[Federal Register Volume 65, Number 105 (Wednesday, May 31, 2000)]
[Rules and Regulations]
[Pages 34590-34597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13371]


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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.

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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

[[Page 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 
co-management 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 co-management 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 
co-management 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 co-management agreement to conserve 
the stock and co-manage subsistence use.
    Comment 7: One commenter noted NMFS failure to enter into a co-
management 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 co-
management 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 area-specific agreements should be postponed until after NMFS and 
the Indigenous Peoples' Council for Marine Mammals completed an 
umbrella co-management 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.

[[Page 34592]]

    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

[[Page 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.

[[Page 34594]]

    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

[[Page 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 non-breeding 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,

[[Page 34596]]

eastern Bering Sea, and Beaufort Sea indicated that they are all 
significantly different from each other (O'Corry-Crowe, 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 video-taping 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

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


Sec. 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 deg. 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]
BILLING CODE 3510-22-F