Regulations Governing the Taking of Marine Mammals

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 240604-0152]

RIN 0648-BI58

Regulations Governing the Taking of Marine Mammals

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

Following formal rulemaking proceedings including an on-the-record hearing before an administrative law judge, NMFS is waiving the Marine Mammal Protection Act (MMPA) moratorium on taking Eastern North Pacific (ENP) gray whales (

Eschrichtius robustus

) to allow the Makah Indian Tribe to conduct a limited ceremonial and subsistence hunt of up to 25 ENP gray whales over a 10-year period in accordance with the Treaty of Neah Bay of 1855 and the quota first established by the International Whaling Commission in 1997. NMFS is also promulgating regulations to govern the issuance of hunt permits and the hunt itself.

DATES:

Effective date:

This rule is effective June 18, 2024.

Waiver period:

The 10-year waiver period begins the first day of the first season after issuance of the initial hunt permit.

Expiration date:

These regulations will expire 10 years after the effective date of the initial hunt permit specified under § 216.113(b), unless extended.

ADDRESSES:

Copies of the Final Environmental Impacts Statement (FEIS) including the Record of Decision as well as supporting documents are accessible via the internet on the Makah Tribal Whale Hunt Chronology web page at:

https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt-chronology

or you may request copies by email from

ellen.keane@noaa.gov

.

FOR FURTHER INFORMATION CONTACT:

Ellen Keane, 978-282-8476.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. List of Acronyms

II. Introduction

III. Background and History of Proceedings

IV. Overview of the Tribunal's Recommended Decision

V. Responses to Comments

VI. Measures in the Final Regulations

VII. Changes to Final Regulations

VIII. Application of the Statutory Criteria to the Final Waiver and Regulations

IX. Scientific Information and Analysis Developed After the Recommended Decision

X. Required Statements Related to Final Regulations

XI. Classifications

I. List of Acronyms and Abbreviations

Agency National Marine Fisheries Service

ALJ Administrative Law Judge

APA Administrative Procedure Act

AS-IA Assistant Secretary—Indian Affairs, Department of the Interior

AWI Animal Welfare Institute

CFR Code of Federal Regulations

COSEWIC Committee on the Status of Endangered Wildlife in Canada

CZMA Coastal Zone Management Act

DEIS Draft Environmental Impact Statement

DPS Distinct Population Segment

E.O. Executive Order

Ecology State of Washington Department of Ecology

EIS Environmental Impact Statement

ENP Eastern North Pacific

ESA Endangered Species Act

FEIS Final Environmental Impact Statement

FR Federal Register

FWS U.S. Fish and Wildlife Service

GAMMS Guidelines for Assessing Marine Mammal Stocks

I Assistant Administrator for Fisheries

ITA Incidental Take Authorization, which include incidental harassment authorizations and letters of authorization

IWC International Whaling Commission

LSIESP Laguna San Ignacio Ecosystem Science Program

MMC Marine Mammal Commission

MMPA Marine Mammal Protection Act

MNPL Maximum Net Productivity Level

MUA Makah Usual and Accustomed Fishing Grounds

NCA-NBC Northern California through Northern Vancouver/British Columbia

NEPA National Environmental Policy Act

NFG Northern Feeding Group

NMFS National Marine Fisheries Service

NOAA National Oceanic and Atmospheric Administration

OR-SVI Southern Oregon through Southern Vancouver Island

OSP Optimum Sustainable Population

PBR Potential Biological Removal

PCFG Pacific Coast Feeding Group

PCPW Peninsula Citizens for the Protection of Whales

PSRG Pacific Scientific Review Group

RD Recommended Decision from the Tribunal

ROD Record of Decision

RFA Regulatory Flexibility Act

SARs Stock Assessment Reports

SDEIS Supplemental Draft Impact Statement

SRT Status Review Team

Tab Tab number in the hearing record

U&A Usual and Accustomed Fishing Grounds

U.S.C. United States Code

UME Unusual Mortality Event

WCA Whaling Convention Act

WCZMP Washington State's Coastal Zone Management Program

WCR NMFS's West Coast Regional Office

WFG Western Feeding Group

WNP Western North Pacific

II. Introduction

On February 14, 2005, NMFS received a request from the Makah Indian Tribe of Neah Bay, Washington (Makah Tribe, Makah, or Tribe), to waive the moratorium in the MMPA on taking marine mammals and issue regulations allowing a Tribal hunt for ENP gray whales (

Eschrichtius robustus

) in waters of the northwest coast of Washington State. The Tribe has also requested that NMFS authorize the making and sale of handicraft items from whales taken during Tribal whaling.

In 1994, ENP gray whales were removed from the “endangered” species list under the ESA because the population successfully rebounded after the end of the commercial whaling era. ENP gray whales remain protected by the MMPA. The MMPA imposes a general moratorium on the taking of marine mammals but authorizes the Secretary of Commerce to waive the moratorium and issue regulations governing the take of marine mammals if certain statutory criteria are met. The decision to waive the moratorium and issue regulations is made on the record after an opportunity for an agency hearing on the proposed waiver and regulations. The Secretary has delegated the responsibility to determine whether the waiver application meets the MMPA's standards to the NOAA Administrator who then delegated this authority to the Assistant Administrator for Fisheries. As the Assistant Administrator for Fisheries, I am responsible for rendering the Final Decision in this matter. For the reasons set forth in this Final Decision, I have determined that the MMPA waiver should be granted and implementing regulations should be adopted to manage the hunt. The waiver and regulations I adopt in this document establish a framework for the Makah Tribe to exercise their treaty right to whale in accordance with the MMPA, but additional steps are necessary under the MMPA and the WCA before hunting resumes.

The waiver and accompanying final regulations (see section VI of this Final Decision) authorize a limited hunt for ENP gray whales over a 10-year period, during which no more than 25 ENP gray whales could be killed, in the coastal portion of the Makah's U&A. ENP gray whales will be harvested from the quota

already established by the IWC for the Makah and Chukotkan Natives. The IWC first adopted the joint request of the United States and the Russian Federation for an ENP gray whale catch limit in 1997. RD at 9. The Chukotkan are indigenous to the Russian Federation and harvested an average of 125 ENP gray whales from the Bering Sea per year from 2008-2017, when the average number that could be taken each year while remaining below the IWC catch limit was 124. Tab 60F at 6. In September 2018, the IWC approved the latest catch limit of 980 ENP gray whales, with an annual cap of 140 whales, for the Makah and Chukotka for the period 2019-2025. Tab 3 at 5.

A separate bilateral agreement between the United States and Russian Federation sets overall and annual limits for the two countries. Tab 3E through 3I. The Makah Tribe are entitled to harvest no more than 5 whales per year under the agreement with the Russian Federation which also specifies that any country's unused quota may be transferred to the other. RD at 9. In past years, the United States transferred its entire quota to Russian Federation for the Chukotkan hunt while NMFS completed the necessary steps under domestic law to consider the Tribe's request for a waiver from the MMPA. Tab 3 at 5-6. This practice will likely continue if the Makah are unable to hunt. Under these circumstances, the entire quota authorized by the IWC could be harvested by Chukotkan Natives regardless of whether the Makah Tribe conducts a hunt. While the number of whales the Chukotkan Natives take each year varies due to hunt management practices and their ability to successfully strike whales in a given year, they have exceeded the quota in some years. RD at 128. In addition, the level of take by the Makah Tribe is small relative to the abundance of ENP gray whales (see section VIII). Thus, the hunt authorized under the waiver and final regulations will likely have no effect on the overall population of ENP gray whales. By issuing this waiver, the Makah Tribe will be able to use their allotment for ENP gray whales, which has in past years been transferred to the Russian Federation.

Although the overall population of ENP gray whales is unlikely to be affected by the final waiver and regulations, additional management measures are necessary to protect the ENP gray whales' subpopulation known as the PCFG. Additional measures are also necessary to protect the separate WNP stock of gray whales, which is listed as endangered under the ESA. Accordingly, two key management goals shaped many of the provisions in the proposed and final regulations: (1) ensuring that hunting does not reduce the PCFG abundance below recent stable levels and (2) limiting the likelihood that Tribal hunters would strike or otherwise harm a WNP gray whale.

Regarding the first management goal, the MMPA requires that I give due regard to, among other things, the distribution and abundance of the stock subject to the waiver and that the waiver is in accord with the purposes and policies of the MMPA, which include maintaining marine mammals as a functioning element of their ecosystem. 16 U.S.C. 1371(a)(3)(A). PCFG whales exhibit site fidelity during the feeding season to a unique area within the range of the ENP gray whale stock—the northern California current ecosystem, which is generally described as extending from Northern California to Vancouver Island and encompasses the hunt area. Tab 3 at 8-9, 29. The final regulations are designed to limit lethal and sub-lethal effects to PCFG whales to maintain their abundance and distribution within the PCFG range.

Regarding the second management goal, in adopting regulations to implement a waiver, I considered all factors that may affect the allowable level of take of ENP gray whales, which includes the extent to which hunting activities for ENP gray whales may inadvertently impact WNP gray whales. While uncommon, there are documented occurrences of WNP gray whales transiting the Makah U&A, and hunters may not be able to visually distinguish WNP whales from ENP whales during a hunt. The regulations are designed to minimize the risk of a WNP whale being struck or harmed over the duration of the waiver.

III. Background and History of the Proceeding

The Makah Tribe's whaling tradition is older than the United States by well over 1,000 years. RD at 7; Tab 24 at 46. The hunt and associated practices define who the Makah are, and harvesting a whale cannot be separated from the cultural aspects. Tab 24 at 78; Tab 103 at 5-37. Makah accounts and stories illustrate how whaling shaped their culture and identity. Tab 24 at 78. The traditions have important ceremonial and social functions for the Tribal community. Crew members undergo rigorous ceremonial and spiritual preparations prior to a hunt, and the community at large plays an important role in the hunt's success. Tab 103 at 5-37. Training encompasses a series of ceremonies to become spiritually, emotionally, and physically ready and involve the whalers' families and community. Tab 103 at 8-9. These traditions have an important role in maintaining cultural identity and uniting the community. Tab 26 at 3-4.

The Treaty of Neah Bay of 1855 secures the Makah's whaling tradition. In the Treaty, the Makah relinquished significant land holdings to the United States but expressly reserved the right to whale. Section 4 of the Treaty specifically provides: “The right of taking fish and of whaling or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States . . . .”

After signing the Treaty of Neah Bay, the Makah Tribe continued to hunt whales, but over time, they saw their whaling returns dwindle due to overhunting by non-native commercial whalers. Tab 90F-Appendix A at 8; Tab 24 at 191. As early as the 1850s, it was harder for the Makah Tribe to find whales. Tab 24 at 190. In 1928, the Makah Tribe voluntarily suspended their whaling activities.

Id.

at 191. Factors contributing to this decision included demographics (

e.g.,

moving into other fields due to restricted access to fisheries), loss of whaling canoes and equipment due to a natural disaster, and, perhaps the most important factor, dwindling cetacean populations due to commercial whaling.

Id.

at 191-193. The Makah Tribe's decision to suspend whaling until whale numbers began to climb was chosen as a temporary conservation measure to allow whale populations to rebound.

Id.

at 193. The Makah took this conservation measure nearly 20 years before the United States and other governments signed the International Convention for the Regulation of Whaling in 1946, which established an international moratorium on the hunting of gray whales and right whales. Tab 1F at 44.

The MMPA, enacted in 1972, established a national policy to prevent marine mammal species and population stocks from declining beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part and enacted a moratorium on the taking and importing of marine mammals. 16 U.S.C. 1361(2), (6); 1371(a). “Take” is defined broadly and means to “harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. 1362(13).

The moratorium contains several exceptions. One exception authorizes the agencies that implement the MMPA to waive the moratorium as appropriate and adopt implementing regulations

governing the take of marine mammals. 16 U.S.C. 1371(a)(3)(A); 1373. Both the decision to waive the moratorium and adopt implementing regulations must be based on “the best scientific evidence available,” and NMFS must consult with the MMC in making these decisions.

Id.

In order to waive the moratorium for a stock of marine mammals, NMFS is required to give due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals. 16 U.S.C. 1371(a)(3)(A). NMFS must also be assured that the taking under the waiver is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of the MMPA.

Id.

The purposes and policies of the MMPA include maintaining marine mammals as a significant functioning element of the ecosystem of which they are a part, maintaining the health and stability of the marine ecosystem, and obtaining and maintaining OSP for marine mammal stocks keeping in mind the carrying capacity of the habitat. 16 U.S.C. 1361(2), (6).

When prescribing regulations to implement a waiver, NMFS must insure the taking will be consistent with the purposes and policies of the MMPA and will not disadvantage the stock subject to take pursuant to the waiver. 16 U.S.C. 1373(a). NMFS must also fully consider all factors that may affect the extent of the authorized take, including existing and future levels of marine mammal species and population stocks; existing international treaty and agreement obligations of the United States; the marine ecosystem and related environmental considerations; the conservation, development, and utilization of fishery resources; and the economic and technological feasibility of implementation. 16 U.S.C. 1373(b).

In

Anderson

v.

Evans,

371 F.3d 475, 501-02 (9th Cir. 2004), the U.S. Court of Appeals for the Ninth Circuit held that the Makah Tribe and NMFS must comply with the MMPA's waiver process in order for the Tribe to exercise their right to whale pursuant to the Treaty of Neah Bay of 1855. The Court also held that NMFS must complete an EIS under the NEPA before authorizing a hunt.

Id.

at 494. In light of the decision in

Anderson,

in 2005 the Makah Tribe asked NMFS to waive the MMPA's moratorium and authorize a limited ceremonial and subsistence hunt for ENP gray whales.

In 2015, the NMFS WCR published a DEIS analyzing several alternatives for the proposed hunt. On April 5, 2019, the WCR published a proposed waiver and regulations for a hunt (84 FR 13604) in accordance with a delegation from the Assistant Administrator for Fisheries. The publication of the proposed regulations and waiver initiated a formal rulemaking process, which included a hearing before a tribunal overseen by an ALJ. The tribunal was responsible for issuing a recommended decision for the Assistant Administrator for Fisheries who is responsible for rendering a final decision.

The waiver and regulations proposed by the WCR would allow limited ceremonial and subsistence hunting for ENP gray whales over a 10-year period in the coastal portion of the Makah's U&A. This area comprises approximately 1 percent of the lineal distance of the migratory range of ENP gray whales, which runs along the Pacific Coast of North America and encompasses feeding grounds in the Bering Sea, calving grounds in the Gulf of California, and a coastal migratory route between these areas. RD at 83, 91. During the 10-year waiver period, no more than 25 ENP gray whales could be killed, with an average annual mortality limit of 2.5 animals. The current population of ENP gray whales is 19,260 (Eguchi

et al.

2024), but when the proposed regulations were issued the population was much higher at approximately 27,000 animals. RD at 95.

The proposed regulations included measures to protect endangered WNP gray whales and ensure that hunting does not reduce the abundance of the PCFG below recent stable levels. While uncommon, there are documented occurrences of endangered WNP whales transiting the U&A during the migratory season (December-May), creating a risk that a WNP gray whale could be inadvertently harmed in a hunt during the migratory season. RD at 110-111. The population of WNP gray whales is 290 animals (excluding calves). RD at 117; Tab 81L at 168.

Most ENP gray whales migrate north to the Bering Sea to feed during the summer and fall; however, a subgroup of ENP gray whales, known as the PCFG, do not make this full migration each year, stopping instead to feed in the waters off the Pacific Northwest. RD at 84-85. The IWC and NMFS consider whales to belong to the PCFG if they are photo-identified within the region between northern California and northern Vancouver Island (from 41° N latitude to 52° N latitude) during the summer feeding period of June 1 to November 30, in two or more years.

Id.

at 60-61. PCFG gray whales are part of the ENP stock but exhibit site fidelity to the northern California current ecosystem during the feeding season (June-November). The PCFG abundance estimate was 243 animals at the time of the proposed regulations and 232 at the time of the hearing.

