Rule2024-12669
Regulations Governing the Taking of Marine Mammals
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 18, 2024
Effective
June 18, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
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[Federal Register Volume 89, Number 118 (Tuesday, June 18, 2024)]
[Rules and Regulations]
[Pages 51600-51642]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-12669]
[[Page 51599]]
Vol. 89
Tuesday,
No. 118
June 18, 2024
Part II
Department of Commerce
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National Oceanic and Atmospheric Administration
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50 CFR Part 216
Regulations Governing the Taking of Marine Mammals; Final Rule
Federal Register / Vol. 89, No. 118 / Tuesday, June 18, 2024 / Rules
and Regulations
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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.
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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 Sec.
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: <a href="https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt">https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt</a>-chronology or you may request copies
by email from <a href="/cdn-cgi/l/email-protection#a3c6cfcfc6cd8dc8c6c2cdc6e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="d1b4bdbdb4bfffbab4b0bfb491bfbeb0b0ffb6bea7">[email protected]</span></a>.
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
[[Page 51601]]
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
[[Page 51602]]
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[deg] N latitude to 52[deg] 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
[[Page 51603]]
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. (<a href="https://www.fisheries.noaa.gov/s3/2021-09/recommended-decision-19nmfs0001.pdf">https://www.fisheries.noaa.gov/s3/2021-09/recommended-decision-19nmfs0001.pdf</a>) 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.
[[Page 51604]]
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
[[Page 51605]]
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
[[Page 51606]]
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
[[Page 51607]]
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.'' <a href="https://www.merriam-webster.com/dictionary/such">https://www.merriam-webster.com/dictionary/such</a> (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
[[Page 51608]]
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
[[Page 51609]]
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
[[Page 51610]]
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
Sec. 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
[[Page 51611]]
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
[[Page 51612]]
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
[[Page 51613]]
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
[[Page 51614]]
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
[[Page 51615]]
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. Sec. 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
[[Page 51616]]
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 Treaty 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
[[Page 51617]]
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
[[Page 51618]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 51619]]
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:
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> ENP Low Abundance Thresholds: Hunting ceases if the ENP
abundance falls below the stock's OSP.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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
[[Page 51620]]
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 51621]]
(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 Sec. 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 Sec. 216.115(b), genetic data may be used in the
identification and accounting of gray whales. Thus, I have specified in
Sec. 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 Sec.
216.116(a)(1)(ii)(A) to clarify this requirement. I added ``transport''
to Sec. 216.116(a)(1)(iii) as this omission was an oversight and the
change aligns the authorization with the corresponding prohibitions in
Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 216.117(b)(2) as this omission was an
oversight and the change aligns the prohibition with the corresponding
authorization in Sec. 216.116(a)(3). In Sec. 216.117(b)(6), I
clarified the exception by referring to Sec. 216.116(a)(2)(iii) and
(iv), which corresponds to the use authorizations for handicrafts for
any person who is not an enrolled member of the Makah Indian Tribe.
I have clarified Sec. 216.117(b)(6) by removing the text ``unless
the product has been fashioned into a Makah Indian handicraft and was
shared by or with, or bartered from or to, an enrolled member of the
Makah Indian Tribe'' and, instead referencing Sec. 216.116(a)(2)(iv).
Section 216.118 Requirements for Monitoring, Reporting, and
Recordkeeping
I amended Sec. 216.118(a)(1) to clarify that the certified Tribal
hunt observer must make every reasonable attempt to collect digital
photographs of every whale approached in response to comments on the
Recommended Decision. This change makes clear that hunt observers are
not required to put themselves or the Tribal hunters in an unsafe
situation to collect digital photographs.
Section 216.119 Expiration and Amendment
I clarified that the waiver period begins the first day of the
first season after issuance of the initial hunt permit. I also added a
provision to allow for a split hunt season. If the initial hunt season
is not authorized for the full duration (either December 1 through May
31 if a winter/spring hunt or July 1 through October 31 if a summer/
fall hunt), the remainder of the season may be authorized during the
final year of the waiver period. This provision will allow flexibility
if the initial permit is issued part way through a hunt season.
