[Federal Register Volume 73, Number 205 (Wednesday, October 22, 2008)]
[Rules and Regulations]
[Pages 62919-62930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25100]



[[Page 62919]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0810141357-81371-01]
RIN 0648-XL30


Endangered And Threatened Species; Endangered Status for the Cook 
Inlet Beluga Whale

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final determination to list a Distinct 
Population Segment (DPS) of the beluga whale, Delphinapterus leucas, 
found in Cook Inlet, Alaska, as endangered under the Endangered Species 
Act of 1973, as amended (ESA). Following completion of a Status Review 
of this DPS (the Cook Inlet beluga whale) under the ESA, we published a 
proposed rule to list this DPS as an endangered species on April 20, 
2007. We subsequently extended the date for final determination on the 
proposed action by 6 months, until October 20, 2008, as provided for by 
the ESA.
    After consideration of public comments received on the proposed 
rule and other available information, we have determined that the Cook 
Inlet beluga whale is in danger of extinction throughout its range, and 
should be listed as an endangered species. We will propose to designate 
critical habitat for the Cook Inlet beluga whale in a future 
rulemaking.

DATES: This final rule is effective December 22, 2008.

ADDRESSES:  Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection by appointment during normal business hours at 
the NMFS, Protected Resources Division, Alaska Region, 709 W. 9th 
Street, Juneau, AK. This final rule, references, and other material 
relating to this determination can be found on our website at http://www.fakr.noaa.gov/.

FOR FURTHER INFORMATION CONTACT: Brad Smith, NMFS, 222 West 7th Avenue, 
Anchorage, Alaska 99517, telephone (907) 271-5006, fax (907) 271-3030; 
Kaja Brix, NMFS, (907) 586-7235, fax (907) 586-7012; or Marta Nammack, 
NMFS, (301)713-1401.

SUPPLEMENTARY INFORMATION:

Background

    In this document, we issue final listing regulations for the Cook 
Inlet beluga whale. NMFS is responsible for determining whether a 
species, sub-species, or Distinct Population Segment (DPS) for which we 
bear responsibility is threatened or endangered under the ESA. 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''. The ESA lists factors that may cause a species to be 
threatened or endangered (section 4(a)(1)): (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) of the ESA 
requires NMFS to make listing determinations based solely on the best 
scientific and commercial data available, after conducting a review of 
the status of the species and after taking into account efforts being 
made to protect the species.
    We initiated a Status Review for the Cook Inlet beluga whale in 
March 2006 (71 FR 14836). On April 20, 2006, we received a petition to 
list the Cook Inlet beluga whale as an endangered species. In response 
to the 2006 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). After completion of the Status Review in November 2006, we re-
affirmed that the Cook Inlet beluga whale constitutes a DPS under the 
ESA. We had previously determined that the Cook Inlet beluga whale is a 
DPS in response to an earlier petition received in 2000 (65 FR 38778; 
June 22, 2000).
    The ESA's definition of a species includes subspecies and DPSs. We 
consider a group of organisms to be a DPS for purposes of ESA listing 
when it is both discrete from other populations and significant to the 
species to which it belongs (61 FR 4722; February 7, 1996). We found 
the Cook Inlet beluga whale to be reproductively, genetically, and 
physically discrete from the four other known beluga populations in 
Alaska, and significant because it is the only beluga population 
occurring in the Gulf of Alaska, except as we discuss below with 
respect to 12 beluga whales in Yakutat Bay. Since we found that the 
Cook Inlet beluga whale population was discrete and significant, we 
determined that it constituted a DPS under the ESA.
    A supplemental Status Review was released in April 2008 that 
included analysis of 2006 and 2007 abundance estimates and further 
review of the science presented in the 2006 Review. Based on the 2006 
Status Review and the best available information, we concluded the Cook 
Inlet beluga whale is in danger of extinction throughout all or a 
significant portion of its range and published a proposed rule to list 
this species under the ESA on April 20, 2007 (72 FR 19854). The ESA 
provides that, if there is substantial disagreement regarding the 
sufficiency or accuracy of the available data relevant to the 
determination, the Secretary of Commerce may extend the 1-year period 
from the date of the proposed rule by not more than 6 months for the 
purposes of soliciting additional data. Several parties, including 
Alaska Department of Fish and Game, questioned the sufficiency or 
accuracy of the available data used in the rulemaking. We determined 
that substantial disagreement exists over a certain aspect of the data 
presented in the proposed rule. In particular, disagreement remained 
over the population trend of beluga whales in Cook Inlet, and whether 
the population is demonstrating a positive response to the restrictions 
on subsistence harvest imposed in 1999. Recognizing this disagreement, 
and as provided by the ESA, we extended the deadline for a final 
determination on the petitioned action for a 6-month period, until 
October 20, 2008 (73 FR 21578; April 22, 2008).
    During the 6-month extension, we completed our analysis of 2008 
survey data, prepared an abundance estimate for 2008, and prepared a 
supplemental Status Review, updating the November 2006 and April 2008 
reviews. The results of the 2008 abundance survey found the abundance 
unchanged from 2007, estimating 375 whales. Thus, the trend for the 
period 1999 to 2008 is a negative 1.45 percent annually. This number is 
not significantly different from zero, but is significantly less than 
the expected growth for an un-harvested population (2-4 percent). The 
October 2008 review also considered new issues raised during the review 
process, including the possibility that small, gray calves and 
juveniles are undercounted in aerial surveys. Inclusion and 
consideration of these data do not alter our conclusion that the Cook 
Inlet beluga whale is an endangered species.

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Cook Inlet Beluga Whales

     The beluga whale (Delphinapterus leucas) is a small, toothed whale 
in the family Monodontidae, a family it shares with only the narwhal. 
Belugas are also known as ``white whales'' because of the white 
coloration of the adults. The beluga whale is a northern hemisphere 
species, ranging primarily over the Arctic Ocean and some adjoining 
seas, where they inhabit fjords, estuaries, and shallow water in Arctic 
and subarctic oceans. A detailed description of the biology of the Cook 
Inlet beluga whales may be found in the Proposed Rule (72 FR 19854; 
April 20, 2007).
    Five distinct stocks of beluga whales are currently recognized in 
Alaska: Beaufort Sea, eastern Chukchi Sea, eastern Bering Sea, Bristol 
Bay, and Cook Inlet. The Cook Inlet population is numerically the 
smallest of these, and is the only one of the five Alaskan stocks 
occurring south of the Alaska Peninsula in waters of the Gulf of 
Alaska. Systematic surveys on beluga whales in Cook Inlet documented a 
decline in abundance of nearly 50 percent between 1994 and 1998, from 
an estimate of 653 whales to 347 whales. This decline was mostly 
attributed to the subsistence harvest (through 1998); however, even 
with the restrictions on this harvest, the population has continued to 
decline by 1.45 percent per year from 1999 to 2008. Annual surveys have 
continued since 1994, and indicate this population is not recovering.

