[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Proposed Rules]
[Pages 19854-19862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7577]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 070319062-7062-01; I.D. 021607C]
RIN 0648-XB64


Endangered and Threatened Species; Proposed Endangered Status for 
the Cook Inlet Beluga Whale

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, NMFS, have completed a comprehensive status review of the 
Cook Inlet population of beluga whale (Delphinapterus leucas) under the 
Endangered Species Act (ESA). Based on the findings from the status 
review and consideration of the factors affecting this species, we have 
concluded the Cook Inlet beluga whale constitutes a distinct population 
segment (DPS) that is in danger of extinction throughout its range. 
Accordingly, we are now issuing a proposed rule to list the Cook Inlet 
beluga whale DPS as an endangered species. We are soliciting 
information on issues relevant to the listing of the Cook Inlet beluga 
whale DPS under the ESA. Although we are not proposing to designate 
critical habitat at this time, we are also soliciting information on 
essential physical and biological features of Cook Inlet beluga whale 
habitat.

DATES: Comments on this proposed rule must be received by close of 
business on June 19, 2007. Requests for public

[[Page 19855]]

hearings must be made in writing by June 4, 2007.

ADDRESSES: Send comments to Kaja Brix, Assistant Regional 
Administrator, Protected Resources Division, Alaska Region, NMFS, Attn: 
Ellen Sebastian. Comments may be submitted by:
     E-mail: [email protected]. Include in the 
subject line the following document identifier: Cook Inlet Beluga Whale 
PR. E-mail comments, with or without attachments, are limited to 5 
megabytes.
     Webform at the Federal eRulemaking Portal: 
www.regulations.gov. Follow the instructions at that site for 
submitting comments.
     Mail: NMFS, P. O Box 21668, Juneau, AK 99802
     Hand delivery to the Federal Building : NMFS, 709 W. 9\th\ 
Street, Juneau, AK.
     Fax: (907) 586-7012
    The proposed rule, status review, maps, a list of the references 
cited in this document, and other materials relating to this proposal 
can be found on the NMFS Alaska Region website http://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS, 222 West 7th Avenue, 
Anchorage, Alaska 99517, telephone (907) 271-5006; Kaja Brix, NMFS, 
(907) 586-7235; or Marta Nammack, (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On March 3, 1999, we received two petitions to list the Cook Inlet 
population of beluga whales as endangered under the ESA. The 
petitioners requested that we promulgate an emergency listing under 
section 4(b)(7) of the ESA, designate critical habitat for Cook Inlet 
beluga whales, and take immediate action to implement rulemaking to 
regulate the harvest of these whales. We issued a Final Rule on May 31, 
2000 (65 FR 34590), designating Cook Inlet beluga whales as depleted 
within the meaning of section 3(1) of the Marine Mammal Protection Act, 
as amended (MMPA) (below its Optimum Sustainable Population), and 
codified at 16 U.S.C. 1362(1), and the underlying regulations codified 
at 50 CFR Part 216. However, at that time, we determined that the Cook 
Inlet beluga whale DPS was not threatened or endangered under the ESA 
(65 FR 38778; June 22, 2000) because legislative and management actions 
had been taken to reduce subsistence harvests to levels that would 
allow recovery, such that the DPS did not meet the definition of 
threatened or endangered.
    The 2000 determination that ESA listing was not warranted was 
premised on at least two findings that justify further review. First, 
the only factor then known to be responsible for the decline in beluga 
abundance was subsistence harvest. Second, the 2000 Status Review used 
simulation modeling efforts that demonstrated this DPS was not likely 
to decline further if the harvest was reduced and an annual increase of 
2 to 6 percent were assumed. Abundance estimates since harvest 
management began in 1999 have declined at an average rate of 4.1 
percent per year, challenging the original findings.
    In addition, the International Union for the Conservation of Nature 
and Natural Resources (IUCN) assessed the status of the Cook Inlet 
beluga whale in 2005 (Lowry et al., 2006). The IUCN determined that 
this population had a 71 percent probability of having a negative 
growth rate (in 2005) and met its criteria for critically endangered 
status.
    In consideration of the factors described above, we initiated a 
second Status Review for the Cook Inlet beluga whale (71 FR 14836; 
March 24, 2006). In the 2006 Status Review, we developed population 
models that considered various types of mortality and fecundity effects 
in terms of the decline or growth and recovery of the Cook Inlet beluga 
whale DPS. In these models, NMFS scientists considered several effects, 
including: (1) An Allee effect on fecundity at small population sizes; 
(2) a depressed per capita fecundity or survival, as might occur from 
habitat degradation or pollution; (3) a constant mortality effect 
independent of population size, as would occur from predation; (4) a 
random mortality effect, as would result from environmental 
perturbations or catastrophic events such as oil spills or volcanic 
activity; and (5) demographic stochasticity due to reduced population 
size. Models with these different effects were compared to the beluga 
population estimates from 1994 to 2005 to determine which model best 
matched the data, and likely outcomes were determined for the 
population.
    Subsequently, we received a third petition to list the Cook Inlet 
beluga as an endangered species on April 20, 2006. That petitioner 
requested that we list the Cook Inlet beluga whale as endangered and 
designate critical habitat. The petitioner reviewed the biology and 
ecology of this population, its abundance and distribution, its 
designation as a DPS established through rulemaking in June 2000 (65 FR 
38780), and the reasons for the Cook Inlet beluga whale's status 
(organized by the factors listed in section 4(a) (1) of the ESA). In 
response to this petition, we published a 90-day finding that the 
petition presented substantial scientific or commercial information 
indicating that the petitioned action may be warranted (71 FR 44614; 
August 7, 2006). The second Status Review (NMFS, 2006) has now been 
completed and underlies this proposed rule.

