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 hearing we published on April 5, 2019 (see links below), for additional information and hearing procedures.
UPDATE - Final Agenda and Revised Schedule for Agency Hearing
On June 26, 2019, the ALJ published a Federal Register notice announcing the final agenda for the hearing. On August 2, 2019, the ALJ published a notice to change the hearing date, which will now commence on November 14, 2019. That notice also set forth new deadlines for the submittal of specific types of testimony and motions. Key documents and links related to the hearing are provided below:
- Final Agenda for Hearing
- Revised Hearing Schedule
- 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 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 will be announced at the hearing in November. The ALJ will set 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