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Designating the Cook Inlet, Alaska, Stock of Beluga Whale as Depleted Under the Marine Mammal Protection Act (MMPA)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 31, 2000 (Volume 65, Number 105)]
[Rules and Regulations]
[Page 34590-34597]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31my00-6]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 990922260-0141-02; I.D. 083199E]
RIN 0648-AM84
Designating the Cook Inlet, Alaska, Stock of Beluga Whale as
Depleted Under the Marine Mammal Protection Act (MMPA)
AGENCY: National Marine Fisheries Service (NMFS), NOAA, Commerce.
ACTION: Final rule, response to comments.
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SUMMARY: Based upon the available information regarding the status of
the Cook Inlet stock of beluga whales, NMFS has determined that the
Cook Inlet stock of beluga whales is below its Optimum Sustainable
Population (OSP) levels and, therefore, is depleted as defined in the
MMPA. This action is a step in the process under the MMPA 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 to
promote recovery of the stock of beluga whales.
DATES: Effective June 30, 2000.
FOR FURTHER INFORMATION CONTACT: Michael Payne, NOAA/NMFS, Alaska
Region, (907) 586-7235, Barbara Mahoney, NOAA/NMFS, Alaska Region,
Anchorage Field Office, (907) 271-5006, or Thomas Eagle, Office of
Protected Resources, (301) 713-2322, ext. 105.
SUPPLEMENTARY INFORMATION:
Background
Section 3(1) of the MMPA (16 U.S.C. 1362(1))defines the term,
``depletion'' or ``depleted'', as
* * *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.
(B) A state, to which authority for the conservation and
management of a species or population stock is transferred * *
*determines that such species or population stock is below its
optimum sustainable population.
(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(9) of the MMPA (16 U.S.C. 1362(9)) further 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 carrying capacity (K) of the habitat and
the health of the ecosystem of which they form a constituent element.''
NMFS regulations at 50 CFR 216.3 clarify the definition of OSP as a
population size that falls within a range from the population level of
a given species or stock that is the largest supportable within the
ecosystem (K) to its maximum net productivity level (MNPL). Maximum net
productivity is the greatest net annual increment in population numbers
or biomass resulting from additions to the population from
reproduction, less losses due to natural mortality.
Section 2 of the MMPA (13 U.S.C. 1361) states that marine species,
populations and/or stocks should not be permitted to fall below their
OSP level. Historically, MNPL has been expressed as a range of values
(generally 50 to 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, 1 March
1977). In 1977, the midpoint of this range (60 percent) was used to
determine whether dolphin stocks in the eastern tropical Pacific Ocean
were depleted (42 FR 64548, 27 December 1977). The 60-percent value was
included in the final rule governing the taking of marine mammals
incidental to commercial fishing operations (45 FR 72178, 31 October
1980).
On November 19, 1998, NMFS initiated a Status Review of the Cook
Inlet beluga whale stock (63 FR 64228). The comment period on the
status
[[Page 34591]]
review extended from November 19, 1998, through January 19, 1999, and
was initiated at the same time that workshops were being convened to
review beluga whale stocks throughout Alaska. The workshops were held
by the Alaska Beluga Whale Committee (November 16-17, 1998) and the
Alaska Scientific Review Group (November 18-20, 1998), a body
established under the MMPA to provide scientific advice to NMFS and the
U.S. Fish and Wildlife Service. Additionally, NMFS received a petition
from the State of Alaska on January 21, 1999, to designate this stock
as depleted under the MMPA.
NMFS also received two petitions, one on March 3, 1999, and another
on March 10, 1999, to list Cook Inlet beluga whales as endangered under
the Endangered Species Act (ESA). One petition requested emergency
listing under section 4(b)(7) of the ESA and designation of critical
habitat. Both petitions requested immediate action to implement
regulations for the subsistence harvest. This notice addresses neither
these petitions nor comments received relating solely to the possible
ESA listing. NMFS determined that the petitioned actions may be
warranted (64 FR 17347, April 9, 1999), but no determination on whether
listing this stock as a threatened or endangered species under the ESA
has been made at this time.
To further ensure that the status review was comprehensive and
based on the best available scientific data, the comment period was
followed by a NMFS-sponsored workshop on March 8-9, 1999, that provided
a review of relevant scientific information on this stock. At this
workshop, NMFS received additional public comments and recommendations.
The proceedings and abstracts of presentations from this workshop are
available (NMFS, 1999).
Following a review of public comments and of the available
information presented at the workshops, NMFS published a proposed rule
to designate the Cook Inlet stock of beluga whales as depleted (64 FR
56298, 19 October 1999) and allowed a 60-day comment period, which was
later extended until January 19, 2000. NMFS also conducted a public
hearing on November 22, 1999, on the proposed designation of the Cook
Inlet stock of beluga whales as depleted under the MMPA.
