Federal Register / Vol. 87, No. 138 / Wednesday, July 20, 2022 / Notices 43247 

• Is there a high likelihood that the 

project will be funded? 

• Are the fishing restrictions 

associated with the DHRA designation 

an explicit part of the design of the 

project? 

• Is there potential research [at some 

other critical stage in the idea—funding 

process]? 

Following the review and evaluation 

of the DHRAs, including information 

provided through this notice and 

request, and in consultation with the 

Council, the Regional Administrator 

will determine whether the DHRAs 

should be maintained or removed. 

Removal of the DHRAs, if warranted, 

would be completed consistent with the 

Administrative Procedure Act. 

Additional information and a flowchart 

outlining how these questions should be 

used in the evaluation process can be 

found on pages 116 and 117 of Volume 

III of OHA2 (https://www.nefmc.org/ 

library/omnibus-habitat-amendment-2). 

The DHRAs are intended to allow 

coordinated research and to build on 

past studies and baselines by restricting 

certain types of fishing to create 

appropriate reference conditions in the 

research area and facilitate scientific 

study. The DHRAs are set up as general 

closures where project scientists 

determine study sites and treatments 

and arrange research fishing activity. 

The DHRAs are intended to provide 

opportunities for addressing the 

following research topics and questions: 

1. Gear Impacts 

a. How do different types of bottom 

tending fishing gear (e.g., trawl nets, 

dredges, hook and line, traps, gillnets, 

longlines) affect the susceptibility and 

recovery of physical and biological 

characteristics of seabed habitat, and 

how do these impacts collectively 

influence key elements of habitat 

including spatial complexity, functional 

groups, community state, and recovery 

rates and dynamics? 

b. Are our estimates of gear contact 

with the bottom accurate? Can we 

develop trawl gear that minimizes 

contact on the bottom, thereby reducing 

the potential for gear impacts? 

2. Habitat Recovery 

a. What recovery models (e.g., 

successional vs. multiple-stable states) 

are operant in the region and how 

resilient are seafloor habitats to 

disturbance? In other words, how do 

seafloor habitats recover, and are there 

thresholds after which habitats have 

achieved an alternate state and are no 

longer capable of recovering to their 

previous, undisturbed condition? 

b. Do ‘‘small’’ fishing-caused 

disturbances surrounded by unimpacted 

habitat recover more quickly and exhibit 

greater resilience in contrast to ‘‘large’’ 

fishing-caused disturbances embedded 

with small un-impacted patches? 

c. When a particular area is fished for 

the first time vs. subsequent efforts, are 

these impacts equal per unit effort? Or, 

is the first pass over an area much more 

detrimental? Conversely, is there a 

tipping point beyond which the habitat 

is no longer capable of recovering? 

3. Natural Disturbance 

a. In the absence of fishing, what are 

the dynamics of natural disturbance 

(e.g., major storm events) on seafloor 

habitat (especially biological 

components) across five major grain size 

classes (mud, sand, coarse sand-granule, 

pebble-cobble, boulder) and across 

oceanographic regimes? In areas where 

natural disturbance is high, are signals 

of the impacts of fishing masked? 

4. Productivity 

a. How does the productivity of 

managed species (and prey species) vary 

across habitat types nested within the 

range of oceanographic and regional 

settings? How does this productivity 

change when habitats are impacted by 

fishing gear? Do durable mobile bottomtending gear closures increase fish 

production? Why are highly productive 

areas so productive? 

NMFS requests information about 

active and planned research in the 

DHRAs, the stage of the research, the 

role of the DHRA in the research, and 

the relationship of the research to the 

above DHRA research agenda, if any. 

Response to this request is voluntary. 

You may submit written comments via 

email to Laura.Deighan@noaa.gov with 

‘‘DHRA Research’’ in the subject line 

within 30 days of this notice. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: July 15, 2022. 

