29984 Federal Register / Vol. 75, No. 103 / Friday, May 28, 2010 / Notices 

4 If one of the above named companies does not 

qualify for a separate rate, all other exporters of 

Certain Activated Carbon from the People’s 

Republic of China (‘‘PRC’’) who have not qualified 

for a separate rate are deemed to be covered by this 

review as part of the single PRC entity of which the 

named exporters are a part. 

5Petitioners, Calgon Carbon Corporation and 

Norit Americans Inc., also requested a review of 

fifteen additional companies, but were unable to 

provide addresses for these companies. We are still 

considering the appropriateness of initiating a 

review on these fifteen companies. Therefore, at 

this time, we are not initiating a review with respect 

to the following companies: Actview Carbon 

Technology Co., Ltd.; Alashan Yongtai Activated 

Carbon Co., Ltd.; Beijing Huapeng Environment 

Protection Materials; Datong Kangda Activated 

Carbon Factory; Datong Runmei Activated Carbon 

Factory; Fangyuan Carbonization Co., Ltd.; Huaxin 

Active Carbon Plant; Jilin Goodwill Activated 

Carbon Plant; Kaihua Xinghua Chemical Plant; 

Xingtai Coal Chemical Co., Ltd.; Xinyuan Carbon; 

Yinyuan Carbon; Yuanguang Activated Carbon Co., 

Ltd.; YunGuan Chemical Factory; and, Yuyang 

Activated Carbon Co., Ltd. 

6 If one of the above named companies does not 

qualify for a separate rate, all other exporters of 

Certain Steel Threaded Rod from the PRC who have 

not qualified for a separate rate are deemed to be 

covered by this review as part of the single PRC 

entity of which the named exporters are a part. 

7 If one of the above named companies does not 

qualify for a separate rate, all other exporters of 

Fronseating Service Valves from the PRC who have 

not qualified for a separate rate are deemed to be 

covered by this review as part of the single PRC 

entity of which the named exporters are a part. 

8 If one of the above named companies does not 

qualify for a separate rate, all other exporters of 

1-Hydroxyethylidene-1, 1-Diphosphonic Acid 

(HEDP) from the PRC who have not qualified for a 

separate rate are deemed to be covered by this 

review as part of the single PRC entity of which the 

named exporters are a part. 

9 If the above named company does not qualify 

for a separate rate, all other exporters of Magnesium 

Metal from the People’s Republic of China who 

have not qualified for a separate rate are deemed to 

be covered by this review as part of the single PRC 

entity of which the named exporters are a part. 

10 If the above named company does not qualify 

for a separate rate, all other exporters of nonmalleable cast iron pipe fittings from the People’s 

Republic of China who have not qualified for a 

separate rate are deemed to be covered by this 

review as part of the single PRC entity of which the 

named exporters are a part. 

11 In the initiation notice that published on March 

30, 2010 (75 FR 15679), the review period for the 

above referenced case was incorrect. The period 

listed above is the correct period of review for this 

case. 

Countervailing Duty Proceeding 

None. 

Suspension Agreements 

None. 

During any administrative review 

covering all or part of a period falling 

between the first and second or third 

and fourth anniversary of the 

publication of an antidumping duty 

order under section 351.211 or a 

determination under section 

351.218(f)(4) to continue an order or 

suspended investigation (after sunset 

review), the Secretary, if requested by a 

domestic interested party within 30 

days of the date of publication of the 

notice of initiation of the review, will 

determine, consistent with FAG Italia 

v.United States, 291 F.3d 806 (Fed. Cir. 

2002), as appropriate, whether 

antidumping duties have been absorbed 

by an exporter or producer subject to the 

review if the subject merchandise is 

sold in the United States through an 

importer that is affiliated with such 

exporter or producer. The request must 

include the name(s) of the exporter or 

producer for which the inquiry is 

requested. 

For the first administrative review of 

any order, there will be no assessment 

of antidumping or countervailing duties 

on entries of subject merchandise 

entered, or withdrawn from warehouse, 

for consumption during the relevant 

provisional-measures ‘‘gap’’ period, of 

the order, if such a gap period is 

applicable to the POR. 

