19854 Federal Register / Vol. 72, No. 76 / Friday, April 20, 2007 / Proposed Rules 

Flooding source(s) Location of referenced elevation 

*Elevation in feet (NGVD) 

+ Elevation in feet (NAVD) 

# Depth in feet above 

ground Communities affected 

Effective Modified 

Tributary 7 ...................... At the confluence with West Fork Sandy Run ............. None +825 Rutherford County (Unincorporated Areas). 

Approximately 0.9 mile upstream of the confluence 

with West Fork Sandy Run.

None +842 

* National Geodetic Vertical Datum. 

+ North American Vertical Datum. 

# Depth in feet above ground. 

ADDRESSES 

Town of Bostic 

Maps are available for inspection at the Bostic Town Hall, 104 Pearidge Road, Bostic, North Carolina. 

Send comments to The Honorable Mitch Harrill, Mayor of the Town of Bostic, 177 South Main Street, Bostic, North Carolina 28018.

Town of Forest City 

Maps are available for inspection at the Forest City Town Hall, 128 North Powell Street, Forest City, North Carolina. 

Send comments to Mr. Charles Summey, II, Forest City Town Manager, P.O. Box 728, Forest City, North Carolina 28043. 

Town of Lake Lure 

Maps are available for inspection at the Lake Lure Town Hall, 2948 Memorial Highway, Lake Lure, North Carolina. 

Send comments to The Honorable James Proctor, Mayor of the Town of Lake Lure, P.O. Box 255, Lake Lure, North Carolina 28746. 

Town of Ruth 

Maps are available for inspection at the Ruth Town Hall, 199 Northview-Dorsey Street, Ruth, North Carolina. 

Send comments to The Honorable Don Baynard, Mayor of the Town of Ruth, 108 Northview-Dorsey Street, Ruth, North Carolina 28139.

Town of Rutherfordton 

Maps are available for inspection at the Rutherfordton Town Hall, 129 North Main Street, Rutherfordton, North Carolina. 

Send comments to The Honorable Sally Lesher, Mayor of the Town of Rutherfordton, 447 North Washington Street, Rutherfordton, North Carolina. 

Town of Spindale 

Maps are available for inspection at the Spindale Town Hall, 104 Reveley Street, Spindale, North Carolina. 

Send comments to The Honorable Mickey Bland, Mayor of the Town of Spindale, P.O. Box 186, Spindale, North Carolina 28160. 

Unincorporated Areas of Rutherford County 

Maps are available for inspection at the Rutherford County Building and Inspections Department, 289 North Main Street, Rutherfordton, North 

Carolina. 

Send comments to Mr. John Condrey, Rutherford County Manager, 289 North Main Street, Rutherfordton, North Carolina 28139. 

Village of Chimney Rock 

Maps are available for inspection at the Village of Chimney Rock Office, 109 Terrace Drive, Chimney Rock, North Carolina. 

Send comments to The Honorable Barbara Melisky, Mayor of the Village of Chimney Rock, P.O. Box 300, Chimney Rock, North Carolina 

28720. 

(Catalog of Federal Domestic Assistance No. 

83.100, ‘‘Flood Insurance.’’) 

Dated: April 10, 2007. 

David I. Maurstad, 

Federal Insurance Administrator of the 

National Flood Insurance Program, Federal 

Emergency Management Agency, Department 

of Homeland Security. 

[FR Doc. E7–7593 Filed 4–19–07; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 070319062–7062–01; I.D. 

021607C] 

RIN 0648–XB64 

Endangered and Threatened Species; 

Proposed Endangered Status for the 

Cook Inlet Beluga Whale 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, NMFS, have completed a 

comprehensive status review of the 

Cook Inlet population of beluga whale 

(Delphinapterus leucas) under the 

Endangered Species Act (ESA). Based 

on the findings from the status review 

and consideration of the factors 

affecting this species, we have 

concluded the Cook Inlet beluga whale 

constitutes a distinct population 

segment (DPS) that is in danger of 

extinction throughout its range. 

Accordingly, we are now issuing a 

proposed rule to list the Cook Inlet 

beluga whale DPS as an endangered 

species. We are soliciting information 

on issues relevant to the listing of the 

Cook Inlet beluga whale DPS under the 

ESA. Although we are not proposing to 

designate critical habitat at this time, we 

are also soliciting information on 

essential physical and biological 

features of Cook Inlet beluga whale 

habitat. 

DATES: Comments on this proposed rule 

must be received by close of business on 

June 19, 2007. Requests for public 


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hearings must be made in writing by 

June 4, 2007. 

ADDRESSES: Send comments to Kaja 

Brix, Assistant Regional Administrator, 

Protected Resources Division, Alaska 

Region, NMFS, Attn: Ellen Sebastian. 

Comments may be submitted by: 

• E-mail: CIB-ESAEndangered@noaa.gov. Include in the 

subject line the following document 

identifier: Cook Inlet Beluga Whale PR. 

E-mail comments, with or without 

attachments, are limited to 5 megabytes. 

• Webform at the Federal 

eRulemaking Portal: 

www.regulations.gov. Follow the 

instructions at that site for submitting 

comments. 

• Mail: NMFS, P. O Box 21668, 

Juneau, AK 99802 

• Hand delivery to the Federal 

Building : NMFS, 709 W. 9th Street, 

Juneau, AK. 

• Fax: (907) 586–7012 

The proposed rule, status review, 

maps, a list of the references cited in 

this document, and other materials 

relating to this proposal can be found on 

the NMFS Alaska Region website http:// 

www.fakr.noaa.gov/. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith, NMFS, 222 West 7th Avenue, 

Anchorage, Alaska 99517, telephone 

(907) 271–5006; Kaja Brix, NMFS, (907) 

586–7235; or Marta Nammack, (301) 

713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

On March 3, 1999, we received two 

petitions to list the Cook Inlet 

population of beluga whales as 

endangered under the ESA. The 

petitioners requested that we 

promulgate an emergency listing under 

section 4(b)(7) of the ESA, designate 

critical habitat for Cook Inlet beluga 

whales, and take immediate action to 

implement rulemaking to regulate the 

harvest of these whales. We issued a 

Final Rule on May 31, 2000 (65 FR 

34590), designating Cook Inlet beluga 

whales as depleted within the meaning 

of section 3(1) of the Marine Mammal 

Protection Act, as amended (MMPA) 

(below its Optimum Sustainable 

Population), and codified at 16 U.S.C. 

1362(1), and the underlying regulations 

codified at 50 CFR Part 216. However, 

at that time, we determined that the 

Cook Inlet beluga whale DPS was not 

threatened or endangered under the 

ESA (65 FR 38778; June 22, 2000) 

because legislative and management 

actions had been taken to reduce 

subsistence harvests to levels that 

would allow recovery, such that the 

DPS did not meet the definition of 

threatened or endangered. 

The 2000 determination that ESA 

listing was not warranted was premised 

on at least two findings that justify 

further review. First, the only factor 

then known to be responsible for the 

decline in beluga abundance was 

subsistence harvest. Second, the 2000 

Status Review used simulation 

modeling efforts that demonstrated this 

DPS was not likely to decline further if 

the harvest was reduced and an annual 

increase of 2 to 6 percent were assumed. 

