[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Notices]
[Pages 81225-81232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32479]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XA018


60-Day Finding for a Petition To Conduct a Status Review of the 
Eastern North Pacific Population of Gray Whale Under the Marine Mammal 
Protection Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notification of a 60-day petition finding.

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SUMMARY: NMFS received a petition to conduct a status review under the 
Marine Mammal Protection Act (MMPA) for the purpose of designating the 
Eastern North Pacific stock of gray whales (Eschrichtius robustus) as 
depleted. NMFS finds that the petition does not present substantial 
information indicating that a status review may be warranted.

DATES: This petition finding was made on December 20, 2010.

ADDRESSES: A copy of the petition and a complete list of references 
cited in this notice will be available on the Internet at the following 
address: http://www.nmfs.noaa.gov/pr/.

FOR FURTHER INFORMATION CONTACT: Dr. Shannon Bettridge or Dr. Thomas C. 
Eagle, Office of Protected Resources, Silver Spring, MD, (301) 713-
2322.

SUPPLEMENTARY INFORMATION: 

Background

Statutory Guidance

    Section 3(1)(A) of the Marine Mammal Protection Act (MMPA) (16 
U.S.C. 1362(1)(A)) defines the term, ``depletion'' or ``depleted'', to 
include any case in which `` * * * the Secretary, after consultation 
with the Marine Mammal Commission and the Committee of Scientific 
Advisors on Marine Mammals * * * determines that a species or a 
population stock is below its optimum sustainable population.'' Section 
3(9) of the MMPA (16 U.S.C. 1362(9)) defines ``optimum sustainable 
population [(OSP)] * * * with respect to any population stock, [as] the 
number of animals which will result in the maximum productivity of the 
population or the species, keeping in mind the carrying capacity [(K)] 
of the habitat and the health of the ecosystem of which they form a 
constituent element.'' NMFS' regulations at 50 CFR 216.3 clarify the 
definition of OSP as ``a population size which falls within a range 
from the population level of a given species or stock which is the 
largest supportable within the ecosystem [i.e., K] to the population 
level that results in maximum net productivity.'' Maximum net 
productivity level (MNPL) is the population abundance that results in 
the greatest net annual increment in population numbers resulting from 
additions to the population from reproduction, less losses due to 
natural mortality.
    The MMPA provides for interested parties to submit a petition to 
designate a population stock (hereafter ``stock'') of marine mammals as 
depleted. Section 115(a)(3) of the MMPA (16 U.S.C. 1383b(a)(3)) 
requires NMFS to publish a notice in the Federal Register that such a 
petition has been received and is available for public review. Section 
115(a)(3)(B) (16 U.S.C. 1383b(a)(3)(B)) of the MMPA requires NMFS to 
publish a notice in the Federal Register as to whether the petition 
presents substantial information indicating that the petitioned action 
may be warranted within 60 days of receiving a petition. NMFS and the 
U.S. Fish and Wildlife Service define ``substantial information'' under 
the petition procedural regulations of the Endangered Species Act as 
the amount of information that would lead a reasonable person to 
believe that the measure proposed in the petition may be warranted (see 
50 CFR 424.14(b)). Given that the identical term is used in the MMPA 
with reference to petitioned actions, NMFS interprets ``substantial 
information'' under MMPA using the same parameters as those used under 
the ESA.

Status of Gray Whales Under the Law

    Gray whales were listed among several genera of baleen whales as 
endangered under the Endangered Species Conservation Act in June 1970, 
the precursor to the Endangered Species Act (ESA) (35 FR 8491, June 2, 
1970). The species was subsequently listed as endangered on the List of 
Endangered and Threatened Wildlife and Plants (the List) under the ESA 
in 1973. All marine mammal species listed under the ESA are defined as 
``depleted'' under the MMPA. NMFS completed its first status review of 
gray whales in 1984 and concluded that the Eastern North Pacific (ENP) 
stock was not in danger of extinction. That review recommended changing 
the status of the ENP stock of gray whales from endangered to 
threatened, however, no further action was taken at that time (49 FR 
44774, November 9, 1984).
    NMFS began a subsequent status review of gray whales and other 
listed species in 1990, and completed a formal report of the review and 
made it available to the public on June 27, 1991 (56 FR 29471). NMFS 
published a proposed rule to delist the ENP stock of gray whales on 
November 22, 1991 (56 FR 58869). On January 7, 1993, NMFS announced its 
final determination that the stock was no longer in danger of 
extinction and was not likely to become endangered in the foreseeable 
future, and concluded that the stock was 60 to 90 percent of K (within 
the accepted range of abundances for the stock's OSP) and should be 
removed from the List (58 FR 3121). The U.S. Fish and Wildlife Service 
removed the ENP stock of gray whales from the List on June 16, 1994 (59 
FR 31094). As required by the ESA, NMFS conducted a status review five 
years after the delisting, and convened a workshop on March 16-17, 
1999, in Seattle, WA. The workshop participants concluded that there 
was no reason to reverse the decision to remove the stock from the 
List. This determination was based on the continued growth of the 
population (at that time, increasing at 2.5 percent annually and with 
abundance estimates well above 20,000) and the absence of evidence of 
any imminent threats to the stock. As recommended by the workshop

[[Page 81226]]

participants, NMFS has continued to conduct assessments of the stock.
    On March 28, 2001, NMFS received a petition to list the ENP stock 
of gray whales as threatened or endangered under the ESA to protect the 
stock from substantial threats. NMFS found that the petition presented 
no substantial information to warrant the listing, and published its 
90-day finding on June 14, 2001 (66 FR 32305).

