Designation of the Cook Inlet, Alaska, Stock of Beluga Whale as Depleted Under the Marine Mammal Protection Act (MMPA) and Response to Petitions

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 990922260-9260-01; I.D. 083199E]

RIN 0648-AM84

Designation of the Cook Inlet, Alaska, Stock of Beluga Whale as

Depleted Under the Marine Mammal Protection Act (MMPA) and Response to

Petitions

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to designate the Cook Inlet beluga whale stock

as depleted under the MMPA. No Endangered Species Act (ESA)

determination on listing this stock as a threatened or endangered

species is made at this time. NMFS will issue an ESA determination

within 12 months of NMFS's receipt of the petition (April 9, 1999),

following the 1999 NMFS aerial survey and other factors which may

affect such a determination. This action, pursuant to the MMPA, is

necessary to address the sharp decline in the number of Cook Inlet

beluga whales. It is intended as a conservation measure to reverse the

decline and eventually to rebuild the numbers within the Cook Inlet

beluga whale stock.

DATES: Comments and information must be received by December 20, 1999.

ADDRESSES: Comments should be addressed to the Chief, Marine Mammal

Division, Office of Protected Resources, NMFS, 1335 East-West Highway,

Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Michael Payne, NOAA/NMFS, Alaska

Region, (907) 586-7235, or Brad Smith, NOAA/NMFS, Alaska Region,

Anchorage Field Office, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

December 20, 1999.

ADDRESSES: Comments should be addressed to the Chief, Marine Mammal

Division, Office of Protected Resources, NMFS, 1335 East-West Highway,

Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Michael Payne, NOAA/NMFS, Alaska

Region, (907) 586-7235, or Brad Smith, NOAA/NMFS, Alaska Region,

Anchorage Field Office, (907) 271-5006.

SUPPLEMENTARY INFORMATION:

Background

The beluga whale, Delphinapterus leucas, is a small toothed whale

inhabiting arctic and subarctic waters. Alaska contains five separate

stocks of beluga whale, the smallest of which occurs in Cook Inlet

within south-central Alaska. The Cook Inlet stock is genetically and

geographically isolated from the other Alaskan populations of beluga

whales.

NMFS has conducted annual surveys of the Cook Inlet beluga whale

between 1994 and 1998. Results show a sharp decline in estimated

abundance, with the 1998 estimate (347 animals) nearly 50 percent lower

than the 1994 estimate (653 animals). Historical estimates of abundance

are not available; however, Native hunters have stated their belief

that the stock numbered at least 1,000 animals as recently as the

1980s.

The Cook Inlet beluga whale stock is hunted by Alaska Natives. The

subsistence harvest levels of Cook Inlet beluga whales have been

largely unreported; however the hunter groups and some individual

hunters have provided NMFS with documented information on the harvest

for 1994-1997. From these data, NMFS estimates the total Cook Inlet

subsistence harvest at a mean annual level of 87 whales (including

those landed and struck and lost).

At the current decline of 15 percent per year, the Cook Inlet

beluga whale stock would be reduced to 50 percent of its current level

within 5 years. This level of removal is significant.

As a result of the recent decline in this stock, NMFS initiated a

status review of the Cook Inlet beluga whale stock with a request for

public comment (63 FR 64228, November 19, 1998)

d and struck and lost).

At the current decline of 15 percent per year, the Cook Inlet

beluga whale stock would be reduced to 50 percent of its current level

within 5 years. This level of removal is significant.

As a result of the recent decline in this stock, NMFS initiated a

status review of the Cook Inlet beluga whale stock with a request for

public comment (63 FR 64228, November 19, 1998). Additionally, NMFS

received a petition from the State of Alaska on January 21, 1999, to

designate the Cook Inlet beluga stock as depleted under the MMPA. On

March 3, 1999, NMFS received another petition from seven organizations

and one individual to list the Cook Inlet stock of beluga whale as

``endangered'' under the ESA. This petition requested emergency listing

under section 4(b)(7) of the ESA, designation of critical habitat, and

immediate action to implement regulations to regulate the subsistence

harvest of these whales. On March 10, 1999, NMFS received a petition to

designate the Cook Inlet stock of beluga whales as depleted under the

MMPA and to list it as ``endangered'' under the ESA. NMFS has

determined that these petitions present substantial information to

indicate that the petitioned action may

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

The review process encompassed an examination of the present status

and health of the species and promulgation of recommendations for

possible designation under the MMPA and/or ESA. To ensure that the

status review was comprehensive and based on the best available

scientific data, NMFS presented a scientific review of this stock on

March 8-9, 1999, in Anchorage, Alaska, and received public comments and

recommendations. Comments received by NMFS during the status review

comment period are responded to in the following section.

Comments and Responses

the MMPA and/or ESA. To ensure that the

status review was comprehensive and based on the best available

scientific data, NMFS presented a scientific review of this stock on

March 8-9, 1999, in Anchorage, Alaska, and received public comments and

recommendations. Comments received by NMFS during the status review

comment period are responded to in the following section.

Comments and Responses

Comment 1: NMFS received 18 recommendations to act immediately,

either through an ESA listing or an MMPA designation, to protect Cook

Inlet beluga whales. One less specific comment recommended whatever

action necessary to halt the decline. Several commenters claimed that

an ESA listing would take longer than a depleted designation. One noted

the timeline for issuance of a final rule on ``depleted'' status in

response to a petition may be considerably shortened if the Secretary

determines that there is substantial information available to warrant

the final status determination and that further delay would pose a

significant risk to the stock's well-being; a number of other

commenters claimed that an ESA listing would be more expeditious than

an MMPA designation.

