38778 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

1852.216–77 Award Fee for end item

contracts.

* * * * *

Award Fee for End Item Contracts

June 2000

* * * * *

(d) Award fee determinations are

unilateral decisions made solely at the

discretion of the Government.

* * * * *

[FR Doc. 00–15349 Filed 6–21–00; 8:45 am]

BILLING CODE 7510–01–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Parts 216, 223, and 224

[Docket No. 000613174–0174–01; I.D.

032399A]

RIN 0648–XA53

Regulations Governing the Taking and

Importing of Marine Mammals;

Endangered and Threatened Fish and

Wildlife; Cook Inlet Beluga Whales

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Notice of determination; status

review.

SUMMARY: NMFS received two petitions

in March 1999 to list the Cook Inlet (CI),

Alaska, stock beluga whales as

endangered under the Endangered

Species Act (ESA). The most immediate

threat to the stock identified by the

petitioners was the high level of harvest

that was occurring under the Alaska

Native exemption of the Marine

Mammal Protection Act (MMPA). Since

the receipt of the petition to list this

species, legislative and management

actions have been taken to reduce the

subsistence harvest to levels that will

allow the beluga whale stock to recover.

NMFS has evaluated the factors cited in

the petitions, the best available

scientific information, and management

actions that have occurred since the

receipt of the petition to list the stock.

NMFS has determined that listing the

Cook Inlet stock of beluga whales under

the ESA is not warranted at this time.

DATE: Effective: June 22, 2000.

ADDRESSES: Requests for copies of this

determination should be addressed to

the Chief, Marine Mammal Division,

Office of Protected Resources, NMFS,

1315 East-West Highway, Silver Spring,

Maryland 20910.

FOR FURTHER INFORMATION CONTACT: Dr.

Thomas Eagle, Office of Protected

Resources, (301) 713–2322, ext. 105, Mr.

Brad Smith, Alaska Regional OfficeAnchorage, (907) 271–3023, or Mr.

Michael Payne, Alaska Regional OfficeJuneau, (907) 586–7235.

SUPPLEMENTARY INFORMATION:

Background

Prompted by a sharp decline in the

estimated abundance of CI beluga

whales between 1994 (653 animals) and

1998 (347 animals), a reduction of

nearly 50 percent, NMFS initiated a

status review of the CI beluga whale

stock on November 19, 1998 (63 FR

64228). In the status review, NMFS

evaluated the present status of CI beluga

whales and made recommendations

regarding a designation as depleted

under the MMPA and listing as

threatened or endangered under the

ESA.

The comment period on the status

review, which was initiated at the same

time that workshops were convened to

review beluga whale stocks throughout

Alaska, extended from November 19,

1998, through January 19, 1999. The

workshops were held by the Alaska

Beluga Whale Committee (November

16–17, 1998) and the Alaska Scientific

Review Group (November 18–20, 1998),

a body established under the MMPA to

provide scientific advice regarding

marine mammals to NMFS and the U.S.

Fish and Wildlife Service (FWS).

NMFS received two petitions in

March 1999 to list CI beluga whales as

endangered under the ESA. One petition

requested an emergency listing under

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

designation of critical habitat. Both

petitions requested immediate

promulgation of regulations to govern

the subsistence harvest. NMFS

determined that the petitions contained

substantial scientific or commercial

information indicating that the

petitioned actions may be warranted (64

FR 17347, April 9, 1999).

To ensure that the status review was

comprehensive and based on the best

available scientific information, the

comment period was followed by a

NMFS-sponsored workshop on March

8–9, 1999, in Anchorage, Alaska, that

reviewed relevant scientific information

on this stock. At this workshop, NMFS

received additional public comments

and recommendations. The abstracts of

presentations from this workshop are

summarized in a NMFS report (NMFS,

1999) and are available to the public.

Following these reviews and taking

into account the best information

available at that time, NMFS proposed

designating the CI stock of beluga

whales as depleted on October 19, 1999

(64 FR 56298). NMFS also conducted a

public hearing on November 22, 1999,

on the proposed designation of the CI

stock of beluga whales as depleted

under the MMPA. NMFS issued a final

rule on May 31, 2000, (65 FR 34590)

designating CI beluga whales as

depleted under the MMPA based on its

determination that the stock is below its

Optimum Sustainable Population (OSP)

level.

NMFS had not made a final decision

on the ESA petitions at the time of the

depleted determination. The ESA

petitions have now been reviewed in

light of the best available scientific

information. This review considered the

significant legislative and management

actions that have occurred since NMFS

received the petitions.

Recent Conservation Actions

Prior to the receipt of the petitions,

NMFS, Alaska Region, Protected

Resources Division, recommended to

the Regional Administrator (in a

memorandum dated February 23, 1999)

that NMFS seek legislative action to

prohibit the sale of CI beluga products

under the subsistence provisions of the

MMPA and/or impose a moratorium on

the hunting of CI beluga whales in 1999.

The recommendation included advice

that NMFS designate the stock as

depleted under the MMPA or list it as

threatened or endangered under the

ESA. These recommendations were

based on the then unsustainable level of

the subsistence harvest and the fact that

no regulations were in place to restrict

the harvest because the harvest was

believed to be the most important factor

linked to the decline of the stock. The

MMPA and ESA provide a specific

process for limiting Alaska Native

subsistence harvest. This process begins

with the designation of a stock as

depleted under the MMPA or listing as

threatened or endangered under the

ESA.

Results of the 1998 surveys were not

completed at the date of the Division’s

memorandum. Because the stock was

declining and there was no immediate

mechanism to limit the harvest, the

Protected Resources Division

recommended that NMFS consider a

proposed listing under the ESA.

The following events had a significant

bearing on NMFS’ determination not to

list CI beluga whales as endangered or

threatened under the ESA:

(1) Congress passed legislation to

prohibit the taking of CI beluga whales

for Native subsistence use unless

authorized by a cooperative agreement

between NMFS and affected Alaska

Native organizations (ANOs). On May

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38779

21, 1999, President Clinton signed the

legislation into effect as Public Law

106–31. Pub. L. 106–31 established an

enforceable mechanism to control the

harvest, which was the only factor

found to be directly linked to the

decline. Prior to this law, the Federal

government could not restrict the

harvest, and a Native Alaskan could

have harvested beluga whales from

Cook Inlet without the approval of any

local tribal authority of any local tribal

authority or governing body The

legislation remains in effect until

October 1, 2000. As a result of this

legislation, there was no harvest in

1999.

(2) NMFS completed analyses of the

1994–1998 survey data. The results of

the abundance estimates from surveys

conducted 1994–1998 were 653 (CV =

0.43) in June 1994, 491 (CV = 0.44) in

July 1995, 594 (CV = 0.28) in June 1996,

440 (CV = 0.14) in June 1997, and 347

(CV = 0.29) in June 1998. Subsequent

analyses indicated a 71–percent

probability that a 40–percent decline in

abundance occurred between June 1994

and June 1998 surveys. These data

provided the necessary scientific

support to designate the CI beluga whale

stock as depleted under the MMPA.

NMFS has determined that CI beluga

whales are depleted and has started the

process under the MMPA to regulate the

harvest.

(3) NMFS completed the analyses of

the 1999 abundance survey data. The

population estimate for CI beluga

whales in 1999, in which there was no

subsistence harvest, was 357 whales.

This estimate is consistent with the

results of simulation modeling for the

stock in which there was no harvest.

Although preliminary, these results

suggest that controlling the harvest may

be an effective mechanism to promote

recovery of the stock. Results after 3–5

years of controlling the harvest would

provide more conclusive evidence of

recovery.

(4) On December 10, 1999, NMFS

conducted a scoping meeting as part of

a process under the National

Environmental Policy Act (NEPA) to

consider the environmental impacts of a

Federal program to promote recovery of

this depleted stock. After the scoping

meeting, NMFS assessed the potential

impacts to CI beluga whales caused by

human-related activities ongoing in

Cook Inlet, including the subsistence

harvest of CI beluga whales by Alaskan

Natives. Because the CI beluga whale

stock is depleted, NMFS believes that

any federally approved harvest plan

would constitute a major action subject

to the requirements of NEPA and,

therefore, could not be completed until

an Environmental Impact Statement

(EIS) has been prepared. NMFS is

preparing an EIS that assesses the

impacts of various anthropogenic

activities on CI beluga whales and their

habitat. The draft EIS includes a

discussion of the cumulative impacts of

these activities on CI beluga whales.

Following the completion of the final

EIS and the procedure under the MMPA

to limit subsistence harvest, NMFS will

publish a final rule to regulate the

subsistence harvest.

NMFS must ensure that future

harvests are sustainable and do not

cause the further decline of the CI

beluga whale stock. Pub. L. 106–31,

limiting subsistence harvest to that

occurring under a cooperative

agreement between an affected ANO

and NMFS, expires on October 1, 2000.

Therefore, NMFS must have one or

more mechanisms in place to regulate

this take prior to the next harvest

season. In the absence of any action by

NMFS to regulate the harvest, the future

of this harvest, and the CI stock of

beluga whales, would be uncertain.

Definitions

Endangered and Threatened Species:

Section 3(6) of the ESA defines an

endangered species as ‘‘ * * *any species

which is in danger of extinction

throughout all or a significant portion of

its range * * *’’ Section 3(19) defines the

term threatened species as a species that

is likely to become an endangered

species within the foreseeable future

throughout all or a significant portion of

its range.

‘‘Species’’ under the ESA: Section

3(15) of the ESA defines species broadly

as ‘‘ * * *any subspecies of fish or

wildlife or plants and any distinct

population segment of any species of

vertebrate fish or wildlife which

interbreeds when mature.’’

Summary of Comments Received

during the Status Review

Comment 1: One of the commenters

focused directly on the current size of

the population and questioned whether

any other marine mammal has a

population estimate as low as that for CI

beluga whales and is not listed as

endangered under the ESA.

