Federal Register / Vol. 75, No. 36 / Wednesday, February 24, 2010 / Notices 8305 

receive public comments on NMFS’ 

intent to prepare an environmental 

impact statement (EIS) on the effects of 

oil and gas activities (e.g., seismic 

surveys and exploratory drilling) in the 

Arctic Ocean (U.S. Chukchi and 

Beaufort Seas). 

DATES: The comment period for the 

scoping process is from February 8, 

2010, through April 9, 2010. See 

SUPPLEMENTARY INFORMATION 

under the ‘‘Meeting Dates, Times, and 

Locations’’ heading for the dates and 

locations of the public scoping 

meetings. 

ADDRESSES: The public has the 

opportunity to submit comments and 

statements regarding NMFS’ intent to 

prepare this EIS using the following 

methods: 

• Mail: P. Michael Payne, Chief, 

Permits, Conservation and Education 

Division, Office of Protected Resources, 

NMFS, 1315 East-West Highway, Silver 

Spring, MD 20910; 

• Facsimile (fax) to: (301) 713–0376; 

• E-mail to: 

arcticeis.comments@noaa.gov; or 

• Public hearings: submit oral or 

written comments at public scoping 

meetings. 

Comments sent via e-mail, including 

all attachments, must not exceed a 10– 

megabyte file size. Information on this 

project can also be found on the 

Protected Resources webpage at: http:// 

www.nmfs.noaa.gov/pr/permits/eis/ 

arctic.htm. 

FOR FURTHER INFORMATION CONTACT: 

Michael Payne, Office of Protected 

Resources, NMFS, (301) 713–2289 ext. 

110. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 8, 2010 (75 FR 6175), 

NMFS announced its intent to prepare 

an EIS on the effects of oil and gas 

activities in the U.S. Chukchi and 

Beaufort Seas. In that notice, NMFS 

announced that it would hold a total of 

eight public scoping meetings in 

February and March 2010. However, the 

February 8, 2010 (75 FR 6175), notice 

only provided dates, times, and 

locations for the first three meetings. 

NMFS has scheduled additional 

public scoping meetings to be held in 

Wainwright, Barrow, Nuiqsut, Kaktovik, 

and Anchorage. The purposes of these 

meetings are to provide an opportunity 

for the public to learn about the 

proposed action, identify issues to be 

addressed in the EIS process, and to 

submit oral or written comments on this 

proposal. 

Meeting Dates, Times, and Locations 

The dates, times, and locations of the 

public scoping meetings are as follows: 

(1) March 9, 2010, 7 - 9 p.m., 

Wainwright Community Center, 

Wainwright, Alaska; 

(2) March 10, 2010, 7:30 - 9:30 p.m., 

Inupiat Heritage Center, Barrow, Alaska; 

(3) March 11, 2010, 7 - 9 p.m., 

Nuiqsut Community Center, Nuiqsut, 

Alaska; 

(4) March 12, 2010, 6:30 - 8:30 p.m., 

Kaktovik Community Center, Kaktovik, 

Alaska; and 

(5) March 23, 2010, 7 - 9 p.m., Egan 

Center, 555 West Fifth Avenue, 

Anchorage, Alaska 99501. 

Special Accommodations 

These meetings are accessible to 

people with disabilities. Requests for 

sign language interpretation or auxiliary 

aids should be directed to Sheyna 

Wisdom by telephone at (907) 261–6705 

or by e-mail at 

SheynalWisdom@URSCorp.com at 

least 7 days before the scheduled 

meeting date. 

Dated: February 18, 2010. 

Wanda L. Cain, 

Acting Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 2010–3750 Filed 2–23–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XU10 

Taking of Threatened or Endangered 

Marine Mammals Incidental to 

Commercial Fishing Operations; 

Proposed Permit 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; request for comments. 

SUMMARY: NMFS proposes to issue a 

permit for a period of three years to 

authorize the incidental, but not 

intentional, taking of individuals from 

the Central North Pacific (CNP) stock of 

endangered humpback whales 

(Megaptera novaeangliae) by the 

Hawaii-based longline fisheries (deepset and shallow-set). In accordance with 

the Marine Mammal Protection Act 

(MMPA), NMFS has made a preliminary 

determination that incidental taking 

from commercial fishing will have a 

negligible impact on CNP humpback 

whales; a recovery plan was completed 

in 1991; and vessels have been 

registered, a monitoring plan is in place, 

and a NMFS has insufficient funds to 

develop a Take Reduction Plan (TRP) at 

this time to address taking in these 

fisheries. Accordingly, NMFS proposes 

to issue the required permits to the 

Hawaii-based longline fisheries. NMFS 

solicits public comments on the 

negligible impact determination and on 

the proposal to issue this permit. 