VIII. Application of the Statutory Criteria to the Final Waiver and
Regulations
The final regulations and waiver maintain the core elements
included in the proposed regulations (84 FR 13604, April 5, 2019) and
Recommended Decision. These include the alternating hunt season to
minimize impacts to WNP and PCFG gray whales; limits on the number of
whales harvested, struck, and struck and lost; additional limits on
harvest and mortality of PCFG whales; a hunt permit structure that
allows for adaptive hunt management; limiting the waiver to only 10
years; and numerous monitoring requirements. The Recommended Decision
suggested several modifications to the proposed regulations. The most
significant suggestions included specifying an abundance threshold for
ENP gray whales below which hunting would not be permitted and
requiring that the Tribe obtain an ITA for WNP gray whales prior to
permitting winter/spring hunt activities. Other recommendations
included reorganizing the structure of
[[Page 51622]]
the regulations, clarifying definitions, and explicitly prohibiting
approaches on gray whale calves or adult gray whales accompanying
calves.
The final regulations maintain the core elements from the proposed
waiver and regulations and the Recommended Decision and adopt the
tribunal's recommendation regarding a low abundance threshold for ENP
gray whales. Based on the tribunal recommendations, the final
regulations also include protections for gray whale calves and adults
accompanying calves and provisions to ensure that take of WNP whales,
if it is anticipated during the permitting process, is separately
authorized. The specific changes from the proposed regulations are
described in detail in section VII of this Final Decision.
The Final Decision on the waiver and implementing regulations ``may
affirm, modify, or set aside, in whole or in part, the recommended
findings, conclusions and decision of the presiding officer'' and must
include ``[f]indings on the issues of fact with the reasons therefor;
and [r]ulings on issues of law.'' 50 CFR 228.21(a) and (b). The final
waiver and regulations are largely consistent with the proposed
regulations and the Recommended Decision. Therefore, I affirm the
findings on issues of fact and rulings on issues of law described in
the Recommended Decision as part of this Final Decision, except as set
forth herein.
Threshold Determinations
As part of the Recommended Decision, the tribunal made findings and
rulings regarding the best scientific evidence available standard, the
credibility and utility of the scientific evidence in the record,
consultation with the MMC, and gray whale stock structure. The tribunal
also summarized the parties' arguments and public comments. I agree
with the Recommended Decision's treatment of these issues in section
IV.B through D and section V. Accordingly, I affirm these sections of
the Recommended Decision for the reasons explained therein as part of
this Final Decision. I also find that additional consultation with the
MMC occurred through the public comment period on the Recommended
Decision, which ran from September 29 to November 31, 2021, and the
additional comment and response period for the parties from November
27, 2023, to January 17, 2024.
I am not affirming sections I through III, the beginning of section
IV (pages 25-27), or section VI.A of the Recommended Decision. Sections
I and II of the Recommended Decision provide a Statement of the
Proceeding, Background, and Procedural History. I have addressed these
issues in sections I and II of this Final Decision. Section III of the
Recommended Decision is a summation of findings included in sections IV
through VIII of the Recommended Decision. I have not adopted the
summations in section III; rather I have adopted the actual findings in
sections IV through VIII of the Recommended Decision as appropriate.
I am not affirming the beginning of section IV, which provides an
overview of MMPA requirements, because this Final Decision explains the
relevant requirements. I am also not adopting section IV.A of the
Recommended Decision because it discusses the tribunal's jurisdiction
in rendering the Recommended Decision. Although I agree with the
tribunal's assessment of its jurisdiction, it is different from my
jurisdiction in rendering this Final Decision. Finally, I am not
adopting the Recommended Decision's statements (quoted above at the end
of section IV) suggesting that the Treaty of Neah Bay of 1855 has no
bearing on this proceeding.
Due Regard for the Biological Factors
Section 101(a)(3)(A) of the MMPA requires NMFS to give due regard
to the ``distribution, abundance, breeding habits, and times and lines
of migratory movements'' of the stock under consideration--here, ENP
gray whales. The tribunal concluded that NMFS satisfied that
requirement, and I agree.
