[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Notices]
[Pages 7957-7967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02551]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC559]


Process for Distinguishing Serious From Non-Serious Injury of 
Marine Mammals; Revisions to Procedural Directive

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

ACTION: Notice of availability; response to comments.

-----------------------------------------------------------------------

SUMMARY: The National Marine Fisheries Service (NMFS) announces final 
revisions to the Process for Distinguishing Serious from Non-Serious 
Injury of Marine Mammals. NMFS has incorporated public comments into 
the final Procedural Directive and provides responses to public 
comments.

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

ADDRESSES: Electronic copies of the Process for Distinguishing Serious 
from Non-Serious Injury of Marine Mammals (NMFS PD 02-03801) are 
available at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0043 or 
https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.

FOR FURTHER INFORMATION CONTACT: Jaclyn Taylor, NMFS Office of 
Protected Resources, (301) 427-8402, [email protected]; or Phinn 
Onens, NMFS Office of Protected Resources, (301) 427-8402, 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) 
requires NMFS to estimate the annual levels of human-caused mortality 
and serious injury (M/SI) of marine mammal stocks (Section 117) and to 
classify

[[Page 7958]]

commercial fisheries based on their level of incidental M/SI of marine 
mammals (Section 118). In 2012, NMFS finalized national guidance and 
criteria, comprising a Policy Directive (02-038) and associated 
Procedural Directive (02-038-01; 77 FR 3233, January 23, 2012), for 
distinguishing serious from non-serious injuries of marine mammals. 
Both directives are available at: https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives. The 
Policy Directive provides further guidance on NMFS' regulatory 
definition of ``serious injury'' (i.e., ``any injury that will likely 
result in mortality''; 50 CFR 229.2), and the Procedural Directive 
describes the annual process for making and documenting injury 
determinations. The annual process includes guidance for which NMFS 
personnel make the annual injury determinations; what information 
should be used in making injury determinations; information exchange 
between NMFS Science Centers; NMFS Regional Office and Scientific 
Review Group review of the injury determinations; injury determination 
report preparation and clearance; and inclusion of injury 
determinations in the marine mammal stock assessment reports and marine 
mammal conservation management regimes (e.g., MMPA List of Fisheries, 
Take Reduction Teams, Take Reduction Plans, and vessel speed 
regulations).
    In addition, the NMFS Policy Directive specifies that NMFS should 
review both the Policy and Procedural Directives at least once every 5 
years or when new information becomes available to determine whether 
any revisions to the Directives are warranted. The review must be based 
on the best scientific information available, input from the MMPA 
Scientific Review Groups, as appropriate, and experience gained in 
implementing the process and criteria. If significant revisions are 
indicated during the review, NMFS will consider making these available 
for public review and comment prior to acceptance.
    In 2017, NMFS initiated a review of the Policy and Procedural 
Directives and invited subject matter experts from within NMFS to 
identify any necessary revisions based upon the best scientific 
information available. The review suggested that, in general, the 
Procedural Directive is meeting its objectives of providing a 
consistent, transparent, and systematic process for assessing serious 
from non-serious injuries of marine mammals. However, there was enough 
substantive feedback to warrant revising the Procedural Directive.
    On July 20, 2022, NMFS published proposed revisions to the 
Procedural Directive for a 30-day public comment period (87 FR 43247). 
Proposed revisions included clarifying the serious injury determination 
process and reporting procedures; improving the overall readability of 
the Procedural Directive; refining pinniped and small cetacean injury 
categories and criteria; and providing guidance on capture myopathy in 
cetaceans, which is included as an appendix to the Procedural 
Directive. For large whales, NMFS is currently developing a statistical 
approach for injury determinations using a more recent and larger 
dataset that builds on NMFS' implementation of the Procedural Directive 
since its inception. Once the new methodology is finalized, NMFS will 
review the Procedural Directive to determine whether revisions are 
warranted.

Comments and Responses

    NMFS received comments from the Marine Mammal Commission (the 
Commission), the Atlantic Scientific Review Group (Atlantic SRG), 
International Fund for Animal Welfare (IFAW), a joint letter from non-
governmental environmental organizations (The Center for Biological 
Diversity, Conservation Law Foundation and Defenders of Wildlife (CBD 
et al.)), Western Pacific Regional Fishery Management Council (WPRFMC), 
representatives from the fishing industry (Blue Water Fishermen's 
Association (BWFA) and Hawaii Longline Association (HLA)), and a joint 
letter from members of the public. Comments received covered several 
topics, including: the national review process, accounting for 
sublethal injuries and cases where the severity of an injury ``Cannot 
Be Determined,'' national data and expertise, taxa-specific injury 
criteria, and proposed revisions to the small cetacean injury criteria. 
NMFS also received some minor editorial comments, which were 
incorporated throughout the Procedural Directive. All comments received 
are available on regulations.gov at: https://www.regulations.gov/docket/NOAA-NMFS-2022-0043/comments. All substantive comments are 
addressed below. Comments outside the scope of the revisions to the 
Procedural Directive are not responded to in this notice.

General Comments

    Comment 1: HLA is discouraged that NMFS only proposed minor edits 
to the ``Process for Injury Determination Distinguishing Serious from 
Non-Serious Injury of Marine Mammals.'' They assert NMFS did not 
conduct a publicly informed, substantive review and revision of the 
Procedural Directive. HLA encourages NMFS to conduct a formal review 
process and include direct engagement with the False Killer Whale Take 
Reduction Team (FKWTRT), WPRFMC, and Pacific Scientific Review Group.
    Response: NMFS disagrees. The ``Process for Injury Determination 
Distinguishing Serious from Non-Serious Injury of Marine Mammals'' 
states that at least once every 5 years or when new information becomes 
available, NMFS will review the Procedural Directive to determine 
whether revisions are warranted based upon the best scientific 
information available, input from the MMPA Scientific Review Groups, as 
appropriate, and experience gained in implementing the process and 
criteria. It further states that, if significant revisions are 
indicated during the review, NMFS will consider making these available 
for public review and comment prior to acceptance. In 2017, NMFS 
initiated a review of the Procedural Directive and invited subject 
matter experts from within NMFS to identify necessary revisions based 
upon the best scientific information available, Scientific Review Group 
input, and experience implementing the Procedural Directive. Through 
the review process, several topics were identified by an internal NMFS 
Working Group. To inform these proposed revisions, NMFS conducted 
literature reviews, sought input from several researchers with long-
term longitudinal data sets, and solicited individual expert opinion 
from experts familiar with small cetacean injuries (including 
anatomists and veterinarians). Based on this review, NMFS determined 
revisions to the Procedural Directive were warranted. NMFS conducted 
several informational webinars for Scientific Review Groups, Marine 
Mammal Commission, U.S. Fish and Wildlife Service (USFWS), Take 
Reduction Teams (including the FKWTRT and Pelagic Longline TRT), and 
the Hawaii Longline Association, and presented an update on revisions 
to the WPRFMC at their June 2022 meeting. While this Procedural 
Directive is not subject to the formal rulemaking process, in the 
interest of transparency and inclusion, NMFS solicited public comments 
for a period of 30 days (87 FR 43247, July 20, 2022).
    Comment 2: WPRFMC is disappointed NMFS did not convene a workshop 
to review and revise the ``Process for Injury Determination 
Distinguishing Serious from Non-

[[Page 7959]]

