Designating the Sakhalin Bay-Nikolaya Bay-Amur River Stock of Beluga Whales as a Depleted Stock Under the Marine Mammal Protection Act (MMPA), 74711-74719 [2016-25984]
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Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations
pursuant to the Marine Mammal
Protection Act (MMPA). This action is
being taken as a result of a status review
conducted by NMFS in response to a
petition to designate a group of beluga
whales in the western Sea of Okhotsk as
a depleted stock. The biological
evidence indicates that the group is a
population stock as defined by the
MMPA, and the stock is depleted as
defined by the MMPA.
[FR Doc. 2016–25976 Filed 10–26–16; 8:45 am]
BILLING CODE 4910–EX–c
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
This final rule is effective
November 28, 2016.
DATES:
50 CFR Part 216
[Docket No. 151113999–6950–02]
Designating the Sakhalin Bay-Nikolaya
Bay-Amur River Stock of Beluga
Whales as a Depleted Stock Under the
Marine Mammal Protection Act (MMPA)
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
jstallworth on DSK7TPTVN1PROD with RULES
AGENCY:
We, NMFS, issue a final
determination to designate the Sakhalin
Bay-Nikolaya Bay-Amur River Stock of
beluga whales (Delphinapterus leucas)
as a depleted stock of marine mammals
SUMMARY:
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Copies of supporting
documents, including the status review,
the proposed rule, and a list of
references cited in the final rule, are
available via the Federal e-rulemaking
Portal, at www.regulations.gov (search
for Docket ID NOAA–NMFS–2015–
0154), or at https://
www.fisheries.noaa.gov/pr/species/
mammals/whales/beluga-whale.html.
Those documents are also available
from NMFS at the following address:
Chief, Marine Mammal and Sea Turtle
Conservation Division, Office of
Protected Resources, National Marine
Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910–
3226.
ADDRESSES:
RIN 0648–BF55
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FOR FURTHER INFORMATION CONTACT:
Shannon Bettridge, Shannon.Bettridge@
noaa.gov, Office of Protected Resources,
301–427–8402.
SUPPLEMENTARY INFORMATION:
Background
Section 115(a) of the MMPA (16
U.S.C. 1383b(a)) allows interested
parties to petition NMFS to initiate a
status review to determine whether a
species or stock of marine mammals
should be designated as depleted. On
April 23, 2014, we received a petition
from the Animal Welfare Institute,
Whale and Dolphin Conservation,
Cetacean Society International, and
Earth Island Institute (petitioners) to
‘‘designate the Sakhalin Bay-Amur River
stock of beluga whales as depleted
under the MMPA.’’ We published a
notification that the petition was
available (79 FR 28879; May 20, 2014).
After evaluating the petition, we
determined that the petition contained
substantial information indicating that
the petitioned action may be warranted
(79 FR 44733; August 1, 2014).
Following the determination that the
petitioned action may be warranted, we
convened a status review team and
conducted a status review to evaluate
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Issued on: October 20, 2016.
T.F. Scott Darling, III,
Administrator.
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whether the Sakhalin Bay-Amur River
group of beluga whales is a population
stock and, if so, whether that stock is
depleted. On April 5, 2016, we
published a proposed rule to designate
the Sakhalin Bay-Nikolaya Bay-Amur
River Stock of beluga whales as a
depleted stock of marine mammals
pursuant to the MMPA (81 FR 19542),
and solicited comments from all
interested parties including the public,
other governmental agencies, the
scientific community, industry, and
environmental groups.
Authority
Although the Sakhalin Bay-Nikolaya
Bay-Amur River stock of beluga whales
does not occur in waters under the
jurisdiction of the United States, we
have authority to designate the stock as
depleted if we find that the stock is
below its optimum sustainable
population (OSP). Section 115(a) of the
MMPA provides NMFS with the
authority to designate ‘‘a species or
stock’’ of marine mammals as depleted
and sets forth the procedures the agency
must follow to make such a designation.
16 U.S.C. 1383b(a)(1). The MMPA
defines ‘‘depleted’’ as any case in
which: (1) NMFS determines that a
species or population stock is below its
optimum sustainable population; (2) a
state to which authority has been
delegated makes the same
determination; or (3) a species or stock
is listed as threatened or endangered
under the Endangered Species Act
(ESA). 16 U.S.C. 1362(1). These
provisions draw no distinction between
marine mammals based on their
geographic location. Rather, NMFS’
authority to designate as depleted a
species or stock occurring outside of
waters under the jurisdiction of the
United States is supported by the
express link to the ESA found in the
MMPA’s definition of ‘‘depleted.’’
Species of marine mammals that occur
outside of waters under the jurisdiction
of the United States are regularly listed
as threatened or endangered under the
ESA. Pursuant to the MMPA’s definition
of depleted, these species are
automatically designated as depleted
when they are listed under the ESA. The
definition of depleted, therefore,
demonstrates Congressional support for
depleted designations for foreign marine
mammals. NMFS’ authority is also
supported by the MMPA’s import
prohibition, which makes it ‘‘unlawful
to import into the United States any
marine mammal if such mammal was
. . . taken from a species or population
stock which [NMFS] has, by regulation
published in the Federal Register,
designated as a depleted species or
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stock.’’ Id. section 1372(b). By its plain
terms, the import prohibition recognizes
NMFS’ authority to designate a species
or stock that occurs outside of waters
under the jurisdiction of the United
States as depleted.
NMFS has previously used its
authority under section 115(a) to
designate as depleted, two stocks of
marine mammals that occur entirely
outside of waters under the jurisdiction
of the United States: The northeastern
stock of offshore spotted dolphin and
the eastern stock of spinner dolphin.
See 58 FR 58285 (Nov. 1, 1993); 58 FR
45066 (Aug. 26, 1993). NMFS believes
that the exercise of this authority is
consistent with Congress’s intent in
enacting the MMPA that marine
mammal ‘‘species and population stocks
should not be permitted to diminish
beyond the point at which they cease to
be a significant functioning element in
the ecosystem of which they are a part,’’
and that ‘‘they should be protected and
encouraged to develop to the greatest
extent feasible . . .’’ 16 U.S.C. 1361.
Status Review
A status review for the population
stock of beluga whales addressed in this
rule was conducted by a status review
team (Bettridge et al., 2016). The status
review compiled and analyzed
information on the stock’s distribution,
abundance, threats, and historic take
from information contained in the
petition, our files, a comprehensive
literature search, and consultation with
experts. The draft status review report
was submitted to independent peer
reviewers, and comments and
information received from peer
reviewers were addressed and
incorporated as appropriate before
finalizing the report.
As required by the MMPA, we
consulted with the Marine Mammal
Commission (Commission) related to
the petition to designate the Sakhalin
Bay-Amur River group of beluga whales
as a depleted population stock. In a
letter dated December 7, 2015, the
Commission recommended we take a
precautionary approach and define the
Sakhalin Bay-Amur River stock to
include whales in Nikolaya Bay and
promptly publish a proposed rule under
section 115(a)(3)(D) of the MMPA to
designate this stock as depleted.
Sea of Okhotsk Beluga Whales
Beluga whales are found throughout
much of the Sea of Okhotsk, including
Shelikov Bay in the northeast and
throughout the western Sea of Okhotsk
including the Amur River estuary, the
nearshore areas of Sakhalin Bay, in the
large bays to the west (Nikolaya Bay,
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Ulbansky Bay, Tugursky Bay and
Udskaya Bay), and among the Shantar
Islands. Use of the bays and estuaries in
the western Sea of Okhotsk is limited
primarily to summer months when
belugas may molt (Finley 1982) and give
birth to and care for their calves
(Sergeant and Brodie 1969). The whales
move into the ice-covered offshore areas
of the western Sea of Okhotsk in the
winter (Melnikov 1999). In the status
review and the preamble to the
proposed rule, we refer to the beluga
whales found in the Amur River estuary
and the nearshore areas of Sakhalin Bay
during summer as the Sakhalin BayAmur River beluga whales.
The preamble to the proposed rule
summarized additional general
background information on the Sea of
Okhotsk beluga whales’ natural history,
range, reproduction, population
structure, distribution, abundance, and
threats. That information has not
changed and is not repeated here.
Stock Determination
The MMPA defines ‘‘population
stock’’ as ‘‘a group of marine mammals
of the same species or smaller taxa in a
common spatial arrangement, that
interbreed when mature’’ (MMPA
section 3(11)). NMFS’ guidelines for
assessing stocks of marine mammals
(NMFS 2005) state that many different
types of information can be used to
identify stocks, reproductive isolation is
proof of demographic isolation, and
demographically isolated groups of
marine mammals should be identified
as separate stocks. NMFS has
interpreted ‘‘demographically isolated’’
as ‘‘demographically independent’’ (see,
for example, Weller et al., 2013, Moore
and Merrick (eds.) 2011), and recently
updated the guidelines for assessing
stocks of marine mammals to reflect this
interpretation (NMFS 2016).
NMFS considered the following lines
of evidence regarding the Sakhalin BayAmur River beluga whales to answer the
question of whether the group
comprises a stock: (1) Genetic
comparisons among the summering
aggregations in the western Sea of
Okhotsk; (2) movement data collected
using satellite transmitters; and (3)
geographical and ecological separation
(site fidelity). This information was
discussed in detail in the preamble to
the proposed rule and is not repeated
here. In summary, multiple lines of
evidence indicate that Sakhalin BayAmur River beluga whales are their own
stock or are a stock that also includes
whales that summer in Nikolaya Bay.
The status review team’s evaluation of
whether the Sakhalin Bay-Amur River
stock is discrete or includes whales in
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Nikolaya Bay was almost evenly
divided, based on the lines of evidence
reviewed. Given the currently available
information, it is equally plausible that
the beluga whales in Nikolaya Bay are
part of the demographically
independent population stock of
Sakhalin Bay-Amur River beluga whales
than not. Including Nikolaya Bay in the
delineation and description of the stock
would be a more conservative and
precautionary approach, as it would
provide any protection afforded under
the MMPA to the beluga whales in
Sakhalin Bay-Amur River to those
beluga whales in Nikolaya Bay.
None of the information regarding the
identification of the Sakhalin BayNikolaya Bay-Amur River group of
beluga whales as a population stock has
changed since we published the
proposed rule, and we received no new
information through the public
comment period that would cause us to
reconsider our previous finding as
reflected in the preamble to the
proposed rule. Thus, all of the
information contained in the preamble
to the proposed rule with respect to
identifying the Sakhalin Bay-Nikolaya
Bay-Amur River group of beluga whales
as a population stock is reaffirmed in
this final action. Therefore, based on the
best scientific information available as
presented in the status review report,
the preamble to the proposed rule, and
this final rule, NMFS is identifying the
Sakhalin Bay-Nikolaya Bay-Amur River
group of beluga whales as a population
stock.
Depleted Determination
Section 3(1)(A) of the MMPA (16
U.S.C. 1362(1)(A)) defines the term
‘‘depletion’’ or ‘‘depleted’’ to include
any case in which ‘‘the Secretary, after
consultation with the Marine Mammal
Commission and the Committee of
Scientific Advisors (CSA) on Marine
Mammals . . . determines that a species
or a population stock is below its
optimum sustainable population.’’
Section 3(9) of the MMPA (16 U.S.C.
1362(9)) defines ‘‘optimum sustainable
population . . . with respect to any
population stock, [as] the number of
animals which will result in the
maximum productivity of the
population or the species, keeping in
mind the carrying capacity [(K)] of the
habitat and the health of the ecosystem
of which they form a constituent
element.’’ NMFS’ regulations at 50 CFR
216.3 clarify the definition of OSP as a
population size that falls within a range
from the population level of a given
species or stock that is the largest
supportable within the ecosystem (i.e.,
carrying capacity, or K) to its maximum
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net productivity level (MNPL). MNPL is
the population abundance that results in
the greatest net annual increment in
population numbers resulting from
additions to the population from
reproduction, less losses due to natural
mortality.
A population stock below its MNPL
is, by definition, below OSP and, thus,
would be considered depleted under the
MMPA. Historically, MNPL has been
expressed as a range of values (between
50 and 70 percent of K) determined on
a theoretical basis by estimating what
stock size, in relation to the historical
stock size, will produce the maximum
net increase in population (42 FR 12010;
March 1, 1977). In practice, NMFS has
determined that stocks with populations
under the mid-point of this range (i.e.,
60 percent of K) are depleted (42 FR
64548, December 27, 1977; 45 FR 72178,
October 31, 1980; 53 FR 17888, May 18,
1988; 58 FR 58285, November 1, 1993;
65 FR 34590, May 31, 2000; 69 FR
31321, June 3, 2004). For stocks of
marine mammals, including beluga
whales, K is generally unknown. NMFS,
therefore, has used the best estimate
available of maximum historical
abundance as a proxy for K (64 FR
56298, October 19, 1999; 68 FR 4747,
January 30, 2003; 69 FR 31321, June 3,
2004).
