[Federal Register Volume 68, Number 10 (Wednesday, January 15, 2003)]
[Notices]
[Pages 2010-2017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-798]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Doc. No. 030109006-3006-01, I.D. 010903B]


Taking and Importing of Marine Mammals; Decision Regarding the 
Impact of Purse Seine Fishing on Depleted Dolphin Stocks

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

ACTION: Notice.

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SUMMARY: This Notice announces that on December 31, 2002, the Assistant 
Administrator for the National Marine Fisheries Service, on behalf of 
the

[[Page 2011]]

Secretary of Commerce, determined that the chase and intentional 
deployment on or encirclement of dolphins with purse seine nets is not 
having a significant adverse impact on depleted dolphin stocks in the 
Eastern Tropical Pacific Ocean (ETP). This finding determines the 
definition of dolphin-safe for tuna products containing tuna harvested 
in the ETP by purse seine vessels with carrying capacity greater than 
400 short tons and sold in the United States.

DATES: This finding became effective December 31, 2002.

FOR FURTHER INFORMATION CONTACT: Nicole R. Le Boeuf, Office of 
Protected Resources, NOAA Fisheries, 1315 East-West Highway, Silver 
Spring, Maryland, 20910. 301-713-2322, ext. 156.

SUPPLEMENTARY INFORMATION: The Marine Mammal Protection Act and the 
Dolphin Protection Consumer Information Act (DPCIA), as amended by the 
International Dolphin Conservation Program Act, require the Secretary 
of Commerce to conduct specified scientific research and make a 
finding, based on the results of that research, information obtained 
under the International Dolphin Conservation Program, 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.
    On December 31, 2002, the Assistant Administrator for the National 
Marine Fisheries Service, on behalf of the Secretary of Commerce, 
determined that the chase and intentional deployment on or encirclement 
of dolphins with purse seine nets is not having a significant adverse 
impact on depleted dolphin stocks in the ETP. A copy of the finding and 
the rationale supporting the finding are set forth below. Copies of 
supporting documentation referenced in the rationale may be found on 
the Internet at http://www.nmfs.noaa.gov/prot_res/PR2/Tuna_Dolphin/tunadolphin.html.
    This finding determines the definition of dolphin-safe for tuna 
products containing tuna harvested in the ETP by purse seine vessels 
with carrying capacity greater than 400 short tons and sold in the 
United States. As a result of this finding, the dolphin-safe labeling 
standard shall be that prescribed by section (h)(1) of the DPCIA. 
Therefore, dolphins can be encircled or chased, but no dolphins can be 
killed or seriously injured in the set in which the tuna was harvested.
DATES: This finding was effective December 31, 2002.

    Dated: January 9, 2003.
William T. Hogarth,
Assistant Administrator, National Marine Fisheries Service.

Final Finding Required by the Dolphin Protection Consumer Information 
Act, 16 U.S.C. 1385(g)(2).

    The Dolphin Protection Consumer Information Act (DPCIA) requires 
the Secretary of Commerce (Secretary) to make a final finding by 
December 31, 2002 on whether the intentional deployment on or the 
encirclement of dolphin with purse seine nets is having a significant 
adverse impact on any depleted dolphin stock in the Eastern Tropical 
Pacific (ETP) region. 16 U.S.C. 1385(g)(2) The authority to make the 
finding has been delegated to the NOAA Assistant Administrator for 
Fisheries. Based on the information reviewed, I hereby find the 
intentional deployment on or encirclement of dolphin with purse seine 
nets in not having a significant adverse effect on any depleted dolphin 
stock in the ETP.

