19530 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Notices 

genetic studies; and information on 

harvest rates on hatchery and wild fish. 

Data since our last evaluation (2002) is 

particularly helpful. 

In the February 2008 listing 

determination for Oregon Coast coho (73 

FR 7816), we noted that the principal 

inquiry in determining if this ESU 

warrants listing is whether present 

habitat conditions are sufficient to 

support a viable ESU, particularly 

during periods of unfavorable marine 

conditions and low marine survival, and 

whether future freshwater habitat 

conditions are expected to degrade. We 

concluded that the present and future 

status of freshwater habitat for the 

Oregon Coast coho ESU was uncertain. 

Accordingly, we also seek information 

on spatial or temporal trends in habitat 

accessibility, quality, and quantity of 

freshwater (including overwintering and 

rearing habitats) habitats within the 

boundaries of the Oregon Coast coho 

ESU. 

Efforts Being Made to Protect Oregon 

Coast Coho Salmon 

We also encourage all parties to 

submit information on ongoing efforts to 

protect and conserve Oregon Coast coho 

salmon, as well as information on 

recently implemented or planned 

activities and their likely impact(s). 

References 

Copies of the petition and related 

materials are available on the Internet at 

http://www.nwr.noaa.gov, or upon 

request (see ADDRESSES section above). 

Authority: 16 U.S.C. 1531 et seq. 

Dated: April 23, 2009. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

[FR Doc. E9–9823 Filed 4–28–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XL62 

Marine Mammal Stock Assessment 

Reports 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability; response 

to comments. 

SUMMARY: As required by the Marine 

Mammal Protection Act (MMPA), NMFS 

has incorporated public comments into 

revisions of marine mammal stock 

assessment reports (SARs). These 

reports for 2008 are now final and 

available to the public. 

ADDRESSES: Electronic copies of SARs 

are available on the Internet as regional 

compilations and individual reports at 

the following address: http:// 

www.nmfs.noaa.gov/pr/sars/. You also 

may send requests for copies of reports 

to: Chief, Marine Mammal and Sea 

Turtle Conservation Division, Office of 

Protected Resources, National Marine 

Fisheries Service, 1315 East-West 

Highway, Silver Spring, MD 20910– 

3226, Attn: Stock Assessments. 

Copies of the Alaska Regional SARs 

may be requested from Robyn Angliss, 

Alaska Fisheries Science Center, 7600 

Sand Point Way, BIN 15700, Seattle, 

WA 98115.Copies of the Atlantic 

Regional SARs may be requested from 

Gordon Waring, Northeast Fisheries 

Science Center, 166 Water Street, 

Woods Hole, MA 02543. 

Copies of the Pacific Regional SARs 

may be requested from Jim Carretta, 

Southwest Fisheries Science Center, 

NMFS, 8604 La Jolla Shores Drive, La 

Jolla, CA 92037–1508. 

FOR FURTHER INFORMATION CONTACT: Tom 

Eagle, Office of Protected Resources, 

301–713–2322, ext. 105, e-mail 

Tom.Eagle@noaa.gov; Robyn Angliss, 

Alaska Fisheries Science Center, 206– 

526–4032, email 

Robyn.Angliss@noaa.gov; Gordon 

Waring, Northeast Fisheries Science 

Center, email Gordon.Waring@noaa.gov; 

or Jim Carretta, Southwest Fisheries 

Science Center, 858–546–7171, email 

Jim.Carretta@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 117 of the MMPA (16 U.S.C. 

1361 et seq.) required NMFS and the 

U.S. Fish and Wildlife Service (FWS) to 

prepare stock assessments for each stock 

of marine mammals occurring in waters 

under the jurisdiction of the United 

States. These reports contain 

information regarding the distribution 

and abundance of the stock, population 

growth rates and trends, the stock’s 

Potential Biological Removal level 

(PBR), estimates of annual humancaused mortality and serious injury 

from all sources, descriptions of the 

fisheries with which the stock interacts, 

and the status of the stock. Initial 

reports were completed in 1995. 

The MMPA requires NMFS and FWS 

to review the SARs at least annually for 

strategic stocks and stocks for which 

significant new information is available, 

and at least once every 3 years for nonstrategic stocks. NMFS and FWS are 

required to revise a SAR if the status of 

the stock has changed or can be more 

accurately determined. NMFS, in 

conjunction with the Alaska, Atlantic, 

and Pacific Scientific Review Groups 

(SRGs), reviewed the status of marine 

mammal stocks as required and revised 

reports in each of the three regions. 

As required by the MMPA, NMFS 

updated SARs for 2008, and the revised 

reports were made available for public 

review and comment (73 FR 40299, July 

14, 2008). The MMPA also specifies that 

the comment period on draft SARs must 

be 90 days. NMFS received comments 

on the draft SARs and has revised the 

reports as necessary. The final reports 

for 2008 are available. 

Comments and Responses 

NMFS received letters containing 

comments on the draft 2008 SARs from 

two Federal agencies (Marine Mammal 

Commission and Environmental Quality 

Division, National Park Service), three 

non-governmental organizations (Center 

for Biological Diversity, Australians for 

Animals International, and Hawaii 

Longline Association), and two 

individuals. Most letters contained 

multiple comments. 

Unless otherwise noted, comments 

suggesting editorial or minor clarifying 

changes were included in the reports. 

Such editorial comments and responses 

to them are not included in the 

summary of comments and responses 

below. Other comments recommended 

development of Take Reduction Plans or 

to initiate or repeat large data collection 

efforts, such as abundance surveys, 

observer programs, or other mortality 

estimates. Comments on actions not 

related to the SARs (e.g., convening a 

Take Reduction Team or listing a 

marine mammal species under the 

Endangered Species Act (ESA)) are not 

included below. Many comments 

recommending additional data 

collection (e.g., additional abundance 

surveys or observer programs) have been 

addressed in previous years. NMFS’ 

resources for surveys, observer 

programs, or other mortality estimates 

are fully utilized, and no new large 

surveys or other programs may be 

initiated until additional resources are 

available or until ongoing monitoring or 

conservation efforts can be terminated 

so that the resources supporting them 

can be redirected. Such comments on 

the 2008 SARs and responses to them 

may not be included in the summary 

below because the responses have not 

changed. 

