34590 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

This revised language would allow

the Commandos and their beneficiaries

to receive their rightful share of the

money Congress intended them to have,

while at the same time allowing DoD to

exercise control if the payments are not

in conformance with the law. DoD is

strongly urged to implement this

proposed revision in place of the unfair,

unworkable, and unreasonable language

proposed in the Interim Final Rule.

Response: The suggested change to

the regulation is not consistent with or

required by the statute. This statute

makes clear that the compensation must

be paid directly to the claimants,

notwithstanding a power of attorney

indicating that another disposition is

preferred.

Executive Order 12866, Regulatory

Planning and Review

It has been determined that 32 CFR

part 270 is not a major rule. It does not

have an annual effect to the economy of

$100 million or more or adversely affect

in a material way the economy; a

section of the economy; productivity;

competition; jobs; the environment;

public health or safety; or State, local,

or tribal governments or communities.

Public Law 96–354, Regulatory

Flexibility Act (5 U.S.C. 601)

It has been certified that 32 CFR part

270 is not subjet to the Regulatory

Flexibility Act (5 U.S.C. 601) because it

does not, it promulgated, have a

significant economic impact on a

substantial number of small entities.

The primary reason for this rule is to

provide compensation for a limited

number of Vietnamese Commandos who

were incarcerated in North Vietnam,

and as such, does not affect small

entiites.

Public Law 96–511, Paperwork

Reduction Act (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part

270 does not impose reporting and

recordkeepting requirements under the

Paperwork Reduction Act of 1995. The

reporting and recordkeeping

requirements are exempt from this Act,

as it directly involves active litigation in

which the U.S. is a party.

The specific exemption from the

Paperwork Reduction Act is found in 5

CFR part 1320. The information

collection in this final rule is exempt

from OMB approval under Section

1320.4(a)(2), ‘‘Controlling Paperwork

Burdens on the Public; Regulatory

Chnges Reflecting Recodification of the

Paperwork Reduction Act’’.

Public Law 104–4, Unfunded Mandates

Report Act of 1995 (UMRA)

It has been determined that 32 CFR

part 270 does not contain a federal

mandate that may result in expenditures

of $100 million or more for state, local,

and tribal governments, in the aggregate,

or the private sector in any one year.

Accordingly, the interm rule

amending 32 CFR Part 270, which was

published at 63 FR 68194 on December

10, 1998, is adopted as a final rule

without change.

Dated: May 22, 2000.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 00–13285 Filed 5–30–00; 8:45 am]

BILLING CODE 5001–10–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 990922260–0141–02; I.D.

083199E]

RIN 0648–AM84

Designating the Cook Inlet, Alaska,

Stock of Beluga Whale as Depleted

Under the Marine Mammal Protection

Act (MMPA)

AGENCY: National Marine Fisheries

Service (NMFS), NOAA, Commerce.

ACTION: Final rule, response to

comments.

SUMMARY: Based upon the available

information regarding the status of the

Cook Inlet stock of beluga whales,

NMFS has determined that the Cook

Inlet stock of beluga whales is below its

Optimum Sustainable Population (OSP)

levels and, therefore, is depleted as

defined in the MMPA. This action is a

step in the process under the MMPA to

address the sharp decline in the number

of Cook Inlet beluga whales. It is

intended as a conservation measure to

reverse the decline and to promote

recovery of the stock of beluga whales.

DATES: Effective June 30, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael Payne, NOAA/NMFS, Alaska

Region, (907) 586–7235, Barbara

Mahoney, NOAA/NMFS, Alaska Region,

Anchorage Field Office, (907) 271–5006,

or Thomas Eagle, Office of Protected

Resources, (301) 713–2322, ext. 105.

SUPPLEMENTARY INFORMATION:

Background

Section 3(1) of the MMPA (16 U.S.C.

1362(1))defines the term, ‘‘depletion’’ or

‘‘depleted’’, as

* * *any case in which

(A) The Secretary, after consultation with

the Marine Mammal Commission and the

Committee of Scientific Advisors on Marine

Mammals * * *determines that a species or

population stock is below its optimum

sustainable population.

(B) A state, to which authority for the

conservation and management of a species or

population stock is transferred

* * *determines that such species or

population stock is below its optimum

sustainable population.

(C) A species or population stock is listed

as an endangered species or a threatened

species under the Endangered Species Act of

1973 * * *

Section 3(9) of the MMPA (16 U.S.C.

1362(9)) further defines OSP as ‘‘

* * *with respect to any population

stock, the number of animals which will

result in the maximum productivity of

the population or the species, keeping

in mind the carrying capacity (K) of the

habitat and the health of the ecosystem

of which they form a constituent

element.’’

NMFS regulations at 50 CFR 216.3

clarify the definition of OSP as a

population size that falls within a range

from the population level of a given

species or stock that is the largest

supportable within the ecosystem (K) to

its maximum net productivity level

(MNPL). Maximum net productivity is

the greatest net annual increment in

population numbers or biomass

resulting from additions to the

population from reproduction, less

losses due to natural mortality.

Section 2 of the MMPA (13 U.S.C.

1361) states that marine species,

populations and/or stocks should not be

permitted to fall below their OSP level.

Historically, MNPL has been expressed

as a range of values (generally 50 to 70

percent of K) determined theoretically

by estimating what size stock in relation

to the original stock size will produce

the maximum net increase in

population (42 FR 12010, 1 March

1977). In 1977, the midpoint of this

range (60 percent) was used to

determine whether dolphin stocks in

the eastern tropical Pacific Ocean were

depleted (42 FR 64548, 27 December

1977). The 60–percent value was

included in the final rule governing the

taking of marine mammals incidental to

commercial fishing operations (45 FR

72178, 31 October 1980).

On November 19, 1998, NMFS

initiated a Status Review of the Cook

Inlet beluga whale stock (63 FR 64228).

