[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Pages 29967-29969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12262]



National Oceanic and Atmospheric Administration

RIN 0648-XC021

Notice of Intent To Terminate the Existing Draft Environmental 
Impact Statement and Prepare a New Environmental Impact Statement

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

ACTION: Notice; request for comments.


SUMMARY: We, NMFS, intend to prepare an Environmental Impact Statement 
(EIS) pursuant to the National Environmental Policy Act (NEPA), related 
to the Makah Indian Tribe's (Tribe) request that we authorize treaty 
right hunting of eastern North Pacific gray whales in usual and 
accustomed fishing grounds off the coast of Washington State. This 
notice briefly describes the background of the Makah Tribe's request 
for waiver, terminates a prior draft EIS (DEIS), and identifies and 
requests comments on a set of new potential alternatives currently 
under consideration.

DATES: Comments and information regarding the proposed revisions must 
be received (See ADDRESSES) no later than 5 p.m. Pacific Time on August 
10, 2012.

ADDRESSES: You may submit comments, identified by [NOAA-NMFS-2012-
0104], by any of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal http://www.regulations.gov.
    Mail: Send comments to: Steve Stone, Protected Resources Division, 
NMFS, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232.
    Facsimile (fax) to: 503-230-5441.
    Instructions: Comments will be posted for public viewing as soon as 
possible during the comment period. All comments received are a part of 
the public record and will generally be posted to http://www.regulations.gov without change. We may elect not to post comments 
that contain obscene or threatening content. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    We will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only. If your submission is made via hardcopy that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review 
to the extent consistent with applicable law. However, we cannot 
guarantee that we will be able to do so.

206-526-6150; or Shannon Bettridge, NMFS, Office of Protected 
Resources, 301-427-8402. References used in this notice and related 
information are available via our Web site at http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Gray-Whales/Index.cfm.



    On February 14, 2005, we received the Makah Tribe's request for a 
limited waiver of the Marine Mammal Protection Act (MMPA) take 
moratorium under Section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)), 
including issuance of regulations and any necessary permits. The 
waiver, regulations, and permit would allow the Tribe to continue 
treaty right ceremonial and subsistence hunting of eastern North 
Pacific (ENP) gray whales in its usual and accustomed fishing grounds 
(U&A). The Tribe made the request following the Ninth Circuit Court's 
decision in Anderson v. Evans, 371 F.3d 475, that the Tribe must comply 
with the process prescribed in the MMPA for authorizing take of marine 
mammals. On January 24, 2006, the Tribe requested that we also take any 
other necessary actions, including under the Whaling Convention Act (16 
U.S.C. 916 et seq.), associated with a tribal hunt.
    The Tribe's waiver request proposes to conduct treaty ceremonial 
and subsistence harvest in the Tribe's U&A of up to 20 gray whales from 
the ENP stock in any 5-year period with a maximum of five whales per 
year, corresponding with aboriginal subsistence whaling limits 
established by the International Whaling Commission (IWC) in response 
to a joint request from the United States and Russia. In addition, the 
waiver request states that tribal regulations would limit the number of 
gray whales that may be struck to no more than seven in any calendar 
year, and would limit the number of struck and lost whales to no more 
than three in any calendar year.
    Other tribal regulations proposed in the waiver request include 
measures to target migrating whales and avoid the intentional harvest 
of whales that may be part of the Pacific Coast Feeding Aggregation (or 
Pacific Coast Feeding Group--PCFG). This small group of gray whales 
(approximately 200 animals) forages in waters from Northern California 
to Northern British Columbia, including waters in and adjacent to the 
Makah U&A during the summer. The measures include allowing hunting only 
from December 1 through May 30 (avoiding the summer, when PCFG whales 
predominate), restricting