In some cases, NMFS’ responses state 

that comments would be considered for, 

or incorporated into, future revisions of 

the SAR rather than being incorporated 


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into the final 2008 SARs. The delay is 

due to review of the reports by the 

regional SRGs. NMFS provides 

preliminary copies of updated SARs to 

SRGs prior to release for public review 

and comment. If a comment on the draft 

SAR suggests a substantive change to 

the SAR, NMFS may discuss the 

comment and prospective change with 

the SRG at its next meeting prior to 

incorporating the change. 

Comments on National Issues 

Comment 1: NMFS should include a 

‘‘Habitat Concerns’’ section in all SARs. 

Response: NMFS disagrees. MMPA 

section 117(a)(3) requires a discussion 

of habitat concerns only in certain SARs 

(‘‘ for a strategic stock, other factors that 

may be causing a decline or impeding 

recovery of the stock, including effects 

on marine mammal habitat ...’’). 

Accordingly, such discussion is 

included where habitat effects may have 

a substantial population effect (one that 

could cause a decline or impede 

recovery). 

Comment 2: The SARs tend to lag 

about two years behind the latest data 

on fishery mortality. In those fisheries 

where there is 100 percent observer 

coverage, the data are received in near 

‘‘real-time’’ and could be incorporated 

sooner so that management decisions 

are based upon the latest information. 

Response: Although data are 

produced in near ‘‘real-time’’ in some 

cases, the data must be reviewed for 

quality assurance purposes prior to use 

in SARs or supporting management 

decisions. Fluctuations in estimates of 

mortality and serious injury tend to be 

relatively small because NMFS uses 5– 

year averages in most cases, and the 

PBR approach was tested and found to 

be robust for underestimates of 

mortality and serious injury or the 

precision of these estimates in meeting 

performance goals. 

Comment 3: Many stocks have 

‘‘undetermined’’ PBR because 

abundance estimates are more than 

eight years old. There is no excuse for 

failing to update abundance estimates 

for many of theses stocks. Given the 

precautionary principles incorporated 

into the MMPA, any such stocks should 

be designated as strategic because 

NMFS cannot conclude that mortality 

does not exceed PBR. 

Response: Funding limitations 

prevent more frequent surveys for 

updating abundance estimates. Funding 

requests have been formulated 

considering Administration priorities 

for marine resource conservation and 

other national needs. 

The MMPA includes specific criteria 

for designating a marine mammals stock 

as ‘‘strategic.’’ These criteria include (1) 

human-caused mortality and serious 

injury at levels above PBR, (2) a 

designation or listing as a depleted, 

threatened or endangered species or 

stock, and (3) declining status likely to 

result in the stock’s or species’ listing as 

a threatened or endangered species. 

NMFS’ guidelines for preparing stock 

assessment reports provide guidance for 

determining status in situations where 

insufficient information is available for 

a comparison of human-caused 

mortality and serious injury to PBR. The 

guidelines state, ‘‘If the human-caused 

mortality is believed to be small relative 

to the stock size based on the best 

scientific judgment, the stock could be 

considered as non-strategic. If humancaused mortality is likely to be 

significant relative to stock size (e.g., 

greater than the annual production 

increment) the stock could be 

considered as strategic.’’ Accordingly, 

each such situation is addressed 

individually and considered by NMFS 

experts and members of the appropriate 

SRG before a determination is made on 

the stock’s status. 

Comment 4: The SARs do a good job 

of addressing PBR and human-caused 

mortality and serious injury. 

Response: Comment noted. 

Comment 5: ‘‘Other Mortality’’ 

sections of the SARs do not 

comprehensively address projections for 

many activities (e.g., military and 

commercial activities, scientific 

research, climate change, decreases in 

fish stock size). 

Response: The ‘‘Other Mortality’’ 

sections in SARs report only direct 

human-caused mortality, and the 

reported levels reflect only the known 

or estimated levels of mortality and 

serious injury. The activities included 

in these sections include only those for 

which mortality estimates or reports are 

available. 

Comment 6: The reported mean 

annual takes do not reflect the projected 

increases in impacts or address 

preservation or stewardship aspects of 

many actions that could affect marine 

mammals. 

Response: This comment is correct. 

The SARs do not report on everything 

that is known, projected, or suspected 

about each stock of marine mammals. 

Rather, the SARs are limited to 

emphasize the key elements required by 

MMPA section 117, which form the 

scientific basis supporting 

implementation of the regime to govern 

interactions between marine mammals 

and commercial fishing operations in 

MMPA section 118. 

Comment 7: The Scientific Committee 

of the International Whaling 

Commission should be provided an 

opportunity to review the SARs and 

comment on them. 

Response: The Scientific Committee 

has an opportunity to review the SARs 

during the 90–day public comment 

period; however, NMFS does not plan to 

add an additional step in the SAR 

process by requesting a formal review 

by the Scientific Committee. Many of 

the scientists on the U.S. delegation to 

the Scientific Committee meetings are 

NMFS staff, and these scientists 

prepare, provide input to, or review the 

SARs. In addition, the SARs are 

prepared by NMFS experts, reviewed by 

additional experts within NMFS and on 

regional SRG, and subjected to public 

review and comment. Furthermore, 

much of the information contained in 

the SARs is extracted from the peerreviewed literature. An additional 

review step is unnecessary. 

Comment 8: NMFS should invest in 

the development of technologies and 

methods that will help address 

questions about population status and 

habitat use and, therefore, guide 

management strategies, particularly 

those aimed at avoiding adverse human 

effects. 

