81_FR_74919 81 FR 74711 - Designating the Sakhalin Bay-Nikolaya Bay-Amur River Stock of Beluga Whales as a Depleted Stock Under the Marine Mammal Protection Act (MMPA)

81 FR 74711 - Designating the Sakhalin Bay-Nikolaya Bay-Amur River Stock of Beluga Whales as a Depleted Stock Under the Marine Mammal Protection Act (MMPA)

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 208 (October 27, 2016)

Page Range74711-74719
FR Document2016-25984

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.

Federal Register, Volume 81 Issue 208 (Thursday, October 27, 2016)
[Federal Register Volume 81, Number 208 (Thursday, October 27, 2016)]
[Rules and Regulations]
[Pages 74711-74719]
From the Federal Register Online  [www.thefederalregister.org]
[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.

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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 
http://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, 
[email protected], 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



                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                      74711




                                                  Issued on: October 20, 2016.                          pursuant to the Marine Mammal                         FOR FURTHER INFORMATION CONTACT:
                                                T.F. Scott Darling, III,                                Protection Act (MMPA). This action is                 Shannon Bettridge, Shannon.Bettridge@
                                                Administrator.                                          being taken as a result of a status review            noaa.gov, Office of Protected Resources,
                                                [FR Doc. 2016–25976 Filed 10–26–16; 8:45 am]            conducted by NMFS in response to a                    301–427–8402.
                                                BILLING CODE 4910–EX–c                                  petition to designate a group of beluga               SUPPLEMENTARY INFORMATION:
                                                                                                        whales in the western Sea of Okhotsk as
                                                                                                        a depleted stock. The biological                      Background
                                                DEPARTMENT OF COMMERCE                                  evidence indicates that the group is a                   Section 115(a) of the MMPA (16
                                                                                                        population stock as defined by the                    U.S.C. 1383b(a)) allows interested
                                                National Oceanic and Atmospheric                        MMPA, and the stock is depleted as                    parties to petition NMFS to initiate a
                                                Administration                                          defined by the MMPA.                                  status review to determine whether a
                                                                                                             This final rule is effective
                                                                                                        DATES:                                                species or stock of marine mammals
                                                50 CFR Part 216                                         November 28, 2016.                                    should be designated as depleted. On
                                                [Docket No. 151113999–6950–02]                                                                                April 23, 2014, we received a petition
                                                                                                        ADDRESSES:   Copies of supporting                     from the Animal Welfare Institute,
                                                RIN 0648–BF55                                           documents, including the status review,               Whale and Dolphin Conservation,
                                                                                                        the proposed rule, and a list of                      Cetacean Society International, and
                                                Designating the Sakhalin Bay-Nikolaya                   references cited in the final rule, are               Earth Island Institute (petitioners) to
                                                Bay-Amur River Stock of Beluga                          available via the Federal e-rulemaking                ‘‘designate the Sakhalin Bay-Amur River
                                                Whales as a Depleted Stock Under the                    Portal, at www.regulations.gov (search                stock of beluga whales as depleted
                                                Marine Mammal Protection Act (MMPA)                     for Docket ID NOAA–NMFS–2015–                         under the MMPA.’’ We published a
                                                AGENCY:  National Marine Fisheries                      0154), or at http://                                  notification that the petition was
                                                Service (NMFS), National Oceanic and                    www.fisheries.noaa.gov/pr/species/                    available (79 FR 28879; May 20, 2014).
                                                Atmospheric Administration (NOAA),                      mammals/whales/beluga-whale.html.                     After evaluating the petition, we
                                                Commerce.                                               Those documents are also available                    determined that the petition contained
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                                                ACTION: Final rule.                                     from NMFS at the following address:                   substantial information indicating that
                                                                                                        Chief, Marine Mammal and Sea Turtle                   the petitioned action may be warranted
                                                SUMMARY:   We, NMFS, issue a final                      Conservation Division, Office of                      (79 FR 44733; August 1, 2014).
                                                determination to designate the Sakhalin                 Protected Resources, National Marine                  Following the determination that the
                                                Bay-Nikolaya Bay-Amur River Stock of                    Fisheries Service, 1315 East-West                     petitioned action may be warranted, we
                                                beluga whales (Delphinapterus leucas)                   Highway, Silver Spring, MD 20910–                     convened a status review team and
                                                                                                                                                                                                         ER27OC16.009</GPH>




                                                as a depleted stock of marine mammals                   3226.                                                 conducted a status review to evaluate


