[Federal Register Volume 86, Number 139 (Friday, July 23, 2021)]
[Notices]
[Pages 38991-39005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15701]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA349]


2020 Marine Mammal Stock Assessment Reports

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

ACTION: Notice; response to comments.

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SUMMARY: As required by the Marine Mammal Protection Act (MMPA), NMFS 
has considered public comments for revisions of the 2020 marine mammal 
stock assessment reports (SAR). This notice announces the availability 
of 80 final 2020 SARs that were updated and finalized. NMFS also 
announces the availability of a revised final 2019 North Atlantic right 
whale SAR that includes a typographic correction.

ADDRESSES: Electronic copies of SARs are available on the internet as 
regional compilations and separated by individual species/stocks at the 
following addresses, respectively: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-species-stock.

FOR FURTHER INFORMATION CONTACT: Dr. Zachary Schakner, Office of 
Science and Technology, 301-427-8106, [email protected]; Marcia 
Muto, 206-526-4026, [email protected], regarding Alaska regional 
stock assessments; Elizabeth Josephson, 508-495-2362, 
[email protected], regarding Atlantic, Gulf of Mexico, and 
Caribbean regional stock assessments; or Jim Carretta, 858-546-7171, 
[email protected], regarding Pacific regional stock assessments.

SUPPLEMENTARY INFORMATION:

Background

    Section 117 of the MMPA (16 U.S.C. 1361 et seq.) requires 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, including the U.S. Exclusive 
Economic Zone (EEZ). These reports must contain information regarding 
the distribution and abundance of the stock, population growth rates 
and trends, estimates of annual human-caused Mortality and Serious 
Injury (M/SI) 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 three years for non-strategic 
stocks. The term ``strategic stock'' means a marine mammal stock: (A) 
For which the level of direct human-caused mortality exceeds the 
potential biological removal level or PBR (defined by the MMPA as the 
maximum number of animals, not including natural mortalities, that may 
be removed from a marine mammal stock while allowing that stock to 
reach or maintain its optimum sustainable population (OSP)); (B) which, 
based on the best available scientific information, is declining and is 
likely to be listed as a threatened species under the Endangered 
Species Act (ESA) within the foreseeable future; or (C) which is listed 
as a threatened species or endangered species under the ESA. NMFS and 
the FWS are required to revise a SAR if the status of the stock

[[Page 38992]]

has changed or can be more accurately determined.
    Prior to public review, the updated SARs under NMFS' jurisdiction 
are peer-reviewed within NMFS Fisheries Science Centers and by members 
of three regional independent Scientific Review Groups (SRG), 
established under the MMPA to independently advise NMFS on information 
and uncertainties related to the status of marine mammals.
    The period covered by the 2020 SARs is 2014-2018. NMFS reviewed all 
strategic stock SARs and others as appropriate and updated 80 SARs 
representing 84 stocks in the Alaska, Atlantic, and Pacific regions to 
incorporate new information. The 2020 revisions to the SARs consist 
primarily of updated or revised estimates of human-caused M/SI new 
stock names, new methodology and updated abundance estimates. Four 
stocks changed status from ``non-strategic'' to ``strategic'' (Eastern 
Bering Sea beluga whale, Gulf of Mexico spinner dolphin, Gulf of Mexico 
striped dolphin, and Gulf of Mexico Clymene dolphin).
    The revised draft 2020 SARs were made available for public review 
and comment for 90 days (85 FR 78307, December 4, 2020). NMFS received 
comments on the draft 2020 SARs through March 8, 2021 and has revised 
the reports as necessary. This notice announces the availability of 80 
final 2020 reports, which are available on NMFS' website (see 
ADDRESSES). The Gulf of Maine humpback whale SAR was not finalized 
because of a technical error; the corrected report will be published in 
a subsequent SAR cycle. NMFS also announces the availability of the 
revised final 2019 NARW SAR that includes a typographic correction.

Comments and Responses

    NMFS received letters containing comments on the draft 2020 SARs 
from the Marine Mammal Commission (Commission); Department of Fisheries 
and Oceans Canada (DFO); Makah Indian Tribe (Makah); Western Pacific 
Regional Fishery Management Council (WPRFMC); Natural Resources Defense 
Council (NRDC); two fishing industry associations (Hawaii Longline 
Association (HLA) and Maine Lobstermen's Association (MLA)); and a 
coalition comment letter from four non-governmental organizations 
(Center for Biological Diversity, Whale and Dolphin Conservation, 
Conservation Council for Hawai'i, and Conservation Law Foundation, 
referred to hereafter as ``the Coalition''). Responses to substantive 
comments are below; responses to comments not related to the SARs are 
not included. Comments suggesting editorial or minor clarifying changes 
were incorporated in the reports, but they are not included in the 
summary of comments and responses. In some cases, NMFS' responses state 
that comments would be considered or incorporated in future revisions 
of the SARs rather than being incorporated into the final 2020 SARs.

Comments on National Issues

    Comment 1: The Coalition notes that the MMPA requires that NMFS 
revise stock assessments for strategic stocks annually and comments 
that the public is not able to timely contribute to the SARs. For those 
stocks, which are especially important to conserve, the public is not 
able to timely contribute to the SARs. The publication of the draft 
SARs is same month as the Scientific Review Groups are reviewing the 
draft 2021 marine mammal SARs and the coalition commented that 
undermines the public's ability to participate in a meaningful manner.
    Response: The MMPA requires NMFS to review, not revise, SARs at 
least annually for strategic stocks and stocks for which significant 
new information is available. Following this review, NMFS revises SARs 
as necessary. We acknowledge and agree with this comment regarding the 
importance of following the SAR process timeline so the current year's 
draft SARs do not overlap with the final SARs from the previous year. 
Unfortunately, the publication of the draft 2020 SARs was delayed until 
the end of the year, largely due to the impacts of the ongoing COVID-19 
pandemic. The public comment period of 90 days, however, remained 
unchanged.
    Comment 2: The Commission continues to be concerned about NMFS' 
performance in meeting several of the requirements of Section 117 of 
the MMPA. Without a minimum abundance estimate (Nmin) derived from 
recent data, PBR cannot be calculated and is considered ``unknown.'' 
Including the revised 2020 draft SARs, the Commission comments that an 
Nmin estimate is lacking for 81 of the 252, or 32 percent of identified 
stocks. The lack of data for over one third of the stocks recognized by 
NMFS is a serious shortcoming in meeting statutory obligations. The 
Commission reiterates its recommendation that NMFS continue its efforts 
to prioritize and coordinate requests to secure the necessary survey 
resources across regions.
    Response: We acknowledge the Commission's comment and will continue 
to prioritize our efforts for the collection of data to address 
outdated Nmin estimates, as resources allow.
    Comment 3: The Commission notes that in a few of the individual 
SARs (e.g., Eastern North Pacific gray whale, CA/WA/OR fin whale, and 
all of the Northeast stocks), M/SI data are lumped for the five-year 
analysis period. The Commission feels strongly that M/SI data should be 
presented individually for each year of the analysis period, and 
comments that the detection of short-term trends or extreme events 
affecting M/SI are difficult to discern if five-year averages are the 
only data available. The Commission recommends that NMFS present 
estimates for each year of a five-year analysis period for all SARs 
with M/SI data.
    Response: For two of the stocks highlighted by the Commission 
(Eastern North Pacific gray whale and CA/WA/OR fin whales), the number 
of observed bycatch events in the most-recent five-year period (one and 
zero respectively) are highlighted in the SAR bycatch table for the 
California swordfish drift gillnet fishery that is observed annually. 
For the sake of visual simplicity in the SAR (rather than parsing out 
five zeros or four zeros and a one), these data are pooled into a five-
year time frame and individual annual totals may be found in supporting 
citations (bycatch and serious injury reports). In cases where there 
has been a large spike in bycatch, or major changes in fishery effort 
or observer coverage, these details are reflected in the SAR text. 
Where MS/I data are collected opportunistically from strandings or at-
sea sightings, the five-year sum of observed totals is assessed against 
PBR and individual year data is published in annual serious injury 
reports. We agree that in some cases where observer coverage is 
sporadic or highly-variable within a five-year period, parsing out such 
annual data may be useful to highlight potential data gaps or changes 
in bycatch levels. However, these benefits are outweighed by the costs 
of parsing and presenting annual data that is prone to high levels of 
statistical noise.

Comments on Alaska Issues

    Comment 4: Over the past decade, the Commission has repeatedly 
recommended that NMFS, in collaboration with its co-management 
partners, improve its monitoring and reporting of subsistence hunting 
in Alaska. While there have been improvements in the number of 
communities reporting take levels for some ice seals in the SARs in 
recent years, the majority of communities that hunt or may hunt ice 
seals are still unaccounted for. Therefore, the

[[Page 38993]]

Commission continues to recommend that NMFS pursue additional 
mechanisms to gather reliable information on the numbers of marine 
mammals taken for subsistence and handicraft purposes, including by 
securing adequate funding for comprehensive surveys of subsistence use 
and Native hunting effort in collaboration with co-management partners 
and the State of Alaska.
    Further, the Commission encourages NMFS to continue to provide 
updated information in the SARs whenever it becomes available, even if 
it pertains only to a limited number of villages or a subset of years. 
The Commission has previously recommended that NMFS include all 
available data about harvest numbers, including struck and lost, in the 
SARs for beluga whales, and that NMFS work with the Alaska Beluga Whale 
Committee to improve the completeness of and consistency in reporting 
harvest data, with a focus on struck and lost information for these 
stocks. The Commission understands that, in response to a 
recommendation from the Alaska SRG, struck and lost numbers will be 
included in the final 2020 SARs and the Commission looks forward to 
seeing those numbers.
    Response: NMFS agrees that it is important to collect reliable 
information on the numbers of marine mammals taken for subsistence and 
handicraft purposes. Funding for subsistence use surveys remains 
limited; thus, in most cases, the best available data are not 
comprehensive. Nevertheless, we continue to work with our Alaska Native 
co-management partners (and the State of Alaska in some cases) to 
conduct surveys of subsistence use as resources allow, including 
animals struck and lost, and we incorporate that information into the 
SARs as it becomes available.
    Comment 5: The Coalition emphasizes that, in the Humpback Whale, 
Central North Pacific Stock SAR, the section on habitat concerns should 
include Currie et al. (2021), which showed that in the presence of 
vessels, humpback whales increase swim speed and respiration rate and 
decrease dive times, which has been shown to be an energetically 
demanding avoidance strategy. In order to ensure recovery to OSP, the 
Coalition comments that the SARs must include non-lethal effects of 
human disturbance, as described in Currie et al. (2021) and believes 
that recording those interactions is a first step toward assessing and 
mitigating the severity of impact. The Coalition also requests that the 
Habitat Concerns section include the increasing overlap between whales 
and high concentrations of marine debris.
    Response: NMFS has added information on (1) the behavioral 
responses of humpback whales to vessel presence in Southeast Alaska and 
Hawaii (Schuler et al. 2019, Currie et al. 2021), and (2) the overlap 
between humpback whales and high concentrations of marine debris 
(Currie et al. 2017) to the Habitat Concerns section of the final 2020 
Central North Pacific humpback whale SAR.