Description, Taxonomy, and Distribution

    Beluga whales, members of the Family Monodontidae, are small, 
toothed whales that are white in color as adults. They are extremely 
social animals that are often found in groups numbering from ten to 
several hundred. Beluga whales are circumpolar in distribution and 
occur in seasonally ice-covered arctic and subarctic waters. Beluga 
whales occur along the coast of Alaska, except the Southeast panhandle 
region and the Aleutian Islands. Five distinct stocks are currently 
recognized in Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering 
Sea, Bristol Bay, and Cook Inlet (Angliss and Outlaw, 2005).

Abundance and Trends

    The Cook Inlet population of beluga whales has probably always 
numbered fewer than several thousand animals, but has declined 
significantly from its historical abundance. It is difficult to 
accurately determine the magnitude of decline because there is no 
available information on the beluga whale population that existed in 
Cook Inlet prior to development of the south-central Alaska sub-Region, 
or prior to modern subsistence whaling by Alaska Natives. With no 
reliable abundance surveys conducted prior to the 1990s, scientists 
must estimate historical abundance. Portions of Cook Inlet surveyed 
during 1979 resulted in an abundance estimate of 1,293 beluga whales 
(Calkins, 1989). Those data represent the best available information on 
historical abundance.
    We began comprehensive, systematic aerial surveys on beluga whales 
in Cook Inlet in 1993. These surveys documented a decline in abundance 
of nearly 50 percent between 1994 and 1998, from an estimate of 653 
whales to 347 whales (Hobbs et al., 2000).
    After legislative measures were established in 1999 to regulate 
subsistence harvests, we had expected the population to grow at a rate 
between 2 and 6 percent. However, abundance estimates from aerial 
surveys (1999-2006) indicate this level of growth did not occur. 
Differences in survey methods and analytical techniques prior

[[Page 19856]]

to the 1994 survey rule out a precise statistical assessment of trends 
using the available population estimate from 1979. However, a 
comparison of the 1,293 beluga estimate in 1979 to 302 belugas in 2006 
indicates a 77 percent decline in 27 years, but with unspecified 
confidence. This decline was mostly attributed to the subsistence 
harvest (through 1998); however, even with the restrictions on this 
harvest, the population continued to decline 4.1 percent per year.

Review of ``Species'' Identification Under the ESA

    The ESA requires the Secretary of Commerce to determine whether 
species are endangered or threatened. The authority to list a 
``species'' under the ESA is not restricted to species as recognized in 
formal taxonomic terms, but extends to subspecies and, for vertebrate 
taxa, to DPSs. NMFS and U.S. Fish and Wildlife Service (USFWS) issued a 
joint policy to clarify their interpretation of the phrase ``distinct 
population segment'' for the purposes of listing, de-listing, and 
reclassifying species under the ESA (61 FR 4722; February 7, 1996). The 
policy describes two elements to be considered in deciding whether a 
population segment can be identified as a DPS under the ESA: (1) 
discreteness of the population segment in relation to the remainder of 
the species to which it belongs; and (2) the significance of the 
population segment in relation to the remainder of the species to which 
it belongs.

DPS Analysis

    Under the first element of the joint DPS policy, we found during 
our previous status review that the Cook Inlet beluga whale population 
is discrete because it is markedly separated from other populations of 
the same species (65 FR 38778; June 22, 2000). Of the five stocks of 
beluga whales in Alaska, the Cook Inlet population was considered to be 
the most isolated, based on the degree of genetic differentiation and 
geographic distance between the Cook Inlet population and the four 
other beluga stocks (O'Corry-Crowe et al., 1997; 2002). This suggested 
that the Alaska Peninsula is an effective physical barrier to genetic 
exchange. The lack of beluga observations along the southern side of 
the Alaska Peninsula (Laidre et al., 2000) also supported this 
conclusion. Murray and Fay (1979) stated that the Cook Inlet beluga 
population has been isolated for several thousand years, an idea that 
has since been corroborated by genetic data (O'Corry-Crowe et al., 
1997).
    Under the second element, two factors we considered in determining 
whether this discrete population segment was significant to the 
remainder of the species were: (1) persistence in an ecological setting 
that is unique; and (2) whether the loss of the discrete population 
segment would result in a significant gap in the range of the species.
    Cook Inlet is a unique biological setting in terms of these belugas 
because it supports the southernmost of the five extant beluga 
populations in Alaska, and is the only water south of the Alaska 
Peninsula, or within the Gulf of Alaska, which supports a viable 
population of beluga whales. The ecological setting of Cook Inlet is 
also unique in that it is characterized as an incised glacial fjord, 
unlike other beluga habitats to the north. Cook Inlet experiences large 
tidal exchanges and is a true estuary, with salinities varying from 
freshwater at its northern extreme to marine near its entrance to the 
Gulf of Alaska. No similar beluga habitat exists in Alaska or elsewhere 
in the United States.
    In the 2000 Status Review, the Cook Inlet beluga whale population 
segment was considered to be the only beluga population that inhabits 
the Gulf of Alaska, and genetic data showed no mixing with other beluga 
population segments. Therefore, we determined that the loss of the Cook 
Inlet beluga population segment may result in the complete loss of the 
species in the Gulf of Alaska, with little likelihood of immigration 
from other beluga population segments into Cook Inlet.
    Because we found that the Cook Inlet beluga whale population was 
discrete and significant, we determined that it constituted a DPS under 
the ESA (65 FR 38778; June 22, 2000).

