[Federal Register Volume 65, Number 121 (Thursday, June 22, 2000)]
[Rules and Regulations]
[Pages 38778-38790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15666]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216, 223, and 224

[Docket No. 000613174-0174-01; I.D. 032399A]
RIN 0648-XA53


Regulations Governing the Taking and Importing of Marine Mammals; 
Endangered and Threatened Fish and Wildlife; Cook Inlet Beluga Whales

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

ACTION: Notice of determination; status review.

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SUMMARY: NMFS received two petitions in March 1999 to list the Cook 
Inlet (CI), Alaska, stock beluga whales as endangered under the 
Endangered Species Act (ESA). The most immediate threat to the stock 
identified by the petitioners was the high level of harvest that was 
occurring under the Alaska Native exemption of the Marine Mammal 
Protection Act (MMPA). Since the receipt of the petition to list this 
species, legislative and management actions have been taken to reduce 
the subsistence harvest to levels that will allow the beluga whale 
stock to recover. NMFS has evaluated the factors cited in the 
petitions, the best available scientific information, and management 
actions that have occurred since the receipt of the petition to list 
the stock. NMFS has determined that listing the Cook Inlet stock of 
beluga whales under the ESA is not warranted at this time.

DATE: Effective: June 22, 2000.

ADDRESSES: Requests for copies of this determination should be 
addressed to the Chief, Marine Mammal Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, Maryland 20910.

FOR FURTHER INFORMATION CONTACT: Dr. Thomas Eagle, Office of Protected 
Resources, (301) 713-2322, ext. 105, Mr. Brad Smith, Alaska Regional 
Office-Anchorage, (907) 271-3023, or Mr. Michael Payne, Alaska Regional 
Office-Juneau, (907) 586-7235.

SUPPLEMENTARY INFORMATION:   

Background

    Prompted by a sharp decline in the estimated abundance of CI beluga 
whales between 1994 (653 animals) and 1998 (347 animals), a reduction 
of nearly 50 percent, NMFS initiated a status review of the CI beluga 
whale stock on November 19, 1998 (63 FR 64228). In the status review, 
NMFS evaluated the present status of CI beluga whales and made 
recommendations regarding a designation as depleted under the MMPA and 
listing as threatened or endangered under the ESA.
    The comment period on the status review, which was initiated at the 
same time that workshops were convened to review beluga whale stocks 
throughout Alaska, extended from November 19, 1998, through January 19, 
1999. The workshops were held by the Alaska Beluga Whale Committee 
(November 16-17, 1998) and the Alaska Scientific Review Group (November 
18-20, 1998), a body established under the MMPA to provide scientific 
advice regarding marine mammals to NMFS and the U.S. Fish and Wildlife 
Service (FWS).
    NMFS received two petitions in March 1999 to list CI beluga whales 
as endangered under the ESA. One petition requested an emergency 
listing under section 4(b)(7) of the ESA and the designation of 
critical habitat. Both petitions requested immediate promulgation of 
regulations to govern the subsistence harvest. NMFS determined that the 
petitions contained substantial scientific or commercial information 
indicating that the petitioned actions may be warranted (64 FR 17347, 
April 9, 1999).
    To ensure that the status review was comprehensive and based on the 
best available scientific information, the comment period was followed 
by a NMFS-sponsored workshop on March 8-9, 1999, in Anchorage, Alaska, 
that reviewed relevant scientific information on this stock. At this 
workshop, NMFS received additional public comments and recommendations. 
The abstracts of presentations from this workshop are summarized in a 
NMFS report (NMFS, 1999) and are available to the public.
    Following these reviews and taking into account the best 
information available at that time, NMFS proposed designating the CI 
stock of beluga whales as depleted on October 19, 1999 (64 FR 56298). 
NMFS also conducted a public hearing on November 22, 1999, on the 
proposed designation of the CI stock of beluga whales as depleted under 
the MMPA. NMFS issued a final rule on May 31, 2000, (65 FR 34590) 
designating CI beluga whales as depleted under the MMPA based on its 
determination that the stock is below its Optimum Sustainable 
Population (OSP) level.
    NMFS had not made a final decision on the ESA petitions at the time 
of the depleted determination. The ESA petitions have now been reviewed 
in light of the best available scientific information. This review 
considered the significant legislative and management actions that have 
occurred since NMFS received the petitions.

Recent Conservation Actions

    Prior to the receipt of the petitions, NMFS, Alaska Region, 
Protected Resources Division, recommended to the Regional Administrator 
(in a memorandum dated February 23, 1999) that NMFS seek legislative 
action to prohibit the sale of CI beluga products under the subsistence 
provisions of the MMPA and/or impose a moratorium on the hunting of CI 
beluga whales in 1999. The recommendation included advice that NMFS 
designate the stock as depleted under the MMPA or list it as threatened 
or endangered under the ESA. These recommendations were based on the 
then unsustainable level of the subsistence harvest and the fact that 
no regulations were in place to restrict the harvest because the 
harvest was believed to be the most important factor linked to the 
decline of the stock. The MMPA and ESA provide a specific process for 
limiting Alaska Native subsistence harvest. This process begins with 
the designation of a stock as depleted under the MMPA or listing as 
threatened or endangered under the ESA.
    Results of the 1998 surveys were not completed at the date of the 
Division's memorandum. Because the stock was declining and there was no 
immediate mechanism to limit the harvest, the Protected Resources 
Division recommended that NMFS consider a proposed listing under the 
ESA.
    The following events had a significant bearing on NMFS' 
determination not to list CI beluga whales as endangered or threatened 
under the ESA:
    (1) Congress passed legislation to prohibit the taking of CI beluga 
whales for Native subsistence use unless authorized by a cooperative 
agreement between NMFS and affected Alaska Native organizations (ANOs). 
On May

[[Page 38779]]

21, 1999, President Clinton signed the legislation into effect as 
Public Law 106-31. Pub. L. 106-31 established an enforceable mechanism 
to control the harvest, which was the only factor found to be directly 
linked to the decline. Prior to this law, the Federal government could 
not restrict the harvest, and a Native Alaskan could have harvested 
beluga whales from Cook Inlet without the approval of any local tribal 
authority of any local tribal authority or governing body The 
legislation remains in effect until October 1, 2000. As a result of 
this legislation, there was no harvest in 1999.
    (2) NMFS completed analyses of the 1994-1998 survey data. The 
results of the abundance estimates from surveys conducted 1994-1998 
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. Subsequent analyses indicated a 71-percent 
probability that a 40-percent decline in abundance occurred between 
June 1994 and June 1998 surveys. These data provided the necessary 
scientific support to designate the CI beluga whale stock as depleted 
under the MMPA. NMFS has determined that CI beluga whales are depleted 
and has started the process under the MMPA to regulate the harvest.
    (3) NMFS completed the analyses of the 1999 abundance survey data. 
The population estimate for CI beluga whales in 1999, in which there 
was no subsistence harvest, was 357 whales. This estimate is consistent 
with the results of simulation modeling for the stock in which there 
was no harvest. Although preliminary, these results suggest that 
controlling the harvest may be an effective mechanism to promote 
recovery of the stock. Results after 3-5 years of controlling the 
harvest would provide more conclusive evidence of recovery.
    (4) On December 10, 1999, NMFS conducted a scoping meeting as part 
of a process under the National Environmental Policy Act (NEPA) to 
consider the environmental impacts of a Federal program to promote 
recovery of this depleted stock. After the scoping meeting, NMFS 
assessed the potential impacts to CI beluga whales caused by human-
related activities ongoing in Cook Inlet, including the subsistence 
harvest of CI beluga whales by Alaskan Natives. Because the CI beluga 
whale stock is depleted, NMFS believes that any federally approved 
harvest plan would constitute a major action subject to the 
requirements of NEPA and, therefore, could not be completed until an 
Environmental Impact Statement (EIS) has been prepared. NMFS is 
preparing an EIS that assesses the impacts of various anthropogenic 
activities on CI beluga whales and their habitat. The draft EIS 
includes a discussion of the cumulative impacts of these activities on 
CI beluga whales. Following the completion of the final EIS and the 
procedure under the MMPA to limit subsistence harvest, NMFS will 
publish a final rule to regulate the subsistence harvest.
    NMFS must ensure that future harvests are sustainable and do not 
cause the further decline of the CI beluga whale stock. Pub. L. 106-31, 
limiting subsistence harvest to that occurring under a cooperative 
agreement between an affected ANO and NMFS, expires on October 1, 2000. 
Therefore, NMFS must have one or more mechanisms in place to regulate 
this take prior to the next harvest season. In the absence of any 
action by NMFS to regulate the harvest, the future of this harvest, and 
the CI stock of beluga whales, would be uncertain.

Definitions

    Endangered and Threatened Species: Section 3(6) of the ESA defines 
an endangered species as `` * * *any species which is in danger of 
extinction throughout all or a significant portion of its range * * *'' 
Section 3(19) defines the term threatened species as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.
    ``Species'' under the ESA: Section 3(15) of the ESA defines species 
broadly as `` * * *any subspecies of fish or wildlife or plants and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.''