One technique NMFS has employed
to estimate maximum historical
abundance is the back-calculation
method, which assumes that the historic
population was at equilibrium, and that
the environment has not changed
greatly. The back-calculation approach
looks at the current population and then
calculates historic carrying capacity
based on how much the population has
been reduced by anthropogenic actions.
For example, the back-calculation
approach was applied in the
management of the subsistence hunt of
the Cook Inlet beluga whale stock (73
FR 60976, October 15, 2008). The status
review team concluded, and NMFS
agrees, that the back-calculation
technique is the most appropriate to use
in determining the abundance of the
stock relative to OSP. Therefore, the
status review team analyzed the status
of the stock relative to carrying capacity
using a back-calculation method.
The best available estimate of
abundance beluga whales in the
Sakhalin Bay-Amur River area is 3,961
(Reeves et al., 2011). The best available
removal data for these whales are a time
series of removals by hunt and live
capture since 1915 (Shpak et al., 2011).
It was not feasible to develop an
estimate of any additional
anthropogenic mortality on this
population, however there is evidence
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that there are ongoing threats that
continue to impact this population
(Reeves et al., 2011). These removal
data, plus an estimate of the
population’s productivity, allow backcalculation of the historical carrying
capacity (i.e., K) that probably existed
prior to the beginning of the catch
history. A population model was used
to perform the necessary calculations.
This analysis was presented in the
status review report and in the preamble
to the proposed rule. The analysis has
not changed and is not repeated here. In
summary, based on this analysis, we
found that the population of whales in
the Sakhalin Bay-Amur River area is
between 25.5 percent and 35 percent of
its carrying capacity and therefore
below its OSP (Bettridge et al., 2016).
As noted above, in its OSP analysis,
the status review team used a 2009–
2010 abundance estimate from only the
Sakhalin Bay-Amur River area because
there was no current abundance
estimate of the Nikolaya Bay region.
However, because few animals are
thought to be in Nikolaya Bay in the
survey period compared to the Sakhalin
Bay-Amur River, the estimate accounts
for nearly all of the population (Shpak
et al., 2011). To conduct an OSP
analysis for the combined group of
Sakhalin Bay-Amur River and Nikolaya
Bay whales, the team added 500 to the
abundance estimate to account for
Nikolaya Bay, and re-ran the model. The
team determined that including
Nikolaya Bay whales in the analysis
would not change the estimate of K
significantly; it would result in a
slightly higher percentage of K (i.e., less
depleted), but the population is still
below OSP (i.e., less than 60% of K).
None of the information presented in
the preamble to the proposed rule
regarding the abundance of the Sakhalin
Bay-Nikolaya Bay-Amur River stock
relative to its carrying capacity or OSP
has changed since we published the
proposed rule, and we received no new
information through the public
comment period that would cause us to
reconsider our previous analysis or
finding as reflected in the preamble to
the proposed rule. Thus, all of the
information contained in the preamble
to the proposed rule with respect to the
depleted determination is reaffirmed in
this final action. As such, based upon
the best scientific information available
as presented in the status review report,
the preamble to the proposed rule, and
this final rule, we find that the Sakhalin
Bay-Nikolaya Bay-Amur River stock of
beluga whales is below its OSP level,
and designate the stock as a depleted
stock under the MMPA. The depletion
designation applies to all biological
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members of the stock, regardless of
whether those individuals are in the
wild or in captivity.
Summary of Comments Received and
Responses
With the publication of the proposed
rule for the designation of the Sakhalin
Bay-Nikolaya Bay-Amur River stock of
beluga whales as depleted under the
MMPA on April 5, 2016 (81 FR 19542),
we announced a 60-day public comment
period that closed on June 6, 2016.
During the public comment period we
received a total of 125 written
comments on the proposed rule.
Commenters included the Commission,
non-governmental organizations
(Environmental Investigation Agency,
Defenders of Wildlife and the Humane
Society of the United States, Center for
Biological Diversity, Animal Welfare
Institute, Orca Rescues Foundation,
Orca Network, and Georgia Aquarium);
eight organizations or businesses
(Northwest Biotechnology Company,
Perkins Coie, Alliance of Marine
Mammals Parks and Aquariums, Oceans
of Fun, Gulfworld Marine Park,
Zoomarine Italy, and Marineland
Dolphin Adventure), and 111 interested
individuals (the majority of whom
submitted variations of a form letter
supportive of our proposed
determination). We fully considered all
comments received on the proposed
rule in developing this final depleted
determination of the Sakhalin BayNikolaya Bay-Amur River stock of
beluga whales.
Summaries of the substantive
comments that we received concerning
our proposed determination, and our
responses to all of the significant issues
they raise, are provided below.
Comments of a similar nature were
grouped together, where appropriate. In
addition to the specific comments
detailed below relating to the proposed
determination, we also received
comments expressing general support
for or opposition to the proposed rule
and comments conveying peer-reviewed
journal articles, technical reports, and
references to scientific literature
regarding threats to the species and
stock determination. Unless otherwise
noted in our responses below, after
thorough review, we concluded that the
additional information received was
either considered previously or did not
alter our determinations regarding the
status of the Sakhalin Bay-Nikolaya BayAmur River stock of beluga whales.
Comment 1: Numerous commenters,
including the Commission, voiced
support that the Sakhalin Bay-Nikolaya
Bay-Amur River beluga whale stock
clearly meets the MMPA standards and
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urged NMFS to promptly finalize its
proposal to designate the stock as
‘‘depleted.’’ The majority of these
commenters noted that the depletion
status would afford further protection to
the belugas as the MMPA would
prohibit the importation of these
animals into the United States for the
purposes of public display.
Response: We acknowledge this
comment and are finalizing the depleted
designation for this stock as proposed.
See the response to Comment 14
regarding additional protections
afforded under this depleted
designation.
Comment 2: Some commenters were
opposed to designating the Sakhalin
Bay-Nikolaya Bay-Amur River beluga
whale stock as depleted under the
MMPA. They noted that each year
millions of people visit public display
facilities to view marine mammals and
these experiences provide a unique
opportunity for conservation education
that include increasing the awareness of
the unique ecosystem where beluga
whales are found and the many
obstacles they face to survive in their
natural environment, and provided
several citations in support of their
position. In addition, commenters stated
that these facilities support scientific
studies that would not be possible by
studying the animals in the wild.
Response: We recognize the value of
public display of marine mammals for
conservation education. However, in
accordance with section 3(1)(A) of the
MMPA, we determine whether a stock
is depleted based on its abundance
relative to its OSP. Because we
determined that the Sakhalin BayNikolaya Bay-Amur River stock of
beluga whales is below its OSP, we are
designating the stock as depleted under
the MMPA. As a result of this
determination, importation of beluga
whales from this population (or their
progeny) into the United States for the
purpose of public display will now be
prohibited.
Comment 3: A number of commenters
stated that NMFS does not have the
authority to designate a foreign marine
mammal population as a depleted stock
under the MMPA, and thus does not
have the authority to proceed with the
proposed designation. These
commenters further stressed that NMFS
does not provide any legal or regulatory
support to whether NMFS may
designate foreign stocks as depleted.
Other commenters asserted that the
MMPA does grant NMFS the authority
to designate stocks as depleted, even if
they occur outside of waters under the
jurisdiction of the United States, and
that the original legislative intent
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further supports the conservative or
precautionary policy that is at the heart
of the MMPA. Commenters on both
sides of the jurisdiction issue argued
that the plain language of the MMPA,
case law, precedent, and Congressional
intent support their position.
Response: The plain language of the
MMPA and the regulatory framework it
establishes for protecting marine
mammals provide NMFS with the
authority to designate any marine
mammal stock or species as depleted,
regardless of where the species or stock
occurs. NMFS therefore agrees with
those commenters who assert that
NMFS has the authority to designate a
foreign stock of marine mammals as
depleted, and disagrees with those
commenters who assert that the agency
does not have that authority. NMFS
refers commenters to the ‘‘Authority’’
section, above, for an explanation of its
authority. Following are responses to
specific arguments raised by
commenters with respect to this issue.
One commenter stated that ‘‘[i]t is
well established that the MMPA does
not apply extraterritorially,’’ citing U.S.
v. Mitchell, 553 F.2d 996 (5th Cir. 1977).
U.S. v. Mitchell held that the MMPA’s
prohibition on taking extends to the
high seas but does not extend to the
territorial waters of a foreign sovereign
state; the opinion did not address the
scope of NMFS’ authority to designate a
species or stock of marine mammals as
depleted under section 115(a) of the
Act. Although NMFS believes that it has
the authority to designate any marine
mammal stock or species as depleted
regardless of geographic location, to the
extent that commenters are arguing that
NMFS’ authority applies only up to the
boundary of a foreign nation’s territorial
seas, NMFS notes that telemetry data
from whales tagged in Sakhalin Bay and
biological information about the whales’
migratory behavior demonstrate that
beluga whales from this stock travel
hundreds of kilometers offshore, well
beyond the territorial seas of Russia
(Shpak et al., 2010, 2011, 2012).
Some commenters also asserted that
the plain language of the ESA and the
MMPA indicate that Congress intended
the ESA—and not the MMPA—to be the
regulatory system through which foreign
marine mammals are protected. NMFS
disagrees. The MMPA and the ESA are
separate statutes with distinct
frameworks for protecting and
conserving marine mammals and
threatened and endangered species,
respectively. NMFS has the authority to
list foreign species as threatened or
endangered under the ESA, and NMFS
also has the authority to designate
foreign species or stocks as depleted
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under the MMPA. For example, NMFS’
authority under the MMPA is evident
from the import prohibition, which
makes it ‘‘unlawful to import into the
United States any marine mammal if
such mammal was . . . taken from a
species or population stock which
[NMFS] has, by regulation published in
the Federal Register, designated as a
depleted species or stock.’’ Id. section
1372(b)(3). By its plain terms, the
import prohibition recognizes NMFS’
authority to designate a species or stock
that occurs outside of waters under the
jurisdiction of the United States as
depleted. Commenters’ assertion that
the MMPA’s import prohibition applies
only to marine mammals that are
designated as depleted by virtue of an
ESA listing is contrary to the plain
meaning of this provision. See In re
Polar Bear Endangered Species Act
Listing & Section 4(d) Rule Litigation,
720 F.3d 354, 360 (D.C. Cir. 2013)
(determining that the protections of 16
U.S.C. 1372(b)(3) apply ‘‘to all depleted
species, regardless of how they achieve
their depleted status’’).
Finally, with respect to precedent,
NMFS has previously used its authority
under section 115(a) to designate as
depleted two stocks of dolphins that
occur entirely outside of waters under
the jurisdiction of the United States:
The northeastern stock of offshore
spotted dolphin and the eastern stock of
spinner dolphin. See 58 FR 58285 (Nov.
1, 1993); 58 FR 45066 (Aug. 26, 1993).
Some commenters argued that NMFS’
authority to designate these stocks as
depleted was rooted in the ‘‘extreme
and unique circumstances surrounding
the regulatory structure in place with
respect to these stocks’’ in the eastern
tropical Pacific Ocean (ETP). NMFS
acknowledges that Congress amended
the MMPA to include provisions
specifically relating to the ETP.
However, NMFS designated these stocks
as depleted pursuant to section 115(a) of
the Act, and not pursuant to any
provision of the MMPA applicable only
to the ETP. The depletion designations
of these two stocks of dolphins therefore
provide precedent for the current action.
Comment 4: One commenter
suggested that designating a foreign
species as depleted under the MMPA
‘‘. . . would set a harmful precedent
that potentially establishes a dual-track
regulation of imperiled species,’’ and
recommended that NMFS retract the
proposed rule and instead consider any
future petition brought under the ESA
concerning the Sakhalin Bay-Nikolaya
Bay-Amur River aggregation.
Response: Section 115(b) of the
MMPA outlines the steps that NMFS is
required to take when petitioned to
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designate a species or stock as depleted.
We have followed those steps, and
concluded that a depleted designation is
warranted for the Sakhalin BayNikolaya Bay-Amur River stock of
beluga whales. This final rule is being
promulgated under the MMPA and we
are not taking any action under the ESA
at this time, but this does not preclude
us from responding to any future
petition to list the population under the
ESA.
Regarding the ‘‘dual track’’ regulation
referenced by the commenter, a species
that is listed as threatened or
endangered under the ESA is
automatically considered depleted
under MMPA, but the converse is not
true. Therefore, this MMPA depleted
designation does not automatically
result in any ESA protections. This
depleted designation is not
unprecedented; there are several species
or stocks of marine mammals that have
been determined to be depleted under
the MMPA but are not listed under the
ESA, such as the AT1 group of killer
whales (69 FR 31321, June 3, 2004) and
the Pribilof Island population of North
Pacific fur seals (53 FR 17888, May 18,
1988).
