BILLING CODE: 3510-22-P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 240604-0152]
RIN 0648–BI58
Regulations Governing the Taking of Marine Mammals
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
SUMMARY: Following formal rulemaking proceedings including an on-the-record
hearing before an administrative law judge, NMFS is waiving the Marine Mammal
Protection Act (MMPA) moratorium on taking Eastern North Pacific (ENP) gray whales
(Eschrichtius robustus) to allow the Makah Indian Tribe to conduct a limited ceremonial
and subsistence hunt of up to 25 ENP gray whales over a 10-year period in accordance
with the Treaty of Neah Bay of 1855 and the quota first established by the International
Whaling Commission in 1997. NMFS is also promulgating regulations to govern the
issuance of hunt permits and the hunt itself.
DATES: Effective date: This rule is effective [insert date of publication in the FEDERAL
REGISTER].
Waiver period: The 10-year waiver period begins the first day of the first season
after issuance of the initial hunt permit.
Expiration date: These regulations will expire 10 years after the effective date of
the initial hunt permit specified under § 216.113(b), unless extended.
ADDRESSES: Copies of the Final Environmental Impacts Statement (FEIS) including
the Record of Decision as well as supporting documents are accessible via the internet on

the Makah Tribal Whale Hunt Chronology webpage at:
https://www.fisheries.noaa.gov/west-coast/marine-mammal-protection/makah-tribalwhale-hunt-chronology or you may request copies by email from ellen.keane@noaa.gov.
FOR FURTHER INFORMATION CONTACT: Ellen Keane, 978-282-8476.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. List of Acronyms
II. Introduction
III. Background and History of Proceedings
IV. Overview of the Tribunal’s Recommended Decision
V. Responses to Comments
VI. Measures in the Final Regulations
VII. Changes to Final Regulations
VIII. Application of the Statutory Criteria to the Final Waiver and Regulations
IX. Scientific Information and Analysis Developed After the Recommended Decision
X. Required Statements Related to Final Regulations
XI. Classifications
I. List of Acronyms and Abbreviations.
Agency

National Marine Fisheries Service

ALJ

Administrative Law Judge

APA

Administrative Procedure Act

AS-IA

Assistant Secretary-Indian Affairs, Department of the Interior

AWI

Animal Welfare Institute

CFR

Code of Federal Regulations

COSEWIC

Committee on the Status of Endangered Wildlife in Canada

CZMA

Coastal Zone Management Act

DEIS

Draft Environmental Impact Statement

DPS

Distinct Population Segment

E.O.

Executive Order

Ecology

State of Washington Department of Ecology

EIS

Environmental Impact Statement

ENP

Eastern North Pacific

ESA

Endangered Species Act

FEIS

Final Environmental Impact Statement

FR

Federal Register

FWS

U.S. Fish and Wildlife Service

GAMMS

Guidelines for Assessing Marine Mammal Stocks

I

Assistant Administrator for Fisheries

ITA

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

IWC

International Whaling Commission

LSIESP

Laguna San Ignacio Ecosystem Science Program

MMC

Marine Mammal Commission

MMPA

Marine Mammal Protection Act

MNPL

Maximum Net Productivity Level

MUA

Makah Usual and Accustomed Fishing Grounds

NCA-NBC

Northern California through Northern Vancouver/British Columbia

NEPA

National Environmental Policy Act

NFG

Northern Feeding Group

NMFS

National Marine Fisheries Service

NOAA

National Oceanic and Atmospheric Administration

OR-SVI

Southern Oregon through Southern Vancouver Island

OSP

Optimum Sustainable Population

PBR

Potential Biological Removal

PCFG

Pacific Coast Feeding Group

PCPW

Peninsula Citizens for the Protection of Whales

PSRG

Pacific Scientific Review Group

RD

Recommended Decision from the Tribunal

ROD

Record of Decision

RFA

Regulatory Flexibility Act

SARs

Stock Assessment Reports

SDEIS

Supplemental Draft Impact Statement

SRT

Status Review Team

Tab

Tab number in the hearing record

U&A

Usual and Accustomed Fishing Grounds

U.S.C.

United States Code

UME

Unusual Mortality Event

WCA

Whaling Convention Act

WCZMP

Washington State’s Coastal Zone Management Program

WCR

NMFS’s West Coast Regional Office

WFG

Western Feeding Group

WNP

Western North Pacific

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

State. The Tribe has also requested that NMFS authorize the making and sale of
handicraft items from whales taken during Tribal whaling.
In 1994, ENP gray whales were removed from the “endangered” species list
under the ESA because the population successfully rebounded after the end of the
commercial whaling era. ENP gray whales remain protected by the MMPA. The MMPA
imposes a general moratorium on the taking of marine mammals but authorizes the
Secretary of Commerce to waive the moratorium and issue regulations governing the take
of marine mammals if certain statutory criteria are met. The decision to waive the
moratorium and issue regulations is made on the record after an opportunity for an
agency hearing on the proposed waiver and regulations. The Secretary has delegated the
responsibility to determine whether the waiver application meets the MMPA’s standards
to the NOAA Administrator who then delegated this authority to the Assistant
Administrator for Fisheries. As the Assistant Administrator for Fisheries, I am
responsible for rendering the Final Decision in this matter. For the reasons set forth in
this Final Decision, I have determined that the MMPA waiver should be granted and
implementing regulations should be adopted to manage the hunt. The waiver and
regulations I adopt in this document establish a framework for the Makah Tribe to
exercise their treaty right to whale in accordance with the MMPA, but additional steps
are necessary under the MMPA and the WCA before hunting resumes.
The waiver and accompanying final regulations (see section VI of this Final
Decision) authorize a limited hunt for ENP gray whales over a 10-year period, during
which no more than 25 ENP gray whales could be killed, in the coastal portion of the
Makah’s U&A. ENP gray whales will be harvested from the quota already established by
the IWC for the Makah and Chukotkan Natives. The IWC first adopted the joint request
of the United States and the Russian Federation for an ENP gray whale catch limit in
1997. RD at 9. The Chukotkan are indigenous to the Russian Federation and harvested an

average of 125 ENP gray whales from the Bering Sea per year from 2008-2017, when the
average number that could be taken each year while remaining below the IWC catch limit
was 124. Tab 60F at 6. In September 2018, the IWC approved the latest catch limit of
980 ENP gray whales, with an annual cap of 140 whales, for the Makah and Chukotka for
the period 2019–2025. Tab 3 at 5.
A separate bilateral agreement between the United States and Russian Federation
sets overall and annual limits for the two countries. Tab 3E through 3I. The Makah Tribe
are entitled to harvest no more than 5 whales per year under the agreement with the
Russian Federation which also specifies that any country’s unused quota may be
transferred to the other. RD at 9. In past years, the United States transferred its entire
quota to Russian Federation for the Chukotkan hunt while NMFS completed the
necessary steps under domestic law to consider the Tribe’s request for a waiver from the
MMPA. Tab 3 at 5-6. This practice will likely continue if the Makah are unable to hunt.
Under these circumstances, the entire quota authorized by the IWC could be harvested by
Chukotkan Natives regardless of whether the Makah Tribe conducts a hunt. While the
number of whales the Chukotkan Natives take each year varies due to hunt management
practices and their ability to successfully strike whales in a given year, they have
exceeded the quota in some years. RD at 128. In addition, the level of take by the Makah
Tribe is small relative to the abundance of ENP gray whales (see section VIII). Thus, the
hunt authorized under the waiver and final regulations will likely have no effect on the
overall population of ENP gray whales. By issuing this waiver, the Makah Tribe will be
able to use their allotment for ENP gray whales, which has in past years been transferred
to the Russian Federation.
Although the overall population of ENP gray whales is unlikely to be affected by
the final waiver and regulations, additional management measures are necessary to
protect the ENP gray whales’ subpopulation known as the PCFG. Additional measures

are also necessary to protect the separate WNP stock of gray whales, which is listed as
endangered under the ESA. Accordingly, two key management goals shaped many of the
provisions in the proposed and final regulations: (1) ensuring that hunting does not
reduce the PCFG abundance below recent stable levels and (2) limiting the likelihood
that Tribal hunters would strike or otherwise harm a WNP gray whale.
Regarding the first management goal, the MMPA requires that I give due regard
to, among other things, the distribution and abundance of the stock subject to the waiver
and that the waiver is in accord with the purposes and policies of the MMPA, which
include maintaining marine mammals as a functioning element of their ecosystem. 16
U.S.C. 1371(a)(3)(A). PCFG whales exhibit site fidelity during the feeding season to a
unique area within the range of the ENP gray whale stock—the northern California
current ecosystem, which is generally described as extending from Northern California to
Vancouver Island and encompasses the hunt area. Tab 3 at 8-9, 29. The final regulations
are designed to limit lethal and sub-lethal effects to PCFG whales to maintain their
abundance and distribution within the PCFG range.
Regarding the second management goal, in adopting regulations to implement a
waiver, I considered all factors that may affect the allowable level of take of ENP gray
whales, which includes the extent to which hunting activities for ENP gray whales may
inadvertently impact WNP gray whales. While uncommon, there are documented
occurrences of WNP gray whales transiting the Makah U&A, and hunters may not be
able to visually distinguish WNP whales from ENP whales during a hunt. The regulations
are designed to minimize the risk of a WNP whale being struck or harmed over the
duration of the waiver.
III. Background and History of the Proceeding
The Makah Tribe’s whaling tradition is older than the United States by well over
1,000 years. RD at 7; Tab 24 at 46. The hunt and associated practices define who the

Makah are, and harvesting a whale cannot be separated from the cultural aspects. Tab 24
at 78; Tab 103 at 5-37. Makah accounts and stories illustrate how whaling shaped their
culture and identity. Tab 24 at 78. The traditions have important ceremonial and social
functions for the Tribal community. Crew members undergo rigorous ceremonial and
spiritual preparations prior to a hunt, and the community at large plays an important role
in the hunt’s success. Tab 103 at 5-37. Training encompasses a series of ceremonies to
become spiritually, emotionally, and physically ready and involve the whalers’ families
and community. Tab 103 at 8-9. These traditions have an important role in maintaining
cultural identity and uniting the community. Tab 26 at 3-4.
The Treaty of Neah Bay of 1855 secures the Makah’s whaling tradition. In the
Treaty, the Makah relinquished significant land holdings to the United States but
expressly reserved the right to whale. Section 4 of the Treaty specifically provides: “The
right of taking fish and of whaling or sealing at usual and accustomed grounds and
stations is further secured to said Indians in common with all citizens of the United
States….”
After signing the Treaty of Neah Bay, the Makah Tribe continued to hunt whales,
but over time, they saw their whaling returns dwindle due to overhunting by non-native
commercial whalers. Tab 90F-Appendix A at 8; Tab 24 at 191. As early as the 1850s, it
was harder for the Makah Tribe to find whales. Tab 24 at 190. In 1928, the Makah Tribe
voluntarily suspended their whaling activities. Id. at 191. Factors contributing to this
decision included demographics (e.g., moving into other fields due to restricted access to
fisheries), loss of whaling canoes and equipment due to a natural disaster, and, perhaps
the most important factor, dwindling cetacean populations due to commercial whaling.
Id. at 191-193. The Makah Tribe’s decision to suspend whaling until whale numbers
began to climb was chosen as a temporary conservation measure to allow whale
populations to rebound. Id. at 193. The Makah took this conservation measure nearly 20

years before the United States and other governments signed the International
Convention for the Regulation of Whaling in 1946, which established an international
moratorium on the hunting of gray whales and right whales. Tab 1F at 44.
The MMPA, enacted in 1972, established a national policy to prevent marine
mammal species and population stocks from declining beyond the point at which they
cease to be a significant functioning element in the ecosystem of which they are a part
and enacted a moratorium on the taking and importing of marine mammals. 16 U.S.C.
1361(2), (6); 1371(a). “Take” is defined broadly and means to “harass, hunt, capture, or
kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16 U.S.C. 1362(13).
The moratorium contains several exceptions. One exception authorizes the
agencies that implement the MMPA to waive the moratorium as appropriate and adopt
implementing regulations governing the take of marine mammals. 16 U.S.C.
1371(a)(3)(A); 1373. Both the decision to waive the moratorium and adopt implementing
regulations must be based on “the best scientific evidence available,” and NMFS must
consult with the MMC in making these decisions. Id. In order to waive the moratorium
for a stock of marine mammals, NMFS is required to give due regard to the distribution,
abundance, breeding habits, and times and lines of migratory movements of such marine
mammals. 16 U.S.C. 1371(a)(3)(A). NMFS must also be assured that the taking under the
waiver is in accord with sound principles of resource protection and conservation as
provided in the purposes and policies of the MMPA. Id. The purposes and policies of the
MMPA include maintaining marine mammals as a significant functioning element of the
ecosystem of which they are a part, maintaining the health and stability of the marine
ecosystem, and obtaining and maintaining OSP for marine mammal stocks keeping in
mind the carrying capacity of the habitat. 16 U.S.C. 1361(2), (6).
When prescribing regulations to implement a waiver, NMFS must insure the
taking will be consistent with the purposes and policies of the MMPA and will not

disadvantage the stock subject to take pursuant to the waiver. 16 U.S.C. 1373(a). NMFS
must also fully consider all factors that may affect the extent of the authorized take,
including existing and future levels of marine mammal species and population stocks;
existing international treaty and agreement obligations of the United States; the marine
ecosystem and related environmental considerations; the conservation, development, and
utilization of fishery resources; and the economic and technological feasibility of
implementation. 16 U.S.C. 1373(b).
In Anderson v. Evans, 371 F.3d 475, 501-02 (9th Cir. 2004), the U.S. Court of
Appeals for the Ninth Circuit held that the Makah Tribe and NMFS must comply with the
MMPA’s waiver process in order for the Tribe to exercise their right to whale pursuant to
the Treaty of Neah Bay of 1855. The Court also held that NMFS must complete an EIS
under the NEPA before authorizing a hunt. Id. at 494. In light of the decision in
Anderson, in 2005 the Makah Tribe asked NMFS to waive the MMPA’s moratorium and
authorize a limited ceremonial and subsistence hunt for ENP gray whales.
In 2015, the NMFS WCR published a DEIS analyzing several alternatives for the
proposed hunt. On April 5, 2019, the WCR published a proposed waiver and regulations
for a hunt (84 FR 13604) in accordance with a delegation from the Assistant
Administrator for Fisheries. The publication of the proposed regulations and waiver
initiated a formal rulemaking process, which included a hearing before a tribunal
overseen by an ALJ. The tribunal was responsible for issuing a recommended decision
for the Assistant Administrator for Fisheries who is responsible for rendering a final
decision.
The waiver and regulations proposed by the WCR would allow limited
ceremonial and subsistence hunting for ENP gray whales over a 10-year period in the
coastal portion of the Makah’s U&A. This area comprises approximately 1 percent of the
lineal distance of the migratory range of ENP gray whales, which runs along the Pacific

Coast of North America and encompasses feeding grounds in the Bering Sea, calving
grounds in the Gulf of California, and a coastal migratory route between these areas. RD
at 83, 91. During the 10-year waiver period, no more than 25 ENP gray whales could be
killed, with an average annual mortality limit of 2.5 animals. The current population of
ENP gray whales is 19,260 (Eguchi et al. 2024), but when the proposed regulations were
issued the population was much higher at approximately 27,000 animals. RD at 95.
The proposed regulations included measures to protect endangered WNP gray
whales and ensure that hunting does not reduce the abundance of the PCFG below recent
stable levels. While uncommon, there are documented occurrences of endangered WNP
whales transiting the U&A during the migratory season (December-May), creating a risk
that a WNP gray whale could be inadvertently harmed in a hunt during the migratory
season. RD at 110-111. The population of WNP gray whales is 290 animals (excluding
calves). RD at 117; Tab 81L at 168.
Most ENP gray whales migrate north to the Bering Sea to feed during the summer
and fall; however, a subgroup of ENP gray whales, known as the PCFG, do not make this
full migration each year, stopping instead to feed in the waters off the Pacific Northwest.
RD at 84-85. The IWC and NMFS consider whales to belong to the PCFG if they are
photo-identified within the region between northern California and northern Vancouver
Island (from 41°N latitude to 52°N latitude) during the summer feeding period of June 1
to November 30, in two or more years. Id. at 60-61. PCFG gray whales are part of the
ENP stock but exhibit site fidelity to the northern California current ecosystem during the
feeding season (June-November). The PCFG abundance estimate was 243 animals at the
time of the proposed regulations and 232 at the time of the hearing. Id. at 96. The PCFG
is currently estimated at 212 animals and has been relatively stable over the last 20 years
(Harris et al. 2022).