Summary of Comments Received during the Status Review

    Comment 1: One of the commenters focused directly on the current 
size of the population and questioned whether any other marine mammal 
has a population estimate as low as that for CI beluga whales and is 
not listed as endangered under the ESA.
    Response: No other population of marine mammals is as small as the 
CI beluga stock and is not listed under the ESA. Although NMFS is 
concerned with the low abundance of the stock, abundance alone does not 
necessarily mean that the stock is in danger of extinction.
    Historical abundances of CI beluga have been reported from as few 
as 500 to as many as 2,000, and NMFS believes there may have been 
1,000-1,300 whales in the early to mid-1980s. Thus, the stock would 
have been reduced to about 25 to 35 percent of its historical 
abundance. The population consequences of such a decline are much less 
substantial than those for other small populations, such as North 
Atlantic right whales, which were reduced to less than 10 percent of 
their historical abundance.
    Population growth is not well documented for CI beluga; however, 
there is some evidence that reproduction in the stock has not been 
compromised. As discussed later in this document, the population 
consists of a large proportion of juvenile whales, and the age of 
sexual maturity has apparently decreased in recent years. These 
observations indicate that CI beluga whales have the reproductive 
capacity to sustain population growth. Furthermore, the 1999 abundance 
estimate suggests that the population may be increasing, rather than 
decreasing, as a result of controlling the harvest.
    Comment 2: The Marine Mammal Commission (Commission) noted that, 
under criteria developed by the International Union for the 
Conservation of Nature and Natural Resources (IUCN), CI beluga whales 
would be classified as ``endangered'' or ``critically endangered''.
    Response: The IUCN criteria are all based upon characteristics of 
the population and do not include a consideration of the adequacy of 
existing regulatory mechanisms as is required under the ESA. Under the 
IUCN criteria, CI beluga would qualify as ``endangered'' only if the 
decline were continuing. The major factor related to the decline of CI 
beluga whales has been stopped under Federal law and is not likely to 
revert to unsustainable levels in the near future.
    Furthermore, under IUCN criteria, the stock would be classified as 
``vulnerable'' if there were fewer than 1,000 whales. At 1,000 animals, 
the CI beluga stock would likely be within its OSP levels under the 
MMPA, perhaps at or near its carrying capacity. Thus, if the stock 
numbered 1,000 whales, NMFS would consider the stock as small, 
isolated, and healthy, but IUCN would characterize it as `` * * *facing 
a high risk of extinction in the wild in the medium-term future * * 
*''. Although the IUCN criteria are appropriate to identify species 
that may need conservation measures, they do not include the full range 
of factors that are included in the ESA; therefore, they are not 
appropriate for a determination of the status of a stock under the ESA.

[[Page 38780]]

    Comment 3: The Commission stated that NMFS should consider how 
listing criteria have been used in the past and noted that NMFS listed 
the Guadalupe fur seal population as threatened when that population 
numbered between 1,200 and 1,500 individuals and was producing about 
200 pups annually.
    Response: The ESA listing criteria have to be applied to each 
situation individually. For some factors, NMFS reached similar 
conclusions about the two populations: (1) In neither case was the 
habitat considered to be adversely modified or diminished; (2) both had 
been reduced by human exploitation; and (3) there were adequate 
regulatory mechanisms in both cases.
    The Commission noted that the fur seal stock was more abundant than 
CI beluga whales when the fur seals were listed. However, the fur seal 
stock was reduced by commercial exploitation in the 1700s and 1800s 
from a historical abundance, estimated to be 30,000 individuals, to 
very low numbers. The population was only about 6 percent of its 
historical abundance when it was listed in 1985, and it had been 
growing slowly since it was re-discovered in 1954.
    On the other hand, CI beluga are probably about 25 to 35 percent of 
their historical abundance (as noted above). The large proportion of 
young whales in the stock indicates that reproduction has not been 
compromised. The 1999 abundance estimate is preliminary evidence that 
the stock is increasing. Therefore, NMFS believes that CI beluga are 
less likely to go extinct or to become endangered than Guadalupe fur 
seals were when they were listed in 1985.

Evaluation of ESA Factors Affecting the Species

    NMFS and FWS issued a joint policy for listing, delisting and 
reclassifying species under the ESA (61 FR 4722, February 7, 1996). The 
policy outlines three elements to be considered in deciding the status 
of a possible distinct population segment as endangered or threatened 
under the ESA: (1) Discreteness of the population segment in relation 
to the remainder of the species to which it belongs; (2) the 
significance of the population segment to the species to which it 
belongs; and (3) the population segment's conservation status in 
relation to ESA criteria for listing.
    Under the first element, the petitioners argue that the CI beluga 
whale population is discrete because it is markedly separated from 
other populations of the same species.
    NMFS Response: NMFS concurs with this statement. Of the five stocks 
of beluga whales in Alaska, the CI stock is considered to be the most 
isolated, based on the degree of genetic differentiation between the CI 
stock and the four other stocks (O'Corry-Crowe, et al., 1997). This 
study suggests that the Alaska peninsula may be an effective barrier to 
genetic exchange.
    Under the second element, NMFS must determine whether the 
population segment persists in an ecological setting that is unique and 
whether the loss of the discrete population would result in a 
significant gap in the range of the species. The petitioners assert 
that CI beluga whales are in a unique ecological setting (Cook Inlet) 
and are the only population of beluga whales in Alaska that are 
completely subarctic (south of the Alaska peninsula). Furthermore, they 
stated that the loss of the stock would create a significant gap in the 
range of the species.
    NMFS Response: NMFS concurs with this assessment. The CI beluga 
whales are the only population of beluga whales that inhabit the Gulf 
of Alaska, and the genetic data show little or no mixing with other 
population segments. Therefore, the loss of the CI population segment 
would result in the complete loss of the species in the Gulf of Alaska 
with little likelihood of immigration from other population segments 
into Cook Inlet.
    Therefore, based on the best available scientific information 
available to NMFS, the only supportable conclusion that can be reached 
(as recommended by the petitioners) is that CI beluga whales are a 
``distinct population segment'' and, therefore, a species under section 
3(15) of the ESA.
    Under the third element of the joint NMFS/FWS policy, if a 
population segment is discrete and significant, its evaluation for an 
endangered or threatened status will be primarily based on a review of 
the factors enumerated in ESA section 4(a) after taking into account 
conservation efforts implemented pursuant to section 4(b)(1)(A).
    Regarding CI beluga whales, section 4(a) of the ESA states that the 
Secretary of Commerce (Secretary) shall, by regulation promulgated in 
accordance with subsection (b), determine whether any species is an 
endangered species or a threatened species because of any of the 
following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    Section 4(b)(1)(a) further states that the Secretary shall make 
determinations required by subsection (a)(1) solely on the basis of the 
best scientific and commercial data available to him after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made by any State or foreign nation to protect 
such species, whether by predator control, protection of habitat and 
food supply, or other conservation practices within any area under its 
jurisdiction or the high seas. The ``Recent Conservation Actions'' 
section of this document discussed efforts to protect CI beluga whales. 
The following sections of this document discuss the status of CI beluga 
whales with respect to the five factors included in the ESA.

A. The Present or Theatened Destruction, Modificatin, or Curtailment of 
Habitat or Range

    The petitioners state that the current distribution of the CI 
population of beluga whales is reduced from historic levels and that 
all current descriptions of the species' range are largely limited to 
Cook Inlet. They cite the summary of survey data by Rugh et al. (In 
press), which states that in recent years a reduction has occurred in 
incidental sightings in the Gulf of Alaska, and a reduction has 
occurred in sightings in lower Cook Inlet and offshore areas of upper 
Cook Inlet. From this they inferred that the range of the species has 
been curtailed.
    NMFS Response: A significant part of the habitat for this species 
has been modified by municipal, industrial and recreational activities 
in Upper Cook Inlet. Each of these activities (discussed later in this 
document), either individually or cumulatively, are of concern to NMFS. 
However, the data do not support a conclusion that the range of CI 
beluga whales has been diminished by these activities.
    Cook Inlet beluga whales occupy the same range that they have 
always occupied. The information by Rugh et al. (In press) indicates 
that the summer occurrence of CI beluga whales has shifted to the upper 
inlet in recent decades whereas, historically, they were also found in 
the lower inlet during mid- to late-summer. There are many alternative 
hypotheses for the underlying cause of the change in distribution. For 
example, the overall population reduction in recent decades may have 
resulted in CI beluga whales inhabiting only the preferred feeding

[[Page 38781]]

areas within the range (i.e., the upper inlet). Therefore, the change 
in distribution does not necessarily reflect an adverse modification of 
the lower inlet. No indication exists that the range has been, or is 
threatened with being, modified or curtailed to an extent that 
appreciably diminishes the value of the habitat for both survival and 
recovery of the species.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petitioners discussed overharvest of CI beluga whales under the 
section on overutilization for commercial purposes. Although they 
recognized that this criterion focuses on commercial use of a species, 
the petitioners stated that distinguishing between whales killed 
primarily for subsistence and whales killed as part of a subsistence 
hunt and sold commercially is impossible.
    NMFS Response: NMFS agrees that both forms of mortality are 
relevant to this discussion. However, the subsistence provisions of the 
MMPA allow a limited sale of edible products from marine mammals to be 
sold in Alaska Native villages, which include Anchorage, or for Alaska 
Native consumption. Therefore, although overharvest is of serious 
concern, NMFS has included the response on the overharvest issue in the 
analysis of other natural or man-made factors that affect the stock.
    NMFS recognizes that even the limited sale allowed under the 
subsistence provisions of the MMPA may provide an economic incentive 
for one or more Alaska Natives to supply beluga products within 
Anchorage. Such a sale may help meet the cultural demand for 
traditional foods among the 20,000 or more Alaska Natives that reside 
in Anchorage. A successful long-term conservation strategy must address 
the sale of edible beluga products in Anchorage.
    Although there was a commercial or sport (recreational) harvest of 
beluga whales in CI prior to enactment of the MMPA, none has existed 
since 1972. The only taking of beluga whales in Cook Inlet for 
scientific purposes is non-lethal and has no more than a negligible 
impact on the stock. NMFS is not aware of any taking for educational 
purposes in recent years that may have had an effect on the stock. 
Therefore, this factor is not causing the stock to be in danger of 
extinction, nor is it likely to do so in the foreseeable future.

