[Federal Register Volume 72, Number 76 (Friday, April 20, 2007)]
[Proposed Rules]
[Pages 19854-19862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7577]
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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.
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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
[[Page 19855]]
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: [email protected]. 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. 9\th\
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 ice-covered 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 south-central 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
[[Page 19856]]
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.
[[Page 19857]]
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[deg] 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 mid- and
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 gender-structured 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
[[Page 19858]]
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
[[Page 19859]]
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 co-management 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
[[Page 19860]]
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, co-management 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
[[Page 19861]]
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.
[[Page 19862]]
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.
Sec. 224.101 [Amended]
2. In Sec. 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