[Federal Register Volume 81, Number 65 (Tuesday, April 5, 2016)]
[Proposed Rules]
[Pages 19542-19547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07713]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 151113999-6206-01]
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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS proposes 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 depleted. 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: Comments must be received by June 6, 2016.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-NMFS-2015-0154, by either of the following methods:
    Electronic Submissions: Submit all electronic public comments via 
the Federal eRulemaking Portal http://www.regulations.gov.
    Mail: Send comments or requests for copies of reports to: 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.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    A list of references cited in this proposed rule and the status 
review report are available at www.regulations.gov (search for docket 
NOAA-NMFS-2015-0154) or http://www.fisheries.noaa.gov/pr/species/mammals/whales/beluga-whale.html or upon request.

FOR FURTHER INFORMATION CONTACT: Shannon Bettridge, Office of Protected 
Resources, 301-427-8402, [email protected].

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, NMFS 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.'' NMFS published a notice that the petition was available (79 
FR 28879, May 20, 2014). After evaluating the petition, NMFS determined 
that the petition contained substantial information indicating that the 
petitioned action may be warranted (79 FR 44733, August 1, 2014). 
Following its determination that the petitioned action may be 
warranted, NMFS convened a status review team and conducted a status 
review to evaluate whether the Sakhalin Bay-Amur River group of beluga 
whales is a population stock and, if so, whether that stock is 
depleted. This proposed rule is based upon that status review.
    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 on Marine Mammals . . .determines that 
a species or a population stock is below its optimum sustainable 
population.'' NMFS' authority to designate a stock as depleted is not 
limited to stocks that occur in U.S. jurisdictional waters. Although 
the Sakhalin Bay-Amur River group of beluga whales does not occur in 
U.S. jurisdictional waters, NMFS has authority to designate the stock 
as depleted if it finds that the stock is below its optimum sustainable 
population.

Status Review

    A status review for the population stock of beluga whales addressed 
in this proposed 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.

[[Page 19543]]

Sea of Okhotsk Beluga Whales

    Beluga whales are small, toothed whales distributed throughout the 
Arctic and inhabiting subarctic regions of Russia, Greenland, and North 
America. They are found in the Arctic Ocean and its adjoining seas, 
including the Sea of Okhotsk, the Bering Sea, the Gulf of Alaska, the 
Beaufort Sea, Baffin Bay, Hudson Bay, and the Gulf of St. Lawrence. 
Beluga whales may also be found in large rivers during certain times of 
the year.
    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 this 
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 River-Amur Bay beluga whales.
    The best available estimate of abundance of beluga whales in the 
Sakhalin Bay-Amur River area is 3,961 (Reeves et al. 2011). This 
estimate was based on aerial surveys conducted in 2009 and 2010 and was 
further reviewed by an International Union for Conservation of Nature 
(IUCN) scientific panel of beluga whale experts (Reeves et al. 2011). 
The minimum population estimate for the Sakhalin Bay-Amur River 
population was determined to be 2,891 (Reeves et al. 2011).
    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 al. 2011). The 
greatest amount of available information is from the estimates of 
annual take from the commercial hunt. As noted in the petition and the 
IUCN review, 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.

Identifying a ``Population Stock'' or ``Stock'' Under the MMPA

    To designate the Sakhalin Bay-Amur River group of beluga whales as 
a depleted stock under the MMPA, it must be determined to be a 
``population stock'' or ``stock.'' 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).
    The guidelines state, specifically: ``Many types of information can 
be used to identify stocks of a species: e.g., distribution and 
movements, population trends, morphological differences, differences in 
life history, genetic differences, contaminants and natural isotope 
loads, parasite differences, and oceanographic habitat differences. 
Different population responses (e.g., different trends in abundance) 
between geographic regions is also an indicator of stock structure, as 
populations with different trends are not strongly linked 
demographically. When different types of evidence are available to 
identify stock structure, the report must discuss inferences made from 
the different types of evidence and how these inferences were 
integrated to identify the stock.
    ``Evidence of morphological or genetic differences in animals from 
different geographic regions indicates that these populations are 
reproductively isolated. Reproductive isolation is proof of demographic 
isolation, and, thus, separate management is appropriate when such 
differences are found. Demographic isolation means 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 2005)

