[Federal Register Volume 67, Number 32 (Friday, February 15, 2002)]
[Notices]
[Pages 7134-7138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3798]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 021102C]


Taking and Importing of Marine Mammals

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

ACTION: Notice of proposed organized decision process; request for 
comment.

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SUMMARY: The Dolphin Protection Consumer Information Act (DPCIA) 
requires the Secretary of Commerce (Secretary), subject to certain 
conditions, to amend the ``dolphin-safe'' labeling standard so that 
tuna from the eastern tropical Pacific Ocean (ETP) purse seine fishery 
caught in sets in which no dolphins were killed or seriously injured 
may be labeled ``dolphin-safe.'' The Secretary is required by the 
Marine Mammal Protection Act (MMPA) to conduct specified scientific 
research and to make a finding, based on the results of that research, 
information obtained under the International Dolphin Conservation 
Program (IDCP), and any other relevant information, as to whether the

[[Page 7135]]

intentional deployment on or encirclement of dolphins with purse seine 
nets is having a ``significant adverse impact'' on any depleted dolphin 
stock in the ETP. ``Significant adverse impact'' is not further defined 
in the statute. In this notice, NMFS proposes the types of information 
that will be available to the Secretary and the context in which the 
Secretary will consider the information in arriving at a final finding 
regarding significance. NMFS is seeking comments on the proposed 
decision-making process at this time.

DATES: Comments on this notice must be received by April 16, 2002. The 
deadline of May 1, 2002, to submit to NMFS scientific information 
available for the Secretary's consideration, is final.

ADDRESSES: Written comments on the proposed decision process should be 
sent to the Regional Administrator, Southwest Region, NMFS, 501 W. 
Ocean Boulevard, Suite 4200, Long Beach, California, 90802-4213. 
Comments may also be sent via facsimile at 562-980-4027. Comments will 
not be accepted if submitted via electronic mail or the Internet.
    Scientific information for the Secretary's consideration should be 
sent to the Director, NMFS Southwest Fisheries Science Center, 8604 La 
Jolla Shores Drive, La Jolla, CA, 92037. Comments will not be accepted 
if submitted via electronic mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Nicole R. Le Boeuf, Southwest 
Fisheries Science Center, NMFS, 858-546-7147.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA, 16 U.S.C. 1361 et seq., as amended by the International 
Dolphin Conservation Program Act (IDCPA), (Public Law 105-42), requires 
the Secretary to conduct scientific research on dolphin stocks in the 
ETP. The DPCIA (16 U.S.C. 1385), as amended by the IDCPA, requires the 
Secretary to make a finding, based on the scientific research, 
information obtained under the IDCP, and any other relevant 
information, as to whether the intentional deployment on or 
encirclement of dolphins with purse seine nets is having a 
``significant adverse impact'' on any depleted dolphin stock in the 
ETP. There are three depleted dolphin stocks in the ETP: northeastern 
offshore spotted, eastern spinner, and coastal spotted.
    The Secretary's finding will determine the definition of ``dolphin-
safe'' as applicable to tuna harvested by purse seine vessels with 
carrying capacities of greater than 400 short tons operating in the 
ETP. Refer to the Federal Register Notice at 64 FR 24590 (May 7, 1999), 
for more information on the dolphin-safe labeling standard.
    The DPCIA requires the Secretary to make an initial finding 
regarding the dolphin-safe label in 1999, and a final finding by 
December 31, 2002. On April 29, 1999, NMFS made an initial finding that 
there was insufficient evidence at that time to determine whether the 
chase and encirclement of dolphins by the tuna purse seine fishery was 
having a significant adverse impact on any depleted dolphin stock in 
the ETP (NMFS 1999) (64 FR 24590; May 7, 1999). The U.S. District Court 
for the Northern District of California in Brower v. Daley, 93 F. Supp. 
2d 1071 (N. D. Ca. 2000), set aside this determination, and that 
finding was affirmed by the Ninth Circuit Court of Appeals in Brower v. 
Evans, 257 F. 3d 1058 (9th Cir. 2001). As a result, the labeling 
standard (from (h)(2) of the DPCIA) is in effect.
    For the initial finding, NMFS had the following scientific 
information available: dolphin abundance data from NMFS 1998 and 
previous surveys, mortality and abundance estimates based on tuna 
vessel observer data, a comprehensive review of scientific literature 
on stress in marine mammals, and then current and historical 
environmental information from the ETP. The final stages of the 
mandated IDCPA research, which will soon be complete, are expected to 
provide substantial additional information for the final finding. Some 
of this new information will generally include: dolphin abundance data 
from 1999 and 2000, updated mortality estimates based on observer data, 
an updated review of scientific literature on stress in marine mammals, 
results from a necropsy study of dolphins killed in the fishery, a 
review of historical demographic and biological data related to 
dolphins involved in the fishery, results from the chase-recapture 
experiment, as well as information regarding variability in the 
biological and physical parameters of the ETP ecosystem over time.
    To accommodate this newly available scientific and other relevant 
information and based on input received on the initial finding in 1999, 
NMFS is revising its decision-making process for the final finding. The 
proposed organized decision process provides the Secretary with 
guidance for systematically reviewing the different types of 
information in reaching a final decision and would be consistent with 
the decisions of the U.S. District Court and Ninth Circuit Court of 
Appeals, which are referenced above. In order to provide the public 
with an opportunity to review and give input regarding the Secretary's 
decision framework, NMFS is soliciting public comment on the proposed 
decision process described here.

