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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - RIN 0648-XA018

# AGENCY:

National Marine Fisheries Service (NMFS).

# ACTION:

Notification of availability; request for comments.

# SUMMARY:

                        NMFS has received a petition to designate the Eastern North Pacific population of gray whales (                        *Eschrichtius robustus*) as a depleted stock under the Marine Mammal Protection Act (MMPA). In accordance with the MMPA, NMFS is announcing the receipt of the petition and its availability for public review and is soliciting comments on the petition.                    

# DATES:

Comments must be received by close of business on November 24, 2010.

# ADDRESSES:

A copy of the petition may be requested from Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.

You may submit comments, identified by 0648-XA018, by any one of the following methods:
      -  Electronic Submissions:                          Submit all electronic public comments via the Federal eRulemaking Portal                          http://www.regulations.gov .                    
      -  Fax:                          301-713-0376,                          Attn:                          Chief, Marine Mammal and Sea Turtle Conservation Division.                    
      -  Mail:                          Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.                    

*Instructions:*                         No comments will be posted for public viewing until after the comment period has closed. All comments received are a part of the public record and will generally be posted to                         *http://www.regulations.gov*                         without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.                    

NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

# FOR FURTHER INFORMATION CONTACT:

Dr. Shannon Bettridge or Dr. Gregory Silber, Office of Protected Resources, Silver Spring, MD (301) 713-2322.

# SUPPLEMENTARY INFORMATION:

## Electronic Access

                    Interested persons may obtain the petition for review on the Internet at the following address:                     *http://www.nmfs.noaa.gov/​pr/​*                     or by contacting Dr. Shannon Bettridge or Dr. Gregory Silber [                    *see***FOR FURTHER INFORMATION CONTACT**                    ].                

                    The 2008 stock assessment report for Eastern North Pacific gray whales is available on the Internet at the following address:                     *http://www.nmfs.noaa.gov/​pr/​pdfs/​sars/​ak2008whgr-en.pdf.*

## Background

                    Section 3(1)(A) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1362(1)(A)) defined the term, “depletion” or “depleted”, to include any case in which “ * * * the Secretary, after consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals * * * determines that a species or a population stock is below its optimum sustainable population.” Section 3(9) of the MMPA (16 U.S.C. 1362(9)) defines “optimum sustainable population [(OSP)] * * * with respect to any population stock, [as] the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity [(K)] of the habitat and the health of the ecosystem of which they form a constituent element.” NMFS' regulations at 50 CFR 216.3 clarify the definition of OSP as a population size that falls within a range from the population level of a given species or stock that is the largest supportable within the ecosystem (                    *i.e.,*                     K) to its maximum net productivity level (MNPL). MNPL is the population abundance that results in the greatest net annual increment in population numbers resulting from additions to the population from reproduction, less losses due to natural mortality.                

                    The MMPA provides for interested parties to submit a petition to designate a population stock of marine mammals as depleted. Section 115(a)(3) of the MMPA (16 U.S.C. 1383b(a)(3)) requires NMFS to publish a notice in the                     **Federal Register**                     that such a petition has been received and is available for public review. Within 60 days of receiving a petition, NMFS must publish a finding in the                     **Federal Register**                     as to whether the petition presents substantial information indicating that the petitioned action may be warranted.                

                    If NMFS makes a positive 60-day finding, NMFS must promptly initiate a review of the status of the affected population stock of marine mammals. No later than 210 days after receipt of the petition, NMFS must publish a proposed rule as to the status of the species or stock, along with the reasons underlying the proposed status determination. Following a 60-day minimum comment period on the proposed rule, NMFS must publish a final rule within 90 days of the close of the comment period on the proposed rule.                          ( print page 68757)    

## Petition on Eastern North Pacific Gray Whales

On October 21, 2010, NMFS received a petition from the California Gray Whale Coalition to designate the Eastern North Pacific population of gray whales as depleted under the MMPA. The petition alleges that the causes of the decline include the following:

(1) Over-harvesting;

(2) Collapse of cow/calf numbers;

(3) Predation by transient orcas;

(4) Major changes in primary prey and habitat as a result of climate change; and

(5) Reduction in available prey species resulting in starvation.

                    In accordance with the MMPA, NMFS announces the receipt of this petition, and its availability for public review (                    *see***ADDRESSES**                     and Electronic Access). NMFS also solicits comments and information related to the statements in the petition and additional background on the status of the Eastern North Pacific population of gray whales.                

Dated: November 4, 2010.

Thomas C. Eagle,

Acting Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, National Marine Fisheries Service.

[FR Doc. 2010-28282 Filed 11-8-10; 8:45 am]

BILLING CODE 3510-22-P