The proposed regulations included measures to protect PCFG and WNP gray
whales, including alternating hunt seasons, ENP strike limits, PCFG strike limits, landing
limits, and a PCFG abundance trigger. As proposed, the hunting would be divided
between two alternating seasons. Winter/spring hunts (December 1 through May 31)
would occur during the migration season to reduce risk to PCFG whales during their
feeding season. Summer/fall hunts (July 1 through October 31) would occur during the
feeding season to reduce risk to WNP whales, which only occur in the U&A during the
migration season. Additional details on the proposed waiver and regulations and the
rationale for the proposal may be found in the Federal Register notice for the proposed
waiver and regulations (84 FR 13604, April 5, 2019).
Since waiving the moratorium and adopting implementing regulations requires
formal rulemaking, NMFS held a 6-day hearing in November 2019. A United States
Coast Guard ALJ presided over the tribunal. Six specific parties actively participated in
the hearing: MMC, PCPW, AWI, Sea Shepherd Legal representing Sea Shepherd
Conservation Society, the Makah Tribe, and the WCR. Each party was given the
opportunity to present testimonial and documentary evidence and cross-examine the 17
witnesses who testified.
Before the hearing, NMFS, in consultation with the MMPA-mandated Working
Group on Marine Mammal Unusual Mortality Events (Working Group), declared a UME
for ENP gray whales on May 29, 2019, after several ENP gray whales died within a close
time frame along the West Coast of North America from Mexico to Alaska. Tab 53F at 56. A UME is defined under the MMPA as “a stranding that is unexpected; involves a
significant die-off of any marine mammal population; and demands immediate response."
16 U.S.C. 1421h(9). The UME received considerable attention at the hearing and in the
parties’ filings for the formal rulemaking. The UME continued for several years, with

peak strandings occurring between December 17, 2018, and December 31, 2020, and was
declared over as of November 2023.
Following the hearing, the public had the opportunity to submit comments to the
ALJ, and the parties were entitled to submit post-hearing briefs and proposed findings of
fact and conclusions of law. During the public comment period following the hearing,
NMFS announced its intention to prepare an SDEIS to satisfy NMFS’s obligations under
NEPA. The Federal Register notice announcing the planned SDEIS stated: “Because
information concerning the ongoing 2019 UME was presented at the agency hearing but
not expressly addressed in the 2015 DEIS, NMFS has determined that it would now
benefit both the public and agency decision making to prepare a supplement to the
DEIS.” 85 FR 11347, February 27, 2020. On March 3, 2020, three of the parties to the
formal rulemaking (AWI, Sea Shepherd Legal, and PCPW) jointly submitted a Motion to
Stay the Waiver Proceeding. Tab 108. They argued that the SDEIS would include new
information on the UME and the proceedings should be stayed to allow this information
to be addressed in a recommended decision. The tribunal denied the motion, finding there
was sufficient evidence in the record to determine whether the UME for ENP gray whales
should preclude issuance of a waiver. The tribunal also determined that the arguments of
harm to the moving parties were either speculative or premature and that further delay
associated with the moving parties' proposed stay would prejudice the Makah. Tab 118 at
7-8.
On September 23, 2021, the tribunal issued a Recommended Decision (see Tab
121) and concluded “the best scientific evidence available supports a waiver of the
MMPA’s moratorium of the take of marine mammals to allow the Makah Tribe to engage
in a limited hunt for ENP gray whales.” RD at 155. The tribunal recommended that I
grant the waiver with some changes to the proposed regulations. These recommendations
included reorganizing the regulations for clarity, setting a low abundance threshold for

ENP gray whales that would stop the hunt, expressly requiring the Makah to obtain
authorization under other provisions of the MMPA for the take of WNP gray whales, and
prohibiting approaches on calves and mother-calf pairs.
As required by MMPA regulations, NMFS published a notification in the Federal
Register on September 29, 2021, announcing a 20-day public comment period on the
Recommended Decision (86 FR 53949), which was extended until November 13, 2021.
86 FR 57639, October 18, 2021. Following the close of the comment period on the
Recommended Decision, NMFS completed actions related to the Tribe’s waiver request
pursuant to NEPA, the CZMA, and the ESA. On July 1, 2022, EPA announced the
availability of the SDEIS (87 FR 39517) and, on July 5, 2022, NMFS announced a 45day 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, peerreviewed research” and “his testimony relies on a broad range of sources, including those
whose findings he disagrees with.” Id. at 41-42. Conversely, the tribunal found that
AWI’s only witness was a less credible witness, explaining that his “opinions are based
solely on literature reviews, as he does not conduct any independent research or produce
scientific publications, and he appears to have relied heavily on a subset of the available
literature that best supports AWI’s position in this matter.” Id. at 46.
After assessing the credibility of the scientific testimony offered at the hearing,
the tribunal provided an overview of the studies and reports entered into evidence and the
data collection methods used in gray whale research. The tribunal generally found peerreviewed studies “more reliable scientific evidence than other studies” and that NMFS’s
SARs developed in accordance with section 117 of the MMPA were “highly relevant and
reliable sources of information.” RD at 48-49. The tribunal also noted that the findings of
the IWC’s Scientific Committee, an international body of experts on whale biology, were
“highly reliable,” and it was appropriate to give NMFS’s findings “great deference” if
they were consistent with those of the IWC. Id. at 52.

Section IV.C of the Recommended Decision discussed consultation between the
MMC and NMFS and concluded “[t]here is ample evidence in the record that NMFS
sought comments from the MMC and made its determination in consultation with the
MMC.” RD at 57.
Section IV.D of the Recommended Decision addressed gray whale stock
structure. The tribunal began this section by addressing a dispute between the MMC and
WCR regarding the extent to which the parties could challenge NMFS’s stock
designations, as reflected in SARs, through the formal rulemaking proceeding. The
dispute centered on the effect of section 117 of the MMPA, which provides detailed
procedures for producing SARs and is the process NMFS uses to designate marine
mammal stocks. WCR argued section 117 of the MMPA provides the exclusive
mechanism for designating stocks, while the MMC argued SARs produced under section
117 are relevant but not determinative in a formal rulemaking proceeding considering a
waiver. RD 58-59.
The tribunal determined that in order to make the required findings under the
MMPA, it must make a threshold determination that NMFS’s stock structure for gray
whales is “scientifically sound” and allowed the parties to challenge the stock
determinations in the SARs in the formal rulemaking proceeding. RD at 59. However, if
it were shown that NMFS’s stock assessments were inaccurate or outdated, the
Recommended Decision concluded that the formal rulemaking proceeding is not the
appropriate forum to make new stock assessments. Id. Rather, the proper procedure
would be to deny the waiver and remand the case to NMFS to produce new SARs. Id.
NMFS could then decide whether to reinitiate the waiver after producing new stock
assessments. Id.
The tribunal did not remand the case to NMFS to produce new stock assessments.
The Recommended Decision concluded that the best available scientific evidence

supports NMFS’s determination, as reflected in the SARs, that there are two stocks of
gray whales—the ENP stock and the WNP stock—and that the PCFG is a feeding
aggregation in the ENP stock. RD at 60-69. The tribunal cited uncertainty with respect to
the origins of WNP gray whales but ultimately held that the best available scientific
evidence supports NMFS’s conclusion that WNP gray whales “are distinct from the ENP
stock as a whole,” noting the significant differences between the nuclear DNA found in
ENP gray whales and WNP gray whales. Id. at 68-69.
Several parties argued that the PCFG gray whales should be considered a separate
stock, but the tribunal disagreed. PCFG gray whales and other ENP gray whales have
differences in their mitochondrial DNA, but there is no significant difference in their
nuclear DNA. RD at 63-64. Both parents pass nuclear DNA to their offspring, but gray
whales and other animals only inherit mitochondrial DNA from their mothers. Id. Some
parties argued that the differences in mitochondrial DNA show demographic
independence; others argued this distinction is only evidence of calves following their
mothers to the feeding grounds for which the PCFG are named. Id. The tribunal weighed
the evidence and arguments of the parties and determined that calves born to PCFG
mothers support the PCFG population but external recruitment—that is, other ENP
whales joining the PCFG—plays a role too. Id. On this point, the tribunal noted, “[w]hile
the evidence on recruitment levels is not conclusive, it does convincingly show that
external recruitment plays a major role in maintaining or increasing the size of the
PCFG” and that this evidence “weighs strongly against demographic independence, a key
assessment factor for stock status under the current stock assessment guidelines.” Id. at
65.
Regarding PCFG breeding, the tribunal explained “a determinative factor in
making stock determinations is whether a population’s members interbreed when
mature.” RD at 62. The tribunal found that the “the scientific evidence is still strong that

PCFG gray whales have ample opportunity to mate with non-PCFG ENP whales, and in
fact continue to do so.” Id. at 63. The tribunal also relied on the 2018 SAR, analysis by
the IWC, and the testimony of other scientific experts in concluding “the evidence
strongly supports NMFS’s conclusion, and that of the IWC, the PCFG are a feeding
aggregation and not a separate stock or management unit.” Id. at 65-66.
After summarizing the parties’ arguments for and against the waiver in section V
of the Recommended Decision, section VI of the Recommended Decision analyzed the
statutory factors set forth in section 101(a)(3)(A) of the MMPA. Section IV.A addressed
the enumerated biological factors (distribution, abundance, breeding, and times and lines
of migratory movements) and concluded that the proposed waiver and regulations gave
due regard to these factors. Regarding distribution, the tribunal concluded: “Based on the
best available scientific evidence, I find the hunt will not affect the overall distribution of
the ENP gray whale stock, nor will it have a significant, lasting, or detrimental effect on
the distribution of PCFG whales.” RD at 93. Regarding abundance, the tribunal
concluded “at a population level, the removal of approximately 2.5 whales per year
(assuming the Makah Tribe takes the full number of whales allowed) would not
significantly affect the ENP stock.” Id. at 103. The tribunal also concluded “the best
available scientific evidence is the UME should not preclude issuance of a waiver.” Id.
However, it found “the regulations may warrant modification to further limit hunting
activities during an active UME or if the stock does not rapidly recover from a UME.” Id.
Regarding breeding, the tribunal concluded “there is no scientific evidence showing
approaches or training harpoon throws would prevent whales from mating.” Id. at 106.
Regarding migratory movements, the tribunal noted “there is no credible evidence that
the whales encountered during a hunt will cease migration or change their migratory path
in future years to avoid the hunt.” Id. at 111-112.

Section VI.B of the Recommended Decision next considered how the proposed
waiver would affect the health and stability of the marine ecosystem and the functioning
of marine mammals in their ecosystem. After reviewing the evidence related to
ecosystem effects at various scales associated with the removal of 25 gray whales over 10
years, the Recommended Decision determined that it was “reasonable for NMFS to
conclude that the health and stability of the ecosystems in which gray whales function
will not be adversely affected by the proposed waiver and regulations.” RD at 116.
In section VI.C of the Recommended Decision, the tribunal conducted an OSP
analysis. OSP is defined by the MMPA as “with respect to any population stock, the
number of animals which will result in the maximum productivity of the population or
the species, keeping in mind the carrying capacity of the habitat and the health of the
ecosystem of which they form a constituent element.” 16 U.S.C. 1362(9). Citing section 2
of the MMPA, the Recommend Decision determined that when assessing a waiver, the
“MMPA requires the Secretary to consider the ability of marine mammal ‘species and
population stocks’ to attain and maintain OSP, when doing so is consistent with the Act’s
primary objective of preserving the health of the marine ecosystem.” RD at 116. The
tribunal determined that this inquiry is not limited to the “stock subject to the waiver.” Id.
Rather, “NMFS must show that it considered not only the ENP stock’s ability to attain
and maintain its OSP, but also the WNP stock’s ability to do so.” Id.
The tribunal concluded that the ENP stock has attained OSP and that it is likely to
maintain OSP after the hunt contemplated by the proposed waiver and regulations. Id.
With respect to WNP gray whales, the tribunal explained:
AWI argues the near-certainty of at least one WNP whale being
approached at some point during the ten-year validity period of this
waiver, and the minimal chance of one being struck, prevents NMFS from
issuing the waiver. I disagree. A mere approach on a WNP gray whale,
which is the most likely scenario under the proposed waiver and
regulations, is not expected to have any effect on the stock’s ability to
attain and maintain its OSP.

RD at 120. Regarding WNP gray whales and OSP, the tribunal further explained that,
“loss of a WNP whale due to a hunt-related strike would certainly have a deleterious
effect on the stock due to its low abundance.” Id. However, it ultimately recommended
that the waiver be granted, explaining that the waiver criteria in section 101(a)(3)(A) does
not require NMFS to “conclusively rule out any possibility that an animal from a depleted
stock could be taken.” Id. at 132. NMFS produced a risk analysis for gray whales (Moore
and Weller 2018), which found there is “a 30% chance of an unsuccessful strike attempt
on a WNP whale if all authorized attempts are made, which equates to one every 33
years” and “approximately 14 WNP whales would be approached over 10 years if all
available approaches are used (essentially 100% probability).” Id. at 118. Moore and
Weller (2019) updated this analysis “based on the higher WNP abundance estimate in the
2018 SAR.” As described in the Recommended Decision, this was the best available
science at the time of the hearing and showed a “0.5% chance of striking a WNP on any
given strike” and “a probability over the entire hunt period of 7.4%.” Id. at 119.
The tribunal addressed the implication of Kokechik Fishermen's Ass'n v. Sec'y of
Com., 839 F.2d 795 (D.C. Cir. 1988), on the proposed waiver and regulations in section
IV.D of the Recommended Decision. In Kokechik, NMFS issued a permit to a federation
of Japanese fishermen to take Dall’s porpoise incidentally while salmon fishing with
gillnets. 839 F.2d at 799. The permit authorized the take of Dall’s porpoise only, even
though it was foreseeable that other species of marine mammals would also be taken. Id.
at 799-800. The court held that the permit NMFS issued “was contrary to the
requirements of the MMPA in that it allowed incidental taking of various species of
protected marine mammals without first ascertaining as to each such species whether or
not the population of that species was at the OSP level.” Kokechik, 839 F.2d at 802. The
tribunal concluded the holding in Kokechik applies to the permitting stage of the waiver
process, which is not within its jurisdiction (RD at 123), and also noted that Kokechik is

distinguishable, since it “involved a factual scenario where the killing of depleted marine
mammals was ‘not merely a remote possibility but a certainty,’ and the court did not
address other specific situations where a permit could possibly be issued,” such as under
provisions of the MMPA addressing incidental take. RD at 122 quoting Kokechik, 839
F.2d at 802.
After considering the evidence in the record and the arguments of the parties, the
tribunal ultimately recommended that NMFS grant the waiver, explaining:
NMFS has presented ample evidence, which the other parties have not
rebutted, to show that the ENP stock of gray whales will not be
disadvantaged by the issuance of a waiver here. The authorized take will
not affect the ENP stock’s ability to maintain its OSP, and will not
meaningfully affect its distribution, breeding, or migratory habits.
RD at 132.
The tribunal then turned to the implementing regulations in section VII of the
Recommended Decision and analyzed them pursuant to section 103 of the MMPA. The
tribunal’s analysis in section VII of the Recommended Decision largely focused on
section 103(b) of the MMPA, which requires NMFS to fully consider “all factors which
may affect the extent to which such animals may be taken or imported” in promulgating
regulations under this provision of the MMPA. The required consideration under section
103(b) includes, but is not limited to, the effect of the regulations on five enumerated
factors:
(1) Existing and future levels of marine mammal species and population
stocks;
(2) Existing international treaty and agreement obligations of the United
States;
(3) The marine ecosystem and related environmental considerations;
(4) The conservation, development, and utilization of fishery resources; and
(5) The economic and technological feasibility of implementation.
In consideration of the first factor, existing and future levels of marine mammals,
the tribunal recommended requiring that the Makah obtain an ITA under section
101(a)(5) of the MMPA for WNP gray whales before hunting during the winter/spring