Id.

at 96. The PCFG is currently estimated at 212 animals and has been relatively stable over the last 20 years (Harris

et al.

2022).

The proposed regulations included measures to protect PCFG and WNP gray whales, including alternating hunt seasons, ENP strike limits, PCFG strike limits, landing limits, and a PCFG abundance trigger. As proposed, the hunting would be divided between two alternating seasons. Winter/spring hunts (December 1 through May 31) would occur during the migration season to reduce risk to PCFG whales during their feeding season. Summer/fall hunts (July 1 through October 31) would occur during the feeding season to reduce risk to WNP whales, which only occur in the U&A during the migration season. Additional details on the proposed waiver and regulations and the rationale for the proposal may be found in the

Federal Register

notice for the proposed waiver and regulations (84 FR 13604, April 5, 2019).

Since waiving the moratorium and adopting implementing regulations requires formal rulemaking, NMFS held a 6-day hearing in November 2019. A United States Coast Guard ALJ presided over the tribunal. Six specific parties actively participated in the hearing: MMC, PCPW, AWI, Sea Shepherd Legal representing Sea Shepherd Conservation Society, the Makah Tribe, and the WCR. Each party was given the opportunity to present testimonial and documentary evidence and cross-examine the 17 witnesses who testified.

Before the hearing, NMFS, in consultation with the MMPA-mandated Working Group on Marine Mammal Unusual Mortality Events (Working Group), declared a UME for ENP gray whales on May 29, 2019, after several ENP gray whales died within a close time frame along the West Coast of North America from Mexico to Alaska. Tab 53F at 5-6. A UME is defined under the MMPA as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.” 16 U.S.C. 1421h(9). The UME received considerable attention at the hearing and in the parties' filings for the formal rulemaking. The UME continued for several years, with peak strandings occurring between December 17, 2018, and December 31, 2020, and was declared over as of November 2023.

Following the hearing, the public had the opportunity to submit comments to the ALJ, and the parties were entitled to submit post-hearing briefs and proposed

findings of fact and conclusions of law. During the public comment period following the hearing, NMFS announced its intention to prepare an SDEIS to satisfy NMFS's obligations under NEPA. The

Federal Register

notice announcing the planned SDEIS stated: “Because information concerning the ongoing 2019 UME was presented at the agency hearing but not expressly addressed in the 2015 DEIS, NMFS has determined that it would now benefit both the public and agency decision making to prepare a supplement to the DEIS.” 85 FR 11347, February 27, 2020. On March 3, 2020, three of the parties to the formal rulemaking (AWI, Sea Shepherd Legal, and PCPW) jointly submitted a Motion to Stay the Waiver Proceeding. Tab 108. They argued that the SDEIS would include new information on the UME and the proceedings should be stayed to allow this information to be addressed in a recommended decision. The tribunal denied the motion, finding there was sufficient evidence in the record to determine whether the UME for ENP gray whales should preclude issuance of a waiver. The tribunal also determined that the arguments of harm to the moving parties were either speculative or premature and that further delay associated with the moving parties' proposed stay would prejudice the Makah. Tab 118 at 7-8.

On September 23, 2021, the tribunal issued a Recommended Decision (see Tab 121) and concluded “the best scientific evidence available supports a waiver of the MMPA's moratorium of the take of marine mammals to allow the Makah Tribe to engage in a limited hunt for ENP gray whales.” RD at 155. The tribunal recommended that I grant the waiver with some changes to the proposed regulations. These recommendations included reorganizing the regulations for clarity, setting a low abundance threshold for ENP gray whales that would stop the hunt, expressly requiring the Makah to obtain authorization under other provisions of the MMPA for the take of WNP gray whales, and prohibiting approaches on calves and mother-calf pairs.

As required by MMPA regulations, NMFS published a notification in the

Federal Register

on September 29, 2021, announcing a 20-day public comment period on the Recommended Decision (86 FR 53949), which was extended until November 13, 2021. 86 FR 57639, October 18, 2021. Following the close of the comment period on the Recommended Decision, NMFS completed actions related to the Tribe's waiver request pursuant to NEPA, the CZMA, and the ESA. On July 1, 2022, EPA announced the availability of the SDEIS (87 FR 39517) and, on July 5, 2022, NMFS announced a 45-day comment period (87 FR 39804), which was extended until October 14, 2022 (87 FR 50319, August 16, 2022), and then reopened from October 28, 2022, through November 3, 2022 (87 FR 64454, October 25, 2022). Pursuant to section 307(c)(3) of the CZMA, on June 2, 2023, the State of Washington Department of Ecology concurred with NMFS's determination that the hunt described in the Recommended Decision was consistent with the enforceable policies in Washington's Coastal Zone Management Plan. On March 15, 2023, NMFS concluded inter-agency consultation under section 7 of the ESA for species under the jurisdiction of the FWS when FWS issued a Letter of Concurrence to NMFS. On November 8, 2023, NMFS concluded intra-agency consultation under section 7 of the ESA for species under the jurisdiction of NMFS by issuing a Letter of Concurrence. A few days later, on November 17, 2023, NMFS released a FEIS under NEPA.

After making the Letters of Concurrence and FEIS publicly available, I solicited additional comments from the parties on November 27, 2023, so they would have an opportunity to address additional scientific analyses on the gray whale population that became available after the comment period on the SDEIS concluded in late 2022. This comment period also provided the parties with an opportunity to explain whether any other procedures should be implemented before this Final Decision. The parties' opportunity to comment ended on December 20, 2023, but was followed by an additional opportunity to respond to each other's comments. The response period closed on January 17, 2024. NMFS then developed this Final Decision, which will provide an overview of the tribunal's Recommended Decision followed by responses to comments, a summary of the final regulations, changes to the final regulations from the tribunal's recommendations, application of the statutory criteria, review of additional scientific information, required statements under the MMPA, ultimate findings and conclusions, and classifications.

IV. Overview of the Tribunal's Recommended Decision

Following is an overview of the Recommended Decision's key findings, analyses, and recommendations, which were issued on September 23, 2021. (

https://www.fisheries.noaa.gov/s3/2021-09/recommended-decision-19nmfs0001.pdf

) The first three sections of the tribunal's Recommended Decision provided an introduction and overview of the proceeding. Sections I and II described the proceeding, background information, and procedural history. Section III provided a summary of the findings in the Recommended Decision. Section IV described the substantive requirements of the MMPA and then analyzed several threshold issues, including the scientific evidence in the record, consultation with the MMC, and gray whale stock structure.

Section IV.B of the Recommended Decision described “the best scientific evidence available” standard, which governs the statutory analyses NMFS must conduct under sections 101(a)(3)(A) and 103(a) of the MMPA. The Recommended Decision highlighted several touchstones of the standard. First, NMFS cannot disregard “scientifically superior evidence” that does not support its position. RD at 31. Second, “a scientific inference or assertion” must be “derived by the scientific method” and “based on scientifically valid principles” but need not be proven with “absolute certainty.”

Id.

Third, “agencies are only required to evaluate existing data and need not speculate on whether their conclusions would change if new or different evidence was adduced.”

Id.

Indeed, as the tribunal explained, if “agencies were required to continually develop new data to supplement the information presented in a proceeding, there would be no end to the decision-making process.”

Id.

Section IV.B also evaluated the credibility of the scientific experts who testified at the hearing. The tribunal found NMFS's gray whale experts to be credible witnesses and gave their testimony “great weight” and a “great deal of weight.” RD 35-38. The Makah's marine mammal biologist also testified in support of the waiver, and the tribunal accorded his testimony “substantial weight,” noting that he conducts “independent, peer-reviewed research” and “his testimony relies on a broad range of sources, including those whose findings he disagrees with.”

Id.

at 41-42. Conversely, the tribunal found that AWI's only witness was a less credible witness, explaining that his “opinions are based solely on literature reviews, as he does not conduct any independent research or produce scientific publications, and he appears to have relied heavily on a subset of the available literature that best supports AWI's position in this matter.”

Id.

at 46.

After assessing the credibility of the scientific testimony offered at the hearing, the tribunal provided an overview of the studies and reports entered into evidence and the data collection methods used in gray whale research. The tribunal generally found peer-reviewed studies “more reliable scientific evidence than other studies” and that NMFS's SARs developed in accordance with section 117 of the MMPA were “highly relevant and reliable sources of information.” RD at 48-49. The tribunal also noted that the findings of the IWC's Scientific Committee, an international body of experts on whale biology, were “highly reliable,” and it was appropriate to give NMFS's findings “great deference” if they were consistent with those of the IWC.

Id.

at 52.

Section IV.C of the Recommended Decision discussed consultation between the MMC and NMFS and concluded “[t]here is ample evidence in the record that NMFS sought comments from the MMC and made its determination in consultation with the MMC.” RD at 57.

Section IV.D of the Recommended Decision addressed gray whale stock structure. The tribunal began this section by addressing a dispute between the MMC and WCR regarding the extent to which the parties could challenge NMFS's stock designations, as reflected in SARs, through the formal rulemaking proceeding. The dispute centered on the effect of section 117 of the MMPA, which provides detailed procedures for producing SARs and is the process NMFS uses to designate marine mammal stocks. WCR argued section 117 of the MMPA provides the exclusive mechanism for designating stocks, while the MMC argued SARs produced under section 117 are relevant but not determinative in a formal rulemaking proceeding considering a waiver. RD 58-59.

The tribunal determined that in order to make the required findings under the MMPA, it must make a threshold determination that NMFS's stock structure for gray whales is “scientifically sound” and allowed the parties to challenge the stock determinations in the SARs in the formal rulemaking proceeding. RD at 59. However, if it were shown that NMFS's stock assessments were inaccurate or outdated, the Recommended Decision concluded that the formal rulemaking proceeding is not the appropriate forum to make new stock assessments.

Id.

Rather, the proper procedure would be to deny the waiver and remand the case to NMFS to produce new SARs.

Id.

NMFS could then decide whether to reinitiate the waiver after producing new stock assessments.

Id.

The tribunal did not remand the case to NMFS to produce new stock assessments. The Recommended Decision concluded that the best available scientific evidence supports NMFS's determination, as reflected in the SARs, that there are two stocks of gray whales—the ENP stock and the WNP stock—and that the PCFG is a feeding aggregation in the ENP stock. RD at 60-69. The tribunal cited uncertainty with respect to the origins of WNP gray whales but ultimately held that the best available scientific evidence supports NMFS's conclusion that WNP gray whales “are distinct from the ENP stock as a whole,” noting the significant differences between the nuclear DNA found in ENP gray whales and WNP gray whales.

Id.

at 68-69.

Several parties argued that the PCFG gray whales should be considered a separate stock, but the tribunal disagreed. PCFG gray whales and other ENP gray whales have differences in their mitochondrial DNA, but there is no significant difference in their nuclear DNA. RD at 63-64. Both parents pass nuclear DNA to their offspring, but gray whales and other animals only inherit mitochondrial DNA from their mothers.

Id.

Some parties argued that the differences in mitochondrial DNA show demographic independence; others argued this distinction is only evidence of calves following their mothers to the feeding grounds for which the PCFG are named.

Id.

The tribunal weighed the evidence and arguments of the parties and determined that calves born to PCFG mothers support the PCFG population but external recruitment—that is, other ENP whales joining the PCFG—plays a role too.

Id.

On this point, the tribunal noted, “[w]hile the evidence on recruitment levels is not conclusive, it does convincingly show that external recruitment plays a major role in maintaining or increasing the size of the PCFG” and that this evidence “weighs strongly against demographic independence, a key assessment factor for stock status under the current stock assessment guidelines.”

Id.

at 65.

Regarding PCFG breeding, the tribunal explained “a determinative factor in making stock determinations is whether a population's members interbreed when mature.” RD at 62. The tribunal found that the “the scientific evidence is still strong that PCFG gray whales have ample opportunity to mate with non-PCFG ENP whales, and in fact continue to do so.”

Id.

at 63. The tribunal also relied on the 2018 SAR, analysis by the IWC, and the testimony of other scientific experts in concluding “the evidence strongly supports NMFS's conclusion, and that of the IWC, the PCFG are a feeding aggregation and not a separate stock or management unit.”

Id.

at 65-66.

After summarizing the parties' arguments for and against the waiver in section V of the Recommended Decision, section VI of the Recommended Decision analyzed the statutory factors set forth in section 101(a)(3)(A) of the MMPA. Section IV.A addressed the enumerated biological factors (distribution, abundance, breeding, and times and lines of migratory movements) and concluded that the proposed waiver and regulations gave due regard to these factors. Regarding distribution, the tribunal concluded: “Based on the best available scientific evidence, I find the hunt will not affect the overall distribution of the ENP gray whale stock, nor will it have a significant, lasting, or detrimental effect on the distribution of PCFG whales.” RD at 93. Regarding abundance, the tribunal concluded “at a population level, the removal of approximately 2.5 whales per year (assuming the Makah Tribe takes the full number of whales allowed) would not significantly affect the ENP stock.”

Id.

at 103. The tribunal also concluded “the best available scientific evidence is the UME should not preclude issuance of a waiver.”

Id.

However, it found “the regulations may warrant modification to further limit hunting activities during an active UME or if the stock does not rapidly recover from a UME.”

Id.

Regarding breeding, the tribunal concluded “there is no scientific evidence showing approaches or training harpoon throws would prevent whales from mating.”

Id.

at 106. Regarding migratory movements, the tribunal noted “there is no credible evidence that the whales encountered during a hunt will cease migration or change their migratory path in future years to avoid the hunt.”

Id.

at 111-112.

Section VI.B of the Recommended Decision next considered how the proposed waiver would affect the health and stability of the marine ecosystem and the functioning of marine mammals in their ecosystem. After reviewing the evidence related to ecosystem effects at various scales associated with the removal of 25 gray whales over 10 years, the Recommended Decision determined that it was “reasonable for NMFS to conclude that the health and stability of the ecosystems in which gray whales function will not be adversely affected by the proposed waiver and regulations.” RD at 116.

In section VI.C of the Recommended Decision, the tribunal conducted an

OSP analysis. OSP is defined by the MMPA as “with respect to any population stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” 16 U.S.C. 1362(9). Citing section 2 of the MMPA, the Recommend Decision determined that when assessing a waiver, the “MMPA requires the Secretary to consider the ability of marine mammal `species and population stocks' to attain and maintain OSP, when doing so is consistent with the Act's primary objective of preserving the health of the marine ecosystem.” RD at 116. The tribunal determined that this inquiry is not limited to the “stock subject to the waiver.”

Id.

Rather, “NMFS must show that it considered not only the ENP stock's ability to attain and maintain its OSP, but also the WNP stock's ability to do so.”

Id.

The tribunal concluded that the ENP stock has attained OSP and that it is likely to maintain OSP after the hunt contemplated by the proposed waiver and regulations.

Id.

With respect to WNP gray whales, the tribunal explained:

AWI argues the near-certainty of at least one WNP whale being approached at some point during the ten-year validity period of this waiver, and the minimal chance of one being struck, prevents NMFS from issuing the waiver. I disagree. A mere approach on a WNP gray whale, which is the most likely scenario under the proposed waiver and regulations, is not expected to have any effect on the stock's ability to attain and maintain its OSP.

RD at 120. Regarding WNP gray whales and OSP, the tribunal further explained that, “loss of a WNP whale due to a hunt-related strike would certainly have a deleterious effect on the stock due to its low abundance.”

Id.

However, it ultimately recommended that the waiver be granted, explaining that the waiver criteria in section 101(a)(3)(A) does not require NMFS to “conclusively rule out any possibility that an animal from a depleted stock could be taken.”

Id.

at 132. NMFS produced a risk analysis for gray whales (Moore and Weller 2018), which found there is “a 30% chance of an unsuccessful strike attempt on a WNP whale if all authorized attempts are made, which equates to one every 33 years” and “approximately 14 WNP whales would be approached over 10 years if all available approaches are used (essentially 100% probability).”