Abundance estimates since harvest 

management began in 1999 have 

declined at an average rate of 4.1 

percent per year, challenging the 

original findings. 

In addition, the International Union 

for the Conservation of Nature and 

Natural Resources (IUCN) assessed the 

status of the Cook Inlet beluga whale in 

2005 (Lowry et al., 2006). The IUCN 

determined that this population had a 

71 percent probability of having a 

negative growth rate (in 2005) and met 

its criteria for critically endangered 

status. 

In consideration of the factors 

described above, we initiated a second 

Status Review for the Cook Inlet beluga 

whale (71 FR 14836; March 24, 2006). 

In the 2006 Status Review, we 

developed population models that 

considered various types of mortality 

and fecundity effects in terms of the 

decline or growth and recovery of the 

Cook Inlet beluga whale DPS. In these 

models, NMFS scientists considered 

several effects, including: (1) An Allee 

effect on fecundity at small population 

sizes; (2) a depressed per capita 

fecundity or survival, as might occur 

from habitat degradation or pollution; 

(3) a constant mortality effect 

independent of population size, as 

would occur from predation; (4) a 

random mortality effect, as would result 

from environmental perturbations or 

catastrophic events such as oil spills or 

volcanic activity; and (5) demographic 

stochasticity due to reduced population 

size. Models with these different effects 

were compared to the beluga population 

estimates from 1994 to 2005 to 

determine which model best matched 

the data, and likely outcomes were 

determined for the population. 

Subsequently, we received a third 

petition to list the Cook Inlet beluga as 

an endangered species on April 20, 

2006. That petitioner requested that we 

list the Cook Inlet beluga whale as 

endangered and designate critical 

habitat. The petitioner reviewed the 

biology and ecology of this population, 

its abundance and distribution, its 

designation as a DPS established 

through rulemaking in June 2000 (65 FR 

38780), and the reasons for the Cook 

Inlet beluga whale’s status (organized by 

the factors listed in section 4(a) (1) of 

the ESA). In response to this petition, 

we published a 90–day finding that the 

petition presented substantial scientific 

or commercial information indicating 

that the petitioned action may be 

warranted (71 FR 44614; August 7, 

2006). The second Status Review 

(NMFS, 2006) has now been completed 

and underlies this proposed rule. 

Description, Taxonomy, and 

Distribution 

Beluga whales, members of the 

Family Monodontidae, are small, 

toothed whales that are white in color 

as adults. They are extremely social 

animals that are often found in groups 

numbering from ten to several hundred. 

Beluga whales are circumpolar in 

distribution and occur in seasonally icecovered arctic and subarctic waters. 

Beluga whales occur along the coast of 

Alaska, except the Southeast panhandle 

region and the Aleutian Islands. Five 

distinct stocks are currently recognized 

in Alaska: Beaufort Sea, eastern Chukchi 

Sea, eastern Bering Sea, Bristol Bay, and 

Cook Inlet (Angliss and Outlaw, 2005). 

Abundance and Trends 

The Cook Inlet population of beluga 

whales has probably always numbered 

fewer than several thousand animals, 

but has declined significantly from its 

historical abundance. It is difficult to 

accurately determine the magnitude of 

decline because there is no available 

information on the beluga whale 

population that existed in Cook Inlet 

prior to development of the southcentral Alaska sub-Region, or prior to 

modern subsistence whaling by Alaska 

Natives. With no reliable abundance 

surveys conducted prior to the 1990s, 

scientists must estimate historical 

abundance. Portions of Cook Inlet 

surveyed during 1979 resulted in an 

abundance estimate of 1,293 beluga 

whales (Calkins, 1989). Those data 

represent the best available information 

on historical abundance. 

We began comprehensive, systematic 

aerial surveys on beluga whales in Cook 

Inlet in 1993. These surveys 

documented a decline in abundance of 

nearly 50 percent between 1994 and 

1998, from an estimate of 653 whales to 

347 whales (Hobbs et al., 2000). 

After legislative measures were 

established in 1999 to regulate 

subsistence harvests, we had expected 

the population to grow at a rate between 

2 and 6 percent. However, abundance 

estimates from aerial surveys (1999–

2006) indicate this level of growth did 

not occur. Differences in survey 

methods and analytical techniques prior 


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to the 1994 survey rule out a precise 

statistical assessment of trends using the 

available population estimate from 

1979. However, a comparison of the 

1,293 beluga estimate in 1979 to 302 

belugas in 2006 indicates a 77 percent 

decline in 27 years, but with 

unspecified confidence. This decline 

was mostly attributed to the subsistence 

harvest (through 1998); however, even 

with the restrictions on this harvest, the 

population continued to decline 4.1 

percent per year. 

Review of ‘‘Species’’ Identification 

Under the ESA 

The ESA requires the Secretary of 

Commerce to determine whether species 

are endangered or threatened. The 

authority to list a ‘‘species’’ under the 

ESA is not restricted to species as 

recognized in formal taxonomic terms, 

but extends to subspecies and, for 

vertebrate taxa, to DPSs. NMFS and U.S. 

Fish and Wildlife Service (USFWS) 

issued a joint policy to clarify their 

interpretation of the phrase ‘‘distinct 

population segment’’ for the purposes of 

listing, de-listing, and reclassifying 

species under the ESA (61 FR 4722; 

February 7, 1996). The policy describes 

two elements to be considered in 

deciding whether a population segment 

can be identified as a DPS under the 

ESA: (1) discreteness of the population 

segment in relation to the remainder of 

the species to which it belongs; and (2) 

the significance of the population 

segment in relation to the remainder of 

the species to which it belongs. 

DPS Analysis 

Under the first element of the joint 

DPS policy, we found during our 

previous status review that the Cook 

Inlet beluga whale population is 

discrete because it is markedly 

separated from other populations of the 

same species (65 FR 38778; June 22, 

2000). Of the five stocks of beluga 

whales in Alaska, the Cook Inlet 

population was considered to be the 

most isolated, based on the degree of 

genetic differentiation and geographic 

distance between the Cook Inlet 

population and the four other beluga 

stocks (O’Corry-Crowe et al., 1997; 

2002). This suggested that the Alaska 

Peninsula is an effective physical barrier 

to genetic exchange. The lack of beluga 

observations along the southern side of 

the Alaska Peninsula (Laidre et al., 

2000) also supported this conclusion. 

Murray and Fay (1979) stated that the 

Cook Inlet beluga population has been 

isolated for several thousand years, an 

idea that has since been corroborated by 

genetic data (O’Corry-Crowe et al., 

1997). 

Under the second element, two factors 

we considered in determining whether 

this discrete population segment was 

significant to the remainder of the 

species were: (1) persistence in an 

ecological setting that is unique; and (2) 

whether the loss of the discrete 

population segment would result in a 

significant gap in the range of the 

species. 

Cook Inlet is a unique biological 

setting in terms of these belugas because 

it supports the southernmost of the five 

extant beluga populations in Alaska, 

and is the only water south of the 

Alaska Peninsula, or within the Gulf of 

Alaska, which supports a viable 

population of beluga whales. The 

ecological setting of Cook Inlet is also 

unique in that it is characterized as an 

incised glacial fjord, unlike other beluga 

habitats to the north. Cook Inlet 

experiences large tidal exchanges and is 

a true estuary, with salinities varying 

from freshwater at its northern extreme 

to marine near its entrance to the Gulf 

of Alaska. No similar beluga habitat 

exists in Alaska or elsewhere in the 

United States. 

