[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 [www.gpo.gov]
[FR Doc No: 2024-12669]



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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  

[[Page 51600]]


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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: https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt-chronology or you may request copies 
by email from [email protected].

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

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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. (https://www.fisheries.noaa.gov/s3/2021-09/recommended-decision-19nmfs0001.pdf) The first three sections of the tribunal's 
Recommended Decision provided an introduction and overview of the 
proceeding. Sections I and II described the proceeding, background 
information, and procedural history. Section III provided a summary of 
the findings in the Recommended Decision. Section IV described the 
substantive requirements of the MMPA and then analyzed several 
threshold issues, including the scientific evidence in the record, 
consultation with the MMC, and gray whale stock structure.
    Section IV.B of the Recommended Decision described ``the best 
scientific evidence available'' standard, which governs the statutory 
analyses NMFS must conduct under sections 101(a)(3)(A) and 103(a) of 
the MMPA. The Recommended Decision highlighted several touchstones of 
the standard. First, NMFS cannot disregard ``scientifically superior 
evidence'' that does not support its position. RD at 31. Second, ``a 
scientific inference or assertion'' must be ``derived by the scientific 
method'' and ``based on scientifically valid principles'' but need not 
be proven with ``absolute certainty.'' Id. Third, ``agencies are only 
required to evaluate existing data and need not speculate on whether 
their conclusions would change if new or different evidence was 
adduced.'' Id. Indeed, as the tribunal explained, if ``agencies were 
required to continually develop new data to supplement the information 
presented in a proceeding, there would be no end to the decision-making 
process.'' Id.
    Section IV.B also evaluated the credibility of the scientific 
experts who testified at the hearing. The tribunal found NMFS's gray 
whale experts to be credible witnesses and gave their testimony ``great 
weight'' and a ``great deal of weight.'' RD 35-38. The Makah's marine 
mammal biologist also testified in support of the waiver, and the 
tribunal accorded his testimony ``substantial weight,'' noting that he 
conducts ``independent, peer-reviewed research'' and ``his testimony 
relies on a broad range of sources, including those whose findings he 
disagrees with.'' Id. at 41-42. Conversely, the tribunal found that 
AWI's only witness was a less credible witness, explaining that his 
``opinions are based solely on literature reviews, as he does not 
conduct any independent research or produce scientific publications, 
and he appears to have relied heavily on a subset of the available 
literature that best supports AWI's position in this matter.'' Id. at 
46.

[[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.'' https://www.merriam-webster.com/dictionary/such (last 
visited March 19, 2024). The term can also mean ``[t]hat or those; 
having just been mentioned.'' Black's Law Dictionary (11th ed. 2019). 
The Oxford English Dictionary further provides: ``Such is a 
demonstrative word used to indicate the quality or quantity of a thing 
by reference to that of another or with respect to the effect that it 
produces or is capable of producing. Thus, syntactically, such may have 
backward or forward reference. . . .'' Oxford English Dictionary Online 
(last visited March 21, 2024). Likewise, a dictionary published a few 
years after the MMPA was adopted explains that ``such'' includes ``of a 
kind or character about to be indicated, suggested, or exemplified'' as 
well as ``having a quality already or just specified. '' Webster's 
Third New International Dictionary (3rd ed. 1976). Thus, the phrase 
``such marine mammal'' in the first proviso in section 101(a)(3)(A) 
refers to marine mammals ``to be indicated'' or marine mammals ``having 
just been mentioned,'' not marine mammals described in other sections 
of the Act.
    The reference to ``such marine mammal'' in the first proviso of 
section 101(a)(3)(A) refers back to NMFS's authority to allow taking of 
``any marine mammal.'' Under section 101(a)(3)(A), NMFS has the 
authority to waive the moratorium for a single stock of marine mammals, 
as NMFS has proposed here. When NMFS chooses to exercise that 
discretion, the text of section 101(a)(3)(A) limits the analysis 
required by the first proviso of section 101(a)(3)(A) to the marine 
mammal stock subject to taking under the proposed waiver. Here, that is 
the ENP stock, not the WNP stock.
    The tribunal construed the statute differently. Citing the purposes 
and policies in section 2 of the MMPA, the tribunal explained:

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

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

    NMFS WCR does not agree with Judge Jordan's statutory 
interpretation, that NMFS must consider both the ENP stock's and WNP 
stock's abilities to attain and maintain OSP levels in deciding 
whether to issue a waiver for ENP gray whales under MMPA section 
101(a)(3)(A). See Recommended Decision at 116 (relying on MMPA 
section 2, Congressional findings and declaration of policy). While 
we agree that an overarching policy of the MMPA is to maintain all 
marine mammal stocks at or above OSP levels, here, the specific 
requirements of section 101(a)(3)(A), which govern issuance of 
waivers, control. Because NMFS is not proposing to waive the MMPA 
take moratorium with respect to the WNP gray whale stock, NMFS was 
not required to undertake an analysis of potential effects on the 
WNP stock's OSP levels.

    I agree with the WCR. The tribunal's interpretation deprives the 
phrase ``such marine mammal'' in the first proviso of section 
101(a)(3)(A) of its normal meaning. The overriding purposes and 
policies of the MMPA cannot alter the text of section 101(a)(3)(A).
    Furthermore, the WCR's interpretation is consistent with the 
structure of the statute. Section 103(b) requires a broader evaluation 
of the ``effect of such regulations'' implementing a waiver. Section 
101(a)(3)(A) uses narrower language and requires only that ``the taking 
of such marine mammal is in accord with the sound principles of 
resource protection and conservation as provided in the purposes and 
policies'' of the Act. As explained above, ``such marine mammal'' 
refers to ENP gray whales, the stock subject to taking pursuant to the 
waiver. In any event, for the reasons explained in section VIII (Risk 
to WNP Gray Whales), any effects of the final waiver and regulations on 
WNP gray whales are not expected to impact the ecosystem or the ability 
of WNP gray whales to obtain or maintain OSP.
    Comment 2: With respect to WNP gray whales, the WCR disagrees with 
the tribunal's characterization of the disadvantage test in section 
103(a) of the MMPA, citing discrepancies in the Recommended Decision. 
For example, page 117 of the Recommended Decision states: ``any take of 
a WNP would necessarily disadvantage the stock,'' whereas page 136 of 
the Recommended Decision states ``not all takes of depleted stocks 
necessarily disadvantage those stocks.'' Relatedly, the Makah Tribe 
comments that the Recommended Decision's assertion that the removal of 
one WNP whale would disadvantage the stock is contrary to the evidence 
in the record.
    Response: The Recommended Decision uses the term ``disadvantage'' 
when discussing WNP gray whales and depleted marine mammals, raising 
questions about the application of the disadvantage test in section 
103(a) to the endangered WNP stock. When implementing a waiver, section 
103(a) of the MMPA provides: ``The Secretary . . . shall prescribe such 
regulations with respect to the taking and importing of animals from 
each species of marine mammal (including regulations on the taking and 
importing of individuals within population stocks)'' as the Secretary 
``deems necessary and appropriate to insure that such taking will not 
be to the disadvantage of those species and population stocks and will 
be consistent with the purposes and policies set forth in section 2 of 
this Act.'' The disadvantage test in section 103(a) applies to ``such 
taking'' of ``those species and population stocks.'' ``Such taking'' 
under section 103(a) refers to the taking described earlier in the 
section, which is the regulated ``taking and importing of animals from 
each species of marine mammal (including regulations on the taking and 
importing of individuals within population stocks). . . .'' This text 
allows NMFS to regulate taking at the species-level or the stock-level. 
In this action, NMFS is waiving the moratorium and providing for the 
regulated taking of gray whales from the ENP stock only. Therefore, 
NMFS must satisfy the disadvantage test for the ENP stock. NMFS is not 
waiving the moratorium for WNP gray whales under section 101(a)(3)(A) 
or providing for regulated taking of this stock under section 103(a). 
Under these circumstances, NMFS is not required to comply with the 
disadvantage test for the WNP stock in this action.
    The reference to ``those species and population stocks'' in section 
103(a) expresses the idea that if taking is authorized at the species 
level, then the authorized taking cannot disadvantage the species. If 
the taking is authorized at the stock level, as NMFS has proposed in 
this case, then the taking cannot disadvantage the stock. This language 
does not require NMFS to apply the disadvantage test at the species 
level if NMFS is only proposing to waive the moratorium and regulate a 
single stock within a species that consists of multiple stocks. 
Accordingly, in reviewing the final regulations, I must ``insure'' that 
the take of marine mammals from the ENP stock will not disadvantage the 
ENP stock and will be

[[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:
     Alternating Hunt Seasons: Winter/spring hunts would occur 
during the migration season (December 1 through May 31) to reduce risk 
to PCFG whales, which are more prevalent in the U&A in the summer and 
fall during their feeding season. Summer/fall hunts would occur during 
the feeding season (July 1 through October 31) to reduce risk to WNP 
whales, which are only known to occur in the U&A during the migratory 
season. There would be a 1-month gap after a summer/fall hunt and a 13-
month gap after a winter/spring hunt.
     Maximum Annual Strike Limits: A maximum of three strikes 
may be authorized during winter/spring hunts and two during summer/fall 
hunts. Thus, up to 25 whales may be struck or struck and lost over the 
10-year waiver. Unsuccessful strikes are not counted against this 
limit.
     Maximum Struck and Lost Limits: A hunt permit may 
authorize no more than three gray whales to be struck and lost in any 
calendar year.
     Maximum PCFG Mortality Limits: Over the 10-year waiver 
period, no more than 16 PCFG whales may be struck. Of these, no more 
than 8 may be female PCFGs. NMFS will, taking into account the 
abundance of PCFG whales, notify the Tribe prior to the beginning of a 
hunt season of the maximum number of PCFG whales, including females, 
that may be struck during the upcoming hunting season.
     Maximum Annual Landing Limits: A hunt permit may authorize 
landing (i.e., bringing a gray whale or any products thereof onto the 
land) no more than three whales during winter/spring hunts and one 
whale during summer/fall hunts. That is, no more than 20 whales can be 
landed over the waiver period.
     Maximum Annual Limits on Unsuccessful Strike Attempts: 
Unsuccessful strike attempts are any attempt, including training 
harpoon throws, to strike a gray whale while hunting that does not 
result in a strike. A hunt permit may authorize no more than 18 
unsuccessful strike attempts during winter/spring hunt and no more than 
12 unsuccessful strike attempts during summer/fall hunts.
     Maximum Annual Approach Limits: A hunt permit may 
authorize no more than 353 approaches, including both hunting and 
training approaches, each calendar year, of which no more than 142 may 
be on PCFG whales.
     PCFG Abundance Trigger: No hunting will be authorized for 
an upcoming season if the most recent PCFG population estimate or the 
projected estimate for the upcoming hunt season is less than 192 whales 
or the most recent or projected minimum abundance estimate is less than 
171 whales.
     ENP Low Abundance Thresholds: Hunting ceases if the ENP 
abundance falls below the stock's OSP.
     Take of WNP whales: Prior to permitting hunt activities in 
the winter/spring hunt season, NMFS must determine if take of WNP 
whales is anticipated and, if so, must include a condition in the 
permit requiring separate take authorization for WNP gray whales during 
the winter/spring hunt. If a WNP whale is accidentally killed during a 
hunt, hunting must cease until measures are put in place to prevent any 
further activity that could result in another lethal take of a WNP gray 
whale.
     Accounting and Identification of Gray whales: The final 
regulations establish procedures to determine whether a gray whale 
approached or struck is a WNP, PCFG, or non-PCFG gray whale, or cannot 
be identified. If a gray whale cannot be identified, the regulations 
include measures for presuming the whale to be a PCFG whale.
     Management of Handicrafts: The final regulations include 
marking and certification requirements for handicrafts as well as 
measures to regulate when handicrafts may be shared, bartered, traded, 
or sold.
     Monitoring, Reporting, and Recordkeeping: Certified Tribal 
hunt observers must accompany each hunt and maintain hunt logs, 
including information on approaches, attempted strikes, and strikes. 
The Tribe is required to submit an incident report within 48 hours of a 
gray whale being struck, a hunt report at the end of each season, an 
annual approach report, and an annual handicraft report. After 
receiving an incident report documenting that eight gray whales have 
been struck, NMFS will evaluate the photo-identification and 
notification requirements and the humaneness of the hunt.