season, which runs from December through May. RD at 136-137. The tribunal explained
that doing so “will help assure any court that may review this rulemaking in the future
that NMFS has fully considered the existing and future levels of the WNP stock and has
drafted its regulations accordingly.” Id. at 137. The tribunal did not find it necessary to
require incidental take authorizations for WNPs during the summer/fall hunting period
because WNP gray whales are not expected to be present in the hunt area during that time
of the year. Id.
The Recommended Decision concluded that NMFS satisfied its burden under the
other enumerated factors in section 103(b) of the MMPA. Under the second factor,
international treaty and agreement obligations, the tribunal explained that “NMFS is not
proposing to exceed the agreed-upon catch limits … and the IWC Scientific Committee’s
Standing Work Group on Aboriginal Subsistence Whaling Management Procedures
evaluated the proposed hunt and determined it would meet the IWC’s conservation
objectives for ENP, WNP, and PCFG Whales.” RD at 137. The tribunal determined
NMFS addressed the third factor, consideration of the marine ecosystem and related
environmental considerations, as explained in section VI.B of the Recommended
Decision and through its analysis in the DEIS. RD at 138. Under the fourth factor, the
tribunal determined there would be no impact on “the conservation, development, and
utilization of fishery resources” and noted that the hunt is unlikely to affect whalewatching businesses. RD at 138-139. Finally, the tribunal concluded the hunt was
economically and technologically feasible, although there may be some technical issues
associated with obtaining clear and timely photographs of gray whales for monitoring.
RD at 139-140.
Having considered the five required factors, in section VII.B the tribunal turned to
a motion filed by the WCR to amend the regulations, which proposed amending the
definition of strike to make clear that multiple strikes on the same whale only counted as

a single strike for purposes of strike limits. RD at 140. The motion also proposed
allowing the Makah to share edible whale products with non-Tribal members outside of
their reservation. Id. The tribunal granted the motion. RD at 143.
In section VII.C, the tribunal recommended several key changes to the
regulations. First, it proposed some structural changes to improve the organization and
clarity of the regulations. RD at 146. Second, it recommended specific changes to ensure
there is no hunting or training in the winter or spring unless and until the Makah Tribe
obtains an ITA. Id. at 147-148. Third, citing the UME that was ongoing at the time of its
deliberations, the tribunal recommended that NMFS set an abundance threshold for ENP
gray whales but did not recommend a specific threshold. Id. at 150-151. Finally, the
tribunal proposed to prohibit the Makah from approaching gray whale calves or gray
whale mothers with their calves. Id. at 154.
The tribunal rejected several other proposals advanced by the parties. AWI took
issue with the provisions of the proposed regulations that separate lethal and non-lethal
hunting activities and argued the term hunt should be defined as any pursuit of a whale.
The tribunal rejected this suggestion because it “would likely cause confusion, as it is
unclear what other terminology NMFS could use to convey the different limitations on
non-lethal training activities and potentially lethal hunting activities.” RD at 146.
MMC proposed adding a PCFG “dimmer-switch” to the regulations, which would reduce
PCFG strike limits gradually if PCFG abundance declines, but the tribunal determined
that NMFS already had authority to make such reductions if necessary under the
proposed regulations. Id. at 150-151. PCPW raised concerns related to hunt safety, but
the tribunal determined NMFS has discretion to defer its consideration of safety issues to
the permitting phase of the process. RD at 151-152.
Section VIII of the Recommended Decision ultimately concluded that the waiver
should be approved and explained:

Having considered the evidence presented at the hearing and the briefs and
comments received, I find that the best scientific evidence available
supports a waiver of the MMPA’s moratorium of the take of marine
mammals to allow the Makah Tribe to engage in a limited hunt for ENP
gray whales. The takings authorized under the waiver will have only a
negligible effect on the stock and will therefore not disadvantage the
stock. In developing the proposed waiver, NMFS followed the dictates of
the MMPA by considering the “distribution, abundance, breeding habits,
and times and lines of migratory movements of such marine mammals,”
the potential effects on the ecosystem, and the ability of stocks to attain
and maintain their OSP.
RD at 155. The tribunal also concluded that NMFS adequately considered “the
distribution, abundance, breeding habits, and times and lines of migratory movements of
WNP gray whales in making this determination, and the regulations include adequate
protections for the WNP stock.” Id. The tribunal further held that “NMFS’s determination
that PCFG whales do not constitute a separate stock is supported by best scientific
evidence currently available and that NMFS included adequate protections for PCFG
whales in the proposed regulations.” Id.
In rendering the Recommended Decision, the tribunal gave no additional weight
to the Treaty of Neah Bay of 1855. The Recommended Decision stated:
The Ninth Circuit held that the Makah Tribe’s proposed hunt must comply
with the MMPA, notwithstanding its treaty rights, and acknowledged the
possibility that NMFS would weigh the treaty rights in deciding whether
to bring a waiver proceeding. NMFS has done so. (Tab 101 at 39:9–11
(Yates) (“Absent [the Makah’s] treaty right and absent that quota from the
International Whaling Commission, we would not be moving forward with
a MMPA waiver for gray whales.”). The remaining issues for decision are
prescribed by statute, and do not include consideration of the treaty rights.
RD at 79. The tribunal emphasized that the Treaty “has no bearing on the specific
statutory and regulatory issues I am tasked with deciding here.” RD at 137.
V. Responses to Comments on the Recommended Decision
On September 29, 2021, NMFS announced a 20-day comment period on the
tribunal’s Recommended Decision. 86 FR 53949. This comment period was extended on
October 18, 2021, providing an additional 25 days for public review and feedback. 86 FR
57639. NMFS received 186 comments with 62 supporting and 115 opposing the granting

of the waiver. The remaining comments did not express support or opposition but
provided specific comments. The Makah Tribe, Northwest Indian Fisheries Commission,
Tulalip Tribes, Jamestown S’Klallam Tribe, Puyallup Tribe of Indians, Squaxin Island
Tribe, Lower Elwha Klallam Tribe, Suquamish Tribe, Swinomish Indian Tribal
Community, Washington Indian Gaming Association, Department of Interior’s Office of
the Assistant Secretary-Indian Affairs (Office of the AS-IA), NMFS WCR, MMC,
MORI-ko LLC, Sierra Club, and a number of individual commenters were generally
supportive of the Recommended Decision. Opponents of the tribunal’s Recommended
Decision included AWI, Marine Mammal Conservation of Mexico (COMARINO),
Marine Connection, PCPW, and a number of individual commenters. Below, we
summarize and respond to the relevant comments. Some comments were outside the
scope of this action and are not addressed here.
Comments on the Requirements of Sections 101(a)(3)(A) and 103 of the MMPA
Comment 1: The WCR disagrees with the tribunal’s determination that NMFS
must show it considered the WNP stock’s ability to obtain and maintain OSP under
section 101(a)(3)(A) of the MMPA.
Response: In section 101(a)(3)(A), Congress granted the Agency the authority to
waive the moratorium “so as to allow taking, or importing of any marine mammal, or
marine mammal product, and to adopt suitable regulations, issue permits, and make
determinations in accordance with sections 102, 103, 104, and 111 permitting and
governing such taking and importing, in accordance with such determinations….” There
are two provisos in section 101(a)(3)(A) following this grant of authority. The first
proviso is relevant here and states that the Agency “must be assured that the taking of
such marine mammal is in accord with sound principles of resource protection and
conservation as provided in the purposes and policies of this Act” in making the
determinations associated with waiving the moratorium. Sections 2(2) and (6) of the

MMPA include “purposes and policies” related to obtaining and maintaining OSP for all
marine mammal species and population stocks. However, the first proviso in section
101(a)(3)(A) does not refer to all marine mammal species and stocks. The proviso refers
to “such marine mammal.” The requirement to be assured that taking “is in accord with
sound principles of resource protection and conservation as provided in the purposes and
policies of this Act” only applies to the taking of “such marine mammal” under section
101(a)(3)(A).
The term “such” means “of a kind or character to be indicated or suggested.”
https://www.merriam-webster.com/dictionary/such (last visited March 19, 2024). The
term can also mean “[t]hat or those; having just been mentioned.” Black's Law
Dictionary (11th ed. 2019). The Oxford English Dictionary further provides: “Such is a
demonstrative word used to indicate the quality or quantity of a thing by reference to that
of another or with respect to the effect that it produces or is capable of producing. Thus,
syntactically, such may have backward or forward reference….” Oxford English
Dictionary Online (last visited March 21, 2024). Likewise, a dictionary published a few
years after the MMPA was adopted explains that “such” includes “of a kind or character
about to be indicated, suggested, or exemplified” as well as “having a quality already or
just specified. ” Webster’s Third New International Dictionary (3rd ed. 1976). Thus, the
phrase “such marine mammal” in the first proviso in section 101(a)(3)(A) refers to
marine mammals “to be indicated” or marine mammals “having just been mentioned,”
not marine mammals described in other sections of the Act.
The reference to “such marine mammal” in the first proviso of section
101(a)(3)(A) refers back to NMFS’s authority to allow taking of “any marine mammal.”
Under section 101(a)(3)(A), NMFS has the authority to waive the moratorium for a single
stock of marine mammals, as NMFS has proposed here. When NMFS chooses to exercise
that discretion, the text of section 101(a)(3)(A) limits the analysis required by the first

proviso of section 101(a)(3)(A) to the marine mammal stock subject to taking under the
proposed waiver. Here, that is the ENP stock, not the WNP stock.
The tribunal construed the statute differently. Citing the purposes and policies in
section 2 of the MMPA, the tribunal explained:
The MMPA requires the Secretary to consider the ability of marine
mammal “species and population stocks” to attain and maintain OSP,
when doing so is consistent with the Act’s primary objective of preserving
the health of the marine ecosystem. 16 U.S.C. § 1361. This is an
overarching principle and does not focus solely on the stock that is the
subject of the waiver.
RD at 116. The WCR disagreed with this interpretation and explained in their
comments on the Recommended Decision:
NMFS WCR does not agree with Judge Jordan’s statutory interpretation,
that NMFS must consider both the ENP stock’s and WNP stock’s abilities
to attain and maintain OSP levels in deciding whether to issue a waiver for
ENP gray whales under MMPA section 101(a)(3)(A). See Recommended
Decision at 116 (relying on MMPA section 2, Congressional findings and
declaration of policy). While we agree that an overarching policy of the
MMPA is to maintain all marine mammal stocks at or above OSP levels,
here, the specific requirements of section 101(a)(3)(A), which govern
issuance of waivers, control. Because NMFS is not proposing to waive the
MMPA take moratorium with respect to the WNP gray whale stock,
NMFS was not required to undertake an analysis of potential effects on the
WNP stock’s OSP levels.
I agree with the WCR. The tribunal’s interpretation deprives the phrase “such marine
mammal” in the first proviso of section 101(a)(3)(A) of its normal meaning. The
overriding purposes and policies of the MMPA cannot alter the text of section
101(a)(3)(A).
Furthermore, the WCR’s interpretation is consistent with the structure of the
statute. Section 103(b) requires a broader evaluation of the “effect of such regulations”
implementing a waiver. Section 101(a)(3)(A) uses narrower language and requires only
that “the taking of such marine mammal is in accord with the sound principles of
resource protection and conservation as provided in the purposes and policies” of the Act.
As explained above, “such marine mammal” refers to ENP gray whales, the stock subject

to taking pursuant to the waiver. In any event, for the reasons explained in section VIII
(Risk to WNP Gray Whales), any effects of the final waiver and regulations on WNP gray
whales are not expected to impact the ecosystem or the ability of WNP gray whales to
obtain or maintain OSP.
Comment 2: With respect to WNP gray whales, the WCR disagrees with the
tribunal’s characterization of the disadvantage test in section 103(a) of the MMPA, citing
discrepancies in the Recommended Decision. For example, page 117 of the
Recommended Decision states: “any take of a WNP would necessarily disadvantage the
stock,” whereas page 136 of the Recommended Decision states “not all takes of depleted
stocks necessarily disadvantage those stocks.” Relatedly, the Makah Tribe comments that
the Recommended Decision’s assertion that the removal of one WNP whale would
disadvantage the stock is contrary to the evidence in the record.
Response: The Recommended Decision uses the term “disadvantage” when
discussing WNP gray whales and depleted marine mammals, raising questions about the
application of the disadvantage test in section 103(a) to the endangered WNP stock.
When implementing a waiver, section 103(a) of the MMPA provides: “The Secretary …
shall prescribe such regulations with respect to the taking and importing of animals from
each species of marine mammal (including regulations on the taking and importing of
individuals within population stocks)” as the Secretary “deems necessary and appropriate
to insure that such taking will not be to the disadvantage of those species and population
stocks and will be consistent with the purposes and policies set forth in section 2 of this
Act.” The disadvantage test in section 103(a) applies to “such taking” of “those species
and population stocks.” “Such taking” under section 103(a) refers to the taking described
earlier in the section, which is the regulated “taking and importing of animals from each
species of marine mammal (including regulations on the taking and importing of
individuals within population stocks)….” This text allows NMFS to regulate taking at the

species-level or the stock-level. In this action, NMFS is waiving the moratorium and
providing for the regulated taking of gray whales from the ENP stock only. Therefore,
NMFS must satisfy the disadvantage test for the ENP stock. NMFS is not waiving the
moratorium for WNP gray whales under section 101(a)(3)(A) or providing for regulated
taking of this stock under section 103(a). Under these circumstances, NMFS is not
required to comply with the disadvantage test for the WNP stock in this action.
The reference to “those species and population stocks” in section 103(a) expresses
the idea that if taking is authorized at the species level, then the authorized taking cannot
disadvantage the species. If the taking is authorized at the stock level, as NMFS has
proposed in this case, then the taking cannot disadvantage the stock. This language does
not require NMFS to apply the disadvantage test at the species level if NMFS is only
proposing to waive the moratorium and regulate a single stock within a species that
consists of multiple stocks. Accordingly, in reviewing the final regulations, I must
“insure” that the take of marine mammals from the ENP stock will not disadvantage the
ENP stock and will be consistent with the purposes and policies of section 2 of the
MMPA. 16 U.S.C 1373(a).
Any ambiguity regarding the application of the disadvantage test to WNP gray
whales in this case is resolved by the legislative history of the MMPA. When Congress
first adopted the exception for incidental take in section 101(a)(5), the House Report for
the Bill (H.R. 4084) stated: “Sections 103 and 104 of the Act do not apply to the taking of
marine mammals occurring under the authority of section 101(a)(5).” House Report No.
97-228, at 13 (1981). Under the final regulations, any taking from the WNP stock that is
anticipated during the permitting stage could only be authorized under section 101(a)(5)
under the current circumstances. As such, the legislative history confirms that the
disadvantage test in section 103(a) does not apply to WNP gray whales in this case.

Impacts to WNP gray whales are not properly addressed under sections 103(a) or
101(a)(3)(A) in this case, but that does not mean that impacts to WNP gray whales are
irrelevant in NMFS’s evaluation of the waiver and implementing regulations. Section
103(b) addresses the regulations NMFS must adopt to implement a waiver and states: “In
prescribing such regulations, the Secretary shall give full consideration to all factors
which may affect the extent to which such animals may be taken or imported, including
but not limited to the effect of such regulations” on five enumerated factors. The
language of section 103(b) makes clear that these five factors are not exhaustive and
focuses on the effect of the regulations implementing a waiver. Regulations
implementing a waiver could affect marine mammals that are not subject to regulated
taking under a waiver. In section 103(b), Congress required NMFS to consider these
effects. In this case, the regulations implementing a hunt for ENP gray whales may
incidentally take endangered WNP gray whales. I must give, and have given, full
consideration to this issue under section 103(b).
In summary, the analyses required by sections 101(a)(3)(A) and 103(a) of the
MMPA focus on the stock subject to regulated taking under a waiver, which is ENP gray
whales. However, the broader language of section 103(b) requires consideration of the
effects of the regulations on WNP gray whales. I address the effects of the regulations on
WNP gray whales in section VIII of this Final Decision.
Comment 3: The WCR comments that whales are not fishery resources for the
purposes of MMPA section 103(b) and disagrees with the Recommended Decision that
the whale watching industry falls within the scope of this factor of the MMPA.
Response: As described in section VIII of this Final Decision, I agree that impacts
to whale watching should not be analyzed under section 103(b).