Comment 5: A number of commenters
stated that NMFS has not satisfied its
obligation to review and/or evaluate the
best available scientific information
with respect to the Sakhalin BayNikolaya Bay-Amur River population of
beluga whales. Conversely, a number of
commenters reiterated the
Commission’s comments that NMFS’
status review is ‘‘a well-written
document that thoroughly analyzes the
available information.’’
Response: We conducted a thorough
review of the status of beluga whales in
the Sea of Okhotsk. We reviewed all
available scientific information
contained in our files and in peer
reviewed literature, as well as
information provided by the petitioners
and the public. Several commenters
provided additional information during
the proposed rule public comment
period. The additional information
received was either considered
previously or did not alter our
determinations regarding the status of
the Sakhalin Bay-Nikolaya Bay-Amur
River stock of beluga whales. The best
scientific information available supports
our determination that this stock of
beluga whales should be designated as
depleted.
Comment 6: One commenter noted
that the Commission and the Committee
of Scientific Advisors (CSA) are ‘‘. . .
both domestic groups with no
knowledge or authority over foreign
species or stocks.’’ In addition, NMFS
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does not provide an explanation for how
the Commission formed the basis for its
recommendation to designate the
Sakhalin Bay-Nikolaya Bay-Amur River
stock as depleted, or whether the
Committee offered a similar
recommendation or participated in the
process at all.
Response: The MMPA defines the
term ‘‘depleted’’ as including any
species or population stock that NMFS,
after consultation with the Commission
and its CSA on Marine Mammals,
determines to be below its OSP. NMFS
notes that this provision requires
consultation with the Commission and
its CSA; it does not provide the
Commission with independent
authority to designate a species or stock
as depleted. Further, NMFS disagrees
that the Commission and its CSA have
no knowledge over foreign species. See,
e.g., 16 U.S.C. 1402 (directing the
Commission to recommend such steps
as it deems necessary or desirable for
the protection and conservation of
marine mammals, to suggest appropriate
international arrangements for the
protection and conservation of marine
mammals, and to recommend such
revisions to the list of threatened and
endangered species as may be
appropriate with regard to marine
mammals, among other duties).
As stated in the preamble to the
proposed rule, we consulted with the
Commission related to the petition to
designate the Sakhalin Bay-Amur River
group of beluga whales as a depleted
population stock. Review of the draft
status review report by the Commission,
in consultation with its CSA,
constituted the consultation required by
section 3(1)(A). We have confirmed that
the Commission consulted with its CSA
in making its recommendation. We are
neither required to, nor are we in a
position to explain, the basis for a
recommendation by another federal
agency.
Comment 7: Some commenters
claimed that NMFS has essentially
changed Congress’ definition of a stock.
They state that the MMPA’s definition
of a ‘‘population stock’’ (i.e., ‘‘a group of
marine mammals of the same species or
smaller taxa in a common spatial
arrangement, that interbreed when
mature’’ (MMPA section 3(11)), is
consistent with the ‘‘traditionally
accepted scientific definition of a
‘population’ (e.g., the community of
potentially interbreeding individuals at
a given locality, Mayr 1963).’’ They
disagree with NMFS’ interpretation of
‘‘interbreed when mature’’ to include a
‘‘group [that] migrates seasonally to a
breeding ground where its members
breed with members of the same group
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as well as with members of other
demographically distinct groups which
have migrated to the same breeding
ground from a different feeding
ground.’’ They state that NMFS’ use of
the terms demographically distinct,
demographically independent, or
demographically isolated groups is also
scientifically incorrect and
inappropriate (Cronin 2006, 2007). They
argue that while whales from different
feeding grounds may be spatially
separated for a period of time, they are
not distinct, independent, or isolated
breeding (i.e., demographic) groups.
Response: We disagree that we have
improperly changed the MMPA’s
definition of stock. The MMPA provides
both biological and ecological guidance
for defining marine mammal stocks. The
biological guidance is in the definition
of population stock: A group of marine
mammals of the same species or smaller
taxa in a common spatial arrangement
that interbreed when mature (MMPA
section 3(11)). The ecological guidance
is addressed in the requirement that a
stock be maintained as a functioning
element of the ecosystem (MMPA
section 2(2)). NMFS has developed
guidelines for assessing marine mammal
stocks (GAMMS); the most recent
revision to the GAMMS was made
available for public comment and
finalized in February 2016 (NMFS
2016). The GAMMS provide guidance
on defining population stocks consistent
with the MMPA. NMFS’ approach to
determining that beluga whales
primarily occurring in the Sakhalin BayNikolaya Bay-Amur River area is a stock
is consistent with the guidance
provided in the GAMMS.
For the purposes of management
under the MMPA, NMFS recognizes a
marine mammal stock as being a
management unit that identifies a
demographically independent biological
population. We define demographic
independence to mean that the
population dynamics of the affected
group is more a consequence of births
and deaths within the group (internal
dynamics) rather than immigration or
emigration (external dynamics). Thus,
the exchange of individuals between
population stocks is not great enough to
prevent the depletion of one of the
populations as a result of increased
mortality or lower birth rates (NMFS
2016). Mortality includes both natural
and human-caused mortality and
removals from the population.
In our definition of demographic
independence and in our interpretation
of ‘‘interbreed when mature’’ we
recognize that some interchange among
groups may occur (i.e., demographic
isolation is not required). Therefore, we
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find it to be valid to define stocks in
which: (1) Mating occurs primarily
among members of the same
demographically independent group, or
(2) the group migrates seasonally to a
breeding ground where its members
breed with members of the same group
as well as with members of other
demographically distinct groups which
have migrated to the same breeding
ground from a different feeding ground
(Bettridge et al., 2016).
Comment 8: One commenter alleged
that in its review of the scientific data,
NMFS selectively used data to support
its conclusion, while ignoring other
relevant, highly reliable data to the
contrary. Specifically, the commenter
argued that NMFS inappropriately
dismissed the nuclear microsatellite
DNA data and overemphasized the
mitochondrial DNA (mtDNA) data, thus,
not considering the relevance of the
nuclear DNA data to the primary issue
of identification of interbreeding groups.
Response: We disagree with the
commenter. As documented in the
status review and the preamble to the
proposed rule, we evaluated all
available scientific literature and all
lines of evidence for and against
demographic independence of Sakhalin
Bay-Nikolaya Bay-Amur River beluga
whales (see sections 4.2.1 and 4.2.2 of
the status review report). Regarding the
nuclear microsatellite DNA, we
acknowledged in the preamble to the
proposed rule that analysis of nuclear
microsatellite markers found no
evidence for genetic differentiation
among the bays of the western Sea of
Okhotsk with the exception of a
comparison of Sakhalin Bay to the
distant Ulbansky Bay (Meschersky and
Yazykova 2012, Meschersky et al.,
2013). The status review report
explained that the lack of nuclear DNA
differentiation among most summer
feeding areas in the western Sea of
Okhotsk (except between Sakhalin BayAmur River and the distant Ulbansky
Bay; Meschersky and Yazykova 2012;
Meschersky et al., 2013) is consistent
with interbreeding between animals that
aggregate in Sakhalin Bay and the other
bays, and because these animals spend
some parts of the year together (i.e.,
winter), it is plausible that recruitment
into a summer aggregation could be both
internal and external. However, we
concluded the nuclear DNA data
available to date are too weak, given the
level of and design of the sampling, to
assess how much internal versus
external recruitment there is. Moreover,
the status review team expressed
concern about the adequacy of the
sampling (most areas were sampled
predominantly in one year, skewed
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towards males) and the microsatellite
data quality. Meschersky and Yazykova
(2012) did not provide sufficient
information on data collection and
analysis methods, so it was not possible
to evaluate the quality of the
microsatellite data. The International
Union for Conservation of Nature
(IUCN) independent scientific review
panel of beluga whale experts also
considered the available nuclear DNA
analyses and expressed concerns over
the sampling design and methods
(Reeves et al., 2011).
Generally, significant differences in
mtDNA haplotype frequencies are
interpreted as sufficient evidence for
demographic independence reflecting
female philopatry. Stocks, including
harbor seal stocks in the North Pacific
(O’Corry-Crowe et al., 2003) and the
humpback whale stock in the western
North Atlantic (Palsb2014
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team discussed, for example, that
Yazykova et al. (2012) indicate they
used the microsatellite loci DlrFCB6 and
DlrFCB17, yet these two loci are known
to be the same. Standard data quality
tests should have identified they were
the same, and one of them should have
been subsequently dropped from all
analyses. Therefore, the microsatellite
data set may contain significant errors
that could lead to incorrect conclusions,
and the status review team could not
adequately evaluate these potential
issues.
NMFS believes the telemetry (tagging)
data also supports our stock delineation,
although we consider them to be weaker
evidence, in part, because of the small
number of tags. Furthermore, while the
tag data reveal where animals move,
they do not indicate whether
interbreeding is occurring if/when
animals from different stocks may
overlap. However, NMFS disagrees with
the commenters’ assertion that ‘‘[t]he
telemetry data show there is significant
movement of belugas among bays in the
Sea of Okhotsk in autumn and other
times of the year.’’ Beluga whale
movements from Sakhalin Bay to the
Shantar region, mainly Nikolaya Bay,
were recorded primarily in the fall and
interpreted as the beginning of
migration westward and then northwest
into offshore waters for the winter.
Shpak et al. (2010) reported that the four
tagged whales moved from Sakhalin Bay
to Nikolaya Bay, with a few detections
in the very far southeastern edge of
Ulbansky Bay adjacent to Nikolaya Bay,
in the fall just prior to migrating further
north into the open water of the Sea of
Okhotsk (see Figure 3 of Shpak et al.,
2010). Tagging efforts to date do not
present any evidence that the animals
move farther west than that within the
other bays (i.e., into Tugursky Bay or
Udskaya Bay). As discussed in the
preamble to the proposed rule, although
not very many whales have been tagged,
the data available to date suggest whales
present in the summer in Sakhalin Bay
also use Nikolaya Bay, but there is little
evidence for movement between
Sakhalin Bay and the other bays further
to the west during spring and summer.
Regarding census (abundance) data,
one commenter speculated that the
inter-annual differences in population
estimates in the Shantar and SakhalinAmur regions are not a result of
increases (or decreases) in insolated
populations, but, rather, indicate that
beluga whales move from one region to
another. In support of their argument,
the commenter recalculated Shpak et
al.’s (2011) abundance estimates from
the 2009 and 2010 aerial surveys by
using correction factors NMFS
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74717
‘‘typically’’ uses for beluga whales in
Alaska (Allen and Angliss 2014).
However, NMFS does not apply any
‘‘typical’’ correction factor to estimate
beluga abundance. The corrections, to
account for animals during surveys that
were missed either because the animals
are submerged or too small to be seen,
are dependent on the survey conditions
(such as altitude, air speed, ice
conditions, and water clarity) and
therefore vary. The correction factors
used by the commenter, 2.62 (to account
for diving animals) and 1.18 (to account
for newborns and yearlings not observed
due to their small size and dark
coloration), were developed
respectively, for Bristol Bay (Frost and
Lowry 1995) and Cumberland Sound,
Baffin Island (Brodie 1971). In cases
when conditions were similar, NMFS
has used these correction factors for
other areas in Alaska (e.g., Eastern
Chuckchi Sea and Eastern Bering Sea),
while in other cases we have used
correction factors of 2 (e.g., the Beaufort
Sea), or have used an analysis of video
tape or regression of counts to correct
for availability and sightability (e.g.,
Cook Inlet) (Allen and Angliss 2015).
The commenter has not demonstrated
that the survey conditions in this region
were sufficiently similar to those in
Bristol Bay or Cumberland Sound.
Further, both Shpak et al. (2011) and
Reeves et al. (2011) considered using a
correction factor of 2 to be appropriate.
The commenter also discussed the
relative abundance of beluga whales in
the Sakhalin-Amur and Shantar regions.
Regardless of which correction factors
are used, the Sakhalin-Amur aggregation
represents 59 percent of the total
estimated number of beluga whales in
the two regions in 2009 and 33 percent
in 2010. The commenter asserted that
the inter-annual differences in
abundance are due to shifting of belugas
from one region to another, which it
states may be in large part due to the
variation in salmon or other fish runs.
The commenter cited Berzin et al. 1991,
Trumble and Lajus 2008, and Popov
1986 in support, but did not include a
copy of these papers with the comment
letter. We searched but were unable to
obtain copies of Berzin et al. (1991) and
Popov (1986). However, we reviewed
Trumble and Lajus (2008) and the
commenter’s description of the findings
from the two unavailable papers.