Research to Support Isolation Between the Cook Inlet DPS and Yakutat 
Belugas

    New research has become available since the species determination 
in the 2000 Status Review regarding the beluga whales that occur in 
Yakutat Bay, Alaska. These whales were included in the previous Cook 
Inlet beluga whale DPS. The Yakutat group consists of 12 belugas that 
are regularly observed in Yakutat Bay and have existed there as early 
as the 1930s (G. O'Corry-Crowe et al., 2006). Since the 2000 Status 
Review, we have obtained biopsy samples from five individual whales 
that provide genetic information on their relationship to other Alaska 
belugas. That evidence (NMFS, unpublished data) shows the Yakutat group 
demonstrates a high degree of similarity in genetic markers, indicating 
that members of the Yakutat group likely comprise a single lineage or 
family (O'Corry-Crowe et al., 2006). All five individuals possessed a 
common mtDNA haplotype (2), a maternal lineage that is also 
found within other Alaska beluga whale stocks, including the Cook Inlet 
DPS. While small sample size precluded meaningful statistical analyses 
of differentiation, Haplotype 2 occurs at a much lower 
frequency in Cook Inlet and other stocks. The samples were also 
analyzed for polymorphism at 8 independent microsatellite loci. 
Preliminary DNA fingerprint analysis of the samples from the five 
individuals indicates that these individuals share, on average, a 
higher proportion of alleles at these loci than the average for belugas 
in other areas, suggesting that the Yakutat whales may be relatively 
more closely related to each other than to belugas in other areas. As 
with the mtDNA analysis, small sample size precluded meaningful 
analyses of population structure. However, these genetic results 
indicate that the sampled whales differ from a random sample of the 
Cook Inlet population. This, taken with the sighting data and 
behavioral observations, suggests that a small group of beluga whales 
may reside in the Yakutat Bay region year-round, and that these whales 
are reproductive, have a unique ecology, and a restricted seasonal home 
range.
    Pursuant to the DPS Policy, geographic separation can also provide 
an indicator that population segments are discrete from each other. 
There is a large geographic separation (approximately 621 mi (1000 km)) 
between the Yakutat beluga group and the Cook Inlet beluga population 
segment, and no records exist that show any association between these 
whales. Therefore, we conclude that the Cook Inlet beluga population 
segment is discrete from this Yakutat beluga group.
    NMFS considers the viability of an isolated group of 12 belugas to 
be low. Therefore, the loss of the Cook Inlet beluga population segment 
may result in the complete loss of the species in the Gulf of Alaska, 
with little likelihood of immigration from other beluga population 
segments into Cook Inlet.
    Other beluga whale sightings have been recorded from the Gulf of 
Alaska, including Sitka, Prince William Sound, and Kodiak Island. 
However, none of these individuals represent persistent groups, and, 
therefore, are not considered part of the Cook Inlet DPS. We have 
insufficient information at this time to determine whether these whales 
are part of the Cook Inlet DPS.

[[Page 19857]]

DPS Conclusion

    Based on the best available scientific information, we had 
previously determined that Cook Inlet beluga whale is a DPS, and, 
therefore, a species under section 3(15) of the ESA (65 FR 38778; June 
22, 2000). At the time, the data were insufficient to distinguish the 
whales near Yakutat from the Cook Inlet population. However, genetic 
results and the fact that the 12 belugas in the Yakutat group are 
regularly observed in Yakutat Bay and not in Cook Inlet (O'Corry-Crowe, 
2006) lead us to conclude that the Cook Inlet beluga whales are 
discrete from beluga whales near Yakutat. The conclusion reached in 
2000 that the Cook Inlet population segment is significant to the 
beluga whale species remains valid for the same reasons mentioned in 
2000, and is further supported by the information stated above 
regarding the low viability of the Yakutat group and the resultant 
potential for loss of beluga whales from Cook Inlet. Therefore, we 
conclude, given the best scientific information available, the Cook 
Inlet beluga whales comprise a DPS which is confined to waters of Cook 
Inlet, and does not include beluga whales found in Yakutat or other 
Gulf of Alaska waters beyond Cook Inlet. Through this rulemaking, we 
propose to modify the present description of the Cook Inlet beluga 
whale DPS, which is considered a species under the ESA, by removing 
those beluga whales occurring near Yakutat or outside Cook Inlet 
waters.

Geographic Range of the Species

    The range of Cook Inlet belugas has been previously defined as the 
waters of the Gulf of Alaska north of 58[deg] N and freshwater 
tributaries to these waters based on available scientific data in 2000 
(65 FR 34590; May 31, 2000; MMPA Sec. 216.15(g)). There are few beluga 
sightings in the Gulf of Alaska outside Cook Inlet. Laidre et al. 
(2000) summarized available information on prehistoric to current 
distribution of belugas in the Gulf of Alaska, and, with the exception 
of Yakutat, sightings have been rare and sporadic given the extent of 
the survey efforts. Of 169,550 cetacean sightings recorded in the Gulf 
of Alaska prior to the year 2001, excluding Cook Inlet, only 44 were 
beluga (Laidre et al., 2000), indicating they are extremely rare in the 
Gulf of Alaska outside Cook Inlet.
    Calkins (1989) described belugas in Cook Inlet, Prince William 
Sound, Yakutat Bay, and throughout the coastal waters of the Gulf of 
Alaska, from the northern portions of Kodiak Island to Yakutat. In the 
1970s and 1980s, beluga sightings occurred across much of mid- and 
upper Cook Inlet (Calkins, 1984), but in the 1990s the summer 
distribution diminished to only the northernmost portions of Cook Inlet 
(Rugh et al., 2000). More of the Inlet was used by beluga whales during 
the spring, summer, and fall during the 1970s and 1980s than is 
presently used; for instance, sightings in the Kenai River area were 
common, and beluga concentrations were reported in Trading Bay and 
Kachemak Bay (Calkins, 1984). Such areas are rarely used by belugas at 
the present time, except perhaps in winter.
    To identify Cook Inlet beluga habitat use, particularly in winter, 
NMFS researchers placed satellite positioning tags on 18 beluga whales 
between 1999 and 2002. Those tagged whales remained in Cook Inlet, 
indicating that belugas occupy Cook Inlet year round and do not display 
the seasonal migrations that northern beluga populations display. 
Considering this research and the genetic information discussed above, 
we conclude the present range of the Cook Inlet beluga is limited to 
Cook Inlet waters north of a line from Cape Douglas to Cape Elizabeth.