In the 2000 Status Review, the Cook 

Inlet beluga whale population segment 

was considered to be the only beluga 

population that inhabits the Gulf of 

Alaska, and genetic data showed no 

mixing with other beluga population 

segments. Therefore, we determined 

that the loss of the Cook Inlet beluga 

population segment may result in the 

complete loss of the species in the Gulf 

of Alaska, with little likelihood of 

immigration from other beluga 

population segments into Cook Inlet. 

Because we found that the Cook Inlet 

beluga whale population was discrete 

and significant, we determined that it 

constituted a DPS under the ESA (65 FR 

38778; June 22, 2000). 

Research to Support Isolation Between 

the Cook Inlet DPS and Yakutat Belugas 

New research has become available 

since the species determination in the 

2000 Status Review regarding the beluga 

whales that occur in Yakutat Bay, 

Alaska. These whales were included in 

the previous Cook Inlet beluga whale 

DPS. The Yakutat group consists of 12 

belugas that are regularly observed in 

Yakutat Bay and have existed there as 

early as the 1930s (G. O’Corry-Crowe et 

al., 2006). Since the 2000 Status Review, 

we have obtained biopsy samples from 

five individual whales that provide 

genetic information on their 

relationship to other Alaska belugas. 

That evidence (NMFS, unpublished 

data) shows the Yakutat group 

demonstrates a high degree of similarity 

in genetic markers, indicating that 

members of the Yakutat group likely 

comprise a single lineage or family 

(O’Corry-Crowe et al., 2006). All five 

individuals possessed a common 

mtDNA haplotype (#2), a maternal 

lineage that is also found within other 

Alaska beluga whale stocks, including 

the Cook Inlet DPS. While small sample 

size precluded meaningful statistical 

analyses of differentiation, Haplotype #2 

occurs at a much lower frequency in 

Cook Inlet and other stocks. The 

samples were also analyzed for 

polymorphism at 8 independent 

microsatellite loci. Preliminary DNA 

fingerprint analysis of the samples from 

the five individuals indicates that these 

individuals share, on average, a higher 

proportion of alleles at these loci than 

the average for belugas in other areas, 

suggesting that the Yakutat whales may 

be relatively more closely related to 

each other than to belugas in other 

areas. As with the mtDNA analysis, 

small sample size precluded meaningful 

analyses of population structure. 

However, these genetic results indicate 

that the sampled whales differ from a 

random sample of the Cook Inlet 

population. This, taken with the 

sighting data and behavioral 

observations, suggests that a small group 

of beluga whales may reside in the 

Yakutat Bay region year-round, and that 

these whales are reproductive, have a 

unique ecology, and a restricted 

seasonal home range. 

Pursuant to the DPS Policy, 

geographic separation can also provide 

an indicator that population segments 

are discrete from each other. There is a 

large geographic separation 

(approximately 621 mi (1000 km)) 

between the Yakutat beluga group and 

the Cook Inlet beluga population 

segment, and no records exist that show 

any association between these whales. 

Therefore, we conclude that the Cook 

Inlet beluga population segment is 

discrete from this Yakutat beluga group. 

NMFS considers the viability of an 

isolated group of 12 belugas to be low. 

Therefore, the loss of the Cook Inlet 

beluga population segment may result 

in the complete loss of the species in the 

Gulf of Alaska, with little likelihood of 

immigration from other beluga 

population segments into Cook Inlet. 

Other beluga whale sightings have 

been recorded from the Gulf of Alaska, 

including Sitka, Prince William Sound, 

and Kodiak Island. However, none of 

these individuals represent persistent 

groups, and, therefore, are not 

considered part of the Cook Inlet DPS. 

We have insufficient information at this 

time to determine whether these whales 

are part of the Cook Inlet DPS. 


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DPS Conclusion 

Based on the best available scientific 

information, we had previously 

determined that Cook Inlet beluga whale 

is a DPS, and, therefore, a species under 

section 3(15) of the ESA (65 FR 38778; 

June 22, 2000). At the time, the data 

were insufficient to distinguish the 

whales near Yakutat from the Cook Inlet 

population. However, genetic results 

and the fact that the 12 belugas in the 

Yakutat group are regularly observed in 

Yakutat Bay and not in Cook Inlet 

(O’Corry-Crowe, 2006) lead us to 

conclude that the Cook Inlet beluga 

whales are discrete from beluga whales 

near Yakutat. The conclusion reached in 

2000 that the Cook Inlet population 

segment is significant to the beluga 

whale species remains valid for the 

same reasons mentioned in 2000, and is 

further supported by the information 

stated above regarding the low viability 

of the Yakutat group and the resultant 

potential for loss of beluga whales from 

Cook Inlet. Therefore, we conclude, 

given the best scientific information 

available, the Cook Inlet beluga whales 

comprise a DPS which is confined to 

waters of Cook Inlet, and does not 

include beluga whales found in Yakutat 

or other Gulf of Alaska waters beyond 

Cook Inlet. Through this rulemaking, we 

propose to modify the present 

description of the Cook Inlet beluga 

whale DPS, which is considered a 

species under the ESA, by removing 

those beluga whales occurring near 

Yakutat or outside Cook Inlet waters. 

Geographic Range of the Species 

The range of Cook Inlet belugas has 

been previously defined as the waters of 

the Gulf of Alaska north of 58° N and 

freshwater tributaries to these waters 

based on available scientific data in 

2000 (65 FR 34590; May 31, 2000; 

MMPA Sec. 216.15(g)). There are few 

beluga sightings in the Gulf of Alaska 

outside Cook Inlet. Laidre et al. (2000) 

summarized available information on 

prehistoric to current distribution of 

belugas in the Gulf of Alaska, and, with 

the exception of Yakutat, sightings have 

been rare and sporadic given the extent 

of the survey efforts. Of 169,550 

cetacean sightings recorded in the Gulf 

of Alaska prior to the year 2001, 

excluding Cook Inlet, only 44 were 

beluga (Laidre et al., 2000), indicating 

they are extremely rare in the Gulf of 

Alaska outside Cook Inlet. 

Calkins (1989) described belugas in 

Cook Inlet, Prince William Sound, 

Yakutat Bay, and throughout the coastal 

waters of the Gulf of Alaska, from the 

northern portions of Kodiak Island to 

Yakutat. In the 1970s and 1980s, beluga 

sightings occurred across much of midand upper Cook Inlet (Calkins, 1984), 

but in the 1990s the summer 

distribution diminished to only the 

northernmost portions of Cook Inlet 

(Rugh et al., 2000). More of the Inlet was 

used by beluga whales during the 

spring, summer, and fall during the 

1970s and 1980s than is presently used; 

for instance, sightings in the Kenai River 

area were common, and beluga 

concentrations were reported in Trading 

Bay and Kachemak Bay (Calkins, 1984). 

Such areas are rarely used by belugas at 

the present time, except perhaps in 

winter. 