Jennifer M. Wallace, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2022–15512 Filed 7–19–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

[RTID 0648–XB958] 

Process for Distinguishing Serious 

From Non-Serious Injury of Marine 

Mammals; Proposed Revisions to 

Procedural Directive (NMFS PD 02– 

038–01) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice; request for comments. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) solicits public 

comments on draft revisions to the 

Process for Injury Determination, 

Distinguishing Serious from NonSerious Injury of Marine Mammals 

(NMFS Procedural Directive (PD) 02– 

038–01). 

DATES: Comments must be received by 

August 19, 2022. 

ADDRESSES: The draft revisions to the 

Process for Injury Determination 

Distinguishing Serious from NonSerious Injury of Marine Mammals 

(NMFS PD 02–038–01) are available at: 

https://www.regulations.gov/docket/ 

NOAA-NMFS-2022-0043. You may 

submit comments on the proposed 

revisions, through the Federal eRulemaking Portal: 

1. Go to https://www.regulations.gov 

and enter NOAA–NMFS–2022–0043 in 

the Search box. 

2. Click the ‘‘Comment’’ icon, and 

complete the required fields. 

3. Enter or attach your comments. 

Instructions: NMFS may not consider 

comments if they are sent by any other 

method, to any other address or 

individual, or received after the end of 

the comment period. Due to delays in 

processing mail related to COVID–19 

and health and safety concerns, no mail, 

courier, or hand deliveries will be 

accepted. All comments received are a 

part of the public record and will 

generally be posted for public viewing 

on https://www.regulations.gov without 

change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the commenter 

may be publicly accessible. NMFS will 

also accept anonymous comments (enter 

‘‘N/A’’ in the required fields if you wish 

to remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 


khammond on DSKJM1Z7X2PROD with NOTICES
43248 Federal Register / Vol. 87, No. 138 / Wednesday, July 20, 2022 / Notices 

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: 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) to marine mammal 

stocks (Section 117) and to classify 

commercial fisheries based on their 

level of incidental M/SI of marine 

mammals (Section 118). This charge 

requires that NMFS distinguish between 

injuries that are serious and those that 

are not serious. However, the MMPA 

and its legislative history do not provide 

guidance on how severe an injury must 

be to qualify as ‘‘serious.’’ NMFS 

defined ‘‘Serious Injury’’ in regulations 

(50 CFR 229.2) as ‘‘any injury that will 

likely to lead to mortality.’’ While this 

definition provided guidance on which 

injuries should be considered serious 

injuries, it allowed subjective 

interpretation of the likelihood that an 

injury would result in mortality. 

To promote national consistency for 

interpreting the regulatory definition of 

serious injury, NMFS convened a 

workshop in April 1997 to discuss 

available information related to the 

impact of injuries to marine mammals 

incidental to commercial operations 

(Angliss and DeMaster, 1998). The 

outcomes of the 1997 Workshop, 

including the development of regional 

techniques for assessing and quantifying 

the serious injury of marine mammals, 

helped NMFS to accomplish the 

MMPA’s mandates. However, through 

implementing workshop guidance, 

NMFS recognized a need for a 

nationally consistent and transparent 

process for effective conservation of 

marine mammal stocks and 

management of human activities 

implementing these stocks. Further, 

since 1997, additional information had 

been collected on human-caused 

injuries to marine mammals and 

survival rates of certain individuals 

and/or species of marine mammals. 