Response: NMFS invests, to the extent 

appropriations allow, in such 

technologies and methods. 

Comment 9: NMFS should work with 

other agencies conducting research 

related to marine mammals for the 

purposes of coordinating scientific 

efforts and sharing data and results. 

Response: NMFS and other agencies 

(state and Federal) generally coordinate 

marine mammal-related research so that 

efforts are not duplicated and existing 

information is shared. NMFS reviews 

surveys conducted by other entities for 

potential incorporation into SARs and 

will continue to use the best available 

information to prepare SARs. 

Comment 10: NMFS should work 

with Federal and state fisheries 

management agencies and industry to 

develop a funding strategy that would 

support more effective observer 

programs for collecting data on 

incidental fisheries-related mortality 

and serious injury of marine mammals. 

Response: NMFS established a 

National Observer Program in 1999 to 

combine program-specific observer 

effort for efficiency and to promote 

sustainable funding for a comprehensive 

marine resource observer program. The 

National Observer Program has been 

working with fishery management 

agencies and the fishing industry to 

meet these objectives and will continue 

to do so. The National Observer 

Program, in coordination with all six 

NMFS regions, is completing a National 


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Bycatch Report to compile species- and 

fishery-specific bycatch estimates for 

fish, marine mammals, sea turtles, and 

sea birds. This initiative will 

incorporate the development of fishery 

improvement plans to improve the 

collection of bycatch data and bycatch 

estimation methodologies. These 

improvement plans will also provide a 

comprehensive assessment of resources 

required to improve bycatch in U.S. 

commercial fisheries. 

Comment 11: NMFS should develop 

and implement a systematic and 

comprehensive approach for 

incorporating and considering all risk 

factors, including those that directly 

affect marine mammals and those that 

affect habitat, into the SARs. 

Response: NMFS disagrees. The 

description of SARs included in MMPA 

section 117 indicates that SARs should 

focus primarily on the information 

necessary to evaluate the impact of 

direct human-caused mortality and 

serious injury. Such information 

includes abundance and productivity 

estimates, calculations of PBR, and 

estimates of human-caused mortality 

and serious injury by source. In some 

cases (where other factors may be 

causing a decline or impeding recovery 

of strategic stocks), SARs contain a 

discussion of other factors. Expanding 

the SARs to include substantially more 

information on a wide variety of 

potential risk factors would detract from 

their main purpose, which is to be a 

concise summary of the information 

needed to implement the regime to 

govern interactions between marine 

mammals and commercial fishing 

operations. 

Comments on Alaska Regional Reports 

Comment 12: Given the observed and 

projected impacts of sea-ice loss on icedependent pinnipeds, NMFS should 

declare all the ice-dependent seals 

under its jurisdiction to be strategic 

stocks. 

Response: Observed or projected 

impact of sea-ice loss is not among the 

criteria in the MMPA for determining 

whether or not a stock is strategic. 

Accordingly, such impacts are not 

considered in the determination. Also, 

see response to Comment 3. 

Comment 13: The SARs must address 

the most important threats to a given 

species. For ice-dependent seals, the 

Habitat Concerns section should be 

expanded to include more than a single 

sentence. 

Response: The SARs for ribbon seals, 

ringed seals, spotted seals, and bearded 

seals are scheduled to be reviewed, and 

updated if appropriate, in the 2009 

SARs. The Habitat Concerns sections for 

these stocks will be updated if 

appropriate. The Habitat Concerns 

section is optional, not a requirement of 

the SARs; see response to comment 27. 

Comment 14: The draft SAR includes 

beluga whales in Yakutat as part of the 

Cook Inlet stock although the ESA 

listing rule notes the Yakutat belugas are 

genetically and geographically isolated 

from Cook Inlet belugas. Given their 

small population size, Yakutat belugas 

should be designated a depleted stock. 

Response: Although the preamble to a 

rule promulgated under the ESA states 

that beluga whales occupying Yakutat 

Bay are discrete from beluga whales in 

Cook Inlet (72 FR 62919, October 22, 

2008), regulations promulgated under 

the MMPA (50 CFR 216.15(g)) explicitly 

include beluga whales occupying 

Yakutat Bay as part of the depleted Cook 

Inlet stock. Accordingly, the beluga 

whales occupying Yakutat Bay are 

depleted under the MMPA. Designating 

the beluga whales in Yakutat Bay as a 

stock separate from those in Cook Inlet 

would require notice-and-comment 

rulemaking following a review of the 

status of these animals in accordance 

with MMPA section 115. 

Comment 15: The abundance estimate 

for beluga whales, Eastern Chukchi Sea 

stock, is outdated, and the PBR was 

changed to ‘‘undetermined’’. In three of 

the past six years, subsistence harvest, 

which do not include struck-and-loss 

corrections, has met or exceeded the 

PBR of 74. Furthermore, the recovery 

factor of this stock should be reduced 

from 1.0 to 0.5, which is the appropriate 

recovery factor for a stock of unknown 

status. If the proper recover factor were 

used, the PBR would be 37, which is 

below annual human-caused mortality 

for five of the last 6 years. In light of the 

high level of harvest, combined with the 

impacts of global warming and 

increasing oil industry activity in its 

range, this stock should be considered 

strategic. 

Response: NMFS’ guidelines for 

preparing stock assessment reports 

provide guidance for determining status 

in situations where insufficient 

information is available for a 

comparison of human-caused mortality 

and serious injury to PBR. The 

guidelines state, ‘‘If the human-caused 

mortality is believed to be small relative 

to the stock size based on the best 

scientific judgment, the stock could be 

considered as non-strategic. If humancaused mortality is likely to be 

significant relative to stock size (e.g., 

greater than the annual production 

increment) the stock could be 

considered as strategic.’’ NMFS 

scientists have determined that humancaused mortality is likely less than the 

annual production increment and 

presented this determination to the 

Alaska SRG in January 2008 before the 

SAR was made available for public 

review and comment. The 5–year mean 

mortality/serious injury estimate was 

below the former PBR of 74. 