Comment 4: Several comments on the Recommended Decision suggest I must
apply the precautionary principle when evaluating various aspects of the Makah’s waiver
request.
Response: The statutory criteria that must be evaluated to grant the waiver and
adopt implementing regulations are indeed protective, but if the criteria are satisfied,
NMFS is not required to apply an additional measure of precaution to comply with the
MMPA.
Comments on Gray Whale Stock Structure
Comment 5: The WCR comments that the MMPA’s detailed procedures in
section 117 for identifying population stocks take precedence and govern stock
determinations for other MMPA purposes, such as issuance of a waiver, and are not
subject to de novo review in this formal rulemaking.
Response: Section 117 of the MMPA establishes the framework through which
NMFS identifies marine mammal stocks and assesses their status. Through this process,
which culminates in the publication of SARs, NMFS has identified two stocks of gray
whales, the eastern and western North Pacific populations. The tribunal explained the role
that SARs play in the waiver process as follows:
In order to make the requisite findings about the proposed waiver and
regulations, I must make a threshold determination that the stock structure
NMFS used is scientifically sound. While NMFS’s existing stock
determinations, as contained in the SARs, are entitled to substantial
deference, other parties may attempt to show the SARs rely on outdated or
inaccurate scientific evidence. (See Tab 84 at 10; Brower II, 257 F.3d at
1067). However, if I were to determine NMFS’s current stock assessments
are not based on the best available scientific evidence, this would not be
the appropriate forum to make new assessments. Instead, the proper course
of action would be to deny the waiver. NMFS would then have the
opportunity to produce new stock assessments before deciding whether to
propose a future waiver.
RD at 59. I agree with this assessment, which is consistent with the requirements under
both sections 101(a)(3)(A) and 103(a) that I base my decision on the waiver and the
implementing regulations on the “best scientific evidence available.”

SARs play a critical role in marine mammal management, but if Congress had
intended for NMFS to give conclusive effect to the stock determinations in SARs when
assessing a waiver application, it would have directed NMFS to do so. Other provisions
of the MMPA specifically direct NMFS to use information from SARs. Sections
118(f)(5), (7), and (8) of the MMPA direct NMFS to use the PBR “established under
section 117” for certain aspects of take reduction plans. This language clearly instructs
NMFS to use information from SARs. There is no similar language related to stock
designation in the provisions of the MMPA governing this proceeding. Rather, in both
sections 101(a)(3)(A) and 103(a), Congress directed NMFS to use the “best scientific
evidence available” when evaluating a waiver and implementing regulation which will
often, but not always, be the scientific evidence in SARs. Because SARs are not
constantly updated, the scientific information in a SAR can become outdated before the
next SAR is published. Therefore, I agree with the tribunal’s decision to allow the parties
to challenge the gray whale stock structure reflected in the 2017 and 2018 SARs (Tabs
2K; Tab 54D) during this formal rulemaking proceeding and its ultimate conclusion that
the stock structure reflected in NMFS’s SARs is scientifically sound.
Comment 6: NMFS received a number of comments on whether PCFG gray
whales should be considered a stock under the MMPA, with the Makah Tribe, MMC, and
WCR region arguing that the PCFG are not a stock and AWI, Sea Shepherd, and PCPW
arguing the opposite. Some parties and commenters argue that the PCFG must be
designated as a stock pursuant to the purposes and policies of the MMPA and the
precautionary principle.
Response: I agree with the tribunal’s determination that the PCFG is a feeding
aggregation within the ENP stock for the reasons stated in section IV.D.1 of the
Recommended Decision. The tribunal found that “the evidence strongly supports
NMFS’s conclusion, and that of the IWC, that the PCFG are a feeding aggregation and

not a separate stock or management unit.” RD at 65-66. Since the evidence is strong on
this issue, NMFS’s determinations related to the PCFG’s status are consistent with the
MMPA. Conservation of the PCFG is addressed through the numerous conservation
measures in the final regulations that will ensure the hunt does not cause the PCFG to fall
below recent levels, including PCFG abundance thresholds that prohibit authorizing
hunting if the PCFG population is below those thresholds.
Comment 7: AWI comments that the Recommended Decision primarily relies on
recruitment levels in determining that the PCFG are a feeding aggregation within the
ENP stock, rather than a separate stock.
Response: I disagree. The Recommended Decision relies on multiple lines of
evidence in reaching the conclusion that the PCFG are a feeding aggregation with the
ENP stock, including breeding habits, genetic information, and immigration into and
emigration out of the group. RD at 62-67.
Comment 8: AWI argues that NMFS’s failure to heed the recommendation of the
PSRG and convene a workshop to address whether the PCFG should be considered a
stock is arbitrary and capricious.
Response: AWI mischaracterizes the PSRG’s recommendation. In 2018, the
PSRG recommended that “NMFS reconsider the characteristics and status of the Pacific
Coast Feeding Group (PCFG) of gray whales and whether it should be recognized and
managed as a full stock” without requesting that the agency convene a workshop to
address the issue. Tab 2L at 11. NMFS responded to the 2018 PSRG recommendation by
explaining that the available information did not support classifying the PCFG as a “full
stock” under the MMPA and that NMFS scientists keep apprised of new information
pertaining to the PCFG and are actively engaged in field studies and gray whale
assessments/workshops, including participation in four workshops convened by the IWC
to review the range-wide status and structure of the North Pacific gray whales. Tab 2L at

11-12. NMFS scientists continue to be actively engaged in gray whale research and
assessments. These assessments continue to support that the PCFG is a feeding
aggregation of the ENP gray whale stock (see FEIS subsection 3.4.3).
While the PSRG is an important part of the process described in section 117 of
the MMPA, they do not have a formal role in this proceeding and have not participated.
Even if the PSRG had recommended establishing another workgroup to consider the
status of the PCFG as a stock, I do not have the discretion to delay this proceeding to do
so. The regulations governing this matter only allow me to make a final decision or
remand this matter to the tribunal at this stage in the proceeding. 50 CFR 228.21(a).
Section 117 of the MMPA requires the development of SARs, based on the best
scientific information available, for all marine mammal stocks in U.S. waters. These
reports are reviewed annually for “strategic stocks” and stocks for which significant new
information is available and at least every 3 years for all other stocks. Through section
117 of the MMPA, NMFS regularly reviews the stock status of marine mammals,
including gray whales, and will continue to do so.
Comment 9: MMC recommends that I address the implications for the waiver if
the PCFG are designated a stock and include a contingency clause in the regulations that
would suspend the authorization to conduct a whale hunt if the PCFG are determined to
be a separate stock.
Response: If the PCFG are designated a stock at some future time, the same
MMPA provisions that apply to waiving the take moratorium for the ENP stock would
apply to a newly designated stock. The Tribe would need to apply for a waiver of the
moratorium on take for the new stock, the request would be considered through the
formal rulemaking process, and a decision rendered. If designated as a stock, PCFG
whales could not be intentionally hunted unless a waiver is granted and implementing
regulations are promulgated.

Comment 10: The Makah Tribe comments that it believes the WNP stock is not a
listed species under the ESA because its essential attributes are “fundamentally different”
from the stock that remained listed as endangered in 1994 when the ENP stock was
delisted, and therefore the WNP stock should not be considered depleted under the
MMPA.
Response: The entire gray whale population was first listed as endangered in 1970
(35 FR 18319, December 2, 1970), and it was both endangered under the ESA and
depleted under the MMPA at that time. In 1994, the ENP stock was removed from the
ESA’s list of endangered and threatened species and no longer considered depleted under
the MMPA because it had recovered. However, the WNP stock remained both
endangered under the ESA and depleted under the MMPA because NMFS determined
that the WNP gray whale population was geographically and reproductively isolated from
the ENP population, remained small, and had not recovered. 59 FR 31094, June 16, 1994.
Although it is now clear that the WNP and ENP gray whale populations are not
geographically isolated (see section IX, Stock Structure), I agree with the Recommended
Decision’s determination that “the best available scientific evidence” is that WNP gray
whales are “distinct from the ENP stock as a whole.” RD at 69. The tribunal noted
uncertainty regarding the origins of the WNP gray whales but highlighted the
“statistically significant” genetic differences between WNP gray whales and ENP gray
whales. RD at 67-69. Analysis of photo-identification data, including data on mother-calf
pairs, and paternity assessments, suggest that gray whales summering in the WNP may
constitute a demographically self-contained subpopulation where mating occurs at least
preferentially and possibly exclusively within the subpopulation. Several studies have
found differences in the mitochondrial and nuclear DNA between ENP and WNP gray
whales. RD at 67-69; Tab 59B at 12. I agree that these differences in the nuclear DNA

found in ENP gray whales and WNP gray whales counsel in favor of treating the two
stocks separately, even though it is now clear that their ranges overlap to some degree.
Comments on the Status of Gray Whales
Comment 11: Several comments address the status of the ENP gray whale stock.
These include comments that the population should be considered endangered and not
sustainable as well as comments that the population has fully recovered and a hunt would
have negligible effects.
Response: ENP gray whales are not listed as endangered. The status of the ENP
gray whale stock is addressed in sections IV-V and VII-IX of this Final Decision.
Abundance Threshold for ENP Gray Whales and the UME
Comment 12: The tribunal found that “the scientific evidence weighs in favor of
an overall abundance threshold” for ENP gray whales and recommended I consider
establishing one in the final regulations, “[p]articularly in light of the current UME.” RD
at 151. Several commenters addressed the tribunal’s recommendation to include an
abundance threshold in the final regulations and proposed specific population levels,
ranging from 11,000 to 18,000, below which hunting would be prohibited. The Makah
Tribe and the WCR believe an abundance threshold is not necessary but suggested
thresholds should NMFS choose to implement one. MMC and PCPW support a low
abundance threshold. AWI, while arguing that legal obstacles preclude adoption of the
Recommended Decision, is generally supportive of a low abundance threshold.
Response: I have included requirements in the final regulation setting an
abundance threshold based on OSP. NMFS is required to confirm that the ENP gray
whale stock is within OSP before issuing a hunt permit and ensure that the level of
hunting under the hunt permit will not cause the stock to fall below its OSP. If the stock
falls below OSP, NMFS must notify the Tribe and hunting is prohibited until NMFS
notifies the Tribe that the stock is within OSP.

Comment 13: Several commenters suggest that the waiver should not be granted
during a UME.
Response: The Working Group on Marine Mammal Unusual Mortality Events
determined the most recent UME involving ENP gray whales was biologically over as of
November 2023. There is no longer an ongoing UME for ENP gray whales. The
population of ENP gray whales is known to experience large-scale fluctuations in
abundance and has recovered from prior declines, including a prior UME that occurred
over 20 years ago. The most recent abundance estimate for the 2023/2024 season shows a
32.6 percent increase from the 2022/2023 season (Eguchi et al. 2024). The abundance
threshold for ENP gray whales in the final regulations addresses these fluctuations and
concerns related to UMEs by prohibiting lethal hunting if the stock is not within its OSP.
PCFG Gray Whales
Comment 14: Some commenters suggest that the hunt will primarily impact the
PCFG. Commenters also suggest that PCFG whales may not be able to recover from
human-caused mortalities.
Response: The effects of the hunt were thoroughly evaluated at a range of scales,
including the ENP, PCFG, OR-SVI (PCFG whales observed from southern Oregon to
southern Vancouver Island survey areas), and Makah U&A (PCFG whales observed in
north Washington or Strait of Juan de Fuca survey areas) whales (see FEIS Chapter 4).
The regulations contain several protections for PCFG whales, including an alternating
hunt season, limits on the harvest and mortality of PCFG whales, and low abundance
thresholds for PCFG whales below which hunting would not be authorized.
Comment 15: PCPW and MMC recommend adopting a “dimmer switch
provision” that would gradually reduce the harvest of gray whales before the abundance
reaches the thresholds set in the regulations. Other commenters assert that this provision

is unnecessary as the proposed regulations allow NMFS discretion to limit PCFG strikes
below the full level through the hunt permit.
Response: The regulations include a number of measures to protect PCFG gray
whales including a low abundance threshold. As noted in the Recommended Decision,
NMFS also has discretion through the hunt permit process to grant less than the full
number of strikes that would otherwise be allowed. If necessary, this discretion could be
used to protect PCFG gray whales. RD 150-151. Given this, I have determined that a
“dimmer switch” provision is not warranted.
Comment 16: PCPW comments that the accounting and identification methods
(e.g., photo-identification) for PCFG whales are not 100 percent reliable and that the
assumptions in accounting for PCFG whales are “questionable formulas.” PCPW also
asserts that the number of whales at a particular time is impossible to know and models
used for estimating the PCFG abundance are full of “assumptions” and in the hands of
“anonymous modelers.”
Response: I have kept the requirement that the Tribal hunt observer collect digital
photographs for identification but have modified it slightly to specify the Tribal hunt
observer “must make every reasonable attempt” to collect digital photos. The regulations
at § 216.115 specify the methods used to account for a whale that cannot be affirmatively
identified. These methods are based on the best available scientific information. The
PCFG abundance estimate is based on data derived from photo-identification surveys and
catalog data. These estimates and the methods to derive them are fully described in peer
reviewed, published literature. See, for example, Tabs 3AA, 3HH. The survey and
catalog data will also be used as the basis for projecting PCFG abundance estimates into
future hunting.
Comment 17: A commenter suggests the UME had a disproportionate effect on
PCFG gray whales.

Response: There is no evidence that the UME had a disproportionate effect on
PCFG gray whales. Since declaring a UME in May 2019, NMFS worked with partners in
Canada and Mexico to review data and sample stranded gray whales. RD at 99. Only one
whale has been matched by photo-identification to the PCFG. Genetic analysis of
samples collected from stranded whales has not been completed. Although the abundance
estimate for the ENP stock declined significantly from the 2015/2016 to the 2022/2023
abundance surveys, the PCFG abundance estimate has not experienced a proportional
decline from pre-UME levels to 2020 (Harris et al. 2022).
Comment 18: Two commenters note inconsistencies in the statement in the
Recommended Decision describing PCFG as occurring “in the PCFG range between
April 1 and November 30 of two consecutive years.” RD at 85. April 1 should read June
1. While a whale must be sighted in 2 or more years to be designated a PCFG whale,
these sightings do not need to be in consecutive years.
Response: I agree that the statement is inconsistent with the definition of the
PCFG and correct this error in section VIII of this Final Decision.
Comment 19: PCPW comments that human-caused mortalities, including
mortalities related to the hunt, are likely to exceed PBR for PCFG gray whales in some
years, notes uncertainty in abundance estimates, and questions how NMFS will determine
and respond if PBR is exceeded. PCPW also compares the PCFG to other marine
mammal species with small population sizes as a caution about the impacts of human
actions on these species.
Response: While PCFG whales are not a stock or prospective stock under the
MMPA, the SARs include estimates of abundance, human-caused, mortality, and PBR
for informational purposes. The estimates reflect the best available scientific information
as required by the MMPA. The regulations include a number of measures to minimize the
effects of the hunt on the PCFG specifically, including strike limits, low abundance

thresholds, and reporting and accounting requirements. To the extent that the
informational PBR for PCFG raises management concerns, there are processes for
addressing those concerns in the regulations. The regulations provide that the Regional
Administrator will notify the Tribe of the maximum number of PCFG whales, including
females, that may be struck during the upcoming hunting season, providing a mechanism
to respond to and adaptively manage based on the best available information.
WNP Gray Whales
Comment 20: Several commenters maintain that the approval of the waiver is
inappropriate in terms of conservation of endangered WNP gray whales.
Response: I disagree. The effects of a Tribal hunt on WNP gray whales have been
fully considered. The regulations are designed to minimize the risk of a WNP whale
being struck or harmed over the duration of the waiver. Approaches, the most likely type
of interaction with a WNP gray whale, are not lethal, nor are approaches likely to cause
more disturbance than close approaches associated with typical biopsy sampling for
research purposes. RD at 123.
Comment 21: Several commenters address the tribunal’s recommendation that I
expressly require the Makah Tribe to obtain an ITA for WNP gray whales during the
winter/spring season (December through May) when the WNP gray whales might be
present in the Makah U&A. The MMC supports the tribunal’s recommendation expressly
requiring an ITA, commenting: “For purposes of this rulemaking, it is sufficient for the
regulations to require that the taking of ENP whales not be allowed if there is a high
enough likelihood that unauthorized taking of WNP whales will also occur.” The Makah
Tribe questions whether an express requirement for an ITA for WNP gray whales is
necessary, arguing that the regulations include significant protections for WNP gray
whales and pointing to provisions in the proposed regulations requiring NMFS to

determine that relevant incidental take authorization for other marine mammals have
been obtained before a hunt permit can be issued.
Response: The final regulations require NMFS to evaluate whether the hunting
proposed by the Makah Tribe in their permit application will result in the take of WNP
gray whales. If the take of WNP gray whales is anticipated by NMFS, then NMFS must
include measures in the hunt permit requiring a separate take authorization for those
whales during the winter/spring season. Depending upon what the latest science shows,
additional measures that could prevent anticipated take of WNP gray whales may
include, for example, limiting the number of hunting and training days, restricting the
location of hunting and training, or banning hunting and training during the winter/spring
season if other measures are not effective.
Comment 22: AWI and another commenter assert that the Recommended
Decision must be rejected because the take of WNP gray whales during the course of a
hunt for ENP gray whales cannot be authorized under the MMPA’s exception for
incidental take.
Response: I disagree. For the reasons explained below, if NMFS determines that
the take of WNP gray whales is anticipated during the permitting process, the Makah
could qualify for an ITA under section 101(a)(5) for the “incidental, but not intentional,
taking” of WNP gray whales during the course of their hunt for ENP gray whales. To
respond to this comment, I will first summarize the requirements for ITAs and relevant
legislative history and then explain how the Makah could meet the threshold
requirements for an ITA.
Section 101(a)(5) describes two types of ITAs for non-military activities that are
relevant here. One type allows NMFS to issue an incidental harassment authorization for
up to 1 year. 16 U.S.C. 1371(a)(5)(D). The other allows NMFS to issue regulations and a
letter of authorization that would allow incidental take for up to 5 years. 16 U.S.C.