C. Disease or Predation

    Disease: The petitioners discuss the susceptibility of beluga 
whales to disease and suggest that very little is known on this subject 
matter specific to CI beluga whales.
    NMFS Response: NMFS concurs that very little is presently known 
about the effects of disease on CI beluga whales. However, a 
considerable amount of information exists on the occurrence of diseases 
in CI beluga whales, and other beluga whale populations, and the 
effects of these diseases on the species.
    Bacterial infection of the respiratory tract is one of the most 
common diseases encountered in marine mammals. Bacterial pneumonia, 
either alone or in conjunction with parasitic infection, is a common 
cause of beach stranding and death (Howard et al., 1983). From 1983 to 
1990, 33 percent of stranded beluga whales in the St. Lawrence estuary 
(n = 45 sampled) were affected by pneumonia (Martineau et al., 1994).
    Populations of beluga whales in Alaska appear relatively free of 
ectoparasites (Klinkhart, 1966, Hazard, 1988). Endoparasitic 
infestations are more common in beluga whales. Several species of 
endoparasites have been identified in beluga whales including 
populations found in Alaska and Canada (Klinkhart, 1966). Necropsies 
conducted on CI beluga whales have found heavy infestations in some 
adult whales. Approximately 90 percent of CI whales examined have had 
kidney parasites. Although extensive damage has been associated with 
this infection, whether this results in functional damage to the kidney 
(Burek, 1999a) is unclear. Stomach parasites are also present in CI 
beluga whales. However, these infestations have not been considered 
extensive enough to have caused clinical problems.
    Parasites and the potential for diseases occur in CI beluga whales. 
Despite the considerable pathology that has been done on this species, 
nothing indicates that the occurrence of parasites or disease has had a 
measurable impact on their survival and health. Therefore, the factor 
related to disease does not support listing this population as 
threatened or endangered under the ESA.
    Natural Predation: Killer whales are the only non-human predator of 
beluga whales in Cook Inlet. The petitioners state that the potential 
for significant impacts on the CI beluga whale population by killer 
whales cannot be ruled out given recent changes in prey availability to 
killer whales throughout the Gulf of Alaska (referring to declines in 
pinniped populations in the Central and Western Gulf of Alaska since 
the mid 1970s). The petitioners suggest that even a small increase in 
predation could result in population decline or impede recovery.
    NMFS Response: The number of killer whales visiting the upper inlet 
appears to be small. However, predation by killer whales on CI beluga 
whales was considered by some commenters to be a mortality factor that 
may have contributed to the CI beluga whale declines in recent years. 
NMFS has received reports of killer whales in Turnagain and Knik Arms, 
between Fire Island and Tyonek, and near the mouth of the Susitna 
River. Native hunters have recently reported killer whales along the 
tide rip that extends from Fire Island to Tyonek (Huntington, 1999) and 
in Kachemak Bay.
    No quantitative data exist on the level of removals from this 
population due to killer whale predation or its impact; however, killer 
whale pods prey selectively on salmon or marine mammals, including 
beluga whales, in Cook Inlet. During a killer whale stranding in 
Turnagain Arm in August 1993, one observer reported that a killer whale 
regurgitated pieces of beluga flesh. A potential dietary shift may 
account for some of the more recent sightings of killer whales in Cook 
Inlet.
    On the other hand, pods of killer whales also feed on salmon, a 
prey of beluga whales. Therefore, seeing killer whales near beluga 
whales in the inlet does not necessarily imply that they are searching 
for beluga whales.
    Assessing the impact of predation by killer whales on CI beluga 
whales is difficult. Anecdotal reports often highlight the more 
sensational, mortalities on beluga whales due to killer whales, thereby 
overemphasizing their impact. Further, these reports are from the early 
1980s when beluga whales were more abundant. Consequently, they are of 
minimal value in evaluating current impacts to the population of beluga 
whales in Cook Inlet.
    The loss of a few beluga whales could impede recovery, as suggested 
by the petitioners. However, in order for killer whale predation to be 
a significant factor in the observed decline in the beluga population, 
total mortality due to predation would have to be near the level of 
recruitment in the population. The literature and stranding records 
indicate that natural mortality in the CI beluga whale population does 
not exceed levels considered normal for other small cetacean 
populations. Therefore, predation by killer whales is not likely having 
a significant impact on the recovery of the CI beluga whale population.
    Disease and predation occur in the CI beluga population and may 
affect

[[Page 38782]]

reproduction and survival. The best available information, however, 
indicates that these factors are not causing the stock to be threatened 
or endangered.

D. The Inadequacy of Existing Regulatory Mechanisms

    The most immediate concerns by the petitioners were (1) the level 
of mortality as a result of subsistence harvest, and (2) the inability 
of NMFS, at the time of the petition, to control this harvest. The 
petitioners stated that the MMPA is inadequate to protect CI beluga 
whales. They further stated that under the MMPA, NMFS can pursue a co-
management agreements with the tribes in the Cook Inlet region. 
However, the petitioners note, such an agreement provides no additional 
legal authority to NMFS to prosecute violations of the MMPA. According 
to the petitioners, even with a co-management agreement in place, 
neither NMFS nor the affected ANO can enforce its recommendations if 
hunters choose not to comply. Therefore, the petitioners suggested, 
such an agreement would not regulate non-local hunters nor restrict the 
sale of muktuk (whale skin, with blubber attached, used for food) in 
Anchorage. The petitioners stated that a co-management agreement was 
unlikely to reduce the Native hunt to sustainable levels and concluded 
that listing the CI population under the ESA was necessary to ensure 
complete compliance with agreed upon harvest limits, improve the 
monitoring of the harvest, and eliminate the sale of muktuk.
    NMFS Response: Management of the CI beluga whale stock could be 
achieved through voluntary and cooperative efforts within a traditional 
Native community or through a co-management agreement. Prior to Pub. L. 
106-31, no area-wide tribal authorities applied to all the Native 
Alaskans residing in Anchorage or the harvesting of CI beluga whales. 
For this reason, NMFS believes that the petitioners were correct in 
stating that a co-management agreement, without an enforceable 
regulatory mechanism, would not have provided the level of authority 
necessary to restrict the harvest to sustainable levels. Therefore, 
NMFS believes that the recovery of this stock requires not only the 
authority of a co-management agreement but also a Federal authority to 
protect and conserve CI beluga whales.
    NMFS disagrees with the petitioners' statement that only through 
listing the CI population of beluga whales under the ESA can NMFS 
ensure complete compliance with agreed upon harvest limits, improve the 
monitoring of the harvest, and eliminate the sale of muktuk. On May 31, 
2000, NMFS designated this stock as depleted under the MMPA. The 
depletion finding is the first step in the MMPA process for regulating 
the harvest. Under this process, annual harvest levels could be agreed 
upon through a co-management agreement and enforced, if necessary, 
through Federal regulations and tribal ordinances.
    The process for regulating subsistence take of species listed under 
the ESA essentially mirrors the process for regulating of depleted 
species under the MMPA. Therefore, listing the stock under the ESA 
would not provide a better mechanism than under the MMPA to ensure 
compliance with harvest limits.
    The petitioners further stated that Congress intended protections 
under the ESA to be applied in conjunction with protections under the 
MMPA because a marine mammal found to be threatened or endangered under 
the ESA is automatically listed as depleted under the MMPA.
    NMFS Response: NMFS agrees that threatened or endangered marine 
mammals are protected under both the MMPA and the ESA. The MMPA states 
that marine mammals that are listed as threatened or endangered under 
the ESA are considered depleted under the MMPA. The ESA does not 
include a provision that requires a depleted marine mammal stock to be 
listed as threatened or endangered.
    On at least two previous occasions, NMFS has designated stocks of 
marine mammals as depleted because these stocks were below OSP, but 
determined that the stocks were not threatened or endangered. NMFS was 
petitioned in 1991 to designate the eastern spinner dolphin and the 
northern offshore stock of spotted dolphin in the eastern tropical 
Pacific Ocean as depleted under the MMPA and to list them as threatened 
under the ESA. On October 19, 1992, NMFS published a determination that 
listing the eastern spinner dolphin under the ESA was not warranted 
and, on August 26, 1993, published a final rule designating the eastern 
spinner dolphin as depleted under the MMPA. Following a review of new 
information on the offshore spotted dolphin stock structure, NMFS 
designated the northeastern stock of offshore spotted dolphins (a 
smaller component of the northern offshore aggregation) as depleted on 
November 1, 1993. On January 7, 1993, NMFS issued a finding that the 
listing of northern offshore spotted dolphins as a threatened species 
under the ESA was not warranted. In both cases existing regulatory 
mechanisms were found to be adequate to allow the stock to rebuild and, 
thus, to prevent the stock from becoming endangered or threatened.
    The existing regulatory mechanism is adequate to control the 
harvest of CI beluga whales to sustainable levels. To continue an 
adequate regulatory mechanism to restrict the harvest beyond October 1, 
2000, NMFS would have to promulgate such regulations, or Congress would 
have to extend the special legislation that currently restricts the 
harvest. As discussed in other sections of this document, no other 
factor has been identified as having a significant adverse effect on 
the stock. Also as noted in other sections of this document, existing 
regulatory mechanisms are believed adequate to address future economic 
development in the area. Therefore, NMFS believes that an inadequate 
regulatory mechanism has not caused the stock to become in danger of 
extinction, nor is it likely to do so in the foreseeable future.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

    Stochastic Events: The petitioners stated that the population was 
currently so small that stochastic (random) events may cause the stock 
to decline to extinction. Their example related to strandings. The 
Commission also noted that the population was small and recommended 
that NMFS include an analysis of whether a listing as endangered or 
threatened is warranted simply because of risks posed by stochastic 
events.
    NMFS Response: The analysis of strandings is discussed in the next 
section of this document. Breiwick and DeMaster (1999) examined the 
effects of stochastic events on the population dynamics of small 
populations of whales that are subjected to subsistence harvest. They 
used an individual-based model with stochastic birth and death rates to 
model populations subjected to harvest. They varied underlying 
intrinsic rates of increase from 0.025 to 0.049 and reported no 
extinctions in populations with no environmental stochasticity, even 
when these populations were subjected to harvest rates of up to 5 
percent. When maximum environmental stochasticity (20 percent reduction 
in survival every 10 years) and the lower level intrinsic rate of 
increase (0.025) were used, no populations went extinct although 
populations harvested at a 3 percent level declined during 75 to 100 
years of simulation. The results of the simulations indicate that CI 
beluga