Response: No other population of

marine mammals is as small as the CI

beluga stock and is not listed under the

ESA. Although NMFS is concerned with

the low abundance of the stock,

abundance alone does not necessarily

mean that the stock is in danger of

extinction.

Historical abundances of CI beluga

have been reported from as few as 500

to as many as 2,000, and NMFS believes

there may have been 1,000–1,300

whales in the early to mid-1980s. Thus,

the stock would have been reduced to

about 25 to 35 percent of its historical

abundance. The population

consequences of such a decline are

much less substantial than those for

other small populations, such as North

Atlantic right whales, which were

reduced to less than 10 percent of their

historical abundance.

Population growth is not well

documented for CI beluga; however,

there is some evidence that

reproduction in the stock has not been

compromised. As discussed later in this

document, the population consists of a

large proportion of juvenile whales, and

the age of sexual maturity has

apparently decreased in recent years.

These observations indicate that CI

beluga whales have the reproductive

capacity to sustain population growth.

Furthermore, the 1999 abundance

estimate suggests that the population

may be increasing, rather than

decreasing, as a result of controlling the

harvest.

Comment 2: The Marine Mammal

Commission (Commission) noted that,

under criteria developed by the

International Union for the

Conservation of Nature and Natural

Resources (IUCN), CI beluga whales

would be classified as ‘‘endangered’’ or

‘‘critically endangered’’.

Response: The IUCN criteria are all

based upon characteristics of the

population and do not include a

consideration of the adequacy of

existing regulatory mechanisms as is

required under the ESA. Under the

IUCN criteria, CI beluga would qualify

as ‘‘endangered’’ only if the decline

were continuing. The major factor

related to the decline of CI beluga

whales has been stopped under Federal

law and is not likely to revert to

unsustainable levels in the near future.

Furthermore, under IUCN criteria, the

stock would be classified as

‘‘vulnerable’’ if there were fewer than

1,000 whales. At 1,000 animals, the CI

beluga stock would likely be within its

OSP levels under the MMPA, perhaps at

or near its carrying capacity. Thus, if the

stock numbered 1,000 whales, NMFS

would consider the stock as small,

isolated, and healthy, but IUCN would

characterize it as ‘‘ * * *facing a high

risk of extinction in the wild in the

medium-term future * * *’’. Although

the IUCN criteria are appropriate to

identify species that may need

conservation measures, they do not

include the full range of factors that are

included in the ESA; therefore, they are

not appropriate for a determination of

the status of a stock under the ESA.

38780 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

Comment 3: The Commission stated

that NMFS should consider how listing

criteria have been used in the past and

noted that NMFS listed the Guadalupe

fur seal population as threatened when

that population numbered between

1,200 and 1,500 individuals and was

producing about 200 pups annually.

Response: The ESA listing criteria

have to be applied to each situation

individually. For some factors, NMFS

reached similar conclusions about the

two populations: (1) In neither case was

the habitat considered to be adversely

modified or diminished; (2) both had

been reduced by human exploitation;

and (3) there were adequate regulatory

mechanisms in both cases.

The Commission noted that the fur

seal stock was more abundant than CI

beluga whales when the fur seals were

listed. However, the fur seal stock was

reduced by commercial exploitation in

the 1700s and 1800s from a historical

abundance, estimated to be 30,000

individuals, to very low numbers. The

population was only about 6 percent of

its historical abundance when it was

listed in 1985, and it had been growing

slowly since it was re-discovered in

1954.

On the other hand, CI beluga are

probably about 25 to 35 percent of their

historical abundance (as noted above).

The large proportion of young whales in

the stock indicates that reproduction

has not been compromised. The 1999

abundance estimate is preliminary

evidence that the stock is increasing.

Therefore, NMFS believes that CI beluga

are less likely to go extinct or to become

endangered than Guadalupe fur seals

were when they were listed in 1985.

Evaluation of ESA Factors Affecting the

Species

NMFS and FWS issued a joint policy

for listing, delisting and reclassifying

species under the ESA (61 FR 4722,

February 7, 1996). The policy outlines

three elements to be considered in

deciding the status of a possible distinct

population segment as endangered or

threatened under the ESA: (1)

Discreteness of the population segment

in relation to the remainder of the

species to which it belongs; (2) the

significance of the population segment

to the species to which it belongs; and

(3) the population segment’s

conservation status in relation to ESA

criteria for listing.

Under the first element, the

petitioners argue that the CI beluga

whale population is discrete because it

is markedly separated from other

populations of the same species.

NMFS Response: NMFS concurs with

this statement. Of the five stocks of

beluga whales in Alaska, the CI stock is

considered to be the most isolated,

based on the degree of genetic

differentiation between the CI stock and

the four other stocks (O’Corry-Crowe, et

al., 1997). This study suggests that the

Alaska peninsula may be an effective

barrier to genetic exchange.

Under the second element, NMFS

must determine whether the population

segment persists in an ecological setting

that is unique and whether the loss of

the discrete population would result in

a significant gap in the range of the

species. The petitioners assert that CI

beluga whales are in a unique ecological

setting (Cook Inlet) and are the only

population of beluga whales in Alaska

that are completely subarctic (south of

the Alaska peninsula). Furthermore,

they stated that the loss of the stock

would create a significant gap in the

range of the species.

NMFS Response: NMFS concurs with

this assessment. The CI beluga whales

are the only population of beluga

whales that inhabit the Gulf of Alaska,

and the genetic data show little or no

mixing with other population segments.

Therefore, the loss of the CI population

segment would result in the complete

loss of the species in the Gulf of Alaska

with little likelihood of immigration

from other population segments into

Cook Inlet.

Therefore, based on the best available

scientific information available to

NMFS, the only supportable conclusion

that can be reached (as recommended by

the petitioners) is that CI beluga whales

are a ‘‘distinct population segment’’

and, therefore, a species under section

3(15) of the ESA.

Under the third element of the joint

NMFS/FWS policy, if a population

segment is discrete and significant, its

evaluation for an endangered or

threatened status will be primarily

based on a review of the factors

enumerated in ESA section 4(a) after

taking into account conservation efforts

implemented pursuant to section

4(b)(1)(A).

Regarding CI beluga whales, section

4(a) of the ESA states that the Secretary

of Commerce (Secretary) shall, by

regulation promulgated in accordance

with subsection (b), determine whether

any species is an endangered species or

a threatened species because of any of

the following factors:

(A) The present or threatened

destruction, modification, or

curtailment of its habitat or range;

(B) Overutilization for commercial,

recreational, scientific, or educational

purposes;

(C) Disease or predation;

(D) The inadequacy of existing

regulatory mechanisms; or

(E) Other natural or manmade factors

affecting its continued existence.

Section 4(b)(1)(a) further states that

the Secretary shall make determinations

required by subsection (a)(1) solely on

the basis of the best scientific and

commercial data available to him after

conducting a review of the status of the

species and after taking into account

those efforts, if any, being made by any

State or foreign nation to protect such

species, whether by predator control,

protection of habitat and food supply, or

other conservation practices within any

area under its jurisdiction or the high

seas. The ‘‘Recent Conservation

Actions’’ section of this document

discussed efforts to protect CI beluga

whales. The following sections of this

document discuss the status of CI beluga

whales with respect to the five factors

included in the ESA.

A. The Present or Theatened

Destruction, Modificatin, or Curtailment

of Habitat or Range

The petitioners state that the current

distribution of the CI population of

beluga whales is reduced from historic

levels and that all current descriptions

of the species’ range are largely limited

to Cook Inlet. They cite the summary of

survey data by Rugh et al. (In press),

which states that in recent years a

reduction has occurred in incidental

sightings in the Gulf of Alaska, and a

reduction has occurred in sightings in

lower Cook Inlet and offshore areas of

upper Cook Inlet. From this they

inferred that the range of the species has

been curtailed.

NMFS Response: A significant part of

the habitat for this species has been

modified by municipal, industrial and

recreational activities in Upper Cook

Inlet. Each of these activities (discussed

later in this document), either

individually or cumulatively, are of

concern to NMFS. However, the data do

not support a conclusion that the range

of CI beluga whales has been

diminished by these activities.

Cook Inlet beluga whales occupy the

same range that they have always

occupied. The information by Rugh et

al. (In press) indicates that the summer

occurrence of CI beluga whales has

shifted to the upper inlet in recent

decades whereas, historically, they were

also found in the lower inlet during

mid- to late-summer. There are many

alternative hypotheses for the

underlying cause of the change in

distribution. For example, the overall

population reduction in recent decades

may have resulted in CI beluga whales

inhabiting only the preferred feeding

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38781

areas within the range (i.e., the upper

inlet). Therefore, the change in

distribution does not necessarily reflect

an adverse modification of the lower

inlet. No indication exists that the range

has been, or is threatened with being,

modified or curtailed to an extent that

appreciably diminishes the value of the

habitat for both survival and recovery of

the species.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

The petitioners discussed overharvest

of CI beluga whales under the section on

overutilization for commercial

purposes. Although they recognized that

this criterion focuses on commercial use

of a species, the petitioners stated that

distinguishing between whales killed

primarily for subsistence and whales

killed as part of a subsistence hunt and

sold commercially is impossible.

NMFS Response: NMFS agrees that

both forms of mortality are relevant to

this discussion. However, the

subsistence provisions of the MMPA

allow a limited sale of edible products

from marine mammals to be sold in

Alaska Native villages, which include

Anchorage, or for Alaska Native

consumption. Therefore, although

overharvest is of serious concern, NMFS

has included the response on the

overharvest issue in the analysis of

other natural or man-made factors that

affect the stock.

NMFS recognizes that even the

limited sale allowed under the

subsistence provisions of the MMPA

may provide an economic incentive for

one or more Alaska Natives to supply

beluga products within Anchorage.

Such a sale may help meet the cultural

demand for traditional foods among the

20,000 or more Alaska Natives that

reside in Anchorage. A successful longterm conservation strategy must address

the sale of edible beluga products in

Anchorage.