Response: NMFS agrees that timely action is necessary to conserve

Cook Inlet beluga whales. Because Native harvest is believed to be

responsible, in large part, for the observed level of decline in this

stock's numbers since 1994, the immediate need to protect this stock

and the comments received in support of an immediate ESA listing are

directly related to the need to control this harvest. The MMPA and ESA

both provide mechanisms to limit a harvest through regulation; however,

the promulgation of regulations to govern the Native harvest requires

that the species are listed as threatened or endangered under the ESA

or as a depleted stock under MMPA. The procedures required for

regulations to limit subsistence harvest also provide for

administrative hearings

ontrol this harvest. The MMPA and ESA

both provide mechanisms to limit a harvest through regulation; however,

the promulgation of regulations to govern the Native harvest requires

that the species are listed as threatened or endangered under the ESA

or as a depleted stock under MMPA. The procedures required for

regulations to limit subsistence harvest also provide for

administrative hearings. NMFS does not believe that even an immediate

action to list this stock would have allowed sufficient time to

promulgate Federal harvest restrictions during the 1999 season.

NMFS considers Native subsistence harvests over the last several

years a significant factor in the observed decline of beluga whales in

Cook Inlet. Given the recent passage of legislation that prohibits the

subsistence harvest of beluga whales in Cook Inlet until October 1,

2000, unless that harvest occurs as part of a cooperative agreement

between NMFS and an authorized Alaskan Native Organization (ANO), the

designation of this stock as depleted under the MMPA provides the most

expeditious and appropriate Federal response. It protects the Cook

Inlet beluga from overharvest during the period, prior to expiration of

the amendment, and eliminates the most causal threat to the recovery of

this stock of whales, thereby allowing for recovery of their numbers.

However, NMFS recognizes that the legislation provides for a temporary

limit to the harvest. NMFS will work with the ANOs to develop

regulations and cooperative agreements as necessary to ensure that

overharvest will not occur in future years.

Because NMFS believes that the maximum protection that can be

afforded this stock at this time will be provided through the

legislation and a depleted designation and that the immediate threat to

this stock is removed, no determination on listing this stock as a

threatened or endangered species under the ESA is made at this time.

NMFS will issue a determination on ESA listing within 12 months of

receipt of the petitions

e maximum protection that can be

afforded this stock at this time will be provided through the

legislation and a depleted designation and that the immediate threat to

this stock is removed, no determination on listing this stock as a

threatened or endangered species under the ESA is made at this time.

NMFS will issue a determination on ESA listing within 12 months of

receipt of the petitions. The final determination will include

consideration of the level of removals from the stock during 1999, the

results of the 1999 NMFS abundance surveys, the level of total takes

during 1999, and any other factors which may affect this stock. For

these reasons, NMFS is proposing that the stock be designated as

depleted under the MMPA.

Comment 2: One commenter expressed support for a co-management

agreement as an interim way to address overhunting and as a way to

permanently complement stringent ESA and/or MMPA protective measures.

At least six other commenters were supportive of this in addition to an

MMPA or ESA designation.

Two additional commenters recommended accomplishing the following

tasks through a co-management process involving the Cook Inlet Marine

Mammal Council (CIMMC), the Alaska Beluga Whale Committee (ABWC), NMFS,

and Cook Inlet beluga hunters:

(1) Restriction of the harvest to one beluga per Cook Inlet hunter

per year;

(2) Restriction of hunting by non-local hunters;

(3) Funding to CIMMC to allow the group to effectively communicate

with hunters, produce educational materials, meet regularly, and be

meaningfully involved in harvest monitoring and research; and

ka Beluga Whale Committee (ABWC), NMFS,

and Cook Inlet beluga hunters:

(1) Restriction of the harvest to one beluga per Cook Inlet hunter

per year;

(2) Restriction of hunting by non-local hunters;

(3) Funding to CIMMC to allow the group to effectively communicate

with hunters, produce educational materials, meet regularly, and be

meaningfully involved in harvest monitoring and research; and

(4) Development of a legal mechanism to enforce the conservation

provisions recommended through this co-management process.

A ninth commenter urged NMFS to work with U.S. Fish and Wildlife

Service and appropriate Native groups to develop a system of co-

management.

Another commenter endorsed the idea of a co-management agreement,

but only following an ESA listing and the development of a recovery

plan which would stabilize the whales' population.

Two more commenters encouraged NMFS to work with ABWC and CIMMC to

finalize a co-management agreement that would place a moratorium on

hunting until ESA or MMPA regulations promoting Cook Inlet beluga

recovery are in place. A final commenter recommended that NMFS work

closely with CIMMC on co-management while allowing for at least a very

small subsistence take by members of Cook Inlet area tribes under some

type of permit system.

Response: NMFS agrees that the cooperative management of this stock

will provide an effective means of conserving and recovering the Cook

Inlet beluga while providing for traditional subsistence uses. The

Alaska Region (AKR) has worked intensively with the CIMMC and ABWC to

foster co-management of the Cook Inlet beluga. NMFS believes that, in

the future, co-management will provide for regulation of this stock at

sustainable levels. However, no such agreement has been signed at this

time, largely because many Cook Inlet hunters are unaffiliated with

CIMMC or the Cook Inlet Treaty Tribes, and the ordinances of these

tribes do not apply to those hunters

nd ABWC to

foster co-management of the Cook Inlet beluga. NMFS believes that, in

the future, co-management will provide for regulation of this stock at

sustainable levels. However, no such agreement has been signed at this

time, largely because many Cook Inlet hunters are unaffiliated with

CIMMC or the Cook Inlet Treaty Tribes, and the ordinances of these

tribes do not apply to those hunters. Any such agreement will include

harvest levels, practices, enforcement mechanisms, funding, and other

parameters necessary to cooperatively manage the Cook Inlet beluga.