[[Page 38783]]

whales are not in danger of extinction or likely to become endangered 
in the foreseeable future due to stochastic events.
    Stranding Events: The petitioners asserted that the population was 
so small that it was vulnerable to all natural sources of mortality, 
such as disease, predation, and stranding. They further asserted that a 
large stranding could occur that would kill most or all of the 
remaining beluga whales.
    NMFS Response: NMFS estimates that over 590 whales have stranded 
(both individually and as groups) in upper Cook Inlet since 1988. Mass 
stranding events have most commonly occurred along Turnagain Arm and 
have often coincided with extreme tidal fluctuations (``spring tides'') 
and involved both adult and juvenile beluga whales.
    Beluga whale mortalities have been observed during these stranding 
events. A 1996 mass stranding of approximately 60 beluga whales in 
Turnagain Arm resulted in the death of four adult whales. Five deaths 
resulted from another stranding of approximately 75 whales in August of 
1999.
    Catastrophic mortality (the deaths of a large number, such as 50 or 
more whales) due to a mass stranding event was not considered in 
simulations of the CI beluga stock for purposes of the status review. 
Such mortality could significantly impede recovery if it occurred; 
however, such catastrophic mortality has never been reported. Although 
mass strandings have occurred, only 9 whales died from a total of 135 
whales included in the two mass strandings in 1996 and 1999. Mass 
stranding events are not believed to be a factor that has caused, or 
had a significant role in, the decline of this stock to depleted 
levels. Therefore, strandings, either individual or mass, have not 
caused the stock to be in danger of extinction nor are they likely to 
do so in the foreseeable future.
    Subsistence Harvest: The petitioners stated that overutilization of 
beluga whales was undisputedly occurring. They further stated that the 
1994-1997 levels of harvest were unsustainable.
    NMFS Response: NMFS agrees with these statements. The history of 
harvest estimates from the years 1987-1999 will be included in the 
draft EIS and varied between zero and about 20 whales per year. These 
estimates, however, are considered underestimates because Alaska Native 
hunters and others stated that many whales were not reported or that 
the struck-and-lost rate was too low.
    NMFS estimated that the average annual harvest between 1995 and 
1998 was 78 whales. While subjected to this level of harvest, the stock 
has declined at an average rate of 15 percent per year from 1994 to 
1998.
    NMFS has been working with the Cook Inlet Marine Mammal Council 
(CIMMC) to develop a co-management agreement to conserve CI beluga and 
co-manage subsistence use of them. CIMMC is an ANO that represents 
several Alaska Native tribal governments in the CI area. Because NMFS 
and CIMMC had not entered into a co-management agreement under Pub. L. 
106-31, no harvest was conducted in 1999. NMFS and CIMMC have, however, 
negotiated an agreement that would allow the harvest of a single whale 
after July 1, 2000.
    The harvest estimates from 1995-1997 and the abundance estimates 
from 1994-1998 clearly indicate that the harvest was unsustainable 
prior to restriction in 1999. Furthermore, the subsistence harvest can 
account for the decline of the stock during that interval. Therefore, 
NMFS agrees that a failure to restrict the subsistence harvest would 
likely cause CI beluga whales to become in danger of extinction in the 
foreseeable future.
    The petitioners stated that a depleted finding would allow NMFS to 
initiate rulemaking to limit the subsistence harvest of CI beluga 
whales, but harvest restrictions would not adequately address the 
problems facing CI beluga whales.
    NMFS Response: NMFS disagrees that limiting the subsistence harvest 
would not adequately address the problems facing beluga whales in Cook 
Inlet. The subsistence harvest of these whales accounts for the 
observed decline in the stock since 1994. As indicated in the following 
discussion of anthropogenic factors that may affect beluga habitat, no 
other activity has had a known significant adverse effect on the stock 
or would cause the CI beluga whales to become in danger of extinction 
or likely to become endangered in the foreseeable future.
    Other Natural or Manmade Activities: The petitioners identified the 
following activities or sources of potential threat to the CI beluga 
stock: commercial fisheries interactions with beluga whales; oil 
spills; other pollutants, contaminants (toxins such as Polychlorinated 
Biphenyls (PCBs), pesticides, heavy metals, hydrocarbons); predation 
from killer whales; noise from oil and gas development with associated 
seismic activity, drilling and refineries, airplanes (Anchorage 
Airport) and vessels; prey availability; research; and vessel traffic 
including commercial (whale watching) boat traffic. The petitioners 
assert that potential impacts from these activities on CI beluga 
whales, their prey, and the marine environment may be direct (e.g., 
lower survival rates) or indirect (e.g., loss of access to habitat or 
food resources).
    NMFS Response: NMFS recognizes that municipal, commercial, and 
industrial activities are of concern and may affect the water quality 
and substrate in the inlet. However, no indication exists that these 
activities have adversely impacted beluga whales, including a 
quantitative impact on the beluga whale population. The best available 
information (as discussed in the following sections) indicates that 
these activities, alone or cumulatively, have not caused the stock to 
be in danger of extinction and are not likely to do so in the 
foreseeable future.
    Commercial Fishery Interactions with Beluga Whales: State and 
Federally permitted commercial fisheries for shellfish, groundfish, 
herring and salmon occur in the waters of Cook Inlet, and have varying 
likelihoods of interacting with beluga whales due to differences in 
gear type, timing, and location of the fisheries. Interactions include 
entanglements, injuries, or mortalities occurring incidental to fishing 
operations.
    Reports of marine mammal injury or mortality incidental to 
commercial fishing operations are obtained from the existing 
literature, fisheries reporting programs, and observer programs. During 
1990-93, certain fisheries were required to participate in a logbook 
reporting program, which provided information regarding fishing effort, 
interactions with marine mammals and the outcome (deterred, entangled, 
injured, killed) of the interactions. Data from this program were 
difficult to interpret (Young et al. 1993) and tended to underestimate 
actual incidental mortality rates (Credle et al., 1994).
    The logbook program was replaced by the 1994 MMPA amendments with a 
fisher self-reporting program, in which all commercial fishers are 
required to notify NMFS of injuries or mortalities to marine mammals 
occurring during the course of commercial fishing. This program became 
effective in 1995 and is currently in operation. In general, however, 
fewer reports have been received under this program than expected, 
given the results of the previous logbook reporting program and results 
from observer programs. Thus, annual mortality rates derived from these 
programs should be considered minimum estimates (Hill and DeMaster, 
1999).
    A number of fisheries occurring in or near the inlet present 
little, if any,

[[Page 38784]]

