Whaling Provisions; Consolidation and Revision of Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 230

[Docket No. 960312069-6096-01; I.D. 022796F

RIN 0648-AI81

Whaling Provisions; Consolidation and Revision of Regulations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule.

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SUMMARY: NMFS issues a proposed rule that would revise and update

regulations pertaining to aboriginal subsistence whaling. The

regulations would be revised to remove outdated provisions, codify

current practice, incorporate current term usage, and reorganize the

remaining provisions to make the whaling regulations more concise,

better organized and, therefore, easier for the public to use. In

addition, NMFS proposes to revise the regulations to broaden the

current mechanism for regulating International Whaling Commission (IWC)

authorized whaling by the Alaska Eskimo Whaling Commission (AEWC) and

other Native American groups.

DATES: Written comments must be received on or before May 24, 1996.

ADDRESSES: Copies of the Environmental Assessment (EA) for this

proposed rule are available from, and comments should be sent to:

Michael Payne, Fisheries Biologist, Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver Spring, Maryland 20910. Comments

regarding the collection-of-information requirements contained in this

proposed rule should be sent to Michael Payne at the above address and

to the Office of Information and Regulatory Affairs, Office of

Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT: Dr. Kevin Chu (508) 548-5123.

way, Silver Spring, Maryland 20910. Comments

regarding the collection-of-information requirements contained in this

proposed rule should be sent to Michael Payne at the above address and

to the Office of Information and Regulatory Affairs, Office of

Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk

Officer).

FOR FURTHER INFORMATION CONTACT: Dr. Kevin Chu (508) 548-5123.

SUPPLEMENTARY INFORMATION: In March 1995, President Clinton issued a

directive to Federal agencies regarding their responsibilities under

his Regulatory Reinvention Initiative. This initiative is part of the

National Performance Review and calls for immediate, comprehensive

regulatory reform. The President directed all agencies to undertake an

exhaustive review of all their regulations, with an emphasis on

eliminating or modifying those that are obsolete, duplicative, or

otherwise in need of reform. This proposed rule is intended to carry

out the President's directive with respect to the regulations

implementing the Whaling Convention Act of 1949 (16 U.S.C. 916 et

seq.).

The revisions of 50 CFR part 230 proposed in this rule update the

whaling regulations consistent with current authorities and usage of

terms, eliminate duplicative or unnecessary text, and reorganize the

regulations to make the regulations easier for the public to use and to

reduce the volume and publication costs of the regulations.

The current regulations require the Department of Commerce to

monitor all aboriginal whaling, to collect all information directly, to

declare when quotas are filled and seasons are closed, and to enforce

directly the obligations of the IWC. The proposed rule would replace

this requirement with what is the current practice, i.e., joint

monitoring and enforcement of harvests authorized by the IWC, through a

cooperative agreement between NOAA and a Native American whaling

organization

, to collect all information directly, to

declare when quotas are filled and seasons are closed, and to enforce

directly the obligations of the IWC. The proposed rule would replace

this requirement with what is the current practice, i.e., joint

monitoring and enforcement of harvests authorized by the IWC, through a

cooperative agreement between NOAA and a Native American whaling

organization.

Government monitoring, and especially enforcement, has not been

feasible or desirable in the remote areas in which whaling takes place.

Compliance with the IWC obligations through self-organized Native

American organizations has worked better in practice, both from the

point of view of the U.S. Government and of the members of the AEWC,

the only group currently allowed by the IWC to whale in the United

States. Self-organized Native American whaling organizations can gather

information more readily, because they are community-based. Compliance

is obtained through peer pressure, as well as through fines and, on

occasion, the revoking of licenses. Moreover, the costs of putting

Government agents in each whaling village are prohibitive. Implementing

the regulations currently codified in part 230, in which Government

oversight is required at all stages of whaling, would, therefore,

either be unreliable or excessively expensive.

The current part 230 allows only Alaska Natives to engage in

whaling. The Makah Tribe of northwest Washington State also has a long

tradition of whaling. It has recently expressed an interest in resuming

this tradition and has asked the U.S. Government to seek a quota of

gray whales for ceremonial and subsistence purposes from the IWC. Gray

whales are not listed as threatened or endangered

under the Endangered Species Act. This proposed rule would allow a

mechanism for a cooperative agreement with the Makah Tribe for

monitoring and enforcing any IWC-authorized whaling. This mechanism

would be similar to the successful practice with the AEWC.