Comments on Atlantic Issues

North Atlantic Right Whale, Western Atlantic Stock
    Comment 6: Department of Fisheries and Oceans Canada (DFO) notes 
that Entanglement Mortality #3893 (1/22/2018) was discovered on a U.S. 
beach (1/22/2018) with no gear recovered but was assigned to Canada. 
DFO is not aware of any conclusive evidence to support this death being 
attributed to Canada.
    Response: NMFS thanks the reviewer for the detailed examination of 
individual cases. Gear was recovered from #3893 and identified as 
Canadian snow crab fishing gear.
    Comment 7: DFO comments on Entanglement Prorated Injury #3312, 
which was sighted in Canadian waters (7/13/2018) with no gear recovered 
and then assigned to Canada (CN). Entanglement Prorated Injury #3843 
was sighted in Canadian waters (7/30/2018), also with no gear 
recovered, and it was unassigned as a first sighting in Canada (XC). 
DFO is not aware of any conclusive evidence to suggest that #3312 would 
reasonably be assigned to Canada. Moreover, a seemingly similar case of 
Entanglement Prorated Injury in U.S. waters (12/20/2018, #2310, 
Nantucket, MA), where there was also no gear recovered but was first 
sighted in the United States, is marked as unassigned (XU).
    Response: Entanglement Prorated Injury #3312 was sighted in Canada 
earlier in the day on 7/13/2018 gear free. NMFS determined the 
entanglement occurred within a 2-hour window that day, thus it was 
assigned to CN. The other two whales sighted as examples had pre-
entanglement sighting histories >1 month; therefore, there was much 
more uncertainty about when and where the entanglement may have 
occurred.
    Comment 8: DFO comments on the summary in Table 3. Confirmed human-
caused M/SI records of right whales: 2014-2018a assigns a 1.55 average 
M/SI over 5 years due to entanglement to Canada. Looking at the 
incidents in the table marked EN (entanglement) CN (Canada) there are 
6.75 incidents (4 mortalities + 2 serious injuries + 0.75 prorated 
injury), resulting in an average of 1.35 per year rather than 1.55. The 
discrepancy is carried over from the 2019 draft SAR, when #3694 
mortality was assigned to Canada. However, in response to DFO's comment 
related to the mortality assignment of #3694 (published 85 FR 149; 
August 3, 2020.), the entry for #3694 was changed from CN (assigned to 
Canada) to XC (Unassigned first sighted in Canada) in the final 2019 
North Atlantic right whale Stock Assessment Report. DFO points out that 
the total counts have not been updated in the summary for the 2020 
draft SAR.
    Response: Right whale #3694 was changed from XU (unassigned, first 
sighted in US) to CN in the 2019 draft that went out for public comment 
based on identification of the gear as Canadian snow crab gear. In the 
conversion from draft to final, this was inadvertently changed to XC 
(unassigned, first sighted in Canada). A correction has been issued and 
we have made the changes to the final 2019 report which is now 
available. Summary statistics have also been corrected in the final 
2020 report.
    Comment 9: DFO is not aware of any conclusive evidence used in 
assigning the following to Canada: Serious Injury #4057 (8/13/2016) and 
Serious Injury #4094 (07/19/2017).
    Response: The gear involved with Serious Injury #4057 (8/13/2016) 
was identified as Canadian crab pot by DFO. For Serious Injury #4094 
(07/19/2017), the gear was identified as Canadian crab pot in Daoust et 
al. (2018).
    Comment 10: The Coalition recommends that the section ``Stock 
Definition and Geographic Range'' be changed to reflect the current 
habitat use of right whales. As written, it is confusing to discern 
between historic and more recent data. For example, the introduction 
states that foraging habitat is in New England and Canadian waters, 
which does not address the year-round use of waters south of Cape Cod 
as a foraging habitat as reflected in the NOAA Expert Working Group 
Report, or the detections in all seasons of right whales in the near 
shore waters of New Jersey during which right whales were documented 
skim feeding. The Coalition comments that the mid-Atlantic is 
increasingly used by the species as more than a migratory corridor, 
which should be reflected in the SAR. The current references to the 
mid-Atlantic in the draft SAR precede 2010, the time when a significant 
shift in right whale habitat use was first noted. More recent sightings 
of right whales in the Gulf of Mexico and off the

[[Page 38994]]

Canary Islands should also be included. The Coalition also notes that 
it is important to consider that population demographics may dictate 
habitat use, which could impact associated risks to those individuals.
    Response: Although NMFS considers the description of the right 
whale range and habitat use to be an accurate reflection of published 
findings to date, we acknowledge that new observations indicate 
additional changes in the species' seasonal distribution. We also agree 
that demographics are an important consideration. Several studies have 
been recently completed; but, until published, our ability to utilize 
this information in the SAR is limited. In addition, we have no 
evidence to suggest that ``changing habitat use'' has settled into a 
new stable state. Still, we endeavor to consider all significant 
changes in habitat use. When it comes to management decisions based on 
habitat use, the agency uses the most current habitat use models 
available including those from the Marine Geospatial Ecology Lab at 
Duke University, which does reflect an increase in habitat use in the 
mid-Atlantic region.
    Comment 11: The Coalition comments that the ``Population Size and 
PBR'' section is outdated and does not reflect the most recent analysis 
indicating that the Nmin for 2019 is 347. Even considering 2018, the 
value in the SAR is higher than the best population estimate of 383 
based on the Pace method (Pace et al. 2021). As such, PBR is below 0.8.
    Response: NMFS strives to update the SARs with as timely data as 
possible, to ensure the SARs are based upon the best available 
scientific information. As noted in previous years, as a result of the 
review, revision, and assessment of available data, the data used 
typically lag two years behind the year of the SAR. The agency 
recognizes the lags in SAR processing time, but this is necessary to 
achieve the appropriate peer review. To that extent, we are finalizing 
a NMFS technical memorandum to provide up-to-date population estimates. 
We expect to include these data and information in the 2021 SAR.
    Comment 12: The Coalition appreciates NMFS' inclusion of cryptic 
mortality as calculated by Pace et al. (2021). The current reference in 
the document should be updated from submitted to reflect its 
publication.
    Response: Now that Pace et al. (2021) is published, we have updated 
the reference.
    Comment 13: The Coalition asks NMFS to update the ``Fishery-Related 
Mortality and Serious Injury'' section to include Hamilton et al. 
(2019), from which NMFS determined that ``11.04 percent of the right 
whale population is entangled annually in U.S. federal fishing gear.'' 
The Coalition requests that NMFS include its findings that an average 
of 6.724 right whales are seriously injured or killed in U.S. fishing 
gear each year.
    Response: We have updated language in the final 2020 SAR 
referencing observations by Hamilton et al. (2019) that 30.25 percent 
of the population was entangled annually between 2010 and 2017. We 
recognized in the text of the document that MS/I is likely much higher 
than observed. However, the estimates above are based on a NMFS 2021 
analysis that is still a draft and was not reviewed by the Atlantic SRG 
at the time of writing. Approaches to these issues were discussed with 
recommendations made by the Atlantic SRG in 2021 that will be 
considered in the 2021 SAR.
    Comment 14: The Coalition asks NMFS to include the findings in the 
recently published North Atlantic Right Whale (Eubalaena glacialis) 
Vessel Speed Rule Assessment, which concluded that voluntary measures 
did not have a meaningful impact on reducing vessel collisions, small 
vessel collisions can seriously injure right whales, and that the 
current SMAs should be modified.
    Response: We appreciate this comment; the implications of the 
Vessel Speed Rule Assessment are being considered for the 2021 SAR.
    Comment 15: The Coalition requests that the 2018 prorated injuries 
for the following whales be changed to a value of 1 against PBR to 
reflect NMFS' determination that these individuals meet the criteria of 
Seriously Injured, as reflected on the Agency's Unusual Mortality Page: 
#3312 (entanglement), #3843 (entanglement), and #2310 (entanglement).
    Response: NMFS' Unusual Mortality Event (UME) web page is currently 
tallying prorated injuries and serious injuries together; but, for the 
SARs, NMFS follows the assessment guidelines here: https://media.fisheries.noaa.gov/dam-migration/02-238-01.pdf.
    Comment 16: NRDC requests that NMFS revise the draft North Atlantic 
right whale SAR to reflect the most up-to-date estimate of population 
size. The best population estimate for the end of 2019 is now just 356 
individuals, representing a more ``precipitous drop [in the population 
size] than previous years.'' Moreover, the best population estimate for 
the end of 2018 has been revised down from 409 individuals to 380 
individuals. NRDC comments that the new 2019 and revised 2018 estimates 
indicate a significant decrease in survivorship during the last three 
years as a result of the ongoing unusual mortality event. NRDC 
emphasizes that NMFS should update the draft SAR according to the best 
available scientific information on North Atlantic right whale 
population size.
    Response: See our response to comment 11.
    Comment 17: NRDC requests that NMFS revise the PBR level downward 
for the NARW. The updated population size estimate has implications for 
the calculation of the PBR level for the North Atlantic right whale. 
NMFS' draft SAR states that PBR for the species is currently 0.8; 
however, the agency has acknowledged in other fora that the most recent 
population estimate has further reduced PBR to 0.7. NMFS must revise 
the PBR level in the draft SAR downwards to reflect the best available 
scientific information.
    Response: We appreciate this comment; please see our response to 
comment 11.
    Comment 18: NRDC comments that NMFS must accurately account for 
cryptic mortalities in its calculation of ``total'' estimated human-
caused mortality and serious injury. The number of observed mortalities 
is a significant underestimate of actual deaths. A scientific study 
published this year by Richard Pace and colleagues (Pace et al. 2021) 
concludes only 29 percent (2 standard errors = 2.8 percent) of right 
whale carcasses were detected from 2010 to 2017. The same study found 
that entanglements accounted for the ``vast majority'' of detected 
serious injuries (87 percent), but only about half of detected deaths 
(49 percent) from 1990 to 2017. Thus, ``cryptic deaths due to 
entanglements significantly outnumbers cryptic deaths from vessel 
collisions or other causes.'' NMFS must update the estimates of 
``total'' mortality included in the draft SAR based on the findings of 
the new Pace et al. (2021) model.
    Response: NMFS appreciates this request. While Pace et al. (2021) 
make reference to the regime period of 2010-2017, the SARs--which work 
on 5-year rolling averages--make use of the time period 2013-2017. As 
such, the numbers in the SAR are not in disagreement with the estimates 
in Pace et al. 2021. Recognizing the significance of the population 
decline, we intend to publish a NMFS Technical Memorandum (Pace, in 
press) to provide an update on these estimates, as resources allow. We 
expect to reference