DATES: Comments must be received by 

March 26, 2010. 

ADDRESSES: A draft of the negligible 

impact determination is available on the 

Internet at the following address: http:// 

fpir.noaa.gov/. Written copies of the 

determination may be requested from, 

and comments on the determination and 

proposed permit should be sent to: Lisa 

Van Atta, Assistant Regional 

Administrator, Protected Resources 

Division, NMFS Pacific Islands Region, 

1601 Kapiolani Boulevard, Suite 1110, 

Honolulu, HI 96814. Comments may 

also be sent by e-mail to: MMPA.permitPIR@noaa.gov or by fax to (301) 427– 

2533. Comments received after the 30– 

day comment period may not be 

considered or made part of the record. 

The recovery plan for humpback 

whales is available on the Internet at the 

following address: http:// 

www.nmfs.noaa.gov/pr/recovery/ 

plans.htm#mammals. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Van Atta, Assistant Regional 

Administrator, Protected Resources 

Division, Pacific Islands Region, (808) 

944–2257 or Tom Eagle, Office of 

Protected Resources, (301) 713–2322, 

ext. 105. 

SUPPLEMENTARY INFORMATION: NMFS is 

now considering the issuance of a 

permit under MMPA section 

101(a)(5)(E) to vessels registered in the 

Hawaii-based longline fisheries (deepset and shallow-set) to incidentally take 

individuals from the CNP stock of 

humpback whales (Megaptera 

novaeangliae), which are listed as 

endangered under the Endangered 

Species Act (ESA). 

The Hawaii-based longline fisheries 

do not take other species or stocks of 

threatened or endangered marine 

mammals; therefore, no other species or 

stocks are considered for this proposed 

permit. The information available from 

the Hawaii-based deep-set longline 

fishery since 1994 indicates that there 

has never been incidental mortality or 

serious injury of CNP humpback 

whales; therefore, none is anticipated in 

the 3–year duration of the permit. Since 

1994, there has been only one serious 

injury of a CNP humpback whale in the 

Hawaii-based shallow-set longline 


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fishery; that serious injury occurred in 

2006. Consequently, the permit would 

authorize harassment and non-lethal 

injury of humpback whales incidental to 

the deep-set longline fishery. Permitted 

lethal (serious injury or mortality) 

taking of CNP humpback whales 

incidental to the Hawaii-based longline 

fisheries is limited to the shallow-set 

fishery. 

The data for considering such an 

authorization were reviewed coincident 

with the publication of the 2010 List of 

Fisheries (LOF) (74 FR 58859, 

November 16, 2009), and the draft 2009 

marine mammal stock assessment 

reports (SAR) (Allen and Angliss 2009). 

The taking of this stock of humpback 

whales occurs incidental to fisheries in 

Alaskan, as well as Hawaiian, waters. 

The current negligible impact 

determination includes taking in Alaska 

and Hawaii waters; however, this 

proposed permit is limited to the 

Hawaii-based longline fisheries. Alaskabased fisheries will be addressed in a 

future permit. 

Statutory Background 

Section 101(a)(5)(E) of the MMPA (16 

U.S.C. 1371(a)(5)(E)) requires NMFS to 

authorize the incidental taking of 

individuals from marine mammal 

species or stocks listed as threatened or 

endangered under the ESA, as amended 

(16 U.S.C. 1531 et seq.) in the course of 

commercial fishing operations if NMFS 

determines that: (1) incidental mortality 

and serious injury will have a negligible 

impact on the affected species or stock; 

(2) a recovery plan has been developed 

or is being developed for such species 

or stock under the ESA; and (3) where 

required under section 118 of the 

MMPA, a monitoring program has been 

established, vessels engaged in such 

fisheries are registered in accordance 

with section 118 of the MMPA, and a 

TRP has been developed or is being 

developed for such species or stock. 