The comment period on the status

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations 34591

review extended from November 19,

1998, through January 19, 1999, and was

initiated at the same time that

workshops were being convened to

review beluga whale stocks throughout

Alaska. The workshops were held by the

Alaska Beluga Whale Committee

(November 16–17, 1998) and the Alaska

Scientific Review Group (November 18–

20, 1998), a body established under the

MMPA to provide scientific advice to

NMFS and the U.S. Fish and Wildlife

Service. Additionally, NMFS received a

petition from the State of Alaska on

January 21, 1999, to designate this stock

as depleted under the MMPA.

NMFS also received two petitions,

one on March 3, 1999, and another on

March 10, 1999, to list Cook Inlet beluga

whales as endangered under the

Endangered Species Act (ESA). One

petition requested emergency listing

under section 4(b)(7) of the ESA and

designation of critical habitat. Both

petitions requested immediate action to

implement regulations for the

subsistence harvest. This notice

addresses neither these petitions nor

comments received relating solely to the

possible ESA listing. NMFS determined

that the petitioned actions may be

warranted (64 FR 17347, April 9, 1999),

but no determination on whether listing

this stock as a threatened or endangered

species under the ESA has been made

at this time.

To further ensure that the status

review was comprehensive and based

on the best available scientific data, the

comment period was followed by a

NMFS-sponsored workshop on March

8–9, 1999, that provided a review of

relevant scientific information on this

stock. At this workshop, NMFS received

additional public comments and

recommendations. The proceedings and

abstracts of presentations from this

workshop are available (NMFS, 1999).

Following a review of public

comments and of the available

information presented at the workshops,

NMFS published a proposed rule to

designate the Cook Inlet stock of beluga

whales as depleted (64 FR 56298, 19

October 1999) and allowed a 60-day

comment period, which was later

extended until January 19, 2000. NMFS

also conducted a public hearing on

November 22, 1999, on the proposed

designation of the Cook Inlet stock of

beluga whales as depleted under the

MMPA.

NMFS received 800 letters from the

public during the comment period on

the proposed rule. Many letters

contained comments regarding a finding

under the ESA; however, comments and

responses in this notice are limited only

to those related to the depletion

designation under the MMPA.

Comments and Responses

Comment 1: Many comments (783)

concurred with NMFS’ decision to

designate the Cook Inlet beluga whale

stock as depleted under the MMPA.

Many commenters further

recommended that NMFS proceed

immediately in listing the stock as

endangered under the ESA and in

designating critical habitat.

Response: With regard to the depleted

determination, NMFS concurs with the

comment. The Cook Inlet beluga whale

stock is below OSP and, therefore,

depleted under the MMPA. This final

rule designates the stock as depleted. No

final determination has been made

under the ESA at this time.

Comment 2: Seven commenters

supported a depleted designation only,

and five would add their support only

if it is necessary to help regulate a hunt

under a co-management agreement with

Alaska Native organizations and until

the population recovers.

Response: NMFS has determined that

the stock is below its OSP; therefore, the

stock meets the definition of depleted

under the MMPA. NMFS is designating

the stock as depleted. The MMPA

provides that, while the Alaska Native

subsistence harvest is generally exempt

from its provisions, the Federal

government can restrict subsistence

harvests of populations or stocks that

are depleted.

Comment 3: Ten commenters were

opposed to designating the Cook Inlet

beluga whale as depleted under the

MMPA or threatened or endangered

under the ESA.

Response: Because the stock meets the

definition of depleted under the MMPA,

NMFS must designate the stock as

depleted and begin developing

conservation and management strategies

for the stock’s recovery.

Comment 4: Two commenters stated

that NMFS has the authority and

responsibility to manage the beluga

harvest in Cook Inlet without listing the

stock under either the MMPA or the

ESA.

Response: NMFS recognizes its

responsibility to conserve all stocks of

marine mammals regardless of their

status; however, the MMPA establishes

a specific procedure for the Federal

government to regulate subsistence

harvest, which has been identified as

the major factor responsible for the

decline of the stock, once a stock is

designated as depleted.

Comment 5: Four commenters urged

NMFS to expeditiously enter into a comanagement agreement for the beluga

harvest, and three of these stated that

this should be the ultimate application

of the depleted listing.

Response: NMFS is pursuing a comanagement agreement for the

conservation of Cook Inlet beluga and

the management of the beluga harvest.

The depletion finding is a necessary

component of an effective comanagement agreement because

enforceable harvest restrictions are

dependent upon a depleted

determination.

Comment 6: Three commenters urged

NMFS to enter into a co-management

agreement with the Cook Inlet Marine

Mammal Council (CIMMC).

Response: During 1999, NMFS

engaged in negotiations with CIMMC for

the management of the beluga harvest.

Although these negotiations have not

yet produced an agreement, NMFS

plans to continue to work with CIMMC

to complete an enforceable comanagement agreement to conserve the

stock and co-manage subsistence use.

Comment 7: One commenter noted

NMFS failure to enter into a comanagement agreement and stated that

NMFS should give the co-management

process a chance before making a

depleted determination.

Response: NMFS will continue to

negotiate with Alaska Native

organizations to enter a co-management

agreement to promote recovery of the

stock. Please see response to comment

5.

Comment 8: One commenter stated

that NMFS refused CIMMC’s attempts to

negotiate a co-management agreement.

Response: NMFS has not refused

CIMMC’s attempts to negotiate a comanagement agreement. NMFS and

CIMMC met in January 1997 to discuss

a draft co-management agreement that

CIMMC had prepared. During this

meeting, NMFS and CIMMC discussed

limitations on authority to restrict the

harvest of Cook Inlet beluga and agreed

that negotiations on stock or areaspecific agreements should be

postponed until after NMFS and the

Indigenous Peoples’ Council for Marine

Mammals completed an umbrella comanagement agreement. Since then,

NMFS and CIMMC have held several

discussions to promote conservation of

Cook Inlet beluga, including those that

resulted in NMFS’s contracting with

CIMMC to provide an estimate of annual

harvest; however, these discussions

have not yet produced an agreement on

the harvest of Cook Inlet beluga.

