[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Notices]
[Pages 42116-42118]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18037]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RIN 0648-XA440]


National Policy for Distinguishing Serious From Non-Serious 
Injuries of Marine Mammals

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

ACTION: Notice of availability; request for comments.

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SUMMARY: NMFS developed a draft national policy, comprised of a Policy 
Directive and associated Procedural Directive, for distinguishing 
serious from non-serious injuries of marine mammals. The draft 
Directives were developed by reviewing injury determinations from 1997-
2008, current scientific information, and a new analysis of existing 
NMFS data. NMFS solicits public comments on the draft Policy and 
Procedural Directives.

DATES: Comments must be received by August 17, 2011.

ADDRESSES: The draft Policy and Procedural Directives for 
distinguishing serious from non-serious injuries of marine mammals are 
available in electronic form via the Internet at http://www.nmfs.noaa.gov/pr/laws/mmpa/ under ``Policies, Guidances and 
Regulations''.
    Copies of the Policy and Procedural Directives may also be 
requested from Melissa Andersen, Office of Protected Resources, NMFS, 
1315 East West Hwy, Silver Spring, MD 20910.
    Send comments by any one of the following methods.
    (1) Electronic Submissions: Submit all electronic comments through 
the Federal eRulemaking portal: http://www.regulations.gov (follow 
instructions for submitting comments).
    (2) Mail: Chief, Marine Mammal and Sea Turtle Conservation 
Division, Attn: Policy for distinguishing serious from non-serious 
injuries of marine mammals, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (e.g., name, address, 
etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected

[[Page 42117]]

information. NMFS will accept anonymous comments (enter ``N/A'' in the 
required fields, if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Melissa Andersen, Office of Protected 
Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    The Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361 et seq.) 
requires NMFS to estimate annual levels of human-caused mortality and 
serious injury of marine mammal stocks (section 117) and to categorize 
commercial fisheries based on their level of incidental mortality and 
serious injury of marine mammals (section 118). Based on the results of 
a 1997 workshop discussing the impacts of injuries of marine mammals 
incidental to commercial fishing operations (Angliss and DeMaster, 
1998) and specific regional experience with injury events, NMFS 
Regional Offices and Science Centers developed regional techniques for 
assessing and quantifying the serious injuries of marine mammals. 
Although these regional techniques helped to accomplish the MMPA's 
mandates, NMFS recognized the need for a nationally consistent and 
transparent process for effective conservation of marine mammal stocks 
and management of human activities impacting these stocks.
    Accordingly, NMFS convened the Serious Injury Technical Workshop in 
2007 to review performance under existing processes, and gather the 
best available and current scientific information (Andersen et al., 
2008). Based on results of the 2007 workshop and input from marine 
mammal scientists, veterinary experts, and the MMPA Scientific Review 
Groups, NMFS developed the draft Policy and Procedural Directives 
describing national guidance and criteria for distinguishing serious 
from non-serious injuries of marine mammals. The draft Directives will 
serve as the basis for analyzing marine mammal injury reports (e.g., 
observer, disentanglement, and stranding program reports) and 
incorporating the results into marine mammal stock assessment reports 
(SAR) and marine mammal conservation management regimes (e.g., MMPA 
List of Fisheries (LOF), take reduction plans (TRP), ship speed 
regulations).

Draft Policy and Procedural Directives

Interpretation of the Regulatory Definition of ``Serious Injury''

    NMFS defined serious injury in regulations (50 CFR 229.2) as ``any 
injury that will likely result in mortality.'' While this definition 
provides guidance on which injuries should be considered serious 
injuries, it allows subjective interpretation of the likelihood that an 
injury will result in mortality. Therefore, the draft Policy Directive 
clarifies and provides justification for NMFS' 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.

Making and Documenting Injury Determinations

    The draft 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 SRG review of the injury determinations; injury 
determination report preparation and clearance; and inclusion of injury 
determinations in the SARs and marine mammal conservation management 
regimes.