The Current Petition

    On October 21, 2010, NMFS received a petition from the California 
Gray Whale Coalition (Petitioners) to designate the ENP gray whales as 
a depleted stock under the MMPA. Pursuant to Section 115(a)(3)(A) of 
the MMPA, NMFS published a notice in the Federal Register that the 
petition had been received and was available for public review for a 
15-day comment period (75 FR 68756). NMFS subsequently received 
requests by the Petitioners and others to extend the public comment 
period to provide interested parties additional time to review the 
petition, compile additional materials, and prepare comments for 
submission to the agency. NMFS extended the public comment period until 
December 8, 2010 (75 FR 70903).
    Petitioners request a status review of the ENP stock of gray whales 
and assert `` * * * that the [ENP] gray whale population is in decline 
sufficient to classify the stock as depleted, as defined in the MMPA, 
thereby requiring the preparation of a conservation plan to restore the 
stock to its optimum [sustainable] population.''
    In support of this assertion, the Petitioners cite scientific 
literature to present estimates of historical abundance derived from a 
number of approaches and suggest that current abundance is below MNPL, 
which is the lower bound of OSP. The Petitioners also suggest several 
factors that may contribute to the alleged decline that caused the 
stock to be possibly depleted, provide comments on information 
available for assessing the status of the stock and reported in marine 
mammal stock assessment reports (SARs), and provide an alternative 
model to assess the status of the stock. There were also comments in 
the petition on previous SARs (e.g., 2008 SAR) and on agency actions 
other than reviewing the status of the gray whale stock (e.g., 
incidental take authorization for an open water marine seismic survey, 
75 FR 49710, August 13, 2010). The comments on these documents, on 
previous SARs or on documents not related to the status of ENP gray 
whales and responses to these comments are not included in this 
document because the comments are not related to the petitioned action. 
In this determination notice, NMFS discusses the concept of 
``depleted'' as defined by the MMPA, evaluates the information included 
in the petition supporting the assertion that the ENP gray whale stock 
is depleted, addresses other assertions in the petition, and concludes 
that the petition does not present substantial information indicating 
that a status review of ENP gray whales may be warranted.

Status of the ENP Gray Whale Stock

    The petition presents three assertions that the stock is below its 
OSP and, therefore, that a status review may be required. The 
assertions are as follows:
    (1) K for ENP gray whales is higher than previously reported, and 
the current abundance is below 60 percent of the alternative estimate 
of K;
    (2) A non-parametric model suggests the population increased from 
the late 1960s until the mid-1980s and has been decreasing since then; 
and
    (3) Abundance estimates reported in Laake et al. (2009) show that 
abundance estimates since 2000 are below the abundance estimate from 
1994 when ENP gray whales were removed from the list of endangered 
species.
    Below, NMFS addresses each of the Petitioners' assertions 
suggesting a status review may be required.
    Carrying capacity higher than reported: In support of their first 
assertion, the Petitioners attribute a quote to a document by NMFS 
scientists (Barlow et al., 1995) that pre-exploitation (historical) 
abundance is generally used as the most readily available proxy for K. 
The citation was not included in the reference section of the petition. 
However, a similar statement (but not a direct quote) was contained in 
a petition to the U.S. Fish and Wildlife Service in 2001 by the Center 
for Biological Diversity to designate Alaska sea otters as depleted 
(see http://alaska.fws.gov/media/sotter/Pet2.pdf). In the 2001 
petition, Barlow et al. (1995) was identified as a NMFS publication 
containing guidelines for preparation and other information related to 
SARs. Barlow et al. (1995) does not include the quoted statement; 
however, NMFS agrees that comparing current to pre-exploitation 
abundance has, indeed, been used most often in assessing the status of 
marine mammal stocks relative to their OSP.
    Historical population levels may be the best scientific information 
available in the cases where it has been used to evaluate the status of 
marine mammal populations with respect to a stock's current OSP. The 
following actions used historical abundance as a proxy for K: 
authorizing the taking of dolphin populations in the Eastern Tropical 
Pacific Ocean (ETP); depletion determinations for bowhead whales, Cook 
Inlet beluga whales, Southern Resident and AT1 killer whales, and two 
stocks of dolphins in the ETP; northern fur seals; and status reviews 
of northern fur seals and ENP gray whales. In each of these cases 
historical abundance was the best available information allowing NMFS 
to estimate K; therefore, it was used. Use of historical abundance does 
not indicate that historical abundance is the only approach to estimate 
K.
    NMFS submitted a legislative proposal to Congress in 1992, which, 
among other things, stated NMFS' intention to use current rather than 
historical K in its OSP analyses. Drafts of this proposal were made 
available for public review and comment. Some comments indicated that 
the use of current K would not provide adequate protection for marine 
mammal populations because human alteration of marine ecosystems could 
result in reduced K for the affected stocks of marine mammals, and 
other comments supported use of current K. In the 1992 legislative 
proposal, NMFS stated, ``Public comments were divided over whether 
historic [K] (before interference by human activities) or current [K] 
should be used to determine K under the proposal. NMFS has determined 
that re-creating historical [K] is not possible in most cases and would 
rely on current [K], absent human exploitation, to determine OSP. NMFS 
is sensitive to concerns that current [K] could shrink due to a number 
of circumstances and lead to tolerance of ever lower numbers of marine 
mammals within OSP. Consequently, NMFS is proposing to factor habitat 
degradation into the determination of OSP. Where human-caused, 
correctable degradation of the marine environment has occurred, OSP 
levels would reflect K modified (increased) by habitat restoration 
efforts. If data are available, NMFS would determine K based on the 
long-term equilibrium population that can be supported under reasonable 
and proper use of the marine environment and living marine resources.'' 
NMFS reiterated this policy in 2008 and 2009 in responses to comments 
on the 2007 and 2008 SARs (73 FR 21111, April 18, 2008, see response to 
comment 32; 74 FR 19530, April 29, 2009, see response to comment 21).
    More recently, Wade (2002) reported that there was sufficient 
information in the abundance and mortality estimates