Comment 9: One commenter urged

NMFS to promulgate regulations to

control the harvest before the

Congressional moratorium expires in

September of 2000.

34592 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

Response: This final rule is the first

step in promulgating such regulations.

NMFS intends to consult closely with

affected Alaska Native organizations in

preparing such regulations to avoid

misunderstanding that could slow their

completion. Regulations to restrict

subsistence harvest of marine mammals

cannot be completed until a formal

rulemaking hearing has been held in

accordance with section 103(d) of the

MMPA.

Comment 10: One commenter asked

why NMFS has not proposed new

emergency policies or enforcement

strategies to protect Cook Inlet beluga.

Response: The MMPA and ESA

establish a specific regulatory process

for limiting subsistence harvest, and

neither statute includes emergency

provisions to eliminate portions of the

process. No cause other than the

subsistence harvest has been directly

linked to the decline; therefore, other

emergency polices, strategies, or actions

would not likely promote recovery.

Special legislation has protected Cook

Inlet beluga whales from subsistence

harvest since May 21, 1999. This final

rule is the first step in promulgating

regulations governing the subsistence

harvest when the special legislation

expires on October 1, 2000.

Comment 11: One commenter stated

that beluga hunting should be limited to

personal and family subsistence needs,

and two others suggested that NMFS

prohibit the sale of beluga products.

Response: The MMPA has specific

provisions related to

Alaska Native use of marine mammals

for subsistence or handicraft purposes,

and these include a limited sale of

edible products within Alaska Native

villages or for Native consumption.

Comment 12: One commenter stated

that the MMPA does not permit the

wasteful taking or the primarily

commercial harvest of beluga. Further,

Congress intended that NMFS regulate

any commercial sale beyond that which

constitutes a limited cash economy.

Response: Comment noted.

Comment 13: One commenter urged

NMFS to use its full authority under the

MMPA to implement protective

measures on areas of ecological

significance to beluga.

Response: The MMPA allows NMFS

to implement conservation or

management measures to alleviate

impacts on rookeries, mating grounds,

or other areas of similar significance to

marine mammals where it can be

demonstrated that the impacts may be

causing a decline or impeding recovery

of a strategic stock. Other than

subsistence harvest, NMFS has not

identified impacts that are having such

an effect on the stock.

Comment 14: Five commenters asked

NMFS to publish clearly defined criteria

for delisting beluga.

Response: Although delisting is an

action under the ESA, NMFS interprets

the comment to mean criteria for

determining the stock has recovered

from depletion. The criterion for

determining that the stock has recovered

would be that the stock is no longer

below the lower bound of its OSP.

Comment 15: Many commenters

stated that Cook Inlet beluga face threats

from anthropogenic sources, urged

NMFS to evaluate the possible effects of

these activities on beluga in Cook Inlet,

and suggested that NMFS consider any

impacts in a conservation plan. These

commenters cited a variety of threats,

including the following: contaminants

(toxins such as PCBs, pesticides, heavy

metals, hydrocarbons); oil and gas

development with associated seismic

activity, drilling and refineries;

chemical plants; noise pollution

(Anchorage Airport); mass strandings;

commercial fishery interactions

(entanglements) and food competition;

shipping/vessel traffic; urban runoff/

non-point source pollution; municipal

wastewater/sewage discharges;

recreational and commercial (whale

watching) boat traffic/personal water

craft; killer whale predation; forestry

activities/logging; fish farms; dredging;

and development.

Response: NMFS is currently

preparing a draft Environmental Impact

Statement (DEIS) that reviews the

impacts of a range of anthropogenic

activities on Cook Inlet beluga. This

DEIS will also evaluate the impacts of

subsistence harvest on the beluga whale

recovery. A conservation plan will be

prepared unless it would not promote

the conservation of the stock.

Comment 16: Two commenters stated

that pollutants or commercial and

industrial activities are not a factor in

the ‘‘alleged’’ decline of Cook Inlet

beluga.

Response: These factors will be

evaluated within the DEIS.

Comment 17: Two commenters stated

that water and sediment studies

demonstrate that the oil and gas

industry is not contaminating Cook

Inlet. Additional studies show that oil

and gas activities are not influencing the

distribution of beluga in the inlet.

Response: Comment noted.

Comment 18: Four commenters stated

that data from the municipality of

Anchorage water monitoring and other

water quality studies show no impact to

Cook Inlet from industrial activities.

Further, Federal and state studies have

demonstrated that pollution is not a

factor in the beluga decline.

Response: Comment noted.

Comment 19: One commenter stated

that local, state and Federal studies have

demonstrated that industrial activity is

not a detriment to Cook Inlet beluga.

Response: Comment noted.

Comment 20: Several commenters

expressed concern that a depleted

designation would restrict commercial

and industrial activity in Cook Inlet,

with widespread economic

repercussions.

Response: A depleted designation

does not, in itself, mandate any

restrictions on these or any other

activities within the Cook Inlet region.

Rather, it formally recognizes that the

stock is below its OSP.

Comment 21: One commenter stated

that, although NMFS presumes that the

subsistence harvest is the cause of the

beluga decline, no research has been

conducted on the impacts to beluga

from oil and gas discharges, sewage

discharges, or non-point source runoff

on beluga.

Response: Although NMFS has not

initiated research specifically to

determine whether or not these factors

were affecting the stock, the Status

Review (NMFS, 1999) examined

existing information and indicated that

habitat modification related to these

activities could not account for the

decline in the stock. Details of this

analysis are included in the DEIS.