Serious Injury of Marine Mammals.'' They request NMFS hold a virtual 
workshop with FKWTRT, Fishery Management Councils, and subject matter 
experts to review the best scientific information available and discuss 
revisions to the Procedural Directive.
    Additionally, WPRFMC requested that NMFS convene an expert working 
group to develop Serious Injury Determination guidance specific for 
false killer whales in the Hawaii deep-set longline fishery. This false 
killer whale specific guidance should consider gear characteristics, 
handling methods, and information on interaction outcomes, and should 
review the best available scientific information on odontocete fishery 
interactions and gear ingestion.
    Response: NMFS initiated a review of the ``Process for Injury 
Determination Distinguishing Serious from Non-Serious Injury of Marine 
Mammals'' in 2017. NMFS conducted a formal, exhaustive review of the 
best scientific information available, including false killer whale 
interactions, input from the MMPA Scientific Review Groups, as 
appropriate, and experience gained in implementing the process and 
criteria. Despite the time since the 2007 Serious Injury Technical 
Workshop, no new significant data were identified for false killer 
whale interactions. As a result, a formal workshop was unnecessary and 
further not required as part of the Procedural Directive.
    This Procedural Directive is not subject to the formal rulemaking 
process; however, in the interest of transparency and inclusion, NMFS 
made the proposed revisions available to the public and solicited 
comments (87 FR 43247, July 20, 2022) prior to finalizing the 
revisions.
    Comment 3: The Commission notes that the ``Process for Injury 
Determination Distinguishing Serious from Non-Serious Injury of Marine 
Mammals'' should be reviewed every 5 years or when new information 
becomes available that warrants more frequent review. The Commission 
states NMFS initiated review of the Procedural Directive in 2017, which 
resulted in the current proposed revisions. The Commission recommends 
that NMFS conduct more timely reviews of both the Policy and the 
Procedural directives.
    Response: NMFS acknowledges this comment and notes that the 
``Process for Injury Determination Distinguishing Serious from Non-
Serious Injury of Marine Mammals'' should be reviewed (not necessarily 
revised) at least once every 5 years or when new information becomes 
available.
    Comment 4: The Atlantic SRG and CBD et al. encourage NMFS to work 
with USFWS to develop serious injury guidelines for species under USFWS 
jurisdiction.
    Response: NMFS thanks the Atlantic SRG and CBD et al. for their 
comments. The ``Process for Injury Determination Distinguishing Serious 
from Non-Serious Injury of Marine Mammals'' only applies to marine 
mammal species under NMFS' jurisdiction. At this time, NMFS is not 
assisting USFWS in developing serious injury guidelines for species 
under USFWS' jurisdiction, though the two agencies discuss and 
coordinate on marine mammal stock assessment issues.
    Comment 5: NMFS received several comments on the definition of 
``serious injury'' and counting sublethal injuries against Potential 
Biological Removal (PBR). IFAW and members of the public recommend NMFS 
revise the definition of ``serious injury.'' They note that the current 
definition of ``serious injury'' (an injury ``more likely than not'' to 
result in mortality, or any injury that presents a greater than 50 
percent chance of death) is too restrictive. They assert that NMFS is 
missing a large number of injuries by not including injuries that are 
sublethal to the animal in the definition of ``serious injury.'' These 
sublethal injuries can have effects on energetics, reproductive rates, 
and overall population health. It was recommended that the term 
``serious injury'' be revised to ``lethal injury.''
    The Atlantic SRG, CBD et al., and members of the public also 
commented that NMFS should count sublethal injuries against PBR. The 
commenters note that sublethal entanglement and vessel strike injuries 
can have long term energetic and population impacts. They state that 
the practice of not counting sublethal injuries against PBR results in 
under-representation of population effects, which in turn affect 
conservation management and population recovery. They recommend that 
NMFS prorate sublethal injuries against PBR based on documented 
survived injuries.
    Response: NMFS appreciates the comments and recommendations to 
further consider sublethal injuries and the impacts to marine mammals 
in stock assessment reports (SARs). The PBR management scheme is based 
on basic population dynamics. Per the MMPA, PBR is defined as: ``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.'' Importantly, in 
this definition, PBR only includes removals from the population (not 
including natural mortalities), which is critical to the assumptions of 
the underlying PBR framework. Furthermore, in comparing human impacts 
to PBR, the MMPA directs NMFS to specifically consider mortalities and 
serious injuries.
    While the MMPA uses the term ``serious injury,'' it does not 
provide guidance qualifying the level of severity for injuries that are 
considered serious. Therefore, to implement the MMPA, NMFS defined 
serious injury in its regulations (50 CFR 229.2) as ``any injury that 
will likely result in mortality.'' This definition is consistent with 
the PBR framework's focus on removals (i.e., mortality) from the 
population. To further clarify NMFS' interpretation of this regulatory 
definition, NMFS developed the policy ``Process for Distinguishing 
Serious from Non-Serious Injury of Marine Mammals'' (NMFS-PD 02-238). 
In this policy, which is the broader policy under which the procedure 
under revision here (NMFS-PD 02-238-01) exists, NMFS further clarifies 
its interpretation of the regulatory definition of serious injury as 
any injury that is ``more likely than not'' to result in mortality, or 
any injury that presents a greater than 50 percent chance of death to a 
marine mammal. Again, this is consistent with the PBR management 
scheme's focus on removals (i.e., mortality or death) from the 
population.
    Given the statutory text of the MMPA and NMFS' regulations and 
policy consistent with the statutory text, it is not appropriate to 
count sublethal injuries that are not likely to result in an animal 
being removed (i.e., die) from the population when making comparisons 
to PBR. Doing so would violate the underlying assumptions of the PBR 
framework and the MMPA. However, such sublethal impacts can be 
considered and incorporated into marine mammal SARs as appropriate. 
More specifically, Section 117 of the MMPA requires that, for strategic 
stocks, SARs include information on ``other factors that may be causing 
a decline or impeding recovery of the stock, including effects on 
marine mammal habitat and prey.'' Currently, NMFS includes information 
on such ``other factors'' as appropriate in the SARs, often in a 
``Habitat Issues'' or ``Habitat Concerns'' section. In addition, NMFS 
considers and tracks sublethal injuries for the purposes of informing 
the MMPA List of Fisheries, stocks to consider in Take Reduction Plans, 
and Unusual Mortality Events. NMFS will continue to consider sublethal 
injuries in these ways and considered the

[[Page 7960]]