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                                                74712            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                whether the Sakhalin Bay-Amur River                     stock.’’ Id. section 1372(b). By its plain            Ulbansky Bay, Tugursky Bay and
                                                group of beluga whales is a population                  terms, the import prohibition recognizes              Udskaya Bay), and among the Shantar
                                                stock and, if so, whether that stock is                 NMFS’ authority to designate a species                Islands. Use of the bays and estuaries in
                                                depleted. On April 5, 2016, we                          or stock that occurs outside of waters                the western Sea of Okhotsk is limited
                                                published a proposed rule to designate                  under the jurisdiction of the United                  primarily to summer months when
                                                the Sakhalin Bay-Nikolaya Bay-Amur                      States as depleted.                                   belugas may molt (Finley 1982) and give
                                                River Stock of beluga whales as a                         NMFS has previously used its                        birth to and care for their calves
                                                depleted stock of marine mammals                        authority under section 115(a) to                     (Sergeant and Brodie 1969). The whales
                                                pursuant to the MMPA (81 FR 19542),                     designate as depleted, two stocks of                  move into the ice-covered offshore areas
                                                and solicited comments from all                         marine mammals that occur entirely                    of the western Sea of Okhotsk in the
                                                interested parties including the public,                outside of waters under the jurisdiction              winter (Melnikov 1999). In the status
                                                other governmental agencies, the                        of the United States: The northeastern                review and the preamble to the
                                                scientific community, industry, and                     stock of offshore spotted dolphin and                 proposed rule, we refer to the beluga
                                                environmental groups.                                   the eastern stock of spinner dolphin.                 whales found in the Amur River estuary
                                                                                                        See 58 FR 58285 (Nov. 1, 1993); 58 FR                 and the nearshore areas of Sakhalin Bay
                                                Authority                                               45066 (Aug. 26, 1993). NMFS believes                  during summer as the Sakhalin Bay-
                                                   Although the Sakhalin Bay-Nikolaya                   that the exercise of this authority is                Amur River beluga whales.
                                                Bay-Amur River stock of beluga whales                   consistent with Congress’s intent in                     The preamble to the proposed rule
                                                does not occur in waters under the                      enacting the MMPA that marine                         summarized additional general
                                                jurisdiction of the United States, we                   mammal ‘‘species and population stocks                background information on the Sea of
                                                have authority to designate the stock as                should not be permitted to diminish                   Okhotsk beluga whales’ natural history,
                                                depleted if we find that the stock is                   beyond the point at which they cease to               range, reproduction, population
                                                below its optimum sustainable                           be a significant functioning element in               structure, distribution, abundance, and
                                                population (OSP). Section 115(a) of the                 the ecosystem of which they are a part,’’             threats. That information has not
                                                MMPA provides NMFS with the                             and that ‘‘they should be protected and               changed and is not repeated here.
                                                authority to designate ‘‘a species or                   encouraged to develop to the greatest
                                                stock’’ of marine mammals as depleted                                                                         Stock Determination
                                                                                                        extent feasible . . .’’ 16 U.S.C. 1361.
                                                and sets forth the procedures the agency                                                                         The MMPA defines ‘‘population
                                                must follow to make such a designation.                 Status Review                                         stock’’ as ‘‘a group of marine mammals
                                                16 U.S.C. 1383b(a)(1). The MMPA                            A status review for the population                 of the same species or smaller taxa in a
                                                defines ‘‘depleted’’ as any case in                     stock of beluga whales addressed in this              common spatial arrangement, that
                                                which: (1) NMFS determines that a                       rule was conducted by a status review                 interbreed when mature’’ (MMPA
                                                species or population stock is below its                team (Bettridge et al., 2016). The status             section 3(11)). NMFS’ guidelines for
                                                optimum sustainable population; (2) a                   review compiled and analyzed                          assessing stocks of marine mammals
                                                state to which authority has been                       information on the stock’s distribution,              (NMFS 2005) state that many different
                                                delegated makes the same                                abundance, threats, and historic take                 types of information can be used to
                                                determination; or (3) a species or stock                from information contained in the                     identify stocks, reproductive isolation is
                                                is listed as threatened or endangered                   petition, our files, a comprehensive                  proof of demographic isolation, and
                                                under the Endangered Species Act                        literature search, and consultation with              demographically isolated groups of
                                                (ESA). 16 U.S.C. 1362(1). These                         experts. The draft status review report               marine mammals should be identified
                                                provisions draw no distinction between                  was submitted to independent peer                     as separate stocks. NMFS has
                                                marine mammals based on their                           reviewers, and comments and                           interpreted ‘‘demographically isolated’’
                                                geographic location. Rather, NMFS’                      information received from peer                        as ‘‘demographically independent’’ (see,
                                                authority to designate as depleted a                    reviewers were addressed and                          for example, Weller et al., 2013, Moore
                                                species or stock occurring outside of                   incorporated as appropriate before                    and Merrick (eds.) 2011), and recently
                                                waters under the jurisdiction of the                    finalizing the report.                                updated the guidelines for assessing
                                                United States is supported by the                          As required by the MMPA, we                        stocks of marine mammals to reflect this
                                                express link to the ESA found in the                    consulted with the Marine Mammal                      interpretation (NMFS 2016).
                                                MMPA’s definition of ‘‘depleted.’’                      Commission (Commission) related to                       NMFS considered the following lines
                                                Species of marine mammals that occur                    the petition to designate the Sakhalin                of evidence regarding the Sakhalin Bay-
                                                outside of waters under the jurisdiction                Bay-Amur River group of beluga whales                 Amur River beluga whales to answer the
                                                of the United States are regularly listed               as a depleted population stock. In a                  question of whether the group
                                                as threatened or endangered under the                   letter dated December 7, 2015, the                    comprises a stock: (1) Genetic
                                                ESA. Pursuant to the MMPA’s definition                  Commission recommended we take a                      comparisons among the summering
                                                of depleted, these species are                          precautionary approach and define the                 aggregations in the western Sea of
                                                automatically designated as depleted                    Sakhalin Bay-Amur River stock to                      Okhotsk; (2) movement data collected
                                                when they are listed under the ESA. The                 include whales in Nikolaya Bay and                    using satellite transmitters; and (3)
                                                definition of depleted, therefore,                      promptly publish a proposed rule under                geographical and ecological separation
                                                demonstrates Congressional support for                  section 115(a)(3)(D) of the MMPA to                   (site fidelity). This information was
                                                depleted designations for foreign marine                designate this stock as depleted.                     discussed in detail in the preamble to
                                                mammals. NMFS’ authority is also                                                                              the proposed rule and is not repeated
                                                supported by the MMPA’s import                          Sea of Okhotsk Beluga Whales                          here. In summary, multiple lines of
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                                                prohibition, which makes it ‘‘unlawful                    Beluga whales are found throughout                  evidence indicate that Sakhalin Bay-
                                                to import into the United States any                    much of the Sea of Okhotsk, including                 Amur River beluga whales are their own
                                                marine mammal if such mammal was                        Shelikov Bay in the northeast and                     stock or are a stock that also includes
                                                . . . taken from a species or population                throughout the western Sea of Okhotsk                 whales that summer in Nikolaya Bay.
                                                stock which [NMFS] has, by regulation                   including the Amur River estuary, the                 The status review team’s evaluation of
                                                published in the Federal Register,                      nearshore areas of Sakhalin Bay, in the               whether the Sakhalin Bay-Amur River
                                                designated as a depleted species or                     large bays to the west (Nikolaya Bay,                 stock is discrete or includes whales in


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74713

                                                Nikolaya Bay was almost evenly                          net productivity level (MNPL). MNPL is                that there are ongoing threats that
                                                divided, based on the lines of evidence                 the population abundance that results in              continue to impact this population
                                                reviewed. Given the currently available                 the greatest net annual increment in                  (Reeves et al., 2011). These removal
                                                information, it is equally plausible that               population numbers resulting from                     data, plus an estimate of the
                                                the beluga whales in Nikolaya Bay are                   additions to the population from                      population’s productivity, allow back-
                                                part of the demographically                             reproduction, less losses due to natural              calculation of the historical carrying
                                                independent population stock of                         mortality.                                            capacity (i.e., K) that probably existed
                                                Sakhalin Bay-Amur River beluga whales                      A population stock below its MNPL                  prior to the beginning of the catch
                                                than not. Including Nikolaya Bay in the                 is, by definition, below OSP and, thus,               history. A population model was used
                                                delineation and description of the stock                would be considered depleted under the                to perform the necessary calculations.
                                                would be a more conservative and                        MMPA. Historically, MNPL has been                     This analysis was presented in the
                                                precautionary approach, as it would                     expressed as a range of values (between               status review report and in the preamble
                                                provide any protection afforded under                   50 and 70 percent of K) determined on                 to the proposed rule. The analysis has
                                                the MMPA to the beluga whales in                        a theoretical basis by estimating what                not changed and is not repeated here. In
                                                Sakhalin Bay-Amur River to those                        stock size, in relation to the historical             summary, based on this analysis, we
                                                beluga whales in Nikolaya Bay.                          stock size, will produce the maximum                  found that the population of whales in
                                                  None of the information regarding the                 net increase in population (42 FR 12010;              the Sakhalin Bay-Amur River area is
                                                identification of the Sakhalin Bay-                     March 1, 1977). In practice, NMFS has                 between 25.5 percent and 35 percent of
                                                Nikolaya Bay-Amur River group of                        determined that stocks with populations               its carrying capacity and therefore
                                                beluga whales as a population stock has                 under the mid-point of this range (i.e.,              below its OSP (Bettridge et al., 2016).
                                                changed since we published the                          60 percent of K) are depleted (42 FR                     As noted above, in its OSP analysis,
                                                proposed rule, and we received no new                   64548, December 27, 1977; 45 FR 72178,                the status review team used a 2009–
                                                information through the public                          October 31, 1980; 53 FR 17888, May 18,                2010 abundance estimate from only the
                                                comment period that would cause us to                   1988; 58 FR 58285, November 1, 1993;                  Sakhalin Bay-Amur River area because
                                                reconsider our previous finding as                      65 FR 34590, May 31, 2000; 69 FR                      there was no current abundance
                                                reflected in the preamble to the                        31321, June 3, 2004). For stocks of                   estimate of the Nikolaya Bay region.
                                                proposed rule. Thus, all of the                         marine mammals, including beluga                      However, because few animals are
                                                information contained in the preamble                   whales, K is generally unknown. NMFS,                 thought to be in Nikolaya Bay in the
                                                to the proposed rule with respect to                    therefore, has used the best estimate                 survey period compared to the Sakhalin
                                                identifying the Sakhalin Bay-Nikolaya                   available of maximum historical                       Bay-Amur River, the estimate accounts
                                                Bay-Amur River group of beluga whales                   abundance as a proxy for K (64 FR                     for nearly all of the population (Shpak
                                                as a population stock is reaffirmed in                  56298, October 19, 1999; 68 FR 4747,                  et al., 2011). To conduct an OSP
                                                this final action. Therefore, based on the              January 30, 2003; 69 FR 31321, June 3,                analysis for the combined group of
                                                best scientific information available as                2004).                                                Sakhalin Bay-Amur River and Nikolaya
                                                presented in the status review report,                     One technique NMFS has employed                    Bay whales, the team added 500 to the
                                                the preamble to the proposed rule, and                  to estimate maximum historical                        abundance estimate to account for
                                                this final rule, NMFS is identifying the                abundance is the back-calculation                     Nikolaya Bay, and re-ran the model. The
                                                Sakhalin Bay-Nikolaya Bay-Amur River                    method, which assumes that the historic               team determined that including
                                                group of beluga whales as a population                  population was at equilibrium, and that               Nikolaya Bay whales in the analysis
                                                stock.                                                  the environment has not changed                       would not change the estimate of K
                                                                                                        greatly. The back-calculation approach                significantly; it would result in a
                                                Depleted Determination                                  looks at the current population and then              slightly higher percentage of K (i.e., less
                                                   Section 3(1)(A) of the MMPA (16                      calculates historic carrying capacity                 depleted), but the population is still
                                                U.S.C. 1362(1)(A)) defines the term                     based on how much the population has                  below OSP (i.e., less than 60% of K).
                                                ‘‘depletion’’ or ‘‘depleted’’ to include                been reduced by anthropogenic actions.                   None of the information presented in
                                                any case in which ‘‘the Secretary, after                For example, the back-calculation                     the preamble to the proposed rule
                                                consultation with the Marine Mammal                     approach was applied in the                           regarding the abundance of the Sakhalin
                                                Commission and the Committee of                         management of the subsistence hunt of                 Bay-Nikolaya Bay-Amur River stock
                                                Scientific Advisors (CSA) on Marine                     the Cook Inlet beluga whale stock (73                 relative to its carrying capacity or OSP
                                                Mammals . . . determines that a species                 FR 60976, October 15, 2008). The status               has changed since we published the
                                                or a population stock is below its                      review team concluded, and NMFS                       proposed rule, and we received no new
                                                optimum sustainable population.’’                       agrees, that the back-calculation                     information through the public
                                                Section 3(9) of the MMPA (16 U.S.C.                     technique is the most appropriate to use              comment period that would cause us to
                                                1362(9)) defines ‘‘optimum sustainable                  in determining the abundance of the                   reconsider our previous analysis or
                                                population . . . with respect to any                    stock relative to OSP. Therefore, the                 finding as reflected in the preamble to
                                                population stock, [as] the number of                    status review team analyzed the status                the proposed rule. Thus, all of the
                                                animals which will result in the                        of the stock relative to carrying capacity            information contained in the preamble
                                                maximum productivity of the                             using a back-calculation method.                      to the proposed rule with respect to the
                                                population or the species, keeping in                      The best available estimate of                     depleted determination is reaffirmed in
                                                mind the carrying capacity [(K)] of the                 abundance beluga whales in the                        this final action. As such, based upon
                                                habitat and the health of the ecosystem                 Sakhalin Bay-Amur River area is 3,961                 the best scientific information available
                                                of which they form a constituent                        (Reeves et al., 2011). The best available             as presented in the status review report,
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                                                element.’’ NMFS’ regulations at 50 CFR                  removal data for these whales are a time              the preamble to the proposed rule, and
                                                216.3 clarify the definition of OSP as a                series of removals by hunt and live                   this final rule, we find that the Sakhalin
                                                population size that falls within a range               capture since 1915 (Shpak et al., 2011).              Bay-Nikolaya Bay-Amur River stock of
                                                from the population level of a given                    It was not feasible to develop an                     beluga whales is below its OSP level,
                                                species or stock that is the largest                    estimate of any additional                            and designate the stock as a depleted
                                                supportable within the ecosystem (i.e.,                 anthropogenic mortality on this                       stock under the MMPA. The depletion
                                                carrying capacity, or K) to its maximum                 population, however there is evidence                 designation applies to all biological