To identify Cook Inlet beluga habitat 

use, particularly in winter, NMFS 

researchers placed satellite positioning 

tags on 18 beluga whales between 1999 

and 2002. Those tagged whales 

remained in Cook Inlet, indicating that 

belugas occupy Cook Inlet year round 

and do not display the seasonal 

migrations that northern beluga 

populations display. Considering this 

research and the genetic information 

discussed above, we conclude the 

present range of the Cook Inlet beluga is 

limited to Cook Inlet waters north of a 

line from Cape Douglas to Cape 

Elizabeth. 

Extinction Risk Assessment 

NMFS’ Status Review includes an 

extinction risk assessment for this DPS 

through a detailed population viability 

analysis (PVA). The extinction risk 

analysis used population models 

developed specifically for the Cook Inlet 

beluga whale. These age and genderstructured models included parameters 

specific to this beluga population (e.g. 

reproductive age, calving intervals, 

natural mortality, random stranding 

events, killer whale predation, managed 

harvests, and episodic events such as oil 

spills). Ten thousand individual trials 

from the models were selected for 

analysis. From these, the ‘‘baseline’’

model (Model A in the Status Review), 

using no threshold effects, predicted a 

decline in 65 percent of the cases, and 

extinction within 300 years for 29 

percent of the cases. The ‘‘most likely’’

model (Model H in the Status Review), 

which best approximated the current 

population (this assumed a single 

annual killer whale predation mortality 

and an unusual mortality event every 20 

years), predicted the risk of extinction 

as 26 percent within 100 years (Shelden 

et al., 2003). The risk analysis 

concluded that this probability would 

be much larger if the annual mortality 

rates assumed were increased by either 

killer whale predation or other means. 

Small population viability is further 

compromised by the increased risk of 

inbreeding and the loss of genetic 

variability through drift, which reduces 

their resistance to disease and 

environmental change (Lacy, 1997; 

O’Corry-Crowe and Lowry, 1997). 

Estimates of genetic variation do not, at 

present, suggest that the Cook Inlet 

beluga whale DPS is highly inbred or 

that a critical amount of genetic 

variation has been lost through drift 

(O’Corry-Crowe et al., 1997; Lowry et 

al., 2006; G. O’Corry-Crowe, 

unpublished data), but this population 

is already at a population size where 

eventual loss of genetic variability is 

expected (Lowry et al., 2006). 

Summary of Factors Affecting Cook 

Inlet Beluga Whales 

The ESA defines endangered species 

as a species ‘‘in danger of extinction 

throughout all or a significant portion of 

its range.’’ Section 4(a)(1) of the ESA 

and the listing regulations (50 CFR part 

424) set forth procedures for listing 

species. We must determine, through 

the regulatory process, whether a 

species is endangered or threatened 

because of any one or a combination of 

the following factors: 

(1) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(2) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(3) Disease or predation; 

(4) The inadequacy of existing 

regulatory mechanisms; or 

(5) Other natural or manmade factors 

affecting its continued existence. 

A discussion of these factors follows. 

The Present or Threatened Destruction, 

Modification, or Curtailment of Habitat 

or Range 

Habitat for this species has been 

modified by municipal, industrial, and 

recreational activities in upper Cook 

Inlet, where belugas concentrate. It is 

possible that the range of Cook Inlet 

beluga whales has been diminished by 

these activities, either individually or 

cumulatively. Rugh et al. (2000) 

indicated that the summer occurrence of 

Cook Inlet beluga whales shifted to the 

upper Inlet in recent decades, whereas 

historically, belugas were also found in 

the mid- to lower Inlet. Such a change 

could be due to habitat alteration or 

development, but could also be 

attributed to other factors. For example, 

the population reduction may have 

resulted in Cook Inlet beluga whales 

inhabiting only the preferred feeding 

areas (i.e., the upper Inlet) within their 

normal range. Therefore, the change in 

distribution does not necessarily reflect 

any reduction in habitat or habitat 


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quality in the mid- to lower Inlet. No 

information exists that beluga habitat 

has been modified or curtailed to an 

extent that it is likely to have caused the 

population declines observed within 

Cook Inlet. 

However, concern is warranted for the 

continued development within and 

along upper Cook Inlet and the 

cumulative effects on important beluga 

habitat. Several significant 

developments within the upper Inlet are 

permitted or planned, which may have 

adverse consequences. These include: 

(1) Major expansion to the Port of 

Anchorage, which requires filling more 

than 135 acres of intertidal and subtidal 

habitat, with increased in-water noise 

from pile driving, dredging, and 

expanded port operations; (2) Port 

McKenzie expansion as a commercial 

port facility directly across a narrow 

portion of upper Cook Inlet from the 

Port of Anchorage; (3) the proposed 

Knik Arm Bridge, which would increase 

in-water noise with both construction 

and operational activities and would 

occupy a portion of upper Cook Inlet 

that is presently undeveloped and 

provides important beluga feeding and 

other habitats; and (4) construction and 

operation of a large coal mine and 

marine terminal along the west side of 

upper Cook Inlet, near the Native 

Village of Tyonek. Ongoing activities 

that may impact this habitat include: (1) 

continued oil and gas exploration, 

development, and production; and (2) 

industrial activities that discharge or 

accidentally spill pollutants (e.g., 

petroleum, seafood processing, ship 

ballast, municipal wastewater treatment 

systems, runoff from urban, mining, and 

agricultural areas). The extinction risk 

assessment indicates that very small 

increases in mortality for this DPS have 

large effects on its continued existence. 

Destruction and modification of habitat 

may result in ‘‘effective mortalities’’ by 

reducing carrying capacity or fitness for 

individual whales, with the same 

consequence to the population survival 

as direct mortalities. Therefore, 

threatened destruction and modification 

of Cook Inlet beluga whale DPS habitat 

contributes to the proposed endangered 

status. 

Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

A brief commercial whaling operation 

existed along the west side of upper 

Cook Inlet during the 1920s, where 151 

belugas were harvested in 5 years 

(Mahoney and Sheldon, 2000). There 

was also a sport (recreational) harvest 

for beluga whales in Cook Inlet prior to 

enactment of the MMPA in 1972. We 

have no record on this harvest level. 

The 1979 whale survey by the Alaska 

Department of Fish and Game (Calkins, 

1989) provided an abundance estimate 

of 1,293 whales. Although we are 

uncertain of the level of depletion and 

exploitation in 1979, this remains the 

largest population abundance estimate 

for the Cook Inlet beluga DPS. Based on 

this estimate, we used 1,300 belugas as 

the carrying capacity in the PVA for the 

extinction risk assessment (Hobbs et al., 

2006). With protections offered by the 

MMPA, commercial and recreational 

beluga harvest no longer contribute to 

endangering the Cook Inlet beluga 

whale DPS. 

Beluga whales are also taken for 

scientific purposes, but this work 

requires authorization under the MMPA 

and cannot have more than a negligible 

impact on the stock. Invasive research 

such as beluga capture and tagging, and 

boat survey work, may temporarily 

displace whales from important 

habitats, including feeding habitat, and 

may rarely result in injury or mortality. 

The magnitude of this impact cannot be 

reasonably estimated, but we believe it 

is not a reason that would support a 

listing determination. 

We are not aware of any live Cook 

Inlet belugas currently in aquaria and 

used for educational purposes. 

Therefore, educational purposes do not 

contribute to the proposed endangered 

status. 