comments and recommendations provided here in finalizing revisions to 
its related procedure ``Guidelines for Preparing Stock Assessment 
Reports Pursuant to the Marine Mammal Protection Act'' (NMFS PD 02-204-
01), where these comments are perhaps more applicable.
    Comment 6: The Atlantic SRG comments that observed M/SI are 
underestimated for large whales. They ask if NMFS plans to develop 
protocols for estimating total mortality for large whale stocks.
    Response: NMFS appreciates the Atlantic SRG's concern that M/SI is 
often underestimated, particularly for large whales. Recognizing this 
issue, when data are available, NMFS has attempted to estimate such 
unobserved or cryptic M/SI and include these along with documented 
mortality, to provide more accurate estimates of total mortality (e.g., 
North Atlantic right whale SAR, among others). To more broadly address 
this issue, which is not just applicable to large whales, NMFS proposed 
revisions to its related procedure ``Guidelines for Preparing Stock 
Assessment Reports Pursuant to the Marine Mammal Protection Act'' (NMFS 
PD 02-204-01) (87 FR 52368, August 25, 2022), which are now being 
finalized. Specifically, a new section was proposed to be added to that 
procedure that (1) summarizes the concept of undetected mortality and 
the state of the science as it relates to estimating undetected 
mortality in marine mammals and its inclusion in SARs; (2) provides 
specific guidance directing SAR authors to correct human-caused M/SI 
estimates for undetected mortality using the best scientific 
information available, when possible, and includes several examples of 
how this may be accomplished; and (3) provides guidance on using data 
from other stocks and how to appropriately deal with apportioning 
undetected mortality by cause, various biases that may exist, and 
multiple estimates of human-caused M/SI. We are hopeful that these 
revisions address the Atlantic SRG's comment with respect to how NMFS 
plans to address this issue more broadly, specifically in SARs, which 
are ultimately used to inform management.
    Comment 7: NMFS received several comments on the overall process 
for documenting M/SI in marine mammals. Members of the public commented 
that NMFS is treating large whale, small cetacean, and pinniped 
injuries differently and thus, not using a consistent process for 
determining serious injury. They note that live entangled cetaceans are 
documented and reported differently compared to pinnipeds. They 
specifically note that pinniped entanglements are not incorporated into 
the SARs.
    The Commission comments that they remain concerned about the under-
reporting of human-caused injuries to pinnipeds in the northeast, 
particularly the western North Atlantic stock of gray seals. They state 
that documented gray seal injuries are not summarized in the SAR, 
injury determinations are not being made, and serious injuries from 
entanglements are not included in the estimates of total human-caused 
M/SI in the SAR. In contrast, the Commission notes that pinnipeds with 
constricting entanglements are accounted for in Alaska and Pacific 
injury determination reports and included in the total human-caused M/
SI estimates in the SARs. The Commission recommends that NMFS Northeast 
Fisheries Science Center and Greater Atlantic Regional Fisheries Office 
collaborate with their other NMFS science centers and regional offices 
to ensure that pinniped entanglements are being documented, assessed, 
and reported consistently nationwide, in accordance with the ``Process 
for Injury Determination Distinguishing Serious from Non-Serious Injury 
of Marine Mammals.''
    Response: NMFS agrees that serious injury determinations need to be 
consistent among taxa. Nevertheless, there are differences in the 
different taxa's interactions with humans, how such data are collected, 
and how such interactions may impact the taxa in question. Given these 
differences, NMFS has developed criteria that will, to the extent 
possible, result in consistent determinations across taxa, while 
recognizing the different types of interactions, data available to 
assess injury severity, and ultimate effects to the specific marine 
mammal injured.
    The Commission suggests there is an inconsistency in how NMFS is 
making serious injury determinations within a single taxa, specifically 
pinnipeds. NMFS recognizes the concern and is working on efforts to 
improve consistency across pinniped stocks in making serious injury 
determinations. As the Commission's comments pertain to the consistent 
implementation of the policy, not the draft revisions per se, we will 
consider how best to improve consistency going forward and welcome 
further discussion with the Commission on the specific issue of serious 
injuries of the western North Atlantic stock of gray seals.
    Comment 8: IFAW recommends NMFS include in the ``Process for Injury 
Determination Distinguishing Serious from Non-Serious Injury of Marine 
Mammals'' an annual request to all stranding network partners to report 
all strandings to NMFS that meet the serious injury criteria. They note 
strandings that are not assigned a stranding case number (e.g., 
reported and photographed but not found when responder arrives) are not 
accounted for in the injury determination process.
    Response: All National Marine Mammal Stranding Network members are 
required to submit basic Level A data on all strandings to NMFS 
including: date and location, species, condition of animal, sex of 
animal, length, disposition of the animal and tissues or specimens, and 
any personal observations. Network members complete the Marine Mammal 
Stranding Report--Level A Form (NOAA Form 89-864, OMB No. 0648-0178) as 
part of their response and forward the form to NMFS in a timely manner, 
as specified in the terms of the Stranding Agreement. In addition, as 
of April 1, 2020, Network members must complete the Human Interaction 
Form (NOAA Form 89-864, OMB No. 0648-0178) for all confirmed live, 
fresh dead, and moderately decomposed strandings. However, NMFS 
encourages the use of the Human Interaction Form for all cases. 
``Confirmed by public'' is also now an option on the Level A form. Any 
animals photographed by the public and reported to the stranding 
network should get a Level A form and would be included in the data 
analyzed if the injury is part of the report from the public such as 
injuries visible in photographs.
    Comment 9: Members of the public commented that stranding data are 
being underutilized in reviewing and revising the ``Process for Injury 
Determination Distinguishing Serious from Non-Serious Injury of Marine 
Mammals.'' They state that reviewing stranding data for types and 
severities of injuries, body condition, and factors contributing to 
strandings can provide meaningful insights into long-term outcomes of 
injuries, especially when there is a lack of long-term longitudinal 
data sets.
    Response: NMFS reviews and analyzes stranding data during the 
serious injury determination process. As noted in response to comment 
#8, the National stranding network submits level A and human 
interaction data to NMFS. Implementation of Human Interaction Form 
(NOAA Form 89-864, OMB No. 0648-0178) provides additional data to be 
used in the serious injury determination process. These forms are 
reviewed and reissued every 3 years. Information beyond what is 
captured on the forms that are part of the Level A Data Collection are 
not

[[Page 7961]]

submitted to NMFS in a standardized manner and are generally not 
available to be analyzed. In addition, stranding data that was used 
during the serious injury determination process was also considered 
when reviewing and revising this Procedural Directive.
    Comment 10: Members of the public commented that the ``Process for 
Injury Determination Distinguishing Serious from Non-Serious Injury of 
Marine Mammals'' often refers to a lack of resight data for small 
cetaceans and pinnipeds. They note that sightings of free-swimming 
entangled pinnipeds are not entered into the National Stranding 
Database because they are not considered strandings. However, the 
sighting information is often maintained with local stranding networks. 
For example, the 2019 bycatch estimates for gray seals in the Northeast 
sink gillnet fishery alone is 2,019 gray seals (Precoda et al. 2022). 
This estimate is based solely on observer reports. However, using the 
estimated entanglement prevalence calculated through unmanned aerial 
vehicle surveys and the minimum population estimate for gray seals in 
the U.S., Martins et al. (2019) reported an additional 192-857 gray 
seals living with entanglements. They assert that a lack of curation 
and data analysis is not the same as lack of data. Members of the 
public recommend NMFS develop a standardized process for curating data 
from free-swimming entangled small cetaceans and pinnipeds.
    Response: NMFS recognizes that these data may be collected by 
various groups, but as pointed out by the commenters, they are 
currently maintained by local organizations and are not submitted to 
NMFS. NMFS remains concerned that there is often limited ability to 
determine the identity of an individually entangled animal, 
particularly for pinniped species with few external unique features 
(e.g., sea lions and elephant seals). This limits our ability to use 
this type of information to quantify the impacts of entanglements or 
follow individual animals over time. NMFS is open to continue to 
explore this issue with external partners, including stranding network 
organizations.
    Comment 11: The Commission recommends that NMFS integrate all 
marine mammal mortality and injury data into one centralized database. 
They acknowledge the amount of work NMFS does to compile and analyze 
mortality and injury data for injury determinations, SARs, and the List 
of Fisheries and note that a centralized database will help NMFS 
understand both short-term and long-term impacts of human-caused M/SI.
    Response: NMFS thanks the Commission for their recommendation. NMFS 
agrees that there is value in centralizing these data. We are working 
to develop the capabilities to centralize marine mammal SAR, M/SI, and 
List of Fisheries data into a single database.
    Comment 12: NMFS received several comments from IFAW and members of 
the public on the level of expertise needed to make injury 
determinations. They raise concerns about the effectiveness of the 
serious injury determination process if NMFS staff do not have adequate 
training in marine mammal anatomy, biology, physiology, health, and 
stranding response. They also note the importance of having the 
appropriate expertise to be able to appropriately apply the serious 
injury criteria and identify the cause of injury. They recommend that 
NMFS consult with outside subject matter experts including 
veterinarians and marine mammal health experts when making serious 
injury determinations. They also recommend clarifying sections 
throughout the Procedural Directive regarding when outside experts may 
be consulted.
    Response: NMFS appreciates the concerns about serious injury 
determinations not having adequate review, particularly by those with 
expertise in marine mammal anatomy, biology, physiology, health, and 
stranding response. However, there is nothing in the procedure (as it 
was originally or in the draft revisions) that precludes NMFS from 
consulting with additional experts (external and internal) as needed 
when making serious injury determinations. In fact, this occurs fairly 
often in practice. For example, if there is uncertainty about a 
stranding event, NMFS staff will often reach out to the external 
partner that was actually at the stranding to get more information. 
Further, when the initial procedure and injury criteria were developed, 
NMFS consulted experts in these aforementioned fields. Therefore, 
expertise is built into the criteria themselves. In addition, 
additional expert review is required as part of NMFS existing process 
of cross Science Center review. All injury determinations, by way of 
the annual SAR process, are also subject to review by the Scientific 
Review Groups, many members of whom are explicitly appointed due to 
their expertise in marine mammal anatomy, biology, physiology, health, 
and stranding response. Finally, SARs are subject to further review by 
the public, which can include, and often does, review of the injury 
determinations and resulting estimates included in the SARs. To help 
clarify current processes, NMFS has revised the procedure to include a 
sentence providing guidance to NMFS staff to consult with external 
experts, as appropriate.
    Comment 13: IFAW and members of the public express concern that 
fishery observers do not have the expertise and training to accurately 
identify a serious injury. They recommend NMFS provide adequate 
training for observers to identify serious injuries and note that this 
training should be overseen by veterinarians. They also recommend that 
observers cross-train with stranding network members. They note 
stranding network personnel are trained to understand serious injuries 
and cross-training could provide more accurate injury data collection. 
Further, they note that data from stranding programs should contribute 
equally, if not more than, observer programs for these determinations.
    Response: Fishery observers do not identify or determine serious 
injuries. Fishery observers collect data on the bycatch event, such as 
the location and configuration of hookings/entanglements, the amount 
and type of trailing gear, and behavior of the animal among other 
details. Using these data, NMFS experts determine whether an injury is 
serious or non-serious. NMFS disagrees that observers should make these 
injury determinations.
    Comment 14: IFAW comments that the injury determination process 
described in Section V (Accounting for Cases where the Severity of an 
Injury Cannot Be Determined) can lead to inaccurate injury 
determinations if staff do not have sufficient background in anatomy 
and physiology. Members of the public further recommended that NMFS use 
a scaled approach similar to epidemiology case definitions for ``Cannot 
Be Determined'' cases.
    Response: NMFS appreciates the concerns and chance to clarify when 
and how ``Cannot Be Determined'' cases are made. We agree that it is 
important for NMFS Science Center staff responsible for making injury 
determinations to have either sufficient background in anatomy and 
physiology or the ability to consult with external experts who have 
such expertise, as needed. To that end, we have modified the final 
Procedural Directive to clarify when such additional expertise should 
be sought. However, this principle applies to all injury determination 
cases and is not specific to those cases where the injury severity 
remains ``Cannot Be Determined.'' To clarify, ``Cannot Be Determined'' 
cases are injuries for