Summary

    Since the late 1950's, the predominant tuna fishing method in the 
ETP has been to encircle schools of dolphins with a purse seine fishing 
net to capture the tuna concentrated below. Hundreds of thousands of 
dolphins died as a result of this practice in the early years of this 
fishery. Marine Mammal Protection Act (MMPA) provisions, improved 
fishing techniques, and international cooperation have resulted in 
greatly reduced dolphin mortality.
    In 1997, the MMPA and the DPCIA were amended by the International 
Dolphin Conservation Program Act (IDCPA), to require the Secretary to 
conduct specified scientific research and make a finding, based on the 
results of that research, information obtained under the International 
Dolphin Conservation Program (IDCP), and any other relevant 
information, 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. This finding changes 
the dolphin-safe labeling standard as it applies to tuna harvested in 
the ETP by purse seine vessels with carrying capacity greater than 400 
short tons and sold in the United States. The finding must be made by 
December 31, 2002, and the research findings must be submitted to 
Congress within 90 days.
    To arrive at a finding, NOAA Fisheries, in consultation with the 
Marine Mammal Commission (MMC) and the Inter-American Tropical Tuna 
Commission (IATTC), conducted ``a study of the effect of intentional 
encirclement (including chase) on dolphins and dolphin stocks 
incidentally taken in the course of purse seine fishing for yellowfin 
tuna in the ETP.'' Based on the research results and the other best 
available information, I have concluded that the intentional deployment 
on or encirclement of dolphins with purse seine nets is not having a 
significant adverse impact on depleted dolphin stocks in the ETP. This 
finding means that the dolphin-safe labeling standard shall be that 
prescribed by section (h)(1) of the DPCIA. Therefore, dolphin-safe 
means that dolphins can be encircled or chased, but no dolphins can be 
killed or seriously injured in the set in which the tuna was harvested. 
This finding will become effective immediately.
    A Federal Register Notice will be published containing more 
information on this finding. The Final Science Report will be submitted 
to Congress within 90 days.

    December 31, 2002.
William T. Hogarth, Ph.D.,
Assistant Administrator for Fisheries.

Organized Decision Process (ODP) Development and Analysis

Background

    The Marine Mammal Protection Act (MMPA) and the Dolphin Protection 
Consumer Information Act (DPCIA), as amended by the International 
Dolphin Conservation Program Act (IDCPA), require the Secretary of 
Commerce to conduct specified scientific research and 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 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 
eastern tropical Pacific Ocean (ETP). The Secretary's finding serves as 
the basis for determining 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. 
Further, the DPCIA required the Secretary to make an initial finding in 
1999, and a final finding no later than December 31, 2002.
    On April 29, 1999, the National Marine Fisheries Service (NOAA 
Fisheries), on behalf of the Secretary, made an initial finding that 
there was insufficient evidence at that time to determine whether the 
deployment on and encirclement of dolphins by the

[[Page 2012]]

tuna purse seine fishery was having a significant adverse impact on any 
depleted dolphin stock in the ETP (64 FR 24590). Also in 1999, NOAA 
Fisheries submitted a Report to Congress containing the preliminary 
research findings to support that initial finding. That Report also 
described a decision analysis framework to evaluate quantitatively the 
various types of information gathered in the required studies in order 
to make the initial finding. 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 the 1999 determination, and that ruling was 
affirmed by the Ninth Circuit Court of Appeals in Brower v. Evans, 257 
F. 3d 1058 (9th Cir. 2001).
    The final research results provide substantially more information 
to support the final finding than was available for the initial finding 
in 1999. Some of this new information includes: updated dolphin 
abundance data, 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. In 
making the final finding, all research required by the IDCPA was 
completed and considered.
    To accommodate this newly available scientific information and 
ensure transparency in the development of its decision, NOAA Fisheries 
revised its decision-making process for the final finding. On February 
15, 2002, NOAA Fisheries published a proposed Organized Decision 
Process (ODP) in the Federal Register. The ODP was designed to 
establish a framework for making the final finding. Comments were 
received on this proposal from the Inter-American Tropical Tuna 
Commission (IATTC), the Marine Mammal Commission (MMC), environmental 
organizations, the U.S. and the foreign tuna industries, members of the 
public, the U.S. Departments of State and Justice, two members of the 
U.S. Congress, and several foreign nations, among others. After careful 
consideration of these comments, NOAA Fisheries made revisions, as 
appropriate, and, on August 23, 2002, adopted a final ODP
    The ODP differs from the previous decision framework primarily in 
that it takes into account different levels of uncertainty inherent in 
research of this nature. The ODP allows the Secretary to consider many 
different types of the information in light of the uncertainty and 
appropriately weigh the information based on the level of confidence 
that exists for the information. The ODP is also distinct from NOAA 
Fisheries' earlier decision framework in that it includes a mechanism 
for weighing information based on high standards for determining what 
is the best information available. As prescribed by the ODP, 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 
NOAA Fisheries for verification.
    The ODP defined the terms included in the weighting criteria. 
``Relevance'' was defined to mean the scientific information is 
pertinent to the use of the information. ``Timeliness'' was defined to 
mean the relevancy of scientific information least degraded by the 
passage of time. ``Passed independent peer review'' was defined to mean 
the scientific information has been published in a refereed scientific 
journal in its field or independently read and criticized in 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 was defined to mean 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'' was stated in the ODP as being material 
received as of May 1, 2002.
    The NOAA Fisheries' ODP considers separate measures of fishery and 
environmental effects on dolphins, consisting of a series of questions 
for consideration in reaching the final finding. They are as follows: 
(1) The Ecosystem Question; (2) the Direct Mortality Question; (3) the 
Indirect Effects Question; and (4) the Growth Rate Question. For the 
Direct Mortality and the Growth Rate Questions, there are basic 
thresholds in the ODP that result in a ``yes'' or ``no'' answer. If the 
answer to the Direct Mortality Question is ``yes'', then the Secretary 
will conclude that the fishery is having a significant adverse impact. 
Similarly, if the answer to the Growth Rate Question is ``no'', then 
the Secretary will conclude that the fishery is having a significant 
adverse impact. Conversely, a ``no'' and a ``yes'' answer, 
respectively, would result in a finding of no 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 in reaching final 
conclusions. The questions found in the ODP, along with the information 
used to reach the appropriate answers and rationale for each, are found 
below.

