Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 17131 

for existing non-emergency stationary 

compression ignition engines greater 

than 500 brake horsepower that are 

located at major sources, based on a new 

review of these engines following the 

first RICE NESHAP rulemaking in 2004. 

In addition, EPA proposed to amend the 

previously promulgated regulations 

regarding operation of stationary RICE 

during periods of startup, shutdown and 

malfunction. 

Shortly after publication of the 

proposed rule, several industry groups 

formally requested that EPA extend the 

comment period of the proposed rule. 

They indicated that an extended 

comment period was necessary due to 

the complexities of the proposed 

regulation and the large number of 

existing sources that are potentially 

affected. Furthermore, the request letters 

mention that the proposed regulation 

has far-reaching impacts on industrial 

stakeholders and that those impacts 

cannot be properly evaluated in the 60- 

day comment period provided by the 

proposal. 

The letters requesting an extension to 

the comment period can be found in the 

docket. EPA is hereby extending the 

comment period, which was set to end 

on May 4, 2009, to June 3, 2009. 

List of Subjects 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: April 8, 2009. 

Elizabeth Craig, 

Acting Assistant Administrator. 

[FR Doc. E9–8483 Filed 4–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 226 

[Docket No. 090224232–9334–02] 

RIN 0648–AX50 

Endangered and Threatened Species: 

Advance Notice of Proposed 

Rulemaking to Designate Critical 

Habitat for Cook Inlet Beluga Whales 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Advance notice of proposed 

rulemaking; request for information. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), will be 

designating critical habitat for the 

endangered Cook Inlet beluga whale 

(Delphinapterus leucas) under the 

Endangered Species Act (ESA). The 

designation will involve areas within 

Cook Inlet, Alaska. This advance notice 

of proposed rulemaking (ANPR) 

identifies issues for consideration and 

evaluation and solicits comments 

regarding these issues. 

DATES: Comments and information 

regarding the suggested designation 

process and areas being considered for 

designation may be sent to NMFS (See 

ADDRESSES) by May 14, 2009. 

ADDRESSES: Comments may be sent to 

Chief, Protected Resources Division, 

NMFS, P.O. Box 21668, Juneau, AK, 

99802–1668. 

FOR FURTHER INFORMATION CONTACT: Brad 

Smith, (907–271–3023) or Kaja Brix 

(907–586–7235). 

SUPPLEMENTARY INFORMATION: 

Rulemaking Background 

We are responsible for determining 

whether species, subspecies, or distinct 

population segments (DPSs) are 

threatened or endangered and for 

designating critical habitat for them 

under the ESA (16 U.S.C. 1531 et seq.). 

To be considered for listing under the 

ESA, a group of organisms must 

constitute a ‘‘species’’ which is defined 

in section 3 to include ‘‘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.’’ We 

consider a group of organisms to be a 

DPS for purposes of ESA listing when 

it is both discrete from other 

populations and significant to the 

species to which it belongs (61 FR 4722; 

February 7, 1996). We found the Cook 

Inlet beluga whale population segment 

to be reproductively, genetically, and 

physically discrete from the four other 

known beluga populations in Alaska, 

and significant because it is in a unique 

ecological setting for the taxon, and its 

loss would result in a significant gap in 

the taxon’s range. Following completion 

of a Status Review of the Cook Inlet 

beluga whale under the ESA, we 

published a proposed rule to list this 

DPS as an endangered species on April 

20, 2007. We subsequently extended the 

date for final determination on the 

proposed action by 6 months, until 

October 20, 2008, as provided for by the 

ESA (section 4(b)(6)(B)(i)). A Final Rule 

to list the Cook Inlet beluga whale as an 

endangered species was published on 

October 22, 2008. 

Critical Habitat 

Section 4(b)(2) of the ESA requires us 

to designate critical habitat for 

threatened and endangered species ‘‘on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat.’’ This 

section grants the Secretary of 

Commerce (Secretary) discretion to 

exclude any area from critical habitat if 

he determines ‘‘the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat.’’ The Secretary’s 

discretion is limited, as he may not 

exclude areas that ‘‘will result in the 

extinction of the species.’’ 

The ESA defines critical habitat under 

section 3(5)(A) 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.’’ 

Once critical habitat is designated, 

section 7 of the ESA requires Federal 

agencies to ensure they do not fund, 

authorize, or carry out any actions that 

will 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 

listed species. 