Accordingly, the stock retains a status of 

‘‘non-strategic’’. Also, see response to 

Comment 3. 

Comment 16: NMFS should proceed 

with formal recognition of 12 stocks of 

harbor seals in Alaska and proceed with 

research and management of those 

stocks as set forth in the MMPA. 

Response: NMFS responded to this 

comment in the notice of availability of 

the final SARs for 2006 (72 FR 12774, 

March 15, 2007, Comment 16) and 2007 

(73 FR 21111, April 18, 2008, Comment 

23). As in the past, NMFS continues its 

commitment to work with its comanagers in the Alaska Native 

community to evaluate and revise stock 

structure of harbor seals in Alaska. 

Comment 17: Given the approval by 

the Secretary of the Interior of a plan for 

oil and gas lease sales in the range of 

North Pacific right whales, Eastern 

North Pacific stock, 2007–2012, the SAR 

should include more than ‘‘recent 

interest’’ in oil and gas exploration and 

development to reflect the more formal 

evaluation for leasing. 

Response: At this time, previouslyproposed lease sales are being 

reevaluated. Given that there is 

considerable uncertainty about whether 

lease sales will occur, it is currently 

unnecessary to expand on what lease 

sales may occur within the range of the 

North Pacific right whale. 

Comment 18: The maps and stock 

descriptions of humpback, fin, and 

minke whales should be changed to 

include recent sightings in the Chukchi 

and Beaufort Seas. 

Response: NMFS will review the 

recent sightings of humpback, fin, 

minke, and gray whales in the Chukchi 

and Beaufort Seas, and update the maps 

and geographic range information in the 

2009 SARs accordingly. 

Comment 19: NMFS should include 

the narwhal in its Alaska SARs due to 

apparent increasing sightings and take 

authorizations issued for the species. 

Response: In accordance with the 

MMPA, NMFS prepares SARs for 

species or stocks that occur in waters 

under U.S. jurisdiction and interprets 

this requirement to exclude those 

species or stocks for which there is a 

remote likelihood of occurring in U.S. 

waters (e.g., stocks for which only the 

margins of the range extends into U.S. 

waters or that enter U.S. waters only 

during anomalous current or 

temperature shifts). NMFS is currently 


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collecting and reviewing available 

narwhal sightings information and will 

consider whether a future SAR is 

appropriate after the review is complete. 

Comment 20: The SAR for humpback 

whales, Central North Pacific stock, 

must use the recently released data from 

the Structure of Populations, Levels of 

Abundance, and Status of Humpbacks 

(SPLASH) project, which represents the 

best population data available. The SAR 

appropriately rejects the abundance 

estimates based upon 1993 survey data 

as being outdated; however, it 

incorrectly states that the PBR is 

undetermined. The SPLASH data 

indicate a significant population 

increase, resulting in more than 

doubling of the stock’s population 

estimate. 

Response: The final SPLASH report 

was released in May 2008 

(Calambokidis et al., 2008), after the 

draft 2008 SARs were prepared. NMFS 

will be using the data provided in this 

report to partially update the draft 2009 

SARs and plans a full update of the 

Pacific humpback whale SARs in 2010. 

Comments 21 through 27 refer to the 

SAR for gray whales, Eastern North 

Pacific stock. 

Comment 21: The SAR for gray 

whales does not properly consider the 

findings of Alter et al. (2007). The SAR 

concludes their analysis is irrelevant 

because an estimate of the abundance 

1100–1600 years ago does not 

necessarily represent current carrying 

capacity (K); however, the SAR cites no 

authority for this conclusion. Wade’s 

(2002) analysis supports the conclusion 

in Alter et al. (2007) through the 

inability to reconcile the catch history 

from the 1800s with the recent time 

series of abundance data. Uncertainties 

regarding this stock’s long-term 

response to climate change support a 

precautionary approach to management, 

and NMFS should designate the stock as 

depleted. 

Response: As noted in responses to 

comments on the 2007 SARs (73 FR 

21111, April 18, 2008), NMFS 

considered the findings of Alter et al. 

(2007), in addition to publications in 

response to Alter et al. (2007) (e.g., 

Palsboll et al. 2007) and concluded 

these findings do not indicate the stock 

is depleted. Furthermore, the MMPA 

does not include uncertainties regarding 

a stock’s long-term response to climate 

change among the criteria within the 

definition of ‘‘depleted’’. 

Neither the MMPA nor its legislative 

history defines K. NMFS interpreted the 

use of K within the MMPA to mean 

current carrying capacity in a legislative 

proposal submitted to Congress after 

extensive internal and interagency 

review and two separate opportunities 

for public review and comment. 

Accordingly, an abundance of the 

population more than 1,000 years ago 

cannot be a reasonable proxy for K. 

Comment 22: The draft SAR has not 

used or reported the best scientific 

information available. For example, 

many of the estimates in the SAR are 

older than those in NMFS’ draft 

Environmental Impact Statement (DEIS) 

on the Makah’s request for a limited 

waiver of the MMPA’s moratorium to 

allow them to continue their treaty right 

of hunting for gray whales. NMFS 

should explain why two different sets of 

data are presented in these documents. 

Response: The abundance estimate of 

18,813 reported in the draft 2008 SARs 

is based on the mean of the 2000/01 and 

2001/02 abundance estimates. The 

abundance estimate of 20,110 reported 

in the DEIS is based on the results of the 

2006/07 census. The draft 2008 SARs 

were prepared and updated prior to the 

availability and publication of Rugh et 

al. (2008), which analyzed the results of 

the 2006–2007 census of the eastern 

North Pacific stock of gray whales. This 

information will be included in the gray 

whale SAR in a future revision. 