Accordingly, NMFS convened a 

second workshop in September 2007 

(Serious Injury Technical Workshop) to 

review performance under existing 

guidance, gather scientific information, 

and update guidance based on the best 

scientific information available 

(Andersen et al. 2008). Based on the 

results of the 2007 workshop and input 

from marine mammal scientists, 

veterinary experts, and the MMPA 

Scientific Review Groups, NMFS 

developed national guidance and 

criteria in 2012, comprising a Policy 

Directive (02–038) and associated 

Procedural Directive (02–038–01), for 

distinguishing serious from non-serious 

injuries of marine mammals (Both 

directives are available at: https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-protection-act-policiesguidance-and-regulations). The Policy 

Directive provides further guidance on 

NMFS’ definition of ‘‘serious injury,’’ 

and the Procedural Directive describes 

the annual process for making and 

documenting injury determinations. The 

annual process includes guidance for 

which NMFS personnel make the 

annual injury determinations; what 

information should be used in making 

injury determinations; information 

exchange between NMFS Science 

Centers; NMFS Regional Office and 

Scientific Review Group review of the 

injury determinations; injury 

determination report preparation and 

clearance, and inclusion of injury 

determinations in the marine mammal 

stock assessment reports and marine 

mammal conservation management 

regimes (e.g., MMPA List of Fisheries, 

Take Reduction Teams, Take Reduction 

Plans, vessel speed regulations). 

The injury criteria set forth in the 

Procedural Directive were developed 

separately for large whales, small 

cetaceans, and pinnipeds because of the 

differences in the source and nature of 

injury data for these groups. In addition, 

the types and impacts of injuries differ 

between these broad taxonomic groups. 

The injury determinations for large 

whales are largely based on an analysis 

of NMFS data on injury events with 

known outcomes (i.e., survival or death 

of the animal), with the exception of a 

few criteria based on expert opinion 

(Andersen et al. 2008). In contrast, the 

injury criteria and determination for 

small cetaceans and pinnipeds are based 

almost entirely on expert opinion 

because data on documented injuries 

and known outcomes in the wild are not 

available for most small cetaceans and 

pinnipeds. 

NMFS solicited public comment on 

both the policy and procedural directive 

(76 FR 42216; July 18, 2011) and the 

directives were finalized in 2012. The 

NMFS Policy Directive specifies that 

NMFS should review both the Policy 

and Procedural Directives at least once 

every five years, or when new 

information becomes available, to 

determine whether any revisions to the 

Directives are warranted. The review 

must be based on the best scientific 

information available, input from the 

MMPA Scientific Review Groups, as 

appropriate, and experience gained in 

implementing the process and criteria. If 

significant revisions are indicated 

during the review, NMFS will consider 

making these available for public review 

and comment prior to acceptance. 

In 2017, NMFS initiated a review of 

the Policy and Procedural Directives 

and invited subject matter experts from 

within NMFS to identify necessary 

revisions based upon the best scientific 

information available. The review 

suggested that, in general, the national 

guidance is meeting its objectives of 

providing a consistent, transparent, and 

systematic process for assessing serious 

from non-serious injuries of marine 

mammals. However, there was enough 

substantive feedback to warrant revising 

the Procedural Directive. 

Through the review process, several 

topics were identified by an internal 

NMFS Working Group to help 

concentrate the proposed revisions to 

the Procedural Directive. Revisions 

primarily focused on the pinniped and 

small cetacean sections (Section VIII 

and IX respectively) and included the 

creation of a new case specific 

harassment category (P16) for pinnipeds 

and expanding existing subcategories 

(S15a and S15b for small cetaceans) 

using the best scientific information 

available. NMFS has also clarified 

criteria associated with some small 

cetacean injury categories, including 

those involving lip and mouth hookings. 

To inform these proposed revisions, 

NMFS conducted literature reviews, 

sought input from several researchers 

with long-term longitudinal data sets, 

and solicited individual expert opinion 

from experts familiar with small 

cetacean injuries (including anatomists 

and veterinarians). Further, NMFS 

included potential risk factors that may 

lead to the development of capture 

myopathy in certain individuals, and a 

list of observable external physical signs 

that may lead to capture myopathy. This 

information on capture myopathy is 

included as an appendix to the 

Procedural Directive. In addition to the 

taxa specific revisions, some minor edits 

were made to improve readability and 

clarity and to clarify the determination 

process and reporting procedures. The 

proposed revised Procedural Directive is 

available at: https://

www.regulations.gov/docket/NOAANMFS-2022-0043. NMFS solicits public 

comments on the proposed revisions. 