Classification

gray whales for ceremonial and subsistence purposes from the IWC. Gray

whales are not listed as threatened or endangered

under the Endangered Species Act. This proposed rule would allow a

mechanism for a cooperative agreement with the Makah Tribe for

monitoring and enforcing any IWC-authorized whaling. This mechanism

would be similar to the successful practice with the AEWC.

Classification

NMFS prepared an EA for this proposed action that discusses the

impact on the environment of this rule. The EA concludes that the

proposed revision of the whaling regulations will have no impact on the

status of any endangered species, as these revisions have no affect on

the quotas for aboriginal subsistence whaling authorized by the IWC. A

copy of the EA is available (see ADDRESSES).

This proposed rule has been determined to be not significant for

the purposes of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. Current regulations allow whaling only for subsistence

and cultural use; the proposed rule would not change that provision.

Only two Native American groups have expressed an interest in whaling--

the AEWC and the Makah Tribe. The proposed rule would broaden, rather

than restrict, the opportunities for Native American groups to renew

whaling traditions if the IWC grants the U.S. request for a quota. As a

result, a regulatory flexibility analysis was not prepared.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act. This collection-of-information

requirement has been submitted to OMB for approval. Whaling captains

would be required to report whaling activities to the relevant Native

American whaling organization, or to NMFS

quest for a quota. As a

result, a regulatory flexibility analysis was not prepared.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act. This collection-of-information

requirement has been submitted to OMB for approval. Whaling captains

would be required to report whaling activities to the relevant Native

American whaling organization, or to NMFS. Information on all whales

struck or landed in the course of aboriginal subsistence whaling is

requested to monitor compliance with IWC-authorized quotas and to

supply required or requested information to the IWC. Information on

landings of dead whales (``stinkers'') found floating at sea or washed

up on shore is also requested to have a record of all whales brought to

shore and to ensure that whales killed under the IWC quotas are not

claimed to have been found dead. The public reporting burden for

completing reports required by whaling captains is estimated at 0.5

hours per response. The reporting burden for the Native American

whaling organizations to report the whaling activities to NMFS is

estimated at 5 hours per response. These estimates include the time for

reviewing instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding these burden

estimates or any other aspects of the data requirements, including

suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of law, no person is required

to respond to, nor shall a person be subject to a penalty for failure

to comply with, a collection of information subject to the requirements

of the Paperwork Reduction Act unless that collection of information

displays a currently valid OMB Control Number

g

suggestions for reducing the burden, to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of law, no person is required

to respond to, nor shall a person be subject to a penalty for failure

to comply with, a collection of information subject to the requirements

of the Paperwork Reduction Act unless that collection of information

displays a currently valid OMB Control Number.

The Assistant Administrator for Fisheries, NOAA (AA) determined

that these proposed regulatory changes will not affect any endangered

or threatened species under the Endangered Species Act.

The AA determined that whaling activities conducted under this rule

would have no adverse effects on marine mammals, beyond what is

authorized by the IWC.

List of Subjects in 50 CFR Part 230

Fisheries, Indians, Marine mammals, Reporting and recordkeeping

requirements.

Dated: April 2, 1996.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR part 230 is

proposed to be revised to read as follows:

PART 230--WHALING PROVISIONS

Sec.

230.1 Purpose and scope.

230.2 Definitions.

230.3 General prohibitions.

230.4 Aboriginal subsistence whaling.

230.5 Licenses for aboriginal subsistence whaling.

230.6 Quotas and other restrictions.

230.7 Salvage of stinkers.

230.8 Reporting by whaling captains.

Authority: 16 U.S.C. 916 et seq.

Sec. 230.1 Purpose and scope.

The purpose of the regulations in this part is to implement the

Whaling Convention Act (16 U.S.C. 916 et seq.) by prohibiting whaling

except for aboriginal subsistence whaling allowed by the International

Whaling Commission. Provisions of the Marine Mammal Protection Act of

1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.) also pertain to human interactions with

whales. Rules elsewhere in this chapter govern such topics as

scientific research permits, and incidental take and harassment of

marine mammals.

Sec. 230.2 Definitions.

by the International

Whaling Commission. Provisions of the Marine Mammal Protection Act of

1972 (16 U.S.C. 1361 et seq.) and the Endangered Species Act of 1973

(16 U.S.C. 1531 et seq.) also pertain to human interactions with

whales. Rules elsewhere in this chapter govern such topics as

scientific research permits, and incidental take and harassment of

marine mammals.

