger provides a safeguard against 
incomplete or lagging abundance estimates.
    Though hunt-related activities might cause ENP gray whales to alter 
their distribution in the hunt area

[[Page 13612]]

temporarily, it is unlikely that ENP gray whales will exhibit 
noticeable redistribution during either the migration or feeding 
seasons. Even-year hunts and training exercises conducted from December 
through May would encounter mostly migrating whales that must pass 
through the ocean portion of the Makah U&A during their lengthy north- 
and southbound transits. These whales are slow but steady swimmers that 
often exhibit directed swimming and predictable breathing and dive 
patterns (Jones and Swartz, 2002). Whales travelling at 3-6 miles per 
hour (5-10 km per hour; Jones and Swartz, 2002) would be able to 
transit the widest portion of the Makah U&A (approximately 32 miles or 
51 km north-south) in several hours. During migration, gray whales 
generally remain close to shore (especially where the continental shelf 
is narrow) and the best available information indicates that most 
northbound and southbound whales migrate within 27 miles (43 km) of 
shore (Pike, 1962; Green et al., 1992; Green et al., 1995). Some 
researchers have suggested that gray whales alter their migration 
distance from shore in response to vessels and other human activity 
(Rice, 1965; Hubbs and Hubbs, 1967; Wolfson, 1977; Schulberg et al., 
1989; Mate and Urb[aacute]n-Ramirez, 2003), however the ENP population 
has also demonstrated a tolerance and resiliency to decades of active 
hunting by Chukotkan natives (Borodin et al., 2012; IWC, 2016).
    During even-year hunts, adverse weather conditions in the Makah U&A 
in winter and early spring coupled with shorter periods of daylight 
would keep most hunts and training exercises close to shore and of 
shorter duration than during the summer. There would be only a few 
vessels associated with the hunt (generally 5 or less). Chukotkan 
hunters typically use a similar number of motorized vessels to pursue 
individual whales (IWC, 2018c). Since the 1950s, Chukotkan hunters have 
landed, on average, over 100 ENP gray whales per year (Borodin et al., 
2012), and an average of 126 whales per year during the past decade 
(IWC, 2016). During that decade the majority of whales have 
consistently been killed in the Chukotsky region with no apparent 
change in the distance offshore that whales are killed (IWC, 2016). 
Given these considerations, it is reasonable to expect that most of the 
roughly 27,000 ENP whales would be subject to little or no hunting 
pressure in the Makah U&A. Those animals subject to hunting and hunt 
training activities would experience them as temporary and localized 
nearshore events within the vast area of the Pacific Ocean. We 
therefore expect that whales traveling through the Makah U&A during the 
migration season will not change their migration patterns and avoid the 
area.
    Odd-year hunts during July through October would likely encounter 
whales exhibiting feeding behavior, including milling in small, 
localized areas close to shore and typically within 3 miles (5 km) of 
shore (Brueggeman et al., 1992; Darling, 1984; Sumich, 1984; 
Mallon[eacute]e, 1991; Dunham and Duffus, 2001; Scordino et al., 2011). 
Some animals have been seen clustering relatively far offshore (12-16 
miles or 19-26 km) but these sightings are considered unusual 
(Calambokidis et al., 2009). During summer hunts and training exercises 
most whales would be found in the PCFG range from northern California 
to northern Vancouver Island, within which the Makah U&A is a 
relatively small portion (less than 5 percent of the coastline in the 
PCFG range). Whales are known to focus on specific areas within this 
range but also move extensively in search of food (Calambokidis et al., 
1999; Calambokidis et al., 2004; Calambokidis et al., 2014). Odd-year 
hunts would result in fewer whales being struck (1 or 2 per year) than 
in even-year hunts (up to 3 per year). As noted above, despite hundreds 
of whales being hunted and killed in Chukotkan hunts (many of which are 
killed during the summer months) there has not been a discernible 
change in the availability and location of hunted whales (IWC, 2016).
    The proposed waiver allows for over 350 approaches of gray whales 
each year, most of these approaches would likely involve paddle-driven 
canoes that, compared to the motorized vessels used in Chukotkan hunts, 
have much less speed and maneuverability to pursue and maintain close 
contact with approached whales. This is a very small number of 
approaches compared with what NMFS authorizes for research permits. 
Activities that employ vessel approaches on large whales are regularly 
reviewed by NMFS under the MMPA. When issuing permits under the MMPA, 
NMFS generally limits the number of approaches within defined distances 
(typically 100 yards or less for large cetaceans) because of the 
potential for such approaches within those limits to affect or disrupt 
whale behavior. For example, NMFS Permit #15569 for ENP gray whales (77 
FR 35657, June 14, 2012) authorized 5,000 approaches of gray whales 
over the course of 5 years. While this is a large number of authorized 
approaches, the NEPA analysis prepared for that permit found that 
approaches during research have not been shown to result in long-term 
or permanent adverse effects on individual animals or their behavior 
regardless of the number of times the activity occurs because the 
frequency and duration of the activities allows adequate time for 
animals to recover from any potential adverse effects such that 
additive or cumulative effects of the action on its own are not 
expected. That analysis further notes that no measurable effects on 
population demographics are anticipated because any sub-lethal effects 
are expected to be short-term, and the proposed action is not expected 
to result in mortality of any animals. Given these considerations, we 
expect that animals exposed to approaches and hunt training activities 
within the Makah U&A would experience the encounter as a temporary and 
localized nearshore event that would be insufficient to discourage them 
from a known source of food. As a result, we do not expect the proposed 
waiver to cause PCFG whales to abandon the Makah U&A or to otherwise 
affect ENP gray whale distribution.
Abundance
    The proposed waiver and regulations are unlikely to have an 
appreciable effect on the ENP gray whale stock's abundance. The 
proposed waiver would result in a maximum of 3 strikes/deaths per even 
year hunt and 2 strikes/deaths per odd year hunt, or an average of 2.5 
deaths per year. Two and a half animals represent 0.009 percent of the 
population of 27,000 animals. This level of mortality is a small 
fraction of the annual variability in the stock's abundance (~16,000-
27,000 animals since the mid-1990s) and well below the PBR level (624 
whales per year) for the ENP gray whale stock (Carretta et al., 2017). 
This small number of removals would not have an appreciable effect on 
the stock's abundance, especially given that any portion of the IWC 
quota for ENP gray whales that is not harvested by the Makah Tribe is 
likely to be allocated to Chukotkan hunters, based on recent practice 
and as articulated in a joint U.S.-Russia monitoring agreement (e.g., 
Fominykh and Wulff, 2017). If that practice continues, the total 
harvest of ENP gray whales would be the same with or without the 
waiver.
Breeding Habits
    Male and female gray whales are thought to be promiscuous breeders 
and copulate repeatedly with more than one mate (Jones and Swartz, 
1984). Mating occurs throughout the southward migration in the 
migratory corridor with a mean conception date of December 5

[[Page 13613]]