Distribution
The tribunal determined the distribution for ENP and PCFG gray
whales would not be affected by the waiver and proposed regulations. RD
at 88-93. It found the hunt will not have a significant, lasting, or
detrimental effect on the distribution of PCFG whales. RD at 93. It
based that determination, in part, on the facts that the hunt area
comprises approximately 1 percent of the lineal distance of the whole
ENP range; approximately 4 percent of the lineal range of the
designated PCFG range; that there is no evidence that the hunt
activities will prevent the ENP stock from maintaining its
distribution, including during migration; and that the majority of ENP
individuals may never encounter a Makah hunter. Id. at 91. I agree with
section VI.A.1 of the Recommended Decision and affirm it as part of
this Final Decision with one minor exception. On page 85 of the
Recommended Decision, the month of April should be substituted with the
month June and the term ``consecutive'' should be deleted for the
following statement to be accurate: ``In order for a whale to be
designated as part of the PCFG, it must be identified as being in the
PCFG range between April 1 and November 30 of two consecutive years.''
Abundance
The tribunal analyzed the impact of the hunt on the abundance of
ENP and PCFG gray whales. RD at 103-105. The Recommended Decision
explains: ``A successful hunt will inevitably reduce the number of
living gray whales. However, 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. Regarding the effect of the Chukotkan hunt, the
tribunal explained:
Under the most recent IWC quota for aboriginal subsistence
hunting, 980 gray whales may be taken by Russia and the United
States over seven years, which equates to 140 whales per year.
Either country may yield their share of the quota to the other if it
is unused. (Id. at 92:18-24). Consequently, regardless of whether
the Makah hunt goes forward, the overall number of ENP whales taken
under the IWC catch allowance is unlikely to be significantly
affected.
Id. at 95. Addressing the effects of the UME, the tribunal
concluded: ``the best available scientific evidence is the UME should
not preclude issuance of a waiver,'' but also 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.
at 103.
I agree with section VI.A.2 of the Recommended Decision for the
reason explained therein and affirm it as part of this Final Decision.
However, I will expand on and clarify the role of some of the findings
in my Final Decision. In the Recommended Decision, the tribunal found:
The 2018 SAR estimated the population of ENP gray whales to be
26,960. (Tab 54D at 3; see also Tab 101 at 90:20-21; Tab 1H at 13).
While the population estimates are subject to a certain level of
uncertainty, researchers believe with 95% certainty that the true
abundance in 2015/2016 was between 24,000 and 30,000 whales. Most
recently, the ENP stock is estimated at 85% of carrying capacity,
with an 88% likelihood that the stock is above its MNPL (Id.). The
PBR for the ENP stock is 801 animals, and in 2018 the number of
human-caused mortalities among the stock was estimated at 139
animals. (Tab 101 at 91:9-11).
RD at 95. These findings clearly show that the ENP gray whales
population is capable of attaining OSP. Looking at the population
trends since 1994, it is also
[[Page 51623]]
clear that the population is subject to significant periodic declines
in its abundance and has experienced two UMEs. Tab 1H at 15; Tab 117 at
5-6.
In giving due regard to abundance, I have focused on the stock's
long-term population dynamics, rather than the specific abundance
estimate in any given year. Since 1967, NOAA has conducted surveys of
the ENP gray whale populations. Tab 3 at 11. These surveys show the ENP
gray whale population experiences periods of significant decline
followed by population growth. Significant declines occurred in the
late 1980s, and multi-year UMEs were declared in 1999 and 2019 due to
increased strandings. Tab 1H at 15; RD at 98. The population also
experiences periods of growth, including rebounds in the population
following each of the prior declines. For example, the abundance
estimate of 26,960 in 2015/16 represents a 22 percent (5970 whales)
increase in the 5 years since the 2010/11 estimate of 20,990. Tab 1H at
15. Overall, the population nearly doubled in size over the first 20
years of monitoring and has fluctuated for more than 30 years. Tab 62B
at 163.
I agree with the tribunal that the removal of 2.5 ENP gray whales,
on average, would not significantly affect the population. RD at 103.
It is improbable that the removal of such a small fraction of a
percentage of the stock's abundance would have an appreciable effect on
the ENP gray whales abundance or rate of growth. This level of removals
would have no effect on the ENP gray whale abundance related to OSP.