Before a cooperative agreement will be signed by the NMFS, Department

of Commerce, the action will be analyzed under applicable provisions of

the National Environmental Policy Act.

Comment 3: One commenter recommended that NMFS begin to explore,

with the Alaska congressional delegation, the ABWC, the CIMMC, and

others, amending the MMPA to limit the allowable subsistence harvest

take in Cook Inlet.

Response: Several of these organizations and various petitioners

approached the Alaska delegation on this issue. As a result,

legislation was

recently passed, which states that the taking of a Cook Inlet beluga

whale under the exemption provided in section 101(b) of the MMPA

between the date of the enactment and October 1, 2000, shall be

considered a violation of such Act unless such taking occurs pursuant

to a cooperative agreement between the NMFS and affected Alaskan Native

Organizations.

Comment 4: Six commenters recommended that NMFS take immediate

action to ban commercial sale of beluga meat. Five of these six

commenters recommended that the first step toward this action is a

definition of wasteful take of beluga whales. These commenters felt

that this action is needed before any subsistence harvest resumes.

Another commenter recommended, more specifically, prohibition of

the sale and commercial use of muktuk from Cook Inlet belugas

e

action to ban commercial sale of beluga meat. Five of these six

commenters recommended that the first step toward this action is a

definition of wasteful take of beluga whales. These commenters felt

that this action is needed before any subsistence harvest resumes.

Another commenter recommended, more specifically, prohibition of

the sale and commercial use of muktuk from Cook Inlet belugas. This

commenter suggested that NMFS work with ABWC and CIMMC to develop a

definition of commercial use that clearly allows true subsistence use

and does not allow hunting for money.

An eighth commenter suggested a ban on sale of beluga meat by

regulation under the ESA [16 U.S.C. 1539(e)(4)].

A final commenter recommended that NMFS restrict the sale of beluga

parts only to those Cook Inlet villages with a tradition of taking

belugas from the Inlet.

Response: NMFS believes that it would be difficult to try to

delineate between non-wasteful and wasteful take by quantifying

customary and traditional Cook Inlet beluga harvest practices. No

present mechanism exists to describe how these practices should be

evaluated. The Cook Inlet beluga hunters come from many Alaskan

villages, each of which may have its own traditional means of harvest.

While some tribes have traditionally utilized beluga whale muktuk,

skin, and meat, others retain only the muktuk. Both practices may be

considered traditional. NMFS believes that the quantification of

customary and traditional practices to discern wasteful and non-

wasteful practices is an issue to be addressed in close consultation

with the Alaska Native community, and hopefully through a cooperative

management process.

With regard to a ban on the commercial sale of beluga whale meat,

NMFS agrees that commercial sale of this stock is not desirable. Recent

legislation (Stevens' Amendment to the MMPA), limits the Alaska Native

subsistence harvest through the year 2000; therefore, no sale of Cook

Inlet belugas is taking place at this time

ative community, and hopefully through a cooperative

management process.

With regard to a ban on the commercial sale of beluga whale meat,

NMFS agrees that commercial sale of this stock is not desirable. Recent

legislation (Stevens' Amendment to the MMPA), limits the Alaska Native

subsistence harvest through the year 2000; therefore, no sale of Cook

Inlet belugas is taking place at this time.

Comment 5: Five commenters recommended an immediate, temporary

moratorium on the harvest until NMFS determines what harvest the

population can sustain and until an enforceable regulatory scheme is in

place.

Three commenters recommended a moratorium for the upcoming season

to provide the population an opportunity to stabilize. Two commenters

(previously mentioned in the co-management section) recommended a

moratorium through co-management until promulgation of ESA/MMPA

regulations.

One commenter recommended that a moratorium be declared pending (1)

completion of the status review, (2) further clarification of the

beluga whale status, and (3) adoption of whatever effective

conservation measures are necessary to reverse the present decline. A

final commenter recommended a moratorium on hunting of beluga whales

with no mention of harvest resumption.

Response: Recent legislation has restricted beluga whale hunting in

1999 and 2000 to only that done under a cooperative management

agreement between NMFS and an ANO. NMFS intends to authorize the

resumption of Native harvest only at very reduced levels that assure

that the stock can recover.

Comment 6: Three commenters recommended that NMFS immediately issue

regulations requiring tagging/reporting of beluga whales that are

harvested in any future subsistence hunt. Two additional commenters

said that, at a minimum, a tagging/reporting provision should be part

of a management/recovery plan.

Response: NMFS agrees

only at very reduced levels that assure

that the stock can recover.

Comment 6: Three commenters recommended that NMFS immediately issue

regulations requiring tagging/reporting of beluga whales that are

harvested in any future subsistence hunt. Two additional commenters

said that, at a minimum, a tagging/reporting provision should be part

of a management/recovery plan.

Response: NMFS agrees. On May 24, 1999, NMFS promulgated

regulations under section 109(i) of the MMPA to require the marking and

reporting of beluga whales harvested from Cook Inlet (64 FR 27925).