Summary of Comments Received in Response to the Proposed Rule

    We received public comment in response to the proposed rule, and 
held public hearings on the proposed listing in Anchorage, Homer, and 
Soldotna, Alaska, and in Silver Spring, Maryland. The original deadline 
for public comments was June 19, 2007 (60 days from the date of 
publication of the proposed rule (72 FR 19854; April 20, 2007), but was 
subsequently extended to August 3, 2007 (72 FR 30534; April 22, 2008). 
Approximately 180,000 comments were received. The majority of comments 
supported listing the Cook Inlet beluga whale as endangered under the 
ESA. We did not propose to designate critical habitat for the Cook 
Inlet beluga whale in the proposed listing rule, but we requested any 
comments that might benefit our consideration of critical habitat 
should we conclude that the Cook Inlet beluga whale warranted listing 
under the ESA. The few comments received concerning critical habitat 
are not germane to this action and will not be addressed in this final 
rule. However, such comments will be addressed during the subsequent 
rulemaking on critical habitat for the Cook Inlet beluga whale.
    A joint NMFS/U.S. Fish and Wildlife Service policy requires us to 
solicit independent expert review from at least three qualified 
specialists (59 FR 34270; July 1, 1994). Further, In December 2004, the 
Office of Management and Budget (OMB) issued a Final Information 
Quality Bulletin for Peer Review establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The OMB Bulletin, 
implemented under the Information Quality Act (Public Law 106-554), is 
intended to enhance the quality and credibility of the Federal 
Government's scientific information, and applies to influential or 
highly influential scientific information disseminated on or after June 
16, 2005. Pursuant to our 1994 policy and the OMB Bulletin, we 
solicited the expert opinions of three appropriate and independent 
specialists regarding pertinent scientific or commercial data and 
assumptions relating to the taxonomy, genetics, and supportive 
biological and ecological information for the Cook Inlet beluga whale. 
We conclude that these expert reviews satisfy the requirements for 
``adequate peer review''.
    All of the independent experts found that the scientific 
information supported listing these whales as an endangered species, 
and all found the Cook Inlet population constituted a species, or DPS, 
as defined by the ESA. The findings of the independent experts, and 
responses to comments received from the public, are presented below.

Comments of the Independent Experts

    Three independent reviewers were identified who had scientific 
expertise in marine mammalogy with specific knowledge of beluga whales. 
We asked these independent experts to review the proposed rule and 
supporting materials, and to comment on the matter of potential 
listing. Four specific questions were posed to this panel: (1) Do you 
find the Cook Inlet population of beluga whales exhibits sufficient 
discreteness and significance to constitute a Discrete Population 
Segment as presented in the 1996 Department of Commerce Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
(61 FR 4722); (2) Do you find the extant survey data and other 
information presented reasonably support the abundance and trend 
estimates used in the proposed rule?; (3) Do you believe the Population 
Viability Analysis in the NMFS' 2006 Status Review provides a 
reasonable biological model of these whales, and are the extinction 
risk probabilities supported by the PVA?; and (4) Do you believe the 
proposed rule accurately describes the present range of the Cook Inlet 
beluga whale?
    All of the expert reviewers found the Cook Inlet population met the 
criteria for a DPS. They noted the discreteness of this population was 
established by its geographic segregation and genetic profiles. The 
``significance'' DPS factor was supported by the fact that Cook Inlet 
beluga whales are one of a few sub-Arctic populations, having 
significantly different ecology from Arctic populations, and that there 
is little or no likelihood that this area could be re-colonized by 
other Alaska beluga whale populations.
    All these reviewers found that the abundance and trend data 
reported in the 2006 Status Review and proposed rule were reasonable. 
One expert reviewer commented that the survey data indicate this 
population is likely stable, with a slight possibility towards a slow 
decline, and went on to state that the disparity between annual 
abundance estimates reflects the difficulty in surveying this species, 
whose distribution is very clumped.
    All of the expert reviewers found the 2006 Status Review and its 
biological models provided a reasonable description of this population. 
One expert reviewer recommended the Population Viability Analysis (PVA) 
be re-run using different life-history parameters, specifically to 
include new information regarding the numbers of annual growth layers 
found in beluga teeth. This new information would mean belugas lay down 
a single growth layer each year rather than two, effectively doubling 
the current age estimates for these animals. A second expert also noted 
this new information, but felt that population growth rates will show 
minor, if any, changes. One reviewer asked if the model accounted for 
the possibility of subsistence hunts resulting in struck-but-lost 
whales and the possible separation of cow/calf pairs in which the cow 
may be harvested, leading to the death of the dependent calf. Another 
felt that mortality by killer whales had been underestimated in the 
models. None of the expert reviewers specifically commented on the 
Extinction Risk Analysis.
    Finally, all of the expert reviewers agreed that the present range 
of the Cook Inlet population, as described in the proposed rule, was 
accurately described. One expert reviewer also noted the feeding 
ecology of the Cook Inlet beluga whale is presently poorly understood, 
and somewhat inconsistent

[[Page 62921]]

with that of the St. Lawrence beluga whales.
    Response: We have considered the implications of new information 
regarding the numbers of annual growth layers found in beluga teeth and 
find it does not alter the current abundance estimate, growth rate and 
trends, or extinction risk probabilities. The PVA has been run using 
revised age data (i.e., assuming whales develop one growth layer 
annually) and abundance estimates for 2006, 2007, and 2008. That 
analysis is presented in the October 2008 Status Review. The analysis 
found little change in the estimated growth rate of the populations, 
estimating that there is a probability of only 5 percent that the 
growth rate is above 2 percent per year, and a probability of 62 
percent that the population will decline further. The best available 
data at this time indicate that the Cook Inlet beluga whale DPS is not 
growing as expected despite limits on subsistence harvests. A doubling 
of the age structure (i.e., assuming a single growth layer each year 
rather than two) for this population changes some of the vital rates 
for these whales (e.g., age at first birth, senescence, and longevity) 
but not others (calving rates, calving intervals, sex ratios).
    Regarding consideration in the model of the possibility for struck 
and lost whales, the model used in the 2006 Status Review and in the 
2008 supplement uses an estimate of between 0.5 and 2 beluga whales 
struck and lost for each beluga whale that is landed. All struck and 
lost beluga whales were considered to have died, and calves in their 
first year were considered to have died if the mother was killed in the 
hunt or died of other causes.
    We are particularly concerned that mortality due to killer whale 
predation may be underestimated. The analysis in the April 2008 Status 
Review included variations of the population model in which killer 
whale predation was doubled and increased to 5 times the reported 
level. The extinction risk is quite sensitive to this parameter with 
the risk of extinction in 50 years between 12 and 30 percent when 
killer whale predation averages 5 per year.