(Rice and Wolman, 1971). Females that have not successfully bred may 
enter a second estrous cycle within 40 days (Rice and Wolman, 1971). 
Hunting or hunt training is most likely to overlap with gray whale 
breeding in December-January. As described in the DEIS Subsection 
3.15.3.2.2, Description of Weather and Sea Conditions in the Project 
Area, NMFS expects that few if any hunt activities would occur in 
December-January due to inclement weather (NMFS, 2015). While it is 
possible that hunt activities could occur in December-January and could 
encounter mating whales, we do not expect adverse biological effects 
due to the small portion of the migration corridor where hunt 
activities could occur. The limited level of hunt activity likely to 
occur, and the fact that whales can mate repeatedly throughout the 
migration, suggests that any whales disturbed by hunt activities would 
have additional opportunities to breed.
Times and Lines of Migratory Movements
    Based on the analysis above regarding effects on distribution of 
ENP gray whales, the proposed waiver is not expected to affect the 
times and lines of migratory movements of ENP gray whales.
4. NMFS Is Assured That the Proposed Waiver Is in Accord With the 
MMPA's Purposes and Policies
    The purposes and policies of the MMPA include maintaining marine 
mammal stocks as a significant functioning element in the ecosystem of 
which they are a part, maintaining the health and stability of the 
marine ecosystem, and obtaining an optimum sustainable population 
keeping in mind the carrying capacity of the habitat (16 U.S.C. 1361). 
Thus we considered the effects of the proposed waiver on both the 
ecosystem and on the ENP stock and documented those findings in the 
Biological Report (NMFS, 2019a). We summarize those findings below.
(a) Effect of the Proposed Waiver on the Role of ENP Gray Whales in 
Their Ecosystem, and on the Health and Stability of That Ecosystem
    The MMPA does not specify a geographic scale for identifying marine 
mammal ecosystems. Because of their long migration route, ENP gray 
whales occupy multiple large marine ecosystems at different times. The 
hunt area is located within what oceanographers call the California 
Current System (Sherman and Alexander, 1989) or Province (Longhurst, 
1998), a part of the North Pacific Gyre that moves cool ocean waters 
south along the western coast of North America, beginning off British 
Columbia, flowing southward past Washington, Oregon and California, and 
ending off Baja California. Within that province, scientists regularly 
study and predict physical and biological features and processes in the 
northern California Current ecosystem, which is generally described as 
extending from northern California to Vancouver Island (e.g., Field et 
al., 2001; Field et al., 2006; Hickey and Banas, 2008; Sydeman and 
Elliott, 2008; Harvey et al., 2017; Wells et al., 2017), though some 
studies extend only to the U.S.-Canada border in the north because of 
differing management regimes between the two countries (Field et al., 
2001; Field et al., 2006). For purposes of the MMPA analysis, we took a 
precautionary approach of examining the impact of the proposed waiver 
and regulations on the smaller northern California Current ecosystem. 
This area also corresponds to the seasonal range of the PCFG.
    The entire range of the ENP gray whale stock is vast and crosses 
many large marine ecosystems, including the Pacific Central American 
Coast, California Current, Gulf of Alaska, and Bering and Chukchi Seas 
(Longhurst, 1998; Sherman and Alexander, 1989). The proposed waiver 
could result in the removal of up to 2.5 whales annually, on average, 
from the hunt area. This level of removal is an order of magnitude less 
than the natural variability of the population, which numbered nearly 
27,000 individuals in 2016, and would not have an appreciable effect on 
the functioning of ENP gray whales as an element of these large 
ecosystems, or on the health of the ecosystems themselves. To the 
extent approaches and attempted strikes affect whales, those actions 
would do so in a very small portion of one of these large ecosystems 
and would therefore be unlikely to result in a change in gray whale use 
of any of these large ecosystems.
    Also, the proposed waiver will not result in gray whales ceasing to 
be a significant functioning element of the smaller northern California 
Current ecosystem or the environment of the northern Washington coast 
for at least two reasons. First, these habitats are shaped by dynamic, 
highly energetic, large-scale processes, and the role of ENP gray 
whales in structuring these habitats is limited. Second, the proposed 
waiver and regulations are unlikely to result in an appreciable 
decrease in the numbers of whales present in the northern California 
Current ecosystem or the northern Washington coastal environment 
because of the limits on ENP and PCFG strikes.
    Based on the best available evidence as summarized in the 
Biological Report, we conclude that the proposed waiver and regulations 
would not cause ENP gray whales to cease to be a significant 
functioning element in the ecosystem of which they are a part.
To summarize:
     ENP gray whales annually traverse five large marine 
ecosystems;
     Average annual removal by Makah hunters of up to 2.5 ENP 
gray whales from a population of approximately 27,000 individuals would 
not have an appreciable effect on the functioning of ENP gray whales in 
any of these large marine ecosystems or on the ecosystems themselves;
     The northern California Current ecosystem is the smallest 
recognized marine ecosystem that encompasses the area of the proposed 
hunt;
     ENP gray whales play a limited role in structuring the 
northern California Current ecosystem, which is shaped by dynamic, 
highly energetic, large-scale ecosystem processes;
     There will continue to be approximately 27,000 ENP gray 
whales migrating along the coast through the northern California 
Current ecosystem, thus the functioning of ENP gray whales in that 
ecosystem will not change;
     Although it is not considered a separate ecosystem, even 
at the scale of the northern Washington coast (the coastal portion of 
the Makah U&A) we would not expect the proposed waiver to have any 
meaningful effects on the marine environment, because ENP gray whales 
play a limited role in structuring the habitat, which is shaped by 
dynamic, highly energetic, large-scale ecosystem processes;
     The best available evidence indicates the proposed waiver 
would not cause gray whales to abandon the hunt area as a summer 
feeding area or interfere with the PCFG being a significant functioning 
element of their ecosystem during the summer feeding period in the PCFG 
range.
(b) Effect of the Proposed Waiver on the Status of the ENP Gray Whale 
Stock Relative to OSP
    The proposed waiver would result in a maximum of 3 strikes/deaths 
per even year hunt and 2 strikes/deaths per odd year hunt, or an 
average of 2.5 deaths per year. Two and a half animals represent 0.009 
percent of the population of 27,000 animals. This number of removals 
would not have a discernable effect on the status of the ENP stock 
relative to OSP. Moreover,

[[Page 13614]]

any portion of the IWC quota for ENP gray whales that is not harvested 
by the Makah Tribe is likely to be allocated to Chukotkan hunters, 
based on recent practice and as articulated in joint U.S-Russia 
monitoring agreements dating back to the IWC catch limit set in 2003 
(e.g., Ilyashenko and Hogarth, 2007; Ilyashenko and DeMaster, 2012; 
Fominykh and Smith, 2016; Fominykh and Wulff, 2017). Assuming this 
practice continues, the proposed waiver would have no net effect on ENP 
gray whale abundance or OSP.

B. The Proposed Regulations Are Consistent With the MMPA

    The MMPA directs NMFS to adopt regulations implementing an MMPA 
waiver that NMFS deems necessary and appropriate to insure that the 
taking will not be to the disadvantage of the affected stock and will 
be consistent with the purposes and policies of the MMPA (16 U.S.C. 
1373(a)). Regulations must be based on the best scientific evidence 
available and consultation with the MMC. NMFS must give full 
consideration to all relevant factors affecting the extent to which the 
marine mammals may be taken, including but not limited to: Existing and 
future levels of marine mammal stocks; international treaty and 
agreement obligations of the United States; the marine ecosystem and 
related environmental considerations; the conservation, development, 
and utilization of fishery resources; and, the economic and 
technological feasibility of implementation (16 U.S.C. 1373(b)). In 
addition to these factors, we have considered the potential effects of 
the proposed regulations on the WNP stock.
1. The Proposed Regulations Are Based on the Best Scientific Evidence 
Available and Consultation With the Marine Mammal Commission
    See Subsections IV(A)(1) and IV(A)(2) above.
2. The Proposed Regulations Will Not Disadvantage the ENP Gray Whale 
Stock
    Because the proposed regulations will not affect the status of the 
ENP gray whale stock relative to its OSP, we conclude that the proposed 
regulations will not disadvantage the ENP gray whale stock.
3. The Proposed Regulations Are Consistent With the Purposes and 
Policies of the MMPA
    These findings are described above in Subsection IV(A)(4) above.
4. We Have Fully Considered the Effects of the Proposed Regulations on 
the Statutory Factors
(a) Existing and Future Levels of Marine Mammal Species and Population 
Stocks
    The proposed regulations are unlikely to have any effect on the 
future levels of ENP gray whales, as described above under Subsection 
IV(A)(4)(b), Effect of the proposed waiver on the status of the ENP 
gray whale stock relative to OSP.
(b) Existing International Treaty and Agreement Obligations of the 
United States
    The proposed regulations limit the harvest of ENP gray whales 
consistent with the ICRW Schedule, Article 13, and the U.S.-Russia 
bilateral agreement. In March 2018 the U.S. requested that the IWC 
Scientific Committee (specifically the Standing Work Group on 
Aboriginal Subsistence Whaling Management Procedures or AWMP) evaluate 
a potential Makah gray whale hunt under the proposed regulations. The 
goal of the AWMP's review was to determine if the aboriginal harvest of 
gray whales under hunt proposals by the U.S. and the Russian Federation 
would meet the IWC's conservation objectives. Those objectives focus on 
ensuring that aboriginal hunt requests (1) do not seriously increase 
risks of extinction (highest priority), (2) enable hunts ``in 
perpetuity,'' and (3) maintain stocks at the highest net recruitment 
level (and if below that, ensure they move towards it). After modeling 
the available data (i.e., biology, ecology, abundance and trends, 
removals including direct hunting, ship strikes and bycatches), the 
AWMP agreed (and the Scientific Committee supported) that the proposed 
hunt management plan for a Makah tribal hunt meets the IWC conservation 
objectives for ENP gray whales as well as for PCFG and WNP gray whales 
(IWC, 2018b).
(c) The Marine Ecosystem and Related Environmental Considerations
    The biological report (NMFS, 2019a) describes our consideration of 
effects on the marine ecosystem and Subsection IV(A)(4)(a) describes 
our conclusion regarding ecosystem function and health. The DEIS (NMFS, 
2015) describes our consideration of other elements of the marine 
environment.
(d) The Conservation, Development, and Utilization of Fishery Resources
    The proposed regulations would have no effect on the conservation, 
development, or utilization of fishery resources.
(e) The Economic and Technological Feasibility of Implementation
    Subsection 4.6.2.5 of the DEIS analyzes the economic costs of hunt 
management and law enforcement. NMFS' costs would primarily involve the 
continuation of longstanding 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. As 
noted in the DEIS, the annual NMFS budget for marine mammal management 
in the West Coast Region is over $700,000, so such costs are feasible 
to obtain and are not expected to affect NMFS' ability to regulate a 
hunt. The Tribe's 1999 gray whale hunt successfully demonstrated the 
economic and technological feasibility of prosecuting a hunt according 
to the proposed regulations. Also, the Tribe has a detailed Tribal 
Whaling Ordinance in effect, which demonstrates the Tribe's ability to 
regulate a tribal ceremonial and subsistence whale hunt (Makah Tribe, 
2013). The proposed regulations include provisions for matching 
photographs of killed whales to those of known whales, a procedure 
which is technologically feasible (Calambokidis et al., 2017; NMFS, 
2019b). The proposed regulations include provisions for marking and 
tracking handicrafts made from harvest whale parts, which is 
technologically feasible.