Although there was a commercial or

sport (recreational) harvest of beluga

whales in CI prior to enactment of the

MMPA, none has existed since 1972.

The only taking of beluga whales in

Cook Inlet for scientific purposes is nonlethal and has no more than a negligible

impact on the stock. NMFS is not aware

of any taking for educational purposes

in recent years that may have had an

effect on the stock. Therefore, this factor

is not causing the stock to be in danger

of extinction, nor is it likely to do so in

the foreseeable future.

C. Disease or Predation

Disease: The petitioners discuss the

susceptibility of beluga whales to

disease and suggest that very little is

known on this subject matter specific to

CI beluga whales.

NMFS Response: NMFS concurs that

very little is presently known about the

effects of disease on CI beluga whales.

However, a considerable amount of

information exists on the occurrence of

diseases in CI beluga whales, and other

beluga whale populations, and the

effects of these diseases on the species.

Bacterial infection of the respiratory

tract is one of the most common

diseases encountered in marine

mammals. Bacterial pneumonia, either

alone or in conjunction with parasitic

infection, is a common cause of beach

stranding and death (Howard et al.,

1983). From 1983 to 1990, 33 percent of

stranded beluga whales in the St.

Lawrence estuary (n = 45 sampled) were

affected by pneumonia (Martineau et al.,

1994).

Populations of beluga whales in

Alaska appear relatively free of

ectoparasites (Klinkhart, 1966, Hazard,

1988). Endoparasitic infestations are

more common in beluga whales. Several

species of endoparasites have been

identified in beluga whales including

populations found in Alaska and

Canada (Klinkhart, 1966). Necropsies

conducted on CI beluga whales have

found heavy infestations in some adult

whales. Approximately 90 percent of CI

whales examined have had kidney

parasites. Although extensive damage

has been associated with this infection,

whether this results in functional

damage to the kidney (Burek, 1999a) is

unclear. Stomach parasites are also

present in CI beluga whales. However,

these infestations have not been

considered extensive enough to have

caused clinical problems.

Parasites and the potential for

diseases occur in CI beluga whales.

Despite the considerable pathology that

has been done on this species, nothing

indicates that the occurrence of

parasites or disease has had a

measurable impact on their survival and

health. Therefore, the factor related to

disease does not support listing this

population as threatened or endangered

under the ESA.

Natural Predation: Killer whales are

the only non-human predator of beluga

whales in Cook Inlet. The petitioners

state that the potential for significant

impacts on the CI beluga whale

population by killer whales cannot be

ruled out given recent changes in prey

availability to killer whales throughout

the Gulf of Alaska (referring to declines

in pinniped populations in the Central

and Western Gulf of Alaska since the

mid 1970s). The petitioners suggest that

even a small increase in predation could

result in population decline or impede

recovery.

NMFS Response: The number of killer

whales visiting the upper inlet appears

to be small. However, predation by

killer whales on CI beluga whales was

considered by some commenters to be a

mortality factor that may have

contributed to the CI beluga whale

declines in recent years. NMFS has

received reports of killer whales in

Turnagain and Knik Arms, between Fire

Island and Tyonek, and near the mouth

of the Susitna River. Native hunters

have recently reported killer whales

along the tide rip that extends from Fire

Island to Tyonek (Huntington, 1999)

and in Kachemak Bay.

No quantitative data exist on the level

of removals from this population due to

killer whale predation or its impact;

however, killer whale pods prey

selectively on salmon or marine

mammals, including beluga whales, in

Cook Inlet. During a killer whale

stranding in Turnagain Arm in August

1993, one observer reported that a killer

whale regurgitated pieces of beluga

flesh. A potential dietary shift may

account for some of the more recent

sightings of killer whales in Cook Inlet.

On the other hand, pods of killer

whales also feed on salmon, a prey of

beluga whales. Therefore, seeing killer

whales near beluga whales in the inlet

does not necessarily imply that they are

searching for beluga whales.

Assessing the impact of predation by

killer whales on CI beluga whales is

difficult. Anecdotal reports often

highlight the more sensational,

mortalities on beluga whales due to

killer whales, thereby overemphasizing

their impact. Further, these reports are

from the early 1980s when beluga

whales were more abundant.

Consequently, they are of minimal value

in evaluating current impacts to the

population of beluga whales in Cook

Inlet.

The loss of a few beluga whales could

impede recovery, as suggested by the

petitioners. However, in order for killer

whale predation to be a significant

factor in the observed decline in the

beluga population, total mortality due to

predation would have to be near the

level of recruitment in the population.

The literature and stranding records

indicate that natural mortality in the CI

beluga whale population does not

exceed levels considered normal for

other small cetacean populations.

Therefore, predation by killer whales is

not likely having a significant impact on

the recovery of the CI beluga whale

population.

Disease and predation occur in the CI

beluga population and may affect

38782 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

reproduction and survival. The best

available information, however,

indicates that these factors are not

causing the stock to be threatened or

endangered.

D. The Inadequacy of Existing

Regulatory Mechanisms

The most immediate concerns by the

petitioners were (1) the level of

mortality as a result of subsistence

harvest, and (2) the inability of NMFS,

at the time of the petition, to control this

harvest. The petitioners stated that the

MMPA is inadequate to protect CI

beluga whales. They further stated that

under the MMPA, NMFS can pursue a

co-management agreements with the

tribes in the Cook Inlet region. However,

the petitioners note, such an agreement

provides no additional legal authority to

NMFS to prosecute violations of the

MMPA. According to the petitioners,

even with a co-management agreement

in place, neither NMFS nor the affected

ANO can enforce its recommendations

if hunters choose not to comply.

Therefore, the petitioners suggested,

such an agreement would not regulate

non-local hunters nor restrict the sale of

muktuk (whale skin, with blubber

attached, used for food) in Anchorage.

The petitioners stated that a comanagement agreement was unlikely to

reduce the Native hunt to sustainable

levels and concluded that listing the CI

population under the ESA was

necessary to ensure complete

compliance with agreed upon harvest

limits, improve the monitoring of the

harvest, and eliminate the sale of

muktuk.

NMFS Response: Management of the

CI beluga whale stock could be achieved

through voluntary and cooperative

efforts within a traditional Native

community or through a co-management

agreement. Prior to Pub. L. 106–31, no

area-wide tribal authorities applied to

all the Native Alaskans residing in

Anchorage or the harvesting of CI beluga

whales. For this reason, NMFS believes

that the petitioners were correct in

stating that a co-management agreement,

without an enforceable regulatory

mechanism, would not have provided

the level of authority necessary to

restrict the harvest to sustainable levels.

Therefore, NMFS believes that the

recovery of this stock requires not only

the authority of a co-management

agreement but also a Federal authority

to protect and conserve CI beluga

whales.

NMFS disagrees with the petitioners’

statement that only through listing the

CI population of beluga whales under

the ESA can NMFS ensure complete

compliance with agreed upon harvest

limits, improve the monitoring of the

harvest, and eliminate the sale of

muktuk. On May 31, 2000, NMFS

designated this stock as depleted under

the MMPA. The depletion finding is the

first step in the MMPA process for

regulating the harvest. Under this

process, annual harvest levels could be

agreed upon through a co-management

agreement and enforced, if necessary,

through Federal regulations and tribal

ordinances.

The process for regulating subsistence

take of species listed under the ESA

essentially mirrors the process for

regulating of depleted species under the

MMPA. Therefore, listing the stock

under the ESA would not provide a

better mechanism than under the

MMPA to ensure compliance with

harvest limits.

The petitioners further stated that

Congress intended protections under the

ESA to be applied in conjunction with

protections under the MMPA because a

marine mammal found to be threatened

or endangered under the ESA is

automatically listed as depleted under

the MMPA.

NMFS Response: NMFS agrees that

threatened or endangered marine

mammals are protected under both the

MMPA and the ESA. The MMPA states

that marine mammals that are listed as

threatened or endangered under the

ESA are considered depleted under the

MMPA. The ESA does not include a

provision that requires a depleted

marine mammal stock to be listed as

threatened or endangered.

On at least two previous occasions,

NMFS has designated stocks of marine

mammals as depleted because these

stocks were below OSP, but determined

that the stocks were not threatened or

endangered. NMFS was petitioned in

1991 to designate the eastern spinner

dolphin and the northern offshore stock

of spotted dolphin in the eastern

tropical Pacific Ocean as depleted under

the MMPA and to list them as

threatened under the ESA. On October

19, 1992, NMFS published a

determination that listing the eastern

spinner dolphin under the ESA was not

warranted and, on August 26, 1993,

published a final rule designating the

eastern spinner dolphin as depleted

under the MMPA. Following a review of

new information on the offshore spotted

dolphin stock structure, NMFS

designated the northeastern stock of

offshore spotted dolphins (a smaller

component of the northern offshore

aggregation) as depleted on November 1,

1993. On January 7, 1993, NMFS issued

a finding that the listing of northern

offshore spotted dolphins as a

threatened species under the ESA was

not warranted. In both cases existing

regulatory mechanisms were found to be

adequate to allow the stock to rebuild

and, thus, to prevent the stock from

becoming endangered or threatened.

The existing regulatory mechanism is

adequate to control the harvest of CI

beluga whales to sustainable levels. To

continue an adequate regulatory

mechanism to restrict the harvest

beyond October 1, 2000, NMFS would

have to promulgate such regulations, or

Congress would have to extend the

special legislation that currently

restricts the harvest. As discussed in

other sections of this document, no

other factor has been identified as

having a significant adverse effect on

the stock. Also as noted in other

sections of this document, existing

regulatory mechanisms are believed

adequate to address future economic

development in the area. Therefore,

NMFS believes that an inadequate

regulatory mechanism has not caused

the stock to become in danger of

extinction, nor is it likely to do so in the

foreseeable future.

E. Other Natural or Manmade Factors

Affecting Their Continued Existence

Stochastic Events: The petitioners

stated that the population was currently

so small that stochastic (random) events

may cause the stock to decline to

extinction. Their example related to

strandings. The Commission also noted

that the population was small and

recommended that NMFS include an

analysis of whether a listing as

endangered or threatened is warranted

simply because of risks posed by

stochastic events.

