[Federal Register Volume 67, Number 164 (Friday, August 23, 2002)]
[Notices]
[Pages 54633-54643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21587]


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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: Final organized decision process.

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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 
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 defined in the 
statute. On February 15, 2002, NMFS proposed an organized decision 
process (ODP) for outlining 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. NMFS accepted 
public comment on the proposed ODP for 60 days. This notice responds to 
comments and contains the final ODP to be used by the Secretary in 
making the finding.

FOR FURTHER INFORMATION CONTACT: Nicole R. Le Boeuf, Office of 
Protected Resources, NMFS, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Since its enactment in 1972, the MMPA (16 U.S.C. 1361 et seq.) has 
been amended several times to address the issue of dolphin mortality in 
the ETP tuna purse seine fishery. As concern among U.S. consumers grew, 
the DPCIA (16 U.S.C. 1385) was enacted in 1990 to establish the 
dolphin-safe labeling standard. The International Dolphin Conservation 
Program Act (IDCPA), (Public Law 105-42), was enacted in 1997, in 
response to the success of the ETP tuna purse seine fishery in 
dramatically reducing dolphin mortality caused by normal fishing 
operations. The IDCPA amended both the MMPA and the DPCIA. The MMPA, as 
amended by the IDCPA, requires the Secretary to conduct specified 
scientific research on dolphin stocks in the ETP. The DPCIA, as amended 
by the IDCPA, requires the Secretary to make a finding, based on the 
scientific research, information obtained under the IDCP (the 
international program of dolphin conservation established by the 
nations participating in the ETP purse seine fishery), 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 ETP is the 
area of the Pacific Ocean bounded by 40 deg. N. lat., 40 deg. S. lat., 
160 deg. W. long., and the western coastlines of North, Central, and 
South America.
    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). 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 ruling was 
affirmed by the Ninth Circuit Court of Appeals in Brower v. Evans, 257 
F. 3d 1058 (9th Cir. 2001). As a result, the dolphin-safe labeling 
standard (from section (h)(2) of the DPCIA) is currently in effect.
    NMFS' IDCPA research activities will provide substantial additional 
information for the final finding relative to what was available for 
the initial finding in 1999. Some of this new information will 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 a required chase-recapture experiment, as well as information 
regarding variability

[[Page 54634]]

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 has revised its decision-making process for the final finding.

Responses to Comments

    In order to provide the public an opportunity to review and give 
input regarding the Secretary's revised decision-making process, NMFS 
solicited public comment on the proposed ODP (67 FR 7134) on February 
15, 2002. Prior to publishing the proposed ODP in the Federal Register, 
NMFS provided a copy to the Marine Mammal Commission (MMC), an 
independent agency created by Congress to review and make 
recommendations on domestic and international actions and policies of 
federal agencies charged with marine mammal conservation and 
protection, and the Inter-American Tropical Tuna Commission (IATTC), 
the international body responsible for the conservation and management 
of tuna, dolphins, and billfish found in the ETP, for their initial 
input. During the public comment period, NMFS received approximately 
400 comments on the proposed ODP. Comments were received from 
environmental organizations, the tuna industry, members of the public, 
the MMC, the IATTC, the U.S. Department of State, two members of the 
U.S. House of Representatives, and several foreign nations. While the 
majority of the comments were duplicates, the substance of all comments 
on the proposed ODP and responses to comments are described in this 
notice.
    As indicated in the proposed ODP, NMFS required all additional 
scientific information for the Secretary's consideration to be 
submitted by May 1, 2002. Along with comments on the proposed ODP, some 
commenters submitted information for the Secretary's consideration. 
This information will be considered along with the results of the 
required research, information obtained under the IDCP, and other 
relevant information for the final finding. However, only comments 
pertaining to the proposed ODP are described here. Editorial and/or 
technical comments are not described in this document. As indicated in 
the proposed ODP, comments were not accepted when submitted via 
electronic mail or the Internet. Key issues and concerns are summarized 
below along with responses:

General Comments

    Comment 1: One commenter indicated that NMFS must accommodate 
comments on the proposed ODP from the IATTC and its members outside of 
the public comment period, with assurances that those comments will be 
effectively taken into consideration and made a part of the 
administrative record on the finding process. Similarly, another 
commenter stated that all of the views expressed by the IATTC should be 
fully and effectively taken into account and serve as a basis to make 
all the necessary corrections that have been identified.
    Response: Pursuant to section 304(a)(1) of the MMPA, NMFS is 
required to consult with the MMC and the IATTC regarding the required 
scientific studies related to the Secretary's findings. In doing so, 
NMFS has met with both entities on several occasions throughout the 
planning and execution of the required research program. While the ODP 
is a policy guidance document and not directly a part of the research 
process described in section 304(a), NMFS will take into consideration 
all comments received from the MMC and the IATTC, as well as other 
comments received during the 60-day public comment period. As is 
standard in the public comment process, NMFS will incorporate comments 
with which it concurs and will explain its rationale for not 
incorporating the remaining comments. All comments and any other 
materials used by NMFS as a part of the decision-making process will be 
a part of the administrative record.
    Comment 2: One commenter recommended that the ODP be re-written to 
consider ``potential unknown'' infractions of the Agreement on the 
International Dolphin Conservation Program (AIDCP) by foreign tuna 
vessels.
    Response: NMFS believes that infractions of the AIDCP are cause for 
concern. However, it is not possible for NMFS to quantify or anticipate 
potential unknown infractions of the AIDCP. For this reason, they have 
not been considered in the ODP.
    Comment 3: One commenter noted that the ODP should reflect a 
balance between conservation and utilization.
    Response: NMFS recognizes the need to balance conservation and 
management goals with sustainable use of marine living resources. In 
this particular case, the DPCIA requires the Secretary to focus on the 
impact of the ETP tuna purse seine fishery on depleted dolphin stocks. 
The ODP will reflect this mandate and the associated provisions of the 
IDCPA.
    Comment 4: One commenter noted that the IATTC should be 
meaningfully consulted in the development of the ODP. Two other 
commenters suggested that the development of a sound ODP can only be 
done in close cooperation with the IATTC and that discussions should be 
set up between NOAA and the IATTC Secretariat before adopting the final 
ODP in order to establish guidelines based on sound science and 
international standards. Another commenter similarly noted that the ODP 
should be consistent with the development of regional fisheries bodies.
    Response: NMFS agrees that the ODP can benefit from meaningful 
input from the IATTC, the competent regional fisheries organization in 
this case, and has consulted with the IATTC as described in the 
response to comment 1. Additionally, NMFS received and carefully 
considered comments from the IATTC, including input from its member 
nations, during the public comment period on the proposed ODP.
    Comment 5: One commenter indicated that the ODP should be 
consistent with goals of ecosystem management and multi-lateral 
cooperation. Another commenter suggested that the ODP should be 
developed consistent with the general expectations from the parties 
involved in the spirit of international cooperation.
    Response: NMFS believes that principles of sound ecosystem 
management and multi-lateral efforts are the key to the long-term 
conservation of dolphins and other living marine resources in the ETP. 
As indicated in the response to comment 4, NMFS considered comments 
submitted by the IATTC that included input from its member nations, as 
well as comments provided from IATTC-member nations directly, during 
the public comment period on the proposed ODP.
    Comment 6: One commenter indicated that issues of uncertainty and 
probability must be assessed on balance and handled in an even way in 
the ODP. Another commenter made a similar statement and went on to note 
that the proposed ODP departs from such notion.
    Response: NMFS agrees that some level of uncertainty is inherent in 
all aspects of science, including data collection. NMFS will provide 
this information to the Secretary for his consideration. However, NMFS 
disagrees that the ODP runs contrary to this concept or should be 
changed.

