[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Notices]
[Pages 7953-7957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02550]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC558]


Guidelines for Preparing Stock Assessment Reports Pursuant to the 
Marine Mammal Protection Act; Final Revisions to Procedural Directive

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

ACTION: Notice of availability; response to comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) has incorporated 
public comments on the draft revisions to the Guidelines for Preparing 
Stock Assessment Reports Pursuant to the Marine Mammal Protection Act 
(NMFS Procedural Directive) and is now finalizing the revisions and 
making them available to the public.

DATES: This final Procedural Directive will be effective as of February 
7, 2023.

[[Page 7954]]


ADDRESSES: Electronic copies of the Guidelines for Preparing Stock 
Assessment Reports Pursuant to the Marine Mammal Protection Act (NMFS 
PD 02-204-01) are available at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0081 or https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.

FOR FURTHER INFORMATION CONTACT: Eric Patterson, NMFS Office of 
Protected Resources, (301) 427-8415, [email protected]; or 
Zachary Schakner, NMFS Office of Science and Technology, 301-427-8106, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    Section 117 of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 
1361 et seq.) requires NMFS and the U.S. Fish and Wildlife Service 
(FWS) to prepare stock assessments for each stock of marine mammals 
occurring in waters under the jurisdiction of the United States. These 
reports must contain information regarding the distribution and 
abundance of the stock, population growth rates and trends, estimates 
of annual human-caused mortality and serious injury from all sources, 
descriptions of the fisheries with which the stock interacts, and the 
status of the stock. Initial stock assessment reports (SARs) were 
completed in 1995.
    Since 1995, NMFS has convened a series of workshops and developed 
associated reports (Barlow et al., 1995, Wade and Angliss, 1997, Moore 
and Merrick, 2011) to develop Guidelines for Assessing Marine Mammal 
Stocks, which, in 2016, were formally established as a NMFS Procedural 
Directive (NMFS PD 02-204-01). In 2020, NMFS reviewed the guidelines 
and determined revisions were warranted. On August 25, 2022, NMFS 
published draft revisions to the guidelines for public review and 
comment (87 FR 52368). Major revision topics included: (1) 
incorporating the NMFS Procedural Directive: Reviewing and Designating 
Stocks and Issuing Stock Assessment Reports under the Marine Mammal 
Protection Act (NMFS PDS 02-204-03); (2) calculating the minimum 
population abundance (Nmin) in post-survey years; (3) 
addressing sources of bias in the calculation of Nmin; (4) 
designating stocks as strategic; (5) improving language related to 
quantifying and including unobserved mortality and serious injury; (6) 
including information on ``other factors,'' such as climate change, 
biologically important areas, and habitat issues; (7) clarifying 
expectations regarding peer-review, quality assurance, and quality 
control; and (8) identifying data sources and criteria used for 
documenting human-caused mortality and serious injury. Other minor 
revisions were made to improve readability, formatting, and clarity, 
and ensure consistency with recent revisions to NMFS' Serious Injury 
Procedural Directive (NMFS-PD 02-038-01). NMFS is now finalizing the 
revisions to the guidelines with minor changes in response to public 
comments. The complete summary of public comments and responses is 
included in the next section, and the full final revised Procedural 
Directive is available at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0081 or https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.