The Sakhalin Bay-Amur River Group of Beluga Whales as a Stock

    At the broadest geographic scale in the Sea of Okhotsk, there is 
strong evidence for genetic differentiation, in both mitochondrial DNA 
(mtDNA) and nuclear DNA, between beluga whales that summer in the 
northeastern Sea of Okhotsk off the west Kamchatka coast (east of 
145[deg] E. longitude) and those that summer in the western Sea of 
Okhotsk from Sakhalin Bay to Udskaya Bay, west of 145[deg] E. longitude 
(Meschersky et al. 2013). Since the petition involves individuals in 
the western aggregations, this proposed rule does not further consider 
the northeastern aggregations because they are clearly distinct from 
the beluga whales in the western Sea of Okhotsk.
    Available evidence regarding the stock structure of the Sakhalin 
Bay-Amur River beluga whales relative to other western Sea of Okhotsk 
beluga whales is limited. A variety of genetic studies have been 
performed on beluga whales from the western Sea of Okhotsk (see below), 
and limited telemetry data are available. 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). Below 
we summarize the information considered, including information 
presented in the status review report.

Genetic Data

    A variety of genetic studies have been performed on beluga whales 
from the western Sea of Okhotsk (Meschersky et al. 2008, 2013; 
Meschersky and Yazykova 2012). In these studies, 107 individuals were 
sampled from the Sakhalin Bay-Amur River area over seven sampling years 
with relatively even sampling per year and an overall relatively even 
split between males and females. However, Meschersky et al. (2013) 
suggested that there was a duplicate sample so we considered the 
correct number to be 106. This sampling is fairly robust and likely 
sufficiently representative of the haplotypic frequency distribution of 
the full population. Sampling from the four other bays in the western 
Sea of Okhotsk (Nikolaya, Ulbansky, Tugursky, and Udskaya) has been 
less thorough, most of it having been conducted in a single year, and 
the samples from all four bays are skewed towards males

[[Page 19544]]

(Meschersky et al. 2013). The sample size from Nikolaya Bay is 
particularly small, making it difficult to draw conclusions about the 
relationship of whales in this bay to the other bays based on genetic 
data.
    The genetic comparisons between samples from the beluga whales of 
the Sakhalin Bay-Amur River and the beluga whales of the other bays 
consistently found significant differentiation in mtDNA haplotype 
frequencies among bays, but not between Sakhalin Bay and the adjacent 
Nikolaya Bay, though the small sample size in Nikolaya Bay may have 
played a role (Meschersky et al. 2013). In some cases, haplotypes were 
found that were unique to a bay, indicating that most recruitment is 
internal. However, the presence of some common haplotypes across bays 
suggests that there may be some external recruitment or, alternatively, 
founding events have been recent enough that there has not been 
sufficient time for lineage sorting amongst the bays, resulting in some 
common haplotypes over large geographic ranges.
    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 (Merschersky 2012, Merschersky et al. 2013). This negative 
finding for differentiation in nuclear DNA does not rule out that 
beluga whales in these different summer feeding areas could constitute 
stocks under the MMPA. The mtDNA differences alone are considered to be 
sufficient evidence for demographic independence.

Telemetry Data

    Telemetry data, although sparse, support the conclusions drawn from 
the genetic data. From 2007-2010, 22 beluga whales were tagged at 
Sakhalin Bay. Tags transmitted data for 2.5-9.5 months, with an average 
of six months. Most whales stayed close to the tagging site in summer 
(Shpak et al. 2010), though several tagged whales were sighted in 
Nikolaya Bay in summer (Shpak et al. 2011). Ten whales tagged in 2010 
moved in the fall to Nikolaya Bay and the eastern Shantar region, and 
four went as far as Ulbansky Bay, spending up to three months in these 
areas. In winter, tagged whales moved north and west into offshore 
waters (Shpak et al. 2012). Though 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.