VII. Changes to Final Regulations

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

[[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 [Rmax]. (C) A recovery 
factor of between 0.1 and 1.0 [Fr].'' Id.
    Using the lowest abundance in the time-series (11,079 animals), an 
Rmax of 0.062 and an Fr 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 on a WNP gray whale. That is, we would expect 
one WNP whale to be struck every 67 years if the hunt were to continue 
in perpetuity and using the conservative assumptions in the risk 
analysis. Id. The probability of at least one WNP whale being subject 
to an unsuccessful strike attempt (which includes those associated with 
training) over the 10-year waiver period was estimated at 3.7 percent. 
Id.
    In estimating the number of approaches, Moore and Weller (2019) 
assumed that all approaches (hunting and training) would occur during 
the winter/spring season when WNP gray whales may be present. Id. This 
is a very conservative assumption, as some proportion of approaches are 
likely to occur in the summer/fall season when environmental conditions 
are better. RD at 118. Assuming that the maximum number of approaches 
(353) is achieved every year during the waiver period, up to 18 WNP 
whales could be approached (0.5 percent times 3,530 approaches). 
However, it is likely that less than 18 WNP gray whales would be 
approached given that a substantial number of approaches are expected 
to occur during summer/fall when conditions are more favorable. Neither 
approaches nor training harpoon throws are lethal, nor are they likely 
to cause more disturbance than approaches or biopsy sampling for 
research purposes. Id. a 123. An approach on a WNP gray whale, the most 
likely scenario, is not expected to have any effect on the stock's 
ability to attain and maintain OSP. Id. at 120.
    The regulations I am issuing in this document contain a number of 
protections for WNP gray whales to manage the remote risk associated 
with the hunt. These include: (1) an alternating hunt season to 
minimize risk to WNP gray whales; (2) requirements that the Tribe 
obtain separate authorization for WNP gray whales for the winter/spring 
season if take is anticipated; (3) a limit of one strike within a 24-
hour period during a winter/spring hunt as a precaution against 
striking multiple WNP gray whales that might be traveling together; and 
(4) measures to insure that the processes are available to allow for 
the identification of WNP gray whales. In addition, the hunt must cease 
if NMFS determines that a WNP gray whale is struck during the hunt and 
no further hunt permits may be issued unless and until measures to 
prevent any additional strikes on WNP gray whales are implemented.
    Although the tribunal determined that an ITA was necessary during 
the winter/spring hunt, my decision is that the risk to WNP gray whales 
should be managed in a more adaptive way based on an assessment of the 
risk to WNP gray whales associated with the hunting authorized under a 
permit. The actual hunting authorized under a permit will provide a 
more realistic and accurate picture of the risk to WNP gray whales than 
the WNP risk assessment published by Moore and Weller (2019) which 
includes some unrealistic assumptions regarding hunting activity in the 
winter/spring. Moore and Weller (2019) show that there is a risk to 
WNPs that needs to be managed, but whether an ITA is required should be 
based on the actual levels of hunting that are authorized. Accordingly, 
under the final regulations, the Regional Administrator is required to 
assess, in conjunction with the NOAA Office of Protected Resources, 
whether take is anticipated based on the hunting proposed in the 
Makah's permit application. If take of WNP gray whales is anticipated, 
the permit must include a condition requiring separate authorization 
for the winter/spring hunt.
    This approach is a middle ground between the Recommended Decision 
and the proposed regulations. Under the Recommended Decision, an ITA is 
necessarily required to hunt during the winter/spring season, even if 
the

[[Page 51627]]

information available during the permitting process indicates that the 
actual hunting authorized under the hunt permit will not result in the 
take of WNP gray whales. The proposed regulations would require the 
Makah to obtain ``relevant incidental take authorization for other 
marine mammals.'' This language does not specifically require any 
further analysis related to WNP gray whales at the permitting stage, 
even though the best scientific evidence presented at the hearing shows 
there is a risk of take. The final regulations I adopt in this document 
require NMFS to address risks to WNP gray whales by ensuring that any 
anticipated take of WNP gray whales is separately authorized before a 
winter/spring hunt.
    Based on Moore and Weller (2019), the lethal take of a WNP is a 
remote possibility under the final waiver and regulations. The sub-
lethal accidental takes forecasted in this analysis (which would need 
to be separately authorized and evaluated) will not impact WNP fitness, 
as any effects are expected to be minor and temporary--similar to the 
impacts associated with scientific research activities and whale 
watching. RD at 120. These sub-lethal takes are not expected to have 
any impacts on the ecosystem. Finally, although this finding is not 
required by the MMPA in this case, the sub-lethal takes forecasted by 
Moore and Weller (2019) are not expected to impact the WNP stock's 
ability to obtain or maintain its OSP. Id.

Conclusion on the MMPA Statutory Criteria

    Based on the proposed waiver and regulations, the Recommended 
Decision, the record assembled by the tribunal, and the comments of the 
parties submitted in accordance with 50 CFR 228.20(d), I have 
determined that a waiver should be granted and implementing regulations 
should be adopted as set forth herein. I agree with and affirm the 
tribunal's conclusion in section VIII of the Recommended Decision as 
part of this Final Decision, with the following exceptions. Although I 
agree that NMFS has adequately considered the distribution, abundance, 
breeding habits, and times and lines of migratory movements of WNP gray 
whales, these specific determinations are not required for the WNP 
stock under section 101(a)(3)(A) of the MMPA because the waiver is 
limited to the ENP stock. I also disagree with the conclusion that an 
incidental take permit is necessarily required during periods when WNP 
gray whales might migrate through the Makah U&A.

IX. Scientific Information and Analysis Developed After the Recommended 
Decision

    After the tribunal issued the Recommended Decision, NMFS completed 
an SDEIS on the Makah Tribe's Request to Hunt Gray Whales. The SDEIS 
was issued on July 1, 2022 (88 FR 80300), and, on the same day, NMFS 
opened a 45-day public comment period, which was subsequently extended 
until October 14, 2022. 87 FR 50319, August 16, 2022. On November 17, 
2023, NMFS issued an FEIS. 88 FR 80300.
    As gray whales are well studied, new scientific research is 
published regularly, and the SDEIS and FEIS include additional 
scientific evidence and analyses that were not available at the time of 
the hearing before the tribunal. There is updated information on the 
abundance of ENP gray whales (Stewart and Weller, 2021a; Eguchi et al. 
2022a; Eguchi et al. 2023a, Eguchi et al. 2024), abundance of PCFG gray 
whales (Harris et al. 2022), calf production (Stewart and Weller, 
2021b, Eguchi et al. 2022b, Eguchi et al. 2023b), potential impacts to 
WNP gray whales (Moore et al. 2023), factors affecting the abundance 
and distribution of ENP whales (Perryman et al. 2021; Joyce et al. 
2022; Stewart et al. 2023), carrying capacity (Stewart et al. 2023), 
gray whale morphology (Bierlich et al. 2023), and gray whale stock 
structure (IWC 2021, NMFS 2023; Weller et al. 2023). Under NMFS's 
procedural regulations, I have discretion to ``remand the hearing 
record to the presiding officer for a fuller development of the 
record.'' 50 CFR 228.21(a). The additional information on gray whales 
developed after the hearing raises the question of whether a remand is 
warranted.
    Following the issuance of the FEIS, I provided the parties with an 
opportunity to submit comments. The parties were able to comment on 
recent scientific information and on whether any additional procedures 
were necessary in this formal rulemaking. Some parties argued a remand 
was warranted. Others noted that the comment period provides adequate 
due process consistent with the procedures in section 556(e) of the 
APA, which provides that when ``an agency decision rests on official 
notice of a material fact not appearing in the evidence in the record, 
a party is entitled, on timely request, to an opportunity to show the 
contrary.''
    My decision on the waiver and the regulations rests on the material 
facts in the record assembled by the tribunal in support of the 
Recommended Decision, the proposed waiver and regulation, and the 
comments submitted in accordance with 50 CFR 228.20(d). I considered 
additional information to evaluate whether that information warranted a 
remand. In making this assessment, I considered whether the new 
information would compel changes to my determinations. As described in 
greater detail below, the new information does not compel changes. The 
recent scientific information is largely consistent with the 
information available at the time of the hearing, and the final waiver 
and regulations include processes to address new information through 
the permitting process.

ENP Abundance

    Since 1967, NMFS has conducted abundance surveys of ENP gray whales 
and regularly (annually in recent years) updates the estimates of ENP 
abundance and calf production. In addition, abundance estimates for the 
PCFG have been updated (Harris et al. 2022). It is expected that these 
estimates will change over time. When the hearing was held in 2019, the 
abundance of ENP gray whales was estimated to be 26,960 individuals. RD 
at 14. After the hearing, these estimates were updated (Stewart and 
Weller 2021a; Eguchi et al. 2022a; Eguchi et al. 2023a, Eguchi et al. 
2024) using the same modeling approaches that generated the estimates 
considered in the Recommended Decision. At the time of the comment and 
response period, which ran from November 27, 2023, to January 17, 2024, 
the ENP abundance was estimated at 14,526 whales, a decline of 
approximately 46 percent from 2016 to 2023 (Eguchi et al. 2023a). In 
March 2024, Eguchi et al. (2024) published an estimated abundance of 
19,260. This estimate represents a 32.6 percent increase from the 2022/
2023 season. This updated estimate is consistent with the previously 
observed pattern of fluctuating abundance (Eguchi et al. 2024). That 
is, observed declines are followed by an increase in population.
    While the ENP population experienced a significant decline in 
abundance, fluctuations in abundance were anticipated based on the 
long-term data sets that were included in the record before the 
tribunal. Tab 1H at 15. The tribunal recommended a low abundance 
threshold based, in part, on the most recent UME. RD at 151. Large-
scale fluctuation in the population abundance occurred from the 1987/
1988 abundance surveys to the 1992/1993 abundance surveys 
(approximately a 40 percent decline) and from the 1997/1998 abundance 
surveys to 2001/2002 abundance surveys (approximately a 24

[[Page 51628]]

percent decline). Tab 1H at 15. UMEs occurred in 1999-2000 and again in 
2019-2023. RD at 98.
    While the year-over-year decline from 2016 to 2023 represented a 
novel pattern (Eguchi et al. 2023a), the most recent estimate shows an 
increase in the ENP population, indicating population-level resilience 
in ENP gray whales (Eguchi et al. 2024). I expect the population to 
continue to rebound from the current decline as it has done following 
each of the prior declines. Eguchi et al. (2023) notes that ``despite 
occasional declines in abundance since the time-series of data began in 
1967, the population has recovered.'' Eguchi et al. (2024) notes that 
``the population has shown a generally increasing trend since the time-
series of data began in 1967.'' Even before the latest abundance 
estimate, there were hints of a turnaround in the most recent decline: 
strandings decreased, calf counts increased, and the body condition of 
gray whales in the breeding lagoons improved (Eguchi et al. 2023b; 
LSIESP 2023; NMFS 2023a). Consistent with the tribunal's 
recommendation, the final regulations include an abundance threshold to 
protect the ENP stock if the abundance of the stock falls below OSP. 
NMFS also plans to closely monitor the population with regular surveys 
to estimate abundance, calf production and body condition of gray 
whales (Eguchi et al. 2024).
    The estimate of PCFG abundance was 232 individuals in 2017. RD at 
96; Tab 96 at 33. Harris et al. (2022) updated the PCFG abundance using 
the modeling framework in Calambokidis et al. (2019; Tab 96) to 
maintain continuity with past estimates. As with Calambokidis et al. 
(2019), the researchers evaluated the abundance at three nested spatial 
scales: (1) NCA-NBC (i.e., the definition of the PCFG range); (2) OR-
SVI, which is within the NCA-NBC; and (3) the Makah U&A (MUA), which is 
within the OR-SVI. Calambokidis et al. (2019) estimated 232 whales in 
NCA-NBC region; 196 in the OR-SVI region, and 117 in the MUA region in 
2017. Tab 96. Harris et al. (2022) estimated 212 whales in the NCA-NBC 
region, 199 in the OR-SVI region, and 119 in the MUA region in 2020. 
These most recent abundance estimates, though declining slightly from 
an observed peak in abundance in 2015, continue to indicate that the 
PCFG population has been stable over the last 20 years (Harris et al. 
2022). Harris et al. (2022) found mixing rates for PCFG and non-PCFG 
individuals between December and May were similar to Calambokidis et 
al. (2019) and recommended referring to Calambokidis et al. (2019) for 
mixing rates estimates. In addition, the PCFG estimate remains above 
the abundance thresholds considered in the proposed regulation, and 
carried over to the final regulations, and the analyses. Thus, the new 
information on the PCFG abundance is not significantly different from 
the information considered in the Recommended Decision.
    I have determined that the updated information on ENP abundance, 
including the PCFG abundance, does not warrant a remand. The PCFG 
population remains stable and the recent decline in the ENP population 
is similar to previous declines in abundance from which the stock has 
recovered. All this is consistent with the evidence before the tribunal 
and does not compel a different result. Rather, the decline shows the 
wisdom of the tribunal's recommendation to set an abundance threshold 
for ENP gray whales as well as the proposed regulations allowing for 
reductions in PCFG strike limits. I have included both these measures 
in the final regulations.

Factors Affecting Gray Whale Abundance and Distribution

    Several recent studies have examined factors affecting gray whale 
abundance and distribution on the northern feeding grounds. Gray whales 
use various feeding techniques including suction feeding on prey that 
lives on or just above the seafloor and engulfing/skimming prey in the 
water column and at the surface. Tab 90F at 22. As described in the 
DEIS (Tab 90F at 3-98 to 3-99) and FEIS, a number of studies (e.g., 
Grebmeier et al. 2006; Moore et al. 2003; Moore 2005; Moore et al. 
2007; Stafford et al. 2007) suggest that gray whales are shifting their 
foraging areas in the Pacific Arctic where their diet is dominated by 
benthic amphipods (Moore et al. 2022). The food web in the Pacific 
Arctic is dependent on sea ice, and the Arctic is now characterized by 
warmer conditions with less sea ice coverage. Tab 90F at 3-99. Sea ice 
retreat occurs earlier in the season, resulting in increased 
productivity in the water column but reducing the amount of organic 
carbon reaching the seafloor (Grebmeier et al. 2006). Algae growing on 
the underside of the sea ice dies and falls to the bottom, fertilizing 
the benthic sediments that amphipods depend on. In addition, the lack 
of sea ice increases currents, washing away the fine sediments that are 
habitat needed for tube-building amphipods. These tube-building 
amphipods have a high lipid content (Grebmeier et al. 2006; Grebmeier 
et al. 2010). While abundance has remained constant, crustacean biomass 
has decreased. The decline in biomass is most likely associated with 
species distribution shifts of benthic amphipods and other crustaceans. 
The decrease in organic carbon reaching the seafloor and the increased 
current speed are conditions that favor smaller, less nutritious 
amphipods (Stewart et al. 2023).
    Stewart et al. (2023) found that the combined effect of sea ice 
cover and benthic productivity on gray whale population dynamics has 
driven major boom-bust cycles, including two modern booms in abundance 
that may have exceeded pre-exploitation levels. They found gray whale 
population dynamics were strongly linked to prey access and biomass, 
meaning that in years with low prey biomass and low access to prey 
(i.e., high ice cover), ENP gray whales experienced major mortality 
events. While previous work has suggested that early sea ice retreat 
may benefit gray whales by increasing access to their prey base (Tab 
90F at 3-86), Stewart et al. (2023) found that changing sea ice extent 
also affects benthic and pelagic communities in ways that may 
negatively impact higher trophic species in the Arctic. When low prey 
biomass coincided with high ice cover, ENP gray whales experienced 
large-scale declines in abundance.
    Joyce et al. (2023) found a negative relationship between gray 
whale counts and ice concentration in the northeast Chukchi Sea, along 
with absence of gray whales in foraging hot spots during years with 
delayed ice break-up and during periods of dense ice cover. Further, 
the authors found that the onset of acoustic detection of gray whales 
had a strongly positive relationship with ice break-up date, meaning 
that gray whales arrive later to the foraging grounds when sea ice 
break-up is later (Joyce et al. 2023). In various locations throughout 
the Bering and Chukchi Seas, Moore et al. (2022) found that gray whale 
calls were associated with winter sea ice retreat, and that gray whale 
distribution correlated with prey abundance and wind patterns that 
influence prey abundance.
    Perryman et al. (2021) noted the high interannual variability in 
calf production between 1994 and 2016 and found that environmental 
indices (the Pacific Decadal Oscillation and the North Pacific Index) 
in combination with ice cover in the Bering and Chukchi Seas during the 
early phase of gestation are important factors in explaining the 
observed variability. They concluded that access to prey early in the 
gestation period is critical to reproductive success in the ENP 
population (Perryman et al. 2021).

