Notice2023-02550
Guidelines for Preparing Stock Assessment Reports Pursuant to the Marine Mammal Protection Act; Final Revisions to Procedural Directive
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Published
February 7, 2023
Effective
February 7, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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[Federal Register Volume 88, Number 25 (Tuesday, February 7, 2023)]
[Notices]
[Pages 7953-7957]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2022-0081">https://www.regulations.gov/docket/NOAA-NMFS-2022-0081</a> or <a href="https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives">https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives</a>.
FOR FURTHER INFORMATION CONTACT: Eric Patterson, NMFS Office of
Protected Resources, (301) 427-8415, <a href="/cdn-cgi/l/email-protection#ce8bbca7ade09eafbabaabbcbda1a08ea0a1afafe0a9a1b8"><span class="__cf_email__" data-cfemail="20655249430e704154544552534f4e604e4f41410e474f56">[email protected]</span></a>; or
Zachary Schakner, NMFS Office of Science and Technology, 301-427-8106,
<a href="/cdn-cgi/l/email-protection#055f64666d64777c2b56666d646e6b6077456b6a64642b626a73"><span class="__cf_email__" data-cfemail="9cc6fdfff4fdeee5b2cffff4fdf7f2f9eedcf2f3fdfdb2fbf3ea">[email protected]</span></a>.
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 (N<INF>min</INF>) in post-survey years; (3)
addressing sources of bias in the calculation of N<INF>min</INF>; (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: <a href="https://www.regulations.gov/docket/NOAA-NMFS-2022-0081">https://www.regulations.gov/docket/NOAA-NMFS-2022-0081</a> or <a href="https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives">https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives</a>.
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 N<INF>min</INF> 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
[[Page 7956]]
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 N<INF>min</INF>
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 N<INF>min.</INF> CBD and NSB support the draft
revisions that remove the 8-year ``expiration'' of abundance data for
use in calculating N<INF>min</INF>, while WDCFA and the Atlantic SRG do
not believe it is appropriate to use data that are 8 years old or older
for calculating N<INF>min</INF>. 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
N<INF>min</INF> to account for increasing uncertainty with time and HLA
request that the draft revisions clarify that adjustments to
N<INF>min</INF> 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 N<INF>min</INF> can result
in N<INF>min</INF> 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 N<INF>min</INF> 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 (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/scientific-review-groups">https://www.fisheries.noaa.gov/national/marine-mammal-protection/scientific-review-groups</a>).
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
[[Page 7957]]
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 N<INF>min</INF>''
to inform strategic status.
Response: NMFS thanks NSB for their support and agree that the new
guidance on calculating a ``critical N<INF>min</INF>'' 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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Becker, E.A., Forney, K.A., Miller, D.L., Fiedler, P.C., Barlow, J.,
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Roberts, J.J., Best, B.D., Mannocci, L., Fujioka, E., Halpin, P.N.,
Palka, D.L., Garrison, L.P., Mullin, K.D., Cole, T.V.N., Khan, C.B.,
McLellan, W.A., Pabst, D.A., Lockhart, G.G. 2016. Habitat-based
cetacean density models for the U.S. Atlantic and Gulf of Mexico.
Scientific Reports. 6:22615.
Wade, P.R. 1998. Calculating limits to the allowable human-caused
mortality of cetaceans and pinnipeds. Marine Mammal Science 14:1-37.
Wade, P.R., Angliss, R.P. 1997. Guidelines for Assessing Marine
Mammal Stocks: Report of the GAMMS Workshop, April 3-5, 1996,
Seattle, WA. NOAA Technical Memorandum NMFS-OPS-12, 93 p. Available
at: <a href="https://repository.library.noaa.gov/view/noaa/15963">https://repository.library.noaa.gov/view/noaa/15963</a>.
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
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