[[Page 38995]]

this NMFS Technical Memorandum in a future SAR.
    Comment 19: NRDC notes that NMFS must include the best available 
scientific information on sublethal impacts of entanglement. 
Entanglement remains the leading cause of North Atlantic right whale 
mortality and a major factor in reproductive loss. NRDC notes the 
pervasive sub-lethal effects of entanglement, including impaired 
reproductive potential and negative health effects, currently undermine 
any opportunity for the species to recover and may eventually lead to 
individual mortalities. NRDC emphasizes that NMFS must include, and 
should more thoroughly consider, the best available scientific 
information on sub-lethal effects of entanglement and the implications 
for the survival of the North Atlantic right whale in the draft SAR.
    Response: This is a valid point, and sub-lethal effects of 
entanglement was acknowledged in the ``Current and Maximum Net 
Productivity Rates'' section. NMFS had not yet cited the work by 
Christiansen et al. (2020), so we added that reference in the final 
2020 SAR.
    Comment 20: The Commission is hopeful that its recommendations and 
those of other experts will compel NMFS to take decisive and effective 
steps toward enabling right whales to recover. In that effort, it is 
imperative that NMFS apply the best available data and science to its 
estimation of population size and the M/SI rate. The best available 
population estimates are provided by the population model developed by 
Pace et al. (2017), and NMFS is making use of those estimates. NMFS has 
always done an excellent job of estimating the number of known M/SI due 
to entanglement in fishing gear and due to vessel strikes. However, a 
secondary finding of the Pace et al. (2017) population model was that 
only 60 percent of the total mortality estimated by the model was 
accounted for by the known M/SI. It was long suspected that some 
mortalities were going undetected, and the Pace et al. (2017) model 
suggested that the undetected proportion was 40 percent. Therefore, the 
Commission recommends that NMFS immediately take steps to include the 
best available science by incorporating the Pace et al. (2021) 
estimates of undetected mortalities in its estimates of total human-
caused mortality and serious injuries of right whales in the final 2020 
SAR.
    Response: Please see NMFS response to comment 18.
    Comment 21: MLA comments that the draft SAR must include more 
information regarding NARW entanglements in fishing gear. The draft SAR 
contains none of the statutorily required information on commercial 
fisheries that interact with the stock (16 U.S.C. 1386(a)(4)). As a 
result, the public has no information about the fisheries that interact 
with the NARW and the levels, types, and seasonal and geographic 
patterns of entanglement that occur within and among those fisheries. 
This information must be included in the final SAR.
    The draft SAR presents only M/SI entanglement data--non-serious 
injury entanglements are omitted. This highly important information is 
relevant to assess the effectiveness of the Atlantic Large Whale Take 
Reduction Plan (TRP). For example, the TRP requires certain measures 
that are intended to reduce the severity of fishery interactions, 
rendering them non-serious injuries. MLA emphasizes that a comparison 
of M/SI and non-serious injury data over time, by area, and by fishery, 
is relevant to evaluating the effectiveness of measures intended to 
reduce the severity of fishery interactions. This information must be 
included in the final SAR.
    Response: Because there are multiple species interactions with 
multiple fisheries, the fisheries are summarized in Appendix 3--Fishery 
Descriptions. They are also available online https://www.fisheries.noaa.gov/national/marine-mammal-protection/list-fisheries-summary-tables with focus on Table II category I and II 
fisheries. The SAR reports to the extent possible what information is 
available for describing commercial fisheries that interact with the 
stock, in accordance with Section 117 of the MMPA (i.e., M/SI levels by 
fishery, seasonal/area differences in M/SI, and M/SI rates calculated 
using standardized fishing effort). However, because only a small 
fraction of entanglements have gear recovered and a smaller fraction of 
that is traceable to the fishery, the agency has not been able to 
estimate the annual MS/I to the resolution of fishery/region. Given new 
recommendations from the Atlantic SRG meeting in 2021, and additional 
analysis resulting from Pace et al. (2021), NMFS is working to improve 
our reporting of this issue in future SARs. For now, this topic is 
addressed to the extent that data can support it in the SAR's Table 3. 
The issue of non-serious injuries is discussed in the third paragraph 
of the section titled ``Fishery-Related Mortality and Serious Injury.'' 
The draft SAR cites Knowlton et al. (2016) and more recently Hamilton 
et al. (2019), which have consistently tracked 26 percent to now 30 
percent of the population receiving non-serious injuries annually, 
which is an increasing trend. Despite roughly 100 injuries per year in 
recent years, injuries are almost never observed at the time they 
occur, but the wounds persist for periods of weeks to months/years, 
during which time animals may travel thousands of miles. Additional 
language to address this concern has been added to the first paragraph 
of the ``Fishery-Related Mortality and Serious Injury'' section of the 
SAR.
    Comment 22: MLA requests that the SAR include data on the severity 
of entanglements. The New England Aquarium (2020) reports that from 
2010 to 2017, the annual average serious entanglement rate ranged from 
1.4 percent to 3.8 percent, and that from 2014-2018 the majority of 
NARW entanglements were minor (62 percent), with less than half either 
moderate or severe (19 percent and 19 percent, respectively). None of 
this important information is reported in the draft SAR, but it should 
be.
    Response: Table 3 of the NARW SAR provides considerable detail on 
each entanglement case that merited a prorated serious injury or 
greater. The New England Aquarium applies different criteria than 
defined in NMFS' Serious Injury Policy (NMFS 2014). While there is 
often agreement between institutions, inconsistencies occur based on 
different criteria. The ``rates'' quoted above are based upon observed 
events. However, Pace et al. (2021) stated, ``We used an abundance 
estimation model to derive estimates of cryptic mortality for NARW and 
found that observed carcasses accounted for only 36 percent of all 
estimated deaths during 1990-2017. We found strong evidence that total 
mortality varied over time, and that observed carcass counts were poor 
predictors of estimated annual numbers of whales dying.'' As such, 
focusing on the rates above would amount to `cherry picking' and 
misleading conclusions that under-represent the true scale of the 
entanglement problem, given that Pace et al. (2021) indicate only 36 
percent of mortalities have been observed since 1990, and given the 
bias that most serious injuries are entanglements (vs. ship strikes) 
that are never seen again. This indicates hundreds of entanglement 
mortalities have gone undetected even in just the past decade.
    Comment 23: MLA points out that the Guidelines for Assessing Marine 
Mammal Stocks (GAMMS) instruct authors to include in the SAR ``[a] 
summary of mortality and serious injury incidental to U.S. commercial 
fisheries . . . presented in a table, providing the name of the fishery 
and, for each appropriate year, observed mortality

[[Page 38996]]

and serious injury, estimated extrapolated mortality and serious injury 
and associated CV, and percent observer coverage in that year, with the 
last column providing the average annual mortality and serious injury 
estimate for that fishery.'' Although the draft SAR presents a table of 
entanglements showing ``country'' and ``gear type,'' this falls well 
short of the detailed and well-organized table recommended by GAMMS 
(and included in numerous other SARs). MLA notes that such a table 
should be included in the SAR. This information is important for 
assessing individual fisheries, which has even more significance given 
that NMFS' revised ``negligible impact determination'' policy includes 
a process for assessing individual fisheries.
    Response: Table 3 provides all known information on injuries. The 
requested table is not provided because the data are not available to 
populate it. Appendix 3 describes the U.S. fisheries and their observer 
coverage level (or the complete lack thereof, in the case of the 
lobster fishery). Additional language to address this concern has been 
added to the first paragraph of the ``Fishery-Related Mortality and 
Serious Injury'' section of the SAR.
    Comment 24: With respect to the lobster fishery, MLA requests that 
the SAR include data showing that there has been a 90 percent decline 
in instances where lobster gear was removed from entangled NARW since 
2010. There were four known cases of lobster gear removed from NARW 
from 1997 to 2000, six from 2000-2010, and one from 2010 to 2019. MLA 
notes that the only confirmed M/SI resulting from entanglement in 
lobster gear occurred in 2002 and none of this is reported in the draft 
SAR.
    Response: The right whale SAR provides summaries of all available 
data relating to right whale serious injury and mortalities during 
2014-2018, including all identified fisheries. NMFS has included in the 
narrative the primary points and statistics. Because right whale 
injuries are rarely witnessed, we have relied on opportunistic reports 
to build our understanding of impacts to the population and provide a 
minimum number of deaths. However, 11 opportunistic records since 1997, 
as cited by the commenter, are insufficient to assess trends in 
entanglement rates, especially without context on fishing effort during 
the same time period. Specifically, gear was only retrieved from 13 
percent of the right whale entanglement incidents from 2010 to 2018 
(22/167). Of those, most (73 percent) are identifiable to a fishery. 
However, the work by Pace et al. (2021) shows there is no evidence of 
observed rates/causes of mortality corresponding to cryptic mortality 
rates. As such, the reporting of ``trends'' for observed cases is 
misleading.
    Comment 25: MLA comments that the draft SAR omits data and 
information collected by NMFS showing that more entanglements occur 
with Canadian fishing gear. The draft SAR is virtually silent on the 
outsized role of Canadian fisheries in a significant spike in M/SI 
incidents since 2017, even though relevant data, scientific 
observations, and expert analyses are available to NMFS. This should be 
included in the final SAR in order to provide a full and accurate 
picture of the known and/or probable origin of entanglements outside 
U.S. waters.
    Response: The final SAR assigns fishing gear to fishery type, e.g., 
pot/trap and country of origin, when sufficient data are available. 
Given the low frequency at which such data are available, and the lack 
of a statistical relationship between observed and actual mortalities 
(Pace et al. 2021), no annual serious injury and mortality statistics 
are derived on a `by fishery' basis. All confirmed Canadian mortalities 
were identified in Table 3. Differences in survey effort between Canada 
and the United States need to be considered when attempting to compare 
incidents of M/SI. The apparent increase in M/SI incidents in Canadian 
fisheries since 2017 is influenced in part by the increased detection 
of mortalities that happened within the confines of a relatively closed 
body of water that had several aircraft surveying it beginning in 2017, 
and as many as 5 aerial survey platforms conducting regular surveys 
since then. Increased Canadian monitoring efforts were in response to 
this being an area of significant mortality. However, the coastal 
waters of New England represent a similar length of area, with a 
similar number of vertical lines. The lack of fishery observers, much 
more limited aerial survey capacity over an open section of coast with 
currents that can carry carcasses offshore, and gear that is heavy 
enough to anchor whales below the surface contributes to making coastal 
New England waters an area where the odds of detecting mortality are 
quite low. However, spatial models suggest a high risk of mortality in 
this area. As above, we note that many of these comments recommend 
placing strong correlation value on limited observations, which is ill 
advised based upon the findings of Pace et al. (2021).
    Comment 26: MLA comments that although the draft SAR acknowledges 
that ``[a]n Unusual Mortality Event was established for North Atlantic 
right whales in June 2017 due to elevated st[r]andings along the 
Northwest Atlantic Ocean coast, especially in the Gulf of St. Lawrence 
region of Canada,'' it omits discussion of significant relevant 
information showing that a large number of NARW have altered their 
migratory patterns because their preferred prey has responded to 
altered oceanographic conditions by moving into the Gulf of St. 
Lawrence, where NARW are at very high risk of entanglement in snow crab 
gear that is heavier and more lethal than gear fished in U.S. waters. 
This relates directly to the severity of injury resulting from 
entanglement, as noted in previous MLA comments. This information 
provides important insights into the source of entanglement risk and 
severity of entanglement for North Atlantic right whales, and MLA 
requests NMFS include the best available scientific information.
    Response: NMFS has addressed this comment in the ``Stock 
Definition/Geographic Range,'' ``Current Population Trend,'' and 
``Habitat Issues'' sections.
    Comment 27: MLA suggests that the draft SAR should be revised to 
incorporate the best available scientific information regarding the 
increasing proportion of M/SI from Canada as a result of altered North 
Atlantic right whale migratory patterns to the Gulf of St. Lawrence. 
These data are critical to understanding the increase in M/SI. 
Specifically, MLA requests the inclusion of data concerning the country 
of origin of NARW entanglements during the relevant time period, taking 
into account scientific observations of entangling gear, depicting 
differentiating attributes of that gear (such as rope diameter and 
strength) which make it so lethal, and describing the differences 
between the conservation programs and relative effectiveness of 
measures to protect NARW in each country.
    Response: NMFS has applied the best available science to the 
narrative of right whale distribution and entanglement rates, but the 
scientific understanding of right whale movement in the western North 
Atlantic is limited. Also, the timeline of mortality data for this SAR 
is through 2018. As future data become available and statistically 
meaningful trends emerge, they will be discussed in future SARs as 
resources allow. Although roughly a third of the population currently 
visits the Gulf of St. Lawrence, their residency in