Furthermore, it is likely that the net effect to ENP gray whale
abundance is the same with or without a Makah Tribal hunt. It is
important to remember that under a bilateral agreement with the Russian
Federation, the United States has routinely transferred its unused IWC
quota for ENP gray whales to the Russian Federation. Tab 3 at 5.
Chukotkan hunters have used and, at times, exceeded the IWC quota. Tab
60 at 6. While it cannot be known with certainty that the Chukotkan
Natives would harvest the entire quota of 140 ENP gray whales per year,
they have harvested as many as 143 whales in a year. Tab 60 at 6-7.
With this waiver, the Makah Tribe can use their allotment for ENP gray
whales rather than transfer it to the Russian Federation, and there
will be no change in the number of ENP whales that can be harvested
under the quota authorized by the IWC.
Breeding Habits
The tribunal determined the breeding habits for ENP and PCFG gray
whales would not be meaningfully disrupted by the waiver and proposed
regulations. RD at 132. The tribunal found no evidence to suggest that
the hunt will prevent whales from breeding. Id. at 106-107. It noted
any disruptions to whales ``would be limited in scope'' due to the
relatively small area the U&A encompasses and that ``there was no
evidence to suggest approaches or training harpoon throws would prevent
whales from mating.'' Id. I agree with section VI.A.3 of the
Recommended Decision and affirm it as part of this Final Decision.
Time and Lines of Migratory Movements
The tribunal determined that the times and lines of migratory
movement for ENP and PCFG gray whales would not be meaningfully
affected by the waiver and proposed regulations. RD at 132. It based
that determination on the facts that ``only a few migrating whales
would encounter Makah hunters on any given day'' during their
southbound migration and that ``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.'' RD at 111-112. The
tribunal found that northbound whales may be more likely to encounter
Makah hunters for several reasons, but the evidence does not show that
the hunt will cause northbound non-PCFG ENP whales to slow, halt, or
otherwise vary their migration. Id. at 112. The tribunal further
explained: ``There is also no evidence gray whales will desert the
Makah U&A entirely as a result of the hunt, particularly bearing in
mind that it will only occur during the feeding season in alternate
years.'' Id. at 112. I agree with section VI.A.4 of the Recommended
Decision and affirm this section as part of this Final Decision.
Conclusion on Biological Factors
The tribunal concluded that NMFS has complied with its duties under
the MMPA to consider the hunt's effects on the ENP stock's
distribution, abundance, breeding, and times and lines of migratory
movement and relied on the best available scientific evidence. RD at
112. I agree with and affirm section VI.A.5 of the Recommended Decision
as part of this Final Decision.
Required Assurances
In addition to giving due regard to the enumerated biological
factors, I must also be ``assured'' that the taking of ENP gray whales
under the final waiver and regulations ``is in accord with sound
principles of resource protection and conservation as provided in the
purposes and policies of this chapter.'' 16 U.S.C. 1371(a)(3)(A).
Section 2 of the MMPA describes purposes and policies of the Act. These
include maintaining marine mammal stocks as a significant functioning
element in the ecosystem of which they are a part, maintaining the
health and stability of the marine ecosystem, and obtaining and
maintaining an optimum sustainable population for marine mammal stocks
keeping in mind the carrying capacity of the habitat. 16 U.S.C. 1361.
The Marine Ecosystem
For the reasons explained in section VI.B of the Recommended
Decision, I am assured and find that ENP gray whales will continue to
be a significant and functioning element of the ecosystem and that the
health and stability of the ecosystem will be maintained under the
final waiver and regulations. As the tribunal noted, NMFS has
considered impacts at several levels including the California Current
ecosystem, the northern California Current ecosystem, and the local
environment. RD at 115-116. The tribunal concluded that the waiver will
not result in gray whales ceasing to be a significant functioning
element of the northern California Current ecosystem or the environment
of the northern Washington coast given that these habitats are shaped
by dynamic, highly energetic, large-scale processes, that the role of
ENP gray whales in structuring these habitats is limited, and that the
waiver and regulations are unlikely to result in an appreciable
decrease in the numbers of gray whales present in the northern
California Current ecosystem or the northern Washington coastal
environment. Id. at 113-116. I agree with section VI.B of the
Recommended Decision and affirm this section as part of this Final
Decision.
