Marine Mammal Stock Assessment Reports, 12498-12505 [2010-5699]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Notices]
[Pages 12498-12505]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5699]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XP71


Marine Mammal Stock Assessment Reports

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

ACTION:  Notice of availability; response to comments.

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SUMMARY:  As required by the Marine Mammal Protection Act (MMPA), NMFS 
has incorporated public comments into revisions of marine mammal stock 
assessment reports (SARs). The 2009 reports are final and available to 
the public.

ADDRESSES:  Electronic copies of SARs are available on the Internet as 
regional compilations and individual reports at the following address: 
https://www.nmfs.noaa.gov/pr/sars/. You also may send requests for 
copies of reports to: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Office of Protected Resources, National Marine Fisheries 
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226, Attn: 
Stock Assessments.
    Copies of the Alaska Regional SARs may be requested from Robyn 
Angliss, Alaska Fisheries Science Center, 7600 Sand Point Way, BIN 
15700, Seattle, WA 98115.
    Copies of the Atlantic Regional SARs may be requested from Gordon 
Waring, Northeast Fisheries Science Center, 166 Water Street, Woods 
Hole, MA 02543.
    Copies of the Pacific Regional SARs may be requested from Jim 
Carretta, Southwest Fisheries Science Center, NMFS, 8604 La Jolla 
Shores Drive, La Jolla, CA 92037-1508.

FOR FURTHER INFORMATION CONTACT:  Tom Eagle, Office of Protected 
Resources, 301-713-2322, ext. 105, Tom.Eagle@noaa.gov; Robyn Angliss, 
Alaska Fisheries Science Center, 206-526-4032, Robyn.Angliss@noaa.gov; 
Gordon Waring, Northeast Fisheries Science Center, 508-495-2311, 
Gordon.Waring@noaa.gov; or Jim Carretta, Southwest Fisheries Science 
Center, 858-546-7171, Jim.Carretta@noaa.gov.

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 SARs for each stock 
of marine mammals occurring in waters under the jurisdiction of the 
United States. These reports contain information regarding the 
distribution and abundance of the stock, population growth rates and 
trends, the stock's Potential Biological Removal (PBR) level, estimates 
of annual human-caused mortality and serious injury from all sources, 
descriptions of the fisheries with which the stock interacts, and the 
status of the stock. Initial reports were completed in 1995.
    The MMPA requires NMFS and FWS to review the SARs at least annually 
for strategic stocks and stocks for which significant new information 
is available, and at least once every 3 years for non-strategic stocks. 
NMFS and FWS are required to revise a SAR if the status of the stock 
has changed or can be more accurately determined. NMFS, in conjunction 
with the Alaska, Atlantic, and Pacific Scientific Review Groups (SRGs), 
reviewed the status of marine mammal stocks as required and revised 
reports in each of the three regions.
    As required by the MMPA, NMFS updated SARs for 2009, and the 
revised reports were made available for public review and comment (74 
FR 30527, June 26, 2009). The MMPA also specifies that the comment 
period on draft SARs must be 90 days. NMFS received comments on the 
draft SARs and has revised the reports as necessary. The final reports 
for 2009 are available (see ADDRESSES).

Comments and Responses

    NMFS received letters containing comments on the draft 2009 SARs 
from the Marine Mammal Commission (Commission), four non-governmental 
organizations (Center for Biological Diversity, Humane Society of the 
United States, Cascadia Research Collective, and Hawaii Longline 
Association), a fishing company (Prowler Fisheries), and one 
individual. Most letters contained multiple comments.
    Unless otherwise noted, comments suggesting editorial or minor 
clarifying changes were incorporated in the reports but were not 
included in the summary of comments and responses below. Other comments 
recommended development of Take Reduction Plans or to initiate or 
repeat large data collection efforts, such as abundance surveys, 
observer programs, or other mortality estimates. Comments on actions 
not related to the SARs (e.g., convening a Take Reduction Team or 
listing a marine mammal species under the Endangered Species Act (ESA)) 
are not included below. Many comments, including those from the 
Commission, recommending additional data collection (e.g., additional 
abundance surveys or observer programs) have been addressed in previous 
years. NMFS' resources for surveys, observer programs, or other 
mortality estimates are fully utilized, and no new large surveys or 
other programs may be

[[Page 12499]]

initiated until additional resources are available or until ongoing 
monitoring or conservation efforts can be terminated so that the 
resources supporting them can be redirected. Such comments on the 2009 
SARs, and responses to them, may not be included in the summary below 
because the responses have not changed.
    In some cases, NMFS' responses state that comments would be 
considered for, or incorporated into, future revisions of the SAR 
rather than being incorporated into the final 2009 SARs. The delay is 
due to review of the reports by the regional SRGs. NMFS provides 
preliminary copies of updated SARs to SRGs prior to release for public 
review and comment. If a comment on the draft SAR suggests a 
substantive change to the SAR, NMFS may discuss the comment and 
prospective change with the SRG at its next meeting.
    Among the Commission's comments on another action (2009 List of 
Fisheries (LOF)), one was related to SARs. Because the comment period 
on the draft 2009 SARs was open when the Commission submitted that 
comment, a summary of it, and NMFS' response to it, are included in 
this notice rather than the notice for the final 2009 LOF.
    In its letter (available on the Internet at the following address: 
https://mmc.gov/letters/pdf/2009/sars_comments_92409.pdf), the 
Commission also noted pertinent language in the MMPA and requested 
responses to its recommendations on the SARs. In the past NMFS has 
summarized and responded to Commission comments within the notice 
announcing availability of final SARs, as it has with comments from 
other writers. These notices, however, have not always identified the 
Commission's comments, which may have led to some confusion. Therefore, 
the Commission's comments on the draft 2009 SARs are explicitly noted 
to facilitate recognition of these comments and the responses to them. 
Some of the Commission's comments on the 2009 SARs contained 
recommendations related to activities (e.g., developing or implanting 
Take Reduction Plans or developing funding strategies) other than 
information included in the SARs. Responses to these comments are not 
included in this document and will be addressed in a letter to the 
Commission.