[[Page 51629]]

    In their review of reported climate change effects on gray whales 
and described in the DEIS and FEIS, Salvadeo et al. (2013; see Tab 90F 
at 3-197) cited a number of likely gray whale responses to global 
warming. Some of these have been realized in recent years coinciding 
with the recent UME, including fewer whales in the Gulf of California, 
reduced number of whales in the breeding lagoons (LSIESP 2023), and 
shifting occurrence in feeding areas (Moore et al. 2022; Joyce et al. 
2023).
    The record assembled by the tribunal considered large-scale 
fluctuations in abundance with significant declines experienced during 
three mortality events. Tab 1H at 15. Two of these mortality events 
were declared UMEs. RD at 98. The recent research supports that gray 
whales are sensitive to dynamic and changing conditions due to climate 
change. Stewart et al. (2023) suggest that changes in benthic biomass 
in the future will likely drive changes in the carrying capacity of 
gray whales. These recent studies provide us with a better 
understanding of the mechanisms driving the fluctuations in the 
population. They do not contradict our conclusions that the removal of 
25 ENP gray whales over 10 years, an average of 2.5 gray whales per 
year, would have no appreciable effect on the population or its ability 
to remain within OSP and be a functioning part of the ecosystem.

Calf Production

    Since 1994, counts of female gray whales with calves have been 
conducted nearly annually from the Piedras Blancas Lighthouse Station 
in central California. Tab 90F at 3-73. Both the survey methods and the 
analytical approach used to estimate total annual calf production 
remained consistent through the 2019 survey (Perryman et al. 2021). In 
2021, Stewart and Weller introduced a new Bayesian modeling approach to 
account for uncertainty during unsampled periods (i.e., evenings, 
weekends, and unworkable weather). In general, scientific models and 
analyses are refined and updated as new information and improved 
techniques become available. Stewart and Weller (2021b) describe the 
advantages to the updated calf production model, including that the 
updated approach provides a more complete accounting of the uncertainty 
associated with unobserved periods.
    Using this Bayesian modeling approach, Eguchi et al. (2022b) and 
Eguchi et al. (2023b) estimated calf production since 1994. While the 
Bayesian approach generally resulted in greater estimates than the 
earlier method by Perryman et al. (2002), the trends in calf production 
were almost identical when compared to estimates under the previous 
approach (Stewart and Weller 2021b).
    Eguchi et al. (2022b) found a linear relationship between estimated 
abundance and estimated calf production, suggesting that the factors 
driving or mediating rates of ENP gray whale fecundity and mortality 
may be similar. Coinciding with the onset of the current UME, calf 
production has been low since 2019 (Stewart and Weller 2021b; Eguchi et 
al. 2022b; Eguchi et al. 2023b). While still lower than many estimates 
in the time series, calf production in 2023 (412 calves) was nearly 
double the estimate in 2002 (Eguchi et al. 2023b).
    Based on the long-term data series, periodic declines in calf 
production are expected to occur. The population experienced decreased 
production from 1999 to 2001 and from 2007 to 2010. Tab 90F at 3-75. 
From 2018 to 2022, the population again experienced decreased 
production (Eguchi et al. 2023b). The earlier declines in calf 
production generally lasted 3-4 years followed by increased production 
(see Weller and Perryman 2017; Tab 52O). This suggests that the current 
pattern may be typical of ENP gray whale population dynamics (Stewart 
and Weller 2021b), and we anticipate that calf production will increase 
following this most recent decline.
    As described above, the trends using the Bayesian modeling approach 
were almost identical when compared to estimates under the previous 
modeling approach. Thus, Stewart and Weller (2021b) did not anticipate 
the updated approach leading to significant reinterpretations of calf 
estimates for management purposes. I agree and find that the new calf 
estimates are consistent with the estimates in the record before the 
tribunal.

UME

    The tribunal considered the UME that began in 2019 in the 
Recommended Decision. RD at 98-103. It found that a waiver could still 
be granted despite the UME and provided recommendations related to this 
(see responses to comments 12 and 13 for my consideration of these 
recommendations). As described above, elevated gray whale strandings 
occurred along the west coast of North America from Mexico through 
Alaska beginning in 2019. The Working Group on Marine Mammal Unusual 
Mortality Events determined the recent UME ended as of November 2023.
    NMFS documented 690 strandings during the 2019-2023 UME (https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2023-gray-whale-unusual-mortality-event-along-west-coast-and, accessed March 17, 
2024) with peak strandings occurring from December 17, 2018, to 
December 21, 2020. From the 2015/2016 survey season to the 2022/2023 
survey season, the abundance estimate for the ENP stock declined 
approximately 46 percent (Eguchi et al. 2023a). However, the PCFG 
abundance estimate did not experience a proportional decline from pre-
UME levels to 2020 (Harris et al. 2022). To date, only one stranded 
whale during the UME has been matched by photo-identification to the 
PCFG. Genetic analysis on samples collected from stranded whales has 
not yet been completed.
    As described above, the ENP gray whale population is known to 
undergo large-scale, periodic fluctuations in abundance, including 
during a prior and similar UME in 1999-2000 in which 651 gray whales 
stranded. Oceanographic factors that limited food availability for gray 
whales were identi[filig]ed as likely causes of the UME (Stewart et al. 
2023).
    Based on ecosystem conditions observed from 2010 to 2019, research 
found changes in the gray whale distribution and feeding behaviors as 
well as changes in gray whale prey associated with ecosystem changes in 
the sub-Arctic and Arctic feeding areas (Moore et al. 2022). The 
population model by Stewart et al. (2023), which focused on localized 
feeding areas in northern Bering and Chukchi seas, linked the 1999-2000 
UME and the 2019-2023 UME to changes in sea ice cover and in the amount 
of gray whale prey. The team of scientists investigating the 2019-2023 
UME determined the preliminary cause was localized ecosystem changes, 
which included both access to and the quality of prey in sub-Arctic and 
Arctic feeding areas, leading to poor nutritional conditions of the 
whales, decreased birth rates, and, in several whales, death due to 
malnutrition (https://www.fisheries.noaa.gov/national/marine-life-distress/2019-2023-eastern-north-pacific-gray-whale-ume-closed, 
accessed May 3, 2024).
    Both the 1999-2000 UME and the 2019-2023 UME caused significant 
reductions to the ENP population; however, the population remains 
abundant and at a level where the effect of the limited hunt (25 whales 
over 10 years) on the population is so low that it is not appreciable. 
The gray whale population has demonstrated its resiliency in recovering 
from its endangered status caused by historical commercial whaling, 
being delisted

[[Page 51630]]

from the ESA 30 years ago in 1994, and recovering after each of the 
prior drops in its abundance. For example, scientists documented a 
healthy rebound of the ENP population after the 1999-2000 UME to about 
27,000 whales in 2015/2016, and we predict it will rebound similarly 
from the 2019-2023 UME. NMFS will continue to monitor the population to 
track changes. The most recent abundance estimate shows an increase in 
abundance from the 2022/2023 season to the 2023/2024 season (Eguchi et 
al. 2024). Scientists have also documented that calf counts have 
increased and the body condition of gray whales has improved (Eguchi et 
al. 2023b).
    The additional information that has emerged since the UME does not 
change my decision to adopt the tribunal's finding that a waiver may be 
granted during a UME. The 2019-2023 UME ended as of November 2023, and 
information on the UME that has emerged since the hearing suggests that 
ENP gray whales will recover from the 2019-2023 UME.

Carrying Capacity

    As with abundance and calf production, it is expected that carrying 
capacity estimates will change over time. RD at 95. Stewart et al. 
(2023) constructed a demographic model of the ENP gray whale population 
using long-term datasets, as well as detailed temporal data on sea ice 
cover and crustacean (prey) biomass in the Arctic summer feeding 
grounds. The researchers estimated that the long-term average carrying 
capacity is 22,062 (18,967 to 24,725), which is lower than the median 
of the annual carry capacity values (24,500, 95 percent CI 21,771 to 
27,797). The authors found that gray whale population dynamics were 
strongly linked to prey access and biomass, meaning that in years with 
low prey biomass and low access to prey (i.e., high ice cover), gray 
whales experienced major mortality events. While the estimate in 
Stewart et al. (2023) is lower than the estimate in Punt and Wade 
(2012) that was available at the time of the hearing, this information 
is consistent with the hearing record as it is expected that carrying 
capacity will change over time (see Tab 102 at 29 to 31).
    Carrying capacity is the upper bound of OSP. I have included 
precautions in the regulations to ensure that the stock is within OSP 
before a hunt is authorized and have required that hunting cease if the 
stock falls below the lower bounds of OSP. These measures are based on 
the tribunal's recommendation to set an abundance threshold and the 
requirements of section 103(a) of the MMPA.

Stock Structure

    The IWC Scientific Committee conducted annual (2014-2018) range-
wide workshops on the status of North Pacific gray whales to identify 
plausible stock hypotheses consistent with the data available. At the 
time of the hearing, the two primary hypotheses deemed most plausible 
considered two separate ``breeding stocks'' or biological populations 
(western and eastern). Hypothesis 3a assumes that the western breeding 
stock is extirpated, whales show maternal feeding ground fidelity, and 
the eastern breeding stock includes three feeding aggregations: PCFG, 
NFG, and a WFG. Hypothesis 5a assumes that both breeding stocks are 
extant, that the western breeding stock feeds in the western North 
Pacific, and whales feeding off Sakhalin include individuals from the 
western and eastern breeding stock. RD at 68; Tab 80B at 41.
    More recently, the IWC identified hypotheses 4a and 7a as high 
priority for inclusion in the modeling framework used for assessing 
stock status of North Pacific gray whales (IWC 2021). Hypothesis 4a 
considers two breeding stocks characterized by maternal feeding ground 
fidelity. The eastern breeding stock consists of the NFG and PCFG 
whales. The second, unnamed breeding stock includes the western feeding 
group whales that breed with each other on the migration route to 
Mexico for overwintering. Hypothesis 7a considers three breeding stocks 
characterized by maternal feeding ground fidelity: (1) the eastern 
breeding stock consists of NFG and PCFG whales that overwinter in 
Mexico, (2) the western breeding stock consists of whales that feed in 
the western North Pacific and overwinter in the Vietnam-South China Sea 
sub-area, and (3) an unnamed breeding stock consists of whales that 
feed in the western North Pacific and breed with each other on the 
migration route to Mexico for overwintering (IWC 2021). Neither of 
these hypotheses conflicts with NMFS's characterization in the SARs 
that the ENP gray whale stock includes the PCFG.
    In 2018, NMFS initiated a 5-year review of the endangered WNP gray 
whale under the ESA and solicited information from the public. 83 FR 
4032, January 29, 2018. A 5-year review is a periodic analysis of a 
species' status conducted to ensure that the ESA-listing classification 
of a species is accurate. The WNP gray whale is listed under the ESA as 
a DPS. For the purpose of the ESA review, WNP gray whales were defined 
as ``gray whales that spend all or part of their lives in the western 
North Pacific.'' Given that this definition for evaluating WNP gray 
whale DPS status differed fundamentally from the 1993 listing language 
(58 FR 3121, January 7, 1993), an SRT was convened. The SRT found that 
the definitions of ENP and WNP gray whales provided in the Notice of 
Determination to Delist the Eastern North Pacific Stock (58 FR 3121, 
January 7, 1993) and in the Final Rule to Remove the Eastern North 
Pacific Population of the Gray Whale From the List of Endangered 
Wildlife (59 FR 31094, June 16, 1994) did not accurately describe how 
gray whales utilize and partition their habitat in the North Pacific 
and those definitions were no longer valid based on the best available 
scientific evidence (Weller et al. 2023).
    The SRT found that three gray whale groups or ``units'' met the ESA 
DPS policy criteria for discreteness and significance: (1) gray whales 
that spend their entire lives in the WNP (termed the ``WNP-only 
unit''); (2) gray whales that feed in the WNP in the summer and fall 
and migrate to the ENP (including Mexico) in the winter (``WNP-ENP 
unit''); and (3) a single unit consisting of both the WNP-only and WNP-
ENP units (Weller et al. 2023). Given this, they considered two 
mutually exclusive options for a recommended DPS listing: (1) WNP-only 
and WNP-ENP units are separate DPSs or (2) WNP-only and WNP-ENP are 
single DPS. The SRT recommended that the combined units be used to 
designate a single DPS given that it is not possible to readily assign 
whales to either unit and, thus, not scientifically practicable to 
assess the status of each unit separately (Weller et al. 2023).
    Based on the review of the best available scientific and commercial 
information, NMFS determined that the WNP gray whale population meets 
the discreteness and significance criteria of the DPS (NMFS 2023b). The 
SRT team concluded that the evidence supporting the discreteness of a 
WNP-only and the combined unit from gray whales that spend their entire 
lives in the ENP was ``very strong'' (Weller et al. 2023). The 5-year 
review also recommended that the WNP DPS remain classified as 
endangered (NMFS 2023b). The status and 5-year reviews do not provide 
new information that would change my determination regarding the stock 
definitions for gray whales under the MMPA.

Body Condition

    One party commented that a recent study by Lemos et al. (2020) 
provides new information that must be added to

[[Page 51631]]

the record. Lemos et al. (2020) is described in the FEIS (NMFS 2023a). 
Using drone photogrammetry, Lemos et al. (2020) applied an index of 
body area to measure and compare body condition of ENP gray whales 
foraging off the coast of Oregon between 2016 and 2018. Similar to the 
body mass index for humans, the body area index (BAI) is a continuous, 
unitless metric to measures and compare whale body condition. Lemos et 
al. (2020) found that BAI varied with age, sex, and reproductive 
status, with calves and pregnant females displaying the highest BAI 
followed by resting females, mature males, and, finally, lactating 
females. That is, lactating females are one of the most depleted 
groups; pregnant females are one of the most robust groups. Body 
condition was significantly better in 2016 than in 2017 and 2018, which 
was associated with 2 prior years of poor local upwelling conditions 
that may have caused reduced prey availability (Lemos et al. 2020). 
That there are fluctuations in gray whale body condition based on sex, 
age, reproductive status, seasonality and environmental conditions, 
including prey availability, is not a novel concept that would change 
any of my determinations.