Research Conducted Pursuant to Section 304(a) of the MMPA

    Pursuant to section 304(a) of the MMPA, NOAA Fisheries completed 
four years of specified research to support the Secretary's finding 
regarding the impact of the tuna purse seine fishery on depleted 
dolphin stocks in the ETP, in consultation with the MMC and the IATTC. 
The research program was broadly structured to include four components: 
abundance estimation, ecosystem studies, stress and other fishery 
effect studies, and stock assessment. The results of the required 
research were subjected to rigorous, independent peer reviews to ensure 
that the Secretary is provided with information of the highest caliber 
in making the final finding. NOAA Fisheries will submit these results 
in its Final Science Report to Congress within 90 days of the finding. 
A brief summary of each of the major categories of research follows.
    Abundance Estimation. Knowledge of dolphin population levels is key 
to understanding the overall status of these stocks. Current dolphin 
abundance estimates were derived from research vessel surveys conducted 
in the ETP during 1998, 1999, and 2000, using improved analytical 
methods for abundance estimation. Survey data from nine earlier 
abundance surveys dating back to 1979 were also re-analyzed using these 
new methods. This time series of abundance estimates provides the core 
information for evaluations of trends, population growth rates, and 
ultimately stock assessment analyses for the three depleted dolphin 
stocks.
    Ecosystem Studies. For a long-lived animal such as a dolphin, 
carrying capacity is more likely to be affected by long-term (over 
decades) changes rather than those occurring short-term (inter-annual 
or seasonal). NOAA Fisheries' ecosystem studies focused on 
investigations of temporal variation in as many parts of the ETP 
ecosystem as possible. These included physical and

[[Page 2013]]

biological oceanography, a range of trophic levels from the lowest 
(phytoplankton) to the highest (top predators), and as many species 
within each trophic level as possible.
    Stress and Other Indirect Fishery Effects. Stress studies are also 
mandated by the MMPA amendments to address the concern that chase and 
encirclement during fishing operations might affect dolphins in ways 
that might not necessarily result in their immediate and observable 
death in the nets, but that could impede recovery. These are often 
called ``cryptic'' effects. Four related research projects generally 
termed ``stress studies'' were specifically required by U.S. law to 
study the effect of intentional encirclement on dolphins and dolphin 
stocks: a stress literature review, a necropsy study, a review of 
historical data, and a field study involving the repeated chasing and 
capturing of dolphins. The key lines of investigation included research 
on potential separation of dolphin cows and calves, measurement of 
acute and chronic physiological effects that could result in injury or 
death, observation of behavioral responses to fishing activities, and 
estimation of the average number of times a dolphin might be chased and 
encircled per-year per-stock.
    Stock Assessments. The final component of the research, the stock 
assessment modeling, provides quantitative estimates of dolphin 
population growth rates and depletion levels, as well as a framework 
for testing hypotheses about the effects on dolphins of changes in 
carrying capacity and potential fishery effects. Of primary interest 
was an evaluation of the current population size relative to the 
population size that can be sustained by the ecosystem in the absence 
of human-induced mortality. This has a direct bearing on the potential 
rate of recovery for these depleted stocks and provides a means of 
evaluating the observed population growth rate in the context of the 
ecosystem and uncertainties associated with the estimates of abundance 
and mortality. Unfortunately, this question cannot be addressed for 
coastal spotted dolphins because historical estimates of mortality and 
abundance are not available for this stock.