C. The Proposed Waiver and Regulations Appropriately Manage Risk to WNP 
Gray Whales

    In evaluating the Tribe's waiver request, we determined that the 
potential effect of the proposed hunt on the WNP stock was an 
additional relevant factor that should be considered in the proposed 
regulations. To evaluate the risk to WNP gray whales we considered 
both: (1) The probability of encountering a WNP gray whale (exposure) 
during an ENP gray whale hunt or training; and (2) the likelihood that 
an encounter would kill or otherwise harm a WNP whale. To address the 
first question and to reduce the risk of encountering WNP gray whales 
during an ENP hunt, the regulations include several important 
restrictions: (1) Hunting would only be allowed every other year 
(proposed for even-numbered years) during the migration season when WNP 
gray whales may be present; (2) only three whales could be struck in an 
even-year hunt; (3) training harpoon throws would be restricted to the 
non-migration season in odd-numbered years; and (4)

[[Page 13615]]

if a WNP is confirmed to be struck in any year, the hunt will cease 
until steps are taken to ensure such an event will not recur.
    To address the second question, we considered the biological impact 
of strikes, strike attempts, and approaches on WNP whales. Striking a 
WNP gray whale has the potential to kill or injure it. An unsuccessful 
strike attempt, training harpoon throw, or approach of a WNP gray whale 
might or might not harm a whale by disrupting its behavior, depending 
on the reaction of the whale to the encounter.
    With hunting at the time of year when WNP gray whales may be 
present limited to every other year and strikes limited to 3 (and thus 
limited to 15 over the 10-year regulation period), there is about a 6 
percent probability of hunters striking one WNP gray whale over the 10 
years of the regulations (Moore and Weller, 2018). This probability is 
the most likely point estimate; the 95 percent confidence interval 
ranges from 3.0 percent to 9.3 percent. Stated another way, the most 
likely point estimates indicate that one in 17 10-year hunt periods 
(i.e., one year out of 170) would result in an individual WNP gray 
whale being struck by Makah hunters, 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 (Moore and 
Weller, 2018). If the 95 percent confidence interval is considered, the 
expectation is that one WNP whale would be struck out of every 108 
years of hunting. By comparison, the PBR for WNP gray whales reported 
in the current SAR is 0.06 WNP gray whales per year, or approximately 1 
whale every 17 years. Based on this analysis, we conclude that the risk 
of a lethal take or injury to WNP gray whales posed by the proposed 
regulations is slight.
    With unsuccessful strike attempts during even-year hunts limited to 
18, there is about a 30 percent probability (95 percent confidence 
interval, range from 17 percent to 44 percent) that one WNP whale would 
be subjected to an unsuccessful strike attempt over the 10 years of the 
regulations (Moore and Weller, 2018), 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 (Moore and Weller, 2018). If the 95 percent 
confidence interval is considered, the expectation is that one WNP 
whale would be subjected to an unsuccessful strike attempt every 23 
years. Making an unsuccessful strike attempt or training harpoon throw 
on a WNP gray whale is a concern but would not result in death or 
injury and would likely elicit a response similar to that observed in 
whales that are tagged or biopsied for research purposes (DEIS 
Subsection 4.4.3.3.2, Change in Abundance and Viability of the WNP Gray 
Whale Stock). As summarized above in Subsection III(C)(3), the best 
available scientific evidence suggests that such encounters would be 
unlikely to have a lasting effect on the health or behavior of the 
affected animal because there is no mortality associated with 
unsuccessful strike attempts and impacts associated with such an event 
are temporary.
    Based on the best available information and as observed during the 
Chukotkan hunt, gray whales would likely display a range of reactions 
to hunting- or training-related approaches, and it is uncertain whether 
any of the approaches would disrupt normal whale behavior. However, to 
be precautionary we believe it is reasonable to conclude that some of 
those approaches have the potential to disrupt whale behavior, so the 
regulations limit the number of approaches. The geographical area where 
the approaches might occur is not known to be biologically important 
for WNP gray whales and the very limited number of likely approaches on 
WNP whales does not create the magnitude, frequency (repetitive, 
chronic), and duration of encounter that might cumulatively disrupt 
their behavior (NMFS, 2015). Actual approach distances are not possible 
to predict. However, as was the case in the Tribe's 1999 and 2000 
hunts, even-year hunts would occur during a time when gray whales are 
migrating, which may further limit close and sustained approaches on 
gray whales and chronic, repeated, or cumulative exposure to individual 
whales. Also, some of the approaches could be made during training 
exercises involving only paddle-driven canoes that have limited ability 
to pursue and maintain close contact with whales that are actively 
migrating.
    Our risk analysis predicts that approximately 14 WNP gray whales 
would be approached within 100 yards over the duration of the waiver 
period (Moore and Weller, 2018). This analysis assumed that all 353 
approaches would be made each year, and all of them, including all 
training approaches, would be made between December 1 and May 31, when 
WNP gray whales could be present in the hunt area. These conservative 
assumptions are a useful management tool for understanding the maximum 
potential impacts to WNP gray whales, but present an unlikely scenario 
given that hunting in odd-numbered years may also be authorized during 
the summer and fall when weather and ocean conditions are more suitable 
for hunting and training. In our 2015 DEIS, we estimated that there 
would be almost twice as many suitable days for hunting and training 
during odd-year hunts as during even-year hunts. So, for example, if 
half of the allowed number of approaches were made during even-year 
hunts, we would expect that less than one WNP gray whale (0.7) would be 
approached per year.
    Even if all approaches were made between December 1 and May 31, 
potentially exposing 1.4 WNP gray whales per year to an approach, we 
consider any risks to such whales to be slight because there is no 
mortality associated with approaches, some approaches may be so far 
away as to be undetectable by the whales, and any reactions by 
approached whales would likely be temporary and not interfere with the 
whales' active migration.
    To summarize, under the proposed regulations, there is a 6 percent 
probability of killing a gray whale over the 10-year waiver period (put 
another way, it is likely that one WNP whale would be killed every 170 
years), which we consider to be a remote risk. There is a 30 percent 
probability of an unsuccessful strike attempt on at least one WNP gray 
whale (or one every 33 years) and a near 100 percent probability of a 
WNP gray whale being approached (average of 1.4 whales per year), based 
on conservative assumptions, over the 10-year period of the regulations 
(Moore and Weller, 2018). We find that this constitutes an acceptable 
level of risk for management purposes and under the MMPA. In addition, 
prior to issuing final regulations, NMFS would be required to ensure, 
pursuant to the consultation requirements of ESA section 7(a)(2), that 
the hunt would not be likely to jeopardize the WNP stock (16 U.S.C. 
1376(a)(2)).

V. Required Statements Related to the Intention To Issue Regulations

    The MMPA requires that, either before or concurrent with 
publication of our notice of intent to prescribe regulations, we 
publish certain statements (16 U.S.C. 1373(d)). This section includes 
those statements.

A. A Statement of the Estimated Existing Levels of the Species and 
Population Stocks of the Marine Mammal Concerned

    ENP gray whales are the subject of the proposed waiver and 
regulations and

[[Page 13616]]

are recognized as a population stock under the MMPA (Carretta et al., 
2017). The most recent population assessment by Durban et al. (2017) 
estimates the abundance of the ENP gray whale stock at 24,420 to 29,830 
whales, with a point estimate of 26,960 and resultant minimum abundance 
estimate, used for calculating PBR, of 25,849.

B. A Statement of the Expected Impact of the Proposed Regulations on 
the Optimum Sustainable Population of Such Species or Population Stock

    The proposed regulations will not have a discernible effect on the 
ENP gray whale stock relative to its OSP (see Subsection IV(B), The 
Proposed Regulations are Consistent with the MMPA).

C. A Statement Describing the Evidence Before the Agency That Forms the 
Basis for the Regulations

    In proposing the waiver and regulations, we relied on the 
references cited in the March 2015 Draft Environmental Impact Statement 
on the Makah Tribe Request to Hunt Gray Whales (NMFS, 2015). We also 
list relevant references to the scientific literature in a separate 
biological report (NMFS, 2019a), which identifies other and more recent 
studies not included in the DEIS. We incorporate by reference the 2015 
DEIS and the Biological Report and their associated references. The 
proposed regulations were also informed by the public comments on the 
DEIS and our consultation with the MMC.

D. Any Studies or Recommendations Made By or For the Agency or the MMC 
That Relate to the Establishment of the Regulations