[[Page 38997]]

surveyed areas appears to be highly variable, and we have little idea 
where the other two-thirds of the population is residing. We do not 
know the relationship between detected entanglement and mortality and 
what the levels are for the population as a whole. We know that 
mortality rates are significantly higher than the number of observed 
cases, but currently do not have sufficient evidence to support 
apportioning undetected mortality to one country or another.
    Comment 28: MLA states that the draft SAR omits best available 
scientific information about NARW behavior that affects its risk of 
harm from fishing gear. MLA suggests that NMFS has not taken account of 
significant variances in North Atlantic right whale behavior across its 
migratory range. MLA requests that NMFS provide greater detail on these 
known foraging areas, including the number and proportion of North 
Atlantic right whales sighted in these areas in recent years, to ensure 
adequate protections are in place.
    To address seasonal or area differences in incidents of M/SI, MLA 
requests the final SAR incorporate information such as that described 
above detailing geographic shifts in NARW and differing behavior in 
these habitats in response to oscillating oceanographic conditions 
across their migratory range, which places North Atlantic right whales 
at varying levels of risk from gear entanglement.
    Response: NMFS agrees that risk is elevated where high right whale 
density overlaps with fishing gear. Higher gear densities also elevate 
risk, and heavier gear likely increases injury severity. The SAR 
presents our current understanding of right whale distribution and 
population assessment for the public and management decisions. It also 
describes our level of understanding of entanglement risk. Although 
more than 80 percent of right whales bear evidence of entanglement, 
there are few events where the location or depth that the whale 
encountered the gear is known. All reported entanglement events from 
2014 to 2018 are presented in Table 3.
    Comment 29: MLA notes that the draft SAR must reincorporate deleted 
text and include supplemental information to provide a full 
appreciation of the status of the North Atlantic right whale 
population. On page 42, the draft SAR strikes text indicating that 
``the existence of important habitat areas is not presently well 
described,'' but nonetheless states that ``long-range matches indicate 
an extended range for at least some individuals'' and ``the location of 
much of the population is unknown during the winter.'' In the absence 
of new data, the MLA recommends that the deleted text remain in the 
document to help the reader understand that much of North Atlantic 
right whale habitat remains poorly understood.
    Response: The new text represents NMFS' evolving understanding of 
right whale habitat. We continue to close knowledge gaps. Some blanket 
statements retained from previous versions of the SAR are no longer 
accurate. We endeavor to provide the most pertinent information for the 
reader.
    Comment 30: MLA comments that on page 42, NMFS has removed language 
stating that the majority of right whale sightings occur within 90 
kilometers (km) of the shoreline of the southeastern United States. 
However, at page 43, the draft SAR states that ``telemetry data have 
shown rather lengthy excursions, including into deep water off the 
continental shelf (Mate et al. 1997; Baumgartner and Mate 2005).'' Has 
NMFS received new data that warrants noting North Atlantic right whale 
excursions into deeper water but not that North Atlantic right whales 
are known to occur within 90 km of the shoreline? The MLA recommends 
that both are important to include in the final SAR, and NMFS should 
provide additional details on the number of North Atlantic right whales 
known to use these habitats.
    Response: The SAR includes both text and a figure that describes 
the distribution of sightings. The statement that the majority of 
sightings occur within 90 km of the shoreline was misleading because it 
does not account for effort; most right whale sightings occur close to 
shore because that is where most people are present to see and report 
the sightings. The excursions into deep water are not otherwise well 
represented. Telemetry data provide another dimension to NMFS' 
understanding and are important to note.
    Comment 31: MLA noted that, on page 43, the draft SAR states that 
``New England waters are important feeding habitats for right whales, 
where they feed primarily on copepods (largely of the genera Calanus 
and Pseudocalanus).'' MLA believes the best available information 
allows NMFS to be more specific in this statement. Given the pending 
regulatory focus on offshore Maine, MLA believes it would be 
appropriate to distinguish where these feeding grounds occur.
    Response: The narrative in the SAR is meant to provide only a 
general description of right whale distribution. NMFS is providing 
other products with detailed information on right whale densities 
throughout the right whales' range for management and Atlantic Large 
Whale Take Reduction Team consideration.
    Comment 32: On page 44, the draft SAR states: ``In 2016, the 
Northeastern U.S. Foraging Area Critical Habitat was expanded to 
include nearly all U.S. waters of the Gulf of Maine (81 FR 4837, 26 
February 2016).'' MLA requests that NMFS clarify that critical habitat 
is designated because it contains at least one physical or biological 
feature to support foraging, and not necessarily because NARW have been 
observed to forage in all designated areas throughout the entire Gulf 
of Maine. Some readers may not understand the regulatory criteria for 
designating critical habitat, which are not dependent upon whale 
presence.
    Response: NMFS agrees with this distinction, and language has been 
added to this point in the final 2020 NARW SAR.
    Comment 33: MLA noted, on page 44, the draft SAR states: ``An 
important shift in habitat use patterns in 2010 was highlighted. . . 
The number of individuals using Cape Cod Bay in spring increased, (Mayo 
et al. 2018). In addition, right whales apparently abandoned the 
central Gulf of Maine in winter (see Cole et al. 2013), but have since 
been seen in large numbers in a region south of Martha's Vineyard and 
Nantucket Islands. . . . Aerial surveys of the Gulf of St. Lawrence 
during the summers of 2015, 2017, and 2018, documented at least 34, 
105, and 131 unique individuals using the region, respectively (NMFS 
unpublished data).'' MLA believes NMFS should provide as much detail as 
possible to help the public understand the spatial distribution of 
North Atlantic right whales. MLA requests the inclusion of the number 
of North Atlantic right whales and proportion of the population sighted 
in Cape Cod Bay (as noted in previous MLA comments), clarify what is 
meant by central Gulf of Maine (which MLA interprets to be the portion 
of the Gulf of Maine located off the Maine coast), and include the 
proportion of North Atlantic right whales represented by Gulf of St. 
Lawrence sightings.
    Response: Clarification has been added to text regarding the 
central Gulf of Maine location. Describing the proportion of 
individuals sighted in various habitats may provide a false impression 
of our level of knowledge of right whale use of these areas. 
Photographic capture of individuals and maximum likelihood models of 
these data indicate considerable immigration

[[Page 38998]]

