[Federal Register Volume 64, Number 201 (Tuesday, October 19, 1999)]
[Proposed Rules]
[Pages 56298-56304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-27169]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990922260-9260-01; I.D. 083199E]
RIN 0648-AM84


Designation of the Cook Inlet, Alaska, Stock of Beluga Whale as 
Depleted Under the Marine Mammal Protection Act (MMPA) and Response to 
Petitions

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 Cook Inlet beluga whale stock 
as depleted under the MMPA. No Endangered Species Act (ESA) 
determination on listing this stock as a threatened or endangered 
species is made at this time. NMFS will issue an ESA determination 
within 12 months of NMFS's receipt of the petition (April 9, 1999), 
following the 1999 NMFS aerial survey and other factors which may 
affect such a determination. This action, pursuant to the MMPA, is 
necessary to address the sharp decline in the number of Cook Inlet 
beluga whales. It is intended as a conservation measure to reverse the 
decline and eventually to rebuild the numbers within the Cook Inlet 
beluga whale stock.

DATES: Comments and information must be received by December 20, 1999.

ADDRESSES: Comments should be addressed to the Chief, Marine Mammal 
Division, Office of Protected Resources, NMFS, 1335 East-West Highway, 
Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Michael Payne, NOAA/NMFS, Alaska 
Region, (907) 586-7235, or Brad Smith, NOAA/NMFS, Alaska Region, 
Anchorage Field Office, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

    The beluga whale, Delphinapterus leucas, is a small toothed whale 
inhabiting arctic and subarctic waters. Alaska contains five separate 
stocks of beluga whale, the smallest of which occurs in Cook Inlet 
within south-central Alaska. The Cook Inlet stock is genetically and 
geographically isolated from the other Alaskan populations of beluga 
whales.
    NMFS has conducted annual surveys of the Cook Inlet beluga whale 
between 1994 and 1998. Results show a sharp decline in estimated 
abundance, with the 1998 estimate (347 animals) nearly 50 percent lower 
than the 1994 estimate (653 animals). Historical estimates of abundance 
are not available; however, Native hunters have stated their belief 
that the stock numbered at least 1,000 animals as recently as the 
1980s.
    The Cook Inlet beluga whale stock is hunted by Alaska Natives. The 
subsistence harvest levels of Cook Inlet beluga whales have been 
largely unreported; however the hunter groups and some individual 
hunters have provided NMFS with documented information on the harvest 
for 1994-1997. From these data, NMFS estimates the total Cook Inlet 
subsistence harvest at a mean annual level of 87 whales (including 
those landed and struck and lost).
    At the current decline of 15 percent per year, the Cook Inlet 
beluga whale stock would be reduced to 50 percent of its current level 
within 5 years. This level of removal is significant.
    As a result of the recent decline in this stock, NMFS initiated a 
status review of the Cook Inlet beluga whale stock with a request for 
public comment (63 FR 64228, November 19, 1998). Additionally, NMFS 
received a petition from the State of Alaska on January 21, 1999, to 
designate the Cook Inlet beluga stock as depleted under the MMPA. On 
March 3, 1999, NMFS received another petition from seven organizations 
and one individual to list the Cook Inlet stock of beluga whale as 
``endangered'' under the ESA. This petition requested emergency listing 
under section 4(b)(7) of the ESA, designation of critical habitat, and 
immediate action to implement regulations to regulate the subsistence 
harvest of these whales. On March 10, 1999, NMFS received a petition to 
designate the Cook Inlet stock of beluga whales as depleted under the 
MMPA and to list it as ``endangered'' under the ESA. NMFS has 
determined that these petitions present substantial information to 
indicate that the petitioned action may

[[Page 56299]]

be warranted (64 FR 17347, April 9, 1999).
    The review process encompassed an examination of the present status 
and health of the species and promulgation of recommendations for 
possible designation under the MMPA and/or ESA. To ensure that the 
status review was comprehensive and based on the best available 
scientific data, NMFS presented a scientific review of this stock on 
March 8-9, 1999, in Anchorage, Alaska, and received public comments and 
recommendations. Comments received by NMFS during the status review 
comment period are responded to in the following section.