Comments on National Issues

    Comment 1: One organization acknowledged that NMFS has regularly 
updated its SARs and has included a section on habitat concerns in many 
of them; however, they wrote that NMFS should include a ``Habitat 
Concerns'' section in all new SARs. Because the ocean is changing in 
response to global warming and ocean acidification, these threats 
should be discussed in the habitat sections. Similar comments were 
included for specific stocks of marine mammals (e.g., humpback whales, 
Central North Pacific stock), and the general response below applies to 
these stock-specific comments.
    Response: The MMPA notes that SARs for strategic stocks should 
include other factors that may be causing a decline or impeding the 
recovery of the stock, including effects on habitat. Accordingly, some 
SARs (those for non-strategic stocks) do not need sections discussing 
habitat concerns, and for strategic stocks, such sections must discuss 
only those factors that may be causing a decline or impeding recovery.
    Comment 2: The SARs tend to lag 2 years behind in incorporating 
available observer data. For those fisheries that have 100-percent 
observer coverage, such as the Hawaii-based swordfish fishery, such 
bycatch data are available in near real-time and should be included 
more promptly.
    Response: Observed mortality and serious injury are not available 
in near real-time. The data must be reviewed and verified prior to 
inclusion in draft SARs. SARs are generally updated during the summer 
so they can be reviewed by the SRGs the following fall and winter, 
prior to release for a mandatory 90-day public comment period. NMFS 
does not use information that has become available, including data 
review and verification, after May or June in the draft revision. NMFS 
has considered the relative merits of a 2-year delay in reporting 
information and including information into the SARs before it has been 
thoroughly vetted and has concluded that the costs of reporting 
information that has not been reviewed exceed the costs of delaying 
information. (Also, see 74 FR 19530, April 29, 2009, response to 
Comment 2.)
    Comment 3: For numerous stocks NMFS proposes to change PBR to 
``undetermined'' because abundance data are more than 8 years old. 
There is no excuse for failing to update abundance estimates for many 
of these stocks. Stocks for which PBR is undetermined should be 
designated ``strategic'' because the lack of a PBR makes it impossible 
for NMFS to conclude that the stock does not meet the definition of 
strategic.
    Response: NMFS conducts abundance surveys to the full extent 
allowed by resources, and resources for survey effort are at levels 
consistent with Administration priorities across the entire federal 
budget. Old or otherwise unreliable information results in increased 
uncertainty in making management decisions; however, NMFS' guidelines 
for assessing marine mammal stocks include a provision that uncertainty 
alone does not necessarily warrant labeling a stock as strategic.
    Comment 4: The Commission recommended that NMFS list as ``unknown'' 
the PBR for all beaked whale stocks for which there is a reasonable 
basis for concern that they are being taken in fisheries or by other 
human activities.
    Response: Currently there are no known recent fishery bycatch 
problems or mass stranding events of beaked whale stocks related to 
other anthropogenic activities. The Atlantic region uses a pooled PBR 
for undifferentiated beaked whales, and the Gulf of Mexico uses one PBR 
for Cuvier's beaked whales and another for undifferentiated Mesoplodon 
beaked whales; these PBRs are more informative than no PBRs at all. 
Therefore, as recommended by the Atlantic SRG and until methodologies 
are developed to reliably identify sightings of beaked whales by 
species, NMFS continues to derive a PBR for either Mesoplodon or 
undifferentiated beaked whales.
    Comment 5: The Commission recommended that NMFS identify all 
transboundary stocks that are subject to partial assessment and develop 
a strategy to provide complete assessments.
    Response: SARs illustrate the ranges of each stock; thus, the SARs 
identify transboundary stocks. NMFS does not plan to develop a strategy 
to provide complete assessment of all transboundary stocks because some 
transboundary stocks appear to be healthy, robust populations (e.g., 
California sea lions) despite uncertainty of the status of segments of 
the population occurring in waters not under the jurisdiction of the 
United States.
    Comment 6: The Commission recommended that NMFS develop and 
implement a systematic approach for integrating all human-related risk 
factors into SARs.
    Response: As noted in the response to Comment 38, the MMPA lists 
information that should be included in SARs. NMFS' SARs contain such 
information as directed by the MMPA but do not contain substantial 
amounts of additional information. A major strength of the SARs is that 
they are concise summaries of the status of each stock, focusing 
primarily on the effects of direct human-caused mortality and serious 
injury on marine mammals and

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impacts to habitat when such impacts may result in the decline or 
failure of recovery of the affected stocks. In citation sections, the 
SARs identify sources of detailed information on status of marine 
mammals. (Also, see 74 FR 19530, April 29, 2009, response to Comment 
11.)