Comments and Responses

    NMFS received comments from the Marine Mammal Commission 
(Commission), the Atlantic Scientific Review Group (SRG), two non-
governmental environmental organizations (Center for Biological 
Diversity (CBD) and the Natural Resources Defense Council (NRDC)), 
representatives from the fishing industry (Washington Dungeness Crab 
Fishermen's Association (WDCFA) and the Hawaii Longline Association 
(HLA)), and the North Slope Borough, Department of Wildlife Management 
(NSB). Similar comments from different groups were combined, 
summarized, and responded to in aggregate below.
    Comment 1: A representative from NSB Department of Wildlife 
Management, who is also an Alaska SRG member, and the Commission both 
commented on the draft revisions related to co-management between NMFS 
and Alaska Native Organizations (ANOs). Specifically, NSB encouraged 
NMFS to take co-management consultation with ANOs as seriously as it 
takes reviews by the SRGs. To this end, NSB suggested several specific 
revisions to emphasize how and when in the SAR process NMFS should 
engage with co-management partners. Similarly, the Commission notes 
that the guidelines could benefit from providing more specific and 
clearer guidance on the role of ANOs during the SAR development process 
and suggest several ways NMFS could provide additional clarity.
    Response: NMFS thanks the NSB and Commission for their thoughtful 
comments and suggestions to further clarify the role of co-management 
partners, specifically ANOs, in the SAR development and review process. 
NMFS has incorporated nearly all of the specific edits suggested by NSB 
in some fashion, which we believe are in line with the more general 
suggestions made by the Commission.
    Comment 2: The CBD, WDCFA, and the Atlantic SRG all provided 
comments on the draft revisions regarding the topic ``Undetected 
Mortality and Serious Injury.'' Both CBD and the Atlantic SRG are 
supportive of the additional guidance provided on this topic. WDCFA 
acknowledges that undetected mortality and serious injury does indeed 
occur, specifically as it relates to entanglements in Dungeness crab 
gear but is concerned that incorporating estimates of unobserved 
mortality and serious injury based on limited data may cause a bias 
leading to reductions in the Potential Biological Removal (PBR) 
estimate for a stock, specifically Pacific Coast Humpback Stocks. They 
note that when no data to quantitatively assess undetected mortality 
and serious injury are available, the guidance provided in the draft 
revisions is justifiable and prudent.
    Response: NMFS thanks CBD and the Atlantic SRG for their positive 
feedback on the draft revisions regarding undetected mortality and 
serious injury. NMFS agrees with WDCFA that in cases where data are too 
limited to quantitatively estimate undetected mortality and serious 
injury, the revisions provide guidance to SAR authors to appropriately 
characterize the uncertainty and biases associated with the human-
caused mortality and serious injury estimates. However, to clarify, in 
cases where data are available to quantitatively estimate and 
incorporate unobserved mortality and serious injury for a stock, there 
is no effect on PBR. Rather, it may be possible to incorporate 
unobserved human-caused mortality and serious injury into the total 
human-caused mortality and serious injury, which is then compared to 
PBR. NMFS also emphasizes that if data are available to quantitatively 
estimate and, thus, correct for undetected mortality and serious injury 
and to apportion this to cause, such methods are still subject to the 
peer-review requirements laid out within the final revisions and would 
likely be considered for at least Level 2 review, if not Level 3, as 
detailed in the new section entitled ``3.6 Ensuring Appropriate Peer 
Review of New Information.'' In addition, the incorporation of such 
estimates in the SARs would be subject to public notice and comment.
    Comment 3: The HLA, NSB, and Atlantic SRG all commented on the

[[Page 7955]]