chance of catching beluga whales. These fisheries are classified in 
Category III under the MMPA (65 FR 2448, April 26, 2000) because NMFS 
has determined that there is only a remote likelihood that they would 
kill or seriously injure any marine mammal incidental to their 
operations. These fisheries were classified in Category III fisheries 
during the period 1990 through 1994 and were not required to 
participate in the logbook program. Since 1995, when the existing 
reporting system required the reporting of all injuries of marine 
mammals incidental to fishing operations, none of these fisheries have 
reported incidental mortality or injury of marine mammals. In addition, 
no interactions between beluga whales and northern Gulf of Alaska 
groundfish trawl, longline or pot fisheries were reported by federal 
observers during 1990-99 (Hill and DeMaster, 1999).
    The largest fisheries, in terms of participant number and landed 
biomass in Cook Inlet, are the salmon drift and set gillnet fisheries 
concentrated in the central and northern districts of upper Cook Inlet, 
where beluga whales are most likely to be found in the spring and 
summer (Rugh et al., In press). Times of operation change depending 
upon management requirements. In general the drift gillnet fishery 
operates from late June through August, and the set gillnet fishery 
during June through September.
    The only reports of beluga whale mortality caused incidental to 
commercial salmon gillnet fishing in Cook Inlet are found in the 
literature prior to the observer programs and reporting systems 
required by the MMPA. Murray and Fay (1979) stated that salmon gillnet 
fisheries in Cook Inlet caught five beluga whales in 1979. An 
incidental take rate by commercial salmon gillnet fisheries in the 
Inlet was estimated at three to six beluga whales per year during 1981-
83 (Burns and Seaman, 1986). Neither report, however, differentiated 
between the set and drift gillnet fisheries.
    There have been no recent reports of beluga whales in Cook Inlet 
being killed or injured incidental to commercial fishing operations. No 
reports of injuries or mortalities incidental to salmon drift or set 
gillnet fishing were reported during the 1990-91 logbook reporting 
program, and none have been included in the reporting system in place 
since 1995.
    To address the heightened concern in Cook Inlet and verify the 
results from the self-reporting system, NMFS placed observers in the 
salmon drift gillnet fishery and the upper and lower inlet set gillnet 
fishery in 1999. Observers were deployed on the first drift gillnet 
opening of June 28. Limited set gillnet fisheries were operating in the 
upper Cook Inlet on June 7, but observers were not placed until June 
27. Thus, fishing effort associated with approximately 239 of 11,300 
deliveries was unobserved during this period. Observers were placed on 
drift vessels during each of the eight regular and nine corridor-only 
fishing periods, and during emergency order extended fishing periods.
    In 141 net-days (in which a net is fished at least 6 hours in a 24-
hour period) in the drift gillnet fishery, observations were made of 
744 sets and/or hauls of 102 different vessels for a total of 845 hours 
observation time. In 256 net-days within the set gillnet fishery, 1,450 
observations were made of soaks and/or hauls of 275 different vessels, 
totaling 1,545 hours of observation time.
    Marine mammals were observed within 300 m of a net by observers 43 
times (about 6 percent of the observations) for drift gillnet sets, and 
107 times (about 7 percent of the observations) for set gillnet effort. 
Of these, only three sightings were of beluga whales, each from an 
observer at a set gillnet sight in upper Cook Inlet. The beluga whales 
were not observed within 10 m of any net (i.e., within a distance 
categorized as an ``interaction'') in the drift (35 individual marine 
mammals observed) or set (78 individual marine mammals observed) 
gillnet fisheries. Three marine mammals were observed entangled in 
nets, none of which were beluga whales.
    Personal-use gillnet fisheries also occur in Cook Inlet, and have 
been subjected to many changes since 1978 (Ruesch and Fox, 1999), as 
summarized in Brannian and Fox (1996). The most consistent personal-use 
fishery is the use of single 10-fathom gill nets for salmon in the 
Tyonek Subdistrict of the Northern District (Ruesch and Fox, 1999). 
Personal-use gill nets have also been allowed within waters 
approximately 1.5 miles (2.4 km) of the Kasilof River. In 1995, 
personal-use gill nets were allowed in most areas open to commercial 
salmon set gillnet fishing. Most of this area was closed to personal 
gill net use in 1996. Personal-use salmon set gillnet fisheries are 
also found in the Port Graham subdistrict of lower Cook Inlet. NMFS is 
unaware of any beluga whales injured or killed in the Cook Inlet 
personal use/subsistence gillnet fisheries.
    In summary, beluga whales apparently were caught in fishing nets 
from 1979 to 1983. None have been included in fisher self-reports since 
the late 1980s. Furthermore, in the fisheries in which observers were 
placed since 1990 (including those for which mortality was reported in 
the early 1980s), no beluga whales have been observed entangled in nets 
or close enough to a net to be described as an interaction. NMFS 
considers that the set and drift gillnet fisheries may occasionally 
cause mortality and serious injury of marine mammals; however, there is 
a remote likelihood that other fisheries operating in CI will kill or 
seriously injure a marine mammal incidental to their operations. 
Because no CI beluga have been reported or observed to have been killed 
or seriously injured incidental to the gillnet fisheries, the working 
estimate for mortality incidental to fishing operations would be that 
no beluga have been killed in CI since 1990. None of the more than 590 
beluga whales that have stranded in CI were entangled in fishing gear; 
therefore, the stranding data support the working estimate of no 
incidental mortality. Therefore, based upon the best available 
information, NMFS does not believe that mortality incidental to 
commercial fishing operations is having, or has had, a significant 
impact on the CI beluga whale stock.
    Oil Spills: Oil production, refining, and shipping occur in Cook 
Inlet. Therefore, oil and other hazardous substances may be spilled 
and, thus, impact the CI beluga whale stock. The Outer Continental 
Shelf Environmental Assessment Program estimated that 21,000 barrels of 
oil were spilled in the Inlet between 1965 and 1975, and 10,000 barrels 
were spilled from 1976 to 1979 (MMS, 1996). In July, 1987, the tanker 
Glacier Bay struck an unchartered rock near Nikiski, Alaska, 
discharging an estimated 1,350 to 3,800 barrels of crude oil into the 
inlet (USCG, 1988). Beluga whales are commonly found in the area of 
this spill.
    There are no data available that describe behavioral observations 
or deleterious effect of these spills on beluga whales nor that 
accurately predict the effects of an oil spill on beluga whales. Some 
generalizations, however, can be made regarding impacts of oil on 
individual whales based on present knowledge.
    An oil spill could result in a beluga whale contacting or ingesting 
the oil or suffering respiratory distress from hydrocarbon vapors. The 
spill may also contaminate food sources or displace the whales from 
feeding areas. Whales could be affected through residual oil from a 
spill even if they were not present during the oil spill. The most 
likely effects of oil would be irritation of the respiratory membranes 
and

[[Page 38785]]

absorption of hydrocarbons into the bloodstream (Geraci, 1990).
    If an oil spill were concentrated in open water (e.g. within tide 
rips), a beluga whale might inhale enough vapors from a fresh spill to 
affect its health. No reliable data exist on the effects of petroleum 
vapor inhalation on cetaceans; however, inhalation of vapors in excess 
of 10,000 ppm is fatal to humans (Ainsworth, 1960; Wang and Irons, 
1961). Inhalation of petroleum vapors can cause pneumonia in humans and 
animals due to large amounts of foreign material (vapors) entering the 
lungs (Lipscomb et al., 1994). Although pneumonia was not found in sea 
otters that died after the Exxon Valdez oil spill, inhalation of vapors 
was suspected to have caused interstitial pulmonary emphysema 
(accumulation of bubbles of air within connective tissues of the 
lungs). Crude oil evaporation rates are greatest during the first few 
days after an oil spill (Meilke, 1990).
    Whales may also contact oil as they surface to breathe, but the 
effects of oil contacting skin are largely speculative. Experiments in 
which bottlenose dolphins were exposed to petroleum products showed 
transient damage to epidermal cells, and that cetacean skin presents a 
formidable barrier to the toxic effects of petroleum (Bratton et al., 
1993). Geraci and St. Aubin's (1985) investigations found that exposure 
to petroleum did not make a cetacean vulnerable to disease by altering 
skin microflora or by removing inhibitory substances from the 
epidermis.
    Geraci (1990) reviewed a number of studies pertaining to the 
physiologic and toxic impacts of oil on whales and concluded no 
evidence exists that oil contamination had been responsible for the 
death of a cetacean. Cetaceans observed during the Exxon Valdez oil 
spill in Prince William Sound made no effort to alter their behavior in 
the presence of oil (Harvey and Dahlheim, 1994; Loughlin, 1994).
    Following the Exxon Valdez oil spill, daily vessel surveys of 
Prince William Sound were conducted from April 1 through April 9, 1989, 
to determine the abundance and behavior of cetaceans in response to the 
oil spill (Harvey and Dahlheim, 1994). During the nine surveys, 80 
Dall's porpoise, 18 killer whales, and two harbor porpoise were 
observed. Oil was observed on only one individual, which had oil on the 
dorsal half of its body and appeared stressed due to its labored 
breathing pattern. A total of 37 cetaceans were found dead during and 
after the oil spill, but cause of death could not be linked to exposure 
to oil (Loughlin, 1994). Dalheim and Matkin (1994) reported 14 killer 
whales missing from a resident Prince William Sound pod over a period 
coincident with the Exxon Valdez oil spill. They noted that nearly all 
resident killer whales likely swam through heavily oiled sections of 
the sound and that the magnitude of that loss was unprecedented. 
Dalheim and Matkin concluded a correlation existed between the loss of 
these whales and the spill, but they could not identify a cause-and-
effect relationship.
    Toxicity of crude oil decreases with time as the lighter, more 
harmful, aromatic hydrocarbons, such as benzene, evaporate. Acute 
chemical toxicity (lethal effects) of the oil is greatest during the 
first month following a spill. Sublethal effects may be observed in 
surviving birds, mammals, and fish for years after the spill. Sublethal 
and chronic effects include reduced reproductive success, blood 
chemistry alteration, and weakened immunity to disease and infections 
(Spies et al., 1996).
    Contaminated food sources and displacement from feeding areas may 
also occur as a result of an oil spill. Over a 3-month period, Caldwell 
and Caldwell (1982) fed 335 ml of hydraulic oil to bottlenose dolphins. 
The dolphins did not reject the fish containing oil capsules. They were 
necropsied after the experiment, and no lesions attributable to oil 
were detected.
    These studies indicate that an oil spill could have an effect on 
beluga whales if one were to occur. However, no significant impact on 
beluga whales can be attributed to oil spills or production in CI 
despite high levels of oil production, refining, and transport within 
the inlet and its watershed. Therefore, at current levels of activity, 
oil and gas exploration and development are not expected to have a 
significant impact on the CI beluga stock.
    The oil and gas industry has a history of compliance with the MMPA 
and ESA for their operations in Alaska, and the MMPA provides a 
regulatory regime to ensure that the taking of marine mammals 
incidental to commercial activity would have no more than a negligible 
impact on marine mammals. Furthermore, the MMPA provisions that 
establish this regime include a requirement that the activity must not 
have an unmitigable adverse impact on the availability of marine 
mammals for subsistence uses. Consequently, there is an adequate 
regulatory mechanism to address future expansion of the oil and gas 
industry in Cook Inlet.
    Other Pollutants: The principle sources of pollution in the marine 
environment are (1) discharges from municipal waste-water treatment 
systems; (2) discharges from industrial activities that do not enter 
municipal treatment systems (petroleum and seafood processing); (3) 
runoff from urban, mining, and agricultural areas; and (4) accidental 
spills or discharges of petroleum and other products. Natural and man-
made pollutants entering the inlet are diluted and dispersed by the 
currents associated with the tides, estuarine circulation, wind-driven 
waves and currents (MMS,1996).
    Pollutants may be classified as chemical, physical, and biological. 
Chemical pollutants include organic and inorganic substances. The 
decomposition of organic substances uses oxygen and, if enough organic 
material is present, the concentration of oxygen could be reduced to 
levels that would threaten or harm oxygen-using inhabitants of the 
water column.
    The discharge of soluble inorganic substances may change the pH or 
the concentration of trace metals in the water, and these changes may 
be toxic to some marine plants and animals. Physical pollutants include 
suspended solids, foam, and radioactive substances. Suspended solids 
may inhibit photosynthesis, decrease benthic activity, and interfere 
with fish respiration. Foam results from surface active agents and may 
cause a reduction in the rate of oxygen-gas transfer from the 
atmosphere into the water. Biological pollutants may promote waterborne 
disease by adding pathogens to the receiving waters or may stimulate 
excessive biological growth.
    i. Produced Waters: Produced waters constitute the largest source 
of man-made substances discharged into the waters of Cook Inlet. The 
characteristics of the produced waters, as well as other discharges, 
except drilling muds and cuttings described in this section, are based 
on information obtained during the Cook Inlet Discharge Monitoring 
Study, conducted between April 10, 1988, and April 10, 1989 (EBASCO 
Environmental, 1990a; 1990b). These waters are part of the oil/gas/
water mixture produced from the wells and contain a variety of 
dissolved substances. Also, chemicals are added to the fluids as part 
of various activities including water-flooding; well work-over, 
completion, and treatment; and the oil/water-separation process. Before 
being discharged into Cook Inlet, produced waters pass through 
separators to remove oil and gas. The treatment process removes 
suspended oil particles from the waters, but the effluent contains 
dissolved hydrocarbons or those held in colloidal