Information Obtained Under the IDCP and Other Relevant Information

    Pursuant to the MMPA, the Secretary is also required to consider 
``information obtained under the IDCP'' and ``other relevant 
information'' when making the final finding. To this end, NOAA 
Fisheries worked with the IATTC to obtain various types of information 
relevant to this decision. This information included data on the number 
of dolphin sets made by the fishery and dolphin mortality reported by 
the IATTC observer program, among other things.
    NOAA Fisheries also invited interested members of the public to 
submit such information for consideration. In order to properly assess 
and evaluate this outside information with sufficient time for making 
the finding by the date required in the statute (December 31, 2002), 
the deadline for submission of information was May 1, 2002. For the 
purposes of weighing outside information, NOAA Fisheries determined 
that information submitted by the deadline was submitted in a timely 
manner and is given greater weight than information that was submitted 
after this deadline. There was only one submission of outside 
scientific information by May 1, 2002. This consisted of a review by 
the IATTC of three previously published NOAA Fisheries papers on the 
subject of dolphin stress and other indirect effects of the tuna purse 
seine fishery on dolphins. NOAA Fisheries considers the review 
relevant, since it was received in a timely manner and was able to be 
evaluated and verified. The document is currently under review with a 
scientific journal, but otherwise has not been independently peer 
reviewed.
    NOAA Fisheries submitted its Final Science Report to the IATTC and 
the MMC for their review as a mechanism by which to provide the 
Secretary with the best information in making the final finding. NOAA 
Fisheries received general comments from the MMC. The IATTC submitted 
comments pertaining to the NOAA Fisheries Science Report, as well as 
additional information and analyses. NOAA Fisheries considers this 
information relevant, although it was not able to thoroughly evaluate 
and verify the information. NOAA Fisheries did, however, prepare a 
cursory assessment of the IATTC's comments for consideration. In 
summary, the IATTC's comments include in-depth analyses of relevant 
information and specific comments pertaining to the analysis and 
interpretation of information by NOAA Fisheries. The IATTC's response 
also concludes that the fishery is not having a significant adverse 
impact on depleted dolphin stocks in the ETP. The MMC's comments 
concluded that there is insufficient evidence to determine that the 
fishery is not having a significant impact on depleted stocks and that 
there is only inconclusive evidence that the intentional chase and 
encirclement of dolphins by the fishery is having adverse impacts on 
the recovery of dolphin stocks. While this information is relevant and 
was considered in making the finding, it cannot be weighed as heavily 
as the information contained in NOAA Fisheries' Final Science Report.

Expert Panels

    NOAA Fisheries appointed two panels of independent scientific 
experts to provide individual opinions regarding the answers to the 
Ecosystem and the Indirect Effects questions as a means of assisting in 
answering the two questions in the ODP for which there are the most 
complex and/or uncertain data (67 FR 31279). The panelists were 
nominated by the public, with the help of several scientific and 
professional societies, and were chosen by a committee of individuals 
which included representatives from NOAA Fisheries, the IATTC, the MMC, 
and an independent scientific body. The individual experts based their 
opinions on a review of the results from the required research program, 
information obtained under the IDCP, and other relevant information, 
along with the expert knowledge that these individuals possess as 
leaders in their respective fields.

Analysis

    The Ecosystem Question. During the period of the fishery, has the 
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?
    Changes in an ecosystem can fundamentally affect the carrying 
capacity of a species that inhabits that ecosystem. Changes that 
adversely affect the habitat of a species, including its prey, likely 
will result in a decrease in the carrying capacity of that species. For 
depleted species, such adverse changes also will likely slow the rate 
at which these species recover.
    Because substantial changes in an ecosystem can affect a depleted 
population or stock's recovery, the ODP considers scientific evidence 
of whether a significant ecosystem change has occurred in the ETP and 
if so, how that change may be impacting depleted dolphin stocks. In 
considering the possible effects of ecosystem changes, NOAA Fisheries 
collected or reviewed