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                                                74714            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                members of the stock, regardless of                     urged NMFS to promptly finalize its                   further supports the conservative or
                                                whether those individuals are in the                    proposal to designate the stock as                    precautionary policy that is at the heart
                                                wild or in captivity.                                   ‘‘depleted.’’ The majority of these                   of the MMPA. Commenters on both
                                                                                                        commenters noted that the depletion                   sides of the jurisdiction issue argued
                                                Summary of Comments Received and
                                                                                                        status would afford further protection to             that the plain language of the MMPA,
                                                Responses
                                                                                                        the belugas as the MMPA would                         case law, precedent, and Congressional
                                                   With the publication of the proposed                 prohibit the importation of these                     intent support their position.
                                                rule for the designation of the Sakhalin                animals into the United States for the                   Response: The plain language of the
                                                Bay-Nikolaya Bay-Amur River stock of                    purposes of public display.                           MMPA and the regulatory framework it
                                                beluga whales as depleted under the                        Response: We acknowledge this                      establishes for protecting marine
                                                MMPA on April 5, 2016 (81 FR 19542),                    comment and are finalizing the depleted               mammals provide NMFS with the
                                                we announced a 60-day public comment                    designation for this stock as proposed.               authority to designate any marine
                                                period that closed on June 6, 2016.                     See the response to Comment 14                        mammal stock or species as depleted,
                                                During the public comment period we                     regarding additional protections                      regardless of where the species or stock
                                                received a total of 125 written                         afforded under this depleted                          occurs. NMFS therefore agrees with
                                                comments on the proposed rule.                          designation.                                          those commenters who assert that
                                                Commenters included the Commission,                        Comment 2: Some commenters were                    NMFS has the authority to designate a
                                                non-governmental organizations                          opposed to designating the Sakhalin                   foreign stock of marine mammals as
                                                (Environmental Investigation Agency,                    Bay-Nikolaya Bay-Amur River beluga                    depleted, and disagrees with those
                                                Defenders of Wildlife and the Humane                    whale stock as depleted under the                     commenters who assert that the agency
                                                Society of the United States, Center for                MMPA. They noted that each year                       does not have that authority. NMFS
                                                Biological Diversity, Animal Welfare                    millions of people visit public display               refers commenters to the ‘‘Authority’’
                                                Institute, Orca Rescues Foundation,                     facilities to view marine mammals and                 section, above, for an explanation of its
                                                Orca Network, and Georgia Aquarium);                    these experiences provide a unique                    authority. Following are responses to
                                                eight organizations or businesses                       opportunity for conservation education                specific arguments raised by
                                                (Northwest Biotechnology Company,                       that include increasing the awareness of              commenters with respect to this issue.
                                                Perkins Coie, Alliance of Marine                        the unique ecosystem where beluga                        One commenter stated that ‘‘[i]t is
                                                Mammals Parks and Aquariums, Oceans                     whales are found and the many                         well established that the MMPA does
                                                of Fun, Gulfworld Marine Park,                          obstacles they face to survive in their               not apply extraterritorially,’’ citing U.S.
                                                Zoomarine Italy, and Marineland                         natural environment, and provided                     v. Mitchell, 553 F.2d 996 (5th Cir. 1977).
                                                Dolphin Adventure), and 111 interested                  several citations in support of their                 U.S. v. Mitchell held that the MMPA’s
                                                individuals (the majority of whom                       position. In addition, commenters stated              prohibition on taking extends to the
                                                submitted variations of a form letter                   that these facilities support scientific              high seas but does not extend to the
                                                supportive of our proposed                              studies that would not be possible by                 territorial waters of a foreign sovereign
                                                determination). We fully considered all                 studying the animals in the wild.                     state; the opinion did not address the
                                                comments received on the proposed                          Response: We recognize the value of                scope of NMFS’ authority to designate a
                                                rule in developing this final depleted                  public display of marine mammals for                  species or stock of marine mammals as
                                                determination of the Sakhalin Bay-                      conservation education. However, in                   depleted under section 115(a) of the
                                                Nikolaya Bay-Amur River stock of                        accordance with section 3(1)(A) of the                Act. Although NMFS believes that it has
                                                beluga whales.                                          MMPA, we determine whether a stock                    the authority to designate any marine
                                                   Summaries of the substantive                         is depleted based on its abundance                    mammal stock or species as depleted
                                                comments that we received concerning                    relative to its OSP. Because we                       regardless of geographic location, to the
                                                our proposed determination, and our                     determined that the Sakhalin Bay-                     extent that commenters are arguing that
                                                responses to all of the significant issues              Nikolaya Bay-Amur River stock of                      NMFS’ authority applies only up to the
                                                they raise, are provided below.                         beluga whales is below its OSP, we are                boundary of a foreign nation’s territorial
                                                Comments of a similar nature were                       designating the stock as depleted under               seas, NMFS notes that telemetry data
                                                grouped together, where appropriate. In                 the MMPA. As a result of this                         from whales tagged in Sakhalin Bay and
                                                addition to the specific comments                       determination, importation of beluga                  biological information about the whales’
                                                detailed below relating to the proposed                 whales from this population (or their                 migratory behavior demonstrate that
                                                determination, we also received                         progeny) into the United States for the               beluga whales from this stock travel
                                                comments expressing general support                     purpose of public display will now be                 hundreds of kilometers offshore, well
                                                for or opposition to the proposed rule                  prohibited.                                           beyond the territorial seas of Russia
                                                and comments conveying peer-reviewed                       Comment 3: A number of commenters                  (Shpak et al., 2010, 2011, 2012).
                                                journal articles, technical reports, and                stated that NMFS does not have the                       Some commenters also asserted that
                                                references to scientific literature                     authority to designate a foreign marine               the plain language of the ESA and the
                                                regarding threats to the species and                    mammal population as a depleted stock                 MMPA indicate that Congress intended
                                                stock determination. Unless otherwise                   under the MMPA, and thus does not                     the ESA—and not the MMPA—to be the
                                                noted in our responses below, after                     have the authority to proceed with the                regulatory system through which foreign
                                                thorough review, we concluded that the                  proposed designation. These                           marine mammals are protected. NMFS
                                                additional information received was                     commenters further stressed that NMFS                 disagrees. The MMPA and the ESA are
                                                either considered previously or did not                 does not provide any legal or regulatory              separate statutes with distinct
                                                alter our determinations regarding the                  support to whether NMFS may                           frameworks for protecting and
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                                                status of the Sakhalin Bay-Nikolaya Bay-                designate foreign stocks as depleted.                 conserving marine mammals and
                                                Amur River stock of beluga whales.                      Other commenters asserted that the                    threatened and endangered species,
                                                   Comment 1: Numerous commenters,                      MMPA does grant NMFS the authority                    respectively. NMFS has the authority to
                                                including the Commission, voiced                        to designate stocks as depleted, even if              list foreign species as threatened or
                                                support that the Sakhalin Bay-Nikolaya                  they occur outside of waters under the                endangered under the ESA, and NMFS
                                                Bay-Amur River beluga whale stock                       jurisdiction of the United States, and                also has the authority to designate
                                                clearly meets the MMPA standards and                    that the original legislative intent                  foreign species or stocks as depleted