[[Page 38786]]

suspension (Neff and Douglas, 1994). Although the discharge of produced 
waters is an issue of concern, the toxicity of produced waters, as 
indicated in the monitoring study, ranged from only slightly toxic to 
practically nontoxic (to shrimp) and would not, therefore, be expected 
to impact beluga whales.
    ii. Drilling Muds and Cuttings: A general permit issued by the 
Environmental Protection Agency (EPA) authorizes the discharge of 
approved generic drilling muds and additives into waters of Cook Inlet. 
Drilling muds consist of water and a variety of additives; 75 to 85 
percent of the volume of most drilling muds currently used in Cook 
Inlet is water (Neff, 1991).
    When released into the water column, the drilling muds and cuttings 
discharges tend to separate into upper and lower plumes (Menzie, 1982). 
The upper plume contains the solids and water-soluble components that 
separate from the material of the lower plume and are kept in 
suspension by turbulence.
    The discharge of drilling muds at surface ensures dispersion and 
limits the duration and amount of exposure to organisms (NRC, 1983). 
Most of the solids in the discharge, >90 percent, descend rapidly to 
the sea floor in the lower plume. The sea floor area in which the 
discharged materials are deposited depends on the water depth, 
currents, and material particle size and density (NRC, 1983). In most 
Outer Continental Shelf areas, the particles are deposited within 500 
ft below the discharge site; however in Cook Inlet, which is considered 
to be a high-energy environment, the particles are deposited in an area 
that is >500 ft below the discharge site (NRC, 1983). Small particles 
of drilling mud (several centimeters in diameter) also may settle to 
the sea floor immediately following a discharge but would disperse 
within a day.
    Since 1962, 546 wells have been drilled in Cook Inlet. One 
Continental Offshore Stratigraphic Test well and 11 exploration wells 
were drilled in Federal waters and 75 exploration and 459 development 
and service wells were drilled in State waters, mainly in upper Cook 
Inlet (State of Alaska, AOGCC, 1993). From 1962 through 1970, 292 wells 
were drilled, including 62 for exploration and 230 for development and 
service (State of Alaska, AOGCC, 1993). From 1971 through 1993, the 
number of wells drilled per year has ranged from 3 to 20, with an 
annual average of about 11.
    The toxicity of the muds used to drill 39 production wells in Cook 
Inlet between August 1987 and February 1991 ranged from 1,955 to 
>1,000,000 ppm for a marine shrimp (Neff, 1991). Concentration levels 
>10,000 ppm are considered practically nontoxic and between 1,000 and 
10,000 ppm are slightly toxic. The percentages of the wells with 
toxicities >10,000 ppm was 89 percent of the total number. Therefore, 
89 percent of the muds from this production were considered non-toxic 
to shrimp. Given the results of this study, the toxicity levels of 
production muds do not likely impact beluga whales.
    iii. Heavy Metals and Organic Compounds: NMFS has obtained 
biological samples from CI beluga whales under protocols developed for 
the Alaska Marine Mammal Tissue Archival Project. From these 
collections, selected tissues have been analyzed for PCBs and trace 
elements, including heavy metals in liver and kidneys. As has been 
found for beluga whales from other regions in Alaska, Canada, and 
Greenland, the CI beluga whales were found to have relatively high 
concentrations of mercury, selenium, and silver in their livers. These 
levels are much higher than one finds in ringed seals, harbor seals, 
bowhead whales, and walrus in Alaska. However, as compared to other 
Alaskan beluga whale stocks (Eastern Chukchi Sea and Eastern Beaufort 
Sea), the levels of these three metals, as well as cadmium, were much 
lower in the Cook Inlet animals (Becker et al., in press). These 
elements accumulate in liver tissue and increase with age of the 
animal. The uptake and bioaccumulation of these elements are determined 
by many factors, and the diet of the animal plays a major role (Becker 
et al., In press).
    Concentrations of PCBs and chlorinated pesticides were found to be 
lower in the blubber of beluga whales from CI than from beluga whales 
from Point Lay (Eastern Chukchi Sea stock) and Point Hope (Eastern 
Beaufort Sea stock), Alaska. Generally, CI beluga whales are 
``cleaner'' than other beluga whale populations throughout the Arctic 
and the eastern United States. A comparison of tissue concentrations of 
persistent organic contaminants, heavy metals, and other elements 
between CI beluga whales and other beluga whales in North America 
confirms that the CI animals are distinct from other populations and 
stocks of this species. The CI animals had much lower concentrations of 
PCBs and chlorinated pesticides than those which have been reported 
from the Eastern Beaufort Sea and Eastern Chukchi Sea stocks. Due to 
the lower concentrations of PCBs and chlorinated pesticides in CI 
beluga whales, their effects on the animals' health may be less 
significant for CI animals than for the other beluga whale stocks.
    iv. Municipal Wastes and Urban Runoff: Ten communities currently 
discharge treated municipal wastes into Cook Inlet. Wastewater entering 
these plants may contain a variety of organic and inorganic pollutants, 
metals, nutrients, sediments, and bacteria and viruses. Of these, the 
Municipality of Anchorage's John M. Asplund Treatment Center, English 
Bay, Port Graham, Seldovia, and Tyonek use only primary treatment, and 
Eagle River, Girdwood, Homer, Kenai, and Palmer use secondary 
treatment. The maximum permitted wastewater discharge for Anchorage is 
44 million gallons per day (GPD), and that for other communities ranges 
from 10 thousand to 1.6 million GPD. The EPA is currently in the 
process of re-issuing the Asplund facility discharge permit.
    For Anchorage, the effluent limitations requested for the daily 
discharge of organic material, such as sewage (often reported as 
Biological Oxygen Demand (BOD)), and total suspended solids in the 
wastewater are 90,100 pounds per day (lb/d) and 57,000 lb/d, 
respectively. Based on the daily maximums presently permitted for these 
ten communities, they could release about 16.38 million pounds of BOD 
and 13.82 million pounds of suspended solids into CI annually.
    Determining the impact of municipal discharges on the beluga whale 
stock is not possible. The rivers entering Knik Arm alone carry an 
estimated 20 million tons of sediment annually (Gatto, 1976). 
Therefore, the suspended loading that naturally occurs in the extreme 
upper inlet parallels that discharged by the Municipality of Anchorage. 
The impact of the sediment loading by discharges on beluga whales is 
not known. Given the relatively low levels of contaminants found in CI 
beluga whale tissues, municipal discharge levels are not believed to be 
having a significant impact on the beluga whale population.
    Noise: Upper Cook Inlet is one of the most industrialized and 
urbanized regions of Alaska. As such, noise levels may be high. The 
petitioners recognized this as a factor that might cause beluga whales 
in Cook Inlet to avoid using parts of their available habitat due to 
noise levels. The common types of noises in upper Cook Inlet include 
sounds from vessels, aircraft, construction equipment (e.g., diesel 
generators, bulldozers, and compressors) and from activities such as 
pile-driving.

[[Page 38787]]