Overview: How to Determine Significance

    It is widely known that the tuna fishery in the ETP, using 
intentional deployment on or encirclement of dolphins in tuna purse 
seine nets, causes some dolphin mortality. The question for the 
Secretary is whether or not interaction with the fishery is having a 
``significant adverse impact'' on any depleted dolphin stock in the 
ETP. There is also general agreement that the number of mortalities 
that can be sustained by the dolphin stocks before it becomes 
significant depends on the state of the ETP ecological structure for 
dolphins. In essence, if the ETP carrying capacity for dolphins has 
declined or the ecological structure of the ETP has changed, dolphin 
stocks could sustain fewer mortalities than if the carrying capacity 
has remained constant or increased or if the ecological structure of 
the ETP has not changed. Moreover, because it is clear that direct (and 
potentially some level of indirect) mortality can be attributed to the 
fishery, the population growth rates of the dolphin stocks need to be 
sufficient so as to not risk recovery. The remainder of this notice 
describes how those factors will be assessed by the Secretary in making 
the final finding regarding whether the tuna purse seine fishery is 
having a significant adverse impact on any depleted dolphin stock in 
the ETP.

The Role of Direct Mortality in the Decision Process

    To assist the Secretary in reaching a final finding in 2002, NMFS 
is examining various potential effects of the tuna purse seine fishery 
on depleted ETP dolphin stocks. Information on direct mortality will be 
considered, along with quantifiable estimates of indirect mortality and 
other effects, by the Secretary in making the final finding.

The Role of Indirect Mortality in the Decision Process

    While direct mortality by the tuna fishery is a known impact on the 
dolphin stocks, there are several other possible means by which the 
fishery could be impacting the stocks. These possible means are often 
not observed (sometimes termed ``cryptic'' or indirect) and may 
include: (1) delayed

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mortality from stress effects caused by chase and capture; (2) impaired 
reproduction from stress effects resulting from chase and capture; (3) 
calf mortality owing to cow-calf separation during fishing operations; 
(4) social structure disruption attributable to chase and capture; (5) 
facilitated mortality by making the dolphins more vulnerable to 
predation after the chase; and (6) interference with dolphin feeding. 
To measure the impact of indirect effects, the MMPA specifically 
requires the Secretary to conduct stress studies, including: (1) a 
review of stress-related research; (2) a three-year necropsy study of 
dolphins killed in the tuna fishery; (3) a one-year review of relevant 
historical demographic and biological data; and (4) an experiment 
involving the repeated chasing and capturing of dolphins by means of 
intentional encirclement. Studies conducted under the IDCPA research 
program, information obtained under the IDCP, and other available 
scientific information should provide insights into the nature and the 
magnitude of fishery-induced impacts related to these specific sources 
in addition to those caused by direct mortality. Upon reviewing this 
information, the Secretary will determine whether or not the 
intentional deployment on or encirclement of dolphins with purse seine 
nets is having a significant adverse impact on any depleted dolphin 
stock in the ETP.