Public Comments

    Comment 1: Several commenters noted the need for continuing and new 
research on Cook Inlet beluga whales to improve our understanding of 
the ecology of these whales and address the threats and impediments to 
recovery.
    Response: More research would add to the ecological knowledge of 
these whales. We have prepared a Conservation Plan which will present 
most of what is known of the biology and threats confronting Cook Inlet 
beluga whales, and will use that Plan as a guide for funding and 
conducting research directed towards the recovery of the population. 
The ESA does not provide for further deferral of this listing action 
until additional studies are conducted. Consistent with the ESA, we 
previously extended the deadline for promulgation of this final listing 
rule because of substantial disagreement concerning the sufficiency or 
accuracy of the available data. Since that time, we analyzed 2008 
survey data and prepared an abundance estimate and supplemental status 
review. Our determination to list the Cook Inlet beluga whale under the 
ESA, based upon the best available data, is well-supported by existing 
research and knowledge, as documented in the proposed rule and the 
additional analysis conducted in 2008.
    Comment 2: NMFS had not made adequate use of the traditional 
knowledge and wisdom of Alaska Natives, or NMFS has failed to recognize 
their contribution.
    Response: We have engaged the Native community in recent Federal 
actions concerning Cook Inlet beluga whales. We have entered into 
annual agreements with Alaska Native Organizations for the cooperative 
management of these whales. We have worked closely with the Cook Inlet 
Marine Mammal Council in developing harvest regulations and in 
coordinating actions which may affect beluga whales. We have funded 
studies to acquire and record traditional knowledge as part of our 
decision making process, and have offered to consult on the proposed 
listing action with affected Native organizations, tribes, and 
corporations. Additionally, we have attempted to incorporate the 
traditional knowledge and wisdom of Alaska Natives in our scientific 
publications, and to correctly cite the Alaska Native sources for such 
information. We greatly appreciate the contributions of Alaska Natives 
to the body of knowledge for Cook Inlet beluga whales, and acknowledge 
their consultation and advice have been essential to us.
    Comment 3: One commenter stated that Alaska Native hunters have 
cooperated in dealing with the declining population, but in doing so 
have deprived themselves of their traditional hunting and way of life.
    Response: We recognize the contributions of the Cook Inlet Marine 
Mammal Council and other Alaska Natives in conservation efforts for the 
Cook Inlet beluga whales. Native hunters voluntarily stood down from 
harvesting whales in 1999 to prevent further loss of this population 
and allow scientific evaluation of the impact of the harvest. The ESA 
provides an exemption from its prohibitions on the taking of an 
endangered species for traditional subsistence harvests by Alaska 
Natives. However, such subsistence harvests may be regulated when the 
population is designated as depleted under the MMPA as with the Cook 
Inlet beluga whale. NMFS published a rule to provide for long-term 
harvest regulations for these whales (73 FR 60976; October 15, 2008). 
The native hunting community was an integral part of this rulemaking 
and participated as a party to the administrative hearing process 
leading to harvest regulation. It is unfortunate but necessary that 
future subsistence harvests will be impacted by harvest regulations 
until the population has recovered sufficiently to allow unrestricted 
hunting by Alaska natives.
    Comment 4: NMFS needs to recognize the potential negative 
consequences of global warming on the beluga population as it finalizes 
the listing rule and makes management goals.
    Response: The comment is noted, and we are aware of the significant 
changes within many Arctic ecosystems attributable to climate change. 
Our Conservation Plan specifically addresses these changes and their 
potential effects to Cook Inlet beluga whales. Conservation of habitat 
will be a vital component to any plans for recovery of this population, 
and we anticipate future research will be directed to address habitat 
issues, including climate change.
    Comment 5: The habitat is diminishing and reducing the carrying 
capacity of the Cook Inlet beluga whales.
    Response: Portions of upper Cook Inlet that provide important 
habitat for beluga whales are filling in, and the gradual loss of these 
areas may in time reduce the numbers of whales that Cook Inlet can 
support. However, we have no data at this time to indicate that 
carrying capacity has decreased.
    Comment 6: Several comments were received concerning the 
relationship between subsistence harvests and ESA listing for Cook 
Inlet belugas. Some commenters felt that subsistence harvests were 
responsible for the population's decline, others stated that because 
harvest is now controlled and the population has not increased, other 
factors have played a role in the decline. One commenter held that ESA 
listing was unnecessary because subsistence harvest is now controlled.

[[Page 62922]]

    Response: We estimate the current abundance of Cook Inlet beluga 
whales as 375 individuals, and their historic numbers to be 
approximately 1300. The present risk of extinction is significant. The 
reasons or paths by which this reduction occurred are important in our 
understanding of how we might recover the population; however, 
subsistence harvests are now controlled, and over-harvests are unlikely 
to occur. As other commenters correctly observe, the population has not 
shown any signs of recovery despite harvest control. This strongly 
suggests other factors may now be involved in the lack of recovery of 
the Cook Inlet beluga whales, and that cessation of excessive harvests 
is not enough to bring about recovery.
    Comment 7: One group of commenters stated their belief that oil and 
gas development, wastewater treatment facilities, mining, shipping, 
transfer facilities, pollution, commercial fishing, sport fishing, and 
whale watching are not causing problems for Cook Inlet belugas, or can 
be addressed through existing regulations and management practices.
    Response: Comment noted. In the proposed rule (72 FR 19854; April 
20, 2007), we described our analysis of the factors under section 
4(a)(1) of the ESA and their contribution to the endangered status of 
these whales. In that analysis, many of the topics the commenter 
identifies are reviewed. The effect, if any, of these activities is 
also considered in the Conservation Plan for Cook Inlet beluga whales 
and will be considered in any future Recovery Plan.
    Comment 8: Several comments were received saying Cook Inlet beluga 
whales had been harmed or have failed to recover due to various 
factors, including hunting, overfishing, entanglement by fishing gear, 
harassment, noise, pollution, vessel traffic, habitat degradation, 
disease, climate change, predation, or strandings.
    Response: See response to Comment 7. All of the identified factors 
may have some impact on this population. These factors and others are 
addressed in the Conservation Plan and will be addressed in the 
Recovery Plan that will be developed for the Cook Inlet beluga whale.
    Comment 9: Specific actions must be taken to protect Cook Inlet 
belugas. These include appointment of a recovery team and preparation 
of a recovery plan, research funding, and consultation on activities 
which may affect beluga whales or their habitat.
    Response: We anticipate a recovery plan will be developed through 
the efforts of a recovery team, and that consultations under section 
7(a)(2) of the ESA would occur after the listing becomes effective. We 
have previously discussed our intentions to continue certain research 
on Cook Inlet beluga whales, and our efforts to direct and coordinate 
other research through the Conservation Plan.
    Comment 10: NMFS should not list the Cook Inlet beluga whale as an 
endangered species because the sole reason for its decline was 
subsistence harvests, while the other known causes of mortality (killer 
whale predation and mass strandings) are not associated with human 
activity. Listing would therefore have no benefit to belugas.
    Response: We believe past subsistence harvests occurred at 
unsustainable levels and that these removals are at a level that could 
account for declines observed during the 1990s. However, we have not 
determined hunting to be the sole cause for decline in this population. 
Predation and stranding events would also have occurred during this 
period, and may have contributed to the decline. The ESA does not limit 
listing determinations to situations where the causes of decline stem 
only from human activity. Rather, the ESA specifically includes ``other 
natural or manmade factors affecting its continued existence'' among 
the reasons for which a species can be considered to be threatened or 
endangered.
    Comment 11: A comment urged NMFS to pursue additional funding, 
research, and cooperative work with the mayors of Anchorage, Matanuska-
Susitna, and Kenai Boroughs before making an unwarranted ESA decision.
    Response: We believe the best currently available scientific and 
commercial information is sufficient to support this listing 
determination. We welcome future opportunities to work cooperatively 
with local municipalities and to continue to pursue research in support 
of a recovery program for these whales.
    Comment 12: NMFS should not base its listing determination on the 
criteria established by the International Union for the Conservation of 
Nature and Natural Resources (IUCN).
    Response: While the IUCN has determined the Cook Inlet beluga whale 
would be classified as endangered or critically endangered under their 
classification criteria, we do not use IUCN criteria in our ESA 
determinations. This decision was challenged and upheld in court (Cook 
Inlet Beluga Whale v. Daley, 156 F. Supp.2d 16 (D.D.C. 2001)), with the 
judge ruling that ``the agency's obligations arise under the five 
statutory criteria of the ESA, and not the IUCN criteria''.
    Comment 13: A comment questioned how ESA listing would affect 
consultations under section 7 of the ESA when the population expands 
and theoretically occupies areas outside of Cook Inlet.
    Response: It is possible that the range of the Cook Inlet beluga 
whale may expand as the population recovers, though we expect that such 
recovery would take many years. Any expansion could expand the areas in 
which ESA section 7 consultations may be required because consultation 
under the ESA is required whenever the actions of a Federal agency may 
affect listed species.
    Comment 14: Recent studies show the population of Cook Inlet beluga 
whales is increasing. ESA listing should be delayed until NMFS has 
conducted further research to be certain the population is not 
increasing.
    Response: No reference is provided to support this statement, and 
we are unaware of such studies. Results of population models using the 
most recent population data, as presented in the October 2008 Status 
Review, continue to show the likelihood that this population will 
continue to decline or go extinct within the next 300 years unless 
factors determining its growth and survival are altered in its favor. 
While the most recent abundance estimate (2008) of 375 whales is larger 
than or unchanged from the previous estimates within the last 4 years 
of 278, 302, and 375, it is not reasonable to conclude that this 
represents an increasing trend. We base our decision on consideration 
of the entire time series from 1994 to 2008, which continues to show 
that the population is not recovering. Rather, it has been decreasing 
at a rate of 1.45 percent annually.
    Comment 15: The criteria for designating a distinct population 
segment are so broad that almost any geographic population could be 
considered a DPS. The DPS designation was not intended to allow listing 
of any local population for which an agency or private group has 
concerns. One sub-population of beluga whales is not critical to the 
survival of the species.
    Response: The criteria used to determine whether a group of animals 
should be considered a DPS are described in the NMFS/U.S. Fish and 
Wildlife Service's (USFWS) Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments under the Endangered Species Act (61 FR 
4722; February 7, 1996). Courts have found this joint policy to be 
consistent with Congressional intent behind the