[[Page 7962]]

which NMFS is not able to determine the injury severity based on the 
available information and following consultation with additional 
experts. NMFS appreciates the recommendation to use a scaled approach 
similar to epidemiology for ``Cannot Be Determined'' cases, and will 
consider such an approach in future revisions.

Large Whale Injury Criteria

    Comment 15: The Atlantic SRG recommends that NMFS provide time at 
the 2023 Scientific Review Group meeting to discuss the implementation 
of the random forest model-based proration of M/SI.
    Response: As noted above, NMFS is developing a statistical approach 
(random forest model) for large whale injury determinations; and, once 
the new methodology is finalized, NMFS will review the Procedural 
Directive to determine whether revisions are warranted. A paper 
describing the model was published in 2022 and relied upon right and 
humpback whale data (Carretta and Henry 2022). Since that time, the 
algorithms used in that paper were updated with additional data (blue, 
fin, and gray whale injury cases) and published as an R-package 
SeriousInjury, available at Github (https://github.com/JimCarretta/SeriousInjury). We encourage managers and researchers to download and 
test the package using the data bundled with SeriousInjury or with 
their own datasets. NMFS will provide a tutorial to the SRGs during 
future meetings as requested.
    Comment 16: IFAW and the Commission support and encourage NMFS to 
revise the large whale injury determination section in the ``Process 
for Injury Determination Distinguishing Serious from Non-Serious Injury 
of Marine Mammals'' in the future to incorporate the recent publication 
by Carretta and Henry (2022). The Commission agrees that NMFS should 
delete the current large whale injury section of the Procedural 
Directive and recommends NMFS recalculate the prorated values for the 
large whale injury categories based on the new statistical method to 
assess large whale injury events (Carretta and Henry 2022).
    Response: NMFS appreciates the comment. Once the new methodology is 
finalized, NMFS will review the Procedural Directive to determine 
whether revisions are warranted.
    Comment 17: NMFS received comments from the Commission, CBD et al., 
IFAW, and members of the public recommending NMFS update the vessel 
size for the large whale vessel strike injury categories (L6a, L6b, 
L7a, and L7b) from 65 feet to 35 feet (19.8 meters to 10.7 meters) in 
length. They note this change in vessel size is consistent with NMFS' 
proposed rule to amend the North Atlantic right whale vessel strike 
reduction rule (87 FR 46921, August 1, 2022).
    Response: NMFS issued a proposed rule to amend the North Atlantic 
right whale vessel speed regulations to further reduce the likelihood 
of lethal vessel collisions on August 1, 2022 (87 FR 46921). The 
changes would broaden the spatial boundaries and timing of seasonal 
speed restriction areas along the U.S. East Coast and expand mandatory 
speed restrictions of 10 knots or less to include most vessels 35 to 65 
feet (10.7 to 19.8 meters) in length. Once a final rule is published, 
NMFS will review the Procedural Directive to determine whether 
revisions are warranted.
    Comment 18: Members of the public comment that a proration of 0.14 
for the large whale injury category L7b (Vessel smaller in size than 
whale or vessel <65 feet (<19.8 meters) and speed unknown) is not 
sufficient. They note that vessels in the 35-65 feet (10.7-19.8 meters) 
length range have propellers between 16-28 inches (40.6-71.1 
centimeters) in diameter and propeller radii of 8-14 inches (20.3-35.6 
centimeters), which can cause wounds of the same depth. They state that 
head injuries of that depth can be fatal and the only locations on the 
body where such propeller injuries might be considered benign are along 
the extremities or over the thickest part of the epaxial muscle.
    Response: As noted in response to comment #17, NMFS will review the 
Procedural Directive to determine whether revisions are warranted once 
a final rule amending the North Atlantic right whale vessel speed 
regulations is published.
    Comment 19: NMFS received several comments from IFAW and members of 
the public regarding the existing large whale criteria and categories. 
They suggest that injuries consistent with injury criterion L11 should 
be defined as a serious injury, rather than be prorated, as NMFS states 
there is a greater than 50 percent chance of mortality. Further, they 
express concern that large whale experts participating in the 2007 
Serious Injury Technical Workshop indicated that an external fishing 
hook of any size on any part of a large cetacean is likely a non-
serious injury. Other comments pertaining to the large whale injury 
categories include a suggestion to add an additional injury category 
``partially severed flukes transecting midline'' to more closely 
reflect the small cetacean injury categories. They also recommend 
additional clarification to some injury categories.
    Response: For large whales, NMFS recently developed a statistical 
approach using a more recent and larger dataset that builds on NMFS' 
implementation of the ``Process for Injury Determination Distinguishing 
Serious from Non-Serious Injury of Marine Mammals'' (Carretta and Henry 
2022). NMFS will review the Procedural Directive to determine whether 
revisions are warranted once the new methodology is finalized. For this 
current review and revision process, NMFS only made minor clarifying 
changes to the large whale injury criteria section and will consider 
these recommendations in a future review of the Procedural Directive.
    Comment 20: Members of the public request clarification regarding 
if killer whales are included in the large whale injury categories as 
they feel the species is better aligned with the large whale injury 
categories instead of the small cetacean injury categories.
    Response: The serious injury determination process for large whales 
is intended for evaluating injury events involving mysticetes and sperm 
whales. The serious injury determination process for small cetaceans 
evaluates injuries for all odontocetes except sperm whales--including 
killer whales.
    Comment 21: The Atlantic SRG and CBD et al. stress that the 
Procedural Directive should not revise (downgrade) a serious injury to 
a non-serious injury if a subsequent sighting of the animal shows it is 
gear-free and in good body condition. They state that: (1) 
entanglements are under-reported and underestimated; (2) entanglements 
make marine mammals--including pinnipeds--more vulnerable to other 
sources of mortality, including disease; and (3) injuries to energetic 
and stress hormones cannot be observed yet can have individual- and 
population-level impacts. The Atlantic SRG inquired if a new injury 
category could be added to Table 1 in the Procedural Directive (and 
also included in Table 1 of the U.S. Atlantic and Gulf of Mexico SAR) 
for when an injury is downgraded from a serious injury to non-serious 
but could still have unknown sublethal effects.
    Response: Animals determined to be seriously injured (or dead) are 
counted against PBR as they are, more likely than not, removed from the 
population. Those determined to be non-seriously injured are still 
considered to be contributing to the population. Subsequent sightings 
of animals can provide information regarding ``known'' outcomes for 
documented injuries.