Gray Whale Morphology

    Bierlich et al. (2023) investigated morphological differences 
(length, skull, and fluke span) and compared length-at-age growth 
curves for ENP and PCFG whales. The researchers analyzed estimated 
morphological measurements of PCFG whales from 2016-2022 using drone-
based measurement techniques. The length-at-age data on ENP gray whales 
was obtained from prior studies using stranding, whaling, and 
photogrammetry data (1926-1997); fluke and skull measurements were from 
data collected during scientific whaling from 1959-1969. PCFG and ENP 
whales were found to have similar growth rates, while PCFG whales 
reached shorter asymptotic lengths (about 8.3 percent shorter for 
females and 3.8 percent for males). The authors also found that PCFG 
gray whales have significantly smaller skulls (about 2 percent smaller) 
and flukes (about 1 percent smaller) than historical ENP gray whales.
    The authors suggest several reasons as to why PCFG whales are 
smaller, including (1) differences in phenotypic plasticity and (2) 
differences in foraging tactics. Phenotypic plasticity is the capacity 
of a single genotype to exhibit alternate phenotypes depending on the 
environment. The IWC Stock Definition and DNA Testing Working Group 
reviewed the research. They noted that the morphometric differences 
could reflect ecological divergence driven by selection for a smaller 
body size in PCFG whales due to prey resource limitations or aspects of 
the foraging niche. However, this pattern could also develop if whales 
with small body sizes are more likely to recruit into the PCFG rather 
than making the full migration to the Arctic feeding grounds (IWC 
2023). The Working Group also found that the existing 
photo[hyphen]identification and genetic data (citing to Lang et al. 
2012, Lang et al. 2019, Calambokidis et al. 2019) suggest a degree of 
external recruitment into the PCFG, and that the morphological data 
collected on the PCFG range could contain a mixture of animals from 
either of these two groups (external versus internal recruits).
    The results in Bierlich et al. (2023) must be viewed cautiously 
given the disparate data sets, differences in measurement 
methodologies, and lack of temporal overlap in the PCFG and non-PCFG 
ENP data being compared. While the researchers documented differences 
in morphology, the underlying causes for these differences are not 
known and may be driven by processes not related to population 
structure.
    Morphological data is one factor that can be considered in 
delineating demographically independent populations (DIPs). However, 
the DIP handbook cautions against its use to compare groups of animals 
when, among other conditions (1) data collection methods differ between 
investigators and (2) differences between groups could be explained by 
phenotypic plasticity (Martien et al. 2019). In this case, Bierlich et 
al. (2023) rely on data collected using different methods and during 
different time periods for the two groups being compared. In addition, 
they acknowledge the genetic similarity between the ENP and PCFG and 
propose phenotypic plasticity as an explanation for the differences 
found. Phenotypic plasticity is common in animal populations and in 
itself is not a criterion for stock designation (NMFS 2019; NMFS 
2023c).
    Other lines of evidence support the conclusion that the PCFG is a 
feeding group within the ENP stock. For example, external recruitment 
to the PCFG continues to be an important influence in maintaining or 
increasing the size of the PCFG population, and the PCFG do not differ 
from other ENP gray whales with respect to nuclear DNA markers. RD at 
65, 106. The conclusions about the PCFG belonging to the broader ENP 
stock are not changed due to Bierlich et al. (2023).
    Similarly, IWC reviewed this research and found: ``In considering 
new information indicating that morphological differences exist between 
whales feeding on the PCFG feeding ground and those that migrated past 
central California, the Committee noted that, given evidence of 
immigration into the PCFG, morphological data collected from PCFG 
whales may contain a mix of internally and externally recruited 
individuals.'' They concluded that no changes were needed to the 
current gray whale stock structure hypotheses or their modeling 
approach in which PCFG whales belong to a feeding group within the ENP 
stock (IWC 2023).
    Based on the information above, I have concluded that the ENP gray 
whale morphology paper (Bierlich et al. 2023), the WNP status review 
(Weller et al. 2023), and the WNP 5-year review (NMFS 2023b) do not 
present significant new information necessitating a remand. The 
information presented is consistent with the information in the record 
of the ALJ proceeding that there are two stocks of gray whales, ENP and 
WNP, and the PCFG are a feeding group within the ENP stock.

Impacts to WNP Gray Whales

    In 2023, Moore et al. updated the estimates of the probability of 
approaching, unsuccessfully striking, or striking a WNP gray whale 
during the proposed Makah hunt. The re-estimate of the probability of 
striking a WNP was based on the updated population estimate and the 
likelihood of ENP and WNP gray whale occurrence in the hunt area. The 
same model used in 2018 and 2019 analyses (see Tab 61D) was used to 
generate the new estimates (Moore et al. 2023).
    Moore et al. (2023) estimated that for a single interaction with a 
gray whale, the expected probability of it being a WNP whale is 0.8 
percent to 1.2 percent, assuming an ENP abundance between approximately 
16,000 to 11,000 animals. This is up slightly from the estimate of 0.5 
in 2019. Tab 61D. This change is largely driven by using a lower 
abundance estimate for ENP population size. A population of 16,000 to 
11,000 animals is below the most recent abundance estimate of 19,260 
(95 percent CI =17,500-21,300.5), animals (Eguchi et al. 2024). As 
described in section III of this Final Decision and the Response to 
comment 13, the UME was closed as of November 2023, and there are signs 
that the population is recovering. Increases in abundance were seen 
following previous periods of decline and in the most recent abundance 
estimate would be expected

[[Page 51632]]

to result in a decline in the risk to WNP whales.
    According to Moore et al. (2023) and using abundance of between 
16,000 and 11,000 animals, the probability of striking one WNP gray 
whale over the 10-year waiver period is between 11.1 and 16.3 percent, 
assuming all fifteen winter/spring strikes are used. Applying those 
percentages to a population estimate of 11,000 to 16,000 results in 
0.12 to 0.18 WNP gray whales struck over the waiver period; in other 
words, one WNP gray whale struck every 61 to 90 years. There may also 
be 0.71 to 1.06 unsuccessful harpoon throws over the course of the 
waiver. However, it is unlikely that all of the assumptions of the 
analysis will be met. If 3,530 approaches are made during the 10-year 
waiver, we would expect up to 27.7 to 41.6 WNP whales to be approached. 
As described above, the analysis of risk to WNP gray whales is 
conservative and likely overestimates the risk. In addition, the most 
recent abundance estimate (Eguchi et al. 2024) is higher than the 
estimates used in the Moore et al. (2023) risk analysis. Given the 
likelihood of this analysis overestimating the risk to WNP gray whales 
and the slight increase in the likelihood of striking a WNP gray whale, 
the new information represents similar risk levels to those in the 
earlier estimates. Thus, Moore et al. (2023) does not present 
significant new information that would change my determinations. There 
remains a remote risk to WNP gray whales that calls for management. In 
light of this risk, NMFS must assess whether take is anticipated at the 
permitting stage. If take of WNP gray whales is anticipated, separate 
take authorization will be required for the winter/spring hunt.

Summary of New Information

    For the reasons discussed above, the additional scientific 
information developed after the hearing does not warrant a remand 
because the additional information is consistent with or confirms the 
record developed in the ALJ proceeding and would not change any of my 
determinations. NMFS and external researchers developed and I reviewed 
additional information related to gray whales following the hearing. I 
used this information to assess whether a remand was warranted and 
provided the parties with ample opportunity to comment on the 
information.
    On July 1, 2022, NMFS issued a SDEIS and announced a 45-day comment 
period on the SDEIS, which was extended until October 14, 2022, and 
then reopened from October 28 through November 3, 2022. After NMFS 
released its FEIS, I provided the parties with an opportunity to submit 
comments on what, if any, procedural steps may be necessary prior to 
rendering a final decision on the waiver and regulations. I also 
informed the parties that they could utilize the comment period to 
address new analyses on gray whales that emerged since the comment 
period on the SDEIS ended. The comment period began on November 27, 
2023, and ended December 20, 2023. I then gave the parties an 
opportunity to respond to the comments of other parties by January 17, 
2024.
    No parties made a strong showing that remand was warranted during 
the final comment and response period or explained why the trial-type 
proceedings associated with a remand were justified. In supporting the 
need for additional process steps, AWI and PCPW focused much of their 
comments on the recent study by Bierlich et al. (2023) described above. 
That study found significant morphological differences between PCFG and 
ENP gray whale. Based on Bierlich et al. (2023), PCPW suggests that 
NMFS must convene a task force to reassess the status of PCFG whales; 
AWI contends that remand is warranted given this new information. 
NMFS's hearing regulations guiding the permissible procedures in this 
process do not provide for convening a scientific workgroup.
    The commenters contend that the study suggests internal recruitment 
of PCFG whales dominates, assert that NMFS has not recently revisited 
the question of ENP stock structure, and suggest that the morphology 
data is an additional line of evidence supporting designation of the 
PCFG as a stock. Commenters also note that the authors conclude their 
results encourage re-evaluating the population management designation 
of ENP gray whales to consider the PCFG as a separate management unit.
    While morphological data is a consideration in stock delineation, 
the DIP delineation handbook cautions against such use when, as is the 
case here, data collection methods differ and differences in between 
the groups can be explained by phenotypic plasticity. The authors of 
the study acknowledge the genetic similarity between ENP and PCFG 
whales and propose phenotypic plasticity as a plausible explanation 
(Bierlich et al. 2023). The underlying causes for the differences in 
PCFG and ENP morphology was not identified through this study and may 
be driven by processes not related to stock structure.
    Other lines of evidence continue to support that the PCFG is a 
feeding aggregation within the ENP. The PCFG do not differ from other 
ENP gray whales with respect to nuclear DNA. RD at 106. In addition, 
external recruitment and breeding between PCFG and ENP gray whales 
continues to occur. RD at 63, 65. The IWC in reviewing Beirlich et al. 
(2023) concluded that ``given the evidence of immigration into the 
PCFG, morphological data collected from PCFG whales may contain a mix 
of internally and externally recruited individuals'' (IWC 2023). The 
information in Bierlich et al. (2023) does not represent significant 
new information that warrants revisiting the determinations made by the 
tribunal related to gray whale stock structure. NMFS regularly reviews 
the status of the ENP gray whale stock through its SARs developed under 
section 117 of the MMPA. The most recent SAR (NMFS 2021) for ENP gray 
whales continues to consider the PCFG as a feeding aggregation within 
the ENP. In addition, the regulations include measures specific to the 
PCFG to ensure they maintain their current stable population status, 
which ensures the hunt will not preclude the PCFG from being designated 
a stock in the future, if warranted.

IX. Required Statements Related to Final Regulations

    The MMPA requires that either before or concurrent with the 
publication of these regulations I make certain statements. 16 U.S.C. 
1373(d). This section includes those statements.

Statement of the Estimated Existing Levels of the Species and 
Population Stocks of the Marine Mammal Concerned

    ENP gray whales are the subject of the waiver and regulations. The 
ENP gray whale abundance estimate is 19,260 (95 percent CI =17,500-
21,300.5), and the resultant minimum abundance estimate is 18,430.

Statement of the Expected Impact of the Proposed Regulations on the OSP 
of Such Species or Population Stock

    Punt and Wade (2012) estimated the 2009 population to be at 85 
percent of the carrying capacity (posterior mean of 25,808) and at 129 
percent of MNPL. Based on data in Punt and Wade (2012), MNPL was 
approximately 16,000 whales at that time. This and the most recent 
abundance of gray whales (19,260) (Eguchi et al. 2024) suggest the 
stock is above MNPL (i.e., within OSP). Analyses that are more recent 
suggest that the carrying capacity of the ENP stock has changed. 
Stewart et al. (2023)

[[Page 51633]]

estimate long-term average carrying capacity at 22,062. In the absence 
of direct measurements, a model-derived value of 60 percent of carrying 
capacity can be used to estimate MNPL, which is the lower bound of OSP. 
Using this approach, the data in Stewart et al. (2023) suggests that 
MNPL is 13,237 animals. This also suggests the ENP stock is currently 
within OSP. Because the level of hunting is so low and because hunting 
can only occur if the stock is within OSP and will not cause the stock 
to fall below OSP, the regulations have no effect on the OSP of ENP 
gray whales.

Statement Describing the Evidence Before the Agency That Forms the 
Basis for the Regulations

    In developing the waiver and regulation, I relied on the proposed 
waiver and regulations, the record assembled by the tribunal, the 
Recommended Decision, and the public comments submitted in accordance 
with 50 CFR 228.20(d). After the Recommended Decision was issued, I 
considered additional information in assessing whether a remand was 
warranted as described in section IX of this Final Decision.

Any Studies/Recommendations Made by or for the Agency or the MMC That 
Relate to the Establishment of the Regulations

    The record assembled by the tribunal includes numerous studies and 
recommendations relevant to the establishment of these regulations. 
Additional studies since the hearing are considered in section IX. 
Based on these studies, I determined a remand was not warranted. As 
described in section VIII, NMFS consulted with the MMC and considered 
their recommendations in developing the proposed and final regulations.

X. Ultimate Findings and Conclusions

    The waiver and the implementing regulations are based on the best 
scientific evidence available. In making this Final Decision, NMFS 
considered the voluminous scientific record assembled by the tribunal. 
After the comment period closed on the Recommended Decision, I 
evaluated the latest scientific information and determined that a 
remand to the tribunal was not warranted. NMFS has consulted with the 
MMC on numerous occasions. The MMC submitted comments on the 2015 DEIS 
and provided written advice in response to two NMFS requests for 
consultation in 2017. Tabs 1I, 1K, 1L, 1O, 1P. The MMC also provided 
proposed findings of fact and conclusions of law in March 2020. Tab 
114. In October 2021, I sent a letter to the Executive Director of the 
MMC welcoming further consultation during the public comment period on 
the Recommended Decision. The MMC submitted comments on the Recommended 
Decision during the public comment period. The MMC also submitted 
comments on the SDEIS and provided a response to other parties' 
comments in January 2024.
    In issuing this waiver, I have given due regard to the effect of 
the waiver on the distribution of ENP gray whales, including their 
distribution within the PCFG range; abundance; breeding habits; and 
times and lines of migratory movements of the ENP gray whale stock. 
Consistent with the tribunal's determinations, I find that the effect 
of the hunt on all four factors is minimal. RD at 112. The waiver is in 
accord with sound principles of resources protection and conservation 
as provided in the MMPA's purposes and policies, and the regulations 
are consistent with the MMPA's purposes and policies. The tribunal 
found it ``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,'' and I 
agree. RD at 116. The ENP stock is well studied and capable of 
obtaining and maintaining OSP despite decades of hunting at far greater 
levels than I am authorizing. To insure that the taking under the 
regulations will not disadvantage the stock, hunting is not permitted 
unless the stock is within its OSP.
    I have fully considered the effect of the regulations on existing 
and future levels of the ENP and WNP gray whale stocks, the marine 
ecosystem and related environmental considerations, and existing 
international and treaty obligations of the United States. I have also 
fully considered the economic and technological feasibility of the 
implementation of the proposed regulations. I have determined the 
regulations will not affect the conservation, development, and 
utilization of fishery resources. Risk to WNP gray whales from the 
implementation of the regulations is an additional factor that I have 
fully considered in promulgating the regulations.
    I have given full consideration to all relevant factors and, for 
the reasons described herein, am issuing the waiver and the regulation 
to provide a framework for a limited ceremonial and subsistence hunt 
for ENP gray whales by the Makah Indian Tribe in accordance with their 
reserved whaling rights under the Treaty of Neah Bay of 1855 and the 
MMPA.