    Relevant studies made by or for NMFS include those on gray whale 
abundance and stock structure (Punt and Wade, 2012; Weller et al., 
2013; Calambokidis et al., 2017), estimation of potential biological 
removal levels and human caused mortalities (Carretta et al., 2017), 
forecasting PCFG abundance estimates (NMFS, 2019a), estimating the 
probability of encountering WNP gray whales (Moore and Weller, 2018) 
and modeling the proposed regulations relative to IWC conservation 
objectives for North Pacific gray whales (IWC, 2018b). Also, the DEIS 
(NMFS, 2015) analyzes the principle components of a Makah gray whale 
hunt.
    Regarding recommendations by the Marine Mammal Commission, the MMC 
submitted comments on the 2015 DEIS and provided written advice in 
response to two NMFS requests for consultation in 2017. We first 
requested consultation with the MMC on May 12, 2017, and shared a 
preliminary draft of our proposed waiver determination and regulations 
along with supporting rationale. The MMC replied to our request with a 
letter dated July 11, 2017, endorsing our plan to issue a waiver 
determination and recommending several issues for further 
consideration. After further evaluation and review, and based on 
comments from the MMC and others on the DEIS related to managing 
impacts to PCFG whales, we modified our proposal to adopt a non-PBR 
framework for the PCFG and presented it to the MMC for continued 
consultation on December 19, 2017. On March 13, 2018, the MMC replied 
with a second letter expressing support for our modified regulations 
and encouraging flexibility in hunt management so as to give due regard 
to the Tribe's identified subsistence and cultural needs. The following 
summarizes the MMC's advice contained in those consultation letters.
MMC Consultation Letter Dated July 11, 2017:
    1. The MMC believed that the draft documents lay out a prima facie 
case that the requirements for granting a waiver under the MMPA have 
been met and recommended that NMFS proceed with issuing a proposed rule 
and scheduling an administrative hearing in accordance with the 
requirements of section 103 of the MMPA and sections 554, 556, and 557 
of the Administrative Procedure Act.
    2. The MMC noted that its primary concern has been the need to 
avoid, to the maximum extent practicable, the accidental taking of gray 
whales from the endangered WNP stock, and secondarily, to avoid taking 
that could disadvantage the PCFG regardless of whether it is considered 
a stock. The MMC acknowledged that the design of an odd year/even year 
hunting pattern is key to both controlling the harvest of PCFG whales 
and minimizing any take of WNP gray whales.
    3. The MMC recommended that NMFS clarify what the implications 
would be if the PCFG were recognized as a separate stock, especially 
whether hunting would be allowed to continue under this rule or if new 
rulemaking would be necessary to consider the status of PCFG whales 
relative to OSP before the taking of PCFG whales could be authorized.
    4. The MMC recommended that the ability to distinguish between WNP 
and ENP gray whales be addressed in the rulemaking, either by including 
mechanisms to ensure that current survey and cataloging efforts are 
maintained or by making hunting during the specified season contingent 
on having available and reliable means of distinguishing WNP or PCFG 
whales (as relevant) from other whales.
    5. The MMC recommended that NMFS review the proposed numbers of 
takes that would be authorized for approaches and attempted strikes, 
and suggested that NMFS consider separate authorizations for attempted 
strikes and approaches depending on whether they occur during hunting 
or training exercises. The MMC further noted that it would be 
unfortunate, and perhaps counterproductive to achieving an effective 
and efficient hunt, to limit the level of training because of the 
specified caps.
    6. The MMC recommended that NMFS revise the provisions of the draft 
rule to allow training activities to be conducted throughout the year, 
subject to appropriate limitations, despite one of the take limits for 
hunting activities (e.g., strikes or landings) having been reached.
    7. The MMC recommended that NMFS discuss with the Makah Tribe 
provisions related to how whale meat and non-edible products can be 
used and distributed by Tribal members to determine whether there are 
any proposed restrictions on the use and distribution of whale products 
to which the Tribe objects and, if there are, request that the Tribe 
suggest alternatives for consideration as part of the rulemaking.
    8. The MMC recommended that NMFS consider building some flexibility 
into the regulations to allow a small increase in the numbers of whales 
that can be struck and landed in odd-year hunts should it become 
necessary to close the even-year hunt.
    9. The MMC recommended that NMFS address whether there are 
circumstances (e.g., a die-off of gray whales) that would prompt it to 
revisit or revise the regulations before the end of their anticipated 
lifetime.
MMC Consultation Letter Dated March 13, 2018
    1. The MMC reiterated its earlier primary concerns regarding the 
need to avoid, to the maximum extent practicable, the accidental taking 
of gray whales from the endangered WNP stock, and secondarily, to avoid 
taking that could disadvantage PCFG whales regardless of whether they 
are considered a separate stock. The MMC noted that our modified 
proposal (compared to our initial request for consultation) is not 
expected to have any negative effect on the possibility that WNP gray 
whales will be taken and,

[[Page 13617]]

as such, the MMC stands by its earlier comment that the risk of killing 
or seriously injuring a WNP gray whale appears to be sufficiently low 
that it should not present an insurmountable obstacle to NMFS moving 
forward with a proposed rule to authorize the Makah Tribe to take 
whales from the ENP stock.
    2. The MMC agreed that, given the availability of reliable 
information on the abundance, trends, and rates of recruitment for the 
PCFG, there is no reason to manage removals under a PBR framework. 
Further, the MMC believed that setting the allowable strike limit at 16 
PCFG whales over a 10-year period should provide reasonable certainty 
that the proposed level of hunting PCFG whales will not have adverse 
impacts on this group of animals.
    3. The MMC noted that proposed harvest levels (no more than one 
whale landed per year during odd-year hunts and up to three whales 
landed per year during even-year hunts) falls well short of the Makah 
Tribe's identified subsistence need and the Tribe's initial waiver 
request, and encouraged NMFS to assess the relationship between the 
adopted harvests levels and the Tribe's subsistence and cultural needs 
as part of the final environmental impact statement on this action.
    4. The MMC concurred--from a biological standpoint--with NMFS' 
proposal to limit strikes on female PCFG whales, but noted that the 
strike limit may cause additional shortfalls in meeting the Tribe's 
subsistence needs. Therefore, the MMC recommended that NMFS and other 
appropriate experts work with the Tribe to develop hunting methods that 
minimize the chances that the female strike limit will be reached early 
in any 10-year period.
    5. The MMC agreed that setting such minimum abundance thresholds 
for the PCFG is appropriate and that the values proposed are good 
starting points for examination in the course of the rulemaking. 
However, the MMC also noted that this approach was akin to an on-off 
switch and suggested that NMFS explore whether strikes might be reduced 
more gradually using intermediate abundance thresholds.

VI. Classification

National Environmental Policy Act

    NMFS has prepared a DEIS under the requirements of NEPA and 
published a notice of availability on March 20, 2015 (80 FR 14912). 
NMFS believes that a waiver of the MMPA take moratorium along with 
federally approved hunt regulations for gray whales constitutes a major 
federal action subject to the requirements of NEPA. Therefore, these 
proposed regulations will not be finalized until a final Environmental 
Impact Statement has been issued and a Record of Decision is made.

Endangered Species Act

    The ESA provides for the conservation of endangered and threatened 
species of fish, wildlife, and plants. The program is administered 
jointly by NMFS (for most marine species) and the U.S. Fish and 
Wildlife Service (for terrestrial and freshwater species). The ESA 
requires federal agencies to consult with NMFS or the U.S. Fish and 
Wildlife Service to ensure that activities authorized, funded, or 
carried out by federal agencies are not likely to jeopardize the 
continued existence of a listed species or result in the destruction or 
adverse modification of designated critical habitat. Prior to issuance 
of final regulations, NMFS will fulfill its obligations under section 
7(a)(2) of the Endangered Species Act for the ESA-listed species and 
designated critical habitat in the project area.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice of proposed rulemaking requirements under the 
Administrative Procedure Act unless the agency certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. The RFA defines small entities, in pertinent part, as 
small businesses, small organizations and small governmental 
jurisdictions. This rule only affects a single tribe. Tribes are not 
considered small entities under the RFA. Accordingly, an attorney 
acting on behalf of the Chief Counsel for Regulation of the Department 
of Commerce, in accordance with the RFA, has reviewed this proposed 
rule and certifies that it will not have a significant economic impact 
on a substantial number of small entities. Therefore, neither the RFA 
nor any other law require a regulatory flexibility analysis, and none 
has been prepared.

Paperwork Reduction Act

    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980, 
because the Paperwork Reduction Act does not apply to record-keeping 
requirements of a single tribe.

Executive Orders 12866--Regulatory Planning and Review, 13771--Reducing 
Regulation and Controlling Regulatory Costs, and Executive Order13563--
Improving Regulation and Regulatory Review

    Executive Order (E.O.) 12866 provides that significant regulatory 
actions be submitted for review to the Office of Information and 
Regulatory Affairs, and OMB. E.O. 13771 provides that it is essential 
to manage the costs associated with the governmental imposition of 
private expenditures required to comply with federal regulations. 
Toward that end, E.O. 13771 directs that for every one new regulation 
issued, at least two prior regulations be identified for elimination, 
and that the cost of planned regulations be prudently managed and 
controlled through a budgeting process. In accordance with 16 U.S.C. 
1373(d), the regulations proposed here are subject to 50 CFR 228.3, 
which provides that this proceeding will be governed by 5 U.S.C. 556 
and 557 of the Administrative Procedure Act. Executive Order 12866 per 
Section 3(d) does not apply to regulations issued in accordance with 
the formal rulemaking procedures of 5 U.S.C. 556, 557, thus the 
regulatory action is not considered significant under E.O. 12866. 
Executive Order 13771 only applies to regulatory actions that are 
defined as significant under E.O. 12866. Therefore, this proceeding is 
exempt from review under E.O. 12866 and E.O. 13771.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility for the public where these approaches 
are relevant, feasible, and consistent with regulatory objectives. 
Executive Order 13563 emphasizes that regulations must be based on the 
best available science and that the rulemaking process must allow for 
public participation. We have developed this rule in a manner 
consistent with these requirements.

Executive Order 12898--Environmental Justice

    Under E.O. 12898 each federal agency must conduct its programs, 
policies, and activities that substantially affect human health or the 
environment, in a manner that ensures that those programs, policies, 
and activities do not have the

[[Page 13618]]

effect of excluding persons from participation in, denying persons the 
benefits of, or subjecting persons to discrimination because of their 
race, color, or national origin. Section 4-4, Subsistence Consumption 
of Fish and Wildlife, of E.O. 12898, requires federal agencies to 
ensure protection of populations with differential patterns of 
subsistence consumption of fish and wildlife and to communicate to the 
public the human health risks of those consumption patterns. NMFS has 
evaluated the data available on contaminant loads in ENP gray whales, 
and has summarized this information in the DEIS and in more recent 
analyses (Ylitalo et al., 2018) and communicated those findings to the 
Makah Indian tribe.