OSP
I am assured and find that the final waiver and regulations are in
accord with sound principles of resource protection and conservation
related to obtaining and maintaining OSP for ENP gray whales. This is
because the level of hunting authorized under the final waiver is so
low that it will not have an appreciable effect on the overall
population dynamics of ENP gray whales. Therefore, it will not affect
the ability of the stock to obtain and maintain OSP. The waiver and
final regulations could result in the death of a maximum of two whales
in the summer/fall season and three whales in the winter/spring season,
followed by a
[[Page 51624]]
13-month gap in hunting. Thus, the highest number of whales that could
be killed, on average each year, over the 10-year waiver is 2.5. Under
this structure, no more than 25 gray whales could be killed during the
10-year waiver period.
In evaluating a waiver application, it is appropriate to look at
the abundance of the stock over time, including its lowest levels of
abundance. Abundance surveys have been conducted since the late 1960s.
Tab 3 at 11. During this time series, the lowest abundance estimate for
ENP gray whales was roughly 11,000 animals in 1971/1972. Tab 1H at 15.
Even if the stock drops to around 11,000 animals, hunting could still
occur without affecting the ability of the stock to maintain OSP. If
the stock were to drop to 11,000, the loss of 2.5 whales per year from
the ENP stock would represent an average annual reduction of 0.02
percent. Twenty-five whales represent less than 0.3 percent of the
population at 11,000. This level of mortality is a very small fraction
of the annual variability of the stock's abundance (approximately
16,000 to 27,000 between the mid-1990s and 2019). Tab 3 at 19.
Under the MMPA, PBR is a key management measure that is useful in
evaluating the effect of the hunt on OSP. PBR is ``the maximum number
of animals, not including natural mortalities, that may be removed from
a marine mammal stock while allowing that stock to reach or maintain
its optimum sustainable population.'' 16 U.S.C. 1362(20). The formula
for PBR is set forth in the MMPA as the product of the following
factors: ``(A) The minimum population estimate of the stock. (B) One-
half the maximum theoretical or estimated net productivity rate of the
stock at a small population size [R<INF>max</INF>]. (C) A recovery
factor of between 0.1 and 1.0 [F<INF>r</INF>].'' Id.
Using the lowest abundance in the time-series (11,079 animals), an
R<INF>max</INF> of 0.062 and an F<INF>r</INF> of 1, PBR would be 343.
At an abundance of 11,000, PBR would be 341. However, there is
uncertainty around the estimate of 11,079 from Laake et al. (2012). Tab
23LL at 15; Tab 1H at 15. The formula for the minimum population
estimate in the GAMMs (see Tab 23TT) was used to account for this
uncertainty, providing a more conservative estimate of the minimum
population size. Laake et al. (2012) estimated the abundance of gray
whales to be 11,079 animals (CV=0.093) in the 1971/72 season. Using
this information and the formula for calculating the minimum population
size in the GAMMs, the minimum population would be 10,246, and PBR
would be 318. In both cases (i.e., using the lowest abundance in the
time series and then accounting for uncertainty in that value), the
annual average mortality estimated from the Makah Tribe's hunt (2.5
individuals) is well below the number of animals that may be removed
while allowing that stock to reach or maintain its OSP. The IWC quota
shared between the United States and the Russian Federation (140
animals) is also significantly lower than PBR even at an abundance of
11,000.
Levels of human-caused mortality remain low relative to PBR.
Estimates of human-caused mortality and serious injury, based on data
from 2006-2018 and as reported in the SARs, averaged 127 to 139 ENP
gray whales per year. Greater than 90 percent of the mortalities were
from the Chukotkan hunt. Tabs 2F at 1; 2G at 14; 21M-0064 at 8; 54D at
163. PBR ranged from 558 to 801. Tabs 2F at 6; 2G at 10; 21M-0064 at 4;
54D at 160. That is, the number of human-caused mortalities and serious
injuries are substantially less than the number that may be removed
from the stock while allowing that stock to reach or maintain OSP.
