75230 Federal Register / Vol. 65, No. 232 / Friday, December 1, 2000 / Proposed Rules

notice to select specific proposed

changes. To that end, the agency solicits

comments, information, and data useful

in assessing the impacts of making

changes to the various requirements

discussed in this document.

Authority: 49 U.S.C. 322, 30111, 30115,

30117 and 30166; delegation of authority at

49 CFR 1.50 and 501.8.

Issued on: November 28, 2000.

Stephen R. Kratzke,

Associate Administrator, Safety Performance

Standards.

[FR Doc. 00–30647 Filed 11–30–00; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[I.D. 112400A]

Taking of the Cook Inlet (CI), Alaska,

Stock of Beluga Whales by Alaska

Natives

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of hearing; final agenda.

SUMMARY: This final agenda governs the

formal on-the-record hearing regarding

the proposed regulations to limit the

taking of CI, AK stock of beluga whales

by Alaska Natives.

DATES: The hearing will commence on

Tuesday, December 5, 2000, at 9:30 a.m.

AKST.

ADDRESSES: The hearing will be held

before Judge Parlen L. McKenna of the

United States Coast Guard at the United

States District Court 222 West 7th

Avenue, 2nd Floor Courtroom,

Anchorage, Alaska 99513.

FOR FURTHER INFORMATION CONTACT:

Barbara Mahoney, NOAA/NMFS,

Alaska Region, Anchorage Field Office,

(907) 271-5006, fax (907) 271-3030, or

Michael Payne, NOAA/NMFS, Alaska

Region, (907) 586-7235, fax (907) 586-

7012, or Thomas Eagle, Office of

Protected Resources, (301) 713-2322,

ext. 105, fax (301) 713-4060.

SUPPLEMENTARY INFORMATION: In an

effort to recover CI beluga whales to its

Optimum Sustainable Population,

NMFS issued proposed regulations

under the Marine Mammal Protection

Act (MMPA) that would limit the

subsistence harvest of the whales by

Alaska Natives. Section 101(b) of the

MMPA provides an exemption to the

general moratorium on the taking of

marine mammals and permits Alaska

Natives to harvest marine mammals for

subsistence purposes or for the purpose

of creating traditional Native handicrafts

and clothing. However, the Federal

government may regulate Native

subsistence harvest of marine mammals

if the stock in question is designated as

depleted after regulations specific to the

depleted stock are issued and an

opportunity for notice and hearing on

the record has been provided.

After a depleted determination was

made on May 31, 2000 (65 FR 34590),

NMFS issued a proposed rule on

October 4, 2000 (65 FR 59164), to

regulate subsistence harvest of CI beluga

whales by Alaska Natives. The proposed

regulation provides that:

(1) Subsistence harvest can only occur

under an agreement between NMFS and

an Alaska Native organization pursuant

to section 119 of the MMPA;

(2) Subsistence harvest shall be

limited to no more than two strikes

annually until the stock is no longer

considered depleted under the MMPA;

(3) The sale of CI beluga whale

products shall be prohibited;

(4) All hunting for subsistence

purposes shall occur after July 15 each

year; and

(5) The harvest of newborn calves, or

adult whales with maternally dependent

calves shall be prohibited.

All interested persons or parties have

been given an opportunity to file a

notice of intent to participate in the

hearing that will be conducted in

accordance with section 103(d) of the

MMPA. Such interested persons or

parties have also been given an

opportunity to file direct testimony and

documentary exhibits. Parties who

submitted notice of intent to participate

in the hearing were advised to submit

rebuttal testimony by Novenber 28,

2000. Pursuant to the procedural

regulations governing the formal

rulemaking hearing that was reinstated

on June 27, 2000 (65 FR 39560), Judge

Parlen McKenna issued the following

notice identifying the participants and

the final agenda as follows:

Participant Interest

Thomas J. Meyer, Esq., NOAA, Office of General

Counsel, Juneau, AK

Represents NMFS (i.e., the proponent of the proposed regulations)

Joel and Debra Blatchford, Kasilof, AK Represents Eskimo whale hunters. Generally supports the proposed regulations. However, he argues that Eskimos should be a party to any co-management agreement

governing the harvest of CI beluga whales and one strike should be allocated to the

Eskimos.

