Guidelines for Preparing Stock Assessment Reports Pursuant to the Marine Mammal Protection Act; Final Revisions to Procedural Directive, 7953-7957 [2023-02550]
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a small reduction in adverse impacts
and a slight cost reduction.
The Louisiana TIG also fully
evaluated a larger-capacity diversion
with a maximum capacity of 150,000 cfs
(Alternative 3). While the marsh
creation benefits of such a large
diversion would be significantly greater,
the collateral injuries would also
increase to levels unacceptable to the
Trustees.
Three other alternatives (Alternatives
4–6) would divert the same flow (cfs)
capacities as described above for
Alternatives 1–3 and would include
marsh terrace outfall features. While
providing some benefits, the outfall
feature alternatives do not substantially
change the extent to which the
corresponding alternatives with similar
capacities and without terraces meet the
Louisiana TIG’s goals and objectives for
the project.
The Louisiana TIG is committed to
continuing efforts to restore the
resources that would be adversely
affected by the selected MBSD Project,
many of which were also injured by the
DWH oil spill. The selected MBSD
Project includes a MAM Plan and a
Mitigation and Stewardship Plan. The
Project also includes a Dolphin
Intervention Plan, which was developed
in response to anticipated impacts and
public comments. These plans serve as
an integral part of the proposed
restoration action. The MAM Plan
includes (1) methods for specific types
of monitoring, (2) key performance
measures/indicators for assessing the
success of the Proposed MBSD Project
in meeting its objectives, and (3)
decision criteria and processes for
modifying (‘‘adapting’’) current or future
management actions. The Mitigation
and Stewardship Plan includes actions
to help to address collateral impacts of
construction and operation of the
Proposed MBSD Project. The Dolphin
Intervention Plan outlines a spectrum of
potential response actions for dolphins
affected by the operation of the
Proposed MBSD Project, ranging from
recovery/relocation to no intervention to
euthanasia. As part of the Project, CPRA
would have responsibility for ensuring
implementation of the measures
outlined in each of these Plans.
While the Louisiana TIG rejected the
No-Action-Alternative for this Final
Phase II RP #3.2, the OPA analysis
integrated information about the MBSD
FEIS No-Action Alternative (40 CFR
1502.14(c)) because it provided a
baseline against which the benefits and
collateral injuries of the selected MBSD
Project and its alternatives were
compared.
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The Louisiana TIG solicited public
comment on the Draft RP for a total of
90 days between March 5, 2021 and
June 3, 2021 (86 FR 12915, March 5,
2021). The Louisiana TIG held three
public meetings to facilitate public
understanding of the document and
provide opportunity for public
comment. The Louisiana TIG actively
solicited public input through a variety
of mechanisms, including convening
virtual public meetings, distributing
electronic communications, and using
the Trustee-wide public website and
database to share information and
receive public input. The Louisiana TIG
considered the public comments
received, which informed the Louisiana
TIG’s analysis of alternatives in the
Final RP. The Final Phase II RP #3.2
includes a summary of the comments
received and responses to those
comments. A Notice of Availability of
the Final Phase II RP #3.2 was
published in the Federal Register on
September 23, 2022 (87 FR 58067).
Trustees typically choose to combine
a restoration plan and the required
NEPA analysis into a single document
(33 CFR 990.23(a), (c)(1)). In this case,
the Final Phase II RP #3.2 does not
include integrated NEPA analysis. This
is because prior to evaluation of the
Proposed MBSD Project by the
Louisiana TIG as a restoration project
under OPA, the USACE CEMVN
initiated scoping for the MBSD Project
EIS based on a permit application for
the Project by CPRA. To increase
efficiency, reduce redundancy, and be
consistent with Federal policy and 40
CFR 1506.3, the four Federal Trustees in
the Louisiana TIG decided to participate
as cooperating agencies in the
development of a single MBSD FEIS. As
the lead agency, the USACE CEMVN has
primary responsibility for preparing the
MBSD FEIS (40 CFR 1501.5(a)). The
Louisiana TIG has relied on the MBSD
FEIS to evaluate potential
environmental effects of the MBSD
Project and its alternatives evaluated in
the Final Phase II RP #3.2.
Based on review of the analysis and
in accordance with 40 CFR 1506.3
(1978), each of the Federal trustees of
the Louisiana TIG adopted the MBSD
FEIS to satisfy its independent NEPA
requirements related to its decision to
fund and implement the selected MBSD
Project pursuant to OPA 15 CFR 990 et
seq. Furthermore, based on our
determination of the sufficiency of the
USACE’s Final MBSD EIS, the Federal
agencies of the Louisiana TIG
determined that it was appropriate to
adopt the Final MBSD EIS without the
need for recirculation in accordance
with 40 CFR 1506.3 (1978).
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7953
Administrative Record
The documents included in the
Administrative Record can be viewed
electronically at the following location:
https://www.doi.gov/deepwaterhorizon/
adminrecord.
The DWH Trustees opened a publicly
available Administrative Record for the
NRDA for the Deepwater Horizon oil
spill, including restoration planning
activities, concurrently with publication
of the 2011 Notice of Intent to Begin
Restoration Scoping and Prepare a Gulf
Spill Restoration Planning PEIS
(pursuant to 15 CFR 990.45). The
Administrative Record includes the
relevant administrative records since its
date of inception. This Administrative
Record is actively maintained and
available for public review and includes
the administrative record for the RP
#3.2.
Authority
The authority of this action is the Oil
Pollution Act of 1990 (33 U.S.C. 2701 et
seq.), the implementing NRDA
regulations found at 15 CFR part 990,
and NEPA (42 U.S.C. 4321 et seq.).
Dated: February 1, 2023.
Carrie Diane Robinson,
Director, Office of Habitat Conservation,
National Marine Fisheries Service.
[FR Doc. 2023–02521 Filed 2–6–23; 8:45 am]
BILLING CODE 3510–12–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XC558]
Guidelines for Preparing Stock
Assessment Reports Pursuant to the
Marine Mammal Protection Act; Final
Revisions to Procedural Directive
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability; response
to comments.
AGENCY:
The National Marine
Fisheries Service (NMFS) has
incorporated public comments on the
draft revisions to the Guidelines for
Preparing Stock Assessment Reports
Pursuant to the Marine Mammal
Protection Act (NMFS Procedural
Directive) and is now finalizing the
revisions and making them available to
the public.
DATES: This final Procedural Directive
will be effective as of February 7, 2023.
SUMMARY:
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Electronic copies of the
Guidelines for Preparing Stock
Assessment Reports Pursuant to the
Marine Mammal Protection Act (NMFS
PD 02–204–01) are available at: https://
www.regulations.gov/docket/NOAANMFS-2022-0081 or https://
www.fisheries.noaa.gov/national/lawsand-policies/protected-resources-policydirectives.
