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[Federal Register: April 6, 1998 (Volume 63, Number 65)]
[Rules and Regulations]
[Page 16701-16704]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 230
[I.D. 022398A]
Whaling Provisions; Aboriginal Subsistence Whaling Quotas
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of aboriginal subsistence whaling quotas.
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SUMMARY: NMFS announces aboriginal subsistence whaling quotas and other
limitations deriving from regulations adopted at the 1997 Annual
Meeting of the International Whaling Commission (IWC). For 1998, the
quotas are 77 bowhead whales struck, and 5 gray whales landed. These
quotas and other limitations will govern the harvest of bowhead whales
by members of the Alaska Eskimo Whaling Commission (AEWC) and the
harvest of gray whales by members of the Makah Indian Tribe (Tribe). These are initial quotas
that will remain in effect for the 1998 season unless they are revised
as a result of the completion of arrangements with the Russian
Federation. Any revisions to the quotas will be published in the
Federal Register.
DATES: Effective April 6, 1998. Comments on the aboriginal subsistence
whaling quotas and related limitations must be received by May 6, 1998.
ADDRESSES: Send comments to Chief, Marine Mammal Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226.
FOR FURTHER INFORMATION CONTACT: Catherine Corson, (301) 713-2322.
SUPPLEMENTARY INFORMATION: Aboriginal subsistence whaling in the United
States is governed by the Whaling Convention Act (WCA), 16 U.S.C. 916
et seq., and by rules at 50 CFR part 230. The rules require the
Secretary of Commerce (Secretary) to publish, at least annually,
aboriginal subsistence whaling quotas and any other limitations on
aboriginal subsistence whaling deriving from regulations of the IWC.
At the 1997 Annual Meeting of the IWC, the Commission set quotas
for aboriginal subsistence use of bowhead whales from the Bering-
Chukchi-Beaufort Seas stock, and gray whales from the Eastern stock in
the North Pacific. The bowhead quota was based on a joint request by
the United States and the Russian Federation, accompanied by
documentation concerning the needs of two Native groups, Alaska Eskimos
and Chukotka Natives in the Russian Far East. The gray whale quota was
also based on a joint request by the Russian Federation and the United
States, again with documentation of the needs of two Native groups, the
Chukotka Natives and the Makah Indian Tribe in Washington State.
These actions by the IWC thus authorized aboriginal subsistence
whaling by the AEWC for bowhead whales, and by the Tribe for gray
whales, as discussed in greater detail in this document (see
``Background information'' and ``1997 Annual Meeting''). The harvests
will be conducted in accordance with cooperative agreements between
NOAA and the AEWC, and between NOAA and the Makah Tribal Council
(Council); these agreements are the means by which NOAA recognizes the
AEWC and the Tribe as Native American whaling organizations under 50
CFR part 230.
Quotas
The IWC set a 5-year block quota of 280 bowhead whales landed. For
each of the years 1998-2002, the number of bowhead whales struck may
not exceed 67, except that any unused portion of a strike quota from
any year, including 15 unused strikes from the 1995-97 quota, may be
carried forward. No more than 15 strikes may be added to the strike
quota for any 1 year. At the end of the 1997 harvest, there were 15
unused strikes available for carry-forward, so the combined strike
quota for 1998 is 82 (67 + 15). Because the quota approved by the IWC
in 1997 was based in part on a request for five bowheads a year for the
Chukotka people, the 1998 quota for the AEWC is 77 strikes (82 - 5).
The AEWC will allocate these strikes among the 10 villages whose
cultural and subsistence needs have been documented in past requests
for bowhead quotas from the IWC.
The United States and the Russian Federation plan to conclude an
arrangement to ensure that the total quota of bowhead whales landed and
struck will not exceed the quotas set by the IWC.
The IWC also set a 5-year block quota (1998-2002) of 620 gray
whales, with an annual cap of 140 animals taken. The IWC regulation
does not address the number of allowed strikes. The requested quota and
accompanying documentation assumed an average annual harvest of 120
whales by the Chukotka people and an average annual harvest of 4 whales
by the Makah Indian Tribe. In accordance with the agreement between
NOAA and the Council, the Makah hunters will take no more than five
gray whales in any 1 year. The Council will manage the harvest to use
no more than 33 strikes over the 5-year period, and will take measures
to ensure that the overall ratio of struck whales to landed whales does
not exceed 2:1. Because the U.S. request for a gray whale quota was not
based on the needs of separate whaling villages, but rather on the
needs of the Tribe as a whole, the Council will allocate the quota
among whaling captains to whom permits have been issued.
The United States and the Russian Federation will also conclude an
arrangement to ensure that the block quota and annual cap for gray
whales are not exceeded.