XI. Classification

Rulemaking Authority

    I have waived the MMPA take moratorium pursuant to 16 U.S.C. 
1371(a)(3)(A) to allow for a limited hunt on ENP gray whales by the 
Makah Tribe and promulgated regulations to govern the issuance of hunt 
permits and the hunt itself pursuant to 16 U.S.C. 1373.

NEPA

    NMFS prepared an FEIS for this action. The FEIS was filed with the 
Environmental Protection Agency on November 10, 2023. A notice of 
availability was published on November 17, 2023. 88 FR 80300. NMFS 
issued a ROD identifying the selected alternative. A copy of the ROD is 
available from NMFS (see ADDRESSES) and at https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribal-whale-hunt.

Tribal Impact Statement (E.O. 13175)

    E.O. 13175 of November 6, 2000, Presidential Memoranda of April 29, 
1994; November 5, 2009; and January 26, 2021 (titled Memorandum on 
Government-to-Government Relations with Native American Tribal 
Governments; Presidential Memorandum on Tribal Consultation; and Tribal 
Consultation and Strengthening Nation-to-Nation Relationships, 
respectively), Department of Commerce Administrative Order 218-8: 
Consultation and Coordination with Indian Tribal Governments (April 26, 
2012), Department of Commerce Tribal Consultation and Coordination 
Policy (May 21, 2013), and NOAA's Procedures for Government to 
Government Consultation with Federally Recognized Indian Tribal 
Governments (November 2013, amended June 2023) outline the 
responsibilities of NMFS in matters affecting Tribal interests. Section 
161 of Public Law 108-199 (188 Stat. 452), as amended by section 518 of 
Public Law 108-447 (118 Stat. 3267), extends the consultation 
requirements of E.O. 13175 to Alaska Native corporations. E.O. 13175 
requires that NMFS: (1) Have regular and meaningful consultation and 
collaboration with Indian Tribal governments in the development of 
Federal regulations that significantly or uniquely affect their 
communities; (2) reduce the imposition of unfunded mandates on Indian 
Tribal governments; and (3) streamline the applications process for and 
increase the availability of waivers to Indian Tribal governments.

[[Page 51634]]

    Under the E.O., Presidential Memoranda, and Agency policies, NMFS 
must ensure meaningful and timely input by Tribal officials in the 
development of regulatory policies that have Tribal implications. 
Section 5(b)(2)(B) of E.O. 13175 requires NMFS to prepare a Tribal 
summary impact statement as part of the final rule. This statement must 
contain: (1) a description of the extent of the agency's prior 
consultation with Tribal officials; (2) a summary of the nature of 
their concerns; (3) the agency's position supporting the need to issue 
the regulation; and (4) a statement of the extent to which the concerns 
of Tribal officials have been met.

Prior Consultation With Tribal Officials

    NMFS developed these regulations in response to a request from the 
Makah Tribe, received on February 14, 2005. The Tribe requested a 
waiver of the MMPA's take moratorium to allow a limited ceremonial and 
subsistence hunt of ENP gray whales. Consistent with the E.O. 
directives, NMFS consulted with the Makah Tribe in developing the 
proposed waiver and regulations that were published on April 5, 2019. 
84 FR 13604. As described above, publication of the proposed waiver and 
regulations initiated a formal rulemaking proceeding.
    Six parties, including the Makah Indian Tribe, participated in the 
proceedings, including a trial-type hearing in November of 2019. The 
hearing concluded after 6 days of testimony from 17 witnesses. Hearings 
under this formal rulemaking process are subject to requirements of the 
APA and regulations promulgated by NMFS. 5 U.S.C. 556-557; 50 CFR 228.1 
through 228.21. The APA imposes certain restrictions on communication 
regarding the merits of the proceedings during formal rulemaking. These 
restrictions begin when the agency publishes the notice of hearing or 
has knowledge that it will be published and remain in place until the 
formal rulemaking process is complete.
    On April 5, 2019, NMFS published a notice of hearing on this 
matter. 84 FR 13639. Given the APA's restrictions, we have not engaged 
in government-to-government consultation with the Makah Indian Tribe 
since the formal proceedings were initiated. We will conduct further 
government-to-government consultation on the related processes 
following publication of this Final Decision on the waiver and the 
regulations.
    That we have not engaged in government-to-government consultation 
since initiation of the formal proceedings does not mean that we have 
not heard the Makah's support for and concerns related to this action. 
In accordance with the rules governing the proceeding, the parties, 
including the Makah Tribe, submitted direct and rebuttal testimony, 
along with supporting exhibits, in advance of the hearing. Following 
the hearing, the Makah Tribe submitted post-hearing briefs and proposed 
findings of fact and conclusions of law as well as comment on the 
tribunal's Recommended Decision. The Makah Tribe submitted comments on 
the DEIS and its supplement. The Tribe also submitted comments and 
rebuttal during the party comment period following the publication of 
the FEIS.
    We received additional comments in support of the waiver from the 
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, and the Washington Indian Gaming Association. We have 
summarized the Tribal concerns below. In addition, comments and our 
responses on the tribunal's Recommended Decision are addressed above, 
and comments on the DEIS/SDEIS are included in the appendices to the 
FEIS.

Summary of the Nature of Tribal Concerns

    This action is being taken in response to a request from the Makah 
Tribe to conduct a limited ceremonial and subsistence harvest of ENP 
gray whales. The Makah Tribe has at least a 1,000-year-old whaling 
tradition and reserved an express right to take whales in the Treaty of 
Neah Bay of 1855. The Tribe agreed with the tribunal that NMFS had 
satisfied all the requirements for the waiver and that the tribunal's 
recommendation to issue the waiver and promulgate final regulations 
relied on the best available science and appropriately weighted the 
supporting materials and conclusions presented. The Tribe also 
supported NMFS's pre-hearing proposed revisions to the proposed 
regulations, including clarifying that members of the Tribe living off-
reservation may share edible products at their residences with non-
Makah family members and guests.
    The Tribe's concerns with the tribunal's recommended decision 
centered around four themes: (1) the Treaty of Neah Bay of 1855; (2) 
specifying low abundance thresholds; (3) training approaches on calves 
and adult whales accompanying a calf; and (4) consideration of WNP 
whales. The Makah Tribe notes that the Recommended Decision asserted 
that the MMPA and not the Treaty of Neah Bay is the controlling law on 
whether a hunt may proceed. The Tribe believes that because the MMPA 
did not abrogate the Treaty, the Treaty and the MMPA must be harmonized 
in evaluating whether the hunt may proceed.
    With respect to abundance thresholds, the Tribe did not object in 
principle to the tribunal's recommendation to set a low abundance 
threshold for the ENP populations but did not think it is necessary. 
Described in more detail in their comment letter, the Tribe concluded 
that ``establishing an abundance threshold that would suspend the hunt 
is not necessary to protect the ENP population as a whole in light of 
its long-term abundance trend, the limited number of strikes that would 
be authorized, the practice of transferring unutilized whales to the 
Russian Federation and the IWC Scientific Committee's conclusion that 
the proposed hunt--without such a threshold--will meet all applicable 
IWC conservation objectives.'' If a low abundance threshold is 
included, the Makah Tribe recommended that a threshold of 15,788, MNPL 
based on Punt and Wade (2012), would be appropriate until NMFS conducts 
an updated analysis.
    The Tribe expressed concern about including a prohibition on all 
approaches of calves or adults accompanying calves given (1) an 
asserted lack of scientific evidence presented that demonstrated an 
adverse effect from these approaches; (2) a broad prohibition would 
impair training regarding avoidance of calves and cow-calf pairs during 
a hunt; and (3) the difficulties of identifying a calf or cow-calf pair 
from the whaling canoe leading to inadvertent violation of the proposed 
regulations.
    The Makah Tribe conveyed a number of concerns related to the 
consideration of WNP gray whales during the proceedings and in the 
Recommended Decision. First, the Tribe does not support the tribunal's 
recommendation to add a separate requirement that the Tribe obtain an 
ITA for the take of WNP gray whales prior to the issuance of a hunt 
permit. The Tribe does not agree with this recommendation but noted 
that should NMFS adopt it, it should be limited to non-lethal 
approaches of WNP gray whales as all other forms of take are a very 
remote possibility and will be adequately addressed under Sec.  
216.113(a)(7)(vii) of the proposed regulations.

[[Page 51635]]

    Second, the Tribe maintains that the WNP stock is not a listed 
species under the ESA, and therefore, is not a depleted stock under the 
MMPA. They argue that the WNP stock's essential attributes are 
fundamentally different from those of the stock that remained listed in 
1994. They also assert that there is no evidence that the non-lethal 
approaches of WNP gray whales that would occur over the waiver period 
would be detrimental to, much less disadvantage, the stock by affecting 
its ability to attain or maintain OSP.
    Comments from other Tribal Nations supported the Tribe's efforts to 
exercise its Treaty rights, encouraged granting the waiver in a timely 
manner, and encouraged government-to-government consultation with the 
Makah Tribe. They also noted that the Recommended Decision relied on an 
extensive scientific record and that the proposed waiver complies with 
all requirements under the MMPA.

Agency's Position Supporting the Need To Issue the Regulation

    The Makah Tribe reserved the right to hunt whales through the 
Treaty of Neah Bay of 1855. 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.'' In Anderson v. 
Evans, 371 F.3d 475 (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.
    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. This action is consistent 
with the United States Government's obligations to the Tribe under the 
Treaty of Neah Bay of 1855 and the Federal trust responsibility and 
aims to fulfill the Tribe's cultural and subsistence needs. This action 
is consistent with E.O. 13175; Presidential Memoranda of April 29, 
1994; November 05, 2009, and January 26, 2021; Department of Commerce's 
Tribal Consultation Policy (Administrative Order 218-8 of April 26, 
2012 and Tribal Consultation and Coordination Policy of the U.S. 
Department of Commerce); and NOAA's Tribal Consultation Policy.

Statement of the Extent to Which the Concerns of Tribal Officials Have 
Been Met

    NMFS carefully considered the concerns of the Makah Indian Tribe in 
developing the final regulations. The Makah maintain that ``because the 
MMPA did not abrogate the Treaty, the MMPA and Treaty must be 
harmonized in evaluating whether the hunt may proceed.'' I have not 
adopted the sections of the Recommended Decision that suggest the 
Treaty of Neah Bay is not relevant (see comment 46). I have also 
provided a process through which the Tribe may request a modification 
to the final regulations (see comment 46).
    We agree with several of the concerns that the Tribe raised with 
respect to approaches on calves and adults with calves (see comment 
34). To address these concerns, I have modified the requirements in the 
Recommended Decision to prohibit approaches on these animals only after 
a member of the whaling team has identified a calf or an adult with a 
calf.
    The Makah Tribe did not support the recommendation to include a 
requirement that an ITA be obtained prior to permitting winter/spring 
hunt activities. Although the tribunal determined that an ITA was 
necessary during the winter/spring hunt, the final regulations adopt a 
more adaptive approach based on an assessment of the risk to WNP gray 
whales associated with the hunting authorized under a permit. Under the 
final regulations, NMFS is required to assess whether take of WNP gray 
whales is anticipated based on the hunting proposed in the Makah's 
permit application. If take is anticipated, then separate authorization 
is required during the winter/spring hunt. This approach requires NMFS 
to address risks to WNP gray whales by ensuring that anticipated takes 
are authorized but allows for consideration of the hunt structure 
proposed in the permit application and the best available scientific 
information at that time (see comment 21 and section VIII, Risk to WNP 
Gray Whales).
    While the Makah Tribe did not object in principle to the tribunal's 
recommendation to set a low abundance threshold for the ENP 
populations, they do not think it is necessary. The Tribe further 
recommended a low abundance threshold, if included, of 15,788, MNPL 
based on Punt and Wade (2012). MNPL is the lower bound of OSP. The 
regulations specify that the ENP gray whale population must be within 
its OSP to authorize hunt activities, which is consistent with the 
Tribe's suggestion to base the low abundance threshold on MNPL but 
provides for consideration of the best available information at the 
time of the issuance of a hunt permit (see comment 12) and ensures 
consistency with section 103(a) of the MMPA.
    The Makah Tribe also provided comments on gray whale stock 
structure and the disadvantage test with respect to WNP gray whales. 
Those comments are fully addressed in section V of this Final Decision.

E.O. 12866 and E.O. 13563--Improving Regulation and Regulatory Review

    E.O. 12866 provides that significant regulatory actions be 
submitted for review to the Office of Information and Regulatory 
Affairs, and the Office of Management and Budget. Section 3(d)(1) of 
E.O. 12866 provides that regulations ``issued in accordance with the 
formal rulemaking provisions of 5 U.S.C. 556 and 557'' are not 
regulations covered by that E.O. In accordance with 16 U.S.C. 1373(d) 
and 50 CFR 228.3, these regulations were developed in accordance with 
the formal rulemaking procedures of 5 U.S.C. 556 and 557 and are thus 
exempt from review under E.O. 12866.
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the Nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The E.O. directs agencies to consider regulatory approaches that reduce 
burdens and maintain flexibility for the public where these approaches 
are relevant, feasible, and consistent with regulatory objectives. It 
also emphasizes that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation. NMFS has developed this rule in a manner consistent with 
these requirements.