Steve Silver, Esq., Robertson, Monagle & Eastaugh,

Arlington, VA

Represents the Municipalities of Anchorage, Kenai Peninsula Borough, and MatankuskaSusistna Bourough. Generally supports the proposed regulations.

Judy Brady, Exec. Dir., Alaska Oil and Gas, and Jeffrey W. Leppo, Esq., Stoel Rives, LLP., Seattle,

WA

Represents Alaska Oil & Gas Assoc. (‘‘AOGA’’). Generally supports the proposed regulations. AOGA expresses concerns regarding (1) the effectiveness of the co-management agreement strategy; (2) the agency’s ability to enforce the regulations and manage the subsistence harvest of CI beluga whales; and (3) whether illegal takes will be

counted against the two-strike harvest limit.

Federal Register / Vol. 65, No. 232 / Friday, December 1, 2000 / Proposed Rules 75231

Participant Interest

Michael L. Gosliner, Esq., General Counsel, Marine

Mammal Commission, Bethesda, MD

Represents the Marine Mammal Commission (‘‘MMC’’). Generally supports the proposed

regulations. MMC expresses concern about the allocation of the strikes to Native hunters. MMC challenges NMFS authority to adjust the number of annual strikes through

notice and comment rulemaking after adoption of the proposed regulations. MMC expresses concern about the broad prohibition against the sale of CI beluga products,

and recommends that the prohibition should only apply to edible portions of beluga

whale products. MMC recommends expansion of the prohibition to cover purchase, as

well as sale, of edible portions of CI beluga whale. MMC further expresses concern on

the ability to differentiate between edible portions of CI beluga whales and other

beluga whale stocks in the Anchorage area and recommends a broad prohibition

against the sale and purchase of all edible portions of beluga whales in the area. MMC

also expresses concern regarding the efficiency of the harvest of CI beluga whales

and is equally concerned about the extent to which landed whales are fully utilized. In

addition, MMC seeks clarification as to whether the proposed regulation limiting Native

harvest applies to all maternally dependent calves or just newborn calves.

John M. Starkey, Esq., Homer, AK Represents the Native Village of Tyonek (‘‘Tyonek’’). Tyonek claims to be the only federally recognized Indian tribe, which is historically known for hunting CI beluga whales

and argues that 1 whale should be allotted to the tribe each year under the proposed

regulations and management agreement.

Jack K. Sterne, Esq., Trustee for Alaska, Center for

Marine Conservation, Anchorage, AK

Trustees for Alaska challenges the methodology and enforceability of the proposed regulations.

David Avraham Voluck, Esq., Landye Bennett

Blumstein, LLP, Anchorage, AK

Represents Cook Inlet Treaty Tribes (‘‘CITT’’). CITT is a federally recognized Indian tribe

that criticizes the hearing process and procedures and sees it as a serious barrier to

meaningful participation by Alaska Natives, who were given less than 1 month to file

an initial notice of intent to participate, together with direct testimony. CITT also opposes the proposed regulations. CITT challenges NMFS scientific methodology for estimating the CI beluga whale stock. CITT argues that a more flexible regulatory regime

should be applied to CI beluga whales that would easily provide for increasing the

number of subsistence strikes if new information becomes available. CITT also claims

that it is the sovereign governing tribes in CI and NMFS must deal directly with all the

tribes of CI in their contemplated co-management agreement, and challenges authority

and ability of NMFS to enforce the contemplated co-management agreement.

Issues to be Addressed at the Hearing

A. Population Estimates

1. What numbers are appropriate to

use for:

a. Carrying capacity (K)

b. Current Population size (N2000)

c. Intrinsic rate of growth (Rmax)

d. The lower bound of the optimum

sustainable population level (Maximum

Net Productivity Level or MNPL)

relative to the carrying capacity

2. Whether 2000 Survey Data will be

available. If so, why aren’t they being

used?

3. Whether the recovery times

projected by the National Marine

Fisheries Service (NMFS) under

different harvest regimes are

appropriate?

a. Whether recovery factor used by the

NMFS is too conservative? If so, what is

the appropriate recovery factor?

b. Whether there is a consistent

formula for estimating the recovery

time?

c. Have past formulas for population

been developed? If so, what are the

formulas and why weren’t they

adopted?