FOR FURTHER INFORMATION CONTACT: Eric
Patterson, NMFS Office of Protected
Resources, (301) 427–8415,
Eric.Patterson@noaa.gov; or Zachary
Schakner, NMFS Office of Science and
Technology, 301–427–8106,
Zachary.Schakner@noaa.gov.
SUPPLEMENTARY INFORMATION:
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ADDRESSES:
Background
Section 117 of the Marine Mammal
Protection Act (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. 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 from all sources,
descriptions of the fisheries with which
the stock interacts, and the status of the
stock. Initial stock assessment reports
(SARs) were completed in 1995.
Since 1995, NMFS has convened a
series of workshops and developed
associated reports (Barlow et al., 1995,
Wade and Angliss, 1997, Moore and
Merrick, 2011) to develop Guidelines for
Assessing Marine Mammal Stocks,
which, in 2016, were formally
established as a NMFS Procedural
Directive (NMFS PD 02–204–01). In
2020, NMFS reviewed the guidelines
and determined revisions were
warranted. On August 25, 2022, NMFS
published draft revisions to the
guidelines for public review and
comment (87 FR 52368). Major revision
topics included: (1) incorporating the
NMFS Procedural Directive: Reviewing
and Designating Stocks and Issuing
Stock Assessment Reports under the
Marine Mammal Protection Act (NMFS
PDS 02–204–03); (2) calculating the
minimum population abundance (Nmin)
in post-survey years; (3) addressing
sources of bias in the calculation of
Nmin; (4) designating stocks as strategic;
(5) improving language related to
quantifying and including unobserved
mortality and serious injury; (6)
including information on ‘‘other
factors,’’ such as climate change,
biologically important areas, and habitat
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issues; (7) clarifying expectations
regarding peer-review, quality
assurance, and quality control; and (8)
identifying data sources and criteria
used for documenting human-caused
mortality and serious injury. Other
minor revisions were made to improve
readability, formatting, and clarity, and
ensure consistency with recent revisions
to NMFS’ Serious Injury Procedural
Directive (NMFS–PD 02–038–01).
NMFS is now finalizing the revisions to
the guidelines with minor changes in
response to public comments. The
complete summary of public comments
and responses is included in the next
section, and the full final revised
Procedural Directive is available at:
https://www.regulations.gov/docket/
NOAA-NMFS-2022-0081 or https://
www.fisheries.noaa.gov/national/lawsand-policies/protected-resources-policydirectives.
Comments and Responses
NMFS received comments from the
Marine Mammal Commission
(Commission), the Atlantic Scientific
Review Group (SRG), two nongovernmental environmental
organizations (Center for Biological
Diversity (CBD) and the Natural
Resources Defense Council (NRDC)),
representatives from the fishing
industry (Washington Dungeness Crab
Fishermen’s Association (WDCFA) and
the Hawaii Longline Association
(HLA)), and the North Slope Borough,
Department of Wildlife Management
(NSB). Similar comments from different
groups were combined, summarized,
and responded to in aggregate below.
Comment 1: A representative from
NSB Department of Wildlife
Management, who is also an Alaska SRG
member, and the Commission both
commented on the draft revisions
related to co-management between
NMFS and Alaska Native Organizations
(ANOs). Specifically, NSB encouraged
NMFS to take co-management
consultation with ANOs as seriously as
it takes reviews by the SRGs. To this
end, NSB suggested several specific
revisions to emphasize how and when
in the SAR process NMFS should
engage with co-management partners.
Similarly, the Commission notes that
the guidelines could benefit from
providing more specific and clearer
guidance on the role of ANOs during the
SAR development process and suggest
several ways NMFS could provide
additional clarity.
Response: NMFS thanks the NSB and
Commission for their thoughtful
comments and suggestions to further
clarify the role of co-management
partners, specifically ANOs, in the SAR
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development and review process. NMFS
has incorporated nearly all of the
specific edits suggested by NSB in some
fashion, which we believe are in line
with the more general suggestions made
by the Commission.
Comment 2: The CBD, WDCFA, and
the Atlantic SRG all provided comments
on the draft revisions regarding the
topic ‘‘Undetected Mortality and
Serious Injury.’’ Both CBD and the
Atlantic SRG are supportive of the
additional guidance provided on this
topic. WDCFA acknowledges that
undetected mortality and serious injury
does indeed occur, specifically as it
relates to entanglements in Dungeness
crab gear but is concerned that
incorporating estimates of unobserved
mortality and serious injury based on
limited data may cause a bias leading to
reductions in the Potential Biological
Removal (PBR) estimate for a stock,
specifically Pacific Coast Humpback
Stocks. They note that when no data to
quantitatively assess undetected
mortality and serious injury are
available, the guidance provided in the
draft revisions is justifiable and
prudent.
Response: NMFS thanks CBD and the
Atlantic SRG for their positive feedback
on the draft revisions regarding
undetected mortality and serious injury.
NMFS agrees with WDCFA that in cases
where data are too limited to
quantitatively estimate undetected
mortality and serious injury, the
revisions provide guidance to SAR
authors to appropriately characterize the
uncertainty and biases associated with
the human-caused mortality and serious
injury estimates. However, to clarify, in
cases where data are available to
quantitatively estimate and incorporate
unobserved mortality and serious injury
for a stock, there is no effect on PBR.
Rather, it may be possible to incorporate
unobserved human-caused mortality
and serious injury into the total humancaused mortality and serious injury,
which is then compared to PBR. NMFS
also emphasizes that if data are
available to quantitatively estimate and,
thus, correct for undetected mortality
and serious injury and to apportion this
to cause, such methods are still subject
to the peer-review requirements laid out
within the final revisions and would
likely be considered for at least Level 2
review, if not Level 3, as detailed in the
new section entitled ‘‘3.6 Ensuring
Appropriate Peer Review of New
Information.’’ In addition, the
incorporation of such estimates in the
SARs would be subject to public notice
and comment.
Comment 3: The HLA, NSB, and
Atlantic SRG all commented on the
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draft revisions that incorporate and
reference NMFS Procedural Directive:
Reviewing and Designating Stocks and
Issuing Stock Assessment Reports under
the Marine Mammal Protection Act
(NMFS PDS 02–204–03). HLA notes that
the guidelines should clarify that NMFS
will only designate a demographically
independent population (DIP) as a stock
if it determines that the DIP meets the
definition of a stock under the MMPA.
NSB believes the guidelines could be
further improved with several specific
revisions to address how DIPs are
determined in practice. Finally, the
Atlantic SRG notes that the draft
revisions with respect to this topic are
sensible and applauds NMFS for their
work on this issue.
