[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Notices]
[Pages 53949-53950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21176]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XG584


Request for Public Comment Regarding an Administrative Law 
Judge's Recommended Decision on a Proposed Waiver and Regulations 
Governing the Taking of Marine Mammals

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

ACTION: Notice; request for comments.

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SUMMARY: NMFS has proposed to issue a waiver and regulations under the 
Marine Mammal Protection Act (MMPA) to allow the Makah Indian Tribe to 
take a limited number of Eastern North Pacific (ENP) gray whales for 
ceremonial and subsistence purposes. A hearing to consider the proposed 
waiver and regulations took place on November 14-21, 2019, in Seattle, 
Washington before Administrative Law Judge George J. Jordan. On 
September 23, 2021, Judge Jordan transmitted his recommended decision 
to NMFS along with the hearing transcript and other required 
documentation. As required by MMPA regulations, NMFS now requests 
public comment on the Judge's recommended decision.

DATES: Comments must be submitted in writing by October 19, 2021.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2019-0037, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/docket?D=NOAA-NMFS-2019-0037, click the ``Comment 
Now!'' icon, complete the required fields, and enter or attach your 
comments.
     Mail: Attn: Grace Ferrara, NMFS West Coast Region, 7600 
Sand Point Way NE, Seattle, WA 98115. Include the identifier ``NOAA-
NMFS-2019-0037'' in the comments.

[[Page 53950]]

    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Jaclyn Taylor, Office of Protected 
Resources, National Marine Fisheries Service, 1315 East-West Highway, 
Silver Spring, MD 20910; [email protected].

SUPPLEMENTARY INFORMATION: On February 14, 2005, NMFS received a 
request from the Makah Indian Tribe for a waiver of the MMPA moratorium 
on the take of marine mammals to allow for take of ENP gray whales 
(Eschrichtius robustus). The Tribe requested that NMFS authorize a 
tribal hunt for ENP gray whales in the coastal portion of the Tribe's 
usual and accustomed fishing area for ceremonial and subsistence 
purposes and the making and sale of handicrafts. 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 if certain statutory criteria are met.
    On April 5, 2019, NMFS published a Notice of Hearing and the 
associated proposed regulations in the Federal Register (84 FR 13639 
and 84 FR 13604). Pursuant to an interagency agreement, a Coast Guard 
Administrative Law Judge was assigned to conduct the hearing and issue 
a recommended decision in this matter under the procedures set forth at 
50 CFR part 228.
    On November 14, 2019, Judge George J. Jordan (the presiding 
officer) commenced the hearing in this matter, which took place over 6 
days. Six parties participated in the hearing, including NMFS. The 
hearing was publicly conducted and reported verbatim by an official 
reporter. All filings associated with the hearing, including a full 
transcript of the hearing, have been made available for public viewing 
and inspection at https://www.uscg.mil/Resources/Administrative-Law-Judges/Decisions/ALJ-Decisions-2016/NOAA-Formal-Rulemaking-Makah-Tribe/. Information pertaining to this hearing is also available at the 
NMFS website: https://www.fisheries.noaa.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt-regulations-governing-gray-whale-hunts-makah.
    Consistent with the regulations governing this proceeding, at the 
close of the hearing Judge Jordan established a public comment period 
on the proposed waiver and regulations, including the opportunity to 
submit proposed findings and conclusions and written arguments and 
briefs. NMFS published notice of this public comment period in the 
Federal Register on January 29, 2020 (85 FR 5196). 50 CFR 228.19(b). 
That comment period ended on March 16, 2020 and the comments submitted 
are posted at the Federal e-Rulemaking Portal at www.regulations.gov/docket?D=NOAA-NMFS-2019-0037.
    On September 23, 2021, the presiding officer transmitted his 
recommended decision to the NMFS Assistant Administrator for Fisheries, 
including (1) a statement containing a description of the history of 
the proceedings; (2) findings on the issues of fact with the reasons 
therefor; and (3) rulings on issues of law. The recommended decision is 
also posted on the NMFS website: https://www.fisheries.noaa.gov/action/formal-rulemaking-proposed-mmpa-waiver-and-hunt-regulations-governing-gray-whale-hunts-makah.
    As required by our regulations at 50 CFR 228.20(c)-(d), NMFS 
provided copies of the presiding officer's recommended decision to the 
parties to the hearing and now announces a 20-day period for the 
parties and other interested persons to submit written comments on the 
presiding officer's recommended decision. Please note that the 
recommended decision is being made available for copying and review 
online only due to the ongoing COVID-19 pandemic. After considering 
these comments, the Assistant Administrator will issue a final decision 
on the proposed waiver and regulations. That decision may affirm, 
modify, or set aside, in whole or in part, the recommended findings, 
conclusions, and decision of the presiding officer. The Assistant 
Administrator may also remand the hearing record to the presiding 
officer for a fuller development of the record. 50 CFR 228.21.
    Authority: 16 U.S.C. 1371 et seq.

    Dated: September 24, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-21176 Filed 9-28-21; 8:45 am]
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