RFA

    The RFA (5 U.S.C. 601 et seq.) requires an agency to prepare a 
regulatory flexibility analysis of any rule subject to notice of 
proposed rulemaking requirements under the APA unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. The RFA defines small entities, 
in pertinent part, as small businesses, small organizations and small 
governmental jurisdictions. This rule affects only a single tribe. 
Tribes are not considered small entities under the RFA. The Chief 
Counsel for Regulation of the Department of Commerce certified to the 
Chief Counsel

[[Page 51636]]

for Advocacy of the Small Business Administration during the proposed 
rule stage that this action would not have a significant economic 
impact on a substantial number of small entities. No comments were 
received regarding this certification. As a result, a regulatory 
flexibility analysis was not required and none was prepared.

Paperwork Reduction Act

    This final rule contains no information collection requirements 
subject to the Paperwork Reduction Act.

CZMA

    To the extent that the enforceable policies of the WCZMP apply, 
NMFS determined that this action will be implemented in a manner that 
is consistent, to the maximum extent practicable, with the enforceable 
policies of WCZMP. This determination was submitted for review to the 
State of Washington under section 307 of the CZMA. On June 2, 2023, the 
State of Washington, through its Department of Ecology, agreed with 
NMFS's determination that this action is consistent with the 
enforceable policies of WCZMP.

E.O. 13132--Federalism

    E.O. 13132 sets forth principles and criteria that agencies must 
adhere to in formulating and implementing policies that have federalism 
implications, that is, regulations that have substantial direct effects 
on the states, on the relationship between the National Government and 
the states, or on the distribution of power and responsibilities among 
the various levels of government. Federal agencies must examine the 
statutory authority supporting any action that would limit the policy-
making discretion of the states, and to the extent practicable, must 
consult with state and local officials before implementing any such 
action. This rule does not have substantial direct effects on the 
states and therefore does not have the type of federalism implications 
contemplated by the E.O. We do not foresee that the rule would 
significantly affect the distribution of power and responsibilities 
among the various levels of government or limit the policy-making 
discretion of the states.

ESA

    Informal consultations under section 7 of the ESA were concluded 
with FWS and NMFS West Coast Regional Office March 15, 2023, and 
November 8, 2023, respectively. As a result of the informal 
consultation, the FWS and NMFS WCR determined that activities conducted 
under this rule are not likely to adversely affect endangered or 
threatened species or critical habitat under their jurisdiction.

E.O. 12898--Environmental Justice

    Under E.O. 12898, each Federal agency must conduct its programs, 
policies, and activities that substantially affect human health or the 
environment in a manner that ensures that those programs, policies, and 
activities do not have the effect of excluding persons from 
participation in, denying persons the benefits of, or subjecting 
persons to discrimination under such programs, policies, and activities 
because of their race, color, or national origin. Section 4-4, 
Subsistence Consumption of Fish and Wildlife, of E.O. 12898, requires 
Federal agencies to ensure protection of populations with differential 
patterns of subsistence consumption of fish and wildlife and to 
communicate to the public the human health risks of those consumption 
patterns. NMFS has evaluated the data available on contaminant loads in 
ENP gray whales and has summarized this information in the FEIS. NMFS 
communicated this information to the Makah Indian Tribe prior to 
issuing the proposed rule and will provide any updated information 
included in the FEIS to the Tribe.

References and Literature Cited

    A complete list of all references cited in this rulemaking is 
available on our website and upon request.

List of Subjects in 50 CFR Part 216

    Administrative practice and procedure, Exports, Fish, Imports, 
Indians, Labeling, Marine mammals.

    Dated: June 5, 2024.
Janet Coit,
Assistant Administrator, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 216 is amended 
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

     Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


0
2. Subpart J is added to read as follows:

Subpart J--Taking of Eastern North Pacific (ENP) Gray Whales 
(Eschrichtius robustus) by the Makah Indian Tribe Off the Coast of 
Washington State

Sec.
216.110 Purpose.
216.111 Scope.
216.112 Definitions.
216.113 Issuance and duration of permits.
216.114 Hunt management requirements and restrictions.
216.115 Accounting and identification of gray whales.
216.116 Use of edible and nonedible whale products.
216.117 Prohibited acts.
216.118 Requirements for monitoring, reporting, and recordkeeping.
216.119 Expiration and amendment.


Sec.  216.110  Purpose.

    The purpose of this subpart is to establish regulations governing 
the take of whales from the Eastern North Pacific (ENP) gray whale 
(Eschrichtius robustus) stock by the Makah Indian Tribe and its 
enrolled members in accordance with the Secretary's determination to 
issue a waiver of the Marine Mammal Protection Act (MMPA) take 
moratorium pursuant to 16 U.S.C. 1371(a)(3).


Sec.  216.111  Scope.

    This subpart authorizes the taking of ENP gray whales only by 
enrolled members of the Makah Indian Tribe only.


Sec.  216.112  Definitions.

    In addition to the definitions provided in the MMPA, for purposes 
of this subpart, the following definitions apply:
    Barter means the exchange of parts from gray whales taken under 
this subpart for other wildlife or fish or their parts or for other 
food or for nonedible items other than money if the exchange is of a 
noncommercial nature.
    Bonilla-Tatoosh Line means the line running from the western end of 
Cape Flattery (48[deg]22'53'' N lat., 124[deg]43'54'' W long.) to 
Tatoosh Island Lighthouse (48[deg]23'30'' N lat., 124[deg]44'12'' W 
long.) to the buoy adjacent to Duntze Rock (48[deg]28'00'' N lat., 
124[deg]45'00'' W long.), then in a straight line to Bonilla Point 
(48[deg]35'30'' N lat., 124[deg]43'00'' W long.) on Vancouver Island, 
British Columbia.
    Calf means any gray whale less than 1 year old.
    Enrolled member or member of the Makah Indian Tribe means a person 
whose name appears on the membership roll maintained by the Makah 
Tribal Council.

[[Page 51637]]

    ENP gray whale means a member of the Eastern North Pacific stock of 
gray whales (Eschrichtius robustus).
    Export means the act of sending goods from one country to another.
    Gray whale means a member of the species Eschrichtius robustus.
    Harpooner means a member of the Makah Indian Tribe who has been 
certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of harpooning a gray 
whale.
    Hunt and hunting mean to pursue, strike, harpoon, shoot, or land a 
gray whale under a hunt permit issued under Sec.  216.113(b) or to 
attempt any such act, but does not include hunting approaches, training 
approaches, or training harpoon throws. As a noun, hunt also means any 
act of hunting.
    Hunt permit means a permit issued by NMFS in accordance with 16 
U.S.C. 1374 and this subpart.
    Hunting approach means to cause, in any manner, a vessel to be 
within 100 yards (91.5 m) of a gray whale during a hunt.
    Land and landing mean bringing a gray whale or any products thereof 
onto the land in the course of hunting.
    Makah Indian handicrafts means articles made by a member of the 
Makah Indian Tribe that contain any nonedible products of an ENP gray 
whale that was obtained pursuant to a permit issued under this subpart, 
are significantly altered from their natural form, and are produced, 
decorated, or fashioned in the exercise of traditional Makah Indian 
handicrafts without the use of pantographs, multiple carvers, or 
similar mass copying devices. Makah Indian handicrafts include, but are 
not limited to, articles that are carved, beaded, drawn, or painted.
    Makah Indian Tribe or Tribe means the Makah Indian Tribe of the 
Makah Indian Reservation as described in the list of federally 
recognized Indian tribes maintained by the U.S. Department of the 
Interior.
    Minimum population estimate for Pacific Coast Feeding Group (PCFG) 
gray whales is the lower 20th percentile of the PCFG population 
estimate.
    NMFS means the National Marine Fisheries Service.
    NMFS hunt observer means a person designated by NMFS to accompany 
and observe a hunt.
    Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale means 
an ENP gray whale photo-identified during 2 or more years between June 
1 and November 30 within the region between northern California and 
northern Vancouver Island (from 41[deg] N lat. to 52[deg] N lat.) and 
entered into a photo-identification catalog(s) recognized by the 
Regional Administrator.
    PCFG population estimate means an abundance estimate based on data 
derived from photo-identification surveys and catalog(s) recognized by 
the Regional Administrator. Such data will also be the basis for 
projecting PCFG population estimates in future hunting seasons.
    Recordkeeping and reporting mean the collection and delivery of 
photographs, biological data, harvest data, and other information 
regarding activities conducted under the authority of this subpart.
    Regional Administrator means the Regional Administrator of NMFS for 
the West Coast Region.
    Rifleman means a member of the Makah Indian Tribe who has been 
certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of shooting a gray 
whale.
    Safety officer means a member of the Makah Indian Tribe who has 
been certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of evaluating hunt 
conditions including, but not limited to visibility, target range and 
bearing, and sea condition.
    Share means to voluntarily transfer or gift edible or nonedible 
parts from gray whales taken under this subpart to another person 
without compensation.
    Strike or struck means to cause a harpoon, darting gun, or other 
weapon, or a projectile from a rifle or other weapon, to penetrate a 
gray whale's skin or an instance in which a gray whale's skin is 
penetrated by such a weapon or projectile during hunting. Multiple 
strikes on the same whale are considered a single strike.
    Struck and lost refers to a gray whale that is struck but not 
landed.
    Summer/fall hunt means a hunting season spanning 4 consecutive 
months from July 1 to October 31.
    Training approach means to cause, in any manner, a training vessel 
to be within 100 yards (91.5 m) of a gray whale.
    Training harpoon throw means an attempt to contact a gray whale 
with a blunted spear-like device that is incapable of penetrating the 
skin of a gray whale.
    Training vessel means a canoe or other watercraft used to train for 
a hunt that does not carry weapons ordinarily used by a harpooner or 
rifleman to strike a gray whale.
    Tribal hunt observer means a Tribal member or representative 
designated by the Tribe who has been certified by the Tribe as having 
demonstrated the qualifications commensurate with the duties and 
responsibilities of monitoring and reporting on a hunt.
    U&A or Makah Indian Tribe's U&A means the Tribe's usual and 
accustomed fishing grounds, which area consists of the United States 
waters in the western Strait of Juan de Fuca west of 123[deg]42'17'' W 
long. and waters of the Pacific Ocean off the mainland shoreline of the 
Washington coast north of 48[deg]02'15'' N lat. (Norwegian Memorial) 
and east of 125[deg]44'00'' W long.
    Unsuccessful strike attempt means any attempt to strike a gray 
whale while hunting that does not result in a strike.
    Western North Pacific (WNP) gray whale means a member of the 
Western North Pacific stock of gray whales (Eschrichtius robustus).
    Whaling captain means a member of the Makah Indian Tribe who has 
been certified by the Tribe as having demonstrated the qualifications 
commensurate with the duties and responsibilities of leading a hunt and 
is authorized by the Makah Indian Tribe to be in control of the whaling 
crew.
    Whaling crew means those members of the Makah Indian Tribe taking 
part in a hunt under the control of a whaling captain, not including 
the Tribal hunt observer.
    Winter/spring hunt means a hunting season spanning 6 consecutive 
months from December 1 to May 31 of the calendar year following a 
summer/fall hunt.


Sec.  216.113  Issuance and duration of permits.

    (a) Application. (1) To obtain an initial hunt permit, the Makah 
Indian Tribe must submit an application to the Regional Administrator 
signed by an official of the Makah Tribal Council that contains the 
following information and statements:
    (i) The proposed duration of the permit;
    (ii) The maximum number of gray whales to be subjected to hunting 
or training approaches, struck, landed, and subjected to unsuccessful 
strike attempts;
    (iii) A demonstration that the proposed method of taking is humane;
    (iv) A demonstration that the proposed taking is consistent with 
this subpart;
    (v) A copy of the currently enacted Makah Indian Tribal ordinance 
governing whaling by Makah Indian Tribal members;
    (vi) A description of the certification process for whaling 
captains, riflemen,

[[Page 51638]]