[[Page 54635]]

    Comment 7: One commenter suggested that it is not necessary for the 
ODP to contain a detailed description of the dolphin-safe definition 
and recent court cases because this information can be found elsewhere 
and could easily be mischaracterized.
    Response: NMFS agrees and limited discussion of the court rulings 
to the Background section of the ODP and did not include it within the 
body of the ODP itself.
    Comment 8: One commenter was concerned that the proposed ODP 
contained elements that could provide a foundation for litigation that 
might reverse the Secretary's finding with no genuine scientific 
grounds. The commenter went on to state that the proposed ODP could 
provide a strong foundation for entities that have historically opposed 
any modification to the dolphin-safe label to promote adverse 
litigation and significantly enhance the potential to reverse the final 
finding by the courts on no genuine scientific grounds.
    Response: NMFS disagrees. NMFS believes that the proposal to 
present the Secretary with the appropriate information for 
consideration in the final finding conforms with the requirements of 
the DPCIA.
    Comment 9: One commenter indicated that it would be useful if the 
acronyms such as IDCP, ETP, DPCIA, and others are more clearly 
explained in the document.
    Response: NMFS agrees and has inserted additional language to 
further explain these and other terms.

Comments on Overview: How to Determine Significance

    Comment 10: Two commenters indicated that while the proposed ODP 
identifies the types of information that will be considered, it does 
not provide sufficient guidance and/or criteria as to what will be or 
will not be deemed to be significant. As an example, one commenter 
noted that there was no indication of what NMFS believes would 
constitute an ``appreciable delay'' in recovery time in the proposed 
ODP.
    Response: NMFS believes that the ODP provides the Secretary with a 
sound basis for weighing various types of complex information in a 
manner that will be informative and transparent. The term ``appreciably 
delay'' will be interpreted in a manner that is consistent with NMFS 
policies for managing that recovery of depleted marine mammal stocks 
that interact with commercial fisheries.

Comments on the Role of Direct Mortality in the Decision Process

    Comment 11: One commenter indicated that the Direct Mortality 
Question and the Abundance Question [now renamed the Growth Rate 
Question] are narrowly drawn and recommended that this issue be 
thoroughly reviewed for its legal propriety and impact.
    Response: NMFS disagrees that these questions are narrowly drawn or 
that they should be changed based on legal grounds.

Comments on the Role of Indirect Effects on the Decision Process

    Comment 12: NMFS received a comment that direct and indirect 
mortality should not automatically be considered to have an adverse 
impact on dolphin stocks, and that doing so would be inconsistent with 
the Potential Biological Removal (PBR) standard. The commenter went on 
to suggest that the proposed ODP makes unsubstantiated assumptions that 
direct mortality caused by the fishery is adverse to dolphin stocks. 
The commenter indicated that reducing population levels can have 
beneficial impacts for the stocks.
    Response: NMFS disagrees. In the 1970s and 1980s, dolphin mortality 
caused by the ETP tuna purse seine fishery resulted in the three 
dolphin stocks at issue here being designated as depleted under the 
MMPA. Because of this, NMFS sees no plausible way to conclude that 
either direct mortality or indirect effects can be considered 
beneficial to these stocks of dolphin. Further, the Secretary is not 
charged with confirming that mortality is adverse, but with determining 
whether such adverse impacts are significant to any depleted dolphin 
stock.
    Comment 13: One commenter indicated that the ODP should consider 
injuries to dolphins and should consider the repeated chase of 
dolphins.
    Response: NMFS agrees. Using criteria developed by the IDCP and the 
IATTC, NMFS is including in the estimation of mortality, individual 
injuries that are deemed to be ``serious injuries'' or those which will 
likely result in mortality. Further, the ODP includes consideration of 
stress and other indirect effects of the fishery on dolphins. With 
respect to the repeated chase of dolphins, NMFS is attempting to 
estimate the rate of capture of individual dolphins and that for each 
depleted dolphin stock. NMFS will consider these estimates in its 
evaluation of overall impact.
    Comment 14: One commenter indicated that NMFS' evaluation of 
indirect mortality must take into account the types and magnitude of 
any stress to dolphins caused by the tuna purse seine fishery and 
quantify such stresses to the population level using current data. The 
commenter recommended that the Indirect Effects Question in the ODP 
must seek to answer, and wherever possible, quantify to the population 
level using current data on sets per year: (1) estimates of the number 
of times an individual dolphin may be set upon; (2) mortality 
attributable to the fishery; and (3) dolphin school size in sets made 
on dolphins.
    Response: NMFS agrees and is making every effort to quantify 
indirect effects of the fishery on dolphin stocks, including making 
estimates of the three parameters indicated by the commenter.
    Comment 15: One commenter noted that NMFS should consider 
unobserved and uncounted dolphin mortality for the final finding. The 
commenter also indicated that stress may be causing serious harm and 
cryptic death in dolphins and may affect reproduction and physiology 
and should be considered in the ODP. Two other commenters similarly 
indicated that cow-calf separation should be considered in the ODP.
    Response: NMFS agrees and believes that Indirect Effect Question in 
the ODP addresses the concern that the tuna purse seine fishery may be 
impacting depleted dolphin stocks in ways other than through direct and 
observed mortality, including through cryptic mortality and cow-calf 
separation.
    Comment 16: One commenter recommended that NMFS delete the list of 
possible indirect effects that the fishery may be having on depleted 
dolphin stocks found in the proposed ODP.
    Response: NMFS disagrees. NMFS believes that the issue of cryptic 
mortality and indirect effects of the fishery on dolphins may not be 
entirely intuitive and therefore it is helpful to include examples of 
indirect mortality and other possible indirect effects in the ODP.
    Comment 17: One commenter indicated that the phrase ``cause for 
concern'' in the Indirect Effects Question was too open-ended.
    Response: NMFS agrees and reworded the Indirect Effects Question to 
read: ``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 magnitude and