Extinction Risk Assessment

    NMFS' Status Review includes an extinction risk assessment for this 
DPS through a detailed population viability analysis (PVA). The 
extinction risk analysis used population models developed specifically 
for the Cook Inlet beluga whale. These age and gender-structured models 
included parameters specific to this beluga population (e.g. 
reproductive age, calving intervals, natural mortality, random 
stranding events, killer whale predation, managed harvests, and 
episodic events such as oil spills). Ten thousand individual trials 
from the models were selected for analysis. From these, the 
``baseline'' model (Model A in the Status Review), using no threshold 
effects, predicted a decline in 65 percent of the cases, and extinction 
within 300 years for 29 percent of the cases. The ``most likely'' model 
(Model H in the Status Review), which best approximated the current 
population (this assumed a single annual killer whale predation 
mortality and an unusual mortality event every 20 years), predicted the 
risk of extinction as 26 percent within 100 years (Shelden et al., 
2003). The risk analysis concluded that this probability would be much 
larger if the annual mortality rates assumed were increased by either 
killer whale predation or other means.
    Small population viability is further compromised by the increased 
risk of inbreeding and the loss of genetic variability through drift, 
which reduces their resistance to disease and environmental change 
(Lacy, 1997; O'Corry-Crowe and Lowry, 1997). Estimates of genetic 
variation do not, at present, suggest that the Cook Inlet beluga whale 
DPS is highly inbred or that a critical amount of genetic variation has 
been lost through drift (O'Corry-Crowe et al., 1997; Lowry et al., 
2006; G. O'Corry-Crowe, unpublished data), but this population is 
already at a population size where eventual loss of genetic variability 
is expected (Lowry et al., 2006).

Summary of Factors Affecting Cook Inlet Beluga Whales

    The ESA defines endangered species as a species ``in danger of 
extinction throughout all or a significant portion of its range.'' 
Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, whether a species is endangered or 
threatened because of any one or a combination of the following 
factors:
    (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (2) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (3) Disease or predation;
    (4) The inadequacy of existing regulatory mechanisms; or
    (5) Other natural or manmade factors affecting its continued 
existence.
    A discussion of these factors follows.

The Present or Threatened Destruction, Modification, or Curtailment of 
Habitat or Range

    Habitat for this species has been modified by municipal, 
industrial, and recreational activities in upper Cook Inlet, where 
belugas concentrate. It is possible that the range of Cook Inlet beluga 
whales has been diminished by these activities, either individually or 
cumulatively. Rugh et al. (2000) indicated that the summer occurrence 
of Cook Inlet beluga whales shifted to the upper Inlet in recent 
decades, whereas historically, belugas were also found in the mid- to 
lower Inlet. Such a change could be due to habitat alteration or 
development, but could also be attributed to other factors. For 
example, the population reduction may have resulted in Cook Inlet 
beluga whales inhabiting only the preferred feeding areas (i.e., the 
upper Inlet) within their normal range. Therefore, the change in 
distribution does not necessarily reflect any reduction in habitat or 
habitat

[[Page 19858]]