NMFS received 800 letters from the public during the comment period
on the proposed rule. Many letters contained comments regarding a
finding under the ESA; however, comments and responses in this notice
are limited only to those related to the depletion designation under
the MMPA.
Comments and Responses
Comment 1: Many comments (783) concurred with NMFS' decision to
designate the Cook Inlet beluga whale stock as depleted under the MMPA.
Many commenters further recommended that NMFS proceed immediately in
listing the stock as endangered under the ESA and in designating
critical habitat.
Response: With regard to the depleted determination, NMFS concurs
with the comment. The Cook Inlet beluga whale stock is below OSP and,
therefore, depleted under the MMPA. This final rule designates the
stock as depleted. No final determination has been made under the ESA
at this time.
Comment 2: Seven commenters supported a depleted designation only,
and five would add their support only if it is necessary to help
regulate a hunt under a co-management agreement with Alaska Native
organizations and until the population recovers.
Response: NMFS has determined that the stock is below its OSP;
therefore, the stock meets the definition of depleted under the MMPA.
NMFS is designating the stock as depleted. The MMPA provides that,
while the Alaska Native subsistence harvest is generally exempt from
its provisions, the Federal government can restrict subsistence
harvests of populations or stocks that are depleted.
Comment 3: Ten commenters were opposed to designating the Cook
Inlet beluga whale as depleted under the MMPA or threatened or
endangered under the ESA.
Response: Because the stock meets the definition of depleted under
the MMPA, NMFS must designate the stock as depleted and begin
developing conservation and management strategies for the stock's
recovery.
Comment 4: Two commenters stated that NMFS has the authority and
responsibility to manage the beluga harvest in Cook Inlet without
listing the stock under either the MMPA or the ESA.
Response: NMFS recognizes its responsibility to conserve all stocks
of marine mammals regardless of their status; however, the MMPA
establishes a specific procedure for the Federal government to regulate
subsistence harvest, which has been identified as the major factor
responsible for the decline of the stock, once a stock is designated as
depleted.
Comment 5: Four commenters urged NMFS to expeditiously enter into a
co-management agreement for the beluga harvest, and three of these
stated that this should be the ultimate application of the depleted
listing.
Response: NMFS is pursuing a co-management agreement for the
conservation of Cook Inlet beluga and the management of the beluga
harvest. The depletion finding is a necessary component of an effective
co-management agreement because enforceable harvest restrictions are
dependent upon a depleted determination.
Comment 6: Three commenters urged NMFS to enter into a co-
management agreement with the Cook Inlet Marine Mammal Council (CIMMC).
Response: During 1999, NMFS engaged in negotiations with CIMMC for
the management of the beluga harvest. Although these negotiations have
not yet produced an agreement, NMFS plans to continue to work with
CIMMC to complete an enforceable co-management agreement to conserve
the stock and co-manage subsistence use.
Comment 7: One commenter noted NMFS failure to enter into a co-
management agreement and stated that NMFS should give the co-management
process a chance before making a depleted determination.
Response: NMFS will continue to negotiate with Alaska Native
organizations to enter a co-management agreement to promote recovery of
the stock. Please see response to comment 5.
Comment 8: One commenter stated that NMFS refused CIMMC's attempts
to negotiate a co-management agreement.
Response: NMFS has not refused CIMMC's attempts to negotiate a co-
management agreement. NMFS and CIMMC met in January 1997 to discuss a
draft co-management agreement that CIMMC had prepared. During this
meeting, NMFS and CIMMC discussed limitations on authority to restrict
the harvest of Cook Inlet beluga and agreed that negotiations on stock
or area-specific agreements should be postponed until after NMFS and
the Indigenous Peoples' Council for Marine Mammals completed an
umbrella co-management agreement. Since then, NMFS and CIMMC have held
several discussions to promote conservation of Cook Inlet beluga,
including those that resulted in NMFS's contracting with CIMMC to
provide an estimate of annual harvest; however, these discussions have
not yet produced an agreement on the harvest of Cook Inlet beluga.
Comment 9: One commenter urged NMFS to promulgate regulations to
control the harvest before the Congressional moratorium expires in
September of 2000.
[[Page 34592]]
Response: This final rule is the first step in promulgating such
regulations. NMFS intends to consult closely with affected Alaska
Native organizations in preparing such regulations to avoid
misunderstanding that could slow their completion. Regulations to
restrict subsistence harvest of marine mammals cannot be completed
until a formal rulemaking hearing has been held in accordance with
section 103(d) of the MMPA.
Comment 10: One commenter asked why NMFS has not proposed new
emergency policies or enforcement strategies to protect Cook Inlet
beluga.