NMFS Response: The analysis of

strandings is discussed in the next

section of this document. Breiwick and

DeMaster (1999) examined the effects of

stochastic events on the population

dynamics of small populations of

whales that are subjected to subsistence

harvest. They used an individual-based

model with stochastic birth and death

rates to model populations subjected to

harvest. They varied underlying

intrinsic rates of increase from 0.025 to

0.049 and reported no extinctions in

populations with no environmental

stochasticity, even when these

populations were subjected to harvest

rates of up to 5 percent. When

maximum environmental stochasticity

(20 percent reduction in survival every

10 years) and the lower level intrinsic

rate of increase (0.025) were used, no

populations went extinct although

populations harvested at a 3 percent

level declined during 75 to 100 years of

simulation. The results of the

simulations indicate that CI beluga

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38783

whales are not in danger of extinction

or likely to become endangered in the

foreseeable future due to stochastic

events.

Stranding Events: The petitioners

asserted that the population was so

small that it was vulnerable to all

natural sources of mortality, such as

disease, predation, and stranding. They

further asserted that a large stranding

could occur that would kill most or all

of the remaining beluga whales.

NMFS Response: NMFS estimates that

over 590 whales have stranded (both

individually and as groups) in upper

Cook Inlet since 1988. Mass stranding

events have most commonly occurred

along Turnagain Arm and have often

coincided with extreme tidal

fluctuations (‘‘spring tides’’) and

involved both adult and juvenile beluga

whales.

Beluga whale mortalities have been

observed during these stranding events.

A 1996 mass stranding of approximately

60 beluga whales in Turnagain Arm

resulted in the death of four adult

whales. Five deaths resulted from

another stranding of approximately 75

whales in August of 1999.

Catastrophic mortality (the deaths of a

large number, such as 50 or more

whales) due to a mass stranding event

was not considered in simulations of the

CI beluga stock for purposes of the

status review. Such mortality could

significantly impede recovery if it

occurred; however, such catastrophic

mortality has never been reported.

Although mass strandings have

occurred, only 9 whales died from a

total of 135 whales included in the two

mass strandings in 1996 and 1999. Mass

stranding events are not believed to be

a factor that has caused, or had a

significant role in, the decline of this

stock to depleted levels. Therefore,

strandings, either individual or mass,

have not caused the stock to be in

danger of extinction nor are they likely

to do so in the foreseeable future.

Subsistence Harvest: The petitioners

stated that overutilization of beluga

whales was undisputedly occurring.

They further stated that the 1994–1997

levels of harvest were unsustainable.

NMFS Response: NMFS agrees with

these statements. The history of harvest

estimates from the years 1987–1999 will

be included in the draft EIS and varied

between zero and about 20 whales per

year. These estimates, however, are

considered underestimates because

Alaska Native hunters and others stated

that many whales were not reported or

that the struck-and-lost rate was too

low.

NMFS estimated that the average

annual harvest between 1995 and 1998

was 78 whales. While subjected to this

level of harvest, the stock has declined

at an average rate of 15 percent per year

from 1994 to 1998.

NMFS has been working with the

Cook Inlet Marine Mammal Council

(CIMMC) to develop a co-management

agreement to conserve CI beluga and comanage subsistence use of them.

CIMMC is an ANO that represents

several Alaska Native tribal

governments in the CI area. Because

NMFS and CIMMC had not entered into

a co-management agreement under Pub.

L. 106–31, no harvest was conducted in

1999. NMFS and CIMMC have,

however, negotiated an agreement that

would allow the harvest of a single

whale after July 1, 2000.

The harvest estimates from 1995–1997

and the abundance estimates from

1994–1998 clearly indicate that the

harvest was unsustainable prior to

restriction in 1999. Furthermore, the

subsistence harvest can account for the

decline of the stock during that interval.

Therefore, NMFS agrees that a failure to

restrict the subsistence harvest would

likely cause CI beluga whales to become

in danger of extinction in the

foreseeable future.

The petitioners stated that a depleted

finding would allow NMFS to initiate

rulemaking to limit the subsistence

harvest of CI beluga whales, but harvest

restrictions would not adequately

address the problems facing CI beluga

whales.

NMFS Response: NMFS disagrees that

limiting the subsistence harvest would

not adequately address the problems

facing beluga whales in Cook Inlet. The

subsistence harvest of these whales

accounts for the observed decline in the

stock since 1994. As indicated in the

following discussion of anthropogenic

factors that may affect beluga habitat, no

other activity has had a known

significant adverse effect on the stock or

would cause the CI beluga whales to

become in danger of extinction or likely

to become endangered in the foreseeable

future.

Other Natural or Manmade Activities:

The petitioners identified the following

activities or sources of potential threat

to the CI beluga stock: commercial

fisheries interactions with beluga

whales; oil spills; other pollutants,

contaminants (toxins such as

Polychlorinated Biphenyls (PCBs),

pesticides, heavy metals, hydrocarbons);

predation from killer whales; noise from

oil and gas development with associated

seismic activity, drilling and refineries,

airplanes (Anchorage Airport) and

vessels; prey availability; research; and

vessel traffic including commercial

(whale watching) boat traffic. The

petitioners assert that potential impacts

from these activities on CI beluga

whales, their prey, and the marine

environment may be direct (e.g., lower

survival rates) or indirect (e.g., loss of

access to habitat or food resources).

NMFS Response: NMFS recognizes

that municipal, commercial, and

industrial activities are of concern and

may affect the water quality and

substrate in the inlet. However, no

indication exists that these activities

have adversely impacted beluga whales,

including a quantitative impact on the

beluga whale population. The best

available information (as discussed in

the following sections) indicates that

these activities, alone or cumulatively,

have not caused the stock to be in

danger of extinction and are not likely

to do so in the foreseeable future.

Commercial Fishery Interactions with

Beluga Whales: State and Federally

permitted commercial fisheries for

shellfish, groundfish, herring and

salmon occur in the waters of Cook

Inlet, and have varying likelihoods of

interacting with beluga whales due to

differences in gear type, timing, and

location of the fisheries. Interactions

include entanglements, injuries, or

mortalities occurring incidental to

fishing operations.

Reports of marine mammal injury or

mortality incidental to commercial

fishing operations are obtained from the

existing literature, fisheries reporting

programs, and observer programs.

During 1990–93, certain fisheries were

required to participate in a logbook

reporting program, which provided

information regarding fishing effort,

interactions with marine mammals and

the outcome (deterred, entangled,

injured, killed) of the interactions. Data

from this program were difficult to

interpret (Young et al. 1993) and tended

to underestimate actual incidental

mortality rates (Credle et al., 1994).

The logbook program was replaced by

the 1994 MMPA amendments with a

fisher self-reporting program, in which

all commercial fishers are required to

notify NMFS of injuries or mortalities to

marine mammals occurring during the

course of commercial fishing. This

program became effective in 1995 and is

currently in operation. In general,

however, fewer reports have been

received under this program than

expected, given the results of the

previous logbook reporting program and

results from observer programs. Thus,

annual mortality rates derived from

these programs should be considered

minimum estimates (Hill and DeMaster,

1999).

A number of fisheries occurring in or

near the inlet present little, if any,

38784 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

chance of catching beluga whales. These

fisheries are classified in Category III

under the MMPA (65 FR 2448, April 26,

2000) because NMFS has determined

that there is only a remote likelihood

that they would kill or seriously injure

any marine mammal incidental to their

operations. These fisheries were

classified in Category III fisheries during

the period 1990 through 1994 and were

not required to participate in the

logbook program. Since 1995, when the

existing reporting system required the

reporting of all injuries of marine

mammals incidental to fishing

operations, none of these fisheries have

reported incidental mortality or injury

of marine mammals. In addition, no

interactions between beluga whales and

northern Gulf of Alaska groundfish

trawl, longline or pot fisheries were

reported by federal observers during

1990–99 (Hill and DeMaster, 1999).

The largest fisheries, in terms of

participant number and landed biomass

in Cook Inlet, are the salmon drift and

set gillnet fisheries concentrated in the

central and northern districts of upper

Cook Inlet, where beluga whales are

most likely to be found in the spring

and summer (Rugh et al., In press).

Times of operation change depending

upon management requirements. In

general the drift gillnet fishery operates

from late June through August, and the

set gillnet fishery during June through

September.

The only reports of beluga whale

mortality caused incidental to

commercial salmon gillnet fishing in

Cook Inlet are found in the literature

prior to the observer programs and

reporting systems required by the

MMPA. Murray and Fay (1979) stated

that salmon gillnet fisheries in Cook

Inlet caught five beluga whales in 1979.

An incidental take rate by commercial

salmon gillnet fisheries in the Inlet was

estimated at three to six beluga whales

per year during 1981–83 (Burns and

Seaman, 1986). Neither report, however,

differentiated between the set and drift

gillnet fisheries.

There have been no recent reports of

beluga whales in Cook Inlet being killed

or injured incidental to commercial

fishing operations. No reports of injuries

or mortalities incidental to salmon drift

or set gillnet fishing were reported

during the 1990–91 logbook reporting

program, and none have been included

in the reporting system in place since

1995.

To address the heightened concern in

Cook Inlet and verify the results from

the self-reporting system, NMFS placed

observers in the salmon drift gillnet

fishery and the upper and lower inlet

set gillnet fishery in 1999. Observers

were deployed on the first drift gillnet

opening of June 28. Limited set gillnet

fisheries were operating in the upper

Cook Inlet on June 7, but observers were

not placed until June 27. Thus, fishing

effort associated with approximately

239 of 11,300 deliveries was unobserved

during this period. Observers were

placed on drift vessels during each of

the eight regular and nine corridor-only

fishing periods, and during emergency

order extended fishing periods.