Interested parties must submit 

applications for disclosure under 

administrative protective orders in 

accordance with 19 CFR 351.305. On 

January 22, 2008, the Department 

published Antidumping and 

Countervailing Duty Proceedings: 

Documents Submission Procedures; 

APO Procedures (73 FR 3634). Those 

procedures apply to administrative 

reviews included in this notice of 

initiation. Parties wishing to participate 

in any of these administrative reviews 

should ensure that they meet the 

requirements of these procedures (e.g., 

the filing of separate letters of 

appearance as discussed at 19 CFR 

351.103(d)). 

These initiations and this notice are 

in accordance with section 751(a) of the 

Tariff Act of 1930, as amended (19 

U.S.C. 1675(a)), and 19 CFR 

351.221(c)(1)(i). 

Dated: May 25, 2010. 

John M. Andersen, 

Acting Deputy Assistant Secretary for 

Antidumping and Countervailing Duty 

Operations. 

[FR Doc. 2010–13049 Filed 5–27–10; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XU10 

Taking of Threatened or Endangered 

Marine Mammals Incidental to 

Commercial Fishing Operations; 

Issuance of Permit 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice. 

SUMMARY: In accordance with the 

Marine Mammal Protection Act 

(MMPA), NMFS hereby issues a permit 

for a period of three years to authorize 

the incidental, but not intentional, 

taking of individuals of the Central 

North Pacific (CNP) stock of endangered 

humpback whales by the Hawaii-based 

longline fisheries (deep-set and shallowset). This authorization is based on 

determinations that mortality and 

serious injury of humpback whales 

incidental to commercial fishing will 

have a negligible impact on the CNP 

stock of humpback whales, that a 

recovery plan has been developed, that 

a monitoring program is established, 

that vessels in the fisheries are 

registered, and that the MMPA does not 

require a take reduction plan (TRP) at 

this time. 

DATES: This permit is effective for a 3– 

year period beginning May 28, 2010. 

ADDRESSES: Reference material for this 

permit is available on the Internet at the 

following address: http:// 

www.fpir.noaa.gov. 

Copies of the reference materials may 

also be obtained from the Protected 

Resources Division, NMFS, Pacific 

Islands Region, 1601 Kapiolani Blvd., 

Suite 1110, Honolulu, HI, 96814 

Attention - Lisa Van Atta, Assistant 

Regional Administrator. 

FOR FURTHER INFORMATION CONTACT: Lisa 

Van Atta, Pacific Islands Region (808) 

944–2257 or Tom Eagle, Office of 

Protected Resources, (301) 713–2322, 

ext. 105. 

SUPPLEMENTARY INFORMATION: 

Background 

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

NMFS to allow the taking of marine 

mammals from species or stocks listed 

as threatened or endangered under the 

ESA (16 U.S.C. 1531 et seq.) incidental 

to 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 take reduction plan has 

been developed or is being developed 

for such species or stock. 

On February 24, 2010 (75 FR 8305), 

NMFS proposed to issue a permit under 


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MMPA section 101(a)(5)(E) to vessels 

registered in the Hawaii-based longline 

fisheries (deep-set and shallow-set) to 

incidentally take individuals from the 

CNP stock of humpback whales, 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 were considered for this permit. 

There has been one serious injury (in 

2006) of a CNP humpback whale in the 

Hawaii-based shallow-set longline 

fishery. 

No other mortality or serious injury of 

humpback whales has been recorded 

incidental to the longline fishery (a 

single fishery under MMPA section 118 

from 1994 until 2004, and separated 

into shallow-set and deep-set fisheries 

since 2004) since 1994. Consequently, 

authorization only for harassment and 

non-lethal injury of humpback whales is 

necessary incidental to the deep-set 

longline fishery. The proposed 

permitted lethal (serious injury or 

mortality) taking of CNP humpback 

whales incidental to the Hawaii-based 

longline fisheries was limited to the 

shallow-set fishery. Although humpback 

whales are taken incidental to fisheries 

in Alaskan, as well as Hawaiian, waters 

the proposed permit was limited to the 

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

future permitting procedure. 