As stated in the status review, we
acknowledge that summer aggregations
of beluga whales often focus on
seasonally available fish runs, like
salmon runs. However, we do not agree
that the abundance data indicate a
single stock of beluga whales moving
between regions. We evaluated the
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abundance information, including the
information provided by the
commenters. Based on the estimates of
abundance and associated statistical
error presented in Shpak and Glazov
(2013, Table 4), there is a 31 percent
difference between the abundance in
2009 and the lower of the two
abundance estimates in 2010 in the
Sakhalin-Amur aggregation. We
conclude that the difference can be
explained by the statistical uncertainty
of the abundance estimates. Thus, the
difference between the estimates can be
attributed to sampling error between
surveys and NMFS finds no reason,
based on our analysis of the abundance
information, to reject the status review
team’s conclusion that the population in
the Sakhalin Bay-Amur River area is a
distinct stock.
Based upon the above, we cannot
conclude that all beluga whales from the
five western bays in the Sea of Okhotsk
belong to a single demographically
independent population; the best
scientific information available supports
our conclusion that the Sakhalin BayNikolaya Bay-Amur River population of
beluga whales is a stock. Multiple lines
of evidence support this conclusion,
including mtDNA differentiation,
movement data, geographical/ecological
separation, and similarity to other
examples of MMPA stock designations
outlined in the status review report (e.g.,
beluga whales in Alaska). Our
conclusion is largely consistent with
that of the 2011 IUCN independent
scientific review panel (Reeves et al.,
2011) regarding the unit to conserve.
Comment 10: Many commenters
supported the Commission’s
recommendation for NMFS to take a
precautionary approach to include
Nikolaya Bay and designate the
Sakhalin Bay-Nikolaya Bay-Amur River
distinct stock of beluga whales as
depleted under the MMPA.
Response: We acknowledge this
comment and are including beluga
whales in Nikolaya Bay in the stock
being designated as depleted.
Comment 11: Several commenters
asserted that comparable inferences
from the better studied beluga whale
populations of Canada’s Hudson Bay
support NMFS’ conclusions on mtDNA
and geographic and ecological
separation along maternal lines to
delineate the Sakhalin Bay-Nikolaya
Bay-Amur River population as a stock.
Response: We acknowledge this
comment but clarify that we relied on
multiple lines of evidence to identify
the stock, including genetic, telemetry,
and movement data.
Comment 12: A number of
commenters argued that designating the
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Sakhalin Bay-Nikolaya Bay-Amur River
stock as depleted would be perceived by
Russia that the United States does not
approve of its management of the
species, and would actually impede
efforts to conserve beluga populations in
Russian waters.
Response: We were petitioned under
section 115 of the MMPA to evaluate
whether the beluga whales in the
Sakhalin Bay-Amur River region are
depleted. We do not have the discretion
to consider political factors in the
analysis of whether a stock is below its
OSP level and a depleted designation is
warranted.
Comment 13: Several commenters
asserted that the Sakhalin Bay-Amur
River stock is below its OSP level and
clearly depleted, and including
Nikolaya Bay does not change NMFS’
depletion finding.
Response: We acknowledge this
comment and are finalizing the
designation of the Sakhalin BayNikolaya Bay-Amur River stock of
beluga whales as depleted.
Comment 14: Many commenters
claimed that the depleted finding would
provide the stock greater protection
against further decline. One noted that
a depleted designation would help
promote the goals of the MMPA by
helping to recover the population
thereby protecting the health and
stability of the marine ecosystem.
Response: NMFS notes that although
we do not manage this foreign stock
directly, this depleted designation
prohibits importation of whales from
this stock into the United States for the
purpose of public display, which may
partially address the threat of the livecapture trade by reducing demand. This
is consistent with our 2013 denial of the
Georgia Aquarium’s application for a
permit to import 18 beluga whales from
this population into the United States,
in which we found that ongoing, legal
marine mammal capture operations in
Russia are expected to continue, and
issuance of the permit would have
contributed to the demand to capture
belugas from this stock for the purpose
of public display worldwide, resulting
in the future taking of additional
belugas from this stock.
The MMPA requires NMFS to prepare
a conservation plan and restore any
stock designated as depleted to its OSP
level, unless NMFS determines that
such a plan would not promote the
conservation of the stock. We have
determined that a conservation plan
would not further promote the
conservation of the Sakhalin BayNikolaya Bay-Amur River stock of
beluga whales given that NMFS does
not manage the stock, and therefore do
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not plan to implement a conservation
plan. However, as noted above, by
prohibiting the importation of Sakhalin
Bay-Nikolaya Bay-Amur River beluga
whales into the United States for the
purpose of public display, this depleted
designation will provide intrinsic
conservation benefits that may reduce
the impacts of live captures to this
stock.
Comment 15: Some commenters
recommended additional genetic and
environmental research in the Sea of
Okhotsk, to better define and manage
the population’s recovery.
Response: We agree that such research
would be beneficial. Such research was
also recommended by the Commission
in its consultation with us, and by the
IUCN panel (Reeves et al., 2011).
Comment 16: One commenter noted
that according to new data from the
United Nations Environment
Programme’s World Conservation
Monitoring Center, at least 37 live
beluga whales, likely from the Sakhalin
Bay-Nikolaya Bay-Amur River stock,
were exported from Russia in 2014, and
emphasized that the level of these live
exports alone continues to exceed its
potential biological removal level (PBR).
Response: We recognize that live
captures are a continuing threat to this
stock, but our evaluation of the stock’s
status did not consider PBR. Rather, we
evaluated the stock’s abundance relative
to carrying capacity to determine
whether the population was below its
OSP level.
Comment 17: Some commenters cited
new information documenting that
unsustainable live removals for public
display, mortality incidental to these
captures, and pollution continue to
contribute to the population’s depletion.
Other commenters noted that beluga
whales from this population face threats
from vessel strikes, entanglement and
drowning, subsistence harvest, oil and
gas development, and climate change.
Response: We appreciate the updated
information provided by the
commenters regarding live captures,
measurements of persistent organic
pollutants in tissue collected from
beluga whales in the Sea of Okhotsk,
and oil and gas development in the
Sakhalin region. As we noted in the
preamble to the proposed rule,
information on potential sources of
serious injury and mortality is limited
for the Sea of Okhotsk beluga whales.
The IUCN panel identified subsistence
harvest, death during live capture for
public display, entanglement in fishing
gear, vessel strike, climate change, and
pollution as human activities that may
result in serious injury or mortality to
Sea of Okhotsk beluga whales (Reeves et
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al. 2011). The greatest amount of
available information is from the
estimates of annual take from the
commercial hunt. As noted in the
petition, the IUCN review, and the
preamble to the proposed rule,
monitoring of other types of mortality in
the Sea of Okhotsk is low, if existent at
all, and information on possible threats
and sources of mortality in Sea of
Okhotsk beluga whales is highlighted by
a lack of substantiated data, and is
largely anecdotal.
As noted above, a direct result of this
depleted designation is that importation
of whales from this stock into the
United States for purposes of public
display is prohibited. This may reduce
the impacts of live captures, but does
not directly address the remaining
threats to this population.
Classification
This rule has been determined to be
not significant for the purposes of
Executive Order 12866.
Similar to ESA listing decisions,
which are based solely on the best
scientific and commercial information
available, depleted designations under
the MMPA are determined ‘‘solely on
the basis of the best scientific
information available.’’ 16 U.S.C.
1533(b)(1)(A) and 16 U.S.C. 1383b(a)(2).
Because ESA listings are thus exempt
from the requirement to prepare an
environmental assessment or
environmental impact statement under
the National Environmental Policy Act
of 1969 (see NOAA Administrative
Order 216–6.03(e)(1)), NMFS has
determined that MMPA depleted
designations are also exempt from the
requirements of the National
Environmental Policy Act. Thus, an
environmental assessment or
environmental impact statement is not
required and none has been prepared for
the depleted designation of this stock
under the MMPA.
When the proposed rule was
published, the Chief Counsel for
Regulation of the Department of
Commerce certified to the Chief Counsel
for Advocacy of the Small Business
Administration that this rule would not
have a significant impact on a
substantial number of small entities. (81
FR 19546, April 5, 2016). This rule
designates a group of beluga whales in
Russian waters (known as the Sakhalin
Bay-Nikolaya Bay-Amur River group) as
depleted; however, this rule would not,
by itself, directly regulate the public,
including any small entities. The
MMPA authorizes NMFS to take certain
actions to protect a stock that is
designated as depleted. For example, a
stock that is designated as depleted
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meets the definition of a strategic stock
under the MMPA. Under provisions of
the MMPA, a take reduction team must
be established and a take reduction plan
developed and implemented within
certain time frames if a strategic stock of
marine mammals interacts with a
Category I or II commercial fishery.
However, NMFS has not identified any
interactions between commercial
fisheries and this group of beluga
whales that would result in such a
requirement. In addition, under the
MMPA, if NMFS determines that
impacts on areas of ecological
significance to marine mammals may be
causing the decline or impeding the
recovery of a strategic stock, it may
develop and implement conservation or
management measures to alleviate those
impacts. However, NMFS has not
identified information sufficient to
make any such determination for this
group of beluga whales. The MMPA also
requires NMFS to prepare a
conservation plan and restore any stock
designated as depleted to its OSP,
unless NMFS determines that such a
plan would not promote the
conservation of the stock. NMFS has
determined that a conservation plan
would not promote the conservation of
the Sakhalin Bay-Nikolaya Bay-Amur
River stock of beluga whales and
therefore does not plan to implement a
conservation plan. In summary, this
final rule will not directly regulate the
public. If any subsequent restrictions
placed on the public to protect the
Sakhalin Bay-Nikolaya Bay-Amur River
stock of beluga whales are included in
separate regulations, appropriate
analyses under the Regulatory
Flexibility Act would be conducted
during those rulemaking procedures.
The MMPA prohibits the importation
of any marine mammal designated as
depleted for purposes of public display
(see 16 U.S.C. 1371(a)(3)(B) and
1372(b)). Therefore, this rule will have
the indirect effect of prohibiting the
future importation of any marine
mammal from this stock into the United
States for purposes of public display.
There are 104 facilities in the United
States that house marine mammals for
the purposes of public display. Of these,
only six facilities house beluga whales.
There are currently twenty-seven beluga
whales at these facilities. None of these
beluga whales were taken in the wild
from the Sakhalin Bay-Nikolaya BayAmur River stock; three whales are
progeny of animals taken in the wild
from this stock. NMFS receives very few
requests to import beluga whales into
the United States for purposes of public
display and has no pending requests to
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74719
import beluga whales for public display.
NMFS notes the small number of U.S.
entities that house beluga whales and
the small number of beluga whales from
this stock that are currently permitted
for public display in the United States.
Because this rule will not prevent an
entity from requesting to import a
beluga whale from a non-depleted stock
for purposes of public display, NMFS
found that this rule would not result in
a significant economic impact on a
substantial number of small entities.
NMFS invited comment from members
of the public to provide any additional
information on NMFS determination
that the rule will not result in a
significant economic impact on a
substantial number of small entities.
NMFS did not receive any comment on
this issue. As a result, no regulatory
flexibility analysis for this final rule has
been prepared.
This final rule does not contain a
collection-of-information requirement
for purposes of the Paperwork
Reduction Act of 1980.
This final rule does not contain
policies with federalism implications
sufficient to warrant preparation of a
federalism assessment under Executive
Order 13132.
List of Subjects in 50 CFR Part 216
Administrative practice and
procedure, Exports, Imports, Marine
mammals, Transportation.
Dated: October 24, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the
preamble, 50 CFR part 216 is amended
as follows:
PART 216—REGULATIONS
GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
1. The authority citation for part 216
continues to read as follows:
■
Authority: 16 U.S.C. 1361 et seq., unless
otherwise noted.
2. In § 216.15, add paragraph (j) to
read as follows:
■
§ 216.15
Depleted species.
*
*
*
*
*
(j) Sakhalin Bay-Nikolaya Bay-Amur
River beluga whales (Delphinapterus
leucas). The stock includes all beluga
whales primarily occurring in, but not
limited to, waters of Sakhalin Bay,
Nikolaya Bay, and Amur River in the
Sea of Okhotsk.