History of Applying Negligible Impact 

in Fisheries 

Among the requirements of MMPA 

section 101(a)(5)(E) to issue a permit to 

take ESA-listed marine mammals 

incidental to commercial fishing, NMFS 

must determine whether the incidental 

taking from commercial fisheries would 

have a negligible impact on the affected 

stock or stocks of threatened or 

endangered marine mammals. A 

negligible impact determination is 

required pursuant to MMPA section 

101(a)(5) (A) & (D) for authorizing the 

take of small numbers of any stock of 

marine mammals incidental to activities 

other than commercial fishing (termed 

the ‘‘Small Take Program’’) and under 

MMPA section 101(a)(5)(E) authorizing 

the take of threatened or endangered 

marine mammals incidental to 

commercial fishing operations. 

Under the MMPA’s provisions for the 

Small Take Program, NMFS must 

determine if the taking (by harassment, 

injury, and mortality) incidental to 

specified activities will have a 

negligible impact on the affected stocks 

of marine mammals. For permitting the 

take of threatened or endangered marine 

mammals incidental to fishing 

operations under the MMPA, NMFS 

must determine if mortality and serious 

injury incidental to commercial 

fisheries will have a negligible impact 

on the affected species or stocks of 

marine mammals. 

NMFS has implemented these 

programs, including a qualitative 

definition of negligible impact, through 

regulations and has relied upon 

qualitative and quantitative approaches 

to determine the levels of taking that 

would result in a negligible impact to 

affected species or stocks of marine 

mammals. The quantitative approach is 

more appropriate for serious injury and 

mortality than for non-lethal takes 

because mortality and serious injury are 

considered removals from the 

population and can be evaluated by 

well-documented models of population 

dynamics. 

The MMPA does not define 

‘‘negligible impact.’’ There is, however, 

a reference to negligible impact in the 

House of Representatives committee 

report for the MMPA Amendments of 

1981. That report provides that, 

‘‘’negligible’ is intended to mean an 

impact which is able to be disregarded. 

In this regard, the committee notes that 

Webster’s Dictionary defines the term 

‘‘negligible’’ to mean ‘‘so small or 

unimportant or of so little consequence 

as to warrant little or no attention’’ 

(House of Representatives, Report 97– 

228, September 16, 1981). NMFS 

defined negligible impact in regulations 

for the Small Take Program (50 CFR 

216.103) as ‘‘an impact resulting from 

the specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival.’’ 

This qualitative definition of 

negligible impact was the standard 

NMFS used to implement the Small 

Take Program from its beginning in 

1981 through 1994, when additional 

amendments to the MMPA required a 

more quantitative approach for 

assessing what level of removals from a 

population stock of marine mammals 

could be considered a negligible impact. 

It remains the only formal definition of 

negligible impact for implementing the 

MMPA, and its use was expanded to 

include determinations related to 

incidental taking from commercial 

fishing (50 CFR 229.2). 

The MMPA Amendments of 1994 

were enacted primarily to establish a 

regime to govern the taking of marine 

mammals incidental to commercial 

fishing operations, including MMPA 

section 101(a)(5)(E). These amendments 

were based in large part on a legislative 

proposal NMFS submitted to Congress 

in 1992. This legislative proposal was, 

in turn, based on recommended 

guidelines, required by MMPA section 

114, from the Marine Mammal 

Commission (Commission) in early 1990 

(Recommended Guidelines to Govern 

the Incidental Taking of Marine 

Mammals in the Course of Commercial 

Fishing Operations after October 1993, 

transmitted to NMFS on July 12, 1990). 

In these guidelines, the Commission 

recommended, among five other 

characteristics of a mechanism to govern 

the take of threatened and endangered 

marine mammals incidental to fishing, ‘‘ 

the authorized level of take would have 

a negligible effect on population size 

and recovery time...’’ The Commission 

provided initial quantitative guidance 

on negligible effect on population size 

and recovery time as the following: ‘‘an 

effect that (a) will not cause or 

contribute to a further decline in 

distribution or size lasting more than 

twelve months; and/or (b) will not cause 

greater than a 10 percent increase in the 

best available estimate of the time it will 

take the affected species or population 

to recover to its maximum net 

productivity level.’’ 