[[Page 54636]]

degree that would not risk recovery or appreciably delay recovery to 
its OSP level (how and to what degree)?

Comments on the Role of Ecosystem Change in the Decision Process

    Comment 18: One commenter recommended that the ODP take into 
consideration whether more or less dolphin mortality impacts the health 
of the entire ETP ecosystem.
    Response: Pursuant to the DPCIA, the Secretary is charged with 
making a determination regarding the impact of the tuna purse seine 
fishery on any depleted dolphin stock. The Secretary is not required to 
make a determination on the health of the entire ETP ecosystem. 
However, ETP ecosystem health is considered in the ODP as it relates to 
the status of dolphin stocks.
    Comment 19: One commenter suggested that NMFS add the phrase, 
``taking into consideration the reliability of the abundance estimates 
and other questions such as the possibility that stock boundaries have 
changed,'' to the end of the first sentence of the section entitled the 
``Role of Ecosystem Change in the Decision Process'' in the proposed 
ODP.
    Response: NMFS disagrees but is aware of the dynamic nature of both 
dolphin stock distribution and boundaries in the ETP. The definition of 
dolphin stocks, using distributional, morphological, genetic, and 
demographic information, is a matter of continuing research. Decades of 
data provide strong evidence that no such large shifts in dolphin 
distributions have occurred that would invalidate NMFS abundance 
estimates. If larger shifts in distribution occurred, they would be 
detected both by sightings from tuna vessels and by sightings from 
research vessels. However, dolphin stock boundaries have changed in the 
past and may change again in the future as more data become available. 
Because distribution of dolphins also changes each year in response to 
perturbations in oceanographic conditions, NMFS research vessel surveys 
were designed to produce valid estimates of abundance even if annual 
changes in distribution occur. Additionally, NMFS thoroughly considered 
the reliability of the abundance estimates and will explicitly address 
the uncertainty in the population model.
    Comment 20: Another commenter indicated that the ODP contains an 
error in logic with respect to the fishery potentially being penalized 
if there is either an increase or a decrease in carrying capacity of 
the ETP.
    Response: NMFS disagrees. Given the depleted status of ETP dolphin 
stocks and the mandate of the MMPA to recover depleted stocks to 
optimum sustainable population (OSP) levels, any adverse impacts that 
the fishery is having on the stocks must be evaluated for significance 
in the context of the dolphins' habitat and their subsequent ability to 
recover. With that in mind, the expectations for dolphin population 
growth will be appropriately scaled to the information obtained about 
the state of the ETP carrying capacity. If the carrying capacity has 
substantially diminished in such a way that would make it more 
difficult for a depleted stock to recover, then any given effect of the 
fishery would be considered more significant. Conversely, if the 
carrying capacity has substantially increased in such a way that is 
beneficial to the dolphin stocks, then expectations for growth (i.e. 
recovery) in those stocks will be higher. In either case, apparent 
carrying capacity changes will be considered in evaluating whether 
current OSP ranges should continue to apply.
    Comment 21: One commenter indicated that NMFS' approach to 
evaluating changes in the ETP ecosystem and its carrying capacity in 
the proposed ODP is too simplistic as it is difficult to estimate both 
historic and current carrying capacity. The commenter went on to note 
that there are rarely sufficient scientific data available for 
scientists to examine both ecological changes and marine mammal 
population trends and the linkages between the two. The commenter 
suggested that NMFS' scheme set forth in the 1992 Proposed Regime to 
Govern Interactions Between Marine Mammals and Commercial Fishing 
Operations, which proposed making determinations with respect to OSP 
levels using current carrying capacity as adjusted to account for 
human-caused habitat degradation and destruction, would be more 
appropriate than the currently proposed approach. The commenter 
indicated that this was because a lack of dolphin recovery could be due 
to a change in carrying capacity that has resulted in a density-
dependent change through lower population growth levels, compensation, 
or stabilization. Another commenter expressed concern that the 
Ecosystem Question is the first question to be addressed by the 
Secretary, as there is general agreement that scientists know less 
about the ecosystem and the potential impacts on dolphins than any of 
the other questions. Another commenter indicated that should the 
Secretary find that the ecosystem changes have occurred in the ETP, 
this would indicate a need to provide additional protection to the 
depleted dolphin populations.
    Response: To determine whether a substantial change in the ETP 
ecosystem has occurred, NMFS has collected a large amount of scientific 
information, which is undergoing an independent peer review process. 
NMFS and external expert reviewers are evaluating all available and 
relevant information to determine whether sufficient information exists 
to detect a regime shift or change in carrying capacity, should such 
changes have occurred. With respect to providing depleted dolphin 
stocks additional protection, NMFS has provided for this in the ODP by 
indicating that if the ETP carrying capacity for dolphins has 
substantially declined, dolphin stocks could sustain fewer mortalities 
and other adverse impacts than if the carrying capacity has remained 
constant or increased or if the ecological structure of the ETP has not 
changed.
    Comment 22: One commenter indicated that both the Direct and 
Indirect Effects Questions should not be considered in light of the 
Ecosystem Question. The commenter indicated that once the status of the 
dolphin stocks is re-evaluated in light of the ETP's current carrying 
capacity, an appropriate recovery factory can be inserted into the PBR 
calculation to take this into account without requiring a separate 
evaluation of this point in each question in the ODP.
    Response: NMFS disagrees with this comment and believes that both 
the Indirect Effects and Direct Mortality Questions are essential for 
the Secretary to consider, regardless of the answer to the Ecosystem 
Question. However, it may not be feasible to quantify the extent to 
which any changes in the ETP ecosystem have affected the depleted 
dolphin stocks, and therefore not feasible to assign a value to be 
inserted into a PBR calculation. Also, as the Secretary will choose the 
appropriate standard of mortality, PBR levels for the dolphin stocks 
may or may not be applicable.
    Comment 23: One commenter noted that the proposed ODP places too 
much emphasis on environmental change, and that there is no evidence to 
support this as a cause of lack of dolphin recovery.
    Response: NMFS disagrees because, as indicated in the response to 
comment 20, substantial changes in an ecosystem can affect the ability 
of a population or stock of organisms to thrive and/or recover from a 
previous period of overexploitation such as occurred with these 
depleted dolphin stocks. As indicated in response to comment 21, NMFS 
has collected a large amount of