[FR Doc. 2016–25984 Filed 10–26–16; 8:45 am]
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[Federal Register Volume 81, Number 208 (Thursday, October 27, 2016)]
[Rules and Regulations]
[Pages 74711-74719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25984]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 151113999-6950-02]
RIN 0648-BF55
Designating the Sakhalin Bay-Nikolaya Bay-Amur River Stock of
Beluga Whales as a Depleted Stock Under the Marine Mammal Protection
Act (MMPA)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, NMFS, issue a final determination to designate the
Sakhalin Bay-Nikolaya Bay-Amur River Stock of beluga whales
(Delphinapterus leucas) as a depleted stock of marine mammals pursuant
to the Marine Mammal Protection Act (MMPA). This action is being taken
as a result of a status review conducted by NMFS in response to a
petition to designate a group of beluga whales in the western Sea of
Okhotsk as a depleted stock. The biological evidence indicates that the
group is a population stock as defined by the MMPA, and the stock is
depleted as defined by the MMPA.
DATES: This final rule is effective November 28, 2016.
ADDRESSES: Copies of supporting documents, including the status review,
the proposed rule, and a list of references cited in the final rule,
are available via the Federal e-rulemaking Portal, at
www.regulations.gov (search for Docket ID NOAA-NMFS-2015-0154), or at
https://www.fisheries.noaa.gov/pr/species/mammals/whales/beluga-whale.html. Those documents are also available from NMFS at the
following address: Chief, Marine Mammal and Sea Turtle Conservation
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3226.
FOR FURTHER INFORMATION CONTACT: Shannon Bettridge,
Shannon.Bettridge@noaa.gov, Office of Protected Resources, 301-427-
8402.
SUPPLEMENTARY INFORMATION:
Background
Section 115(a) of the MMPA (16 U.S.C. 1383b(a)) allows interested
parties to petition NMFS to initiate a status review to determine
whether a species or stock of marine mammals should be designated as
depleted. On April 23, 2014, we received a petition from the Animal
Welfare Institute, Whale and Dolphin Conservation, Cetacean Society
International, and Earth Island Institute (petitioners) to ``designate
the Sakhalin Bay-Amur River stock of beluga whales as depleted under
the MMPA.'' We published a notification that the petition was available
(79 FR 28879; May 20, 2014). After evaluating the petition, we
determined that the petition contained substantial information
indicating that the petitioned action may be warranted (79 FR 44733;
August 1, 2014). Following the determination that the petitioned action
may be warranted, we convened a status review team and conducted a
status review to evaluate
[[Page 74712]]
whether the Sakhalin Bay-Amur River group of beluga whales is a
population stock and, if so, whether that stock is depleted. On April
5, 2016, we published a proposed rule to designate the Sakhalin Bay-
Nikolaya Bay-Amur River Stock of beluga whales as a depleted stock of
marine mammals pursuant to the MMPA (81 FR 19542), and solicited
comments from all interested parties including the public, other
governmental agencies, the scientific community, industry, and
environmental groups.
Authority
Although the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga
whales does not occur in waters under the jurisdiction of the United
States, we have authority to designate the stock as depleted if we find
that the stock is below its optimum sustainable population (OSP).
Section 115(a) of the MMPA provides NMFS with the authority to
designate ``a species or stock'' of marine mammals as depleted and sets
forth the procedures the agency must follow to make such a designation.
16 U.S.C. 1383b(a)(1). The MMPA defines ``depleted'' as any case in
which: (1) NMFS determines that a species or population stock is below
its optimum sustainable population; (2) a state to which authority has
been delegated makes the same determination; or (3) a species or stock
is listed as threatened or endangered under the Endangered Species Act
(ESA). 16 U.S.C. 1362(1). These provisions draw no distinction between
marine mammals based on their geographic location. Rather, NMFS'
authority to designate as depleted a species or stock occurring outside
of waters under the jurisdiction of the United States is supported by
the express link to the ESA found in the MMPA's definition of
``depleted.'' Species of marine mammals that occur outside of waters
under the jurisdiction of the United States are regularly listed as
threatened or endangered under the ESA. Pursuant to the MMPA's
definition of depleted, these species are automatically designated as
depleted when they are listed under the ESA. The definition of
depleted, therefore, demonstrates Congressional support for depleted
designations for foreign marine mammals. NMFS' authority is also
supported by the MMPA's import prohibition, which makes it ``unlawful
to import into the United States any marine mammal if such mammal was .
. . taken from a species or population stock which [NMFS] has, by
regulation published in the Federal Register, designated as a depleted
species or stock.'' Id. section 1372(b). By its plain terms, the import
prohibition recognizes NMFS' authority to designate a species or stock
that occurs outside of waters under the jurisdiction of the United
States as depleted.
NMFS has previously used its authority under section 115(a) to
designate as depleted, two stocks of marine mammals that occur entirely
outside of waters under the jurisdiction of the United States: The
northeastern stock of offshore spotted dolphin and the eastern stock of
spinner dolphin. See 58 FR 58285 (Nov. 1, 1993); 58 FR 45066 (Aug. 26,
1993). NMFS believes that the exercise of this authority is consistent
with Congress's intent in enacting the MMPA that marine mammal
``species and population stocks should not be permitted to diminish
beyond the point at which they cease to be a significant functioning
element in the ecosystem of which they are a part,'' and that ``they
should be protected and encouraged to develop to the greatest extent
feasible . . .'' 16 U.S.C. 1361.
Status Review
A status review for the population stock of beluga whales addressed
in this rule was conducted by a status review team (Bettridge et al.,
2016). The status review compiled and analyzed information on the
stock's distribution, abundance, threats, and historic take from
information contained in the petition, our files, a comprehensive
literature search, and consultation with experts. The draft status
review report was submitted to independent peer reviewers, and comments
and information received from peer reviewers were addressed and
incorporated as appropriate before finalizing the report.
As required by the MMPA, we consulted with the Marine Mammal
Commission (Commission) related to the petition to designate the
Sakhalin Bay-Amur River group of beluga whales as a depleted population
stock. In a letter dated December 7, 2015, the Commission recommended
we take a precautionary approach and define the Sakhalin Bay-Amur River
stock to include whales in Nikolaya Bay and promptly publish a proposed
rule under section 115(a)(3)(D) of the MMPA to designate this stock as
depleted.
Sea of Okhotsk Beluga Whales
Beluga whales are found throughout much of the Sea of Okhotsk,
including Shelikov Bay in the northeast and throughout the western Sea
of Okhotsk including the Amur River estuary, the nearshore areas of
Sakhalin Bay, in the large bays to the west (Nikolaya Bay, Ulbansky
Bay, Tugursky Bay and Udskaya Bay), and among the Shantar Islands. Use
of the bays and estuaries in the western Sea of Okhotsk is limited
primarily to summer months when belugas may molt (Finley 1982) and give
birth to and care for their calves (Sergeant and Brodie 1969). The
whales move into the ice-covered offshore areas of the western Sea of
Okhotsk in the winter (Melnikov 1999). In the status review and the
preamble to the proposed rule, we refer to the beluga whales found in
the Amur River estuary and the nearshore areas of Sakhalin Bay during
summer as the Sakhalin Bay-Amur River beluga whales.
The preamble to the proposed rule summarized additional general
background information on the Sea of Okhotsk beluga whales' natural
history, range, reproduction, population structure, distribution,
abundance, and threats. That information has not changed and is not
repeated here.
Stock Determination
The MMPA defines ``population stock'' as ``a group of marine
mammals of the same species or smaller taxa in a common spatial
arrangement, that interbreed when mature'' (MMPA section 3(11)). NMFS'
guidelines for assessing stocks of marine mammals (NMFS 2005) state
that many different types of information can be used to identify
stocks, reproductive isolation is proof of demographic isolation, and
demographically isolated groups of marine mammals should be identified
as separate stocks. NMFS has interpreted ``demographically isolated''
as ``demographically independent'' (see, for example, Weller et al.,
2013, Moore and Merrick (eds.) 2011), and recently updated the
guidelines for assessing stocks of marine mammals to reflect this
interpretation (NMFS 2016).
NMFS considered the following lines of evidence regarding the
Sakhalin Bay-Amur River beluga whales to answer the question of whether
the group comprises a stock: (1) Genetic comparisons among the
summering aggregations in the western Sea of Okhotsk; (2) movement data
collected using satellite transmitters; and (3) geographical and
ecological separation (site fidelity). This information was discussed
in detail in the preamble to the proposed rule and is not repeated
here. In summary, multiple lines of evidence indicate that Sakhalin
Bay-Amur River beluga whales are their own stock or are a stock that
also includes whales that summer in Nikolaya Bay. The status review
team's evaluation of whether the Sakhalin Bay-Amur River stock is
discrete or includes whales in
[[Page 74713]]
Nikolaya Bay was almost evenly divided, based on the lines of evidence
reviewed. Given the currently available information, it is equally
plausible that the beluga whales in Nikolaya Bay are part of the
demographically independent population stock of Sakhalin Bay-Amur River
beluga whales than not. Including Nikolaya Bay in the delineation and
description of the stock would be a more conservative and precautionary
approach, as it would provide any protection afforded under the MMPA to
the beluga whales in Sakhalin Bay-Amur River to those beluga whales in
Nikolaya Bay.
None of the information regarding the identification of the
Sakhalin Bay-Nikolaya Bay-Amur River group of beluga whales as a
population stock has changed since we published the proposed rule, and
we received no new information through the public comment period that
would cause us to reconsider our previous finding as reflected in the
preamble to the proposed rule. Thus, all of the information contained
in the preamble to the proposed rule with respect to identifying the
Sakhalin Bay-Nikolaya Bay-Amur River group of beluga whales as a
population stock is reaffirmed in this final action. Therefore, based
on the best scientific information available as presented in the status
review report, the preamble to the proposed rule, and this final rule,
NMFS is identifying the Sakhalin Bay-Nikolaya Bay-Amur River group of
beluga whales as a population stock.
Depleted Determination
Section 3(1)(A) of the MMPA (16 U.S.C. 1362(1)(A)) defines the term
``depletion'' or ``depleted'' to include any case in which ``the
Secretary, after consultation with the Marine Mammal Commission and the
Committee of Scientific Advisors (CSA) on Marine Mammals . . .
determines that a species or a population stock is below its optimum
sustainable population.'' Section 3(9) of the MMPA (16 U.S.C. 1362(9))
defines ``optimum sustainable population . . . with respect to any
population stock, [as] the number of animals which will result in the
maximum productivity of the population or the species, keeping in mind
the carrying capacity [(K)] of the habitat and the health of the
ecosystem of which they form a constituent element.'' NMFS' regulations
at 50 CFR 216.3 clarify the definition of OSP as a population size that
falls within a range from the population level of a given species or
stock that is the largest supportable within the ecosystem (i.e.,
carrying capacity, or K) to its maximum net productivity level (MNPL).
MNPL is the population abundance that results in the greatest net
annual increment in population numbers resulting from additions to the
population from reproduction, less losses due to natural mortality.
A population stock below its MNPL is, by definition, below OSP and,
thus, would be considered depleted under the MMPA. Historically, MNPL
has been expressed as a range of values (between 50 and 70 percent of
K) determined on a theoretical basis by estimating what stock size, in
relation to the historical stock size, will produce the maximum net
increase in population (42 FR 12010; March 1, 1977). In practice, NMFS
has determined that stocks with populations under the mid-point of this
range (i.e., 60 percent of K) are depleted (42 FR 64548, December 27,
1977; 45 FR 72178, October 31, 1980; 53 FR 17888, May 18, 1988; 58 FR
58285, November 1, 1993; 65 FR 34590, May 31, 2000; 69 FR 31321, June
3, 2004). For stocks of marine mammals, including beluga whales, K is
generally unknown. NMFS, therefore, has used the best estimate
available of maximum historical abundance as a proxy for K (64 FR
56298, October 19, 1999; 68 FR 4747, January 30, 2003; 69 FR 31321,
June 3, 2004).
One technique NMFS has employed to estimate maximum historical
abundance is the back-calculation method, which assumes that the
historic population was at equilibrium, and that the environment has
not changed greatly. The back-calculation approach looks at the current
population and then calculates historic carrying capacity based on how
much the population has been reduced by anthropogenic actions. For
example, the back-calculation approach was applied in the management of
the subsistence hunt of the Cook Inlet beluga whale stock (73 FR 60976,
October 15, 2008). The status review team concluded, and NMFS agrees,
that the back-calculation technique is the most appropriate to use in
determining the abundance of the stock relative to OSP. Therefore, the
status review team analyzed the status of the stock relative to
carrying capacity using a back-calculation method.
The best available estimate of abundance beluga whales in the
Sakhalin Bay-Amur River area is 3,961 (Reeves et al., 2011). The best
available removal data for these whales are a time series of removals
by hunt and live capture since 1915 (Shpak et al., 2011). It was not
feasible to develop an estimate of any additional anthropogenic
mortality on this population, however there is evidence that there are
ongoing threats that continue to impact this population (Reeves et al.,
2011). These removal data, plus an estimate of the population's
productivity, allow back-calculation of the historical carrying
capacity (i.e., K) that probably existed prior to the beginning of the
catch history. A population model was used to perform the necessary
calculations. This analysis was presented in the status review report
and in the preamble to the proposed rule. The analysis has not changed
and is not repeated here. In summary, based on this analysis, we found
that the population of whales in the Sakhalin Bay-Amur River area is
between 25.5 percent and 35 percent of its carrying capacity and
therefore below its OSP (Bettridge et al., 2016).