Determinations for the Permit 

The following determinations and 

supporting information were included 

in notice of the proposed permit (75 FR 

8305, February 24, 2010). As described 

in detail in the documentation for the 

negligible impact determination (see 

ADDRESSES), NMFS estimated that 

mortality and serious injury of CNP 

humpback whales incidental to 

commercial fishing operations in HI and 

AK totaled 5.4 whales per year, which 

is 26.5 percent of the stock’s Potential 

Biological Removal (PBR) level. NMFS 

concluded that incidental mortality and 

serious injury at this total rate will have 

a negligible impact on CNP humpback 

whales. 

A recovery plan for humpback whales 

has been in place since November 1991. 

Accordingly, a recovery plan for 

humpback whales, including the CNP 

stock, has been developed. 

An observer program is in place for 

the Hawaii-based longline fisheries. The 

shallow-set fishery has 100 percent 

observer coverage. The deep-set fishery 

has at least 20 percent observer 

coverage. These observer levels are 

required under the ESA to protect 

threatened or endangered sea turtles 

taken incidental to longline fishing 

operations for Pacific pelagic species of 

fish. Furthermore, participants in the 

fishery are required to hold a Federal 

permit for fishing, and registration 

under MMPA section 118(c) has been 

integrated into the fishery permitting 

process. Accordingly, NMFS determines 

that, as required by MMPA section 118, 

a monitoring program is established for 

these fisheries and that vessels engaged 

in such fisheries are registered in 

accordance with such section. 

The purpose of a TRP is to reduce 

mortality and serious injury incidental 

to commercial fisheries, and only 

Category I or II fisheries are subject to 

take reduction requirements. Observer 

reports since 1994 confirm that there 

have been no serious injuries or 

mortalities of a CNP humpback whale in 

the Hawaii-based deep-set longline 

fishery. Recent levels of mortality in the 

shallow-set fishery (0.2 whales per year) 

are insignificant and average less than 1 

percent of the PBR of the CNP 

humpback whale stock. As a result of 

the current data, both the deep-set and 

shallow-set fisheries would be listed in 

the List of Fisheries as Category III 

fisheries, but for the higher level of 

taking of other marine mammals, not 

listed under the ESA. Finally, MMPA 

section 118(f) provides that if there is 

insufficient funding available to develop 

and implement a take reduction plan for 

stocks that interact with commercial 

Category I and II fisheries, the Secretary 

shall give highest priority to the 

development of TRP’s for species or 

stocks whose level of incidental 

mortality and serious injury exceeds 

PBR, those that have small population 

size, and those that are declining most 

rapidly. NMFS has evaluated 

availability of TRT funding for the 

humpback whale under the statutory 

criteria and determined that there is 

insufficient funding available for a TRT. 

Accordingly, NMFS determines that a 

TRP is not required by MMPA section 

118 at this time. (See response to 

Comment 9.) 

The National Environmental Policy 

Act (NEPA) requires Federal agencies to 

evaluate the impacts of alternatives for 

their actions on the human 

environment. NMFS and the Western 

Pacific Fishery Management Council 

(Council) have analyzed the impacts of 

fishing operations, including the deepset and shallow-set longline fisheries on 

the human environment. The current 

permit does not modify fishing 

operations; therefore, the analyses 

included in two recent Environmental 

Impact Statements (EIS) issued by 

NOAA evaluate the impacts of issuing 

the current permit. The Council and 

NMFS completed the Final 

Supplemental EIS for Amendment 18 to 

the Fishery Management Plan for 

Pelagic Fisheries of the Western Pacific 

Region in March 2009, and the Assistant 

Administrator for Fisheries (AA) signed 

the Record of Decision for this action on 

June 17, 2009. The Council and NMFS 

also completed a Final Programmatic 

EIS toward an Ecosystem Approach for 

the Western Pacific Region: From 

Species-Based Fishery Management 

Plans to Place-Based Fishery Ecosystem 

Plans in September 2009, and the AA 

signed the Record of Decision for this 

action on December 11, 2009. Because 

this permit does not modify any fishery 

operation and the effects of the fishery 

operations have been evaluated fully in 

accordance with NEPA, no additional 

NEPA analysis is required for this 

permit. 

