[Federal Register Volume 85, Number 39 (Thursday, February 27, 2020)]
[Notices]
[Pages 11347-11348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04044]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-BI58


Draft Supplemental Environmental Impact Statement

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

ACTION: Notice of intent to prepare.

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SUMMARY: Pursuant to the National Environmental Policy Act (NEPA), this 
notice announces that NMFS is preparing a Draft Supplemental 
Environmental Impact Statement (DSEIS) to supplement information in the 
2015 Draft Environmental Impact Statement (DEIS) on the Makah Tribe 
Request to Hunt Gray Whales, which was prepared in response to the 
Makah Indian Tribe's request that NMFS authorize a limited ceremonial 
and subsistence hunt of eastern North Pacific (ENP) gray whales in the 
Makah Tribe's usual and accustomed (U&A) fishing grounds off the coast 
of Washington State.

DATES: Because NMFS has previously requested (80 FR 13373, March 13, 
2015; 80 FR 30676, May 29, 2015) and received information from the 
public on issues addressed in the DEIS, and because the Council on 
Environmental Quality (CEQ) regulations for implementing the NEPA do 
not require additional scoping for this DSEIS process (40 CFR 
1502.9(c)(4)), NMFS is not asking for further public scoping 
information and comment at this time. Upon release of the DSEIS, NMFS 
will provide a 45-day public review/comment period.

ADDRESSES: The DEIS is available in electronic form on the internet at 
the following address: https://www.fisheries.noaa.gov/west-coast/makah-tribal-whale-hunt. The DEIS also may be viewed at various libraries 
identified at this internet address or at the following NMFS offices:
    (1) NMFS Protected Resources Division, 1201 NE Lloyd Blvd., Suite 
1100, Portland, OR 97232. Contact Steve Stone at 503-231-2317; and
    (2) NMFS, Protected Resources Division, 7600 Sand Point Way NE, 
Building 1, Seattle, WA 98115-6349. Contact Lesley Kilp at 206-526-
6150.

FOR FURTHER INFORMATION CONTACT: Grace Ferrara, NMFS Protected 
Resources Division, by email at [email protected] or by phone at 
206-526-6172.

SUPPLEMENTARY INFORMATION:

Background

    On February 14, 2005, the Makah Indian Tribe submitted to NMFS a 
request to resume treaty-based hunting of eastern North Pacific (ENP) 
gray whales in the coastal portion of the Tribe's usual and accustomed 
fishing grounds (U&A). The Tribe's request stems from the 1855 Treaty 
of Neah Bay, which expressly secures the Makah Tribe's right to hunt 
whales. To exercise

[[Page 11348]]

that right, the Makah Tribe is seeking authorization from NMFS under 
the Marine Mammal Protection Act (MMPA) and Whaling Convention Act. 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 must be made on the record after an opportunity for an 
agency hearing on both the waiver and regulations (16 U.S.C. 1373(d)).
    On May 9, 2008, NMFS released a DEIS but later terminated that DEIS 
in 2012 (77 FR 29967, May 21, 2012) because of new scientific 
information. In that 2012 notice the agency announced its intent to 
prepare a new DEIS and open a scoping process (77 FR 29967, May 21, 
2012). On March 13, 2015, NMFS released a new DEIS (80 FR 13373) for 
public comment that included a no-action alternative and five action 
alternatives. On April 5, 2019, NMFS published a proposed rule (84 FR 
13604) and notice of hearing (84 FR 13639) to issue a waiver under the 
MMPA and propose regulations governing the hunting of ENP gray whales 
by the Makah Tribe for a 10-year period. The hunt proposal as set forth 
in the proposed rule represents a composite alternative that combines 
certain elements from the five DEIS action alternatives.
    As required under the MMPA, NMFS convened a hearing before an 
Administrative Law Judge regarding the proposed waiver and regulations 
(16 U.S.C. 1373(d)). The hearing took place from November 14, 2019 
through November 21, 2019 in Seattle, Washington. In addition to NMFS, 
five parties participated at the hearing. Following the hearing, the 
Administrative Law Judge will issue a recommended decision regarding 
the proposed waiver and regulations, NMFS will provide notice of a 20-
day public comment period, and then the NMFS Assistant Administrator 
will make a final decision on the proposed regulations and waiver in 
accordance with the regulations at 50 CFR part 228.
    NEPA regulations at 40 CFR 1502.9 provide for supplementing a DEIS 
if the agency determines that there are significant new circumstances 
or information relevant to environmental concerns and bearing on the 
proposed action or its impacts. An agency may also prepare a supplement 
when it determines that the purposes of NEPA will be furthered by doing 
so. A new issue of fact that occurred after issuance of the 2015 DEIS 
but was addressed at the agency hearing is the Unusual Mortality Event 
(UME) for ENP gray whales declared by NMFS in May 2019 (see information 
posted https://www.fisheries.noaa.gov/national/marine-life-distress/2019-gray-whale-unusual-mortality-event-along-west-coast). 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. NMFS expects that 
the supplement will incorporate the information presented at the 
hearing regarding the 2019 UME and any additional relevant information 
and will take into consideration the Administrative Law Judge's 
recommended decision. NMFS also intends to expressly identify the hunt 
proposal, as described in the proposed rule and addressed at the agency 
hearing, as a separate action alternative in the supplement. 
Previously, NMFS determined that because the hunt proposal comprises 
elements and outcomes within the scope of the DEIS action alternatives 
and does not substantially change the proposed action in a manner 
relevant to environmental concerns, a supplement to the DEIS was not 
warranted based on the consideration of the composite alternative 
alone. Given our determination that NEPA's purposes would be furthered 
through a DSEIS addressing the 2019 UME, we will also separately 
evaluate the composite alternative/hunt proposal in the DEIS.

Authority

    The environmental review of the Makah Tribe's request to resume 
treaty-based hunting of ENP gray whales will be conducted under the 
authority and in accordance with the requirements of the NEPA of 1969 
as amended (42 U.S.C. 4321 et seq.), Council on Environmental Quality 
Regulations (40 CFR parts 1500-1508), the MMPA (16 U.S.C. 1361-1421h), 
other applicable Federal laws and regulations, and policies and 
procedures of NMFS for compliance with those regulations.

    Dated: February 24, 2020.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2020-04044 Filed 2-26-20; 8:45 am]
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