and emigration of individuals. A tally of individuals seen in a habitat 
does not accurately convey the spatial distribution of right whales, or 
potential risk. There is a significant difference in risk levels if 10 
whales occupy an area for a day versus 10 whales occupying an area for 
100 days. NMFS' level of understanding is evolving and is currently 
better in some areas than others. The text is an accurate reflection of 
our current understanding when considering the combined effects of 
sightings, survey effort, and potential residency of right whales.
    Comment 34: MLA commented that, on pages 44-45, the draft SAR 
strikes the language: ``an additional interpretation of paternity 
analyses is that the population size may be larger than was previously 
thought. Fathers for only 45 percent of known calves have been 
genetically determined; yet, genetic profiles were available for 69 
percent of all photo-identified males (Frasier 2005). The conclusion 
was that the majority of these calves must have different fathers that 
cannot be accounted for by the unsampled males, therefore the 
population of males must be larger (Frasier 2005).'' MLA comments it is 
unclear why this text citing data from Frasier (2005) is struck from 
the SAR and why Fitzgerald (2018) now represents the best available 
information?
    Response: NMFS has determined that Fitzgerald (2018) best 
represents the current understanding of pedigree-informed abundance 
estimation; however, Frasier (2005) has not been conclusively refuted. 
We have restored Frasier (2005), and added Frasier et al. (2007), to 
the text and references.
    Comment 35: MLA points out that on page 56, the draft SAR states: 
``Whales often free themselves of gear following an entanglement event, 
and as such scarring may be a better indicator of fisheries interaction 
than entanglement records.'' As noted previously, this statement falls 
short of providing a useful and complete understanding of scarring data 
for the relevant time period. As described above, the New England 
Aquarium (2020) states that the majority of entanglements between 2014 
and 2018 are minor (62 percent).
    Response: This is a valid point, and NMFS will include more 
detailed results from entanglement scar-coding research in a future 
draft NARW SAR, as resources allow.
    Comment 36: MLA noted, on page 56, the SAR cites three studies 
concluding that North Atlantic right whales mitigation measures 
implemented prior to 2009 have not worked, and that the effectiveness 
of measures implemented since 2009 have not yet been evaluated. NMFS 
has reported on multiple occasions in conversations with the Atlantic 
Large Whale Take Reduction Team that the 2009 groundline rule has been 
effective, citing data that no groundlines have been identified as the 
primary entangling gear on right whales since its implementation, yet 
the SAR states that the effectiveness of these measures has yet to be 
evaluated. In addition, as noted above, the SAR should report data 
showing that there has been a 90 percent decline in instances of 
lobster gear removed from entangled North Atlantic right whales since 
2010. There were four known cases of lobster gear removed from North 
Atlantic right whales from 1997 to 2000, six from 2000 to 2010, and one 
from 2010 to 2019. The only confirmed M/SI resulting from entanglement 
in lobster gear occurred in 2002.
    Response: In this instance, the SAR is reporting on the population 
level effect of the groundline rule, that is, if the 2009 rule has 
significantly reduced entanglement rates. The absence of groundline as 
primary entangling gear is a positive result, but a comprehensive 
evaluation of effectiveness of the rule requires a long time series for 
a statistically robust analysis. Opportunistic records cannot provide 
any rate change information, such as injury rate relative to fishing 
levels, because the variables affecting detection are largely unknown.
    Comment 37: MLA comments that the draft SAR contains errors in 
Table 3. First, the entanglement that occurred on 9/23/2016 (ID 3694) 
has been confirmed to have involved Canadian trap/pot gear since the 
draft SAR was published. The country code in Table 3 for this entry and 
the M/SI for entanglement by country of origin should be updated 
accordingly. Second, there is a minor clerical error that should be 
corrected for consistency. The entanglement that occurred on 7/30/2018 
(ID 3843) is miscoded as ``-''. The correct coding for this entry is 
``GU''.
    Response: The gear retrieved from #3694 was identified as Canadian 
snow crab in April 2018. It was previously reported as XU with unknown 
gear but has been updated to CN pot/trap in the final 2020 SAR. The 
coding for 7/30/2018 (ID 3843) has been updated to ``GU'' in the final 
2020 SAR.
    Comment 38: MLA requests that the draft SAR disclose the current 
limits of the Pace model. MLA comments that the draft SAR (p. 46) could 
be construed by the public to mean that Pace et al. (2017) fully 
accounts for changes in capture probability. However, the Pace model is 
relatively new and highly sensitive to additional years of data, in 
part because subsequent re-sightings influence the probability of 
recapture and estimate of mortality.
    Response: The Pace model does account for changes in capture 
probability (see Figure 3 in the final 2020 SAR), and builds on the 
full sighting history of all individual right whales to provide 
population estimates that are robust to changes in whale distribution 
and survey effort. This approach, coupled with high levels of effort to 
photographically capture individuals each year, provides relatively 
precise estimates and the ability to detect small changes in the 
population from year to year.
    Comment 39: MLA comments that the draft SAR should make clear that 
while Pace et al. (2017) assumes no natural mortality, natural 
mortality has been documented by Taylor et al. (2013) and Curtis et al. 
(2014). The fact that there is a significant amount of neonate 
mortality (see draft SAR, p. 55) is critical for the public to 
understand. By ignoring neonate mortality, as done by the Pace model, 
MLA believes the below-expected number of individuals recruited into 
the population could be construed as a reflection of the NARW calving 
rate when, in fact, natural mortality is occurring. The appropriate 
regulatory and management responses to an anomalously low calving rate 
are different from elevated neonate mortality from natural predators. 
MLA requests the SAR cite relevant literature on natural mortality and 
put it in the context of studies such as Pace et al. (2017).
    Response: First, the Pace et al. (2017) model does not assume any 
particular cause of death (natural or human-caused); it simply allows 
one to estimate total mortality using sighting histories as described 
in the draft SAR. Second, we agree that there are likely neonate 
mortalities that go undetected, some of which may due to natural 
causes. However, since these undetected neonates would not have a 
sighting history, including these instances would only add to the total 
mortality derived from the Pace et al. (2021) method and would not 
change the findings of Sharp et al. (2019) that all non-calf mortality 
for which cause of death could be determined was human-caused. To date, 
only one neonate mortality was determined to be from white shark 
predation. Pre-mortem shark attack was determined to be a contributing 
cause of death of two other calves that were entangled in fishing gear 
(Taylor et al. 2013). In general, calving rate in this population is 
determined by extensive survey effort along the coast of the

[[Page 38999]]

Southeastern United States, with very few individuals found to ``enter 
the population'' without having been detected as calves in recent 
years.
    Comment 40: MLA points out that the SAR concludes 100 percent of 
the estimated mortality of 18.6 animals per year is assumed to be 
human-caused and comments that this may be somewhat positively biased 
(i.e., a slight overestimate) given that some calf mortality is likely 
not human-caused. Although the draft SAR acknowledges this is likely a 
``slight overestimate,'' its conclusion that all mortality is human-
caused is not supported by Sharp et al. (2019). The draft SAR ignores 
the underlying data that of 124 whales examined, 42 percent were 
confirmed to be anthropogenic (26 due to vessel strikes, 26 due to 
entanglement), and 58 percent were due to natural or unknown cause (18 
neonates died of natural causes, while 54 died of unknown causes). With 
natural causes constituting a total of 14.5 percent of all examined 
individuals and 25 percent of those incidents where cause was 
confirmed, it is not a ``slight overestimate'' and the best available 
scientific information does not support attributing all mortalities of 
unknown cause to human activity. MLA reiterates that the SAR must be 
revised to accurately reflect the best available science.
    Response: NMFS disagrees with the assertion that Sharp et al. 
(2019) does not support the assignment of all estimated mortality to 
human causes. Only 6 deaths of the 124 (2 percent) documented between 
1970 and 2018 were attributed to natural causes, and all 6 were calves. 
For one calf, shark predation was implicated; the other natural deaths 
were determined to have been stillbirth, dystocia, or malnutrition. 
Conversely, 100 percent of all examined, non-calf carcasses for which 
cause of death could be established were determined to have died from 
either entanglement or vessel collision. Cause of death could not be 
verified for the remaining carcasses due to either decomposition or 
logistical constraints, such as distance from shore or poor field 
conditions. While it is possible that some of these unexamined deaths 
were due to natural causes, existing evidence indicates right whales 
rarely die of natural causes. Also see response to comment 39.
    Comment 41: MLA states that the report by Kenney (2018) is 
fundamentally flawed and should not be cited in the SAR. The draft SAR 
cites Kenney (2018) to support the statement that ``[p]rojection models 
suggest that the [maximum net productivity rate] could be 4 percent per 
year if female survival was the highest recorded over the time series 
from Pace et al. (2017).''
    Response: The Kenney (2018) reference is a relevant, peer-reviewed 
study that helps provide context for the impacts of fishery-related 
mortality on the right whale population. The study does account for 
other mortality, removing only confirmed fishery-related deaths. 
Several scenarios are provided with varying levels of hypothetical 
entanglement mortality rates corresponding to degrees of compliance 
with MMPA regulations. While the paper presents a very simple 
representation of complex processes, the model parameters are 
reasonable and the results are valid.
Gray Seal Western North Atlantic
    Comment 42: The Commission requests improved reporting of serious 
injury data for gray seals. Human-caused serious injury data are 
reported by source within the SARs, including both observations and 
extrapolations, if possible. Summaries of observations of human-caused 
injuries may include some uncertainty of the specific source, but the 
Commission believes these should still be included in the total M/SI 
summaries reported in the Status of the Stock section relative to PBR 
level.
    The Commission is concerned that numerous observations of 
potentially serious injuries of gray seals are not being accounted for 
in the SAR. Based on unmanned aerial surveys of gray seals hauled out 
on shore, Martins et al. (2019) reported the minimum total number of 
entangled gray seals could range from 192 to 857 (or 0.83 percent to 
3.7 percent of the population in U.S. Atlantic waters). It appears that 
these seriously injured animals are not being counted in either the 
commercial fisheries observer M/SI data or the stranding data. Zero 
serious injuries were reported for 2014-2018 in the commercial 
fisheries observer data (for both gillnet and trawl fisheries in which 
mortality is known to occur), and only mortalities are being reported 
in the human-interaction stranding table. Further, because no serious 
injuries are reported in fisheries observer data, these injured animals 
are not accounted for in the extrapolated M/SI estimates either.
    The Commission recommends that NMFS ensure that these observations 
of injured seals are being accurately quantified and included in the 
SAR, consistent with the agency's 2012 guidelines on injury 
determinations (including consultation with staff from other Science 
Centers). The Commission also believes NMFS should continue to 
collaborate with the Northwest Atlantic Seal Research Consortium, 
Northeast Fisheries Observer Program, and regional stranding responders 
on efforts to better photo-document and identify injured and dead 
seals.
    Response: NMFS is actively collaborating on this issue both 
internally and externally with the Northwest Atlantic Seal Research 
Consortium. NMFS plans to address how to better document the number of 
animals living with fisheries entanglements in order to account for 
them in the SAR, via a standardized system for data collection and 
entry into the National Stranding Database. The Northeast Fisheries 
Science Center, in partnership with other organizations, has also 
submitted a proposal to utilize artificial intelligence to identify 
specific individuals with entanglements from photographs, which is 
necessary to avoid double reporting of animals that may live with 
serious entanglements for several years.
Humpback Whale, Gulf of Maine
    Comment 43: The Coalition appreciates the inclusion of cryptic 
mortality in this analysis, which appropriately elevates the stock to 
strategic as a result. The Coalition reiterates their comments from 
last year that the distribution map, while based on NOAA survey data, 
does not accurately depict the distribution of humpback whales, 
particularly in the near shore mid-Atlantic areas.
    Response: There is a technical error with the Gulf of Maine 
humpback whale SAR and, as a result, this report has not been 
finalized. An updated draft report will be published in a subsequent 
SAR cycle.
Bryde's Whale, Gulf of Mexico Stock
    Comment 44: The Coalition appreciates the extensive updates to the 
Gulf of Mexico Bryde's whale SAR and reminds NMFS that, as an ESA-
listed species, the SAR for these whales should be updated every year. 
The Coalition also reiterates their introductory comments on the 
general timing of review and comment for the 2020 SARs and the 
substantial delay in including new information, as it is now known that 
these whales have been designated as a new species: Rice's whales. The 
Coalition requests that this new designation be recognized and the 2021 
SAR updated accordingly.
    Response: Section 117 of the MMPA requires NMFS to review annually, 
and update as necessary with any new information, SARs for strategic 
stocks, which would include stocks of ESA-listed species. NMFS will 
review the Bryde's whale SAR annually to ensure

[[Page 39000]]

that applicable updates are incorporated.
    The 2021 SARs were drafted in fall of 2020, prior to the 
publication of the new species recommendation, and the Gulf of Mexico 
Bryde's whale SAR is not being updated in the 2021 cycle. In order to 
change the name of the species listed under the ESA, NMFS must update 
the common and scientific name of this species in the Code of Federal 
Regulations (CFR; see 50 CFR 224.101) by publishing a technical 
correction in the Federal Register (FR), a process that is currently 
underway. After the CFR has been updated, we will make the name change 
in the SAR. Prior to initiating this technical correction, NMFS awaited 
notification from the Taxonomy Committee of the Society for Marine 
Mammalogy that they had reviewed the new publication recommending 
recognition of the Bryde's whales in the Gulf of Mexico as a different 
species, and that they agreed with the findings and would place the new 
species on the accepted list of taxonomic names. NMFS received that 
notification on March 4, 2021. Importantly, the name of the species 
does not affect the protections it receives under the ESA or the MMPA.