Comments on Alaska Regional Reports

    Comment 7: Loss of sea ice due to global warming is a human-caused 
threat to ice seals and, therefore, should be included in the 
determination of a stock as strategic.
    Response: NMFS disagrees because the suggested designation would be 
inconsistent with the definition of ``strategic stock'' included in the 
MMPA.
    Comment 8: The SAR for Cook Inlet beluga whales still considers the 
small Yakutat population of belugas part of the Cook Inlet stock. 
Yakutat belugas should be a separate stock and designated as 
``depleted''.
    Response: As noted in a previous response (74 FR 19530, April 29, 
2009, Comment 14), NMFS regulations under the MMPA (50 CFR 216.15) 
include the beluga whales occupying Yakutat Bay as part of the Cook 
Inlet stock. Notice-and-comment rulemaking procedures would be required 
to change this regulatory definition. Until such procedures are 
completed, these animals remain designated as depleted as part of the 
Cook Inlet stock.
    Comment 9: The SAR for Eastern North Pacific right whales should 
indicate a greater level of concern than ``recent interest'' in oil and 
gas exploration and development because the area is being formally 
evaluated for leasing.
     Response: For the reasons cited in response to a similar comment 
on the 2008 SAR, a greater level of concern is not necessary at this 
time (see 74 FR 19530, April 29, 2009, Comment 17).
    Comment 10: Sightings of narwhals in Alaska waters appear to be 
increasing, and NMFS should include a SAR for narwhal.
    Response: NMFS is currently reviewing the existing data on narwhal 
sightings in Alaska waters to prepare a draft SAR for narwhals for 
2010.
    Comment 11: NMFS should update the SAR for Eastern North Pacific 
gray whales to include more recent abundance estimates. The SAR fails 
to properly consider findings of Alter et al. (2007), and NMFS should 
designate this stock as depleted.
    Response: The SAR for the eastern North Pacific gray whale stock 
will be updated with substantial new information in 2010 after the 
necessary analyses are complete and reviewed. NMFS has responded to 
comments regarding Alter et al. (2007) and depleted status for gray 
whales in previous years (see 73 FR 21111, April 18, 2008, Comment 32 
and 74 FR 19530, April 29, 2009, Comment 21). For the reasons discussed 
in those responses, NMFS neither anticipates additional discussion of 
the findings of Alter et al. (2007) nor designation of the gray whale 
stock as depleted. If information becomes available suggesting that 
gray whale abundance is below the lower limit of the stock's Optimum 
Sustainable Population (OSP), NMFS would formally evaluate status of 
the stock in accordance with MMPA section 115.
    Comment 12: The Commission and another commenter repeated a 
recommendation made in previous letters to update harbor seal stock 
structure with information that has been available for many years.
    Response: As noted in previous responses to comments (see 72 FR 
12774, March 15, 2007, Comment 16, 73 FR 21111, April 18, 2008, Comment 
23, 74 FR 19530, April 29, 2009, Comment 21), NMFS continues its 
commitment to work with the agency's co-managers in the Alaska Native 
community to evaluate and revise stock structure of harbor seals in 
Alaska.
    Comment 13: Estimated mortality for longline fisheries uses 
incorrect observer coverage percentages, resulting in significant over-
estimation of mortality. The observer coverage in the SAR is 
inconsistent with other reports prepared for NMFS.
    Response: The observer coverage percentages reported for the 
longline fisheries are determined based on data obtained from the NMFS 
Observer Program. These data were used to estimate mortality and 
published in Perez (2006), which has been reviewed by NMFS Observer 
Program staff. The report referenced by the commenter was prepared in 
response to a request by the Observer Advisory Committee to demonstrate 
current strategies of observer placement on vessels and to modify 
methods for observer deployment on vessels of various sizes. This 
document was not designed to be used to calculate total observer 
coverage for fisheries. Attempts to calculate total observer coverage 
from this document would result in inaccurate estimations of observer 
coverage.
    Comment 14: Effort can be determined accurately in fisheries with 
high observer coverage; therefore, proxies for effect (e.g., observed 
catch) are not necessary.
    Response: As has been noted in the past (72 FR 66048, November 27, 
2007, Comment 21), NMFS has considered other measures to estimate 
effort in the fishery. At this time, catch remains the best method of 
quantifying observed and total fishing effort. Should another measure 
of effort become available that can be used for all vessels, seasons, 
and areas, NMFS would consider modifying the analytical approach.
    Comment 15: Expansions from observed to estimated mortality appear 
to be done inconsistently within and between fisheries.
    Response: As noted in the response to Comment 23 in the 2008 LOF 
final rule (72 FR 66048, November 27, 2007), mortality estimates are 
based upon a stratified sample and analyses. The estimates are 
calculated using statistics appropriate for the sampling design. 
Similar numbers of observed mortalities or serious injuries may lead to 
different estimates because observer coverage differs among strata. The 
models used for estimates are explained fully in the reference cited in 
the SAR.
    Comment 16: Default recovery factors should be re-evaluated for 
populations (e.g., sperm whales, Steller sea lions (Western stock), 
Central North Pacific humpback whales) that are increasing and/or are 
large.
    Response: NMFS and the Alaska SRG evaluate the recovery factors for 
each stock during their annual review of the SARs. The recovery factors 
for these and other stocks will be discussed with the SRG at their next 
meeting when 2010 SARs are discussed.
    Comment 17: As noted in the SAR for sperm whales, this species is 
at a low risk of extinction due to large numbers and minimal take. 
Accordingly, it should be de-listed from endangered status under the 
ESA and depleted status under the MMPA.
    Response: NMFS completed a review of the status of sperm whales in 
January 2009 and concluded that the status should not change at this 
time. A report of that review is available on the Internet at the 
following address: https://www.nmfs.noaa.gov/pr/pdfs/species/spermwhale_5yearreview.pdf.
    Comment 18: A single take of a humpback whale in the sablefish pot 
fishery is attributed to two stocks. This doubles the mortality from 
one take, and NMFS should consider distributing the single take across 
both stocks using a weighted probability of interaction with the stock.
    Response: See responses to Comments 13 and 14 in the final 2005 LOF 
(71 FR 247, January 4, 2006), Comment 10 in the final 2003 LOF (68 FR 
41725, July 15, 2003), and Comment 10 in the final 2008 LOF (72 FR 
66048, November 27, 2007) for detailed responses to a similar

[[Page 12501]]