Disease or Predation 

A considerable amount of information 

now exists on the occurrence of diseases 

in beluga whales, including Cook Inlet 

belugas, and the effects of these diseases 

on the species. This information is 

described in our draft Conservation Plan 

(see http://www.fakr.noaa.gov/ 

protectedresources/whales/beluga/ 

mmpa/draft/ 

conservationplan032005.pdf). Diseases 

and parasites occur in Cook Inlet beluga 

whales. Despite the considerable 

pathology that has been done on 

belugas, nothing indicates that the 

occurrence of diseases or parasites has 

had a measurable impact on their 

survival and health. Therefore, diseases 

and parasites are not known to be 

factors that have led to the current 

status of the Cook Inlet beluga whale 

DPS. 

Transient killer whales are a natural 

predator on beluga whales in Cook Inlet. 

Killer whale sightings in the upper Inlet 

(18 reported sightings in 27 years) 

appear to be relatively infrequent, and 

not all killer whales prey on marine 

mammals. However, killer whales are 

thought to take at least one Cook Inlet 

beluga per year (Shelden et al., 2003). 

Assessing the impact of killer whale 

predation on Cook Inlet beluga whales 

is difficult. Anecdotal reports often 

highlight the more sensational 

mortalities on beluga whales due to 

killer whales, thereby overemphasizing 

their impact. Further, some reports are 

from the early 1980s when beluga 

whales were more abundant and more 

widely distributed. Consequently, the 

predation reports are of minimal value 

in evaluating current killer whale 

impacts to the Cook Inlet beluga whale 

DPS. The loss of more than one beluga 

whale annually could impede recovery, 

particularly if total mortality due to 

predation would be near the recruitment 

level in the DPS. The best available 

information does not allow us to 

accurately quantify the mortality level 

due to killer whale predation or its 

effect on the DPS. However, continued 

removal of belugas in excess of one per 

year would have a significant effect on 

the extinction probability for the Cook 

Inlet beluga whale. 

While disease and predation occur in 

the Cook Inlet beluga population and 

may affect reproduction and survival, 

neither appears to be a likely 

contributor to the observed decline. 

However, the present low population 

abundance and the gregarious nature of 

beluga whales predispose the 

population to significant consequences 

from disease and predation, which 

contributes to the probability of 

extinction, and, therefore, to the 

proposed classification as endangered 

under the ESA. 

The Inadequacy of Existing Regulatory 

Mechanisms 

The MMPA exempts Alaska Natives 

from the prohibitions on the taking of 

marine mammals, including beluga 

whales. Sections 101(b)(3) and 103 of 

the MMPA provide for subsistence 

harvest regulations for marine mammal 

stocks designated as depleted under that 

Act, after notice and administrative 

hearings as prescribed by the MMPA. 

Excessive harvests occurred before May 

1999 when Public Law 106–31 required 

such taking of Cook Inlet beluga whales 

occur pursuant to a cooperative 

agreement between NMFS and affected 

Alaska Native organizations. This law, 

later made permanent by Public Law 

106–553, did not specify a harvest level, 

nor present a harvest management plan. 

In May 2000, we designated the Cook 

Inlet belugas as a depleted stock under 

the MMPA. We promulgated interim 

harvest regulations that provided a 

harvest management plan from 2001 

through 2004 (69 FR 17973; April 6, 

2004). The absence of legal authority to 

control subsistence harvest prior to 1999 


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is considered a contributing factor to the 

Cook Inlet beluga whale DPS decline. 

Annual co-management agreements 

have been signed between NMFS and 

the Cook Inlet Marine Mammal Council 

in compliance with Public Laws 106–31 

and 106–553. We have worked 

extensively with experts, including 

Native hunters, to use the best available 

science and traditional knowledge in 

our management and conservation 

efforts. This includes workshops by 

NMFS, the Alaska Beluga Whale 

Committee, the Alaska Scientific 

Review Group, and the Cook Inlet 

Marine Mammal Council. A technical 

working group was appointed by an 

administrative law judge in 2005 to 

consider a Cook Inlet beluga harvest 

management plan for 2005 and 

subsequent years that would recover 

Cook Inlet belugas and allow for 

traditional subsistence. Harvests from 

this population have been restricted to 

zero, one, or two whales annually since 

1999, due to cooperative efforts by 

Native hunters and NMFS. We are 

currently preparing a Draft 

Supplemental Environmental Impact 

Statement (SEIS) on the subsistence 

harvest management of Cook Inlet 

belugas. This Draft SEIS will be 

followed by a Final SEIS and harvest 

regulations. Harvest regulations will 

propose a harvest strategy based on the 

abundance and growth of the 

population and a population abundance 

‘‘floor’’ below which no harvest would 

occur. Despite the limited harvests since 

1999 (five belugas in 8 years), the Cook 

Inlet beluga whale DPS has declined 4.1 

percent per year. 

Other Natural or Manmade Factors 

Affecting its Continued Existence 

Impacts of Past Subsistence Harvest 

Efforts 

The Cook Inlet beluga whale has been 

hunted by Alaska Natives for 

subsistence purposes and for traditional 

handicrafts. The subsistence provisions 

under the MMPA allow the sale of 

edible products and traditional 

handicrafts from marine mammals in 

Alaska Native villages, including 

Anchorage, or for Alaska Native 

consumption. Muktuk (whale skin and 

underlying blubber layer) from Cook 

Inlet belugas was sold in Anchorage 

markets prior to 1999, after which the 

practice was prohibited by comanagement agreements between NMFS 

and the Cook Inlet Marine Mammal 

Council. Alaska Natives have legally 

harvested Cook Inlet beluga whales 

prior to and after passage of the MMPA 

in 1972. The effect of past harvest 

practices on the Cook Inlet beluga whale 

is significant. While subsistence harvest 

occurred at unknown levels for decades, 

the observed decline from 1994 through 

1998 and the reported harvest 

(including estimates of whales which 

were struck but lost, and assumed to 

have perished) indicated these harvest 

levels were unsustainable. 

Annual subsistence take by Alaska 

Natives during 1995–1998 averaged 77 

whales (Angliss and Lodge, 2002). The 

harvest, which was as high as 20 

percent of the population in 1996, was 

sufficiently high to account for the 14 

percent annual rate of decline in the 

population during 1994 through 1998 

(Hobbs et al., 2000). In 1999 there was 

no harvest as the result of a voluntary 

moratorium by the hunters and Public 

Law 106–31. Harvests have been greatly 

reduced since 1998, with only five 

whales taken between 1999 and 2006. 

However, the subsistence removals 

reported during the 1990s are sufficient 

to account for the declines observed in 

this population and must be considered 

as a factor in the proposed classification 

of the Cook Inlet beluga whale DPS as 

endangered. 

Impacts of Stranding Events 

Cook Inlet beluga whales are known 

to become stranded along the shorelines 

and mudflats of Cook Inlet. These 

stranding events are not uncommon. 

NMFS has reports of 804 stranded 

whales (some of which were involved in 

mass stranding events) in upper Cook 

Inlet since 1988 (Vos and Shelden, 

2005). Mass stranding events occurred 

most frequently along Turnagain Arm, 

and often coincided with extreme tidal 

fluctuations (‘‘spring tides’’) and/or 

killer whale sighting reports (Shelden et 

al., 2003). Other mass strandings have 

been reported in the Susitna Delta (Vos 

and Shelden, 2005) and most recently 

on September 12, 2006, in Knik Arm (B. 