Issues for Consideration and Evaluation 

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

to designate critical habitat for 

threatened and endangered species. We 

are currently in the informationgathering phase, compiling information 

to propose critical habitat for the Cook 

Inlet beluga whale. Sections 3, 4(a), and 

4(b) of the ESA suggest a number of 

questions the agency should consider 

when designating critical habitat: 

• What areas were occupied by the 

species at the time of listing? 

• What physical and biological 

features are essential to the species’ 

conservation? 

• Are those essential features ones 

that may require special management 

considerations or protection? 

• Are there any areas outside those 

currently occupied that are ‘‘essential 

for conservation?’’ 

17132 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 

• What are the benefits to the species 

of critical habitat designation? 

• What economic and other relevant 

impacts would result from a critical 

habitat designation? 

• What is the appropriate geographic 

scale for weighing the benefits of 

exclusion and benefits of designation? 

• Will the failure to designate any 

particular area as critical habitat result 

in the extinction of the species? 

Answering these questions involves a 

variety of biological and economic 

considerations. To ensure that we have 

the best scientific data available, we are 

issuing this ANPR to solicit information 

before issuing a proposed rule. During 

the information-gathering phase, we are 

seeking public input and information 

(see ‘‘Information Solicited’’ below) and 

will gather and analyze the best 

available scientific data to inform 

critical habitat designations. We will 

then initiate rulemaking with the 

publication of a proposed designation of 

critical habitat, opening a period for 

public comment and the opportunity for 

public hearings. 

Cook Inlet Beluga Whale Biology and 

Habitat Use 

The beluga whale is a small, toothed 

whale in the family Monodontidae, a 

family it shares with only the narwhal. 

Belugas are also known as ‘‘white 

whales’’ because of the white coloration 

of the adults. The beluga whale is a 

northern hemisphere species, ranging 

primarily over the Arctic Ocean and 

some adjoining seas, where it inhabits 

fjords, estuaries, and shallow water in 

Arctic and subarctic oceans. Five 

distinct stocks of beluga whales are 

currently recognized in Alaska: Beaufort 

Sea, eastern Chukchi Sea, eastern Bering 

Sea, Bristol Bay, and Cook Inlet. The 

Cook Inlet population is numerically the 

smallest of these, and is the only one of 

the five Alaskan stocks occurring south 

of the Alaska Peninsula in waters of the 

Gulf of Alaska. 

A detailed description of the biology 

of the Cook Inlet beluga whale may be 

found in the Proposed Listing Rule (72 

FR 19854; April 20, 2007). Belugas 

generally occur in shallow, coastal 

waters, and while some populations 

make long seasonal migrations, Cook 

Inlet belugas reside in Cook Inlet year 

round. Data from satellite tagged whales 

documented that Cook Inlet belugas 

concentrate in the upper Inlet at rivers 

and bays in the summer and fall, and 

then tend to disperse into deeper waters 

moving to mid Inlet locations in the 

winter. The Traditional Ecological 

Knowledge (TEK) of Alaska Natives and 

systematic aerial survey data document 

a contraction of the summer range of 

Cook Inlet belugas. While belugas were 

once abundant and frequently sighted in 

the lower Inlet during summer, they are 

now primarily concentrated in the 

upper Inlet. This constriction is likely a 

function of a reduced population 

seeking the highest quality habitat that 

offers the most abundant prey, most 

favorable feeding topography, the best 

calving areas, and the best protection 

from predation. An expanding 

population would likely use the lower 

Inlet more extensively. 

While mating is assumed to occur 

sometime between late winter and early 

spring, there is little information 

available on the mating behavior of 

belugas. Most calving in Cook Inlet is 

assumed to occur from mid-May to midJuly (Calkins, 1983), although Native 

hunters have observed calving from 

April through August (Huntington, 

2000). Alaska Natives described calving 

areas as the northern side of Kachemak 

Bay in April and May, off the mouths of 

the Beluga and Susitna rivers in May, 

and in Chickaloon Bay and Turnagain 

Arm during the summer (Huntington, 

2000). The warmer waters from these 

freshwater sources may be important to 

newborn calves during their first few 

days of life (Katona et al., 1983; Calkins, 

1989). Surveys conducted from 2005 to 

2007 in the upper Inlet by LGL, Inc., 

documented neither localized calving 

areas nor a definitive calving season, 

since calves were encountered in all 

surveyed locations and months (AprilOctober) (McGuire et al., 2008). The 

warmer, fresher coastal waters may also 

be important areas for belugas’ seasonal 

summer molt. 