quality in the mid- to lower Inlet. No information exists that beluga 
habitat has been modified or curtailed to an extent that it is likely 
to have caused the population declines observed within Cook Inlet.
    However, concern is warranted for the continued development within 
and along upper Cook Inlet and the cumulative effects on important 
beluga habitat. Several significant developments within the upper Inlet 
are permitted or planned, which may have adverse consequences. These 
include: (1) Major expansion to the Port of Anchorage, which requires 
filling more than 135 acres of intertidal and subtidal habitat, with 
increased in-water noise from pile driving, dredging, and expanded port 
operations; (2) Port McKenzie expansion as a commercial port facility 
directly across a narrow portion of upper Cook Inlet from the Port of 
Anchorage; (3) the proposed Knik Arm Bridge, which would increase in-
water noise with both construction and operational activities and would 
occupy a portion of upper Cook Inlet that is presently undeveloped and 
provides important beluga feeding and other habitats; and (4) 
construction and operation of a large coal mine and marine terminal 
along the west side of upper Cook Inlet, near the Native Village of 
Tyonek. Ongoing activities that may impact this habitat include: (1) 
continued oil and gas exploration, development, and production; and (2) 
industrial activities that discharge or accidentally spill pollutants 
(e.g., petroleum, seafood processing, ship ballast, municipal 
wastewater treatment systems, runoff from urban, mining, and 
agricultural areas). The extinction risk assessment indicates that very 
small increases in mortality for this DPS have large effects on its 
continued existence. Destruction and modification of habitat may result 
in ``effective mortalities'' by reducing carrying capacity or fitness 
for individual whales, with the same consequence to the population 
survival as direct mortalities. Therefore, threatened destruction and 
modification of Cook Inlet beluga whale DPS habitat contributes to the 
proposed endangered status.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    A brief commercial whaling operation existed along the west side of 
upper Cook Inlet during the 1920s, where 151 belugas were harvested in 
5 years (Mahoney and Sheldon, 2000). There was also a sport 
(recreational) harvest for beluga whales in Cook Inlet prior to 
enactment of the MMPA in 1972. We have no record on this harvest level. 
The 1979 whale survey by the Alaska Department of Fish and Game 
(Calkins, 1989) provided an abundance estimate of 1,293 whales. 
Although we are uncertain of the level of depletion and exploitation in 
1979, this remains the largest population abundance estimate for the 
Cook Inlet beluga DPS. Based on this estimate, we used 1,300 belugas as 
the carrying capacity in the PVA for the extinction risk assessment 
(Hobbs et al., 2006). With protections offered by the MMPA, commercial 
and recreational beluga harvest no longer contribute to endangering the 
Cook Inlet beluga whale DPS.
    Beluga whales are also taken for scientific purposes, but this work 
requires authorization under the MMPA and cannot have more than a 
negligible impact on the stock. Invasive research such as beluga 
capture and tagging, and boat survey work, may temporarily displace 
whales from important habitats, including feeding habitat, and may 
rarely result in injury or mortality. The magnitude of this impact 
cannot be reasonably estimated, but we believe it is not a reason that 
would support a listing determination.
    We are not aware of any live Cook Inlet belugas currently in 
aquaria and used for educational purposes. Therefore, educational 
purposes do not contribute to the proposed endangered status.

Disease or Predation

    A considerable amount of information now exists on the occurrence 
of diseases in beluga whales, including Cook Inlet belugas, and the 
effects of these diseases on the species. This information is described 
in our draft Conservation Plan (see http://www.fakr.noaa.gov/protectedresources/whales/beluga/mmpa/draft/conservationplan032005.pdf). Diseases and parasites occur in Cook Inlet 
beluga whales. Despite the considerable pathology that has been done on 
belugas, nothing indicates that the occurrence of diseases or parasites 
has had a measurable impact on their survival and health. Therefore, 
diseases and parasites are not known to be factors that have led to the 
current status of the Cook Inlet beluga whale DPS.
    Transient killer whales are a natural predator on beluga whales in 
Cook Inlet. Killer whale sightings in the upper Inlet (18 reported 
sightings in 27 years) appear to be relatively infrequent, and not all 
killer whales prey on marine mammals. However, killer whales are 
thought to take at least one Cook Inlet beluga per year (Shelden et 
al., 2003).
    Assessing the impact of killer whale predation on Cook Inlet beluga 
whales is difficult. Anecdotal reports often highlight the more 
sensational mortalities on beluga whales due to killer whales, thereby 
overemphasizing their impact. Further, some reports are from the early 
1980s when beluga whales were more abundant and more widely 
distributed. Consequently, the predation reports are of minimal value 
in evaluating current killer whale impacts to the Cook Inlet beluga 
whale DPS. The loss of more than one beluga whale annually could impede 
recovery, particularly if total mortality due to predation would be 
near the recruitment level in the DPS. The best available information 
does not allow us to accurately quantify the mortality level due to 
killer whale predation or its effect on the DPS. However, continued 
removal of belugas in excess of one per year would have a significant 
effect on the extinction probability for the Cook Inlet beluga whale.
    While disease and predation occur in the Cook Inlet beluga 
population and may affect reproduction and survival, neither appears to 
be a likely contributor to the observed decline. However, the present 
low population abundance and the gregarious nature of beluga whales 
predispose the population to significant consequences from disease and 
predation, which contributes to the probability of extinction, and, 
therefore, to the proposed classification as endangered under the ESA.

The Inadequacy of Existing Regulatory Mechanisms

    The MMPA exempts Alaska Natives from the prohibitions on the taking 
of marine mammals, including beluga whales. Sections 101(b)(3) and 103 
of the MMPA provide for subsistence harvest regulations for marine 
mammal stocks designated as depleted under that Act, after notice and 
administrative hearings as prescribed by the MMPA. Excessive harvests 
occurred before May 1999 when Public Law 106-31 required such taking of 
Cook Inlet beluga whales occur pursuant to a cooperative agreement 
between NMFS and affected Alaska Native organizations. This law, later 
made permanent by Public Law 106-553, did not specify a harvest level, 
nor present a harvest management plan. In May 2000, we designated the 
Cook Inlet belugas as a depleted stock under the MMPA. We promulgated 
interim harvest regulations that provided a harvest management plan 
from 2001 through 2004 (69 FR 17973; April 6, 2004). The absence of 
legal authority to control subsistence harvest prior to 1999

[[Page 19859]]

is considered a contributing factor to the Cook Inlet beluga whale DPS 
decline.
    Annual co-management agreements have been signed between NMFS and 
the Cook Inlet Marine Mammal Council in compliance with Public Laws 
106-31 and 106-553. We have worked extensively with experts, including 
Native hunters, to use the best available science and traditional 
knowledge in our management and conservation efforts. This includes 
workshops by NMFS, the Alaska Beluga Whale Committee, the Alaska 
Scientific Review Group, and the Cook Inlet Marine Mammal Council. A 
technical working group was appointed by an administrative law judge in 
2005 to consider a Cook Inlet beluga harvest management plan for 2005 
and subsequent years that would recover Cook Inlet belugas and allow 
for traditional subsistence. Harvests from this population have been 
restricted to zero, one, or two whales annually since 1999, due to 
cooperative efforts by Native hunters and NMFS. We are currently 
preparing a Draft Supplemental Environmental Impact Statement (SEIS) on 
the subsistence harvest management of Cook Inlet belugas. This Draft 
SEIS will be followed by a Final SEIS and harvest regulations. Harvest 
regulations will propose a harvest strategy based on the abundance and 
growth of the population and a population abundance ``floor'' below 
which no harvest would occur. Despite the limited harvests since 1999 
(five belugas in 8 years), the Cook Inlet beluga whale DPS has declined 
4.1 percent per year.