Id.

at 118. Moore and Weller (2019) updated this analysis “based on the higher WNP abundance estimate in the 2018 SAR.” As described in the Recommended Decision, this was the best available science at the time of the hearing and showed a “0.5% chance of striking a WNP on any given strike” and “a probability over the entire hunt period of 7.4%.”

Id.

at 119.

The tribunal addressed the implication of

Kokechik Fishermen's Ass'n

v.

Sec'y of Com.,

839 F.2d 795 (D.C. Cir. 1988), on the proposed waiver and regulations in section IV.D of the Recommended Decision. In

Kokechik,

NMFS issued a permit to a federation of Japanese fishermen to take Dall's porpoise incidentally while salmon fishing with gillnets. 839 F.2d at 799. The permit authorized the take of Dall's porpoise only, even though it was foreseeable that other species of marine mammals would also be taken.

Id.

at 799-800. The court held that the permit NMFS issued “was contrary to the requirements of the MMPA in that it allowed incidental taking of various species of protected marine mammals without first ascertaining as to each such species whether or not the population of that species was at the OSP level.”

Kokechik,

839 F.2d at 802. The tribunal concluded the holding in

Kokechik

applies to the permitting stage of the waiver process, which is not within its jurisdiction (RD at 123), and also noted that

Kokechik

is distinguishable, since it “involved a factual scenario where the killing of depleted marine mammals was `not merely a remote possibility but a certainty,' and the court did not address other specific situations where a permit could possibly be issued,” such as under provisions of the MMPA addressing incidental take. RD at 122 quoting

Kokechik,

839 F.2d at 802.

After considering the evidence in the record and the arguments of the parties, the tribunal ultimately recommended that NMFS grant the waiver, explaining:

NMFS has presented ample evidence, which the other parties have not rebutted, to show that the ENP stock of gray whales will not be disadvantaged by the issuance of a waiver here. The authorized take will not affect the ENP stock's ability to maintain its OSP, and will not meaningfully affect its distribution, breeding, or migratory habits.

RD at 132.

The tribunal then turned to the implementing regulations in section VII of the Recommended Decision and analyzed them pursuant to section 103 of the MMPA. The tribunal's analysis in section VII of the Recommended Decision largely focused on section 103(b) of the MMPA, which requires NMFS to fully consider “all factors which may affect the extent to which such animals may be taken or imported” in promulgating regulations under this provision of the MMPA. The required consideration under section 103(b) includes, but is not limited to, the effect of the regulations on five enumerated factors:

(1) Existing and future levels of marine mammal species and population stocks;

(2) Existing international treaty and agreement obligations of the United States;

(3) The marine ecosystem and related environmental considerations;

(4) The conservation, development, and utilization of fishery resources; and

(5) The economic and technological feasibility of implementation.

In consideration of the first factor, existing and future levels of marine mammals, the tribunal recommended requiring that the Makah obtain an ITA under section 101(a)(5) of the MMPA for WNP gray whales before hunting during the winter/spring season, which runs from December through May. RD at 136-137. The tribunal explained that doing so “will help assure any court that may review this rulemaking in the future that NMFS has fully considered the existing and future levels of the WNP stock and has drafted its regulations accordingly.”

Id.

at 137. The tribunal did not find it necessary to require incidental take authorizations for WNPs during the summer/fall hunting period because WNP gray whales are not expected to be present in the hunt area during that time of the year.

Id.

The Recommended Decision concluded that NMFS satisfied its burden under the other enumerated factors in section 103(b) of the MMPA. Under the second factor, international treaty and agreement obligations, the tribunal explained that “NMFS is not proposing to exceed the agreed-upon catch limits . . . and the IWC Scientific Committee's Standing Work Group on Aboriginal Subsistence Whaling Management Procedures evaluated the proposed hunt and determined it would meet the IWC's conservation objectives for ENP, WNP, and PCFG Whales.” RD at 137. The tribunal determined NMFS addressed the third factor, consideration of the marine ecosystem and related environmental considerations, as explained in section VI.B of the Recommended Decision and through its analysis in the DEIS. RD at 138. Under the fourth factor, the tribunal determined there would be no impact on “the conservation, development, and utilization of fishery resources” and noted that the hunt is unlikely to affect whale-watching businesses. RD at 138-139. Finally, the tribunal concluded the hunt was economically and

technologically feasible, although there may be some technical issues associated with obtaining clear and timely photographs of gray whales for monitoring. RD at 139-140.

Having considered the five required factors, in section VII.B the tribunal turned to a motion filed by the WCR to amend the regulations, which proposed amending the definition of strike to make clear that multiple strikes on the same whale only counted as a single strike for purposes of strike limits. RD at 140. The motion also proposed allowing the Makah to share edible whale products with non-Tribal members outside of their reservation.

Id.

The tribunal granted the motion. RD at 143.

In section VII.C, the tribunal recommended several key changes to the regulations. First, it proposed some structural changes to improve the organization and clarity of the regulations. RD at 146. Second, it recommended specific changes to ensure there is no hunting or training in the winter or spring unless and until the Makah Tribe obtains an ITA.

Id.

at 147-148. Third, citing the UME that was ongoing at the time of its deliberations, the tribunal recommended that NMFS set an abundance threshold for ENP gray whales but did not recommend a specific threshold.

Id.

at 150-151. Finally, the tribunal proposed to prohibit the Makah from approaching gray whale calves or gray whale mothers with their calves.

Id.

at 154.

The tribunal rejected several other proposals advanced by the parties. AWI took issue with the provisions of the proposed regulations that separate lethal and non-lethal hunting activities and argued the term hunt should be defined as any pursuit of a whale. The tribunal rejected this suggestion because it “would likely cause confusion, as it is unclear what other terminology NMFS could use to convey the different limitations on non-lethal training activities and potentially lethal hunting activities.” RD at 146.

MMC proposed adding a PCFG “dimmer-switch” to the regulations, which would reduce PCFG strike limits gradually if PCFG abundance declines, but the tribunal determined that NMFS already had authority to make such reductions if necessary under the proposed regulations.

Id.

at 150-151. PCPW raised concerns related to hunt safety, but the tribunal determined NMFS has discretion to defer its consideration of safety issues to the permitting phase of the process. RD at 151-152.

Section VIII of the Recommended Decision ultimately concluded that the waiver should be approved and explained:

Having considered the evidence presented at the hearing and the briefs and comments received, I find that the best scientific evidence available supports a waiver of the MMPA's moratorium of the take of marine mammals to allow the Makah Tribe to engage in a limited hunt for ENP gray whales. The takings authorized under the waiver will have only a negligible effect on the stock and will therefore not disadvantage the stock. In developing the proposed waiver, NMFS followed the dictates of the MMPA by considering the “distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals,” the potential effects on the ecosystem, and the ability of stocks to attain and maintain their OSP.

RD at 155. The tribunal also concluded that NMFS adequately considered “the distribution, abundance, breeding habits, and times and lines of migratory movements of WNP gray whales in making this determination, and the regulations include adequate protections for the WNP stock.”

Id.

The tribunal further held that “NMFS's determination that PCFG whales do not constitute a separate stock is supported by best scientific evidence currently available and that NMFS included adequate protections for PCFG whales in the proposed regulations.”

Id.

In rendering the Recommended Decision, the tribunal gave no additional weight to the Treaty of Neah Bay of 1855. The Recommended Decision stated:

The Ninth Circuit held that the Makah Tribe's proposed hunt must comply with the MMPA, notwithstanding its treaty rights, and acknowledged the possibility that NMFS would weigh the treaty rights in deciding whether to bring a waiver proceeding. NMFS has done so. (Tab 101 at 39:9-11 (Yates) (“Absent [the Makah's] treaty right and absent that quota from the International Whaling Commission, we would not be moving forward with a MMPA waiver for gray whales.”). The remaining issues for decision are prescribed by statute, and do not include consideration of the treaty rights.

RD at 79. The tribunal emphasized that the Treaty “has no bearing on the specific statutory and regulatory issues I am tasked with deciding here.” RD at 137.

V. Responses to Comments on the Recommended Decision

On September 29, 2021, NMFS announced a 20-day comment period on the tribunal's Recommended Decision. 86 FR 53949. This comment period was extended on October 18, 2021, providing an additional 25 days for public review and feedback. 86 FR 57639. NMFS received 186 comments with 62 supporting and 115 opposing the granting of the waiver. The remaining comments did not express support or opposition but provided specific comments. The Makah Tribe, Northwest Indian Fisheries Commission, Tulalip Tribes, Jamestown S'Klallam Tribe, Puyallup Tribe of Indians, Squaxin Island Tribe, Lower Elwha Klallam Tribe, Suquamish Tribe, Swinomish Indian Tribal Community, Washington Indian Gaming Association, Department of Interior's Office of the Assistant Secretary-Indian Affairs (Office of the AS-IA), NMFS WCR, MMC, MORI-ko LLC, Sierra Club, and a number of individual commenters were generally supportive of the Recommended Decision. Opponents of the tribunal's Recommended Decision included AWI, Marine Mammal Conservation of Mexico (COMARINO), Marine Connection, PCPW, and a number of individual commenters. Below, we summarize and respond to the relevant comments. Some comments were outside the scope of this action and are not addressed here.

Comments on the Requirements of Sections 101(a)(3)(A) and 103 of the MMPA

Comment 1:

The WCR disagrees with the tribunal's determination that NMFS must show it considered the WNP stock's ability to obtain and maintain OSP under section 101(a)(3)(A) of the MMPA.

Response:

In section 101(a)(3)(A), Congress granted the Agency the authority to waive the moratorium “so as to allow taking, or importing of any marine mammal, or marine mammal product, and to adopt suitable regulations, issue permits, and make determinations in accordance with sections 102, 103, 104, and 111 permitting and governing such taking and importing, in accordance with such determinations . . ..” There are two provisos in section 101(a)(3)(A) following this grant of authority. The first proviso is relevant here and states that the Agency “must be assured that the taking of such marine mammal is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this Act” in making the determinations associated with waiving the moratorium. Sections 2(2) and (6) of the MMPA include “purposes and policies” related to obtaining and maintaining OSP for all marine mammal species and population stocks. However, the first proviso in section 101(a)(3)(A) does not refer to all marine mammal species and stocks. The proviso refers to “such

marine mammal.” The requirement to be assured that taking “is in accord with sound principles of resource protection and conservation as provided in the purposes and policies of this Act” only applies to the taking of “such marine mammal” under section 101(a)(3)(A).

The term “such” means “of a kind or character to be indicated or suggested.”

https://www.merriam-webster.com/dictionary/such

(last visited March 19, 2024). The term can also mean “[t]hat or those; having just been mentioned.” Black's Law Dictionary (11th ed. 2019). The Oxford English Dictionary further provides: “Such is a demonstrative word used to indicate the quality or quantity of a thing by reference to that of another or with respect to the effect that it produces or is capable of producing. Thus, syntactically, such may have backward or forward reference. . . .” Oxford English Dictionary Online (last visited March 21, 2024). Likewise, a dictionary published a few years after the MMPA was adopted explains that “such” includes “of a kind or character about to be indicated, suggested, or exemplified” as well as “having a quality already or just specified. ” Webster's Third New International Dictionary (3rd ed. 1976). Thus, the phrase “such marine mammal” in the first proviso in section 101(a)(3)(A) refers to marine mammals “to be indicated” or marine mammals “having just been mentioned,” not marine mammals described in other sections of the Act.

The reference to “such marine mammal” in the first proviso of section 101(a)(3)(A) refers back to NMFS's authority to allow taking of “any marine mammal.” Under section 101(a)(3)(A), NMFS has the authority to waive the moratorium for a single stock of marine mammals, as NMFS has proposed here. When NMFS chooses to exercise that discretion, the text of section 101(a)(3)(A) limits the analysis required by the first proviso of section 101(a)(3)(A) to the marine mammal stock subject to taking under the proposed waiver. Here, that is the ENP stock, not the WNP stock.

The tribunal construed the statute differently. Citing the purposes and policies in section 2 of the MMPA, the tribunal explained:

The MMPA requires the Secretary to consider the ability of marine mammal “species and population stocks” to attain and maintain OSP, when doing so is consistent with the Act's primary objective of preserving the health of the marine ecosystem. 16 U.S.C. 1361. This is an overarching principle and does not focus solely on the stock that is the subject of the waiver.

RD at 116. The WCR disagreed with this interpretation and explained in their comments on the Recommended Decision:

NMFS WCR does not agree with Judge Jordan's statutory interpretation, that NMFS must consider both the ENP stock's and WNP stock's abilities to attain and maintain OSP levels in deciding whether to issue a waiver for ENP gray whales under MMPA section 101(a)(3)(A).

See

Recommended Decision at 116 (relying on MMPA section 2, Congressional findings and declaration of policy). While we agree that an overarching policy of the MMPA is to maintain all marine mammal stocks at or above OSP levels, here, the specific requirements of section 101(a)(3)(A), which govern issuance of waivers, control. Because NMFS is not proposing to waive the MMPA take moratorium with respect to the WNP gray whale stock, NMFS was not required to undertake an analysis of potential effects on the WNP stock's OSP levels.

I agree with the WCR. The tribunal's interpretation deprives the phrase “such marine mammal” in the first proviso of section 101(a)(3)(A) of its normal meaning. The overriding purposes and policies of the MMPA cannot alter the text of section 101(a)(3)(A).

Furthermore, the WCR's interpretation is consistent with the structure of the statute. Section 103(b) requires a broader evaluation of the “effect of such regulations” implementing a waiver. Section 101(a)(3)(A) uses narrower language and requires only that “the taking of such marine mammal is in accord with the sound principles of resource protection and conservation as provided in the purposes and policies” of the Act. As explained above, “such marine mammal” refers to ENP gray whales, the stock subject to taking pursuant to the waiver. In any event, for the reasons explained in section VIII (

Risk to WNP Gray Whales

), any effects of the final waiver and regulations on WNP gray whales are not expected to impact the ecosystem or the ability of WNP gray whales to obtain or maintain OSP.

Comment 2:

With respect to WNP gray whales, the WCR disagrees with the tribunal's characterization of the disadvantage test in section 103(a) of the MMPA, citing discrepancies in the Recommended Decision. For example, page 117 of the Recommended Decision states: “any take of a WNP would necessarily disadvantage the stock,” whereas page 136 of the Recommended Decision states “not all takes of depleted stocks necessarily disadvantage those stocks.” Relatedly, the Makah Tribe comments that the Recommended Decision's assertion that the removal of one WNP whale would disadvantage the stock is contrary to the evidence in the record.

Response:

The Recommended Decision uses the term “disadvantage” when discussing WNP gray whales and depleted marine mammals, raising questions about the application of the disadvantage test in section 103(a) to the endangered WNP stock. When implementing a waiver, section 103(a) of the MMPA provides: “The Secretary . . . shall prescribe such regulations with respect to the taking and importing of animals from each species of marine mammal (including regulations on the taking and importing of individuals within population stocks)” as the Secretary “deems necessary and appropriate to insure that such taking will not be to the disadvantage of those species and population stocks and will be consistent with the purposes and policies set forth in section 2 of this Act.” The disadvantage test in section 103(a) applies to “such taking” of “those species and population stocks.” “Such taking” under section 103(a) refers to the taking described earlier in the section, which is the regulated “taking and importing of animals from each species of marine mammal (including regulations on the taking and importing of individuals within population stocks). . . .” This text allows NMFS to regulate taking at the species-level or the stock-level. In this action, NMFS is waiving the moratorium and providing for the regulated taking of gray whales from the ENP stock only. Therefore, NMFS must satisfy the disadvantage test for the ENP stock. NMFS is not waiving the moratorium for WNP gray whales under section 101(a)(3)(A) or providing for regulated taking of this stock under section 103(a). Under these circumstances, NMFS is not required to comply with the disadvantage test for the WNP stock in this action.