[[Page 62923]]

ESA. We refer the commenter to this joint policy, and its preamble, for 
a discussion of issues concerning whether the policy is too broad or 
too restrictive. Many such comments were received in response to this 
policy. We stated in the joint policy that the ESA clearly intended to 
authorize listing of some entities that are not accorded the taxonomic 
rank of species, and that NMFS and USFWS are obligated to interpret 
this authority in a clear and reasonable manner. We believe we have 
done so, and that the Cook Inlet population of beluga whales is 
properly recognized as a DPS.
    Congress has cautioned against over-use of the DPS classification. 
The requirement that a subpopulation be significant in order to be a 
DPS is intended to carry out the expressed congressional intent that 
this authority be exercised sparingly. Both NMFS and the scientific 
experts asked to review the proposed rule found the Cook Inlet 
population is discrete and significant, and meets the criteria 
established in the joint policy. While one subpopulation may not be 
critical to the survival of the species, it is not necessary for a 
subpopulation to be critical to the survival of the species in order to 
be listed under the ESA. If the subpopulation is found to be discrete 
and significant (i.e., to be a DPS), and in danger of extinction, it 
may be listed as an endangered species under the ESA. Finally, DPS 
status for Cook Inlet beluga whales has been previously established; 
this final rule reaffirms that finding. See also the discussion of DPS 
status in the Background section of this preamble.
    Comment 16: NMFS' earlier models (produced when Cook Inlet beluga 
whales were first designated as depleted in 2000 and subsequently 
considered for listing) predicting recovery times for these whales were 
too optimistic. A population with a slow reproductive rate, such as 
belugas, will require many years to recover. Therefore, they do not 
warrant listing as endangered under the ESA.
    Response: We acknowledge that, under the best of circumstances, 
beluga whale populations can sustain growth rates of at most 2 to 6 
percent per year. However, results of population models using the most 
recent population data, presented in the October 2008 Status Review, 
indicate a probability of 80 percent that this population is declining, 
and a probability of extinction of 26 percent in 100 years for the 
model considered most representative of this population. We conclude 
this level of risk to the Cook Inlet beluga whales contributes to the 
determination to list this population as endangered under the ESA.
    Comment 17: The 2007 proposed rule reflects omissions, errors, and 
unsubstantiated interpretations. Statements made regarding killer whale 
predation and disease cannot be substantiated by the best available 
data, and NMFS' conclusions about whether predation or disease are 
contributing to their decline are contradictory. NMFS' determination is 
based entirely on unsupported population modeling predictions of a 
continued decline and unsubstantiated speculation of possible increases 
in threats. Therefore, ESA listing is not warranted.
    Response: Our determination to list the Cook Inlet beluga whale as 
endangered under the ESA is based, in part, on the results of 
population modeling which indicate a high probability of extinction 
within the next 100 years. Statements regarding killer whale predation 
are substantiated; predation events and annual predation rates are 
presented in a peer-reviewed scientific publication and reviewed in the 
2006 and 2008 Status Reviews. Statements regarding the potential impact 
of disease are also substantiated; an extensive review of potential 
threats from disease is presented in the 2006 Status Review and 2008 
supplement. The models used in the 2006 Status Review and Extinction 
Risk Assessment are supported by the 2006 and 2008 Status Reviews, 
which include population data through 2008. The model results are not 
based on any assumption or speculation of increased threats. In all 
variations of the model, all threats, with the exception of hunting 
mortalities prior to 1999, are considered to be constant throughout the 
time frame of the model analysis (1979-2307).
    Comment 18: NMFS must designate critical habitat for the Cook Inlet 
beluga whale population at the same time that it is listed under the 
ESA. Another commenter stated that NMFS should defer designation of 
critical habitat until solid information is in hand, and not until an 
arbitrary deadline is set in regulation.
    Response: The commenter is correct that the ESA states that a final 
regulation designating critical habitat shall be published concurrently 
with the final regulation implementing the determination that a species 
is endangered. However, the ESA allows for situations in which the 
Secretary may extend the period for 1 year if the scientific 
information is insufficient for determination of critical habitat. At 
the end of that additional year, the Secretary must publish a final 
regulation, based on the best available data, designating critical 
habitat to the maximum extent prudent. Because the scientific 
information available is insufficient for the determination of critical 
habitat, we defer designation of critical habitat in order to gather 
and assess additional information.
    Existing data and information are lacking in several areas which 
are necessary to support designation of critical habitat. These include 
identification and descriptions of the physical and biological features 
essential to the conservation of these whales, and economic data which 
would allow consideration of the costs of designation. Information is 
presented in the Conservation Plan regarding Cook Inlet beluga habitat 
and relative value of different habitat types. That Plan does not 
identify the essential features of the habitat or provide any economic 
analysis of proposed critical habitat, as required in any such 
designation. However, we anticipate building on the information in the 
Conservation Plan and conducting an impacts analysis in developing a 
comprehensive assessment and recommendation for designating critical 
habitat. A final regulation to designate critical habitat must be 
issued within 1 year of the publication date of this listing action.
    Comment 19: Beluga whales have been sighted in the Gulf of Alaska, 
Sitka, Kodiak, and Prince William Sound, yet these sightings are 
discounted in the proposed rulemaking.
    Response: The commenter is correct that beluga sightings in the 
Gulf of Alaska have occurred outside of Cook Inlet; however, they are 
uncommon. A review of cetacean surveys conducted in the Gulf of Alaska 
from 1936 to 2000 revealed only 31 sightings of belugas among 23,000 
whale sightings, indicating very few belugas occur in the Gulf of 
Alaska outside of Cook Inlet. Many of these reports are of single 
individuals or small groups, and almost all are episodic occurrences 
which do not suggest the whales regularly occupy such areas. One 
sighting from 1983 found approximately 200 beluga whales in the western 
portion of Prince William Sound. Despite numerous surveys in these 
waters, beluga whales have not been subsequently reported here. 
Individual beluga whales are occasionally reported along Kodiak Island 
or in Resurrection Bay. Both of these areas are proximate to the 
entrance of Cook Inlet. A small group of beluga whales observed near 
Yakutat has been reported many times and appears to be resident to that 
area. We considered whether these sightings were cause to expand the 
described range of