Comment 22: One commenter stated

that the entire decline of beluga in Cook

Inlet cannot be attributed to subsistence

harvest alone; other factors need to be

evaluated.

Response: The information included

in the Status Review clearly shows that

the harvest from 1994 through 1998, the

period when reliable abundance

estimates were available, was sufficient

to account for the decline.

Comment 23: One commenter stated

that Cook Inlet is the only U.S. drilling

area exempt from regulations

prohibiting the dumping of certain

toxins and heavy metals.

Response: Comment noted.

Comment 24: One commenter

recommended that NMFS refine its

capacity to adequately assess and

diagnose declines in the Cook Inlet

beluga whale population.

Response: Since 1994, when NMFS

first became aware that mortality of

Cook Inlet beluga was exceeding

sustainable levels, NMFS directed

substantial resources into scientific

research assessing the trend of the stock,

determining stock boundaries, and

estimating annual mortality. The

resulting program produced a series of

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations 34593

abundance estimates from 1994 through

1998, and these estimates have met

scientific scrutiny. Reviews of these

NMFS projects have been conducted

through the peer-review process

inherent in completing scientific

publications and through comments

received from annual meetings of the

Alaska Scientific Review Group (which

was established specifically to provide a

critical review of NMFS research).

Aerial surveys are conducted under

standardized protocols, which were

established in 1994. These protocols

allow reliable inter-year comparisons of

estimates. Analytical procedures were

improved during the period from 1994

to 1998, and these improvements were

applied to all of the abundance

estimates from 1994 to 1999 to maintain

consistence when trends in abundance

are estimated. Thus, NMFS has, indeed,

improved its capacity to assess this

stock.

Comment 25: One commenter stated

that NMFS must take the time to

improve the quality of the science

before considering any listing of this

species.

Response: NMFS interpreted the

phrase ‘‘any listing’’ in this comment

and any subsequent comment to mean

a listing as threatened or endangered

under the ESA or a designation as

depleted under the MMPA. The MMPA

requires that NMFS base its

determination on the best available

scientific information. The scientific

basis for the determination is discussed

in the response to comment 24, and it

is clearly sufficient to determine that the

stock is below its OSP and, therefore, is

depleted.

Comment 26: One commenter stated

that data on beluga are scarce and

derived from questionable

methodologies and that a listing

determination should be delayed until

better data can be obtained.

Response: NMFS disagrees that the

existing data are inadequate to be used

as a basis for the depleted

determination. The data from 1994

through 1998 indicate a high probability

that the stock has declined below its

OSP. Furthermore, the limited

information from the 1960s through the

1980s suggest the actual historical

abundance exceeded the estimate from

1994, and the stock is even farther

below its OSP than the data from 1994

through 1999 indicate.

Comment 27: One commenter stated

that NMFS is currently relying on

ineffective and inadequate methods for

assessing the beluga population.

Response: See previous response to

comment 24.

Comment 28: One commenter noted

that the 1998 draft abundance estimate

was revised abruptly to a level far lower

than the original and that a critical

analysis of the new estimate was not

made available for public scientific

review.

Response: The 1998 abundance

estimate was revised after analyses of

the survey data from 1994 through 1998

were completed. These revised

estimates have been thoroughly

reviewed in the scientific community

and constitute the best available

scientific information.

Comment 29: One commenter

asserted that, since previous (historical)

uncorrected counts of Cook Inlet Beluga

have ranged between 300 to 500 whales,

NMFS should base OSP at 500 animals

rather than at 1,000 animals, the

agency’s current use for OSP.

Response: Uncorrected counts are not

an accurate estimate of population

abundance because they fail to include

estimates of animals that were present

but not counted during surveys, such as

animals that are below the surface at the

time of the count. Such estimates of

animals present but not counted are

commonly used in the scientific

literature and are accepted statistical

practices for making conservation or

management decisions.

Uncorrected counts are valuable for

assessing population trends, and those

available for the Cook Inlet beluga

population show variation but no

specific trend prior to the 1994–1999

surveys. Therefore, NMFS concluded

that the abundance was relatively stable

during the period for which the Alaska

Department of Fish and Game

conducted its surveys.

Comment 30: Two commenters stated

that a new abundance estimate formula

was used on the uncorrected (raw)

counts from each year resulting in a

percentage decline ranging from 38

percent to 62 percent between 1994 and

1998 depending upon which analysis

(old or new) was used on the raw count.

This new formula should be published

and reviewed before it is used as the

basis of any new listing.

Response: See previous response to

comment 24 for a discussion of formulas

and survey design for estimating

abundance of Cook Inlet beluga. NMFS

used one analytical technique in the

initial abundance estimates (e.g., 1994)

and reported these estimates. By 1998,

NMFS had improved the analytical

technique and used the new technique

to re-analyze all abundance estimates

during the period 1994 through 1999.

Such an approach allowed NMFS to

make its determination on estimates that

were collected under a standard

protocol and analyzed by the same

analytical techniques. The formulas

upon which the analytical techniques

were based and the specific application

of these analytical techniques to the

1994 through 1998 beluga surveys has

been subjected to peer review.

Comment 31: Two commenters stated

that NMFS has used a number of

different population numbers, including

raw counts, abundance estimates,

minimum abundance estimates, and

anecdotal accounts in making listing

decisions and that the agency should

halt this practice and choose one value

for evaluation.

Response: When making a finding on

a stock of marine mammals that is used

for subsistence harvest, NMFS must, by

statutory requirement, ensure that the

finding is supported by substantial

evidence on the basis of the record as a

whole. Therefore, NMFS has considered

all sources of evidence in evaluating the

status of Cook Inlet beluga.

Comment 32: One commenter states

that NMFS’s population trend data is

imprecise and that beluga in Cook Inlet

may not be depleted.