1371(a)(5)(A). Collectively, I will refer to these two exceptions as an ITA. Only U.S.
citizens “who engage in a specified activity (other than commercial fishing) within a
specified geographical region” can apply for an ITA. 16 U.S.C. 1371(a)(5)(A), (D).
Taking marine mammals under an ITA must be “incidental, but not intentional, taking.”
Id. NMFS can authorize take of only “small numbers” of marine mammals, and the
authorized take can have only a “negligible impact” on the species or stock. Id. The take
cannot have an “unmitigable adverse impact” on the availability of marine mammals for
subsistence uses, and NMFS must prescribe “means of effecting the least practicable
adverse impact on such species or stock and its habitat.” Id.
Several important terms are further defined by regulations implementing section
101(a)(5). The terms “[i]ncidental harassment, incidental taking and incidental, but not
intentional, taking all mean an accidental taking.” 50 CFR 216.103. The regulatory
definition makes clear that “[t]his does not mean that the taking is unexpected, but rather
it includes those takings that are infrequent, unavoidable or accidental.” Id.
The definition of “incidental, but not intentional, taking” closely tracks relevant
legislative history. Congress first adopted the incidental take exception for specified
activities in the 1981 amendments to the MMPA. The 1981 amendments to the MMPA
also included a similar exception for incidental takes committed during commercial
fishing. Regarding these new exceptions, the House Report for the Bill explained:
Both sections 101(a)(4) and (5) authorize the incidental, but not the
intentional, taking of small numbers of marine mammals. The phrase
"incidental, but not intentional" is intended to mean accidental taking. The
words "not intentional" should not be read to mean that persons who know
there is some possibility of taking marine mammals incidental to
commercial fishing operations or other specified activities are precluded
from proceeding under the authority of sections.
House Report No. 97-228, at 13 (1981). Referring to the new incidental take exceptions,
the House Report for the 1981 amendments to the MMPA further explained: “The

Committee intends that these provisions be available for persons whose taking of marine
mammals is infrequent, unavoidable, or accidental.” Id.
Implementing regulations also define the term “specified activity,” which means
“any activity, other than commercial fishing, that takes place in a specified geographical
region and potentially involves the taking of small numbers of marine mammals.” 50
CFR 216.103. The House Report to the 1981 amendments to the MMPA explains:
It is the intention of the Committee that both the specified activity and the
specified region referred to in section 101(a)(5) be narrowly identified so
that the anticipated effects will be substantially similar. Thus, for example,
it would not be appropriate for the Secretary to specify an activity as broad
and diverse as outer continental shelf oil and gas development. Rather, the
particular elements of that activity should be separately specified as, for
example, seismic exploration or core drilling.
House Report No. 97-228, at 13 (1981). Congress intended for NMFS to articulate
specified activities with particularity, as this approach would allow NMFS to more
carefully analyze the effects of the activity on marine mammals.
With the relevant authorities and the legislative history in mind, I will now
consider whether the Makah Tribe could satisfy the threshold requirements for an ITA
under section 101(a)(5). I cannot determine in this proceeding whether an ITA for WNP
gray whales would be appropriate, as such a determination requires separate procedures,
but nothing about the Makah’s activities under the waiver would prevent them from
satisfying the threshold requirements.
Under section 101(a)(5), there are three threshold requirements that must be met
before NMFS can consider issuing an ITA. First, there must be a request from a citizen of
the United States. 16 U.S.C. 1371(a)(5)(A), (D). Members of the Makah Tribe are U.S.
citizens and could make such a request.
Second, U.S. citizens must be engaged in a “specified activity (other than
commercial fishing) within a specified geographical region.” 16 U.S.C. 1371(a)(5)(A),
(D). The Makah are proposing a ceremonial and subsistence hunt for ENP gray whales,

which is a specified activity other than commercial fishing. Activities under the waiver
will occur in the coastal portion of the Makah Tribe’s U&A, which is a specified
geographic region. Hunting and training activities under the waiver involve a specific set
of actions directed at ENP gray whales. The legislative history for section 101(a)(5)
suggests that the specified activity should be “narrowly identified.” House Report No. 97228, at 13 (1981). A “narrowly identified” activity is consistent with the common
meaning of the term “specified,” which is the past tense of “specify” and means to
“mention or name in a specific or explicit manner: tell or state precisely or in detail.”
Webster’s Third New International Dictionary (3rd ed. 1976). Considering hunting and
training activities directed at a single stock of marine mammals in an ITA is consistent
with the meaning of the term “specified.”
The final threshold requirement is that taking authorized under section 101(a)(5)
must be “incidental, but not intentional, taking.” NMFS has defined the phrase
“incidental, but not intentional, taking” to mean “an accidental taking.” 50 CFR 216.103.
Consistent with legislative history surrounding this exception, “accidental taking… does
not mean that the taking is unexpected, but rather it includes those takings that are
infrequent, unavoidable or accidental.” Id.
Here, a highly conservative analysis forecasts at most 18 approaches of WNP
gray whales and a small but real risk of an unsuccessful strike attempt over the 10-year
waiver period. Tab 61D. To the extent that each approach represents a take, these takes
would be infrequent compared to the 3,530 approaches authorized over the waiver period
for ENP gray whales. To the extent that a WNP is present in the U&A during hunting or
training activities, approaches may be unavoidable because it is difficult to distinguish
between the two gray whale stocks visually in a hunt scenario. In light of the differing
statuses of the two stocks, Makah hunters would be targeting ENP gray whales, so any
taking of a member of the WNP stock would be accidental.

Pursuing the wrong type of animal in a hunt can be an accident. An analogy helps
illustrate this. A hunter enters the field to hunt whitetail deer during whitetail deer season.
There are whitetail deer and mule deer in the area, but whitetail deer outnumber mule
deer 100 to one. The hunter sees an animal with antlers in the distance and stalks it.
Unbeknownst to the hunter, the animal is a mule deer. The mule deer catches the scent of
the hunter and flees.
Common sense suggests that when the hunter stalked and thereby hunted the mule
deer it was an accident. This is because the hunter intended to hunt whitetail deer, was
authorized to hunt whitetail deer, and reasonably thought the mule deer was a whitetail
deer based on its general appearance and the fact that mule deer are rare in the area.
Likewise, it would be an accident if Makah whalers approach or throw a harpoon near a
WNP gray whale during the course of their hunting and training activities directed at
ENP gray whales.
Nevertheless, AWI and some other commenters argue that hunting is always
intentional and cannot qualify for an ITA. This argument is not consistent with the text of
the MMPA. Under section 101(a)(5), an ITA is available for “incidental, but not
intentional, taking.” Taking is the present participle of take, which means “to harass,
hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.” 16
U.S.C. 1362(13). If the statutory criteria are met, NMFS is required to allow citizens to
incidentally, but not intentionally “harass, hunt, capture, or kill... any marine mammal”
when engaged in specified activities. Id. If Congress had only intended for an ITA to be
available for harassing, capturing, or killing—but not hunting—it would not have used
the term “taking” in section 101(a)(5).
For all these reasons, if necessary Makah whalers can apply for an ITA under
section 101(a)(5) to cover any incidental take of WNP gray whales that is anticipated
during the winter/spring hunt.

Comment 23: The MMC comments that it agrees with the statement in the
Recommended Decision that the “best available scientific evidence shows that removal
of a WNP whale would be detrimental to the stock.” RD at 19. MMC asserts that this
statement would preclude NMFS from making the negligible impact determination
necessary to authorize the incidental killing of a WNP gray whale under section
101(a)(5).
Response: If the Makah apply for an ITA under section 101(a)(5)(A), NMFS will
evaluate their application along with the best available science. I have not affirmed the
statement the MMC references from the Recommended Decision related to WNP gray
whales since it is premature to speculate on what a potential future analysis would show.
Comment 24: AWI’s comments on the Recommended Decision contend that the
taking of WNP gray whales is a certainty under NMFS’s own risk analysis and therefore
the Recommended Decision “must be rejected because it will result in the illegal take of
WNP gray whales.” Referring to WNP gray whales, AWI further comments that “[t]he
Recommended Decision unlawfully authorizes the directed take of a depleted marine
mammal stock” citing guidance from NMFS’s Permits and Conservation Division within
the Office of Protected Resources that references two categories: authorizations for
incidental take of marine mammals under the MMPA and permits for directed take of
species protected under the MMPA and/or ESA.
Response: AWI points to the 18 approaches forecasted in the 2019 Moore and
Weller analysis (see Tab 61D) to support their argument that take of WNP gray whales is
a certainty. However, this analysis unrealistically assumes that all approaches (hunting
and training) occur during the winter/spring period when WNP whales may be present,
even though a substantial number of approaches will likely occur outside this period
during the summer/fall season when ocean conditions are more favorable for hunting.
The Moore and Weller analysis shows that there is a potential risk to WNP gray whales,

not that take is inevitable. The risk identified in the Moore and Weller analysis calls for
management, not denial of the waiver.
The regulations I adopt in this document include significant protections for WNP
gray whales. Before issuing a hunt permit for ENP gray whales, NMFS is required to
determine, based on the best available science, whether the activities described in the
Makah Tribe’s hunt permit application would result in the take of WNP gray whales. If
the activities would result in the take of WNP gray whales, the Makah must have separate
authorization for takes of WNP gray whales to hunt or train during the winter/spring
season.
The Makah Tribe has at least three options to address concerns related to WNP
gray whales; none of which would result in the illegal take of WNP gray whales. First,
the Makah may choose not to hunt or train during the winter/spring. Second, the Tribe
may propose additional restrictions in their application for a hunt permit that would lead
NMFS to conclude take of WNP gray whales is not anticipated during the winter/spring
season. Finally, the Makah could obtain an ITA under section 101(a)(5) to cover the take
of WNP gray whales.
Regarding AWI’s comment about “directed take,” many of the permits NMFS
issues for protected species fall within the incidental or directed take categories, but this
proceeding presents a unique permitting scenario, and the definition of “directed take” on
the portion of NMFS’s website referenced by the commenter has no bearing on whether
an incidental take authorization could be issued under section 101(a)(5) for WNP gray
whales.
Comment 25: AWI comments that the Recommended Decision will result in the
hunting of WNP gray whales, which is a violation of the MMPA because this stock is
depleted.

Response: Although section 101(a)(3)(B) of the MMPA generally prevents
NMFS from issuing permits for the take of WNP gray whales because the stock is
depleted, an exception allows NMFS to issue ITAs for animals from depleted stocks. The
final regulations and the waiver authorize hunting only ENP gray whales. If NMFS
anticipates the hunting of ENP gray whales may result in the take of WNP gray whales,
under the final regulations the agency would need to authorize this take separately. As
explained in response to comment 22, characterizing the take of WNP gray whales as
“hunting,” does not preclude issuance of an ITA under section 101(a)(5) of the MMPA.
Comment 26: AWI comments that the definition of hunt in the proposed
regulations, which does not include non-lethal activities, is inconsistent with the plain
meaning of the term and has enormous legal significance.
Response: The tribunal addressed this argument in section VII.B.3.b of the
Recommended Decision. I agree with that analysis. As the tribunal explained:
I find AWI’s reading of the regulations overly formalistic. Moreover, it
would likely cause confusion, as it is unclear what other terminology
NMFS could use to convey the different limitations on non-lethal
training activities and potentially lethal hunting activities. Therefore, I
see no need to amend the definition of “hunt” or of the related training
activities.
RD at 146. WNP gray whales are designated as “depleted” under the MMPA in addition
to their “endangered” status under the ESA, and the moratorium has not been waived for
the WNP stock. Under these circumstances, permits cannot be issued for the take of WNP
gray whales, except for scientific research, photography, enhancement or incidental take
under section 101(a)(5) of the MMPA. 16 U.S.C. 1371(a)(3)(B). As discussed in
response to comment 22, characterizing the activities associated with the waiver as
hunting WNP gray whales does not preclude issuance of an ITA for this stock, if needed.
Comment 27: AWI comments that the Recommended Decision authorizes
harassment of WNP gray whales in violation of the MMPA.