Geographical and Ecological Separation

    Beluga whales in other, better studied areas form strong social 
groups that follow learned, predictable annual movements between 
breeding and feeding areas. Summer aggregations often focus on 
seasonally available fish runs. Site fidelity to summer feeding areas 
is not uncommon in cetaceans and can often result in genetic 
differentiation in mtDNA. In some cases, site fidelity is strong enough 
and occurs over a long enough time period that mtDNA lineage sorting 
can occur, resulting in mtDNA haplotypes unique to a given feeding 
area. Sakhalin Bay-Amur River beluga whales exhibit behaviors and 
frequency differences in mtDNA haplotypes consistent with the general 
beluga whale life history strategy seen in Alaska, and therefore are 
considered to be similar to aggregations defined as stocks within 
Alaska. The two Alaska beluga stocks with movements and seasonal cycles 
most similar to the Sakhalin Bay-Amur River beluga whales are the 
Eastern Bering Sea stock and the Bristol Bay stock. Together, genetic 
and movement data indicate that beluga whales in the western Sea of 
Okhotsk exhibit life history characteristics and levels of 
differentiation very similar to beluga whales in Alaska that have been 
designated as stocks.

Stock Determination

    Given the limitations on available data, the status review team 
used structured expert decision making (SEDM) procedures to evaluate 
the available data for beluga whales in the western Sea of Okhotsk as 
they relate to delineating stocks. This approach is often employed as a 
means to elicit expert opinion while also characterizing uncertainty 
within the expert opinion, whereby an expert is asked to distribute 
plausibility points among the choices/scenarios for a given statement 
reflecting his or her opinion of how likely that choice or option 
correctly reflects the population status. The status review team 
members were largely in agreement that Sakhalin Bay-Amur River beluga 
whales were either their own stock (44.4% of the team's SEDM 
plausibility points) or belonged to a stock that also included whales 
that summer in Nikolaya Bay (42.5% of the team's SEDM plausibility 
points). These results were largely based on mtDNA evidence. The team 
concluded that, together, genetic and movement data indicate that 
beluga whales in the western Sea of Okhotsk exhibit life history 
characteristics and levels of differentiation very similar to beluga 
whales in Alaska that have been designated as stocks. Given the 
available data and the assumptions outlined in the status review 
report, NMFS finds no reason to disagree with the conclusions of the 
status review team regarding stock structure.
    As required by the MMPA, NMFS consulted with the Marine Mammal 
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 NMFS 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.
    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 Nikolaya Bay was almost evenly divided, based on the lines of 
evidence reviewed (see above). 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. Therefore, based 
on the best scientific information available as presented in the status 
review report and this proposed rule, NMFS is identifying the Sakhalin 
Bay-Nikolaya Bay-Amur River group of beluga whales as a population 
stock.

The Depleted Determination

    As described above, NMFS finds that the Sakhalin Bay-Nikolaya Bay-
Amur River group of beluga whales is a population stock. Therefore, the 
second question to be analyzed is whether the stock is depleted.

Status of the Stock

    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

[[Page 19545]]

Commission and the Committee of Scientific Advisors 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 [(OSP)] . . . 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. This analysis is summarized below.