Section 7 of the ESA requires NMFS 

to consult with itself when agency 

actions may affect threatened or 

endangered marine species, including 

marine mammals. NMFS has evaluated 

numerous actions related to 

implementation of fishery management 

plans for pelagic species by Hawaiibased fisheries, including the deep-set 

and shallow-set longline fisheries. The 

two most recent biological opinions 

(BiOp) related to deep-set and shallowset longline fisheries are (1) BiOp and 

Incidental Take Statement on the 

Continued Authorization of the Hawaiibased Pelagic, Deep-set, Tuna Longline 

Fishery Based on the Fishery 

Management Plan for Pelagic Fishing of 

the Western Pacific Region, October 4, 

2005; and (2) BiOp on Management 

Modifications for the Hawaii-based 

Shallow-set Longline Swordfish Fishery 

Implementation of Amendment 18 to 

the Fishery Management Plan for the 

Pelagic Fisheries of the Western Pacific 

Region, October 15, 2008. NMFS 

reviewed these BiOps and information 

related to issuing the permit and have 

concluded that issuing the permit 

would not modify the activities of the 

fishery nor the effects of these fishing 

activities on ESA-listed species, 

including humpback whales, in a 

manner that would cause adverse effects 

not previously evaluated and that there 

has been no new listing of species or 

designation of critical habitat that could 

be affected by the action. Accordingly, 

no additional analyses under the ESA 

are required at this time. 

Current Permit 

NMFS has made determinations 

under MMPA section 101(a)(5)(E) that 

(1) mortality and serious injury of CNP 

humpback whales incidental to 


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commercial fishing will have a 

negligible impact on the stock, (2) a 

recovery plan for humpback whales has 

been developed, (3) as required by 

MMPA section 118, a monitoring 

program has been established in the 

Hawaii-based longline fisheries, and 

vessels in the fishery are registered, and 

(4) no TRP is required by MMPA section 

118 to reduce mortality and serious 

injury of CNP humpback whales 

incidental to Hawaii-based longline 

fisheries. As required by MMPA section 

101(a)(5)(E), NMFS hereby issues a 

permit to vessels in the Hawaii-based 

longline fisheries (deep-set and shallowset) authorizing the taking of CNP 

humpback whales incidental to fishing 

operations. Taking of humpback whales 

incidental to the deep-set fishery is 

limited to non-lethal taking (harassment 

and injury). Taking of these whales 

incidental to the shallow-set fishery 

includes harassment and non-serious 

injury, as well as serious injury and 

mortality. If NMFS determines at a later 

date that incidental mortality and 

serious injury from commercial fishing 

is having more than a negligible impact 

on the CNP stock of humpback whales, 

NMFS may use its emergency authority 

under MMPA section 118 to protect the 

stock and may modify the permit issued 

herein. 

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

NMFS to publish in the Federal 

Register a list of fisheries that have been 

authorized to take threatened or 

endangered marine mammals. A list of 

such fisheries was published, as 

required, on October 26, 2007 (72 FR 

60814), which authorized the taking of 

threatened or endangered marine 

mammals to one Category I and two 

Category III fisheries along the west 

coast of the U.S. With issuance of the 

current permit, NMFS adds the Hawaiibased deep-set and shallow-set longline 

fisheries to this list (Table 1). 

TABLE 1. LIST OF FISHERIES AUTHORIZED TO TAKE THREATENED AND ENDANGERED MARINE MAMMALS INCIDENTAL TO

FISHING OPERATIONS. 

Fishery Category Marine Mammal Stock 

CA/OR Drift Gillnet Fishery I Fin whale, CA/OR/WA stock 

Humpback whale, ENP stock 

Sperm whale, CA/OR/WA stock 

CA lobster, prawn, shrimp, rock crab, fish pot III Fin whale, CA/OR/WA stock 

Humpback whale, ENP stock 

Sperm whale, CA/OR/WA stock 

WA/OR/CA crab pot III Fin whale, CA/OR/WA stock 

Humpback whale, ENP stock 

Sperm whale, CA/OR/WA stock 

HI deep-set (tuna target) longline/set line I Humpback whale, CNP stock 

HI shallow-set (swordfish target) longline/set line II Humpback whale, CNP stock 

Comments and Responses 

NMFS received letters containing 

comments from four organizations, the 

Marine Mammal Commission 

(Commission), the Hawaii Longline 

Association (HLA), the Council, and the 

Human Society of the United States 

(HSUS). Each letter contained multiple 

comments. 