Executive Order 13132--Federalism

    Executive Order 13132 sets forth principles and criteria that 
agencies must adhere to in formulating and implementing policies that 
have federalism implications, that is, regulations that have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. Federal 
agencies must examine the statutory authority supporting any action 
that would limit the policymaking discretion of the States, and to the 
extent practicable, must consult with State and local officials before 
implementing any such action. This rule does not have substantial 
direct effects on the States and therefore does not have the type of 
federalism implications contemplated by the Executive Order. We do not 
foresee that the rule would affect significantly the distribution of 
power and responsibilities among the various levels of government or 
limit the policymaking discretion of the States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    Executive Order 13175, the American Indian and Alaska Native Policy 
of the U.S. Department of Commerce (March 30, 1995), and the Tribal 
Consultation and Coordination Policy of the U.S. Department of Commerce 
(May 21, 2013) outline the responsibilities of NMFS in matters 
affecting tribal interests. These directives require that NMFS have an 
accountable process to ensure meaningful and timely input by tribal 
officials in developing policies that have tribal implications. 
Executive Order 13175 requires that NMFS: (1) Have regular and 
meaningful consultation and collaboration with Indian tribal 
governments in the development of federal regulations that 
significantly or uniquely affect their communities; (2) reduce the 
imposition of unfunded mandates on Indian tribal governments; and (3) 
streamline the applications process for and increase the availability 
of waivers to Indian tribal governments.
    We developed these proposed regulations in response to the Makah 
Indian Tribe's request on February 14, 2005 for a waiver of the MMPA's 
take moratorium. Consistent with the Executive Order directives we 
consulted with the Makah Indian Tribe in developing the proposed 
regulations. The Makah Indian Tribe and members of other tribes 
submitted comments in response to the DEIS; we will provide responses 
to those comments at the hearing for this matter.

Consultation With State and Local Government Agencies

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and federal interest, NMFS shared the release of the DEIS with 26 state 
and local government agencies and various elected officials and 
governmental committees.

References Cited

    A complete list of all references cited in this rulemaking is 
available on our website and upon request from the NMFS office in 
Portland, Oregon (see ADDRESSES).

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Exports, Fish, Imports, 
Indians, Labeling, Marine mammals.

     Dated: March 27, 2019.
Barry A. Thom,
Regional Administrator, West Coast Region, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 216 is 
proposed to be 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. Subpart J is added to read as follows:

Subpart J--Taking of Eastern North Pacific (ENP) Gray Whales 
(Eschrichtius robustus) by the Makah Indian Tribe off the Coast of 
Washington State

Sec.
216.110 Purpose.
216.111 Scope.
216.112 Definitions.
216.113 Take authorizations.
216.114 Accounting and identification of gray whales.
216.115 Prohibited acts.
216.116 Applications for hunt permits.
216.117 Requirements for monitoring, reporting, and recordkeeping.
216.118 Expiration and amendment.


Sec.  216.110   Purpose.

    The purpose of this subpart is to establish regulations governing 
the take of whales from the eastern North Pacific (ENP) gray whale 
(Eschrichtius robustus) stock by the Makah Indian Tribe and its 
enrolled members in accordance with the Secretary's determination to 
issue a waiver of the MMPA take moratorium pursuant to 16 U.S.C. 
1371(a)(3).


Sec.  216.111   Scope.

    This subpart authorizes only the taking of ENP gray whales and only 
by enrolled members of the Makah Indian Tribe.


Sec.  216.112  Definitions.

    In addition to the definitions provided in the MMPA, for purposes 
of this subpart, the following definitions apply:
    Barter means the exchange of parts from gray whales taken under 
these regulations for other wildlife or fish or their parts or for 
other food or for nonedible items other than money if the exchange is 
of a noncommercial nature.
    Bonilla-Tatoosh Line means the line running from the western end of 
Cape Flattery (48[deg]22'53'' N lat., 124[deg]43'54'' W long.) to 
Tatoosh Island Lighthouse (48[deg]23'30'' N lat., 124[deg]44'12'' W 
long.) to the buoy adjacent to Duntze Rock (48[deg]28'00'' N lat., 
124[deg]45'00'' W long.), then in a straight line to Bonilla Point 
(48[deg]35'30'' N lat., 124[deg]43'00'' W long.) on Vancouver Island, 
British Columbia.
    Calf means any gray whale less than 1 year old.
    Enrolled member or member of the Makah Indian Tribe means a person 
whose name appears on the membership roll maintained by the Makah 
Tribal Council.
    ENP gray whale means a member of the eastern North Pacific stock of 
gray whales (Eschrichtius robustus).
    Even-year hunt means a hunting season spanning six consecutive 
months

[[Page 13619]]

from December 1 in an odd-numbered year to May 31 in the following 
even-numbered year.
    Gray whale means a member of the species Eschrichtius robustus.
    Harpooner means a member of the Makah Indian Tribe who has been 
certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of harpooning a gray 
whale.
    Hunt and hunting mean to pursue, strike, harpoon, shoot, or land a 
gray whale under a hunt permit issued under Sec.  216.113(a), or to 
attempt any such act, but does not include hunting approaches, training 
approaches, or training harpoon throws. A ``hunt'' means any act of 
hunting.
    Hunt permit means a permit issued by NMFS in accordance with 16 
U.S.C. 1374 and this subpart.
    Hunting approach means to cause, in any manner, a vessel to be 
within 100 yards of a gray whale during a hunt.
    Land and landing mean bringing a gray whale or any products thereof 
onto the land in the course of hunting.
    Makah Indian handicrafts means articles made by a member of the 
Makah Indian Tribe that contain any nonedible products of an ENP gray 
whale that was obtained pursuant to a permit issued under this subpart; 
and are significantly altered from their natural form and which are 
produced, decorated, or fashioned in the exercise of traditional Makah 
Indian handicrafts without the use of pantographs, multiple carvers, or 
similar mass copying devices. Makah Indian handicrafts include, but are 
not limited to, articles that are carved, beaded, drawn, or painted.
    Makah Indian Tribe or Tribe means the Makah Indian Tribe of the 
Makah Indian Reservation as described in the list of federally 
recognized Indian tribes maintained by the U.S. Department of the 
Interior.
    Minimum population estimate for PCFG gray whales is the lower 20th 
percentile of the PCFG population estimate;
    NMFS hunt observer means a person designated by NMFS to accompany 
and observe a hunt.
    Odd-year hunt means a hunting season spanning four consecutive 
months from July 1 to October 31 in an odd-numbered year.
    Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale means 
an ENP gray whale photo-identified during two or more years 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 entered into a photo-identification catalog(s) recognized by the 
Regional Administrator.
    PCFG population estimate means an abundance estimate based on data 
derived from photo-identification surveys and catalog(s) recognized by 
the Regional Administrator. Such data will also be the basis for 
projecting PCFG population estimates in future hunting seasons.
    Recordkeeping and reporting mean the collection and delivery of 
photographs, biological data, harvest data, and other information 
regarding activities conducted under the authority of this subpart.
    Regional Administrator means the Regional Administrator of NMFS for 
the West Coast Region.
    Rifleman means a member of the Makah Indian Tribe who has been 
certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of shooting a gray 
whale.
    Safety officer means a member of the Makah Indian Tribe who has 
been certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of evaluating hunt 
conditions including but not limited to visibility, target range and 
bearing, and sea condition.
    Strike or struck means to cause a harpoon or other device to 
penetrate a gray whale's skin or an instance in which a gray whale's 
skin is penetrated by a harpoon or other device while hunting.
    Struck and lost refers to a gray whale that is struck but not 
landed.
    Training approach means to cause, in any manner, a training vessel 
to be within 100 yards of a gray whale.
    Training harpoon throw means an attempt to contact a gray whale 
with a blunted spear-like device that is incapable of penetrating the 
skin of a gray whale.
    Training vessel means a canoe or other watercraft used to train for 
a hunt that does not carry weapons ordinarily used by a harpooner or 
rifleman to strike a gray whale.
    Tribal hunt observer means a tribal member or representative 
designated by the Tribe who has been certified by the Tribe as having 
demonstrated the qualifications commensurate with the duties and 
responsibilities of monitoring and reporting on a hunt.
    U&A or Makah Indian Tribe's U&A means the Tribe's usual and 
accustomed fishing grounds, which area consists of the United States 
waters in the western Strait of Juan de Fuca west of 123[deg]42'17'' W 
long. and waters of the Pacific Ocean off the mainland shoreline of the 
Washington coast north of 48[deg]02'15'' N lat. (Norwegian Memorial) 
and east of 125[deg]44'00'' W long.
    Unsuccessful strike attempt means any attempt to strike a gray 
whale while hunting that does not result in a strike.
    WNP gray whale means a member of the western North Pacific stock of 
gray whales (Eschrichtius robustus).
    Whaling captain means a member of the Makah Indian Tribe who has 
been certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of leading a hunt and 
is authorized by the Makah Indian Tribe to be in control of the whaling 
crew.
    Whaling crew means those members of the Makah Indian Tribe taking 
part in a hunt under the control of a whaling captain, not including 
the tribal hunt observer.


Sec.  216.113  Take authorizations.