Comments and Responses

     Comment 1: NMFS received 18 recommendations to act immediately, 
either through an ESA listing or an MMPA designation, to protect Cook 
Inlet beluga whales. One less specific comment recommended whatever 
action necessary to halt the decline. Several commenters claimed that 
an ESA listing would take longer than a depleted designation. One noted 
the timeline for issuance of a final rule on ``depleted'' status in 
response to a petition may be considerably shortened if the Secretary 
determines that there is substantial information available to warrant 
the final status determination and that further delay would pose a 
significant risk to the stock's well-being; a number of other 
commenters claimed that an ESA listing would be more expeditious than 
an MMPA designation.
     Response: NMFS agrees that timely action is necessary to conserve 
Cook Inlet beluga whales. Because Native harvest is believed to be 
responsible, in large part, for the observed level of decline in this 
stock's numbers since 1994, the immediate need to protect this stock 
and the comments received in support of an immediate ESA listing are 
directly related to the need to control this harvest. The MMPA and ESA 
both provide mechanisms to limit a harvest through regulation; however, 
the promulgation of regulations to govern the Native harvest requires 
that the species are listed as threatened or endangered under the ESA 
or as a depleted stock under MMPA. The procedures required for 
regulations to limit subsistence harvest also provide for 
administrative hearings. NMFS does not believe that even an immediate 
action to list this stock would have allowed sufficient time to 
promulgate Federal harvest restrictions during the 1999 season.
    NMFS considers Native subsistence harvests over the last several 
years a significant factor in the observed decline of beluga whales in 
Cook Inlet. Given the recent passage of legislation that prohibits the 
subsistence harvest of beluga whales in Cook Inlet until October 1, 
2000, unless that harvest occurs as part of a cooperative agreement 
between NMFS and an authorized Alaskan Native Organization (ANO), the 
designation of this stock as depleted under the MMPA provides the most 
expeditious and appropriate Federal response. It protects the Cook 
Inlet beluga from overharvest during the period, prior to expiration of 
the amendment, and eliminates the most causal threat to the recovery of 
this stock of whales, thereby allowing for recovery of their numbers. 
However, NMFS recognizes that the legislation provides for a temporary 
limit to the harvest. NMFS will work with the ANOs to develop 
regulations and cooperative agreements as necessary to ensure that 
overharvest will not occur in future years.
    Because NMFS believes that the maximum protection that can be 
afforded this stock at this time will be provided through the 
legislation and a depleted designation and that the immediate threat to 
this stock is removed, no determination on listing this stock as a 
threatened or endangered species under the ESA is made at this time. 
NMFS will issue a determination on ESA listing within 12 months of 
receipt of the petitions. The final determination will include 
consideration of the level of removals from the stock during 1999, the 
results of the 1999 NMFS abundance surveys, the level of total takes 
during 1999, and any other factors which may affect this stock. For 
these reasons, NMFS is proposing that the stock be designated as 
depleted under the MMPA.
    Comment 2: One commenter expressed support for a co-management 
agreement as an interim way to address overhunting and as a way to 
permanently complement stringent ESA and/or MMPA protective measures. 
At least six other commenters were supportive of this in addition to an 
MMPA or ESA designation.
    Two additional commenters recommended accomplishing the following 
tasks through a co-management process involving the Cook Inlet Marine 
Mammal Council (CIMMC), the Alaska Beluga Whale Committee (ABWC), NMFS, 
and Cook Inlet beluga hunters:
    (1) Restriction of the harvest to one beluga per Cook Inlet hunter 
per year;
    (2) Restriction of hunting by non-local hunters;
    (3) Funding to CIMMC to allow the group to effectively communicate 
with hunters, produce educational materials, meet regularly, and be 
meaningfully involved in harvest monitoring and research; and
    (4) Development of a legal mechanism to enforce the conservation 
provisions recommended through this co-management process.
    A ninth commenter urged NMFS to work with U.S. Fish and Wildlife 
Service and appropriate Native groups to develop a system of co-
management.
    Another commenter endorsed the idea of a co-management agreement, 
but only following an ESA listing and the development of a recovery 
plan which would stabilize the whales' population.
    Two more commenters encouraged NMFS to work with ABWC and CIMMC to 
finalize a co-management agreement that would place a moratorium on 
hunting until ESA or MMPA regulations promoting Cook Inlet beluga 
recovery are in place. A final commenter recommended that NMFS work 
closely with CIMMC on co-management while allowing for at least a very 
small subsistence take by members of Cook Inlet area tribes under some 
type of permit system.
    Response: NMFS agrees that the cooperative management of this stock 
will provide an effective means of conserving and recovering the Cook 
Inlet beluga while providing for traditional subsistence uses. The 
Alaska Region (AKR) has worked intensively with the CIMMC and ABWC to 
foster co-management of the Cook Inlet beluga. NMFS believes that, in 
the future, co-management will provide for regulation of this stock at 
sustainable levels. However, no such agreement has been signed at this 
time, largely because many Cook Inlet hunters are unaffiliated with 
CIMMC or the Cook Inlet Treaty Tribes, and the ordinances of these 
tribes do not apply to those hunters. Any such agreement will include 
harvest levels, practices, enforcement mechanisms, funding, and other 
parameters necessary to cooperatively manage the Cook Inlet beluga. 
Before a cooperative agreement will be signed by the NMFS, Department 
of Commerce, the action will be analyzed under applicable provisions of 
the National Environmental Policy Act.
    Comment 3: One commenter recommended that NMFS begin to explore, 
with the Alaska congressional delegation, the ABWC, the CIMMC, and 
others, amending the MMPA to limit the allowable subsistence harvest 
take in Cook Inlet.
    Response: Several of these organizations and various petitioners 
approached the Alaska delegation on this issue. As a result, 
legislation was