Other Natural or Manmade Factors Affecting its Continued Existence

Impacts of Past Subsistence Harvest Efforts
    The Cook Inlet beluga whale has been hunted by Alaska Natives for 
subsistence purposes and for traditional handicrafts. The subsistence 
provisions under the MMPA allow the sale of edible products and 
traditional handicrafts from marine mammals in Alaska Native villages, 
including Anchorage, or for Alaska Native consumption. Muktuk (whale 
skin and underlying blubber layer) from Cook Inlet belugas was sold in 
Anchorage markets prior to 1999, after which the practice was 
prohibited by co-management agreements between NMFS and the Cook Inlet 
Marine Mammal Council. Alaska Natives have legally harvested Cook Inlet 
beluga whales prior to and after passage of the MMPA in 1972. The 
effect of past harvest practices on the Cook Inlet beluga whale is 
significant. While subsistence harvest occurred at unknown levels for 
decades, the observed decline from 1994 through 1998 and the reported 
harvest (including estimates of whales which were struck but lost, and 
assumed to have perished) indicated these harvest levels were 
unsustainable.
    Annual subsistence take by Alaska Natives during 1995-1998 averaged 
77 whales (Angliss and Lodge, 2002). The harvest, which was as high as 
20 percent of the population in 1996, was sufficiently high to account 
for the 14 percent annual rate of decline in the population during 1994 
through 1998 (Hobbs et al., 2000). In 1999 there was no harvest as the 
result of a voluntary moratorium by the hunters and Public Law 106-31. 
Harvests have been greatly reduced since 1998, with only five whales 
taken between 1999 and 2006. However, the subsistence removals reported 
during the 1990s are sufficient to account for the declines observed in 
this population and must be considered as a factor in the proposed 
classification of the Cook Inlet beluga whale DPS as endangered.
Impacts of Stranding Events
    Cook Inlet beluga whales are known to become stranded along the 
shorelines and mudflats of Cook Inlet. These stranding events are not 
uncommon. NMFS has reports of 804 stranded whales (some of which were 
involved in mass stranding events) in upper Cook Inlet since 1988 (Vos 
and Shelden, 2005). Mass stranding events occurred most frequently 
along Turnagain Arm, and often coincided with extreme tidal 
fluctuations (``spring tides'') and/or killer whale sighting reports 
(Shelden et al., 2003). Other mass strandings have been reported in the 
Susitna Delta (Vos and Shelden, 2005) and most recently on September 
12, 2006, in Knik Arm (B. Mahoney, NMFS Alaska Region Office, 
unpublished data). Belugas are usually able to survive a stranding 
event and escape to deeper water on the rising tide. However, some 
deaths during these events do occur. For example, in one unusual case 
in August 2003, at least 46 belugas stranded in Turnagain Arm for over 
10 hours, and of these, at least five whales are known to have died. In 
a more typical case, another 58 belugas stranded in two events in 
Turnagain Arm the following month with no identified mortalities (Vos 
and Shelden, 2005).
    Catastrophic mortality (the deaths of a large number, such as 20 
percent of the population) due to a mass stranding event or other 
events such as ice entrapment, oil spill, or volcanic activity was 
considered in simulations of the Cook Inlet beluga and assigned a 
probability of 5 percent per year for purposes of the status review 
(NMFS, 2006). Such mortality, if it occurred, could significantly 
impede recovery or force the population below a threshold to which it 
would not otherwise be vulnerable and from which it could not recover; 
however, such catastrophic mortality has not been reported in Cook 
Inlet. Although live mass strandings have occurred, between 1988 and 
2000 only12 belugas were reported dead out of 650 belugas that stranded 
(Vos and Shelden, 2005). Mass stranding events are not believed to be a 
factor that has caused, or had a significant role in, the decline of 
the Cook Inlet beluga whale DPS.

Conservation Efforts

    When considering the listing of a species, section 4(b)(1)(A) of 
the ESA requires consideration of efforts by any State, foreign nation, 
or political subdivision of a State or foreign nation to protect such 
species. Such efforts would include measures by Native American tribes 
and organizations and local governments, and may also include efforts 
by private organizations. Also, Federal, tribal, state, and foreign 
recovery actions (16 U.S.C. 1533(f)) constitute conservation measures. 
On March 28, 2003, NMFS and USFWS published the final Policy for 
Evaluating Conservation Efforts (PECE)(68 FR 15100). The PECE provides 
guidance on evaluating current protective efforts identified in 
conservation agreements, conservation plans, management plans, or 
similar documents (developed by Federal agencies, state and local 
governments, tribal governments, businesses, organizations, and 
individuals) that have not yet been implemented or have been 
implemented but have not yet demonstrated effectiveness. The PECE 
establishes two basic criteria for evaluating current conservation 
efforts: (1) the certainty that the conservation efforts will be 
implemented, and (2) the certainty that the efforts will be effective. 
The PECE provides specific factors under these two basic criteria that 
direct the analysis of adequacy and efficacy of existing conservation 
efforts.
    Cook Inlet beluga whales benefit from protections afforded by the 
MMPA. The Cook Inlet beluga whale was designated as a depleted stock 
under the MMPA in 2000, and a draft Conservation Plan was published (70 
FR 12853; March 16, 2005). That conservation plan is comprehensive and 
provides recommendations to foster recovery. While some recommendations 
are funded, many recommendations are