Mahoney, NMFS Alaska Region Office, 

unpublished data). Belugas are usually 

able to survive a stranding event and 

escape to deeper water on the rising 

tide. However, some deaths during these 

events do occur. For example, in one 

unusual case in August 2003, at least 46 

belugas stranded in Turnagain Arm for 

over 10 hours, and of these, at least five 

whales are known to have died. In a 

more typical case, another 58 belugas 

stranded in two events in Turnagain 

Arm the following month with no 

identified mortalities (Vos and Shelden, 

2005). 

Catastrophic mortality (the deaths of a 

large number, such as 20 percent of the 

population) due to a mass stranding 

event or other events such as ice 

entrapment, oil spill, or volcanic 

activity was considered in simulations 

of the Cook Inlet beluga and assigned a 

probability of 5 percent per year for 

purposes of the status review (NMFS, 

2006). Such mortality, if it occurred, 

could significantly impede recovery or 

force the population below a threshold 

to which it would not otherwise be 

vulnerable and from which it could not 

recover; however, such catastrophic 

mortality has not been reported in Cook 

Inlet. Although live mass strandings 

have occurred, between 1988 and 2000 

only12 belugas were reported dead out 

of 650 belugas that stranded (Vos and 

Shelden, 2005). Mass stranding events 

are not believed to be a factor that has 

caused, or had a significant role in, the 

decline of the Cook Inlet beluga whale 

DPS. 

Conservation Efforts 

When considering the listing of a 

species, section 4(b)(1)(A) of the ESA 

requires consideration of efforts by any 

State, foreign nation, or political 

subdivision of a State or foreign nation 

to protect such species. Such efforts 

would include measures by Native 

American tribes and organizations and 

local governments, and may also 

include efforts by private organizations. 

Also, Federal, tribal, state, and foreign 

recovery actions (16 U.S.C. 1533(f)) 

constitute conservation measures. On 

March 28, 2003, NMFS and USFWS 

published the final Policy for Evaluating 

Conservation Efforts (PECE)(68 FR 

15100). The PECE provides guidance on 

evaluating current protective efforts 

identified in conservation agreements, 

conservation plans, management plans, 

or similar documents (developed by 

Federal agencies, state and local 

governments, tribal governments, 

businesses, organizations, and 

individuals) that have not yet been 

implemented or have been implemented 

but have not yet demonstrated 

effectiveness. The PECE establishes two 

basic criteria for evaluating current 

conservation efforts: (1) the certainty 

that the conservation efforts will be 

implemented, and (2) the certainty that 

the efforts will be effective. The PECE 

provides specific factors under these 

two basic criteria that direct the analysis 

of adequacy and efficacy of existing 

conservation efforts. 

Cook Inlet beluga whales benefit from 

protections afforded by the MMPA. The 

Cook Inlet beluga whale was designated 

as a depleted stock under the MMPA in 

2000, and a draft Conservation Plan was 

published (70 FR 12853; March 16, 

2005). That conservation plan is 

comprehensive and provides 

recommendations to foster recovery. 

While some recommendations are 

funded, many recommendations are 


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unfunded. Therefore, it is uncertain 

whether these beluga conservation 

measures will be implemented. Federal 

law (Public Law 106–553) prohibits the 

taking of Cook Inlet beluga whales 

except through a cooperative agreement 

between NMFS and affected Alaska 

Native organizations. Presently, comanagement agreements are signed 

annually with the Cook Inlet Marine 

Mammal Council to establish strike 

(harvest) limits and set forth 

requirements intended to minimize 

waste and prevent unintentional 

harassment. Harvest regulations are 

being considered to address the 

management of Cook Inlet beluga 

subsistence hunting. Once 

implemented, these regulations will 

constitute an effective conservation plan 

regarding Alaska Native subsistence 

harvest. They will not, however, be 

comprehensive in addressing the many 

other issues now confronting Cook Inlet 

belugas. 

We are not aware of conservation 

efforts undertaken by foreign nations 

specifically to protect Cook Inlet beluga 

whales. We support all conservation 

efforts currently in effect; however, 

these efforts lack the certainty of 

implementation and effectiveness so as 

to have removed or reduced threats to 

Cook Inlet belugas. In developing our 

final listing determination, we will 

consider the best available information 

concerning these conservation efforts 

and any other protective efforts by states 

or local entities for which we have 

information (See description of PECE 

above). 

Proposed Listing Determination 

We have reviewed the extinction risk 

analysis for the Cook Inlet beluga whale, 

considered the factors in section 4(a)(1) 

of the ESA, and taken into account 

conservation efforts to protect the 

species. We conclude that the Cook Inlet 

beluga whale is in danger of extinction 

throughout all of its range because of: 

present or threatened destruction, 

modification or curtailment of habitat or 

range; the inadequacy of existing 

regulatory mechanisms (largely the past 

absence of regulations on subsistence 

harvests); disease and/or predation 

(further predation by killer whales can 

be shown to have a significant impact 

on survival); and other natural and 

manmade factors affecting its continued 

existence (effects of past subsistence 

removals). See the ‘‘Factors Affecting 

the Species’’ section above for a 

description of the specific risks 

associated with section 4(a)(1). This 

endangered determination is supported 

by the results of population modeling 

which indicate a probability of 

extinction (for what is considered the 

most realistic scenario) of 26 percent 

within the next 100 years. 

We convened a workshop in February 

2000 to develop ESA recovery criteria 

for large whales. That workshop 

concluded that a reasonable, 

conservative definition for endangered 

status would be a probability of 

extinction greater than or equal to 1 

percent in 100 years. While that 

threshold may be conservative, the 

significantly greater extinction risk of 26 

percent in 100 years modeled for the 

Cook Inlet beluga provides a strong 

justification for endangered status. 

Further, the factors confounding 

recovery have not been thoroughly 

identified and may continue to persist 

until more is known and corrective 

actions can be taken. We also conclude 

that, at present, no protective or 

conservation measures are in place that 

will substantially mitigate the factors 

affecting the future viability and 

recovery of the Cook Inlet beluga whale 

DPS. 

Based on the best available scientific 

and commercial information, we 

propose that the Cook Inlet beluga 

whale be listed under the ESA as an 

endangered species. 

Prohibitions and Protective Measures 

Section 9 of the ESA prohibits certain 

activities that directly or indirectly 

affect endangered species. These 

prohibitions apply to all individuals, 

organizations, and agencies subject to 

U.S. jurisdiction. 

Section 7(a)(2) of the ESA requires 

Federal agencies to consult with NMFS 

to ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or to destroy or adversely 

modify critical habitat. Under Section 

7(a)(4), Federal agencies must confer 

with us on any of these activities to 

ensure that any such activity is not 

likely to jeopardize the continued 

existence of a species proposed for 

listing or destroy or adversely modify 

proposed critical habitat. Examples of 

Federal actions that may affect the Cook 

Inlet beluga whale include permits and 

authorizations relating to coastal 

development and habitat alteration, oil 

and gas development (including seismic 

exploration), toxic waste and other 

pollutant discharges, Federal fishery 

management plans, and cooperative 

agreements for subsistence harvest. 