[[Page 62924]]

the Cook Inlet DPS, or whether these sightings should be considered 
extralimital, meaning that the animals sighted were beyond their normal 
range. Any determination as to whether these whales may be from the 
Cook Inlet DPS requires either genetic information or data on the 
movements and distribution of these whales over time, such as satellite 
tag data. Six genetic samples from the Yakutat belugas have been 
obtained and analyzed, representing five individual whales (O'Corry-
Crowe et al., 2006). Results from these samples indicate they all share 
a genetic marker that has also been found in other areas of Alaska, 
including Cook Inlet. These results also indicate that the sampled 
whales are unlikely to be a random sample of the Cook Inlet beluga 
whale population. This, taken with sighting data and behavioral 
observations, suggests that a small beluga whale group resides in the 
Yakutat Bay region year round. The Yakutat beluga whales have a unique 
ecology and a restricted home range, and management decisions for this 
group cannot be made using information from other stocks (O'Corry-Crowe 
et al., 2006). We believe the best scientific information continues to 
support the classification of the Cook Inlet beluga whale as a DPS. The 
DPS excludes beluga whales found at Yakutat, as described in our 
proposed rule. No genetic or distributional data exist for the other 
Gulf of Alaska beluga sightings. We have not discounted these 
occurrences in this rulemaking process, but have no reason to conclude 
they are of the Cook Inlet DPS, nor that they represent persistent 
occurrences that justify extending the described range of the Cook 
Inlet belugas. It is possible for individual or groups of belugas to 
leave Cook Inlet, although data suggest this is rare. Such occurrences 
are considered extralimital.
    Comment 20: The 1979 estimate of Cook Inlet beluga whale abundance 
was made with unspecified confidence. That survey's methodology was 
completely different from NMFS' current protocols. It should not be 
relied upon for determination of carrying capacity and is misleading in 
depicting trends.
    Response: The commenter is correct in noting that the 1979 
abundance estimate is based on a survey that used a different method 
from NMFS' current abundance surveys. However, the 1979 estimate was 
based on a valid survey protocol that is documented and repeatable, and 
similar to protocols used elsewhere on beluga whale populations. We 
have concluded that the estimate is valid and represents the maximum 
observed size of this population and consequently the best available 
estimate for carrying capacity. The 1979 estimate should not be used 
for estimating trends. We have based our analysis of trends on data 
collected between 1994 and 2008 because of the consistency in survey 
protocols used during the period 1994 to 2008.
    Comment 21: Averaging in counts that show a precipitous decline 
before excessive hunting was restricted in 1999 is inappropriate. The 
important numbers are those since 1999, which indicate a stable trend.
    Response: The April 2008 Status Review included a variation of the 
baseline model that considered only the abundance time series from 1999 
to 2007. That variation showed the population has not been stable since 
1999, and estimated a probability of 82 percent that the population 
continued to decline and a 2 percent probability that the population 
will go extinct within 100 years. These numbers were higher than the 
same results for the model that included the years 1994-2008.
    Comment 22: NMFS should consider other methodologies, including 
those of recent studies by LGL, to determine whether they provide a 
more accurate indication of the immature component of the Cook Inlet 
beluga whale population. Aerial surveys are likely to undercount 
immature whales.
    Response: We met with representatives of LGL in October 2007 to 
review photo identification methods, including those for estimating the 
immature component of the Cook Inlet beluga whale population as 
indicated by the fraction of gray animals. While the technique 
presented was considered promising for identifying individuals, both 
NMFS and LGL agreed that it was not sufficiently developed to allow 
estimates of the ratios of gray to white animals in the population. In 
the October 2008 Status Review we included variations in the extinction 
risk analysis model that assumed over half of the beluga whales younger 
than the age of maturity were missed in the aerial surveys. All of the 
versions of the model accounted for the selective depletion of the 
adult component of the population by hunting, so the potential effect 
of undercounting juveniles that results in delayed growth in the 
population was adequately represented. The model with missed gray 
animals estimated a probability of 64 percent that the population would 
decline. This compares to a probability of decline of 68 percent 
estimated by the model that assumed all gray whales are counted. While 
this 4 percent difference indicates that, if gray whales are 
undercounted, the probability of decline may be overestimated, the 
difference between the two results is not sufficient to warrant further 
analysis. Also, we employ a technique to adjust counts to estimate the 
individuals and groups that may be missed by video. Consequently, if 
some gray whales remain unaccounted for, it is unlikely that they 
represent more than a few percent.
    Comment 23: Aerial surveys show an increase in Cook Inlet beluga 
whales from 278 to 302 between 2005 and 2006, an increase of nine 
percent. The raw counts from 2007 indicate a further increase.
    Response: While the abundance estimate of 375 in 2007 was larger 
than the two previous estimates (2005: 278, 2006: 302), it is not 
reasonable to conclude this represents an increasing trend. The degree 
of variability in the abundance estimates is such that there is a high 
likelihood that increases in the point estimate will be seen in 2 or 3 
sequential years (e.g. 1998-2000, 2002-2004). In the case of the 2005 
estimate there is a 90-percent probability that the 3 subsequent years 
will all be larger and an 88 percent probability that a line fit to 
those data will show an increase greater than 2.0 percent per year. We 
base our decision on consideration of the entire time series from 1994 
to 2008, which indicates a high probability of decline.
    Comment 24: The quality of NMFS' population censuses is 
questionable, leading to insufficient knowledge to support a listing 
determination. NMFS' finding that this population has shown an average 
rate of decline of 4.1 percent from 1999 is not true within 95 percent 
confidence intervals and should not be used to show population trends. 
This lack of certainty makes any determination of endangered status 
equally speculative.
    Response: The quality of these censuses is high. The abundance 
estimates that we calculated for each year resulted from aerial surveys 
conducted in June between 1994 and 2008 (except July in 1995) and used 
essentially the same methods through the entire series (reviewed in the 
April 2008 Status Review). During a 2-week period in early June of each 
year, three to seven surveys of the upper Inlet and one survey of the 
lower Inlet are conducted. During each survey, we survey the entire 
coastline to approximately 1 kilometer offshore and all river mouths. 
Transects are also flown across the inlet. When a group of whales is 
encountered, it is circled in a ``racetrack'' pattern 4 to 16 times to 
allow multiple counts by researchers and the collection of video data. 
Later, video sequences are reviewed frame by frame and all individuals 
counted.