[[Page 7963]]

These known outcomes feed the probability calculations of the 
likelihood of serious injury. The details for all injury events, both 
serious and non-serious, are captured in annual Mortality and Serious 
Injury reports. Events where the outcome has differed from the 
procedural guidance are noted in these reports. Please also see 
response to comment #5, which addresses the issue of sublethal injuries 
more broadly.

Small Cetacean Injury Criteria

    Comment 22: HLA comments that in NMFS' 1995 MMPA regulations (60 FR 
45086, August 30, 1995), NMFS stated that serious injury guidelines 
would be developed on a ``fishery-by-fishery, case-by-case basis'' to 
ensure determinations are accurate and tailored to specific fisheries 
that interact with specific marine mammals. HLA states that the 
``Process for Injury Determination Distinguishing Serious from Non-
Serious Injury of Marine Mammals'' does not apply on a fishery-by 
fishery, case-by-case basis. False killer whale injuries in longline 
gear are determined by the small cetacean criteria, which are primarily 
based on a series of bottlenose dolphin studies in the Atlantic. HLA 
argues that, as a result, the Procedural Directive does not allow for 
accurate determinations of whether certain types of injuries will cause 
false killer whales in Hawaii to be more likely than not to die.
    Response: NMFS clarifies that when the Agency promulgated 
regulations in 1995 for MMPA section 117, the Agency explained that 
when developing guidelines for what constitutes a serious injury, 
``NMFS expects that this will be done on a fishery-by-fishery, case-by-
case basis'' (60 FR at 45093, August 30, 1995). In general, there are 
very limited data on small cetacean injury outcomes. At the time the 
Procedural Directive was developed, using data from bottlenose dolphins 
as proxies represented the best scientific information available for 
known outcomes of hookings and hook ingestion. Without species-specific 
information, experts and NMFS considered it appropriate to apply 
conclusions about bottlenose dolphins to all small cetacean species. 
During the review of the Procedural Directive, NMFS staff considered 
whether there was sufficient information to propose changes to small 
cetacean injury criteria, including the possibility of developing 
species-specific (or false killer whale-specific) criteria but 
determined there was not.
    When considering fishing-related (and other) injuries to small 
cetaceans, many of the injury categories identified in this Procedural 
Directive are case specific. For injuries incidental to fishing, the 
factors surrounding the injury event will be considered, including, but 
not limited to, the species and the fishery (e.g., type of gear, 
fishing techniques). For fishing-related injury categories assigned as 
serious injuries, the injury is considered to be serious regardless of 
the species or fishery. Lastly, the list of factors for consideration 
in small cetacean case-specific injury categories is not meant to be 
exhaustive and, as stated in Section II of the Procedural Directive, 
NMFS' determination staff can use additional available information for 
data-rich situations in lieu of the criteria laid out in section VIII.
    Comment 23: HLA asserts that this Procedural Directive as applied 
to false killer whales is inconsistent with NMFS' regulations and its 
intent in implementing them. They note that NMFS promulgated regulatory 
definitions for the terms ``injury'' and ``serious injury'' and state 
that the regulatory definition of ``injury'' shows NMFS recognized that 
an entanglement in fishing gear is not an ``injury'' at all (much less 
a ``serious injury'') unless it is accompanied by other signs of 
injury. They also note the management implications of NMFS' 
interpretation of serious injury, citing the Southern Exclusion Zone 
closure provisions in the False Killer Whale Take Reduction Plan 
(FKWTRP).
    Response: The regulatory definition of an injury is ``a wound or 
other physical harm.'' The definition also includes various signs of 
injury such as: visible blood flow, noticeable swelling or hemorrhage, 
laceration, and inability to swim or dive upon release from fishing 
gear, or signs of equilibrium imbalance. The definition further states 
``any animal that ingests fishing gear, or any animal that is released 
with fishing gear entangling, trailing or perforating any part of the 
body will be considered injured regardless of the absence of any wound 
or other evidence of an injury'' (50 CFR 229.2). The Procedural 
Directive is consistent with the regulatory definition of injury 
because we consider an animal with gear entanglements that is released 
with trailing gear to have an injury. The Procedural Directive is also 
consistent with the regulatory definition of serious injury (i.e., ``an 
injury that will likely result in mortality'') because it considers an 
injury ``serious'' to be an injury that presents a greater than 50 
percent chance of death to a marine mammal. Thus, the definition does 
not require that all such injured animals actually die, but rather 
requires only that the animal is more likely than not to die.
    NMFS' Procedural Directive includes small cetacean injury criteria 
that could result in a non-serious injury even with gear remaining on 
an animal. For example, if a hook was attached somewhere other than the 
head with trailing gear that did not pose a specific risk (injury 
criterion S5d), then that injury may be considered non-serious if other 
case-specific considerations were not applicable (e.g., capture 
myopathy). Management implications of a particular injury determination 
are outside the scope of this Procedural Directive, which provides a 
standardized framework for differentiating serious from non-serious 
injuries.
    Comment 24: Both HLA and WPRFMC comment on the need to develop 
guidance, provisions, and criteria specific to false killer whale 
interactions in the Hawaii deep-set longline fishery. HLA recommends 
criteria be developed that specify a false killer whale released with a 
hook in the head or mouth and 2 feet (0.6 meter) or less of trailing 
gear attached has a non-serious injury. Secondly, WPRFMC appreciates 
the consideration of hook type in the proposed revisions for injury 
criterion S5b, but questions how the other factors would be interpreted 
and applied when making S5b injury determinations. Further, WPRFMC 
recommended in 2018 and 2019 that NMFS support additional research to 
obtain scientific information on species-specific post-hooking 
mortality to inform revision of the Procedural Directive. They also 
recommended NMFS consider a prorated approach for SI determinations for 
false killer whales. WPRFMC requests NMFS review all available 
literature on odontocete fishery interaction and gear ingestion, as 
well as relevant stranding data and necropsy data from Hawaii and 
worldwide to evaluate the risk of gear ingestion in false killer 
whales.
    Response: As stated in response to comment #22, there are 
insufficient data to inform criteria specific for false killer whales, 
including for head/mouth hookings with 2 feet (0.6 meter) or less of 
trailing gear. The best scientific information available indicates that 
a small cetacean hooked in the head is more likely than not to die. Two 
feet of trailing line is enough to be ingested and wrap around the 
animal's goosebeak, which data indicate generally leads to death in 
bottlenose dolphins (Wells et al. 2008). A number of factors, including 
hook type, will be considered collectively in the lip-hooking (S5b) 
confirmation process. More factors than hook type are