Sections 10(a)(1)(A) and (B) of the 

ESA authorize NMFS to grant 

exceptions to the ESA’s Section 9 take 

prohibitions. Section 10(a)(1)(A) 

scientific research and enhancement 

permits may be issued to entities 

(Federal and non-federal) for scientific 

purposes or to enhance the propagation 

or survival of a listed species. Activities 

potentially requiring a section 

10(a)(1)(A) research/enhancement 

permit if Cook Inlet beluga whales are 

listed include scientific research that 

targets Cook Inlet beluga whales. Under 

section 10(a)(1)(B), the Secretary may 

permit takings otherwise prohibited by 

section 9(a)(1)(B) if such taking is 

incidental to, and not the purpose of, 

the carrying out of an otherwise lawful 

activity, provided that the requirements 

of section 10(a)(2) are met. 

Critical Habitat 

Section 3 of the ESA defines critical 

habitat as ‘‘(i) the specific areas within 

the geographical area occupied by the 

species, at the time it is listed....on 

which are found those physical or 

biological features (I) essential to the 

conservation of the species and (II) 

which may require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed...upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species.’’

Section 3 of the ESA (16 U.S.C. 1532(3)) 

also defines the terms ‘‘conserve,’’

‘‘conserving,’’ and ‘‘conservation’’ to 

mean ‘‘to use and the use of all methods 

and procedures which are necessary to 

bring any endangered species or 

threatened species to the point at which 

the measures provided pursuant to this 

chapter are no longer necessary.’’

Section 4(a)(3) of the ESA requires 

that, to the extent practicable and 

determinable, critical habitat be 

designated concurrently with the listing 

of a species. Designation of critical 

habitat must be based on the best 

scientific data available and must take 

into consideration the economic, 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat. Once critical habitat 

is designated, section 7 of the ESA 

requires Federal agencies to ensure that 

they do not fund, authorize, or carry out 

any actions that are likely to destroy or 

adversely modify that habitat. This 

requirement is in addition to the section 

7 requirement that Federal agencies 

ensure their actions do not jeopardize 

the continued existence of the species. 

In determining what areas qualify as 

critical habitat, 50 CFR 424.12(b) 

requires that NMFS ‘‘consider those 

physical or biological features that are 

essential to the conservation of a given 

species including space for individual 

and population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 


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physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing of offspring; and habitats 

that are protected from disturbance or 

are representative of the historical 

geographical and ecological distribution 

of a species.’’ The regulations further 

direct NMFS to ‘‘focus on the principal 

biological or physical constituent 

elements . . . that are essential to the 

conservation of the species,’’ and 

specify that the ‘‘known primary 

constituent elements shall be listed with 

the critical habitat description.’’ The 

regulations identify primary constituent 

elements (PCEs) as including, but not 

limited to: ‘‘roost sites, nesting grounds, 

spawning sites, feeding sites, seasonal 

wetland or dryland, water quality or 

quantity, host species or plant 

pollinator, geological formation, 

vegetation type, tide, and specific soil 

types.’’

The ESA directs the Secretary of 

Commerce to consider the economic 

impact of designating critical habitat, 

and under section 4(b)(2) the Secretary 

may exclude any area from such 

designation if the benefits of exclusion 

outweigh those of inclusion, provided 

that the exclusion will not result in the 

extinction of the species. We are 

considering proposal of critical habitat 

for the Cook Inlet beluga whale in a 

separate rulemaking. To assist us with 

that rulemaking, we specifically request 

information on the economic attributes 

within the Cook Inlet region that could 

be impacted by critical habitat 

designation, as well as identification of 

the PCEs or ‘‘essential features’’ of this 

habitat and to what extent those features 

may require special management 

considerations or protection. 

Public Comments Solicited 

We request interested persons to 

submit comments, information, and 

suggestions concerning this proposed 

rule. We solicit comments or 

suggestions from the public, other 

concerned governments and agencies, 

Alaska Natives, the scientific 

community, industry, or any other 

interested party. Comments are 

particularly sought concerning: 

(1) The current population status of 

the Cook Inlet beluga whale; 

(2) Biological or other information 

regarding the threats to this species; 

(3) Information on the effectiveness of 

ongoing and planned conservation 

efforts by states or local entities; 

(4) Information related to the 

identification of critical habitat and 

essential physical or biological features 

for this species; and 

(5) Economic or other relevant 

impacts of designation of critical 

habitat. 

You may submit your comments and 

materials concerning this proposal by 

any one of several methods (see 

ADDRESSES ). The proposed rule, maps, 

and other materials relating to this 

proposal can be found on the NMFS 

Alaska Region website at http:// 

www.fakr.noaa.gov/. Comments and 

information received during the 

comment period on this proposed rule 

will be considered in the final decision 

whether to list the Cook Inlet beluga 

whale DPS as endangered and any 

future proposal to designate critical 

habitat. 

Public Hearings 

50 CFR 424.16(c)(3) requires the 

Secretary to promptly hold at least one 

public hearing, if requested, within 45 

days of publication of a proposed 

regulation to list a species under the 

ESA. Requests for public hearing must 

be made in writing (see ADDRESSES) by 

June 4, 2007. Such hearings provide the 

opportunity for interested individuals 

and parties to give comments, exchange 

information and opinions, and engage in 

a constructive dialogue concerning this 

proposed rule. We encourage the 

public’s involvement in such ESA 

matters. 

Classification 

National Environmental Policy Act 

(NEPA) 

The 1982 amendments to the ESA, in 

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

information that may be considered 

when assessing species for listing. Based 

on this limitation of criteria for a listing 

decision and the opinion in Pacific 

Legal Foundation v. Andrus, 675 F. 

2d825 (6th Cir. 1981), we have 

concluded that ESA listing actions are 

not subject to the environmental 

assessment requirements of the NEPA. 

(See NOAA Administrative Order 216–

6.) 

Executive Order (E.O.) 12866, 

Regulatory Flexibility Act and 

Paperwork Reduction Act 

As noted in the Conference Report on 

the 1982 amendments to the ESA, 

economic impacts cannot be considered 

when assessing the status of a species. 

Therefore, the economic analyses 

required by the Regulatory Flexibility 

Act are not applicable to the listing 

process. In addition, this rule is exempt 

from review under E.O. 12866. This 

proposed rule does not contain a 

collection of information requirement 

for the purposes of the Paperwork 

Reduction Act. 

E.O. 13132, Federalism 

Recognizing the intent of the 

Administration and Congress to provide 

continuing and meaningful dialogue on 

issues of mutual State and Federal 

interest, and in keeping with 

Department of Commerce policies, we 

request information from, and will 

coordinate development of, this 

proposed ESA listing with appropriate 

State resource agencies in Alaska. 

E.O. 13175, Consultation and 

Coordination with Indian Tribal 

Governments 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and co-management 

agreements, which differentiate tribal 

governments from the other entities that 

deal with, or are affected by, the Federal 

government. This relationship has given 

rise to a special Federal trust 

responsibility involving the legal 

responsibilities and obligations of the 

United States toward Indian Tribes and 

the application of fiduciary standards of 

due care with respect to Indian lands, 

tribal trust resources, and the exercise of 

tribal rights. E.O. 13175 - Consultation 

and Coordination with Indian Tribal 

Governments - outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. Section 161 of Public Law 

108–199 (188 Stat. 452), as amended by 

section 518 of Public Law 108- 447 (118 

Stat. 3267), directs all Federal agencies 

to consult with Alaska Native 

corporations on the same basis as Indian 

tribes under E.O. 13175. 