As noted above, in its OSP analysis, the status review team used a
2009-2010 abundance estimate from only the Sakhalin Bay-Amur River area
because there was no current abundance estimate of the Nikolaya Bay
region. However, because few animals are thought to be in Nikolaya Bay
in the survey period compared to the Sakhalin Bay-Amur River, the
estimate accounts for nearly all of the population (Shpak et al.,
2011). To conduct an OSP analysis for the combined group of Sakhalin
Bay-Amur River and Nikolaya Bay whales, the team added 500 to the
abundance estimate to account for Nikolaya Bay, and re-ran the model.
The team determined that including Nikolaya Bay whales in the analysis
would not change the estimate of K significantly; it would result in a
slightly higher percentage of K (i.e., less depleted), but the
population is still below OSP (i.e., less than 60% of K).
None of the information presented in the preamble to the proposed
rule regarding the abundance of the Sakhalin Bay-Nikolaya Bay-Amur
River stock relative to its carrying capacity or OSP has changed since
we published the proposed rule, and we received no new information
through the public comment period that would cause us to reconsider our
previous analysis or finding as reflected in the preamble to the
proposed rule. Thus, all of the information contained in the preamble
to the proposed rule with respect to the depleted determination is
reaffirmed in this final action. As such, based upon the best
scientific information available as presented in the status review
report, the preamble to the proposed rule, and this final rule, we find
that the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga whales is
below its OSP level, and designate the stock as a depleted stock under
the MMPA. The depletion designation applies to all biological
[[Page 74714]]
members of the stock, regardless of whether those individuals are in
the wild or in captivity.
Summary of Comments Received and Responses
With the publication of the proposed rule for the designation of
the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga whales as
depleted under the MMPA on April 5, 2016 (81 FR 19542), we announced a
60-day public comment period that closed on June 6, 2016. During the
public comment period we received a total of 125 written comments on
the proposed rule. Commenters included the Commission, non-governmental
organizations (Environmental Investigation Agency, Defenders of
Wildlife and the Humane Society of the United States, Center for
Biological Diversity, Animal Welfare Institute, Orca Rescues
Foundation, Orca Network, and Georgia Aquarium); eight organizations or
businesses (Northwest Biotechnology Company, Perkins Coie, Alliance of
Marine Mammals Parks and Aquariums, Oceans of Fun, Gulfworld Marine
Park, Zoomarine Italy, and Marineland Dolphin Adventure), and 111
interested individuals (the majority of whom submitted variations of a
form letter supportive of our proposed determination). We fully
considered all comments received on the proposed rule in developing
this final depleted determination of the Sakhalin Bay-Nikolaya Bay-Amur
River stock of beluga whales.
Summaries of the substantive comments that we received concerning
our proposed determination, and our responses to all of the significant
issues they raise, are provided below. Comments of a similar nature
were grouped together, where appropriate. In addition to the specific
comments detailed below relating to the proposed determination, we also
received comments expressing general support for or opposition to the
proposed rule and comments conveying peer-reviewed journal articles,
technical reports, and references to scientific literature regarding
threats to the species and stock determination. Unless otherwise noted
in our responses below, after thorough review, we concluded that the
additional information received was either considered previously or did
not alter our determinations regarding the status of the Sakhalin Bay-
Nikolaya Bay-Amur River stock of beluga whales.
Comment 1: Numerous commenters, including the Commission, voiced
support that the Sakhalin Bay-Nikolaya Bay-Amur River beluga whale
stock clearly meets the MMPA standards and urged NMFS to promptly
finalize its proposal to designate the stock as ``depleted.'' The
majority of these commenters noted that the depletion status would
afford further protection to the belugas as the MMPA would prohibit the
importation of these animals into the United States for the purposes of
public display.
Response: We acknowledge this comment and are finalizing the
depleted designation for this stock as proposed. See the response to
Comment 14 regarding additional protections afforded under this
depleted designation.
Comment 2: Some commenters were opposed to designating the Sakhalin
Bay-Nikolaya Bay-Amur River beluga whale stock as depleted under the
MMPA. They noted that each year millions of people visit public display
facilities to view marine mammals and these experiences provide a
unique opportunity for conservation education that include increasing
the awareness of the unique ecosystem where beluga whales are found and
the many obstacles they face to survive in their natural environment,
and provided several citations in support of their position. In
addition, commenters stated that these facilities support scientific
studies that would not be possible by studying the animals in the wild.
Response: We recognize the value of public display of marine
mammals for conservation education. However, in accordance with section
3(1)(A) of the MMPA, we determine whether a stock is depleted based on
its abundance relative to its OSP. Because we determined that the
Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga whales is below
its OSP, we are designating the stock as depleted under the MMPA. As a
result of this determination, importation of beluga whales from this
population (or their progeny) into the United States for the purpose of
public display will now be prohibited.
Comment 3: A number of commenters stated that NMFS does not have
the authority to designate a foreign marine mammal population as a
depleted stock under the MMPA, and thus does not have the authority to
proceed with the proposed designation. These commenters further
stressed that NMFS does not provide any legal or regulatory support to
whether NMFS may designate foreign stocks as depleted. Other commenters
asserted that the MMPA does grant NMFS the authority to designate
stocks as depleted, even if they occur outside of waters under the
jurisdiction of the United States, and that the original legislative
intent further supports the conservative or precautionary policy that
is at the heart of the MMPA. Commenters on both sides of the
jurisdiction issue argued that the plain language of the MMPA, case
law, precedent, and Congressional intent support their position.
Response: The plain language of the MMPA and the regulatory
framework it establishes for protecting marine mammals provide NMFS
with the authority to designate any marine mammal stock or species as
depleted, regardless of where the species or stock occurs. NMFS
therefore agrees with those commenters who assert that NMFS has the
authority to designate a foreign stock of marine mammals as depleted,
and disagrees with those commenters who assert that the agency does not
have that authority. NMFS refers commenters to the ``Authority''
section, above, for an explanation of its authority. Following are
responses to specific arguments raised by commenters with respect to
this issue.
One commenter stated that ``[i]t is well established that the MMPA
does not apply extraterritorially,'' citing U.S. v. Mitchell, 553 F.2d
996 (5th Cir. 1977). U.S. v. Mitchell held that the MMPA's prohibition
on taking extends to the high seas but does not extend to the
territorial waters of a foreign sovereign state; the opinion did not
address the scope of NMFS' authority to designate a species or stock of
marine mammals as depleted under section 115(a) of the Act. Although
NMFS believes that it has the authority to designate any marine mammal
stock or species as depleted regardless of geographic location, to the
extent that commenters are arguing that NMFS' authority applies only up
to the boundary of a foreign nation's territorial seas, NMFS notes that
telemetry data from whales tagged in Sakhalin Bay and biological
information about the whales' migratory behavior demonstrate that
beluga whales from this stock travel hundreds of kilometers offshore,
well beyond the territorial seas of Russia (Shpak et al., 2010, 2011,
2012).
Some commenters also asserted that the plain language of the ESA
and the MMPA indicate that Congress intended the ESA--and not the
MMPA--to be the regulatory system through which foreign marine mammals
are protected. NMFS disagrees. The MMPA and the ESA are separate
statutes with distinct frameworks for protecting and conserving marine
mammals and threatened and endangered species, respectively. NMFS has
the authority to list foreign species as threatened or endangered under
the ESA, and NMFS also has the authority to designate foreign species
or stocks as depleted
[[Page 74715]]
under the MMPA. For example, NMFS' authority under the MMPA is evident
from the import prohibition, which makes it ``unlawful to import into
the United States any marine mammal if such mammal was . . . taken from
a species or population stock which [NMFS] has, by regulation published
in the Federal Register, designated as a depleted species or stock.''
Id. section 1372(b)(3). By its plain terms, the import prohibition
recognizes NMFS' authority to designate a species or stock that occurs
outside of waters under the jurisdiction of the United States as
depleted. Commenters' assertion that the MMPA's import prohibition
applies only to marine mammals that are designated as depleted by
virtue of an ESA listing is contrary to the plain meaning of this
provision. See In re Polar Bear Endangered Species Act Listing &
Section 4(d) Rule Litigation, 720 F.3d 354, 360 (D.C. Cir. 2013)
(determining that the protections of 16 U.S.C. 1372(b)(3) apply ``to
all depleted species, regardless of how they achieve their depleted
status'').
Finally, with respect to precedent, NMFS has previously used its
authority under section 115(a) to designate as depleted two stocks of
dolphins that occur entirely outside of waters under the jurisdiction
of the United States: The northeastern stock of offshore spotted
dolphin and the eastern stock of spinner dolphin. See 58 FR 58285 (Nov.
1, 1993); 58 FR 45066 (Aug. 26, 1993). Some commenters argued that
NMFS' authority to designate these stocks as depleted was rooted in the
``extreme and unique circumstances surrounding the regulatory structure
in place with respect to these stocks'' in the eastern tropical Pacific
Ocean (ETP). NMFS acknowledges that Congress amended the MMPA to
include provisions specifically relating to the ETP. However, NMFS
designated these stocks as depleted pursuant to section 115(a) of the
Act, and not pursuant to any provision of the MMPA applicable only to
the ETP. The depletion designations of these two stocks of dolphins
therefore provide precedent for the current action.
Comment 4: One commenter suggested that designating a foreign
species as depleted under the MMPA ``. . . would set a harmful
precedent that potentially establishes a dual-track regulation of
imperiled species,'' and recommended that NMFS retract the proposed
rule and instead consider any future petition brought under the ESA
concerning the Sakhalin Bay-Nikolaya Bay-Amur River aggregation.
Response: Section 115(b) of the MMPA outlines the steps that NMFS
is required to take when petitioned to designate a species or stock as
depleted. We have followed those steps, and concluded that a depleted
designation is warranted for the Sakhalin Bay-Nikolaya Bay-Amur River
stock of beluga whales. This final rule is being promulgated under the
MMPA and we are not taking any action under the ESA at this time, but
this does not preclude us from responding to any future petition to
list the population under the ESA.
Regarding the ``dual track'' regulation referenced by the
commenter, a species that is listed as threatened or endangered under
the ESA is automatically considered depleted under MMPA, but the
converse is not true. Therefore, this MMPA depleted designation does
not automatically result in any ESA protections. This depleted
designation is not unprecedented; there are several species or stocks
of marine mammals that have been determined to be depleted under the
MMPA but are not listed under the ESA, such as the AT1 group of killer
whales (69 FR 31321, June 3, 2004) and the Pribilof Island population
of North Pacific fur seals (53 FR 17888, May 18, 1988).
Comment 5: A number of commenters stated that NMFS has not
satisfied its obligation to review and/or evaluate the best available
scientific information with respect to the Sakhalin Bay-Nikolaya Bay-
Amur River population of beluga whales. Conversely, a number of
commenters reiterated the Commission's comments that NMFS' status
review is ``a well-written document that thoroughly analyzes the
available information.''
Response: We conducted a thorough review of the status of beluga
whales in the Sea of Okhotsk. We reviewed all available scientific
information contained in our files and in peer reviewed literature, as
well as information provided by the petitioners and the public. Several
commenters provided additional information during the proposed rule
public comment period. The additional information received was either
considered previously or did not alter our determinations regarding the
status of the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga
whales. The best scientific information available supports our
determination that this stock of beluga whales should be designated as
depleted.
Comment 6: One commenter noted that the Commission and the
Committee of Scientific Advisors (CSA) are ``. . . both domestic groups
with no knowledge or authority over foreign species or stocks.'' In
addition, NMFS does not provide an explanation for how the Commission
formed the basis for its recommendation to designate the Sakhalin Bay-
Nikolaya Bay-Amur River stock as depleted, or whether the Committee
offered a similar recommendation or participated in the process at all.
Response: The MMPA defines the term ``depleted'' as including any
species or population stock that NMFS, after consultation with the
Commission and its CSA on Marine Mammals, determines to be below its
OSP. NMFS notes that this provision requires consultation with the
Commission and its CSA; it does not provide the Commission with
independent authority to designate a species or stock as depleted.
Further, NMFS disagrees that the Commission and its CSA have no
knowledge over foreign species. See, e.g., 16 U.S.C. 1402 (directing
the Commission to recommend such steps as it deems necessary or
desirable for the protection and conservation of marine mammals, to
suggest appropriate international arrangements for the protection and
conservation of marine mammals, and to recommend such revisions to the
list of threatened and endangered species as may be appropriate with
regard to marine mammals, among other duties).