comment. The single take of a humpback whale in the sablefish pot 
fishery cannot be attributed to a specific stock. Therefore, NMFS is 
using a precautionary approach and attributing this single take to both 
Alaska stocks of North Pacific humpback whales for information 
purposes.
    Comment 19: In the SARs for ice seals, the numbers of seals taken 
for subsistence harvest reported in the text and in the tables are 
different, and these differences are confusing. This situation should 
be clarified. Our comments here and in the past have noted that 
previous stock assessments have provided point estimates for native 
subsistence kills, but have also provided upper and lower estimates 
based on the bounds of confidence. This is no longer done in the stock 
assessments. We believe that the region should reconsider this 
decision. Because of the imprecision of these estimates, this 
information should be provided so that reviewers can gauge the possible 
range of impacts.
    Response: NMFS has reviewed the numbers of seals taken for 
subsistence harvest reported in the draft 2009 SARs and updated the 
text and tables to clarify presentation of the information in the text 
and tables of the ice seal SARs.
    NMFS has reported upper and lower confidence limits for subsistence 
harvests of some stocks in the past, but does not include them 
presently (e.g., beluga whales, Eastern Bering Sea stock). The SARs for 
these stocks note that variance estimates (or other measures of 
uncertainty) are not available. Without such measures, confidence 
limits cannot be calculated; therefore, none are included. For some 
stocks, the mortality estimates are noted to be underestimates because 
information is available from only a portion of the range of the stock. 
NMFS is aware of the potential consequences of underestimates, but, as 
noted in the introduction to this summary of comments and responses, 
funding levels limit the ability to initiate large new data collection 
programs until additional funds are obtained or until efforts directed 
toward other stocks are no longer necessary, which would allow 
resources to be re-directed.
    Comment 20: There remains some inconsistency in declaring strategic 
status on the basis of outdated population and absent fishery data. 
Some (e.g., S.E. Alaska harbor porpoise) are designated strategic and 
others (e.g., Dall's porpoise) are not. There should be an explanation 
of this discrepancy.
    Response: The PBR levels for harbor porpoise stocks in Alaska are 
``undetermined'' because the population estimates are outdated. The 
harbor porpoise stocks were classified as ``strategic'' because there 
is information, for each stock, suggesting incidental serious injuries 
and mortalities may be greater than the stocks' PBR levels. Similarly, 
the PBR for Dall's porpoise is ``undetermined'' because the abundance 
estimate is outdated. However, federally-regulated fisheries that 
overlap with Dall's porpoise are observed with a high proportion of 
observer coverage and have routinely had very low levels of incidental 
mortality/serious injury. Some state fisheries with potential to result 
in serious injuries/mortalities of Dall's porpoise have been observed, 
and the estimated level of serious injury/mortality is also minimal or 
none. There are a few state fisheries with known historic serious 
injuries/mortalities of Dall's porpoise, but it seems unlikely that the 
level of serious injury/mortality from these fisheries would exceed the 
PBR level. Thus, Dall's porpoise stock was not classified as 
``strategic''.
    Comment 21: The SAR for the Western U.S. stock of Steller sea lions 
has inconsistent information in Table 2 and in the graph. It would help 
if the depiction in the graph matched the regions discussed in the 
text. Also, a shift from research focused on body condition and 
behavior of individuals to ecosystem-based studies would help answer 
questions such as potential shifts in abundance within the range of the 
stock.
    Response: The data presented in Figure 2 were derived from those 
presented in Table 1, and the data are consistent. The graph (Figure 2) 
depicts the counts and overall trends for the entire western stock of 
Steller sea lions, as well as for the Gulf of Alaska and the Bering 
Sea/Aleutian Islands independently. The text provides more detailed 
information for trends at specific sites within these regions.
    Comment 22: The subsistence harvest and struck-and-lost sea lions 
from the western stock of Steller sea lions appears to have increased. 
Given the lack of precision of harvest estimate, we are concerned that 
the increase may result in take exceeding PBR.
    Response: The numbers of struck-and-lost sea lions from the 
subsistence harvest varies from year to year. The level of struck-and-
lost sea lions, averaged over the most recent 5 years for which data 
are available, is incorporated into the total take for this stock. The 
current 5-year average (38.4) is slightly higher than the previous 5-
year average (33.9). However, the total estimated annual level of total 
human-caused mortality and serious injury for this stock (232.8), which 
includes animals struck but lost, remains below the PBR level (247). 
NMFS is aware that there are uncertainties in the mortality and serious 
estimates for Steller sea lions and other stocks of marine mammals in 
Alaska and other parts of the United States and that human-caused 
mortality could, in fact, exceed PBR. However, the recovery plan for 
Steller sea lions indicates that the two primary sources of direct 
human-caused mortality (subsistence harvest and incidental take in 
commercial fisheries) are ranked as having relatively low impacts on 
recovery of the stock. In addition, the recovery factor for this stock 
of marine mammals would reserve 90 percent of annual net production for 
recovery (Barlow et al., 1995), and performance testing through 
simulation models showed that the PBR approach was robust to wide 
ranges of precision and bias in mortality estimation (Wade, 1998).
    Comment 23: The abundance estimates for the eastern stock of 
Steller sea lions are old despite permitted research designed to 
calculate annual estimates. Newer estimates should be reported.
    Response: The abundance estimates presented in the 2009 SARs are 
based on the most recent complete counts for these areas and represent 
the best available data at the time the SAR was updated for 2009. NMFS 
is currently analyzing pup and non-pup counts from 2008 and 2009 for 
the eastern stock of Steller sea lions. These estimates will be 
incorporated in the SAR when they are available.
    Comment 24: The SARs for the Western Pacific stock of humpback 
whales and fin whales do not include ship-strikes as a mortality 
factor. Even if no stock-specific strikes are reported, it seems 
unlikely that none have occurred. Does NMFS have confirmed stock 
identity for all whales found on ships so that each can be correctly 
assigned to a stock?
    Response: The central North Pacific humpback whale SAR includes 
ship-strike mortalities in the estimated level of annual human-caused 
mortality and serious injury. NMFS assigned these mortalities to the 
central North Pacific stock based on the location of the occurrence. 
NMFS will be incorporating updated information on mortalities 
attributed to ship-strikes for humpbacks and fin whales in the 2010 
SARs. Lacking confirmed stock identity of the whales found on ships, 
NMFS uses the relative stock densities in the areas where mortality 
likely occurs to assign it to a stock.
    Comment 25: The SAR for Central North Pacific (CNP) humpback whales