The Commission’s two-part 

recommendation suggests that a take 

would be negligible if it had an effect 

lasting no more than 12 months (that is, 

one that would be so small that it could 

not be detected from natural variability 

or would be expected to be alleviated by 

the next breeding season) or would 

delay the period of recovery by no more 

than 10 percent. The first of these 

quantitative approaches is more 

appropriate for an activity that would 

have a relatively short duration relative 

to the life expectancy of the affected 

stocks of marine mammals and, in the 

case of commercial fishing, for the 

remote likelihood of serious injury or 

mortality indicated by classification as a 

Category III fishery. Where incidental 

mortality or serious injury may occur on 

a more regular basis, as expected for 

interactions with Category I or II 

commercial fisheries, the delay-inrecovery standard would be more 

appropriate. 


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NMFS has consistently used the 

Commission’s delay-in-recovery 

guideline in distinguishing negligible 

from non-negligible impact. To apply 

this criterion, however, NMFS had to 

estimate what annual levels of removal 

would cause no more than a 10–percent 

delay in time to recovery. Such an effort 

was initiated at a NMFS-convened 

workshop (June 1994) to develop 

guidelines for preparing marine 

mammal stock assessment reports. 

Among the many items considered at 

that workshop, participants agreed that 

recovery factors (RF) used in the 

calculation of Potential Biological 

Removal (PBR) for each stock of marine 

mammals should compensate for 

uncertainty and possible unknown 

estimation errors. In discussing the 

recovery factor for stocks of endangered 

species of marine mammals, 

participants noted that a RF of 0.1 

would preserve 90 percent of net annual 

production for recovery of the stock, 

limiting the proportion of net annual 

production of the stock available for 

authorization of mortality or serious 

injury incidental to human-caused 

mortality. Participants also stated that 

reserving such a high proportion of net 

annual production of endangered 

species was appropriate to ‘‘ allow 

stocks to recover at near maximum 

rates, and to minimize the probability 

that naturally occurring stochastic 

mortality would result in extinction of 

the stock’’ (Barlow et al., 1995 at 10). 

Workshop participants also noted, 

‘‘authorized levels of human-related 

mortality should increase recovery time 

of endangered stocks by no more than 

10 percent (consistent with the goal 

stated in NMFS legislative proposal)’’ 

(Barlow et al. 1995 at 11, 12). 

Consequently, participants at the 

workshop recommended, and NMFS 

accepted, after public review and 

comment, that mortality and serious 

injury remaining at or below PBR for an 

endangered stock (with 0.1 as the RF in 

the PBR calculation) would have an 

insignificant or negligible impact on the 

affected stock. 

In applying the negligible impact 

criterion to determinations made 

initially under the MMPA Amendments 

of 1994, NMFS understood that total 

human-caused mortality and serious 

injury limited to a level no greater than 

a PBR calculated with RF of 0.1 would 

be negligible; however, MMPA section 

101(a)(5)(E) required a determination 

related to the impact of mortality and 

serious injury incidental to commercial 

fishing rather than incidental to all 

human activities. Accordingly, NMFS 

proposed to use, and subsequently used, 

10 percent of any stock’s PBR as the 

upper limit of mortality and serious 

injury incidental to commercial fishing 

in making the first negligible impact 

determinations (60 FR 31666, June 16, 

1995 (proposed) and 65 FR 45399, 

August 31, 1995 (interim)). A rationale 

supporting this approach was that a 

negligible (or insignificant) level of 

fishery-related mortality and serious 

injury should be only a small portion of 

the maximum level of mortality and 

serious injury a stock could sustain. 

NMFS noted that the threshold value 

was a starting point; that is, the criterion 

should not be used rigidly but should 

produce the first estimate, which, in 

turn, could be modified on a case-bycase basis according to existing 

information. Although 10 percent of 

PBR was used in 1995 in issuing 

permits to fisheries under MMPA 

section 101(a)(5)(E), NMFS later became 

concerned that 10 percent of PBR may 

result in a much smaller number than 

the 10–percent-delay criterion would 

require (Wade and Angliss, 1997). 

Later, Wade (1998) summarized the 

robustness trials conducted in support 

of the PBR approach for marine 

mammal conservation, including an 

aspect that was missing from 

simulations conducted for the NMFSconvened workshop in 1994: exploring 

the maximum level of annual removals 

from a population that would result in 

no more than a 10 percent delay in the 

time a population would need for 

recovery to its Maximum Net 

Productivity Level (MNPL). Wade 

(1998) found that an upper limit of 

annual removals equal to the value of a 

PBR calculation with a RF of 0.15 would 

allow 95 percent of simulations to 

equilibrate at or above MNPL, which 

was an initial step in quantifying the 

maximum number of annual removals 

resulting in a negligible impact. 