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                         74715

                                                under the MMPA. For example, NMFS’                      designate a species or stock as depleted.             does not provide an explanation for how
                                                authority under the MMPA is evident                     We have followed those steps, and                     the Commission formed the basis for its
                                                from the import prohibition, which                      concluded that a depleted designation is              recommendation to designate the
                                                makes it ‘‘unlawful to import into the                  warranted for the Sakhalin Bay-                       Sakhalin Bay-Nikolaya Bay-Amur River
                                                United States any marine mammal if                      Nikolaya Bay-Amur River stock of                      stock as depleted, or whether the
                                                such mammal was . . . taken from a                      beluga whales. This final rule is being               Committee offered a similar
                                                species or population stock which                       promulgated under the MMPA and we                     recommendation or participated in the
                                                [NMFS] has, by regulation published in                  are not taking any action under the ESA               process at all.
                                                the Federal Register, designated as a                   at this time, but this does not preclude                 Response: The MMPA defines the
                                                depleted species or stock.’’ Id. section                us from responding to any future                      term ‘‘depleted’’ as including any
                                                1372(b)(3). By its plain terms, the                     petition to list the population under the             species or population stock that NMFS,
                                                import prohibition recognizes NMFS’                     ESA.                                                  after consultation with the Commission
                                                authority to designate a species or stock                  Regarding the ‘‘dual track’’ regulation            and its CSA on Marine Mammals,
                                                that occurs outside of waters under the                 referenced by the commenter, a species                determines to be below its OSP. NMFS
                                                jurisdiction of the United States as                    that is listed as threatened or                       notes that this provision requires
                                                depleted. Commenters’ assertion that                    endangered under the ESA is                           consultation with the Commission and
                                                the MMPA’s import prohibition applies                   automatically considered depleted                     its CSA; it does not provide the
                                                only to marine mammals that are                         under MMPA, but the converse is not                   Commission with independent
                                                designated as depleted by virtue of an                  true. Therefore, this MMPA depleted                   authority to designate a species or stock
                                                ESA listing is contrary to the plain                    designation does not automatically                    as depleted. Further, NMFS disagrees
                                                meaning of this provision. See In re                    result in any ESA protections. This                   that the Commission and its CSA have
                                                Polar Bear Endangered Species Act                       depleted designation is not                           no knowledge over foreign species. See,
                                                Listing & Section 4(d) Rule Litigation,                 unprecedented; there are several species              e.g., 16 U.S.C. 1402 (directing the
                                                720 F.3d 354, 360 (D.C. Cir. 2013)                      or stocks of marine mammals that have                 Commission to recommend such steps
                                                (determining that the protections of 16                 been determined to be depleted under                  as it deems necessary or desirable for
                                                U.S.C. 1372(b)(3) apply ‘‘to all depleted               the MMPA but are not listed under the                 the protection and conservation of
                                                species, regardless of how they achieve                 ESA, such as the AT1 group of killer                  marine mammals, to suggest appropriate
                                                their depleted status’’).                               whales (69 FR 31321, June 3, 2004) and                international arrangements for the
                                                   Finally, with respect to precedent,                  the Pribilof Island population of North               protection and conservation of marine
                                                NMFS has previously used its authority                  Pacific fur seals (53 FR 17888, May 18,               mammals, and to recommend such
                                                under section 115(a) to designate as                    1988).                                                revisions to the list of threatened and
                                                depleted two stocks of dolphins that                       Comment 5: A number of commenters                  endangered species as may be
                                                occur entirely outside of waters under                  stated that NMFS has not satisfied its                appropriate with regard to marine
                                                the jurisdiction of the United States:                  obligation to review and/or evaluate the              mammals, among other duties).
                                                The northeastern stock of offshore                      best available scientific information                    As stated in the preamble to the
                                                spotted dolphin and the eastern stock of                with respect to the Sakhalin Bay-                     proposed rule, we consulted with the
                                                spinner dolphin. See 58 FR 58285 (Nov.                  Nikolaya Bay-Amur River population of                 Commission related to the petition to
                                                1, 1993); 58 FR 45066 (Aug. 26, 1993).                  beluga whales. Conversely, a number of                designate the Sakhalin Bay-Amur River
                                                Some commenters argued that NMFS’                       commenters reiterated the                             group of beluga whales as a depleted
                                                authority to designate these stocks as                  Commission’s comments that NMFS’                      population stock. Review of the draft
                                                depleted was rooted in the ‘‘extreme                    status review is ‘‘a well-written                     status review report by the Commission,
                                                and unique circumstances surrounding                    document that thoroughly analyzes the                 in consultation with its CSA,
                                                the regulatory structure in place with                  available information.’’                              constituted the consultation required by
                                                respect to these stocks’’ in the eastern                   Response: We conducted a thorough                  section 3(1)(A). We have confirmed that
                                                tropical Pacific Ocean (ETP). NMFS                      review of the status of beluga whales in              the Commission consulted with its CSA
                                                acknowledges that Congress amended                      the Sea of Okhotsk. We reviewed all                   in making its recommendation. We are
                                                the MMPA to include provisions                          available scientific information                      neither required to, nor are we in a
                                                specifically relating to the ETP.                       contained in our files and in peer                    position to explain, the basis for a
                                                However, NMFS designated these stocks                   reviewed literature, as well as                       recommendation by another federal
                                                as depleted pursuant to section 115(a) of               information provided by the petitioners               agency.
                                                the Act, and not pursuant to any                        and the public. Several commenters                       Comment 7: Some commenters
                                                provision of the MMPA applicable only                   provided additional information during                claimed that NMFS has essentially
                                                to the ETP. The depletion designations                  the proposed rule public comment                      changed Congress’ definition of a stock.
                                                of these two stocks of dolphins therefore               period. The additional information                    They state that the MMPA’s definition
                                                provide precedent for the current action.               received was either considered                        of a ‘‘population stock’’ (i.e., ‘‘a group of
                                                   Comment 4: One commenter                             previously or did not alter our                       marine mammals of the same species or
                                                suggested that designating a foreign                    determinations regarding the status of                smaller taxa in a common spatial
                                                species as depleted under the MMPA                      the Sakhalin Bay-Nikolaya Bay-Amur                    arrangement, that interbreed when
                                                ‘‘. . . would set a harmful precedent                   River stock of beluga whales. The best                mature’’ (MMPA section 3(11)), is
                                                that potentially establishes a dual-track               scientific information available supports             consistent with the ‘‘traditionally
                                                regulation of imperiled species,’’ and                  our determination that this stock of                  accepted scientific definition of a
                                                recommended that NMFS retract the                       beluga whales should be designated as                 ‘population’ (e.g., the community of
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                                                proposed rule and instead consider any                  depleted.                                             potentially interbreeding individuals at
                                                future petition brought under the ESA                      Comment 6: One commenter noted                     a given locality, Mayr 1963).’’ They
                                                concerning the Sakhalin Bay-Nikolaya                    that the Commission and the Committee                 disagree with NMFS’ interpretation of
                                                Bay-Amur River aggregation.                             of Scientific Advisors (CSA) are ‘‘. . .              ‘‘interbreed when mature’’ to include a
                                                   Response: Section 115(b) of the                      both domestic groups with no                          ‘‘group [that] migrates seasonally to a
                                                MMPA outlines the steps that NMFS is                    knowledge or authority over foreign                   breeding ground where its members
                                                required to take when petitioned to                     species or stocks.’’ In addition, NMFS                breed with members of the same group