Response: We thank the Atlantic SRG
for the positive feedback on the
revisions related to this topic. In
response to HLA’s comment, we agree
that NMFS should only designate a DIP
as a stock if it also meets the definition
of a stock under the MMPA. The
original draft revisions were indeed
meant to imply this, but we have since
further revised this section to clarify.
Finally, we appreciate NSB’s desire to
provide further information in the
guidelines regarding how DIPs are
determined in practice. However,
Martien et al. (2019) is the best resource
for delineating DIPs, and we believe it
is more appropriate to direct the reader
to this resource rather than to provide
further information in these guidelines.
In the final guidelines, we note that
additional detail on how DIPs are
defined in practice can be found in
Martien et al. (2019).
Comment 4: CBD, NSB, NRDC, the
Commission, and the Atlantic SRG all
commented on sublethal impacts,
including the proposed new ‘‘Habitat
Issues’’ section. CBD notes that the new
guidelines do not sufficiently direct the
SAR authors to quantify the impact of
humans on marine mammal prey and
recommend having a standalone section
on prey. The Commission notes that
harmful algal blooms are not
specifically listed as a possible concern
in the ‘‘Habitat Issues’’ section and
given their prevalence and known
impacts on marine mammals, they
suggest it be added. Somewhat in
contrast, NSB encourages NMFS to
modify the guidelines to stress that the
‘‘Habitat Issues’’ section should only be
a very brief summary. While not a
habitat issue per se, both the Atlantic
SRG and NRDC commented on the need
for the SARs to include further
information on non-lethal
entanglements, particularly for large
whales like the North Atlantic right
whale. In particular, the Atlantic SRG
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questions whether NMFS will
incorporate any revisions it makes to its
related but separate procedure on
serious injury determinations for marine
mammals related to better addressing
sublethal chronic injuries and/or
reproductive impairment that may occur
to large whales as a result of
entanglement.
Response: NMFS appreciates the
constructive feedback on these issues
and has made revisions to better address
the various points made by the
commenters. In the final revised
guidelines, we have renamed the
‘‘Habitat Issues’’ section to ‘‘Other
Factors That May Be Causing a Decline
or Impeding Recovery’’ or ‘‘Other
Factors’’ for short and expanded its
scope beyond habitat to include all
other identified factors, excluding
human-caused mortality and serious
injury that may be affecting a marine
mammal stock. The guidelines specify
that this section should be included in
SARs for strategic stocks, as required by
Section 117 of the MMPA, but can be
included in SARs for non-strategic
stocks if data indicate other factors are
likely causing a decline in or adversely
affecting the status of the stock. SAR
authors are directed to include
information on non-human causes of
mortality and serious injury, as well as
human- and non-human-caused
sublethal impacts (including nonserious injuries) that may be causing a
decline or impeding recovery. Examples
of these include (but are not limited to):
predation; inter- or intra-specific
aggression; effects to prey and habitat;
infectious disease; toxins including
from harmful algal blooms;
contaminants; non-serious injuries from
entanglements, vessel strikes, or other
human activities; masking and hearing
impairment due to noise; and climate
change, variability, and environmental
factors (e.g., sea surface temperature)
that affect marine mammal health,
survival, or reproduction.
By expanding the scope of this
section, the SARs will more closely
align with the specific direction
provided by section 117(a)(3) of the
MMPA and will provide SAR authors
flexibility to address all of the issues
brought up by the commenters.
However, as recommended by NSB, the
guidelines emphasize that the ‘‘Other
Factors’’ section should only be a brief
summary and rely on and reference
supporting publications and existing
datasets.
Comment 5: Both the Atlantic SRG
and NSB commented on revisions to the
‘‘Transboundary Stocks’’ section. NSB
commented on informed interpolation,
defined in the guidelines as the use of
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a model-based method for interpolating
density between transect lines, which
may be used to fill gaps in survey
coverage and estimate abundance and
PBR. NSB asked how widely accepted
informed interpolation based upon
habitat associations is and urged caution
with using modeled habitat associations
when predicting abundance. The
Atlantic SRG noted that the guidance on
transboundary stocks is not clear. In a
follow up exchange, the Atlantic SRG
further clarified that in their view, the
guidance as written is really only
applicable to Nmin and not the other
aspects of PBR or human-caused
mortality and serious injury.
Furthermore, it may not sufficiently
direct authors to describe the
uncertainty that may exist in
transboundary situations.
Response: In the draft revisions,
guidance on informed interpolation was
located both in the ‘‘Transboundary
Stocks’’ section, as well as in the
‘‘Minimum Population Estimate’’
section, and similar text was already
included in the 2016 version of the
guidelines in the ‘‘Definition of Stock’’
section. The issue of extrapolation and
interpolation was the subject of a
working paper presented at the
Guidelines for Assessing Marine
Mammal Stocks (GAMMS) GAMMS III
workshop (WP–4B); and, as such, we
will not go into depth here. A copy of
this working paper is available upon
request and a summary of the paper and
workshop participants’ views on this
subject can be found in the GAMMS III
workshop report (Moore and Merick,
2011). In general, NMFS agrees that
informed interpolation should be used
with caution and notes that the sentence
preceding the one in question reiterates
that ‘‘In general, abundance or density
estimates from one area should not be
extrapolated to unsurveyed areas to
estimate range-wide abundance.’’
However, to further clarify, we have
revised the text to emphasize that
informed interpolation may only be
appropriate in some cases. We have also
now removed where this text was
duplicated, preferring to only keep it in
the ‘‘Minimum Population Estimate’’
section as this issue is not specific to
transboundary stocks. Finally, we note
that habitat-based density modeling has
been successfully used to estimate
abundance of marine mammals in a
variety of areas. Such modeling is
common for estimating abundance and
filling relatively small gaps in survey
coverage within a larger overall survey
area (e.g., Roberts et al., 2016., Becker et
al., 2020 and 2021), and in some cases,
with caution, has been used to predict
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marine mammal density even outside of
surveyed areas, as long as modeling is
restricted to within the range of an
established habitat covariate-density
relationship (Mannocci et al., 2017).
In response to the Atlantic SRG’s
comment and follow up clarifications,
we have revised the ‘‘Transboundary
Stocks’’ section to provide additional
clarity on approaches for adjusting Nmin
as well as other aspects of PBR and
further clarified options for adjusting
human-caused mortality and serious
injury. In addition, the final guidelines
direct SAR authors to summarize any
additional uncertainties that may be
introduced by adjusting PBR and or
human-caused mortality and serious
injury estimates.