We will contact any tribal 

governments or Native corporations 

which may be affected by the proposed 

action, provide them with a copy of this 

proposed rule, and offer the opportunity 

to comment on the proposed rule and 

discuss any concerns they may have. 

References Cited 

A complete list of all references cited 

in this rulemaking can be found on our 

website at http://www.fakr.noaa.gov/ 

and is available upon request from the 

NMFS office in Juneau, Alaska (see 

ADDRESSES). 

List of Subjects in 50 CFR Part 224 

Endangered and threatened species. 


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19862 Federal Register / Vol. 72, No. 76 / Friday, April 20, 2007 / Proposed Rules 

Dated: April 16, 2007. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, we propose to amend part 

224, title 50 of the Code of Federal 

Regulations as set forth below: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

1. The authority citation of part 224 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543 and 16 

U.S.C. 1361 et seq. 

§ 224.101 [Amended] 

2. In § 224.101, amend paragraph (b) 

by adding, ‘‘Cook Inlet distinct 

population segment of beluga whale 

(Delphinapterus leucas)’’ in alphabetical 

order. 

[FR Doc. E7–7577 Filed 4–19–07; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 070227047–7047–01; I.D. 

020405C] 

RIN 0648–AS96 

Fisheries Off West Coast States; West 

Coast Salmon Fisheries; Amendment 

14; Essential Fish Habitat Descriptions 

for Pacific Salmon 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

implement Amendment 14 to the Pacific 

Salmon Fishery Management Plan 

(Salmon FMP) to identify and describe 

essential fish habitat (EFH) for Pacific 

salmon. The intent of this proposed rule 

is to codify the EFH identifications and 

descriptions for freshwater and marine 

habitats of Pacific salmon managed 

under the Salmon FMP, including 

Chinook, coho, and pink salmon. This 

proposed rule complies with an order 

issued by the U.S. District Court of 

Idaho directing NMFS to codify the EFH 

identifications and descriptions 

contained in the Salmon FMP. This 

proposed EFH rule is separate and 

distinct from the December 2004 

proposed critical habitat rules in which 

NMFS proposed critical habitat for 

seven groupings of Chinook and coho 

salmon listed as threatened or 

endangered species under the 

Endangered Species Act (ESA). Where 

EFH and critical habitat overlap, NMFS 

will generally merge the results of both 

consultations into one response package 

to maximize regulatory efficiencies 

whenever possible. 

DATES: Comments must be received by 

July 19, 2007. 

ADDRESSES: You may submit comments 

or obtain a supplemental regulatory 

impact review to amendment 14 to the 

Pacific Salmon Fishery Management 

Plan by any of the following methods: 

• E-mail: EFH.salmon@NOAA.gov. 

Include in the subject line the following 

identifier ‘‘RIN 0648–AS96.’’

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. 

• Mail: For submitting paper, disk or 

CD ROM comments. Frank Lockhart, 

NMFS Northwest Region, 7600 Sand 

Point Way NE, Seattle, WA 98115. 

• Fax: 206–526–6736. 

FOR FURTHER INFORMATION CONTACT: 

Frank Lockhart at 206–526–6142. 

SUPPLEMENTARY INFORMATION: Among 

other things, the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act) authorizes 

development of Federal Fishery 

Management Plans (FMPs), and Federal 

regulation of domestic fisheries under 

those FMPs, within the 200–mile U.S. 

Exclusive Economic Zone (EEZ). 16 

U.S.C. 1811, 1853. To assist the 

Secretary of Commerce (Secretary) in 

carrying out specific management and 

conservation duties, the MagnusonStevens Act created eight regional 

fishery management councils. Under the 

Magnuson-Stevens Act, an FMP and any 

amendments are usually originated by 

one of the eight regional fishery 

management councils, 16 U.S.C. 1852, 

and must then be approved by the 

Secretary of Commerce. 16 U.S.C. 1854. 

Essential Fish Habitat 

The Magnuson-Stevens Act, originally 

enacted in 1976, has been amended 

several times. In 1996, the Sustainable 

Fisheries Act (SFA) amended the 

Magnuson-Stevens Act adding 

provisions aimed at halting overfishing 

and rebuilding overfished fisheries, 

reducing bycatch, and assessing and 

minimizing the impacts of management 

measures on fishing communities. 

Congress articulated in its findings that: 

one of the greatest long-term threats to the 

viability of commercial and recreational 

fisheries is the continuing loss of marine, 

estuarine, and other aquatic habitats. Habitat 

considerations should receive increased 

attention for the conservation and 

management of fishery resources of the 

United States. 16 U.S.C. 1801(a). 

In making such findings, Congress 

declared one of the purposes of the 

Magnuson-Stevens Act to be the 

promotion of ‘‘the protection of [EFH] in 

the review of projects conducted under 

Federal permits, licenses, or other 

authorities that affect or have the 

potential to affect such habitat.’’ 16 

U.S.C. 1802(b)(7). To ensure habitat 

considerations receive increased 

attention for the conservation and 

management of fishery resources, the 

amended Magnuson-Stevens Act 

required each existing, and any new, 

FMP to: 

describe and identify essential fish habitat 

for the fishery based on the guidelines 

established by the Secretary under section 

1855(b)(1)(A) of this title, minimize to the 

extent practicable adverse effects on such 

habitat caused by fishing, and identify other 

actions to encourage the conservation and 

enhancement of such habitat. 16 U.S.C. 

1853(a)(7). 

‘‘EFH’’ is defined in the MagnusonStevens Act as ‘‘those waters and 

substrate necessary to fish for spawning, 

breeding, feeding, or growth to 

maturity.’’ 16 U.S.C. 1802(10). 

The EFH regulations (50 CFR 600.815) 

establish additional guidance to the 

Councils on how to identify and 

describe EFH. The regulations indicate 

that Councils should: 

obtain information to describe and identify 

EFH from the best available sources, 

including peer reviewed literature, 

unpublished scientific reports, data files of 

government resource agencies, fisheries 

landing reports, and other sources of 

information. 

The regulations identify four 

classification levels to organize 

available information relevant to EFH 

identifications and descriptions. Level 1 

information is limited to species 

distributional data; level 2 information 

includes habitat-related densities; level 

3 includes growth, reproduction or 

survival rates within habitats; and level 

4 consists of production rates by habitat. 

Councils are encouraged to identify and 

describe EFH based on the highest level 

of detail (i.e., level 4). Readers are 

encouraged to see the EFH regulations 

(50 CFR 600.815, subpart J) for a 

complete description of each of these 

levels as well as guidance on how the 

Councils should analyze the available 

information. In determinating EFH, the 

regulations advise the Councils to 

interpret the available information in a 

‘‘risk-averse fashion to ensure adequate 

areas are identified as EFH for managed 

species.’’ 50 CFR 600.815(a)(1)(iv)(A). 

For Pacific salmon, the Pacific Fishery 

Management Council (Pacific Council) 

obtained information at all four levels 


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