The reference to “those species and population stocks” in section 103(a) expresses the idea that if taking is authorized at the species level, then the authorized taking cannot disadvantage the species. If the taking is authorized at the stock level, as NMFS has proposed in this case, then the taking cannot disadvantage the stock. This language does not require NMFS to apply the disadvantage test at the species level if NMFS is only proposing to waive the moratorium and regulate a single stock within a species that consists of multiple stocks. Accordingly, in reviewing the final regulations, I must “insure” that the take of marine mammals from the ENP stock will not disadvantage the ENP stock and will be

consistent with the purposes and policies of section 2 of the MMPA. 16 U.S.C. 1373(a).

Any ambiguity regarding the application of the disadvantage test to WNP gray whales in this case is resolved by the legislative history of the MMPA. When Congress first adopted the exception for incidental take in section 101(a)(5), the House Report for the Bill (H.R. 4084) stated: “Sections 103 and 104 of the Act do not apply to the taking of marine mammals occurring under the authority of section 101(a)(5).” House Report No. 97-228, at 13 (1981). Under the final regulations, any taking from the WNP stock that is anticipated during the permitting stage could only be authorized under section 101(a)(5) under the current circumstances. As such, the legislative history confirms that the disadvantage test in section 103(a) does not apply to WNP gray whales in this case.

Impacts to WNP gray whales are not properly addressed under sections 103(a) or 101(a)(3)(A) in this case, but that does not mean that impacts to WNP gray whales are irrelevant in NMFS's evaluation of the waiver and implementing regulations. Section 103(b) addresses the regulations NMFS must adopt to implement a waiver and states: “In prescribing such regulations, the Secretary shall give full consideration to all factors which may affect the extent to which such animals may be taken or imported, including but not limited to the effect of such regulations” on five enumerated factors. The language of section 103(b) makes clear that these five factors are not exhaustive and focuses on the effect of the regulations implementing a waiver. Regulations implementing a waiver could affect marine mammals that are not subject to regulated taking under a waiver. In section 103(b), Congress required NMFS to consider these effects. In this case, the regulations implementing a hunt for ENP gray whales may incidentally take endangered WNP gray whales. I must give, and have given, full consideration to this issue under section 103(b).

In summary, the analyses required by sections 101(a)(3)(A) and 103(a) of the MMPA focus on the stock subject to regulated taking under a waiver, which is ENP gray whales. However, the broader language of section 103(b) requires consideration of the effects of the regulations on WNP gray whales. I address the effects of the regulations on WNP gray whales in section VIII of this Final Decision.

Comment 3:

The WCR comments that whales are not fishery resources for the purposes of MMPA section 103(b) and disagrees with the Recommended Decision that the whale watching industry falls within the scope of this factor of the MMPA.

Response:

As described in section VIII of this Final Decision, I agree that impacts to whale watching should not be analyzed under section 103(b).

Comment 4:

Several comments on the Recommended Decision suggest I must apply the precautionary principle when evaluating various aspects of the Makah's waiver request.

Response:

The statutory criteria that must be evaluated to grant the waiver and adopt implementing regulations are indeed protective, but if the criteria are satisfied, NMFS is not required to apply an additional measure of precaution to comply with the MMPA.

Comments on Gray Whale Stock Structure

Comment 5:

The WCR comments that the MMPA's detailed procedures in section 117 for identifying population stocks take precedence and govern stock determinations for other MMPA purposes, such as issuance of a waiver, and are not subject to

de novo

review in this formal rulemaking.

Response:

Section 117 of the MMPA establishes the framework through which NMFS identifies marine mammal stocks and assesses their status. Through this process, which culminates in the publication of SARs, NMFS has identified two stocks of gray whales, the eastern and western North Pacific populations. The tribunal explained the role that SARs play in the waiver process as follows:

In order to make the requisite findings about the proposed waiver and regulations, I must make a threshold determination that the stock structure NMFS used is scientifically sound. While NMFS's existing stock determinations, as contained in the SARs, are entitled to substantial deference, other parties may attempt to show the SARs rely on outdated or inaccurate scientific evidence. (

See

Tab 84 at 10;

Brower II,

257 F.3d at 1067). However, if I were to determine NMFS's current stock assessments are not based on the best available scientific evidence, this would not be the appropriate forum to make new assessments. Instead, the proper course of action would be to deny the waiver. NMFS would then have the opportunity to produce new stock assessments before deciding whether to propose a future waiver.

RD at 59. I agree with this assessment, which is consistent with the requirements under both sections 101(a)(3)(A) and 103(a) that I base my decision on the waiver and the implementing regulations on the “best scientific evidence available.”

SARs play a critical role in marine mammal management, but if Congress had intended for NMFS to give conclusive effect to the stock determinations in SARs when assessing a waiver application, it would have directed NMFS to do so. Other provisions of the MMPA specifically direct NMFS to use information from SARs. Sections 118(f)(5), (7), and (8) of the MMPA direct NMFS to use the PBR “established under section 117” for certain aspects of take reduction plans. This language clearly instructs NMFS to use information from SARs. There is no similar language related to stock designation in the provisions of the MMPA governing this proceeding. Rather, in both sections 101(a)(3)(A) and 103(a), Congress directed NMFS to use the “best scientific evidence available” when evaluating a waiver and implementing regulation which will often, but not always, be the scientific evidence in SARs. Because SARs are not constantly updated, the scientific information in a SAR can become outdated before the next SAR is published. Therefore, I agree with the tribunal's decision to allow the parties to challenge the gray whale stock structure reflected in the 2017 and 2018 SARs (Tabs 2K; Tab 54D) during this formal rulemaking proceeding and its ultimate conclusion that the stock structure reflected in NMFS's SARs is scientifically sound.

Comment 6:

NMFS received a number of comments on whether PCFG gray whales should be considered a stock under the MMPA, with the Makah Tribe, MMC, and WCR region arguing that the PCFG are not a stock and AWI, Sea Shepherd, and PCPW arguing the opposite. Some parties and commenters argue that the PCFG must be designated as a stock pursuant to the purposes and policies of the MMPA and the precautionary principle.

Response:

I agree with the tribunal's determination that the PCFG is a feeding aggregation within the ENP stock for the reasons stated in section IV.D.1 of the Recommended Decision. The tribunal found that “the evidence strongly supports NMFS's conclusion, and that of the IWC, that the PCFG are a feeding aggregation and not a separate stock or management unit.” RD at 65-66. Since the evidence is strong on this issue, NMFS's determinations related to the PCFG's status are consistent with the MMPA. Conservation of the PCFG is addressed through the numerous conservation measures in the final regulations that will ensure the hunt does not cause the PCFG to fall below recent levels, including PCFG abundance thresholds that prohibit

authorizing hunting if the PCFG population is below those thresholds.

Comment 7:

AWI comments that the Recommended Decision primarily relies on recruitment levels in determining that the PCFG are a feeding aggregation within the ENP stock, rather than a separate stock.

Response:

I disagree. The Recommended Decision relies on multiple lines of evidence in reaching the conclusion that the PCFG are a feeding aggregation with the ENP stock, including breeding habits, genetic information, and immigration into and emigration out of the group. RD at 62-67.

Comment 8:

AWI argues that NMFS's failure to heed the recommendation of the PSRG and convene a workshop to address whether the PCFG should be considered a stock is arbitrary and capricious.

Response:

AWI mischaracterizes the PSRG's recommendation. In 2018, the PSRG recommended that “NMFS reconsider the characteristics and status of the Pacific Coast Feeding Group (PCFG) of gray whales and whether it should be recognized and managed as a full stock” without requesting that the agency convene a workshop to address the issue. Tab 2L at 11. NMFS responded to the 2018 PSRG recommendation by explaining that the available information did not support classifying the PCFG as a “full stock” under the MMPA and that NMFS scientists keep apprised of new information pertaining to the PCFG and are actively engaged in field studies and gray whale assessments/workshops, including participation in four workshops convened by the IWC to review the range-wide status and structure of the North Pacific gray whales. Tab 2L at 11-12. NMFS scientists continue to be actively engaged in gray whale research and assessments. These assessments continue to support that the PCFG is a feeding aggregation of the ENP gray whale stock (see FEIS subsection 3.4.3).

While the PSRG is an important part of the process described in section 117 of the MMPA, they do not have a formal role in this proceeding and have not participated. Even if the PSRG had recommended establishing another workgroup to consider the status of the PCFG as a stock, I do not have the discretion to delay this proceeding to do so. The regulations governing this matter only allow me to make a final decision or remand this matter to the tribunal at this stage in the proceeding. 50 CFR 228.21(a).

Section 117 of the MMPA requires the development of SARs, based on the best scientific information available, for all marine mammal stocks in U.S. waters. These reports are reviewed annually for “strategic stocks” and stocks for which significant new information is available and at least every 3 years for all other stocks. Through section 117 of the MMPA, NMFS regularly reviews the stock status of marine mammals, including gray whales, and will continue to do so.

Comment 9:

MMC recommends that I address the implications for the waiver if the PCFG are designated a stock and include a contingency clause in the regulations that would suspend the authorization to conduct a whale hunt if the PCFG are determined to be a separate stock.

Response:

If the PCFG are designated a stock at some future time, the same MMPA provisions that apply to waiving the take moratorium for the ENP stock would apply to a newly designated stock. The Tribe would need to apply for a waiver of the moratorium on take for the new stock, the request would be considered through the formal rulemaking process, and a decision rendered. If designated as a stock, PCFG whales could not be intentionally hunted unless a waiver is granted and implementing regulations are promulgated.

Comment 10:

The Makah Tribe comments that it believes the WNP stock is not a listed species under the ESA because its essential attributes are “fundamentally different” from the stock that remained listed as endangered in 1994 when the ENP stock was delisted, and therefore the WNP stock should not be considered depleted under the MMPA.

Response:

The entire gray whale population was first listed as endangered in 1970 (35 FR 18319, December 2, 1970), and it was both endangered under the ESA and depleted under the MMPA at that time. In 1994, the ENP stock was removed from the ESA's list of endangered and threatened species and no longer considered depleted under the MMPA because it had recovered. However, the WNP stock remained both endangered under the ESA and depleted under the MMPA because NMFS determined that the WNP gray whale population was geographically and reproductively isolated from the ENP population, remained small, and had not recovered. 59 FR 31094, June 16, 1994. Although it is now clear that the WNP and ENP gray whale populations are not geographically isolated (see section IX, Stock Structure), I agree with the Recommended Decision's determination that “the best available scientific evidence” is that WNP gray whales are “distinct from the ENP stock as a whole.” RD at 69. The tribunal noted uncertainty regarding the origins of the WNP gray whales but highlighted the “statistically significant” genetic differences between WNP gray whales and ENP gray whales. RD at 67-69. Analysis of photo-identification data, including data on mother-calf pairs, and paternity assessments, suggest that gray whales summering in the WNP may constitute a demographically self-contained subpopulation where mating occurs at least preferentially and possibly exclusively within the subpopulation. Several studies have found differences in the mitochondrial and nuclear DNA between ENP and WNP gray whales. RD at 67-69; Tab 59B at 12. I agree that these differences in the nuclear DNA found in ENP gray whales and WNP gray whales counsel in favor of treating the two stocks separately, even though it is now clear that their ranges overlap to some degree.

Comments on the Status of Gray Whales

Comment 11:

Several comments address the status of the ENP gray whale stock. These include comments that the population should be considered endangered and not sustainable as well as comments that the population has fully recovered and a hunt would have negligible effects.

Response:

ENP gray whales are not listed as endangered. The status of the ENP gray whale stock is addressed in sections IV-V and VII-IX of this Final Decision.

Abundance Threshold for ENP Gray Whales and the UME

Comment 12:

The tribunal found that “the scientific evidence weighs in favor of an overall abundance threshold” for ENP gray whales and recommended I consider establishing one in the final regulations, “[p]articularly in light of the current UME.” RD at 151. Several commenters addressed the tribunal's recommendation to include an abundance threshold in the final regulations and proposed specific population levels, ranging from 11,000 to 18,000, below which hunting would be prohibited. The Makah Tribe and the WCR believe an abundance threshold is not necessary but suggested thresholds should NMFS choose to implement one. MMC and PCPW support a low abundance threshold. AWI, while arguing that legal obstacles preclude adoption of the Recommended Decision, is generally supportive of a low abundance threshold.

Response:

I have included requirements in the final regulation

setting an abundance threshold based on OSP. NMFS is required to confirm that the ENP gray whale stock is within OSP before issuing a hunt permit and ensure that the level of hunting under the hunt permit will not cause the stock to fall below its OSP. If the stock falls below OSP, NMFS must notify the Tribe and hunting is prohibited until NMFS notifies the Tribe that the stock is within OSP.

Comment 13:

Several commenters suggest that the waiver should not be granted during a UME.

Response:

The Working Group on Marine Mammal Unusual Mortality Events determined the most recent UME involving ENP gray whales was biologically over as of November 2023. There is no longer an ongoing UME for ENP gray whales. The population of ENP gray whales is known to experience large-scale fluctuations in abundance and has recovered from prior declines, including a prior UME that occurred over 20 years ago. The most recent abundance estimate for the 2023/2024 season shows a 32.6 percent increase from the 2022/2023 season (Eguchi

et al.

2024). The abundance threshold for ENP gray whales in the final regulations addresses these fluctuations and concerns related to UMEs by prohibiting lethal hunting if the stock is not within its OSP.

PCFG Gray Whales

Comment 14:

Some commenters suggest that the hunt will primarily impact the PCFG. Commenters also suggest that PCFG whales may not be able to recover from human-caused mortalities.

Response:

The effects of the hunt were thoroughly evaluated at a range of scales, including the ENP, PCFG, OR-SVI (PCFG whales observed from southern Oregon to southern Vancouver Island survey areas), and Makah U&A (PCFG whales observed in north Washington or Strait of Juan de Fuca survey areas) whales (see FEIS Chapter 4). The regulations contain several protections for PCFG whales, including an alternating hunt season, limits on the harvest and mortality of PCFG whales, and low abundance thresholds for PCFG whales below which hunting would not be authorized.

Comment 15:

PCPW and MMC recommend adopting a “dimmer switch provision” that would gradually reduce the harvest of gray whales before the abundance reaches the thresholds set in the regulations. Other commenters assert that this provision is unnecessary as the proposed regulations allow NMFS discretion to limit PCFG strikes below the full level through the hunt permit.

Response:

The regulations include a number of measures to protect PCFG gray whales including a low abundance threshold. As noted in the Recommended Decision, NMFS also has discretion through the hunt permit process to grant less than the full number of strikes that would otherwise be allowed. If necessary, this discretion could be used to protect PCFG gray whales. RD 150-151. Given this, I have determined that a “dimmer switch” provision is not warranted.

Comment 16:

PCPW comments that the accounting and identification methods (

e.g.,

photo-identification) for PCFG whales are not 100 percent reliable and that the assumptions in accounting for PCFG whales are “questionable formulas.” PCPW also asserts that the number of whales at a particular time is impossible to know and models used for estimating the PCFG abundance are full of “assumptions” and in the hands of “anonymous modelers.”

Response:

I have kept the requirement that the Tribal hunt observer collect digital photographs for identification but have modified it slightly to specify the Tribal hunt observer “must make every reasonable attempt” to collect digital photos. The regulations at § 216.115 specify the methods used to account for a whale that cannot be affirmatively identified. These methods are based on the best available scientific information. The PCFG abundance estimate is based on data derived from photo-identification surveys and catalog data. These estimates and the methods to derive them are fully described in peer reviewed, published literature. See, for example, Tabs 3AA, 3HH. The survey and catalog data will also be used as the basis for projecting PCFG abundance estimates into future hunting.

Comment 17:

A commenter suggests the UME had a disproportionate effect on PCFG gray whales.

Response:

There is no evidence that the UME had a disproportionate effect on PCFG gray whales. Since declaring a UME in May 2019, NMFS worked with partners in Canada and Mexico to review data and sample stranded gray whales. RD at 99. Only one whale has been matched by photo-identification to the PCFG. Genetic analysis of samples collected from stranded whales has not been completed. Although the abundance estimate for the ENP stock declined significantly from the 2015/2016 to the 2022/2023 abundance surveys, the PCFG abundance estimate has not experienced a proportional decline from pre-UME levels to 2020 (Harris

et al.