[[Page 12502]]

divides the stock into four geographic areas (Hawaii, Aleutian Islands/
Bering Sea, Gulf of Alaska, and Southeast Alaska) and estimates 
abundance in each region; however, the SAR does not estimate abundance 
of the stock. Division of the stock into these areas is neither 
scientifically accurate nor helpful from a management or scientific 
perspective.
    Response: The SAR states that the CNP stock of humpback whales `` 
winters in Hawaii `` and presents abundance, minimum population 
estimate (Nmin), and PBR based upon these surveys of the stock in 
Hawaiian waters. The summary table for the SARs also shows the numbers 
for these parameters, which are identical to the numbers reported in 
the text of the report.
    The division of the stock into the four areas is helpful to NMFS 
managers because the stock is migratory, whales from different breeding 
(wintering) areas mix on feeding grounds in Alaska, and reported human-
caused mortality is higher in Alaskan waters than in Hawaiian waters. 
For the areas where information suggests trends in population 
abundance, each shows an increase, as is also the case for information 
on the entire ocean basin. The region-specific calculations allow NMFS 
managers to see that region-specific reported mortality is likely 
sustainable. The SAR reports mortality based primarily upon stranding 
reports, which are underestimates of actual mortality. However, the 
region-specific trends suggest that human-caused mortality is not 
causing the population to decline in any area where trend can be 
evaluated. Accordingly, the region-specific information is useful for 
conservation and management purposes.
    Comment 26: Although NMFS reports that the point estimates for CNP 
humpbacks in Hawaii ranged from 7,469 to 10,103 and notes that the 
estimate from the ``best model'' is the upper end of the range, Nmin, 
thus PBR, for the Hawaii region is based upon the lowest estimate 
rather than the one from the best model. The SAR does not explain why 
NMFS did not use the best science in the calculation as is required by 
the MMPA.
    Response: The SAR states that confidence limits or coefficients of 
variation (CVs) have not yet been calculated for abundance of the stock 
and that NMFS used an assumed value for CV in estimating Nmin from the 
abundance estimates. Accordingly, as required by the MMPA, the estimate 
of Nmin provides ``reasonable assurance that the stock size is equal to 
or greater than the estimate.'' Such assurance could not be provided by 
using the maximum abundance estimate even it was calculated using the 
``best model''.
    Comment 27: The SAR for CNP humpback whales reports PBR as 20.4 
animals and an alternative PBR of 8.3 whales, but it does not provide 
an explanation why two different PBRs were calculated or how they may 
be used for management purposes. If NMFS is going to develop multiple 
population sizes and PBRs, then NMFS should develop, as required by the 
MMPA, a single PBR for each of the regions and should not use the 
alternative PBR of 8.3 in the SAR.
    Response: As is reported in the SAR text and the summary table for 
this stock of humpback whales, the PBR is 20.4. The alternative (8.3) 
is used only for information purposes and shows readers that even when 
PBR is calculated from an extremely conservative Nmin (i.e., the number 
of whales actually identified during the study), reported human-caused 
mortality is less than PBR.

Comments on Atlantic Regional Reports

    Comment 28: Bottlenose dolphin stocks in the Gulf of Mexico should 
be designated strategic.
    Response: In accordance with the MMPA, marine mammal stocks that 
are depleted, threatened, or endangered or for which human-caused 
mortality exceeds PBR are designated strategic. Others are not 
strategic, even in some cases where there is considerable uncertainty 
regarding abundance, mortality and serious injury.
    Comment 29: Given the increasing trend of bycatch, Atlantic white-
sided dolphins should be designated as strategic.
    Response: Mean annual fishery-caused mortality and serious injury 
are below PBR; therefore, the stock is not appropriately designated as 
strategic.
    Comment 30: Noting that the Poisson distribution could characterize 
rare and random events, the Commission recommended that the SAR for the 
Canadian East Coast stock of minke whales include an estimate of 
bycatch in the trawl fishery for which there was only one observed 
take.
    Response: A total of three minke whales have been in observed in 
bottom trawl gear from 1997 through October 2009. NMFS intends to 
evaluate the estimation of total mortality of minke whales and harbor 
porpoise attributed to bottom trawl gear for the 2011 SAR.
    Comment 31: The Commission recommended that NMFS conduct and report 
the necessary surveys to update the SARs for northwest Atlantic 
pinnipeds.
    Response: NMFS is developing a new survey protocol for a harbor 
seal abundance survey; however, funding is not available for a 2010 
survey. Since 2002, NMFS has been monitoring gray seal pup production 
on the three colonies (Muskeget Island in Nantucket Sound, and Green 
and Seal Islands off mid-coast Maine) in U.S. waters. The pup-
monitoring research was a component of a recently-completed Ph.D. 
dissertation, and a published paper should be available in 2010. 
Information from these sources will be included in future SARs.
    Comment 32: The SARs in the Atlantic region should include serious 
injuries identified in accordance with guidance from the 2007 workshop 
on distinguishing serious from non-serious injury, especially for North 
Atlantic right whales.
    Response: NMFS is currently preparing guidelines for distinguishing 
serious and non-serious injuries. When these guidelines are completed 
and subjected to public review and comment, SARs will include serious 
injuries based upon them.
    Comment 33: The minke whale SAR should include all entanglements 
included in the 2005 summary by Smith and Koyama. It is not clear why 
three mortalities from that document were not included in Table 5.
    Response: These records have been re-reviewed by NMFS staff, who 
determined they were not serious injuries. Although evidence of 
entanglement was present, the necropsy report is inconclusive in the 
September 20, 2005, stranding. For the September 25, 2005, stranding, 
entanglement scarring was present, but the injury had healed. For the 
September 2007 stranding, there was insufficient information to 
determine the nature of the entanglement; images and descriptions were 
incongruous.
    Comment 34: The SAR for sperm whales, Gulf of Mexico stock, 
discusses threats due to anthropogenic noise in the stock definition 
and range section. This would be more appropriate in another section on 
habitat concerns. The SAR should also address the potential impacts to 
sperm whales aggregated just off the Mississippi Delta from 
bioaccumulation of toxins from the river.
    Response: The noise threat information has been moved and is 
included in the ``Other Mortality'' section. While there may be impacts 
from Mississippi River effluent on sperm whales and other marine 
mammals, specific reports on increases