[[Page 81227]]

of ENP gray whales as described below to estimate the current K and 
MNPL of this stock using well-documented population models to estimate 
key parameters in the status of the ENP gray whale stock. Wade (2002) 
analyzed abundance estimates from 1967/68 through 1995/96 and catch 
records from 1966 through 1995 to determine that the stock was within 
its OSP. Wade and Perryman (2002) used similar methods to Wade (2002) 
to update the status assessment of ENP gray whales by including 
abundance surveys through 2001/02 and reported catch through 2002. 
These updated analyses confirmed that ENP gray whales were within OSP 
levels. These analyses were incorporated into the marine mammal stock 
assessment reports when the reports were updated in 2007 (Angliss and 
Outlaw, 2008).
    Subsequently, Laake et al. (2009) reanalyzed all previous abundance 
data using methods consistent with Wade (2002) and Wade and Perryman 
(2002) and incorporated abundance surveys through 2006/07 to provide a 
new time series of abundance estimates. Punt and Wade (2010) used 
methods similar to those described by Wade (2002) to analyze these 
updated and revised abundance estimates and incorporated catch records 
from 1846 through 2008 to conclude that ENP gray whales remained within 
their OSP. Because Punt and Wade (2010) estimated K over the time 
period of the abundance estimates, MNPL, and current abundance directly 
from the data, NMFS uses Punt and Wade (2010) as the best information 
available on the status of the stock and on the key parameters (K, 
MNPL, and current abundance of ENP gray whales). The estimate of K in 
Punt and Wade (2010) is consistent with NMFS' practice of using current 
K, corrected for human-caused degradation of the environment, in 
evaluating a stock relative to its OSP. Where a more direct estimate of 
current K is not available, the agency has used historical abundance as 
a proxy for K.
    Even if historical abundance had been the best information 
available to estimate K, the petition did not present substantial 
information suggesting a status review is warranted. The Petitioners 
included two approaches to estimate historical abundance in their 
assertion that current abundance was below MNPL. First, the Petitioners 
cited Alter et al. (2007) to suggest that K for ENP gray whales was 
96,000 gray whales and the current abundance is less than 60 percent of 
this estimate of K. The Petitioners did not note that the analysis in 
Alter et al. (2007) resulted in an estimate of total historical 
abundance which likely represents both ENP and Western North Pacific 
gray whale stocks. Furthermore, as NMFS has reported previously (73 FR 
21111, April 18, 2008; 74 FR 19530, April 29, 2009) the methods in 
Alter et al. (2007) are subject to scientific debate and have not been 
accepted as supporting a depletion designation. This method relies on 
the use of several parameters, including mutation rates and the ratio 
of effective population size to census size, which are difficult to 
measure and which strongly influence the estimate of historic 
abundance. In addition, it is difficult to determine the temporal and 
spatial scale over which the historic abundance estimate is relevant. 
Alter et al. (2007) noted that an important question in evaluating the 
current status of ENP gray whales is whether K has declined over time 
due to changes in the environment and that, if K has declined, the 
stock may have reached K today. Due to these weaknesses in Alter et al. 
(2007), NMFS does not consider 96,000 as a reasonable estimate of K for 
ENP gray whales.
    For its second approach to estimating historical abundance, the 
Petitioners stated that the upper 95 percent confidence limits for back 
calculations of historical abundance were as high as 60,000 to 70,000 
whales. Because the current abundance was below 60 percent of these 
approximations for K, they concluded the stock was depleted. The 
Petitioners, however, failed to justify why using extreme tails of a 
probability distributions for estimates of historical abundance 
represented the best, or even a reasonable, proxy for examining 
depletion level or status relative to K. These extremes are not 
reasonable estimates of K and are not a substantial indication that a 
status review is warranted. In addition, Punt and Wade (2010) 
considered 70,000 as the upper extreme in their starting point as an 
estimate of K (i.e., the upper limit of the prior distribution in their 
analysis); however, after using the data to inform the analysis, Punt 
and Wade (2010) estimated K as 25,808 (posterior mean).
    Nonparametric model: The Petitioners' second major argument 
supporting their assertion that the ENP gray whale stock is depleted is 
illustrated by Figure 1 in the petition. This figure shows current and 
previous point estimates of abundance from Laake et al. (2009) with 
lines generated by a nonparametric smoothing function superimposed over 
the estimates. The petition states that this nonparametric approach 
uses the data to determine the underlying linear or nonlinear trend 
without having to assume any specific functional form and concludes 
that the figure shows the population increased from the 1960s until 
then mid 1980s and has been decreasing steadily ever since.
    There are two major weaknesses with the Petitioners' analysis as 
evidence that the ENP gray whale stock is below its OSP. First, their 
model was fit to point estimates of abundance only, despite abundance 
estimates being subject to considerable uncertainty as a result of 
statistical inference from statistical analysis of observational data. 
Ignoring important uncertainties has the potential to bias results. 
Second, this nonparametric approach is an inappropriate test to 
evaluate the status of marine mammal populations because it ignores key 
concepts in population biology that are critical to understanding stock 
status under the MMPA, such as net productivity rate, MNPL, and K.
    Even if the simple smoothing function included in the petition was 
an adequate method to evaluate the status of the ENP gray whale stock, 
the information included in their presentation of this alternative 
model is insufficient to support the Petitioners' assertion that the 
ENP gray whale stock is depleted. The maximum population abundance 
illustrated in the Petitioners' line fitted to the current time series 
of abundance estimates appears to be about 23,000 gray whales in about 
1985. The smoothing function shows the latest abundance (in about 2006) 
to be about 17,000 gray whales. If the maximum value actually 
represented K, the 2006 abundance would be about 73 percent of K, far 
above the usually-accepted criterion for OSP: 60 percent of K. Thus, 
using the petition's own model, the stock would be within its OSP.
    Because the alternative model included in the petition did not show 
that the ENP gray whale stock had declined below MNPL and due to the 
two weaknesses described above, this alternative model is not 
reasonable evidence that the abundance of the stock may be below OSP.
    In contrast, Punt and Wade (2010) used an age- and sex-structured 
population dynamics model, which estimated key parameters in the status 
of ENP gray whales and incorporated uncertainty from input parameters 
and data. A catastrophic mortality event in Punt's and Wade's (2010) 
analysis incorporated an analysis of the impact of the elevated 
strandings observed in 1999 and 2000 and was, therefore, an improvement 
over more standard population assessment models.
    Abundance below 1994 levels: The final argument supporting the 
petition's