Cook Inlet belugas are opportunistic 

feeders and feed on a wide variety of 

prey species, focusing on specific 

species when they are seasonally 

abundant. Eulachon (locally referred to 

as hooligan or candlefish) is an 

important early spring food resource for 

beluga whales in Cook Inlet, as 

evidenced by the stomach of a beluga 

hunted near the Susitna River in April 

1998 that was filled exclusively with 

eulachon (NMFS unpubl. data). These 

fish first enter the upper Inlet in April, 

with two major spawning migrations 

occurring in the Susitna River in May 

and July. The early run is estimated at 

several hundred thousand fish and the 

later run at several million (Calkins, 

1989). 

In the summer, as eulachon runs 

begin to diminish, belugas rely heavily 

on several species of salmon as a 

primary prey resource. Beluga whale 

hunters in Cook Inlet reported one 

whale having 19 adult king salmon in 

its stomach (Huntington, 2000). NMFS 

(unpubl. data) reported a 14 foot 3 inch 

(4.3 m) male with 12 coho salmon, 

totaling 61.5 lbs (27.9 kg), in its 

stomach. 

The seasonal availability of energyrich prey such as eulachon, which may 

contain as much as 21 percent oil 

(Payne et al., 1999), and salmon are very 

important to the energetics of belugas 

(Abookire and Piatt, 2005; Litzow et al., 

2006). Native hunters in Cook Inlet have 

stated that beluga whale blubber is 

thicker after the whales have fed on 

eulachon than in the early spring prior 

to eulachon runs. In spring, the whales 

were described as thin with blubber 

only 2–3 inches (5–8 cm) thick 

compared to the fall when the blubber 

may be up to 1 ft (30 cm) thick 

(Huntington, 2000). Eating such fatty 

prey and building up fat reserves 

throughout spring and summer may 

allow beluga whales to sustain 

themselves during periods of reduced 

prey availability (e.g., winter) or other 

adverse impacts by using the energy 

stored in their blubber to meet 

metabolic needs. Mature females have 

additional energy requirements. The 

known presence of pregnant females in 

late March, April, and June (Mahoney 

and Shelden, 2000; Vos and Shelden, 

2005) suggests breeding may be 

occurring in late spring into early 

summer. Calves depend on their 

mother’s milk as their sole source of 

nutrition, and lactation lasts up to 23 

months (Braham, 1984), though young 

whales begin to consume prey as early 

as 12 months of age (Burns and Seaman, 

1986). Therefore, the summer feeding 

period is critical to pregnant and 

lactating belugas. Summertime prey 

availability is difficult to quantify. 

Known salmon escapement numbers 

and commercial harvests have 

fluctuated widely throughout the last 40 

years; however, samples of harvested 

and stranded beluga whales have shown 

consistent summer blubber thicknesses. 

In the fall, as anadromous fish runs 

begin to decline, belugas again return to 

consume the fish species found in 

nearshore bays and estuaries. This 

includes cod species as well as other 

bottom-dwellers such as Pacific 

staghorn sculpin and flatfishes, such as 

starry flounder and yellowfin sole. This 

change in diet in the fall is consistent 

with other beluga populations known to 

feed on a wide variety of food. Pacific 

staghorn sculpin are commonly found 

nearshore in bays and estuaries on 

sandy substrate (Eschmeyer et al., 1983). 

Flatfish are typically found in very 

shallow water and estuaries during the 

warm summer months and move into 

deeper water in the winter as coastal 

water temperatures cool (though some 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 17133 

may occur in deep water year-round) 

(Morrow, 1980). 

The available information indicates 

that Cook Inlet belugas move throughout 

much of the Inlet in the winter months. 

They concentrate in deeper waters in 

mid Inlet past Kalgin Island, with 

occasional forays into the upper Inlet, 

including the upper ends of Knik and 

Turnagain Arms. While the beluga 

whales move into the mid to lower Inlet 

during the winter, ice cover does not 

appear to limit their movements. Their 

winter distribution does not appear to 

be associated with river mouths, as it is 

during the warmer months. The spatial 

dispersal and diversity of winter prey 

likely influence the wider beluga winter 

range throughout the mid Inlet. 