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physical and biological oceanography data, including information on a 
range of trophic levels from the lowest (phytoplankton) to the highest 
(top predators), and as many species within each trophic level as 
possible. NOAA Fisheries also solicited the opinions from members of a 
separate Ecosystems Panel, comprised of independent scientific experts 
in biological oceanography and ecology.
    Available scientific information reveals the existence of periodic, 
low frequency changes within the ETP. These longer, decadal-changes are 
evident from sea surface temperature data beginning in 1901. Notably, a 
shift occurred in the late 1970s that was detected throughout the 
Pacific Ocean. Changes at that time in the physical environment and in 
biological communities were clearly documented in the North Pacific 
Ocean. In the ETP, this shift resulted in a warming of less than 
1[deg]C. Coincident with increase in temperature in the ETP, there was 
a weakening of trade winds and a small change in surface chlorophyll. 
No other responses to this late 1970s shift have been reported, but 
biological data prior to 1976 are sparse or currently unavailable in a 
form that would allow comparisons with more recent data.
    In addition to periodic, low-frequency ecosystem changes, the ETP 
ecosystem is periodically affected by the El Nino/Southern Oscillation 
(ENSO), which occurs on two to seven year periods. All investigations 
by NOAA Fisheries indicated that variability associated with ENSO 
events is the predominant variability throughout the ecosystem, having 
a much greater effect than periodic decadal-scale changes. These 
ecosystem changes are in part supported by analyses of data on prey 
fishes, squids, and seabirds collected by NOAA Fisheries during dolphin 
surveys since 1986. The broader significance of these changes, however, 
is limited given the absence of comparable data prior to the early 
1980s.
    NOAA Fisheries' research indicates that dramatic reductions in 
carrying capacity caused by ecosystem changes is considered unlikely. 
If an ecosystem change dramatic enough to impact dolphin stocks had 
occurred, it is unlikely that the only animals affected would be 
dolphins. Data on a wide range of habitat variables and species were 
collected, beginning in 1986, as part of the NOAA Fisheries dolphin 
assessment cruises. No dramatic shifts were detected. However, NOAA's 
ability to determine existence and magnitude of ecosystem changes in 
the ETP, together with the effect of those changes upon depleted 
stocks, is significantly limited by a paucity of relevant scientific 
information. Questions remain as to the actual carrying capacity of 
depleted stocks under even optimal conditions. Additionally, there are 
few data available concerning the ETP ecosystem prior to the late 
1970s, hindering the ability to examine low frequency ecosystem changes 
and their effect on depleted marine mammal stocks. Assessments are 
further limited by the possibility that even small changes in 
background physical conditions can have large effects upon species 
within that ecosystem.
    The potential effect of ecosystem changes was addressed by the five 
members of the Ecosystem Panel, each of whom had significantly 
different expertise to bring to bear on their individual opinions. The 
Ecosystem Expert Panel members' assessments were based on their review 
of the NOAA Fisheries Final Science Report, and relevant oceanographic 
and ecosystem data from the period of the fishery.
    All experts agreed that historical surface temperature data 
indicate that since the mid 1970s, the Pacific Ocean has been in a warm 
phase of the Pacific Decadal Oscillation (PDO). Within the ETP, this 
PDO cycle has resulted in a surface temperature increase of 2 degrees 
centigrade above temperatures documented during a cold phase which 
occurred in the 1950s and 1960s. (Report of Michael Landry). While 
increased temperatures may result in some positive effects, most 
experts agreed that temperature increases would result in a deeper 
thermocline, which in turn would reduce the availability of prey 
species for depleted marine mammals.
    In addition to ecological changes brought on by PDO, experts also 
noted environmental changes attributable to ENSO. Like PDO, changes 
associated with ENSO result in increased surface water temperatures. 
Evidence indicates that prey fish are substantially depressed during 
ENSO. (Reports of Read, Landry, and Stewart).
    According to these experts, the extent to which these PDO and ENSO 
warming cycles have affected depleted marine mammal stocks is unknown, 
but potentially significant. One expert concluded that it is unlikely 
that the ecological structure of the ETP has changed substantially in a 
way that could significantly impede or promote the population growth of 
depleted stocks. (Report of Andrew Read). Others, expressed a different 
view. In Landry's view, ``such changes provide a credible explanation 
for at least part of the observed slow recovery of dolphin stocks * * 
*.'' In the view of Stewart, ``the argument is persuasive that the 
carrying capacity of the ETP, relative to the ecologies and life 
histories of northern offshore spotted dolphins and eastern spinner 
dolphins, is lower now (and the past several or more years), that [sic] 
it was prior to and during the early phase of the fishery.'' Moreover, 
Stewart concludes that depleted stocks had begun to recover after 
direct mortality declined below the replacement rate in the 1980s, but 
that this recovery may have been interrupted by warm water events in 
the 1990s. Barber notes that, ``There are indications that the 
biological productivity of the ETP has changed in response to the low-
frequency physical variability known as PDO. These indications, while 
speculative, require that we not rule out the possibility that the 
carrying capacity of the ETP for dolphins has declined and that this 
decline has affected recovery of the population. * * * We also cannot 
rule out the possibility that the ecological structure of the ETP has 
changed substantially in a way that could impede the recovery of the 
dolphin stocks.''
    Panel experts agree with NOAA's view that there is insufficient 
information to adequately assess the existence or magnitude of 
ecosystem changes, or the extent to which these changes have impacted 
depleted dolphins. As one expert noted, ``* * * we do not have a 
sufficient understanding of the structure or function of the ETP 
ecosystem to answer this question. Our knowledge of the ecological 
interactions of dolphins and other ecosystem components, including 
yellowfin tuna, is so rudimentary that in most cases, we cannot predict 
whether a particular environmental change might promote or impede the 
population growth of dolphins. Furthermore, we do not have a sufficient 
time-scale of observations to allow tests of hypotheses regarding such 
ecological changes and their effects.'' (Report of Andrew Read).
    Comments of the IATTC state that between 1986-1990 and 1998-2000, 
population surveys indicate that large numbers of non-depleted dolphins 
moved into the fishery off Central America. By competing for common 
food sources, this migration could have significantly affected the 
carrying capacity of depleted dolphins and hindered recovery. The MMC 
commented that available information is insufficient to support a 
conclusion that ecosystem changes have impacted dolphin recovery, but 
the MMC provided no additional information on this point.