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                                                74716            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                as well as with members of other                        find it to be valid to define stocks in               towards males) and the microsatellite
                                                demographically distinct groups which                   which: (1) Mating occurs primarily                    data quality. Meschersky and Yazykova
                                                have migrated to the same breeding                      among members of the same                             (2012) did not provide sufficient
                                                ground from a different feeding                         demographically independent group, or                 information on data collection and
                                                ground.’’ They state that NMFS’ use of                  (2) the group migrates seasonally to a                analysis methods, so it was not possible
                                                the terms demographically distinct,                     breeding ground where its members                     to evaluate the quality of the
                                                demographically independent, or                         breed with members of the same group                  microsatellite data. The International
                                                demographically isolated groups is also                 as well as with members of other                      Union for Conservation of Nature
                                                scientifically incorrect and                            demographically distinct groups which                 (IUCN) independent scientific review
                                                inappropriate (Cronin 2006, 2007). They                 have migrated to the same breeding                    panel of beluga whale experts also
                                                argue that while whales from different                  ground from a different feeding ground                considered the available nuclear DNA
                                                feeding grounds may be spatially                        (Bettridge et al., 2016).                             analyses and expressed concerns over
                                                separated for a period of time, they are                   Comment 8: One commenter alleged                   the sampling design and methods
                                                not distinct, independent, or isolated                  that in its review of the scientific data,            (Reeves et al., 2011).
                                                breeding (i.e., demographic) groups.                    NMFS selectively used data to support                    Generally, significant differences in
                                                   Response: We disagree that we have                   its conclusion, while ignoring other                  mtDNA haplotype frequencies are
                                                improperly changed the MMPA’s                           relevant, highly reliable data to the                 interpreted as sufficient evidence for
                                                definition of stock. The MMPA provides                  contrary. Specifically, the commenter                 demographic independence reflecting
                                                both biological and ecological guidance                 argued that NMFS inappropriately                      female philopatry. Stocks, including
                                                for defining marine mammal stocks. The                  dismissed the nuclear microsatellite                  harbor seal stocks in the North Pacific
                                                biological guidance is in the definition                DNA data and overemphasized the                       (O’Corry-Crowe et al., 2003) and the
                                                of population stock: A group of marine                  mitochondrial DNA (mtDNA) data, thus,                 humpback whale stock in the western
                                                mammals of the same species or smaller                  not considering the relevance of the                  North Atlantic (Palsb<ll et al., 2001,
                                                taxa in a common spatial arrangement                    nuclear DNA data to the primary issue                 IWC 2002), have been delineated based
                                                that interbreed when mature (MMPA                       of identification of interbreeding groups.            on mtDNA alone. See the response to
                                                section 3(11)). The ecological guidance                    Response: We disagree with the                     Comment 9 regarding the strength of the
                                                is addressed in the requirement that a                  commenter. As documented in the                       mtDNA data and findings.
                                                stock be maintained as a functioning                    status review and the preamble to the                    Comment 9: A number of commenters
                                                element of the ecosystem (MMPA                          proposed rule, we evaluated all                       asserted that based on the combined
                                                section 2(2)). NMFS has developed                       available scientific literature and all               scientific findings from genetics,
                                                guidelines for assessing marine mammal                  lines of evidence for and against                     telemetry, and census (abundance) data,
                                                stocks (GAMMS); the most recent                         demographic independence of Sakhalin                  whales in the five bays, comprising the
                                                revision to the GAMMS was made                          Bay-Nikolaya Bay-Amur River beluga                    western region of the Sea of Okhotsk,
                                                available for public comment and                        whales (see sections 4.2.1 and 4.2.2 of               constitute one stock. Specifically, the
                                                finalized in February 2016 (NMFS                        the status review report). Regarding the              data show that the beluga whales from
                                                2016). The GAMMS provide guidance                       nuclear microsatellite DNA, we                        all of the bays of the western Sea of
                                                on defining population stocks consistent                acknowledged in the preamble to the                   Okhotsk are an interbreeding group, and
                                                with the MMPA. NMFS’ approach to                        proposed rule that analysis of nuclear                therefore are a single stock. One
                                                determining that beluga whales                          microsatellite markers found no                       commenter cited the genetic studies of
                                                primarily occurring in the Sakhalin Bay-                evidence for genetic differentiation                  Meschersky et al. (2013) and Yazykova
                                                Nikolaya Bay-Amur River area is a stock                 among the bays of the western Sea of                  et al. (2012) as evidence that the
                                                is consistent with the guidance                         Okhotsk with the exception of a                       summer aggregations in the five bays in
                                                provided in the GAMMS.                                  comparison of Sakhalin Bay to the                     the western Sea of Okhotsk are seasonal
                                                   For the purposes of management                       distant Ulbansky Bay (Meschersky and                  groups that belong to one breeding
                                                under the MMPA, NMFS recognizes a                       Yazykova 2012, Meschersky et al.,                     population. Another commenter stated
                                                marine mammal stock as being a                          2013). The status review report                       that the large inter-annual differences in
                                                management unit that identifies a                       explained that the lack of nuclear DNA                population estimates of beluga whales
                                                demographically independent biological                  differentiation among most summer                     in the Shantar and Sakhalin regions
                                                population. We define demographic                       feeding areas in the western Sea of                   (based on 2009 and 2010 aerial survey
                                                independence to mean that the                           Okhotsk (except between Sakhalin Bay-                 data cited in Shpak et al., 2011),
                                                population dynamics of the affected                     Amur River and the distant Ulbansky                   ‘‘cannot be attributed to massive
                                                group is more a consequence of births                   Bay; Meschersky and Yazykova 2012;                    increases or decreases in isolated
                                                and deaths within the group (internal                   Meschersky et al., 2013) is consistent                populations.’’ Rather, the commenter
                                                dynamics) rather than immigration or                    with interbreeding between animals that               asserts that these differences indicate
                                                emigration (external dynamics). Thus,                   aggregate in Sakhalin Bay and the other               the beluga whales move between
                                                the exchange of individuals between                     bays, and because these animals spend                 summering areas, following salmon or
                                                population stocks is not great enough to                some parts of the year together (i.e.,                other fish runs (Berzin et al., 1991,
                                                prevent the depletion of one of the                     winter), it is plausible that recruitment             Trumble and Lajus 2008, Popov 1986).
                                                populations as a result of increased                    into a summer aggregation could be both               The commenter suggests, for example,
                                                mortality or lower birth rates (NMFS                    internal and external. However, we                    that beluga whales move into the
                                                2016). Mortality includes both natural                  concluded the nuclear DNA data                        Sakhalin Bay-Amur River area in odd
                                                and human-caused mortality and                          available to date are too weak, given the             years (such as 2009) when the runs of
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                                                removals from the population.                           level of and design of the sampling, to               the oceanic race of pink salmon are
                                                   In our definition of demographic                     assess how much internal versus                       much greater, and to bays in the Shantar
                                                independence and in our interpretation                  external recruitment there is. Moreover,              region in even years when the salmon
                                                of ‘‘interbreed when mature’’ we                        the status review team expressed                      are less abundant in the Sakhalin Bay-
                                                recognize that some interchange among                   concern about the adequacy of the                     Amur River area. To support their
                                                groups may occur (i.e., demographic                     sampling (most areas were sampled                     discussion of inter-annual differences in
                                                isolation is not required). Therefore, we               predominantly in one year, skewed                     abundance, the commenter used Shpak