Comment 6: CBD, HLA, NSB,
WDCFA, and the Atlantic SRG all
provided comments on the draft
revisions related to calculating the
minimum population abundance, or
Nmin. CBD and NSB support the draft
revisions that remove the 8-year
‘‘expiration’’ of abundance data for use
in calculating Nmin, while WDCFA and
the Atlantic SRG do not believe it is
appropriate to use data that are 8 years
old or older for calculating Nmin. The
Atlantic SRG also notes that NMFS does
not use data this old when assessing fish
stocks. Both HLA and NSB commented
on the proposed guidelines for adjusting
older abundance estimates, with NSB
cautioning NMFS against simply
lowering Nmin to account for increasing
uncertainty with time and HLA request
that the draft revisions clarify that
adjustments to Nmin can occur in both
directions (increase or decrease).
Response: We thank CBD and NSB for
their support on the new revisions. We
agree with the WDCFA and the Atlantic
SRG that ideally NMFS would have the
resources to conduct surveys of marine
mammal stocks more frequently than
every 8 years. However, having
abundance data ‘‘expire’’ after 8 years
has created significant challenges for
management of marine mammal stocks,
which was recognized but not addressed
during the last revisions of the
guidelines in 2011. Under the new
guidelines, it is still possible for
abundance estimates to be determined
to be unreliable once they are 8 years
old or older, but there is flexibility for
making such determinations based on
the specific situations. Thus, we believe
the new guidelines are not inherently in
conflict with the previous 8-year
expiration guidance, rather they simply
provide more flexibility to SAR authors
to determine what is appropriate for any
given stock, based on the best scientific
information available at the time.
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On the ASRG’s comment that NMFS
does not use data 8 years or older to
assess fish stocks, first, we note that this
statement is not accurate (see Newman
et al., 2015). Councils do have policies
(with variation between regions on the
details) about using assessments to
inform management once they are older
than a certain number of years
(generally 5–10 years), and if data are
out of date they may not be deemed
acceptable for use in an assessment, but
there is no blanket policy on this
issue—it is up to the discretion of the
assessment scientists and then the peer
review panel. We believe this is
consistent with what was proposed and
is now being finalized here for marine
mammal stock assessments. Second,
there are drastic differences between
fishes and marine mammals in their life
histories, as well as their population
dynamics given that fishes are generally
R-selected while marine mammals are
K-selected. Thus, there is a biological
basis for different taxonomic groups
necessitating differing survey
frequencies to achieve similar levels of
confidence.
NMFS appreciates NSB’s and HLA’s
comments regarding the assumption
that a stock’s abundance declines after
survey data are 8 years or older. To
clarify, the new guidelines do not make
such an assumption. For example, if
available, a trend analysis can be used
to infer population increases or
decreases. In the final guidelines, we
have provided clarification that
adjustments to Nmin can result in Nmin
increasing, decreasing, or staying the
same (within some estimate of error).
However, it is true that the uncertainty
around abundance estimates increases
with time. Consequently, even without
assuming a particular trend (increasing,
decreasing, stable), when Nmin is
calculated as some percentile of the
distribution of possible Ns at some point
in the future, it will necessarily decline
over time, as this reflects the expanding
envelope of uncertainty.
Comment 7: NSB commented on the
guidelines related to a stock status with
respect to Optimum Sustainable
Population (OSP). Specifically, NSB
recommended the guidelines provide a
definition of OSP and further
information on how OSP is used in
practice.
Response: In the final guidelines, we
now provide the statutory and
regulatory definitions of OSP. In
addition, we have provided additional
information on how OSP is used in
practice by referring the reader to
Section 115 of the MMPA. However, the
final guidelines do not provide
additional guidance as to how to
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officially determine status relative to
OSP, as such a determination requires
rulemaking, including public comment
and consultation with the Commission,
under Section 115 of the MMPA.
Comment 8: The Atlantic SRG and
NRDC both request NMFS revise the
guidelines with respect to rounding very
small PBRs, specifically to round PBR
values below 0.2 to two decimal places,
noting that this may be more transparent
and appropriate for highly endangered
stocks with very small PBRs, such as
Rice’s whale.
Response: We have revised the
guidelines to direct SAR authors to
round PBR to two decimal places when
it is below one.
Comment 9: HLA, the Atlantic SRG,
and the Commission commented on the
draft revisions related to ensuring
appropriate peer review and quality
assurance and quality control (QA/QC).
The Commission and the Atlantic SRG
both support the draft revisions related
to this issue, while HLA requests
additional clarification. Specifically,
HLA requests NMFS clarify that QA/QC
review should be performed by the
relevant regional science center. HLA
notes that if NMFS is going to use the
SRGs to meet peer review requirements,
then it must ensure that any such
review strictly complies with the OMB
Peer Review Bulletin.
Response: NMFS thanks the
Commission and the Atlantic SRG for
their support on the new revisions.
NMFS agrees with HLA’s assessment
that QA/QC review should be performed
by the relevant regional science center
and has further clarified this in the final
revisions. With respect to complying
with the OMB Peer Review Bulletin,
NMFS notes that SRG review
specifically meets all the necessary
requirements. See the SRGs’ written
charge (Terms of Reference), annual
recommendations to NMFS, and NMFS’
annual responses, all found on our
website (https://
www.fisheries.noaa.gov/national/
marine-mammal-protection/scientificreview-groups).
Comment 10: CBD and NSB both
provided comments on the draft
revisions related to determining
strategic status for stocks. CBD disagrees
with NMFS’ approach in the draft
guidelines for determining strategic
status based on MMPA 3(19)(B),
preferring that NMFS conduct an
independent evaluation or rely on a
positive 90-day finding on a petition to
list a species under the Endangered
Species Act (ESA) to determine strategic
status under MMPA 3(19)(B) rather than
what is included in the draft revisions,
which rely on a proposed ESA-listed
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Federal Register / Vol. 88, No. 25 / Tuesday, February 7, 2023 / Notices
status. NSB supports the draft revisions
as it relates to determining strategic
status under MMPA 3(19)(A),
specifically the guidelines that provide
for the flexibility to calculate a ‘‘critical
Nmin’’ to inform strategic status.
Response: NMFS thanks NSB for their
support and agree that the new guidance
on calculating a ‘‘critical Nmin’’ will be
helpful to NMFS in determining
strategic status related to MMPA
3(19)(A). As stated in the draft revisions,
we disagree with CBD that an
independent evaluation under the
MMPA should be conducted to
determine whether a stock is likely to be
listed as threatened within the
foreseeable future under the ESA and,
thus, qualifies for strategic status under
MMPA 3(19)(B). As noted in the draft
guidelines, such an evaluation should
be conducted under section 4 of the
ESA (16 U.S.C. 1533). Furthermore,
NMFS disagrees that a positive 90-day
finding demonstrates that a stock should
be considered ‘‘strategic’’ under section
3(19)(B) of the MMPA. A positive 90day finding under the ESA simply
means that NMFS has determined that
the petition presents substantial
scientific or commercial information
indicating that the petitioned action
may be warranted and that NMFS will
conduct a review of the status of the
species to determine whether listing
under the ESA is warranted. It in no
way indicates that a species is ‘‘likely’’
to be listed.