Other Limitations
The IWC regulations, as well as the NOAA rule at 50 CFR 230.4(c),
forbid the taking of calves or any whale accompanied by a calf.
NOAA rules (at 50 CFR part 230) contain a number of other
provisions relating to aboriginal subsistence whaling, some of which
are summarized here. Only licensed whaling captains, or crew under the
control of those captains, may engage in whaling. They must follow the
provisions of the relevant cooperative agreement between NOAA and a
Native American whaling organization (the AEWC or the Council), as well
as applicable rules in part 230. The aboriginal hunters must have
adequate crew, supplies, and equipment. They may not receive money for
participating in the hunt. No person may sell or offer for sale whale
products from whales taken in the hunt, except for authentic articles
of Native handicrafts. Captains may not continue to whale after the
relevant quota is taken, the season has been closed, or their licenses
have been suspended. They may not engage in whaling in a wasteful
manner.
Background Information
The United States is a member of the IWC, the body established by
the International Convention for the Regulation of Whaling (ICRW). U.S.
participation in the IWC and management of whaling activities under
U.S. jurisdiction are governed by the WCA, which requires that relevant
IWC regulations be submitted by the Secretary for publication in the
Federal Register. This notice fulfills that requirement.
The IWC's primary function is the adoption of regulations (called
the ``Schedule''), which are considered an integral part of the
Convention. Since the late 1970s, the IWC has set quotas for the
aboriginal subsistence harvest of whales from several stocks, including
bowhead whales from the Bering-Chukchi-Beaufort Seas stock and gray
whales from the Eastern stock in the North Pacific. Although the IWC
sets quotas for the aboriginal subsistence harvest of these stocks at
the request of a Contracting Government, the quotas are not assigned to
a particular group of aborigines or to a particular country. The reason
for this is found in Article V.2.c of the ICRW, which specifies that
regulations may not ``allocate specific quotas to any factory or ship
or land station or to any group of factory ships or land stations.''
During the 2 decades that the IWC has set quotas for aboriginal
whaling, it has been the case that only one Contracting Government has
made a request for a quota from any one stock. During the 1980s,
however, up to 10 animals of the gray whale quota based on the Soviet
Union's request were understood by the IWC to be available for take by
Alaska Eskimos, through an informal arrangement between the Soviet Union and the United States. This
arrangement was modeled on the bilateral or multilateral arrangements
of Contracting Parties to allocate commercial quotas set by the IWC
before the moratorium on commercial whaling took effect. Catches of
gray whales for aboriginal subsistence use by Alaska Eskimos, when they
occurred, were reported by the United States each year and were
published in the Annual Reports of the IWC. No IWC member objected to
these catches.
During these 2 decades, the IWC has never established a mechanism
for recognizing the subsistence needs of an aboriginal group, other
than by setting a quota based on the documentation of those needs by
the Contracting Government. The IWC has never adopted a resolution or
taken any other action explicitly recognizing subsistence needs of a
particular group. While Alaska Eskimos were taking gray whales in the
1980s, the only indications in the IWC record of the U.S.-Soviet
arrangement were brief floor statements noting the existence of the
bilateral agreement.
The IWC has developed the practice of setting aboriginal quotas
that are in place for 3 or 4 years. For example, the IWC in 1994 set a
quota of 140 gray whales for each of the years 1995-97, based on a
proposal by the Russian Federation. At the same meeting, the IWC
adopted by consensus a proposal by the United States for a total of 204
bowhead whales for the years 1995-98, where an annual cap on strikes
was also specified.
In 1996, when the United States first put forward the proposal for
a gray whale quota for the Makah Indian Tribe, the U.S. delegation did
not ask the Russians to share the existing (1995-97) quota of 140 per
year, which had been based on the subsistence needs of the Chukotka
people. Instead, it requested an increase in the existing quota; the
U.S. proposed to allow an additional take from the same stock of up to
five gray whales a year in the years 1997-2000 from waters off the west
coast of the United States. This approach was consistent with the U.S.
position that each country wishing to establish or continue an
aboriginal subsistence hunt must submit its own unique documentation
(``needs statement''), justifying its request for the setting of an
appropriate quota. While the U.S. proposal had considerable support at
the 1996 annual meeting, it did not appear to have the necessary three-
quarters majority vote for a Schedule amendment and was withdrawn
before a vote was taken.
1997 Annual Meeting
In preparation for the IWC's Annual Meeting in October 1997, the
U.S. delegation began considering suggestions from other Commissioners
that the United States should find a way to share a gray whale quota
with the Russians, preferably a quota lower than the combined requests
of 145 per year. This approach had implications for the U.S. position
that aboriginal subsistence quotas should be based on unique
documentation of the needs of each aboriginal group, as well as on the
conservation requirements of each stock.