    (a) The Regional Administrator may issue hunt permits to the Makah 
Indian Tribe authorizing hunting of ENP gray whales, as well as hunting 
approaches, training approaches, and training harpoon throws by 
enrolled members in accordance with 16 U.S.C. 1374 and the requirements 
of this subpart.
    (1) Hunt permit duration. The duration of the initial hunt permit 
may not exceed three years from its effective date, and thereafter the 
duration of a hunt permit may not exceed five years.
    (2) Hunting seasons. Even-year hunts and hunting approaches will 
only be authorized from December 1 of an odd-numbered year through May 
31 of the following even-numbered year. Odd-year hunts and hunting 
approaches will only be authorized from July 1 through October 31 in an 
odd-numbered year.
    (3) Training period. Hunt permits may authorize training approaches 
in any month and training harpoon throws in any month, except as 
provided in Sec.  216.113(a)(4)(ii).
    (4) Limits on the number of gray whales approached, subjected to 
unsuccessful strike attempts, struck, struck and lost, and landed.
    (i) Approaches. A hunt permit may authorize no more than 353 
approaches, including both hunting and training approaches, each 
calendar year of which no more than 142 of such approaches may be on 
PCFG whales.
    (ii) Unsuccessful strike attempts and training harpoon throws. A 
hunt permit may authorize no more than 18 unsuccessful strike attempts 
during even-year hunts and no more than 12 unsuccessful strike attempts 
during odd-year hunts. Training harpoon throws may occur at any time 
during

[[Page 13620]]

even-numbered years and between July 1 and October 31 in odd-numbered 
years. Each training harpoon throw will count against the unsuccessful 
strike attempt limit in effect during the calendar year that the throw 
is made.
    (iii) Strikes. A hunt permit may authorize no more than three 
strikes in an even-year hunt and no more than two strikes in an odd-
year hunt. In an even-year hunt, no more than one strike may be 
authorized within the 24-hour period commencing at the time of strike. 
The Regional Administrator may authorize the full number of strikes in 
the initial hunt permit and will adjust strikes downward in subsequent 
permits if necessary to ensure that strikes on PCFG whales do not 
exceed 16 over the waiver period, of which no more than 8 strikes may 
be on PCFG females.
    (iv) Struck and lost. A hunt permit may authorize no more than 
three gray whales to be struck and lost in any calendar year.
    (v) Landings. A hunt permit may authorize no more than three gray 
whales to be landed in an even-year hunt and no more than one gray 
whale to be landed in an odd-year hunt; the number of gray whales that 
the hunt permit may authorize to be landed in any calendar year will 
not exceed the number agreed between the United States and the Russian 
Federation as the U.S. share of the catch limit established by the 
International Whaling Commission.
    (vi) PCFG whales. Notwithstanding the limits specified in this 
section, no hunting will be authorized for an upcoming season if the 
Regional Administrator determines, and notifies the Makah Indian Tribe 
pursuant to Sec.  216.114(a)(1) of this subpart, that either of the 
following conditions applies:
    (A) The most recent PCFG population estimate, based on photo-
identification surveys, is less than 192 whales or the associated 
minimum population estimate is less than 171 whales; or
    (B) The PCFG population estimate for the upcoming hunting season is 
projected to be less than 192 whales or the associated minimum 
population estimate is projected to be less than 171 whales.
    (vii) WNP gray whales. The hunt permit will provide that in the 
event the Regional Administrator determines a WNP gray whale was struck 
during a hunt, the Regional Administrator will notify the Makah Indian 
Tribe in writing, and require that the Tribe cease hunting for the 
duration of the permit, unless and until the Regional Administrator 
determines that measures have been taken to ensure no additional WNP 
gray whales are struck during the duration of the permit. No further 
hunt permits will be issued unless and until the Regional Administrator 
determines that measures have been taken to prevent additional WNP gray 
whale strikes during the remainder of the waiver period.
    (5) Images and samples. NMFS hunt observers, tribal hunt observers, 
and members of the Makah Indian Tribe may collect still or motion 
pictures as needed to document hunting and training approaches, strikes 
(successful and unsuccessful attempts), and landings. Persons 
designated by NMFS and by the Makah Indian Tribe may also collect, 
store, transfer, and analyze specimen samples from struck gray whales.
    (6) Hunt permit terms and conditions. Each hunt permit will 
specify:
    (i) Those terms required by 16 U.S.C. 1374(b);
    (ii) The limits established under paragraph (a)(4) of this section;
    (iii) The area where hunts, hunting approaches, training 
approaches, and training harpoon throws are allowed, which will be 
limited to the waters of the Makah Indian Tribe's U&A west of the 
Bonilla-Tatoosh Line except as provided in Sec.  216.115(a)(7), and any 
site and time restrictions to protect Olympic Coast National Marine 
Sanctuary resources pursuant to consultation under 16 U.S.C. 1434(d) of 
the National Marine Sanctuary Act;
    (iv) The type and timing of notice that the Makah Indian Tribe must 
provide to NMFS before issuing a tribal whaling permit authorizing a 
hunt, hunting or training approaches, or training harpoon throws;
    (v) Measures to be taken by the hunt permit holder to provide for 
the safety of the whaling crew, the public, and others during a hunt;
    (vi) That the hunt permit authorizes only the take of ENP gray 
whales and not the take of any other marine mammals; and
    (vii) Such other provisions as the Regional Administrator deems 
necessary.
    (7) Required determinations. Before issuing a hunt permit the 
Regional Administrator must make the following determinations:
    (i) The authorized manner of hunting is humane;
    (ii) The Makah Indian Tribe has enacted a tribal ordinance 
governing hunting that is consistent with these regulations;
    (iii) The Makah Indian Tribe has in place certification procedures 
for whaling captains, riflemen, harpooners, tribal hunt observers, and 
safety officers and a process to ensure compliance with those 
procedures;
    (iv) There are adequate photo-identification catalogs and processes 
available to allow for the identification of WNP gray whales and PCFG 
whales as described in Sec.  216.114(b);
    (v) The most recent PCFG population estimate is at least 192 whales 
and the associated minimum population estimate is at least 171 whales;
    (vi) The PCFG population estimate for the first hunting season 
covered by the permit is projected to be at least 192 whales and the 
associated minimum population estimate is projected to be at least 171 
whales; and
    (vii) The Makah Indian Tribe has obtained any relevant incidental 
take authorization for other marine mammals.
    (viii) Except for the initial hunt permit, before issuing a hunt 
permit the Regional Administrator must determine that the Makah Indian 
Tribe has complied with the requirements of these regulations and all 
prior permit terms and conditions, or if the Makah Indian Tribe has not 
fully complied, that it has adopted measures to ensure compliance.
    (b) Gray whales landed under a hunt permit may be utilized as 
follows:
    (1) Edible products of ENP gray whales--(i) Enrolled members of the 
Makah Indian Tribe may possess, consume, and transport edible whale 
products, and may share and barter such products with other enrolled 
members, both within and outside the Makah Indian Tribe's reservation 
boundaries. Within the Tribe's reservation boundaries, enrolled members 
of the Makah Indian Tribe may share edible ENP gray whale products with 
any person. Outside the Makah Indian Tribe's reservation boundaries, 
enrolled members of the Makah Indian Tribe may share edible ENP gray 
whale products with any person attending a tribal or intertribal 
gathering sanctioned by the Makah Tribal Council, so long as there is 
not more than two pounds of such edible product per person attending 
the gathering.
    (ii) Any person who is not an enrolled member of the Makah Indian 
Tribe may possess, consume, and transport edible ENP gray whale 
products within the Makah Indian Tribe's reservation boundaries so long 
as the products are shared by an enrolled member of the Makah Indian 
Tribe. Outside the Tribe's reservation boundaries, any person who is 
not an enrolled member of the Makah Indian Tribe may possess and 
consume edible gray whale products at a tribal or intertribal gathering 
sanctioned by the Makah Tribal Council if such products are shared by 
an enrolled member of the

[[Page 13621]]

Makah Indian Tribe and the person consumes the products at the 
gathering.
    (2) Nonedible products of ENP gray whales--(i) Enrolled members of 
the Makah Indian Tribe may possess nonedible whale products that have 
not been fashioned into Makah Indian handicrafts, and Makah Indian 
handicrafts that have not been marked and certificated per Sec.  
216.113(b)(2)(iii), may transport such products, and may share and 
barter such products with other enrolled members, both within and 
outside the Makah Indian Tribe's reservation boundaries.
    (ii) Enrolled members of the Makah Indian Tribe may share or barter 
Makah Indian handicrafts that have not been marked and certificated per 
Sec.  216.113(b)(2)(iii) with any person within the Tribe's reservation 
boundaries.
    (iii) Any person may possess, transport, share, barter, offer for 
sale, sell, or purchase a Makah Indian handicraft in the United States, 
provided the handicraft is permanently marked with a distinctive 
marking approved by the Makah Tribal Council, and is accompanied by a 
certificate of authenticity issued by the Makah Tribal Council or its 
designee and entered in the Tribe's official record of Makah Indian 
handicrafts. Such handicrafts may be delivered, carried, transported, 
or shipped in interstate commerce.
    (iv) Within the Makah Indian Tribe's reservation boundaries, any 
person who is not an enrolled member of the Makah Indian Tribe may 
possess and transport Makah Indian handicrafts that have not been 
marked and certificated per Sec.  216.113(b)(2)(iii), provided the 
handicraft was shared by or bartered from an enrolled member. Within 
the Makah Indian Tribe's reservation boundaries, persons not enrolled 
as a member of the Makah Indian Tribe may share or barter such 
handicrafts only with enrolled members.
    (c) The Makah Indian Tribe is responsible for managing all 
activities of any Makah Indian tribal member carried out under this 
section.