Comment 11: WDCFA expressed
concern with how long it takes to
incorporate new information,
specifically abundance data, into SARs,
particularly for stocks along the U.S.
West Coast.
Response: NMFS acknowledges the
concern and agrees that ideally the
SARs would contain more recent
information. However, existing
resources and the necessary data
processing, analysis, and peer review do
not allow for more expedited updates at
this time.
ddrumheller on DSK120RN23PROD with NOTICES
References
Barlow, J., Swartz, S.L., Eagle, T.C., Wade,
P.R.. 1995. U.S. Marine Mammal Stock
Assessments: Guidelines for Preparation,
Background, and a Summary of the 1995
Assessments. NOAA Technical
Memorandum NMFS–OPR–6, 73 p.
Available at: https://
repository.library.noaa.gov/view/noaa/
6219.
Becker, E.A., Forney, K.A., Miller, D.L.,
Fiedler, P.C., Barlow, J., and Moore, J.E.
2020. Habitat-based density estimates for
cetaceans in the California Current
Ecosystem based on 1991–2018 survey
data. U.S. Department of Commerce,
NOAA Technical Memorandum NMFS–
VerDate Sep<11>2014
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SWFSC638.
Becker, E.A., Forney, K.A., Oleson, E.M.,
Bradford, A.L., Moore, J.E., and Barlow,
J. 2021. Habitat-based density models for
cetaceans within the U.S Exclusive
Economic Zone waters around the
Hawaiian Archipelago. U.S. Department
of Commerce, NOAA Technical
Memorandum NMFS–PIFSC–116.
Lettrich, M.D., Asaro, M.J., Borggaard, D.L.,
Dick, D. M., Griffis, R.B., Litz, J.A.,
Orphanides, C.D., Palka, D.L., Pendleton,
D.E., Soldevilla, M.S. 2019. A Method for
Assessing the Vulnerability of Marine
Mammals to a Changing Climate. NOAA
Technical Memorandum NMFSF–SPO–
196, 73 p. Available at: https://
spo.nmfs.noaa.gov/sites/default/files/
TMSPO196_508.pdf.
Mannocci, L., Roberts, J.J., Miller, D.L. and
Halpin, P.N. 2017. Extrapolating
cetacean densities to quantitatively
assess human impacts on populations in
the high seas. Conservation Biology. 31:
601–614.
Martien, K.K., Lang, A.R., Taylor, B.L., Rosel,
P.E., Simmons, S.E., Oleson, E.M.,
Boveng, P.L., and Hanson, M.B. 2019.
The DIP Delineation Handbook: A Guide
to Using Multiple Lines of Evidence to
Delineate Demographically Independent
Populations of Marine Mammals. U.S.
Department of Commerce, NOAA
Technical Memorandum NMFS–
SWFSC–622.
Moore, J.E., and Merrick, R. (editors) 2011.
Guidelines for Assessing Marine
Mammal Stocks: Report of the GAMMS
III Workshop, February 15–18, 2011, La
Jolla, California. U.S. Department of
Commerce, NOAA Technical
Memorandum NMFS–OPR–47.
Newman D., Berkson J., and Suatoni L. 2015.
Current methods for setting catch limits
for data-limited fish stocks in the United
States. Fisheries Research. 164: 86–93.
NMFS (National Marine Fisheries Service).
2019. Reviewing and Designating Stocks
and Issuing Stock Assessment Reports
under the Marine Mammal Protection
Act. NMFS Procedure 02–203–04.
Available at: https://
www.fisheries.noaa.gov/national/lawsand-policies/policy-directive-system
NMFS (National Marine Fisheries Service).
2012b. Renewed 2014. Procedural
Directive: Process for Distinguishing
Serious from Non-Serious Injury of
Marine Mammals. NMFS Procedure 02–
238–01. Available at: https://
media.fisheries.noaa.gov/dammigration/02-238-01.pdf.
Roberts, J.J., Best, B.D., Mannocci, L.,
Fujioka, E., Halpin, P.N., Palka, D.L.,
Garrison, L.P., Mullin, K.D., Cole, T.V.N.,
Khan, C.B., McLellan, W.A., Pabst, D.A.,
Lockhart, G.G. 2016. Habitat-based
cetacean density models for the U.S.
Atlantic and Gulf of Mexico. Scientific
Reports. 6:22615.
Wade, P.R. 1998. Calculating limits to the
allowable human-caused mortality of
cetaceans and pinnipeds. Marine
Mammal Science 14:1–37.
Wade, P.R., Angliss, R.P. 1997. Guidelines for
Assessing Marine Mammal Stocks:
PO 00000
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3–5, 1996, Seattle, WA. NOAA Technical
Memorandum NMFS–OPS–12, 93 p.
Available at: https://
repository.library.noaa.gov/view/noaa/
15963.
Dated: February 2, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2023–02550 Filed 2–6–23; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XC559]
Process for Distinguishing Serious
From Non-Serious Injury of Marine
Mammals; Revisions to Procedural
Directive
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability; response
to comments.
AGENCY:
The National Marine
Fisheries Service (NMFS) announces
final revisions to the Process for
Distinguishing Serious from NonSerious Injury of Marine Mammals.
NMFS has incorporated public
comments into the final Procedural
Directive and provides responses to
public comments.
DATES: This final Procedural Directive
will be effective as of February 7, 2023.
ADDRESSES: Electronic copies of the
Process for Distinguishing Serious from
Non-Serious Injury of Marine Mammals
(NMFS PD 02–03801) are available at:
https://www.regulations.gov/docket/
NOAA-NMFS-2022-0043 or https://
www.fisheries.noaa.gov/national/lawsand-policies/protected-resources-policydirectives.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Jaclyn Taylor, NMFS Office of Protected
Resources, (301) 427–8402,
Jaclyn.Taylor@noaa.gov; or Phinn
Onens, NMFS Office of Protected
Resources, (301) 427–8402,
Phinn.Onens@noaa.gov.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act
(MMPA) (16 U.S.C. 1361 et seq.)
requires NMFS to estimate the annual
levels of human-caused mortality and
serious injury (M/SI) of marine mammal
stocks (Section 117) and to classify
E:\FR\FM\07FEN1.SGM
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]]>Agencies
[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Notices]
[Pages 7953-7957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02550]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC558]
Guidelines for Preparing Stock Assessment Reports Pursuant to the
Marine Mammal Protection Act; Final Revisions to Procedural Directive
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability; response to comments.