[[Page 29968]]

hunting to the coastal portion of the Tribe's U&A (avoiding the Strait 
of Juan de Fuca, where PCFG whales predominate), and establishing an 
allowable bycatch level for PCFG whales. The Makah Tribe's proposal 
includes other standards for hunting, such as: (1) Monitoring and 
adaptive management measures to ensure that any incidental harvest of 
gray whales from the PCFG remains at or below the annual bycatch level, 
(2) measures to ensure that hunting is conducted in the most humane 
manner practicable, consistent with continued use of traditional 
hunting methods, and (3) measures to protect public safety. The full 
waiver request is posted online at http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-Porpoise/Gray-Whales/Index.cfm.
    On May 9, 2008, we released a draft environmental impact statement 
(DEIS) that analyzed impacts to the human environment from the Makah 
Tribe's request and five alternatives, including no action. The 
alternatives varied the principal components of a hunt, including: The 
time when whale hunting would occur; the area where whale hunting would 
occur; the annual and 5-year limits on the number of whales harvested, 
struck, and struck and lost; cessation of whale hunting if a 
predetermined number of PCFG whales were harvested; and the method of 
    We held three public meetings and received over 300 comments on the 
DEIS during the 98-day comment period. In the fall of 2008 we began 
developing responses to these comments and considering whether any new 
alternative(s) might be needed to address some comments. A substantial 
number of comments were concerned with potential hunting impacts on 
PCFG whales.
    Soon after releasing the DEIS, several substantive scientific 
issues arose that required an extended period of consideration in our 
NEPA analysis. First, NMFS scientists determined that population 
estimates for ENP gray whales should be re-analyzed due to potential 
biases in those estimates. That analysis was completed in December 2009 
(Laake et al., 2009) and led to subsequent modeling work by Punt and 
Wade (2010), who concluded that the ENP stock was within its ``optimum 
sustainable population'' size. That conclusion was accepted by NMFS in 
its stock assessment report for ENP gray whales (Allen and Angliss, 
2010), and the papers by Laake (2009) and Punt and Wade (2010) were 
also reviewed and endorsed by the IWC Scientific Committee. In 
addition, in 2010 and 2011, researchers studying the genetics of ENP 
and PCFG whales found evidence of population substructure indicating 
that PCFG whales may warrant consideration as a separate management 
unit (Frasier et al., 2011; Lang et al., 2011). More recently, 
researchers tracking and sampling gray whales discovered that at least 
some individuals from summer feeding grounds utilized by the endangered 
western stock migrate across the Pacific and into areas used by ENP 
gray whales (including the Makah U&A) (Lang et al., 2010; IWC, 2011; 
Mate et al., 2011; Weller et al., 2011). We have made the studies cited 
above and related information available on our Web site (see FOR 
    This information is central to our consideration of the Tribe's 
request under the MMPA and to our NEPA analysis. Moreover, the 
information is also under active consideration by the IWC as part of a 
regular implementation review of ENP gray whales to assess whether 
changes are needed in the international harvest scheme for these 
whales. The IWC Scientific Committee is scheduled to meet this summer 
and conclude its review of gray whales by June 23, 2012; the IWC will 
consider that review at its annual meeting, which ends July 6, 2012. 
Documents and reports are typically posted on the IWC Web site at 
http://www.iwcoffice.org/meetings/reportsmain.htm. We encourage 
interested parties to review these documents and reports as soon as 
they become available during the public comment period on this notice.