However, in some applications the 

negligible impact standard must also 

address a performance criterion for 

marine mammal stocks that are not 

necessarily depleted. Wade (1998), 

therefore, reported that an upper limit of 

annual mortality limited to a value 

equal to a PBR calculation with a RF of 

0.1 would allow 95 percent of 

simulations to equilibrate within 95 

percent of the carrying capacity of the 

affected stock of marine mammals. 

Wade’s (1998) performance testing 

included removals to the threshold level 

for a period of 100 years and evaluated 

the robustness of each case over a range 

of bias or uncertainty in productivity 

rates, abundance estimation, and 

mortality estimation. Thus, the limits 

are appropriate for use on long-term 

average removals and do not indicate 

that a short-term level of removal 

exceeding the threshold would delay 

time to recovery by more than 10 

percent. 

In 1998, NMFS published a notice (63 

FR 71894, December 30, 1998) advising 

the public that the agency was 

extending the 3–year permit issued to 

fisheries in 1995 to authorize the taking 

of threatened or endangered marine 

mammals. This notice also informed the 

public that NMFS considered the 6– 

month extension of the permit an 

opportunity to review existing criteria 

for the issuance of permits and to 

address issues that have arisen since the 

permits were first issued. NMFS 

solicited public comments to develop 

alternatives to 10 percent of PBR as a 

criterion for determining negligible 

impact; no comments were received. 

Having received no comments upon 

which to develop alternatives for 

determining negligible impact, NMFS 

published a notice proposing to issue 

permits under MMPA section 

101(a)(5)(E) in 1999 (64 FR 28800, May 

27, 1999). The notice contained a 

statement that NMFS, through internal 

deliberation, had adopted the following 

criteria for making negligible impact 

determinations for such permits: 

(1) The threshold for initial 

determination will remain at 0.1 PBR. If 

total human-related serious injuries and 

mortalities are less than 0.1 PBR, all 

fisheries may be permitted. 

(2) If total human-related serious 

injuries and mortalities are greater than 

PBR, and fisheries-related mortality is 

less than 0.1 PBR, individual fisheries 

may be permitted if management 

measures are being taken to address 

non-fisheries-related serious injuries 

and mortalities. When fisheries-related 

serious injury and mortality is less than 

10 percent of the total, the appropriate 

management action is to address 

components that account for the major 

portion of the total. 

(3) If total fisheries-related serious 

injuries and mortalities are greater than 

0.1 PBR and less than PBR and the 

population is stable or increasing, 

fisheries may be permitted subject to 

individual review and certainty of data. 

Although the PBR level has been set up 

as a conservative standard that will 

allow recovery of a stock, there are 

reasons for individually reviewing 

fisheries if serious injuries and 

mortalities are above the threshold 

level. First, increases in permitted 

serious injuries and mortalities should 

be carefully considered. Second, as 

serious injuries and mortalities 

approach the PBR level, uncertainties in 

elements such as population size, 


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reproductive rates, and fisheries-related 

mortalities become more important. 

(4) If the population abundance of a 

stock is declining, the threshold level of 

0.1 PBR will continue to be used. If a 

population is declining despite 

limitations on human-related serious 

injuries and mortalities below the PBR 

level, a more conservative criterion is 

warranted. 

(5) If total fisheries-related serious 

injuries and mortalities are greater than 

PBR, permits may not be issued. 

Criterion 1 is the starting point for 

analyses. If this criterion is satisfied, the 

analysis would be concluded. The 

remaining criteria describe alternatives 

under certain conditions, such as 

fishery mortality below the negligible 

threshold but other human-caused 

mortality above the threshold, or fishery 

and other human-caused mortality 

between the negligible threshold and 

PBR for a stock that is increasing or 

stable. If criterion 1 is not satisfied, 

NMFS may use one of the other criteria, 

as appropriate. 

In 2000, NMFS issued a permit to the 

CA/OR drift gillnet fishery to authorize 

the taking of threatened and endangered 

marine mammals incidental to its 

operation (65 FR 64670, October 30, 

2000). For that permit, as for the current 

permit, NMFS used the criteria adopted 

in 1999 to distinguish between 

negligible and non-negligible impact on 

affected stocks of marine mammals. 