[[Page 56300]]

recently passed, which states that the taking of a Cook Inlet beluga 
whale under the exemption provided in section 101(b) of the MMPA 
between the date of the enactment and October 1, 2000, shall be 
considered a violation of such Act unless such taking occurs pursuant 
to a cooperative agreement between the NMFS and affected Alaskan Native 
Organizations.
    Comment 4: Six commenters recommended that NMFS take immediate 
action to ban commercial sale of beluga meat. Five of these six 
commenters recommended that the first step toward this action is a 
definition of wasteful take of beluga whales. These commenters felt 
that this action is needed before any subsistence harvest resumes.
    Another commenter recommended, more specifically, prohibition of 
the sale and commercial use of muktuk from Cook Inlet belugas. This 
commenter suggested that NMFS work with ABWC and CIMMC to develop a 
definition of commercial use that clearly allows true subsistence use 
and does not allow hunting for money.
    An eighth commenter suggested a ban on sale of beluga meat by 
regulation under the ESA [16 U.S.C. 1539(e)(4)].
    A final commenter recommended that NMFS restrict the sale of beluga 
parts only to those Cook Inlet villages with a tradition of taking 
belugas from the Inlet.
    Response: NMFS believes that it would be difficult to try to 
delineate between non-wasteful and wasteful take by quantifying 
customary and traditional Cook Inlet beluga harvest practices. No 
present mechanism exists to describe how these practices should be 
evaluated. The Cook Inlet beluga hunters come from many Alaskan 
villages, each of which may have its own traditional means of harvest. 
While some tribes have traditionally utilized beluga whale muktuk, 
skin, and meat, others retain only the muktuk. Both practices may be 
considered traditional. NMFS believes that the quantification of 
customary and traditional practices to discern wasteful and non-
wasteful practices is an issue to be addressed in close consultation 
with the Alaska Native community, and hopefully through a cooperative 
management process.
    With regard to a ban on the commercial sale of beluga whale meat, 
NMFS agrees that commercial sale of this stock is not desirable. Recent 
legislation (Stevens' Amendment to the MMPA), limits the Alaska Native 
subsistence harvest through the year 2000; therefore, no sale of Cook 
Inlet belugas is taking place at this time.
    Comment 5: Five commenters recommended an immediate, temporary 
moratorium on the harvest until NMFS determines what harvest the 
population can sustain and until an enforceable regulatory scheme is in 
place.
    Three commenters recommended a moratorium for the upcoming season 
to provide the population an opportunity to stabilize. Two commenters 
(previously mentioned in the co-management section) recommended a 
moratorium through co-management until promulgation of ESA/MMPA 
regulations.
    One commenter recommended that a moratorium be declared pending (1) 
completion of the status review, (2) further clarification of the 
beluga whale status, and (3) adoption of whatever effective 
conservation measures are necessary to reverse the present decline. A 
final commenter recommended a moratorium on hunting of beluga whales 
with no mention of harvest resumption.
    Response: Recent legislation has restricted beluga whale hunting in 
1999 and 2000 to only that done under a cooperative management 
agreement between NMFS and an ANO. NMFS intends to authorize the 
resumption of Native harvest only at very reduced levels that assure 
that the stock can recover.
    Comment 6: Three commenters recommended that NMFS immediately issue 
regulations requiring tagging/reporting of beluga whales that are 
harvested in any future subsistence hunt. Two additional commenters 
said that, at a minimum, a tagging/reporting provision should be part 
of a management/recovery plan.
     Response: NMFS agrees. On May 24, 1999, NMFS promulgated 
regulations under section 109(i) of the MMPA to require the marking and 
reporting of beluga whales harvested from Cook Inlet (64 FR 27925). 
Under these regulations, Native hunters are required to collect the 
lower left jawbone from beluga whales harvested in Cook Inlet and to 
report certain information to NMFS. The jawbone and supporting 
information will enable NMFS to better determine the number of beluga 
whales taken in the subsistence harvest, their age and sex category, 
and the potential effects of the harvest on the Cook Inlet beluga whale 
stock. 
    Comment 7: Several commenters recommended that NMFS continue 
working with the state to delete critical Cook Inlet beluga whale 
habitat from future oil and gas leasing.
    Response: NMFS has responded to the State of Alaska, Division of 
Oil and Gas's proposed Cook Inlet area-wide sale by recommending the 
deletion of certain tracts within areas of upper Cook Inlet with known 
concentrations of beluga whales. These areas may be important habitat 
for feeding/nutrition, calving, molting, and mating, as well as being 
sites for traditional subsistence harvest. The leasing of the tracts in 
question was recently halted by court action. In addition, NMFS will 
continue to work with the State of Alaska to evaluate the effects of 
oil and gas activities on beluga whales.
    Comment 8: NMFS should implement an incidental take regulatory 
process to require oil industry operations to obtain permits before 
conducting seismic activities, siting drill platforms or drilling wells 
in Cook Inlet.
    Response: Section 101(a)(5)(A) of the MMPA directs the Secretary of 
Commerce to allow, upon request by U.S. citizens, engaged in a specific 
activity (other than commercial fishing) in a specified geographical 
region, the incidental, but not intentional, taking of small numbers of 
marine mammals, if certain findings are made. NMFS has implemented a 
program for such authorizations, which require that the level of 
incidental take have only negligible impacts to the population and have 
no unmitigable adverse effect on the availability of marine mammals for 
traditional Native subsistence. These authorizations include provisions 
for monitoring and, where subsistence may be impacted, measures to 
mitigate any effect on this use and to coordinate with the affected 
Native community.
    Comment 9: NMFS should ensure that tissue samples are collected 
from 100 percent of the landed whales harvested in the future.
    Response: NMFS agrees and, as previously described, NMFS has 
promulgated regulations under the MMPA section 109(i) requiring the 
marking, tagging, and reporting of belugas harvested from Cook Inlet. 
These regulations require that the lower left jawbone from all 
harvested whales be collected by hunters and submitted to NMFS. This 
will provide important management information, including the age and 
sex of the whale and its genetic profile.
    Comment 10: Additional studies on beluga tissue samples should be 
conducted to determine the effect of polyaromatic hydrocarbons on the 
genetics of beluga whales.
     Response: At this time, NMFS does not plan to conduct research on 
the effects of polyaromatic hydrocarbons on beluga whale genetics. 
However, on-going research on these whales includes tissue sampling and 
archival under the Alaska Marine Mammal Tissue Archival