2022).

Comment 18:

Two commenters note inconsistencies in the statement in the Recommended Decision describing PCFG as occurring “in the PCFG range between April 1 and November 30 of two consecutive years.” RD at 85. April 1 should read June 1. While a whale must be sighted in 2 or more years to be designated a PCFG whale, these sightings do not need to be in consecutive years.

Response:

I agree that the statement is inconsistent with the definition of the PCFG and correct this error in section VIII of this Final Decision.

Comment 19:

PCPW comments that human-caused mortalities, including mortalities related to the hunt, are likely to exceed PBR for PCFG gray whales in some years, notes uncertainty in abundance estimates, and questions how NMFS will determine and respond if PBR is exceeded. PCPW also compares the PCFG to other marine mammal species with small population sizes as a caution about the impacts of human actions on these species.

Response:

While PCFG whales are not a stock or prospective stock under the MMPA, the SARs include estimates of abundance, human-caused, mortality, and PBR for informational purposes. The estimates reflect the best available scientific information as required by the MMPA. The regulations include a number of measures to minimize the effects of the hunt on the PCFG specifically, including strike limits, low abundance thresholds, and reporting and accounting requirements. To the extent that the informational PBR for PCFG raises management concerns, there are processes for addressing those concerns in the regulations. The regulations provide that the Regional Administrator will notify the Tribe of the maximum number of PCFG whales, including females, that may be struck during the upcoming hunting season, providing a mechanism to respond to and adaptively manage based on the best available information.

WNP Gray Whales

Comment 20:

Several commenters maintain that the approval of the waiver is inappropriate in terms of conservation of endangered WNP gray whales.

Response:

I disagree. The effects of a Tribal hunt on WNP gray whales have been fully considered. The regulations are designed to minimize the risk of a WNP whale being struck or harmed over the duration of the waiver. Approaches, the most likely type of interaction with a WNP gray whale, are not lethal, nor are approaches likely to cause more disturbance than close approaches

associated with typical biopsy sampling for research purposes. RD at 123.

Comment 21:

Several commenters address the tribunal's recommendation that I expressly require the Makah Tribe to obtain an ITA for WNP gray whales during the winter/spring season (December through May) when the WNP gray whales might be present in the Makah U&A. The MMC supports the tribunal's recommendation expressly requiring an ITA, commenting: “For purposes of this rulemaking, it is sufficient for the regulations to require that the taking of ENP whales not be allowed if there is a high enough likelihood that

unauthorized

taking of WNP whales will also occur.” The Makah Tribe questions whether an express requirement for an ITA for WNP gray whales is necessary, arguing that the regulations include significant protections for WNP gray whales and pointing to provisions in the proposed regulations requiring NMFS to determine that relevant incidental take authorization for other marine mammals have been obtained before a hunt permit can be issued.

Response:

The final regulations require NMFS to evaluate whether the hunting proposed by the Makah Tribe in their permit application will result in the take of WNP gray whales. If the take of WNP gray whales is anticipated by NMFS, then NMFS must include measures in the hunt permit requiring a separate take authorization for those whales during the winter/spring season. Depending upon what the latest science shows, additional measures that could prevent anticipated take of WNP gray whales may include, for example, limiting the number of hunting and training days, restricting the location of hunting and training, or banning hunting and training during the winter/spring season if other measures are not effective.

Comment 22:

AWI and another commenter assert that the Recommended Decision must be rejected because the take of WNP gray whales during the course of a hunt for ENP gray whales cannot be authorized under the MMPA's exception for incidental take.

Response:

I disagree. For the reasons explained below, if NMFS determines that the take of WNP gray whales is anticipated during the permitting process, the Makah could qualify for an ITA under section 101(a)(5) for the “incidental, but not intentional, taking” of WNP gray whales during the course of their hunt for ENP gray whales. To respond to this comment, I will first summarize the requirements for ITAs and relevant legislative history and then explain how the Makah could meet the threshold requirements for an ITA.

Section 101(a)(5) describes two types of ITAs for non-military activities that are relevant here. One type allows NMFS to issue an incidental harassment authorization for up to 1 year. 16 U.S.C. 1371(a)(5)(D). The other allows NMFS to issue regulations and a letter of authorization that would allow incidental take for up to 5 years. 16 U.S.C. 1371(a)(5)(A). Collectively, I will refer to these two exceptions as an ITA. Only U.S. citizens “who engage in a specified activity (other than commercial fishing) within a specified geographical region” can apply for an ITA. 16 U.S.C. 1371(a)(5)(A), (D). Taking marine mammals under an ITA must be “incidental, but not intentional, taking.”

Id.

NMFS can authorize take of only “small numbers” of marine mammals, and the authorized take can have only a “negligible impact” on the species or stock.

Id.

The take cannot have an “unmitigable adverse impact” on the availability of marine mammals for subsistence uses, and NMFS must prescribe “means of effecting the least practicable adverse impact on such species or stock and its habitat.”

Id.

Several important terms are further defined by regulations implementing section 101(a)(5). The terms “[i]ncidental harassment, incidental taking and incidental, but not intentional, taking all mean an accidental taking.” 50 CFR 216.103. The regulatory definition makes clear that “[t]his does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental.”

Id.

The definition of “incidental, but not intentional, taking” closely tracks relevant legislative history. Congress first adopted the incidental take exception for specified activities in the 1981 amendments to the MMPA. The 1981 amendments to the MMPA also included a similar exception for incidental takes committed during commercial fishing. Regarding these new exceptions, the House Report for the Bill explained:

Both sections 101(a)(4) and (5) authorize the incidental, but not the intentional, taking of small numbers of marine mammals. The phrase “incidental, but not intentional” is intended to mean accidental taking. The words “not intentional” should not be read to mean that persons who know there is some possibility of taking marine mammals incidental to commercial fishing operations or other specified activities are precluded from proceeding under the authority of sections.

House Report No. 97-228, at 13 (1981). Referring to the new incidental take exceptions, the House Report for the 1981 amendments to the MMPA further explained: “The Committee intends that these provisions be available for persons whose taking of marine mammals is infrequent, unavoidable, or accidental.”

Id.

Implementing regulations also define the term “specified activity,” which means “any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals.” 50 CFR 216.103. The House Report to the 1981 amendments to the MMPA explains:

It is the intention of the Committee that both the specified activity and the specified region referred to in section 101(a)(5) be narrowly identified so that the anticipated effects will be substantially similar. Thus, for example, it would not be appropriate for the Secretary to specify an activity as broad and diverse as outer continental shelf oil and gas development. Rather, the particular elements of that activity should be separately specified as, for example, seismic exploration or core drilling.

House Report No. 97-228, at 13 (1981). Congress intended for NMFS to articulate specified activities with particularity, as this approach would allow NMFS to more carefully analyze the effects of the activity on marine mammals.

With the relevant authorities and the legislative history in mind, I will now consider whether the Makah Tribe could satisfy the threshold requirements for an ITA under section 101(a)(5). I cannot determine in this proceeding whether an ITA for WNP gray whales would be appropriate, as such a determination requires separate procedures, but nothing about the Makah's activities under the waiver would prevent them from satisfying the threshold requirements.

Under section 101(a)(5), there are three threshold requirements that must be met before NMFS can consider issuing an ITA. First, there must be a request from a citizen of the United States. 16 U.S.C. 1371(a)(5)(A), (D). Members of the Makah Tribe are U.S. citizens and could make such a request.

Second, U.S. citizens must be engaged in a “specified activity (other than commercial fishing) within a specified geographical region.” 16 U.S.C. 1371(a)(5)(A), (D). The Makah are proposing a ceremonial and subsistence hunt for ENP gray whales, which is a specified activity other than commercial fishing. Activities under the waiver will occur in the coastal portion of the Makah Tribe's U&A, which is a specified geographic region. Hunting and training activities under the waiver

involve a specific set of actions directed at ENP gray whales. The legislative history for section 101(a)(5) suggests that the specified activity should be “narrowly identified.” House Report No. 97-228, at 13 (1981). A “narrowly identified” activity is consistent with the common meaning of the term “specified,” which is the past tense of “specify” and means to “mention or name in a specific or explicit manner: tell or state precisely or in detail.” Webster's Third New International Dictionary (3rd ed. 1976). Considering hunting and training activities directed at a single stock of marine mammals in an ITA is consistent with the meaning of the term “specified.”

The final threshold requirement is that taking authorized under section 101(a)(5) must be “incidental, but not intentional, taking.” NMFS has defined the phrase “incidental, but not intentional, taking” to mean “an accidental taking.” 50 CFR 216.103. Consistent with legislative history surrounding this exception, “accidental taking . . . does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoidable or accidental.”

Id.

Here, a highly conservative analysis forecasts at most 18 approaches of WNP gray whales and a small but real risk of an unsuccessful strike attempt over the 10-year waiver period. Tab 61D. To the extent that each approach represents a take, these takes would be infrequent compared to the 3,530 approaches authorized over the waiver period for ENP gray whales. To the extent that a WNP is present in the U&A during hunting or training activities, approaches may be unavoidable because it is difficult to distinguish between the two gray whale stocks visually in a hunt scenario. In light of the differing statuses of the two stocks, Makah hunters would be targeting ENP gray whales, so any taking of a member of the WNP stock would be accidental.

Pursuing the wrong type of animal in a hunt can be an accident. An analogy helps illustrate this. A hunter enters the field to hunt whitetail deer during whitetail deer season. There are whitetail deer and mule deer in the area, but whitetail deer outnumber mule deer 100 to one. The hunter sees an animal with antlers in the distance and stalks it. Unbeknownst to the hunter, the animal is a mule deer. The mule deer catches the scent of the hunter and flees.

Common sense suggests that when the hunter stalked and thereby hunted the mule deer it was an accident. This is because the hunter intended to hunt whitetail deer, was authorized to hunt whitetail deer, and reasonably thought the mule deer was a whitetail deer based on its general appearance and the fact that mule deer are rare in the area. Likewise, it would be an accident if Makah whalers approach or throw a harpoon near a WNP gray whale during the course of their hunting and training activities directed at ENP gray whales.

Nevertheless, AWI and some other commenters argue that hunting is always intentional and cannot qualify for an ITA. This argument is not consistent with the text of the MMPA. Under section 101(a)(5), an ITA is available for “incidental, but not intentional, taking.” Taking is the present participle of take, which means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. 1362(13). If the statutory criteria are met, NMFS is required to allow citizens to incidentally, but not intentionally “harass, hunt, capture, or kill . . . any marine mammal” when engaged in specified activities.

Id.

If Congress had only intended for an ITA to be available for harassing, capturing, or killing—but not hunting—it would not have used the term “taking” in section 101(a)(5).

For all these reasons, if necessary Makah whalers can apply for an ITA under section 101(a)(5) to cover any incidental take of WNP gray whales that is anticipated during the winter/spring hunt.

Comment 23:

The MMC comments that it agrees with the statement in the Recommended Decision that the “best available scientific evidence shows that removal of a WNP whale would be detrimental to the stock.” RD at 19. MMC asserts that this statement would preclude NMFS from making the negligible impact determination necessary to authorize the incidental killing of a WNP gray whale under section 101(a)(5).

Response:

If the Makah apply for an ITA under section 101(a)(5)(A), NMFS will evaluate their application along with the best available science. I have not affirmed the statement the MMC references from the Recommended Decision related to WNP gray whales since it is premature to speculate on what a potential future analysis would show.

Comment 24:

AWI's comments on the Recommended Decision contend that the taking of WNP gray whales is a certainty under NMFS's own risk analysis and therefore the Recommended Decision “must be rejected because it will result in the illegal take of WNP gray whales.” Referring to WNP gray whales, AWI further comments that “[t]he Recommended Decision unlawfully authorizes the directed take of a depleted marine mammal stock” citing guidance from NMFS's Permits and Conservation Division within the Office of Protected Resources that references two categories: authorizations for incidental take of marine mammals under the MMPA and permits for directed take of species protected under the MMPA and/or ESA.

Response:

AWI points to the 18 approaches forecasted in the 2019 Moore and Weller analysis (see Tab 61D) to support their argument that take of WNP gray whales is a certainty. However, this analysis unrealistically assumes that all approaches (hunting and training) occur during the winter/spring period when WNP whales may be present, even though a substantial number of approaches will likely occur outside this period during the summer/fall season when ocean conditions are more favorable for hunting. The Moore and Weller analysis shows that there is a potential risk to WNP gray whales, not that take is inevitable. The risk identified in the Moore and Weller analysis calls for management, not denial of the waiver.

The regulations I adopt in this document include significant protections for WNP gray whales. Before issuing a hunt permit for ENP gray whales, NMFS is required to determine, based on the best available science, whether the activities described in the Makah Tribe's hunt permit application would result in the take of WNP gray whales. If the activities would result in the take of WNP gray whales, the Makah must have separate authorization for takes of WNP gray whales to hunt or train during the winter/spring season.

The Makah Tribe has at least three options to address concerns related to WNP gray whales; none of which would result in the illegal take of WNP gray whales. First, the Makah may choose not to hunt or train during the winter/spring. Second, the Tribe may propose additional restrictions in their application for a hunt permit that would lead NMFS to conclude take of WNP gray whales is not anticipated during the winter/spring season. Finally, the Makah could obtain an ITA under section 101(a)(5) to cover the take of WNP gray whales.

Regarding AWI's comment about “directed take,” many of the permits NMFS issues for protected species fall within the incidental or directed take categories, but this proceeding presents a unique permitting scenario, and the definition of “directed take” on the portion of NMFS's website referenced by the commenter has no bearing on

whether an incidental take authorization could be issued under section 101(a)(5) for WNP gray whales.

Comment 25:

AWI comments that the Recommended Decision will result in the hunting of WNP gray whales, which is a violation of the MMPA because this stock is depleted.

Response:

Although section 101(a)(3)(B) of the MMPA generally prevents NMFS from issuing permits for the take of WNP gray whales because the stock is depleted, an exception allows NMFS to issue ITAs for animals from depleted stocks. The final regulations and the waiver authorize hunting only ENP gray whales. If NMFS anticipates the hunting of ENP gray whales may result in the take of WNP gray whales, under the final regulations the agency would need to authorize this take separately. As explained in response to comment 22, characterizing the take of WNP gray whales as “hunting,” does not preclude issuance of an ITA under section 101(a)(5) of the MMPA.

Comment 26:

AWI comments that the definition of hunt in the proposed regulations, which does not include non-lethal activities, is inconsistent with the plain meaning of the term and has enormous legal significance.

Response:

The tribunal addressed this argument in section VII.B.3.b of the Recommended Decision. I agree with that analysis. As the tribunal explained:

I find AWI's reading of the regulations overly formalistic. Moreover, it would likely cause confusion, as it is unclear what other terminology NMFS could use to convey the different limitations on non-lethal training activities and potentially lethal hunting activities. Therefore, I see no need to amend the definition of “hunt” or of the related training activities.

RD at 146. WNP gray whales are designated as “depleted” under the MMPA in addition to their “endangered” status under the ESA, and the moratorium has not been waived for the WNP stock. Under these circumstances, permits cannot be issued for the take of WNP gray whales, except for scientific research, photography, enhancement or incidental take under section 101(a)(5) of the MMPA. 16 U.S.C. 1371(a)(3)(B). As discussed in response to comment 22, characterizing the activities associated with the waiver as hunting WNP gray whales does not preclude issuance of an ITA for this stock, if needed.

Comment 27:

AWI comments that the Recommended Decision authorizes harassment of WNP gray whales in violation of the MMPA.

Response:

In light of the potential for activities authorized by the waiver and final regulations to result in the take of WNP gray whales, I have adopted final regulations that manage this risk by ensuring hunting and training does not occur during the winter/spring season without an ITA if the agency determines during the permitting process that take of WNP gray whales is anticipated. Although the Makah are eligible to apply for an ITA, issuance of an ITA is not guaranteed and will be evaluated pursuant to the applicable statutory and regulatory requirements should the Makah choose to apply.