Response: In light of the potential for activities authorized by the waiver and final
regulations to result in the take of WNP gray whales, I have adopted final regulations that
manage this risk by ensuring hunting and training does not occur during the winter/spring
season without an ITA if the agency determines during the permitting process that take of
WNP gray whales is anticipated. Although the Makah are eligible to apply for an ITA,
issuance of an ITA is not guaranteed and will be evaluated pursuant to the applicable
statutory and regulatory requirements should the Makah choose to apply.
Comment 28: AWI comments that training activities are inconsistent with the
purposes and policies of the MMPA and should not be authorized under the waiver.
Response: The Makah have sought a waiver to hunt ENP gray whales and train
for that hunt. I have applied the criteria set forth in the MMPA for evaluating the waiver
request and implementing regulations and have determined that the training activities
authorized in the final rule are consistent with the MMPA. Training is critical to ensure
the hunt is safe and humane. NMFS will address issues related to safety and the
humaneness of the hunt more specifically during the permitting process. To the extent
that training activities authorized under a hunt permit are anticipated to result in take of
WNP gray whales, such takes can be authorized and managed in accordance with section
101(a)(5) of the MMPA.
Comment 29: AWI and another commenter argue that Kokechik Fishermen's
Ass'n v. Sec'y of Com., 839 F.2d 795 (D.C. Cir. 1988) prohibits issuance of a waiver
because the waiver will result in the take of WNP gray whales. WCR, MMC, and the
Makah Tribe disagree.
Response: In Kokechik, NMFS granted a waiver under section 101(a)(3)(A),
adopted regulations under section 103, and issued a permit pursuant to sections 101(a)(2)
and 104 authorizing the incidental take of Dall’s porpoise in the Bering Sea by the
Federation of Japan Salmon Fisheries Cooperative Association (Federation). 839 F.2d at

797-801. NMFS issued the permit in Kokechik knowing the Federation would
incidentally kill other marine mammal species for which OSP had not been determined.
Kokechik, 839 F.2d at 799-800. NMFS did not authorize those other takes and limited the
authorization to the take of Dall’s porpoise. Id. Consequently, the take of other marine
mammals would have inevitably occurred without authorization under the MMPA. Id. at
801. The court held “that the permit, as granted to the Federation, is contrary to the
requirements of the MMPA in that it allowed incidental taking of various species of
protected marine mammals without first ascertaining as to each such species whether or
not the population of that species was at the OSP level.” Kokechik, 839 F.2d at 802.
Kokechik is distinguishable from the present case for at least three reasons. First,
Kokechik involved section 101(a)(2) of the MMPA, which provides that “it shall be the
immediate goal that the incidental kill or incidental serious injury of marine mammals
permitted in the course of commercial fishing operations be reduced to insignificant
levels approaching a zero mortality and serious injury rate.” The court in Kokechik relied
on the zero mortality and serious injury rate goal to reach its holding, quoting it twice.
839 F.2d at 801-02. Since that provision is not applicable in the present case, which does
not involve commercial fishing, Kokechik is distinguishable.
Second, Kokechik involved the unauthorized serious injury or mortality of marine
mammals that was “not merely a remote possibility but a certainty.” Kokechik, 839 F.2d
801-02. For example, the ALJ in Kokechik anticipated and recommended that NMFS
allow the Federation to kill or seriously injure 45 Northern fur seals from the Commander
Island stock. 52 FR 19874, 19877, May 28, 1987. Conversely, the tribunal in this case
recognized, and I agree, that the risk of a lethal strike on a WNP is quite low. RD at 135136. NMFS has produced an extremely precautionary risk analysis that shows a remote
risk that a WNP gray whale could be killed or seriously injured. As explained by the
tribunal:

The modeling suggests, if the Makah Tribe utilizes every available strike
during the 10-year waiver period, there is a 5.8% chance of striking at
least one WNP whale and a 30% chance of an unsuccessful strike attempt
on a WNP whale. If the hunt continued into perpetuity, using the existing
hunt management scheme and other variables, a WNP whale would be
struck approximately once every 135 years. (Tab 61 at ¶ 8).
RD at 111. In Kokechik, the court suggested several times that the case might have been
decided differently if the takes at issue were a “remote possibility.” Kokechik, 839 F.2d
801-02. A chance of striking a whale and causing a lethal take once every 135 years (RD
at 111) is a remote possibility.
Third, Kokechik is distinguishable because the Federation was not eligible to
apply for a separate ITA for anticipated takes. In Kokechik, it was “foreseeable that takes
of northern fur seals, northern sea lions, harbor porpoises, Pacific white-sided dolphins,
and killer whales will occur,” but only the take of Dall’s porpoise was authorized. 839
F.2d at 800. Because the taking of any of “these other marine mammals without a permit
is absolutely prohibited by the MMPA,” the court called the legitimacy of the permit for
Dall’s porpoise into question. Id. In Kokechik, the take of northern fur seals, northern sea
lions, harbor porpoises, Pacific white-sided dolphins, and killer whales by the Japanese
Federation incidental to their commercial fishing operation was “absolutely prohibited,”
meaning there was not a separate legal pathway for the Japanese Federation to seek
authorization for the incidental take of these animals. This is because the members of the
Japanese Federation were not U.S. citizens. The court cited section 101(a)(4) of the
MMPA, which (at the time) set a separate “narrow exception for incidental, but not
intentional, takings having a negligible impact on the species involved ‘by citizens of the
United States while engaging in commercial fishing operations’” and explained this
exception did not apply to the Japanese Federation. Kokechik, 839 F.2d at 802. Unlike
members of the Japanese Federation, as U.S. citizens seeking to pursue a “specified
activity (other than commercial fishing) within a specified geographical region,” 16
U.S.C. 1371(a)(5)(A), (D), members of the Makah Tribe can seek separate authorizations

for incidental take of WNP gray whales under the incidental take exception in section
101(a)(5), if needed. This option, which does not require an assessment of OSP, was not
available to the Japanese Federation in Kokechik.
For all these reasons, the holding in Kokechik is largely limited to the facts of that
case in that NMFS authorized the taking of one species of marine mammal knowing that
another species would be killed in violation of the law. The regulations I adopt in this
document, by contrast, involve an extremely remote risk of lethal take and require
legally-available authorization for any takes of WNP gray whales anticipated during the
permitting process.
Comment 30: AWI comments that the Assistant Administrator must determine
whether the take of a WNP gray whale can be authorized prior to issuing the waiver.
Response: The take of WNP gray whales cannot be authorized in this proceeding,
but the take of WNP gray whales may be authorized under other provisions of the
MMPA. To the extent that AWI contends that I must consider effects on WNP gray
whales, I have done so in accordance with section 103(b) of the MMPA. In conjunction
with this review, I have concluded that the Makah are not prohibited from applying for an
ITA under section 101(a)(5) of the MMPA for the incidental take of WNP gray whales, if
necessary.
Comment 31: AWI comments that NMFS cannot rely on the subjective intent of
the Tribal hunters to transform deliberate take into incidental take and that doing so
would impose a mens rea or mental state requirement in the statute that does not exist.
Response: As explained in response to comment 22, there are exceptions in
section 101(a)(5) for “incidental, but not intentional taking” that meets certain criteria
and has been authorized by NMFS. The statute uses the phrase “not intentional” in these
exceptions. The intent of Makah whalers is most certainly relevant to whether their
actions are “not intentional.”

That mental state is not an element of civil violations of the take provision has no
bearing on whether the exceptions for “incidental, but not intentional, taking” in section
101(a)(5) of the MMPA apply. Mental state is relevant to the exceptions for “incidental,
but not intentional, taking,” but need not be proven to establish a prima facie violation of
the take prohibition. AWI’s comment conflates the distinction between the elements of a
civil violation of the take prohibition and the requirements associated with certain
exceptions.
Comment 32: AWI cites two decisions, Black v. Pritzker, 121 F.Supp.3d 63
(D.D.C. 2015) and Pacific Ranger v. Pritzker, 211 F.Supp.3d. 196 (D.D.C. 2016), from
the U.S. District Court for the District of Columbia involving NOAA enforcement actions
against purse seine fishing vessels that were unlawfully taking marine mammals and
comments that NMFS’s position regarding the incidental take of WNP gray whales is
inconsistent with its position in those cases.
Response: NMFS’s position with respect to the Makah waiver and implementing
regulations differs from the positions it took in Black and Pacific Ranger because those
cases involved facts and law that are very different from the circumstances here. Both
cases involved respondents in NOAA civil administrative penalty cases who appealed to
the district court after an ALJ found they intentionally encircled marine mammals with
purse seine nets while tuna fishing. Pacific Ranger, 211 F. Supp. 3d at 221; Black, 121 F.
Supp. 3d at 101-102. In both cases, the court rejected the respondents’ arguments that the
exception in section 118 of the MMPA for incidental take of marine mammals during
commercial fishing operations authorized their conduct. Pacific Ranger, 211 F. Supp. 3d
at 221; Black, 121 F. Supp. 3d at 87-88, 101-102.
Makah whaling is not commercial fishing and does not involve the exception to
the MMPA’s take prohibition that was at issue in Black and Pacific Ranger. Hunting and
training activities under the final waiver and regulations involve the exception in section

101(a)(3)(A) that allows NMFS to waive the moratorium and authorize intentional take
of ENP gray whales. NMFS may also utilize the exception in section 101(a)(5) for
specified activities other than commercial fishing for “incidental, but not intentional,
taking” to authorize the incidental take of WNP gray whales, if needed.
If a hunt permit is issued, the Makah will be authorized to hunt ENP gray whales
and intentionally take these animals. Depending upon what activities are authorized under
a hunt permit, the Makah may accidentally pursue the wrong type of whale (WNP gray
whales, as opposed to ENP gray whales) during the course of authorized hunting and
training. Such accidental take would be “incidental, but not intentional, taking” of WNP
gray whales and could be authorized under section 101(a)(5).
Black and Pacific Ranger did not involve a situation where the purse seiners were
authorized to encircle one type of marine mammal and accidentally encircled the wrong
type. The respondents in Black and Pacific Ranger were not authorized to intentionally
encircle any marine mammal. When they did, NMFS’s position remains that they
violated the MMPA and could not avail themselves to the incidental take exception for
commercial fishing under section 118 of the MMPA. Makah whaling involves different
circumstances and separate exceptions under the MMPA.
Comment 33: AWI comments that the disadvantage test is inapplicable to the take
of WNP gray whales. They contend that the relevant inquiry is whether take of WNP
gray whales can be authorized under one of the MMPA’s exceptions to the take
moratorium.
Response: I agree that the disadvantage test does not apply to WNP gray whales
in this proceeding. The plain language of section 103(a) makes clear that the
disadvantage test only applies to take regulated under section 103(a). Section 103(a)
confers authority on NMFS to regulate taking at the species level or the stock level.
NMFS must then “insure that such taking will not be to the disadvantage of those species

and population stocks.” 16 U.S.C. 1373(a). This means that if the takings are regulated at
the stock level, then the take must not disadvantage the stock. Conversely, if takes are
regulated at the species level, the takes must not disadvantage the species. Here, NMFS
has prescribed regulations at the stock level governing the take of ENP gray whales.
Therefore, the disadvantage test applies to this stock only. The mere fact that other takes
are considered, pursuant to NMFS’s obligations under section 103(b), does not subject
these takes to the disadvantage test or the other requirements associated with waiving the
moratorium.
Hunt and Training Activities
Comment 34: Several comments were received on the recommendation that the
regulations prohibit an approach on a calf or an adult accompanying the calf, including
concerns related to identifying a calf or cow-calf pair from a whaling canoe, impairing
training activities, risk of inadvertent non-compliance, and the effects of an approach.
Response: I have adopted the recommended provision with modifications to
prohibit approaches on calves or adult gray whales accompanying calves only after a calf
or adult accompanying a calf has been identified. This will maintain the intent of the
modification while ensuring the regulations do not set unrealistic expectations and result
in inadvertent non-compliance.
Comment 35: Several commenters expressed concern about safety risks
associated with the hunt.
Response: Safety concerns are thoroughly addressed in the FEIS and will be
further evaluated at the hunt permit stage.
Comment 36: A number of comments were received on the humaneness of the
hunt.
Response: Section 3(4) of the MMPA defines “humane” as “that method of taking
which involves the least possible degree of pain and suffering practicable to the mammal

involved.” Section 104(b)(2)(B) of the MMPA then provides that, before issuing a
permit, NMFS must determine that the hunting method is “humane.” Issues related to the
humaneness of the hunt will be addressed at the permitting stage.
Comment 37: AWI contends that the tribunal recommended, and AWI supports,
that the regulations be amended to provide that hunt permits be issued on a yearly basis,
citing RD at 147
Response: This comment mischaracterizes the tribunal’s Recommended Decision,
which states:
NMFS proposes to limit the duration of an initial hunt permit to no
more than three years, and the duration of any subsequent permit to
no more than five years. § 216.113(a)(1). However, a permit can be
granted for as little as one year. This will allow for adaptive hunt
management, since NMFS would take into account the results of
previous hunts when determining whether to issue subsequent
permits. This proposal is reasonable and clearly in accordance with
the conservation objectives of the MMPA.
RD at 147. While the Recommended Decision notes that permits can be issued for a
duration of 1 year, the tribunal did not recommend that the regulations be amended.
Rather, the tribunal supported the structure proposed by NMFS, as the regulations
recommended in Appendix B to the Recommended Decision maintain the structure
proposed by NMFS. Tab 121B.
Comment 38: AWI suggests including requirements for determining the
proportion of WNP gray whales in the hunt area presumed to be WNP whales for the
purposes of accounting for takes of gray whales under the hunt management requirements
and restrictions.
Response: If takes of WNP gray whales are anticipated, the Tribe may apply for
an ITA under the MMPA. An ITA application must include specific information,
including “the suggested means of accomplishing the necessary monitoring and
reporting….” 50 CFR 216.104. Under section 101(a)(5) of the MMPA, NMFS must set
forth requirements pertaining to the monitoring and reporting of any take. The nature of

those requirements, including whether or how to account for the proportion of WNPs
present in the hunt area, would be determined as part of the ITA process.
Comment 39: Some commenters suggest that only traditional hunting methods
should be permitted.
Response: The Makah Tribe proposes to use both traditional and modern methods
for hunting whales to balance the preservation of traditional cultural methods with safety
and the need for increased hunting efficiency. Section 104 of the MMPA requires that if
the take moratorium is waived and animals are killed, the method of killing must be
“humane,” which the MMPA defines as “that method of take which involves the least
possible degree of pain and suffering practicable to the mammal involved.” 16 U.S.C.
1362(4). The use of modern technologies (e.g., support vessel, rifle) will help ensure that
the hunt is humane by reducing the time to death over using traditional measures.
Ecosystem and Cumulative Effects
Comment 40: One commenter suggests that the effects of the action should have
been considered at a different ecosystem scale.
Response: As noted in the Recommended Decision, NMFS considered ecosystem
impacts at several levels, and it was “reasonable for NMFS to conclude that the health
and stability of the ecosystems in which gray whales function will not be adversely
affected by the proposed waiver and regulations.” RD at 116.
Comment 41: Several commenters comment on the range of anthropogenic threats
that gray whales face and the importance that these threats be considered in combination.
Response: Gray whales face many threats, including entanglement, marine debris,
vessel strike, whale watching disturbance, ocean noise, and climate change. NMFS is
working to address threats to gray whales and other marine mammals. While a
cumulative effects analysis is not an express requirement for the MMPA waiver process,

NMFS considered the cumulative effects of natural mortality and anthropogenic effects
to whales as part of the NEPA analysis.
Comment 42: MMC commented that in considering cumulative impacts, the
tribunal’s Recommended Decision took an overly narrow reading of the statutory
requirements of section 103 of the MMPA in finding that “the MMPA does not mandate
separate consideration of these factors during formal rulemaking proceeding.”
Response: Hunting cannot be authorized or occur if the ENP gray whale stock is
below its OSP. This provision ensures hunting in combination with other threats to ENP
gray whales will not disadvantage the stock.
Comment 43: A number of comments describe the role that whales play in the
ecosystem; the interdependency of animal, human, and environmental health; and the
importance to ensure the health and stability of the ecosystem.
Response: Maintaining marine mammal stocks as a significant functioning
element in the ecosystem of which they are a part and maintaining the health and stability
of the marine ecosystem is a purpose and goal of the MMPA. The effects of a limited
hunt of 25 whales over a 10-year period have been fully evaluated, and ENP gray whales
are expected to continue to be a significant and functioning element of the ecosystem.
The health and stability of the ecosystem will be maintained under the final waiver and
regulations.
Comment 44: One commenter suggests that all reports on waiver activities should
be made available for public review.
Response: Per the regulations, the hunt report, annual approach report, and annual
handicraft report will be maintained and made available for public review by NMFS.
Other documentation may be available in accordance with the Freedom of Information
Act and other Federal law.
The Treaty of Neah Bay of 1855