harpooners, Tribal hunt observers, and safety officers, including any 
guidelines or manuals used by the Tribe to certify such persons;
    (vii) Any additional hunt permit conditions proposed by the Tribe 
and a justification for the proposed conditions; and
    (viii) Any modification to this subpart sought by the Tribe and a 
justification for the proposed modification.
    (2) To obtain subsequent hunt permits, the Makah Indian Tribe must 
submit an application to the Regional Administrator, signed by an 
official of the Makah Tribal Council, that contains the information 
required in paragraph (a)(1) of this section and the following 
information and statements:
    (i) A description of how the Makah Indian Tribe has complied with 
the requirements of this subpart and previously issued hunt permits;
    (ii) A description of circumstances associated with gray whale(s) 
struck and lost under the most recently issued hunt permit, a 
description of the measures taken to retrieve such whale(s), and a 
description of measures taken by the Makah Indian Tribe to minimize 
future incidents of struck and lost gray whales; and
    (iii) A description of products obtained from gray whales landed 
under the most recently issued hunt permit, including a description of 
the disposition of any gray whale products deemed unsuitable for use by 
Makah Indian Tribal members.
    (3) The Regional Administrator will notify the Makah Indian Tribe 
of receipt of the application and will review the application for 
completeness. Incomplete applications will be returned with 
explanation. If the Makah Indian Tribe fails to resubmit a complete 
application within 60 days, the application will be deemed withdrawn.
    (4) After receipt of a complete application and the preparation of 
any National Environmental Policy Act (NEPA) documentation that the 
Regional Administrator has determined to be necessary, the Regional 
Administrator will publish a notice of receipt in the Federal Register 
and review the application as required by 16 U.S.C. 1374.
    (b) Issuance. (1) The Regional Administrator may issue hunt permits 
to the Makah Indian Tribe authorizing hunting of ENP gray whales, as 
well as hunting approaches, training approaches, and training harpoon 
throws by enrolled members in accordance with 16 U.S.C. 1374 and the 
requirements of this subpart.
    (2) The Regional Administrator may not authorize hunting, hunting 
approaches, training approaches, or training harpoon throws from 
December 1 through May 31 unless:
    (i) The Tribe has obtained separate authorization to take WNP gray 
whales under any applicable provision of the MMPA; or
    (ii) The Regional Administrator determines, in consultation with 
the NMFS Office of Protected Resources, that take of WNP gray whales is 
not anticipated.
    (3) The Regional Administrator may not authorize hunting unless the 
population of the ENP gray whale stock is within its Optimum 
Sustainable Population (OSP) and the hunting authorized under the 
permit would not cause the stock to diminish below OSP.
    (4) The duration of the initial hunt permit may not exceed 3 years 
from its effective date, and thereafter the duration of a hunt permit 
may not exceed 5 years.
    (5) Each hunt permit will specify the following terms and 
conditions:
    (i) Those terms required by 16 U.S.C. 1374(b);
    (ii) The limits established under Sec.  216.114(c);
    (iii) The area where hunts, hunting approaches, training 
approaches, and training harpoon throws are allowed, which will be 
limited to the waters of the Makah Indian Tribe's U&A west of the 
Bonilla-Tatoosh Line except as provided in Sec.  216.117(a)(9), and any 
site and time restrictions to protect Olympic Coast National Marine 
Sanctuary resources pursuant to consultation under 16 U.S.C. 1434(d) of 
the National Marine Sanctuaries Act;
    (iv) The beginning and ending dates in each calendar year when the 
Makah Tribe may engage in hunting activities, as described in Sec.  
216.114(a), and training activities, as described in Sec.  216.114(b);
    (v) The type and timing of notice that the Makah Indian Tribe must 
provide to NMFS before issuing a Tribal whaling permit authorizing a 
hunt, hunting approaches, training approaches, or training harpoon 
throws;
    (vi) Measures to be taken by the hunt permit holder to provide for 
the safety of the whaling crew, the public, and others during a hunt;
    (vii) That the hunt permit authorizes only the take of ENP gray 
whales and not the take of any other marine mammals; and
    (viii) Such other provisions as the Regional Administrator deems 
necessary.
    (6) Before issuing a hunt permit, the Regional Administrator must 
make the following determinations:
    (i) The authorized manner of hunting is humane;
    (ii) The Makah Indian Tribe has enacted a Tribal ordinance 
governing hunting that is consistent with this subpart;
    (iii) The Makah Indian Tribe has in place certification procedures 
for whaling captains, riflemen, harpooners, Tribal hunt observers, and 
safety officers and a process to ensure compliance with those 
procedures;
    (iv) There are adequate photo-identification catalogs and processes 
available to allow for the identification of WNP gray whales and PCFG 
whales as described in Sec.  216.115(b);
    (v) The most recent PCFG population estimate is at least 192 whales 
and the associated minimum population estimate is at least 171 whales;
    (vi) The PCFG population estimate for the first hunting season 
covered by the permit is projected to be at least 192 whales and the 
associated minimum population estimate is projected to be at least 171 
whales;
    (vii) Whether take authorization for WNP gray whales is required by 
the permit for the winter/spring hunt, or, if not, that the Regional 
Administrator, in consultation with the Office of Protected Resources, 
has determined that take of WNP gray whales is not anticipated;
    (viii) The population of the ENP gray whale stock is within its OSP 
and the hunting authorized in the permit will not cause the stock to 
diminish below OSP; and
    (ix) Except for the initial hunt permit, before issuing a hunt 
permit the Regional Administrator must determine that the Makah Indian 
Tribe has complied with the requirements of this subpart 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.


Sec.  216.114  Hunt management requirements and restrictions.

    (a) Hunting seasons. Summer/fall hunts and hunting approaches will 
only be authorized from July 1 through October 31, and winter/spring 
hunts and hunting approaches will only be authorized from December 1 
through May 31 of the following calendar year, provided that:
    (1) Throughout the duration of the waiver, the authorized hunting 
dates will alternate between winter/spring hunts and summer/fall hunts, 
with winter/spring hunts starting in December of the same calendar year 
as a summer/fall hunt and summer/fall

[[Page 51639]]

hunts starting in the calendar year following the year in which a 
winter/spring hunt has ended;
    (2) If the start date in the initial hunt permit falls within a 
winter/spring hunt period, the subsequent summer/fall hunt will 
commence in the calendar year following the ending date of said winter/
spring hunt; and
    (3) If the start date in the initial hunt permit of the initial 
hunt season falls within a summer/fall hunt period, the subsequent 
winter/spring hunt will commence in December of the same calendar year 
as said summer/fall hunt.
    (b) Training period. Hunt permits may authorize training approaches 
in any month and training harpoon throws in any month, except as 
provided in paragraph (c)(2) of this section and provided all necessary 
authorizations have been obtained. The authorized training period shall 
be specified in the permit, as provided in Sec.  216.113(b)(5)(iv).
    (c) Hunting and training limits. The following limits on the number 
of ENP gray whales approached, subjected to unsuccessful strike 
attempts, struck, struck and lost, and landed apply.
    (1) 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 of such approaches may be on PCFG whales. Any 
hunting approach on a gray whale that has already been struck will not 
count against these limits.
    (2) A hunt permit may authorize no more than 18 unsuccessful strike 
attempts during winter/spring hunts and no more than 12 unsuccessful 
strike attempts during summer/fall hunts. Any unsuccessful strike 
attempt on a gray whale that has already been struck will not count 
against these limits. Training harpoon throws may be authorized between 
July 1 and October 31 in years of summer/fall 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 hunts end. Each training 
harpoon throw will count against the unsuccessful strike attempt limit 
during the calendar year in which the harpoon throw is made.
    (3) A hunt permit may authorize no more than three ENP gray whales 
to be struck in a winter/spring hunt and no more than two ENP gray 
whales to be struck in a summer/fall hunt. Multiple strikes on the same 
whale will count as a single strike. In a winter/spring hunt, a hunt 
permit may authorize no more than one ENP gray whale to be struck 
within the 24-hour period commencing at the time of the initial strike 
against the whale. The Regional Administrator may authorize the full 
number of ENP gray whales to be struck in the initial hunt permit and 
will adjust strikes downward in subsequent permits if necessary to 
ensure that no more than 16 PCFG whales are struck over the waiver 
period, of which no more than 8 struck whales may be PCFG females.
    (4) A hunt permit may authorize no more than three ENP gray whales 
to be struck and lost in any calendar year.
    (5) A hunt permit may authorize no more than three ENP gray whales 
to be landed in a winter/spring hunt and no more than one ENP gray 
whale to be landed in a summer/fall hunt; the number of ENP gray whales 
that the hunt permit may authorize to be landed in any calendar year 
will not exceed the number agreed between the United States and the 
Russian Federation as the United States' share of the catch limit 
established by the International Whaling Commission.
    (d) Limits on PCFG whales. (1) Thirty days prior to the beginning 
of a hunting season specified in paragraph (a) of this section, the 
Regional Administrator will notify the Makah Indian Tribe in writing of 
the maximum number of PCFG whales, including females, that may be 
struck during the upcoming hunting season. The limit will take into 
account the abundance of PCFG whales relative to the conditions 
specified under Sec.  216.113(b)(6)(v) and (vi) and the number of 
strikes made on PCFG whales as described under paragraph (c)(3) of this 
section.
    (2) By November 1 of each year, the Regional Administrator will 
notify the Makah Indian Tribe in writing of the proportion of gray 
whales in the hunt area that will be presumed to be PCFG whales and the 
proportion of PCFG whales that will be presumed to be females for each 
month of the upcoming calendar year. The presumed proportion of PCFG 
whales will be based on the best available evidence for the months of 
December through May and will be 100 percent for the months of June 
through November. The presumed proportion of female PCFG whales will be 
based on the best available information for each month. These 
proportions will be used for purposes of accounting for PCFG whales 
that are not otherwise identified or accounted for as provided under 
Sec.  216.115(b).
    (3) The Regional Administrator will notify the Makah Indian Tribe 
in writing when the Tribe has reached the limit of PCFG whales that may 
be struck in any hunting season.
    (4) Notwithstanding the limits specified in this section, no 
hunting will be authorized for an upcoming season if the Regional 
Administrator determines, and notifies the Makah Indian Tribe pursuant 
to paragraph (d)(1) of this section, that either of the following 
conditions applies:
    (i) The most recent PCFG population estimate, based on photo-
identification surveys, is less than 192 whales or the associated 
minimum population estimate is less than 171 whales; or
    (ii) The PCFG population estimate for the upcoming hunting season 
is projected to be less than 192 whales or the associated minimum 
population estimate is projected to be less than 171 whales.
    (e) ENP gray whales. If the Regional Administrator determines and 
notifies the Makah Indian Tribe in writing that the population of the 
ENP gray whale stock has fallen below OSP, hunting must cease until the 
Regional Administrator notifies the Tribe in writing that the stock has 
obtained OSP.
    (f) WNP gray whales. The hunt permit will provide that in the event 
the Regional Administrator determines a WNP gray whale was struck 
during a hunt, the Regional Administrator will notify the Makah Indian 
Tribe in writing and require that the Tribe cease hunting for the 
duration of the permit unless and until the Regional Administrator 
determines that measures have been taken to ensure no additional WNP 
gray whales will be struck during the duration of the permit. No 
further hunt permits will be issued unless and until the Regional 
Administrator determines that measures have been taken to prevent 
additional WNP gray whale strikes during the remainder of the waiver 
period.


Sec.  216.115  Accounting and identification of gray whales.

    (a) Images and samples. NMFS hunt observers, Tribal hunt observers, 
and members of the Makah Indian Tribe may collect still or motion 
pictures as needed to document hunting and training approaches, strikes 
(successful and unsuccessful attempts), and landings. Persons 
designated by NMFS and by the Makah Indian Tribe may also collect, 
store, transfer, and analyze specimen samples from struck gray whales. 
Such designated personnel should make every reasonable attempt to 
collect genetic samples from struck whales without compromising the 
safety of the hunt.
    (b) Identification and accounting of gray whales--(1) Winter/spring 
hunts. Based on the best available evidence, the Regional Administrator 
will determine in writing whether a gray whale that is struck in a 
winter/spring hunt is a WNP gray whale or a PCFG whale or neither, or 
cannot be identified

[[Page 51640]]

due to a lack of photographs or genetic data useful for making 
identifications. A whale affirmatively identified as a PCFG whale will 
be counted accordingly. A whale that cannot be identified will be 
presumed to be a PCFG whale in accordance with the proportions 
specified in Sec.  216.114(d)(2) and will be counted accordingly. If 
the sex of a whale that is counted, in whole or in part, as a PCFG 
whale cannot be identified, the proportions specified in Sec.  
216.114(d)(2) will be applied.
    (2) Summer/fall hunts. Based on available evidence, the Regional 
Administrator will determine in writing whether a gray whale that is 
struck in a summer/fall hunt is a WNP gray whale or cannot be 
identified due to a lack of photographs or genetic data useful for 
making identifications. A gray whale that cannot be identified as a WNP 
gray whale will be counted as a PCFG whale. If the sex of a whale that 
is counted as a PCFG whale cannot be identified, the proportions 
specified in Sec.  216.114(d)(2) will be applied.
    (3) Hunting and training approaches. Gray whales subjected to 
hunting or training approaches are presumed to be PCFG whales in 
accordance with the proportions specified in Sec.  216.114(d)(2).
    (4) Unauthorized strikes. If a Tribal member strikes an ENP gray 
whale without authorization under this subpart, the strike will be 
counted against the total number of strikes allowed under this subpart 
and will be counted against the United States' share of any applicable 
catch limit established by the International Whaling Commission.


Sec.  216.116  Use of edible and nonedible whale products.

    (a) Gray whales landed under a hunt permit may be utilized as 
follows:
    (1) Edible products of ENP gray whales. Enrolled members of the 
Makah Indian Tribe may possess, consume, and transport edible whale 
products and may share and barter such products with other enrolled 
members, both within and outside the Makah Indian Tribe's reservation 
boundaries, subject to the following restrictions:
    (i) Within the Tribe's reservation boundaries, enrolled members of 
the Makah Indian Tribe may share edible ENP gray whale products with 
any person.
    (ii) Outside the Makah Indian Tribe's reservation boundaries, 
enrolled members of the Makah Indian Tribe may share edible ENP gray 
whale products:
    (A) At the Tribal member's residence with any person, provided the 
products are shared for consumption at the Tribal member's residence; 
or
    (B) With any person attending a Tribal or intertribal gathering 
sanctioned by the Makah Tribal Council, so long as there is not more 
than 2 pounds of such edible product per person attending the 
gathering.
    (iii) Any person who is not an enrolled member of the Makah Indian 
Tribe may possess, consume, and transport edible ENP gray whale 
products within the Makah Indian Tribe's reservation boundaries so long 
as the products are shared by an enrolled member of the Makah Indian 
Tribe. Outside the Tribe's reservation boundaries, any person who is 
not an enrolled member of the Makah Indian Tribe may possess, consume, 
and transport edible gray whale products only at a Tribal member's 
residence or at a Tribal or intertribal gathering sanctioned by the 
Makah Tribal Council if such products are shared by an enrolled member 
of the Makah Indian Tribe and the person consumes the products at the 
gathering.
    (2) Nonedible products of ENP gray whales. (i) Enrolled members of 
the Makah Indian Tribe may possess nonedible whale products that have 
not been fashioned into Makah Indian handicrafts and Makah Indian 
handicrafts that have not been marked and certificated per paragraph 
(a)(2)(iii) of this section, may transport such products, and may share 
and barter such products with other enrolled members both within and 
outside the Makah Indian Tribe's reservation boundaries.
    (ii) Enrolled members of the Makah Indian Tribe may share or barter 
Makah Indian handicrafts that have not been marked and certificated per 
paragraph (a)(2)(iii) of this section with any person within the 
Tribe's reservation boundaries.
    (iii) Any person may possess, transport, share, barter, offer for 
sale, sell, or purchase a Makah Indian handicraft in the United States, 
provided the handicraft is permanently marked with a distinctive 
marking approved by the Makah Tribal Council, and is accompanied by a 
certificate of authenticity issued by the Makah Tribal Council or its 
designee and entered in the Tribe's official record of Makah Indian 
handicrafts. Such handicrafts may be delivered, carried, transported, 
or shipped in interstate commerce.
    (iv) Within the Makah Indian Tribe's reservation boundaries, any 
person who is not an enrolled member of the Makah Indian Tribe may 
possess and transport Makah Indian handicrafts that have not been 
marked and certificated per paragraph (a)(2)(iii) of this section, 
provided the handicraft was shared by or bartered from an enrolled 
member. Within the Makah Indian Tribe's reservation boundaries, persons 
not enrolled as a member of the Makah Indian Tribe may share or barter 
such handicrafts only with enrolled members.
    (b) The Makah Indian Tribe is responsible for managing all 
activities of any Makah Indian Tribal member carried out under this 
section.


Sec.  216.117  Prohibited acts.