[[Page 62925]]

Video data are the primary source of group size estimates. Video 
equipment and technology have improved over the course of these 
surveys, and the numbers of small or gray-colored whales missed by 
video may have declined through the time series. We tested this in the 
model analysis presented in the April 2008 Status Review.
    Having a consistent methodology is important to determining trends. 
While the most recent data no longer indicate a decline of 4.1 percent 
per year since 1999, this decline is now estimated at 1.45 percent per 
year (1999-2008). Population models now estimate the probability of 
further decline within this population at 80 percent, and only a 5-
percent probability for the growth rate to be 2 percent of more.
    It is not necessary to have a declining growth rate significantly 
less than zero at the 95 percent confidence level to make a 
determination of endangered status. The ESA requires listing when a 
species ``is in danger of extinction.'' A trend of a 1.45 percent 
decline per year (significantly less than the growth rate of 2 percent 
per year necessary for recovery) establishes that risk.
    Comment 25: NMFS' methodologies for converting raw aerial counts in 
Cook Inlet are derived from Bristol Bay surveys, where there is 
significantly higher water clarity. NMFS methodologies need to be 
revised.
    Response: Methodologies for converting raw counts in Cook Inlet are 
not derived from methods used in Bristol Bay. The methods we used for 
the 1994-2008 abundance estimates have been developed specifically for 
Cook Inlet and are calibrated to Cook Inlet (see above response). A 
parameter derived from Bristol Bay is used for Cook Inlet when the 
surveys from the 1970s are considered because the type of survey 
conducted then was very similar to those conducted in Bristol Bay.
    Comment 26: NMFS' population modeling used insufficient time during 
the recovery period (1999+) to assess the true trajectory of the 
population's risk of extinction. Also, the risk of extinction within 50 
years was zero for all reasonable models, indicating high uncertainty 
in the trajectory. The model referenced in the proposed rule indicating 
a 26 percent chance of extinction within 100 years is not defensible.
    Response: The model results presented in the October 2008 Status 
Review include the abundance estimates from 1994 to 2008. This time 
frame allows for 9 years after 1999 (end of unrestricted harvest) for 
the population to recover. This is a sufficient time span for the 
model, which determined an 80 percent probability that the population 
will decline, and less than a 5 percent probability for recovery at a 
rate of 2 percent per year. All versions of the model accounted for the 
impact of hunting on the adult population and other delays to recovery 
resulting from the 10-year time-to-maturity in this population. The 
version of the model that we found to be most representative of the 
population found a 26-percent probability of extinction within 100 
years. This model included 1 killer whale mortality per year (which is 
supported by a peer-reviewed paper) and a ``catastrophic loss'' 
estimate of 5 percent chance for a 20-percent mortality event in any 
year. Expert reviewers agreed that this was a reasonable representation 
of the possibility for unusual mortality events.
    Comment 27: Why have a harvest management plan and implementing 
regulations not been published for Cook Inlet beluga whales?
     Response: We have completed an Environmental Impact Statement for 
the long-term management of subsistence harvest of the Cook Inlet 
beluga whale, and final harvest regulations were published on October 
15, 2008 (73 FR 60976). Currently, all harvests of Cook Inlet beluga 
whales must be authorized under agreement between an Alaska Native 
Organization and NMFS. Recent harvests have been very limited (only 5 
whales have been struck since 1999), and it is doubtful harvests will 
resume without a significant increase in the growth rate within this 
population.
    Comment 28: The draft Conservation Plan for Cook Inlet beluga 
whales was released in 2005. The ESA listing should not occur until 
that plan has been completed and implemented.
    Response: A Conservation Plan is an important component to the 
recovery of the Cook Inlet beluga whales. The final Conservation Plan 
is available (see ADDRESSES).
    Section 4 of the ESA requires consideration of conservation efforts 
to protect a species in making a determination for listing. NMFS and 
the USFWS published joint guidance on this issue: ``Policy for 
Evaluation of Conservation Efforts When Making Listing Decisions'' (68 
FR 15100; March 28, 2003). This guidance provides specific factors to 
be considered in evaluating conservation efforts that have not yet been 
implemented or have not demonstrated effectiveness. The basic criteria 
are whether there is: (1) certainty the conservation efforts will be 
implemented, and (2) certainty that these efforts will be effective. 
While the Conservation Plan presents recommendations that address 
various recovery needs, many of the actions are presently unfunded or 
have uncertain effectiveness. As a result, the existence of the 
Conservation Plan is not sufficient to obviate the need for ESA 
listing.
    Comment 29: A commenter recommended not listing Cook Inlet belugas 
under the ESA because the MMPA provides adequate protection and gives 
NMFS the necessary authority to protect these whales.
    Response: There are similarities between the ESA and MMPA. Both 
acts prohibit taking and provide exemptions for Alaska Native 
subsistence hunts and permits for scientific research or incidental 
taking. Both acts address habitat issues, and require preparation of 
plans to foster recovery (a Recovery Plan under the ESA; a Conservation 
Plan under the MMPA). The MMPA contains particular provisions for 
marine mammals that are found to be depleted, or below their optimum 
sustainable population level. An endangered species of marine mammal is 
automatically recognized as depleted under the MMPA. Despite these 
similarities, the ESA provides measures not found in the MMPA that are 
important in the recovery process. The consultation requirements of the 
ESA are unique in ensuring a Federal agency's actions are not likely to 
jeopardize the continued existence of a listed species, nor adversely 
modify its critical habitat. The ESA directs all Federal agencies to 
review their programs and use such programs in furtherance of the 
purposes of the ESA by carrying out programs for the conservation of 
endangered and threatened species. The ESA also requires identification 
and designation of a species' critical habitat, so as to provide for 
its recovery. Moreover, declining to list a species under ESA because 
it is designated as depleted under the MMPA would not be consistent 
with the ESA, which requires us to list a species based on specified 
factors and after considering conservation efforts being made to 
protect the species. Therefore, the authorities of the MMPA do not 
remove or reduce the requirements to list a species under the ESA. The 
two acts work together and are not mutually exclusive.
    Comment 30: The Cook Inlet population of beluga whales is showing 
signs of recovery, and 40 percent of the population consists of sub-
adults whose contribution to the recovery would not be expected for 5 
to 7 years.