Comment 28:

AWI comments that training activities are inconsistent with the purposes and policies of the MMPA and should not be authorized under the waiver.

Response:

The Makah have sought a waiver to hunt ENP gray whales and train for that hunt. I have applied the criteria set forth in the MMPA for evaluating the waiver request and implementing regulations and have determined that the training activities authorized in the final rule are consistent with the MMPA. Training is critical to ensure the hunt is safe and humane. NMFS will address issues related to safety and the humaneness of the hunt more specifically during the permitting process. To the extent that training activities authorized under a hunt permit are anticipated to result in take of WNP gray whales, such takes can be authorized and managed in accordance with section 101(a)(5) of the MMPA.

Comment 29:

AWI and another commenter argue that

Kokechik Fishermen's Ass'n

v.

Sec'y of Com.,

839 F.2d 795 (D.C. Cir. 1988) prohibits issuance of a waiver because the waiver will result in the take of WNP gray whales. WCR, MMC, and the Makah Tribe disagree.

Response:

In

Kokechik,

NMFS granted a waiver under section 101(a)(3)(A), adopted regulations under section 103, and issued a permit pursuant to sections 101(a)(2) and 104 authorizing the incidental take of Dall's porpoise in the Bering Sea by the Federation of Japan Salmon Fisheries Cooperative Association (Federation). 839 F.2d at 797-801. NMFS issued the permit in

Kokechik

knowing the Federation would incidentally kill other marine mammal species for which OSP had not been determined.

Kokechik,

839 F.2d at 799-800. NMFS did not authorize those other takes and limited the authorization to the take of Dall's porpoise.

Id.

Consequently, the take of other marine mammals would have inevitably occurred without authorization under the MMPA.

Id.

at 801. The court held “that the permit, as granted to the Federation, is contrary to the requirements of the MMPA in that it allowed incidental taking of various species of protected marine mammals without first ascertaining as to each such species whether or not the population of that species was at the OSP level.”

Kokechik,

839 F.2d at 802.

Kokechik

is distinguishable from the present case for at least three reasons. First,

Kokechik

involved section 101(a)(2) of the MMPA, which provides that “it shall be the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.” The court in

Kokechik

relied on the zero mortality and serious injury rate goal to reach its holding, quoting it twice. 839 F.2d at 801-02. Since that provision is not applicable in the present case, which does not involve commercial fishing,

Kokechik

is distinguishable.

Second,

Kokechik

involved the unauthorized serious injury or mortality of marine mammals that was “not merely a remote possibility but a certainty.” Kokechik, 839 F.2d 801-02. For example, the ALJ in

Kokechik

anticipated and recommended that NMFS allow the Federation to kill or seriously injure 45 Northern fur seals from the Commander Island stock. 52 FR 19874, 19877, May 28, 1987. Conversely, the tribunal in this case recognized, and I agree, that the risk of a lethal strike on a WNP is quite low. RD at 135-136. NMFS has produced an extremely precautionary risk analysis that shows a remote risk that a WNP gray whale could be killed or seriously injured. As explained by the tribunal:

The modeling suggests, if the Makah Tribe utilizes every available strike during the 10-year waiver period, there is a 5.8% chance of striking at least one WNP whale and a 30% chance of an unsuccessful strike attempt on a WNP whale. If the hunt continued into perpetuity, using the existing hunt management scheme and other variables, a WNP whale would be struck approximately once every 135 years. (Tab 61 at ¶ 8).

RD at 111. In

Kokechik,

the court suggested several times that the case might have been decided differently if the takes at issue were a “remote possibility.”

Kokechik,

839 F.2d 801-02. A chance of striking a whale and causing a lethal take once every 135 years (RD at 111) is a remote possibility.

Third,

Kokechik

is distinguishable because the Federation was not eligible to apply for a separate ITA for anticipated takes. In

Kokechik,

it was “foreseeable that takes of northern fur seals, northern sea lions, harbor

porpoises, Pacific white-sided dolphins, and killer whales will occur,” but only the take of Dall's porpoise was authorized. 839 F.2d at 800. Because the taking of any of “these other marine mammals without a permit is absolutely prohibited by the MMPA,” the court called the legitimacy of the permit for Dall's porpoise into question.

Id.

In

Kokechik,

the take of northern fur seals, northern sea lions, harbor porpoises, Pacific white-sided dolphins, and killer whales by the Japanese Federation incidental to their commercial fishing operation was “absolutely prohibited,” meaning there was not a separate legal pathway for the Japanese Federation to seek authorization for the incidental take of these animals. This is because the members of the Japanese Federation were not U.S. citizens. The court cited section 101(a)(4) of the MMPA, which (at the time) set a separate “narrow exception for incidental, but not intentional, takings having a negligible impact on the species involved `by citizens of the United States while engaging in commercial fishing operations'” and explained this exception did not apply to the Japanese Federation.

Kokechik,

839 F.2d at 802. Unlike members of the Japanese Federation, as U.S. citizens seeking to pursue a “specified activity (other than commercial fishing) within a specified geographical region,” 16 U.S.C. 1371(a)(5)(A), (D), members of the Makah Tribe can seek separate authorizations for incidental take of WNP gray whales under the incidental take exception in section 101(a)(5), if needed. This option, which does not require an assessment of OSP, was not available to the Japanese Federation in

Kokechik.

For all these reasons, the holding in

Kokechik

is largely limited to the facts of that case in that NMFS authorized the taking of one species of marine mammal knowing that another species would be killed in violation of the law. The regulations I adopt in this document, by contrast, involve an extremely remote risk of lethal take and require legally-available authorization for any takes of WNP gray whales anticipated during the permitting process.

Comment 30:

AWI comments that the Assistant Administrator must determine whether the take of a WNP gray whale can be authorized prior to issuing the waiver.

Response:

The take of WNP gray whales cannot be authorized in this proceeding, but the take of WNP gray whales may be authorized under other provisions of the MMPA. To the extent that AWI contends that I must consider effects on WNP gray whales, I have done so in accordance with section 103(b) of the MMPA. In conjunction with this review, I have concluded that the Makah are not prohibited from applying for an ITA under section 101(a)(5) of the MMPA for the incidental take of WNP gray whales, if necessary.

Comment 31:

AWI comments that NMFS cannot rely on the subjective intent of the Tribal hunters to transform deliberate take into incidental take and that doing so would impose a

mens rea

or mental state requirement in the statute that does not exist.

Response:

As explained in response to comment 22, there are exceptions in section 101(a)(5) for “incidental, but not intentional taking” that meets certain criteria and has been authorized by NMFS. The statute uses the phrase “not intentional” in these exceptions. The intent of Makah whalers is most certainly relevant to whether their actions are “not intentional.”

That mental state is not an element of civil violations of the take provision has no bearing on whether the exceptions for “incidental, but not intentional, taking” in section 101(a)(5) of the MMPA apply. Mental state is relevant to the exceptions for “incidental, but not intentional, taking,” but need not be proven to establish a

prima facie

violation of the take prohibition. AWI's comment conflates the distinction between the elements of a civil violation of the take prohibition and the requirements associated with certain exceptions.

Comment 32:

AWI cites two decisions,

Black

v.

Pritzker,

121 F.Supp.3d 63 (D.D.C. 2015) and

Pacific Ranger

v.

Pritzker,

211 F.Supp.3d. 196 (D.D.C. 2016), from the U.S. District Court for the District of Columbia involving NOAA enforcement actions against purse seine fishing vessels that were unlawfully taking marine mammals and comments that NMFS's position regarding the incidental take of WNP gray whales is inconsistent with its position in those cases.

Response:

NMFS's position with respect to the Makah waiver and implementing regulations differs from the positions it took in

Black

and

Pacific Ranger

because those cases involved facts and law that are very different from the circumstances here. Both cases involved respondents in NOAA civil administrative penalty cases who appealed to the district court after an ALJ found they intentionally encircled marine mammals with purse seine nets while tuna fishing.

Pacific Ranger,

211 F. Supp. 3d at 221;

Black,

121 F. Supp. 3d at 101-102. In both cases, the court rejected the respondents' arguments that the exception in section 118 of the MMPA for incidental take of marine mammals during commercial fishing operations authorized their conduct.

Pacific Ranger,

211 F. Supp. 3d at 221;

Black,

121 F. Supp. 3d at 87-88, 101-102.

Makah whaling is not commercial fishing and does not involve the exception to the MMPA's take prohibition that was at issue in

Black

and

Pacific Ranger.

Hunting and training activities under the final waiver and regulations involve the exception in section 101(a)(3)(A) that allows NMFS to waive the moratorium and authorize intentional take of ENP gray whales. NMFS may also utilize the exception in section 101(a)(5) for specified activities other than commercial fishing for “incidental, but not intentional, taking” to authorize the incidental take of WNP gray whales, if needed.

If a hunt permit is issued, the Makah will be authorized to hunt ENP gray whales and intentionally take these animals. Depending upon what activities are authorized under a hunt permit, the Makah may accidentally pursue the wrong type of whale (WNP gray whales, as opposed to ENP gray whales) during the course of authorized hunting and training. Such accidental take would be “incidental, but not intentional, taking” of WNP gray whales and could be authorized under section 101(a)(5).

Black

and

Pacific Ranger

did not involve a situation where the purse seiners were authorized to encircle one type of marine mammal and accidentally encircled the wrong type. The respondents in

Black

and

Pacific Ranger

were not authorized to intentionally encircle any marine mammal. When they did, NMFS's position remains that they violated the MMPA and could not avail themselves to the incidental take exception for commercial fishing under section 118 of the MMPA. Makah whaling involves different circumstances and separate exceptions under the MMPA.

Comment 33:

AWI comments that the disadvantage test is inapplicable to the take of WNP gray whales. They contend that the relevant inquiry is whether take of WNP gray whales can be authorized under one of the MMPA's exceptions to the take moratorium.

Response:

I agree that the disadvantage test does not apply to WNP gray whales in this proceeding. The plain language of section 103(a) makes clear that the disadvantage test only applies to take regulated under section 103(a). Section 103(a) confers authority on NMFS to regulate taking at the species level or the stock level. NMFS must then “insure that such

taking will not be to the disadvantage of those species and population stocks.” 16 U.S.C. 1373(a). This means that if the takings are regulated at the stock level, then the take must not disadvantage the stock. Conversely, if takes are regulated at the species level, the takes must not disadvantage the species. Here, NMFS has prescribed regulations at the stock level governing the take of ENP gray whales. Therefore, the disadvantage test applies to this stock only. The mere fact that other takes are considered, pursuant to NMFS's obligations under section 103(b), does not subject these takes to the disadvantage test or the other requirements associated with waiving the moratorium.

Hunt and Training Activities

Comment 34:

Several comments were received on the recommendation that the regulations prohibit an approach on a calf or an adult accompanying the calf, including concerns related to identifying a calf or cow-calf pair from a whaling canoe, impairing training activities, risk of inadvertent non-compliance, and the effects of an approach.

Response:

I have adopted the recommended provision with modifications to prohibit approaches on calves or adult gray whales accompanying calves

only after

a calf or adult accompanying a calf has been identified. This will maintain the intent of the modification while ensuring the regulations do not set unrealistic expectations and result in inadvertent non-compliance.

Comment 35:

Several commenters expressed concern about safety risks associated with the hunt.

Response:

Safety concerns are thoroughly addressed in the FEIS and will be further evaluated at the hunt permit stage.

Comment 36:

A number of comments were received on the humaneness of the hunt.

Response:

Section 3(4) of the MMPA defines “humane” as “that method of taking which involves the least possible degree of pain and suffering practicable to the mammal involved.” Section 104(b)(2)(B) of the MMPA then provides that, before issuing a permit, NMFS must determine that the hunting method is “humane.” Issues related to the humaneness of the hunt will be addressed at the permitting stage.

Comment 37:

AWI contends that the tribunal recommended, and AWI supports, that the regulations be amended to provide that hunt permits be issued on a yearly basis, citing RD at 147

Response:

This comment mischaracterizes the tribunal's Recommended Decision, which states:

NMFS proposes to limit the duration of an initial hunt permit to no more than three years, and the duration of any subsequent permit to no more than five years. § 216.113(a)(1). However, a permit can be granted for as little as one year. This will allow for adaptive hunt management, since NMFS would take into account the results of previous hunts when determining whether to issue subsequent permits. This proposal is reasonable and clearly in accordance with the conservation objectives of the MMPA.

RD at 147. While the Recommended Decision notes that permits can be issued for a duration of 1 year, the tribunal did not recommend that the regulations be amended. Rather, the tribunal supported the structure proposed by NMFS, as the regulations recommended in Appendix B to the Recommended Decision maintain the structure proposed by NMFS. Tab 121B.

Comment 38:

AWI suggests including requirements for determining the proportion of WNP gray whales in the hunt area presumed to be WNP whales for the purposes of accounting for takes of gray whales under the hunt management requirements and restrictions.

Response:

If takes of WNP gray whales are anticipated, the Tribe may apply for an ITA under the MMPA. An ITA application must include specific information, including “the suggested means of accomplishing the necessary monitoring and reporting . . . .” 50 CFR 216.104. Under section 101(a)(5) of the MMPA, NMFS must set forth requirements pertaining to the monitoring and reporting of any take. The nature of those requirements, including whether or how to account for the proportion of WNPs present in the hunt area, would be determined as part of the ITA process.

Comment 39:

Some commenters suggest that only traditional hunting methods should be permitted.

Response:

The Makah Tribe proposes to use both traditional and modern methods for hunting whales to balance the preservation of traditional cultural methods with safety and the need for increased hunting efficiency. Section 104 of the MMPA requires that if the take moratorium is waived and animals are killed, the method of killing must be “humane,” which the MMPA defines as “that method of take which involves the least possible degree of pain and suffering practicable to the mammal involved.” 16 U.S.C. 1362(4). The use of modern technologies (

e.g.,

support vessel, rifle) will help ensure that the hunt is humane by reducing the time to death over using traditional measures.

Ecosystem and Cumulative Effects

Comment 40:

One commenter suggests that the effects of the action should have been considered at a different ecosystem scale.

Response:

As noted in the Recommended Decision, NMFS considered ecosystem impacts at several levels, and it was “reasonable for NMFS to conclude that the health and stability of the ecosystems in which gray whales function will not be adversely affected by the proposed waiver and regulations.” RD at 116.

Comment 41:

Several commenters comment on the range of anthropogenic threats that gray whales face and the importance that these threats be considered in combination.

Response:

Gray whales face many threats, including entanglement, marine debris, vessel strike, whale watching disturbance, ocean noise, and climate change. NMFS is working to address threats to gray whales and other marine mammals. While a cumulative effects analysis is not an express requirement for the MMPA waiver process, NMFS considered the cumulative effects of natural mortality and anthropogenic effects to whales as part of the NEPA analysis.

Comment 42:

MMC commented that in considering cumulative impacts, the tribunal's Recommended Decision took an overly narrow reading of the statutory requirements of section 103 of the MMPA in finding that “the MMPA does not mandate separate consideration of these factors during formal rulemaking proceeding.”

Response:

Hunting cannot be authorized or occur if the ENP gray whale stock is below its OSP. This provision ensures hunting in combination with other threats to ENP gray whales will not disadvantage the stock.

Comment 43:

A number of comments describe the role that whales play in the ecosystem; the interdependency of animal, human, and environmental health; and the importance to ensure the health and stability of the ecosystem.

Response:

Maintaining marine mammal stocks as a significant functioning element in the ecosystem of which they are a part and maintaining the health and stability of the marine ecosystem is a purpose and goal of the MMPA. The effects of a limited hunt of 25 whales over a 10-year period have been fully evaluated, and ENP gray whales are expected to continue to be a significant and functioning element of the ecosystem. The health and stability

of the ecosystem will be maintained under the final waiver and regulations.