Sec. 230.2 Definitions.

Aboriginal subsistence whaling means whaling authorized by

paragraph 13 of the Schedule annexed to and constituting a part of the

Convention.

Assistant Administrator means the Assistant Administrator for

Fisheries of the National Oceanic and Atmospheric Administration.

Authorized officer means:

(1) Any commissioned, warrant, or petty officer of the U.S. Coast

Guard;

(2) Any special agent or enforcement officer of the National Marine

Fisheries Service;

(3) Any officer designated by the head of a Federal or state agency

that has entered into an agreement with the Secretary of Commerce or

the Commandant of the Coast Guard to enforce the provisions of the

Whaling Convention Act; or

(4) Any Coast Guard personnel accompanying and acting under the

direction of any person described in paragraph (1) of this definition.

Calf means any whale less than 1 year old.

Commission means the International Whaling Commission established

by article III of the Convention.

Convention means the International Convention for the Regulation of

Whaling signed at Washington on December 2, 1946.

Cooperative agreement means a written agreement between the

National Oceanic and Atmospheric Administration and a Native American

whaling organization for the cooperative management of aboriginal

subsistence whaling operations.

Landing means bringing a whale or any parts thereof onto the ice,

or land in the course of whaling operations

on of

Whaling signed at Washington on December 2, 1946.

Cooperative agreement means a written agreement between the

National Oceanic and Atmospheric Administration and a Native American

whaling organization for the cooperative management of aboriginal

subsistence whaling operations.

Landing means bringing a whale or any parts thereof onto the ice,

or land in the course of whaling operations.

Native American whaling organization means an entity recognized by

the National Oceanic and Atmospheric Administration as representing and

governing Native American whalers for the purposes of cooperative

management of aboriginal subsistence whaling.

Regulations of the Commission means the regulations in the Schedule

annexed to and constituting a part of the Convention, as modified,

revised, or amended by the Commission from time to time.

Stinker means a dead, unclaimed whale found upon a beach, stranded

in shallow water, or floating at sea.

Strike means hitting a whale with a harpoon, lance, or explosive

device.

Wasteful manner means a method of whaling that is not likely to

result in the landing of a struck whale or that does not include all

reasonable efforts to retrieve the whale.

Whale products means any unprocessed part of a whale and blubber,

meat, bones, whale oil, sperm oil, spermaceti, meal, and baleen.

Whaling means the scouting for, hunting, striking, killing,

flensing, or landing of a whale, and the processing of whales or whale

products.

Whaling captain or captain means any person who is authorized by a

Native American whaling organization to be in charge of a vessel and

whaling crew.

Whaling crew means those persons under the control of a captain.

Whaling village means any U.S. village recognized by the Commission

as having a cultural and/or subsistence need for whaling.

Sec. 230.3 General prohibitions.

(a) No person shall engage in whaling in a manner that violates the

Convention, any regulation of the Commission, or this part.

in charge of a vessel and

whaling crew.

Whaling crew means those persons under the control of a captain.

Whaling village means any U.S. village recognized by the Commission

as having a cultural and/or subsistence need for whaling.

Sec. 230.3 General prohibitions.

(a) No person shall engage in whaling in a manner that violates the

Convention, any regulation of the Commission, or this part.

(b) No person shall engage in whaling without first having obtained

a license or scientific research permit issued by the Assistant

Administrator.

(c) No person shall ship, transport, purchase, sell, offer for

sale, import, export, or possess any whale or whale products taken or

processed in violation of the Convention, any regulation of the

Commission, or this part, except as specified in

Sec. 230.5(f).

(d) No person shall fail to make, keep, submit, or furnish any

record or report required of him/her by the Convention, any regulation

of the Commission, or this part.

(e) No person shall refuse to permit any authorized officer to

enforce the Convention, any regulation of the Commission, or this part.

Sec. 230.4 Aboriginal subsistence whaling.

(a) No person shall engage in aboriginal subsistence whaling,

except a whaling captain licensed pursuant to Sec. 230.5 or a member of

a whaling crew under the control of a licensed captain.

(b) No whaling captain shall engage in whaling that is not in

accordance with the regulations of the Commission, this part, and the

relevant cooperative agreement.