The Role of Ecosystem Changes in the Decision Process

    Because substantial changes in an ecosystem can have profound 
effects on the ability of a population or stock of organisms to thrive 
and/or recover from a previous period of overexploitation (such as with 
depleted stocks), the Secretary will consider scientific evidence of 
whether a significant ecosystem change has occurred in the ETP. 
Particularly, the Secretary will determine whether any change is likely 
to have increased or decreased (1) the ecological structure or carrying 
capacity for the three depleted stocks or (2) the rate at which the 
stocks are able to reach their optimum sustainable population (OSP) 
level. OSP is the level at which the number of animals in a population 
are sufficient to achieve the maximum productivity of the population or 
the species, keeping in mind the carrying capacity of the habitat and 
the health of the ecosystem of which they form a constituent element.

Methods For Determining Significance of Estimated Mortality

    To assess the significance of estimated mortality in the fishery, 
the Secretary will use established methods of managing marine mammal 
mortality under the MMPA. These ``mortality standards'' may include the 
Potential Biological Removal (PBR) and the Stock Mortality Limit (SML) 
systems, as well as other standards as appropriate.
    NMFS relies on the PBR system, developed as a tool for 
implementation of the MMPA, for regulating incidental mortality of 
marine mammal stocks by U.S. fisheries other than the tuna purse seine 
fishery in the ETP. The PBR system was developed in a series of 
workshops with participation of experts from NMFS and was refined 
following input from the Marine Mammal Commission, outside experts, and 
the public. The PBR level of a marine mammal stock is the maximum 
number of animals, in addition to natural mortalities, that may be 
removed while allowing that stock to reach or maintain OSP. Although 
ETP dolphin mortality is generally not managed under this system, PBR 
serves here as a valuable mortality standard to measure significance of 
mortality in marine mammal-fishery interactions because it is a risk 
averse method of incorporating uncertainty in management models for 
marine mammals. The formula for calculating PBR can be found in Wade 
and Angliss (1997), available at http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.
    In examining estimated mortality, the Secretary may also consider 
other mortality standards, such as those utilized by the SML system, to 
manage fishery-induced dolphin mortality levels in the ETP. The SML 
system uses substantially lower limits for dolphin mortality than the 
PBR approach. The SML system was conceived by nations participating in 
the IDCP and several non-governmental conservation organizations, in 
consultation with the Inter-American Tropical Tuna Commission. It is 
now being implemented by the signatory nations of the Agreement on the 
International Dolphin Conservation Program (AIDCP). Pursuant to the 
MMPA, as amended by the IDCPA, the SMLs (per-stock per-year dolphin 
mortality limits) beginning in calendar year 2001 are set at less than 
or equal to 0.1 percent of the minimum population estimate of each 
dolphin stock. Additional information on SMLs can be found in Annex III 
of the AIDCP, available at: http://www.nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/AIDCP.html
    The established standards of PBR and SML are incorporated into the 
Secretary's organized decision process to assess whether or not the 
intentional deployment on or encirclement of dolphins with purse seine 
nets is having a significant adverse impact on any depleted dolphin 
stock in the ETP. Similar to previous work (Gerrodette 1996), NMFS will 
make calculations of PBR levels and SMLs for the final finding, based 
on the recent abundance estimates from the ETP surveys conducted under 
the IDCPA research program. Further discussion of how the PBR, SML, or 
other appropriate mortality standards will be used in the final finding 
decision process can be found below.

The Organized Decision Process

    NMFS proposes an organized decision process to provide the 
Secretary with a systematic approach for evaluating multiple types of 
data in a situation complicated by uncertainty. The decision process 
described here consists of separate measures of fishery and 
environmental effects on dolphins that the Secretary will consider in 
reaching a final decision on whether or not the fishery is having a 
significant adverse impact on any depleted dolphin stock in the ETP.
    The proposed decision process consists of a series of questions 
that the Secretary will consider in reaching a final decision. These 
questions are as follows:
    (1) Ecosystem Question
    (2) Direct Mortality Question
    (3) Indirect Effects Question
    (4) Abundance Question
    The answer to the Ecosystem Question will provide an ecological 
context (as described above) for the Secretary to consider the 
remaining three questions. For the Direct Mortality and the Abundance 
Questions, the proposed decision process provides basic thresholds that 
will result in a ``yes'' or ``no'' answer to the questions. If the 
Secretary answers ``yes'' to either question, the Secretary will 
conclude that the fishery is having a significant adverse impact. For 
the Ecosystem and the Indirect Effects Questions, the Secretary will 
review the available information as well as the evidence presented by 
members of two expert panels (see below) in reaching final conclusions.
    Details on how the Secretary will consider the four questions are 
as follows:
    (1) The Ecosystem Question. During the period of the fishery, has 
the carrying capacity of the ETP for dolphins declined substantially or 
has