-----------------------------------------------------------------------
SUMMARY: The National Marine Fisheries Service (NMFS) has incorporated
public comments on the draft revisions to the Guidelines for Preparing
Stock Assessment Reports Pursuant to the Marine Mammal Protection Act
(NMFS Procedural Directive) and is now finalizing the revisions and
making them available to the public.
DATES: This final Procedural Directive will be effective as of February
7, 2023.
[[Page 7954]]
ADDRESSES: Electronic copies of the Guidelines for Preparing Stock
Assessment Reports Pursuant to the Marine Mammal Protection Act (NMFS
PD 02-204-01) are available at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0081 or https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
FOR FURTHER INFORMATION CONTACT: Eric Patterson, NMFS Office of
Protected Resources, (301) 427-8415, [email protected]; or
Zachary Schakner, NMFS Office of Science and Technology, 301-427-8106,
[email protected].
SUPPLEMENTARY INFORMATION:
Background
Section 117 of the Marine Mammal Protection Act (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. 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 from all sources,
descriptions of the fisheries with which the stock interacts, and the
status of the stock. Initial stock assessment reports (SARs) were
completed in 1995.
Since 1995, NMFS has convened a series of workshops and developed
associated reports (Barlow et al., 1995, Wade and Angliss, 1997, Moore
and Merrick, 2011) to develop Guidelines for Assessing Marine Mammal
Stocks, which, in 2016, were formally established as a NMFS Procedural
Directive (NMFS PD 02-204-01). In 2020, NMFS reviewed the guidelines
and determined revisions were warranted. On August 25, 2022, NMFS
published draft revisions to the guidelines for public review and
comment (87 FR 52368). Major revision topics included: (1)
incorporating the NMFS Procedural Directive: Reviewing and Designating
Stocks and Issuing Stock Assessment Reports under the Marine Mammal
Protection Act (NMFS PDS 02-204-03); (2) calculating the minimum
population abundance (Nmin) in post-survey years; (3)
addressing sources of bias in the calculation of Nmin; (4)
designating stocks as strategic; (5) improving language related to
quantifying and including unobserved mortality and serious injury; (6)
including information on ``other factors,'' such as climate change,
biologically important areas, and habitat issues; (7) clarifying
expectations regarding peer-review, quality assurance, and quality
control; and (8) identifying data sources and criteria used for
documenting human-caused mortality and serious injury. Other minor
revisions were made to improve readability, formatting, and clarity,
and ensure consistency with recent revisions to NMFS' Serious Injury
Procedural Directive (NMFS-PD 02-038-01). NMFS is now finalizing the
revisions to the guidelines with minor changes in response to public
comments. The complete summary of public comments and responses is
included in the next section, and the full final revised Procedural
Directive is available at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0081 or https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
Comments and Responses
NMFS received comments from the Marine Mammal Commission
(Commission), the Atlantic Scientific Review Group (SRG), two non-
governmental environmental organizations (Center for Biological
Diversity (CBD) and the Natural Resources Defense Council (NRDC)),
representatives from the fishing industry (Washington Dungeness Crab
Fishermen's Association (WDCFA) and the Hawaii Longline Association
(HLA)), and the North Slope Borough, Department of Wildlife Management
(NSB). Similar comments from different groups were combined,
summarized, and responded to in aggregate below.
Comment 1: A representative from NSB Department of Wildlife
Management, who is also an Alaska SRG member, and the Commission both
commented on the draft revisions related to co-management between NMFS
and Alaska Native Organizations (ANOs). Specifically, NSB encouraged
NMFS to take co-management consultation with ANOs as seriously as it
takes reviews by the SRGs. To this end, NSB suggested several specific
revisions to emphasize how and when in the SAR process NMFS should
engage with co-management partners. Similarly, the Commission notes
that the guidelines could benefit from providing more specific and
clearer guidance on the role of ANOs during the SAR development process
and suggest several ways NMFS could provide additional clarity.
Response: NMFS thanks the NSB and Commission for their thoughtful
comments and suggestions to further clarify the role of co-management
partners, specifically ANOs, in the SAR development and review process.
NMFS has incorporated nearly all of the specific edits suggested by NSB
in some fashion, which we believe are in line with the more general
suggestions made by the Commission.
Comment 2: The CBD, WDCFA, and the Atlantic SRG all provided
comments on the draft revisions regarding the topic ``Undetected
Mortality and Serious Injury.'' Both CBD and the Atlantic SRG are
supportive of the additional guidance provided on this topic. WDCFA
acknowledges that undetected mortality and serious injury does indeed
occur, specifically as it relates to entanglements in Dungeness crab
gear but is concerned that incorporating estimates of unobserved
mortality and serious injury based on limited data may cause a bias
leading to reductions in the Potential Biological Removal (PBR)
estimate for a stock, specifically Pacific Coast Humpback Stocks. They
note that when no data to quantitatively assess undetected mortality
and serious injury are available, the guidance provided in the draft
revisions is justifiable and prudent.
Response: NMFS thanks CBD and the Atlantic SRG for their positive
feedback on the draft revisions regarding undetected mortality and
serious injury. NMFS agrees with WDCFA that in cases where data are too
limited to quantitatively estimate undetected mortality and serious
injury, the revisions provide guidance to SAR authors to appropriately
characterize the uncertainty and biases associated with the human-
caused mortality and serious injury estimates. However, to clarify, in
cases where data are available to quantitatively estimate and
incorporate unobserved mortality and serious injury for a stock, there
is no effect on PBR. Rather, it may be possible to incorporate
unobserved human-caused mortality and serious injury into the total
human-caused mortality and serious injury, which is then compared to
PBR. NMFS also emphasizes that if data are available to quantitatively
estimate and, thus, correct for undetected mortality and serious injury
and to apportion this to cause, such methods are still subject to the
peer-review requirements laid out within the final revisions and would
likely be considered for at least Level 2 review, if not Level 3, as
detailed in the new section entitled ``3.6 Ensuring Appropriate Peer
Review of New Information.'' In addition, the incorporation of such
estimates in the SARs would be subject to public notice and comment.
Comment 3: The HLA, NSB, and Atlantic SRG all commented on the
[[Page 7955]]
draft revisions that incorporate and reference NMFS Procedural
Directive: Reviewing and Designating Stocks and Issuing Stock
Assessment Reports under the Marine Mammal Protection Act (NMFS PDS 02-
204-03). HLA notes that the guidelines should clarify that NMFS will
only designate a demographically independent population (DIP) as a
stock if it determines that the DIP meets the definition of a stock
under the MMPA. NSB believes the guidelines could be further improved
with several specific revisions to address how DIPs are determined in
practice. Finally, the Atlantic SRG notes that the draft revisions with
respect to this topic are sensible and applauds NMFS for their work on
this issue.