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                        74717

                                                et al.’s (2011) 2009 and 2010 aerial                    team discussed, for example, that                     ‘‘typically’’ uses for beluga whales in
                                                survey data and recalculated the                        Yazykova et al. (2012) indicate they                  Alaska (Allen and Angliss 2014).
                                                abundance estimates using correction                    used the microsatellite loci DlrFCB6 and              However, NMFS does not apply any
                                                factors NMFS ‘‘typically’’ uses for                     DlrFCB17, yet these two loci are known                ‘‘typical’’ correction factor to estimate
                                                beluga whales in Alaska (Allen and                      to be the same. Standard data quality                 beluga abundance. The corrections, to
                                                Angliss 2014).                                          tests should have identified they were                account for animals during surveys that
                                                   Response: We disagree with the                       the same, and one of them should have                 were missed either because the animals
                                                commenters’ assertion that the data                     been subsequently dropped from all                    are submerged or too small to be seen,
                                                indicate a single stock of beluga whales                analyses. Therefore, the microsatellite               are dependent on the survey conditions
                                                in the five bays of the Western Sea of                  data set may contain significant errors               (such as altitude, air speed, ice
                                                Okhotsk. Regarding the genetic data                     that could lead to incorrect conclusions,             conditions, and water clarity) and
                                                referenced by the commenters,                           and the status review team could not                  therefore vary. The correction factors
                                                Meschersky et al. (2013) examined                       adequately evaluate these potential                   used by the commenter, 2.62 (to account
                                                samples from Sakhalin Bay, Nikolaya                     issues.                                               for diving animals) and 1.18 (to account
                                                Bay, Udskaya Bay, the northeastern Sea                     NMFS believes the telemetry (tagging)              for newborns and yearlings not observed
                                                of Okhotsk on the west coast of the                     data also supports our stock delineation,             due to their small size and dark
                                                Kamtchatka Peninsula, and the Anadyr                    although we consider them to be weaker                coloration), were developed
                                                Estuary in the northwestern Bering Sea.                 evidence, in part, because of the small               respectively, for Bristol Bay (Frost and
                                                All mtDNA comparisons that were made                    number of tags. Furthermore, while the                Lowry 1995) and Cumberland Sound,
                                                were significant (p < 0.00001),                         tag data reveal where animals move,                   Baffin Island (Brodie 1971). In cases
                                                indicating significant haplotype                        they do not indicate whether                          when conditions were similar, NMFS
                                                frequency differences between Sakhalin                  interbreeding is occurring if/when                    has used these correction factors for
                                                Bay and Udskaya Bay (as well as                         animals from different stocks may                     other areas in Alaska (e.g., Eastern
                                                between Sakhalin Bay and regions in                     overlap. However, NMFS disagrees with                 Chuckchi Sea and Eastern Bering Sea),
                                                the northern Sea of Okthosk and                         the commenters’ assertion that ‘‘[t]he                while in other cases we have used
                                                western Bering Sea). The level of                       telemetry data show there is significant              correction factors of 2 (e.g., the Beaufort
                                                mtDNA differentiation found is on par                   movement of belugas among bays in the                 Sea), or have used an analysis of video
                                                with comparisons among other                            Sea of Okhotsk in autumn and other                    tape or regression of counts to correct
                                                recognized marine mammal stocks.                        times of the year.’’ Beluga whale                     for availability and sightability (e.g.,
                                                Yazykova et al. (2012) used samples                     movements from Sakhalin Bay to the                    Cook Inlet) (Allen and Angliss 2015).
                                                from all five bays in the southwestern                  Shantar region, mainly Nikolaya Bay,                  The commenter has not demonstrated
                                                Sea of Okhotsk (Sakhalin, Nikolaya,                     were recorded primarily in the fall and               that the survey conditions in this region
                                                Ulbansky, Tugursky, and Udskaya). The                   interpreted as the beginning of                       were sufficiently similar to those in
                                                sample size from Nikolaya Bay was very                  migration westward and then northwest                 Bristol Bay or Cumberland Sound.
                                                small (n=8). Sakhalin Bay showed                        into offshore waters for the winter.                  Further, both Shpak et al. (2011) and
                                                significant mtDNA differences from all                  Shpak et al. (2010) reported that the four            Reeves et al. (2011) considered using a
                                                sampling locations except Nikolaya Bay.                 tagged whales moved from Sakhalin Bay                 correction factor of 2 to be appropriate.
                                                Overall, the mtDNA data in both studies                 to Nikolaya Bay, with a few detections                   The commenter also discussed the
                                                indicate significant genetic                            in the very far southeastern edge of                  relative abundance of beluga whales in
                                                differentiation between Sakhalin Bay                    Ulbansky Bay adjacent to Nikolaya Bay,                the Sakhalin-Amur and Shantar regions.
                                                and the other bays (except Nikolaya Bay                 in the fall just prior to migrating further           Regardless of which correction factors
                                                where the sample size is very small).                   north into the open water of the Sea of               are used, the Sakhalin-Amur aggregation
                                                Thus, these data suggest that should one                Okhotsk (see Figure 3 of Shpak et al.,                represents 59 percent of the total
                                                of these bays be depleted or locally                    2010). Tagging efforts to date do not                 estimated number of beluga whales in
                                                extirpated, they are not likely to be                   present any evidence that the animals                 the two regions in 2009 and 33 percent
                                                repopulated by immigration from the                     move farther west than that within the                in 2010. The commenter asserted that
                                                remaining bays.                                         other bays (i.e., into Tugursky Bay or                the inter-annual differences in
                                                   For the microsatellite data,                         Udskaya Bay). As discussed in the                     abundance are due to shifting of belugas
                                                Meschersky et al. (2013) utilized nine                  preamble to the proposed rule, although               from one region to another, which it
                                                microsatellite loci while Yazykova et al.               not very many whales have been tagged,                states may be in large part due to the
                                                (2012) added ten additional loci for a                  the data available to date suggest whales             variation in salmon or other fish runs.
                                                total of 19. In addition to concerns about              present in the summer in Sakhalin Bay                 The commenter cited Berzin et al. 1991,
                                                sampling (one year, skewed towards                      also use Nikolaya Bay, but there is little            Trumble and Lajus 2008, and Popov
                                                males) as discussed in the status review                evidence for movement between                         1986 in support, but did not include a
                                                and by the IUCN scientific panel and                    Sakhalin Bay and the other bays further               copy of these papers with the comment
                                                response to Comment 8 above, it is                      to the west during spring and summer.                 letter. We searched but were unable to
                                                difficult to evaluate the microsatellite                   Regarding census (abundance) data,                 obtain copies of Berzin et al. (1991) and
                                                analyses of these two publications                      one commenter speculated that the                     Popov (1986). However, we reviewed
                                                because they do not present adequate                    inter-annual differences in population                Trumble and Lajus (2008) and the
                                                information on the analytical methods                   estimates in the Shantar and Sakhalin-                commenter’s description of the findings
                                                used to evaluate the quality of the                     Amur regions are not a result of                      from the two unavailable papers.
                                                microsatellite data. Information on                     increases (or decreases) in insolated                    As stated in the status review, we
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                                                standard tests commonly applied to                      populations, but, rather, indicate that               acknowledge that summer aggregations
                                                evaluate the quality of microsatellite                  beluga whales move from one region to                 of beluga whales often focus on
                                                data prior to running any analyses (for                 another. In support of their argument,                seasonally available fish runs, like
                                                example, tests for linkage                              the commenter recalculated Shpak et                   salmon runs. However, we do not agree
                                                disequilibrium and Hardy-Weinberg                       al.’s (2011) abundance estimates from                 that the abundance data indicate a
                                                equilibrium) were not presented in                      the 2009 and 2010 aerial surveys by                   single stock of beluga whales moving
                                                either publication. The status review                   using correction factors NMFS                         between regions. We evaluated the