[[Page 2015]]

    Based upon the above information, remaining data gaps, and expert 
opinions, NOAA Fisheries cannot determine whether the carrying capacity 
of the ETP for dolphins has declined substantially or that the 
ecological structure of the ETP has changed substantially in a way that 
could impede depleted dolphin stocks from growing at rates expected in 
a static ecosystem.
    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?
    Direct mortality as reported by observers is a known and easily 
quantifiable impact of the tuna purse seine fishery on depleted ETP 
dolphin stocks. To answer this question, NOAA Fisheries calculated the 
potential biological removal (PBR) levels for each depleted dolphin 
stock in the ETP. The PBR is the maximum number of animals, not 
including natural mortalities, that may be removed from a marine mammal 
stock while allowing that stock to reach or maintain its optimum 
sustainable population size. Direct mortality and estimates of indirect 
mortality (where appropriate) were compared to the PBR levels and other 
mortality standards for each stock. Additionally, possible changes in 
the carrying capacity and/or the ecosystem structure of the ETP were 
considered but deemed scientifically inconclusive.
    The ODP calls for comparison between the level of direct mortality 
and a ``mortality standard considered appropriate by the Secretary.'' 
The ODP therefore allows flexibility in determining what the threshold 
should be, specifically because the results of analyses on indirect 
mortality as well as ecosystem changes might have called for a 
threshold lower than PBR. For example, if there had been sufficient 
sample sizes to make population-level inferences of the impact of 
indirect effects, and/or if there had been strong evidence of a 
dramatic reduction in carrying capacity due to ecosystem changes, then 
a level of mortality close to PBR might have been considered too high.
    The average of the abundance estimates for the most recent surveys 
are 641,153 northeastern offshore spotted dolphins, 448,608 eastern 
spinner dolphins, and 143,725 coastal spotted dolphins. The 
coefficients of variation (CV) for these estimates are approximately 
17%, 23%, and 36%, respectively. CV is a measure of the variability of 
the estimate. Much of the essential information regarding coastal 
spotted dolphins is lacking, especially from the early years of the 
fishery. This lack of information prevents NOAA Fisheries from further 
refining the precision of this stock's abundance estimation.
    Reported levels of dolphin mortality for each stock have been very 
low in recent years (far less than PBR levels for approximately a 
decade) and have only rarely exceeded the strict stock-specific 
mortality limits set forth by the IDCP. These stock mortality limits 
(SMLs) are roughly 10% of the PBR standard. For this decision, the PBR 
standard, an established standard of mortality, provides the best 
insight into the significance of reported mortality to the dolphin 
stocks. By contrast, SMLs are not strictly science-based values, but 
rather reflect the lowest possible mortality achievable by the fishery 
and values that should be biologically insignificant to dolphin stocks. 
Comparing reported mortality to established standards of mortality, 
such as the PBR and the SML systems, can provide insight into the 
significance of reported mortality to the dolphin stocks. In 2001, the 
most recent year for which annual mortality estimates are available, 
the total reported mortality was 466 eastern spinner dolphins, 656 
northeastern offshore spotted dolphins, and two spotted dolphins. PBR 
levels during this same time period were for 1298 eastern spinner 
dolphins, 2367 northeastern offshore spotted dolphins, and 1073 coastal 
spotted dolphins.
    The only source of quantifiable information on levels of indirect 
mortality comes from investigations into the separation of cow-calf 
pairs during fishing operations. Analyses of purse seine sets from 1973 
to 1990, in which all killed dolphins were examined, led to the 
conclusion that there is some separation of calves from their mothers. 
Based on reasonable assumptions about length of nursing dependency, 
NOAA Fisheries estimated that mortality was underestimated by 10-15% 
for spotted dolphins and 6-10% for spinner dolphins in this sample. 
Reported mortality for 2001, when combined with cow-calf separation 
estimates, is approximately: 31% of PBR for northeastern offshore 
spotted dolphin and 39% of PBR for eastern spinner dolphin. There is 
currently no way to quantify indirect mortality for coastal spotted 
dolphins. Therefore, direct mortality is based on that reported by the 
on-board observer programs and is only 0.2% of PBR for coastal spotted 
dolphin. When reported mortality for 2001 is combined with the estimate 
of cow-calf separation, quantifiable direct mortality is well below the 
PBR level for each stock.
    NOAA Fisheries has a relatively high degree of confidence in both 
the dolphin abundance estimates and in a minimum estimate of mortality 
owed to cow-calf separation. Additionally, the IDCP utilizes 100% 
observer coverage to obtain dolphin mortality information, so unlike 
most other fisheries around the world, dolphin mortality is enumerated 
rather than estimated. Based on these data, information regarding 
dolphin mortality in the fishery obtained through the IDCP, and in 
consideration of the opinions of the Ecosystem Expert Panel, direct 
mortality does not exceed PBR, or any other appropriate mortality 
standard, for any of the depleted dolphin stocks.
    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 optimum 
sustainable population (OSP) level (how and to what degree)?
    While direct mortality from sources in the tuna fishery causes a 
known impact on dolphin stocks, there are possible means by which the 
fishery could be indirectly impacting dolphins. Therefore, an 
assessment of indirect effects is relevant to making the final finding. 
Sources of indirect mortality include cow-calf separation and may 
include other types of effects resulting from chase and capture, which 
could compromise the health of at least some of the dolphins involved. 
The answer to this question was based on information collected and/or 
evaluated by NOAA Fisheries, as well as on opinions of individual 
members of a panel of independent scientific experts in veterinary 
science, physiology, and other stress-related fields (the Indirect 
Effects Panel).
    In the aggregate, available data suggest the possibility that 
purse-seining activities result in indirect effects that negatively 
impact dolphins. However, available data are insufficient to determine 
whether the fishery is causing indirect effects of sufficient magnitude 
to either risk recovery or appreciably delay recovery. Completed 
research has included a combination of field experiments, retrospective 
analyses, direct observation, and mathematical modeling, to address a