There is obvious and repeated use of 

certain habitats by Cook Inlet beluga 

whales. Intensive aerial abundance 

surveys conducted in June and July 

since 1993 have consistently 

documented high use of Knik Arm, 

Turnagain Arm, Chickaloon Bay and the 

Susitna River delta areas of the upper 

Inlet. The high use of these areas by 

belugas is further supported by data 

from satellite tagging studies. 

We considered habitat type and value 

in our 2008 Cook Inlet Beluga 

Conservation Plan (NMFS, 2008). That 

document stratified Cook Inlet into 

three regions based upon patterns of 

beluga habitat use, labeling them as 

valuable habitat types 1, 2, and 3. Type 

1 habitat encompasses habitats with 

intensive beluga use from spring 

through fall, and which are important 

foraging and nursery habitats. Type 1 

habitat includes all of Cook Inlet 

northeast of a line drawn from 3 miles 

southwest of the Beluga River across to 

Point Possession. Type 2 habitat is 

based on less concentrated spring and 

summer beluga use, and known fall and 

winter use areas. Type 2 habitat is 

located south of Type 1 habitat and 

north of a line at 60.2500 north latitude. 

It also extends south along the west side 

of the Inlet following the tidal flats into 

Kamishak Bay around to Douglas Reef, 

and includes an isolated section within 

Kachemak Bay. Type 3 habitat 

encompasses the remaining portions of 

their range in Cook Inlet; the southern 

boundary is an opening into the Gulf of 

Alaska approximately 85 km across 

from Cape Douglas to Elizabeth Island. 

Type 1 habitat is believed to be the most 

valuable of the three habitat types based 

on the frequency of use and its 

importance as feeding and calving 

habitats. 

Areas Occupied by the Species at the 

Time of Listing 

The ESA specifies that critical habitat 

is that habitat occupied by the species 

‘‘at the time it is listed’’ (ESA section 

3(5)(A)(i)). The range of Cook Inlet 

belugas has been previously defined as 

the waters of the Gulf of Alaska north 

of 58 oN. and freshwater tributaries to 

these waters based on then-available 

scientific data (65 FR 34590, May 31, 

2000; MMPA Sec. 216.15(g); 76 FR 

62919, Oct. 22, 2008). There are few 

beluga sightings in the Gulf of Alaska 

outside Cook Inlet. In the 1970s and 

1980s, beluga sightings occurred across 

much of the northern and central parts 

of Cook Inlet, but in the 1990s the 

summer distribution narrowed to 

primarily the northernmost portions of 

Cook Inlet. More of the Inlet was used 

by beluga whales during the spring, 

summer, and fall during the 1970s and 

1980s than is presently used. However, 

because sightings continue to occur over 

the described range, we consider the 

present range of this DPS to be occupied 

habitat. The present range of the listed 

Cook Inlet beluga is limited to Cook 

Inlet waters north of a line from Cape 

Douglas to Cape Elizabeth. 

Critical Habitat Boundaries 

NMFS’ ESA regulations relevant to 

describing a geographical area and 

‘‘specific areas’’ state that ‘‘each critical 

habitat will be defined by specific limits 

using reference points and lines as 

found on standard topographic maps of 

the area’’ (50 CFR 424.12). These 

regulations require that we also identify 

the state(s), county(ies), or other local 

governmental units within which all or 

part of the critical habitat is located. 

However, the regulations note that such 

political units typically would not 

constitute the boundaries of critical 

habitat. In addition, the regulations state 

that ephemeral reference points (e.g., 

trees, sand bars) shall not be used in 

defining critical habitat. 

We seek the best scientific 

information available to make the 

designations as precise as practicable. 

During the information-gathering phase, 

we are seeking information that will 

allow us to map specific areas, using 

reference points and lines as found on 

standard nautical charts and 

topographic maps, that (1) are currently 

occupied by the species and (2) contain 

essential physical and biological 

features. 

We have limited information on the 

distribution and occurrence of Cook 

Inlet beluga whales within tributary 

waters of Cook Inlet. Traditional 

Knowledge of Alaska Native hunters 

tells us these whales have occurred 

several miles up the Susitna and Beluga 

Rivers in past years, and whales have 

been observed above tidewater in the 

Knik River at Turnagain Arm. We seek 

more information on habitat in estuaries 

and freshwater as well as marine areas. 