Response: We thank the Atlantic SRG for the positive feedback on
the revisions related to this topic. In response to HLA's comment, we
agree that NMFS should only designate a DIP as a stock if it also meets
the definition of a stock under the MMPA. The original draft revisions
were indeed meant to imply this, but we have since further revised this
section to clarify. Finally, we appreciate NSB's desire to provide
further information in the guidelines regarding how DIPs are determined
in practice. However, Martien et al. (2019) is the best resource for
delineating DIPs, and we believe it is more appropriate to direct the
reader to this resource rather than to provide further information in
these guidelines. In the final guidelines, we note that additional
detail on how DIPs are defined in practice can be found in Martien et
al. (2019).
Comment 4: CBD, NSB, NRDC, the Commission, and the Atlantic SRG all
commented on sublethal impacts, including the proposed new ``Habitat
Issues'' section. CBD notes that the new guidelines do not sufficiently
direct the SAR authors to quantify the impact of humans on marine
mammal prey and recommend having a standalone section on prey. The
Commission notes that harmful algal blooms are not specifically listed
as a possible concern in the ``Habitat Issues'' section and given their
prevalence and known impacts on marine mammals, they suggest it be
added. Somewhat in contrast, NSB encourages NMFS to modify the
guidelines to stress that the ``Habitat Issues'' section should only be
a very brief summary. While not a habitat issue per se, both the
Atlantic SRG and NRDC commented on the need for the SARs to include
further information on non-lethal entanglements, particularly for large
whales like the North Atlantic right whale. In particular, the Atlantic
SRG questions whether NMFS will incorporate any revisions it makes to
its related but separate procedure on serious injury determinations for
marine mammals related to better addressing sublethal chronic injuries
and/or reproductive impairment that may occur to large whales as a
result of entanglement.
Response: NMFS appreciates the constructive feedback on these
issues and has made revisions to better address the various points made
by the commenters. In the final revised guidelines, we have renamed the
``Habitat Issues'' section to ``Other Factors That May Be Causing a
Decline or Impeding Recovery'' or ``Other Factors'' for short and
expanded its scope beyond habitat to include all other identified
factors, excluding human-caused mortality and serious injury that may
be affecting a marine mammal stock. The guidelines specify that this
section should be included in SARs for strategic stocks, as required by
Section 117 of the MMPA, but can be included in SARs for non-strategic
stocks if data indicate other factors are likely causing a decline in
or adversely affecting the status of the stock. SAR authors are
directed to include information on non-human causes of mortality and
serious injury, as well as human- and non-human-caused sublethal
impacts (including non-serious injuries) that may be causing a decline
or impeding recovery. Examples of these include (but are not limited
to): predation; inter- or intra-specific aggression; effects to prey
and habitat; infectious disease; toxins including from harmful algal
blooms; contaminants; non-serious injuries from entanglements, vessel
strikes, or other human activities; masking and hearing impairment due
to noise; and climate change, variability, and environmental factors
(e.g., sea surface temperature) that affect marine mammal health,
survival, or reproduction.
By expanding the scope of this section, the SARs will more closely
align with the specific direction provided by section 117(a)(3) of the
MMPA and will provide SAR authors flexibility to address all of the
issues brought up by the commenters. However, as recommended by NSB,
the guidelines emphasize that the ``Other Factors'' section should only
be a brief summary and rely on and reference supporting publications
and existing datasets.
Comment 5: Both the Atlantic SRG and NSB commented on revisions to
the ``Transboundary Stocks'' section. NSB commented on informed
interpolation, defined in the guidelines as the use of a model-based
method for interpolating density between transect lines, which may be
used to fill gaps in survey coverage and estimate abundance and PBR.
NSB asked how widely accepted informed interpolation based upon habitat
associations is and urged caution with using modeled habitat
associations when predicting abundance. The Atlantic SRG noted that the
guidance on transboundary stocks is not clear. In a follow up exchange,
the Atlantic SRG further clarified that in their view, the guidance as
written is really only applicable to Nmin and not the other
aspects of PBR or human-caused mortality and serious injury.
Furthermore, it may not sufficiently direct authors to describe the
uncertainty that may exist in transboundary situations.
Response: In the draft revisions, guidance on informed
interpolation was located both in the ``Transboundary Stocks'' section,
as well as in the ``Minimum Population Estimate'' section, and similar
text was already included in the 2016 version of the guidelines in the
``Definition of Stock'' section. The issue of extrapolation and
interpolation was the subject of a working paper presented at the
Guidelines for Assessing Marine Mammal Stocks (GAMMS) GAMMS III
workshop (WP-4B); and, as such, we will not go into depth here. A copy
of this working paper is available upon request and a summary of the
paper and workshop participants' views on this subject can be found in
the GAMMS III workshop report (Moore and Merick, 2011). In general,
NMFS agrees that informed interpolation should be used with caution and
notes that the sentence preceding the one in question reiterates that
``In general, abundance or density estimates from one area should not
be extrapolated to unsurveyed areas to estimate range-wide abundance.''
However, to further clarify, we have revised the text to emphasize that
informed interpolation may only be appropriate in some cases. We have
also now removed where this text was duplicated, preferring to only
keep it in the ``Minimum Population Estimate'' section as this issue is
not specific to transboundary stocks. Finally, we note that habitat-
based density modeling has been successfully used to estimate abundance
of marine mammals in a variety of areas. Such modeling is common for
estimating abundance and filling relatively small gaps in survey
coverage within a larger overall survey area (e.g., Roberts et al.,
2016., Becker et al., 2020 and 2021), and in some cases, with caution,
has been used to predict
[[Page 7956]]
marine mammal density even outside of surveyed areas, as long as
modeling is restricted to within the range of an established habitat
covariate-density relationship (Mannocci et al., 2017).
In response to the Atlantic SRG's comment and follow up
clarifications, we have revised the ``Transboundary Stocks'' section to
provide additional clarity on approaches for adjusting Nmin
as well as other aspects of PBR and further clarified options for
adjusting human-caused mortality and serious injury. In addition, the
final guidelines direct SAR authors to summarize any additional
uncertainties that may be introduced by adjusting PBR and or human-
caused mortality and serious injury estimates.
Comment 6: CBD, HLA, NSB, WDCFA, and the Atlantic SRG all provided
comments on the draft revisions related to calculating the minimum
population abundance, or Nmin. CBD and NSB support the draft
revisions that remove the 8-year ``expiration'' of abundance data for
use in calculating Nmin, while WDCFA and the Atlantic SRG do
not believe it is appropriate to use data that are 8 years old or older
for calculating Nmin. The Atlantic SRG also notes that NMFS
does not use data this old when assessing fish stocks. Both HLA and NSB
commented on the proposed guidelines for adjusting older abundance
estimates, with NSB cautioning NMFS against simply lowering
Nmin to account for increasing uncertainty with time and HLA
request that the draft revisions clarify that adjustments to
Nmin can occur in both directions (increase or decrease).