[[Page 2016]]

broad range of stress-related effects and other factors that might lead 
to unobserved dolphin mortalities. These data, however, are 
insufficient to quantify potential population-level impacts or 
determine whether population recovery might be delayed, because sample 
sizes were small and baseline data unavailable. For example, in 
implementing a specifically mandated necropsy program that was 
conducted between 1998 and 2000, it was possible to obtain samples from 
only 56 dolphins; a number that is insufficient to make population-
level inferences. Additionally, a chase-encirclement stress study, was 
conducted during August and October of 2001. Because of the 
experiment's complexity and logistical challenges, it was recognized 
from the outset that sample sizes for the studies would be limited and 
that population-level inferences were unlikely.
    Notwithstanding these data limitations, NOAA Fisheries examined 
specific indirect effects that may negatively impact dolphin stocks. 
Specifically, NOAA Fisheries examined the possibility that cow-calf 
pairs are separated during chase and encirclement, causing the 
subsequent death of the calf. Analyses of purse-seine sets suggests 
that some separation occurs. However, more conclusive mortality 
estimates relative to chase do not exist, as direct observations 
currently are not feasible. Additional mortality associated with 
separation is possible in instances where dolphins are chased but not 
encircled. However, mortality estimates relative to chase do not exist, 
as direct observations are not feasible. Even if correct, estimates of 
confirmed indirect dolphin mortality due to cow-calf separation do not 
substantially increase the total levels of mortality for each stock.
    Additionally, NOAA Fisheries investigated the frequency with which 
the fishery interacts with individual dolphins and with the dolphin 
stocks as a whole each year. For northeastern offshore spotted 
dolphins, there are over 5,000 dolphin sets per year, resulting in 6.8 
million dolphins chased per year and 2.0 million dolphins encircled per 
year (on average for 1998-2000). For eastern spinner dolphins, there 
are about 2,500 sets per year, 2.5 million dolphins chased per year, 
and 300,000 dolphins encircled per year. For coastal spotted dolphins, 
there are about 154 sets per year, 284,300 dolphins chased per year, 
and 39,700 dolphins captured per year. NOAA Fisheries estimated that a 
northeastern offshore spotted dolphin is chased 10.6 and encircled 3.2 
times, an eastern spinner dolphin is chased 5.6 and encircled 0.7, and 
a coastal spotted dolphin is chased 2.0 times and encircled 0.3 times 
per year on average. Unfortunately, there is much uncertainty 
surrounding these statistically estimated averages. Moreover, there are 
insufficient data to determine the impact of stress and other chase-
related effects on dolphin populations. Additional research must be 
done on this before there will be sufficient data to yield definitive 
results.
    Experts noted that there is inadequate information to make a 
determination on the existence or extent of indirect effects, as they 
relate to dolphin recovery. To assist the Secretary in answering this 
difficult question, a panel of five experts was asked to address the 
issue of indirect mortality. All five expert panelists indicated that 
indirect fishery effects, especially cow-calf separation and increased 
likelihood of predation, may account for the lack of expected dolphin 
recovery. The strength of their opinions varied greatly, however, 
noting the large amounts of uncertainty in the data. The IATTC noted 
that indirect effects (such as cow-calf separation, elevated stress 
hormones and enzymes, and heart damage) are speculative, given the 
absence of adequate data. The MMC provided no additional studies, but 
agreed that, ``* * * existing information does not provide a sufficient 