Comment 45: Several groups, government agencies, and private citizens
commented on the Recommended Decision supporting the Makah’s treaty right to whale.
Commenters note that the tribunal’s Recommended Decision is consistent with the
Federal trust responsibility. Others wrongly claimed that the Treaty is obsolete or
irrelevant.
Response: I support the Makah’s treaty right and am adopting a final waiver and
regulations that will allow the Tribe to exercise their right, in accordance with the
MMPA.
Comment 46: The Tribe notes their disagreement with the Recommended
Decision’s discussion of the Treaty of Neah Bay of 1855, which contends that the
application of the Treaty is merely academic and not the controlling law. The Makah
maintain that the “because the MMPA did not abrogate the Treaty, the MMPA and 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 crossexamine witnesses.” 50 CFR 228.18(b). The term “witness” is defined in relevant parts as
“any person who submits written direct testimony on the proposed regulations.” 50 CFR
228.2(b). AWI had the right and the opportunity to cross-examine every witness that
submitted direct testimony during the hearing. No witnesses testified after the hearing.
This process allowed for a full and true disclosure of the facts in accordance with
NMFS’s regulations and the APA.
AWI had an opportunity to submit rebuttal evidence at the hearing. After the
hearing, AWI had an opportunity to submit rebuttal evidence multiple times, including
during the comment period for the parties from November 27, 2023, to December 20,
2023. AWI submitted their comments after the deadline. I then provided the parties with

an opportunity to respond to the comments of the other parties. This response period ran
from December 20, 2023, to January 17, 2024, and provided an opportunity to rebut
information submitted by the other parties. AWI took advantage of this opportunity. This
process afforded AWI ample opportunity to submit rebuttal evidence in accordance with
the APA.
Comment 49: AWI comments that NMFS’s decision to prepare an SDEIS after
the formal rulemaking hearing shows that the tribunal’s decision was not based on the
best available science.
Response: On February 27, 2020, NMFS explained in its Notice of Intent to
prepare an SDEIS that “[b]ecause information concerning the ongoing 2019 UME was
presented at the agency hearing but not expressly addressed in the 2015 DEIS, NMFS has
determined that it would now benefit both the public and agency decision making to
prepare a supplement to the DEIS.” 85 FR 11347. Because the 2015 DEIS did not include
the subsequent scientific information that was available and presented to the tribunal at
the formal rulemaking hearing in 2019, it was prudent for NMFS to prepare an SDEIS
with that information. It was also prudent for NMFS to notify the public that the SDEIS
would include “additional relevant information and will take into consideration the
Administrative Law Judge’s recommended decision.” Id. at 11348. NMFS regularly
updates its marine mammal population estimates pursuant to the SAR process. NMFS
could not ignore those estimates in the SDEIS and comply with its NEPA obligations.
Recognizing that the tribunal’s Recommended Decision may require additional analysis
to satisfy NEPA obligations, NMFS gave notice that it would also take the
Recommended Decision into account in the SDEIS. The tribunal’s decision also included
a recommendation that NMFS set a low abundance threshold for ENP gray whales. This
recommendation warranted additional analysis under NEPA, and so it was appropriate for

NMFS to give notice to the public that the SDEIS would consider the tribunal’s
Recommended Decision.
Comment 50: AWI and another commenter contend that NMFS violated its
hearing regulations and the MMPA by not completing the environmental analyses in the
SDEIS before the formal rulemaking hearing.
Response: None of the procedural regulations governing this matter expressly
reference supplemental draft environmental impact statements or require that this
document be a part of the record before a presiding officer issues a recommended
decision. The procedural regulations do reference draft environment impact statements in
two places. First, NMFS was required to publish a notice of hearing under 50 CFR 228.4.
In addition to other statements, the notice must state: “If a draft Environmental Impact
Statement is required, the date of publication of the draft and the place(s) where the draft
and comments thereon may be viewed and copied.” 50 CFR 228.4(b)(6). NMFS
complied with this requirement on April 5, 2019. 84 FR 13604. Second, under 50 CFR
228.16(b), the tribunal was required to introduce the “the draft Environmental Impact
Statement” into the record at the “commencement of the hearing.” 50 CFR 228.16(b).
The tribunal did this. Tab 101 at 11-12.
I do not interpret the term “draft Environmental Impact Statement” in 50 CFR
228.16(b) and 228.4(b)(6) to apply to any document other than a “draft Environmental
Impact Statement.” The DEIS and SDEIS are separate documents. The DEIS was issued
on March 13, 2015. 80 FR 13373. The SDEIS was issued on July 1, 2022. 87 FR 39517.
That the title of the SDEIS includes the term “draft” does not mean the SDEIS and the
DEIS are one and the same for the purposes of the hearing. Indeed, NEPA’s
implementing regulations describe draft, final, and supplemental environmental impact
statements separately. 40 CFR 1502.9. Since an SDEIS is not the same as a DEIS, the

tribunal was not required to make this document a part of the record before rendering the
Recommended Decision.
Furthermore, the commenters’ argument is not consistent with the structure of the
procedural regulations. Sections 228.16(b) and 228.4(b)(6) of the procedural regulations
apply at specific junctures in the waiver process. These provisions do not impose an
ongoing obligation on NMFS to remand a case whenever NMFS supplements its
environmental analyses in accordance with NEPA.
Section 103(d) of the MMPA is similar and only applies at a specific juncture in
the waiver process. This section requires NMFS to “publish and make available to the
public” certain scientific statements and studies “either before or concurrent with the
publication of notice in the Federal Register of his intention to prescribe regulations
under this section.” 16 U.S.C. 1373(d). Section 103(d) does not impose additional
publication requirements on NMFS after the notice in the Federal Register announcing
proposed regulations. NMFS complied with the requirements in section 103(d), by
issuing a Federal Register notification on April 5, 2019. 84 FR 13604. This Federal
Register notification also included the statements required by section 103(d). Nothing
further is required.
The commenters are misconstruing specific procedural requirements that do not
apply at this stage in the process with the question of whether a remand is warranted. I
explain why a remand is not warranted in section IX of this Final Decision.
Comment 51: Citing 40 CFR 1502.9(c)(4) (1978), one commenter contends that
NEPA regulations required NMFS to publish an SDEIS before the hearing.
Response: The 1978 NEPA regulations provide that agencies shall “shall prepare,
circulate, and file a supplement to a statement in the same fashion (exclusive of scoping)
as a draft and final statement unless alternative procedures are approved by the Council.”
40 CFR 1502.9(c)(4). This language means that the same NEPA procedures applied to

the development of the SDEIS as applied to the development of the DEIS. In accordance
with this requirement, NMFS prepared an SDEIS, filed the SDEIS with the EPA,
published the SDEIS, and sought public comment on the SDEIS. 87 FR 39517, July, 1,
2022; 87 FR 39804, July 5, 2022.
Comment 52: AWI comments that the “Assistant Administrator cannot
unilaterally consider extra record evidence in making her waiver decision that was not
subject to rebuttal or cross examination at a formal hearing before the presiding officer.”
Response: All evidence forming the basis for my decision was on the record as
provided by the governing APA provisions and implementing regulations. I explained
how AWI’s rights to submit rebuttal evidence and conduct cross examination under the
APA were vindicated in response to comment 48. NMFS published additional documents
related to this rulemaking after the hearing was held pursuant to obligations under NEPA,
the ESA, and other Federal law and provided opportunities for comment. AWI has taken
advantage of all the opportunities for comment that were available after the hearing, and I
have taken their comments into consideration.
Comment 53: AWI comments that in “the interest of a fair and impartial hearing
process,” the Assistant Administrator should have remanded the Recommended Decision
to the tribunal until the SDEIS was completed “and reopen the record for further factual
development in accordance with the MMPA and APA.”
Response: As explained in section IX of this Final Decision, I considered whether
a remand was warranted and have decided not to remand the case because the additional
information developed after the hearing is not significant enough to compel different
conclusions than those I have reached based on the evidence in the record assembled by
the tribunal.

Comment 54: One commenter suggests that the Recommended Decision is at
odds with the fundamental requirement of NEPA to lead to informed decision because it
was not rendered based on the information in the SDEIS.
Response: As explained in my responses to comments 50 and 51, the SDEIS was
not required to be part of the record before the tribunal. As noted in section IX of this
Final Decision, the SDEIS and FEIS informed my decision on whether a remand was
warranted. Using the SDEIS and FEIS in this way is consistent with NEPA.
Comment 55: Citing sections 101(a)(3)(A) and 103(d), one commenter suggests
that the parties are entitled to request a hearing to consider the new evidence in the
SDEIS.
Response: Nothing in these sections of the MMPA specifically address rehearings
or remands for additional evidence. For the reasons I explain in section IX of this Final
Decision, a remand is not warranted.
Comments on the Implementing Regulations
Comment 56: A number of comments were received on specific changes to the
proposed regulations. This included, among others, comments on restructuring and
clarifying the regulations, an abundance threshold for ENP gray whales, data availability,
prohibitions, and hunt management.
Response: I have addressed changes to the regulations in section VII of this Final
Decision. A low abundance threshold for ENP gray whales is addressed in comment 12.
Comments not specifically addressed in section VII of this Final Decision are addressed
in this section.
Comment 57: Commenters expressed concern that the Makah Tribe would
commercialize the hunt, noting there is a market for whale meat. Another comment
indicated that the Recommended Decision’s provisions on the use of edible and nonedible parts clearly identify how gray whale products can be used and by whom.

Response: The regulations issued in this document prohibit selling, offering for
sale, or purchasing any gray whale products, except Makah Indian handicrafts that have
been marked and certified.
Comment 58: One commenter suggests a clause requiring that the United States
and Canadian management teams communicate gray whale data to ensure an accurate
gray whale count. Another commenter noted the tribunal’s Recommended Decision does
not acknowledge that ENP gray whales are transboundary, is written as if the United
States has unilateral authority over the management of gray whales, and disregards the
assessment by COSEWIC.
Response: NMFS works closely with our international partners on marine
mammal management and science to help ensure the best scientific data are available.
This close collaboration obviates the need for a requirement to communicate in these
regulations. The Recommended Decision acknowledges that gray whales are
transboundary stock within multiple management jurisdictions (see, for example, RD at
IV.D.1.b, VI.A.2), and it reflects the assessment by COSEWIC (see RD at 62-67).
Comment 59: AWI recommends that the Assistant Administrator consider
imposing geographic restrictions on where consumption is allowed and ensure that law
enforcement jurisdictions are properly educated on the regulations. AWI recommends
NMFS consider limiting the geographic scope to Washington State given the
Recommended Decision accepted NMFS’s assertion that NOAA Office of Law
Enforcement agents or Washington Department of Fish and Wildlife officers would be
available to enforce these provisions.
Response: I disagree that further restrictions are needed to facilitate enforcement.
The NOAA Office of Law Enforcement has jurisdiction beyond Washington State and
works closely with states through joint enforcement agreements throughout the country to
help ensure compliance with laws administered by NMFS.

Comment 60: AWI suggests amending § 216.116 to specify that the 2 pound per
person limit applies to all circumstances in which edible whale products may be
consumed outside of reservation boundaries.
Response: There is no 2-pound limit at Tribal members’ residences to
accommodate storage of edible gray whale products.
Comment 61: AWI suggests that § 216.113 should specify that if the Tribe has not
complied fully with the regulations and all prior permit terms and conditions, a hunt
permit should not be issued.
Response: The regulations specify the “Regional Administrator must determine
that the Makah Indian Tribe has complied with the requirements of these regulations and
all prior permit terms and conditions, or if the Makah Indian Tribe has not fully
complied, that it has adopted measures to ensure compliance.” The appropriate response
to non-compliance depends on the nature of the infraction and will be addressed if an
infraction occurs.
Comment 62: AWI suggests adding “will be reported as an infraction to the
International Whaling Commission” to § 216.115(b)(4) Unauthorized strikes.
Response: I disagree that this language is necessary. NMFS will comply with all
reporting requirements of the IWC should an unauthorized strike occur.
Comment 63: One commenter suggests that § 216.118(a)(1) be amended to
specify “For every whale struck, the tribal hunt observer must make every reasonable
attempt to collect samples for genetic sampling as quickly as possible without
compromising the safety of the hunt.”
Response: As described in section VII of this Final Decision, I have clarified that
individuals authorized to collect biological samples for identification must make every
reasonable attempt to do so without compromising the safety of the hunt.
Other Comments

Comment 64: Several commenters suggest that the Tribe does not have a cultural
or subsistence need for whale products and non-lethal alternatives should be considered
to maintain the cultural connection to marine mammals. Other commenters recognize the
relationship between the Tribe and whales, their cultural traditions, and the importance of
resuming a whale hunt.
Response: I defer to the Tribe on their cultural and subsistence needs. Although
whaling may seem outdated to some people, the Makah Tribe, as a sovereign nation,
decides which cultural traditions it pursues, within the bounds of applicable law. In the
Treaty of Neah Bay of 1855, the Makah Indian Tribe secured the right to hunt whales.
Treaties with Indian Tribes are Federal law, coequal with all other Federal law. Pursuant
to obligations under NEPA, NMFS considered non-lethal alternatives in the FEIS and, for
the reasons described therein, rejected those alternatives.
Comment 65: Some commenters suggest that the issuance of a waiver will affect
international relations and potentially have precedential effects on whaling in the United
States and worldwide.
Response: The decision to waive the take moratorium is specific to the request
submitted by the Makah Tribe and is consistent with the approval they already received
from the IWC, first approved in 1997, to hunt ENP gray whales. For roughly 20 years,
the Makah Tribe has not been able to use their portion of the IWC quota due to the need
to comply with MMPA procedures, and as a result, the Makah’s quota was temporarily
provided to Chukotkan Natives in the Russian Federation. Section 103(b)(2) requires
NMFS to consider international treaties and agreements, not international relations, in
making a determination to waiver the moratorium on take. NMFS did examine the
potential for authorization of a gray whale hunt to have precedential effects on hunts for
marine mammals in the United States and whaling worldwide in the DEIS. Tab 90F at
4:260-273.

Comment 66: Several commenters express concern about the safety of consuming
whale meat and the danger consumption poses to public health.
Response: The FEIS presents the available information regarding the nutrients
and contaminants found in gray whale products. This information is available to the
Makah Tribe for consideration when assessing the potential risks of consuming gray
whale blubber.
Comment 67: PCPW comments that the WNP and PCFG are similar “whale
stocks” (e.g., small population size, different migratory patterns and feeding habits,
genetic differences) but are viewed and managed differently.
Response: WNP gray whales are a depleted stock under the MMPA and listed as
endangered under the ESA; PCFG gray whales are a feeding aggregation within the more
abundant ENP stock (see RD at IV.D). While both the WNP and PCFG populations are
small relative to the overall abundance of ENP gray whales, there are a number of
differences that warrant different management.
Comment 68: One commenter notes that the phrase “best available science” is
used repeatedly throughout the tribunal’s Recommended Decision, that the term needs to
be defined, and the term “independent” should perhaps be part of that.
Response: Sections 101(a)(3)(A) and 103(a) of the MMPA require the use of the
best scientific evidence available in this proceeding. The Recommended Decision
describes this standard, the available scientific information, and how it was considered
(see RD IV.B.). I agree with the discussion of these issues in section IV.B of the
Recommended Decision.
Comment 69: PCPW references a United Nations’ report that recognized the
importance of animal culture in conservation, indicating that the report finds that
different social groups within a species deserve special protection. PCPW suggest that the
PCFG are more than a feeding group and are a cultural group.

Response: It is not clear what report PCPW is referencing, and no report was
provided. Under the MMPA, the PCFG are a feeding aggregation within the ENP stock
of gray whales. The regulations include a number of measures to minimize impacts to the
PCFG.
Comment 70: PCPW comments that NMFS “speculates” on the behavior of
whales in different locations, and conditions, and questions the evidence used to support
the conclusions drawn.
Response: NMFS has drawn reasonable conclusions and adopted a conservative
management framework for the Makah hunt based on the best available scientific
evidence. The parties opposing the hunt have had numerous opportunities to rebut the
evidence NMFS relied on in support of the waiver and implementing regulations but have
failed to provide better scientific information that undermines the data and analysis on
which NMFS relies.
Comment 71: A number of individual commenters expressed general
disagreement with the Recommended Decision. PCPW and AWI are generally opposed
to the Recommended Decision.
Response: I have largely affirmed the Recommended Decision. Sections VII
through VIII of this Final Decision describe where I have/have not affirmed the
Recommended Decision.
Comment 72: A number of commenters noted that the requirements for a waiver
have been satisfied, expressed general support for the Recommended Decision, and
commented that it was based on the best available science. WCR, MMC, and the Makah
Tribe generally support the Recommended Decision.
Response: I have generally affirmed the Recommended Decision and adopted it
as part of this Final Decision, except as explained herein.