[[Page 56301]]

Project (AMMTAP). This project includes a long term tissue bank 
maintained at the National Institute of Science and Technology. These 
tissues allow future research on this subject. Additionally, NMFS is 
currently evaluating tissue collection protocols and analytical 
procedures under the AMMTAP to see if methodologies may allow for some 
determination of hydrocarbon exposure among this stock.
    Comment11: Although supportive of the efforts by NMFS to provide 
observers to monitor Cook Inlet gillnet fisheries, the remaining Cook 
Inlet fisheries that are not currently classified in the MMPA List of 
Fisheries (LOF) should be reviewed to determine if they should be 
reclassified as Category I or II fisheries.
     Response: The level of marine mammal injury or mortality caused 
incidental to commercial fishing is reviewed annually by NMFS relative 
to the abundance of each marine mammal stock. Thus, all commercial 
fisheries are reviewed on an annual basis for justification of their 
categorization. According to the most recent LOF (64 FR 9067), all Cook 
Inlet fisheries other than the salmon set and drift gillnet fisheries 
(which are Category II) warrant placement into Category III (a remote 
likelihood of causing serious injury or mortality to marine mammals).
     Comment 12: NMFS should require consultation before state or 
Federal agencies take action that would affect the fisheries upon which 
the beluga whale relies.
    Response: NMFS reviews and comments on all fishery management plans 
under the Magnuson-Stevens Fishery Management and Conservation Act 
(Magnuson-Stevens Act). These plans include habitat provisions. NMFS 
staff will make any appropriate recommendations necessary to protect 
Cook Inlet beluga whales. Additionally, the Essential Fish Habitat 
(EFH) mandates of the Magnuson-Stevens Act require any Federal action 
agency conducting an activity which may adversely affect EFH to consult 
with NMFS regarding the potential effects of their actions on EFH.
    If beluga whales were listed under the ESA, section 7 of that act 
will require Federal action agencies to consult with NMFS whenever any 
activity which they conduct, permit, or fund may affect the species. As 
a depleted stock, NMFS may develop or implement conservation or 
management measures to alleviate any impacts on areas of ecological 
significance to the Cook Inlet beluga whale. Under Section 112 (e) of 
the MMPA, such measures shall be developed and implemented after 
consultation with the Marine Mammal Commission and the appropriate 
Federal agencies and after notice and opportunity for public comment. 
Therefore, under either act there are consultation provisions provided 
for stocks that are either depleted (MMPA), or endangered or threatened 
(ESA).
    Comment 13: NMFS should work with State fish regulators to ensure 
Cook Inlet beluga food requirements are being met.
     Response: The State of Alaska, Department of Fish and Game (ADFG) 
has offered their assistance in responding to the decline of the Cook 
Inlet beluga whale. Issues or concerns regarding the State's fisheries 
management and the health and recovery of the Cook Inlet beluga whales 
would be discussed between NMFS and ADFG fish management.
    Comment 14: NMFS should analyze the role of available food sources 
in the precipitous decline of belugas in Cook Inlet.
    Response: NMFS is currently conducting a study to obtain life 
history information on this stock. Data are being systematically 
collected on stock size, genetics, migratory patterns and distribution 
of beluga whales within Cook Inlet as well as data on the age, and 
stock structure, mortalities (including harvest) data, and growth. 
These are fundamental to designing a management program which will 
recover the stock and provide continued opportunity for Native harvest. 
Initial review of fisheries data for Cook Inlet, from State salmon 
management, does not show strong correlation between run strength and 
beluga whale numbers. Other non-commercial species of fish, such as 
eulachon, may be important to the diet of beluga whales, however there 
is limited information on the occurrence of these fish in Cook Inlet in 
recent years. NMFS will continue to assess the nutritive requirements 
of this stock in our research and management planning.
    Comment 15: NMFS should coordinate with State and Federal agencies 
to determine the effects of logging activities on food sources .
     Response: Comment noted. NMFS is unaware of any logging activities 
which have been shown to directly impact belugas or their prey species. 
Also, only private land is currently logged in Cook Inlet, and NMFS 
does not believe additional measures are required to assess and respond 
to these activities.
     Comment 16: The cumulative impact of pollution sources need to be 
considered in management decisions.
    Response: NMFS will continue to sample beluga tissue for the Alaska 
Marine Mammal Tissue Archival Project. Tissue samples will also 
routinely be sent to the NMFS's Northwest and Alaska Fisheries Science 
Center for contaminant analysis. Additionally, NMFS regularly 
coordinates with the U.S. Environmental Protection Agency, the Alaska 
Department of Environmental Conservation, and citizen's advocacy groups 
concerning pollutants in Cook Inlet. Through these efforts, we believe 
NMFS managers will be alert to issues concerning pollutants and their 
cumulative effects.
     Comment 17: NMFS should provide for more enforcement of 
regulations prohibiting harassment of beluga whales.
    Response: While more enforcement would allow broader coverage of 
Cook Inlet, we believe the current level of NMFS enforcement, along 
with supporting enforcement through the U.S. Fish and Wildlife Service 
and the Alaska State Troopers, is adequate to respond to the issue of 
harassment. The harassment of beluga whales is largely confined to 
waters near Anchorage, where such events are reported. Additionally, 
NMFS has developed criteria for commercial whale watching tours 
designed to minimize harassment. NMFS will remain proactive in alerting 
this industry to harassment issues and the prohibitions under Federal 
law. At this time, there are no commercial whale watching operations in 
upper Cook Inlet.
    Comment 18: Education efforts for recreational boaters, tourism 
operators and shipping companies should be increased.
     Response: Comment noted, see above response.
    Comment 19: NMFS should compile data on vessel traffic to determine 
if additional regulations are necessary to protect beluga whales from 
impacts of vessel noise and abundance.
     Response: Comment noted. Beluga whales are commonly found in areas 
with high commercial shipping activity and have shown tolerance for 
frequent passages by large vessels. High speed recreational watercraft, 
such as jet skis and ski boats, may disturb belugas and result in some 
displacement from feeding areas. NMFS will monitor such use and would 
consider actions if it was shown to have a significant adverse effect 
on these whales.
    Comment 20: Construction projects should be reviewed by NMFS to 
ensure that potential threats are minimized.
    Response: Comment noted. NMFS's Habitat Conservation Division 
routinely reviews construction throughout south central Alaska and 
makes recommendations necessary to