Physical and Biological Features 

Essential for Conservation 

As described in ESA section 

3(5)(A)(i), we will assemble the best 

available information to identify those 

‘‘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.’’ Joint NMFS/FWS 

regulations for listing endangered and 

threatened species and designating 

critical habitat at section 50 CFR 

424.12(b) state that the agency ‘‘shall 

consider those physical and biological 

features that are essential to the 

conservation of a given species and that 

may require special management 

considerations or protection’’ (also 

referred to as ‘‘Essential Features’’ or 

‘‘Primary Constituent Elements’’). 

Pursuant to the regulations, such 

requirements include, but are not 

limited to the following: (1) Space for 

individual and population growth, and 

for normal behavior; (2) food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; (3) cover or 

shelter; (4) sites for breeding, 

reproduction, rearing of offspring, 

germination, or seed dispersal; and 

generally (5) habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. These 

regulations go on to emphasize that the 

agency shall focus on essential features 

within the specific areas considered for 

designation. These features ‘‘may 

include, but are not limited to, the 

following: roost sites, nesting grounds, 

spawning sites, feeding sites, seasonal 

wetland or dryland, water quality or 

quantity, geological formation, 

vegetation type, tide, and specific soil 

types.’’ 

We seek information on the 

identification of these essential features 

for purposes of identifying critical 

habitat. 

Special Management Considerations or 

Protection 

Coupled with the identification of 

essential features, during the 

information-gathering phase we seek 

input on whether the above essential 

features may require special 

17134 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 

management considerations or 

protection. For example, unrestricted 

passage and access between habitats 

within upper Cook Inlet may require 

management of this waterway for 

projects that have the potential to 

disrupt passage, such as dams or 

causeways. Similarly, essential prey 

species such as king salmon may require 

special management to ensure long-term 

viability and to prevent overharvest. We 

will document the special management 

considerations and protection 

associated with the essential features 

and relate these to the factors affecting 

the species and/or critical habitat during 

formal rulemaking (see ‘‘Schedule and 

Contents of Rulemaking’’). 

Areas Outside the Geographical Area 

Occupied by the Species 

Section 3(5)(A)(ii) of the ESA defines 

critical habitat to include specific areas 

outside the geographical area occupied 

by the species only if the Secretary 

determines them to be essential for the 

conservation of the species. Section 3(3) 

of the ESA defines conservation as ‘‘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 Act 

are no longer necessary.’’ NMFS’ ESA 

regulations at 424.12(e) state that the 

agency ‘‘shall designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species.’’ 

We would thus include areas outside 

the occupied geographical area only if 

areas within the occupied geographical 

area were not adequate to support 

conservation. We seek information on 

the adequacy of the currently occupied 

habitat to support conservation of the 

Cook Inlet beluga DPS, and whether 

areas that are unoccupied might be 

‘‘essential for conservation.≥ 

Determining Economic and Other 

Relevant Impacts 

Section 4(b)(2) of the ESA requires 

that the Secretary, in deciding to 

designate critical habitat, consider 

economic impacts, impacts to national 

security, and any other relevant impacts 

of such designation. We seek 

information relating to any of these 

impacts. 

The ESA gives the Secretary 

discretion to exclude any area from 

critical habitat if the benefits of such 

exclusion outweigh the benefits of 

specifying the area as part of the critical 

habitat. During the informationgathering phase, we seek information 

regarding the benefits of excluding 

particular areas from the critical habitat 

designation and the benefits of 

including each such area as part of the 

critical habitat designation. We seek 

information that would allow us to 

monetize these effects to the extent 

practicable, as well as information on 

qualitative impacts to these effects. We 

also seek input on what approaches 

would allow us to determine if 

excluding a particular area from 

designation will result in the extinction 

of the species. 

Determining Conservation Value 

We seek information on the 

conservation value of potential critical 

habitat, based on the quality and 

quantity of the essential feature(s). We 

also seek input on the best methods for 

evaluating the conservation value of 

potential critical habitat areas. We are 

interested in information relevant to 

monetizing the conservation value of an 

area, to the extent useful measurement 

can be made, and/or to ranking the 

conservation benefits in an ordinal 

manner, if full monetization is not 

practicable. 