[[Page 54637]]

scientific information to determine whether a substantial change in the 
ecosystem has occurred. Additionally, a panel of independent experts 
(described at 67 FR 31279) will determine whether evidence exists to 
attribute ecosystem changes as a cause of any observed lack of dolphin 
recovery.
    Comment 24: One commenter suggested that the following question be 
added to the end of the Ecosystem Question: ``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?
    Response: NMFS disagrees that this change is necessary.

Comments on Methods For Determining Significance of Estimated Mortality

    Comment 25: One commenter suggested that NMFS should adopt only one 
appropriate mortality standard against which to measure significance 
and that doing otherwise could potentially undermine the domestic 
implementation of the PBR system in U.S. commercial fisheries and could 
have wide-ranging policy implications.
    Response: The ODP does not prescribe that the Secretary use more 
than one standard of mortality and other impacts in making the final 
finding. Instead, based on the circumstances of the scientific findings 
and other relevant information, the ODP allows the Secretary to choose 
the most appropriate mortality standard with which to assess 
significance.
    Comment 26: One commenter stated that both PBR and stock mortality 
limit (SML) standards are flawed and violate the MMPA standards for 
dolphin mortality. The commenter added that the standard for dolphin 
mortality in the tuna fishery is ``levels approaching zero mortality.'' 
The commenter went on to indicate that the major cause for concern for 
these depleted dolphin populations is that the observed mortality is 
not accurate, and therefore the use of either the PBR or SML standard 
in the ODP is inappropriate because true mortality levels are unknown.
    Response: Both the PBR and the SML systems have proven to be 
effective at managing fishery impact on marine mammals, and NMFS is 
making every effort to quantify total impact on the dolphin stocks, 
including direct mortality and indirect effects.
    Comment 27: NMFS received a comment regarding the provision of the 
ODP that allows the Secretary to consider a mortality standard lower 
than PBR because a decline in carrying capacity may actually be causing 
the dolphin stocks to not grow. The commenter indicated that if dolphin 
populations are declining in connection with a decline in the carrying 
capacity, the fishery should not be penalized.
    Response: See response to comment 20.
    Comment 28: One commenter indicated that the ODP fails to define 
the methodology for calculating PBR, and that this should be 
established in advance and must be scientifically supportable.
    Response: As indicated in the proposed ODP, the standard method for 
calculating PBR can be found at: http://nmml.afsc.noaa.gov/library/gammsrep/gammsrep.htm. Calculating PBR in some other way would only be 
necessary if the abundance estimates each had very different levels of 
precision, and they do not.
    Comment 29: Several commenters indicated that PBR is the most 
appropriate standard for assessing the impact of the fishery on dolphin 
stocks and that references to other mortality standards should be 
removed from the ODP.
    Response: NMFS agrees that the PBR standard is an effective 
standard for measuring the impact of fisheries on marine mammals, 
however, NMFS believes the Secretary should have the flexibility to 
consider other standards of mortality as appropriate.
    Comment 30: Three commenters stated that the use of SMLs in the ODP 
as a measure of mortality is arbitrary and/or irrelevant. The 
commenters suggested that the use of SMLs in the Secretary's decision 
would result in the United States not being able to comply with its 
obligations under the AIDCP. Another commenter went on to indicate that 
SMLs were not intended to be a standard for measuring impacts on 
dolphin populations, but reflected a commitment to reduce dolphin 
mortality to the lowest levels believed to be achievable on a 
continuing basis and are not biological thresholds for sustainability 
of dolphin populations.
    Response: The SML standard for mortality was developed as a part of 
the IDCP, and in this respect, NMFS agrees that it represents the 
lowest levels of mortality believed to be achievable on a continuing 
basis by the ETP tuna purse seine fishery. However, NMFS disagrees that 
the SML system is arbitrary, irrelevant, or is not intended to be a 
standard for managing impacts of the fishery on dolphin populations. In 
fact, the SML system has proven to be an effective tool for managing 
dolphin mortality in the ETP tuna purse seine fishery and has been 
embraced by the ratifying nations of the AIDCP. Moreover, Congressional 
intent within the MMPA, as amended by the IDCPA, and the goals of the 
nations that are party to the AIDCP are consistent with the SML 
standard as more conservative than steps taken under other provisions 
of the MMPA for reducing marine mammal takes in other commercial 
fisheries. The applicability of SMLs is found in sections 301(b)(2), 
302(a)(1), and 304(b)(2)(A) of the MMPA, with virtually identical 
statements being found in Article II, sections 1 and 2, and also in 
Article V, section 1(a) of the AIDCP, further indicating international 
support for the SML standard as a measure of the impacts of the tuna 
purse seine fishery on dolphins in the ETP. This system is designed to 
ensure that a stock's recovery is not appreciably delayed over time. 
Therefore, NMFS disagrees that the use of the SML system as a measure 
of the significance of fishery impacts on ETP dolphin stocks lacks 
biological merit or would prevent the United States from complying with 
its obligations under the AIDCP.