Comment 23: The ramifications of 

calculating a PBR based upon a highly 

inflated recovery factor and minimum 

abundance (Nmin) are unknown. The 

recovery factor for all other large whales 

is set at 0.1, and that for gray whales is 

1.0. NMFS cannot claim the population 

is healthy. Nmin has not been adjusted 

to account for the population collapse in 

1999 and 2000 in which a third or more 

of the population was lost. 

Response: Most large whale species 

are listed as ‘‘endangered’’ under the 

ESA and, thus, have been assigned a 

recovery factor of 0.1 as indicated in 

NMFS’ guidelines for assessment 

marine mammal stocks. The eastern 

North Pacific gray whale stock was 

removed from the list of endangered 

species in 1994 and is currently within 

its optimum sustainable population 

(OSP) (Wade and Perryman 2002; Punt 

et al. 2004). A major purpose of the 

recovery factor is to allow a portion of 

net annual production to be used for 

recovery to OSP. Because this stock is 

within its OSP, no recovery is 

necessary. 

Nmin was calculated from an 

abundance estimate based on surveys 

after the 1999–2000 stranding event. 

Therefore, the current value of Nmin 

incorporates effects of this stranding 

event. 

Comment 24: There is substantial 

inconsistency among documents 

produced by NMFS scientists on 

estimates of K; therefore, the value of K 

in the draft SAR has no validity. 

Response: NMFS has produced 

documents with a range of estimates for 

K because NMFS has used alternative 

models for analyzing data and because 

new information has become available 

since the first estimate of K was 

published. Wade’s (2002) analysis 

included multiple models and 

identifying the ‘‘best’’ model for 

interpretation of the results. Therefore, 

the calculation of alternative estimates 

for K was an integral part of the 

analytical process, which produced a 

more robust estimate of K than would 

occur from using a single model. As 

new information has been obtained (e.g., 

additional abundance estimates or 

revisions to the models used in 

estimating abundance), the entire data 

set is re-analyzed using the approaches 

in Wade (2002). Furthermore, the 

various estimates of K are in general 

agreement. 

Comment 25: The extent of orca 

predation on gray whales has been 

ignored in the draft SAR. Scientists from 

Monterey and Alaska are documenting 

mortality rates of up to 30 percent in the 

gray whale population in some years. 

Response: The SARs report a variety 

of information on marine mammals, 

including abundance, distribution, 

trends, and human-induced mortality 

and serious injury. Some information on 

threats may be included in certain SARs 

when the estimated severity of the 

threat significantly affects the stock’s 

status (e.g., killer whale predation is 

mentioned in the SAR for the Cook Inlet 

beluga stock). NMFS is not aware of 30– 

percent mortality rates of gray whales 

due to killer whale predation. 

Comment 26: There are several key 

issues for the PBR in the gray whale 

SAR. These are as follows: 

(a) PBR is no substitute for 

comprehensive assessments; 

(b) Maximum sustainable yield is a 

limit rather than a target; 

(c) The value of Nmin is highly 

dubious; 

(d) There is no adequate explanation 

for setting the recovery factor at 1.0; 

(e) The harvest information is not 

good, as suggested by the inability to 

reconcile the historical population size 

to current data; 

(f) It is not clear why the PBR is 

constant when NMFS claims the 

population is increasing; 

(g) No papers explicitly review 

methodology; 

(h) The locations for abundance 

estimates were changed; and 

(i) Calving figures do not show an 

exploding population. 


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Response: The subheadings below 

correspond to the subheadings in the 

comment: 

(a) PBR is not used as a substitute for 

a comprehensive assessment. Rather, it 

is included as a requirement of the 

MMPA; 

(b) NMFS agrees, and MSY is not used 

within the MMPA; 

(c) The value of Nmin is based on the 

best available information on abundance 

and the variance of the abundance 

estimates. 

(d) A recovery factor of 1.0 is 

appropriate. See response to Comment 

23. 

(e) Wade (2002) included an 

additional variance term in the model to 

account for potential underestimated 

harvest during the whaling years; thus, 

his estimates of population parameters 

incorporate this uncertainty. NMFS is 

confident that good information is 

available for the past 5 years, which is 

the relevant time period for estimating 

the effect of current human-caused 

mortality and serious injury. 

(f) The PBR level is updated only 

when there is new information on 

abundance available. The abundance 

estimate used in the SARs in both 2005 

(the last time the gray whale SAR was 

scheduled to be updated) and 2008 both 

use a mean estimate of the abundance 

estimates from 2000/01 census and 

2001/02 census. Therefore, because the 

abundance estimated calculated from 

the mean estimates over these years is 

the same, the PBR level has not 

changed. 

(g) The methodologies for key 

parameters in the SARs (e.g., those used 

for PBR) were described in peerreviewed literature. The guidelines for 

assessing marine mammal stocks were 

subjected to peer and public review 

three different times (59 FR 40527, 

August 9, 1995; 62 FR 3005, January 21, 

1997; and 69 FR 3005, November 18, 

2004). Therefore, NMFS maintains that 

important methodologies used in SARs 

have been thoroughly reviewed. 

(h) Gray whale shore-based counts 

were conducted from Yankee Point from 

1967/1968 to 1973/1974 and then from 

Granite Canyon in all subsequent years. 

The two sites are 3 miles apart, and 

aerial surveys have shown similar 

distributions of gray whales relative to 

shore at these sites. The only other time 

an alternate site was used for a survey 

was at the end of the migration in 1997/ 

1998; from 11–24 Feb 1998 counts were 

made from Point Lobos, 5 miles north of 

Granite Canyon. This change was 

necessary because the road to Granite 

Canyon was washed out in a storm. 

Besides these minor differences in sites, 

all within a few miles, NMFS has 

consistently used the Granite Canyon 

research station for the past 3 decades. 