[[Page 7964]]

necessary to consider because a visible hook of the same type (and 
size) could represent a jaw or lip hooking depending on the size of the 
animal or where along the mouthline the hooking occurs. These factors 
are and will continue to be carefully considered, in consultation with 
expert anatomists as needed, in the injury determination process. There 
are also insufficient data to inform injury proration. We note that 
proration was only previously established for large whales when data 
were insufficient to make a probabilistic assignment of serious or not 
based on known outcomes. Proration is not intended to be a stand-alone 
approach because, by definition, an injury only needs to be more likely 
than not to lead to death to be considered a serious injury. While 
comprehensive literature reviews were conducted as part of the current 
guidelines review, NMFS appreciates the recommendations for research 
studies related to post-hooking mortality and gear ingestion in 
stranded false killer whales. The feasibility of such studies will 
continue to be discussed, including with external partners and in 
relevant management contexts, such as the FKWTRT.
    Comment 25: HLA states that NMFS should conduct a thorough review 
of all existing information as it considers revising the Procedural 
Directive. This includes all false killer whale interactions, 
photographic/video data, observer data, logbook data, fishermen 
interviews, and any other information that provides information on 
effects of longline fishing gear and false killer whales.
    Response: The ``Process for Injury Determination Distinguishing 
Serious from Non-Serious Injury of Marine Mammals'' review that was 
initiated in 2017 included review of the best scientific information 
available, input from the MMPA Scientific Review Groups, as 
appropriate, and experience gained in implementing the process and 
criteria. Subject matter experts from within NMFS with years of 
experience working with observer and other types of data relevant to 
injury determination for false killer whales (and other species) were 
included in the review process.
    Comment 26: HLA requests NMFS address questions and requests 
identified in the 2008 Technical Memorandum ``Differentiating Serious 
and Non-Serious Injury of Marine Mammals: Report of the Serious Injury 
Technical Workshop'' (Andersen et al. 2008) that have not yet been 
addressed in the Procedural Directive. These questions and requests 
include: (1) What is the fate of small cetaceans released with a hook 
in their mouth or with an ingested hook; (2) Is there any evidence 
false killer whales shed the hook on their own; (3) Would a hook in the 
mouth significantly impair feeding, causing infection, or lead to 
death; (4) Collect additional data on post-release survival; and (5) 
Data-mining of existing observer data, especially for fisheries that 
lack key drivers for data gathering (such as Take Reduction Teams 
(TRTs) or interactions with strategic stocks).
    Response: NMFS acknowledges that the questions identified by HLA 
from the 2008 Technical Memorandum remain important. These were guiding 
questions during the 2007 Serious Injury Technical Workshop, and they 
were addressed via expert and veterinary opinion when data were 
lacking. Since the 2007 Serious Injury Technical Workshop, NMFS has not 
addressed these questions further because the required data are not 
available and/or difficult to obtain. These questions, as well as 
others, still drive NMFS' work with the Procedural Directive as it 
relates to false killer whales (and other species), and we continue to 
use the best scientific information available and expert guidance when 
reviewing and revising the Procedural Directive.
    Comment 27: HLA and WPRFMC express concern NMFS has not prioritized 
conducting additional research on false killer whale interactions in 
the Hawaii longline fisheries. They raise the question of false killer 
whale research, specifically in regard to post-interaction survival. 
They stress that HLA representatives and industry have consistently 
expressed a desire for a tagging study to improve the understanding of 
species-specific survival rates of false killer whales following 
interactions with the Hawaii longline fishery. They further note that 
the FKWTRT identified this need when it updated the FKWTRP Research 
Priorities (2014). The FKWTRT recommended that NMFS devote substantial 
effort and resources to conduct and support research dedicated to 
quantifying and assessing post-release false killer whale mortality. 
This research should build on current research on the main Hawaiian 
Islands insular false killer whale population, including but not 
limited to, obtaining information on false killer whale interactions 
with near-shore fisheries and using mark-recapture data to chart health 
outcomes from those interactions. This research should also examine 
hook degradation rates to determine survival duration after hook 
interactions in dead and stranded odontocetes, survival duration after 
hook interactions in dead and stranded odontocetes, and injury healing 
rates in captive animals. HLA and WPRFMC urge NMFS to pursue this 
additional false killer whale research.
    Response: NMFS has indeed prioritized conducting additional 
research to address these questions. There are a number of projects in 
various stages of development that relate to furthering our 
understanding of false killer whale ecology, health, and survival in 
relation to fisheries interactions and other impacts. As the results 
are available, NMFS will continue sharing these with the FKWTRT.
    Furthermore, tagging pelagic false killer whales following 
fisheries interactions would require that fisheries observers or 
crewmembers perform the tagging operations, which is not feasible. 
Tagging small cetaceans is a highly specialized skill possessed by very 
few individuals and can pose a substantial risk to the animals, 
particularly in challenging conditions (e.g., sea state, limited 
visibility at night, etc.). These tags are generally attached using a 
specialized tagging gun/rifle/crossbow, and hitting a false killer 
whale with a dart tag anywhere other than its fins or base of the 
dorsal fin carries as much, or more, risk of killing the animal than 
the initial fishery injury. Even if a skilled tagger was available, it 
is unlikely that a robust sample size would be obtained, and the tag 
life of current tags would confound analyses of survival. Long-term 
photo-identification studies that include resighting data of 
individuals following a fisheries interaction are likely to provide the 
best information on post-interaction survival. However, we simply do 
not have sufficient known outcome data for most small cetaceans, 
including false killer whales. Obtaining such data for pelagic false 
killer whales will be particularly difficult, given that photo-
identification encounters and repeat encounters with the same animal 
are uncommon.
    Comment 28: WPRFMC requests that NMFS consider hook type as part of 
the criteria for determining serious injury for mouth- or lip-hooked 
false killer whales. Available observer data, research from other 
species, and expert opinion should be used to evaluate the relative 
risk of internal hooking by hook type.
    Response: A hook in the head/mouth is a serious injury according to 
category S5a regardless of hook type because, in general, the risks 
posed by hooks (i.e., ``the potential for ingesting attached gear, 
impairing feeding, breathing, or sight, or acting as a conduit for

[[Page 7965]]