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                                                74718            Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations

                                                abundance information, including the                    Sakhalin Bay-Nikolaya Bay-Amur River                  not plan to implement a conservation
                                                information provided by the                             stock as depleted would be perceived by               plan. However, as noted above, by
                                                commenters. Based on the estimates of                   Russia that the United States does not                prohibiting the importation of Sakhalin
                                                abundance and associated statistical                    approve of its management of the                      Bay-Nikolaya Bay-Amur River beluga
                                                error presented in Shpak and Glazov                     species, and would actually impede                    whales into the United States for the
                                                (2013, Table 4), there is a 31 percent                  efforts to conserve beluga populations in             purpose of public display, this depleted
                                                difference between the abundance in                     Russian waters.                                       designation will provide intrinsic
                                                2009 and the lower of the two                              Response: We were petitioned under                 conservation benefits that may reduce
                                                abundance estimates in 2010 in the                      section 115 of the MMPA to evaluate                   the impacts of live captures to this
                                                Sakhalin-Amur aggregation. We                           whether the beluga whales in the                      stock.
                                                conclude that the difference can be                     Sakhalin Bay-Amur River region are                       Comment 15: Some commenters
                                                explained by the statistical uncertainty                depleted. We do not have the discretion               recommended additional genetic and
                                                of the abundance estimates. Thus, the                   to consider political factors in the                  environmental research in the Sea of
                                                difference between the estimates can be                 analysis of whether a stock is below its              Okhotsk, to better define and manage
                                                attributed to sampling error between                    OSP level and a depleted designation is               the population’s recovery.
                                                surveys and NMFS finds no reason,                       warranted.                                               Response: We agree that such research
                                                based on our analysis of the abundance                     Comment 13: Several commenters                     would be beneficial. Such research was
                                                information, to reject the status review                asserted that the Sakhalin Bay-Amur                   also recommended by the Commission
                                                team’s conclusion that the population in                River stock is below its OSP level and                in its consultation with us, and by the
                                                the Sakhalin Bay-Amur River area is a                   clearly depleted, and including                       IUCN panel (Reeves et al., 2011).
                                                distinct stock.                                         Nikolaya Bay does not change NMFS’                       Comment 16: One commenter noted
                                                   Based upon the above, we cannot                      depletion finding.                                    that according to new data from the
                                                conclude that all beluga whales from the                   Response: We acknowledge this                      United Nations Environment
                                                five western bays in the Sea of Okhotsk                 comment and are finalizing the                        Programme’s World Conservation
                                                belong to a single demographically                      designation of the Sakhalin Bay-                      Monitoring Center, at least 37 live
                                                independent population; the best                        Nikolaya Bay-Amur River stock of                      beluga whales, likely from the Sakhalin
                                                scientific information available supports               beluga whales as depleted.                            Bay-Nikolaya Bay-Amur River stock,
                                                our conclusion that the Sakhalin Bay-                      Comment 14: Many commenters                        were exported from Russia in 2014, and
                                                Nikolaya Bay-Amur River population of                   claimed that the depleted finding would               emphasized that the level of these live
                                                beluga whales is a stock. Multiple lines                provide the stock greater protection                  exports alone continues to exceed its
                                                of evidence support this conclusion,                    against further decline. One noted that               potential biological removal level (PBR).
                                                including mtDNA differentiation,                        a depleted designation would help                        Response: We recognize that live
                                                movement data, geographical/ecological                  promote the goals of the MMPA by                      captures are a continuing threat to this
                                                separation, and similarity to other                     helping to recover the population                     stock, but our evaluation of the stock’s
                                                examples of MMPA stock designations                     thereby protecting the health and                     status did not consider PBR. Rather, we
                                                outlined in the status review report (e.g.,             stability of the marine ecosystem.                    evaluated the stock’s abundance relative
                                                beluga whales in Alaska). Our                              Response: NMFS notes that although                 to carrying capacity to determine
                                                conclusion is largely consistent with                   we do not manage this foreign stock                   whether the population was below its
                                                that of the 2011 IUCN independent                       directly, this depleted designation                   OSP level.
                                                scientific review panel (Reeves et al.,                 prohibits importation of whales from                     Comment 17: Some commenters cited
                                                2011) regarding the unit to conserve.                   this stock into the United States for the             new information documenting that
                                                   Comment 10: Many commenters                          purpose of public display, which may                  unsustainable live removals for public
                                                supported the Commission’s                              partially address the threat of the live-             display, mortality incidental to these
                                                recommendation for NMFS to take a                       capture trade by reducing demand. This                captures, and pollution continue to
                                                precautionary approach to include                       is consistent with our 2013 denial of the             contribute to the population’s depletion.
                                                Nikolaya Bay and designate the                          Georgia Aquarium’s application for a                  Other commenters noted that beluga
                                                Sakhalin Bay-Nikolaya Bay-Amur River                    permit to import 18 beluga whales from                whales from this population face threats
                                                distinct stock of beluga whales as                      this population into the United States,               from vessel strikes, entanglement and
                                                depleted under the MMPA.                                in which we found that ongoing, legal                 drowning, subsistence harvest, oil and
                                                   Response: We acknowledge this                        marine mammal capture operations in                   gas development, and climate change.
                                                comment and are including beluga                        Russia are expected to continue, and                     Response: We appreciate the updated
                                                whales in Nikolaya Bay in the stock                     issuance of the permit would have                     information provided by the
                                                being designated as depleted.                           contributed to the demand to capture                  commenters regarding live captures,
                                                   Comment 11: Several commenters                       belugas from this stock for the purpose               measurements of persistent organic
                                                asserted that comparable inferences                     of public display worldwide, resulting                pollutants in tissue collected from
                                                from the better studied beluga whale                    in the future taking of additional                    beluga whales in the Sea of Okhotsk,
                                                populations of Canada’s Hudson Bay                      belugas from this stock.                              and oil and gas development in the
                                                support NMFS’ conclusions on mtDNA                         The MMPA requires NMFS to prepare                  Sakhalin region. As we noted in the
                                                and geographic and ecological                           a conservation plan and restore any                   preamble to the proposed rule,
                                                separation along maternal lines to                      stock designated as depleted to its OSP               information on potential sources of
                                                delineate the Sakhalin Bay-Nikolaya                     level, unless NMFS determines that                    serious injury and mortality is limited
                                                Bay-Amur River population as a stock.                   such a plan would not promote the                     for the Sea of Okhotsk beluga whales.
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                                                   Response: We acknowledge this                        conservation of the stock. We have                    The IUCN panel identified subsistence
                                                comment but clarify that we relied on                   determined that a conservation plan                   harvest, death during live capture for
                                                multiple lines of evidence to identify                  would not further promote the                         public display, entanglement in fishing
                                                the stock, including genetic, telemetry,                conservation of the Sakhalin Bay-                     gear, vessel strike, climate change, and
                                                and movement data.                                      Nikolaya Bay-Amur River stock of                      pollution as human activities that may
                                                   Comment 12: A number of                              beluga whales given that NMFS does                    result in serious injury or mortality to
                                                commenters argued that designating the                  not manage the stock, and therefore do                Sea of Okhotsk beluga whales (Reeves et