(i) The population is within its OSP, 

likely near K. Consequently, the rate of 

population growth is expected to be low 

because K represents an equilibrium 

abundance (when birth and death rates 

are approximately equal). The SAR 

reflects published information on 

calving rates, which indicates the calf 

production indices (calf estimate/total 

population estimate) from 1994–2000 

were between 1.1 percent and 5.8 

percent annually (Perryman et al. 2002), 

and in 2004 the index was 9 percent 

(Perryman et al. 2004). Gray whale calf 

counts from shore stations along the 

California coast have indicated 

significant increases in average annual 

calf counts near San Diego in the midto late–1970s compared to the 1950s 

and 1960s, and near Carmel in the mid– 

1980s through 2002 compared to late– 

1960s through 1980 (Shelden et al. 

2004). This increase may be related to 

a trend toward later migrations over the 

observation period (Rugh et al. 2001, 

Buckland and Breiwick 2002), or it may 

be due to an increase in spatial and 

temporal distribution of calving as the 

population increased (Shelden et al. 

2004). 

Comment 27: The Habitat Concerns 

section should be expanded to a more 

comprehensive list of factors that could 

be affecting gray whale habitat (e.g., 

wave energy projects, terminals for 

liquid natural gas shipments, oil and gas 

lease sales, exploration and 

development, and noise). 

Response: Although there are various 

activities underway or planned that 

could affect gray whale habitats, none of 

these factors is likely ‘‘causing a decline 

or impeding recovery of’’ (MMPA 

section 117(a)(3)). Accordingly, they are 

not included in the SAR. Also, see 

response to Comment 1. 

Comments on Atlantic Regional Reports 

Comment 28: The 2007 and 2008 

Atlantic Ocean SARs do not cite 

potential risks to Kogia species from 

sonar sound, even though data in the 

published literature support the concern 

that military sonar may affect Kogia 

much like it affects beaked whales, and 

concern has been expressed about the 

vulnerability of Kogia to oil and gas 

industries in the Gulf of Mexico. 

Response: The Kogia species reports 

were not updated in 2008. However, the 

‘‘Other Mortality’’ discussions in the 

2007 reports for the Western North 

Atlantic stocks of both Kogia species 

note that potential risks due to 

anthropogenic noise is of concern. 

NMFS is also concerned about potential 

effects of anthropogenic noise of Kogia 

stocks in the Gulf of Mexico and is 

reviewing the literature for evidence 

related to this concern. If appropriate, 

NMFS will address such concern in 

future revisions of these SARs. 

Comment 29: NMFS needs to better 

update bottlenose dolphin stock 

structure in the Gulf of Mexico. Given 

the difficulty in assigning fisheriesrelated mortality to the appropriate 

stock, all such stocks should be 

designated as strategic stocks. 

Response: Research to update stock 

structure of bottlenose dolphins in the 

Gulf of Mexico is being conducted on a 

small scale, and a research plan has 

been developed to implement more 

wide-ranging stock structure research as 

resources become available. 

For bottlenose dolphins in the Gulf of 

Mexico, the 33 Bay, Sound and 

Estuarine Stocks and the 3 Coastal 

Stocks are designated as strategic stocks 

because for each stock, the abundance is 

unknown and human-related mortality 

and serious injury has been reported but 

the levels of such takes are unknown. 

This is not the case for the Continental 

Shelf Stock and the Oceanic Stock 

where for each stock, there are estimates 

of abundance and fishery-related 

mortality and serious injury, and for 

each, fishery-related mortality and 

serious injury do not exceed PBR. 

Comment 30: Atlantic white-sided 

dolphins should be designated as a 

strategic stock due to increasing bycatch 

trends. 

Response: Increasing bycatch trends is 

not a criterion for strategic status 

according to the MMPA. The bycatch of 

Atlantic white-sided dolphins exceeded 

PBR in the 2000 SAR, and, therefore, the 

stock was strategic in that report. In 

subsequent reports, including the 2008 

report, bycatch levels have been below 

PBR, and, therefore, Atlantic whitesided dolphins have not been 

designated as strategic. 

Comment 31: Abundance and 

mortality estimates for short-finned and 

long-finned pilot whales should be 

separated based on recent genetic and 

survey data. These stocks should be 

designated as strategic stocks. In 

addition, NMFS should collect 

sufficient information to determine the 

abundance, trend, and mortality rates of 

this stock and determine whether the 

stock may warrant designation as a 

depleted stock. 

Response: NMFS is currently 

analyzing data collected between 2004 

and 2007 to evaluate the spatial 

distribution and habitats of short-finned 

and long-finned pilot whales during the 

summer months. Based upon 

preliminary results, it is likely that the 

abundance estimates of the two species 


pwalker on PROD1PC71 with NOTICES
Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Notices 19535 

can be separated to develop specific 

estimates of PBR for each. However, 

additional data collection is required to 

separate the mortality and serious injury 

estimates for the two stocks associated 

with pelagic longline and other 

fisheries. As resources become 

available, NMFS will continue its work 

to improve the assessment and 

understanding of the status of these two 

species. 

Comments on Pacific Regional Reports 

Comment 32: Mortality estimates for 

blue whales should be updated to 

include recent ship strikes in the Santa 

Barbara ship channel. 

Response: At the time the draft 2008 

report was prepared, complete data on 

2007 ship strikes were unavailable. The 

SAR for blue whales for 2009 will be 

updated to include 2007 ship strike 

data, and a brief narrative of the NMFS 

response to the ship strikes will also 

included. 

Comment 33: All SARs for stocks in 

the range of the Hawaii-based longline 

fisheries should separate potential 

interactions with the deep-set fishery 

from the shallow-set fishery. 

Response: In the draft 2008 SAR, all 

false killer whale interactions were 

evaluated separately for deep and 

shallow-set fisheries by NMFS, although 

some information is presented jointly. 

Table 1 (footnote 2) in the 2008 SAR 

indicates that all reported mortalities 

and serious injuries of false killer 

whales took place in the deep-set 

fishery and that no false killer whales 

were observed killed or injured in the 

shallow-set fishery. Following the 2009 

List of Fisheries, which formally 

separates deep-set and shallow-set 

fisheries, the draft 2009 false killer 

whale SAR will be further modified to 

discuss and list each fishery separately 

in both the text and the table. 

