§ 216.113 - Issuance and duration of permits.

§ 216.113 Issuance and duration of permits.

(a) Application.

(1) 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:

(i) The proposed duration of the permit;

(ii) The maximum number of gray whales to be subjected to hunting or training approaches, struck, landed, and subjected to unsuccessful strike attempts;

(iii) A demonstration that the proposed method of taking is humane;

(iv) A demonstration that the proposed taking is consistent with this subpart;

(v) A copy of the currently enacted Makah Indian Tribal ordinance governing whaling by Makah Indian Tribal members;

(vi) 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;

(vii) Any additional hunt permit conditions proposed by the Tribe and a justification for the proposed conditions; and

(viii) Any modification to this subpart sought by the Tribe and a justification for the proposed modification.

(2) 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 paragraph (a)(1) of this section and the following information and statements:

(i) A description of how the Makah Indian Tribe has complied with the requirements of this subpart and previously issued hunt permits;

(ii) 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

(iii) 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.

(3) 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.

(4) After receipt of a complete application and the preparation of any National Environmental Policy Act (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.

(b) Issuance.

(1) 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.

(2) The Regional Administrator may not authorize hunting, hunting approaches, training approaches, or training harpoon throws from December 1 through May 31 unless:

(i) The Tribe has obtained separate authorization to take WNP gray whales under any applicable provision of the MMPA; or

(ii) The Regional Administrator determines, in consultation with the NMFS Office of Protected Resources, that take of WNP gray whales is not anticipated.

(3) The Regional Administrator may not authorize hunting unless the population of the ENP gray whale stock is within its Optimum Sustainable Population (OSP) and the hunting authorized under the permit would not cause the stock to diminish below OSP.

(4) The duration of the initial hunt permit may not exceed 3 years from its effective date, and thereafter the duration of a hunt permit may not exceed 5 years.

(5) Each hunt permit will specify the following terms and conditions:

(i) Those terms required by 16 U.S.C. 1374(b);

(ii) The limits established under § 216.114(c);

(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 § 216.117(a)(9), 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 Sanctuaries Act;

(iv) The beginning and ending dates in each calendar year when the Makah Tribe may engage in hunting activities, as described in § 216.114(a), and training activities, as described in § 216.114(b);

(v) 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 approaches, training approaches, or training harpoon throws;

(vi) 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;

(vii) That the hunt permit authorizes only the take of ENP gray whales and not the take of any other marine mammals; and

(viii) Such other provisions as the Regional Administrator deems necessary.

(6) 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 this subpart;

(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 § 216.115(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;

(vii) Whether take authorization for WNP gray whales is required by the permit for the winter/spring hunt, or, if not, that the Regional Administrator, in consultation with the Office of Protected Resources, has determined that take of WNP gray whales is not anticipated;

(viii) The population of the ENP gray whale stock is within its OSP and the hunting authorized in the permit will not cause the stock to diminish below OSP; and

(ix) 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 this subpart 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.