Formal Rulemaking on Proposed MMPA Waiver and Hunt Regulations Governing Gray Whale Hunts by the Makah Tribe
On April 5, 2019, we published a proposed rule to issue a waiver of the MMPA take moratorium, a critical step in an agency decision about whether to authorize the Makah Indian Tribe to resume limited treaty-based hunting of eastern North Pacific gray whales for a 10-year period. That rule also included proposed regulations governing such a hunt.
NOAA Fisheries’ decision on whether to waive the moratorium and issue regulations involves “formal rulemaking” and must be made on the record after an opportunity for an agency hearing on both the proposed waiver and regulations. The hearing is governed by agency regulations, which call for the appointment of a presiding officer and prescribe other procedures.
Any person desiring to participate as a party in the hearing must notify NOAA Fisheries, by certified mail on or before May 6, 2019, at the following address:
Mr. Barry Thom, Regional Administrator
Attn: Steve Stone
NMFS, West Coast Region
1201 NE Lloyd Boulevard, Suite 1100
Portland, OR 97232
Interested parties should consult procedural regulations at 50 CFR part 228 and the notice of hearing we published on April 5, 2019, for additional deadlines and hearing procedures. Key documents and links related to this hearing are provided below:
- Proposed Rule/Regulations
- References cited in Proposed Rule
- Notice of Agency Hearing
- NMFS Declarations for Agency Hearing
- Comments from U.S. Marine Mammal Commission
- U.S. Coast Guard Administrative Law Judge - Electronic Reading Room
Opportunities for Public Participation
The public will have several opportunities to participate and provide input in the consideration of NOAA Fisheries’ proposal. The first opportunity begins with the notice of a hearing, where an administrative law judge (ALJ) will consider the NOAA Fisheries proposal. Interested persons may request to participate as a party by notifying the Regional Administrator for NOAA Fisheries West Coast Region at the address above by certified mail by the date identified in the notice of the hearing.
If the ALJ determines there are no issues of fact in play, the judge may decide not to conduct a hearing, and make a determination based only on submitted testimony. In this case, the public would have a chance to submit written comments, including proposed findings and conclusions, arguments, or briefs.
The notice of the hearing will also include a list of the issues of fact to be determined at the hearing, and other parties to the proceeding may propose additional issues of fact for consideration. Before the hearing, the ALJ will provide a final agenda listing the issues to be addressed. If the agenda includes issues not identified in the notice of hearing, interested persons may request to participate in the hearing on the new issues.
At the hearing, the ALJ will announce a deadline for interested persons to submit written comments on the proposed waiver and regulations, including proposed findings and conclusions and written arguments or briefs. You do not have to participate as a party in order to submit comments at this stage. Written submissions must be based on the record and should cite relevant pages of the hearing transcript.
Finally, the ALJ will issue a recommended decision following the hearing. NOAA Fisheries will publish a notice in the Federal Register announcing the recommended decision, beginning a 20-day public comment period where anyone may submit written comments on the recommended decision.
Ex Parte Communications
This proceeding is a formal rulemaking and, as a result, certain restrictions on communications apply under the Administrative Procedure Act (5 USC 557(d) and agency regulations (50 CFR 228.10). These restrictions relate to communications received or made by NOAA personnel involved in the decision-making process and are outlined in this NOAA Memorandum dated March 14, 2019. APA restrictions also apply to communications by interested persons outside the agency -- please consult 5 USC 557(d) for detail.