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.

November 17, 2023

NOAA Fisheries releases the Final Environmental Impact Statement

Today the U.S. Environmental Protection Agency published a Federal Register notice announcing the release of the Final Environmental Impact Statement.

October 25, 2022

NOAA Fisheries Announces Reopening of Public Comment Period

Today NOAA Fisheries published a Federal Register notice announcing a 7-day reopening of the public comment period. Comments must be received from October 28, 2022 until November 3, 2022.

August 16, 2022

NOAA Fisheries Announces Extension of Public Comment Period

Today NOAA Fisheries published a Federal Register notice announcing a 60-day extension to the original 45-day public comment period, with a new deadline of October 14, 2022 to receive comments.

July 1, 2022

Notice of Availability of a Supplemental Draft Environmental Impact Statement (DEIS)

Today the EPA published a Federal Register notice announcing the availability of a supplement to the DEIS issued on March 13, 2015. NMFS is providing a 45-day public comment period.

October 18, 2021

NOAA Fisheries Announces Extension of Public Comment Period

Today NOAA Fisheries published a Federal Register notice announcing a 25-day extension to the original 20-day public comment period, with a new deadline of November 13, 2021 to receive comments.

September 29, 2021

NOAA Fisheries Announces Public Comment Period

Today NOAA Fisheries published a Federal Register notice announcing a 20-day comment period on the Administrative Law Judge’s recommended decision. These comments will inform NOAA Fisheries final decision on the Makah Tribe’s waiver request.

September 23, 2021

Administrative Law Judge (ALJ) Issues Recommended Decision

Today ALJ George J. Jordan submitted his recommended decision to NOAA Fisheries along with the hearing transcript and other required documentation. These submittals will inform NOAA Fisheries’ final decision on the Makah Tribe’s waiver request.

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.

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.

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 which written comments were requested on the hearing record, including the proposed waiver and regulations.

Finally, on September 29, 2021, NOAA Fisheries published a Federal Register notice announcing a 20-day comment period on the Administrative Law Judge’s 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 details.

In accordance with NOAA Fisheries regulations at 50 C.F.R. 228.10, we are making these communications available to the public. These communications (PDF, 32 pages) are excluded from the record for decision.