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the ecological structure of the ETP changed substantially in any way 
that could impede depleted dolphin stocks from growing at rates 
expected in a static ecosystem? Or has the carrying capacity increased 
substantially or has the ecological structure changed in any way that 
could promote depleted dolphin stocks to grow at rates faster than 
expected in a static ecosystem?
    To determine the answer to these questions, the Secretary will 
consider scientific information collected and/or evaluated by NMFS, as 
well as information rendered individually from members of a panel of 
independent scientific experts in biological oceanography and ecology 
(the Ecosystem Panel). The panel members' assessments will be based on 
their review of relevant oceanographic and ecosystem data (physical and 
biological habitat and distribution, abundance, and ecology of other 
organisms in the ETP) from the period of the fishery.
    (2) The Direct Mortality Question. For any depleted stock, does the 
estimate of the total fishery-attributed dolphin mortality, obtained by 
adding together estimates of direct mortality and, where appropriate, 
quantifiable levels of indirect mortality, exceed the mortality 
standard considered appropriate by the Secretary?
    NMFS scientists will calculate from the three recent abundance 
estimates (1998, 1999, 2000) the PBR levels for each stock and provide 
them, along with measures of uncertainty, to the Secretary. Estimates 
of direct mortality and indirect mortality (where appropriate) will be 
compared to the PBR and other mortality standards to be considered by 
the Secretary. The Secretary will also take into account the 
assessments from the Ecosystem Panel members regarding possible changes 
in the carrying capacity and/or the ecosystem structure of the ETP. The 
Secretary will consider the information with the understanding that 
adverse effects from unfavorable changes in the ecosystem may require 
the use of mortality standards below PBR levels. When evaluating the 
impact of mortality levels on dolphin stocks, the Secretary may also 
consider the SML standard as well as other standards as appropriate.
    (3) The Indirect Effects Question. For each stock, is the estimated 
number of dolphins affected by the tuna fishery, considering data on 
sets per year, mortality attributable to the fishery, indicators of 
stress in blood, skin and other tissues, cow-calf separation and other 
relevant indirect effects information, at a level that is cause for 
concern (how and to what degree)?
    The answer to this question will be based on information collected 
and/or evaluated by NMFS, as well as assessments from members of a 
panel of independent scientific experts in veterinary science, 
physiology, and other stress-related fields (Indirect Effects Panel). 
The panel members' assessments will be based on their review of 
relevant behavioral, ecological, immunological, pathological, and other 
information with respect to the dolphin stocks involved. For this 
question, the Secretary will also consider the evidence presented by 
the Ecosystem Panel members regarding possible changes in the carrying 
capacity and/or the ecosystem structure of the ETP and how it relates 
to adverse impacts attributable to the fishery on dolphin stocks as 
described above.
    (4) The Abundance Question. For each depleted dolphin stock, is the 
estimate of the observed population growth rate sufficient so as not to 
risk recovery or appreciably delay recovery to its OSP level?
    To answer this question, the Secretary will consider results from 
calculations in which NMFS scientists fit a population model to the 
time series of NMFS research vessel abundance estimates using the time 
series of estimates of the incidental mortality from the tuna vessel 
observer data (TVOD). If pending analysis indicates that the time 
series of relative abundance estimates from the TVOD are sufficiently 
reliable, they will also be used to estimate trends in dolphin 
abundance. NMFS scientists will estimate growth rates for each dolphin 
stock and determine measures of uncertainty for each estimate and 
provide this information to the Secretary. The Secretary will also take 
into account assessments from the members of the Ecosystem Panel when 
considering the estimated growth rates.