    Any sound signal in the ocean is detectable by marine mammals only 
if the received level of the sound exceeds a certain detection 
threshold (Richardson et al., 1995). If the sound signal reaching a 
marine mammal is weaker than the background noise level, it may not be 
detected. This concept is important in understanding the effects of 
noise on whales in at least two areas: (1) The audibility of an 
industrial noise is dependent in part on the background (ambient) noise 
levels, and (2) as industrial noises add to the level of background 
noise, they may prevent or diminish the effectiveness of communication 
among whales or between whales and their environment.
    Considering the depth of the animal being exposed to noise is also 
important. The noise level from a source when measured within 3 ft (1 
m) of the surface is significantly lower than the noise level when 
measured at depths of 16 to 33 ft (5 to 10 m). For example, a marine 
mammal at the surface will experience a received-noise level 
approximately 30 dB less than the level for an animal at the same 
distance from the source, but at a depth of 33 ft (10 m).
    A noise of sufficient intensity must also be in the range of 
frequencies that beluga whales can hear. Their peak hearing is within 
the range of about 10,000 to 90,000 Hz (Richardson et al., 1995). 
Noises outside, but near, this range can be heard but not as well as 
those within the range.
    i. Aircraft Noise: Richardson et al., (1995) and Richardson and 
Malme (1993) provided summaries on aircraft sound in water. The surface 
area of sound transmission from air to water is described by a cone 
where the apex of the cone is the aircraft, and the cone has an 
aperture of 26 degrees. In general, underwater noise from aircraft is 
loudest directly beneath the aircraft and just below the water's 
surface, and sound levels from the same aircraft are much lower 
underwater than the sound levels in air. The duration of the noise is 
short because noise is generally reflected off the water surface at 
angles greater than 13 degrees from vertical. Helicopters tend to be 
noisier than fixed-wing aircraft. The amount of noise entering the 
water depends primarily on aircraft altitude, sea surface conditions, 
water depth, and bottom conditions (Richardson et al., 1995).
    Monitoring results of aircraft noise levels are complicated due to 
variables that are inherent in such analyses, including monitoring 
equipment averaging times, aircraft types and operations (i.e., power 
setting, propeller pitch, altitude changes), meteorological conditions, 
and aircraft altitude. There are no data on the level of received sound 
that disturb or do not disturb toothed whales (Richardson et al., 
1995). The response of beluga whales to airplanes and helicopters 
varies with social context, distance from the aircraft, and aircraft 
altitudes. Because the underwater noise generated by an aircraft is 
greatest within the 26 degree cone directly beneath the craft, whales 
often react to an aircraft as though startled, turning or diving 
abruptly when the aircraft is directly overhead. Richardson et al., 
(1995) reports beluga whales not reacting to aircraft flying at 500 m, 
but, when the aircraft was at lower altitudes (150-200 m) the whales 
dove for longer periods and sometimes swam away. Feeding beluga whales 
were less prone to disturbance. NMFS aerial surveys are normally flown 
at an altitude of 150 m, using fixed-wing single- and twin-engine 
aircrafts. Beluga whales are rarely observed to react to even repeated 
overflights at this altitude.
    The main approaches to the Anchorage International Airport, 
Elmendorf Air Force Base, and Merrill Field are at least partially over 
the upper Inlet, including Knik Arm. Commercial and military jet 
airplanes often fly over these waters at relatively low altitudes. 
Despite this traffic, beluga whales are common to these same waters and 
are often observed directly under the approach corridors off the north 
end of International Airport and the west end of Elmendorf Air Force 
Base.
    ii. Ship and Boat Noise: Ships and boats create high levels of 
noise both in frequency content and intensity level, and this noise can 
be detected at great distances. High-speed vessels tend to be much 
noisier than slow-speed vessels. Small commercial ships are generally 
diesel-driven, and the highest 1/3-octave band is in the 500 to 2,000 
Hz range. Tugs can emit high levels of underwater noise at low 
frequencies. Small outboard motors, such as those commonly used for 
recreation in the upper Inlet, typically produce noise at much higher 
frequencies (e.g. 6300 Hz) and may have the highest potential to 
interfere with beluga whales.
    iii. Noise from Offshore Drilling and Production: Sound produced by 
oil and gas drilling and production in Cook Inlet may be a significant 
component of the noise in the local marine environment. Gales (1982) 
summarized noise from eleven production platforms. The strongest tones 
from four production platforms were at very low frequencies (between 4 
and 38 Hz).
    Various studies and observations suggest that beluga whales are 
relatively unaffected by these activities. Belugas are regularly seen 
near drill sites in Cook Inlet (Richardson et al., 1995:282; McCarty 
1981). Stewart et al., (1982) reported that beluga whales in Snake 
River, Alaska, did not appear to react strongly to play-backs of oil 
industry-related noise at levels up to 60 dB above ambient. Stewart, 
Awbrey, and Evans (1983) conducted similar playback experiments in 
Nushagak Bay, Alaska, in 1983 and found that beluga whale movement and 
general activity were not greatly affected, especially when the source 
of the noise was constant.
    Beluga whales did swim faster and respiration rates sometimes 
increased within 1.5 km of the sound projector. During playback 
experiments in the Beaufort Sea, migrating beluga whales approached the 
sound projector and showed no overt reactions until within 200-400 
meters, even though the noise was detectable by hydrophone up to 5km 
away (Richardson et al., 1990, 1991). Richardson et al. (1995) observed 
these results may be an example of the degree to which beluga whales 
can adapt to repeated or on-going man-made noise when it is not 
associated with perceived negative consequences.
    iv. Noise from Seismic Geophysical Exploration: Geophysical 
exploration in CI for oil and gas deposits is often accomplished using 
boat-based seismic survey. Seismic surveys produce some of the loudest 
noises in the marine environment. These surveys use compressed air to 
generate short, intense bursts of underwater energy that may propagate 
for great distances. The noise produced by these surveys is at very low 
frequencies, often less than 100 Hz, which is below the optimum hearing 
range of beluga whales.
    Higher frequencies are absorbed in water more than lower 
frequencies. Seismic sound propagation is also dependent on bottom 
structure, and soft substrates such as those found in the upper inlet 
absorb sound better than hard, reflective material. Finally, seismic 
sound is poorly transmitted through shallow waters, such as exists near 
the mouths of the Susitna River. Therefore, seismic exploration in the 
upper inlet may be poorly transmitted through the water and may have 
little direct impact on beluga whales. However, seismic sound may be 
very loud, with some sound energy at higher frequencies that overlap 
the peak auditory range of the beluga whale. Beluga whales would likely 
hear, and may react to, an active seismic vessel in certain areas and 
under certain conditions. Presently, no data exist to

[[Page 38788]]

characterize the noise from seismic exploration in Cook Inlet. NMFS 
observed beluga whales in Cook Inlet approximately 20 nmi from an 
active seismic vessel in June 1995, and reported no reactions (Moore et 
al., In press).
    v. Summary of the Impacts of Noise on CI Beluga Whales: Because 
sound is a critical sense to beluga whales, high levels of noise may 
have significant and adverse effects. However, evaluation and 
prediction of human-made noise impacts on marine mammals is difficult. 
Estimating acoustic environmental impact on animals requires 
interpretation and integration of results from many disciplines 
including, but not limited to, the study of how sound waves interact 
with the environment (physical acoustics), how animals hear sounds 
(anatomy and physiology), and how animals use sounds for behaviors such 
as communicating, navigating, and finding food (bio-acoustics and 
behavioral ecology).
    One of the most obvious behavioral responses to industrial noise is 
to avoid the area by swimming away from or detouring around the noise 
source. Two other behavioral responses, habituation and sensitization, 
also are important when discussing the potential reactions of beluga 
whales to multiple exposures to a noise stimulus.
    Habituation refers to the condition in which repeated experiences 
with a stimulus that has no important consequence for the animal leads 
to a gradual decrease in response. Richardson et al., (1995) provided 
examples of beluga whales becoming habituated to noise from frequent 
vessel traffic in the St. Lawrence River and to salmon fishing boats in 
Bristol Bay. Elsewhere, beluga whales have been observed to tolerate 
large vessel traffic (e.g., in the St. Lawrence River), and intensive 
commercial fishing vessel activity (in Bristol Bay). Beluga whales are 
commonly found immediately adjacent to the Port of Anchorage during 
summer months, often very near containerships and tugs which are 
docking, maneuvering, or underway.
    Sensitization refers to the situation in which the animal shows an 
increased behavioral response over time to a stimulus associated with 
something that has an important consequence for the animal. Although 
whales tend to show little response to vessels that move slowly and are 
not heading toward them (Richardson et al., 1995), beluga whales will 
often leave an area in which vessel noise is related to hunting 
(Sergeant and Brodie 1975; Huntington, 1999). Native hunters in Cook 
Inlet have also reported that beluga whales actively avoid approaching 
skiffs powered by outboard motors, particularly during the summer and 
fall. Many researchers report that beluga whales commonly flee from 
fast and erratically moving small boats.
    The variable response that beluga whales show to vessels indicates 
that these whales (1) are not disturbed by such activity, (2) habituate 
to such activity, (3) or (from Blane, 1990) continue to use some areas 
for feeding and traveling because these areas are critical to their 
survival. If the last alternative is actually the case, then the 
whales' lack of avoiding areas where vessel traffic routinely occurs 
should not be interpreted as the whales being undisturbed.
    Beluga whales did not abandon an area within upper Cook Inlet even 
when they were being hunted and pursued (Shelden, 1995). A large group 
of beluga whales remained in or near the mouth of the Little Susitna 
River for several weeks during June of 1999. During this period, many 
small motor boats sport fishing for chinook salmon moved between 
Anchorage and the Little Susitna river.
    CI beluga whales appear to display a strong fidelity to certain 
sites. They are similar in this respect to the Bristol Bay stock of 
beluga whales. It is generally believed in western and northern Alaska, 
however, that modernization of coastal communities, with its associated 
noise, is causing beluga whales to pass farther from shore and to 
abandon traditional sites (Burns and Seaman, 1986).
    To what extent, if any, noise in the Cook Inlet area has had an 
effect on the current distribution or trends of these animals is not 
clear. Over the long-term, disturbance from noise, if it keeps belugas 
from foraging sites, could have an effect which would be expressed as a 
lower productivity rate due to low level, or chronic, stress symptoms 
that would inhibit successful foraging. However, no indication exists 
that this is happening. Given the fidelity of these whales to specific 
foraging sites in the upper inlet, the need to prey on available forage 
is apparently stronger than the impacts of potential disturbance from 
noise, or other factors, in those locations. Such site fidelity has 
also been witnessed in other whale populations.
    Commercial Harvest: Klinkhart (1966) reported that a commercial 
harvest for beluga whales occurred in Cook Inlet in the 1930s. This 
harvest took about 100 beluga whales. These whales were netted in the 
Beluga River, and used for meat and oil. Guided sport hunting for CI 
beluga whales was also popular during the 1960s (Anchorage Daily Times, 
1965); however, there is no information on the level of this harvest. 
These activities have not had an impact on CI beluga whales in recent 
decades.
    Ship Strikes: The presence of beluga whales in and near river 
mouths entering upper Cook Inlet predisposes them to strikes by high 
speed watercraft associated with sport and commercial fishing and 
general recreation. The mouths of the Susitna and Little Susitna River 
in particular are areas where such vessel traffic and whales commonly 
occur. NMFS enforcement agents investigated a report of a jet skier 
approaching and striking belugas in Knik Arm in 1994. A stranded beluga 
whale examined in 1999 had an injury consistent with an old propeller 
injury (Burek, 1999b). Data are not available to quantify the impact of 
vessel strikes on the CI stock of beluga whales, but vessel strikes are 
not believed to have a significant impact on the population.
    Tourism: Tourism is a growing component of the state and regional 
economies, and wildlife viewing is an important component of this 
activity. Many tour buses routinely stop at several wayside sites along 
Turnagain Arm in the summer, where beluga whales are often seen.
    Presently no vessel-based commercial whale watching ventures 
operate in upper Cook Inlet. However, the popularity of whale watching 
and the close proximity of the activity, and beluga whales, to 
Anchorage suggests such operations may begin in the near future. Should 
whale watching operations develop in CI, NMFS plans to monitor them.
    Prey Availability: Beluga whales actively feed in the upper inlet 
where prey species concentrate. The arrival of beluga whales into the 
northern Inlet coincides with the eulachon migration. Soon after the 
eulachon migration, salmon out-migrations and the first chinook salmon 
spawning runs begin.
    NMFS biologists sampled stomachs from subsistence-harvested whales 
and found that many contain salmon and eulachon. Native hunters' 
observations indicate that the whales' distribution in Cook Inlet is 
dependent upon fish runs.
    NMFS placed a radio transmitter on an adult beluga whale in 1999, 
and this animal remained in or near the mouth of the Little Susitna 
River for several weeks between May and June in 1999. This whale was 
observed swimming among a group of approximately 90 beluga whales. This 
group moved into the central region of the upper Inlet and into Knik 
Arm during the times coho salmon were returning to the Little Susitna 
River.