[[Page 81228]]

assertion that the ENP gray whale stock is depleted includes a 
statement that abundance estimates since 2000 are lower than in 1994 
when the stock was removed from the list of endangered species 
(calculated by Laake et al. (2009) as 19,126 and 20,103 respectively). 
The petition notes that the mean abundance level over the interval 1967 
through 2006 in Laake et al. (2009) is below the 1994 level and also 
below 60 percent of K when K is 60,000 to 70,000.
    These statements are unrelated to assessing the status of ENP gray 
whales under the MMPA. In the MMPA the definition of ``depleted'' 
includes that the abundance is below the MNPL. The definition does not 
refer to the abundance when the stock was removed from the list of 
endangered species. That is, the MMPA requires only an evaluation 
whether a stock is above or below its MNPL in a status review. 
Accordingly, this final argument in the petition adds no credible 
support to the petition's assertion that the ENP gray whale stock is 
depleted. The best available scientific information (Punt and Wade, 
2010) shows that the ENP gray whale stock is above its MNPL.

Additional Points in the Petition

Causes of Decline

    The Petitioners present a model illustrating that this stock has 
been declining since 1985, and assert that the causes of decline 
include ``PBR has resulted in over-harvesting'', collapse of cow/calf 
numbers, predation by transient killer whales, and changes or 
reductions in prey availability. Although these causes of decline may 
have relevance to a status review under the MMPA if the abundance of 
the stock were below the MNPL, the current abundance of the ENP gray 
whale stock is above the MNPL. However, each of these causes of decline 
is addressed below.
    Inflated PBR: The Petitioners suggest that PBR for the stock (set 
at 417 per year in the 2008 SAR) is too high, and the established quota 
has resulted in over-hunting, presumably from the aboriginal 
subsistence hunt that represents the only catches of gray whales since 
the PBR approach was implemented. The petition's evidence for this 
assertion is that the 2002 SAR did not contain revised abundance 
estimates reported in Laake et al. (2009), and that a PBR calculated 
with a recovery factor of 0.1 would have resulted in a lower PBR that 
the one reported in 2002, which used a recovery factor of 1.0.
    The assertion that PBR caused the stock to be in decline cannot be 
substantiated by the petition because the petition contained no 
credible evidence that the stock had declined or was below OSP. PBR is 
one of many methods to estimate a sustainable level of removals of 
individuals from a marine mammal stock and is required by the MMPA. The 
calculation could not cause a decline even if a decline had occurred. 
Furthermore, the 2002 SAR could not be expected to include an analysis 
that became available in 2009. Finally, the PBR is not used to 
establish the aboriginal catch limit for ENP gray whales and, 
therefore, could not result in a subsistence quota for ENP gray whales. 
This catch limit is established by the International Whaling Commission 
(IWC) and is based on a recommendation by the IWC's Scientific 
Committee following analysis using the Strike Limit Algorithm (SLA), a 
model that is more sophisticated than the model used as the basis for 
PBR. The SLA and the data analyzed in establishing the aboriginal 
subsistence quote were scrutinized by the Scientific Committee and 
fully evaluated before their recommendation to the IWC. IWC procedures 
include periodic review of the dynamics of the affected large whale 
stocks to ensure that catch levels are sustainable; the next such 
review for the ENP gray whale stock is scheduled for June 2011. As a 
result, the Petitioners' assertion that PBR has led to over-harvesting 
is incorrect.
    Collapse of cow/calf numbers: The petition asserts that counts of 
calves in the lagoons of Baja California, Mexico, demonstrate a major 
collapse of the stock. These counts are informative about use of the 
lagoon systems. However, counts within these specific lagoons (part of 
the breeding and calving range of ENP gray whales) do not estimate 
annual calf production for the stock because some unknown and variable 
numbers of cows with calves do not enter the lagoons, and effort for 
the counts reported in the petition is not systematic in all lagoons 
throughout the season. The best estimate of calf production for this 
stock is based on counts of northbound calves passing the Piedras 
Blancas Light Station (located near San Simeon, CA) because virtually 
the entire stock's calves pass within sight of land at this location. 
Accordingly, analyses of Piedras Blancas data indicate that the number 
of northbound calves is highly variable between years (Perryman et al., 
2010). In addition, NMFS has found that the majority of the variability 
in estimates can be explained by the timing of the melt of seasonal ice 
in the Northern Bering Sea (Perryman et al., 2002a, 2002b). Although 
the petition correctly states that the calf counts throughout the 
calving range, including the north-bound migration, of ENP gray whales 
have been low the last four years (2007-2010), Perryman et al. (2010) 
note that the 17-year time series of estimates of northbound calves 
from Piedras Blancas does not support the assertion of a negative trend 
or ``collapse'' in reproduction as described by the Petitioners.
    Predation by transient killer whales: The petition states that 
mortalities caused by predation by transient killer whales are not 
included in calculation of PBR, in population assessments, or in SARs. 
Further, the Petitioners present the results of a model that indicate 
the potential for killer whale predation to drive the population to 
extinction at 35 percent predation of annual calf production.
    Calculation of PBR incorporates natural mortality, including 
predation by killer whales, even though PBR only includes the number of 
removals from human-caused mortality. Natural sources of mortality are 
not identified separately in SARs because the MMPA directs that the 
SARs account for human-caused mortality and serious injury. Because 
killer whale predation is a natural mortality factor, such mortality 
would be incorporated into the net productivity rate, which is the per 
capita rate of increase in a stock resulting from additions due to 
reproduction, less losses due to mortality (MMPA section 3(26)).
    Also, because killer whales are a natural part of the marine 
ecosystem, the extent of predation is one factor affecting the K of the 
environment for gray whales. The petition's model output (Figure 1 in 
the petition) shows that gray whale abundance increased between the 
late 1800s and the mid-1900s but does not explain how killer whale 
predation was addressed during these periods of population increase. 
Through MNPL and K, which are used in the scientific basis for 
calculating PBR (the logistics model), killer whale predation is, in 
fact, incorporated into the PBR.
    Changes or reductions in prey availability: The Petitioners cite a 
series of statements and documents that present observations and 
hypotheses regarding the potential impacts of climate change on the ENP 
stock of gray whales. Concentrations of feeding gray whales are now 
seen farther north than reported in the 1980s, and there has likely 
been a shift in distribution of their primary prey. Gray whales are