Under these regulations, Native hunters are required to collect the

lower left jawbone from beluga whales harvested in Cook Inlet and to

report certain information to NMFS. The jawbone and supporting

information will enable NMFS to better determine the number of beluga

whales taken in the subsistence harvest, their age and sex category,

and the potential effects of the harvest on the Cook Inlet beluga whale

stock.

Comment 7: Several commenters recommended that NMFS continue

working with the state to delete critical Cook Inlet beluga whale

habitat from future oil and gas leasing.

Response: NMFS has responded to the State of Alaska, Division of

Oil and Gas's proposed Cook Inlet area-wide sale by recommending the

deletion of certain tracts within areas of upper Cook Inlet with known

concentrations of beluga whales. These areas may be important habitat

for feeding/nutrition, calving, molting, and mating, as well as being

sites for traditional subsistence harvest. The leasing of the tracts in

question was recently halted by court action. In addition, NMFS will

continue to work with the State of Alaska to evaluate the effects of

oil and gas activities on beluga whales.

Comment 8: NMFS should implement an incidental take regulatory

process to require oil industry operations to obtain permits before

conducting seismic activities, siting drill platforms or drilling wells

in Cook Inlet

uestion was recently halted by court action. In addition, NMFS will

continue to work with the State of Alaska to evaluate the effects of

oil and gas activities on beluga whales.

Comment 8: NMFS should implement an incidental take regulatory

process to require oil industry operations to obtain permits before

conducting seismic activities, siting drill platforms or drilling wells

in Cook Inlet.

Response: Section 101(a)(5)(A) of the MMPA directs the Secretary of

Commerce to allow, upon request by U.S. citizens, engaged in a specific

activity (other than commercial fishing) in a specified geographical

region, the incidental, but not intentional, taking of small numbers of

marine mammals, if certain findings are made. NMFS has implemented a

program for such authorizations, which require that the level of

incidental take have only negligible impacts to the population and have

no unmitigable adverse effect on the availability of marine mammals for

traditional Native subsistence. These authorizations include provisions

for monitoring and, where subsistence may be impacted, measures to

mitigate any effect on this use and to coordinate with the affected

Native community.

Comment 9: NMFS should ensure that tissue samples are collected

from 100 percent of the landed whales harvested in the future.

Response: NMFS agrees and, as previously described, NMFS has

promulgated regulations under the MMPA section 109(i) requiring the

marking, tagging, and reporting of belugas harvested from Cook Inlet.

These regulations require that the lower left jawbone from all

harvested whales be collected by hunters and submitted to NMFS. This

will provide important management information, including the age and

sex of the whale and its genetic profile.

Comment 10: Additional studies on beluga tissue samples should be

conducted to determine the effect of polyaromatic hydrocarbons on the

genetics of beluga whales

lations require that the lower left jawbone from all

harvested whales be collected by hunters and submitted to NMFS. This

will provide important management information, including the age and

sex of the whale and its genetic profile.

Comment 10: Additional studies on beluga tissue samples should be

conducted to determine the effect of polyaromatic hydrocarbons on the

genetics of beluga whales.

Response: At this time, NMFS does not plan to conduct research on

the effects of polyaromatic hydrocarbons on beluga whale genetics.

However, on-going research on these whales includes tissue sampling and

archival under the Alaska Marine Mammal Tissue Archival

Project (AMMTAP). This project includes a long term tissue bank

maintained at the National Institute of Science and Technology. These

tissues allow future research on this subject. Additionally, NMFS is

currently evaluating tissue collection protocols and analytical

procedures under the AMMTAP to see if methodologies may allow for some

determination of hydrocarbon exposure among this stock.

Comment11: Although supportive of the efforts by NMFS to provide

observers to monitor Cook Inlet gillnet fisheries, the remaining Cook

Inlet fisheries that are not currently classified in the MMPA List of

Fisheries (LOF) should be reviewed to determine if they should be

reclassified as Category I or II fisheries.

Response: The level of marine mammal injury or mortality caused

incidental to commercial fishing is reviewed annually by NMFS relative

to the abundance of each marine mammal stock. Thus, all commercial

fisheries are reviewed on an annual basis for justification of their

categorization. According to the most recent LOF (64 FR 9067), all Cook

Inlet fisheries other than the salmon set and drift gillnet fisheries

(which are Category II) warrant placement into Category III (a remote

likelihood of causing serious injury or mortality to marine mammals)

ach marine mammal stock. Thus, all commercial

fisheries are reviewed on an annual basis for justification of their

categorization. According to the most recent LOF (64 FR 9067), all Cook

Inlet fisheries other than the salmon set and drift gillnet fisheries

(which are Category II) warrant placement into Category III (a remote

likelihood of causing serious injury or mortality to marine mammals).

Comment 12: NMFS should require consultation before state or

Federal agencies take action that would affect the fisheries upon which

the beluga whale relies.

Response: NMFS reviews and comments on all fishery management plans

under the Magnuson-Stevens Fishery Management and Conservation Act

(Magnuson-Stevens Act). These plans include habitat provisions. NMFS

staff will make any appropriate recommendations necessary to protect

Cook Inlet beluga whales. Additionally, the Essential Fish Habitat

(EFH) mandates of the Magnuson-Stevens Act require any Federal action

agency conducting an activity which may adversely affect EFH to consult

with NMFS regarding the potential effects of their actions on EFH.