In 141 net-days (in which a net is

fished at least 6 hours in a 24-hour

period) in the drift gillnet fishery,

observations were made of 744 sets and/

or hauls of 102 different vessels for a

total of 845 hours observation time. In

256 net-days within the set gillnet

fishery, 1,450 observations were made

of soaks and/or hauls of 275 different

vessels, totaling 1,545 hours of

observation time.

Marine mammals were observed

within 300 m of a net by observers 43

times (about 6 percent of the

observations) for drift gillnet sets, and

107 times (about 7 percent of the

observations) for set gillnet effort. Of

these, only three sightings were of

beluga whales, each from an observer at

a set gillnet sight in upper Cook Inlet.

The beluga whales were not observed

within 10 m of any net (i.e., within a

distance categorized as an ‘‘interaction’’)

in the drift (35 individual marine

mammals observed) or set (78

individual marine mammals observed)

gillnet fisheries. Three marine mammals

were observed entangled in nets, none

of which were beluga whales.

Personal-use gillnet fisheries also

occur in Cook Inlet, and have been

subjected to many changes since 1978

(Ruesch and Fox, 1999), as summarized

in Brannian and Fox (1996). The most

consistent personal-use fishery is the

use of single 10-fathom gill nets for

salmon in the Tyonek Subdistrict of the

Northern District (Ruesch and Fox,

1999). Personal-use gill nets have also

been allowed within waters

approximately 1.5 miles (2.4 km) of the

Kasilof River. In 1995, personal-use gill

nets were allowed in most areas open to

commercial salmon set gillnet fishing.

Most of this area was closed to personal

gill net use in 1996. Personal-use

salmon set gillnet fisheries are also

found in the Port Graham subdistrict of

lower Cook Inlet. NMFS is unaware of

any beluga whales injured or killed in

the Cook Inlet personal use/subsistence

gillnet fisheries.

In summary, beluga whales

apparently were caught in fishing nets

from 1979 to 1983. None have been

included in fisher self-reports since the

late 1980s. Furthermore, in the fisheries

in which observers were placed since

1990 (including those for which

mortality was reported in the early

1980s), no beluga whales have been

observed entangled in nets or close

enough to a net to be described as an

interaction. NMFS considers that the set

and drift gillnet fisheries may

occasionally cause mortality and serious

injury of marine mammals; however,

there is a remote likelihood that other

fisheries operating in CI will kill or

seriously injure a marine mammal

incidental to their operations. Because

no CI beluga have been reported or

observed to have been killed or

seriously injured incidental to the

gillnet fisheries, the working estimate

for mortality incidental to fishing

operations would be that no beluga have

been killed in CI since 1990. None of the

more than 590 beluga whales that have

stranded in CI were entangled in fishing

gear; therefore, the stranding data

support the working estimate of no

incidental mortality. Therefore, based

upon the best available information,

NMFS does not believe that mortality

incidental to commercial fishing

operations is having, or has had, a

significant impact on the CI beluga

whale stock.

Oil Spills: Oil production, refining,

and shipping occur in Cook Inlet.

Therefore, oil and other hazardous

substances may be spilled and, thus,

impact the CI beluga whale stock. The

Outer Continental Shelf Environmental

Assessment Program estimated that

21,000 barrels of oil were spilled in the

Inlet between 1965 and 1975, and

10,000 barrels were spilled from 1976 to

1979 (MMS, 1996). In July, 1987, the

tanker Glacier Bay struck an

unchartered rock near Nikiski, Alaska,

discharging an estimated 1,350 to 3,800

barrels of crude oil into the inlet (USCG,

1988). Beluga whales are commonly

found in the area of this spill.

There are no data available that

describe behavioral observations or

deleterious effect of these spills on

beluga whales nor that accurately

predict the effects of an oil spill on

beluga whales. Some generalizations,

however, can be made regarding

impacts of oil on individual whales

based on present knowledge.

An oil spill could result in a beluga

whale contacting or ingesting the oil or

suffering respiratory distress from

hydrocarbon vapors. The spill may also

contaminate food sources or displace

the whales from feeding areas. Whales

could be affected through residual oil

from a spill even if they were not

present during the oil spill. The most

likely effects of oil would be irritation

of the respiratory membranes and

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38785

absorption of hydrocarbons into the

bloodstream (Geraci, 1990).

If an oil spill were concentrated in

open water (e.g. within tide rips), a

beluga whale might inhale enough

vapors from a fresh spill to affect its

health. No reliable data exist on the

effects of petroleum vapor inhalation on

cetaceans; however, inhalation of vapors

in excess of 10,000 ppm is fatal to

humans (Ainsworth, 1960; Wang and

Irons, 1961). Inhalation of petroleum

vapors can cause pneumonia in humans

and animals due to large amounts of

foreign material (vapors) entering the

lungs (Lipscomb et al., 1994). Although

pneumonia was not found in sea otters

that died after the Exxon Valdez oil

spill, inhalation of vapors was

suspected to have caused interstitial

pulmonary emphysema (accumulation

of bubbles of air within connective

tissues of the lungs). Crude oil

evaporation rates are greatest during the

first few days after an oil spill (Meilke,

1990).

Whales may also contact oil as they

surface to breathe, but the effects of oil

contacting skin are largely speculative.

Experiments in which bottlenose

dolphins were exposed to petroleum

products showed transient damage to

epidermal cells, and that cetacean skin

presents a formidable barrier to the toxic

effects of petroleum (Bratton et al.,

1993). Geraci and St. Aubin’s (1985)

investigations found that exposure to

petroleum did not make a cetacean

vulnerable to disease by altering skin

microflora or by removing inhibitory

substances from the epidermis.

Geraci (1990) reviewed a number of

studies pertaining to the physiologic

and toxic impacts of oil on whales and

concluded no evidence exists that oil

contamination had been responsible for

the death of a cetacean. Cetaceans

observed during the Exxon Valdez oil

spill in Prince William Sound made no

effort to alter their behavior in the

presence of oil (Harvey and Dahlheim,

1994; Loughlin, 1994).

Following the Exxon Valdez oil spill,

daily vessel surveys of Prince William

Sound were conducted from April 1

through April 9, 1989, to determine the

abundance and behavior of cetaceans in

response to the oil spill (Harvey and

Dahlheim, 1994). During the nine

surveys, 80 Dall’s porpoise, 18 killer

whales, and two harbor porpoise were

observed. Oil was observed on only one

individual, which had oil on the dorsal

half of its body and appeared stressed

due to its labored breathing pattern. A

total of 37 cetaceans were found dead

during and after the oil spill, but cause

of death could not be linked to exposure

to oil (Loughlin, 1994). Dalheim and

Matkin (1994) reported 14 killer whales

missing from a resident Prince William

Sound pod over a period coincident

with the Exxon Valdez oil spill. They

noted that nearly all resident killer

whales likely swam through heavily

oiled sections of the sound and that the

magnitude of that loss was

unprecedented. Dalheim and Matkin

concluded a correlation existed between

the loss of these whales and the spill,

but they could not identify a cause-andeffect relationship.

Toxicity of crude oil decreases with

time as the lighter, more harmful,

aromatic hydrocarbons, such as

benzene, evaporate. Acute chemical

toxicity (lethal effects) of the oil is

greatest during the first month following

a spill. Sublethal effects may be

observed in surviving birds, mammals,

and fish for years after the spill.

Sublethal and chronic effects include

reduced reproductive success, blood

chemistry alteration, and weakened

immunity to disease and infections

(Spies et al., 1996).

Contaminated food sources and

displacement from feeding areas may

also occur as a result of an oil spill.

Over a 3-month period, Caldwell and

Caldwell (1982) fed 335 ml of hydraulic

oil to bottlenose dolphins. The dolphins

did not reject the fish containing oil

capsules. They were necropsied after

the experiment, and no lesions

attributable to oil were detected.

These studies indicate that an oil spill

could have an effect on beluga whales

if one were to occur. However, no

significant impact on beluga whales can

be attributed to oil spills or production

in CI despite high levels of oil

production, refining, and transport

within the inlet and its watershed.

Therefore, at current levels of activity,

oil and gas exploration and

development are not expected to have a

significant impact on the CI beluga

stock.

The oil and gas industry has a history

of compliance with the MMPA and ESA

for their operations in Alaska, and the

MMPA provides a regulatory regime to

ensure that the taking of marine

mammals incidental to commercial

activity would have no more than a

negligible impact on marine mammals.

Furthermore, the MMPA provisions that

establish this regime include a

requirement that the activity must not

have an unmitigable adverse impact on

the availability of marine mammals for

subsistence uses. Consequently, there is

an adequate regulatory mechanism to

address future expansion of the oil and

gas industry in Cook Inlet.

Other Pollutants: The principle

sources of pollution in the marine

environment are (1) discharges from

municipal waste-water treatment

systems; (2) discharges from industrial

activities that do not enter municipal

treatment systems (petroleum and

seafood processing); (3) runoff from

urban, mining, and agricultural areas;

and (4) accidental spills or discharges of

petroleum and other products. Natural

and man-made pollutants entering the

inlet are diluted and dispersed by the

currents associated with the tides,

estuarine circulation, wind-driven

waves and currents (MMS,1996).

Pollutants may be classified as

chemical, physical, and biological.

Chemical pollutants include organic

and inorganic substances. The

decomposition of organic substances

uses oxygen and, if enough organic

material is present, the concentration of

oxygen could be reduced to levels that

would threaten or harm oxygen-using

inhabitants of the water column.

The discharge of soluble inorganic

substances may change the pH or the

concentration of trace metals in the

water, and these changes may be toxic

to some marine plants and animals.

Physical pollutants include suspended

solids, foam, and radioactive

substances. Suspended solids may

inhibit photosynthesis, decrease benthic

activity, and interfere with fish

respiration. Foam results from surface

active agents and may cause a reduction

in the rate of oxygen-gas transfer from

the atmosphere into the water.