Sec.  216.114  Accounting and identification of gray whales.

    (a) Notifications--(1) Thirty days prior to the beginning of a 
hunting season specified in Sec.  216.113(a)(2), the Regional 
Administrator will notify the Makah Indian Tribe in writing of the 
maximum number of PCFG whales, including females, that may be struck 
during the upcoming hunting season. The limit will take into account 
the abundance of PCFG whales relative to the conditions specified under 
Sec.  216.113(a)(4)(vi) and the number of strikes made on PCFG whales 
as described under Sec.  216.113(a)(4)(iii).
    (2) By November 1 of each year, the Regional Administrator will 
notify the Makah Indian Tribe in writing of the proportion of gray 
whales in the hunt area that will be presumed to be PCFG whales and the 
proportion of PCFG whales that will be presumed to be females for each 
month of the upcoming calendar year. The presumed proportion of PCFG 
whales will be based on the best available evidence for the months of 
December and January through May, and will be 100 percent for the 
months of June through November. The presumed proportion of female PCFG 
whales will be based on the best available information for each month. 
These proportions will be used for purposes of accounting for PCFG 
whales that are not otherwise identified or accounted for as provided 
under subsection Sec.  216.114(b).
    (3) The Regional Administrator will notify the Makah Indian Tribe 
in writing when the Tribe has reached the limit of PCFG whales that may 
be struck in any hunting season.
    (b) Identification and accounting of gray whales--(1) Even-year 
hunts. Based on the best available evidence, the Regional Administrator 
will determine in writing whether a gray whale that is struck in an 
even-year hunt is a WNP gray whale or a PCFG whale or neither, or 
cannot be identified due to a lack of photographs or genetic data 
useful for making identifications. A whale affirmatively identified as 
a PCFG whale will be counted accordingly. A whale that cannot be 
identified will be presumed to be a PCFG whale in accordance with the 
proportions specified in Sec.  216.114(a)(2) and will be counted 
accordingly. If the sex of a whale that is counted, in whole or in 
part, as a PCFG whale cannot be identified, the proportions specified 
in Sec.  216.114(a)(2) will be applied.
    (2) Odd-year hunts. Based on available evidence, the Regional 
Administrator will determine in writing whether a gray whale that is 
struck in an odd-year hunt is a WNP gray whale or cannot be identified 
due to a lack of photographs or genetic data useful for making 
identifications. A gray whale that cannot be identified as a WNP gray 
whale will be counted as a PCFG whale. If the sex of a whale that is 
counted as a PCFG whale cannot be identified, the proportions specified 
in Sec.  216.114(a)(2) will be applied.
    (3) Hunting and training approaches. Gray whales subjected to 
hunting or training approaches are presumed to be PCFG whales in 
accordance with the proportions specified in Sec.  216.114(a)(2).
    (4) Unauthorized strikes. If a tribal member strikes an ENP gray 
whale without authorization under this subpart, the strike will be 
counted against the total number of strikes allowed under these 
regulations and will be counted against the U.S. share of any 
applicable catch limit established by the International Whaling 
Commission.


Sec.  216.115  Prohibited acts.

    (a) It is unlawful for the Makah Indian Tribe or any enrolled Makah 
Indian tribal member to:
    (1) Take any gray whale except as authorized by a hunt permit 
issued under Sec.  216.113(a) or by any other provision of part 216.
    (2) Participate in a hunt while failing to carry onboard the vessel 
at all times a hunt permit issued by NMFS and a tribal whaling permit 
issued by the Makah Indian Tribe, or an electronic copy or photocopy of 
these permits.
    (3) Make a training approach or a training harpoon throw while 
failing to carry onboard the training vessel at all times an electronic 
copy or photocopy of the hunt permit issued by NMFS and a training 
logbook approved by the Makah Indian Tribe for recording training 
approaches and training harpoon throws.
    (4) Participate in a hunt as a whaling captain, rifleman, 
harpooner, tribal hunt observer, or safety officer, unless the 
individual's name is included in a tribal certification report issued 
under Sec.  216.117(a)(6)(i).
    (5) Violate any provision of any hunt permit issued under Sec.  
216.113(a).
    (6) Hunt or make a training harpoon throw on a calf or an adult 
gray whale accompanying a calf.
    (7) Hunt outside the geographic area identified in Sec.  
216.113(a)(6)(iii), unless in pursuit of a gray whale that has already 
been struck within that area.
    (8) Hunt, make a hunting or training approach, or make a training 
harpoon throw after reaching the limits specified in the hunt permit 
per Sec.  216.113(a)(4)(i) through (v).
    (9) Hunt if the limit on PCFG whales or PCFG females that may be 
struck is less than one as a result of accounting per Sec.  
216.114(b)(1) through (3).

[[Page 13622]]

    (10) Hunt after the Makah Indian Tribe has been notified in writing 
by the Regional Administrator under Sec.  216.114(a)(3) that the limit 
of PCFG whales that may be struck has been reached or that the PCFG 
abundance is below the limits specified in Sec.  216.113(a)(4)(vi).
    (11) Hunt after a gray whale has been landed and before the Makah 
Indian Tribe has received notification from the Regional Administrator 
in accordance with Sec.  216.114(b).
    (12) Sell, offer for sale, purchase, or export any gray whale 
products, except Makah Indian handicrafts that have been marked and 
certificated per Sec.  216.113(b)(2)(iii).
    (13) Barter edible gray whale products with any person not enrolled 
as a member of the Makah Indian Tribe.
    (14) Share edible gray whale products outside the Makah Indian 
Tribe's reservation boundaries with any person not enrolled as a member 
of the Makah Indian Tribe, except with persons attending a tribal or 
intertribal gathering sanctioned by the Makah Tribal Council, so long 
as there is not more than two pounds of edible product per person 
attending the gathering per Sec.  216.113(b)(1)(i).
    (15) Share or barter nonedible gray whale products:
    (i) Outside the Makah Indian Tribe's reservation boundaries with 
any person not enrolled as a Makah Indian tribal member, except Makah 
Indian handicrafts that are permanently marked and certificated per 
Sec.  216.113(b)(2)(iii).
    (ii) Within the Makah Indian Tribe's reservation boundaries with 
any person not enrolled as a Makah Indian tribal member except a 
product that has been fashioned into a Makah Indian handicraft.
    (16) Make a false statement in an application for a hunt permit or 
in a report required under this subpart.
    (17) Transfer or assign a hunt permit issued under this subpart.
    (18) Fail to submit reports required by this subpart.
    (19) Deny persons designated by NMFS access to landed gray whales 
for the purpose of collecting specimen samples.
    (20) Fail to provide required permits and reports for inspection 
upon request by persons designated by NMFS.
    (21) Allow anyone other than enrolled Makah Indian tribal members 
to be part of a whaling crew or to allow anyone other than such members 
or tribal hunt observers to be in a training vessel engaged in hunt 
training.
    (b) It is unlawful for any person who is not an enrolled member of 
the Makah Indian Tribe to:
    (1) Gift, barter, purchase, sell, export, or offer to gift, barter, 
purchase, sell, or export edible gray whale products.
    (2) Possess or transport edible gray whale products except products 
shared by an enrolled Makah Indian tribal member and possessed or 
transported within the Makah Indian Tribe's reservation boundaries, or 
possessed outside the Makah Indian Tribe's reservation boundaries as 
part of a tribal or intertribal gathering sanctioned by the Makah 
Tribal Council.
    (3) Purchase, sell, export, or offer to purchase, sell, or export 
nonedible gray whale products except Makah Indian handicrafts that are 
marked and certificated per Sec.  216.113(b)(2)(iii).
    (4) Outside the Makah Indian Tribe's reservation boundaries, 
possess, transport, gift, or barter nonedible gray whale products 
except Makah Indian handicrafts that are marked and certificated per 
Sec.  216.113(b)(2)(iii).
    (5) Within the Makah Indian Tribe's reservation boundaries, 
possess, transport, gift, or barter any nonedible gray whale product 
other than a Makah Indian handicraft that is marked and certificated 
per Sec.  216.113(b)(2)(iii), unless the product has been fashioned 
into a Makah Indian handicraft and was shared by or with, or bartered 
from or to, an enrolled member of the Makah Indian Tribe.


Sec.  216.116  Applications for hunt permits.

    (a) To obtain an initial hunt permit, the Makah Indian Tribe must 
submit an application to the Regional Administrator, signed by an 
official of the Makah Tribal Council, that contains the following 
information and statements:
    (1) The maximum number of gray whales to be subjected to hunting or 
training approaches, struck, landed, and subjected to unsuccessful 
strike attempts;
    (2) A demonstration that the proposed method of taking is humane;
    (3) A demonstration that the proposed taking is consistent with 
these regulations;
    (4) A copy of the currently enacted Makah Indian tribal ordinance 
governing whaling by Makah Indian tribal members; and
    (5) A description of the certification process for whaling 
captains, riflemen, harpooners, tribal hunt observers, and safety 
officers, including any guidelines or manuals used by the Tribe to 
certify such persons.
    (b) To obtain subsequent hunt permits, the Makah Indian Tribe must 
submit an application to the Regional Administrator, signed by an 
official of the Makah Tribal Council, that contains the information 
required in Sec.  216.116(a) and the following information and 
statements:
    (1) A description of how the Makah Indian Tribe has complied with 
the requirements of these regulations and previously issued hunt 
permits;
    (2) A description of circumstances associated with gray whale(s) 
struck and lost under the most recently issued hunt permit, a 
description of the measures taken to retrieve such whale(s), and a 
description of measures taken by the Makah Indian Tribe to minimize 
future incidents of struck and lost gray whales; and
    (3) A description of products obtained from gray whales landed 
under the most recently issued hunt permit, including a description of 
the disposition of any gray whale products deemed unsuitable for use by 
Makah Indian tribal members.
    (c) The Regional Administrator will notify the Makah Indian Tribe 
of receipt of the application and will review the application for 
completeness. Incomplete applications will be returned with 
explanation. If the Makah Indian Tribe fails to resubmit a complete 
application within 60 days, the application will be deemed withdrawn.
    (d) After receipt of a complete application, and the preparation of 
any NEPA documentation that the Regional Administrator has determined 
to be necessary, the Regional Administrator will publish a notice of 
receipt in the Federal Register and review the application as required 
by 16 U.S.C. 1374.