[[Page 56302]]

minimize or avoid impact to our Federal trust resources, including 
beluga whales.
    Comment 21: NMFS must commit resources to monitoring the 
populations and enforcing regulations.
     Response: NMFS agrees. The 1999 budget includes funds for the 
monitoring of upper Cook Inlet waters during the harvest season. We are 
continuing to develop plans for the cooperative management of the 
subsistence use of this stock with Alaska Natives; any cooperative 
agreements must provide enforcement mechanisms, and must recognize the 
authority of the NMFS in such enforcement.
    Two additional commenters recommended that NMFS continue conducting 
Cook Inlet beluga population and distribution surveys and further 
monitor risks to their health from other sources (such as pollution, 
habitat loss, possible changes in food availability and disturbance).
     Response: Comment noted. NMFS intends to continue research in 
these matters.
    Comment 23: One individual recommended formalizing rescue protocol 
for strandings of beluga whales in Turnagain Arm.
    Response: NMFS has a marine mammal stranding event program within 
the State of Alaska. This program brings Federal, State, and private 
interests together in responding to marine mammal strandings. Because 
live strandings do occur in upper Cook Inlet, NMFS developed a response 
plan for these waters. We will seek to improve this response plan as we 
learn more about these whales and response technology, and will involve 
both the public and private assets, such as the Seward Sealife Center.
    Comment 24: One commenter suggested that it would be helpful if 
NMFS could shed more light on Cook Inlet beluga movement during winter, 
perhaps through satellite tagging or surgically implanted tags, if 
technically and practically possible.
    Response: NMFS has plans to place satellite tags on Cook Inlet 
belugas in 1999, 2000 and 2001. Similar satellite tags previously 
placed on the beluga whales have lasted up to four months. To determine 
early winter movements, NMFS plans on tagging belugas in late summer/
early fall during the next few years. Winter surveys were done in 1997, 
showing some belugas still in Cook Inlet. We plan to conduct winter 
surveys in the future.
     Comment 25: One commenter questions NMFS' survey methodologies and 
recommends investigation into the survey design and implementation of 
more consistent surveying.
    Response: NMFS has flown aerial surveys in Cook Inlet consistently 
for the last 5 years (since 1994) during the month of June. These 
surveys provide a thorough coverage of the coast of Cook Inlet (1,388 
km) for all waters within approximately 3 km of shore. In addition, 
there were 1,320 km of systematic transects flown across the Inlet. 
Most of upper Cook Inlet is surveyed three times, in particular the 
Susitna Delta where large groups of belugas are found. The month of 
June is the time when whales are most abundant in Cook Inlet.
    Comment 26: One commenter recommended that Cook Inlet beluga whale 
critical habitat be identified and that no commercial activity/
development occur within 5 miles of critical habitat areas.
    Response: NMFS has recommended to the State of Alaska that areas 
within 5 miles of several rivers entering the upper Inlet, which are 
known areas of beluga concentrations, be deleted from the proposed Cook 
Inlet Oil and Gas Lease Sale. Further, as a depleted stock, NMFS may 
develop or implement conservation or management measures to alleviate 
any impacts on areas of ecological significance to that stock of marine 
mammal. Under section 112 (e) of the MMPA, such measures shall be 
developed and implemented after consultation with the Marine Mammal 
Commission and the appropriate Federal agencies after notice and 
opportunity for public comment.
    If the stock were to be listed under the ESA, section 4 of that act 
requires the Secretary to designate any habitat considered to be 
critical habitat. Section 7 of the ESA also requires Federal action 
agencies to consult with NMFS or the U.S. Fish and Wildlife Service 
whenever any activity which they conduct, permit, or fund may affect a 
species listed under that act.
    Therefore, under either act, there are consultation provisions to 
address activities that may affect beluga whale habitat throughout Cook 
Inlet provided that the stocks are either depleted (MMPA), or 
endangered or threatened (ESA).