The Appropriate Geographic Scale for 

Weighing the Benefits of Exclusion and 

Benefits of Inclusion 

Cook Inlet is a vast region occupying 

a variety of habitat types and human 

presence. Much of it is undeveloped, 

while portions of the Inlet are adjacent 

to the most populated areas of the State. 

Consideration of areas for exclusion 

presents a problem of scale, wherein we 

wish to maintain the ecological 

perspective of important habitat for 

Cook Inlet beluga whales while allowing 

meaningful distinction between areas to 

be evaluated under section 4(b)(2). 

In some cases, it may be useful to 

consider habitat units at a finer scale, 

for example, along the Municipality of 

Anchorage’s waterfront on lower Knik 

Arm. We seek input on the scale to be 

used in this analysis for the balancing 

test. 

Information Solicited 

Past critical habitat designations have 

generated considerable public interest. 

Therefore, we believe it is important to 

engage the public early and often in the 

rulemaking process. This ANPR is a key 

first step, and we encourage all 

interested parties to submit comments 

regarding the issues raised in this 

notice. 

In accordance with agency regulations 

at 50 CFR 424.13, we will consult as 

appropriate with affected states, 

interested persons and organizations, 

other affected Federal agencies, and, in 

cooperation with the Secretary of State, 

with the country or countries in which 

the species concerned are normally 

found or whose citizens harvest such 

species from the high seas. Data 

reviewed may include, but are not 

limited to, scientific or commercial 

publications, administrative reports, 

maps or other graphic materials, 

information received from experts, and 

comments from interested parties. 

Specific data needs include: 

(1) Information on the past and 

current numbers and distribution of 

Cook Inlet beluga whales; 

(2) Information describing the habitat 

type and quality of marine, estuarine, 

and freshwater habitats for all Cook 

Inlet beluga whales; 

(3) Within areas occupied by Cook 

Inlet beluga whales, information 

regarding the physical and biological 

features that are essential to the 

conservation of this DPS; 

(4) Any special management 

considerations or protection currently 

associated with essential physical and 

biological features within areas 

occupied by Cook Inlet beluga whales, 

such as any land use management plan, 

a state statute, a municipal ordinance, or 

other binding local enactment; 

(5) Any specific areas within the 

range of Cook Inlet beluga whales that 

may not qualify for critical habitat 

designation because they lack essential 

physical or biological features or may 

not require special management 

consideration or protections; 

(6) Any specific areas outside the area 

occupied by Cook Inlet beluga whales 

that are essential for their conservation; 

(7) Any specific areas that should be 

excluded from critical habitat 

designation because the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat; 

(8) Any current or planned activities 

in the range of Cook Inlet beluga whales 

and their possible impacts on areas that 

may qualify as critical habitat; 

(9) Any economic or other relevant 

impacts that may result from 

designating critical habitat, regardless of 

whether those impacts are attributable 

co-extensively to other causes, in 

particular those impacts affecting small 

entities; 

(10) Other benefits of excluding or 

designating a specific area as critical 

habitat; and 

(11) Potential peer reviewers for 

proposed critical habitat designations, 

including persons with biological and 

economic expertise relevant to the 

designations. 

As described in a joint NMFS/FWS 

policy on ESA information standards 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Proposed Rules 17135 

published on July 1, 1994 (59 FR 

34271), we will rely on the best and 

most comprehensive technical 

information available; gather and 

impartially evaluate information that 

disputes official positions; document 

evaluation of information; use, retain, 

and reference primary and original 

sources of information; and conduct 

management-level review of documents 

to verify and assure the quality of the 

science used to make the critical habitat 

designations. We will review all 

comments and information resulting 

from this ANPR prior to making any 

proposed designations and will include 

such documents in our public record. 

The public may review information 

submitted by contacting NMFS (see 

ADDRESSES and FOR FURTHER

INFORMATION CONTACT) or via the internet 

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

Dated: April 7, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

[FR Doc. E9–8519 Filed 4–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 090224231–9594–01] 

RIN 0648–AX54 

Fisheries of the Northeastern United 

States; Atlantic Sea Scallop Fishery; 

State Waters Exemption 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes regulations to 

allow an exemption from the minimum 

twine-top mesh size for vessels issued 

Federal scallop permits and fishing 

exclusively in State of Maine (ME) 

waters. In addition, the state waters 

exemption would provide an exemption 

from scallop days-at-sea (DAS) for 

limited access DAS scallop vessels, 

provided the vessel owner declares that 

the vessel will fish exclusively in ME 

state waters. The scallop fishery 

regulations specify that a state may be 

eligible for a state waters exemption if 

it has a scallop fishery and a scallop 

conservation program that does not 

jeopardize the biomass and fishing 

mortality/effort limit objectives of the 

Atlantic Sea Scallop Fishery 

Management Plan (FMP). The 

regulations further state that the 

Regional Administrator, Northeast 

Region, NMFS (RA), shall determine 

which states meet those criteria and 

shall authorize the exemption for such 

states by publishing a rule in the 

Federal Register. 