    Pursuant to NEPA, NMFS must: (1) Take a hard look at the 
environmental consequences of its proposed action to subsequently 
develop an informed decision; (2) ensure that NEPA reviews provide high 
quality environmental information via clear and concise documentation; 
and (3) ensure that the high quality environmental information related 
to the proposed action is available to the public before the agency 
makes its decision (40 CFR 1500). In light of the substantial new 
scientific information described above, and the amount of time that has 
elapsed since the 2008 DEIS was published for comment, we conclude it 
is appropriate to formally terminate that DEIS and to begin preparation 
of a new EIS that is informed by the substantial new information, 
upcoming IWC proceedings, and public input.
    We have identified the following preliminary alternatives for 
public consideration and comment before the range of reasonable 
alternatives is finalized. This set of alternatives differs somewhat 
from those examined in the 2008 DEIS, reflecting public comments we 
received on the 2008 DEIS and our current understanding of the new 
scientific information described above. Preliminary alternatives 
    Alternative 1: No Action--Under the No Action Alternative, we would 
not waive the take moratorium under the MMPA, nor issue the regulations 
or permits to authorize a tribal hunt.
    Alternative 2: The Tribe's Proposed Action--We would waive the take 
moratorium and issue regulations that would allow us to issue permits 
to the Makah Tribe to hunt gray whales under the terms proposed in its 
waiver request.
    Alternative 3: Offshore Hunt--We would waive the take moratorium 
and issue regulations that would allow us to issue permits to the Makah 
Tribe to hunt gray whales under the terms proposed in its waiver 
request, except hunting would be allowed only in offshore waters at 
least three miles from shore.
    Alternative 4: Summer-only Hunt--We would waive the take moratorium 
and adopt regulations that would allow us to issue permits to the Makah 
Tribe to hunt gray whales under the terms proposed in its waiver 
request except hunting would only be allowed during the period June 1 
through November 30, to minimize the potential for taking a gray whale 
migrating to or from the western North Pacific.
    Alternative 5: Adaptive Management Hunt--We would waive the take 
moratorium and adopt regulations that would allow us to issue permits 
to the Makah Tribe to hunt gray whales in the coastal portion of the 
Tribe's U&A under an adaptive management scheme that would allow for 
flexibility in: Permit terms; hunting seasons; allowable levels of 
struck, struck and lost, and landed whales up to the levels proposed by 
the Tribe; and methods of calculating an allowable bycatch level for 
PCFG whales.
    The EIS assessment will identify potentially significant direct, 
indirect, and cumulative impacts on a variety of resources, including:

 Marine Habitat and Species
 Gray Whales
 Other Wildlife Species
 Environmental Justice
 Social Environment
 Cultural Resources
 Ceremonial and Subsistence Resources

[[Page 29969]]

 Public Services
 Public Safety
 Human Health
 National and International Regulatory Environment
    For all potentially significant impacts, the EIS will identify 
measures to avoid, minimize, and mitigate impacts, where feasible, to a 
level below significance.

Request for Comments

    We provide this notice to: (1) Advise other agencies and the public 
of our intentions; (2) obtain suggestions and information on the scope 
of issues to include in the EIS; and (3) terminate the prior notice of 
intent to prepare an EIS published on May 9, 2008 (73 FR 26375). In 
addition to considering the comments we receive in response to this 
notice in developing a new DEIS, we will consider the comments received 
on the 2008 DEIS. When we publish a new DEIS we will respond in writing 
to comments received on the 2008 DEIS. We invite comments from all 
interested parties to ensure that the full range of issues related to 
the Makah Tribe's waiver request and all significant issues are 
identified. We request that comments be as specific as possible. We 
seek public input on all aspects of our NEPA analysis, including any 
new information that we should take into consideration; the range of 
reasonable alternatives; and associated impacts of any alternatives on 
the human environment.
    Comments concerning this environmental review process should be 
for questions. All comments and material received, including names and 
addresses, will become part of the administrative record and may be 
released to the public.


    The environmental review of continuation of the Makah Tribe's 
subsistence gray whale hunting will be conducted under the authority 
and in accordance with the requirements of NEPA, Council on 
Environmental Quality Regulations (40 CFR parts 1500-1508), other 
applicable Federal laws and regulations, and policies and procedures of 
NMFS for compliance with those regulations. This notice is being 
furnished in accordance with 40 CFR 1501.7 to obtain suggestions and 
information from other agencies and the public on the scope of issues 
and alternatives to be addressed in the EIS.

    Dated: May 11, 2012.
Helen M. Golde,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2012-12262 Filed 5-18-12; 8:45 am]