Comment 44:

One commenter suggests that all reports on waiver activities should be made available for public review.

Response:

Per the regulations, the hunt report, annual approach report, and annual handicraft report will be maintained and made available for public review by NMFS. Other documentation may be available in accordance with the Freedom of Information Act and other Federal law.

The Treaty of Neah Bay of 1855

Comment 45:

Several groups, government agencies, and private citizens commented on the Recommended Decision supporting the Makah's treaty right to whale. Commenters note that the tribunal's Recommended Decision is consistent with the Federal trust responsibility. Others wrongly claimed that the Treaty is obsolete or irrelevant.

Response:

I support the Makah's treaty right and am adopting a final waiver and regulations that will allow the Tribe to exercise their right, in accordance with the MMPA.

Comment 46:

The Tribe notes their disagreement with the Recommended Decision's discussion of the Treaty of Neah Bay of 1855, which contends that the application of the Treaty is merely academic and not the controlling law. The Makah maintain that the “because the MMPA did not abrogate the Treaty, the MMPA and Treat

y

must be harmonized in evaluating whether the hunt may proceed.”

Response:

I have not adopted the parts of the Recommended Decision that found the Treaty of Neah Bay of 1855 is not relevant. This waiver and accompanying regulations enable the Tribe to exercise their treaty right in full compliance with the MMPA. To the extent the Tribe concludes that the regulations are not in accord with their treaty right, I have provided a process through which the Tribe may request a modification to the final regulations. Modifying the regulations through informal rulemaking may be possible and could be carried out in conjunction with permitting to streamline the process.

Comment 47:

Several commenters suggested that the Makah should not be permitted to use modern equipment when whaling.

Response:

The Treaty of Neah Bay does not prescribe particular whaling methods. In similar situations, courts have recognized that Tribes may use modern technology when exercising their treaty rights.

See, e.g., United States

v.

Washington,

384 F. Supp. 312, 407 (W.D. Wash. 1974). Allowing modern hunting techniques will also promote a safe and humane hunt.

Procedural Comments

Comment 48:

AWI and others comment that the tribunal's decision to issue the Recommended Decision before NMFS issued the SDEIS deprived them of their right to conduct cross-examination and submit rebuttal evidence.

Response:

To fulfill its obligations under NEPA, NMFS developed an SDEIS, which was completed after the tribunal issued the Recommended Decision. The prospect that additional information on gray whales may be generated after the hearing did not deny any rights under the APA to conduct cross-examination or submit rebuttal evidence.

The right to conduct cross-examination under the APA is not absolute. The parties to the hearing were entitled to present their “case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. 556(d). The procedural regulations governing this matter provide: “Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses.” 50 CFR 228.18(b). The term “witness” is defined in relevant parts as “any person who submits written direct testimony on the proposed regulations.” 50 CFR 228.2(b). AWI had the right and the opportunity to cross-examine every witness that submitted direct testimony during the hearing. No witnesses testified after the hearing. This process allowed for a full and true disclosure of the facts in accordance with NMFS's regulations and the APA.

AWI had an opportunity to submit rebuttal evidence at the hearing. After the hearing, AWI had an opportunity to submit rebuttal evidence multiple times, including during the comment period for the parties from November 27, 2023, to December 20, 2023. AWI submitted their comments after the deadline. I then provided the parties with an opportunity to respond to the comments of the other parties. This response period ran from December 20, 2023, to January 17, 2024, and provided an opportunity to rebut information submitted by the other parties. AWI took advantage of this opportunity. This process afforded AWI ample opportunity to submit rebuttal evidence in accordance with the APA.

Comment 49:

AWI comments that NMFS's decision to prepare an SDEIS after the formal rulemaking hearing shows that the tribunal's decision was not based on the best available science.

Response:

On February 27, 2020, NMFS explained in its Notice of Intent to prepare an SDEIS that “[b]ecause information concerning the ongoing 2019 UME was presented at the agency hearing but not expressly addressed in the 2015 DEIS, NMFS has determined that it would now benefit both the public and agency decision making to prepare a supplement to the DEIS.” 85 FR 11347. Because the 2015 DEIS did not include the subsequent scientific information that was available and presented to the tribunal at the formal rulemaking hearing in 2019, it was prudent for NMFS to prepare an SDEIS with that information. It was also prudent for NMFS to notify the public that the SDEIS would include “additional relevant information and will take into consideration the Administrative Law Judge's recommended decision.”

Id.

at 11348. NMFS regularly updates its marine mammal population estimates pursuant to the SAR process. NMFS could not ignore those estimates in the SDEIS and comply with its NEPA obligations. Recognizing that the tribunal's Recommended Decision may require additional analysis to satisfy NEPA obligations, NMFS gave notice that it would also take the Recommended Decision into account in the SDEIS. The tribunal's decision also included a recommendation that NMFS set a low abundance threshold for ENP gray whales. This recommendation warranted additional analysis under NEPA, and so it was appropriate for NMFS to give notice to the public that the SDEIS would consider the tribunal's Recommended Decision.

Comment 50:

AWI and another commenter contend that NMFS violated its hearing regulations and the MMPA by not completing the environmental analyses in the SDEIS before the formal rulemaking hearing.

Response:

None of the procedural regulations governing this matter expressly reference supplemental draft environmental impact statements or require that this document be a part of the record before a presiding officer issues a recommended decision. The procedural regulations do reference draft environment impact statements in two places. First, NMFS was required to publish a notice of hearing under 50 CFR 228.4. In addition to other statements, the notice must state: “If a draft Environmental Impact Statement is required, the date of publication of the

draft and the place(s) where the draft and comments thereon may be viewed and copied.” 50 CFR 228.4(b)(6). NMFS complied with this requirement on April 5, 2019. 84 FR 13604. Second, under 50 CFR 228.16(b), the tribunal was required to introduce the “the draft Environmental Impact Statement” into the record at the “commencement of the hearing.” 50 CFR 228.16(b). The tribunal did this. Tab 101 at 11-12.

I do not interpret the term “draft Environmental Impact Statement” in 50 CFR 228.16(b) and 228.4(b)(6) to apply to any document other than a “draft Environmental Impact Statement.” The DEIS and SDEIS are separate documents. The DEIS was issued on March 13, 2015. 80 FR 13373. The SDEIS was issued on July 1, 2022. 87 FR 39517. That the title of the SDEIS includes the term “draft” does not mean the SDEIS and the DEIS are one and the same for the purposes of the hearing. Indeed, NEPA's implementing regulations describe draft, final, and supplemental environmental impact statements separately. 40 CFR 1502.9. Since an SDEIS is not the same as a DEIS, the tribunal was not required to make this document a part of the record before rendering the Recommended Decision.

Furthermore, the commenters' argument is not consistent with the structure of the procedural regulations. Sections 228.16(b) and 228.4(b)(6) of the procedural regulations apply at specific junctures in the waiver process. These provisions do not impose an ongoing obligation on NMFS to remand a case whenever NMFS supplements its environmental analyses in accordance with NEPA.

Section 103(d) of the MMPA is similar and only applies at a specific juncture in the waiver process. This section requires NMFS to “publish and make available to the public” certain scientific statements and studies “either before or concurrent with the publication of notice in the

Federal Register

of his intention to prescribe regulations under this section.” 16 U.S.C. 1373(d). Section 103(d) does not impose additional publication requirements on NMFS after the notice in the

Federal Register

announcing proposed regulations. NMFS complied with the requirements in section 103(d), by issuing a

Federal Register

notification on April 5, 2019. 84 FR 13604. This

Federal Register

notification also included the statements required by section 103(d). Nothing further is required.

The commenters are misconstruing specific procedural requirements that do not apply at this stage in the process with the question of whether a remand is warranted. I explain why a remand is not warranted in section IX of this Final Decision.

Comment 51:

Citing 40 CFR 1502.9(c)(4) (1978), one commenter contends that NEPA regulations required NMFS to publish an SDEIS before the hearing.

Response:

The 1978 NEPA regulations provide that agencies shall “shall prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft and final statement unless alternative procedures are approved by the Council.” 40 CFR 1502.9(c)(4). This language means that the same NEPA procedures applied to the development of the SDEIS as applied to the development of the DEIS. In accordance with this requirement, NMFS prepared an SDEIS, filed the SDEIS with the EPA, published the SDEIS, and sought public comment on the SDEIS. 87 FR 39517, July, 1, 2022; 87 FR 39804, July 5, 2022.

Comment 52:

AWI comments that the “Assistant Administrator cannot unilaterally consider extra record evidence in making her waiver decision that was not subject to rebuttal or cross examination at a formal hearing before the presiding officer.”

Response:

All evidence forming the basis for my decision was on the record as provided by the governing APA provisions and implementing regulations. I explained how AWI's rights to submit rebuttal evidence and conduct cross examination under the APA were vindicated in response to comment 48. NMFS published additional documents related to this rulemaking after the hearing was held pursuant to obligations under NEPA, the ESA, and other Federal law and provided opportunities for comment. AWI has taken advantage of all the opportunities for comment that were available after the hearing, and I have taken their comments into consideration.

Comment 53:

AWI comments that in “the interest of a fair and impartial hearing process,” the Assistant Administrator should have remanded the Recommended Decision to the tribunal until the SDEIS was completed “and reopen the record for further factual development in accordance with the MMPA and APA.”

Response:

As explained in section IX of this Final Decision, I considered whether a remand was warranted and have decided not to remand the case because the additional information developed after the hearing is not significant enough to compel different conclusions than those I have reached based on the evidence in the record assembled by the tribunal.

Comment 54:

One commenter suggests that the Recommended Decision is at odds with the fundamental requirement of NEPA to lead to informed decision because it was not rendered based on the information in the SDEIS.

Response:

As explained in my responses to comments 50 and 51, the SDEIS was not required to be part of the record before the tribunal. As noted in section IX of this Final Decision, the SDEIS and FEIS informed my decision on whether a remand was warranted. Using the SDEIS and FEIS in this way is consistent with NEPA.

Comment 55:

Citing sections 101(a)(3)(A) and 103(d), one commenter suggests that the parties are entitled to request a hearing to consider the new evidence in the SDEIS.

Response:

Nothing in these sections of the MMPA specifically address rehearings or remands for additional evidence. For the reasons I explain in section IX of this Final Decision, a remand is not warranted.

Comments on the Implementing Regulations

Comment 56:

A number of comments were received on specific changes to the proposed regulations. This included, among others, comments on restructuring and clarifying the regulations, an abundance threshold for ENP gray whales, data availability, prohibitions, and hunt management.

Response:

I have addressed changes to the regulations in section VII of this Final Decision. A low abundance threshold for ENP gray whales is addressed in comment 12. Comments not specifically addressed in section VII of this Final Decision are addressed in this section.

Comment 57:

Commenters expressed concern that the Makah Tribe would commercialize the hunt, noting there is a market for whale meat. Another comment indicated that the Recommended Decision's provisions on the use of edible and non-edible parts clearly identify how gray whale products can be used and by whom.

Response:

The regulations issued in this document prohibit selling, offering for sale, or purchasing any gray whale products, except Makah Indian handicrafts that have been marked and certified.

Comment 58:

One commenter suggests a clause requiring that the United States and Canadian management teams communicate gray whale data to ensure an accurate gray whale count. Another commenter noted

the tribunal's Recommended Decision does not acknowledge that ENP gray whales are transboundary, is written as if the United States has unilateral authority over the management of gray whales, and disregards the assessment by COSEWIC.

Response:

NMFS works closely with our international partners on marine mammal management and science to help ensure the best scientific data are available. This close collaboration obviates the need for a requirement to communicate in these regulations. The Recommended Decision acknowledges that gray whales are transboundary stock within multiple management jurisdictions (see, for example, RD at IV.D.1.b, VI.A.2), and it reflects the assessment by COSEWIC (see RD at 62-67).

Comment 59:

AWI recommends that the Assistant Administrator consider imposing geographic restrictions on where consumption is allowed and ensure that law enforcement jurisdictions are properly educated on the regulations. AWI recommends NMFS consider limiting the geographic scope to Washington State given the Recommended Decision accepted NMFS's assertion that NOAA Office of Law Enforcement agents or Washington Department of Fish and Wildlife officers would be available to enforce these provisions.

Response:

I disagree that further restrictions are needed to facilitate enforcement. The NOAA Office of Law Enforcement has jurisdiction beyond Washington State and works closely with states through joint enforcement agreements throughout the country to help ensure compliance with laws administered by NMFS.

Comment 60:

AWI suggests amending § 216.116 to specify that the 2 pound per person limit applies to all circumstances in which edible whale products may be consumed outside of reservation boundaries.

Response:

There is no 2-pound limit at Tribal members' residences to accommodate storage of edible gray whale products.

Comment 61:

AWI suggests that § 216.113 should specify that if the Tribe has not complied fully with the regulations and all prior permit terms and conditions, a hunt permit should not be issued.

Response:

The regulations specify the “Regional Administrator must determine that the Makah Indian Tribe has complied with the requirements of these regulations 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.” The appropriate response to non-compliance depends on the nature of the infraction and will be addressed if an infraction occurs.

Comment 62:

AWI suggests adding “will be reported as an infraction to the International Whaling Commission” to § 216.115(b)(4) Unauthorized strikes.

Response:

I disagree that this language is necessary. NMFS will comply with all reporting requirements of the IWC should an unauthorized strike occur.

Comment 63:

One commenter suggests that § 216.118(a)(1) be amended to specify “For every whale struck, the tribal hunt observer must make every reasonable attempt to collect samples for genetic sampling as quickly as possible without compromising the safety of the hunt.”

Response:

As described in section VII of this Final Decision, I have clarified that individuals authorized to collect biological samples for identification must make every reasonable attempt to do so without compromising the safety of the hunt.

Other Comments

Comment 64:

Several commenters suggest that the Tribe does not have a cultural or subsistence need for whale products and non-lethal alternatives should be considered to maintain the cultural connection to marine mammals. Other commenters recognize the relationship between the Tribe and whales, their cultural traditions, and the importance of resuming a whale hunt.

Response:

I defer to the Tribe on their cultural and subsistence needs. Although whaling may seem outdated to some people, the Makah Tribe, as a sovereign nation, decides which cultural traditions it pursues, within the bounds of applicable law. In the Treaty of Neah Bay of 1855, the Makah Indian Tribe secured the right to hunt whales. Treaties with Indian Tribes are Federal law, coequal with all other Federal law. Pursuant to obligations under NEPA, NMFS considered non-lethal alternatives in the FEIS and, for the reasons described therein, rejected those alternatives.

Comment 65:

Some commenters suggest that the issuance of a waiver will affect international relations and potentially have precedential effects on whaling in the United States and worldwide.

Response:

The decision to waive the take moratorium is specific to the request submitted by the Makah Tribe and is consistent with the approval they already received from the IWC, first approved in 1997, to hunt ENP gray whales. For roughly 20 years, the Makah Tribe has not been able to use their portion of the IWC quota due to the need to comply with MMPA procedures, and as a result, the Makah's quota was temporarily provided to Chukotkan Natives in the Russian Federation. Section 103(b)(2) requires NMFS to consider international treaties and agreements, not international relations, in making a determination to waiver the moratorium on take. NMFS did examine the potential for authorization of a gray whale hunt to have precedential effects on hunts for marine mammals in the United States and whaling worldwide in the DEIS. Tab 90F at 4:260-273.

Comment 66:

Several commenters express concern about the safety of consuming whale meat and the danger consumption poses to public health.

Response:

The FEIS presents the available information regarding the nutrients and contaminants found in gray whale products. This information is available to the Makah Tribe for consideration when assessing the potential risks of consuming gray whale blubber.

Comment 67:

PCPW comments that the WNP and PCFG are similar “whale stocks” (

e.g.,

small population size, different migratory patterns and feeding habits, genetic differences) but are viewed and managed differently.

Response:

WNP gray whales are a depleted stock under the MMPA and listed as endangered under the ESA; PCFG gray whales are a feeding aggregation within the more abundant ENP stock (see RD at IV.D). While both the WNP and PCFG populations are small relative to the overall abundance of ENP gray whales, there are a number of differences that warrant different management.