Comment 1: The Commission briefly 

summarized NMFS’ findings for the 

proposed permit and recommended that 

NMFS comply with MMPA section 

101(a)(5)(E) by issuing the permit to the 

Hawaii-based deep-set and shallow-set 

longline fisheries to authorize the taking 

of CNP humpback whales incidental to 

their fishing operations. 

Response: NMFS agrees and is issuing 

the permit as required by the MMPA. 

Comment 2: The Commission noted 

that NMFS is currently conducting a 

status review of humpback whales 

under the ESA and recommended that 

NMFS reexamine the findings related to 

this permit if the status review indicates 

a new stock structure and factors that 

may compromise the conservation of 

those stocks. 

Response: NMFS agrees to re-evaluate 

these findings if the status review 

indicated a new stock structure 

modifying the current CNP humpback 

whale stock. 

Comment 3: HLA supported issuance 

of the proposed permit and supporting 

documentation. HLA’s rationale for its 

support included the following: 

(1) Abundance of the CNP stock has 

substantially recovered from depressed 

levels resulting from commercial 

whaling, noting that the estimated 

annual rate of increase is 7 percent; 

(2) Mortality and serious injury of the 

stock is less than the stock’s PBR, and 

there has been no detectable adverse 

impact on the growth and recovery of 

the stock; 

(3) Interactions between the Hawaiibased longline fisheries and the CNP 

stock are ‘‘extremely rare events≥; 

(4) There has been no observed 

mortality or serious injury of humpback 

whales incidental to the deep-set fishery 

and only a single observed interaction of 

a humpback whale with this fishery 

since 2004 with observer coverage of 20 

percent; and 

(5) There has been only one observed 

serious injury of a humpback whale in 

the shallow-set fishery only one 

interaction of any kind observed in this 

fishery with100 percent observer 

coverage since 2004. 

Response: NMFS agrees that the 

available information supports the 

finding of negligible impact required by 

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

Comment 4: HLA stated that NMFS 

used a worst case analysis for the 

negligible impact analysis and cited a 

decision by the Supreme Court (Bennett 

v. Spear, 520 U.S. 154, 176–77 (1997)) 

related to the ESA. HLA also asserted 

that NMFS’ analysis implementing 

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

exactly the kind of zealous, but 

misguided, conservation bias that the 

definition of ‘‘negligible impact’’ and the 

‘‘best science’’ requirements proscribe. 

Response: NMFS disagrees that the 

negligible impact analysis is a worst 

case analysis and that the analysis is 

inconsistent with the MMPA. NMFS 

maintains that the finding was based 

upon appropriate levels of precaution. 

Although NMFS used a ‘‘worst case’’ 


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estimate of abundance to calculate PBR 

for this stock (see Allen and Angliss, 

2010 Alaska Marine Mammal Stock 

Assessment Reports (SAR), 2009, NOAA 

Tech. Mem. NMFS-AFSC–206.), NMFS 

also acknowledged in the SAR and in 

the negligible impact determination for 

this permit that mortality may have 

been underestimated (minimum 

estimate). Estimates of mortality and 

serious injury were based upon 

strandings and observations of 

entangled or injured free-swimming 

humpback whales, and such data 

sources may be underestimates because 

not all entangled or injured whales are 

observed, identified to source, and 

recorded. 

HLA incorrectly applies court rulings 

under the ESA to agency findings under 

the MMPA. In the original passage of 

the MMPA, the associated House of 

Representatives Report stated the 

burden for permits as follows: ‘‘Before 

any marine mammal may be taken, the 

appropriate Secretary must first 

establish general limitations on the 

taking, and must issue a permit which 

would allow that taking. In every case, 

the burden is placed upon those seeking 

permits to show that the taking should 

be allowed and will not work to the 

disadvantage of the species or stock of 

animals involved. If that burden is not 

carried and it is by no means a light 

burden the permit may not be issued. 