The Depleted Determination

    Section 3 of the MMPA (16 U.S.C. 1362(1)) defines the term 
''depleted'' as meaning any case in which
    (A) the Secretary, after consultation with the Marine Mammal 
Commission and the Committee of Scientific Advisors on Marine Mammals* 
* * determines that a species or population stock is below its optimum 
sustainable population (OSP); or
    (B) a state, to which authority for the conservation and management 
of a species or population stock is transferred* * * determines that 
such species or stock is below its OSP; or
    (C) a species or population stock is listed as an endangered 
species or a threatened species under the Endangered Species Act of 
1973.
    Section 3 of the MMPA defines OSP as: with respect to any 
population stock, the number of animals which will result in the 
maximum productivity of the population or the species, keeping in mind 
the optimum carrying capacity of the habitat and the health of the 
ecosystem of which they form a constituent element.
    NMFS regulations at 50 CFR 216.3 define OSP as: a population size 
which falls within a range from the population level of a given species 
or stock which is the largest supportable within the ecosystem (K) to 
the population level that results in maximum net productivity (MNPL). 
Maximum net productivity is the greatest net annual increment in 
population numbers or biomass resulting from additions to the 
population due to reproduction and/or losses due to natural mortality.
    Historically, MNPL has been expressed as a range of values 
(generally 50-70 percent of K) determined theoretically by estimating 
what size stock in relation to the original stock size will produce the 
maximum net increase in population (42 FR 12010, March 1, 1977). In 
1977, the midpoint of this range was used to determine if a stock was 
depleted (42 FR 64548, December 27, 1977). The 60-percent value was 
supported in the final rule governing the taking of marine mammals 
incidental to commercial fishing operations (45 FR 72178, October 31, 
1980).

Determination of ``Population Stock'' or ``Stock'' Under the MMPA

    To designate the Cook Inlet population of beluga whales as a 
depleted stock under the MMPA, it must qualify as a ``population 
stock'' or ``stock''. Section 3(11) of the MMPA defines ``population 
stock'' or ``stock'' as a group of marine mammals of the same species 
or smaller taxa in a common spatial arrangement that interbreed when 
mature. Although this definition is in part a legal concept, stocks, 
species, and populations are biological concepts that must be defined 
on the basis of the best scientific data available.
    NMFS has considered several lines of evidence regarding the 
population structure of Cook Inlet beluga whales.

[[Page 56303]]

Distribution of Beluga Whales Within Cook Inlet

    The summer or open water distribution of Cook Inlet beluga whales 
is considered to be largely confined to waters of Cook Inlet (Laidre et 
al. 1999). Analysis of aerial surveys for beluga whales and other 
survey data for the northern Gulf of Alaska suggests no large, 
persistent groups of beluga whales exists other than in Cook Inlet. 
This distribution pattern is consistent with western and Arctic beluga 
whale stocks in Alaska, which are highly philopatric to discrete 
coastal summering areas. Additionally, the Cook Inlet area is 
physically separated from the remaining four Alaskan beluga whale 
stocks by the Alaskan Peninsula, which may act as a partial barrier 
restricting movement between stocks.
    Genetic profiles have been obtained from approximately 470 beluga 
whales in Alaska and Canada, including 64 animals from Cook Inlet. 
Mitochondrial DNA analysis of these animals found the Cook Inlet, 
Bristol Bay, eastern Chukchi Sea, eastern Bering Sea, and Beaufort Sea 
beluga stocks are all significantly different from each other (O'Corry-
Crowe and Dizon, 1999). Of these, the Cook Inlet whales were found to 
be the most distinct.
    Based on the best available information, NMFS has determined that 
beluga whales in Cook Inlet are a population stock or stock as defined 
by the MMPA.