[[Page 12503]]

in toxic effluent from the Mississippi River were not available. Given 
that little is known about contaminant levels in sperm whales in the 
Gulf of Mexico, any discussion would be speculation.
    Comment 35: We note that there have been press reports or Internet 
postings of killer whales just off Texas and Alabama. This appears to 
represent an increased presence in areas not documented in the SAR. 
Given the seismic exploration and petroleum extraction underway or 
proposed, a change in distribution may entail additional risk not 
discussed in the stock assessments.
    Response: Such increased reports are likely the result of more 
people with video cameras rather than increased numbers of killer 
whales in the Gulf of Mexico. The number of killer whale sightings made 
during NMFS assessment surveys (0-3 per survey) has remained about the 
same since 1990. Furthermore, sightings by the public are not new; 
O'Sullivan and Mullin (1997) report three records of killer whale 
sightings made by the public in the Gulf of Mexico prior to the mid-
1990s.
    Comment 36: Under population size, there is a different estimate 
for Ziphius (337) and Mesoplodon spp. (57). However, there is a 
notation in the stock assessment for Cuvier's beaked whales that ``the 
estimate for unidentified Ziphiidae may also include an unknown number 
of Mesoplodon spp.'' Thus, it would seem that the Ziphius estimate is 
not, in fact, an estimate for them but is still a pooled estimate of 
multiple species. However, the stock assessments for Mesoplodonts 
(Blainville and Gervais beaked whales) do not include a similar caveat 
about possibly including Ziphius in that estimate. There is no 
explanation evident for the discrepancy. For both Ziphius and 
Mesoplodon, the map of distribution is for ``beaked whales,'' which 
would include both of these genera. This is confusing and potentially 
misleading when reviewers attempt to gauge the status and threat to 
species in the Northern Gulf of Mexico.
    Response: The wording in the affected beaked whale SARs for the 
Gulf of Mexico has been modified to resolve these discrepancies. The 
distribution maps will be changed in future SARs.

Comments on Pacific Regional Reports

    Comment 37: The SARs for some species in Hawaiian waters (rough-
toothed dolphins, bottlenose dolphins, pygmy killer whales, spinner 
dolphins, dwarf sperm whales, Cuvier's beaked whales and Blainville's 
beaked whales) should be updated to include evidence of multiple 
stocks.
    Response: New information on stock structure for bottlenose and 
spinner dolphins in Hawaiian waters will be incorporated in the 2010 
draft SARs. Stock structure information for other species will be 
incorporated into SARs as information becomes available to warrant the 
recognition of additional stocks.
    Comment 38: In comments on the draft 2009 LOF, the Commission 
recommended that NMFS incorporate into the applicable SARs language 
similar to that included in the FWS SAR for the Washington stock of sea 
otters to clarify that, in accordance with the ruling in Anderson v. 
Evans, taking of marine mammals in tribal fisheries requires 
authorization under the MMPA.
    Response: NMFS disagrees with the FWS interpretation of the ruling. 
Furthermore, even if FWS' interpretation were correct, MMPA section 
117(a) explicitly lists the information that should be included in 
SARs. This list does not include identifying which takes need to be 
authorized and which do not. Accordingly, such language is 
inappropriate for SARs.
    Comment 39: There is little mention of deaths of marine mammals 
resulting from research activities (e.g., research on California or 
Steller sea lions and fishery assessments). These should be included in 
the SARs.
    Response: Information on research-related mortality will be 
included in 2010 draft SARs for northern fur seal, northern right whale 
dolphin and Pacific white-sided dolphin. Information on research-
related mortality of California sea lions will be included in the next 
revision of that SAR.
    Comment 40: Because tribal fisheries are not subject to federal 
observers and, as noted in Credle et al. (1994), self-reports are 
considered under-estimates, there may be a significant bias in 
reporting mortalities from gillnet fisheries.
    Response: NMFS acknowledges that bycatch reports may be negatively 
biased when the only sources are self-reports and has noted such bias 
in previous SARs.
    Comment 41: The MMPA requires that SARs for strategic stocks, such 
as those stocks listed as threatened or endangered, be updated 
annually, yet some were not updated. For example, fin whales have no 
revision although there is documented mortality that occurred during 
the reporting period (e.g., a 2006 mortality due to vessel collision in 
Washington).
    Response: The commenter has misinterpreted the requirement of MMPA 
section 117(c). The MMPA requires that SARs for strategic stocks must 
be ``reviewed'' annually and ``revised'' when the status has changed or 
could be assessed more accurately. The SARs for all strategic stocks 
(including stocks for which strategic status is due to listing under 
the ESA) are reviewed annually, as required. The inclusion of a 
relatively small change in estimated mortality or abundance would not 
change the status of these stocks nor allow their status to be assessed 
more accurately. Although NMFS attempts to update SARs when information 
becomes available (whether the new information would change the status 
or not), some minor changes are not incorporated into a SAR each year.
    Comment 42: The Hawaiian monk seal SAR should be updated to report 
that two monk seals were killed by gunshot in the main Hawaiian 
Islands. Also, the SAR should include more information about the loss 
of pupping habitat due to rising sea level.
    Response: Although two monk seals were shot in 2009, these 
shootings did not occur early enough for inclusion in the 2009 or 2010 
draft SARs. These shootings will be noted in the 2011 SAR. Interested 
readers may obtain and review the literature in the SAR for more 
details of loss of habitat due to rising sea level.
    Comment 43: NMFS needs to obtain precise information on 
interactions of ``nearshore'' fisheries with Hawaiian monk seals. NMFS 
should work with the State to assure observer coverage in this fishery, 
which seems to have takes in almost every year.
    Response: NMFS is working with the State of Hawaii to better 
characterize nearshore fishery interactions. The State has received a 
grant under section 6 of the ESA to work with NMFS in developing a 
system of monitoring, reporting and reducing these interactions via 
participatory approaches with nearshore fishers who engage in fishing 
methods (gill nets and shorecasting) that cause the most interactions.
    Comment 44: The PBR for the Monterey Bay stock of harbor porpoise 
should not be reduced by changing the recovery factor from the previous 
0.45 to 0.5 due to the downward trend of the stock.
    Response: NMFS agrees. Given continued uncertainty in the source of 
fishery-related standings in this region, the recovery factor should 
remain at 0.45. The final 2009 SAR will reflect the use of this 
recovery factor in the PBR calculation.