[[Page 81229]]

opportunistic feeders, and it is unclear how the changes in the Arctic 
environment are going to affect this stock. A loss of sea ice could 
help gray whales (for example, by allowing earlier access to foraging 
habitat) or hurt gray whales (for example, through a reduction in 
benthic production from differing ice-dynamics), so the effect of 
climate change on gray whales cannot be predicted at this time. NMFS 
agrees with the Petitioners' suggestions that the relationship between 
the changing Arctic ecosystem and the overall condition of ENP gray 
whales is an area that would benefit from careful study. If a future 
decline of gray whales is linked to climate change, a determination 
would need to be made about whether the causal mechanisms were natural 
or human-caused. However, the best available scientific information as 
reported by Punt and Wade (2010) shows that the ENP gray whale stock 
remains with its OSP.

Draft 2010 Stock Assessment Report

    The petition contains comments about the draft 2010 marine mammal 
SAR. It states: ``NMFS fails to indicate the 2006/07 survey was not an 
abundance estimate as required under s. 117 of the MMPA. There are no 
provisions in the MMPA which support using the results of Field Studies 
to legitimise (sic) SARs.''
    These statements are incorrect, and neither statement is relevant 
to the status of the ENP gray whale stock. The 2006/2007 survey was a 
full abundance estimation survey. Field and analysis methods, and raw 
count data, are detailed in a NOAA/AFSC Processed Report (Rugh et al., 
2008). Updated estimates and methodologies for this survey are 
presented in Laake et al. (2009). MMPA section 117 requires NMFS to use 
the best information available to prepare SARs. In the case of ENP gray 
whales, the best information available includes results of field 
studies.
    The petition also states, ``The results of the most recent 
abundance estimate, (as required under s[ection] 117 of the MMPA) 
undertaken in the 2009/2010 season, have not been published.'' This 
statement is correct with respect to the abundance estimate from the 
2009/10 survey not being included in the SAR. The statement is 
incorrect in stating that MMPA section 117 requires the 2009/2010 
estimate to be included. Rather, MMPA section 117 requires that SARs be 
prepared using the best scientific information available. Estimates 
from the 2009/2010 survey were not available when the draft 2010 SAR 
was prepared. NMFS anticipates updating the time series of abundance 
estimates so the more recent estimates are available in spring 2012 and 
would be included in the next update of the ENP gray whale SAR.

Population Collapse

    The Petitioners point to the Unusual Mortality Event of 1999-2000 
and assert that the agency ignored this decline in gray whale 
abundance. This assertion is inaccurate.
    The most recent assessment of the ENP gray whale stock status (Punt 
and Wade, 2010) incorporated analyses that accounted explicitly for the 
decreased abundance caused by the 1999-2000 mortality event. 
Specifically, Punt and Wade showed that a model including the 
``catastrophic mortality event'' in 1999-2000 fit the abundance data 
better than a ``no-event'' analysis. Punt and Wade (2010) estimated 
that 15.3 percent of the non-calf population died in each of the years 
in which a catastrophic mortality event occurred, compared to 2 percent 
in a normal year. Punt and Wade (2010) also estimated that the 
population fell from being about 99 percent of K in 1998 to about 83 
percent in 1999 and 71 percent in 2000 and increased to about 92 
percent of K in 2009. Estimates of the number of whales that died in 
1999 and 2000 were approximately 3,303 (90 percent probability interval 
1,235-7,988) and 2,835 (90 percent probability interval 1,162-6,389), 
respectively, for a total of 6,138 (2,398-14,377). Results of Punt and 
Wade (2010) were included in the draft 2010 SAR and are included in the 
current determination on the petition and status of the ENP gray whale 
stock.
    With respect to fluctuations in population abundance, the draft 
2010 SAR (Allen and Angliss, 2010) notes that ENP gray whale stock may 
rise and fall as the population adjusts to natural and human-caused 
factors affecting K of the environment and that increased 
susceptibility to environmental variability are likely. Allen and 
Angliss (2010) concluded that such year-to-year fluctuations in 
abundance and increased susceptibility to environmental variability are 
consistent with a stock approaching its K.