4. What factors, other than Native

harvest of Cook Inlet beluga whales,

possibly contributed to the observed

declines or slower than projected

potential recovery of the stock?

a. Whether the estimate of annual

removals by Alaska Native subsistence

hunters in Cook Inlet is accurate? Is the

Cook Inlet Marine Mammal Council’s

report on 1998 harvest levels available?

b. Whether NMFS has adequately

accounted for risks to the population

from orca predation, strandings, oil

spills, and other stochastic events in

calculating potential harvest removals

and recovery times?

c. Is there an Inlet-based decline in

the availability of food or prey for the

Beluga? If so, in what way has this

affected the decline and potential

recovery of the population?

5. Whether a more flexible model that

accounts for uncertainty in key

population parameters is available? If

so, why wasn’t it used?

6. What resources are available for

monitoring beluga population and

harvest?

a. Will the beluga population be

evaluated on an annual basis?

b. Whether the regulations should

contain a provision for altering the

number of Native harvest strikes if new,

valid information changes the analysis

of Cook Inlet beluga population?

7. Should a more flexible harvest

regime be adopted? If so, what should

it be?

B. Co-Management and Enforcement

1. What is the definition of the term

‘‘Alaska Native Organization (ANO)?’’

a. How is an ANO recognized?

b. Are there any ANOs in Cook Inlet

with area-wide tribal authority to

enforce laws against all members of the

area tribes and enter into agreements on

behalf of said tribes? How many exist

and who are they? Which ANO(s) can

enter into co-management agreement

with NMFS?

2. What mechanisms are available to

enforce the Native harvest limitation

and prohibition on the sale of products

and foodstuff from Cook Inlet beluga

whales?

a. Who has authority to enforce the

proposed regulations, if adopted? Will

enforcement authority be shared

between NMFS and the ANO(s)?

b. What effect, if any, does the recent

ruling in Alaska v. Native Village of

Venetie Tribal Government, 522 U.S.

520 (1998) have on a tribal government’s

ability to enforce tribal laws on

individuals?

c. How will the strikes under the

proposed regulation be allocated? Who

will monitor the harvest of Cook Inlet

beluga whales to ensure that the season

is concluded as soon as the second

strike has been made? How will the

hunters and tribes be notified of

season’s closure?

75232 Federal Register / Vol. 65, No. 232 / Friday, December 1, 2000 / Proposed Rules

3. Are there methods to increase

efficiency?

4. Will there be sufficient funding for

enforcement and prosecution?

C. Method and Means of Hunting

1. Will illegal takings be counted

against the two-strike Native harvest

limitation?

2. Will NMFS be able to stop Native

harvest of Cook Inlet beluga whales

under emergency circumstances by rule

making? Will there be a legal

mechanism to stop Native harvest of

Cook Inlet beluga whales in the event of

unrelated mortality that would affect the

population recovery?

3. Should juvenile whales be taken

instead of mature adults if it is shown

to enhance chances of population

recovery?

4. Should the proposed July 15 annual

commencement date for Native harvest

of beluga whales be moved forward to

July 1 in view of deteriorating weather

conditions?

D. Sale of Cook Inlet Beluga Whale

Products

1. Whether the term ‘‘sale’’ should

include barter and other types of quasicommercial transactions?

2. Should attempts to sell Cook Inlet

beluga whale products and/or foodstuff

be deemed a violation? Should the

purchase and attempts to purchase Cook

Inlet beluga whale products or foodstuff

be deemed a violation?

3. For enforcement purposes, should

the restriction on the sale of Cook Inlet

beluga whale products and/or foodstuff

be expanded to prohibit the sale of

products and/or foodstuff from other

beluga whale stock?

4. Should restrictions be in place for

all Cook Inlet beluga whale products, or

just edible portions?

E. Cultural Interests

1. Are there ways to encourage full

utilization of those belugas taken

pursuant to the proposed regulations?

2. Is there sufficient emphasis on the

importance of Native subsistence

harvest in terms of balancing in favor of

permitting the proposed harvest?

These issues are subject to change as

a result of stipulations of the

participants. NMFS and all parties have

submitted various documents and

written testimony that bears on these

issues.