Summary of Factors Supporting a Depleted Determination

    Aerial Surveys: Surveys of beluga whales in Cook Inlet, Alaska, 
were flown during June/July of 1993-98. The surveys provided a thorough 
coverage of the 1,388 kilometer (km) coastal area of the inlet and have 
included up to 1,500 km of offshore transects. Coastal transects were 
flown 1.4 km (0.7 nm) from the tideline, covering most of the area 
within 3 km of shore. Therefore, 100 percent of the coastal areas were 
surveyed most years and, along with offshore transects, systematic 
surveys encompassed 13-29 percent of the entire Inlet.
    Nearly all of the beluga whales seen in Cook Inlet in June/July 
were concentrated in a few dense groups in shallow areas near river 
mouths. The largest concentration (generally 120-300 whales by aerial 
count) has been located in the northern portion of upper Cook Inlet, in 
the Susitna River delta or Knik Arm. Another group (10-50 whales) has 
been consistently found between Chickaloon River and Point Possession. 
Smaller groups (generally <20 whales) occasionally occurred in 
Turnagain Arm, Kachemak Bay, Redoubt Bay (Big River), and Trading Bay 
(McArthur River). Over the past three decades, there have been 
decreases in sightings of beluga whales both in offshore areas and in 
lower Cook Inlet.
    Abundance Estimates: Videotapes of beluga whale groups were 
collected concurrently with counts made by observers during the aerial 
surveys from 1994-98. The surveys conducted in 1993 were not used in 
the following abundance estimation analysis because field techniques 
were still being developed in that year. From these aerial video tapes, 
165 counts of 54 whale groups were made. A correction formula was used 
to account for whales missed underwater. A correction for whales missed 
due to video resolution was developed by using a second video camera 
with a telephoto lens focused on a portion of the field of view 
obtained by the counting video. Whale images in this magnified view 
were matched to whales in the counting video and the missed whales were 
noted. Whales were missed either because their image size fell below 
the resolution of the video or because two whales surfaced so close to 
each other that their images ran together. The correction method that 
resulted depended on knowing the average whale image size in the 
counting videos.
    Image sizes were measured for 1,218 whales from 70 different passes 
over whale groups. Groups for which the average image size was not 
measured were given the average correction factor from the other 
groups. Group sizes were estimated as the product of the count, the 
correction factor for whales missed underwater, and the correction 
factor for whales missed due to video resolution. These estimated group 
sizes were used in the abundance calculations.
    Annual abundance estimates of beluga whales in Cook Inlet were 
calculated based on counts made by aerial observers and group sizes 
estimated from aerial video recordings. Whale group sizes examined in 
the videos were corrected for subsurface animals (availability bias) 
and animals that were at the surface but were missed (detection bias). 
A formula for estimating group sizes from counts by aerial observers 
was developed by regression of the counts and an interaction term based 
on encounter rate (whales per second during counting of a group) 
against the group sizes estimated from the videos.
    Significant effects of encounter rate were either positive or 
negative, depending on the observer. Logistic regression was used to 
estimate the probability that entire groups were missed during the 
systematic surveys. Some whale groups may have been missed by both 
primary observers, but these would have constituted only 1.5 percent of 
the total estimate. Abundance estimates were 653 (CV = 0.43) in June 
1994, 491 (CV = 0.44) in July 1995, 594 (CV = 0.28) in June 1996, 440 
(CV = 0.14) in June 1997, and 347 (CV = 0.29) in June 1998. The latest 
(1998) Nmin estimate is 273 and Nbest =347. Monte 
Carlo simulations indicate a 71-percent probability that a 40-percent 
decline occurred between the June 1998 abundance survey of the Cook 
Inlet stock of beluga whales and the June 1994 survey.

                       Table 1. Estimated Abundance of Beluga Whales in Cook Inlet, Alaska
                                  (The CV of each estimate is in parentheses.)
----------------------------------------------------------------------------------------------------------------
                    Section                          1994         1995         1996         1997         1998
----------------------------------------------------------------------------------------------------------------
Northwest......................................   580 (0.47)   444 (0.48)   542 (0.30)   362 (0.09)   292 (0.32)
Northeast......................................    48 (1.08)    31 (0.43)    52 (0.37)    76 (0.69)    55 (0.60)
South..........................................    25 (0.19)    17 (0.43)     0 (0.00)     2 (0.43)     0 (0.00)
      Total....................................   653 (0.43)   491 (0.44)   594 (0.28)   440 (0.14)   347 (0.29)
----------------------------------------------------------------------------------------------------------------

Depleted Determination Summary

    NMFS regulations at 50 CFR 216.3 define OSP as a population size 
that falls within a range from the population level of a given species 
or stock, which is the largest supportable within the ecosystem (K), to 
the population level that results in maximum net productivity (MNPL). 
Maximum net productivity is the greatest net annual increment in 
population numbers or biomass resulting from additions to the