Response: Although the estimates and

data upon which they are based are not

perfect, they are sufficient to conclude

that the stock is depleted. As explained

in the previous response to comment 24,

NMFS supports the abundance

estimates upon which this

determination is based.

Comment 33: One commenter

questioned why NMFS used the most

recent population estimate of 347 and

not the more conservative figure of 217

beluga whales as its 1998 population

estimate.

Response: NMFS scientists counted

193 beluga during its 1998 aerial survey

and 217 during the 1999 survey. These

counts are not abundance estimates.

Instead, abundance estimates include

calculations for the number of animals

that were not seen during the count but

were present during the survey. Such an

approach is a standard statistical

practice and is overwhelmingly

supported in the scientific literature.

The abundance estimate from the 1998

surveys is 347 beluga.

Comment 34: One commenter stated

that the abundance estimates are

confusing and questionable.

Response: NMFS understands that

statistical procedures used in

abundance estimates are often complex;

however, they provide the best available

scientific information.

Comment 35: One commenter stated

that the data and conclusions do not

match when applying NMFS harvest

figures against NMFS population

estimates.

34594 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

Response: The relationship between

the harvest and the population trend is

within the margins of error for the

estimates.

Comment 36: One commenter stated

that more research is needed on food

resource availability for beluga

especially in regard to the Susitna River

salmon stocks.

Response: Comment noted.

Comment 37: Two commenters

suggested that NMFS establish a

research protocol for the Cook Inlet

beluga that involves an advisory

committee of Federal and state agencies,

CIMMC, oil and gas industry, fishing,

transportation, municipality, tourism,

and environmental groups.

Response: Comment noted. NMFS

also notes that the Alaska Scientific

Review Group was established

specifically to review and advise NMFS

on research protocols and other

scientific matters on marine mammals

in Alaska. Although the Review Group

does not include representatives from

all the entities suggested in the

comment, its meetings and workshops

are open to the public.

Comment 38: One commenter stated

that NMFS should take the time to

improve the quality of its data before

making any listing decisions.

Response: See response to comments

24 through 35.

Comment 39: One commenter stated

that NMFS should direct resources for

the collection of more biological data on

beluga, including data to estimate life

history parameters.

Response: Comment noted.

Comment 40: One commenter stated

that more research is needed to

determine where Cook Inlet beluga go

during the winter months.

Response: Such information would

improve our understanding of Cook

Inlet beluga; however, winter

distribution likely has little effect on the

size and trend of the breeding

population that is found in Cook Inlet.

This comment, however, did cause

NMFS to realize that the proposed rule

would have included individuals from

the stock only when they were in Cook

Inlet. NMFS realizes that beluga may

leave the confines of Cook Inlet during

the winter and perhaps at other times

during the year. To correct this

oversight, NMFS has revised the final

rule to modify the definition of the stock

so that Cook Inlet beluga are included

when they are outside of the inlet.

Comment 41: One commenter stated

that NMFS needs to conduct additional

DNA studies of beluga in Cook Inlet and

Bristol Bay, as well as DNA studies of

other whales sighted in Prince William

Sound to determine whether the Cook

Inlet Beluga population is isolated and

unique.

Response: The models used to

distinguish between aggregations of

animals are very sensitive to animals

moving between areas; thus, if more

than a handful of individuals dispersed

between the groups during an entire

generation, the models would not

distinguish them as separate. The

existing data support a significant

difference among all 5 stocks of beluga

in Alaska, and the Cook Inlet stock is

the most distinct. Given these findings,

additional information is not likely to

add meaningfully to the question of

whether or not the stocks are distinct.

Beluga occurrence in Prince William

Sound is too rare to justify a dedicated

sampling effort, but, when one or more

beluga are seen there, NMFS will

attempt to obtain tissue samples for

genetic analysis as the opportunity

arises.

Comment 42: One commenter stated

that a better method for counting beluga

whales needs to be developed and more

aerial surveys of Cook Inlet beluga need

to be performed in the summer months.

Response: Comment noted. NMFS

plans to continue aerial surveys of Cook

Inlet beluga in the late spring and early

summer.

Comment 43: One commenter stated

that limited food supplies might be

affecting beluga health in Cook Inlet and

that reports indicated that the beluga

appeared thin.

Response: Comment noted.

Comment 44: Two commenters

offered assistance to NMFS to improve

assessment methods and provide

practical, enhanced data collection

methods.

Response: NMFS appreciates offers of

assistance. Currently, NMFS is satisfied

with its beluga assessment methods;

however, NMFS staff are open to new

ideas to improve assessment or conduct

the assessments more efficiently.

Comment 45: One commenter stated

that the extensive subsistence harvest is

to blame for the decline in beluga.

Response: Comment noted.

Comment 46: One commenter

expressed concern over the impact the

depleted listing will have on their

subsistence way of life.

Response: NMFS recognizes that

subsistence harvests are important to

Alaska Native culture and supports the

provisions of the MMPA that enable

such harvests to continue. Conservation

measures may restrict harvest of the

stock temporarily; however, the lack of

conservation measures could lead to a

continued decline or extirpation of the

stock, which would have a profound

and long-term effect on local

subsistence harvest. Furthermore,

NMFS does not intend to promulgate

conservation measures unilaterally.

Rather, NMFS intends to work with the

local Alaska Native community through

the co-management process to design

conservation measures that would

sustain the beluga population for

subsistence use by future generations.

Comment 47: One commenter stated

that tribal knowledge should be used to

determine OSP and that the tribes

should collect and analyze this data.

Response: NMFS welcomes

information based upon tribal

knowledge to be presented for use in

conservation decisions. Tribal

knowledge would be incorporated into

the entire body of evidence supporting

management decisions. NMFS,

however, is directed to use the best

available scientific information in

making findings under the MMPA and

would have to follow this direction in

its decisions.