If beluga whales were listed under the ESA, section 7 of that act

will require Federal action agencies to consult with NMFS whenever any

activity which they conduct, permit, or fund may affect the species. As

a depleted stock, NMFS may develop or implement conservation or

management measures to alleviate any impacts on areas of ecological

significance to the Cook Inlet beluga whale. Under Section 112 (e) of

the MMPA, such measures shall be developed and implemented after

consultation with the Marine Mammal Commission and the appropriate

Federal agencies and after notice and opportunity for public comment.

Therefore, under either act there are consultation provisions provided

for stocks that are either depleted (MMPA), or endangered or threatened

(ESA).

Comment 13: NMFS should work with State fish regulators to ensure

Cook Inlet beluga food requirements are being met

tion with the Marine Mammal Commission and the appropriate

Federal agencies and after notice and opportunity for public comment.

Therefore, under either act there are consultation provisions provided

for stocks that are either depleted (MMPA), or endangered or threatened

(ESA).

Comment 13: NMFS should work with State fish regulators to ensure

Cook Inlet beluga food requirements are being met.

Response: The State of Alaska, Department of Fish and Game (ADFG)

has offered their assistance in responding to the decline of the Cook

Inlet beluga whale. Issues or concerns regarding the State's fisheries

management and the health and recovery of the Cook Inlet beluga whales

would be discussed between NMFS and ADFG fish management.

Comment 14: NMFS should analyze the role of available food sources

in the precipitous decline of belugas in Cook Inlet.

Response: NMFS is currently conducting a study to obtain life

history information on this stock. Data are being systematically

collected on stock size, genetics, migratory patterns and distribution

of beluga whales within Cook Inlet as well as data on the age, and

stock structure, mortalities (including harvest) data, and growth.

These are fundamental to designing a management program which will

recover the stock and provide continued opportunity for Native harvest.

Initial review of fisheries data for Cook Inlet, from State salmon

management, does not show strong correlation between run strength and

beluga whale numbers. Other non-commercial species of fish, such as

eulachon, may be important to the diet of beluga whales, however there

is limited information on the occurrence of these fish in Cook Inlet in

recent years. NMFS will continue to assess the nutritive requirements

of this stock in our research and management planning.

Comment 15: NMFS should coordinate with State and Federal agencies

to determine the effects of logging activities on food sources .

Response: Comment noted

the diet of beluga whales, however there

is limited information on the occurrence of these fish in Cook Inlet in

recent years. NMFS will continue to assess the nutritive requirements

of this stock in our research and management planning.

Comment 15: NMFS should coordinate with State and Federal agencies

to determine the effects of logging activities on food sources .

Response: Comment noted. NMFS is unaware of any logging activities

which have been shown to directly impact belugas or their prey species.

Also, only private land is currently logged in Cook Inlet, and NMFS

does not believe additional measures are required to assess and respond

to these activities.

Comment 16: The cumulative impact of pollution sources need to be

considered in management decisions.

Response: NMFS will continue to sample beluga tissue for the Alaska

Marine Mammal Tissue Archival Project. Tissue samples will also

routinely be sent to the NMFS's Northwest and Alaska Fisheries Science

Center for contaminant analysis. Additionally, NMFS regularly

coordinates with the U.S. Environmental Protection Agency, the Alaska

Department of Environmental Conservation, and citizen's advocacy groups

concerning pollutants in Cook Inlet. Through these efforts, we believe

NMFS managers will be alert to issues concerning pollutants and their

cumulative effects.

Comment 17: NMFS should provide for more enforcement of

regulations prohibiting harassment of beluga whales.

Response: While more enforcement would allow broader coverage of

Cook Inlet, we believe the current level of NMFS enforcement, along

with supporting enforcement through the U.S. Fish and Wildlife Service

and the Alaska State Troopers, is adequate to respond to the issue of

harassment. The harassment of beluga whales is largely confined to

waters near Anchorage, where such events are reported. Additionally,

NMFS has developed criteria for commercial whale watching tours

designed to minimize harassment

FS enforcement, along

with supporting enforcement through the U.S. Fish and Wildlife Service

and the Alaska State Troopers, is adequate to respond to the issue of

harassment. The harassment of beluga whales is largely confined to

waters near Anchorage, where such events are reported. Additionally,

NMFS has developed criteria for commercial whale watching tours

designed to minimize harassment. NMFS will remain proactive in alerting

this industry to harassment issues and the prohibitions under Federal

law. At this time, there are no commercial whale watching operations in

upper Cook Inlet.

Comment 18: Education efforts for recreational boaters, tourism

operators and shipping companies should be increased.

Response: Comment noted, see above response.

Comment 19: NMFS should compile data on vessel traffic to determine

if additional regulations are necessary to protect beluga whales from

impacts of vessel noise and abundance.

Response: Comment noted. Beluga whales are commonly found in areas

with high commercial shipping activity and have shown tolerance for

frequent passages by large vessels. High speed recreational watercraft,

such as jet skis and ski boats, may disturb belugas and result in some

displacement from feeding areas. NMFS will monitor such use and would

consider actions if it was shown to have a significant adverse effect

on these whales.

Comment 20: Construction projects should be reviewed by NMFS to

ensure that potential threats are minimized.

Response: Comment noted. NMFS's Habitat Conservation Division

routinely reviews construction throughout south central Alaska and

makes recommendations necessary to

S will monitor such use and would

consider actions if it was shown to have a significant adverse effect

on these whales.

Comment 20: Construction projects should be reviewed by NMFS to

ensure that potential threats are minimized.