Because the gray whale quota of 140 per year would expire in 1997,
the Russians had to propose a new Schedule amendment at the 1997 annual
meeting. Extensions of quotas are not automatic; they require the same
three-quarters or consensus vote as any other Schedule amendment. In
August 1997 the Russian government submitted to the IWC a request for
an annual quota of 140 gray whales for the years 1998-2002. At the same
time, the U.S. government stated its intention to propose an amendment
to the Schedule for gray whales. Both countries submitted needs
statements documenting the subsistence needs of their Native groups.
Both governments also indicated they would propose amendments to the
Schedule provision on bowhead whales.
As explained, 1997 was the first year when two Contracting
Governments were simultaneously requesting quotas from the same stock
for purposes of aboriginal subsistence whaling. After extensive
discussions with the AEWC about bowhead whales and the Makah Tribe
about gray whales, as well as an internal policy review, the U.S.
delegation consulted with the Russian delegation on the appropriate
formulation of Schedule language, given the Convention's prohibition
against allocating quotas to individual countries and the desire
expressed by some delegations for a shared quota.
The Russian and U.S. delegations each made a presentation about the
needs of their Native groups for gray whales and bowhead whales at the
meeting of the IWC's Aboriginal Subsistence Whaling Subcommittee on
October 18, 1997. The needs statements were each discussed at
considerable length by the Subcommittee.
Following the meeting of the Subcommittee, the two delegations
again consulted and decided to submit joint proposals for Schedule
amendments for the gray whale and bowhead whale quotas. The joint
proposal for a block quota for bowhead whales was adopted by consensus
on the afternoon of October 22, 1997.
The joint proposal for a gray whale quota began with the customary
introductory language:
The taking of gray whales from the Eastern stock in the North
Pacific is permitted, but only by aborigines or a Contracting Party
on behalf of aborigines, and then only when the meat and products of
such whales are to be used exclusively for local consumption by the
aborigines.
The proposal then specified, for the years 1998-2002, that the
number of gray whales not exceed 620, provided that the number of gray
whales taken in any 1 of the years 1998-2002 not exceed 140.
The two delegations also circulated a written explanation and
delivered oral statements demonstrating the basis for the proposed
numbers. The 5-year block quota of 620 represented a reduction of 105
from the combined original requests. The total of 620 assumed an
average annual harvest of 120 by the Chukotka people and 4 by the Makah
Tribe. The joint explanation said that the block quota would be
allocated through a bilateral arrangement.
The gray whale proposal was debated in a plenary session on the
afternoon of October 22, 1997. Some delegations suggested that an
amendment should be made to the introductory portion of the proposal.
Debate was then adjourned to allow for consultation among the
delegations.
One delegation proposed to the U.S. delegation that the following
words be added: ``whose traditional subsistence and cultural needs have
been recognized by the International Whaling Commission''. U.S.
delegates responded that the words ``by the International Whaling
Commission'' were not acceptable, because the IWC had no established
mechanism for recognizing such needs, other than adoption of a quota.
At a Commissioners-only meeting the next morning, the U.S.
representatives expressed their understanding that adoption of a quota
in the Schedule constituted IWC approval, with no further action
required. A clear majority of Commissioners then expressed their
support for the U.S. approach. When the plenary session resumed, the
Chair announced that a consensus had been achieved. The Russia-United
States proposal for a gray whale quota was adopted on October 23, 1997,
without a vote or further debate, with the addition of the words
``whose traditional aboriginal subsistence and cultural needs have been
recognized''.
NOAA therefore concludes that the gray whale quota set by the IWC
is available for use, under the limitations set forth above, by members
of the Makah Tribe. The Tribe's subsistence and cultural needs have
been recognized by the IWC's setting a quota for gray whales based on
the documentation of those needs, and by the United States in the NOAA-
Council agreement and other documents.
Procedural Matters
Licensing: A question has been raised about the method of issuing
licenses to aboriginal hunters. Since 1979, NOAA's rules (at 50 CFR
230.5) have automatically issued a license to whaling captains
identified by the relevant Native American whaling organization. The
Assistant Administrator for Fisheries, as well as the two
organizations, may suspend the license of any captain who does not
comply with NOAA's rules.
This rule serves the statutory purposes of identifying hunters who
are allowed to take whales in the subsistence harvest; ensuring that
hunters have adequate crews, supplies, and equipment; and enforcing
applicable rules, including the prohibition against receiving money for
participation in the hunt. NOAA relies upon the Native American whaling
organizations to make the administrative decision as to the eligibility
of whaling captains. The rule thus minimizes Federal interference in
the Native American organizations' administration of the subsistence
hunt. Over the years, it has proved to be an effective and efficient
means of complying with the WCA while allowing self-governance by
Native groups.