Comment 48: One commenter stated

that NMFS cites Traditional Knowledge

for its K in determining OSP, yet the

agency does not adequately consider

Traditional Knowledge when

identifying the cause of the beluga

decline and the appropriate remedies.

The commenter noted that it is not

appropriate for NMFS to use Traditional

Knowledge to support one point while

failing to consider it in other regards.

Response: NMFS considered all

information available in making the

depletion finding. The tangible evidence

for historical abundance of Cook Inlet

beluga is sparse and not well

documented, and NMFS concluded that

the historical abundance, which is used

as an estimate of K, is unknown. Several

lines of evidence, including

observations by Alaska Natives and

weakly-supported abundance estimates,

were considered to estimate historical

abundance.

For the purposes of the depletion

finding, assigning the cause of the

decline is of less importance than

establishing whether the population is

below its OSP. Addressing the cause or

causes of the decline will be more

critical in designing and implementing

conservation measures to promote

recovery of the stock. NMFS will give

due consideration to all sources of

information and intends to work closely

with the affected Alaska Native

community, as well as with other

affected constituents, in identifying and

designing appropriate conservation

measures.

Comment 49: One commenter stated

that NMFS has acknowledged that many

hunters do not belong to organized

native organizations and that they have

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations 34595

not been cooperative about reducing the

harvest of beluga. Response: NMFS agrees that

voluntary efforts have not been effective

in limiting harvest to sustainable levels;

however, NMFS has observed an overall

cooperative approach to recognizing the

problem and the need to promote

recovery. Comment 50: One commenter stated

that NMFS decided to list the beluga as

depleted because of pressure from

conservation groups. Response: NMFS is basing its

depleted determination on the basis of

the best available scientific information,

as required by the MMPA. The best

available scientific information

indicates that the stock is below its OSP.

Comment 51: One commenter stated

that NMFS’s review of factors in the

beluga’s decline (other than harvest)

was cursory. While NMFS’s

assumptions may prove to be correct, it

appears that NMFS was pressured by

political and commercial entities to

downplay the role of anthropogenic

factors in the beluga’s decline. Response: NMFS acknowledges that

there is little information available to

evaluate the range of factors (other than

harvest) that may be involved in the

decline. Thus, it is not surprising that

such an evaluation appears cursory.

NMFS maintains, however, that there is

sufficient information available to

conclude that the stock is depleted. Comment 52: One commenter advised

NMFS that if Cook Inlet and Bristol Bay

beluga are found to co-mingle, the

depleted determination should be

revoked.

Response: If NMFS were to learn that

individuals from Cook Inlet and Bristol

Bay mix temporarily during the nonbreeding seasons, NMFS would still not

have the evidence upon which to

conclude that the stock is no longer

depleted. The genetic analyses

demonstrate conclusively that there is

insufficient interbreeding among the

various stocks of beluga in Alaska to

mask the genetic distinction of each

stock or to have a measurable effect on

population status and trends. Comment 53: One commenter

disagreed with NMFS’s assertion that

the Cook Inlet stock of beluga is an

isolated stock that lives yearround in

the Inlet.

Response: NMFS has not asserted that

all members of the stock remain within

the inlet yearround (see response to

comment 40). NMFS has asserted, and

continues to assert, that the stock within

Cook Inlet is genetically distinct from

other aggregations of beluga in Alaska,

which inhabit areas north of the

Aleutian Peninsula.

Comment 54: One commenter

expressed a fear that, if NMFS

designates the Cook Inlet beluga whale

as depleted, it will regulate the harvest

with little regard for the opinions of

Native Alaskan hunters.

Response: NMFS recognizes the

importance of beluga whales to the Cook

Inlet communities and will work with

local Alaska Natives to promote

recovery of the beluga stock so that a

sustainable harvest can be maintained

for future generations. Comment 55: One commenter stated

that the MMPA does not provide

sufficient habitat protection to Cook

Inlet beluga. Response: Comment noted.

Comment 56: One commenter urged

NMFS to develop a regional

contingency stranding plan under 16

U.S.C. 1421c(b).

Response: NMFS intends to develop a

contingency stranding plan for the

region. Comment 57: One commenter

expressed concern that beluga blubber

from Cook Inlet is a source of significant

contaminant exposure for human

subsistence consumers.

Response: Comment noted.

Comment 58: One commenter urged

NMFS to conduct studies on beluga

tissue samples to assess the health of the

population, determine contaminant

body burdens, and determine the effects

of various pollutants on the Cook Inlet

stock of beluga whales. Response: NMFS has conducted

health, contaminant, and life-history

studies on Cook Inlet beluga and

intends to continue such studies.

Comment 59: One commenter,

concerned about incidental mortality in

fishing operations, suggested that NMFS

reclassify fisheries in Cook Inlet from

Category III to Category II fisheries to

allow for additional data collection to

assess the fisheries’ impact on the

beluga. Response: These fisheries are

currently included in Category III

because NMFS believes they have only

a remote likelihood of seriously injuring

marine mammals. Because these

fisheries have such a low mortality rate,

NMFS would more likely use its limited

resources to evaluate other mortality

factors than to direct them into such an

expensive activity that would likely

provide little additional information. Comment 60: Three commenters

stated that NMFS lacks the data to

determine the level of incidental take in

fisheries. They recommended that

NMFS place observers on Category III

fishing vessels to determine the accurate

level of incidental take, if any. The

commenter insisted that these actions

would help NMFS to better assess

incidental take of beluga and to better

understand what is happening to their

food supply.

Response: See response to comment

59.

Comment 61: One commenter urged

NMFS to expeditiously prepare a

conservation plan under the MMPA for

Cook Inlet beluga.

Response: NMFS will prepare a

conservation plan as quickly as limited

resources will allow. Initial

conservation efforts will not, however,

be delayed until such a plan is final.