Application of Back Calculation to Sakhalin Bay-Nikolaya Bay-Amur River 
Beluga Whales

    As stated above, the back-calculation method looks at the current 
population level and then calculates historical carrying capacity based 
on how much the population has been reduced by human actions. The best 
available estimate of abundance beluga whales in the Sakhalin Bay-Amur 
River area is 3,961 (Reeves et al. 2011; see details in the Population 
Size section below). The best available removal data for the Sakhalin 
Bay-Amur River stock of beluga whales are a time series of removals by 
hunt and live capture since 1915 (Shpak et al. 2011; see details in the 
Catch History section below). It was not feasible to develop an 
estimate of any additional anthropogenic mortality on this stock. These 
data, plus an estimate of the stock's productivity, allow back-
calculation of the historical stock size (i.e., K) that probably 
existed prior to the beginning of the catch history.
    A population model was used to perform the necessary calculations. 
In short, for each year, the model calculates the expected number of 
animals added to the stock (by natural population growth) and it 
subtracts the number removed, and then the model grows or shrinks the 
population for the next year according to the difference between the 
growth and the removals. A computer spreadsheet search routine finds 
the value of K that is large enough to have accommodated the removals 
and low enough to have resulted in a population in 2009-2010 that 
matches the observed abundance in those years.
    The population equation used was Nt + 1 = 
Nt(1 + r(1 - (Nt/K)\z\) - Ht where:

    Nt is the population size in year t,
    r is the annual rate of increase (productivity) when the 
population is small,
    K is the carrying capacity,
    z controls the rate at which productivity declines as 
Nt approaches K, and
    Ht is the removals in year t.

    The values of r and z have not been measured for Sakhalin Bay-Amur 
River beluga whales so values (r = 0.04 and z = 2.39) were used in the 
``base case.'' The value for r = 0.04 is a default value for cetaceans 
used in PBR calculations (NMFS 2005), and z = 2.39 is in the middle of 
the range considered reasonable for cetaceans. Alternate plausible 
values for r and z were also evaluated to test the model's sensitivity 
to changes in these parameters.
    Once the back-calculation estimated the value of K that results in 
the estimated population size in 2009-2010, the population model was 
projected forward to 2015 to estimate the current population size. The 
current depletion level was then calculated by dividing the 2015 stock 
size (estimated by the model) by the estimated carrying capacity (K).

Catch History

    Commercial hunts of the Sakhalin Bay-Amur River beluga whale 
population began in 1915 (Shpak et al. 2011) and subsistence hunts have 
occurred prior to, during, and since this date (see Appendix 1 of the 
Status Review Report). There are a number of years with known but 
poorly documented hunts, and years for which more than one estimate is 
provided. A complete catch history is required to estimate carrying 
capacity by the back-calculation method, so two options were 
considered: A ``high take'' and a ``low take'' scenario. The high take 
scenario gave a conservative estimate of depletion, because higher take 
results in a higher estimated historic K and a more depleted current 
population relative to K (i.e., lower percentage of K). The low take 
scenario uses what is thought to be the lowest take possible and 
provides a minimum estimate for K, resulting in a less depleted current 
population relative to K (i.e., higher percentage of K). The low take 
scenario thus provides an upper bound for the population's status 
relative to K. Both options used catch data from Shpak et al. (2011).
    The low-take scenario used the take estimates when they were 
available, and when more than one estimate of take was available, used 
the lowest value. Years with no indication that takes occurred were 
left blank and treated as zero. The low-take option was included to 
evaluate whether this unlikely scenario would still result in a 
depleted population.
    The high take scenario used the take estimates where they were 
available, and when more than one estimate of take was available, used 
the highest value. For years when hunts are thought to have occurred 
but no record is available, missing values were estimated or 
interpolated from adjacent years with similar hunts. For years when 
removals for live display are known to have occurred but no record is 
available,

[[Page 19546]]

missing values were also estimated or interpolated from adjacent years 
with known data. The high take scenario is considered the better of the 
two because it accounts for times when takes are known to have occurred 
but are not documented. Additionally, the analysis did not account for 
beluga whales that are struck and lost because these were unavailable, 
so the high take option may even be an underestimate.

Population Size

    The most recent estimate of abundance, 3,961, is based on aerial 
surveys in 2009 and 2010 (Reeves et al. 2011). The estimate is from 
only the Sakhalin Bay-Amur River area because there is no current 
abundance estimate of the Nikolaya Bay region. However, few animals are 
thought to be in Nikolaya Bay in the survey period compared to the 
Sakhalin Bay-Amur River, so the estimate accounts for nearly all of the 
population (Shpak et al. 2011). The estimate includes a correction 
factor, which accounts for beluga whales that were submerged during 
overflight and not available to be counted.