[[Page 56304]]

population due to reproduction and/or losses due to natural mortality. 
NMFS has adopted by regulation that MNPL is at 60-percent of K (42 FR 
64548). Thus, assuming K was at the 1994 abundance level, a 71-percent 
probability exists that the Cook Inlet stock of beluga whales was below 
OSP as of June, 1998, and, therefore, qualifies as a depleted stock 
under the MMPA.
    The support for a depleted determination is strengthened by the 
fact that K was assumed to be the highest of the NMFS's abundance 
estimates, in this case the 1994 estimate of 653 animals. The actual 
carrying capacity of Cook Inlet is probably higher than this number 
based on previous counts and anecdotal estimates of greater than 1,000 
animals prior to 1980. Further, because Native subsistence harvest had 
occurred throughout the 1980s and 1990s, the 1994 abundance estimate 
likely reflected a population that had already been significantly 
exploited. Additionally, the 1998 abundance estimate occurred midway in 
the harvest season. NMFS documented seven belugas being harvested after 
the June 1998 survey. These removals, along with whales struck but lost 
during this time, suggest the actual abundance estimate may be lower 
than 347.
    Finally, traditional knowledge and observations of Alaskan Natives 
also provide an historical perspective on abundance. Alaskan Natives 
have reported the Cook Inlet stock comprised an estimated 1,000 whales 
as recently as the 1980s. Were this figure to be used for the carrying 
capacity (K), the stock would be at 35 percent of K, significantly 
below OSP.
    Therefore, based on the best scientific information available, NMFS 
believes that the Cook Inlet stock of beluga whales is significantly 
below OSP and, as a result, proposes to designate this stock as 
depleted under the MMPA.

Public Comments Solicited

    NMFS intends that any final action resulting from this proposal be 
as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Final promulgation 
of the regulations on the Cook Inlet beluga whale will take into 
consideration any additional information received by NMFS, and such 
communication may lead to a final regulation that differs from this 
proposal.
    NMFS will conduct a public hearing on these proposed regulations on 
Monday, November 22, from 9 a.m. to 3:30 p.m. at the Anchorage Federal 
Office Building, Room 154, 222 W. 7th Avenue, Anchorage, 
Alaska.

References

     Laidre, K.L., K.E. Shelden, B.A. Mahoney, and D.J. Rugh. 1999. 
Distribution of beluga whales and survey effort in the Gulf of Alaska.
    O'Corry Crowe, G. and A.E. Dizon. 1999. Molecular genetic analysis 
of beluga whale, Delphinapterus leucas, population structure and 
movement patterns in Alaska and Canada with special reference to Cook 
Inlet. 

Classification

    This rule is not subject to review under Executive Order 12866.
    Depletion designations under the MMPA are similar to ESA listing 
decisions, which are exempt from the requirement to prepare an 
environmental assessment or environmental impact statement under the 
National Environmental Policy Act. See NOAA Administrative Order 216-
6.03(e)(1). Depletion designations under the MMPA are required to be 
based solely on the best scientific information available. NMFS has 
determined that the proposed depletion designation of this stock under 
the MMPA is exempt from the requirements of the National Environmental 
Policy Act of 1969, and an Environmental Assessment or Environmental 
Impact Statement is not required.
    Based on the requirement that depletion designations be based 
solely on the best scientific information available, the analytical 
requirements of the Regulatory Flexibility Act do not apply. 
Notwithstanding this, the Assistant General Counsel for Regulation for 
the Department of Commerce certified to the Chief Counsel for Advocacy, 
Small Business Administration, that if the Cook Inlet, Alaska, stock of 
beluga whales is designated as depleted as proposed, the designation 
will not have a significant economic impact on a substantial number of 
small entities within the meaning of the Regulatory Flexibility Act. 
The proposed designation is in response to the stock's recent decline. 
The MMPA prohibits the harvest of marine mammals, including Cook Inlet 
beluga whales, with a limited exemption for subsistence hunting by 
Alaska Natives. Accordingly, the designation will have no economic 
impact on small entities within the meaning of the Regulatory 
Flexibility Act.
    This rule does not contain a collection-of-information requirement 
for purposes of the Paperwork Reduction Act of 1980.
    This rule does not contain policies with federalism implications 
sufficient to warrant preparation of a federalism assessment under E.O. 
13132.

List of Subjects in 50 CFR Part 216

    Exports, Imports, Marine mammals, Transportation.

    Dated: October 8, 1999.
Andrew. A. Rosenberg,
Deputy Assistant Administrator for Fisheries, 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

    1. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq. unless otherwise noted.

    2. In Sec. 216.15, a new paragraph (g) is added to read as follows:


Sec. 216.15  Depleted species.

* * * * *
    (g) Beluga whale (Delphinapterus leucas), Cook Inlet, Alaska stock. 
The stock includes all beluga whales occurring in waters of Cook Inlet 
north of 59 deg. N. lat. including, but not limited to, waters of 
Kachemak Bay, Kamishak Bay, Chinitna Bay, Tuxedni Bay and freshwater 
tributaries to these waters.
[FR Doc. 99-27169 Filed 10-18-99; 8:45 am]
BILLING CODE 3510-22-F