Biological pollutants may promote

waterborne disease by adding pathogens

to the receiving waters or may stimulate

excessive biological growth.

i. Produced Waters: Produced waters

constitute the largest source of manmade substances discharged into the

waters of Cook Inlet. The characteristics

of the produced waters, as well as other

discharges, except drilling muds and

cuttings described in this section, are

based on information obtained during

the Cook Inlet Discharge Monitoring

Study, conducted between April 10,

1988, and April 10, 1989 (EBASCO

Environmental, 1990a; 1990b). These

waters are part of the oil/gas/water

mixture produced from the wells and

contain a variety of dissolved

substances. Also, chemicals are added

to the fluids as part of various activities

including water-flooding; well workover, completion, and treatment; and

the oil/water-separation process. Before

being discharged into Cook Inlet,

produced waters pass through

separators to remove oil and gas. The

treatment process removes suspended

oil particles from the waters, but the

effluent contains dissolved

hydrocarbons or those held in colloidal

38786 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

suspension (Neff and Douglas, 1994).

Although the discharge of produced

waters is an issue of concern, the

toxicity of produced waters, as

indicated in the monitoring study,

ranged from only slightly toxic to

practically nontoxic (to shrimp) and

would not, therefore, be expected to

impact beluga whales.

ii. Drilling Muds and Cuttings: A

general permit issued by the

Environmental Protection Agency (EPA)

authorizes the discharge of approved

generic drilling muds and additives into

waters of Cook Inlet. Drilling muds

consist of water and a variety of

additives; 75 to 85 percent of the

volume of most drilling muds currently

used in Cook Inlet is water (Neff, 1991).

When released into the water column,

the drilling muds and cuttings

discharges tend to separate into upper

and lower plumes (Menzie, 1982). The

upper plume contains the solids and

water-soluble components that separate

from the material of the lower plume

and are kept in suspension by

turbulence.

The discharge of drilling muds at

surface ensures dispersion and limits

the duration and amount of exposure to

organisms (NRC, 1983). Most of the

solids in the discharge, >90 percent,

descend rapidly to the sea floor in the

lower plume. The sea floor area in

which the discharged materials are

deposited depends on the water depth,

currents, and material particle size and

density (NRC, 1983). In most Outer

Continental Shelf areas, the particles are

deposited within 500 ft below the

discharge site; however in Cook Inlet,

which is considered to be a high-energy

environment, the particles are deposited

in an area that is >500 ft below the

discharge site (NRC, 1983). Small

particles of drilling mud (several

centimeters in diameter) also may settle

to the sea floor immediately following a

discharge but would disperse within a

day.

Since 1962, 546 wells have been

drilled in Cook Inlet. One Continental

Offshore Stratigraphic Test well and 11

exploration wells were drilled in

Federal waters and 75 exploration and

459 development and service wells were

drilled in State waters, mainly in upper

Cook Inlet (State of Alaska, AOGCC,

1993). From 1962 through 1970, 292

wells were drilled, including 62 for

exploration and 230 for development

and service (State of Alaska, AOGCC,

1993). From 1971 through 1993, the

number of wells drilled per year has

ranged from 3 to 20, with an annual

average of about 11.

The toxicity of the muds used to drill

39 production wells in Cook Inlet

between August 1987 and February

1991 ranged from 1,955 to >1,000,000

ppm for a marine shrimp (Neff, 1991).

Concentration levels >10,000 ppm are

considered practically nontoxic and

between 1,000 and 10,000 ppm are

slightly toxic. The percentages of the

wells with toxicities >10,000 ppm was

89 percent of the total number.

Therefore, 89 percent of the muds from

this production were considered nontoxic to shrimp. Given the results of this

study, the toxicity levels of production

muds do not likely impact beluga

whales.

iii. Heavy Metals and Organic

Compounds: NMFS has obtained

biological samples from CI beluga

whales under protocols developed for

the Alaska Marine Mammal Tissue

Archival Project. From these collections,

selected tissues have been analyzed for

PCBs and trace elements, including

heavy metals in liver and kidneys. As

has been found for beluga whales from

other regions in Alaska, Canada, and

Greenland, the CI beluga whales were

found to have relatively high

concentrations of mercury, selenium,

and silver in their livers. These levels

are much higher than one finds in

ringed seals, harbor seals, bowhead

whales, and walrus in Alaska. However,

as compared to other Alaskan beluga

whale stocks (Eastern Chukchi Sea and

Eastern Beaufort Sea), the levels of these

three metals, as well as cadmium, were

much lower in the Cook Inlet animals

(Becker et al., in press). These elements

accumulate in liver tissue and increase

with age of the animal. The uptake and

bioaccumulation of these elements are

determined by many factors, and the

diet of the animal plays a major role

(Becker et al., In press).

Concentrations of PCBs and

chlorinated pesticides were found to be

lower in the blubber of beluga whales

from CI than from beluga whales from

Point Lay (Eastern Chukchi Sea stock)

and Point Hope (Eastern Beaufort Sea

stock), Alaska. Generally, CI beluga

whales are ‘‘cleaner’’ than other beluga

whale populations throughout the

Arctic and the eastern United States. A

comparison of tissue concentrations of

persistent organic contaminants, heavy

metals, and other elements between CI

beluga whales and other beluga whales

in North America confirms that the CI

animals are distinct from other

populations and stocks of this species.

The CI animals had much lower

concentrations of PCBs and chlorinated

pesticides than those which have been

reported from the Eastern Beaufort Sea

and Eastern Chukchi Sea stocks. Due to

the lower concentrations of PCBs and

chlorinated pesticides in CI beluga

whales, their effects on the animals’

health may be less significant for CI

animals than for the other beluga whale

stocks.

iv. Municipal Wastes and Urban

Runoff: Ten communities currently

discharge treated municipal wastes into

Cook Inlet. Wastewater entering these

plants may contain a variety of organic

and inorganic pollutants, metals,

nutrients, sediments, and bacteria and

viruses. Of these, the Municipality of

Anchorage’s John M. Asplund

Treatment Center, English Bay, Port

Graham, Seldovia, and Tyonek use only

primary treatment, and Eagle River,

Girdwood, Homer, Kenai, and Palmer

use secondary treatment. The maximum

permitted wastewater discharge for

Anchorage is 44 million gallons per day

(GPD), and that for other communities

ranges from 10 thousand to 1.6 million

GPD. The EPA is currently in the

process of re-issuing the Asplund

facility discharge permit.

For Anchorage, the effluent

limitations requested for the daily

discharge of organic material, such as

sewage (often reported as Biological

Oxygen Demand (BOD)), and total

suspended solids in the wastewater are

90,100 pounds per day (lb/d) and 57,000

lb/d, respectively. Based on the daily

maximums presently permitted for these

ten communities, they could release

about 16.38 million pounds of BOD and

13.82 million pounds of suspended

solids into CI annually.

Determining the impact of municipal

discharges on the beluga whale stock is

not possible. The rivers entering Knik

Arm alone carry an estimated 20 million

tons of sediment annually (Gatto, 1976).

Therefore, the suspended loading that

naturally occurs in the extreme upper

inlet parallels that discharged by the

Municipality of Anchorage. The impact

of the sediment loading by discharges

on beluga whales is not known. Given

the relatively low levels of contaminants

found in CI beluga whale tissues,

municipal discharge levels are not

believed to be having a significant

impact on the beluga whale population.

Noise: Upper Cook Inlet is one of the

most industrialized and urbanized

regions of Alaska. As such, noise levels

may be high. The petitioners recognized

this as a factor that might cause beluga

whales in Cook Inlet to avoid using

parts of their available habitat due to

noise levels. The common types of

noises in upper Cook Inlet include

sounds from vessels, aircraft,

construction equipment (e.g., diesel

generators, bulldozers, and

compressors) and from activities such as

pile-driving.

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38787

Any sound signal in the ocean is

detectable by marine mammals only if

the received level of the sound exceeds

a certain detection threshold

(Richardson et al., 1995). If the sound

signal reaching a marine mammal is

weaker than the background noise level,

it may not be detected. This concept is

important in understanding the effects

of noise on whales in at least two areas:

(1) The audibility of an industrial noise

is dependent in part on the background

(ambient) noise levels, and (2) as

industrial noises add to the level of

background noise, they may prevent or

diminish the effectiveness of

communication among whales or

between whales and their environment.

Considering the depth of the animal

being exposed to noise is also

important. The noise level from a source

when measured within 3 ft (1 m) of the

surface is significantly lower than the

noise level when measured at depths of

16 to 33 ft (5 to 10 m). For example, a

marine mammal at the surface will

experience a received-noise level

approximately 30 dB less than the level

for an animal at the same distance from

the source, but at a depth of 33 ft (10

m).

A noise of sufficient intensity must

also be in the range of frequencies that

beluga whales can hear. Their peak

hearing is within the range of about

10,000 to 90,000 Hz (Richardson et al.,

1995). Noises outside, but near, this

range can be heard but not as well as

those within the range.

i. Aircraft Noise: Richardson et al.,

(1995) and Richardson and Malme

(1993) provided summaries on aircraft

sound in water. The surface area of

sound transmission from air to water is

described by a cone where the apex of

the cone is the aircraft, and the cone has

an aperture of 26 degrees. In general,

underwater noise from aircraft is

loudest directly beneath the aircraft and

just below the water’s surface, and

sound levels from the same aircraft are

much lower underwater than the sound

levels in air. The duration of the noise

is short because noise is generally

reflected off the water surface at angles

greater than 13 degrees from vertical.

Helicopters tend to be noisier than

fixed-wing aircraft. The amount of noise

entering the water depends primarily on

aircraft altitude, sea surface conditions,

water depth, and bottom conditions

(Richardson et al., 1995).

Monitoring results of aircraft noise

levels are complicated due to variables

that are inherent in such analyses,

including monitoring equipment

averaging times, aircraft types and

operations (i.e., power setting, propeller

pitch, altitude changes), meteorological

conditions, and aircraft altitude. There

are no data on the level of received

sound that disturb or do not disturb

toothed whales (Richardson et al.,

1995). The response of beluga whales to

airplanes and helicopters varies with

social context, distance from the

aircraft, and aircraft altitudes. Because

the underwater noise generated by an

aircraft is greatest within the 26 degree

cone directly beneath the craft, whales

often react to an aircraft as though

startled, turning or diving abruptly

when the aircraft is directly overhead.