Comments on Pacific Issues

Hawaiian Monk Seal
    Comment 45: The Coalition states that the Harting et al. (2020) 
analysis provides important information to guide recovery planning by 
comparing the impact of multiple threats, and should be cited. Their 
analysis demonstrates that anthropogenic causes of death of Hawaiian 
monk seals have a larger impact than either natural or disease causes 
of death. The Coalition also requests that the recent decision by NMFS 
that the two monk seals found dead off Kauai in late 2020 likely 
drowned in lay nets be included in the SAR.
    Response: Since these human-caused mortalities are outside the time 
period for the final 2020 SAR (2014-2018), Harting et al. (2020) will 
be cited in the draft 2021 SAR. Human-caused deaths that occurred in 
2020 will be reported in the 2022 SAR.
Bottlenose Dolphin
    Comment 46: The Coalition suggests there are several studies about 
bottlenose dolphin population abundance and health that should be 
included in the SARs. First, Van Cise et al. (in press) observed a 
decline in abundance in three out of four stocks and lower-than-
expected survival rates in all stocks. For these small populations that 
experience concentrated anthropogenic disturbances, the authors 
recommended closely monitoring trends in abundance. Second, Stack et 
al. (2019) encouraged the use of bent dorsal fin observations as an 
indicator of population health for odontocetes. In the case of 164 
bottlenose dolphins sighted during the study, none included a bent 
dorsal fin. The study noted that one bottlenose dolphin with a bent 
dorsal fin in Hawaii was reported in Alves et al. (2018). The Coalition 
encourages the SARs for these species to include an account of 
sightings of bent dorsal fins. Third, in a study of coastal waters and 
marine debris, bottlenose dolphins had the largest area of interaction 
risk out of all odontocete species (Currie et al. 2017). The SARs 
should include this study as a high-concern threat to bottlenose 
dolphin habitat.
    Response: NMFS is aware of the new abundance estimates for 
bottlenose dolphins of the Hawaiian Islands Stock Complex presented in 
Van Cise et al. (in press). These estimates will be included in the 
2022 draft SARs along with appropriate caveats about the potential 
influence of sampling variability and bias on the estimates and 
associated trends. We appreciate the work done by Stack et al. (2019), 
although we interpreted their conclusions as calling for a 
consideration of the impacts of bent dorsal fins on population health 
given the potential for long-term effects on individuals, as opposed to 
suggesting that bent dorsal fins should be used as an indicator of 
population health. As the authors note, bent dorsal fins are also 
extremely rare, which makes them less reliable as a measure of 
population health compared to an attribute such as body or skin 
condition that could be readily measured across individuals. That said, 
bent dorsal fins can be indicators of impacts such as fishery 
interactions. When bent dorsal fin observations are made and linked to 
human-caused injuries, these could be cited in the SARs of relevant 
species, as is currently done with other information that provides 
evidence of potential threats. In that respect, we agree that the 
threat posed by marine debris described in Currie et al. (2017) should 
be considered for inclusion in the SARs of relevant species.
Killer Whale, Southern Resident Stock
    Comment 47: The Coalition reiterates previous comments that the 
change in return timing and overall use of core summer habitat 
complicates the established census schedule that the SAR relies on. The 
Coalition requests that NMFS use the most recent population estimate 
for Southern Resident killer whales (SRKW) and urges NMFS to include 
the most recent full count from the Center for Whale Research in the 
SAR, regardless of the date that count was reached. The Coalition asks 
that NMFS clearly state the decline observed following the ``peak 
census count of 99 animals in 1995,'' with average decrease per year, 
and specifically for the time period included in this SAR. Recent 
Population Viability Assessments completed in both the U.S. and Canada 
should be used to describe the current population trend as well as 
future outlook.
    Response: NMFS has helped support the Center for Whale Research's 
annual Southern Resident killer whales census since 2004. The census 
technically ends on 1 July of each year (that date continues to be used 
in order to maintain comparability to prior years). We note that that 
Center for Whale Research does not provide their 1 July results until 1 
October of that year, hence they have the benefit of two additional 
months, in particular September (for which SRKW still have a relatively 
high occurrence rate in inland waters), to confirm if animals are 
missing or assess the survivability of calves. In recent years NMFS has 
been providing additional support to the Center for Whale Research for 
surveys outside inland waters to allow them to complete the census by 1 
July. As well, in recent years DFO has been working at the west 
entrance to the Strait of Juan de Fuca from mid-July to mid-August and 
has provided the Center for Whale Research with photo-identifications 
from their fairly frequent encounters. However, given that mortalities 
are relatively rare events (e.g., 4 mortalities in 2019, or 
approximately one every 3 months), a delay of a month or two in the 
Center for Whale Research's ability to complete the census only 
fractionally raises the likelihood that a mortality that occurred after 
1 July would be inappropriately ``assigned'' to the prior year census.
    Section 117(2) of the MMPA specifies that SARs shall include 
information on the current population trend. The Population Viability 
Assessments for SRKW are only projections of the population size, and 
reporting this information herein has no statutory requirement 
associated with the SAR and is not included. Language on the 
population's annual rate of decline following the peak census count in 
1995 is included in the SAR, along with the current census value. In 
addition, Figure 2 displays the population census since 1974, including 
how the population has increased and decreased in size

[[Page 39001]]

following the peak census in 1995. Originally, the caption of Figure 2 
provided the citation to Center for Whale Research 2019. However, given 
the Coalition's comment, we have corrected this citation to be Center 
for Whale Research 2020, which provides annual census values since 1974 
from which specific annual changes in population abundance can be 
easily calculated if desired.
    Comment 48: The Coalition notes that growth rates and productivity 
in different Resident killer whale populations may be affected by 
variability in diet, environmental conditions, and habitat range. The 
Coalition points out that Alaskan Resident killer whales consume 
Chinook salmon, similar to Northern Resident killer whales (NRKW) and 
SRKW but appear to have a more diverse diet and benefit from larger and 
healthier salmon runs. The maximum net productivity rate for NRKW has 
been updated and is now estimated to be 2.9 percent. The Coalition 
recommends using the same rate for SRKW, which yields a PBR of 0.11 (1 
animal every 9 years) for a population level of 73 whales, as included 
in this SAR.
    Response: NMFS raised this issue with the Pacific SRG in 2020. The 
Pacific SRG recommended the continued use of Rmax = 0.035 until a 
better estimate is available for review. We agree with this assessment 
and will continue to use this Rmax, reviewing it when new information 
is available.
Humpback Whale, California/Oregon/Washington Stock
    Comment 49: The Coalition urges NMFS to revise the CA/OR/WA stock 
to reflect that the Central America distinct population segment (DPS) 
is a demographically independent population (DIP) separate from the 
Mexico DPS and to provide abundance estimates for both.
    The Coalition requests the inclusion of the record of two dead 
humpback whales caught in Pacific whiting midwater trawl nets in 
separate incidents in July 2020. Seen only on electronic monitoring 
(EM), the whales could neither be identified to DPS nor necropsied to 
determine cause of death. The Coalition notes that as EM programs 
continue to expand, and more vessels opt to use EM instead of 
observers, it will be increasingly difficult to track marine mammal 
interactions as cameras are not currently designed to monitor marine 
mammal interactions. This will in turn decrease the amount of data on 
marine mammal interactions with commercial fisheries and increase 
uncertainty in M/SI estimates in several marine mammal stock 
assessments. The Coalition recommends NMFS improve the quantity and 
quality of information collected on marine mammal interactions.
    Response: NMFS appreciates this recommendation regarding 
designating humpback whale stocks. In late 2019, NMFS finalized a new 
Policy Directive: Reviewing and Designating Stocks and Issuing Stock 
Assessment Reports under the Marine Mammal Protection Act (NMFS 2019). 
This directive established that DIP delineation and stock designation 
are separate processes. DIP delineation is the process of interpreting 
the scientific lines of evidence supporting whether groups of animals 
are demographically independent, including determining the geographic 
range of the groups. DIP delineation occurs outside the SAR process, 
and is described in Martien et al. (2019). Stock designation is the 
process of officially classifying a stock as a management unit that 
will then be described and assessed in SARs and considers whether 
individual DIPs can be effectively managed as stocks. In light of the 
2016 ESA humpback whale DPS listings, the MMPA humpback whale stock 
designations are currently being re-evaluated according to the process 
laid out in NMFS (2019). NMFS is reviewing the best available science 
on humpback whale population structure in the Pacific and evaluating 
the lines of evidence to, where possible, delineate humpback whale DIPs 
as guided by Martien et al. (2019). This review and evaluation is 
currently underway and following its completion, we will follow the 
process to revise stock designations following NMFS (2019) as resources 
allow.
    Both the humpback whale incidents referred to in the comment were 
outside the time frame of this SAR. Regarding EM technologies, NMFS 
believes these can provide valuable supplementary data in addition to 
traditional fisheries observers for collecting data on fishing effort 
and catch (landings and discards), including bycatch of protected 
species. While we have made significant strides in assessing the 
technology and potential applications of EM, there are continuing 
policy and data-related challenges that come with new technologies. 
These include how to process and store the enormous amount of 
electronic data, enforcement of compliance issues, privacy concerns of 
fishery participants, costs, and image processing. As research and 
development efforts continue, we are actively working to include 
protected species in those efforts. In time, we expect to see EM 
technologies available for wider applications, including select 
fisheries for monitoring bycatch of protected species.
False Killer Whale, Hawaiian Island Stock Complex
    Comment 50: HLA appreciates that NMFS has updated the False Killer 
whale SAR to incorporate the results of the line transect survey that 
occurred in 2017, as well as NMFS' associated modeling work. For future 
surveys, HLA requests that the results be processed and reported in the 
SAR more promptly. HLA comments that it is not consistent with the 
MMPA, or otherwise acceptable, to update a SAR with key information 
four years after the data has been gathered. HLA believes the results 
presented in the draft SAR, which reflect the best available scientific 
information, demonstrate that the deep-set fishery's M/SI rate for the 
Hawaii Pelagic False Killer whale Stock (Pelagic Stock) is far below 
the stock's PBR. Specifically, the deep-set fishery's M/SI rate in the 
U.S. EEZ (6.5) is less than half of the PBR for the Pelagic Stock in 
the EEZ (16), and the fishery's overall Pelagic Stock M/SI rate (35.3 
[combining inside and outside the EEZ]) is less than 15 percent of NMFS 
estimated PBR for the central Pacific (259). These results confirm the 
positions HLA has taken since the False Killer whale Take Reduction 
Team formed in 2009--i.e., that NMFS has consistently underestimated 
the abundance of the Pelagic Stock and that the deep-set fishery's M/SI 
rate does not exceed, and has never exceeded, the PBR for that stock. 
HLA comments that it presented a detailed statistical analysis 
performed by Dr. Ray Hilborn showing that NMFS had substantially 
underestimated the population size of the Pelagic Stock in the Hawaii 
EEZ. At that time, NMFS estimated the EEZ stock size to be 484 whales. 
Dr. Hilborn's analysis concluded that a more accurate abundance 
estimate was 2,066 whales in the EEZ. After HLA presented those 
results, HLA believes NMFS wrongly criticized and discarded Dr. 
Hilborn's analysis.
    HLA comments that NMFS current estimate for the Pelagic Stock in 
the EEZ is 2,086 whales (only 20 more than Dr. Hilborn estimated in 
2009). HLA comments that the best available science, as reported in the 
draft SAR, shows that the population size of the Pelagic Stock in the 
EEZ has consistently been approximately 2,100 animals going back to 
2002. Specifically, the draft SAR, based on Bradford et al. (2020), 
estimates that the stock numbered 2,144 animals in 2010