    (a) It is unlawful for the Makah Indian Tribe or any enrolled 
member of the Makah Indian Tribe to:
    (1) Take any gray whale except as authorized by a hunt permit 
issued under Sec.  216.113(b) or by any other provision of this part.
    (2) Participate in a hunt while failing to carry onboard the vessel 
at all times a hunt permit issued by NMFS and a Tribal whaling permit 
issued by the Makah Indian Tribe, or an electronic copy or photocopy of 
these permits.
    (3) Make a training approach or a training harpoon throw while 
failing to carry onboard the training vessel at all times an electronic 
copy or photocopy of the hunt permit issued by NMFS and a training 
logbook approved by the Makah Indian Tribe for recording training 
approaches and training harpoon throws.
    (4) Participate in a hunt as a whaling captain, rifleman, 
harpooner, Tribal hunt observer, or safety officer, unless the 
individual's name is included in a Tribal certification report issued 
under Sec.  216.118(a)(6)(i).
    (5) Violate any provision of any hunt permit issued under Sec.  
216.113(b).
    (6) Make an approach on a calf or an adult gray whale accompanying 
a calf after a member of the whaling crew has identified the presence 
of a calf.
    (7) Fail to remain at least 100 yards (91.5 m) away from a calf or 
an adult accompanying a calf after a member of the whaling crew has 
identified the presence of a calf.
    (8) Hunt or make a training harpoon throw on a calf or an adult 
gray whale accompanying a calf.
    (9) Hunt outside the geographic area identified in Sec.  
216.113(b)(5)(iii) unless in pursuit of a gray whale that has already 
been struck within that area.
    (10) Hunt, make a hunting or training approach, or make a training 
harpoon throw after reaching the limits specified in the hunt permit 
per Sec.  216.113(b)(5)(i) through (viii).
    (11) Hunt if the limit on PCFG whales or PCFG females that may be 
struck is less than one as a result of accounting per Sec.  
216.115(b)(1) through (3).
    (12) Hunt after the Makah Indian Tribe has been notified in writing 
by the

[[Page 51641]]

Regional Administrator under Sec.  216.114(d)(3) that the limit of PCFG 
whales that may be struck has been reached or that the PCFG abundance 
is below the limits specified in Sec.  216.114(d)(4).
    (13) Hunt after a gray whale has been landed and before the Makah 
Indian Tribe has received notification from the Regional Administrator 
in accordance with Sec.  216.115(b).
    (14) Hunt after the Makah Tribe has been notified by the Regional 
Administrator under Sec.  216.114(e) that the ENP gray whale population 
has fallen below OSP.
    (15) Sell, offer for sale, or purchase any gray whale products, 
except Makah Indian handicrafts that have been marked and certificated 
per Sec.  216.116(a)(2).
    (16) Export any gray whale products.
    (17) Barter edible gray whale products with any person not enrolled 
as a member of the Makah Indian Tribe.
    (18) Share edible gray whale products outside the Makah Indian 
Tribe's reservation boundaries with any person not enrolled as a member 
of the Makah Indian Tribe, except at a Tribal member's residence or 
with persons attending a Tribal or intertribal gathering sanctioned by 
the Makah Tribal Council, so long as there is not more than 2 pounds of 
edible product per person attending the gathering per Sec.  
216.116(a)(1)(ii)(B).
    (19) Share or barter nonedible gray whale products:
    (i) Outside the Makah Indian Tribe's reservation boundaries with 
any person not enrolled as a Makah Indian Tribal member, except Makah 
Indian handicrafts that are permanently marked and certificated per 
Sec.  216.116(a)(2).
    (ii) Within the Makah Indian Tribe's reservation boundaries with 
any person not enrolled as a Makah Indian Tribal member except a 
product that has been fashioned into a Makah Indian handicraft whether 
or not it has been marked and certificated per Sec.  
216.116(a)(2)(iii).
    (20) Make a false statement in an application for a hunt permit or 
in a report required under this subpart.
    (21) Transfer or assign a hunt permit issued under this subpart.
    (22) Fail to submit reports required by this subpart.
    (23) Deny persons designated by NMFS access to landed gray whales 
for the purpose of collecting specimen samples.
    (24) Fail to provide required permits and reports for inspection 
upon request by persons designated by NMFS.
    (25) Allow anyone other than enrolled Makah Indian Tribal members 
to be part of a whaling crew or to allow anyone other than such members 
or Tribal hunt observers to be in a training vessel engaged in hunt 
training.
    (26) Hunt, or engage in hunting approaches, training approaches, or 
training harpoon throws without additional authorization to take WNP 
gray whales, if the Regional Administrator has notified the Tribe that 
additional authorization is required for the take of WNP gray whales.
    (b) It is unlawful for any person who is not an enrolled member of 
the Makah Indian Tribe to:
    (1) Share barter, purchase, sell, export, or offer to share, 
barter, purchase, sell, or export edible gray whale products.
    (2) Possess, consume, or transport edible gray whale products 
except:
    (i) Within the Makah Indian Tribe's reservation boundaries, when 
such products have been shared by an enrolled Makah Indian Tribal 
member;
    (ii) At the residence of a Tribal member, whether or not the 
residence is within the Tribe's reservation boundaries; and
    (iii) At Tribal or intertribal gatherings sanctioned by the Makah 
Tribal Council, whether or not the gathering is within the Tribe's 
reservation boundaries.
    (3) Purchase, sell, or offer to purchase or sell nonedible gray 
whale products except Makah Indian handicrafts that are marked and 
certificated per Sec.  216.116(a)(2).
    (4) Export any gray whale products.
    (5) Outside the Makah Indian Tribe's reservation boundaries, 
possess, transport, share, or barter nonedible gray whale products 
except Makah Indian handicrafts that are marked and certificated per 
Sec.  216.116(a)(2)(iii).
    (6) Within the Makah Indian Tribe's reservation boundaries, 
possess, transport, share, or barter any nonedible gray whale product 
except as provided in Sec.  216.116(a)(2)(iii) and (iv).


Sec.  216.118  Requirements for monitoring, reporting, and 
recordkeeping.

    (a) In addition to the reporting provisions described in Sec.  
230.8 of this chapter, the Makah Indian Tribe will:
    (1) Ensure a certified Tribal hunt observer accompanies each hunt. 
The Tribal hunt observer will record in a hunting logbook the time, 
date, and location (latitude and longitude, accurate to at least the 
nearest second) of each hunting approach of a gray whale, each attempt 
to strike a gray whale, and each gray whale struck. For each gray whale 
struck, the Tribal hunt observer will record whether the whale was 
landed. If not landed, the Tribal hunt observer will describe the 
circumstances associated with the striking of the whale and estimate 
whether the animal suffered a wound that might be fatal. For every gray 
whale approached by the whaling crew, the Tribal hunt observer must 
make every reasonable attempt to collect digital photographs useful for 
photo-identification purposes.
    (2) Ensure that each vessel involved in a training approach has 
onboard a training logbook for recording the date, location, and number 
of gray whales approached and the number of training harpoon throws. 
Each training approach and training harpoon throw must be reported to 
the Tribal hunt observer within 24 hours.
    (3) Maintain hunting and training logbooks specified in paragraphs 
(a)(1) and (2) of this section and allow persons designated by NMFS to 
inspect them upon request.
    (4) Ensure that each whaling captain allows a NMFS hunt observer to 
accompany and observe any hunt.
    (5) Maintain an official record of all articles of Makah Indian 
handicraft, including the following information for each article 
certified by the Makah Tribal Council or its designee: the date of the 
certification; the permanent distinctive mark identifying the article 
as a Makah Indian handicraft; a brief description of the handicraft, 
including artist's full name, gray whale product(s) used, and 
approximate size; and at least one digital photograph of the entire 
handicraft. A copy of the official record of Makah Indian handicrafts 
must be provided to NMFS personnel, including NMFS enforcement 
officers, upon request.
    (6) Ensure that the following reports are filed electronically with 
the NMFS West Coast Region's office in Seattle, Washington, by the 
indicated date:
    (i) Tribal certification report. Thirty days prior to the beginning 
of a hunting season, a report that includes the names of all Tribal 
hunt observers and enrolled Makah Indian Tribal members who have been 
certified to participate in a hunt as whaling captains, riflemen, 
harpooners, and safety officers. The Tribe may provide additional names 
during the hunting season.
    (ii) Incident report. An incident report must be submitted within 
48 hours after striking a gray whale. The report may address multiple 
gray whales so long as the Tribe submits the report within 48 hours of 
the first gray whale being struck. An incident report must contain the 
following information:

[[Page 51642]]

    (A) Struck and lost gray whale(s): The whaling captain's name; the 
Tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of strikes and attempted strikes if any; the method(s) of strikes and 
attempted strikes; an estimate of the whale's total length. The report 
will describe the circumstances associated with the striking of the 
whale and estimate whether the animal suffered a wound that might be 
fatal. The report will include all photographs taken by a Tribal hunt 
observer of gray whales struck and lost by the whaling crew. The report 
may also contain any other observations by the Makah Indian Tribe 
concerning the struck and lost whale(s) or circumstances of the hunt.
    (B) Struck and landed gray whale(s): The whaling captain's name; 
the Tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of strikes and attempted strikes if any; the method(s) of strikes and 
attempted strikes; the whale's body length as measured from the point 
of the upper jaw to the notch between the tail flukes; an estimate of 
the whale's maximum girth; the extreme width of the tail flukes; the 
whale's sex and, if female, lactation status; the length and sex of any 
fetus in the landed whale; photographs of the whale(s), including the 
entire dorsal right side, the entire dorsal left side, the dorsal 
aspect of the fluke, and the ventral aspect of the fluke. All such 
photographs must include a ruler to convey scale and a sign specifying 
the Makah Indian Tribe's name, whaling captain's name, whale species, 
and date. The report must also describe the time to death (measured 
from the time of the first strike to the time of death as indicated by 
relaxation of the lower jaw, no flipper movement, or sinking without 
active movement) and the disposition of all specimen samples collected 
and whale products, including any whale products deemed unsuitable for 
use by Makah Indian Tribal members. The report may also contain any 
other observations by the Makah Indian Tribe concerning the landed 
whale or circumstances of the hunt.
    (iii) Hunt report. Within 30 days after the end of each hunting 
season, a report that describes the following information for each day 
of hunting:
    (A) Struck and lost gray whale(s): The report must contain the 
information specified in paragraph (a)(6)(ii)(A) of this section.
    (B) Struck and landed gray whale(s): The report must contain the 
information specified in paragraph (a)(6)(ii)(B) of this section.
    (C) Hunting approaches and unsuccessful strike attempt(s): For each 
gray whale approached or subjected to an unsuccessful strike 
attempt(s), the report must contain: The whaling captain's name; the 
Tribal hunt observer's name; the date, location (latitude and 
longitude, accurate to at least the nearest second), time, and number 
of approaches and unsuccessful strike attempts; the method of attempted 
strikes; an estimate of the total length of any whale subjected to an 
unsuccessful strike attempt; and all photographs taken by a Tribal hunt 
observer of gray whales approached by the whaling crew. The report may 
also contain any other observations by the Makah Indian Tribe 
concerning the whale(s) approached or subjected to unsuccessful strike 
attempts or circumstances of the hunt.
    (iv) Annual approach report. By January 15 of each year, a report 
containing the dates, location, and number of gray whales subjected to 
hunting approaches, training approaches, and training harpoon throws 
during the previous calendar year. The report may also contain any 
other observations by the Makah Indian Tribe concerning the approached 
whales or circumstances of the approaches and training harpoon throws.
    (v) Annual handicraft report. By April 1 of each year, a report 
that describes all Makah Indian handicrafts certified by the Makah 
Tribal Council or its designee during the previous calendar year. The 
report must contain the following information for each handicraft 
certified: The date of the certification; the permanent distinctive 
mark identifying the article as a Makah Indian handicraft; a brief 
description of the handicraft, including artist's full name, gray whale 
product(s) used, and approximate size; and at least one digital 
photograph of the entire handicraft.
    (vi) Availability of reports. The hunt report, annual approach 
report, and annual handicraft report collected pursuant to this section 
will be maintained and made available for public review in the NMFS 
West Coast Region's office in Seattle, Washington.
    (b) Upon receiving an incident report specified in paragraph 
(a)(6)(ii) of this section documenting that eight gray whales have been 
struck, the Regional Administrator will evaluate:
    (1) The photo-identification and notification requirements 
described in Sec. Sec.  216.113(b)(6)(iv) and 216.115. The evaluation 
will address the status of gray whale photo-identification catalogs 
used to manage gray whale hunts authorized under this subpart, the 
survey efforts employed to keep those catalogs updated, the level of 
certainty associated with identifying cataloged WNP gray whales and 
PCFG whales, the role of ancillary information such as genetic data 
during catalog review, and any other elements deemed appropriate by the 
Regional Administrator. The evaluation will be made available to the 
public no more than 120 days after receiving the subject incident 
report.
    (2) The humaneness of the authorized manner of hunting as specified 
in Sec.  216.113(a)(1)(iii). To evaluate humaneness, NMFS will convene 
a team composed of a veterinarian, a marine mammal biologist, and all 
Tribal hunt observers and NMFS hunt observers who were witness to the 
strikes described in the incident reports required by this section. The 
team's evaluation will address the effectiveness of the hunting methods 
used by the Makah Indian Tribe, the availability and practicability of 
other such methods, and the time to death of hunted whales, and any 
other matters deemed appropriate by the Regional Administrator and the 
team. The team's evaluation will be made available to the public no 
more than 120 days after receiving the subject incident report.
    (c) The NMFS West Coast Region's Seattle office is located at 7600 
Sand Point Way NE, Seattle, WA 98115-0070.


Sec.  216.119  Expiration and amendment.

    (a) The 10-year waiver period begins the first day of the first 
season after issuance of the initial hunt permit. The waiver and this 
subpart will expire 10 years after the effective date of the initial 
hunt permit specified under Sec.  216.113(b), unless extended.
    (b) If the initial permit begins during a hunt season, resulting in 
only a partial season being authorized, the Regional Administrator may 
authorize a partial season that is equivalent in duration to the 
difference between the partial season in the first hunt year and the 
full season. This second partial season can only be authorized in the 
final calendar year during the waiver period.
    (c) This subpart may be periodically reviewed and modified as 
provided in 16 U.S.C. 1373(e).

[FR Doc. 2024-12669 Filed 6-13-24; 11:15 am]
 BILLING CODE 3510-22-P