Furthermore, the Russian Federation and the United States share the
IWC quota for ENP gray whales, meaning any whales the Makah do not
harvest will likely be harvested by Chukotkan Natives. Whether ENP gray
whales are taken by the Makah or the Chukotka has no effect on the
ability of the stock to attain and maintain OSP. The Russian Federation
and the United States have submitted joint proposals to the IWC for an
aboriginal subsistence whaling catch limit for ENP gray whales for the
Chukotkan and the Makah since 1997, and the IWC has repeatedly
established catch limits. Tab 90F at section 1.4.1.2.2; Tab 3 at 5. In
September of 2018, the IWC approved the latest catch limit of 980 ENP
gray whales for the period 2019-2025 with an annual cap of 140 whales.
Tab 3 at 5. A separate bilateral agreement between the United States
and Russian Federation sets overall and annual limits for the two
countries. Id. The Makah Tribe are entitled to harvest no more than 5
whales per year under the agreement with the Russian Federation. This
agreement also specifies that any country's unused quota may be
transferred to the other. In past years, the United States has
transferred its entire quota to the Russian Federation while NMFS
completes the necessary steps under domestic law to consider the Makah
Tribe's request for a waiver. Id. at 5-6. This practice would likely
continue if the Makah do not harvest the whales set aside for them. For
these reasons, if ENP gray whales are not harvested by the Makah Tribe,
they will most likely be harvested by Chukotkan Natives, meaning the
hunt authorized under the waiver and final regulations will have likely
no effect on the overall population of ENP gray whales and therefore no
effect on the ability of the stock to obtain and maintain OSP.
The ENP stock has also proven highly resilient to sustained
hunting. RD at 104, 116. The IWC reports 3,787 gray whales harvested
from annual aboriginal subsistence hunts from 1985 to 2016, which
includes struck and lost whales. The estimated population size of ENP
gray whales increased during this same period. Tab 59B at 7. From 2012-
2016, Chukotkan hunters harvested an average of 128 gray whales
annually. Tab 81B at 162. This is approximately 51 times the projected
average annual harvest of 2.5 whales that will occur under the Makah
Tribe's hunt. The ENP gray whale population has already demonstrated
resilience to decades of hunting by Chukotkan Natives, growing to
approximately 27,000 individuals in 2016. Tab 3 at 11. This reinforces
the determination that a Makah Tribal hunt, even when viewed in
combination with the Chukotkan Native hunt, will not impact the ability
of the ENP gray whale stock to attain and maintain OSP.
I have not adopted the tribunal's analysis in section VI.C of the
Recommended Decision to provide the necessary assurance that the waiver
is consistent with the purposes and policies of the MMPA related to
attaining and maintaining OSP, except I agree with the statement that
``the ENP have attained OSP and are likely to maintain it even if a
limited number of whales are removed due to the Makah Tribe's hunt.''
RD at 116. The remainder of section VI.C of the Recommended Decision
addresses issues related to WNP gray whales and PCFG gray whales. For
the reasons explained in response to comment 1, an OSP analysis is not
required for WNP gray whales to satisfy the statutory factors under
section 101(a)(3)(A) of the MMPA. Nevertheless, I agree with certain
aspects of the discussion in section VI.C of the Recommended Decision
related to WNP gray whales and will adopt some of the findings to
satisfy other statutory criteria, as set forth below in section VIII
(Risk to WNP Gray Whales) of this Final Decision. Although issues
related to PCFG gray whales are relevant under certain provisions of
section 101(a)(3)(A) of the MMPA when evaluating a waiver application,
an OSP analysis is not required for the PCFG in order to obtain the
necessary assurance
[[Page 51625]]
that the waiver is in accord with the purposes and policies of the MMPA
related to obtaining and maintaining OSP for marine mammal stocks
because the PCFG is not a stock.
For the reasons explained in this section of the Final Decision, I
am assured that the taking authorized under the final waiver and
regulations will not affect the ability of the ENP gray whale stock to
obtain and maintain OSP. Therefore, I am assured that the taking under
the waiver is in accord with sound principles of resource management
and protection in the purposes and policies of the MMPA related to
attaining and maintaining OSP.