References 

Andersen, M.S., K.A. Forney, T.V.N. Cole, T. 

Eagle, R. Angliss, K. Long, L. Barre, L. 

Van Atta, D. Borggaard, T. Rowles, B. 

Norberg, J. Whaley, and L. Engleby. 


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Federal Register / Vol. 87, No. 138 / Wednesday, July 20, 2022 / Notices 43249 

1Under section 18 of the AIA, the transitional 

program for post-grant review of CBM patents 

sunset on September 16, 2020. AIA 18(a). Although 

the program has sunset, existing CBM proceedings, 

based on petitions filed before September 16, 2020, 

remain pending. 

2008. Differentiating Serious and NonSerious Injury of Marine Mammals: 

Report of the Serious Injury Technical 

Workshop, 10–13 September 2007, 

Seattle, Washington. U.S. Dep. Commer., 

NOAA Tech. Memo. NMFS–OPR–39. 94 

p. 

Angliss, R.P. and D.P. DeMaster. 1998. 

Differentiating Serious and Non-Serious 

Injury of Marine Mammals Taken 

Incidental to Commercial Fishing 

Operations. NOAA Tech Memo. NMFS– 

OPR–13, 48 p. 

Catherine Marzin, 

Deputy Director, Office of Protected 

Resources, National Marine Fisheries Service. 

[FR Doc. 2022–15284 Filed 7–19–22; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

[Docket No. PTO–P–2022–0023] 

Request for Comments on Director 

Review, Precedential Opinion Panel 

Review, and Internal Circulation and 

Review of Patent Trial and Appeal 

Board Decisions 

AGENCY: Patent Trial and Appeal Board, 

United States Patent and Trademark 

Office, U.S. Department of Commerce. 

ACTION: Request for Comments. 

SUMMARY: The United States Patent and 

Trademark Office (USPTO or Office) 

seeks public comments on practices and 

policies for the review of Patent Trial 

and Appeal Board (PTAB or Board) 

decisions. The USPTO has implemented 

a number of processes that promote the 

accuracy, consistency, and integrity of 

PTAB decision-making in Leahy-Smith 

America Invents Act of 2011 (AIA) 

proceedings. The USPTO plans to 

formalize those processes through 

notice-and-comment rulemaking. To 

inform such rulemaking, and to inform 

any modifications to the interim 

processes pending formalization, the 

USPTO seeks public comments. 

Specifically, the USPTO seeks input on 

the current interim Under Secretary of 

Commerce for Intellectual Property and 

Director of the United States Patent and 

Trademark Office (Director) review 

process that allows a party to request 

Director review of a PTAB final written 

decision in inter partes review (IPR) or 

post-grant review (PGR) proceedings, 

and also provides the Director the 

option to sua sponte initiate the review 

of any PTAB decisions (at the Director’s 

discretion), including institution 

decisions and decisions on rehearing. 

The USPTO also seeks input on the 

Precedential Opinion Panel (POP) 

process. Finally, the USPTO seeks input 

on the current interim process for PTAB 

decision circulation and internal PTAB 

review. These processes, implemented 

by the PTAB prior to issuing decisions 

and implemented without Director 

input, are modeled after practices of the 

U.S. Court of Appeals for the Federal 

Circuit. 

DATES: Comment Deadline Date: Written 

comments must be received on or before 

September 19, 2022, to ensure 

consideration. 

ADDRESSES: For reasons of Government 

efficiency, comments must be submitted 

through the Federal eRulemaking Portal 

at www.regulations.gov. To submit 

comments via the portal, enter docket 

number PTO–P–2022–0023 on the 

homepage and click ‘‘Search.’’ The site 

will provide a search results page listing 

all documents associated with this 

docket. Find a reference to this Request 

for Comments and click on the 

‘‘Comment Now!’’ icon, complete the 

required fields, and enter or attach your 

comments. Attachments to electronic 

comments will be accepted in ADOBE®

portable document format or 

MICROSOFT WORD® format. Because 

comments will be made available for 

public inspection, information that the 

submitter does not desire to make 

public, such as an address or phone 

number, should not be included in the 

comments. 