Migration Route Disruption

    The Petitioners claim that wave energy projects along the west 
coast could block the migratory pathway of gray whales and have the 
potential to expose newborn calves born outside of the Baja lagoons to 
higher level of predation. Such exposure, however, has not yet occurred 
and, therefore, has not affected the status of the gray whale stock.
    In 2007, NOAA/NMFS facilitated a workshop to assess the effects of 
wave energy development in the Pacific Northwest on marine habitats. An 
expert panel (Boehlert et al. 2008) considered potential risks to 
marine mammals, including gray whales, and concluded that mooring cable 
design (slack vs. taut, horizontal vs. vertical, diameter, density) is 
the agent or stressor most likely to affect the magnitude of cetacean 
entanglement incidents for large whales. The panel noted that cable 
design is even more critical for slack ``attendant'' lines attached to 
adjacent buoy lines, which may be used (picked up) by service vessels 
to secure the wave energy buoy. Similar, but smaller, ``double'' buoys 
on commercial crab pots used in waters off Oregon are the greatest 
present risk to gray whales from commercial fisheries, which cause 
mortalities and serious injuries at insignificant levels approaching a 
zero mortality and serious injury rate. Presently, there is a 
relatively high level of uncertainty and low level of scientific 
agreement concerning the number of energy projects, various project 
designs, and the potential impacts of wave energy generating devices on 
gray whales (and cetaceans in general). That said, offshore wave energy 
projects may or may not pose significant risks to gray whales. However, 
without more case specific technical details (e.g. offshore site 
location, buoy configuration, cable design, mooring systems), it is not 
possible to properly gage their potential impacts.
    If the development occurs, project construction and operation will 
be subject to the prohibition on taking marine mammals and the 
exception on taking small numbers of marine mammals incidental to 
activities other than commercial fishing in MMPA section 101(a)(5). 
Before NOAA/NMFS could authorize incidental takes of these projects, 
the agency would have to make a finding that the action would have no 
more than a negligible impact on affected stocks of marine mammals.

Comments and Responses

    NMFS received more than 1,400 comments on the petition. Most of 
these comments expressed general support for the petition or for whale 
conservation and did not contain substantive information; therefore, 
those comments are not summarized here. Several organizations, 
including the Marine Mammal Commission, the Makah Tribe, the Animal 
Welfare Institute (AWI), the Center for Biological Diversity (CBD) and 
the Natural Resources Defense Council (NRDC) made substantive

[[Page 81230]]

comments and supported the petitioned request for a status review or 
recommended that the petition did not contain substantial information 
indicating that a status review may be warranted. Summaries of key 
points in these substantive comments and responses to these comments 
are included below.
    Comment 1: AWI and CBD suggested that the standard of review for 
the 60-day determination is whether or not the petitioned action 
(requesting a status review) may be warranted. The petition does not 
have to contain substantial information to indicate that a depleted 
designation is warranted.
    Response: NMFS followed the requirements of MMPA section 115 to 
evaluate the petition. NMFS considers Punt and Wade (2010), which was 
based in part upon the updated analyses of Laake et al. (2009), as the 
best scientific information available regarding the status of ENP gray 
whales with respect to the stock's OSP. The petition did not contain 
any evidence to suggest that any other scientific information was a 
better evaluation of the status of ENP gray whales than the evaluation 
presented in Punt and Wade (2010). As NMFS noted above, and as 
recommended by the Commission (see comment 8), NMFS does not find a 
status review is warranted.
    Comment 2: CBD and AWI noted that there are many estimates for 
historical abundance, and some of these estimates are higher than those 
considered by NMFS. It is unknown whether the ``one-size-fits-all'' 
approach of 60 percent of K is an accurate estimate for MNPL. Alter et 
al. (2007) estimate a current K for gray whales as about 90,000 based 
upon a simple estimate of the amount of food available for gray whales 
in the Bering and Chukchi Seas. AWI concluded that until a status 
review of ENP gray whales is completed, NMFS cannot and should not 
settle on an estimate of the actual K of ENP gray whale habitat.
    Response: As noted in the discussion of the petition, NMFS finds 
that there is no need to use the highest possible extremes as 
reasonable estimates for historical abundance as a proxy for K. 
Furthermore, NMFS notes that its assessment of the status of ENP gray 
whale stock is not based upon a comparison of current abundance to a 
fixed portion (60 percent) of historical abundance as an estimate of 
MNPL. Rather, NMFS uses Punt and Wade (2010) as the evidence supporting 
a determination that the ENP gray whale stock is within its OSP and, 
therefore, not depleted. Punt and Wade (2010) used all available 
abundance estimates and catch records to estimate that MNPL for this 
stock is 0.656 (with a 90 percent confidence interval of 0.532 to 
0.725) of K.
    Although Alter et al. (2007) calculated that the potential food 
available for gray whales in the Bering and Chukchi Seas could support 
an estimated 90,000 whales, their estimate of food abundance is not a 
meaningful estimate of K for gray whales in the area. Although food 
abundance is one of the factors that could affect K for gray whales, 
many other factors affect the maximum population of gray whales 
supportable by their habitat. For example, gray whale abundance may be 
affected by access to these food resources to survive and reproduce. 
Perryman et al. (2002), which was cited in AWI's comments, showed a 
strong correlation between extent of sea ice and gray whale calf 
counts. Also, as noted in the petition and within AWI's comments, 
killer whales prey on gray whales and could kill a fairly high 
proportion of the annual calf production (the petition suggested up to 
35 percent). Accordingly, the extent of killer whale predation on gray 
whale calves could have a substantial effect on the upper limit of ENP 
gray whales supportable in their environment. These are only two of 
many factors that must be included in a reasonable attempt to estimate 
of K for gray whale. Punt and Wade (2010) were able to use gray whale 
abundance estimates, correcting for the only substantial human-caused 
mortality factor, aboriginal subsistence catch, to conclude that the 
stock's status is within OSP.
    Comment 3: AWI and CBD noted variability in the time series of ENP 
gray whale abundance estimates, including some years in which year-to-
year increases were not biologically plausible. Without describing 
their methods, AWI's comments described patterns of relatively short-
term population trends for the ENP gray whale stock and noted that 
results of the latest abundance surveys were not available. AWI 
suggested that because the latest abundance surveys had not produced 
available results yet, NMFS should issue a positive 60-day finding on 
the petition, noting that without disclosing this information it would 
be premature for NMFS to make a ``not warranted'' finding.
    Response: NMFS is aware of the variability in the abundance data 
and is aware that each abundance estimate may over- or under-estimate 
the number of whales actually in the stock due to variability 
observations and in whale migration behavior and how this variability 
may conflict with assumptions in the underlying models. Accordingly, 
NMFS does not depend on year-to-year comparisons of estimates. Rather, 
NMFS based its determination on the status of the ENP gray whale stock 
on the comprehensive analysis of the entire time series of abundance 
and mortality estimates as initially described in Wade (2002) and 
updated in Punt and Wade (2010). NMFS disagrees that the lack of 
available information should be a justification to make a positive 
finding. Rather, NMFS is following the explicit direction in MMPA 
section 115 to base its determination ``* * * solely on the basis of 
the best scientific information available.'' Results of the latest 
surveys remain in preparation and evaluation and are, consequently, not 
available.
    Comment 4: AWI recommended that NMFS not rely on a simple 
comparison of the abundance of the ENP gray whale stock relative to its 
MNPL. Rather, NMFS should show some flexibility in its status 
assessment by considering present and future threats to the population.
    Response: NMFS notes that the MMPA is explicit in its definition of 
depleted. The ENP gray whale stock is not listed under the ESA, and 
management authority for the stock has not been transferred to any 
state. Accordingly, the evaluation of its status becomes question of 
whether or not NMFS finds the stock is within or below its OSP, the 
lower limit of which is MNPL. Although an evaluation of the extent to 
which various factors may affect the status and trend of the ENP gray 
whale stock may facilitate some conservation decisions, such an 
evaluation is not necessary or even relevant to determine whether or 
not the stock is within its OSP.
    Comment 5: The Petitioners provided comments on their own petition. 
In their submission they complained about the communication process and 
information flow with respect to the agency's receipt and public 
notification of the petition. They also discussed abundance estimates, 
threats, and potential threats to gray whales. Included with their 
comments was information to supplement the petition and a reiteration 
of some of the points contained in the petition.
    Response: NMFS has fully complied with the process outlined in 
section 115 of the MMPA. The information provided by the Petitioners 
regarding abundance estimates and current and future threats is 
unrelated to the agency's determination of the stock's status as 
defined by the statute. Supplemental information provided by the 
Petitioners regarding 1980 and 1981 calf counts has already been 
incorporated into the