infection'') are not necessarily specific to hook type. After 
consulting with outside experts, it remains apparent that there are 
insufficient data to evaluate injury outcomes following mouth hooking 
by hook type.
    Comment 29: HLA and WPRFMC provided comments on small cetacean 
injury criteria S2. HLA states that the minor revisions proposed to 
small cetacean injury criteria S2 and S5 are somewhat helpful, but 
insufficient. HLA recommends clarifying injury criterion S2 that if the 
hook and a sufficient amount of line is visible, NMFS will not presume 
the gear/hook(s) is ingested. For injury criterion S5b, HLA states that 
the new language does not provide sufficient guidance for assessing 
lip-only hookings.
    WPRFMC also requests NMFS revise the proposed text added to small 
cetacean injury criterion S2 to clarify that the ingestion of gear or 
hook will not be presumed and that S2 will not be used for injuries 
where the hook and sufficient amount of leader is visible and no other 
gear is coming from the mouth. They state that in 2021, 40 percent of 
the observed false killer whale interactions in the Hawaii deep-set 
longline fishery were recorded as seeing the hook in the animal's 
mouth.
    Response: S2 was clarified to account for what is most often seen 
in presumed ingestion cases, which is line coming from the mouth. If a 
hook and attached line was visible, the hook/gear would not be 
considered ingested, according to the guidelines. In many cases 
involving observer data, it is not possible to determine if a hook is 
ingested or in the mouth. In such cases, ``S2 or S5a'' can be applied 
that allows for the possibility of either, as each category denotes a 
serious injury. Only in cases where a lip-hooking can be confirmed can 
S5b be used. Confirming a lip-hooking is challenging given the number 
of potentially confounding factors combined with what can typically be 
observed or recorded by fisheries observers, given challenging sea or 
lighting conditions and the behavior or distance of the animal. These 
confounding factors (e.g., hook type and size, species, size of animal, 
location along the mouthline) preclude the formulation of prescriptive 
guidelines for confirming a lip-only hooking. However, these factors 
should and will be carefully considered, in consultation with expert 
anatomists as needed, in the injury determination process.
    Comment 30: BWFA expresses concern regarding small cetacean injury 
categories S5a and S6. They question whether leaving a hook in an 
animal's mouth constitutes a serious injury. BFWA states that there is 
no scientific evidence that a hook in the mouth leads to more than a 50 
percent chance of death. They also note that the Pelagic Longline Take 
Reduction Team (PLTRT) have these concerns for many years. BWFA 
recommends NMFS revise S5a and S6 from serious injuries to case-
specific.
    Response: As stated in response to comments #22 and #24, there are 
very limited data on small cetacean injury outcomes. At the time the 
Procedural Directive was developed, bottlenose dolphins as proxies 
represented the best scientific information available for known 
outcomes of hookings. During the review of the Procedural Directive, 
NMFS staff considered whether there was sufficient information to 
propose changes to small cetacean injury criteria, but determined there 
was not. A hook in the head/mouth (S5a) and gear attached to free-
swimming animal (S6) are a serious injuries due to the risks posed by 
hooks and the attached gear (i.e., the potential for ingesting attached 
gear, impairing feeding, breathing, or sight, or acting as a conduit 
for infection, entanglement and constriction).
    Comment 31: BWFA requests NMFS clarify why the proposed revisions 
were added to small cetacean injury criterion S6, noting that it is not 
possible to comment on the proposed revision to S6 without 
understanding the implications for the Atlantic pelagic longline 
fishery. They question whether the addition of a definition of the term 
``potential'' changes the way the term ``potential'' has been 
previously applied and interpreted. BWFA also states that there is no 
mention in the Procedural Directive about using the expertise of those 
serving on TRTs to develop the injury criteria.
    Response: The revisions to S6 were made to provide more specific 
guidance about what is meant by ``potential'' for the injury criterion. 
TRTs are convened to recommend measures to reduce M/SI incidental to 
specific fisheries and not to provide input on which injuries are 
serious. The Procedural Directive establishes a protocol for seeking 
review of draft injury determinations before they are finalized, and 
while the TRT is not a part of that process, we welcome TRT engagement 
and expertise in considering revisions to the Procedural Directive, 
particularly if they have relevant data or other information.
    Comment 32: BWFA requests that prior to finalizing the revisions to 
the ``Process for Injury Determination Distinguishing Serious from Non-
Serious Injury of Marine Mammals'' NMFS present the proposed revisions 
to the PLTRT, and that the proposed revisions should be fully reviewed 
and considered by the PLTRT.
    Response: NMFS thanks BWFA for their comment. NMFS conducted 
several informational webinars for Scientific Review Groups, Marine 
Mammal Commission, USFWS, TRTs (including the Pelagic Longline Take 
Reduction Team), and the Hawaii Longline Association, and presented an 
update on revisions to the WPRFMC at their June 2022 meeting. Prior to 
finalizing the revisions, NMFS solicited public comments for a period 
of 30 days (87 FR 43247, July 20, 2022).
    Comment 33: IFAW recommends NMFS add a statement to small cetacean 
injury criterion S5b that if the exact location of the hook in the 
mouth cannot be determined, that the injury is assigned to criterion 
S5a.
    Response: NMFS agrees and revised S5b to state that if the location 
of the hook in the mouth cannot be determined, the injury is assigned 
to criterion S5a.
    Comment 34: IFAW requests NMFS consider revising the small cetacean 
injury category S16 to be similar to the large whale injury categories 
for vessel strikes, specifically pertaining to the inclusion of various 
vessel sizes and speeds.
    Response: NMFS appreciates the suggestion to make the vessel strike 
categories for large and small cetaceans more consistent. However, the 
amount of information available on the factors that influence strike 
severity between these two taxa differs greatly, as does their ability 
to potentially avoid being struck by a vessel due to differences in 
size and agility. Given this, NMFS does not believe there are 
sufficient data to provide the same level of specificity for small 
cetaceans when it comes to vessel strike injuries as is provided for 
large cetaceans. As additional data become available, NMFS will 
consider revising S16 as appropriate.

Pinniped Injury Criteria

    Comment 35: IFAW recommends NMFS create an additional pinniped 
injury category for deep laceration injuries. The stranding network 
receives several reports of pinnipeds with multiple deep lacerations 
from propeller strikes. When there are multiple injuries that expose 
muscle, there is a high likelihood that these animals die. These types 
of injuries, that are fairly commonly seen, warrant a separate injury 
category.
    Response: NMFS appreciates the information about known outcomes for 
these types of injuries. Lacerations from vessel strikes are generally 
evaluated

[[Page 7966]]

using category P9 (``body trauma not covered by any other criteria''). 
Injuries in this category have case-specific determinations that 
require consideration of various factors such as the location of the 
wound(s) on the body, the depth (e.g., deep vs. superficial 
laceration), and the cleanliness of the wound. In addition, category P1 
could also be applied to cases in which the animal observed at a date 
later than its human interaction exhibits signs of declining health 
believed to be resulting from the initial injury. NMFS considers these 
categories to be sufficient to capture vessel strike injuries to 
pinnipeds.
    Comment 36: Members of the public state that pinnipeds that are 
provisioned over time should be considered a serious injury under 
injury category P16 (``Injuries resulting from observed or reported 
harassment, disturbance, feeding, or removal--case specific''). They 
note that there is tag data, stable isotope data, and photo 
identification/video documentation indicating a change in health and 
serious injury for provisioned pinnipeds.
    Response: The new category P16 is intended to cover harassment-
related injuries and mortalities from a broad range of human 
activities, as described in the category narrative. Given this broad 
range, NMFS considered it appropriate to allow for case-specific 
outcomes and listed various factors that should be considered when 
determining the injury severity, such as the duration of the 
harassment. Pinnipeds that are provisioned over time may be considered 
seriously injured. It is likely that this could only be applied to 
individually-identifiable animals that are known to have been 
provisioned over time. Additionally, for cases of ongoing harassment 
such as this, NMFS will need to determine at what point the animal 
should receive this determination to avoid counting the animal as 
injured more than once.
    Comment 37: IFAW recommends NMFS clarify in pinniped injury 
criterion P14 how abandoned, dependent pups that are rehabilitated and 
released (after weaning) are categorized with regards to serious 
injury.
    Response: Pinniped injury criterion P14 is used for non-weaned pups 
that are separated from their groups or mothers and therefore 
``released'' alone immediately following the human interaction. It is 
not used for pups that are rehabilitated and then released after 
weaning. NMFS revised P14 to clarify this injury criterion covers 
animals ``immediately released.''
    Comment 38: IFAW recommends adding a description of gear size and 
gear location on the animal to two injury categories (S8b and P8b), 
which both relate to ``gear wrapped and loose on any body part.''
    Response: Categories S8b and P8b are both case specific. In Tables 
2 and 3 of the ``Process for Injury Determination Distinguishing 
Serious from Non-Serious Injury of Marine Mammals,'' the fourth column 
lists several factors for evaluating whether case-specific injuries are 
serious or non-serious, and refers the reader to additional factors at 
the end of each table. Gear size and gear location on the animal are 
already listed, either in the tables or in the lists at the end of the 
tables, as factors to consider for these injury categories.
    Comment 39: Members of the public recommend NMFS add new small 
cetacean and pinniped injury criteria for non-line related fisheries 
interactions. These new criteria could cover blunt force trauma from 
fishery trawl doors, dredges, and haulers and entrapment in the cod-end 
of gear.
    Response: NMFS developed the injury categories to reflect types of 
injuries; they are generally not specifically linked to the specific 
source of a human-caused injury. NMFS does not consider it necessary to 
create new small cetacean and pinniped categories for non-line related 
fisheries interactions. These types of injuries are currently evaluated 
under several different categories depending on the circumstances and 
evidence of injury. For example, animals entrapped in the cod-end of 
trawl gear are often brought on the vessel deck (P4, case specific; S4, 
serious injury), or may have been immobilized or entangled before being 
freed without gear attached (P7b, case specific; S7b, case specific). 
Animals with evidence of trauma from fishery trawl doors, dredges, 
haulers, or other sources could be evaluated using categories P9-P13, 
as applicable.
    Comment 40: Members of the public express concern that there is no 
mention of aspiration or the sequelae of peracute underwater entrapment 
(PUE) in the pinniped injury determination process description. They 
state that aspiration and trauma should be a significant concern with 
any entanglement case in which PUE is a possibility, or when handling 
an entangled animal by inexperienced people could result in sustained 
agonal submergence. Members of the public note that observer data 
include information on unresponsiveness and foam/froth from nostrils 
may indicate aspiration and other PUE pathologies. These injuries 
should not be categorized as non-serious just because an animal 
eventually was observed swimming. They state that any evidence of 
unconsciousness while submerged or respiratory foam indicative of 
aspiration should be considered a serious injury.
    Response: NMFS agrees and added language to injury criterion P4 
about clinical signs from PUE, drowning, and capture myopathy.