Visit the Federal eRulemaking Portal 

(www.regulations.gov) for additional 

instructions on providing comments via 

the portal. If electronic submission of 

comments is not feasible due to a lack 

of access to a computer and/or the 

internet, please contact the USPTO 

using the contact information below for 

special instructions regarding how to 

submit comments by mail or by hand 

delivery, based on the public’s ability to 

obtain access to USPTO facilities at the 

time. 

FOR FURTHER INFORMATION CONTACT: 

Kalyan Deshpande, Vice Chief 

Administrative Patent Judge; Amanda 

Wieker, Acting Senior Lead 

Administrative Patent Judge; or Melissa 

Haapala, Vice Chief Administrative 

Patent Judge, at 571–272–9797. 

SUPPLEMENTARY INFORMATION: 

Background 

Development of This Request for 

Comments 

On September 16, 2011, the AIA was 

enacted into law (Pub. L. 112–29, 125 

Stat. 284 (2011)). The AIA established 

the PTAB, which is made up of 

administrative patent judges (APJs) and 

four statutory members, namely the 

USPTO Director, the USPTO Deputy 

Director, the USPTO Commissioner for 

Patents, and the USPTO Commissioner 

for Trademarks. 35 U.S.C. 6(a). The 

Director is appointed by the President, 

by and with the advice and consent of 

the Senate. 35 U.S.C. 3(a)(1). APJs are 

appointed by the Secretary of Commerce 

in consultation with the Director. Id. 

6(a). The PTAB hears and decides ex 

parte appeals of adverse decisions by 

examiners in applications for patents; 

appeals of reexaminations; and 

proceedings under the AIA, including 

IPRs, PGRs, covered business method 

(CBM) patent reviews,1 and derivation 

proceedings, in panels of at least three 

members. Id. 6(b), (c). Under the statute, 

the Director designates the members of 

each panel. Id. 6(c). The Director has 

delegated that authority to the Chief 

Judge of the Board. See PTAB Standard 

Operating Procedure 1 (Rev. 15) (SOP1), 

Assignment of Judges to Panels, https:// 

go.usa.gov/xtdt2. 

35 U.S.C. 6(c) states that ‘‘[o]nly the 

Patent Trial and Appeal Board may 

grant rehearings’’ of Board decisions. In 

United States v. Arthrex, Inc., the U.S. 

Supreme Court (Court) held that the 

Appointments Clause of the 

Constitution (art. II, sec. 2, cl. 2) and the 

supervisory structure of the USPTO 

require that the Board’s final decisions 

must be subject to review by the 

Director, a principal officer of the 

United States. See United States v. 

Arthrex, Inc., 141 S. Ct. 1970, 1986 

(2021). The Court determined that ‘‘35 

U.S.C. 6(c) is unenforceable as applied 

to the Director insofar as it prevents the 

Director from reviewing the decisions of 

the PTAB on his own.’’ Id. at 1987. The 

Court explained that: 

this suit concerns only the Director’s 

ability to supervise APJs in adjudicating 

petitions for inter partes review. We do not 

address the Director’s supervision over other 

types of adjudications conducted by the 

PTAB, such as the examination process for 

which the Director has claimed unilateral 

authority to issue a patent. 

Id. The Court thus held that the Director 

has the discretion to review IPR final 

written decisions rendered by APJs, 

and, upon review, the Director may 

issue decisions on behalf of the Board. 

Id. at 1988. 

On June 29, 2021, the USPTO 

implemented an interim process for 

Director review. At that time, the 

interim Director review process 

provided that the Director may initiate 

Director review of any PTAB final 


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