Description of the Fishery 

The Hawaii-based longline fisheries 

consist of two separately-managed 

fisheries: the deep-set (tuna-target) 

fishery and the shallow-set (swordfishtarget) fishery. Both fisheries are 

limited-access fisheries, with 164 

permits that are transferable. The 

number of active vessels in the 

combined deep-set and shallow-set 

longline fishery peaked at 141 vessels in 

1991. The number of vessels in the 

combined longline fisheries has since 

ranged from 101 to 127. In 2008, there 

were 127 Hawaii-based longline vessels 

were active in the deep-set fishery, and 

27 vessels were active in the shallow-set 

fishery. The deep-set fishery operates 

year-round. Hawaii-based longline 

vessels vary their fishing grounds 

depending on their target species. Most 

effort is to the north and south of the 

Hawaiian Islands between the equator 

and 40° N and longitudes 140° and 180° 

W; however, the vast majority of deepset fishing occurs south of 20° N. 

Under Federal regulations, the fishery 

is generally restricted to waters outside 

of 50 nautical miles from the entire 

Northwestern Hawaiian islands (NWHI) 

because of protected species (Hawaiian 

monk seal, Monachus schauinslandi) 

interactions. Several 25–75 mile closed 

areas also exist around the main 

Hawaiian islands to prevent gear 

conflicts with smaller fishing vessels. 

Current regulations require 100 percent 

observer coverage for shallow swordfish 

sets and 20 percent observer coverage 

for deep tuna sets. There are fleet-wide 

annual limits on the number of 

allowable sea turtle interactions in the 

fisheries. 

Current Negligible Impact 

Determination 

NMFS evaluated the best available 

information in assessing the interactions 

between ESA-listed CNP humpback 

whales and the Hawaii-based longline 

fisheries (including observer data from 

1994 to 2007), other fisheries (using 

primarily stranding and sightings data), 

and other sources of human-caused 

serious injury and mortality, in order to 

determine whether the incidental 

mortality and serious injury from all 

commercial fisheries is having a 

negligible impact on the stock. Allen 

and Angliss (2009) use an annual rate of 

increase of 7 percent for this stock and 

note this rate is considered conservative 

for the stock. Because the stock is 

increasing despite annual humancaused mortality and serious injury 

exceeding 10 percent of PBR, criterion 3 

is the appropriate criterion for 

consideration. Thus, fishery-related 

mortality and serious injury would be 

considered negligible if such mortality, 

in combination with other human 

sources of mortality, does not exceed 

PBR, subject to individual review and 

certainty of data. 

Commercial fisheries known to 

incidentally take humpback whales 

include longline fisheries, pot fisheries, 

known and unknown net fisheries, and 

purse seine fisheries in Alaska and 

Hawaii (Allen and Angliss (2009). The 

SAR did not include the serious injury 

of a humpback whale incidental to the 

Hawaii-based shallow-set longline 

fishery because the necessary 

information was not available to SAR 

authors when the draft was originally 

prepared in 2008). Since the initiation 

of the NMFS observer program in 1994, 

there have been no reported mortalities 

or serious injuries of CNP humpback 

whales in the Hawaii-based deep-set 

longline fishery. However, there was 

one serious injury of a CNP humpback 

whale in the Hawaii-based shallow-set 

longline fishery in 2006. 

The SAR also did not include reports 

of entangled humpback whales observed 

in Hawaii. The gear entangling these 

whales did not originate in Hawaii; 

therefore, some of these entangled 

whales may have been included in 

reports from Alaska or may represent 

recreational, rather than commercial, 

fishing gear. For this analysis, NMFS 

has identified 9 entanglements from 

2003 through 2007 that may be serious 

injuries (5–year mean is 1.8 whales). 

Mean annual mortality and serious 

injury rate attributable to commercial 

fisheries over the 2003 - 2007 period is 

5.4 whales per year (3.4 for the Alaska 

fisheries (Table 7 in the accompanying 

negligible impact analysis); 0.0 for the 

Hawaii-based deep-set longline fishery; 

0.2 for the Hawaii-based shallow-set 

longline fishery (Forney, 2009), and 1.8 

serious injuries reported in HI-observed 

entanglements (26.5 percent of the 

stock’s PBR). The recently authorized 

removal of the set certificate program, 

which could allow for the expansion of 

the shallow-set fishery that primarily 

targets swordfish, may increase serious 

injury or mortality of humpback whales; 

however, an exposure analysis indicated 

that the expanded fishery is not likely 

to lethally take more than one 

humpback whale per year. 