Comments on the Organized Decision Process

    Comment 31: One commenter suggested that even though the data to be 
used in the final finding have already been collected and analyzed, 
NMFS should describe its decision framework in detail, including its 
choices of measures of significance, in the final determination.
    Response: NMFS will publish the final ODP and the IDCPA Science 
Report in advance of the final finding. The latter will contain various 
confidence intervals and probabilities for the Secretary's 
consideration in the final finding. Those used by the Secretary to make 
the final finding will be published in the final decision and made 
available to the public at that time.
    Comment 32: Two commenters indicated that the proposed ODP 
significantly diminishes the Secretary's ability to consider valuable 
information and limits his flexibility in making the final finding. 
Similarly, two other commenters indicated that the proposed ODP 
constrains the presentation of data to the Secretary and severely 
limits his ability to benefit from the knowledge of the IATTC. Two 
commenters noted that the 50-year knowledge of the IATTC should be 
taken into consideration in the ODP, particularly with respect to the 
definitions of dolphin stock depletion and stress.
    Response: NMFS disagrees that the ODP constrains the Secretary to 
considering an unduly limited amount

[[Page 54638]]

of information for the final finding, especially with respect to input 
from the IATTC. NMFS works with the IATTC, as the competent regional 
fisheries organization in the ETP, on many aspects of this issue and 
has benefitted from its input throughout the IDCPA Research Program, 
including the consideration of its comments on the proposed ODP. 
Indeed, NMFS relied upon on the IATTC's data regarding fishing effort 
and sets on dolphins, as well as on its evaluation of the use of TVOD 
in estimating dolphin abundance among other things. NMFS is unaware of 
any IATTC-defined terms for dolphin stock depletion and stress. NMFS 
relies on the MMPA definition of ``depleted'' and will define stress as 
appropriate in the IDCPA Science Report.
    Comment 33: One commenter stated that the ODP should guide the 
Secretary's decision, using science, instead of leaving him to make up 
his own mind.
    Response: The DPCIA requires the Secretary to make the final 
finding based on the scientific research required under section 304(a) 
of the MMPA, information obtained under the IDCP, and any other 
relevant information. NMFS believes that the ODP reflects this by 
providing ample guidance for the Secretary regarding the scope and 
weighting of such information.
    Comment 34: One commenter stated that weaknesses and scientific 
inconsistencies in the ODP could lead to a conclusion that would 
further impede the United States' ability to fulfill its obligations 
under the AIDCP and further endanger the protection of the marine 
ecosystem and living marine resources.
    Response: NMFS disagrees. In fact, NMFS believes that the ODP 
provides the Secretary with a sound basis for weighing various types of 
complex information in a manner that will be informative and 
transparent, and will further confirm the United States' commitment to 
the AIDCP and other multi-lateral efforts to conserve living marine 
resources.
    Comment 35: One commenter noted that the ODP does not reflect 
important aspects of NMFS research and should be re-written to reflect 
the important conclusions previously made by NMFS scientists.
    Response: NMFS disagrees. The ODP is specifically tailored to 
include results from all NMFS research activities conducted under the 
IDCPA, as well as associated research efforts undertaken in conjunction 
with the IDCP, and any other relevant information that NMFS believes 
will address the question of whether the intentional chase and 
encirclement of dolphins by the ETP tuna purse seine fishery is having 
a significant adverse impact on any depleted dolphin stock.
    Comment 36: One commenter indicated that the questions used in the 
ODP should be: (1) During the period of the purse seine fishery, has 
the carrying capacity of the ETP changed? (2) Has this change resulted 
in a density-dependent response in the depleted dolphin stocks? and (3) 
Given a change in the carrying capacity, what is the status of the 
dolphin stocks with respect to optimum sustainable population levels 
using both current and historic carrying capacity?
    Response: NMFS believes that, while worded somewhat differently, 
the intent of the first question is already included in the ODP. NMFS 
generally considered questions similar to the remaining two during the 
development of the ODP, but rejected them because NMFS believes that 
they do not sufficiently address the statutory question and may be 
unanswerable with the available data.
    Comment 37: Three commenters noted that the third and fourth 
sentences of the third paragraph under the Organized Decision Process 
section were in direct contradiction with one another.
    Response: NMFS agrees. This contradiction was an oversight and has 
been corrected by replacing the words ``Direct Mortality Question'' 
with ``Growth Rate Question.''
    Comment 38: Two commenters were concerned that the proposed ODP was 
not conducive to a sound scientific approach through which the 
Secretary can obtain adequate guidance. Similarly, another commenter 
noted that the ODP's questions are not clearly grounded in scientific 
decision-making, will not answer the statutory question, and should be 
re-written to provide clear benchmarks for the Secretary.
    Response: See responses to comments 33 and 34, as NMFS believes the 
ODP is specifically tailored to include NMFS research activities under 
the IDCPA, as well as associated research efforts conducted in 
conjunction with the IDCP, and any other relevant research that NMFS 
believes will address the question of whether the intentional chase and 
encirclement of dolphins by the ETP tuna purse seine fishery is having 
a significant adverse impact on any depleted dolphin stock.
    Comment 39: One commenter suggested that the evaluation of direct 
mortality in the ODP should be separate from evaluation of quantifiable 
estimates of indirect mortality.
    Response: NMFS disagrees that quantifiable levels of indirect 
mortality should be considered separately from direct mortality as they 
will contribute to the total estimate of impact of the fishery on 
dolphin stocks.
    Comment 40: One commenter indicated that the Abundance Question 
[now the Growth Rate Question] does not easily lend itself to a ``yes'' 
or ``no'' answer due to the high level of uncertainty inherent in 
efforts to measure abundance and to estimate growth rates in marine 
mammal populations. The commenter added that this is especially true 
given the short 3-year set of observations in the very large ETP. 
Further, the commenter noted that the ODP is silent on how the 
Secretary would treat a situation where the abundance data is not 
definitive in either direction, and that the proposed ODP does not 
specify how the uncertainty in the data will be taken into account if 
the Secretary must answer ``yes'' or ``no.'' The commenter indicated 
that the ODP must take this circumstance into consideration, and that 
in this case, the Secretary should defer to the answers to the Direct 
and Indirect Effects Questions in comparison with PBR for each depleted 
stock.
    Response: NMFS agrees that some level of uncertainty is inherent in 
estimating abundance of marine mammals stocks, however, these levels of 
uncertainty will be appropriately assessed, accounted for, and 
presented to the Secretary for consideration. NMFS data include a 12-
year time series of abundance estimates covering a 23-year time span: 
1979-83, 1986-1990, and 1998-2000, for the best estimates of dolphin 
growth rates. With regard to a possible less than definitive answer to 
this question, the Secretary will consider whether each dolphin stock's 
growth rate is sufficient so as not to risk recovery or appreciably 
delay recovery to its OSP level with an appropriate level of 
probability, to be determined by the Secretary.
    Comment 41: One commenter indicated that the potential for the 
courts to overturn the Secretary's finding is dramatically magnified in 
the ``secretive'' process associated with the assessment model being 
developed to ``filter'' the science even before it is reviewed under 
the proposed ODP.
    Response: NMFS disagrees. The ODP has been specifically developed 
with an eye to providing an appropriate level of guidance to the 
Secretary in making a final finding that is informed, transparent, and 
defensible. The assessment model is being developed as a part of the 
IDCPA Research Program and is undergoing rigorous independent peer 
review. The assessment model and all other aspects of NMFS' IDCPA