Consistency With the Section 101(a)(3)(A) of the MMPA
The tribunal addressed other concerns raised by the parties
(including the implications of the decision in Kokechik, climate
change, and impacts on scientific research) before concluding that NMFS
has satisfied the statutory factors set forth in section 101(a)(3)(A)
and that the waiver should be granted. I agree with sections VI.D-E of
the Recommended Decision and affirm the findings and rulings contained
therein as part of this Final Decision, except I am not affirming
section VI.D.1, which addresses the decision in Kokechik. My views on
the implications of Kokechik in this matter are described in the
response to comment 31.
The Final Regulations
The final regulations implementing a waiver must satisfy additional
criteria set forth in section 103 of the MMPA. Some of these
requirements are quite similar to the requirements related to the
waiver determination under section 101(a)(3)(A). For example, both the
regulations and waiver require consultation with the MMC, a decision
based on the best available scientific evidence, and an evaluation of
the purposes and policies in section 2 of the MMPA.
Under section 103(a), I must ``insure'' regulations implementing
taking under a waiver will not disadvantage the ENP stock--a
requirement often referred to as the disadvantage test. NMFS's long-
standing interpretation of the disadvantage test is that it relates to
the impact of take on OSP. 45 FR 72185, October 31, 1980.
Pursuant to section 103(b), I must also give full consideration to
all factors that may affect the extent to which the ENP stock may be
taken. This includes five enumerated considerations: (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. 16 U.S.C. 1373(b). Section 103(b) also requires an
assessment of impacts to WNP gray whales in this case, given the remote
risk to WNP gray whales associated with the regulated taking of ENP
gray whales under the final waiver and regulations.
Disadvantage Test
The final regulations will not disadvantage the ENP stock because
no lethal hunting can occur unless the stock is within its OSP and NMFS
determines that the level of hunting authorized by permit will not
cause the stock to dip below its OSP. This insures that ENP whales are
only removed from the population when the stock is within a population
range representing the ``the maximum productivity of the population . .
. keeping in mind the carrying capacity of the habitat and the health
of the ecosystem'' and insures the taking under the waiver will not
disadvantage the ENP stock. 16 U.S.C. 1362(9).
Consistency With the Purposes and Policies of the MMPA
Section VIII of this Final Decision discusses the Marine Ecosystem,
OSP, and the Disadvantage Test and explains how the final regulations
insure the taking authorized under the waiver is consistent with the
purposes and policies of the MMPA.
Existing and Future Levels of Marine Mammal Species and Population
Stocks
In the first paragraph of section VII.A.1, the tribunal concluded
that NMFS thoroughly considered both the existing and future abundance
levels for the ENP, including the PCFG, and WNP stocks; that the
methodology was robust; and that no credible evidence was presented
that the analysis relied on incorrect assumptions or reached
implausible results. RD at 135. I concur and affirm the first paragraph
of section VII.A.1 as part of this Final Decision. The remainder of
section VII.A.1 discuss issues related to WNP gray whales and the
Kokechik decision. I address issues related to Kokechik in response to
comment 29 and issues related to WNP gray whales later in section VIII
of this Final Decision (Risk to WNP Gray Whales).
Existing International Treaty and Agreement Obligations of the United
States
I agree with the tribunal's analyses in the first paragraph of
section VII.A.2 of the Recommended Decision and affirm this paragraph
as part of this Final Decision. The tribunal concluded, and I agree,
that the main international agreement relevant to this waiver
determination is the International Convention for the Regulation of
Whaling. RD at 137.
I set aside the remainder of section VII.A.2, which discuss the
Treaty of Neah Bay of 1855 and some of the parties' arguments
suggesting that the waiver may have impacts on international relations.
Section 103(b)(2) of the MMPA requires NMFS to consider international
treaties and agreements, not international relations. Accordingly, the
discussion in the last paragraph of section VII.A.2 is not necessary
and is set aside. Although the Treaty of Neah Bay is relevant to this
proceeding, it is not relevant to the analysis under section 103(b)(2)
because it is not an international treaty or international agreement. I
address the implications of the Treaty of Neah Bay in response to
comments 45 and 46.
The Marine Ecosystem and Related Environmental Conditions
I agree with the tribunal's analyses in section VII.A.3 of the
Recommended Decision and affirm this section as part of this Final
Decision. The record contains ample evidence that in prescribing these
regulations, NMFS has fully considered the effect of the regulations on
the marine ecosystem and environmental considerations.