draft revisions that incorporate and reference NMFS Procedural 
Directive: Reviewing and Designating Stocks and Issuing Stock 
Assessment Reports under the Marine Mammal Protection Act (NMFS PDS 02-
204-03). HLA notes that the guidelines should clarify that NMFS will 
only designate a demographically independent population (DIP) as a 
stock if it determines that the DIP meets the definition of a stock 
under the MMPA. NSB believes the guidelines could be further improved 
with several specific revisions to address how DIPs are determined in 
practice. Finally, the Atlantic SRG notes that the draft revisions with 
respect to this topic are sensible and applauds NMFS for their work on 
this issue.
    Response: We thank the Atlantic SRG for the positive feedback on 
the revisions related to this topic. In response to HLA's comment, we 
agree that NMFS should only designate a DIP as a stock if it also meets 
the definition of a stock under the MMPA. The original draft revisions 
were indeed meant to imply this, but we have since further revised this 
section to clarify. Finally, we appreciate NSB's desire to provide 
further information in the guidelines regarding how DIPs are determined 
in practice. However, Martien et al. (2019) is the best resource for 
delineating DIPs, and we believe it is more appropriate to direct the 
reader to this resource rather than to provide further information in 
these guidelines. In the final guidelines, we note that additional 
detail on how DIPs are defined in practice can be found in Martien et 
al. (2019).
    Comment 4: CBD, NSB, NRDC, the Commission, and the Atlantic SRG all 
commented on sublethal impacts, including the proposed new ``Habitat 
Issues'' section. CBD notes that the new guidelines do not sufficiently 
direct the SAR authors to quantify the impact of humans on marine 
mammal prey and recommend having a standalone section on prey. The 
Commission notes that harmful algal blooms are not specifically listed 
as a possible concern in the ``Habitat Issues'' section and given their 
prevalence and known impacts on marine mammals, they suggest it be 
added. Somewhat in contrast, NSB encourages NMFS to modify the 
guidelines to stress that the ``Habitat Issues'' section should only be 
a very brief summary. While not a habitat issue per se, both the 
Atlantic SRG and NRDC commented on the need for the SARs to include 
further information on non-lethal entanglements, particularly for large 
whales like the North Atlantic right whale. In particular, the Atlantic 
SRG questions whether NMFS will incorporate any revisions it makes to 
its related but separate procedure on serious injury determinations for 
marine mammals related to better addressing sublethal chronic injuries 
and/or reproductive impairment that may occur to large whales as a 
result of entanglement.
    Response: NMFS appreciates the constructive feedback on these 
issues and has made revisions to better address the various points made 
by the commenters. In the final revised guidelines, we have renamed the 
``Habitat Issues'' section to ``Other Factors That May Be Causing a 
Decline or Impeding Recovery'' or ``Other Factors'' for short and 
expanded its scope beyond habitat to include all other identified 
factors, excluding human-caused mortality and serious injury that may 
be affecting a marine mammal stock. The guidelines specify that this 
section should be included in SARs for strategic stocks, as required by 
Section 117 of the MMPA, but can be included in SARs for non-strategic 
stocks if data indicate other factors are likely causing a decline in 
or adversely affecting the status of the stock. SAR authors are 
directed to include information on non-human causes of mortality and 
serious injury, as well as human- and non-human-caused sublethal 
impacts (including non-serious injuries) that may be causing a decline 
or impeding recovery. Examples of these include (but are not limited 
to): predation; inter- or intra-specific aggression; effects to prey 
and habitat; infectious disease; toxins including from harmful algal 
blooms; contaminants; non-serious injuries from entanglements, vessel 
strikes, or other human activities; masking and hearing impairment due 
to noise; and climate change, variability, and environmental factors 
(e.g., sea surface temperature) that affect marine mammal health, 
survival, or reproduction.
    By expanding the scope of this section, the SARs will more closely 
align with the specific direction provided by section 117(a)(3) of the 
MMPA and will provide SAR authors flexibility to address all of the 
issues brought up by the commenters. However, as recommended by NSB, 
the guidelines emphasize that the ``Other Factors'' section should only 
be a brief summary and rely on and reference supporting publications 
and existing datasets.
    Comment 5: Both the Atlantic SRG and NSB commented on revisions to 
the ``Transboundary Stocks'' section. NSB commented on informed 
interpolation, defined in the guidelines as the use of a model-based 
method for interpolating density between transect lines, which may be 
used to fill gaps in survey coverage and estimate abundance and PBR. 
NSB asked how widely accepted informed interpolation based upon habitat 
associations is and urged caution with using modeled habitat 
associations when predicting abundance. The Atlantic SRG noted that the 
guidance on transboundary stocks is not clear. In a follow up exchange, 
the Atlantic SRG further clarified that in their view, the guidance as 
written is really only applicable to Nmin and not the other 
aspects of PBR or human-caused mortality and serious injury. 
Furthermore, it may not sufficiently direct authors to describe the 
uncertainty that may exist in transboundary situations.
    Response: In the draft revisions, guidance on informed 
interpolation was located both in the ``Transboundary Stocks'' section, 
as well as in the ``Minimum Population Estimate'' section, and similar 
text was already included in the 2016 version of the guidelines in the 
``Definition of Stock'' section. The issue of extrapolation and 
interpolation was the subject of a working paper presented at the 
Guidelines for Assessing Marine Mammal Stocks (GAMMS) GAMMS III 
workshop (WP-4B); and, as such, we will not go into depth here. A copy 
of this working paper is available upon request and a summary of the 
paper and workshop participants' views on this subject can be found in 
the GAMMS III workshop report (Moore and Merick, 2011). In general, 
NMFS agrees that informed interpolation should be used with caution and 
notes that the sentence preceding the one in question reiterates that 
``In general, abundance or density estimates from one area should not 
be extrapolated to unsurveyed areas to estimate range-wide abundance.'' 
However, to further clarify, we have revised the text to emphasize that 
informed interpolation may only be appropriate in some cases. We have 
also now removed where this text was duplicated, preferring to only 
keep it in the ``Minimum Population Estimate'' section as this issue is 
not specific to transboundary stocks. Finally, we note that habitat-
based density modeling has been successfully used to estimate abundance 
of marine mammals in a variety of areas. Such modeling is common for 
estimating abundance and filling relatively small gaps in survey 
coverage within a larger overall survey area (e.g., Roberts et al., 
2016., Becker et al., 2020 and 2021), and in some cases, with caution, 
has been used to predict