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                                                                 Federal Register / Vol. 81, No. 208 / Thursday, October 27, 2016 / Rules and Regulations                                            74719

                                                al. 2011). The greatest amount of                       meets the definition of a strategic stock             import beluga whales for public display.
                                                available information is from the                       under the MMPA. Under provisions of                   NMFS notes the small number of U.S.
                                                estimates of annual take from the                       the MMPA, a take reduction team must                  entities that house beluga whales and
                                                commercial hunt. As noted in the                        be established and a take reduction plan              the small number of beluga whales from
                                                petition, the IUCN review, and the                      developed and implemented within                      this stock that are currently permitted
                                                preamble to the proposed rule,                          certain time frames if a strategic stock of           for public display in the United States.
                                                monitoring of other types of mortality in               marine mammals interacts with a                       Because this rule will not prevent an
                                                the Sea of Okhotsk is low, if existent at               Category I or II commercial fishery.                  entity from requesting to import a
                                                all, and information on possible threats                However, NMFS has not identified any                  beluga whale from a non-depleted stock
                                                and sources of mortality in Sea of                      interactions between commercial                       for purposes of public display, NMFS
                                                Okhotsk beluga whales is highlighted by                 fisheries and this group of beluga                    found that this rule would not result in
                                                a lack of substantiated data, and is                    whales that would result in such a                    a significant economic impact on a
                                                largely anecdotal.                                      requirement. In addition, under the                   substantial number of small entities.
                                                   As noted above, a direct result of this              MMPA, if NMFS determines that                         NMFS invited comment from members
                                                depleted designation is that importation                impacts on areas of ecological                        of the public to provide any additional
                                                of whales from this stock into the                      significance to marine mammals may be                 information on NMFS determination
                                                United States for purposes of public                    causing the decline or impeding the                   that the rule will not result in a
                                                display is prohibited. This may reduce                  recovery of a strategic stock, it may                 significant economic impact on a
                                                the impacts of live captures, but does                  develop and implement conservation or                 substantial number of small entities.
                                                not directly address the remaining                      management measures to alleviate those                NMFS did not receive any comment on
                                                threats to this population.                             impacts. However, NMFS has not                        this issue. As a result, no regulatory
                                                Classification                                          identified information sufficient to                  flexibility analysis for this final rule has
                                                                                                        make any such determination for this                  been prepared.
                                                   This rule has been determined to be                                                                           This final rule does not contain a
                                                                                                        group of beluga whales. The MMPA also
                                                not significant for the purposes of                                                                           collection-of-information requirement
                                                                                                        requires NMFS to prepare a
                                                Executive Order 12866.                                                                                        for purposes of the Paperwork
                                                   Similar to ESA listing decisions,                    conservation plan and restore any stock
                                                                                                        designated as depleted to its OSP,                    Reduction Act of 1980.
                                                which are based solely on the best
                                                                                                        unless NMFS determines that such a                       This final rule does not contain
                                                scientific and commercial information
                                                                                                        plan would not promote the                            policies with federalism implications
                                                available, depleted designations under
                                                                                                        conservation of the stock. NMFS has                   sufficient to warrant preparation of a
                                                the MMPA are determined ‘‘solely on
                                                                                                        determined that a conservation plan                   federalism assessment under Executive
                                                the basis of the best scientific
                                                information available.’’ 16 U.S.C.                      would not promote the conservation of                 Order 13132.
                                                1533(b)(1)(A) and 16 U.S.C. 1383b(a)(2).                the Sakhalin Bay-Nikolaya Bay-Amur                    List of Subjects in 50 CFR Part 216
                                                Because ESA listings are thus exempt                    River stock of beluga whales and
                                                                                                        therefore does not plan to implement a                  Administrative practice and
                                                from the requirement to prepare an
                                                                                                        conservation plan. In summary, this                   procedure, Exports, Imports, Marine
                                                environmental assessment or
                                                                                                        final rule will not directly regulate the             mammals, Transportation.
                                                environmental impact statement under
                                                the National Environmental Policy Act                   public. If any subsequent restrictions                  Dated: October 24, 2016.
                                                of 1969 (see NOAA Administrative                        placed on the public to protect the                   Samuel D. Rauch III,
                                                Order 216–6.03(e)(1)), NMFS has                         Sakhalin Bay-Nikolaya Bay-Amur River                  Deputy Assistant Administrator for
                                                determined that MMPA depleted                           stock of beluga whales are included in                Regulatory Programs, National Marine
                                                designations are also exempt from the                   separate regulations, appropriate                     Fisheries Service.
                                                requirements of the National                            analyses under the Regulatory                           For the reasons set out in the
                                                Environmental Policy Act. Thus, an                      Flexibility Act would be conducted                    preamble, 50 CFR part 216 is amended
                                                environmental assessment or                             during those rulemaking procedures.                   as follows:
                                                environmental impact statement is not                      The MMPA prohibits the importation
                                                required and none has been prepared for                 of any marine mammal designated as                    PART 216—REGULATIONS
                                                the depleted designation of this stock                  depleted for purposes of public display               GOVERNING THE TAKING AND
                                                under the MMPA.                                         (see 16 U.S.C. 1371(a)(3)(B) and                      IMPORTING OF MARINE MAMMALS
                                                   When the proposed rule was                           1372(b)). Therefore, this rule will have
                                                published, the Chief Counsel for                        the indirect effect of prohibiting the                ■ 1. The authority citation for part 216
                                                Regulation of the Department of                         future importation of any marine                      continues to read as follows:
                                                Commerce certified to the Chief Counsel                 mammal from this stock into the United                  Authority: 16 U.S.C. 1361 et seq., unless
                                                for Advocacy of the Small Business                      States for purposes of public display.                otherwise noted.
                                                Administration that this rule would not                 There are 104 facilities in the United                ■ 2. In § 216.15, add paragraph (j) to
                                                have a significant impact on a                          States that house marine mammals for                  read as follows:
                                                substantial number of small entities. (81               the purposes of public display. Of these,
                                                                                                                                                              § 216.15   Depleted species.
                                                FR 19546, April 5, 2016). This rule                     only six facilities house beluga whales.
                                                designates a group of beluga whales in                  There are currently twenty-seven beluga               *      *    *    *     *
                                                Russian waters (known as the Sakhalin                   whales at these facilities. None of these               (j) Sakhalin Bay-Nikolaya Bay-Amur
                                                Bay-Nikolaya Bay-Amur River group) as                   beluga whales were taken in the wild                  River beluga whales (Delphinapterus
jstallworth on DSK7TPTVN1PROD with RULES




                                                depleted; however, this rule would not,                 from the Sakhalin Bay-Nikolaya Bay-                   leucas). The stock includes all beluga
                                                by itself, directly regulate the public,                Amur River stock; three whales are                    whales primarily occurring in, but not
                                                including any small entities. The                       progeny of animals taken in the wild                  limited to, waters of Sakhalin Bay,
                                                MMPA authorizes NMFS to take certain                    from this stock. NMFS receives very few               Nikolaya Bay, and Amur River in the
                                                actions to protect a stock that is                      requests to import beluga whales into                 Sea of Okhotsk.
                                                designated as depleted. For example, a                  the United States for purposes of public              [FR Doc. 2016–25984 Filed 10–26–16; 8:45 am]
                                                stock that is designated as depleted                    display and has no pending requests to                BILLING CODE 3510–22–P




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Document Created: 2016-10-27 01:52:39
Document Modified: 2016-10-27 01:52:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective November 28, 2016.
ContactShannon Bettridge, [email protected], Office of Protected Resources, 301-427- 8402.
FR Citation81 FR 74711 
RIN Number0648-BF55
CFR AssociatedAdministrative Practice and Procedure; Exports; Imports; Marine Mammals and Transportation

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