Response: Comment noted. NMFS's Habitat Conservation Division

routinely reviews construction throughout south central Alaska and

makes recommendations necessary to

minimize or avoid impact to our Federal trust resources, including

beluga whales.

Comment 21: NMFS must commit resources to monitoring the

populations and enforcing regulations.

Response: NMFS agrees. The 1999 budget includes funds for the

monitoring of upper Cook Inlet waters during the harvest season. We are

continuing to develop plans for the cooperative management of the

subsistence use of this stock with Alaska Natives; any cooperative

agreements must provide enforcement mechanisms, and must recognize the

authority of the NMFS in such enforcement.

Two additional commenters recommended that NMFS continue conducting

Cook Inlet beluga population and distribution surveys and further

monitor risks to their health from other sources (such as pollution,

habitat loss, possible changes in food availability and disturbance).

Response: Comment noted. NMFS intends to continue research in

these matters.

Comment 23: One individual recommended formalizing rescue protocol

for strandings of beluga whales in Turnagain Arm.

Response: NMFS has a marine mammal stranding event program within

the State of Alaska. This program brings Federal, State, and private

interests together in responding to marine mammal strandings. Because

live strandings do occur in upper Cook Inlet, NMFS developed a response

plan for these waters. We will seek to improve this response plan as we

learn more about these whales and response technology, and will involve

both the public and private assets, such as the Seward Sealife Center

gram brings Federal, State, and private

interests together in responding to marine mammal strandings. Because

live strandings do occur in upper Cook Inlet, NMFS developed a response

plan for these waters. We will seek to improve this response plan as we

learn more about these whales and response technology, and will involve

both the public and private assets, such as the Seward Sealife Center.

Comment 24: One commenter suggested that it would be helpful if

NMFS could shed more light on Cook Inlet beluga movement during winter,

perhaps through satellite tagging or surgically implanted tags, if

technically and practically possible.

Response: NMFS has plans to place satellite tags on Cook Inlet

belugas in 1999, 2000 and 2001. Similar satellite tags previously

placed on the beluga whales have lasted up to four months. To determine

early winter movements, NMFS plans on tagging belugas in late summer/

early fall during the next few years. Winter surveys were done in 1997,

showing some belugas still in Cook Inlet. We plan to conduct winter

surveys in the future.

Comment 25: One commenter questions NMFS' survey methodologies and

recommends investigation into the survey design and implementation of

more consistent surveying.

Response: NMFS has flown aerial surveys in Cook Inlet consistently

for the last 5 years (since 1994) during the month of June. These

surveys provide a thorough coverage of the coast of Cook Inlet (1,388

km) for all waters within approximately 3 km of shore. In addition,

there were 1,320 km of systematic transects flown across the Inlet.

Most of upper Cook Inlet is surveyed three times, in particular the

Susitna Delta where large groups of belugas are found. The month of

June is the time when whales are most abundant in Cook Inlet.

Comment 26: One commenter recommended that Cook Inlet beluga whale

critical habitat be identified and that no commercial activity/

development occur within 5 miles of critical habitat areas

Inlet.

Most of upper Cook Inlet is surveyed three times, in particular the

Susitna Delta where large groups of belugas are found. The month of

June is the time when whales are most abundant in Cook Inlet.

Comment 26: One commenter recommended that Cook Inlet beluga whale

critical habitat be identified and that no commercial activity/

development occur within 5 miles of critical habitat areas.

Response: NMFS has recommended to the State of Alaska that areas

within 5 miles of several rivers entering the upper Inlet, which are

known areas of beluga concentrations, be deleted from the proposed Cook

Inlet Oil and Gas Lease Sale. Further, as a depleted stock, NMFS may

develop or implement conservation or management measures to alleviate

any impacts on areas of ecological significance to that stock of marine

mammal. Under section 112 (e) of the MMPA, such measures shall be

developed and implemented after consultation with the Marine Mammal

Commission and the appropriate Federal agencies after notice and

opportunity for public comment.

If the stock were to be listed under the ESA, section 4 of that act

requires the Secretary to designate any habitat considered to be

critical habitat. Section 7 of the ESA also requires Federal action

agencies to consult with NMFS or the U.S. Fish and Wildlife Service

whenever any activity which they conduct, permit, or fund may affect a

species listed under that act.

Therefore, under either act, there are consultation provisions to

address activities that may affect beluga whale habitat throughout Cook

Inlet provided that the stocks are either depleted (MMPA), or

endangered or threatened (ESA).

The Depleted Determination

e U.S. Fish and Wildlife Service

whenever any activity which they conduct, permit, or fund may affect a

species listed under that act.

Therefore, under either act, there are consultation provisions to

address activities that may affect beluga whale habitat throughout Cook

Inlet provided that the stocks are either depleted (MMPA), or

endangered or threatened (ESA).

The Depleted Determination

Section 3 of the MMPA (16 U.S.C. 1362(1)) defines the term

''depleted'' as meaning any case in which

(A) the Secretary, after consultation with the Marine Mammal

Commission and the Committee of Scientific Advisors on Marine Mammals*

* * determines that a species or population stock is below its optimum

sustainable population (OSP); or

(B) a state, to which authority for the conservation and management

of a species or population stock is transferred* * * determines that

such species or stock is below its OSP; or

(C) a species or population stock is listed as an endangered

species or a threatened species under the Endangered Species Act of

1973.