[[Page 54639]]

Research Program will be fully described in the IDCPA Science Report.
    Comment 42: One commenter suggested adding the statement, ``and 
what are the reliability of the abundance estimates given the 
probability of changes in stock distribution resulting from 
environmental and other factors without concomitant adjustments in the 
NMFS population cruise patterns during the three most recent years of 
research'' to the end of the Abundance Question [now the Growth Rate 
Question].
    Response: NMFS disagrees. See the response to comment 18 for NMFS 
views on the likely effects on abundance estimates of dolphin stock 
distribution.
    Comment 43: One commenter suggested that NMFS delete the two 
sentences following the Abundance Question [now the Growth Rate 
Question] containing references to the population model, the possible 
use of TVOD, and the pending analyses of abundance data.
    Response: NMFS disagrees and sees no reason to delete this text.
    Comment 44: One commenter indicated that the proposed ODP ignores 
NMFS' 1999 Report to Congress. Another commenter expressed concern that 
the proposed ODP might cause the Secretary to arrive at an answer 
inconsistent with the findings of the 1999 Report to Congress.
    Response: The ODP is designed to take into consideration all of the 
research findings in the 1999 IDCPA Science Report as well as the 
remaining results obtained under the IDCPA and the IDCP, along with 
other relevant information in the final finding.
    Comment 45: Two commenters noted that the proposed ODP contains 
less specific decision guidelines than the decision analysis framework 
used in 1999. In a similar statement, another commenter encouraged NMFS 
to draw upon its previous efforts to the greatest extent possible to 
develop specific decision criteria to assess whether dolphin stocks are 
being adversely affected by the fishery and whether any such impacts 
are significant. The latter commenter went on to indicate that the 
development and use of explicit decision-making criteria would provide 
the best way to ensure that the Secretary's finding is well supported, 
understandable to the public, and likely to withstand judicial scrutiny 
if challenged under the Administrative Procedure Act.
    Response: NMFS believes that the ODP provides the Secretary with a 
sound basis for weighing many different types of complex information in 
an appropriate manner so as to result in a final finding that is 
informed, transparent, and defensible.
    Comment 46: Two commenters indicated that the proposed ODP focused 
on a biased precautionary principle in order to overprotect individual 
dolphins by any means, without taking into account whether the overall 
dolphin populations are growing, or whether other living marine species 
in the ecosystem are being adversely affected.
    Response: NMFS believes that the ODP is based on sound conservation 
and decision-making principles and follows the letter and spirit of the 
DCPIA and the MMPA, as amended by the IDCPA.
    Comment 47: One commenter suggested changing the name of the 
Abundance Question to the Growth Rate Question as this name better 
describes the nature of the question.
    Response: NMFS agrees and made the change.

Comments on the Appointment of Scientific Expert Panels

    Comment 48: One commenter was concerned about the independence of 
the expert panels and wanted the panel selection criteria to be 
explained in the ODP.
    Response: NMFS agrees that the expert panels should be comprised of 
independent experts and has developed a process for selecting the 
panelists in a way that allows for much outside involvement of 
established scientific organizations. On May 9, 2002, NMFS published a 
notice in the Federal Register to solicit nominations for scientists to 
serve on the Ecosystem and the Indirect Effects Expert Panels (67 FR 
31279). The notice solicits nominations and describes the process that 
NMFS, the IATTC, the MMC, and an individual from an independent 
reviewing agency with advice from professional societies will follow to 
select qualified candidates for each panel and recommend them for 
appointment by the Secretary. NMFS sees no reason to repeat this 
description in the ODP.
    Comment 49: One commenter recommended removing language associating 
the appointment of the Scientific Expert Panels with NMFS and instead 
inserting reference to the U.S. Department of Commerce (DOC), 
suggesting that the appointments should be made by the DOC directly 
without NMFS input.
    Response: NMFS disagrees with this suggestion as one of NMFS' 
primary roles is to provide guidance to the Secretary on technical 
matters under its purview. Given the highly technical fields of 
expertise of the panelists, NMFS believes it to be appropriate for NMFS 
and established professional organizations to assist the Secretary in 
the panelist selection process.