The total of mortality and serious 

injury of CNP humpback whales 

incidental to commercial fishing 

operations is estimated to be 5.4 whales 

per year from 2003–2007. This 

minimum estimate is greater than 10 

percent of the calculated PBR for the 

CNP stock and less than the stock’s PBR 

(20.4). Vessel strikes (1.6 whales per 

year) and entanglement in recreational 

fishing gear (0.2 whales per year) have 

been reported as additional humancaused mortality and serious injury for 

this stock of humpback whales. Total 

human-caused mortality and serious 

injury are less than the stock’s PBR and 

are not expected to delay recovery of the 

stock by more than 10 percent more 

than recovery time if these removals did 

not occur. A more detailed description 

of this negligible impact determination 

is available on the Internet; written 

copies are also available upon request 

(see ADDRESSES). 

Current Permit 

Based on the above assessment, 

NMFS concludes that the incidental 

mortality and serious injury from 

commercial fishing would have a 

negligible impact on the CNP stock of 

humpback whales. The impacts on the 

human environment of continuing and 

modifying the shallow-set longline 

fishery, including the taking of 

threatened and endangered species of 

marine mammals, were analyzed in a 

draft Supplemental Environmental 

Impact Statement prepared by the 

Western Pacific Fishery Management 

Council (WPFMC 2008) pursuant to the 


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National Environmental Policy Act 

(NEPA) (42 U.S.C. 4231 et seq.) and in 

a biological opinion prepared pursuant 

to the ESA in October 2009 on this 

modification. The proposed permit 

would have no additional impact to the 

human environment or effects on 

threatened or endangered species 

beyond those analyzed in these 

documents. NMFS now reviews the 

remaining requirements to issue a 

permit to take CNP humpback whales 

incidental to the Hawaii-based longline 

fisheries. 

Recovery Plan. The recovery plan for 

humpback whales was completed and 

in place in 1991. This plan has guided 

ESA recovery efforts for humpback 

whales globally since that time. 

Accordingly, the requirement to have a 

recovery plan in place or being 

developed is satisfied. 

Vessel Registration. MMPA section 

118(c)(5)(A) provides that registration of 

vessels in fisheries should, after 

appropriate consultations, be integrated 

and coordinated to the maximum extent 

feasible with existing fisher licenses, 

registrations, and related programs. 

Participants in the Hawaii-based 

longline fisheries are required to hold a 

permit under 50 CFR 665.21. The 

MMPA registration program has been 

integrated in this permitting system for 

the Hawaii-based longline fisheries. 

Accordingly, vessels in the fisheries are 

registered in accordance with MMPA 

section 118. 

Monitoring Program. As noted above, 

the Hawaii-based longline fisheries have 

been observed since the early 1990s. 

Current levels of observer coverage in 

the deep-set fishery (20 percent or 

higher) are adequate to produce reliable 

estimates; mandatory observer coverage 

in the shallow-set fishery is 100%. 

Accordingly, as required by MMPA 

section 118, a monitoring program is in 

place. 

Take Reduction Plan (TRP). Subject to 

available funding, MMPA section 118 

requires a TRP in cases where a strategic 

stock interacts with a Category I or II 

fishery. The CNP stock of humpback 

whales is considered a strategic stock 

under the MMPA because humpback 

whales are listed under the ESA. This 

strategic stock interacts with the 

Category I and II Hawaii-based longline 

fisheries. Currently, there is no TRP for 

the CNP stock of humpback whales. The 

short- and long-term goals of a TRP are 

to reduce mortality and serious injury of 

marine mammals incidental to 

commercial fishing. However, the 

obligations to develop and implement a 

TRP are subject to the availability of 

funding. MMPA section 118(f)(3) (16 

U.S.C. 1387(f)(3)) contains specific 

priorities for developing TRPs. 

