Designating the Sakhalin Bay-Nikolaya Bay-Amur River Stock of Beluga Whales as a Depleted Stock Under the Marine Mammal Protection Act (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 via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-25984
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
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, Shannon.Bettridge@noaa.gov, Office of Protected Resources, 301-427-
8402.
SUPPLEMENTARY INFORMATION:
Background
Section 115(a) of the MMPA (16 U.S.C. 1383b(a)) allows interested parties to petition NMFS to initiate a status review to determine whether a species or stock of marine mammals should be designated as depleted. On April 23, 2014, we received a petition from the Animal Welfare Institute, Whale and Dolphin Conservation, Cetacean Society International, and Earth Island Institute (petitioners) to ``designate the Sakhalin Bay-Amur River stock of beluga whales as depleted under the MMPA.'' We published a notification that the petition was available (79 FR 28879; May 20, 2014). After evaluating the petition, we determined that the petition contained substantial information indicating that the petitioned action may be warranted (79 FR 44733; August 1, 2014). Following the determination that the petitioned action may be warranted, we convened a status review team and conducted a status review to evaluate
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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
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Nikolaya Bay was almost evenly divided, based on the lines of evidence reviewed. Given the currently available information, it is equally plausible that the beluga whales in Nikolaya Bay are part of the demographically independent population stock of Sakhalin Bay-Amur River beluga whales than not. Including Nikolaya Bay in the delineation and description of the stock would be a more conservative and precautionary approach, as it would provide any protection afforded under the MMPA to the beluga whales in Sakhalin Bay-Amur River to those beluga whales in Nikolaya Bay.
None of the information regarding the identification of the Sakhalin 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
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members of the stock, regardless of whether those individuals are in the wild or in captivity.
Summary of Comments Received and Responses
With the publication of the proposed rule for the designation of the Sakhalin Bay-Nikolaya Bay-Amur River stock of beluga whales as depleted under the MMPA on April 5, 2016 (81 FR 19542), we announced a 60-day public comment period that closed on June 6, 2016. During the public comment period we received a total of 125 written comments on the proposed rule. Commenters included the Commission, non-governmental organizations (Environmental Investigation Agency, Defenders of Wildlife and the Humane Society of the United States, Center for Biological Diversity, Animal Welfare Institute, Orca Rescues Foundation, Orca Network, and Georgia Aquarium); eight organizations or businesses (Northwest Biotechnology Company, Perkins Coie, Alliance of Marine Mammals Parks and Aquariums, Oceans of Fun, Gulfworld Marine Park, Zoomarine Italy, and Marineland Dolphin Adventure), and 111 interested individuals (the majority of whom submitted variations of a form letter supportive of our proposed determination). We fully considered all comments received on the proposed rule in developing this final depleted determination of the Sakhalin 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 ``it is well established that the MMPA does not apply extraterritorially,'' citing U.S. v. Mitchell, 553 F.2d 996 (5th Cir. 1977). U.S. v. Mitchell held that the MMPA's prohibition on taking extends to the high seas but does not extend to the territorial waters of a foreign sovereign state; the opinion did not address the scope of NMFS' authority to designate a species or stock of marine mammals as depleted under section 115(a) of the Act. Although NMFS believes that it has the authority to designate any marine mammal stock or species as depleted regardless of geographic location, to the extent that commenters are arguing that NMFS' authority applies only up to the boundary of a foreign nation's territorial seas, NMFS notes that telemetry data from whales tagged in Sakhalin Bay and biological information about the whales' migratory behavior demonstrate that beluga whales from this stock travel hundreds of kilometers offshore, well beyond the territorial seas of Russia (Shpak et al., 2010, 2011, 2012).
Some commenters also asserted that the plain language of the ESA and the MMPA indicate that Congress intended the ESA--and not the MMPA--to be the regulatory system through which foreign marine mammals are protected. NMFS disagrees. The MMPA and the ESA are separate statutes with distinct frameworks for protecting and conserving marine mammals and threatened and endangered species, respectively. NMFS has the authority to list foreign species as threatened or endangered under the ESA, and NMFS also has the authority to designate foreign species or stocks as depleted
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under the MMPA. For example, NMFS' authority under the MMPA is evident from the import prohibition, which makes it ``unlawful to import into the United States any marine mammal if such mammal was . . . taken from a species or population stock which NMFS has, by regulation published in the Federal Register, designated as a depleted species or stock.'' Id. section 1372(b)(3). By its plain terms, the import prohibition recognizes NMFS' authority to designate a species or stock that occurs outside of waters under the jurisdiction of the United States as depleted. Commenters' assertion that the MMPA's import prohibition applies only to marine mammals that are designated as depleted by virtue of an ESA listing is contrary to the plain meaning of this provision. See In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litigation, 720 F.3d 354, 360 (D.C. Cir. 2013) (determining that the protections of 16 U.S.C. 1372(b)(3) apply ``to all depleted species, regardless of how they achieve their depleted status'').
Finally, with respect to precedent, NMFS has previously used its authority under section 115(a) to designate as depleted two stocks of dolphins that occur entirely outside of waters under the jurisdiction of the United States: The northeastern stock of offshore spotted dolphin and the eastern stock of spinner dolphin. See 58 FR 58285 (Nov. 1, 1993); 58 FR 45066 (Aug. 26, 1993). Some commenters argued that NMFS' authority to designate these stocks as depleted was rooted in the ``extreme and unique circumstances surrounding the regulatory structure in place with respect to these stocks'' in the eastern tropical Pacific Ocean (ETP). NMFS acknowledges that Congress amended the MMPA to include provisions specifically relating to the ETP. However, NMFS designated these stocks as depleted pursuant to section 115(a) of the Act, and not pursuant to any provision of the MMPA applicable only to the ETP. The depletion designations of these two stocks of dolphins therefore provide precedent for the current action.
Comment 4: One commenter suggested that designating a foreign species as depleted under the MMPA ``. . . would set a harmful precedent that potentially establishes a dual-track regulation of imperiled species,'' and recommended that NMFS retract the proposed rule and instead consider any future petition brought under the ESA concerning the Sakhalin Bay-Nikolaya Bay-Amur River aggregation.
Response: Section 115(b) of the MMPA outlines the steps that NMFS is required to take when petitioned to 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
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as well as with members of other demographically distinct groups which have migrated to the same breeding ground from a different feeding ground.'' They state that NMFS' use of the terms demographically distinct, demographically independent, or demographically isolated groups is also scientifically incorrect and inappropriate (Cronin 2006, 2007). They argue that while whales from different feeding grounds may be spatially separated for a period of time, they are not distinct, independent, or isolated breeding (i.e., demographic) groups.
Response: We disagree that we have improperly changed the MMPA's definition of stock. The MMPA provides both biological and ecological guidance for defining marine mammal stocks. The biological guidance is in the definition of population stock: A group of marine mammals of the same species or smaller taxa in a common spatial arrangement that interbreed when mature (MMPA section 3(11)). The ecological guidance is addressed in the requirement that a stock be maintained as a functioning element of the ecosystem (MMPA section 2(2)). NMFS has developed guidelines for assessing marine mammal stocks (GAMMS); the most recent revision to the GAMMS was made available for public comment and finalized in February 2016 (NMFS 2016). The GAMMS provide guidance on defining population stocks consistent with the MMPA. NMFS' approach to determining that beluga whales primarily occurring in the Sakhalin 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 (Palsboslashll 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
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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
