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 (ENP) 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 at 50 CFR part 228, which call for the appointment of a presiding officer (an administrative law judge or ALJ) and prescribe other procedures. Interested persons should consult these agency regulations as well as the Notice of Agency Hearing we published on April 5, 2019 (see links below), for additional information and procedures.
UPDATE February 27, 2020 – Notice of Intent to Prepare a Supplemental Draft Environmental Impact Statement (DEIS)
Today NOAA Fisheries published a notice of intent to prepare a supplement to the DEIS issued on March 13, 2015. Upon release of the Supplemental DEIS, NMFS will provide a 45-day public review/comment period. The Supplemental DEIS will be made available on the Makah Tribal Whale Hunt webpage.
UPDATE January 29, 2020 - Request for Public Comment Regarding Proposed Waiver and Regulations
Today NOAA Fisheries published a notice and request for comments pertaining to the formal hearing which took place on November 14-21, 2019 before Administrative Law Judge George J. Jordan in Seattle, Washington. The hearing was publicly conducted and reported verbatim by an official reporter. All filings associated with the hearing, including a full transcript of the hearing, are available for public viewing and inspection at U.S. Coast Guard ALJ’s Electronic Reading Room.
The regulations governing this proceeding permit any interested person to file written comments on the proposed regulations and waiver, including proposed findings and conclusions and written arguments of briefs. These filings must be based upon the record and cite where practicable the relevant page or pages of the transcript.
The public may view the transcript and submit comments via the Federal e-Rulemaking Portal for this action. Comments may also be submitted by mail to the NOAA Fisheries Regional Office in Portland, Oregon (see instructions in today’s Federal Register Notice).
After the expiration of the comment period, the presiding officer will make a written decision based on the record and transmit it to NOAA Fisheries’ Assistant Administrator. There will then be another opportunity for public comment before the Assistant Administrator issues a final decision on the proposed waiver and regulations.
Additional key documents and links are provided below:
- April 2019 Proposed Rule/Regulations
- References cited in Proposed Rule
- April 2019 Notice of Agency Hearing
- U.S. Coast Guard ALJ’s Electronic Reading Room
- Hearing Transcript and Comments at Regulations.gov
Opportunities for Public Participation
The public has several opportunities to participate and provide input in the consideration of NOAA Fisheries’ proposal. The first opportunity – announced in the proposed rule and the notice of agency hearing – was a one-month period ending on May 6, 2019, during which several parties notified NOAA Fisheries that they intend to participate in the proceedings (see the list of parties in the final agenda for hearing).
The second opportunity was a 12-day period beginning on June 28, 2019, when the ALJ announced the final agenda for the agency hearing and identified a new issue of fact pertaining to the current Unusual Mortality Event (UME) for ENP gray whales. That announcement invited other parties to notify NOAA Fisheries if they were interested in participating in the proceedings on this new issue of fact, however none did so. We have posted information regarding the 2019 UME along the West Coast.
The next opportunity was a 45-day comment period announced on January 29, 2020. During that period any interested persons may submit written comments on the proposed waiver and regulations, including proposed findings and conclusions and written arguments or briefs. Written submissions must be based on the record and should cite relevant pages of the hearing transcript (available at the U.S. Coast Guard ALJ’s Electronic Reading Room and the Federal e-Rulemaking Portal for this action).
Finally, the ALJ will issue a recommended decision following the hearing and 45-day comment period. 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