[[Page 39002]]

and 2,122 animals in 2002. This demonstrates that the Pelagic Stock has 
never been ``strategic'' because the deep-set fishery's M/SI rate has 
never exceeded a PBR based on those abundances. This also shows that 
there was no basis, as HLA argued in 2009, to include the Pelagic Stock 
within the scope of the False Killer whale Take Reduction Team. 
Finally, HLA believes the best available science also shows that the 
Pelagic Stock is either increasing or, at worst, remaining stable. If 
NMFS' pre-2010 estimate of 484 whales for the Pelagic Stock in the EEZ 
is to be believed, then the stock has increased in size dramatically 
over the ensuing years. Alternatively, based on the current best 
available science (Bradford et al. 2020), the stock has remained stable 
at a high abundance (of approximately 2,100 whales) within the Hawaii 
EEZ since at least 2002. Either way, HLA believes there is no evidence 
that the Hawaii-based longline fisheries are having any noticeable 
impact on the stock.
    Response: NMFS agrees that the timely publication of results that 
inform SARs is important. Surveys were completed at the end of 2017, 
and the collected data were quality-checked and verified into 2018. New 
data protocols designed to improve abundance estimates for this species 
had to be integrated with existing line-transect methodology and 
updated analysis approaches to obtain the most robust estimates of 
abundance. After undergoing peer review, the final results were 
published in 2020, with the time between data collection and 
publication consistent with other studies using new approaches to 
generate estimates of abundance.
    False killer whale assessments are complex. We have learned a lot 
about false killer whale social structure and behavior over the past 
10-15 years that has significantly changed the way we collect and 
analyze survey data for this species. While we have much greater 
confidence in our 2002, 2010, and 2017 estimates now than we did when 
the 2002 or 2010 estimates were originally formulated, the older 
estimates were the best available estimates at the time they were 
published and used in the SARs. We no longer refer to those estimates 
in the SAR because they are no longer the best available. To refer to 
them now as rationale for arguing the stock has increased is 
inappropriate. The MMPA calls for using the best available scientific 
data available at the time that the assessments are to be completed. 
PBR is designed to deal with great uncertainty and is inherently 
precautionary. Although it is coincidental that the Hilborn 2009 
analysis produced an abundance estimate that is close to our current 
estimate, our assessment of that analysis has not changed. There were 
documented problems with the Hilborn analysis, and it used what are now 
severely outdated data and parameter estimates, such that it is 
inappropriate to compare the outdated Hilborn 2009 estimate with our 
current estimate representing years of targeted improvements in data 
collection, analytical approach, g(0) estimation, etc.
    With regard to comparing the current PBR to fishery mortality, we 
are clear within the SAR and in all other communications about our 
pelagic stock abundance estimates that the full central Pacific 
estimate provided in Bradford et al. (2020) and in the SAR represents 
more than one stock of false killer whales. The Palmyra stock, Hawaii 
pelagic stock, and any Eastern Pacific stocks are all also partially 
included here. Since we do not presently have high-seas boundaries for 
any of these stocks, we are not able to partition the full central 
Pacific estimate to the Hawaii pelagic stock, and, therefore, cannot 
meaningfully compare the full Hawaii pelagic stock abundance and PBR 
with fishing mortality.
    Comment 51: HLA comments that the draft 2020 SAR assigns a recovery 
factor of 0.5 to the Hawaii pelagic stock, which is the value typically 
assigned to depleted or threatened stocks or stocks of unknown status 
with a mortality estimate CV of 0.3 or less. However, the Hawaii 
pelagic stock is not depleted or threatened, nor is its status unknown. 
This status should be accurately reflected with a recovery factor that 
is greater than 0.5 (i.e., closer to 1.0 than to 0.5).
    Response: A recovery factor of 0.5 is appropriate for the Hawaii 
pelagic stock. There are no estimates of population trend for this 
stock, and the model used to produce the new 2002, 2010, and 2017 could 
not accommodate a trend term given the sparse dataset. Stable or 
increasing levels of bycatch and depredation may be driven by a number 
of factors, including increasing overlap in the occurrence of false 
killer whales and fishing activity, learning by whales to approach 
fishing boats, increasing false killer whale population, or changes in 
the fishery that allow for higher rates of depredation or observed 
bycatch.
    Comment 52: HLA comments there have been no Hawaii-based deep-set 
longline fishery interactions with the Main Hawaiian Islands (MHI) 
insular false killer whale stock and comments that the draft SAR 
incorrectly attributes M/SI to the deep-set fishery in 2017 and in 
2018. HLA requests that, if NMFS nevertheless proceeds to attribute M/
SI to the deep-set fishery (which HLA strongly disagrees with), then 
HLA requests the draft SAR should at a minimum state that there are no 
confirmed deep-set fishery interactions with the MHI insular stock, and 
that no deep-set fishery interactions with the MHI insular stock have 
occurred in the very limited area where longline effort might overlap 
with the assumed range for the stock.
    Response: NMFS has addressed this concern in previous responses to 
comments on the SARs. NMFS' Observer Program does not observe every 
deep-set trip. With ~20 percent coverage, some statistical 
extrapolation/approximation of what is observed is required. False 
killer whale takes are relatively rare. The rarity of observed takes, 
together with the sampling design mean that the lack of observation 
does not equate to the lack of actual interactions. We agree that we 
can more explicitly state that no confirmed MHI insular false killer 
whales have been observed as taken in this fishery, though this needs 
to be balanced by the fact that very few of the observed takes are 
identified to stock due to the lack of tissue samples or adequate 
photographs. NMFS is not attributing interactions that occur outside of 
the MHI insular stock area to the MHI insular stock. We are prorating 
the estimated portion of the take to account for fishing effort that 
occurs within the MHI insular stock range and based on the relative 
density of the false killer whale stocks in this area. In reality, if 
an MHI insular false killer whale were taken by the fishery, we would 
very likely be underestimating the impact on this stock given our 
current proration method.
    Comment 53: HLA notes that the draft SAR estimates the MHI insular 
stock abundance to be 167 animals, based upon Bradford et al. (2018), 
which found that the population size of the MHI insular stock in 
certain study areas has consistently ranged between 144 and 187 animals 
over a 16-year period. HLA comments that the draft SAR's reported 
abundance estimate of 167 animals underestimates the MHI insular 
stock's abundance, perhaps to a very significant degree. HLA comments 
that it is unscientific and contrary to the MMPA for NMFS to report the 
estimated abundance for only a portion of the MHI insular stock. HLA 
notes that the MMPA requires the SAR to ``describe the geographic range 
of the affected stock'' and to provide minimum population estimates for 
``such stock'' (not a ``portion of such stock''). HLA

[[Page 39003]]