Estimated Carrying Capacity and Depletion Level

    The back-calculation investigated the sensitivities of the effects 
of a range of parameter values and the high and low catch scenarios. 
The status review team considered the value of K resulting when r = 
0.04 (the default value for MMPA PBR calculations for cetaceans) and z 
= 2.39 and the high take scenario (which assumes some medium level of 
catch for years with missing data when take is thought to have or known 
to have occurred) to be representative of the most likely scenario. The 
estimate of K for this scenario is 17,700, the projected current (2015) 
abundance estimate is 4,520, and the estimated depletion level is 25.5% 
of K. The status review team also estimated the value of K resulting 
when r = 0.04 and z = 2.39 under the low take scenario, which assumes 
no mortality for all years with missing data and the lowest level of 
subsistence take. The estimate of K for this scenario is 13,200, the 
projected current (2015) abundance estimate is 4,626, and the estimated 
depletion level is 35.0% of K. Both scenarios indicate the population 
is currently below MNPL and below the lower limit of the OSP range 
(which is reached at a depletion level of 60% K).
    As noted above, in its OSP analysis, the 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 the 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 ran the model using the high 
take scenario where r = 0.04 and z = 2.39. The result was an increase 
of fewer than 100 animals in the estimate of K (K = 17,726), and an 
estimated depletion level of 28.9% of K (projected abundance estimate 
for 2015 = 5,125). Thus, 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).
    Based on the best scientific information available data, and 
considering the assumptions outlined in the status review report, NMFS 
finds no reason to disagree with the conclusions of the status review 
team regarding the status of the stock. Therefore, based upon the best 
scientific information available, NMFS finds that the Sakhalin Bay-
Nikolaya Bay-Amur River stock of beluga whales is below its optimum 
sustainable population level, and proposes to designate the stock as a 
depleted stock under the MMPA. The proposed depletion designation 
applies to all biological members of the stock, regardless of whether 
those individuals are in the wild or in captivity.

Consultation With the Marine Mammal Commission

    As required by the MMPA, NMFS consulted with the Marine Mammal 
Commission on our efforts 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 
NMFS 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.

Public Comments Solicited

    NMFS is soliciting comments from the public on this proposed rule 
for the designation of the Sakhalin Bay-Nikolaya Bay-Amur River stock 
of beluga whales as depleted under the MMPA.

Classification

    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    Similar to Endangered Species Act 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 Endangered Species Act 
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 have not been 
prepared for the proposed depleted designation of this stock under the 
MMPA.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant impact on a substantial number of small entities. If 
implemented, this proposed rule would designate a group of beluga 
whales in Russian waters (known as the Sakhalin Bay-Nikolaya Bay-Amur 
River group) as depleted; however, if implemented, 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,

[[Page 19547]]

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 optimum sustainable population, 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 rule, if implemented, would 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, if implemented, would have the 
indirect effect of prohibiting the future importation of any marine 
mammal from this stock into the United State for 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, if implemented, would not prevent an entity from 
requesting to import a beluga whale from a non-depleted stock for 
purposes of public display, NMFS finds that this rule, if implemented, 
would not result in a significant economic impact on a substantial 
number of small entities.
    Accordingly, this proposed rule, if implemented, would not result 
in a significant economic impact on a substantial number of small 
entities. As a result, no regulatory flexibility analysis for this 
proposed rule has been prepared. NMFS invites comment from members of 
the public who believe this rule, if implemented, will result in a 
significant economic impact on a substantial number of small entities, 
or who have additional information relevant to NMFS' analysis.
    This proposed rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980.
    This proposed 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: March 30, 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 
proposed to be 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, paragraph (j) is added 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. 2016-07713 Filed 4-4-16; 8:45 am]
BILLING CODE 3510-22-P