[[Page 81231]]

record (Perryman et al., 2010) and does not constitute new information.
    Comment 6: The NRDC pointed to differences between Alter et al. 
(2007) abundance estimates and those of NMFS scientists and argued that 
disagreement among scientists is reason for an in-depth review. The 
commenter cited ESA-related cases supporting this argument.
    Response: NMFS maintains that Laake et al. (2009) provides the best 
available time series of abundance, and Punt and Wade (2010) is the 
best available information regarding status of the stock. Neither the 
petition itself nor comments on the petition provide information that 
supplants Punt and Wade (2010) as the best available science. No 
information has been provided to make the agency cast doubt on the 
Laake et al. (2009) abundance estimates and the Punt and Wade (2010) 
analysis and conclusion that the stock is within OSP. NMFS accepts 
Punt's and Wade's (2010) analysis and conclusion as supported by the 
best available science. Therefore, a status review is not necessary at 
this time.
    Comment 7: The Makah Tribe provided an evaluation of the strengths 
and weaknesses of the petition with respect to population abundance, K, 
and factors that may be affecting gray whale population dynamics. They 
concluded that information in the petition did not supersede Laake et 
al. (2009) and Punt and Wade (2010) as the best available information. 
Accordingly, the Makah Tribe concluded that the petition does not 
present significant information indicating that the stock should be 
designated as depleted.
    Response: NMFS concurs with the Makah Tribe's conclusions.
    The Commission, in consultation with its Committee of Scientific 
Advisors on Marine Mammals, reviewed the petition and recommended, 
among other things, that NMFS defer any status review until there is 
stronger scientific evidence indicating that the stock is below MNPL. 
The Commission's comments, summarized below and based on the MMPA 
definition of depleted as below OSP (section 3(1)(A) of the MMPA (16 
U.S.C. 1362(1)(A)), and NMFS regulations (50 CFR 216.3), state that 
determination of whether a population is depleted is based solely on 
the population's abundance relative to MNPL.
    Comment 8: The Commission reviewed the two main approaches used to 
evaluate the ENP gray whale abundance with respect to its MNPL, the 
methods employed by Alter et al. and by Punt and Wade (2010), and 
supported the Punt and Wade approach as being more robust. The 
Commission noted that the question of whether climate change has 
reduced K for the stock is not factored in to the Punt and Wade model, 
and that it is too soon to form conclusions about the long-term effects 
on climate change on the stock. The Commission, however, concluded that 
a status review is not warranted at this time, and a status review 
would not be a good use of limited resources.
    Response: NMFS agrees with the Commission's conclusions.
    Comment 9: The Commission reviewed the Petitioners' claims that the 
agency used inappropriate abundance estimates and recovery factor to 
calculate PBR for the stock and that PBR has resulted in over-
exploitation of gray whales. The Commission concluded that NMFS did, in 
fact, use proper population estimates and that a recovery factor of 1.0 
was more appropriate than 0.1 as proposed by the Petitioners. 
Furthermore, the Commission made the important distinction that 
calculation of PBR does not have any effect on population; rather, 
actual takings affect the stock.
    Response: NMFS agrees with the Commission's assessment, and a more 
detailed discussion of PBR is included in the discussion section above.
    Comment 10: Regarding the Petitioners' assertion that recent 
declines in calf production indicate the stock is depleted, the 
Commission reiterates the requirements of the MMPA, stating that stock 
status be based solely on abundance relative to MNPL and reiterates 
that productivity is not a criterion for designation of depleted 
status. The Commission also notes, ``When reviewing calf production and 
survival, it is important to look at relatively long-term patterns, as 
variation in these parameters over short periods (i.e., a few years) 
can be misleading.''
    Response: NMFS agrees.
    Comment 11: The Commission noted while the petition's focus on 
killer whale predation on gray whales is reasonable, the level of 
predation is not a criterion for designating a stock as depleted and is 
only relevant if predation leads a stock to decline below MNPL which 
does not appear to be the case. Additionally, the Commission noted that 
the petition does not adequately describe the predation model included 
therein; and, thus, it is not possible to determine the reliability of 
the model's results.
    Response: NMFS agrees.
    Comment 12: In addition to recommending that the agency not conduct 
a status review of ENP gray whales at this time, the Commission 
recommended that NMFS focus research and management efforts on 
continued monitoring and expanded study of the stock's natural history, 
and that the agency take advantage of opportunities to convene inter-
agency groups to coordinate gray whale research.
    Response: NMFS agrees that this approach to research would be 
helpful.
    Comment 13: The Commission further recommended that the agency 
establish and fund a program to continue to monitor gray whale 
abundance and reproduction, and make efforts to understand the effect 
of climate change on the stock.
    Response: Such a program would be important, and NMFS will pursue 
such monitoring to the extent that the budget allows.
    Comment 14: In their letter to NMFS on this petition, the 
Commission noted that the MMPA and implementing regulations specify 
that a stock is to be designated as depleted only when its abundance is 
less than its OSP. The OSP is defined as a range, the lower limit of 
which is the stock's MNPL. Thus, the question to be addressed here is 
whether the petition presents substantial information to conclude that 
the ENP gray whale stock may be less than its MNPL and, therefore, 
warrants a status review.
    Response: NMFS agrees.