Determination of ‘‘Population Stock’’ or

‘‘Stock’’

To designate the Cook Inlet

population of beluga whales as a

depleted stock under the MMPA, it

must first qualify as a ‘‘population

stock’’ or ‘‘stock’’. Based on the best

available information as discussed

below, NMFS determined that beluga

whales in Cook Inlet are a population

stock or stock as defined by the MMPA.

Section 3(11) of the MMPA defines a

population stock or stock as a group of

marine mammals of the same species or

smaller taxa in a common spatial

arrangement, that interbreed when

mature. Although this definition is in

part a legal interpretation, stocks,

species, and populations are biological

concepts that must be defined on the

basis of the best scientific data available.

NMFS considered several lines of

evidence regarding the population

structure of Cook Inlet beluga whales in

the proposed designation. They are

summarized in the following

discussion.

Distribution of beluga whales within

Cook Inlet: The summer or open water

distribution of Cook Inlet beluga whales

is considered to be largely confined to

waters of Cook Inlet (Laidre et al., In

press). Analysis of aerial surveys for

beluga whales and other survey data for

the northern Gulf of Alaska suggests no

large, persistent group of beluga whales

exists other than in Cook Inlet. This

distribution pattern is consistent with

western and Arctic beluga whale stocks

in Alaska, which regularly return to

discrete coastal summering areas.

Additionally, the Cook Inlet area is

physically separated from the remaining

four Alaskan beluga whale stocks by the

Alaskan Peninsula, which may act as a

partial barrier restricting movement

between stocks.

Genetic Isolation: Genetic profiles

have been obtained from approximately

470 beluga whales in Alaska and

Canada, including 64 animals from

Cook Inlet. Mitochondrial DNA analysis

of beluga whale stocks from Cook Inlet,

Bristol Bay, eastern Chukchi Sea,

34596 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

eastern Bering Sea, and Beaufort Sea

indicated that they are all significantly

different from each other (O’CorryCrowe, et al., 1997). Of these, the Cook

Inlet beluga whales were found to be the

most distinct.

Final Determination under the MMPA

Based on the best available scientific

information available as discussed

below, NMFS has determined that the

Cook Inlet stock of beluga whales is

below OSP and is, therefore, depleted.

Historical Abundance: The true K,

which is the basis for OSP

determinations, for this stock is

unknown. Furthermore, reliable

historical abundance estimates, which

may be used as a substitute for K, are

not available.

The available evidence for historical

abundance prior to the 1994 surveys

includes counts from the 1960s through

the early 1980s conducted by the Alaska

Department of Fish and Game. These

counts ranged from about 200 to about

500 individuals. Based upon reports

from these counts, Gehringer and

Greenwalt (1978) concluded that the

abundance in Cook Inlet was about 500

beluga and that the stock was

considered to be at carrying capacity.

More recent information and evaluation

of the data upon which Gehringer and

Greenwalt (1978) based their

conclusions show that their conclusions

were not correct.

There is a large body of literature on

estimating the abundance of wild

animals, including marine mammals.

The literature is conclusive that direct

counts are not an accurate estimate of

actual abundance because animals are

missed due to a variety of reasons:

marine mammals may be underwater

when the aircraft is in the area; wind

and water conditions may be so rough

that animals are missed; animals may be

so close to one another that they are

counted as one; and some animals

(particularly juveniles) may be so small

that they are missed in the count. To

expand counts to an estimate of the

actual abundance, the literature

contains a variety of statistical models

to estimate the number of individuals

that were in the area, but were not

counted during a survey. These models

result in correction factors to expand

direct counts into estimates of

abundance.

Calkins (1984) used such a correction

factor of 2.7, which was developed for

beluga surveys in Bristol Bay. By

applying this correction factor to his

maximum count of 479 beluga in

August 1979, Calkins estimated the

abundance to be about 1,300 beluga in

Cook Inlet.

NMFS scientists advise that, when a

survey includes locating and counting

animals on a single pass in an airplane,

the correction factor may be as high as

3. Thus, Calkins’s estimate of about

1,300 beluga in August 1979 appears

reasonable. Furthermore, applying such

a correction factor to other counts by the

Alaska Department of Fish and Game

suggests the historical abundance may

have been 1,000 or more animals.

Additional evidence also supports an

estimate of historical abundance

exceeding 1,000 beluga. NMFS

biologists have discussed beluga

biology, distribution, and abundance

with experienced Alaska Native hunters

in the Cook Inlet region, and these

hunters agreed that there may have been

1,000 or more beluga in the 1970s and

early 1980s. Huntington (1999)

interviewed Alaska Native elders and

hunters regarding their knowledge of

Cook Inlet beluga and reported their

observation that fewer Cook Inlet beluga

have appeared in upper Cook Inlet in

recent years.

Recent Abundance: More recently,

Hobbs et al. (in press) designed a

research program to establish a reliable

method to estimate the number of

beluga in Cook Inlet and to provide such

estimates of abundance. Their methods

included repeated counts of groups of

beluga by multiple observers and videotaping groups for an extended period to

reduce the number of whales that were

missed during the counts. The video,

along with another enlarged image, was

used to identify beluga that surfaced

during the counting period and to

distinguish between small animals that

may have been counted as a single

individual. Their survey design also

used radio-tagged whales to estimate the

duration of dives by individual whales

so the abundance estimate could be

further corrected to account for whales

that were underwater for the entire

period that the group was counted and

video-taped.

Hobbs et al. (in press) flew

standardized surveys of beluga whales

in Cook Inlet during June/July of 1994–

1999. An aerial survey was also

conducted in 1993; however, the

objectives of the 1993 survey were to

establish optimal survey timing and

conditions and to refine survey

methods. The data collected in 1993

were insufficient for a reliable

abundance estimate. Abundance

estimates derived from their sighting

data declined from 653 in 1994 to 347

in 1998 (Table 1). The 1999 abundance

estimate was 357.