Comment 68:

One commenter notes that the phrase “best available science” is used repeatedly throughout the tribunal's Recommended Decision, that the term needs to be defined, and the term “independent” should perhaps be part of that.

Response:

Sections 101(a)(3)(A) and 103(a) of the MMPA require the use of the best scientific evidence available in this proceeding. The Recommended Decision describes this standard, the available scientific information, and how it was considered (see RD IV.B.). I agree with the discussion of these issues in section IV.B of the Recommended Decision.

Comment 69:

PCPW references a United Nations' report that recognized the importance of animal culture in conservation, indicating that the report finds that different social groups within a species deserve special protection. PCPW suggest that the PCFG are more

than a feeding group and are a cultural group.

Response:

It is not clear what report PCPW is referencing, and no report was provided. Under the MMPA, the PCFG are a feeding aggregation within the ENP stock of gray whales. The regulations include a number of measures to minimize impacts to the PCFG.

Comment 70:

PCPW comments that NMFS “speculates” on the behavior of whales in different locations, and conditions, and questions the evidence used to support the conclusions drawn.

Response:

NMFS has drawn reasonable conclusions and adopted a conservative management framework for the Makah hunt based on the best available scientific evidence. The parties opposing the hunt have had numerous opportunities to rebut the evidence NMFS relied on in support of the waiver and implementing regulations but have failed to provide better scientific information that undermines the data and analysis on which NMFS relies.

Comment 71:

A number of individual commenters expressed general disagreement with the Recommended Decision. PCPW and AWI are generally opposed to the Recommended Decision.

Response:

I have largely affirmed the Recommended Decision. Sections VII through VIII of this Final Decision describe where I have/have not affirmed the Recommended Decision.

Comment 72:

A number of commenters noted that the requirements for a waiver have been satisfied, expressed general support for the Recommended Decision, and commented that it was based on the best available science. WCR, MMC, and the Makah Tribe generally support the Recommended Decision.

Response:

I have generally affirmed the Recommended Decision and adopted it as part of this Final Decision, except as explained herein.

Comment 73:

Commenters note that more recent information has been published (

e.g.,

ENP abundance) since the Recommended Decision. Another commenter notes that estimates of the OSP range may have changed.

Response:

Additional scientific information and analysis developed following the Recommended Decision is discussed in section IX of this Final Decision.

VI. Measures in the Final Regulations

This section provides a general overview of the regulations governing the hunt. As described in Section II of this Final Decision, two key management goals shaped many of the provisions in the proposed and final regulations: (1) ensuring that hunting does not reduce the ENP gray whales' PCFG abundance below recent stable levels and (2) limiting the likelihood that Tribal hunters would strike or otherwise harm a WNP gray whale.

Management measures in the final regulations include:

•

Alternating Hunt Seasons:

Winter/spring hunts would occur during the migration season (December 1 through May 31) to reduce risk to PCFG whales, which are more prevalent in the U&A in the summer and fall during their feeding season. Summer/fall hunts would occur during the feeding season (July 1 through October 31) to reduce risk to WNP whales, which are only known to occur in the U&A during the migratory season. There would be a 1-month gap after a summer/fall hunt and a 13-month gap after a winter/spring hunt.

•

Maximum Annual Strike Limits:

A maximum of three strikes may be authorized during winter/spring hunts and two during summer/fall hunts. Thus, up to 25 whales may be struck or struck and lost over the 10-year waiver. Unsuccessful strikes are not counted against this limit.

•

Maximum Struck and Lost Limits:

A hunt permit may authorize no more than three gray whales to be struck and lost in any calendar year.

•

Maximum PCFG Mortality Limits:

Over the 10-year waiver period, no more than 16 PCFG whales may be struck. Of these, no more than 8 may be female PCFGs. NMFS will, taking into account the abundance of PCFG whales, notify the Tribe prior to the beginning of a hunt season of the maximum number of PCFG whales, including females, that may be struck during the upcoming hunting season.

•

Maximum Annual Landing Limits:

A hunt permit may authorize landing (

i.e.,

bringing a gray whale or any products thereof onto the land) no more than three whales during winter/spring hunts and one whale during summer/fall hunts. That is, no more than 20 whales can be landed over the waiver period.

•

Maximum Annual Limits on Unsuccessful Strike Attempts:

Unsuccessful strike attempts are any attempt, including training harpoon throws, to strike a gray whale while hunting that does not result in a strike. A hunt permit may authorize no more than 18 unsuccessful strike attempts during winter/spring hunt and no more than 12 unsuccessful strike attempts during summer/fall hunts.

•

Maximum Annual Approach Limits:

A hunt permit may authorize no more than 353 approaches, including both hunting and training approaches, each calendar year, of which no more than 142 may be on PCFG whales.

•

PCFG Abundance Trigger:

No hunting will be authorized for an upcoming season if the most recent PCFG population estimate or the projected estimate for the upcoming hunt season is less than 192 whales or the most recent or projected minimum abundance estimate is less than 171 whales.

•

ENP Low Abundance Thresholds:

Hunting ceases if the ENP abundance falls below the stock's OSP.

•

Take of WNP whales:

Prior to permitting hunt activities in the winter/spring hunt season, NMFS must determine if take of WNP whales is anticipated and, if so, must include a condition in the permit requiring separate take authorization for WNP gray whales during the winter/spring hunt. If a WNP whale is accidentally killed during a hunt, hunting must cease until measures are put in place to prevent any further activity that could result in another lethal take of a WNP gray whale.

•

Accounting and Identification of Gray whales:

The final regulations establish procedures to determine whether a gray whale approached or struck is a WNP, PCFG, or non-PCFG gray whale, or cannot be identified. If a gray whale cannot be identified, the regulations include measures for presuming the whale to be a PCFG whale.

•

Management of Handicrafts:

The final regulations include marking and certification requirements for handicrafts as well as measures to regulate when handicrafts may be shared, bartered, traded, or sold.

•

Monitoring, Reporting, and Recordkeeping:

Certified Tribal hunt observers must accompany each hunt and maintain hunt logs, including information on approaches, attempted strikes, and strikes. The Tribe is required to submit an incident report within 48 hours of a gray whale being struck, a hunt report at the end of each season, an annual approach report, and an annual handicraft report. After receiving an incident report documenting that eight gray whales have been struck, NMFS will evaluate the photo-identification and notification requirements and the humaneness of the hunt.

VII. Changes to Final Regulations

The tribunal recommended changes to the proposed regulations, which are described in the Recommended Decision and Appendix B to the Recommended Decision. Changes made to the regulations described in

Appendix B to the Recommended Decision are described in this section of this Final Decision.

In sections V.II.B to C of the Recommended Decision, the tribunal recommended certain modifications to the proposed regulations and addressed an unopposed motion to amend the regulations to clarify the definition of strike and expand certain off-reservation use of edible gray whale products. I agree with and affirm the recommendations in sections V.II.B to C of the Recommended Decision as part of this Final Decision, with the exceptions noted below.

Section 216.112 Definitions

I redefined the odd-year hunt as the summer/fall hunt and the even-year hunt as the winter/spring hunt. This change was made to allow the initial hunt permit to start in either season regardless of whether the permit was issued in an odd or an even year, providing flexibility in the timing of the initial hunt season. Use of the “odd-year”/“even-year” language might inadvertently and unnecessarily restrict the time that a hunt could commence upon receipt of all necessary authorizations. This change maintains the alternating year structure of the regulations but allows for a hunt permit to be issued at the earliest possible time. This change does not affect the hunt structure (

e.g.,

number of hunts that may be permitted, months in which hunting can occur, and the gap between hunt seasons) and, therefore, has no impact beyond what was considered in the proceedings. This is also consistent with the tribunal's recommendation that the odd-year (summer/fall) hunts be allowed to commence at the soonest appropriate time. RD at 148.

I slightly modified the definitions of “strike” and “struck” for clarity. Prior to the hearing, WCR filed a motion to clarify, in response to AWI's argument that the definition was ambiguous, that multiple strikes on the same whale would count as a single strike. Tab 86. The tribunal recommended that the regulations adopt WCR's amendments and also specify “Once a whale is struck, subsequent penetrations of the same whale's skin during the hunt for the purpose of killing or landing that whale are considered to be part of the initial strike.” RD at 141. I have adopted this recommendation with a slight modification. In their comments on the Recommended Decision, the Makah Tribe questioned whether this additional sentence may create confusion, and they believe it is unnecessary. They noted that it is unclear whether subsequent harpoon strikes to attach floats to keep the whale at surface would be “for the purpose of killing or landing the whale.” The Tribe recommended the language be simpler, such as “Multiple strikes on the same whale are considered a single strike.” I agree with the Makah Tribe and have adopted their recommendation.

I have added definitions of “export” and “share.” The regulations recommended by the tribunal include provisions related to export of and sharing of gray whale products; therefore, I added a definition of export and share to provide clarity. “Export” in the regulations mean “the act of sending goods from one country to another.” The definition of share includes “gift” and is similar to how gift was defined in the preamble to the proposed regulations (

i.e.,

voluntarily transfer to another person without compensation). 84 FR 13604, April 5, 2019. Therefore, I changed instances of the term “gift” to “share” in the final regulations for consistency.

Section 216.113 Issuance and Duration of Permits

I have added a requirement at § 216.113(a) that the Makah Tribe specify the proposed duration of the permit in its application. The duration of the initial permit and subsequent permits can be up to 3 years and 5 years, respectively. This addition will provide clarity on the permit duration sought by the Tribe. I have also added requirements that the Makah Tribe, in its application for a hunt permit, must include any permit conditions they propose and a justification for the proposed conditions. In addition, if the Tribe is seeking a modification from any of these regulations, the Tribe must specify the modification and the justification for that modification. Modifying the regulations through informal rulemaking may be possible and could be carried out in conjunction with permitting.

I have specified at § 216.113(b)(2) that the Regional Administrator may not authorize hunting, hunting approaches, training approaches, or training harpoon throws from December 1 through May 31 unless: (1) the Tribe has obtained separate authorization under the MMPA or (2) the Regional Administrator, in consultation with the Office of Protected Resources, has determined take of WNP gray whales is not anticipated. My rationale for adding this provision is described in section VIII of this Final Decision. The tribunal recommended that the final regulations include provisions that require that the Tribe obtain an ITA prior to authorizing hunt activities when WNP gray whales may be present. RD at 136-137. However, the Tribe may include in their permit application a hunt plan that avoids the take of WNP whales, in which case an ITA is not necessary. This change provides flexibility for NMFS to evaluate the Tribe's permit application and make the determination whether or not an ITA is needed based on the best available science at the time, rather than the information presented during the formal rulemaking hearing in 2019.

The tribunal concluded that the evidence weighs in favor of an overall abundance threshold and recommended the Secretary consider setting one in the final regulations. RD at 150-151. I have included an abundance threshold at § 216.113(b)(3) prohibiting lethal hunting unless the stock is within its OSP and requiring the Regional Administrator to ensure the stock is within OSP before issuing a hunt permit. The Regional Administrator is also required to ensure that the level of hunting authorized under the permit will not cause the stock to fall below its OSP.

Section 216.114 Hunt Management Requirements and Restrictions

Where appropriate, I have added “ENP” before gray whales to clarify that the hunt permit may only authorize take of ENP gray whales. The two hunt seasons (described as odd- and even-year hunts in the proposed rule and the Recommended Decision) are carried over into the final rule and have been renamed to summer/fall and winter/spring. I have provided additional clarity on the alternating hunt structure under § 216.114(a) by articulating when hunts may be authorized based on whether the initial hunt season permitted is a summer/fall or winter/spring.

Unsuccessful strike attempt limits at § 216.114(b) are carried over from the proposed rule and Recommended Decision, and training harpoon throws continue to count against the unsuccessful strike attempt limits. Under the Recommended Decision, training harpoon throws could be authorized between July 1 and October 31 in odd-number years and in any month in even-number years. The final regulations maintain the alternating pattern but decouple it from the even and odd year framework.

The final regulations specify that training harpoon throws may be authorized between July 1 and October 31 in years of summer/fall (previously odd-year) hunts and at any time during winter/spring hunts as well as the subsequent 7 months of the calendar year in which those winter/spring

(previously even-year) hunts occur. Under the proposed regulations, as an artifact of the even/odd year structure, training harpoon throws could not be authorized in December of the winter/spring hunt. There could be unsuccessful strike attempts in December, but those unsuccessful strike attempts could not be training throws. The final regulations allow training throws to be included within the unsuccessful strike attempts in December without changing the unsuccessful strike attempt limits. Unsuccessful strike attempts could occur in December of winter/spring hunts under the Recommended Decision, so this change does not change the impacts to gray whales or other ecosystem components. Rather, these changes provide flexibility when authorizing hunt seasons and training harpoon throws while maintaining the intent of the structure of the Recommended Decision.

I have also added a requirement, specified at § 216.114(d), that hunting must cease when the Makah Tribe is notified in writing that the ENP gray whale stock has fallen below its OSP. Hunting may not resume until the Tribe is notified in writing that the stock has obtained OSP. This provision is consistent with the tribunal's recommendation to specify a low abundance threshold below which hunting would cease. RD at 150-151.

Section 216.115 Accounting and Identification of Gray Whales

AWI commented on the importance of identifying gray whales subjected to hunt activities and suggested adding a provision that every reasonable effort should be made to collect genetic samples. Accounting and identification of gray whales are important to monitoring the hunt and, as such, the WCR included requirements for accounting and identification of gray whales in the proposed rule. As specified in § 216.115(b), genetic data may be used in the identification and accounting of gray whales. Thus, I have specified in § 216.115(a) that personnel authorized by NMFS to collect biological samples must make every reasonable attempt to collect samples for genetic testing from struck whales without compromising the safety of the hunt. This addition makes clear that such personnel should make every reasonable effort to collect biological samples but should not put themselves or the Tribal hunters in an unsafe situation.

Section 216.116 Use of Edible and Non-edible Whale Products

I added “shared for” before “consumption” in § 216.116(a)(1)(ii)(A) to clarify this requirement. I added “transport” to § 216.116(a)(1)(iii) as this omission was an oversight and the change aligns the authorization with the corresponding prohibitions in § 216.117.

Section 216.117 Prohibited Acts

The tribunal recommended prohibiting approaches on gray whale calves or adult gray whales accompanying calves, in addition to the proposed prohibitions on strikes and training throws. RD at 154. Accurately identifying a calf at 100 yards (91.5 m) can be complicated by the whale's behavior, the observer's experience, and the environmental conditions. The Makah Tribe commented, in part, that this recommendation, if adopted, could lead to an inadvertent violation of regulations. To address this recommendation while ensuring the regulations do not set unrealistic expectations on the whaling crew or result in inadvertent noncompliance, I have amended the regulations at § 216.117(a)(6) and (7) to prohibit approaches on calves or adult gray whales accompanying calves only after a member of the whaling crew has identified a calf or adult accompanying a calf.

I have also added a prohibition at § 216.117(a)(14) on hunting after notification by the Regional Administrator that the ENP gray whale population has fallen below OSP. This addition aligns the requirements under § 216.113(b)(3) and is consistent with the tribunal's recommendation to include a low abundance threshold. RD at 150-151.

To the exceptions on prohibited use at § 216.117(a)(19)(ii), I clarified that “a product that has been fashioned into a Makah Indian handicraft” includes both products that have been marked and certificated per the regulation and those that have not. I clarified the language in § 216.117 related to the use of edible and non-edible gray whale parts. I changed “gift” to “share” for consistency.

I added “consume” to § 216.117(b)(2) as this omission was an oversight and the change aligns the prohibition with the corresponding authorization in § 216.116(a)(3). In § 216.117(b)(6), I clarified the exception by referring to § 216.116(a)(2)(iii) and (iv), which corresponds to the use authorizations for handicrafts for any person who is not an enrolled memb

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