[[Page 38789]]

    Several commenters stated their belief that fish runs have declined 
dramatically within Cook Inlet during the last decade, and that this 
decline has caused fewer beluga whales to visit the upper Inlet. Native 
observations (Huntington, 1999) also suggest that severe declines in 
fish runs have occurred in Cook Inlet during the past few years. 
Huntington reported that these changes resulted in a redistribution of 
the beluga whales and the subsequent decline of beluga whales in Cook 
Inlet. The available evidence, however, shows little trend in the size 
of fish runs and, in some cases, contradicts these observations.
    Several waterways entering CI are monitored for anadromous fish 
migrations by the Alaska Department of Fish and Game (ADFG), and NMFS 
reviewed salmon escapement for selected species for three such index 
streams, the Yentna, Little Susitna, and Kenai Rivers (Fox and Shields, 
2000).
    Sockeye returns to the Yentna River fluctuate from 1981 through 
1999, but no trend is apparent. The returns for 1997 through 1999 are 
above average for the entire period, but decline from a peak in 1997 to 
lower levels in 1998 and 1999.
    Sockeye returns to the Kenai River are relatively consistent from 
1978 through 1999, with the later years having slightly larger runs 
than early in the reporting period. Returns showed peaks in 1987 and 
1989, which were much higher than any other year in the reporting 
period. The harvest of sockeye salmon in the last 10 years has exceeded 
the 44-year average harvest.
    Coho returns to the Little Susitna River show an increasing trend 
from 1986 through 1991 and a decline from 1993 through 1999. The 
escapements in 1998 and 1999 were higher than in 1986 and 1987.
    Other prey species may be important to CI beluga whale, but there 
are little quantitative data to evaluate stock abundance and trends. 
Herring occur in concentrations and are rich in lipids (high caloric 
value). During a study of salmon smolts within the upper Inlet, 
juvenile herring (ages 0 and 1) were the most consistently caught 
species, and were second in abundance of all species encountered 
(Moulton, 1994). Historically, the herring run along the western side 
of lower CI has supported a local commercial fishery for herring roe. 
In 1999, the roe fishery was closed due to declining herring biomass, 
which ADFG estimated as 6,000 to 13,000 tons (ADFG, 1999b).
    Eulachon also migrate into rivers within CI. A commercial venture 
to harvest eulachon in the lower Susitna River operated in 1999. The 
fishery was limited to 50 tons (ADFG, 1999a) and achieved this level of 
harvest rapidly.
    The available information does not provide a clear quantitative 
assessment on trends of fish stocks in CI. However, observations by 
NMFS scientists and Alaska Natives provide some indication of the 
abundance and availability of food to CI beluga whales. From records on 
stranded whales, NMFS scientists have noted a large proportion of gray 
(juvenile) beluga whales in the stock. Huntington (1999) reported that 
Alaska Native hunters and elders also stated that the majority of 
whales are gray and that CI beluga whales are becoming sexually mature 
when gray, which is not the normal pattern.
    If the population were food-stressed, the expected population 
response would be for calf survival to be decreased and for the age of 
sexual maturity to be delayed. The higher proportion of juvenile whales 
and the decreased age of first reproduction, as indicated by the 
observation that gray beluga whales are producing calves, suggest that 
nutrition is not limiting the population.

Discussion

    The ESA instructs the Federal government to conduct a review of the 
status of the species and include efforts by any state or foreign 
nation to protect such species within any area under its jurisdiction 
or the high seas. NMFS conducted such a status review of CI beluga 
whales to determine whether the population should be listed as 
threatened or endangered under the ESA or designated as depleted under 
the MMPA.
    NMFS conducted annual surveys of the Cook Inlet beluga whale 
between 1994 and 1998. The results show a sharp decline in estimated 
abundance, with the 1998 estimate (347 animals) nearly 50 percent lower 
than the 1994 estimate (653 animals).
    The mean subsistence harvest level of CI beluga whales from 1995 
through 1998 was 77 whales per year. There was no harvest in 1999, and 
NMFS is working with CIMMC to authorize the harvest of one whale in 
2000. The harvest, which has been identified as the only factor that 
can account for the observed decline of the CI beluga stock, is being 
controlled through Pub. L. 106-31 and will be controlled through 
regulatory mechanisms that are available under the MMPA. The Pub. L. 
106-31 will expire on October 1, 2000, and the protection will stop 
unless the legislation is extended or NMFS issues regulations that 
provide a long-term limitation on the harvest to promote recovery of 
the stock.
    In simulation modeling efforts, NMFS scientists have demonstrated 
that the stock is not likely to continue to decline if the harvest is 
controlled. Breiwick and DeMaster (1999) showed that a stock with at 
least 300 individuals and a positive intrinsic growth rate, like that 
of beluga whales, would not go extinct due to stochastic events.
    Using a logistic model with productivity values taken from the 
current CI beluga stock assessment report and an assumed carrying 
capacity of 1,300 whales, NMFS compared the rates of population growth 
using no harvest and a harvest of 2 whales per year. The no-harvest 
model indicated that the stock would be expected to double in about 2 
decades. The latter model predicted that the harvest of 2 whales per 
year would have a negligible impact on the stock (i.e., such a harvest 
regime would not cause a significant delay in recovery compared to the 
no-harvest model).
    The habitat of the stock has not been, nor is it likely to be, 
destroyed, modified or curtailed in sufficient extent to cause the 
stock to be in danger of extinction. The stock has not been 
overutilized for commercial, recreational, scientific or educational 
purposes. The effects of disease or predation are not well documented 
but are believed to be minimal. There is an adequate regulatory 
mechanism to control the subsistence harvest, which is the only factor 
that can account for the observed decline, through October 1, 2000. In 
addition, the MMPA provides an adequate mechanism to ensure that future 
commercial activity in CI would have no more than a negligible impact 
on the stock. Other natural or manmade factors (subsistence harvest) 
have affected the stock's continued existence; however, the current 
(since 1999) level of harvest would not have a significant adverse 
impact on the continued existence of CI beluga whales.

Determination

    Based on the best available scientific information, NMFS has 
determined that the CI beluga whale population has declined to a level 
that is considered depleted under the MMPA. However, after taking into 
account the information summarized above, NMFS has determined that the 
stock is not in danger of extinction nor is it likely to become so in 
the foreseeable future. Therefore, NMFS has determined that listing CI 
beluga whales under the ESA is not warranted at this time.
    NMFS remains concerned about the status of the CI beluga population 
and

[[Page 38790]]

will continue to include the population on the list of candidate 
species under the ESA. Furthermore, NMFS will continue to monitor the 
abundance and population trend of the stock and will re-evaluate its 
status as needed.

References

    A complete list of all cited references is available upon request 
(see FOR FURTHER INFORMATION CONTACT).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 
(6th Cir. 1981), NMFS has concluded that ESA listing actions 
are not subject to the environmental assessment requirements of NEPA. 
See NOAA Administrative Order 216-6.

Executive Order 12866 and Regulatory Flexibility Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final action is exempt from review under Executive 
Order 12866.

Executive Order 13132--Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, NMFS has conferred with State and local 
government agencies in the course of assessing the status of CI beluga 
whales. State and local governments have expressed support for the 
conservation of this stock of beluga whales. Dialogue with State and 
local agencies included an exchange and discussion of scientific 
information regarding beluga whales, factors that may be affecting 
them, and their status under the ESA and MMPA.

Executive Order 13084--Consultation and Coordination with Indian Tribal 
Governments

    E.O. 13084 requires that if NMFS issues a regulation that 
significantly or uniquely affects the communities of Indian tribal 
governments and imposes substantial direct compliance costs on those 
communities, NMFS must consult with those governments, or the Federal 
government must provide the funds necessary to pay the direct 
compliance costs incurred by the tribal governments. This action does 
not impose substantial direct compliance costs on the communities of 
Indian tribal governments. Accordingly, the requirements of section 
3(b) of E.O. 13084 do not apply to this action.
    Nonetheless, NMFS took several steps to inform affected tribal 
governments and solicit their input during development of this 
determination and addressed their input within announcement of the 
determination. One tribal government and CIMMC, an ANO representing 
several tribes within Cook Inlet, formally commented on the status 
review. NMFS discussed the status of the CI beluga whale stock with 
CIMMC and other tribally-authorized ANOs prior to and during the status 
review and plans to continue working with local tribally-authorized 
ANOs to develop and implement an effective program to control the 
harvest of CI beluga whales and promote recovery of the stock.

    Dated: June 15, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-15666 Filed 6-21-00; 8:45 am]
BILLING CODE 3510-22-F