The Conservation, Development, and Utilization of Fishery Resources
I agree with the tribunal's analyses in section VII.A.4 of the
Recommended Decision and affirm this section as part of this Final
Decision, with one exception. The tribunal determined that the proposed
regulations would have no effect on the conservation, development, or
utilization of fishery resources. I agree but do not believe that
impacts to whale watching should be analyzed under this factor. The
MMPA defines ``fishery'' to mean: ``(A) one or more stocks of fish
which can be treated as a unit for purposes of conservation and
management and which are identified on the basis of geographical,
scientific, technical, recreational, and economic characteristics; and
(B) any fishing for such stocks.'' 16 U.S.C. 1362(16). Section
103(b)(4) of the MMPA concerns fish stocks, not marine mammals and,
[[Page 51626]]
therefore, does not contemplate consideration of effects to whales or
the whale watching industry. Therefore, I affirm the tribunal's
ultimate conclusion in section VII.A.4 as part of this Final Decision
but do not adopt its analysis of impacts due to whale watching.
The Economic and Technological Feasibility of Implementation
I agree with the tribunal's analyses in section VII.A.5 of the
Recommended Decision and affirm this section as part of this Final
Decision. The only technical concern the tribunal noted was potential
minor difficulties in obtaining usable photographs for every approached
whale and whether photo-identification for all whales within 24 hours
is achievable, noting that the latter seems likely but not certain. RD
at 139. The regulations I am issuing in this document include measures
to help ensure these challenges can be overcome. For example, the
Regional Administrator must determine that there are adequate photo-
identification catalogs and processes available to allow for the
identification of WNP gray whales and PCFG whales prior to issuing a
hunt permit. In addition, NMFS has developed a protocol for identifying
gray whales encountered during the hunt. Tab 1J.
Risk to WNP Gray Whales
Section 103 of the MMPA requires consideration of the risk to WNP
gray whales in this case. The WNP population is approximately 290
animals, increasing at an annual rate of around 2 to 5 percent. RD. at
117. PBR for the WNP stock is 0.12 per year, or one whale every 8
years. Id. WNP gray whales are also protected as an endangered species
under the ESA.
Whales from the WNP stock occasionally migrate along with ENP gray
whales to the breeding grounds in North America with the best available
scientific evidence showing a mixing proportion of at least 0.37. RD
18-19. WNP gray whales have not been documented in the ENP range from
June through November. Id. at 110. Given that Tribal hunters may
encounter a WNP gray whale migrating through the hunt area during the
winter/spring season, NMFS conducted an analysis to estimate the risk
to WNP gray whales from a Tribal hunt. The Recommended Decision
reviewed NMFS's analysis of the risk to gray whales and found that NMFS
produced a scientifically sound calculation of the risk. Id. at 117.
The risk analysis adopted a conservative approach, and the risk to WNPs
is likely lower. Conservative assumptions included: (1) migrating WNP
and ENP gray whales are evenly mixed; (2) all approaches authorized
under the regulations would occur during the winter/spring season; (3)
the mixing proportions of ENP and WNP gray whales (i.e., the proportion
used in the analysis likely overstates the number of WNP gray whales
likely to be present); and (4) all authorized strikes and approaches
would be used during the waiver period. RD at 111, 118. However, it is
unlikely many of the training activities would occur during the winter
months when ocean conditions are unfavorable. Id at 118.
The analysis of risk to WNP gray whales was updated at the
beginning of the hearing in 2019. Tab 61D. The risk analysis conducted
by Moore and Weller (Tab 61D) analyzed the probability of approaching,
unsuccessfully striking, and striking a WNP gray whale during a Tribal
hunt. Over the 10-year waiver period, a maximum of 15 whales could be
struck in winter/spring hunts that could have some probability of being
a WNP gray whale. While Tribal hunters may encounter a WNP gray whale,
the likelihood of a strike remains a remote possibility. Moore and
Weller (2019) estimate that for an individual strike on a gray whale,
the expected probability of it being a WNP whale is 0.5 percent. Tab
61D. If all three strikes are used in a winter/spring hunt, up to 0.015
of those strikes would be o
[…truncated; see source link]Indexed from Federal Register on June 18, 2024.
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