As stated in the preamble to the proposed rule, we consulted with
the Commission related to the petition to designate the Sakhalin Bay-
Amur River group of beluga whales as a depleted population stock.
Review of the draft status review report by the Commission, in
consultation with its CSA, constituted the consultation required by
section 3(1)(A). We have confirmed that the Commission consulted with
its CSA in making its recommendation. We are neither required to, nor
are we in a position to explain, the basis for a recommendation by
another federal agency.
Comment 7: Some commenters claimed that NMFS has essentially
changed Congress' definition of a stock. They state that the MMPA's
definition of a ``population stock'' (i.e., ``a group of marine mammals
of the same species or smaller taxa in a common spatial arrangement,
that interbreed when mature'' (MMPA section 3(11)), is consistent with
the ``traditionally accepted scientific definition of a `population'
(e.g., the community of potentially interbreeding individuals at a
given locality, Mayr 1963).'' They disagree with NMFS' interpretation
of ``interbreed when mature'' to include a ``group [that] migrates
seasonally to a breeding ground where its members breed with members of
the same group
[[Page 74716]]
as well as with members of other demographically distinct groups which
have migrated to the same breeding ground from a different feeding
ground.'' They state that NMFS' use of the terms demographically
distinct, demographically independent, or demographically isolated
groups is also scientifically incorrect and inappropriate (Cronin 2006,
2007). They argue that while whales from different feeding grounds may
be spatially separated for a period of time, they are not distinct,
independent, or isolated breeding (i.e., demographic) groups.
Response: We disagree that we have improperly changed the MMPA's
definition of stock. The MMPA provides both biological and ecological
guidance for defining marine mammal stocks. The biological guidance is
in the definition of population stock: A group of marine mammals of the
same species or smaller taxa in a common spatial arrangement that
interbreed when mature (MMPA section 3(11)). The ecological guidance is
addressed in the requirement that a stock be maintained as a
functioning element of the ecosystem (MMPA section 2(2)). NMFS has
developed guidelines for assessing marine mammal stocks (GAMMS); the
most recent revision to the GAMMS was made available for public comment
and finalized in February 2016 (NMFS 2016). The GAMMS provide guidance
on defining population stocks consistent with the MMPA. NMFS' approach
to determining that beluga whales primarily occurring in the Sakhalin
Bay-Nikolaya Bay-Amur River area is a stock is consistent with the
guidance provided in the GAMMS.
For the purposes of management under the MMPA, NMFS recognizes a
marine mammal stock as being a management unit that identifies a
demographically independent biological population. We define
demographic independence to mean that the population dynamics of the
affected group is more a consequence of births and deaths within the
group (internal dynamics) rather than immigration or emigration
(external dynamics). Thus, the exchange of individuals between
population stocks is not great enough to prevent the depletion of one
of the populations as a result of increased mortality or lower birth
rates (NMFS 2016). Mortality includes both natural and human-caused
mortality and removals from the population.
In our definition of demographic independence and in our
interpretation of ``interbreed when mature'' we recognize that some
interchange among groups may occur (i.e., demographic isolation is not
required). Therefore, we find it to be valid to define stocks in which:
(1) Mating occurs primarily among members of the same demographically
independent group, or (2) the group migrates seasonally to a breeding
ground where its members breed with members of the same group as well
as with members of other demographically distinct groups which have
migrated to the same breeding ground from a different feeding ground
(Bettridge et al., 2016).
Comment 8: One commenter alleged that in its review of the
scientific data, NMFS selectively used data to support its conclusion,
while ignoring other relevant, highly reliable data to the contrary.
Specifically, the commenter argued that NMFS inappropriately dismissed
the nuclear microsatellite DNA data and overemphasized the
mitochondrial DNA (mtDNA) data, thus, not considering the relevance of
the nuclear DNA data to the primary issue of identification of
interbreeding groups.
Response: We disagree with the commenter. As documented in the
status review and the preamble to the proposed rule, we evaluated all
available scientific literature and all lines of evidence for and
against demographic independence of Sakhalin Bay-Nikolaya Bay-Amur
River beluga whales (see sections 4.2.1 and 4.2.2 of the status review
report). Regarding the nuclear microsatellite DNA, we acknowledged in
the preamble to the proposed rule that analysis of nuclear
microsatellite markers found no evidence for genetic differentiation
among the bays of the western Sea of Okhotsk with the exception of a
comparison of Sakhalin Bay to the distant Ulbansky Bay (Meschersky and
Yazykova 2012, Meschersky et al., 2013). The status review report
explained that the lack of nuclear DNA differentiation among most
summer feeding areas in the western Sea of Okhotsk (except between
Sakhalin Bay-Amur River and the distant Ulbansky Bay; Meschersky and
Yazykova 2012; Meschersky et al., 2013) is consistent with
interbreeding between animals that aggregate in Sakhalin Bay and the
other bays, and because these animals spend some parts of the year
together (i.e., winter), it is plausible that recruitment into a summer
aggregation could be both internal and external. However, we concluded
the nuclear DNA data available to date are too weak, given the level of
and design of the sampling, to assess how much internal versus external
recruitment there is. Moreover, the status review team expressed
concern about the adequacy of the sampling (most areas were sampled
predominantly in one year, skewed towards males) and the microsatellite
data quality. Meschersky and Yazykova (2012) did not provide sufficient
information on data collection and analysis methods, so it was not
possible to evaluate the quality of the microsatellite data. The
International Union for Conservation of Nature (IUCN) independent
scientific review panel of beluga whale experts also considered the
available nuclear DNA analyses and expressed concerns over the sampling
design and methods (Reeves et al., 2011).
Generally, significant differences in mtDNA haplotype frequencies
are interpreted as sufficient evidence for demographic independence
reflecting female philopatry. Stocks, including harbor seal stocks in
the North Pacific (O'Corry-Crowe et al., 2003) and the humpback whale
stock in the western North Atlantic (Palsb[oslash]ll et al., 2001, IWC
2002), have been delineated based on mtDNA alone. See the response to
Comment 9 regarding the strength of the mtDNA data and findings.
Comment 9: A number of commenters asserted that based on the
combined scientific findings from genetics, telemetry, and census
(abundance) data, whales in the five bays, comprising the western
region of the Sea of Okhotsk, constitute one stock. Specifically, the
data show that the beluga whales from all of the bays of the western
Sea of Okhotsk are an interbreeding group, and therefore are a single
stock. One commenter cited the genetic studies of Meschersky et al.
(2013) and Yazykova et al. (2012) as evidence that the summer
aggregations in the five bays in the western Sea of Okhotsk are
seasonal groups that belong to one breeding population. Another
commenter stated that the large inter-annual differences in population
estimates of beluga whales in the Shantar and Sakhalin regions (based
on 2009 and 2010 aerial survey data cited in Shpak et al., 2011),
``cannot be attributed to massive increases or decreases in isolated
populations.'' Rather, the commenter asserts that these differences
indicate the beluga whales move between summering areas, following
salmon or other fish runs (Berzin et al., 1991, Trumble and Lajus 2008,
Popov 1986). The commenter suggests, for example, that beluga whales
move into the Sakhalin Bay-Amur River area in odd years (such as 2009)
when the runs of the oceanic race of pink salmon are much greater, and
to bays in the Shantar region in even years when the salmon are less
abundant in the Sakhalin Bay-Amur River area. To support their
discussion of inter-annual differences in abundance, the commenter used
Shpak
[[Page 74717]]
et al.'s (2011) 2009 and 2010 aerial survey data and recalculated the
abundance estimates using correction factors NMFS ``typically'' uses
for beluga whales in Alaska (Allen and Angliss 2014).
Response: We disagree with the commenters' assertion that the data
indicate a single stock of beluga whales in the five bays of the
Western Sea of Okhotsk. Regarding the genetic data referenced by the
commenters, Meschersky et al. (2013) examined samples from Sakhalin
Bay, Nikolaya Bay, Udskaya Bay, the northeastern Sea of Okhotsk on the
west coast of the Kamtchatka Peninsula, and the Anadyr Estuary in the
northwestern Bering Sea. All mtDNA comparisons that were made were
significant (p < 0.00001), indicating significant haplotype frequency
differences between Sakhalin Bay and Udskaya Bay (as well as between
Sakhalin Bay and regions in the northern Sea of Okthosk and western
Bering Sea). The level of mtDNA differentiation found is on par with
comparisons among other recognized marine mammal stocks. Yazykova et
al. (2012) used samples from all five bays in the southwestern Sea of
Okhotsk (Sakhalin, Nikolaya, Ulbansky, Tugursky, and Udskaya). The
sample size from Nikolaya Bay was very small (n=8). Sakhalin Bay showed
significant mtDNA differences from all sampling locations except
Nikolaya Bay. Overall, the mtDNA data in both studies indicate
significant genetic differentiation between Sakhalin Bay and the other
bays (except Nikolaya Bay where the sample size is very small). Thus,
these data suggest that should one of these bays be depleted or locally
extirpated, they are not likely to be repopulated by immigration from
the remaining bays.
For the microsatellite data, Meschersky et al. (2013) utilized nine
microsatellite loci while Yazykova et al. (2012) added ten additional
loci for a total of 19. In addition to concerns about sampling (one
year, skewed towards males) as discussed in the status review and by
the IUCN scientific panel and response to Comment 8 above, it is
difficult to evaluate the microsatellite analyses of these two
publications because they do not present adequate information on the
analytical methods used to evaluate the quality of the microsatellite
data. Information on standard tests commonly applied to evaluate the
quality of microsatellite data prior to running any analyses (for
example, tests for linkage disequilibrium and Hardy-Weinberg
equilibrium) were not presented in either publication. The status
review team discussed, for example, that Yazykova et al. (2012)
indicate they used the microsatellite loci DlrFCB6 and DlrFCB17, yet
these two loci are known to be the same. Standard data quality tests
should have identified they were the same, and one of them should have
been subsequently dropped from all analyses. Therefore, the
microsatellite data set may contain significant errors that could lead
to incorrect conclusions, and the status review team could not
adequately evaluate these potential issues.
NMFS believes the telemetry (tagging) data also supports our stock
delineation, although we consider them to be weaker evidence, in part,
because of the small number of tags. Furthermore, while the tag data
reveal where animals move, they do not indicate whether interbreeding
is occurring if/when animals from different stocks may overlap.
However, NMFS disagrees with the commenters' assertion that ``[t]he
telemetry data show there is significant movement of belugas among bays
in the Sea of Okhotsk in autumn and other times of the year.'' Beluga
whale movements from Sakhalin Bay to the Shantar region, mainly
Nikolaya Bay, were recorded primarily in the fall and interpreted as
the beginning of migration westward and then northwest into offshore
waters for the winter. Shpak et al. (2010) reported that the four
tagged whales moved from Sakhalin Bay to Nikolaya Bay, with a few
detections in the very far southeastern edge of Ulbansky Bay adjacent
to Nikolaya Bay, in the fall just prior to migrating further north into
the open water of the Sea of Okhotsk (see Figure 3 of Shpak et al.,
2010). Tagging efforts to date do not present any evidence that the
animals move farther west than that within the other bays (i.e., into
Tugursky Bay or Udskaya Bay). As discussed in the preamble to the
proposed rule, although not very many whales have been tagged, the data
available to date suggest whales present in the summer in Sakhalin Bay
also use Nikolaya Bay, but there is little evidence for movement
between Sakhalin Bay and the other bays further to the west during
spring and summer.
Regarding census (abundance) data, one commenter speculated that
the inter-annual differences in population estimates in the Shantar and
Sakhalin-Amur regions are not a result of increases (or decreases) in
insolated populations, but, rather, indicate that beluga whales move
from one region to another. In support of their argument, the commenter
recalculated Shpak et al.'s (2011) abundance estimates from the 2009
and 2010 aerial surveys by using correction factors NMFS ``typically''
uses for beluga whales in Alaska (Allen and Angliss 2014). However,
NMFS does not apply any ``typical'' correction factor to estimate
beluga abundance. The corrections, to account for animals during
surveys that were missed either because the animals are submerged or
too small to be seen, are dependent on the survey conditions (such as
altitude, air speed, ice conditions, and water clarity) and therefore
vary. The correction factors used by the commenter, 2.62 (to account
for diving animals) and 1.18 (to account for newborns and yearlings not
observed due to their small size and dark coloration), were developed
respectively, for Bristol Bay (Frost and Lowry 1995) and Cumberland
Sound, Baffin Island (Brodie 1971). In cases when conditions were
similar, NMFS has used these correction factors for other areas in
Alaska (e.g., Eastern Chuckchi Sea and Eastern Bering Sea), while in
other cases we have used correction factors of 2 (e.g., the Beaufort
Sea), or have used an analysis of video tape or regression of counts to
correct for availability and sightability (e.g., Cook Inlet) (Allen and
Angliss 2015). The commenter has not demonstrated that the survey
conditions in this region were sufficiently similar to those in Bristol
Bay or Cumberland Sound. Further, both Shpak et al. (2011) and Reeves
et al. (2011) considered using a correction factor of 2 to be
appropriate.