(c) No whaling captain shall engage in whaling for any calf or any

whale accompanied by a calf.

(d) No whaling captain shall engage in whaling without an adequate

crew or without adequate supplies and equipment.

(e) No person may receive money for participation in aboriginal

subsistence whaling.

(f) No person may sell or offer for sale whale products from whales

taken in an aboriginal subsistence hunt, except that authentic articles

of Native handicrafts may be sold or offered for sale.

hall engage in whaling in a wasteful

manner.

Sec. 230.5 Licenses for aboriginal subsistence whaling.

(a) A license is hereby issued to whaling captains identified by

the relevant Native American whaling organization.

(b) The Assistant Administrator may suspend the license of any

whaling captain who fails to comply with the regulations in this part.

Sec. 230.6 Quotas and other restrictions.

(a) Quotas for aboriginal subsistence whaling shall be set in

accordance with the regulations of the Commission. Quotas shall be

allocated to each whaling village or captain by the appropriate Native

American whaling organization. The Assistant Administrator shall

publish in the Federal Register, at least annually, aboriginal

subsistence whaling quotas and any other limitations on aboriginal

subsistence whaling deriving from regulations of the Commission. These

quotas and restrictions shall also be incorporated in the relevant

cooperative agreements.

(b) The relevant Native American whaling organization shall monitor

the whale hunt and keep tally of the number of whales landed and

struck. When a quota is reached, the organization shall declare the

whaling season closed, and there shall be no further whaling under that

quota during the calendar year. If the organization fails to close the

whaling season after the quota has been reached, the Assistant

Administrator may close it by filing a notice in the Federal Register.

Sec. 230.7 Salvage of stinkers.

(a) Any person salvaging a stinker shall submit to the Assistant

Administrator or his/her representative an oral or written report

describing the circumstances of the salvage within 12 hours of such

salvage. He/she shall provide promptly to the Assistant Administrator

or his/her representative each harpoon, lance, or explosive dart found

in or attached to the stinker. The device shall be returned to the

owner thereof promptly, unless it is retained as evidence of a possible

violation.

sentative an oral or written report

describing the circumstances of the salvage within 12 hours of such

salvage. He/she shall provide promptly to the Assistant Administrator

or his/her representative each harpoon, lance, or explosive dart found

in or attached to the stinker. The device shall be returned to the

owner thereof promptly, unless it is retained as evidence of a possible

violation.

(b) There shall be a rebuttable presumption that a stinker has been

struck by the captain whose mark appears on the harpoon, lance, or

explosive dart found in or attached thereto, and, if no strike has been

reported by such captain, such strike shall be deemed to have occurred

at the time of recovery of the device.

Sec. 230.8 Reporting by whaling captains.

(a) The relevant Native American whaling organization shall require

each whaling captain licensed pursuant to Sec. 230.5 to provide a

written statement of his/her name and village of domicile and a

description of the distinctive marking to be placed on each harpoon,

lance, and explosive dart.

(b) Each whaling captain shall provide to the relevant Native

American whaling organization an oral or written report of whaling

activities including but not limited to the striking, attempted

striking, or landing of a whale and, where possible, specimens from

landed whales. The Assistant Administrator is authorized to provide

technological assistance to facilitate prompt reporting and collection

of specimens from landed whales, including but not limited to ovaries,

ear plugs, and baleen plates. The report shall include at least the

following information:

(1) The number, dates, and locations of each strike, attempted

strike, or landing;

(2) The length (taken as the straight-line measurement from the tip

of the upper jaw to the notch between the tail flukes) and the sex of

the whales landed;

(3) The length and sex of a fetus, if present in a landed whale;

and

s, and baleen plates. The report shall include at least the

following information:

(1) The number, dates, and locations of each strike, attempted

strike, or landing;

(2) The length (taken as the straight-line measurement from the tip

of the upper jaw to the notch between the tail flukes) and the sex of

the whales landed;

(3) The length and sex of a fetus, if present in a landed whale;

and

(4) An explanation of circumstances associated with the striking or

attempted striking of any whale not landed.

(c) If the relevant Native American whaling organization fails to

provide the National Marine Fisheries Service the required reports, the

Assistant Administrator may require the reports to be submitted by the

whaling captains directly to the National Marine Fisheries Service.

[FR Doc. 96-8706 Filed 4-8-96; 8:45 am]

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