NMFS has insufficient funding 

available to simultaneously develop and 

implement a TRP for all stocks that 

interact with Category I or Category II 

fisheries. Most recently in March of 

2009, NMFS considered multiple 

quantitative and qualitative factors to 

indentify its priorities for establishing 

take reduction teams (TRTs) and 

collecting data. As provided in MMPA 

section 118(f)(6)(A) and (f)(7), NMFS 

used the most recent stock assessment 

reports (SARs) and List of Fisheries 

(LOF) as the basis to determine its 

priorities for establishing TRTs and 

developing TRPs. Through this 

evaluative process, the CNP stock of 

humpback whale was rated as ‘‘low’’ 

priority for establishing a TRT. Indeed, 

observer reports since 1994 indicate that 

there have been zero serious injuries or 

mortalities of a CNP humpback whale in 

the Hawaii-based deep-set longline 

fishery, and only one serious injury (and 

no mortalities) of a CNP humpback 

whale in the Hawaii-based shallow-set 

longline fishery. Accordingly, given 

these factors and NMFS’ prioritization 

process, a TRP will be deferred under 

section 118 as other stocks have a higher 

priority for any available funding for 

establishing new TRPs . 

As noted in the summary above, all of 

the requirements to issue a permit to the 

Hawaii-based longline fisheries have 

been satisfied. Accordingly, NMFS 

proposes to issue a permit to the 

Hawaii-based deep- and shallow-set 

longline fisheries for the taking CNP 

humpback whales incidental to the 

fisheries’ operations. Taking of these 

whales in the deep-set fishery would be 

limited to non-lethal taking only 

(harassment and injury). Taking of these 

whales in the shallow-set fishery would 

include non-lethal taking and up to one 

lethal (serious injury or mortality) take 

per year in the shallow-set fishery. 

NMFS solicits public comments on the 

proposed permit and the preliminary 

determinations supporting the permit. 

References 

Allen, B.M. and R.P. Angliss, R.P. 

2009. Draft Alaska Marine Mammal 

Stock Assessments, 2009. U.S. 

Department of Commerce, National 

Marine Fisheries Service, Alaska 

Fisheries Science Center. 

Barlow, J., S. Swartz, T. Eagle and P. 

Wade. 1995. U.S. Marine Mammal Stock 

Assessments: Guidelines for 

Preparation, Background, and a 

Summary of the 1995 Assessments. U.S. 

Department of Commerce, NOAA-TMNMFS-SWFSC–219. 

Carretta, J.V., K.A. Forney, Lowry, 

M.S., Barlow, J., Baker, J., Johnston, D., 

Hanson, B., Brownell Jr., R.L., Robbins, 

J., Mattila, D.K., Ralls, K., Muto, 

M.M.,Lynch, D., and L. Carswell. 2009. 

Draft U.S. Pacific Marine Mammal Stock 

Assessments: 2009. Department of 

Commerce, National Marine Fisheries 

Service, Southwest Fisheries Science 

Center. 

Forney, K.A. 2009. Draft Serious 

injury determinations for cetaceans 

caught in Hawaii longline fisheries 

during 1994–2008. Working paper 

reviewed by the Pacific Scientific 

Review Group (PSRG–2009–9). 

Wade, P. R. 1998. Calculating limits to 

the allowable human-caused mortality 

of cetaceans and pinnipeds. Mar. 

Mamm. Sci., 14(1): 1–37. 

Wade, P.R. and R. P. Angliss. 1997. 

Guidelines for assessing marine 

mammal stocks: report of the GAMMS 

workshop, April 3–5, 1996, Seattle, 

Washington. NOAA-TM-NMFS-OPR– 

12. 

Western Pacific Regional Fishery 

Management Council (WPFMC), 2008. 

Management Modifications for 

theHawaii-based Shallow-set Longline 

Swordfish Fishery: Proposal to Remove 

Effort Limit, Eliminate Set Certificate 

Program, and Implement New Sea 

Turtle Interaction Caps. Draft 

Amendment 18 to the Fishery 

Management Plan for Pelagic Fisheries 

of the Western Pacific Region Including 

a Draft Supplemental Environmental 

Impact Statement. August 12, 2008. 

Dated: February 19, 2010. 

Helen M. Golde, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 2010–3746 Filed 2–23–10; 8:45 am] 

BILLING CODE 3510–22–S 

CONSUMER PRODUCT SAFETY 

COMMISSION 

Sunshine Act Meetings 

TIME AND DATE: Wednesday, February 24, 

2010, 2 p.m.–4 p.m. 

PLACE: Hearing Room 420, Bethesda 

Towers, 4330 East West Highway, 

Bethesda, Maryland. 

STATUS: Closed to the Public. 

MATTER TO BE CONSIDERED: 

Compliance Weekly/Monthly Report— 

Commission Briefing 

The staff will brief the Commission on 

various compliance matters. 

For a recorded message containing the 

latest agenda information, call (301) 

504–7948. 


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