[[Page 62926]]

    Response: No scientific evidence exists that 40 percent of this 
population is sub-adult. Photographic analysis has documented the 
numbers of whales of various color phases and calves (which can be 
distinguished by size and color). However, color is not a reliable 
indicator of reproductive age. Many adults are white, but not all gray-
colored beluga whales are sub-adults. One gray-colored Cook Inlet 
beluga whale was found to have teeth with 22 growth layers, clearly not 
a sub-adult. The commenter's theory assumes that the age of this 
population was reduced through selective removals of adults by 
subsistence harvests that targeted white whales. This removal would 
then have created a large adolescent component that would require time 
to reach reproductive age and begin to repopulate their numbers. There 
are several flaws in this theory. First, it is uncertain only white 
whales were taken in subsistence harvests; we have no data to 
substantiate this assumption. Second, there is evidence that gray 
beluga whales are of reproductive age. In fact we have sampled gray 
beluga whales that have shown evidence of prior pregnancies, or to have 
been lactating. Third, even if the age structure was significantly 
reduced through selective harvests ending in 1998, the recruitment into 
the adult population would have been expected to occur continuously, 
beginning the following year and continuing to the present. This would 
have resulted in a gradual increase in abundance figures and, by now, 
the ``signal'' from such selective removals would have grown through 
the population. The population model used to estimate the risk of 
extinction accounted for the reduction in the adult population during 
unrestricted harvest and the lag time of 9 or more years between birth 
and age of first reproduction.
     Comment 31: Designating Cook Inlet belugas as a Distinct 
Population Segment is inconsistent with the standards set by a recent 
decision in the Ninth Circuit Court of Appeals and 2007 guidance from 
the Department of the Interior.
    Response: In Northwest Ecosystem Alliance v. USFWS, 475 F.3d 1136 
(9th Cir. 2007), the Ninth Circuit upheld the USFWS' determination that 
the Washington population of western gray squirrels did not constitute 
a DPS. First, the court of appeals held that the USFWS' and NMFS' joint 
policy defining what constitutes a ``distinct population segment'' 
under the ESA (61 FR 4722; February 7, 1996), is a reasonable 
interpretation (475 F.3d at 1140 45). Second, the court upheld the 
USFWS' application of that definition to the Washington population of 
western gray squirrels (475 F.3d at 1145 50). Specifically, the court 
ruled the USFWS did not act arbitrarily or capriciously in determining 
that, at that time, the best scientific and commercial data available 
did not indicate that the Washington population segment was 
``significant'' (475 F.3d).
     In 2000, we determined that the Cook Inlet population of beluga 
whales is a DPS. We made this determination pursuant to the very 
definition that the Ninth Circuit upheld in Northwest Ecosystem 
Alliance v. USFWS. The 2000 determination is thus fully consistent with 
the Ninth Circuit's decision. The Office of the Solicitor, Department 
of the Interior's March 16, 2007, Memorandum interprets a clause within 
the ESA's definition of endangered species; namely, what it means for a 
species to be ``in danger of extinction throughout all or a significant 
portion of its range.'' The Solicitor's Memorandum does not purport to 
address or redefine what constitutes a DPS. Therefore, there is nothing 
in that opinion that would lead NMFS to revisit its 2000 determination 
that the Cook Inlet population of belugas whales is a DPS.

Determination of Species 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 the USFWS issued a joint policy to clarify 
their interpretation of the phrase ``distinct population segment'' for 
the purposes of listing, delisting, 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.
    Under the first element, we found 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 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 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, that 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 (see discussion of whales 
in the Yakutat group below), 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, resulting in a 
significant gap in the range with little likelihood of immigration from 
other beluga population segments into Cook Inlet.
    Because we found that the Cook Inlet beluga whale population 
segment was discrete and significant, we determined that it constituted 
a DPS under the ESA (65 FR 38778; June 22, 2000). Since that time, new 
research has become available regarding the beluga whales that occur in 
Yakutat Bay, Alaska, as discussed in our proposed rule to list the Cook 
Inlet beluga whale as endangered (72 FR 19854; April 20, 2007). These 
Yakutat Bay whales were included in the Cook Inlet beluga whale DPS 
identified in 2000 (65 FR 38778; June 22, 2000). The

[[Page 62927]]

Yakutat group consists of 12 belugas that are regularly observed in 
Yakutat Bay and that existed there as early as the 1930s (O'Corry-Crowe 
et al., 2006). Since the 2000 Status Review, we have obtained biopsy 
samples from these whales that provide genetic information on their 
relationship to other Alaska beluga whales. That evidence shows that 
members of the Yakutat group may be more closely related to each other 
than whales sampled in other areas, and are not likely to be random 
whales traveling from the Cook Inlet population (O'Corry-Crowe et al., 
2006).
    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 information exists that shows any association between 
these whales. The genetic, sighting, and behavioral data suggest that a 
small group of beluga whales may be resident to the Yakutat area year 
round, and that these whales have a unique ecology and a restricted 
home range.
    We consider the viability of an isolated group of 12 belugas to be 
low. 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 and the 
Gulf of Alaska. Most recently, a panel of independent experts found the 
Cook Inlet population met the criteria for a DPS. They noted the 
discreteness of this population was established by its geographic 
segregation and genetic profiles. Therefore, given the best scientific 
information available, we conclude 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 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.

Extinction Risk Assessment and Summary of Section 4(a)(1) Factors 
Affecting the DPS

    The ESA defines endangered species as a species ``in danger of 
extinction throughout all or a significant portion of its range. In 
order to assess the status of the Cook Inlet beluga DPS and to support 
any determination that it may be threatened or endangered, we prepared 
a Status Review of these whales in November 2006. The 2006 Review 
represented the best available scientific information, affirmed the 
Cook Inlet population to be a DPS, and found the Cook Inlet beluga 
whale DPS to be in danger of extinction throughout all of its range. 
Subsequently, a panel of independent experts completed a review of the 
science presented in the 2006 Review. That review, published in April 
2008, provided an update of the best available science. After 
completion of the 2008 aerial abundance survey, a supplemental Status 
Review was completed in October 2008. The 2006 and 2008 Reviews include 
Population Viability Analyses (PVA), trend projections, and extinction 
risk analyses. The PVA in the 2008 Review included new data from 2008 
and addressed issues and comments raised during the review process; in 
particular, the possibility that small, gray calves and juveniles are 
undercounted during aerial surveys. The 2006 and 2008 Status Reviews 
both found a significant probability of extinction. While many 
iterations of models were considered in these Reviews, using varying 
inputs for such variables as predation and survival, the model 
considered to be the most realistic and representative resulted in a 26 
per cent probability of extinction within 100 years, and 70 per cent 
probability of extinction within 300 years.
    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine 
whether a species is endangered or threatened because of any one or a 
combination of the five factors listed under Section 4(a)(1). In the 
proposed rule, we specifically recognized these factors as they concern 
the Cook Inlet beluga whale DPS, and found some of these factors to be 
present with regard to the proposed listing.

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

    Concern is warranted about the continued development within and 
along upper Cook Inlet and the cumulative effects on important beluga 
whale habitat. 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 waste, ship ballast 
discharge, effluent from municipal wastewater treatment systems, and 
runoff from urban, mining, and agricultural areas). Destruction and 
modification of habitat may result in ``effective mortalities'' by 
reducing carrying capacity or fitness of 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 its 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 Marine Mammal Protection Act (MMPA) in 1972. It is 
possible that some residual effects for this harvest may remain and may 
be a factor in the present status of this stock.
    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 was as high as 20 percent 
of the population in 1996. 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.

Disease or Predation

    Killer whales are thought to take at least one Cook Inlet beluga 
per year (Shelden et al., 2003). The loss of more than one beluga whale 
annually could impede recovery, particularly if total mortality due to 
predation were close to the recruitment level in the DPS.