[[Page 12504]]

    Comment 45: The SAR for the Northern Oregon/Washington Coast stock 
of harbor porpoise should include mortality information on the 2006/
2007 Unusual Mortality Event (UME) because some of the deaths could be 
attributed to fishery interactions.
    Response: Fishery-related mortality information from the 2006-2007 
UME is included in the Northern Oregon/Washington Coast harbor porpoise 
SAR. Both suspected and confirmed fishery-related mortalities from the 
UME are listed in the text, and confirmed mortalities are included in 
Table 1 under ``Unknown fishery''.
    Comment 46: The ``Habitat Concerns'' section for Southern Resident 
Killer Whales should note that global warming and ocean acidification, 
as well as stream flows and health, pose an increasing threat to salmon 
and the killer whales that depend upon salmon.
    Response: The SAR notes that Southern Resident Killer Whales appear 
to be Chinook salmon specialists and that change in salmon abundance is 
likely to have effects on this population. The factors affecting salmon 
abundance are implicit in this statement.
    Comments 47 through 58 address false killer whales, primarily in 
waters surrounding Hawaii.
    Comment 47: Available evidence, which was not included in the SAR, 
indicates that the Hawaii insular stock of false killer whales should 
be a strategic stock. Also, the SAR for this stock notes there is no 
quantitative analysis of sightings data to evaluate population trend. A 
statistical analysis was presented to the Western Pacific Fishery 
Management Council showing a significant decline in the number of 
groups per 10 survey hours during the period, 1993-2003.
    Response: The MMPA includes specific criteria for designating a 
marine mammals stock as ``strategic''. None of these criteria are 
currently met for the insular stock of false killer whales; therefore, 
it is designated as ``not strategic''. NMFS will continue to review new 
information periodically and update the SAR based on new information. 
The trend analysis mentioned by this commenter was not available when 
the SAR was drafted and presented to the Pacific SRG in November 2008; 
it will be considered for the draft 2010 SARs.
    Comment 48: The SAR for the insular stock indicates no habitat 
issues are a concern, yet notes recent evidence of high levels of 
pollutants and reduced biomass of prey species. These should be 
included as habitat concerns.
    Response: NMFS has modified the 2009 SAR to remove this apparent 
contradiction by eliminating the statement that no habitat issues are 
of concern.
    Comment 49: The insular stock of false killer whales should be 
strategic, because two takes in 2003 were during sets straddling the 
stock boundary and because there are two takes of probable false killer 
whales within the range of the insular stock. If even one of these 
takes were inside the boundary, then the estimated bycatch would likely 
exceed PBR.
    Response: NMFS recognizes that the occurrence of longline sets 
straddling false killer whale stock boundaries complicates stock-
specific bycatch estimation. The text of the 2009 SAR has been revised 
to clarify that the two 2003 false killer whale takes occurred in sets 
straddling the insular/offshore stock boundary and that these takes are 
provisionally considered to be from the pelagic stock. NMFS is also 
working on developing new analytical methods to estimate stock-specific 
bycatch and plans to present updated estimates for both stocks in the 
draft 2010 false killer whale SAR. Distinguishing takes of false killer 
whales and short-finned pilot whales remains problematic because the 
geographic ranges of these two species differ and sample sizes are 
insufficient to estimate a geographically-stratified ratio that might 
be used for pro-rating such takes. NMFS will continue to evaluate 
methods of addressing this source of uncertainty.
    Comment 50: The SAR should include information on how frequently 
portions of longline gear are lost both in the shallow-set and deep-set 
fishery so that the likelihood that there are unobserved takes due to 
lost gear can be assessed.
    Response: NMFS does not presently have estimates of the rates of 
gear loss in the deep-set and shallow-set longline fisheries.
    Comment 51: The SAR should assess whether seasonal observer 
coverage of longline fisheries within the range of the insular false 
killer whale stock is sufficient to robustly assess bycatch rates. In 
addition, there are unobserved shortline fisheries that occur nearshore 
in the Hawaiian Islands that are using the same gear as offshore 
fisheries and are, thus, likely to be taking false killer whales.
    Response: The shallow-set fishery has 100-percent observer 
coverage, and the deep-set fishery has a minimum of 20-percent annual 
coverage. Placement of observers and all statistical analyses are 
conducted on a quarterly basis to account for temporal variation in 
coverage, providing robust rates of mortality and serious injury.
    NMFS included a Hawaii State shortline/handline fishery as a 
Category II fishery in the 2010 LOF. The inclusion of this fishery on 
the List is an early step in obtaining information on marine mammal 
interactions with the fishery, including mandatory reporting of 
injuries of marine mammals incidental to fishing operations.
    Comment 52: The report is confusing because it includes multiple 
stocks within a single report, and it includes mortality and injury 
estimates combined across stocks.
    Response: NMFS acknowledges that the current report, which includes 
a stock complex rather than individual reports for each stock, may be 
confusing. However, population stock boundaries in false killer whales 
in the North Pacific Ocean contain uncertainties, and an ongoing stream 
of information over the past few years has resulted in fairly rapid 
changes in our understanding of stock boundaries. NMFS has elected to 
combine these stocks into a single report which presents abundance and 
mortality information in a variety of scenarios as our understanding of 
stock structure remains dynamic. When our understanding of stock 
structure becomes more stable, the report will likely be modified to 
separate reports for each stock.
    Comment 53: Distinction between Insular, Pelagic and Palmyra stocks 
of false killer whales is inaccurate because the pelagic animals are 
all part of a broader Eastern North Pacific Stock that occurs in the 
U.S. Exclusive Economic Zone (EEZ) and international waters.
    Response: NMFS has previously responded to this and related 
comments (see 73 FR 21111, April 18, 2008, Comment 47, and 74 FR 19530, 
April 29, 2009, Comment 34) and reiterates that the stock division for 
false killer whales is consistent with the MMPA and with NMFS 2005 
Guidelines for Assessing Marine Mammal Stocks (GAMMS), which were 
finalized after opportunity for public review and comment, and provide 
guidance on abundance and PBR of transboundary stocks. No international 
agreements presently exist for the management of cetacean bycatch in 
central Pacific longline fisheries; therefore, NMFS assesses the status 
of marine mammal stocks within the U.S EEZ waters, based on EEZ 
abundances and EEZ mortalities and serious injuries. Further, as noted 
in GAMMS, the lack of genetic differences among false killer whale 
samples from the broader eastern North Pacific region does not imply 
that these animals are from a single eastern North Pacific stock.