basis for quantifying any increased levels of mortality that occur 
during chase operations, reproductive failure resulting from stress, 
facilitated predation, post-release capture myopathy, or disruption of 
the tuna-dolphin bond.''
    In sum the available information on indirect effects, including 
much of the information regarding cow-calf separation, is limited, and 
therefore bars population-level inferences of the effects of stress on 
dolphin stocks. Additional research is necessary to better understand 
these more complex effects on dolphin stocks. Accordingly, the best 
available information, including data on sets per year, mortality 
attributable to the fishery, indicators of stress in blood, skin and 
other tissues, cow-calf separation, the Expert Panel opinions, and 
other relevant information, indicates that indirect effects caused by 
purse-seine fishing are not impacting dolphins to a degree that would 
risk or appreciably delay recovery to optimum population levels.
    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 appreciably delayed?
    To answer this question, NOAA Fisheries fit a population model to a 
time series of research vessel abundance estimates, using the time 
series of estimates of the incidental mortality from tuna vessel 
observer data (TVOD) collected by IATTC and national program observers, 
as well as TVOD as indices of abundance in a subset of the analyses. 
NOAA Fisheries also estimated growth rates for each dolphin stock and 
measures of uncertainty for each estimate. Finally, assessments from 
the members of the Ecosystem Panel were used when considering the 
estimated growth rates.
    The assessment modeling produced additional information on the 
current depletion levels of two of the three depleted dolphin stocks. 
Depleted means that a marine mammal population's abundance is less than 
60% of its carrying capacity or the maximum size of a particular 
population that can be sustained within a given area or habitat. 
Northeastern offshore spotted dolphins are at 20% and eastern spinner 
dolphins at 35% of their pre-fishery population levels and thus remain 
depleted under the MMPA. Similar estimates for coastal spotted dolphins 
are unavailable, due to a lack of data on fishery-related mortality and 
time-series abundance estimates from the early years of the fishery.
    NOAA Fisheries estimated a ``one-slope'' and ``two-slope'' model of 
growth rates for dolphin populations. While the one-slope model assumes 
a constant growth over the period studied, the two-slope model allows 
for a change in the growth rate. The one-slope model indicates that the 
dolphin stocks are growing at low rates (1-2%) although there is a 95% 
confidence that they are not declining. The two-slope model results 
indicate that the growth rate decreased, but was still positive, for 
one stock but became negative for a second stock during this past 
decade. The two models produce roughly equally probable results.
    Another important consideration in assessing the impact of the 
fishery on depleted stocks is to determine the time to recovery for 
these stocks under current conditions. Using the growth rates mentioned 
above in a population model, estimated times to recovery were 
determined for these two stocks. When abundances of the depleted stocks 
are projected into the future, the one-slope model predicts recovery in 
78 years for northeastern offshore spotted dolphins, and in 65 years 
for eastern spinner dolphins. The two-slope model, having roughly 
equivalent support by the data, predicts that neither stock would 
recover in at least 200 years. This two-

[[Page 2017]]

slope model shows that the northeastern offshore spotted dolphin 
abundance would stay constant, while eastern spinner abundance would 
decline, assuming that there have been no change in carrying capacity 
since the late 1950s.

[FR Doc. 03-798 Filed 1-14-03; 8:45 am]
BILLING CODE 3510-22-P