Response: The MMPA and ESA establish a specific regulatory process
for limiting subsistence harvest, and neither statute includes
emergency provisions to eliminate portions of the process. No cause
other than the subsistence harvest has been directly linked to the
decline; therefore, other emergency polices, strategies, or actions
would not likely promote recovery. Special legislation has protected
Cook Inlet beluga whales from subsistence harvest since May 21, 1999.
This final rule is the first step in promulgating regulations governing
the subsistence harvest when the special legislation expires on October
1, 2000.
Comment 11: One commenter stated that beluga hunting should be
limited to personal and family subsistence needs, and two others
suggested that NMFS prohibit the sale of beluga products.
Response: The MMPA has specific provisions related to
Alaska Native use of marine mammals for subsistence or handicraft
purposes, and these include a limited sale of edible products within
Alaska Native villages or for Native consumption.
Comment 12: One commenter stated that the MMPA does not permit the
wasteful taking or the primarily commercial harvest of beluga. Further,
Congress intended that NMFS regulate any commercial sale beyond that
which constitutes a limited cash economy.
Response: Comment noted.
Comment 13: One commenter urged NMFS to use its full authority
under the MMPA to implement protective measures on areas of ecological
significance to beluga.
Response: The MMPA allows NMFS to implement conservation or
management measures to alleviate impacts on rookeries, mating grounds,
or other areas of similar significance to marine mammals where it can
be demonstrated that the impacts may be causing a decline or impeding
recovery of a strategic stock. Other than subsistence harvest, NMFS has
not identified impacts that are having such an effect on the stock.
Comment 14: Five commenters asked NMFS to publish clearly defined
criteria for delisting beluga.
Response: Although delisting is an action under the ESA, NMFS
interprets the comment to mean criteria for determining the stock has
recovered from depletion. The criterion for determining that the stock
has recovered would be that the stock is no longer below the lower
bound of its OSP.
Comment 15: Many commenters stated that Cook Inlet beluga face
threats from anthropogenic sources, urged NMFS to evaluate the possible
effects of these activities on beluga in Cook Inlet, and suggested that
NMFS consider any impacts in a conservation plan. These commenters
cited a variety of threats, including the following: contaminants
(toxins such as PCBs, pesticides, heavy metals, hydrocarbons); oil and
gas development with associated seismic activity, drilling and
refineries; chemical plants; noise pollution (Anchorage Airport); mass
strandings; commercial fishery interactions (entanglements) and food
competition; shipping/vessel traffic; urban runoff/non-point source
pollution; municipal wastewater/sewage discharges; recreational and
commercial (whale watching) boat traffic/personal water craft; killer
whale predation; forestry activities/logging; fish farms; dredging; and
development.
Response: NMFS is currently preparing a draft Environmental Impact
Statement (DEIS) that reviews the impacts of a range of anthropogenic
activities on Cook Inlet beluga. This DEIS will also evaluate the
impacts of subsistence harvest on the beluga whale recovery. A
conservation plan will be prepared unless it would not promote the
conservation of the stock.
Comment 16: Two commenters stated that pollutants or commercial and
industrial activities are not a factor in the ``alleged'' decline of
Cook Inlet beluga.
Response: These factors will be evaluated within the DEIS.
Comment 17: Two commenters stated that water and sediment studies
demonstrate that the oil and gas industry is not contaminating Cook
Inlet. Additional studies show that oil and gas activities are not
influencing the distribution of beluga in the inlet.
Response: Comment noted.
Comment 18: Four commenters stated that data from the municipality
of Anchorage water monitoring and other water quality studies show no
impact to Cook Inlet from industrial activities. Further, Federal and
state studies have demonstrated that pollution is not a factor in the
beluga decline.
Response: Comment noted.
Comment 19: One commenter stated that local, state and Federal
studies have demonstrated that industrial activity is not a detriment
to Cook Inlet beluga.
Response: Comment noted.
Comment 20: Several commenters expressed concern that a depleted
designation would restrict commercial and industrial activity in Cook
Inlet, with widespread economic repercussions.
Response: A depleted designation does not, in itself, mandate any
restrictions on these or any other activities within the Cook Inlet
region. Rather, it formally recognizes that the stock is below its OSP.
Comment 21: One commenter stated that, although NMFS presumes that
the subsistence harvest is the cause of the beluga decline, no research
has been conducted on the impacts to beluga from oil and gas
discharges, sewage discharges, or non-point source runoff on beluga.
Response: Although NMFS has not initiated research specifically to
determine whether or not these factors were affecting the stock, the
Status Review (NMFS, 1999) examined existing information and indicated
that habitat modification related to these activities could not account
for the decline in the stock. Details of this analysis are included in
the DEIS.
Comment 22: One commenter stated that the entire decline of beluga
in Cook Inlet cannot be attributed to subsistence harvest alone; other
factors need to be evaluated.