The effect of this set of requirements is 

to insist that the management of the 

animal populations be carried out with 

the interests of the animals as the prime 

consideration.’’ (House of 

Representatives Report No. 92–707, 

December 4, 1971) 

For the provisions of MMPA section 

101(a)(5)(E), the associated House of 

Representatives Report stated that 

‘‘These permits may extend for a 

maximum of three years and may be 

issued only if the Secretary determines 

that the total of such [incidental to 

commercial fishing] taking will have a 

negligible impact on the species or stock 

. The Committee notes that the 

‘‘negligible impact’’ standard in the 

MMPA is more stringent than the ‘‘no 

jeopardy’’ standard in the ESA, and 

consequently provides more protection 

for endangered or threatened marine 

mammals under the MMPA than under 

the ESA.’’ (House of Representatives 

Report No. 103–439, March 21, 1994). 

Thus, a precautionary evaluation under 

the MMPA is appropriate. 

In this determination, NMFS 

evaluated uncertainties in abundance 

and in mortality and serious injury, 

considered the increase in population 

size in using Criterion 3 (PBR rather 

than 10 percent of the stock’s PBR) 

rather than the more stringent Criterion 

1 (10 percent of PBR), in concluding 

that mortality and serious injury of CNP 

humpback whales incidental to 

commercial fishing was having a 

negligible impact on the population (see 

History of Applying Negligible Impact 

in Fisheries above). Accordingly, NMFS 

maintains that the negligible impact 

determination contains an appropriate 

level of precaution as required by the 

MMPA. (Also, see Comment 8 and 

associated response.) 

Comment 5: The Council supported 

issuance of the proposed permit, noted 

that the Hawaii-based deep-set longline 

fishery had only 1 to 2 non-fatal 

interactions with humpback whales, 

noted that only one humpback whale 

had been observed seriously injured in 

the shallow-set longline fishery, and 

expressed that it was perplexed why 

NMFS waited so long to make a 

determination and issue a permit for 

taking CNP humpback whales 

incidental to HI-based longline fishing. 

Response: NMFS acknowledges the 

Council’s support for this permit. The 

delay in issuing this permit was related 

to several factors. First, a basin-wide 

abundance estimate was in progress as 

part of a large international study of 

humpback whales, and this basin-wide 

estimate had to be partitioned by stocks 

recognized under the MMPA. Second, 

as noted in the response to Comment 4, 

the requisite negligible impact 

determination must include the effect of 

the total mortality and serious injury of 

CNP humpback whales incidental to 

commercial fishing rather than 

incidental to the Hawaii-based fisheries 

only. Most mortality and serious injury 

has been documented in Alaska rather 

than Hawaii, this mortality had to be 

evaluated and reconciled among several 

documents, and fishery-caused 

mortality and serious injury had to be 

evaluated in the context of other 

human-related sources of mortality and 

serious injury (due to the comparison to 

PBR, which includes consideration of 

all removals other than natural 

mortalities). Third, staffing limitations 

required conservation activities with the 

Pacific Islands Region to be address in 

priority order, with activities directed 

toward species or stocks most at risk 

receiving highest priority. 

Comment 6: The Council also noted 

that the CNP humpback population is 

increasing, which could result in more 

interactions with the HI longline fleet. 

For this reason, NMFS must now 

consider providing the HI-based deepset fishery a permit including lethal as 

well as non-lethal taking. 

Response: NMFS disagrees that 

permitting lethal takes incidental to the 

deep-set longline fishery is appropriate 

at this time. Despite continued 

population growth in the CNP stock of 

humpback whales, the long history of 

no documented lethal taking and of very 

few takings of any kind suggests the 

potential for increased mortality and 

serious injury incidental to the deep-set 

fishery, despite population growth over 

the 3–year duration of the MMPA 

permit, is minimal. 

Comment 7: HSUS noted that NMFS 

included an incorrect Internet address 

for the supporting negligible impact 

determination in the notice of the 

proposed permit and located a draft 

negligible impact determination dated 

February 2010. HSUS noted the 

determination should be final before 

issuing a permit to a fishery. 