Comments on the Consideration of Available Scientific Information

    Comment 50: One commenter indicated that the phrase ``and has been 
published in a reputable scientific journal, to include the IATTC 
Fishery Bulletin'' be added to the third part of the paragraph before 
the description of how scientific information will be weighed.
    Response: NMFS disagrees with this comment. As is often the case, 
the most up-to-date and peer-reviewed information may not have yet been 
published in a journal, a process that can take some time. Therefore, 
NMFS believes that including the first part of the suggested language 
may unduly diminish the weight of important and up-to-date information 
from being considered by the Secretary.
    Comment 51: One commenter indicated that the description of how 
scientific information will be weighed in the proposed ODP limits the 
discretion of the Secretary to consider valuable and valid information 
in making the final finding. Similarly, another commenter suggested 
that the proposed ODP would put the Secretary at risk of taking into 
account irrelevant information and not taking into account other 
relevant information, specifically indicating that the description of 
how scientific information will be weighed should be removed from the 
ODP.
    Response: NMFS disagrees. While the Secretary will consider all 
information submitted, a mechanism for weighing scientific information 
is essential to the Secretary's ability to make the most informed 
decision. Rather than limit the information before the Secretary, 
explicit weighting criteria will enhance the quality and integrity of 
the final finding. The Secretary will consider the best scientific 
information available. The relative weight that any particular 
scientific information will carry in the Secretary's decision process 
will be based on the degree to which it satisfies the criteria set 
forth and defined at the end of this notice. Information that does not 
meet any of the criteria will be considered, but will be given less 
weight as information that meets some or all of the criteria.
    Comment 52: One commenter indicated that the ODP must outline what 
we know and how the best scientific evidence can be used to make the 
final finding.
    Response: NMFS agrees and believes that the ODP fully outlines that 
the

[[Page 54640]]

Secretary will consider the best available scientific information in 
making the final finding. Further, the ODP fully describes how that 
information will be weighed to provide the Secretary with an informed 
and appropriate decision-making environment.
    Comment 53: One commenter suggested that the Secretary should be 
able to look at information first-hand and not have it vetted through 
NMFS first because doing so would put the Secretary at risk of not 
considering relevant information.
    Response: NMFS disagrees. One of NMFS' primary roles is to provide 
guidance to the Secretary on technical matters under its purview. Given 
the large amount of highly technical information that will likely be 
under consideration, it is important that NMFS be able to review and 
assess this information so that it can be appropriately incorporated 
into its analyses and provided to the Secretary.
    Comment 53: One commenter indicated that the MMPA clearly calls for 
the Secretary to consider not only information collected by NMFS but 
``any other relevant information.'' The commenter went on to note that 
the information developed by NMFS has been subjected to considerable 
scrutiny, both by its own scientists and by panels of outside experts, 
and that the weight accorded information provided by outside sources 
should reflect the quality of the methods used to collect it and the 
extent to which it has passed peer review. The commenter further 
indicated that data should not be discounted entirely because they have 
yet to pass peer review. However, the commenter noted that it is 
imperative that, before any information is factored into the 
Secretary's final determination, NMFS be given the opportunity to 
review it for purposes of verification.
    Response: NMFS agrees for the reasons outlined by the commenter, as 
well as those stated in response to comments 48 and 51.
    Comment 55: One commenter suggested that the ODP require that only 
information that is determined to be the best available science be 
considered by the Secretary in making the final finding, as was 
required by the Brower v. Evans ruling, and that this standard should 
be reflected in the ODP.
    Response: NMFS agrees that the Secretary should utilize the best 
available science and will apply the description of how information 
will be weighed to all scientific information that will be considered 
by the Secretary.
    Comment 56: One commenter indicated that the May 1, 2002, deadline 
for submitting information to NMFS is reasonable and should enable NMFS 
to complete its review and verification of outside information in time 
to consider it in making the final determination.
    Response: NMFS agrees for the reasons articulated by the commenter 
and in the response to comment 51.
    Comment 57: One commenter indicated that the deadline of May 1, 
2002, could preclude valuable information from being submitted to the 
Secretary and would significantly limit the Secretary's ability to make 
an informed decision. The commenter stated that as long as the 
information is received within reasonable time, it should be considered 
by the Secretary. Another commenter indicated that the deadline of 
information to be submitted to the Secretary is an arbitrary and 
unnecessary restriction.
    Response: NMFS disagrees. Setting a deadline for submission of all 
information will ensure that NMFS has sufficient opportunity to review, 
assess, and verify the information, for the Secretary's informed 
consideration. As indicated in the response to comment 50, one of NMFS' 
primary roles is to provide guidance to the Secretary on technical 
matters under its purview. Given the large amount of complex and 
technical information that will likely be submitted for the Secretary's 
consideration, sufficient time is required for NMFS to adequately 
review the materials and to properly consider them along with 
information already in-hand. Additionally, NMFS believes that the May 
1, 2002, definition of timely for submission of outside information is 
reasonable given that the DPCIA allows the Secretary to make the final 
finding as early as July 1, 2001, but no later than December 31, 2002.
    Comment 58: Two commenters indicated that the time between the 
adoption of the final ODP and the submission of information prior to 
the May 1, 2002, deadline is unclear.
    Response: As indicated in the proposed ODP, the May 1, 2002, 
deadline for submitting information for the Secretary's consideration 
is final, even though the proposed ODP itself was still under 
development upon the announcement of the deadline.