Richardson et al., (1995) reports beluga

whales not reacting to aircraft flying at

500 m, but, when the aircraft was at

lower altitudes (150–200 m) the whales

dove for longer periods and sometimes

swam away. Feeding beluga whales

were less prone to disturbance. NMFS

aerial surveys are normally flown at an

altitude of 150 m, using fixed-wing

single- and twin-engine aircrafts. Beluga

whales are rarely observed to react to

even repeated overflights at this

altitude.

The main approaches to the

Anchorage International Airport,

Elmendorf Air Force Base, and Merrill

Field are at least partially over the

upper Inlet, including Knik Arm.

Commercial and military jet airplanes

often fly over these waters at relatively

low altitudes. Despite this traffic, beluga

whales are common to these same

waters and are often observed directly

under the approach corridors off the

north end of International Airport and

the west end of Elmendorf Air Force

Base.

ii. Ship and Boat Noise: Ships and

boats create high levels of noise both in

frequency content and intensity level,

and this noise can be detected at great

distances. High-speed vessels tend to be

much noisier than slow-speed vessels.

Small commercial ships are generally

diesel-driven, and the highest 1/3-

octave band is in the 500 to 2,000 Hz

range. Tugs can emit high levels of

underwater noise at low frequencies.

Small outboard motors, such as those

commonly used for recreation in the

upper Inlet, typically produce noise at

much higher frequencies (e.g. 6300 Hz)

and may have the highest potential to

interfere with beluga whales.

iii. Noise from Offshore Drilling and

Production: Sound produced by oil and

gas drilling and production in Cook

Inlet may be a significant component of

the noise in the local marine

environment. Gales (1982) summarized

noise from eleven production platforms.

The strongest tones from four

production platforms were at very low

frequencies (between 4 and 38 Hz).

Various studies and observations

suggest that beluga whales are relatively

unaffected by these activities. Belugas

are regularly seen near drill sites in

Cook Inlet (Richardson et al., 1995:282;

McCarty 1981). Stewart et al., (1982)

reported that beluga whales in Snake

River, Alaska, did not appear to react

strongly to play-backs of oil industryrelated noise at levels up to 60 dB above

ambient. Stewart, Awbrey, and Evans

(1983) conducted similar playback

experiments in Nushagak Bay, Alaska,

in 1983 and found that beluga whale

movement and general activity were not

greatly affected, especially when the

source of the noise was constant.

Beluga whales did swim faster and

respiration rates sometimes increased

within 1.5 km of the sound projector.

During playback experiments in the

Beaufort Sea, migrating beluga whales

approached the sound projector and

showed no overt reactions until within

200–400 meters, even though the noise

was detectable by hydrophone up to

5km away (Richardson et al., 1990,

1991). Richardson et al. (1995) observed

these results may be an example of the

degree to which beluga whales can

adapt to repeated or on-going man-made

noise when it is not associated with

perceived negative consequences.

iv. Noise from Seismic Geophysical

Exploration: Geophysical exploration in

CI for oil and gas deposits is often

accomplished using boat-based seismic

survey. Seismic surveys produce some

of the loudest noises in the marine

environment. These surveys use

compressed air to generate short,

intense bursts of underwater energy that

may propagate for great distances. The

noise produced by these surveys is at

very low frequencies, often less than

100 Hz, which is below the optimum

hearing range of beluga whales.

Higher frequencies are absorbed in

water more than lower frequencies.

Seismic sound propagation is also

dependent on bottom structure, and soft

substrates such as those found in the

upper inlet absorb sound better than

hard, reflective material. Finally,

seismic sound is poorly transmitted

through shallow waters, such as exists

near the mouths of the Susitna River.

Therefore, seismic exploration in the

upper inlet may be poorly transmitted

through the water and may have little

direct impact on beluga whales.

However, seismic sound may be very

loud, with some sound energy at higher

frequencies that overlap the peak

auditory range of the beluga whale.

Beluga whales would likely hear, and

may react to, an active seismic vessel in

certain areas and under certain

conditions. Presently, no data exist to

38788 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

characterize the noise from seismic

exploration in Cook Inlet. NMFS

observed beluga whales in Cook Inlet

approximately 20 nmi from an active

seismic vessel in June 1995, and

reported no reactions (Moore et al., In

press).

v. Summary of the Impacts of Noise

on CI Beluga Whales: Because sound is

a critical sense to beluga whales, high

levels of noise may have significant and

adverse effects. However, evaluation

and prediction of human-made noise

impacts on marine mammals is difficult.

Estimating acoustic environmental

impact on animals requires

interpretation and integration of results

from many disciplines including, but

not limited to, the study of how sound

waves interact with the environment

(physical acoustics), how animals hear

sounds (anatomy and physiology), and

how animals use sounds for behaviors

such as communicating, navigating, and

finding food (bio-acoustics and

behavioral ecology).

One of the most obvious behavioral

responses to industrial noise is to avoid

the area by swimming away from or

detouring around the noise source. Two

other behavioral responses, habituation

and sensitization, also are important

when discussing the potential reactions

of beluga whales to multiple exposures

to a noise stimulus.

Habituation refers to the condition in

which repeated experiences with a

stimulus that has no important

consequence for the animal leads to a

gradual decrease in response.

Richardson et al., (1995) provided

examples of beluga whales becoming

habituated to noise from frequent vessel

traffic in the St. Lawrence River and to

salmon fishing boats in Bristol Bay.

Elsewhere, beluga whales have been

observed to tolerate large vessel traffic

(e.g., in the St. Lawrence River), and

intensive commercial fishing vessel

activity (in Bristol Bay). Beluga whales

are commonly found immediately

adjacent to the Port of Anchorage during

summer months, often very near

containerships and tugs which are

docking, maneuvering, or underway.

Sensitization refers to the situation in

which the animal shows an increased

behavioral response over time to a

stimulus associated with something that

has an important consequence for the

animal. Although whales tend to show

little response to vessels that move

slowly and are not heading toward them

(Richardson et al., 1995), beluga whales

will often leave an area in which vessel

noise is related to hunting (Sergeant and

Brodie 1975; Huntington, 1999). Native

hunters in Cook Inlet have also reported

that beluga whales actively avoid

approaching skiffs powered by outboard

motors, particularly during the summer

and fall. Many researchers report that

beluga whales commonly flee from fast

and erratically moving small boats.

The variable response that beluga

whales show to vessels indicates that

these whales (1) are not disturbed by

such activity, (2) habituate to such

activity, (3) or (from Blane, 1990)

continue to use some areas for feeding

and traveling because these areas are

critical to their survival. If the last

alternative is actually the case, then the

whales’ lack of avoiding areas where

vessel traffic routinely occurs should

not be interpreted as the whales being

undisturbed.

Beluga whales did not abandon an

area within upper Cook Inlet even when

they were being hunted and pursued

(Shelden, 1995). A large group of beluga

whales remained in or near the mouth

of the Little Susitna River for several

weeks during June of 1999. During this

period, many small motor boats sport

fishing for chinook salmon moved

between Anchorage and the Little

Susitna river.

CI beluga whales appear to display a

strong fidelity to certain sites. They are

similar in this respect to the Bristol Bay

stock of beluga whales. It is generally

believed in western and northern

Alaska, however, that modernization of

coastal communities, with its associated

noise, is causing beluga whales to pass

farther from shore and to abandon

traditional sites (Burns and Seaman,

1986).

To what extent, if any, noise in the

Cook Inlet area has had an effect on the

current distribution or trends of these

animals is not clear. Over the long-term,

disturbance from noise, if it keeps

belugas from foraging sites, could have

an effect which would be expressed as

a lower productivity rate due to low

level, or chronic, stress symptoms that

would inhibit successful foraging.

However, no indication exists that this

is happening. Given the fidelity of these

whales to specific foraging sites in the

upper inlet, the need to prey on

available forage is apparently stronger

than the impacts of potential

disturbance from noise, or other factors,

in those locations. Such site fidelity has

also been witnessed in other whale

populations.

Commercial Harvest: Klinkhart (1966)

reported that a commercial harvest for

beluga whales occurred in Cook Inlet in

the 1930s. This harvest took about 100

beluga whales. These whales were

netted in the Beluga River, and used for

meat and oil. Guided sport hunting for

CI beluga whales was also popular

during the 1960s (Anchorage Daily

Times, 1965); however, there is no

information on the level of this harvest.

These activities have not had an impact

on CI beluga whales in recent decades.

Ship Strikes: The presence of beluga

whales in and near river mouths

entering upper Cook Inlet predisposes

them to strikes by high speed watercraft

associated with sport and commercial

fishing and general recreation. The

mouths of the Susitna and Little Susitna

River in particular are areas where such

vessel traffic and whales commonly

occur. NMFS enforcement agents

investigated a report of a jet skier

approaching and striking belugas in

Knik Arm in 1994. A stranded beluga

whale examined in 1999 had an injury

consistent with an old propeller injury

(Burek, 1999b). Data are not available to

quantify the impact of vessel strikes on

the CI stock of beluga whales, but vessel

strikes are not believed to have a

significant impact on the population.

Tourism: Tourism is a growing

component of the state and regional

economies, and wildlife viewing is an

important component of this activity.

Many tour buses routinely stop at

several wayside sites along Turnagain

Arm in the summer, where beluga

whales are often seen.

Presently no vessel-based commercial

whale watching ventures operate in

upper Cook Inlet. However, the

popularity of whale watching and the

close proximity of the activity, and

beluga whales, to Anchorage suggests

such operations may begin in the near

future. Should whale watching

operations develop in CI, NMFS plans

to monitor them.

Prey Availability: Beluga whales

actively feed in the upper inlet where

prey species concentrate. The arrival of

beluga whales into the northern Inlet

coincides with the eulachon migration.

