[Federal Register Volume 74, Number 81 (Wednesday, April 29, 2009)]
[Notices]
[Pages 19530-19536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9812]


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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.

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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 [email protected]; Robyn 
Angliss, Alaska Fisheries Science Center, 206-526-4032, email 
[email protected]; Gordon Waring, Northeast Fisheries Science 
Center, email [email protected]; or Jim Carretta, Southwest 
Fisheries Science Center, 858-546-7171, email [email protected].

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 human-caused 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 non-strategic 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

[[Page 19531]]

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 human-caused 
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 peer-reviewed 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

[[Page 19532]]

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 ice-dependent 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 human-caused 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 human-caused 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 co-managers 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, previously-proposed 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

[[Page 19533]]

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.

[[Page 19534]]

    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 peer-reviewed 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 mid- to 
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 
fisheries-related 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 
white-sided 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

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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, 
peer-reviewed 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 peer-review, 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, peer-reviewed 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 Hawaii-based 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 
stock-specific mortality and serious injury as new data become 
available and are peer-reviewed. 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.


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    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