[Federal Register Volume 87, Number 138 (Wednesday, July 20, 2022)]
[Notices]
[Pages 43247-43249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15284]


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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.

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SUMMARY: The National Marine Fisheries Service (NMFS) solicits public 
comments on draft revisions to the Process for Injury Determination, 
Distinguishing Serious from Non-Serious 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 Non-Serious 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 e-Rulemaking 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.

[[Page 43248]]


FOR FURTHER INFORMATION CONTACT: Jaclyn Taylor, NMFS Office of 
Protected Resources, (301) 427-8402, <a href="/cdn-cgi/l/email-protection#aee4cfcdc2d7c080facfd7c2c1dceec0c1cfcf80c9c1d8"><span class="__cf_email__" data-cfemail="4d072c2e21342363192c3421223f0d23222c2c632a223b">[email protected]</span></a>; or Phinn 
Onens, NMFS Office of Protected Resources, (301) 427-8402, 
<a href="/cdn-cgi/l/email-protection#ecbc84858282c2a38289829fac82838d8dc28b839a"><span class="__cf_email__" data-cfemail="8ddde5e4e3e3a3c2e3e8e3fecde3e2ececa3eae2fb">[email protected]</span></a>.

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/marine-mammal-protection-act-policies-guidance-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/NOAA-NMFS-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.

[[Page 43249]]

2008. Differentiating Serious and Non-Serious 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


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