Petition Finding

    Earlier in this notice, NMFS states that the petition included 
three major assertions supporting their allegation that the ENP gray 
whale stock was below its MNPL. These assertions were as follows:
    (1) K for ENP gray whales is higher than previously reported, and 
the current abundance is below 60 percent of these estimates of K;
    (2) A non-parametric model suggests the population increased from 
the late 1960s until the mid-1980s and has been decreasing since then; 
and
    (3) Abundance estimates reported in Laake et al. (2009) show that 
abundance estimates since 2000 are below the abundance estimate from 
1994 when ENP gray whales were removed from the list of endangered 
species.
    As discussed above (see Status of the ENP Gray Whale Stock), NMFS 
evaluated the evidence supporting these arguments and concludes that 
none provide substantial evidence that the ENP gray whale stock is 
below its MNPL. Accordingly, NMFS finds that the petition does not 
present substantial information indicating that the petitioned action 
is warranted.
    In making this finding, NMFS thoroughly evaluated the information

[[Page 81232]]

contained in the petition and other scientific information available on 
the status of the ENP gray whale stock. As noted in the Commission's 
statement above, the pertinent analysis for assessing the status of the 
ENP gray whale stock is whether or not, based upon the best available 
scientific information, the ENP gray whale stock is above or below its 
MNPL. Although NMFS is denying the current petition, the analysis 
supporting this denial involved an assessment of the status of the 
stock. In this evaluation, NMFS concluded that Punt and Wade (2010) 
analyzed and reported the best available information assessing the 
status of the ENP gray whale stock.
    Punt and Wade (2010) used an accepted age- and sex-structured 
population dynamics model and estimated key biological parameters from 
a long time series of data collected over a long period of time. Punt 
and Wade (2010) used all available information from abundance data 
collected since the mid-1960s to 2006 (and analyzed using consistent 
methods by Laake et al. (2009)), incorporated uncertainty from input 
parameters and data, and simulated key demographic parameters, thus 
capturing key biological processes. Punt and Wade (2010) included a 
catastrophic mortality event, which accommodated the elevated 
strandings of ENP gray whales observed in 1999 and 2000. As a result of 
this catastrophic mortality, which was declared and evaluated as an 
unusual mortality event pursuant to MMPA section 404 (16 U.S.C. 1421c), 
Punt and Wade (2010) estimated that the population was reduced by about 
30 percent (about 15 percent annually for two years) due to the 
elevated mortality rates observed in 1999 and 2000. Punt and Wade 
(2010) also estimated that the ENP gray whale stock was currently 129 
percent of the MNPL with a probability of 0.884 that the stock was 
within its OSP. Punt and Wade (2010) used the best and most recent 
information available and adequately incorporated uncertainties for 
model parameters. Punt and Wade (2010) may be characterized as follows: 
the approach and the information analyzed were subjected to internal 
NMFS and external peer review, and this analysis was consistent with 
NMFS' previously stated practice to use current K to make OSP 
determinations where possible. NMFS considers Punt and Wade (2010) to 
be the best scientific information available for evaluating the status 
of ENP gray whales relative to their OSP and has included the Punt and 
Wade (2010) analyses and conclusions in the draft 2010 marine mammal 
stock assessment reports in the most recently available abundance 
estimate in reporting the status of the stock (Allen and Angliss, 
2010). Accordingly, NMFS reaffirms that the ENP stock of gray whales is 
above its MNPL and, therefore, within its OSP.

    Dated: December 20, 2010.
David Cottingham,
Acting Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-32479 Filed 12-23-10; 8:45 am]
BILLING CODE 3510-22-P