Soon after the eulachon migration,

salmon out-migrations and the first

chinook salmon spawning runs begin.

NMFS biologists sampled stomachs

from subsistence-harvested whales and

found that many contain salmon and

eulachon. Native hunters’ observations

indicate that the whales’ distribution in

Cook Inlet is dependent upon fish runs.

NMFS placed a radio transmitter on

an adult beluga whale in 1999, and this

animal remained in or near the mouth

of the Little Susitna River for several

weeks between May and June in 1999.

This whale was observed swimming

among a group of approximately 90

beluga whales. This group moved into

the central region of the upper Inlet and

into Knik Arm during the times coho

salmon were returning to the Little

Susitna River.

Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations 38789

Several commenters stated their belief

that fish runs have declined

dramatically within Cook Inlet during

the last decade, and that this decline has

caused fewer beluga whales to visit the

upper Inlet. Native observations

(Huntington, 1999) also suggest that

severe declines in fish runs have

occurred in Cook Inlet during the past

few years. Huntington reported that

these changes resulted in a

redistribution of the beluga whales and

the subsequent decline of beluga whales

in Cook Inlet. The available evidence,

however, shows little trend in the size

of fish runs and, in some cases,

contradicts these observations.

Several waterways entering CI are

monitored for anadromous fish

migrations by the Alaska Department of

Fish and Game (ADFG), and NMFS

reviewed salmon escapement for

selected species for three such index

streams, the Yentna, Little Susitna, and

Kenai Rivers (Fox and Shields, 2000).

Sockeye returns to the Yentna River

fluctuate from 1981 through 1999, but

no trend is apparent. The returns for

1997 through 1999 are above average for

the entire period, but decline from a

peak in 1997 to lower levels in 1998 and

1999.

Sockeye returns to the Kenai River are

relatively consistent from 1978 through

1999, with the later years having

slightly larger runs than early in the

reporting period. Returns showed peaks

in 1987 and 1989, which were much

higher than any other year in the

reporting period. The harvest of sockeye

salmon in the last 10 years has exceeded

the 44-year average harvest.

Coho returns to the Little Susitna

River show an increasing trend from

1986 through 1991 and a decline from

1993 through 1999. The escapements in

1998 and 1999 were higher than in 1986

and 1987.

Other prey species may be important

to CI beluga whale, but there are little

quantitative data to evaluate stock

abundance and trends. Herring occur in

concentrations and are rich in lipids

(high caloric value). During a study of

salmon smolts within the upper Inlet,

juvenile herring (ages 0 and 1) were the

most consistently caught species, and

were second in abundance of all species

encountered (Moulton, 1994).

Historically, the herring run along the

western side of lower CI has supported

a local commercial fishery for herring

roe. In 1999, the roe fishery was closed

due to declining herring biomass, which

ADFG estimated as 6,000 to 13,000 tons

(ADFG, 1999b).

Eulachon also migrate into rivers

within CI. A commercial venture to

harvest eulachon in the lower Susitna

River operated in 1999. The fishery was

limited to 50 tons (ADFG, 1999a) and

achieved this level of harvest rapidly.

The available information does not

provide a clear quantitative assessment

on trends of fish stocks in CI. However,

observations by NMFS scientists and

Alaska Natives provide some indication

of the abundance and availability of

food to CI beluga whales. From records

on stranded whales, NMFS scientists

have noted a large proportion of gray

(juvenile) beluga whales in the stock.

Huntington (1999) reported that Alaska

Native hunters and elders also stated

that the majority of whales are gray and

that CI beluga whales are becoming

sexually mature when gray, which is not

the normal pattern.

If the population were food-stressed,

the expected population response

would be for calf survival to be

decreased and for the age of sexual

maturity to be delayed. The higher

proportion of juvenile whales and the

decreased age of first reproduction, as

indicated by the observation that gray

beluga whales are producing calves,

suggest that nutrition is not limiting the

population.

Discussion

The ESA instructs the Federal

government to conduct a review of the

status of the species and include efforts

by any state or foreign nation to protect

such species within any area under its

jurisdiction or the high seas. NMFS

conducted such a status review of CI

beluga whales to determine whether the

population should be listed as

threatened or endangered under the

ESA or designated as depleted under the

MMPA.

NMFS conducted annual surveys of

the Cook Inlet beluga whale between

1994 and 1998. The results show a

sharp decline in estimated abundance,

with the 1998 estimate (347 animals)

nearly 50 percent lower than the 1994

estimate (653 animals).

The mean subsistence harvest level of

CI beluga whales from 1995 through

1998 was 77 whales per year. There was

no harvest in 1999, and NMFS is

working with CIMMC to authorize the

harvest of one whale in 2000. The

harvest, which has been identified as

the only factor that can account for the

observed decline of the CI beluga stock,

is being controlled through Pub. L. 106–

31 and will be controlled through

regulatory mechanisms that are

available under the MMPA. The Pub. L.

106–31 will expire on October 1, 2000,

and the protection will stop unless the

legislation is extended or NMFS issues

regulations that provide a long-term

limitation on the harvest to promote

recovery of the stock.

In simulation modeling efforts, NMFS

scientists have demonstrated that the

stock is not likely to continue to decline

if the harvest is controlled. Breiwick

and DeMaster (1999) showed that a

stock with at least 300 individuals and

a positive intrinsic growth rate, like that

of beluga whales, would not go extinct

due to stochastic events.

Using a logistic model with

productivity values taken from the

current CI beluga stock assessment

report and an assumed carrying capacity

of 1,300 whales, NMFS compared the

rates of population growth using no

harvest and a harvest of 2 whales per

year. The no-harvest model indicated

that the stock would be expected to

double in about 2 decades. The latter

model predicted that the harvest of 2

whales per year would have a negligible

impact on the stock (i.e., such a harvest

regime would not cause a significant

delay in recovery compared to the noharvest model).

The habitat of the stock has not been,

nor is it likely to be, destroyed,

modified or curtailed in sufficient

extent to cause the stock to be in danger

of extinction. The stock has not been

overutilized for commercial,

recreational, scientific or educational

purposes. The effects of disease or

predation are not well documented but

are believed to be minimal. There is an

adequate regulatory mechanism to

control the subsistence harvest, which is

the only factor that can account for the

observed decline, through October 1,

2000. In addition, the MMPA provides

an adequate mechanism to ensure that

future commercial activity in CI would

have no more than a negligible impact

on the stock. Other natural or manmade

factors (subsistence harvest) have

affected the stock’s continued existence;

however, the current (since 1999) level

of harvest would not have a significant

adverse impact on the continued

existence of CI beluga whales.

Determination

Based on the best available scientific

information, NMFS has determined that

the CI beluga whale population has

declined to a level that is considered

depleted under the MMPA. However,

after taking into account the information

summarized above, NMFS has

determined that the stock is not in

danger of extinction nor is it likely to

become so in the foreseeable future.

Therefore, NMFS has determined that

listing CI beluga whales under the ESA

is not warranted at this time.

NMFS remains concerned about the

status of the CI beluga population and

38790 Federal Register / Vol. 65, No. 121 / Thursday, June 22, 2000 / Rules and Regulations

will continue to include the population

on the list of candidate species under

the ESA. Furthermore, NMFS will

continue to monitor the abundance and

population trend of the stock and will

re-evaluate its status as needed.

References

A complete list of all cited references

is available upon request (see FOR

FURTHER INFORMATION CONTACT).

Classification

National Environmental Policy Act

The 1982 amendments to the ESA, in

section 4(b)(1)(A), restrict the

information that may be considered

when assessing species for listing. Based

on this limitation of criteria for a listing

decision and the opinion in Pacific

Legal Foundation v. Andrus, 675 F. 2d

825 (6th Cir. 1981), NMFS has concluded

that ESA listing actions are not subject

to the environmental assessment

requirements of NEPA. See NOAA

Administrative Order 216–6.

Executive Order 12866 and Regulatory

Flexibility Act

As noted in the Conference Report on

the 1982 amendments to the ESA,

economic impacts cannot be considered

when assessing the status of a species.

Therefore, the economic analysis

requirements of the Regulatory

Flexibility Act are not applicable to the

listing process. In addition, this final

action is exempt from review under

Executive Order 12866.

Executive Order 13132—Federalism

In keeping with the intent of the

Administration and Congress to provide

continuing and meaningful dialogue on

issues of mutual State and Federal

interest, NMFS has conferred with State

and local government agencies in the

course of assessing the status of CI

beluga whales. State and local

governments have expressed support for

the conservation of this stock of beluga

whales. Dialogue with State and local

agencies included an exchange and

discussion of scientific information

regarding beluga whales, factors that

may be affecting them, and their status

under the ESA and MMPA.

Executive Order 13084—Consultation

and Coordination with Indian Tribal

Governments

E.O. 13084 requires that if NMFS

issues a regulation that significantly or

uniquely affects the communities of

Indian tribal governments and imposes

substantial direct compliance costs on

those communities, NMFS must consult

with those governments, or the Federal

government must provide the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments. This action does not

impose substantial direct compliance

costs on the communities of Indian

tribal governments. Accordingly, the

requirements of section 3(b) of E.O.

13084 do not apply to this action.

Nonetheless, NMFS took several steps

to inform affected tribal governments

and solicit their input during

development of this determination and

addressed their input within

announcement of the determination.

One tribal government and CIMMC, an

ANO representing several tribes within

Cook Inlet, formally commented on the

status review. NMFS discussed the

status of the CI beluga whale stock with

CIMMC and other tribally-authorized

ANOs prior to and during the status

review and plans to continue working

with local tribally-authorized ANOs to

develop and implement an effective

program to control the harvest of CI

beluga whales and promote recovery of

the stock.

Dated: June 15, 2000.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries,

National Marine Fisheries Service.

[FR Doc. 00–15666 Filed 6–21–00; 8:45 am]

BILLING CODE 3510–22–F