[[Page 62928]]

The Inadequacy of Existing Regulatory Mechanisms

    Cook Inlet beluga whales are hunted by Alaskan Natives for 
subsistence needs. The absence of legal authority to control 
subsistence harvest prior to 1999 is considered a contributing factor 
to the Cook Inlet beluga whale DPS's decline. NMFS promulgated 
regulations on the long-term subsistence harvest of Cook Inlet beluga 
whales on October 15, 2008 (73 FR 60976). These regulations constitute 
an effective conservation plan regarding Alaska Native subsistence 
harvest, but they are not comprehensive in addressing the many other 
issues now confronting Cook Inlet beluga whales. At present, 
regulations cover the short-term subsistence harvest.

Other Natural or Manmade Factors Affecting its Continued Existence

    Cook Inlet beluga whales are known to strand along mudflats in 
upper Cook Inlet, both individually and in number. The cause for this 
is uncertain, but may have to do with the extreme tidal fluctuations, 
predator avoidance, or pursuit of prey, among other possible causes. We 
have recorded stranding events of more than 200 Cook Inlet beluga 
whales. Mortality during stranding is not uncommon. We consider 
stranding to be a major factor establishing this DPS as endangered.

Efforts Being Made to Protect the Species

    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 developed pursuant to 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. Here we assess existing efforts being made to protect Cook 
Inlet beluga whales, then determine if those measures ameliorate risks 
to this DPS to a degree where listing is unnecessary.
    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 has been 
published (70 FR 12853; March 16, 2005). A final Conservation Plan is 
available (see ADDRESSES). The Conservation Plan is comprehensive and 
provides recommendations to foster recovery. While some recommendations 
are funded, many recommendations are unfunded. Therefore, it is 
uncertain whether these beluga conservation measures will be 
implemented.
    Other provisions exist for the management of subsistence harvests 
of Cook Inlet beluga whales by Alaskan Natives. 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. We have promulgated regulations on 
subsistence harvest of Cook Inlet beluga whales (73 FR 60976, October 
15, 2008). These regulations constitute an effective conservation plan 
regarding Alaska Native subsistence harvest. They are not, however, 
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 by states and other entities that are 
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 have considered the best available information 
concerning conservation efforts and any other protective efforts by 
states or local entities for which we have information. We conclude 
that existing conservation efforts do not provide sufficient certainty 
of effectiveness to substantially ameliorate the level of assessed 
extinction risk for Cook Inlet beluga whales.

Final Listing Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range. 
Section 4(b)(1) of the ESA requires that the listing determination be 
based solely on the best scientific and commercial data available, 
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 and conserve the species.
    We reviewed the petition, the 2006 and 2008 Status Reviews, other 
available published and unpublished information, and comments received 
in response to the proposed rule to list Cook Inlet beluga whales as an 
endangered species. We also consulted with beluga whale experts. On the 
basis of the best available scientific and commercial information 
available, we conclude the Cook Inlet beluga whale DPS is in danger of 
extinction, and should be listed 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. 
Sections 7(a)(2) of the ESA requires Federal agencies to consult with 
us to ensure that activities they authorize, fund, or conduct are not 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with NMFS. Examples of 
Federal actions that may affect Cook Inlet beluga whales include 
coastal development, oil and gas development, seismic exploration, 
point and non-point source discharge of contaminants, contaminated 
waste disposal, water quality standards, activities that involve the 
release of chemical contaminant and/or noise, vessel operations, and 
research. 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. The types of 
activities potentially requiring a

[[Page 62929]]

section 10(a)(1)(A) research/enhancement permit 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.

Identification of Those Activities that Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, we and the USFWS published a series of policies 
regarding listings under the ESA, including a policy to identify, to 
the maximum extent possible, those activities that would or would not 
constitute a violation of section 9 of the ESA (59 FR 34272). The 
intent of this policy is to increase public awareness of the effect of 
our ESA listings on proposed and ongoing activities within the species' 
range. We identify, to the extent known, specific activities that will 
be considered likely to result in violation of section 9, as well as 
activities that will not be considered likely to result in violation. 
Activities that we believe could result in violation of section 9 
prohibitions against ``take'' of the Cook Inlet beluga whale include: 
(1) Unauthorized harvest or lethal takes; (2) in-water activities which 
produce high levels of underwater noise which may harass or injure 
whales; (3) coastal development that adversely affects beluga whales 
(e.g., dredging, waste treatment); (4) discharging or dumping toxic 
chemicals or other pollutants into areas used by beluga whales; and (5) 
scientific research activities.
    We believe, based on the best available information, the following 
actions will not result in a violation of Section 9: (1) federally 
funded or approved projects for which ESA section 7 consultation has 
been completed, and that are conducted in accordance with any terms and 
conditions we provide in an incidental take statement accompanying a 
biological opinion; and (2) takes of Cook Inlet beluga whales that have 
been authorized by NMFS pursuant to section 10 of the ESA. These lists 
are not exhaustive. They are intended to provide some examples of the 
types of activities that we might or might not consider as constituting 
a take of Cook Inlet beluga whales.

Critical Habitat

    Section 3(5)(A) 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(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 section 7's 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 
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 also 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. Such an 
economic analysis is not currently available; we intend to initiate 
this research upon listing.
    At this time, we lack the data and information necessary to 
identify and describe PCEs of the habitat of the Cook Inlet beluga 
whale, as well as the economic consequences of designating critical 
habitat. In the proposed rule, we requested 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. 
However, few substantive comments were received on this request. We 
find designation of critical habitat to be ``not determinable'' at this 
time. The ESA requires publication of a final rule to designate 
critical habitat within 1 year of the date of publication of this final 
listing rule.

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, 657 F. 2d 829 (6\th\ 
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 final rule does 
not contain a collection of information requirement for the

[[Page 62930]]

purposes of the Paperwork Reduction Act.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. Section 6 requires agencies 
to ensure meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications. We have determined that the rule to list the Cook Inlet 
beluga whale under the ESA is a policy that has federalism 
implications, as defined in Section 1. Consistent with the requirements 
of E.O. 13132, 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 requested information from appropriate State 
resource agencies in Alaska regarding the proposed ESA listing. The 
Alaska Departments of Fish and Game (ADFG); Natural Resources; 
Commerce, Community and Economic Development; and Environmental 
Conservation responded with comments to the proposed rule. The ADFG 
raised concern for the adequacy of existing population trend data, and 
by letter dated December 24, 2007, requested a 6-month extension on the 
final listing decision to allow for incorporation of 2008 abundance 
estimates. As stated above, we determined that the extension was 
warranted, and we analyzed additional data and conducted further 
analyses during that time that support this final listing action.

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 have contacted those tribal governments and Native corporations 
that may be affected by this action, provided them with a copy of the 
proposed rule, and offered the opportunity to comment on the proposed 
rule and discuss any concerns they may have. No requests for 
consultation were received.

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.

    Dated: October 17, 2008.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 224 is amended as 
follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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]

0
2. In Sec.  224.101, amend paragraph (b) by adding, ``Beluga whale 
(Delphinapterus leucas), Cook Inlet distinct population segment;'' in 
alphabetical order.
[FR Doc. E8-25100 Filed 10-17-08; 11:15 am]
BILLING CODE 3510-22-S