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 dolphin mortality. The question for the Secretary is 
whether 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 and other adverse effects that can be 
sustained by the dolphin stocks before they become 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 substantially changed, dolphin 
stocks could sustain fewer mortalities and other effects 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 mortality (and potentially some level of indirect 
effects) can be attributed to the fishery, the population growth rates 
of the dolphin stocks should be sufficient so as not to indicate a risk 
or an appreciable delay in recovery. The remainder of this document 
describes how these 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 Ecosystem Changes in the Decision Process

    Because substantial changes in an ecosystem can affect a depleted 
population or stock's recovery, 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 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 species, keeping in mind 
the carrying capacity of the habitat and the health of the ecosystem of 
which they form a constituent element.

The Role of Direct Mortality in the Decision Process

    To assist the Secretary in reaching a final finding in 2002, NMFS 
is examining various effects of the tuna purse seine fishery on 
depleted ETP dolphin stocks, pursuant to the MMPA. The Secretary will 
consider information on direct mortality in making the final finding. 
The Role of Indirect Effects in the Decision ProcessWhile direct 
mortality by the tuna fishery is a known impact on dolphin stocks, 
there are several other possible means by which the fishery could be 
impacting them. These possible means are often not observed (sometimes 
termed ``cryptic''

[[Page 54641]]

or indirect) and may include: (1) delayed mortality from effects of 
stress or injuries caused by chase and capture; (2) impaired 
reproduction from effects of stress or injuries 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 3-year 
necropsy study of dolphins killed in the tuna fishery; (3) a 1-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. Results of studies conducted 
under the MMPA, as amended by the IDCPA, 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 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 Dolphin Growth Rates in the Decision Process

    In addition to measuring direct mortality, estimating abundance and 
growth rates of the depleted dolphin stocks involved in the ETP tuna 
purse seine fishery is necessary to understand the impacts of the 
fishery on dolphin stocks. This is because potential subtle effects of 
chase and encirclement, such as on reproduction or survival, may be 
difficult to detect and may not be directly observed. For this reason, 
the MMPA, as amended by the IDCPA in 1997, specifically requires NMFS 
to conduct annual abundance surveys. Estimates of abundance and 
projected growth rates for the depleted dolphin stocks, given 
quantifiable levels of mortality caused by the fishery, will be 
assessed to determine if the dolphin stocks are growing (i.e. 
recovering to OSP levels) at an acceptable rate. The impact of the 
fishery on dolphin abundance and growth rates will be evaluated, while 
taking into consideration natural mortality and environmental factors 
that may also be affecting dolphin recovery.

Methods For Determining Significance of Estimated Mortality

    To assess the significance of estimated mortality in the fishery, 
the Secretary will use established standards of marine mammal mortality 
under the MMPA. These ``mortality standards'' may include the PBR and 
the 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 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. The PBR 
system was developed in a series of workshops with participation of 
experts from NMFS and was refined following input from the MMC, outside 
experts, and the public. PBR serves 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 systems for calculating dolphin mortality standards, such as 
those utilized under the AIDCP, to manage fishery-induced dolphin 
mortality levels in the ETP. The AIDCP, a legally binding instrument 
for dolphin conservation and ecosystem management in the ETP, was 
negotiated in 1998. The SML system was conceived by nations 
participating in the IDCP and several non-governmental conservation 
organizations, in consultation with the IATTC. Nations participating in 
the AIDCP currently use the SML system for managing dolphin mortality 
in the ETP. The SML system uses substantially lower limits for dolphin 
mortality than the PBR approach. 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 
ODP as a mechanism for assessing 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. 
Similar to previous work (Gerrodette 1996), NMFS will make calculations 
of PBR levels and SMLs for the final finding, based on recent dolphin 
abundance estimates from 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 has developed the ODP 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 the fishery is having a significant adverse impact 
on any depleted dolphin stock in the ETP.
    The ODP 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) Growth Rate 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 Growth Rate 
Questions, the ODP provides basic thresholds that will result in a 
``yes'' or ``no'' answer. If the Secretary answers ``yes'' to the 
Direct Mortality Question, the Secretary will conclude that the fishery 
is having a significant adverse impact. If the Secretary answers ``no'' 
to the Growth Rate 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

[[Page 54642]]

carrying capacity of the ETP for dolphins declined substantially or has 
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, and 2000), the PBR levels for each depleted 
dolphin stock in the ETP 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. 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. 
The Secretary will consider the information with the understanding that 
adverse effects from unfavorable changes in the ecosystem may require 
the use of a mortality standard below PBR.
    (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 magnitude and degree that 
would risk recovery or appreciably delay recovery to its OSP level (how 
and to what degree)?
    The answer to this question will be based on information collected 
and/or evaluated by NMFS, as well as from information rendered 
individually 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 the evidence relates to indirect adverse effects 
attributable to the fishery on dolphins stocks as described above.
    (4) The Growth Rate Question. For each depleted dolphin stock, is 
the observed population growth rate sufficient to ensure that each 
stock's recovery to OSP is not risked or appreciably delayed?
    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 TVOD collected 
by IATTC and national program observers. 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. The independent experts 
will base their conclusions 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 described here. NMFS published a notice in the 
Federal Register (67 FR 31279) soliciting nominations for the Ecosystem 
Expert Panel and the Indirect Effects Expert Panel. Based on these 
nominations, NMFS selected panelists in close consultation with 
professional scientific organizations.

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 relevant information. 
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. Since NMFS will need 
time to properly assess and evaluate information to be considered by 
the Secretary, the deadline for submission of information was May 1, 
2002, as indicated in the proposed ODP. The Secretary will consider and 
weigh all quantitative information, as accompanied by associated 
statistical measures of certainty and confidence, as appropriate in 
making the final finding.
    The weight given to the available scientific information will be 
determined by the degree to which it meets the following elements: (1) 
relevance, (2) timeliness, (3) passed independent peer-review, 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. Relevance 
means the scientific information is pertinent to the use of the 
information. Timeliness 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

[[Page 54643]]

writing by at least two 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 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.

References

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.
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.
    Southwest Fisheries Science Center,
    National Marine Fisheries Service,
    National Oceanic Atmospheric
    Administration.
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.

    Dated: August 13, 2002.
Donald R. Knowles,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 02-21587 Filed 8-22-02; 8:45 am]
BILLING CODE 3510-22-S