The commenter also discussed the relative abundance of beluga
whales in the Sakhalin-Amur and Shantar regions. Regardless of which
correction factors are used, the Sakhalin-Amur aggregation represents
59 percent of the total estimated number of beluga whales in the two
regions in 2009 and 33 percent in 2010. The commenter asserted that the
inter-annual differences in abundance are due to shifting of belugas
from one region to another, which it states may be in large part due to
the variation in salmon or other fish runs. The commenter cited Berzin
et al. 1991, Trumble and Lajus 2008, and Popov 1986 in support, but did
not include a copy of these papers with the comment letter. We searched
but were unable to obtain copies of Berzin et al. (1991) and Popov
(1986). However, we reviewed Trumble and Lajus (2008) and the
commenter's description of the findings from the two unavailable
papers.
As stated in the status review, we acknowledge that summer
aggregations of beluga whales often focus on seasonally available fish
runs, like salmon runs. However, we do not agree that the abundance
data indicate a single stock of beluga whales moving between regions.
We evaluated the
[[Page 74718]]
abundance information, including the information provided by the
commenters. Based on the estimates of abundance and associated
statistical error presented in Shpak and Glazov (2013, Table 4), there
is a 31 percent difference between the abundance in 2009 and the lower
of the two abundance estimates in 2010 in the Sakhalin-Amur
aggregation. We conclude that the difference can be explained by the
statistical uncertainty of the abundance estimates. Thus, the
difference between the estimates can be attributed to sampling error
between surveys and NMFS finds no reason, based on our analysis of the
abundance information, to reject the status review team's conclusion
that the population in the Sakhalin Bay-Amur River area is a distinct
stock.
Based upon the above, we cannot conclude that all beluga whales
from the five western bays in the Sea of Okhotsk belong to a single
demographically independent population; the best scientific information
available supports our conclusion that the Sakhalin Bay-Nikolaya Bay-
Amur River population of beluga whales is a stock. Multiple lines of
evidence support this conclusion, including mtDNA differentiation,
movement data, geographical/ecological separation, and similarity to
other examples of MMPA stock designations outlined in the status review
report (e.g., beluga whales in Alaska). Our conclusion is largely
consistent with that of the 2011 IUCN independent scientific review
panel (Reeves et al., 2011) regarding the unit to conserve.
Comment 10: Many commenters supported the Commission's
recommendation for NMFS to take a precautionary approach to include
Nikolaya Bay and designate the Sakhalin Bay-Nikolaya Bay-Amur River
distinct stock of beluga whales as depleted under the MMPA.
Response: We acknowledge this comment and are including beluga
whales in Nikolaya Bay in the stock being designated as depleted.
Comment 11: Several commenters asserted that comparable inferences
from the better studied beluga whale populations of Canada's Hudson Bay
support NMFS' conclusions on mtDNA and geographic and ecological
separation along maternal lines to delineate the Sakhalin Bay-Nikolaya
Bay-Amur River population as a stock.
Response: We acknowledge this comment but clarify that we relied on
multiple lines of evidence to identify the stock, including genetic,
telemetry, and movement data.
Comment 12: A number of commenters argued that designating the
Sakhalin Bay-Nikolaya Bay-Amur River stock as depleted would be
perceived by Russia that the United States does not approve of its
management of the species, and would actually impede efforts to
conserve beluga populations in Russian waters.
Response: We were petitioned under section 115 of the MMPA to
evaluate whether the beluga whales in the Sakhalin Bay-Amur River
region are depleted. We do not have the discretion to consider
political factors in the analysis of whether a stock is below its OSP
level and a depleted designation is warranted.
Comment 13: Several commenters asserted that the Sakhalin Bay-Amur
River stock is below its OSP level and clearly depleted, and including
Nikolaya Bay does not change NMFS' depletion finding.
Response: We acknowledge this comment and are finalizing the
designation of the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga
whales as depleted.
Comment 14: Many commenters claimed that the depleted finding would
provide the stock greater protection against further decline. One noted
that a depleted designation would help promote the goals of the MMPA by
helping to recover the population thereby protecting the health and
stability of the marine ecosystem.
Response: NMFS notes that although we do not manage this foreign
stock directly, this depleted designation prohibits importation of
whales from this stock into the United States for the purpose of public
display, which may partially address the threat of the live-capture
trade by reducing demand. This is consistent with our 2013 denial of
the Georgia Aquarium's application for a permit to import 18 beluga
whales from this population into the United States, in which we found
that ongoing, legal marine mammal capture operations in Russia are
expected to continue, and issuance of the permit would have contributed
to the demand to capture belugas from this stock for the purpose of
public display worldwide, resulting in the future taking of additional
belugas from this stock.
The MMPA requires NMFS to prepare a conservation plan and restore
any stock designated as depleted to its OSP level, unless NMFS
determines that such a plan would not promote the conservation of the
stock. We have determined that a conservation plan would not further
promote the conservation of the Sakhalin Bay-Nikolaya Bay-Amur River
stock of beluga whales given that NMFS does not manage the stock, and
therefore do not plan to implement a conservation plan. However, as
noted above, by prohibiting the importation of Sakhalin Bay-Nikolaya
Bay-Amur River beluga whales into the United States for the purpose of
public display, this depleted designation will provide intrinsic
conservation benefits that may reduce the impacts of live captures to
this stock.
Comment 15: Some commenters recommended additional genetic and
environmental research in the Sea of Okhotsk, to better define and
manage the population's recovery.
Response: We agree that such research would be beneficial. Such
research was also recommended by the Commission in its consultation
with us, and by the IUCN panel (Reeves et al., 2011).
Comment 16: One commenter noted that according to new data from the
United Nations Environment Programme's World Conservation Monitoring
Center, at least 37 live beluga whales, likely from the Sakhalin Bay-
Nikolaya Bay-Amur River stock, were exported from Russia in 2014, and
emphasized that the level of these live exports alone continues to
exceed its potential biological removal level (PBR).
Response: We recognize that live captures are a continuing threat
to this stock, but our evaluation of the stock's status did not
consider PBR. Rather, we evaluated the stock's abundance relative to
carrying capacity to determine whether the population was below its OSP
level.
Comment 17: Some commenters cited new information documenting that
unsustainable live removals for public display, mortality incidental to
these captures, and pollution continue to contribute to the
population's depletion. Other commenters noted that beluga whales from
this population face threats from vessel strikes, entanglement and
drowning, subsistence harvest, oil and gas development, and climate
change.
Response: We appreciate the updated information provided by the
commenters regarding live captures, measurements of persistent organic
pollutants in tissue collected from beluga whales in the Sea of
Okhotsk, and oil and gas development in the Sakhalin region. As we
noted in the preamble to the proposed rule, information on potential
sources of serious injury and mortality is limited for the Sea of
Okhotsk beluga whales. The IUCN panel identified subsistence harvest,
death during live capture for public display, entanglement in fishing
gear, vessel strike, climate change, and pollution as human activities
that may result in serious injury or mortality to Sea of Okhotsk beluga
whales (Reeves et
[[Page 74719]]
al. 2011). The greatest amount of available information is from the
estimates of annual take from the commercial hunt. As noted in the
petition, the IUCN review, and the preamble to the proposed rule,
monitoring of other types of mortality in the Sea of Okhotsk is low, if
existent at all, and information on possible threats and sources of
mortality in Sea of Okhotsk beluga whales is highlighted by a lack of
substantiated data, and is largely anecdotal.
As noted above, a direct result of this depleted designation is
that importation of whales from this stock into the United States for
purposes of public display is prohibited. This may reduce the impacts
of live captures, but does not directly address the remaining threats
to this population.
Classification
This rule has been determined to be not significant for the
purposes of Executive Order 12866.
Similar to ESA listing decisions, which are based solely on the
best scientific and commercial information available, depleted
designations under the MMPA are determined ``solely on the basis of the
best scientific information available.'' 16 U.S.C. 1533(b)(1)(A) and 16
U.S.C. 1383b(a)(2). Because ESA listings are thus exempt from the
requirement to prepare an environmental assessment or environmental
impact statement under the National Environmental Policy Act of 1969
(see NOAA Administrative Order 216-6.03(e)(1)), NMFS has determined
that MMPA depleted designations are also exempt from the requirements
of the National Environmental Policy Act. Thus, an environmental
assessment or environmental impact statement is not required and none
has been prepared for the depleted designation of this stock under the
MMPA.
When the proposed rule was published, the Chief Counsel for
Regulation of the Department of Commerce certified to the Chief Counsel
for Advocacy of the Small Business Administration that this rule would
not have a significant impact on a substantial number of small
entities. (81 FR 19546, April 5, 2016). This rule designates a group of
beluga whales in Russian waters (known as the Sakhalin Bay-Nikolaya
Bay-Amur River group) as depleted; however, this rule would not, by
itself, directly regulate the public, including any small entities. The
MMPA authorizes NMFS to take certain actions to protect a stock that is
designated as depleted. For example, a stock that is designated as
depleted meets the definition of a strategic stock under the MMPA.
Under provisions of the MMPA, a take reduction team must be established
and a take reduction plan developed and implemented within certain time
frames if a strategic stock of marine mammals interacts with a Category
I or II commercial fishery. However, NMFS has not identified any
interactions between commercial fisheries and this group of beluga
whales that would result in such a requirement. In addition, under the
MMPA, if NMFS determines that impacts on areas of ecological
significance to marine mammals may be causing the decline or impeding
the recovery of a strategic stock, it may develop and implement
conservation or management measures to alleviate those impacts.
However, NMFS has not identified information sufficient to make any
such determination for this group of beluga whales. The MMPA also
requires NMFS to prepare a conservation plan and restore any stock
designated as depleted to its OSP, unless NMFS determines that such a
plan would not promote the conservation of the stock. NMFS has
determined that a conservation plan would not promote the conservation
of the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga whales and
therefore does not plan to implement a conservation plan. In summary,
this final rule will not directly regulate the public. If any
subsequent restrictions placed on the public to protect the Sakhalin
Bay-Nikolaya Bay-Amur River stock of beluga whales are included in
separate regulations, appropriate analyses under the Regulatory
Flexibility Act would be conducted during those rulemaking procedures.
The MMPA prohibits the importation of any marine mammal designated
as depleted for purposes of public display (see 16 U.S.C. 1371(a)(3)(B)
and 1372(b)). Therefore, this rule will have the indirect effect of
prohibiting the future importation of any marine mammal from this stock
into the United States for purposes of public display. There are 104
facilities in the United States that house marine mammals for the
purposes of public display. Of these, only six facilities house beluga
whales. There are currently twenty-seven beluga whales at these
facilities. None of these beluga whales were taken in the wild from the
Sakhalin Bay-Nikolaya Bay-Amur River stock; three whales are progeny of
animals taken in the wild from this stock. NMFS receives very few
requests to import beluga whales into the United States for purposes of
public display and has no pending requests to import beluga whales for
public display. NMFS notes the small number of U.S. entities that house
beluga whales and the small number of beluga whales from this stock
that are currently permitted for public display in the United States.
Because this rule will not prevent an entity from requesting to import
a beluga whale from a non-depleted stock for purposes of public
display, NMFS found that this rule would not result in a significant
economic impact on a substantial number of small entities. NMFS invited
comment from members of the public to provide any additional
information on NMFS determination that the rule will not result in a
significant economic impact on a substantial number of small entities.
NMFS did not receive any comment on this issue. As a result, no
regulatory flexibility analysis for this final rule has been prepared.
This final rule does not contain a collection-of-information
requirement for purposes of the Paperwork Reduction Act of 1980.
This final rule does not contain policies with federalism
implications sufficient to warrant preparation of a federalism
assessment under Executive Order 13132.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Exports, Imports, Marine
mammals, Transportation.
Dated: October 24, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 216 is amended
as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority citation for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
0
2. In Sec. 216.15, add paragraph (j) to read as follows:
Sec. 216.15 Depleted species.
* * * * *
(j) Sakhalin Bay-Nikolaya Bay-Amur River beluga whales
(Delphinapterus leucas). The stock includes all beluga whales primarily
occurring in, but not limited to, waters of Sakhalin Bay, Nikolaya Bay,
and Amur River in the Sea of Okhotsk.
[FR Doc. 2016-25984 Filed 10-26-16; 8:45 am]
BILLING CODE 3510-22-P