Response: NMFS acknowledges that 

the Internet address in the notice of the 

proposed permit was incorrect and that 

HSUS and three other organizations 

were able to locate the draft negligible 

impact determination. The negligible 

impact determination was available in 

draft form because the MMPA requires 

that such a determination be completed 

after public review and comment. 

Accordingly, NMFS made the draft 

available so that the public had the 

opportunity to provide additional 

information or insights before making a 

final determination. The final negligible 

impact determination will be released 

concurrent with issuance of the permit. 

Comment 8: NMFS used a minimum 

estimate of mortality and serious injury 

in its finding that mortality and serious 

injury of CNP humpbacks incidental to 

commercial fishing is having a 

negligible impact on the stock. HSUS 

noted that the take of large endangered 

whales in most fisheries is generally 

under-represented by fisher self-reports 

or limited observer coverage; that NMFS 

did not include entanglements observed 

in Hawaii in the 2009 SAR for the CNP 

stock of humpback whales, upon which 

the negligible impact determination was 

based. Furthermore, large whales may 

become entangled in gear and break free 

with gear attached; however, NMFS did 

not include information on the 

percentage of trips where there are 

reports of lost gear. 

Response: NMFS acknowledged (in 

the negligible impact determination and 

within the SAR) that the estimate of 

mortality and serious injury is 

considered a minimum estimate. The 

extent of lost fishing gear was not 

reported because it is not available for 

most fisheries; furthermore, gear may be 

lost due to many factors other than large 

whale entanglements. 

For several reasons, the finding of 

negligible impact is reasonable in spite 


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of the potential for underestimating 

mortality and serious injury. First, PBR 

is based upon conservative estimates of 

abundance and Rmax and has a 

recovery factor of 0.1. Second, the PBR 

approach was thoroughly tested in 

simulation trials and found to be robust 

to over-estimates of Rmax, 

underestimates of mortality, and low 

precision of abundance and mortality 

estimates. Finally, the annual rate of 

increase of the stock observed in Hawaii 

is reported in the SAR to be 7 percent. 

Accordingly, in spite of all factors, 

human-caused (including commercial 

fisheries) and natural, that may be 

affecting humpback whales in the North 

Pacific Ocean, this stock is increasing 

rapidly. For these reasons, NMFS 

maintains that the negligible impact 

determination is based upon reasonable 

precaution. (Also, see Comment 4 and 

the associated response.) 

Comment 9: HSUS stated that NMFS 

wrongly claims that the obligations to 

develop and implement a TRP are 

subject to the availability of funding. 

Rather, the MMPA requires NMFS to 

develop and implement a TRP for each 

strategic stock of marine mammals that 

interacts with fisheries that have 

frequent (Category I) or occasional 

(Category II) incidental mortality and 

serious injury of marine mammals. 

Further, MMPA section 101(a)(5)(E) 

clearly requires that a TRP regardless of 

what priority NMFS assigns its 

development must be in existence 

before incidental take may be 

authorized. If NMFS cannot develop or, 

at least initiate development of, a TRP 

because it lacks funding, it cannot 

authorize incidental take. It would be a 

simple matter for NMFS to convene a 

working group of the existing Take 

Reduction Team (TRT) for false killer 

whales, which includes the Hawaiibased longline fisheries, to recommend 

measures to reduce likelihood of 

interactions with humpbacks. 

Response: The CNP stock of 

humpback whales is strategic. The 

Hawaii-based longline fisheries are 

Category I (deep-set fishery) and 

Category II (shallow-set fishery). 

Moreover, the List of Fisheries for 2009 

and 2010 noted that CNP stock of 

humpback whales was the marine 

mammal species or stock for which the 

shallow-set fishery had occasional 

mortality and serious injury. 

However, NMFS’ analysis of the 

MMPA requirements and the available 

information does not support 

developing a TRP for humpback whales. 

The CNP stock of humpback whales is 

strategic because humpback whales 

were listed as an endangered species 

under the ESA due to the effects of 

commercial whaling that ceased before 

the MMPA was passed. Current humancaused mortality of CNP humpback 

whales is negligible, particularly 

mortality and serious injury resulting 

from longline fishing. 