Appointment of Scientific Expert Panels

    As indicated above in explanations of the Ecosystem and the 
Indirect Effects Questions, the Secretary will appoint two panels of 
independent scientific experts to provide individual assessments in 
determining the answers to these two questions as a part of the 
organized decision process. The independent experts will make their 
conclusions based on a review of the results from the IDCPA research 
program, information obtained under the IDCP, and other relevant 
information. The use of independent expert judgment in obtaining 
guidance on complex and highly technical bodies of information, such as 
those relevant to the Ecosystem and the Indirect Effects Questions, is 
consistent with science-based, decision-making processes like that 
proposed here. NMFS plans to select panelists in close consultation 
with professional scientific organizations. NMFS will publish criteria 
for panelist selection and the selection process in the Federal 
Register in the near future.

Consideration of Available Scientific Information

    The Secretary will make the final finding based on information 
available from studies conducted under the IDCPA research program, 
information obtained under the IDCP, and other available scientific 
information. All quantitative information provided to the Secretary 
will be accompanied by associated statistical measures of certainty and 
confidence.
    While NMFS is conducting much of the research that will form the 
basis of the final finding, there may be other sources of information 
that the Secretary will consider pursuant to the MMPA. NMFS will need 
time to properly assess and evaluate information to be considered by 
the Secretary, therefore, all other information must be submitted to 
NMFS by May 1, 2002. The weight given scientific information will be 
determined by the degree to which the scientific information meets the 
following elements: (1) relevant, (2) timely, (3) independently peer-
reviewed, and (4) available to NMFS for verification.
    Scientific information means the results of properly designed 
scientific research. Author(s) means the originator(s) of the 
scientific information whose names appear on the written document. 
Independent(ly) means that the action was undertaken by one or more 
individuals that do not have any fiduciary, supervisory, subordinate or 
other geographically close organizational relationship to the 
author(s). Peer means a scientist practicing in the same or very 
closely related field of study as the scientific information. Relevant 
means the scientific information is pertinent to the use of the 
information. Timely means the relevancy of scientific information least 
degraded by the passage of time. Passed independent peer review means 
the scientific information has been published in a refereed scientific 
journal in its field or independently read and criticized in writing by 
at least three peers; the criticism was disposed of either by 
acceptance or rebuttal, as appropriate, by the author(s); and the 
disposition of the criticism by the author(s) was independently 
determined to be appropriate and

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adequate. Verification means that the data, procedures, methods, 
equipment, mathematics, statistics, models, computer software and 
anything else used to produce the scientific information are to be 
submitted to NMFS in a timely manner such that the scientific 
information may be replicated or rejected. For the final finding, ``in 
a timely manner'' means as of May 1, 2002.

Deadline for Submission of Public Comments

    NMFS is soliciting public comment on the organized decision process 
proposed in this notice and will consider public comments in the 
development of the final decision process if received by April 16, 
2002. See ADDRESSES above.

    Dated: February 12, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

Literature Cited

    Gerrodette, T. 1996. A comparison of mortality limits for eastern 
tropical Pacific dolphins under the Declaration of Panama and under 
Potential Biological Removal (PBR) management. NMFS Administrative 
Report LJ-96-18. Available from the Southwest Fisheries Science Center, 
P.O. Box 271, La Jolla, CA 92038-0271 or at
http://swfsc.nmfs.noaa.gov/IDCPA/IDCPAfront.html.
    NMFS 1999. Report to Congress on the initial finding, required 
under the Marine Mammal Protection Act of 1972 as amended by the 
International Dolphin Conservation Program Act of 1997, regarding 
whether the intentional deployment on or encirclement of dolphins with 
purser seine nets is having a significant adverse impact on any 
depleted dolphin stock in the eastern tropical Pacific Ocean. Report 
prepared by the Southwest Fisheries Science Center, National Marine 
Fisheries Service, National Oceanic Atmospheric Administration. 60 pp. 
Available from the Southwest Fisheries Science Center, P.O. Box 271, La 
Jolla, CA 92038-0271 or at http://swfsc.nmfs.noaa.gov/mmd/congress/congress.htm.
    Wade, P.R. and R.P. Angliss. 1997. Guidelines for assessing marine 
mammal stocks: Report of the GAMMS workshop April 3-5, 1996, Seattle, 
Washington. U.S. Department of Commerce, NOAA Technical Memorandum 
NMFS-OPR-12. This document is available at:http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm.
[FR Doc. 02-3798 Filed 2-12-02; 4:32 pm]
BILLING CODE 3510-22-S