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.

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 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 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.