Sec.  216.117  Requirements for monitoring, reporting, and 
recordkeeping.

    (a) In addition to the reporting provisions described in 50 CFR 
230.8, the Makah Indian Tribe will:
    (1) Ensure a certified tribal hunt observer accompanies each hunt. 
The tribal hunt observer will record in a hunting logbook the time, 
date, and location (latitude and longitude, accurate to at least the 
nearest second) of each hunting approach of a gray whale, each attempt 
to strike a gray whale, and each gray whale struck. For each gray whale 
struck, the tribal hunt observer will record whether the whale was 
landed. If not landed, the tribal hunt observer will describe the 
circumstances associated with the striking of the whale and estimate 
whether the animal suffered a wound that might be fatal. For every gray 
whale approached by the whaling crew, the tribal hunt observer will 
attempt to

[[Page 13623]]

collect digital photographs useful for photo-identification purposes.
    (2) Ensure that each vessel involved in a training approach has 
onboard a training logbook for recording the date, location, and number 
of gray whales approached and the number of training harpoon throws. 
Each training approach and training harpoon throw must be reported to 
the tribal hunt observer within 24 hours.
    (3) Maintain hunting and training logbooks specified in Sec.  
216.117(a)(1) and (2) and allow persons designated by NMFS to inspect 
them upon request.
    (4) Ensure that each whaling captain allows a NMFS hunt observer to 
accompany and observe any hunt.
    (5) Maintain an official record of all articles of Makah Indian 
handicraft, including the following information for each article 
certified by the Makah Tribal Council or its designee: The date of the 
certification; the permanent distinctive mark identifying the article 
as a Makah Indian handicraft; a brief description of the handicraft, 
including artist's full name, gray whale product(s) used, and 
approximate size; and at least one digital photograph of the entire 
handicraft. A copy of the official record of Makah Indian handicrafts 
must be provided to NMFS personnel, including NMFS enforcement 
officers, upon request.
    (6) Ensure that the following reports are filed electronically with 
the NMFS West Coast Region's office in Seattle, Washington, by the 
indicated date:
    (i) Tribal certification report. Thirty days prior to the beginning 
of a hunting season, the Makah Indian Tribe must provide NMFS with a 
report that includes the names of all tribal hunt observers and 
enrolled Makah Indian tribal members who have been certified to 
participate in a hunt as whaling captains, riflemen, harpooners, and 
safety officers. The Tribe may provide additional names during the 
hunting season.
    (ii) Incident report. After striking a gray whale, the Makah Indian 
Tribe must submit an incident report within 48 hours to NMFS. A report 
may address multiple gray whales so long as the Tribe submits the 
report within 48 hours of the first gray whale being struck. For any 
gray whale(s) struck and lost, the report must contain the information 
in paragraph (a)(1) of this section and for any gray whale(s) struck 
and landed the report must contain the information in paragraph (a)(2) 
of this section:
    (A) Struck and lost gray whale(s): The whaling captain's name; the 
tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of strikes and attempted strikes if any; the method(s) of strikes and 
attempted strikes; an estimate of the whale's total length. The report 
will describe the circumstances associated with the striking of the 
whale and estimate whether the animal suffered a wound that might be 
fatal. The report will include all photographs taken by a tribal hunt 
observer of gray whales struck and lost by the whaling crew. The report 
may also contain any other observations by the Makah Indian Tribe 
concerning the struck and lost whale(s) or circumstances of the hunt.
    (B) Struck and landed gray whale(s): The whaling captain's name; 
the tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of strikes and attempted strikes if any; the method(s) of strikes and 
attempted strikes; the whale's body length as measured from the point 
of the upper jaw to the notch between the tail flukes; an estimate of 
the whale's maximum girth; the extreme width of the tail flukes; the 
whale's sex and, if female, lactation status; the length and sex of any 
fetus in the landed whale; photographs of the whale(s), including the 
entire dorsal right side, the entire dorsal left side, the dorsal 
aspect of the fluke, and the ventral aspect of the fluke. All such 
photographs must include a ruler to convey scale and a sign specifying 
the Makah Indian Tribe's name, whaling captain's name, whale species, 
and date. The report must also describe the time to death (measured 
from the time of the first strike to the time of death as indicated by 
relaxation of the lower jaw, no flipper movement, or sinking without 
active movement) and the disposition of all specimen samples collected 
and whale products, including any whale products deemed unsuitable for 
use by Makah Indian tribal members. The report may also contain any 
other observations by the Makah Indian Tribe concerning the landed 
whale or circumstances of the hunt.
    (iii) Hunt report. Within 30 days after the end of each hunting 
season the Makah Indian Tribe must submit a report to NMFS that 
describes the following information for each day of hunting:
    (A) Struck and lost gray whale(s): The report must contain the 
information specified in Sec.  216.117(a)(6)(ii)(A).
    (B) Struck and landed gray whale(s): The report must contain the 
information specified in Sec.  216.117(a)(6)(ii)(B).
    (C) Hunting approaches and unsuccessful strike attempt(s): For each 
gray whale approached or subjected to an unsuccessful strike 
attempt(s), the report must contain: The whaling captain's name; the 
tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of approaches and unsuccessful strike attempts; the method of attempted 
strikes; an estimate of the total length of any whale subjected to an 
unsuccessful strike attempt; and all photographs taken by a tribal hunt 
observer of gray whales approached by the whaling crew. The report may 
also contain any other observations by the Makah Indian Tribe 
concerning the whale(s) approached or subjected to unsuccessful strike 
attempts or circumstances of the hunt.
    (iv) Annual approach report. By January 15 of each year, the Makah 
Indian Tribe must submit a report to NMFS containing the dates, 
location, and number of gray whales subjected to hunting approaches, 
training approaches, and training harpoon throws during the previous 
calendar year. The report may also contain any other observations by 
the Makah Indian Tribe concerning the approached whales or 
circumstances of the approaches and training harpoon throws.
    (v) Annual handicraft report. By April 1 of each year, the Makah 
Indian Tribe must submit a report to NMFS which describes all Makah 
Indian handicrafts certified by the Makah Tribal Council or its 
designee during the previous calendar year. The report must contain the 
following information for each handicraft certified: The date of the 
certification; the permanent distinctive mark identifying the article 
as a Makah Indian handicraft; a brief description of the handicraft, 
including artist's full name, gray whale product(s) used, and 
approximate size; and at least one digital photograph of the entire 
handicraft.
    (vi) The hunt report, annual approach report, and annual handicraft 
report collected pursuant to this section will be maintained and made 
available for public review in the NMFS West Coast Region's office in 
Seattle, Washington.
    (b) Upon receiving an incident report specified in Sec.  
216.117(a)(6)(ii) documenting that 8 gray whales have been struck, the 
Regional Administrator will evaluate:
    (1) The photo-identification and notification requirements 
described in Sec.  216.113(a)(7)(iv) and Sec.  216.114. The evaluation 
will address the status of gray whale photo-identification catalogs 
used to manage gray whale hunts authorized under this subpart, the

[[Page 13624]]

survey efforts employed to keep those catalogs updated, the level of 
certainty associated with identifying cataloged WNP gray whales and 
PCFG whales, the role of ancillary information such as genetic data 
during catalog review, and any other elements deemed appropriate by the 
Regional Administrator. The evaluation will be made available to the 
public no more than 120 days after receiving the subject incident 
report.
    (2) The humaneness of the authorized manner of hunting as specified 
in Sec.  216.113(a)(7)(i). To evaluate humaneness, NMFS will convene a 
team composed of a veterinarian, a marine mammal biologist, and all 
tribal hunt observers and NMFS hunt observers who were witness to the 
strikes described in the incident reports required by this section. The 
team's evaluation will address the effectiveness of the hunting methods 
used by the Makah Indian Tribe, the availability and practicability of 
other such methods, and the time to death of hunted whales, and any 
other matters deemed appropriate by the Regional Administrator and the 
team. The team's evaluation will be made available to the public no 
more than 120 days after receiving the subject incident report.
    (c) The NMFS West Coast Region's Seattle office is located at 7600 
Sand Point Way NE, Seattle, WA 98115-0070.


Sec.  216.118  Expiration and amendment.

    (a) These regulations will expire 10 years after the effective date 
of the initial hunt permit specified under Sec.  216.113(a)(1), unless 
extended.
    (b) These regulations may be periodically reviewed and modified as 
provided in 16 U.S.C. 1373(e).

[FR Doc. 2019-06337 Filed 4-4-19; 8:45 am]
 BILLING CODE 3510-22-P