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marine mammal density even outside of surveyed areas, as long as 
modeling is restricted to within the range of an established habitat 
covariate-density relationship (Mannocci et al., 2017).
    In response to the Atlantic SRG's comment and follow up 
clarifications, we have revised the ``Transboundary Stocks'' section to 
provide additional clarity on approaches for adjusting Nmin 
as well as other aspects of PBR and further clarified options for 
adjusting human-caused mortality and serious injury. In addition, the 
final guidelines direct SAR authors to summarize any additional 
uncertainties that may be introduced by adjusting PBR and or human-
caused mortality and serious injury estimates.
    Comment 6: CBD, HLA, NSB, WDCFA, and the Atlantic SRG all provided 
comments on the draft revisions related to calculating the minimum 
population abundance, or Nmin. CBD and NSB support the draft 
revisions that remove the 8-year ``expiration'' of abundance data for 
use in calculating Nmin, while WDCFA and the Atlantic SRG do 
not believe it is appropriate to use data that are 8 years old or older 
for calculating Nmin. The Atlantic SRG also notes that NMFS 
does not use data this old when assessing fish stocks. Both HLA and NSB 
commented on the proposed guidelines for adjusting older abundance 
estimates, with NSB cautioning NMFS against simply lowering 
Nmin to account for increasing uncertainty with time and HLA 
request that the draft revisions clarify that adjustments to 
Nmin can occur in both directions (increase or decrease).
    Response: We thank CBD and NSB for their support on the new 
revisions. We agree with the WDCFA and the Atlantic SRG that ideally 
NMFS would have the resources to conduct surveys of marine mammal 
stocks more frequently than every 8 years. However, having abundance 
data ``expire'' after 8 years has created significant challenges for 
management of marine mammal stocks, which was recognized but not 
addressed during the last revisions of the guidelines in 2011. Under 
the new guidelines, it is still possible for abundance estimates to be 
determined to be unreliable once they are 8 years old or older, but 
there is flexibility for making such determinations based on the 
specific situations. Thus, we believe the new guidelines are not 
inherently in conflict with the previous 8-year expiration guidance, 
rather they simply provide more flexibility to SAR authors to determine 
what is appropriate for any given stock, based on the best scientific 
information available at the time.
    On the ASRG's comment that NMFS does not use data 8 years or older 
to assess fish stocks, first, we note that this statement is not 
accurate (see Newman et al., 2015). Councils do have policies (with 
variation between regions on the details) about using assessments to 
inform management once they are older than a certain number of years 
(generally 5-10 years), and if data are out of date they may not be 
deemed acceptable for use in an assessment, but there is no blanket 
policy on this issue--it is up to the discretion of the assessment 
scientists and then the peer review panel. We believe this is 
consistent with what was proposed and is now being finalized here for 
marine mammal stock assessments. Second, there are drastic differences 
between fishes and marine mammals in their life histories, as well as 
their population dynamics given that fishes are generally R-selected 
while marine mammals are K-selected. Thus, there is a biological basis 
for different taxonomic groups necessitating differing survey 
frequencies to achieve similar levels of confidence.
    NMFS appreciates NSB's and HLA's comments regarding the assumption 
that a stock's abundance declines after survey data are 8 years or 
older. To clarify, the new guidelines do not make such an assumption. 
For example, if available, a trend analysis can be used to infer 
population increases or decreases. In the final guidelines, we have 
provided clarification that adjustments to Nmin can result 
in Nmin increasing, decreasing, or staying the same (within 
some estimate of error). However, it is true that the uncertainty 
around abundance estimates increases with time. Consequently, even 
without assuming a particular trend (increasing, decreasing, stable), 
when Nmin is calculated as some percentile of the 
distribution of possible Ns at some point in the future, it will 
necessarily decline over time, as this reflects the expanding envelope 
of uncertainty.
    Comment 7: NSB commented on the guidelines related to a stock 
status with respect to Optimum Sustainable Population (OSP). 
Specifically, NSB recommended the guidelines provide a definition of 
OSP and further information on how OSP is used in practice.
    Response: In the final guidelines, we now provide the statutory and 
regulatory definitions of OSP. In addition, we have provided additional 
information on how OSP is used in practice by referring the reader to 
Section 115 of the MMPA. However, the final guidelines do not provide 
additional guidance as to how to officially determine status relative 
to OSP, as such a determination requires rulemaking, including public 
comment and consultation with the Commission, under Section 115 of the 
MMPA.
    Comment 8: The Atlantic SRG and NRDC both request NMFS revise the 
guidelines with respect to rounding very small PBRs, specifically to 
round PBR values below 0.2 to two decimal places, noting that this may 
be more transparent and appropriate for highly endangered stocks with 
very small PBRs, such as Rice's whale.
    Response: We have revised the guidelines to direct SAR authors to 
round PBR to two decimal places when it is below one.
    Comment 9: HLA, the Atlantic SRG, and the Commission commented on 
the draft revisions related to ensuring appropriate peer review and 
quality assurance and quality control (QA/QC). The Commission and the 
Atlantic SRG both support the draft revisions related to this issue, 
while HLA requests additional clarification. Specifically, HLA requests 
NMFS clarify that QA/QC review should be performed by the relevant 
regional science center. HLA notes that if NMFS is going to use the 
SRGs to meet peer review requirements, then it must ensure that any 
such review strictly complies with the OMB Peer Review Bulletin.
    Response: NMFS thanks the Commission and the Atlantic SRG for their 
support on the new revisions. NMFS agrees with HLA's assessment that 
QA/QC review should be performed by the relevant regional science 
center and has further clarified this in the final revisions. With 
respect to complying with the OMB Peer Review Bulletin, NMFS notes that 
SRG review specifically meets all the necessary requirements. See the 
SRGs' written charge (Terms of Reference), annual recommendations to 
NMFS, and NMFS' annual responses, all found on our website (https://www.fisheries.noaa.gov/national/marine-mammal-protection/scientific-review-groups).
    Comment 10: CBD and NSB both provided comments on the draft 
revisions related to determining strategic status for stocks. CBD 
disagrees with NMFS' approach in the draft guidelines for determining 
strategic status based on MMPA 3(19)(B), preferring that NMFS conduct 
an independent evaluation or rely on a positive 90-day finding on a 
petition to list a species under the Endangered Species Act (ESA) to 
determine strategic status under MMPA 3(19)(B) rather than what is 
included in the draft revisions, which rely on a proposed ESA-listed