[[Page 19860]]

unfunded. Therefore, it is uncertain whether these beluga conservation 
measures will be implemented. Federal law (Public Law 106-553) 
prohibits the taking of Cook Inlet beluga whales except through a 
cooperative agreement between NMFS and affected Alaska Native 
organizations. Presently, co-management agreements are signed annually 
with the Cook Inlet Marine Mammal Council to establish strike (harvest) 
limits and set forth requirements intended to minimize waste and 
prevent unintentional harassment. Harvest regulations are being 
considered to address the management of Cook Inlet beluga subsistence 
hunting. Once implemented, these regulations will constitute an 
effective conservation plan regarding Alaska Native subsistence 
harvest. They will not, however, be comprehensive in addressing the 
many other issues now confronting Cook Inlet belugas.
    We are not aware of conservation efforts undertaken by foreign 
nations specifically to protect Cook Inlet beluga whales. We support 
all conservation efforts currently in effect; however, these efforts 
lack the certainty of implementation and effectiveness so as to have 
removed or reduced threats to Cook Inlet belugas. In developing our 
final listing determination, we will consider the best available 
information concerning these conservation efforts and any other 
protective efforts by states or local entities for which we have 
information (See description of PECE above).

Proposed Listing Determination

    We have reviewed the extinction risk analysis for the Cook Inlet 
beluga whale, considered the factors in section 4(a)(1) of the ESA, and 
taken into account conservation efforts to protect the species. We 
conclude that the Cook Inlet beluga whale is in danger of extinction 
throughout all of its range because of: present or threatened 
destruction, modification or curtailment of habitat or range; the 
inadequacy of existing regulatory mechanisms (largely the past absence 
of regulations on subsistence harvests); disease and/or predation 
(further predation by killer whales can be shown to have a significant 
impact on survival); and other natural and manmade factors affecting 
its continued existence (effects of past subsistence removals). See the 
``Factors Affecting the Species'' section above for a description of 
the specific risks associated with section 4(a)(1). This endangered 
determination is supported by the results of population modeling which 
indicate a probability of extinction (for what is considered the most 
realistic scenario) of 26 percent within the next 100 years.
    We convened a workshop in February 2000 to develop ESA recovery 
criteria for large whales. That workshop concluded that a reasonable, 
conservative definition for endangered status would be a probability of 
extinction greater than or equal to 1 percent in 100 years. While that 
threshold may be conservative, the significantly greater extinction 
risk of 26 percent in 100 years modeled for the Cook Inlet beluga 
provides a strong justification for endangered status. Further, the 
factors confounding recovery have not been thoroughly identified and 
may continue to persist until more is known and corrective actions can 
be taken. We also conclude that, at present, no protective or 
conservation measures are in place that will substantially mitigate the 
factors affecting the future viability and recovery of the Cook Inlet 
beluga whale DPS.
    Based on the best available scientific and commercial information, 
we propose that the Cook Inlet beluga whale be listed under the ESA as 
an endangered species.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations, and agencies subject to U.S. jurisdiction.
    Section 7(a)(2) of the ESA requires Federal agencies to consult 
with NMFS to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of a listed 
species or to destroy or adversely modify critical habitat. Under 
Section 7(a)(4), Federal agencies must confer with us on any of these 
activities to ensure that any such activity is not likely to jeopardize 
the continued existence of a species proposed for listing or destroy or 
adversely modify proposed critical habitat. Examples of Federal actions 
that may affect the Cook Inlet beluga whale include permits and 
authorizations relating to coastal development and habitat alteration, 
oil and gas development (including seismic exploration), toxic waste 
and other pollutant discharges, Federal fishery management plans, and 
cooperative agreements for subsistence harvest.
    Sections 10(a)(1)(A) and (B) of the ESA authorize NMFS to grant 
exceptions to the ESA's Section 9 take prohibitions. Section 
10(a)(1)(A) scientific research and enhancement permits may be issued 
to entities (Federal and non-federal) for scientific purposes or to 
enhance the propagation or survival of a listed species. Activities 
potentially requiring a section 10(a)(1)(A) research/enhancement permit 
if Cook Inlet beluga whales are listed include scientific research that 
targets Cook Inlet beluga whales. Under section 10(a)(1)(B), the 
Secretary may permit takings otherwise prohibited by section 9(a)(1)(B) 
if such taking is incidental to, and not the purpose of, the carrying 
out of an otherwise lawful activity, provided that the requirements of 
section 10(a)(2) are met.