Accounting for Injury Cases Where the Outcome Cannot Be Determined

    There are many reasons why the severity of a given marine mammal 
injury event cannot be determined (CBD). In some cases, reports on an 
injury event lack sufficient information to make an injury 
determination. In other cases, the severity of an injury may depend on 
any number of unknown factors. Lastly, the current state of veterinary 
knowledge or clinical data about the impact of certain injuries might 
be insufficient to make a determination. Therefore, the draft 
Procedural Directive outlines NMFS' approach for applying appropriate 
methods to assign CBD cases as either serious or non-serious injuries 
for management and reporting purposes. The approach includes methods 
that can be based on fishery observer data, when available, or 
historical information from any data source that provides a valid basis 
for analysis.

Accounting for Successful Mitigation Efforts

    Marine mammals that become entangled in or hooked by fishing gear 
are sometimes released or break free from the gear, but remain hooked 
or entangled in a portion of the gear. In some instances, those 
entangled or hooked animals are sighted at a later date or time and 
NOAA undertakes mitigation efforts to disentangle or dehook the animal 
(e.g., via the large whale disentanglement program). As a result of the 
2007 workshop, NMFS revisited whether marine mammals that are 
successfully disentangled or dehooked at a later date or time should be 
considered when classifying fisheries on the LOF. Previously, if an 
entangled or hooked marine mammal was determined to be seriously 
injured from the entanglement/hooking but was later successfully 
disentangled/dehooked and determined to have only non-serious injuries 
once the gear was removed, the interaction was not included as a 
serious injury in the SAR because the animal was not removed from the 
population; thus, the interaction was also not used when classifying 
fisheries on the LOF. However, this previous approach does not 
accurately reflect the overall impact of commercial fisheries on marine 
mammal populations because, by not including disentangled animals in 
the number of seriously injured animals resulting from interactions 
with commercial fishing gear, it does not account for all serious 
injuries inflicted on marine mammals by commercial fishing. Further, 
this previous approach can lead to an underestimation of total serious 
injury and mortality of marine mammals because it relies on 
opportunistic detection and post-interaction intervention by NOAA to 
mitigate injury effects.
    The draft Procedural Directive establishes NMFS' process for 
assessing and documenting these cases. Successful mitigation efforts 
(i.e., a marine mammal is disentangled by a disentanglement program and 
is determined to have only non-serious injuries when released) will not 
change the pre-intervention injury determination for use in classifying 
fisheries on the LOF or for use in TRPs. In other words, if the animal 
was determined to be seriously injured from an entanglement prior to 
the disentanglement program's intervention, it is considered seriously 
injured for the purposes of commercial fisheries management, such as 
the LOF and TRPs. However, for the purposes of assessing the status of 
stocks in the

[[Page 42118]]

SARs, NMFS will record the level of injury determined after the 
mitigation effort to reflect the fact that the animal likely survived 
its injuries post-intervention and was not removed from the population.

Injury Categories and Criteria for Large Cetaceans, Small Cetaceans and 
Pinnipeds

    The draft Procedural Directive describes the injury categories and 
criteria for distinguishing between serious and non-serious injuries of 
marine mammals. The criteria were developed separately for large 
cetaceans, small cetaceans, and pinnipeds because the types and impacts 
of injuries differ between these groups. For this reason, the draft 
Procedural Directive includes three separate sections that describe 
criteria for determining injury status specific to each species group, 
including three tables summarizing the injury categories and criteria 
with an associated injury determination. The process and criteria for 
determining injury status for large cetaceans differ from the process 
and criteria for small cetaceans and pinnipeds. The injury criteria and 
determinations for large cetaceans are largely based on an analysis of 
NMFS data on injury events with known outcomes (i.e., survival or death 
of the animal), with the exception of a few criteria that are based on 
expert opinion or research presented at the 2007 NMFS Serious Injury 
Technical Workshop. In contrast, injury criteria and determinations for 
small cetaceans and pinnipeds are based almost entirely on expert 
opinion or research presented at the 2007 NMFS Serious Injury Technical 
Workshop because, unlike large cetaceans, data on injury events with 
known outcomes are not available for most small cetacean and pinniped 
species.

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.
Angliss, R.P. and D.P. DeMaster. 1998. Differentiating Serious and 
Non-Serious Injury of Marine Mammals Taken Incidental to Commercial 
Fishing Operations. NOAA Tech Memo. NMFS-OPR-13, 48 p.

    Dated: July 12, 2011.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2011-18037 Filed 7-15-11; 8:45 am]
BILLING CODE 3510-22-P