Comment 34: Significant uncertainties 

and errors continue in the SAR for false 

killer whales. The SAR incorrectly 

identifies false killer whales in the 

Eastern North Pacific Ocean into three 

stocks based upon boundaries of 

Exclusive Economic Zones (EEZ). This 

incorrect stock structure results in an 

underestimate of the abundance of false 

killer whales that interact with the 

deep-set longline fishery. NMFS must 

address concerns or acknowledge in the 

SAR the uncertainties that underlie its 

conclusions. 

Response: NMFS recognizes that all 

marine mammal stock assessments have 

elements of uncertainty. NMFS’ 

assessment framework explicitly takes 

this uncertainty into account. 

Uncertainty in abundance and 

mortality/serious injury estimates is 

reported in terms of a statistical 

measure, the coefficient of variation 

(CV). The high CVs reported in the 

SARs explicitly acknowledge the 

underlying uncertainties. These 

uncertainties have already been 

incorporated into the SAR, as requested 

by the commenter. 

The establishment of EEZ-based 

stocks is consistent with national, peerreviewed guidelines for assessing 

marine mammal stocks of species that 

occur in U.S. and international waters. 

The guidelines state, ‘‘For situations 

where a species with a broad pelagic 

distribution which extends into 

international waters experiences 

mortalities within the U.S. EEZ, PBR 

calculations should be based on the 

abundance in the EEZ.≥ 

The abundance and fishery 

interaction data presented in the SAR 

have undergone rigorous scientific peerreview, and have been published in 

scientific journals and technical reports. 

The abundance estimate is based on 

over 5 months of survey effort using 

methodology that is widely accepted by 

experts to provide unbiased abundance 

estimates. During this survey, many 

sightings of a variety of less 

conspicuous cetaceans were made. The 

single false killer whale sighting 

demonstrates and confirms the rarity of 

this species in the Hawaiian EEZ. 

Fishery mortality and serious injury 

estimates have consistently been 

reported to be underestimates, not 

exaggerations, because not all cetaceans 

can be identified and many of the 

unidentified cetaceans were reported to 

be ‘‘false killer whales or short-finned 

pilot whales’’. These unidentified 

cetaceans have not been included in the 

assessment calculations. For these 

reasons, NMFS disagrees that the false 

killer whale population estimate is 

underestimated and that the importance 

of rare interactions with the fishery are 

exaggerated. The stock assessments are 

based on the best available, peerreviewed science and will continue to 

be refined as new data are analyzed and 

results become available. 

Comments 35 through 37 refer to false 

killer whales, Hawaii Insular stock or 

Hawaii Pelagic stock. 

Comment 35: The conclusion that 

insular animals are not taken in the 

long-line fishery is inappropriate, and 

the insular stock should be considered 

strategic. A precautionary approach 

would place the boundary between the 

insular and pelagic stocks at 51 nmi (the 

maximum recorded distance to land for 

a satellite-tagged insular false killer 

whale). 

Response: The SAR states that NMFS 

used sightings information and genetics 

data to show there were at least two 

separate stocks (insular and pelagic) 

within the Hawaii EEZ and that the 

boundary between the two stocks may 

change as new information became 

available. The rationale for locating the 

stock boundary was explained in an 

administrative report (Chivers et al., 

2008. Rationale for the 2008 revision to 

Hawaiian stock boundaries for false 

killer whales, Pseudorca crassidens. 

Administrative Report LJ–08–04.) NMFS 

recognizes (1) uncertainty in the stock 

boundary, (2) there is some overlap 

between the insular and pelagic stocks, 

and (3) there is potential for the Hawaiibased longline fisheries to interact with 

the insular stock of false killer whales 

when the fishery operates within 75 nmi 

of the main Hawaiian Islands. 

However, a strategic designation is 

defined in the MMPA to indicate that 

the documented mortality and serious 

injury exceeds PBR, and no mortality or 

serious injury of the insular stock in 

fisheries has been documented. (Also, 

see response to Comment 3.) 

Furthermore, the satellite telemetry 

information on false killer whale 

movements was not available when the 

2008 SARs were drafted and will be 

incorporated in the 2009 SARs. 

NMFS continues to evaluate false 

killer whale stock boundaries and stockspecific mortality and serious injury as 

new data become available and are peerreviewed. NMFS includes such new 

information into the SARs as 

appropriate. 

Comment 36: New information is 

available from recently published 

studies on population trends, persistent 

pollutants, and telemetry data and 

should be included in the SAR. 

Response: The information identified 

by the commenter was not yet published 

or peer-reviewed when the 2008 SARs 

were drafted. It will be added to the 

2009 draft SAR. 

Comment 37: As the draft SAR for the 

insular stock indicates, there is no 

documented mortality of these whales 

incidental to shallow-set longline 

fishing. If, however, such fishing is 

increased as indicated in a proposed 

change to the fishery management plan, 

there is likely to be increased bycatch of 

insular and pelagic stocks of false killer 

whales. 

Response: The shallow-set fishery has 

had 100 percent observer coverage since 

the implementation of new regulations 

in 2004 and would continue to have 100 

percent coverage under the proposed 

new plan. Incidental mortality and 

serious injury of false killer whales in 

this fishery in the future would be 

recorded by on-board observers and 

included in future stock assessments. 


pwalker on PROD1PC71 with NOTICES
19536 Federal Register / Vol. 74, No. 81 / Wednesday, April 29, 2009 / Notices 

Dated: April 24, 2009. 

David Cottingham, 

Acting Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. E9–9812 Filed 4–28–09; 8:45 am] 

BILLING CODE 3510–22–S 

COMMODITY FUTURES TRADING 

COMMISSION 

Energy and Environmental Markets 

Advisory Committee Meeting 

This is to give notice that the 

Commodity Futures Trading 

Commission’s Energy Markets Advisory 

Committee will conduct a public 

meeting on Wednesday, May 13, 2009. 