Critical Habitat

    Section 3 of the ESA defines critical habitat as ``(i) the specific 
areas within the geographical area occupied by the species, at the time 
it is listed....on which are found those physical or biological 
features (I) essential to the conservation of the species and (II) 
which may require special management considerations or protection; and 
(ii) specific areas outside the geographical area occupied by the 
species at the time it is listed...upon a determination by the 
Secretary that such areas are essential for the conservation of the 
species.'' Section 3 of the ESA (16 U.S.C. 1532(3)) also defines the 
terms ``conserve,'' ``conserving,'' and ``conservation'' to mean ``to 
use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this chapter are no longer 
necessary.''
    Section 4(a)(3) of the ESA requires that, to the extent practicable 
and determinable, critical habitat be designated concurrently with the 
listing of a species. Designation of critical habitat must be based on 
the best scientific data available and must take into consideration the 
economic, national security, and other relevant impacts of specifying 
any particular area as critical habitat. Once critical habitat is 
designated, section 7 of the ESA requires Federal agencies to ensure 
that they do not fund, authorize, or carry out any actions that are 
likely to destroy or adversely modify that habitat. This requirement is 
in addition to the section 7 requirement that Federal agencies ensure 
their actions do not jeopardize the continued existence of the species.
    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that NMFS ``consider those physical or biological 
features that are essential to the conservation of a given species 
including space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or

[[Page 19861]]

physiological requirements; cover or shelter; sites for breeding, 
reproduction, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distribution of a species.'' The regulations further 
direct NMFS to ``focus on the principal biological or physical 
constituent elements . . . that are essential to the conservation of 
the species,'' and specify that the ``known primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify primary constituent elements (PCEs) as including, 
but not limited to: ``roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quality or quantity, 
host species or plant pollinator, geological formation, vegetation 
type, tide, and specific soil types.''
    The ESA directs the Secretary of Commerce to consider the economic 
impact of designating critical habitat, and under section 4(b)(2) the 
Secretary may exclude any area from such designation if the benefits of 
exclusion outweigh those of inclusion, provided that the exclusion will 
not result in the extinction of the species. We are considering 
proposal of critical habitat for the Cook Inlet beluga whale in a 
separate rulemaking. To assist us with that rulemaking, we specifically 
request information on the economic attributes within the Cook Inlet 
region that could be impacted by critical habitat designation, as well 
as identification of the PCEs or ``essential features'' of this habitat 
and to what extent those features may require special management 
considerations or protection.

Public Comments Solicited

    We request interested persons to submit comments, information, and 
suggestions concerning this proposed rule. We solicit comments or 
suggestions from the public, other concerned governments and agencies, 
Alaska Natives, the scientific community, industry, or any other 
interested party. Comments are particularly sought concerning:
    (1) The current population status of the Cook Inlet beluga whale;
    (2) Biological or other information regarding the threats to this 
species;
    (3) Information on the effectiveness of ongoing and planned 
conservation efforts by states or local entities;
    (4) Information related to the identification of critical habitat 
and essential physical or biological features for this species; and
    (5) Economic or other relevant impacts of designation of critical 
habitat.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES ). The proposed rule, 
maps, and other materials relating to this proposal can be found on the 
NMFS Alaska Region website at http://www.fakr.noaa.gov/. Comments and 
information received during the comment period on this proposed rule 
will be considered in the final decision whether to list the Cook Inlet 
beluga whale DPS as endangered and any future proposal to designate 
critical habitat.

Public Hearings

    50 CFR 424.16(c)(3) requires the Secretary to promptly hold at 
least one public hearing, if requested, within 45 days of publication 
of a proposed regulation to list a species under the ESA. Requests for 
public hearing must be made in writing (see ADDRESSES) by June 4, 2007. 
Such hearings provide the opportunity for interested individuals and 
parties to give comments, exchange information and opinions, and engage 
in a constructive dialogue concerning this proposed rule. We encourage 
the public's involvement in such ESA matters.

Classification

National Environmental Policy Act (NEPA)

    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. 2d825 (6th Cir. 
1981), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the NEPA. (See NOAA 
Administrative Order 216-6.)

Executive Order (E.O.) 12866, Regulatory Flexibility Act and Paperwork 
Reduction 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 analyses required by the Regulatory 
Flexibility Act are not applicable to the listing process. In addition, 
this rule is exempt from review under E.O. 12866. This proposed rule 
does not contain a collection of information requirement for the 
purposes of the Paperwork Reduction Act.

E.O. 13132, Federalism

    Recognizing the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, and in keeping with Department of Commerce 
policies, we request information from, and will coordinate development 
of, this proposed ESA listing with appropriate State resource agencies 
in Alaska.

E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments



    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175 - Consultation and Coordination with 
Indian Tribal Governments - outlines the responsibilities of the 
Federal Government in matters affecting tribal interests. Section 161 
of Public Law 108-199 (188 Stat. 452), as amended by section 518 of 
Public Law 108- 447 (118 Stat. 3267), directs all Federal agencies to 
consult with Alaska Native corporations on the same basis as Indian 
tribes under E.O. 13175.
    We will contact any tribal governments or Native corporations which 
may be affected by the proposed action, provide them with a copy of 
this proposed rule, and offer the opportunity to comment on the 
proposed rule and discuss any concerns they may have.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our website at http://www.fakr.noaa.gov/ and is available upon 
request from the NMFS office in Juneau, Alaska (see ADDRESSES).

List of Subjects in 50 CFR Part 224

    Endangered and threatened species.


[[Page 19862]]


    Dated: April 16, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend part 
224, title 50 of the Code of Federal Regulations as set forth below:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation of part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
Sec.  224.101 [Amended]
    2. In Sec.  224.101, amend paragraph (b) by adding, ``Cook Inlet 
distinct population segment of beluga whale (Delphinapterus leucas)'' 
in alphabetical order.
[FR Doc. E7-7577 Filed 4-19-07; 8:45 am]
BILLING CODE 3510-22-S