DATES: Comments must be received by 

5 p.m., local time, on May 14, 2009. 

ADDRESSES: Documents supporting this 

action, including ME’s request for the 

exemption, Amendment 11 to the FMP, 

and Framework 19 to the FMP, are 

available upon request from Patricia A. 

Kurkul, Regional Administrator, NMFS, 

Northeast Regional Office, 55 Great 

Republic Drive, Gloucester, MA 01930. 

You may submit comments, identified 

by 0648–AX54, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Fax: (978) 281–9135, Attn: Peter 

Christopher. 

• Mail: Patricia A. Kurkul, Regional 

Administrator, NMFS, Northeast 

Regional Office, 55 Great Republic 

Drive, Gloucester, MA 01930. Mark the 

outside of the envelope, ‘‘Comments on 

Maine State Waters Exemption.’’ 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments. 

Attachments to electronic comments 

will be accepted in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

FOR FURTHER INFORMATION CONTACT: 

Peter Christopher, Policy Analyst, 978– 

281–9288; fax 978–281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

Amendment 11 to the FMP 

(Amendment 11), implemented on June 

1, 2008 (73 FR 20090, April 14, 2008), 

includes a comprehensive new 

management program for the general 

category scallop fleet. Amendment 11 

created a Northern Gulf of Maine 

Scallop Management Area (NGOM Area) 

that includes a total allowable catch 

(TAC), gear restrictions, and a 

possession limit for the NGOM Area 

that are more restrictive than previous 

regulations for the area. Under 

Amendment 11, NMFS determined that 

the exemptions for ME, New Hampshire 

(NH), and Massachusetts (MA), should 

be suspended, pending submission of 

additional information from those states 

regarding their state waters fisheries and 

the potential effects of allowing state 

waters exemptions under the 

Amendment 11 scallop regulations. In 

response, ME requested a state waters 

exemption and provided background 

information on the State’s current 

scallop fishery management measures, 

the potential state waters scallop 

fishery, and information regarding 

potential new measures that the State 

was developing at the time. 

The scallop fishery regulations at 50 

CFR 648.54(c) specify that a state may 

be eligible for the state waters 

exemption if it has a scallop fishery and 

a scallop conservation program that 

does not jeopardize the biomass and 

fishing mortality/effort limit objectives 

of the FMP. The regulations further state 

that the RA shall determine which states 

meet those criteria and shall publish a 

rule in the Federal Register, in 

accordance with the Administrative 

Procedure Act, to provide the 

exemption for such states. 

Based on the information submitted, 

NMFS has preliminarily determined 

that ME state waters qualify for the state 

waters exemption program under the 

FMP. The majority of ME’s scallop 

fishery restrictions are either equally or 

more restrictive than Federal scallop 

fishing regulations. The exception is 

that ME allows vessels to use a 

minimum mesh size of 5.5–in (14–cm) 

twine tops on scallop dredges, while the 

Federal regulations require a 10–in 

(25.4–cm) minimum twine-top mesh 

size. The state waters exemption would 

therefore allow an exemption from the 

10–in (25.4–cm) minimum twine-top 

mesh size. In addition, the state waters 

exemption would provide an exemption 

from scallop DAS for limited access 

DAS scallop vessels, but would not 

exempt such vessels from any other 

Federal restrictions other than the 

minimum twine-top mesh size as noted 

above. To fish under the exemption, 

owners of scallop vessels would be 

required to declare their intent to fish 

exclusively in ME state waters, subject 

to more restrictive state measures if 

applicable. Vessels with Federal 

Incidental Catch scallop permits would 

still be confined to the 40–lb (18–kg) 

limit under Federal regulations. The 

target total allowable catch was set at 

50,000 lb (22,680 kg) for these vessels 

based partly on the very low possession 

limit. Allowing these vessels to harvest