TABLE 1.—ESTIMATED ABUNDANCE OF BELUGA WHALES IN COOK INLET, ALASKA

Section 1994 1995 1996 1997 1998

Northwest 580 (0.47) 444 (0.48) 542 (0.30) 362 (0.09) 292 (0.32)

Northeast 48 (1.08) 31 (0.43) 52 (0.37) 76 (0.69) 55 (0.60)

South 25 (0.19) 17 (0.43) 0 (0.00) 2 (0.43) 0 (0.00)

Total .................................... 653 (0.43) 491 (0.44) 594 (0.28) 440 (0.14) 347 (0.29)

Note: Numbers in parentheses are the coefficients of variation of each estimate.

Under ideal conditions, NMFS would

compare the current population

estimate with the true K and MNPL to

make a determination whether a stock is

depleted. However, such conditions do

not exist in this case, and NMFS must

make the determination considering the

uncertainty that exists in the available

evidence. Therefore, NMFS considered

whether the reliable information

available from the standardized surveys

from 1994 through 1998 indicated that

the population had declined more than

40 percent during that period. If this

limited series of abundance estimates

indicated such a decline, the stock

would clearly be below its MNPL and,

thus, depleted.

Monte Carlo simulations indicate a

71–percent probability that a 40–percent

decline occurred between the June 1994

abundance survey of the Cook Inlet

beluga whales and the June 1998 survey.

The support for a depleted

determination is strengthened by the

fact that K was assumed to be the

highest of NMFS’s abundance estimates,

in this case the 1994 estimate of 653

animals. The actual K, as represented by

the historical abundance, of Cook Inlet

is probably higher than this number

based on previous counts, discussions

with local Native Alaskan hunters, and

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations 34597

anecdotal estimates of 1,000 or more

animals in the early 1980s. Native

subsistence harvest occurred throughout

the 1980s and 1990s, which suggests

that the 1994 abundance estimate likely

reflected a population that had already

been significantly reduced. If the

historical abundance, thus K, were

above 1,000 beluga, then the decline

would be even greater. If K for the stock

is more than 1,000, which is likely the

situation, the stock would be less than

35 percent of its historical abundance,

which is far below the MNPL.

References

Calkins, D.G. 1984. Belukha whale.

Vol. IX, in Susitna hydroelectric project;

final report; big game studies. Alaska

Department of Fish and Game. Doc. No.

2328.

Gehringer, J.W. and L.A. Greenwalt.

1978. Final Environmental Impact

Statement: Consideration of a waiver of

the moratorium and return of

management of certain marine mammals

to the State of Alaska, Vol. 1, summary

and text. U.S. Dep0artment of

Commerce, NOAA, NMFS and U.S.

Department of the Interior, Fish and

Wildlife Service, Washington, DC.

Hobbs, R.C., D.J. Rugh, and D.P.

Demaster. In press. Abundance of

beluga whales, Delphinapterus leucas,

in Cook Inlet, Alaska. Marine Fisheries

Review.

Laidre, K.L., K.E.W. Shelden, D.J.

Rugh, and B.A. Mahoney. In press.

Distribution of beluga whales and

survey effort in the Gulf of Alaska.

Marine Fisheries Review.

National Marine Fisheries Service.

1999. Synthesis of available information

on the Cook Inlet stock of beluga

whales. Processed Report 99–06,

National Marine Mammal Laboratory,

Alaska Fisheries Science Center, NMFS,

December 1999. 22 pp.

O’Corry Crowe, G.M., R.S. Suydam, A.

Rosenberg, K.J. Frost, and A.E. Dizon.

1997. Phylogeography, population

structure and dispersal patterns of the

beluga whale Delphinapterus leucas in

the western Nearctic revealed by

mitochondrial DNA. Molecular Ecology

6:955–970.

Classification

The Assistant Administrator for

Fisheries, NOAA (AA) has determined

that this is not a significant rule under

E.O. 12866. The regulations are not

likely to result in (1) an annual effect on

the economy of $100 million or more;

(2) a major increase in costs or prices for

consumers, individual industries,

Federal, state, or local government

agencies, or geographic regions; or (3) a

significant adverse effect on

competition, employment, investment,

productivity, innovation, or on the

ability of U.S.-based enterprises to

compete with foreign-based enterprises

in domestic or export markets.

NMFS has determined that the

depleted designation of this stock under

the MMPA is excluded from the

requirements of the National

Environmental Policy Act of 1969 and

that an Environmental Assessment or

Environmental Impact Statement is not

required. This rule does not contain a

collection-of-information requirement

for purposes of the Paperwork

Reduction Act of 1980.

This rule does not contain policies

with federalism implications sufficient

to warrant preparation of a federalism

assessment under E.O. 13132.

List of Subjects in 50 CFR Part 216

Administrative practice and

procedure, Exports, Imports, Marine

mammals, Transportation.

Dated: May 19, 2000.

Penelope D. Dalton,

Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 216 is amended

as follows:

PART 216–REGULATIONS

GOVERNING THE TAKING AND

IMPORTING OF MARINE MAMMALS

1. The authority citation for part 216

continues to read as follows:

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

otherwise noted.

2. In § 216.15, a new paragraph (g) is

added to read as follows:

§ 216.15 Depleted species.

* * * * *

(g) Cook Inlet, Alaska, stock of beluga

whales (Delphinapterus leucas). The

stock includes all beluga whales

occurring in waters of the Gulf of Alaska

north of 58° North latitude including,

but not limited to, Cook Inlet, Kamishak

Bay, Chinitna Bay, Tuxedni Bay, Prince

William Sound, Yakutat Bay, Shelikof

Strait, and off Kodiak Island and

freshwater tributaries to these waters.

[FR Doc. 00–13371 Filed 5–30–00; 8:45 am]

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