Section 3 of the MMPA defines OSP as: with respect to any

population stock, the number of animals which will result in the

maximum productivity of the population or the species, keeping in mind

the optimum carrying capacity of the habitat and the health of the

ecosystem of which they form a constituent element.

NMFS regulations at 50 CFR 216.3 define OSP as: a population size

which falls within a range from the population level of a given species

or stock which is the largest supportable within the ecosystem (K) to

the population level that results in maximum net productivity (MNPL).

Maximum net productivity is the greatest net annual increment in

population numbers or biomass resulting from additions to the

population due to reproduction and/or losses due to natural mortality

ithin a range from the population level of a given species

or stock which is the largest supportable within the ecosystem (K) to

the population level that results in maximum net productivity (MNPL).

Maximum net productivity is the greatest net annual increment in

population numbers or biomass resulting from additions to the

population due to reproduction and/or losses due to natural mortality.

Historically, MNPL has been expressed as a range of values

(generally 50-70 percent of K) determined theoretically by estimating

what size stock in relation to the original stock size will produce the

maximum net increase in population (42 FR 12010, March 1, 1977). In

1977, the midpoint of this range was used to determine if a stock was

depleted (42 FR 64548, December 27, 1977). The 60-percent value was

supported in the final rule governing the taking of marine mammals

incidental to commercial fishing operations (45 FR 72178, October 31,

1980).

Determination of ``Population Stock'' or ``Stock'' Under the MMPA

To designate the Cook Inlet population of beluga whales as a

depleted stock under the MMPA, it must qualify as a ``population

stock'' or ``stock''. Section 3(11) of the MMPA defines ``population

stock'' or ``stock'' as a group of marine mammals of the same species

or smaller taxa in a common spatial arrangement that interbreed when

mature. Although this definition is in part a legal concept, stocks,

species, and populations are biological concepts that must be defined

on the basis of the best scientific data available.

NMFS has considered several lines of evidence regarding the

population structure of Cook Inlet beluga whales.

Distribution of Beluga Whales Within Cook Inlet

mmon spatial arrangement that interbreed when

mature. Although this definition is in part a legal concept, stocks,

species, and populations are biological concepts that must be defined

on the basis of the best scientific data available.

NMFS has considered several lines of evidence regarding the

population structure of Cook Inlet beluga whales.

Distribution of Beluga Whales Within Cook Inlet

The summer or open water distribution of Cook Inlet beluga whales

is considered to be largely confined to waters of Cook Inlet (Laidre et

al. 1999). Analysis of aerial surveys for beluga whales and other

survey data for the northern Gulf of Alaska suggests no large,

persistent groups of beluga whales exists other than in Cook Inlet.

This distribution pattern is consistent with western and Arctic beluga

whale stocks in Alaska, which are highly philopatric to discrete

coastal summering areas. Additionally, the Cook Inlet area is

physically separated from the remaining four Alaskan beluga whale

stocks by the Alaskan Peninsula, which may act as a partial barrier

restricting movement between stocks.

Genetic profiles have been obtained from approximately 470 beluga

whales in Alaska and Canada, including 64 animals from Cook Inlet.

Mitochondrial DNA analysis of these animals found the Cook Inlet,

Bristol Bay, eastern Chukchi Sea, eastern Bering Sea, and Beaufort Sea

beluga stocks are all significantly different from each other (O'Corry-

Crowe and Dizon, 1999). Of these, the Cook Inlet whales were found to

be the most distinct.

Based on the best available information, NMFS has determined that

beluga whales in Cook Inlet are a population stock or stock as defined

by the MMPA.

Summary of Factors Supporting a Depleted Determination

ing Sea, and Beaufort Sea

beluga stocks are all significantly different from each other (O'Corry-

Crowe and Dizon, 1999). Of these, the Cook Inlet whales were found to

be the most distinct.

Based on the best available information, NMFS has determined that

beluga whales in Cook Inlet are a population stock or stock as defined

by the MMPA.

Summary of Factors Supporting a Depleted Determination

Aerial Surveys: Surveys of beluga whales in Cook Inlet, Alaska,

were flown during June/July of 1993-98. The surveys provided a thorough

coverage of the 1,388 kilometer (km) coastal area of the inlet and have

included up to 1,500 km of offshore transects. Coastal transects were

flown 1.4 km (0.7 nm) from the tideline, covering most of the area

within 3 km of shore. Therefore, 100 percent of the coastal areas were

surveyed most years and, along with offshore transects, systematic

surveys encompassed 13-29 percent of the entire Inlet.

Nearly all of the beluga whales seen in Cook Inlet in June/July

were concentrated in a few dense groups in shallow areas near river

mouths. The largest concentration (generally 120-300 whales by aerial

count) has been located in the northern portion of upper Cook Inlet, in

the Susitna River delta or Knik Arm. Another group (10-50 whales) has

been consistently found between Chickaloon River and Point Possession.

Smaller groups (generally min estimate is 273 and Nbest =347. Monte

Carlo simulations indicate a 71-percent probability that a 40-percent

decline occurred between the June 1998 abundance survey of the Cook

Inlet stock of beluga whales and the June 1994 survey.

sitna River delta or Knik Arm. Another group (10-50 whales) has

been consistently found between Chickaloon River and Point Possession.

Smaller groups (generally min estimate is 273 and Nbest =347. Monte

Carlo simulations indicate a 71-percent probability that a 40-percent

decline occurred between the June 1998 abundance survey of the Cook

Inlet stock of beluga whales and the June 1994 survey.