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status. NSB supports the draft revisions as it relates to determining 
strategic status under MMPA 3(19)(A), specifically the guidelines that 
provide for the flexibility to calculate a ``critical Nmin'' 
to inform strategic status.
    Response: NMFS thanks NSB for their support and agree that the new 
guidance on calculating a ``critical Nmin'' will be helpful 
to NMFS in determining strategic status related to MMPA 3(19)(A). As 
stated in the draft revisions, we disagree with CBD that an independent 
evaluation under the MMPA should be conducted to determine whether a 
stock is likely to be listed as threatened within the foreseeable 
future under the ESA and, thus, qualifies for strategic status under 
MMPA 3(19)(B). As noted in the draft guidelines, such an evaluation 
should be conducted under section 4 of the ESA (16 U.S.C. 1533). 
Furthermore, NMFS disagrees that a positive 90-day finding demonstrates 
that a stock should be considered ``strategic'' under section 3(19)(B) 
of the MMPA. A positive 90-day finding under the ESA simply means that 
NMFS has determined that the petition presents substantial scientific 
or commercial information indicating that the petitioned action may be 
warranted and that NMFS will conduct a review of the status of the 
species to determine whether listing under the ESA is warranted. It in 
no way indicates that a species is ``likely'' to be listed.
    Comment 11: WDCFA expressed concern with how long it takes to 
incorporate new information, specifically abundance data, into SARs, 
particularly for stocks along the U.S. West Coast.
    Response: NMFS acknowledges the concern and agrees that ideally the 
SARs would contain more recent information. However, existing resources 
and the necessary data processing, analysis, and peer review do not 
allow for more expedited updates at this time.

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    Dated: February 2, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-02550 Filed 2-6-23; 8:45 am]
BILLING CODE 3510-22-P