Environmental assessment: A draft environmental assessment (EA) on
the Makah harvest of gray whales was made available for public comment
on August 22, 1997. The final EA was completed on October 17, 1997 (see
62 FR 5393). The EA weighed the impacts of the U.S. government's
support of the Makah request to continue their traditional practice of
whaling, and considered several alternatives. The EA, which
incorporated and responded to public comments, concluded that the
proposed action would have no significant impact on the human
environment.
Monitoring program: NMFS and the IWC have been monitoring the
status and population trends of the gray whale for several decades.
NMFS and its predecessor agencies have monitored the eastern North
Pacific stock of gray whale during its southbound migration since 1952;
annual gray whale shore surveys off California were conducted between
1967-68 and 1980-81, and between 1984-85 and 1987-88. NMFS conducted a
status review for the gray whale and certain other species in 1984 (49
FR 44774, November 9, 1984) and 1991 (56 FR 29471, June 27, 1991). For
the status reviews, NMFS estimated that the eastern North Pacific stock
of gray whale was increasing at an annual rate of approximately 2.5
percent, and had recovered to or exceeded its population size prior to
commercial exploitation. By the time of the 1991 status review, the
estimate of abundance for this stock was 21,113.
With the determination to remove the eastern North Pacific stock of
the gray whale from the List of Endangered and Threatened Wildlife,
NMFS indicated its intention to implement a 5-year program to monitor
the status of this stock, 58 FR 3121 at 3135 (January 7, 1993). The
contents of this monitoring program are summarized in 59 FR 28846 (June
3, 1994), and Gray Whale Monitoring Task Group, A 5-year Plan for
Research and Monitoring of the Eastern North Pacific Population of Gray
Whales (NMFS, October 1993). NMFS is now implementing this monitoring
program.
Results from research conducted under the 5-year monitoring program
indicate that the population remains healthy and is continuing to
recover to levels approaching its carrying capacity, i.e., its
equilibrium population. Surveys of northbound migrating cow/calf pairs
were conducted between 1994 and 1997. Indices of calf production
(estimate of number of calves/total population estimate) were 4.4
percent in 1994, 2.6 percent in 1995, 5.1 percent in 1996, and 6.5
percent in 1997. These values were similar to values reported from
surveys of northbound migrating cow/calf pairs conducted in the early
1980s. Another northbound survey will be conducted in 1998.
Estimates of abundance from the southbound migration were made
during the winters of 1992-93, 1993-1994, and 1995-96. The population
estimate from the 1992-93 survey was 17,674 and the 1993-94 estimate
was 23,109. The most recent shore count of the southbound migration was
made between December 1995 and February 1996; the resulting estimate
was 22,571. The 1993-94 and 1995-96 estimates are not statistically
different from each other. The final southbound migration shore survey
for the 5-year period following delisting had to be suspended in early
February 1998 due to severe weather.
Data from all the surveys will be used to assess the status of this
stock (e.g., estimated population status relative to carrying capacity,
estimated rate of increase). A workshop to review a draft status report
is scheduled for the summer of 1999.
Research concerning the carrying capacity for the eastern North
Pacific stock of gray whale also was recommended in the 5-year research
and monitoring plan. Based on a revised Bayesian analysis of gray whale
population dynamics, point estimates for the equilibrium population
(i.e., the carrying capacity) ranged from 25,130 to 30,140, depending
upon the starting year of the trajectory.
Results from research conducted under the 5-year research and
monitoring program and earlier studies indicate that the eastern North
Pacific stock of gray whale continues to increase at a rate of
approximately 2.5 percent per year. These results are consistent with
the conclusion that the take of five additional gray whales per year by
the Makah Tribe will have no significant impact on the eastern North
Pacific stock of gray whale.
Classification
The Assistant Administrator is issuing the aboriginal subsistence
whaling quotas for the 1998 season, consistent with action taken by the
International Whaling Commission, as required by the Whaling Convention
Act, 16 U.S.C. 916 et seq. Consequently, this notice constitutes a
foreign affairs function, exempt from the requirement to provide prior
notice and opportunity for public comment under 5 U.S.C. 553(a)(1).
Because prior notice and an opportunity for public comment are not
required to be provided for this notice by 5 U.S.C. 553,or any other
law, the analytical requirements for the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., are not applicable.
Dated: March 30, 1998.
Dave Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 98-8845 Filed 3-31-98; 3:13 pm]
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