Response: We thank CBD and NSB for their support on the new
revisions. We agree with the WDCFA and the Atlantic SRG that ideally
NMFS would have the resources to conduct surveys of marine mammal
stocks more frequently than every 8 years. However, having abundance
data ``expire'' after 8 years has created significant challenges for
management of marine mammal stocks, which was recognized but not
addressed during the last revisions of the guidelines in 2011. Under
the new guidelines, it is still possible for abundance estimates to be
determined to be unreliable once they are 8 years old or older, but
there is flexibility for making such determinations based on the
specific situations. Thus, we believe the new guidelines are not
inherently in conflict with the previous 8-year expiration guidance,
rather they simply provide more flexibility to SAR authors to determine
what is appropriate for any given stock, based on the best scientific
information available at the time.
On the ASRG's comment that NMFS does not use data 8 years or older
to assess fish stocks, first, we note that this statement is not
accurate (see Newman et al., 2015). Councils do have policies (with
variation between regions on the details) about using assessments to
inform management once they are older than a certain number of years
(generally 5-10 years), and if data are out of date they may not be
deemed acceptable for use in an assessment, but there is no blanket
policy on this issue--it is up to the discretion of the assessment
scientists and then the peer review panel. We believe this is
consistent with what was proposed and is now being finalized here for
marine mammal stock assessments. Second, there are drastic differences
between fishes and marine mammals in their life histories, as well as
their population dynamics given that fishes are generally R-selected
while marine mammals are K-selected. Thus, there is a biological basis
for different taxonomic groups necessitating differing survey
frequencies to achieve similar levels of confidence.
NMFS appreciates NSB's and HLA's comments regarding the assumption
that a stock's abundance declines after survey data are 8 years or
older. To clarify, the new guidelines do not make such an assumption.
For example, if available, a trend analysis can be used to infer
population increases or decreases. In the final guidelines, we have
provided clarification that adjustments to Nmin can result
in Nmin increasing, decreasing, or staying the same (within
some estimate of error). However, it is true that the uncertainty
around abundance estimates increases with time. Consequently, even
without assuming a particular trend (increasing, decreasing, stable),
when Nmin is calculated as some percentile of the
distribution of possible Ns at some point in the future, it will
necessarily decline over time, as this reflects the expanding envelope
of uncertainty.
Comment 7: NSB commented on the guidelines related to a stock
status with respect to Optimum Sustainable Population (OSP).
Specifically, NSB recommended the guidelines provide a definition of
OSP and further information on how OSP is used in practice.
Response: In the final guidelines, we now provide the statutory and
regulatory definitions of OSP. In addition, we have provided additional
information on how OSP is used in practice by referring the reader to
Section 115 of the MMPA. However, the final guidelines do not provide
additional guidance as to how to officially determine status relative
to OSP, as such a determination requires rulemaking, including public
comment and consultation with the Commission, under Section 115 of the
MMPA.
Comment 8: The Atlantic SRG and NRDC both request NMFS revise the
guidelines with respect to rounding very small PBRs, specifically to
round PBR values below 0.2 to two decimal places, noting that this may
be more transparent and appropriate for highly endangered stocks with
very small PBRs, such as Rice's whale.
Response: We have revised the guidelines to direct SAR authors to
round PBR to two decimal places when it is below one.
Comment 9: HLA, the Atlantic SRG, and the Commission commented on
the draft revisions related to ensuring appropriate peer review and
quality assurance and quality control (QA/QC). The Commission and the
Atlantic SRG both support the draft revisions related to this issue,
while HLA requests additional clarification. Specifically, HLA requests
NMFS clarify that QA/QC review should be performed by the relevant
regional science center. HLA notes that if NMFS is going to use the
SRGs to meet peer review requirements, then it must ensure that any
such review strictly complies with the OMB Peer Review Bulletin.
Response: NMFS thanks the Commission and the Atlantic SRG for their
support on the new revisions. NMFS agrees with HLA's assessment that
QA/QC review should be performed by the relevant regional science
center and has further clarified this in the final revisions. With
respect to complying with the OMB Peer Review Bulletin, NMFS notes that
SRG review specifically meets all the necessary requirements. See the
SRGs' written charge (Terms of Reference), annual recommendations to
NMFS, and NMFS' annual responses, all found on our website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/scientific-review-groups).
Comment 10: CBD and NSB both provided comments on the draft
revisions related to determining strategic status for stocks. CBD
disagrees with NMFS' approach in the draft guidelines for determining
strategic status based on MMPA 3(19)(B), preferring that NMFS conduct
an independent evaluation or rely on a positive 90-day finding on a
petition to list a species under the Endangered Species Act (ESA) to
determine strategic status under MMPA 3(19)(B) rather than what is
included in the draft revisions, which rely on a proposed ESA-listed
[[Page 7957]]
status. NSB supports the draft revisions as it relates to determining
strategic status under MMPA 3(19)(A), specifically the guidelines that
provide for the flexibility to calculate a ``critical Nmin''
to inform strategic status.
Response: NMFS thanks NSB for their support and agree that the new
guidance on calculating a ``critical Nmin'' will be helpful
to NMFS in determining strategic status related to MMPA 3(19)(A). As
stated in the draft revisions, we disagree with CBD that an independent
evaluation under the MMPA should be conducted to determine whether a
stock is likely to be listed as threatened within the foreseeable
future under the ESA and, thus, qualifies for strategic status under
MMPA 3(19)(B). As noted in the draft guidelines, such an evaluation
should be conducted under section 4 of the ESA (16 U.S.C. 1533).
Furthermore, NMFS disagrees that a positive 90-day finding demonstrates
that a stock should be considered ``strategic'' under section 3(19)(B)
of the MMPA. A positive 90-day finding under the ESA simply means that
NMFS has determined that the petition presents substantial scientific
or commercial information indicating that the petitioned action may be
warranted and that NMFS will conduct a review of the status of the
species to determine whether listing under the ESA is warranted. It in
no way indicates that a species is ``likely'' to be listed.
Comment 11: WDCFA expressed concern with how long it takes to
incorporate new information, specifically abundance data, into SARs,
particularly for stocks along the U.S. West Coast.
Response: NMFS acknowledges the concern and agrees that ideally the
SARs would contain more recent information. However, existing resources
and the necessary data processing, analysis, and peer review do not
allow for more expedited updates at this time.
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Dated: February 2, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-02550 Filed 2-6-23; 8:45 am]
BILLING CODE 3510-22-P