Comment 73: Commenters note that more recent information has been published
(e.g., ENP abundance) since the Recommended Decision. Another commenter notes that
estimates of the OSP range may have changed.
Response: Additional scientific information and analysis developed following the
Recommended Decision is discussed in section IX of this Final Decision.
VI. Measures in the Final Regulations
This section provides a general overview of the regulations governing the hunt.
As described in Section II of this Final Decision, two key management goals shaped
many of the provisions in the proposed and final regulations: (1) ensuring that hunting
does not reduce the ENP gray whales’ PCFG abundance below recent stable levels and
(2) limiting the likelihood that Tribal hunters would strike or otherwise harm a WNP gray
whale.
Management measures in the final regulations include:
•

Alternating Hunt Seasons: Winter/spring hunts would occur during the migration

season (December 1 through May 31) to reduce risk to PCFG whales, which are more
prevalent in the U&A in the summer and fall during their feeding season. Summer/fall
hunts would occur during the feeding season (July 1 through October 31) to reduce risk
to WNP whales, which are only known to occur in the U&A during the migratory season.
There would be a 1-month gap after a summer/fall hunt and a 13-month gap after a
winter/spring hunt.
• Maximum Annual Strike Limits: A maximum of three strikes may be authorized
during winter/spring hunts and two during summer/fall hunts. Thus, up to 25 whales may
be struck or struck and lost over the 10-year waiver. Unsuccessful strikes are not counted
against this limit.
• Maximum Struck and Lost Limits: A hunt permit may authorize no more than
three gray whales to be struck and lost in any calendar year.

• Maximum PCFG Mortality Limits: Over the 10-year waiver period, no more
than 16 PCFG whales may be struck. Of these, no more than 8 may be female PCFGs.
NMFS will, taking into account the abundance of PCFG whales, notify the Tribe prior to
the beginning of a hunt season of the maximum number of PCFG whales, including
females, that may be struck during the upcoming hunting season.
• Maximum Annual Landing Limits: A hunt permit may authorize landing (i.e.,
bringing a gray whale or any products thereof onto the land) no more than three whales
during winter/spring hunts and one whale during summer/fall hunts. That is, no more
than 20 whales can be landed over the waiver period.
• Maximum Annual Limits on Unsuccessful Strike Attempts: Unsuccessful strike
attempts are any attempt, including training harpoon throws, to strike a gray whale while
hunting that does not result in a strike. A hunt permit may authorize no more than 18
unsuccessful strike attempts during winter/spring hunt and no more than 12 unsuccessful
strike attempts during summer/fall hunts.
• Maximum Annual Approach Limits: A hunt permit may authorize no more than
353 approaches, including both hunting and training approaches, each calendar year, of
which no more than 142 may be on PCFG whales.
• PCFG Abundance Trigger: No hunting will be authorized for an upcoming
season if the most recent PCFG population estimate or the projected estimate for the
upcoming hunt season is less than 192 whales or the most recent or projected minimum
abundance estimate is less than 171 whales.
• ENP Low Abundance Thresholds: Hunting ceases if the ENP abundance falls
below the stock’s OSP.
• Take of WNP whales: Prior to permitting hunt activities in the winter/spring hunt
season, NMFS must determine if take of WNP whales is anticipated and, if so, must
include a condition in the permit requiring separate take authorization for WNP gray

whales during the winter/spring hunt. If a WNP whale is accidentally killed during a
hunt, hunting must cease until measures are put in place to prevent any further activity
that could result in another lethal take of a WNP gray whale.
• Accounting and Identification of Gray whales: The final regulations establish
procedures to determine whether a gray whale approached or struck is a WNP, PCFG , or
non-PCFG gray whale, or cannot be identified. If a gray whale cannot be identified, the
regulations include measures for presuming the whale to be a PCFG whale.
• Management of Handicrafts: The final regulations include marking and
certification requirements for handicrafts as well as measures to regulate when
handicrafts may be shared, bartered, traded, or sold.
• Monitoring, Reporting, and Recordkeeping: Certified Tribal hunt observers
must accompany each hunt and maintain hunt logs, including information on approaches,
attempted strikes, and strikes. The Tribe is required to submit an incident report within 48
hours of a gray whale being struck, a hunt report at the end of each season, an annual
approach report, and an annual handicraft report. After receiving an incident report
documenting that eight gray whales have been struck, NMFS will evaluate the photoidentification and notification requirements and the humaneness of the hunt.
VII. Changes to Final Regulations
The tribunal recommended changes to the proposed regulations, which are
described in the Recommended Decision and Appendix B to the Recommended Decision.
Changes made to the regulations described in Appendix B to the Recommended Decision
are described in this section of this Final Decision.
In sections V.II.B to C of the Recommended Decision, the tribunal recommended
certain modifications to the proposed regulations and addressed an unopposed motion to
amend the regulations to clarify the definition of strike and expand certain off-reservation
use of edible gray whale products. I agree with and affirm the recommendations in

sections V.II.B to C of the Recommended Decision as part of this Final Decision, with
the exceptions noted below.
Section 216.112 Definitions
I redefined the odd-year hunt as the summer/fall hunt and the even-year hunt as
the winter/spring hunt. This change was made to allow the initial hunt permit to start in
either season regardless of whether the permit was issued in an odd or an even year,
providing flexibility in the timing of the initial hunt season. Use of the “odd-year”/
“even-year” language might inadvertently and unnecessarily restrict the time that a hunt
could commence upon receipt of all necessary authorizations. This change maintains the
alternating year structure of the regulations but allows for a hunt permit to be issued at
the earliest possible time. This change does not affect the hunt structure (e.g., number of
hunts that may be permitted, months in which hunting can occur, and the gap between
hunt seasons) and, therefore, has no impact beyond what was considered in the
proceedings. This is also consistent with the tribunal’s recommendation that the odd-year
(summer/fall) hunts be allowed to commence at the soonest appropriate time. RD at 148.
I slightly modified the definitions of “strike” and “struck” for clarity. Prior to the
hearing, WCR filed a motion to clarify, in response to AWI’s argument that the definition
was ambiguous, that multiple strikes on the same whale would count as a single strike.
Tab 86. The tribunal recommended that the regulations adopt WCR’s amendments and
also specify “Once a whale is struck, subsequent penetrations of the same whale’s skin
during the hunt for the purpose of killing or landing that whale are considered to be part
of the initial strike.” RD at 141. I have adopted this recommendation with a slight
modification. In their comments on the Recommended Decision, the Makah Tribe
questioned whether this additional sentence may create confusion, and they believe it is
unnecessary. They noted that it is unclear whether subsequent harpoon strikes to attach
floats to keep the whale at surface would be “for the purpose of killing or landing the

whale." The Tribe recommended the language be simpler, such as “Multiple strikes on
the same whale are considered a single strike.” I agree with the Makah Tribe and have
adopted their recommendation.
I have added definitions of “export” and “share.” The regulations recommended
by the tribunal include provisions related to export of and sharing of gray whale products;
therefore, I added a definition of export and share to provide clarity. “Export” in the
regulations mean “the act of sending goods from one country to another.” The definition
of share includes “gift” and is similar to how gift was defined in the preamble to the
proposed regulations (i.e., voluntarily transfer to another person without compensation).
84 FR 13604, April 5, 2019. Therefore, I changed instances of the term “gift” to “share”
in the final regulations for consistency.
Section 216.113 Issuance and Duration of Permits
I have added a requirement at § 216.113(a) that the Makah Tribe specify the
proposed duration of the permit in its application. The duration of the initial permit and
subsequent permits can be up to 3 years and 5 years, respectively. This addition will
provide clarity on the permit duration sought by the Tribe. I have also added
requirements that the Makah Tribe, in its application for a hunt permit, must include any
permit conditions they propose and a justification for the proposed conditions. In
addition, if the Tribe is seeking a modification from any of these regulations, the Tribe
must specify the modification and the justification for that modification. Modifying the
regulations through informal rulemaking may be possible and could be carried out in
conjunction with permitting.
I have specified at § 216.113(b)(2) that the Regional Administrator may not
authorize hunting, hunting approaches, training approaches, or training harpoon throws
from December 1 through May 31 unless: (1) the Tribe has obtained separate
authorization under the MMPA or (2) the Regional Administrator, in consultation with

the Office of Protected Resources, has determined take of WNP gray whales is not
anticipated. My rationale for adding this provision is described in section VIII of this
Final Decision. The tribunal recommended that the final regulations include provisions
that require that the Tribe obtain an ITA prior to authorizing hunt activities when WNP
gray whales may be present. RD at 136-137. However, the Tribe may include in their
permit application a hunt plan that avoids the take of WNP whales, in which case an ITA
is not necessary. This change provides flexibility for NMFS to evaluate the Tribe’s
permit application and make the determination whether or not an ITA is needed based on
the best available science at the time, rather than the information presented during the
formal rulemaking hearing in 2019.
The tribunal concluded that the evidence weighs in favor of an overall abundance
threshold and recommended the Secretary consider setting one in the final regulations.
RD at 150-151. I have included an abundance threshold at § 216.113(b)(3) prohibiting
lethal hunting unless the stock is within its OSP and requiring the Regional Administrator
to ensure the stock is within OSP before issuing a hunt permit. The Regional
Administrator is also required to ensure that the level of hunting authorized under the
permit will not cause the stock to fall below its OSP.
Section 216.114 Hunt Management Requirements and Restrictions
Where appropriate, I have added “ENP” before gray whales to clarify that the
hunt permit may only authorize take of ENP gray whales. The two hunt seasons
(described as odd- and even-year hunts in the proposed rule and the Recommended
Decision) are carried over into the final rule and have been renamed to summer/fall and
winter/spring. I have provided additional clarity on the alternating hunt structure under §
216.114(a) by articulating when hunts may be authorized based on whether the initial
hunt season permitted is a summer/fall or winter/spring.

Unsuccessful strike attempt limits at § 216.114(b) are carried over from the
proposed rule and Recommended Decision, and training harpoon throws continue to
count against the unsuccessful strike attempt limits. Under the Recommended Decision,
training harpoon throws could be authorized between July 1 and October 31 in oddnumber years and in any month in even-number years. The final regulations maintain the
alternating pattern but decouple it from the even and odd year framework.
The final regulations specify that training harpoon throws may be authorized
between July 1 and October 31 in years of summer/fall (previously odd-year) hunts and at
any time during winter/spring hunts as well as the subsequent 7 months of the calendar
year in which those winter/spring (previously even-year) hunts occur. Under the proposed
regulations, as an artifact of the even/odd year structure, training harpoon throws could
not be authorized in December of the winter/spring hunt. There could be unsuccessful
strike attempts in December, but those unsuccessful strike attempts could not be training
throws. The final regulations allow training throws to be included within the unsuccessful
strike attempts in December without changing the unsuccessful strike attempt limits.
Unsuccessful strike attempts could occur in December of winter/spring hunts under the
Recommended Decision, so this change does not change the impacts to gray whales or
other ecosystem components. Rather, these changes provide flexibility when authorizing
hunt seasons and training harpoon throws while maintaining the intent of the structure of
the Recommended Decision.
I have also added a requirement, specified at § 216.114(d), that hunting must
cease when the Makah Tribe is notified in writing that the ENP gray whale stock has
fallen below its OSP. Hunting may not resume until the Tribe is notified in writing that
the stock has obtained OSP. This provision is consistent with the tribunal’s
recommendation to specify a low abundance threshold below which hunting would cease.
RD at 150-151.

Section 216.115 Accounting and Identification of Gray Whales
AWI commented on the importance of identifying gray whales subjected to hunt
activities and suggested adding a provision that every reasonable effort should be made to
collect genetic samples. Accounting and identification of gray whales are important to
monitoring the hunt and, as such, the WCR included requirements for accounting and
identification of gray whales in the proposed rule. As specified in § 216.115(b), genetic
data may be used in the identification and accounting of gray whales. Thus, I have
specified in § 216.115(a) that personnel authorized by NMFS to collect biological
samples must make every reasonable attempt to collect samples for genetic testing from
struck whales without compromising the safety of the hunt. This addition makes clear
that such personnel should make every reasonable effort to collect biological samples but
should not put themselves or the Tribal hunters in an unsafe situation.
Section 216.116 Use of Edible and Non-edible Whale Products
I added “shared for” before “consumption” in § 216.116(a)(1)(ii)(A) to clarify this
requirement. I added “transport” to § 216.116(a)(1)(iii) as this omission was an oversight
and the change aligns the authorization with the corresponding prohibitions in § 216.117.
Section 216.117 Prohibited Acts
The tribunal recommended prohibiting approaches on gray whale calves or adult
gray whales accompanying calves, in addition to the proposed prohibitions on strikes and
training throws. RD at 154. Accurately identifying a calf at 100 yards (91.5 m) can be
complicated by the whale’s behavior, the observer’s experience, and the environmental
conditions. The Makah Tribe commented, in part, that this recommendation, if adopted,
could lead to an inadvertent violation of regulations. To address this recommendation
while ensuring the regulations do not set unrealistic expectations on the whaling crew or
result in inadvertent noncompliance, I have amended the regulations at § 216.117(a)(6)

and (7) to prohibit approaches on calves or adult gray whales accompanying calves only
after a member of the whaling crew has identified a calf or adult accompanying a calf.
I have also added a prohibition at § 216.117(a)(14) on hunting after notification
by the Regional Administrator that the ENP gray whale population has fallen below OSP.
This addition aligns the requirements under § 216.113(b)(3) and is consistent with the
tribunal’s recommendation to include a low abundance threshold. RD at 150-151.
To the exceptions on prohibited use at § 216.117(a)(19)(ii), I clarified that “a
product that has been fashioned into a Makah Indian handicraft” includes both products
that have been marked and certificated per the regulation and those that have not. I
clarified the language in § 216.117 related to the use of edible and non-edible gray whale
parts. I changed “gift” to “share” for consistency.
I added “consume” to § 216.117(b)(2) as this omission was an oversight and the
change aligns the prohibition with the corresponding authorization in § 216.116(a)(3). In
§ 216.117(b)(6), I clarified the exception by referring to § 216.116(a)(2)(iii) and (iv),
which corresponds to the use authorizations for handicrafts for any person who is not an
enrolled member of the Makah Indian Tribe.
I have clarified § 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 §
216.116(a)(2)(iv).
Section 216.118 Requirements for Monitoring, Reporting, and Recordkeeping
I amended § 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 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 2527), 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 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 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 mid1990s 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; 21M0064 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 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, 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 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
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 ORSVI 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 tubebuilding 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).
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 373. 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-whaleunusual-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 largescale, 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 identified 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/2019-2023eastern-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 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 20192023 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 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‐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 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) estimate long-term
average carrying capacity at 22,062. In the absence of direct measurements, a modelderived 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-tribalwhale-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-toGovernment Relations with Native American Tribal Governments; Presidential
Memorandum on Tribal Consultation; and Tribal Consultation and Strengthening Nationto-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.
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 §
216.113(a)(7)(vii) of the proposed regulations.
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 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
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
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.
§ 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).
§ 216.111 Scope.
This subpart authorizes the taking of ENP gray whales only by enrolled
members of the Makah Indian Tribe only.
§ 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°22′53″ N lat., 124°43′54″ W long.) to Tatoosh Island Lighthouse (48°23′30″
N lat., 124°44′12″ W long.) to the buoy adjacent to Duntze Rock (48°28′00″ N lat.,
124°45′00″ W long.), then in a straight line to Bonilla Point (48°35′30″ N lat.,
124°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.
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 § 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° N lat. to 52° N lat.) and entered into a photoidentification 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°42′17″ W long. and waters of the Pacific Ocean off the

mainland shoreline of the Washington coast north of 48°02′15″ N lat. (Norwegian
Memorial) and east of 125°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.
§ 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,

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 § 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 § 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 § 216.114(a), and training
activities, as described in § 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
§ 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.
§ 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
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 §
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 §
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 § 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.
§ 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 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 §
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 §
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 § 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 § 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.
§ 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.
§ 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 § 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 § 216.118(a)(6)(i).
(5) Violate any provision of any hunt permit issued under § 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 § 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 §
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 § 216.115(b)(1) through (3).
(12) Hunt after the Makah Indian Tribe has been notified in writing by the
Regional Administrator under § 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
§ 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 §
216.115(b).
(14) Hunt after the Makah Tribe has been notified by the Regional
Administrator under § 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 § 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 §
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 § 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 § 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 § 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 § 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 §
216.116(a)(2)(iii) and (iv).

§ 216.118 Requirements for monitoring, reporting, and recordkeeping.
(a) In addition to the reporting provisions described in § 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 photoidentification 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:
(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 §§
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 §
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.
§ 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 §
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: 6/13/2024 11:15 am; Publication Date: 6/18/2024]