[[Page 12505]]

    Comment 54: NMFS' abundance estimate for the pelagic stock is 
scientifically unsound. Specifically, and as described in more detail 
in a report enclosed with the comment, NMFS' abundance estimate fails 
to employ a Bayesian methodology, which is well-recognized in the 
scientific community as the best available method for estimating the 
population size of marine stocks such as the false killer whale pelagic 
stock. An alternative analysis of the existing false killer whale data 
utilizes the best available scientific methods and provides a best 
estimate of the Hawaii Pelagic Stock as 2,066 whales.
    Response: NMFS disagrees that the alternative included in this 
comment represents the best available scientific information. Bayesian 
analyses may constitute excellent science and are widely used by NMFS 
scientists in assessing marine animal populations; however, the report 
enclosed with this comment has not been peer-reviewed or published, and 
it violates the fundamental principle of choosing an appropriate prior 
distribution when conducting a Bayesian analysis. The report assumes 
that the density of false killer whales in highly productive waters of 
the Eastern Tropical Pacific Ocean would be a suitable prior for their 
density in the unproductive waters surrounding Hawaii. The report did 
not discuss a rationale for this assumption or evaluate alternate, more 
suitable, data sets for the prior distribution. There is no ecological 
or oceanographic support for this assumption. Rather, there are 
differences in ocean productivity between the Eastern Tropical Pacific 
Ocean and the Hawaiian EEZ, and densities of most tropical dolphin 
species, including false killer whales, decline as one moves north from 
tropical latitudes and into the subtropical waters of the Hawaiian 
Islands.
    Comment 55: NMFS fails to discuss a report from April 2009 
documenting depredation in the Hawaii longline fishery based on 
interviews with vessel owners and captains. The comment states that the 
report constitutes current, published, and NMFS-funded scientific 
research suggesting that the sheer magnitude of catch depredation by 
false killer whales implicates a population size much larger than the 
484 estimate reported in the 2009 draft SAR.
    Response: The report cited in this comment was not available in 
2008 when the draft 2009 SAR was prepared, and the report and its 
findings have not been subjected to peer review. Estimates in the 
report contain many untested assumptions (e.g., species identification, 
range of fishery). Furthermore, NMFS' abundance estimate of 484 is 
limited to the U.S. EEZ, whereas the depredation report included 
observations from a much larger area where the fishery operates. No 
assumption about uniformity of false killer whale distribution has been 
made in NMFS' estimates of abundance.
    Comment 56: False killer whale densities on the high seas south of 
Hawaii should lead to a higher PBR for high seas stocks, warranting Cat 
II or III classification for the high seas component of the fishery.
    Response: Although the fishery is conducted on the high seas as 
well as within the EEZ, the fishery is classified based upon its take 
of false killer whales in within the EEZ, where only U.S.-based fishing 
occurs. Incidental mortality and serious injury incidental to longline 
fishing within the EEZ exceed a PBR based upon surveys within the EEZ. 
Furthermore, mortality and serious injury of false killer whales exceed 
50 percent of a number calculated using the PBR approach for false 
killer whales on the high seas areas of the fishery (which is also 
subject to an additional unknown level of mortality incidental to a 
substantial longline fishing effort by vessels from other nations 
within the range of the U.S. fishery on the high seas). Accordingly, 
the fishery is appropriately classified as a Category I fishery over 
its entire range.
    Comment 57: Reeves et al. make several unsubstantiated assertions. 
Even if the insular stock has declined, there is no evidence that the 
longline fishery is responsible. No evidence of strandings or sightings 
of carcasses were made in support of a large mortality. SAR guidelines 
state old abundance data should not be used.
    Response: Reeves et al. is a peer-reviewed scientific article that 
clearly outlines the data and basis for their conclusions, including 
observed line injuries and decreases in sighting rates. In the SAR, the 
longline fishery is listed only as one potential contributing factor, 
reflecting uncertainty in the sources of such injuries. The longline 
fishery operated within the known range of the insular false killer 
whale stock during the early 1990s, when the decline began, but there 
was no observer program to document potential interactions with 
cetaceans. Further, it is well established that animals that die at sea 
rarely strand or are recorded at sea, but rather they sink or are swept 
away from land by currents. The SAR guidelines state that old abundance 
data are unreliable to estimate current abundance. However, older data 
are essential for evaluating trends, and their inclusion in this 
historical context is fully warranted.
    Comment 58: There is no evidence that the insular stock has 
interacted with longline fisheries.
    Response: NMFS recognizes that the data available for determining 
stock identity of false killer whales is incomplete for this 2009 SAR. 
At the time of the 2009 SAR preparation, genetic samples were only 
available for five of the 24 false killer whales taken by the fishery 
(and only for two of the takes within HI EEZ waters). Thus, the 
identity of the majority of false killer whales taken by the fishery is 
unknown and can be assigned based only on location. No tissue samples 
are available for three takes that occurred during sets spanning the 
insular/pelagic stock boundary, and these animals could have been from 
the insular stock based on the distance from the islands at which they 
have been documented. NMFS will continue to investigate ways to improve 
allocation of stock-specific bycatch, taking into account takes and 
fishing effort within the insular stock range. NMFS will also continue 
efforts to obtain tissue samples for genetic analysis on as many 
animals as possible to aid in stock identification.

    Dated: March 10, 2010.
Helen M. Golde,
Deputy Director, Office of Protected Resources, National Marine 
Fisheries Service.
[FR Doc. 2010-5699 Filed 3-15-10; 8:45 am]
BILLING CODE 3510-22-S