MMPA 118(f)(2) provides that the goal 

of a TRP for a strategic stock is reduce 

within 6 months of implementation the 

serious injury and mortality in the 

course of commercial fishing operations 

to levels less than PBR. The long-term 

goal of the plan is to reduce, within 5 

years of its implementation, the 

incidental mortality and serious injury 

in the course of commercial fishing 

operations to insignificant levels 

approaching a zero mortality and 

serious injury rate. Not only does the 

best available information indicate that 

neither the deep-set nor shallow-set 

longline fishery incidentally kills or 

seriously injures humpback whales at 

levels that would require a TRP to be 

developed and implemented. The 2009 

SAR for the CNP stock of humpback 

whales, which became available after 

the 2010 LOF was prepared, shows that 

there is no mortality and serious injury 

of humpback whales incidental to the 

deep-set longline fishery, and the PBR 

for the stock is 20.4. Information 

discussed in the notice of the proposed 

permit and negligible impact 

determination shows that mortality and 

serious injury of CNP humpback whales 

incidental to the shallow-set longline 

fishery (0.2 whales per year) is less than 

1 percent of the PBR of the stock. 

Also, MMPA section 118(f) provides 

that if there is insufficient funding 

available to develop and implement a 

take reduction plan for stocks that 

interact with commercial Category I and 

II fisheries, the Secretary shall give 

highest priority to the development of 

TRP’s for species or stocks whose level 

of incidental mortality and serious 

injury exceeds PBR, those that have 

small population size, and those that are 

declining most rapidly. NMFS has 

evaluated availability of TRT funding 

for the humpback whale under the 

statutory criteria and determined that 

there is insufficient funding available 

for a TRT. Accordingly NMFS 

concludes that MMPA section 118 does 

not require a TRP to address mortality 

and serious injury of CNP humpback 

whales incidental to either the deep-set 

or shallow-set longline fishery at this 

time. 

A TRP for CNP humpback whales is 

a low priority, and MMPA section 118 

does not require a TRP in this case. 

However, NMFS considered, as HSUS 

suggested, including humpback whales 

within the scope of the TRP being 

developed for false killer whales. NMFS 

is aware that interactions between 

odontocetes, including false killer 

whales, and these Hawaii-based 

longline fisheries appear related to 

depredation of bait or catch in the 

fisheries. Humpback whale 

entanglement is more likely due to 

accidental encounters with fishing gear 

than depredation. Accordingly, NMFS 

concluded that including humpback 

whales within the scope of the TRP 

would likely detract from the focus of 

the TRP, which is to reduce mortality 

and serious injury of false killer whales 

incidental to the deep-set longline 

fishery. 

Dated: May 24, 2010. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. 2010–12916 Filed 5–27–10; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

International Trade Administration 

Civil Nuclear Trade Advisory 

Committee Public Meeting 

AGENCY: International Trade 

Administration, DOC. 

ACTION: Notice of Federal Advisory 

Committee Meeting. 

SUMMARY: This notice sets forth the 

schedule and proposed agenda of the 

next meeting of the Civil Nuclear Trade 

Advisory Committee (CINTAC). The 

members will discuss issues outlined in 

the following agenda. 

DATES: The meeting is scheduled for: 

Tuesday, June 15, 2010, from 1 p.m. to 

4 p.m. Eastern Daylight Time (EDT). 

ADDRESSES: The meeting will be held at 

the U.S. Department of Commerce, 

Herbert Clark Hoover Building, 1401 

Constitution Ave, NW., Washington, DC 

20230. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Sarah Lopp, Office of Energy & 

Environmental Industries, International 

Trade Administration, Room 4053, 1401 

Constitution Ave, NW., Washington, DC 

20230. (Phone: 202–482–3851; Fax: 

202–482–5665; e-mail: 

Sarah.Lopp@trade.gov). 

SUPPLEMENTARY INFORMATION: 

Background: The CINTAC was 

established under the discretionary 

authority of the Secretary of Commerce 

and in accordance with the Federal 

Advisory Committee Act (5 U.S.C. 

App.), in response to an identified need 

for consensus advice from U.S. industry 

to the U.S. Government regarding the 

development and administration of 


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