During the hearing, the NOAA

Counsel will present his witnesses and

documentary evidence first, and the

participants will be given an

opportunity to cross-examine the

witnesses. The other parties listed above

will also be given an opportunity to

present witnesses and introduce

documentary evidence in the order in

which they are listed in this Notice of

Final Agenda. Witnesses in the hearing

include the following:

(1) For NMFS, Douglas P. DeMaster,

Ph.D., Director, National Marine

Mammal Laboratory, NMFS; P. Michael

Payne, Assistant Regional Administrator

for Protected Resources, NMFS;

(2) For Joel and Debra Blatchford:

These participants will testify on their

own behalf;

(3) For the Municipality of

Anchorage, the Mantanuska-Susitna

Borough, and the Kenai Peninsula

Borough: George Weurch, Mayor,

Municipality of Anchorage; John Duffy,

Acting Manager, Matanuska-Susitna

Borough; and Dale Bagley, Mayor, Kenai

Peninsula Borough;

(4) For Alaska Oil and Gas

Association (AOGA): Judith M. Brady,

Executive Director, AOGA;

(5) For the Marine Mammal

Commission: Daniel Goodman, Ph.D.,

Professor, Montana State University;

(6) For the village of Tyonek: Peter

Merryman, Chief, Village of Tyonek;

(7) For the Trustees for Alaska: Not

yet identified; and

(8) For Cook Inlet Treaty Tribes:

Delice calcote, Secretary, Cook Inlet

Marine Mammal Council.

Dated: November 27, 2000.

Don Knowles,

Director, Office of Protected Resources,

National Marine Fisheries Service.

[FR Doc. 00–30677 Filed 11–30–00; 8:45 am]

BILLING CODE 3510–22–S

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 648

[Docket No. 001120324-0324-01; I.D.

110700D]

RIN 0648-AO71

Fisheries of the Northeastern United

States; Atlantic Sea Scallop Fishery;

Extension of Closed Areas

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: This proposed rule would

extend the closure of the Hudson

Canyon South and Virginia Beach Sea

Scallop Closed Areas for 180 days or

until such time that a controlled area

access program for these two areas can

be implemented through Framework 14

to the Atlantic Sea Scallop Fishery

Management Plan (FMP), whichever is

sooner. This action, which is necessary

to reduce overfishing, would help

ensure that fishing mortality rates do

not exceed the target thresholds

established in the FMP.

DATES: Comments must be received no

later than 5 p.m., eastern daylight time,

January 2, 2001.

ADDRESSES: Comments on this proposed

rule should be sent to Patricia A.

Kurkul, Regional Administrator,

Northeast Regional Office, NMFS,1

Blackburn Drive, Gloucester, MA 01930-

2298. Please mark the envelope

‘‘Comments - Extension of Mid-Atlantic

Scallop Closed Areas.’’ Comments also

may be sent via facsimile (fax) to 978-

281-9135. Comments will not be

accepted if submitted via e-mail or

Internet. Comments regarding any

ambiguity or unnecessary complexity

arising from the language used in this

rule should also be sent to Patricia

Kurkul. Copies of the Environmental

Assessment/Regulatory Impact Review/

Initial Regulatory Flexibility Analysis

(EA/RIR/IRFA) and any other

documents supporting this action are

available from the Regional Office at the

address specified here.

FOR FURTHER INFORMATION CONTACT:

Peter W. Christopher, Fishery Policy

Analyst, 978-281-9288, fax 978-281-

9135, e-mail

peter.christopher@noaa.gov.

SUPPLEMENTARY INFORMATION: The 23rd

Northeast Regional Stock Assessment

Workshop (SAW 23), in March 1997,

identified high fishing mortality rates,

low stock size, and lack of significant

recruitment in the Atlantic sea scallop

(scallop) fishery. Based on this finding,

scientists involved with SAW 23

determined that fishing effort should be

reduced immediately and significantly

in the Mid-Atlantic region to preserve

spawning stock biomass and improve

the yield per recruit. To achieve this,

NMFS implemented an interim final

rule on April 3, 1998 (63 FR 15324), that

established two areas in the MidAtlantic region that were closed to all

scallop fishing. The closure of these two

areas, the Hudson Canyon South and

Virginia Beach Closed Areas, was based

on a finding that the areas contained

large concentrations of small and

juvenile scallops that could provide for

future recruitment. The interim final

rule was subsequently extended for 180

days (63 FR 51862, September 29, 1998)

and on March 29, 1999, Amendment 7

to the Atlantic Sea Scallop Fishery

Management Plan (FMP) (64 FR 14835)