The meeting will take place in the first 

floor hearing room of the Commission’s 

Washington, DC headquarters, Three 

Lafayette Centre, 1155 21st Street NW., 

Washington, DC 20581 from 8 a.m. to 12 

p.m. The purpose of the meeting is to 

discuss energy and environmental 

market issues. The meeting will be 

chaired by Commissioner Bart Chilton, 

who is Chairman of the Energy and 

Environmental Markets Advisory 

Committee. 

The agenda will consist of the 

following: 

(1) Call to Order and Introduction; 

(2) Current Market and Regulatory 

Developments; 

(3) Environmental Commodity 

Markets: The CFTC and a CarbonConstrained World; 

(4) Energy Price Volatility and 

Consumers; 

(5) Discussion of Future Meetings and 

Topics; 

(6) Adjournment. 

The meeting is open to the public. 

Any member of the public who wishes 

to file a written statement with the 

committee should mail a copy of the 

statement to the attention of: Energy 

Markets Advisory Committee, c/o 

Commissioner Bart Chilton, Commodity 

Futures Trading Commission, Three 

Lafayette Centre, 1155 21st Street NW., 

Washington, DC 20581, before the 

meeting. Members of the public who 

wish to make oral statements should 

inform Commissioner Chilton in writing 

at the foregoing address at least three 

business days before the meeting. 

Reasonable provision will be made, if 

time permits, for oral presentations of 

no more than five minutes each in 

duration. 

For further information concerning 

this meeting, please contact 

Commissioner Bart Chilton at 202–418– 

5060. 

Issued by the Commission in Washington, 

DC, on April 24, 2009. 

David A. Stawick, 

Secretary of the Commission. 

[FR Doc. E9–9869 Filed 4–28–09; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF EDUCATION 

Office of Postsecondary Education; 

Overview Information; Predominantly 

Black Institutions Program; Notice 

Inviting Applications for New Awards 

for Fiscal Year (FY) 2009 

Catalog of Federal Domestic Assistance 

(CFDA) Number: 84.382A. 

DATES: 

Applications Available: April 29, 

2009. 

Deadline for Transmittal of 

Applications: May 29, 2009. 

Deadline for Intergovernmental 

Review: July 28, 2009. 

Full Text of Announcement 

I. Funding Opportunity Description 

Purpose of Program: The purpose of 

the Predominantly Black Institutions 

(PBIs) Program is to strengthen PBIs to 

carry out programs in the following 

areas: Science, technology, engineering, 

or mathematics (STEM); health 

education; internationalization or 

globalization; teacher preparation; or 

improving educational outcomes of 

African-American males. 

FY 2009 Competition Background: 

The PBIs Program was originally 

authorized under Title IV, Part J, 

Section 499A of the Higher Education 

Act of 1965 (HEA), as amended by the 

College Cost Reduction and Access Act 

(CCRAA) of 2007. The Higher Education 

Opportunity Act, which reauthorized 

the Higher Education Act, transferred 

the PBIs program to Title III, Part F, 

Section 371 of the HEA. 

Program Authority: Title III, Part F, 

Section 371 of the Higher Education Act of 

1965 (HEA), as amended. 

Applicable Regulations: The 

Education Department General 

Administrative Regulations (EDGAR) in 

34 CFR parts 74, 75, 77, 79, 82, 84, 85, 

86, 97, 98, and 99. 

II. Award Information 

Type of Award: Discretionary grants. 

Estimated Available Funds: 

$6,000,000. 

Estimated Size of Awards: $600,000. 

Estimated Number of Awards: 10. 

Note: The Department is not bound by any 

estimates in this notice. 

Project Period: Up to 12 months. 

III. Eligibility Information 

1. Eligible Applicants: Your 

institution must be designated as an 

eligible applicant under Title III of the 

HEA. The regulations can be found in 

34 CFR 607.2 through 607.5. In 

addition, your institution must: 

(a) Have an enrollment of needy 

students as defined by section 371(c)(3) 

of the HEA. The term enrollment of 

needy students means the enrollment at 

an institution of higher education with 

respect to which not less than 50 

percent of the undergraduate students 

enrolled in an academic program 

leading to a degree— 

(i) In the second fiscal year preceding 

the fiscal year for which the 

determination is made, were Federal 

Pell Grant recipients for such year; 

(ii) Come from families that receive 

benefits under a means-tested Federal 

benefit program (as defined in section 

371(c)(5) of the HEA); 

(iii) Attended a public or nonprofit 

private secondary school— 

(A) That is in the school district of a 

local educational agency that was 

eligible for assistance under Part A of 

Title I of the Elementary and Secondary 

Education Act of 1965, as amended 

(ESEA) for any year during which the 

student attended such secondary school; 

and 

(B) Which for the purpose of this 

paragraph and for that year, was 

determined by the Secretary (after 

consultation with the State educational 

agency of the State in which the school 

is located) to be a school in which the 

enrollment of children counted under a 

measure of poverty described in section 

1113(a)(5) of the ESEA exceeds 30 

percent of the total enrollment of such 

school; or 

(iv) Are first-generation college 

students (as that term is defined in 

section 402A(h) of the HEA), and a 

majority of such first-generation college 

students are low-income individuals. 

The term low-income individual has the 

meaning given that term in section 

402A(h) of the HEA. 

(b) Have an average educational and 

general expenditure which is low, per 

full-time equivalent undergraduate 

student in comparison with the average 

educational and general expenditure per 

full-time equivalent undergraduate 

student of institutions of higher 

education that offer similar instruction. 

The Secretary may waive this 

requirement, in accordance with section 

392(b) of the HEA, in the same manner 

as the Secretary applies the waiver 

requirements to grant applicants under 

section 312(b)(1)(B) of the HEA; 

(c) Have an enrollment of 

undergraduate students— 


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