states in its comments that NMFS has made no attempt to estimate the 
abundance of the MHI insular stock across its range or to apply 
``appropriate correction factors'' to do so. HLA notes that the draft 
SAR is therefore legally deficient and must be corrected.
    If NMFS nonetheless retains the MHI insular stock abundance 
estimate of 167 animals, then HLA believes that number should be 
considered the ``minimum population estimate.'' HLA notes that as 
Bradford et al. (2018) acknowledges, the estimate of 167 animals is an 
underestimate, so there is no need to apply an additional reduction 
factor to this number for purposes of reporting the ``minimum 
population estimate'' because NMFS already has a scientifically 
published ``reasonable assurance that the stock size is equal to or 
greater than'' 167 animals. HLA comments that to report an even lower 
``minimum population estimate'' is arbitrary and contrary to the MMPA.
    Finally, HLA believes should NMFS retain the MHI insular stock 
population estimate of 167 animals with no additional information about 
the actual population size, it must, consistent with its obligation to 
report the best available scientific information, disclose what 
specific portion of the MHI insular stock's range was surveyed in the 
Bradford et al. (2018) study. HLA believes if NMFS is going to report 
an abundance estimate for only a portion of an MMPA stock's range, then 
at the very minimum it must disclose to the public what portion of the 
range is at issue.
    Response: The second excerpt from Bradford et al. (2018) was 
incomplete. The remainder of the quoted paragraph is: ``However, 
movement analyses of 2 of the 3 social clusters have shown that 
individuals satellite-tagged by CRC [Cascadia Research Collective] on 
the leeward sides of the MHI regularly use both leeward and windward 
waters throughout the chain (Baird et al. 2010, 2012), which suggests 
there are unlikely to be individuals in the population that never use 
the predominantly leeward sampling areas [that were clearly identified 
relative to the stock range in Figure 1 of the paper]. Therefore, it is 
likely that all individuals in the population have been exposed to 
sampling efforts at some point during the study period, although not 
necessarily in each year.'' In general, this paper appropriately 
acknowledges that unavoidable sampling biases led to some degree of 
underestimation in the annual abundance estimates, but that all 
supporting evidence indicates the population is small. Thus, there is 
no basis to suggest that this underestimation is substantial. NMFS has, 
and will continue to work towards understanding and addressing the 
availability issues discussed at length in Bradford et al. (2018), 
though we do not believe the underestimation is equal in all years or 
that it is substantial in any year. We will continue to use the point 
estimates and CV provided there to compute an Nmin.
    Comment 54: WPRFMC comments that in the draft 2020 SAR, NMFS uses 
only the most recent abundance estimate to calculate the PBR. WPRFMC 
recommends that using a tiered approach for calculating PBR based on 
data availability would allow for the use of all available abundance 
estimates to estimate the minimum population estimate (Nmin) and 
recovery factor, and reduce the uncertainty in the PBR estimates. 
WPRFMC therefore requests that NMFS include all available abundance 
estimates for the pelagic false killer whale stock using the approach 
developed by Brandon et al. (2017).
    Response: NMFS appreciates the request for more expediency in 
generating false killer whale abundance estimates and reporting them in 
the SARs. We understand the importance of these estimates and their 
bearing on management, which underscores our commitment to ensure our 
results are as robust and reliable as possible. Please see our response 
to comment 50.
    Regarding the tiered PBR approach, the MMPA calls for using the 
best available scientific data available at the time that the 
assessments are to be completed. The NMFS Guidelines for Assessing 
Marine Mammal Stock (GAMMS 2016), provide guidance on the calculation 
of Nmin to the 20th percentile of a log-normal distribution. This 
approach is designed to deal with great uncertainty and is inherently 
precautionary.
North Pacific Gray Whales
    Comment 55: The Makah Tribe notes that the draft SAR compounds 
contextual ambiguity by using the name Western Breeding Stock (WBS) to 
identify the ``third unnamed stock'' in the description of the 
International Whaling Commission (IWC) Scientific Committee's stock 
structure hypothesis 4a. They recommend that NMFS either name the third 
implied stock based on its feeding and wintering grounds, e.g., 
Sakhalin Eastern Breeding Stock which will distinguish it from the WBS 
and Eastern Breeding Stock (EBS), or use the same phrase as the IWC 
Scientific Committee: ``WFG (Western Feeding Group) whales that 
interbreed largely with each other while migrating to the Mexican 
wintering ground'' (IWC 2020b).
    Response: NMFS has aligned the stock hypothesis language used in 
the IWC stock structure document (IWC 2020b) with that appearing in 
both the Eastern North Pacific (ENP) and Western North Pacific (WNP) 
gray whale SARs. This should eliminate the previously confounding 
reference to the WBS for the implied third breeding stock. The unnamed 
third breeding stock referenced by the IWC is now referred to as ``WFG 
(Western Feeding Group) whales that interbreed largely with each other 
while migrating to the Mexico wintering ground.''
    Comment 56: The Makah Tribe comments that the new abundance 
estimate for the Pacific Coast Feeding Group (PCFG) was completed in 
late 2019 and should be included in the 2020 SAR in the section on 
Population Size, Potential Biological Removal, and other appropriate 
sections to reflect current information (Calambokidis et al. 2019). The 
SAR should also include the recently published abundance estimate for 
the ENP stock based on the 2019-20 survey (Stewart and Weller 2021). 
Also, the Makah Tribe recommends removing the description of the 
stranded whales as emaciated in the description of the Unusual 
Mortality Event (UME) in the Population Size section.
    Response: NMFS appreciates reference to new documents that became 
available during the public comment period for the draft 2020 SARs. New 
abundance estimates for ENP and PCFG whales will be included the next 
time the ENP SAR is revised. This will allow for thorough peer review 
by the SRG and adequate public comment. Language has been changed in 
the final 2020 SAR to better reflect the variable body conditions of 
stranded whales during the UME. Figures that pertain to the UME have 
been removed from the SAR and the reader is now pointed to the UME 
website, which includes periodic updates to the UME status.
    Comment 57: The Makah Tribe recommends the first sentence of the 
Subsistence/Native Harvest Information section be modified to remove 
the geographic limitation to the Bering Sea. Furthermore, the Makah 
Tribe requests that the sentence should recognize that gray whales were 
once hunted in Canada (Monks et al. 2001). Additionally, in the new 
text describing NMFS' proposed waiver, the Makah Tribe recommends two 
changes. First, in the reference to three annual strikes, the SAR 
should explain that this is the maximum number of strikes allowed under 
the proposed regulations, e.g.,

[[Page 39004]]

``based on the maximum allowed 3 strikes annually.'' Second, the 
description of the post-hearing comment period should reflect that it 
ended in March 2020, e.g., ``NMFS requested public comment.'' Also, the 
description of the IWC's approval of a gray whale catch limit should be 
revised to reflect current terminology, e.g, replacing ``quota'' with 
``catch limit,'' and should reflect changes to the catch limit made in 
2018.
    Response: NMFS has included new language in the final 2020 SAR to 
incorporate these suggestions.
    Comment 58: The draft SAR refers to unpublished reports that have 
since been published in peer-reviewed journals. The Makah Tribe 
recommends that the following replacement citations for unpublished 
reports be used where applicable: Lang et al. (2011b) should be updated 
to Lang et al. (2014) and Mate et al. (2010) should be updated to 
Lagerquist et al. (2019).
    Response: These references have been updated in the final 2020 SAR.
    Comment 59: Please see the Makah Tribe's recommended changes to IWC 
stock structure hypotheses in the draft SAR for the ENP stock, as the 
draft WNP SAR incorporates identical text.
    Response: See response to comment 57.
    Comment 60: The tribe comments that the draft SAR updates text 
regarding the estimated probabilities of a Makah hunt taking a WNP gray 
whale to reflect the conclusions of Moore and Weller (2018). However, 
in making the update, the draft SAR fails to carry forward an 
explanation of the probabilities that is helpful to laypeople reading 
the SAR and makes clear that the estimated probability of such a take 
is very low. The Makah Tribe recommends that an updated version of that 
explanatory sentence (``This corresponds to an expectation of greater 
than 1 WNP whale strike in one of every 83 to 167 years''), which is 
stricken in the raft SAR, be included in the revision. NMFS also needs 
to correct the 95 percent Bayesian Credible Interval (CRI) for the 
probability for a 10-year hunt to ``(95 percent CRI 0.030-0.093).'' 
Because the same text is used in the draft ENP SAR, the changes above 
should be made in revising that SAR as well.
    Response: NMFS has added language to reflect statements from the 
proposed rule (84 FR 13604; April 5, 2019) that provides details on the 
WNP risk assessment by Moore and Weller (2018).
    Comment 61: The Status of Stock section of the draft SAR begins 
with the assertion that ``[t]he WNP stock is listed as `Endangered' 
under the U.S. Endangered Species Act of 1973 (ESA) and is therefore 
also considered `strategic' and `depleted' under the MMPA.'' As with 
previous SARs for the WNP stock, no explanation of the listing status 
is provided, but the draft SAR does note an ongoing 5-year Status 
Review initiated by NMFS in 2018. The Tribe believes NMFS never 
addresses the crux of the issue, i.e., the agency's description of the 
WNP stock in the 1994 ESA delisting decision as geographically and 
reproductively isolated from the ENP stock is fundamentally 
inconsistent with the draft SAR's classification of whales migrating 
from Sakhalin to Mexico as part of the same WNP stock and, therefore, 
``Endangered.''
    In the draft SAR, intermittent observations of gray whales in Asian 
waters are cited as evidence of continued migration to an Asian 
breeding ground. Further, Cooke et al. (2019) found that up to 20 
percent of WNP whales migrate to breeding grounds in Asian waters, 
providing support for their conclusion that ``it is likely that a 
western breeding population that migrates through Asian waters still 
exists.'' At the same time, the IWC Scientific Committee has developed 
stock structure hypotheses where in the most plausible hypotheses the 
WBS, which in Makah's view corresponds to the WNP stock described in 
the ENP stock's delisting documents, has either been extirpated (3a and 
4a) or is extant but exists solely in Asian waters (5a). The same 
hypotheses postulate that whales that feed at Sakhalin and migrate to 
North America are either the WFG, which interbreeds with other whales 
of the EBS (3a and 5a) or breeds largely with other WFG whales while 
migrating to Mexico (4a). NMFS has never provided a rational 
explanation for its treatment of WFG whales, i.e., those Sakhalin 
whales that migrate to North America, as equivalent to the WBS, which 
as described by the IWC matches the agency's 1994 description of the 
geographically isolated, ``Endangered'' WNP stock. Indeed, the agency's 
incorrect use of ``WBS'' for the unnamed, implied third breeding stock, 
as discussed above, appears related to this lack of clarity in the 
draft SAR. Absent an explanation in the SAR, NMFS' assertion that the 
WNP stock described in the draft SAR is ``Endangered'' is untenable and 
the Status of Stock should be changed to ``unknown'' until NMFS makes a 
formal determination of the status of WFG whales.
    The Tribe has commented at length on this issue in previous draft 
SARs (2014 and 2018) and believes NMFS' response does not explain how, 
if at all, the agency's view of stock structure corresponds to the 
stock structure hypotheses of the Scientific Committee.
    Response: We acknowledge that the stock structure of North Pacific 
gray whales is an area of active investigation, internationally and 
domestically, as evidenced by the IWC's Scientific Committee currently 
recognizing three `high plausibility' stock structure hypotheses for 
WNP gray whales (IWC 2020). Consistent with our responses to related 
comments from the Makah on the 2018 SAR, we have relied on the best 
available information to update the ``Stock Definition and Geographic 
Range'' information in the final SAR. Also, NMFS has convened a Status 
Review Team to evaluate this information and the ESA status of WNP gray 
whales (83 FR 4032; January 29, 2018), including the delineation of any 
distinct population segment (DPS). Results from this evaluation will be 
incorporated as appropriate in future updates of the North Pacific gray 
whale SARs.

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    Dated: July 19, 2021.
Evan Howell,
Director, Office of Science and Technology, National Marine Fisheries 
Service.
[FR Doc. 2021-15701 Filed 7-22-21; 8:45 am]
BILLING CODE 3510-22-P