Table 1. Estimated Abundance of Beluga Whales in Cook Inlet, Alaska

(The CV of each estimate is in parentheses.)

----------------------------------------------------------------------------------------------------------------

Section 1994 1995 1996 1997 1998

----------------------------------------------------------------------------------------------------------------

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

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

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

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

----------------------------------------------------------------------------------------------------------------

Depleted Determination Summary

NMFS regulations at 50 CFR 216.3 define OSP as a population size

that falls within a range from the population level of a given species

or stock, which is the largest supportable within the ecosystem (K), to

the population level that results in maximum net productivity (MNPL).

Maximum net productivity is the greatest net annual increment in

population numbers or biomass resulting from additions to the

lations at 50 CFR 216.3 define OSP as a population size

that falls within a range from the population level of a given species

or stock, which is the largest supportable within the ecosystem (K), to

the population level that results in maximum net productivity (MNPL).

Maximum net productivity is the greatest net annual increment in

population numbers or biomass resulting from additions to the

population due to reproduction and/or losses due to natural mortality.

NMFS has adopted by regulation that MNPL is at 60-percent of K (42 FR

64548). Thus, assuming K was at the 1994 abundance level, a 71-percent

probability exists that the Cook Inlet stock of beluga whales was below

OSP as of June, 1998, and, therefore, qualifies as a depleted stock

under the MMPA.

The support for a depleted determination is strengthened by the

fact that K was assumed to be the highest of the NMFS's abundance

estimates, in this case the 1994 estimate of 653 animals. The actual

carrying capacity of Cook Inlet is probably higher than this number

based on previous counts and anecdotal estimates of greater than 1,000

animals prior to 1980. Further, because Native subsistence harvest had

occurred throughout the 1980s and 1990s, the 1994 abundance estimate

likely reflected a population that had already been significantly

exploited. Additionally, the 1998 abundance estimate occurred midway in

the harvest season. NMFS documented seven belugas being harvested after

the June 1998 survey. These removals, along with whales struck but lost

during this time, suggest the actual abundance estimate may be lower

than 347.

Finally, traditional knowledge and observations of Alaskan Natives

also provide an historical perspective on abundance. Alaskan Natives

have reported the Cook Inlet stock comprised an estimated 1,000 whales

as recently as the 1980s. Were this figure to be used for the carrying

capacity (K), the stock would be at 35 percent of K, significantly

below OSP

, Anchorage,

Alaska.

References

Laidre, K.L., K.E. Shelden, B.A. Mahoney, and D.J. Rugh. 1999.

Distribution of beluga whales and survey effort in the Gulf of Alaska.

O'Corry Crowe, G. and A.E. Dizon. 1999. Molecular genetic analysis

of beluga whale, Delphinapterus leucas, population structure and

movement patterns in Alaska and Canada with special reference to Cook

Inlet.

Classification

This rule is not subject to review under Executive Order 12866.

Depletion designations under the MMPA are similar to ESA listing

decisions, which are exempt from the requirement to prepare an

environmental assessment or environmental impact statement under the

National Environmental Policy Act. See NOAA Administrative Order 216-

6.03(e)(1). Depletion designations under the MMPA are required to be

based solely on the best scientific information available. NMFS has

determined that the proposed depletion designation of this stock under

the MMPA is exempt from the requirements of the National Environmental

Policy Act of 1969, and an Environmental Assessment or Environmental

Impact Statement is not required.

Based on the requirement that depletion designations be based

solely on the best scientific information available, the analytical

requirements of the Regulatory Flexibility Act do not apply.

Notwithstanding this, the Assistant General Counsel for Regulation for

the Department of Commerce certified to the Chief Counsel for Advocacy,

Small Business Administration, that if the Cook Inlet, Alaska, stock of

beluga whales is designated as depleted as proposed, the designation

will not have a significant economic impact on a substantial number of

small entities within the meaning of the Regulatory Flexibility Act.

The proposed designation is in response to the stock's recent decline.

The MMPA prohibits the harvest of marine mammals, including Cook Inlet

beluga whales, with a limited exemption for subsistence hunting by

Alaska Natives

d as proposed, the designation

will not have a significant economic impact on a substantial number of

small entities within the meaning of the Regulatory Flexibility Act.

The proposed designation is in response to the stock's recent decline.

The MMPA prohibits the harvest of marine mammals, including Cook Inlet

beluga whales, with a limited exemption for subsistence hunting by

Alaska Natives. Accordingly, the designation will have no economic

impact on small entities within the meaning of the Regulatory

Flexibility Act.

This rule does not contain a collection-of-information requirement

for purposes of the Paperwork Reduction Act of 1980.

This rule does not contain policies with federalism implications

sufficient to warrant preparation of a federalism assessment under E.O.

13132.

List of Subjects in 50 CFR Part 216

Exports, Imports, Marine mammals, Transportation.

Dated: October 8, 1999.

Andrew. A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 216 is

proposed to be amended as follows:

PART 216-REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

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

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

Sec. 216.15 Depleted species.

* * * * *

(g) Beluga whale (Delphinapterus leucas), Cook Inlet, Alaska stock.

The stock includes all beluga whales occurring in waters of Cook Inlet

north of 59 deg. N. lat. including, but not limited to, waters of

Kachemak Bay, Kamishak Bay, Chinitna Bay, Tuxedni Bay and freshwater

tributaries to these waters.

[FR Doc. 99-27169 Filed 10-18-99; 8:45 am]

BILLING CODE 3510-22-F