NMFS Explains Its MMPA Peer Review and Best Available Data Policies
On May 4, 2011, the U.S. National Marine Fisheries Service published Federal Register notice of NMFS' regulations governing the Navy's unintentional taking of marine mammals incidental to training activities conducted in the Gulf of Alaska Temporary Maritime Activities Area for the period April 2011 through April 2016. NMFS received many comments on these rules when they were proposed. In response to two of these comments, NMFS explained its policies for peer review and use of best available data when regulating under the Marine Mammal Protection Act. Because these explanations are important in a number of contexts, they are set forth verbatim below:

Peer Review

"Comment 26: The MMC [Marine Mammal Commission] recommended that NMFS require the Navy to conduct an external peer review of its marine mammal density estimates for the GoA, the data upon which those estimates are based, and the manner in which those data are being used.

[NMFS'] Response: Both NMFS and the Navy use peer-reviewed science whenever it is available and applicable, and NMFS has encouraged the Navy to get the models they use and data they gather peer-reviewed. In 2008, the impacts analysis model used for the GoA TMAA (and the previous Navy EISs and final rules) underwent the NMFS peer review process using the Center for Independent Experts (CIE) and was deemed adequate and sufficient for the purpose for which it was being used. Recommendations made by the CIE for improvements were incorporated into the next generation model upgrades.

In the context of the Navy's GoA TMAA EIS/OEIS and LOA application, the marine mammal densities used in the Navy's impact analysis were derived from several sources, which are summarized in Table B-16 of the Navy's LOA application. The sources the Navy relied upon to derive density estimates for marine mammal species in the GoA are all from peer-reviewed journals. In addition, due to the lack of new survey data for marine mammals in the GoA, the Navy funded the Gulf of Alaska Line-Transect Survey (GOALS), which was conducted in April 2009. During this survey, line-transect visual data and acoustic data were collected over a 10-day period, from which densities were derived for fin and humpback whales for inshore and offshore strata.

Also, while it is not the same as peer review, both the NEPA and MMPA processes include a comment period during which the public can specifically recommend better ways to use the data to estimate density, which the Navy and NMFS take into account. For example, the proposed rule for the GoA TMAA (75 FR 64508, October 19, 2010) encouraged the public to recommend effective, regionally specific methods for augmenting existing marine mammal density, distribution, and abundance information in the GoA TMAA and to prioritize the specific density and distribution data needs in the area.

Further, a new systematic framework (that includes a hierarchy of preferred methodologies based on the data available in an area) is being developed by the Navy to estimate density in the analyses for the rule renewals that will follow the expiration of the MMPA rules for Navy training in 2009, 2010, and 2011 (i.e., rules that would, if appropriate, be issued in 2014 and later). The Navy has indicated that they may pursue a peer review of this framework and NMFS has encouraged them to do so."

Best Available Data

"Comment 45: One commenter asks how NMFS can issue permits based on the best available data if NMFS admits that data does not exist on marine mammal behavioral response as a result of factors other than received levels of MFAS?

[NMFS'] Response: NMFS relies on the best available date for analyzing the effects on marine mammals. However, because the best available data is constantly changing and our current knowledge of marine mammal behavioral response is limited, NMFS utilizes an adaptive management approach. In so doing, we are able to continuously assess behavioral effects and incorporate new mitigation or monitoring measures when necessary. NMFS never stated that data on factors other than received level is non-existent; but rather, that quantitative data on marine mammal behavioral response to factors other than received level does not exist. The proposed rule included a qualitative discussion of how factors other than received level (e.g., speed, angle of approach) may impact a marine mammal's response to a sound source."