Minor Revisions

    Comment 41: Members of the public note the addition of the external 
signs indicative of stress that could lead to capture myopathy to the 
Procedural Directive are helpful. However, they recommend including a 
list of clinical indicators that may suggest capture myopathy. For 
instance, spinal scoliosis due to capture myopathy has been documented 
in several delphinid species including live stranded pilot whales, and 
is a grossly visible sign that can develop in hours after the 
physiological perturbation. Additionally, they suggest changing 
``Duration of holding or transport'' under Extrinsic Risk Factors to 
``Duration and degree of immobilization,'' which is broader terminology 
that not only encompasses situations of animals brought on board 
vessels but also more accurately reflects entanglement type conditions 
as a whole. Finally, since capture myopathy likely has a significant 
component of acidosis, the degree/extent of submergence may be 
important, especially in the context of fisheries entanglements, PUE, 
and extrinsic risk factors.
    Response: NMFS thanks the commenters and revised the Procedural 
Directive to reflect their recommendations. NMFS added in the following 
phrases to the Capture Myopathy Appendix II under extrinsic factors: 
``Duration of entanglement, including extent of submergence or 
stranding prior to intervention or stranding prior to intervention'' 
and ``Duration and degree of immobilization.'' The clinical signs list 
was not meant to be exhaustive, so we added the phrase ``including and 
not limited to:'' to make that clear. Additionally, the signs listed 
were meant to be the most immediate real-time signs in live animals in 
the water, on the deck, or stranded and were not meant to include signs 
that may take hours to manifest (e.g., scoliosis).
    Comment 42: Members of the public comment that there is no small 
cetacean injury category for penetrating stab wounds from arrows, 
screwdrivers, etc. They question what criteria penetrating injuries 
that do not penetrate into a

[[Page 7967]]

cavity but are deeply embedded would fall under.
    Response: NMFS revised the Procedural Directive based on the 
comment. NMFS added in the following language to the narratives for S9 
and P9 to address this comment: ``and other penetrating injuries 
(including those made from foreign objects) that do not extend to the 
body cavity.''
    Comment 43: Members of the public request NMFS clarify how 
dependency is established in small cetacean injury criteria S15a and 
S15b. They question if dependency is determined through field estimates 
of total length or external features consistent with perinatal status.
    Response: In general, NMFS anticipates dependency will be 
established based on the general size of an animal compared to other 
animals if it is in a group, and if alone, field estimates of total 
length will be informed by what is known about the size and life 
history of the species and stock. Importantly, a lack of external 
factors indicating perinatal status should not preclude a determination 
of dependency as many marine mammals nurse and thus, are at least 
somewhat nutritionally dependent on their mothers well beyond when they 
may exhibit perinatal status. Since this will vary among species, 
stocks, and even within stocks given individual variability in the 
nursing period, NMFS believes it is not appropriate to provide any 
specifics within this procedure. However, we revised the procedure to 
add text explaining that animal size is a potential characteristic to 
consider.
    Comment 44: NMFS received comments from IFAW, members of the 
public, and the Commission suggesting various minor editorial revisions 
to the Procedural Directive. These minor editorial edits ranged from 
removing the term ``fins'' from pinniped injury criteria to including 
additional descriptive text to criteria and rephrasing sentences for 
clarity. The commenters also included minor editorial revisions to the 
large whale injury criteria.
    Response: NMFS thanks the commenters for their suggestions and has 
made minor editorial revisions throughout the Procedural Directive. As 
noted in responses to comments #16 and 17, NMFS will review the 
Procedural Directive to determine whether revisions are warranted once 
the new methodology for large whale injury determinations is finalized.

References

Andersen, M.S., K.A. Forney, T.V.N. Cole, T. Eagle, R. Angliss, K. 
Long, L. Barre, L. Van Atta, D. Borggaard, T. Rowles, B. Norberg, J. 
Whaley, and L. Engleby. 2008. Differentiating Serious and Non-
Serious Injury of Marine Mammals: Report of the Serious Injury 
Technical Workshop, 10-13 September 2007, Seattle, Washington. U.S. 
Dep. Commer., NOAA Tech. Memo. NMFS-OPR-39. 94 p.
Bradford, A.L., E.A. Becker, E.M. Oleson, K.A. Forney, J.E. Moore, 
and J. Barlow. 2020. Abundance estimates of false killer whales in 
Hawaiian waters and the broader central Pacific. NOAA Tech Memo. 
NMFS-PIFSC-104, 78 p.
Carretta, J.V., and A.G Henry. 2022. Risk Assessment of Whale 
Entanglement and Vessel Strike Injuries From Case Narratives and 
Classification Trees. Frontiers in Marine Science 9:863070. doi: 
10.3389/fmars.2022.863070.
Martins, M.C.I., L. Sette, E. Josephson, A. Bogomolni, K. Rose, S.M. 
Sharp, M. Niemeyer, and M. Moore. 2019. Unoccupied aerial system 
assessment of entanglement in Northwest Atlantic gray seals 
(Halichoerus grypus). Marine Mammal Science, 35(4), 1613-1624.
Precoda, K., and C.D. Orphanides. 2022. Estimates of Cetacean and 
Pinniped Bycatch in the 2019 New England Sink and Mid-Atlantic 
Gillnet Fisheries. Northeast Fisheries Science Center Reference 
Document 22-05.
Wells, R.S., J.B. Allen, S. Hofmann, K. Bassos[hyphen]Hull, D.A. 
Fauquier, N.B. Barros, R.E. DeLynn, G. Sutton, V. Socha, and M.D. 
Scott. 2008. Consequences of injuries on survival and reproduction 
of common bottlenose dolphins (Tursiops truncatus) along the west 
coast of Florida. Marine Mammal Science, 24(4), 774-794.

    Dated: February 2, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2023-02551 Filed 2-6-23; 8:45 am]
BILLING CODE 3510-22-P