Response: The information included in the Status Review clearly
shows that the harvest from 1994 through 1998, the period when reliable
abundance estimates were available, was sufficient to account for the
decline.
Comment 23: One commenter stated that Cook Inlet is the only U.S.
drilling area exempt from regulations prohibiting the dumping of
certain toxins and heavy metals.
Response: Comment noted.
Comment 24: One commenter recommended that NMFS refine its capacity
to adequately assess and diagnose declines in the Cook Inlet beluga
whale population.
Response: Since 1994, when NMFS first became aware that mortality
of Cook Inlet beluga was exceeding sustainable levels, NMFS directed
substantial resources into scientific research assessing the trend of
the stock, determining stock boundaries, and estimating annual
mortality. The resulting program produced a series of
[[Page 34593]]
abundance estimates from 1994 through 1998, and these estimates have
met scientific scrutiny. Reviews of these NMFS projects have been
conducted through the peer-review process inherent in completing
scientific publications and through comments received from annual
meetings of the Alaska Scientific Review Group (which was established
specifically to provide a critical review of NMFS research). Aerial
surveys are conducted under standardized protocols, which were
established in 1994. These protocols allow reliable inter-year
comparisons of estimates. Analytical procedures were improved during
the period from 1994 to 1998, and these improvements were applied to
all of the abundance estimates from 1994 to 1999 to maintain
consistence when trends in abundance are estimated. Thus, NMFS has,
indeed, improved its capacity to assess this stock.
Comment 25: One commenter stated that NMFS must take the time to
improve the quality of the science before considering any listing of
this species.
Response: NMFS interpreted the phrase ``any listing'' in this
comment and any subsequent comment to mean a listing as threatened or
endangered under the ESA or a designation as depleted under the MMPA.
The MMPA requires that NMFS base its determination on the best
available scientific information. The scientific basis for the
determination is discussed in the response to comment 24, and it is
clearly sufficient to determine that the stock is below its OSP and,
therefore, is depleted.
Comment 26: One commenter stated that data on beluga are scarce and
derived from questionable methodologies and that a listing
determination should be delayed until better data can be obtained.
Response: NMFS disagrees that the existing data are inadequate to
be used as a basis for the depleted determination. The data from 1994
through 1998 indicate a high probability that the stock has declined
below its OSP. Furthermore, the limited information from the 1960s
through the 1980s suggest the actual historical abundance exceeded the
estimate from 1994, and the stock is even farther below its OSP than
the data from 1994 through 1999 indicate.
Comment 27: One commenter stated that NMFS is currently relying on
ineffective and inadequate methods for assessing the beluga population.
Response: See previous response to comment 24.
Comment 28: One commenter noted that the 1998 draft abundance
estimate was revised abruptly to a level far lower than the original
and that a critical analysis of the new estimate was not made available
for public scientific review.
Response: The 1998 abundance estimate was revised after analyses of
the survey data from 1994 through 1998 were completed. These revised
estimates have been thoroughly reviewed in the scientific community and
constitute the best available scientific information.
Comment 29: One commenter asserted that, since previous
(historical) uncorrected counts of Cook Inlet Beluga have ranged
between 300 to 500 whales, NMFS should base OSP at 500 animals rather
than at 1,000 animals, the agency's current use for OSP.
Response: Uncorrected counts are not an accurate estimate of
population abundance because they fail to include estimates of animals
that were present but not counted during surveys, such as animals that
are below the surface at the time of the count. Such estimates of
animals present but not counted are commonly used in the scientific
literature and are accepted statistical practices for making
conservation or management decisions.
Uncorrected counts are valuable for assessing population trends,
and those available for the Cook Inlet beluga population show variation
but no specific trend prior to the 1994-1999 surveys. Therefore, NMFS
concluded that the abundance was relatively stable during the period
for which the Alaska Department of Fish and Game conducted its surveys.
Comment 30: Two commenters stated that a new abundance estimate
formula was used on the uncorrected (raw) counts from each year
resulting in a percentage decline ranging from 38 percent to 62 percent
between 1994 and 1998 depending upon which analysis (old or new) was
used on the raw count. This new formula should be published and
reviewed before it is used as the basis of any new listing.
Response: See previous response to comment 24 for a discussion of
formulas and survey design for estimating abundance of Cook Inlet
beluga. NMFS used one analytical technique in the initial abundance
estimates (e.g., 1994) and reported these estimates. By 1998, NMFS had
improved the analytical technique and used the new technique to re-
analyze all abundance estimates during the period 1994 through 1999.
Such an approach allowed NMFS to make its determination on estimates
that were collected under a standard protocol and analyzed by the same
analytical techniques. The formulas upon which the analytical
techniques were based and the specific application of these analytical
techniques to the 1994 through 1998 beluga surveys has been subjected
to peer review.
Comment 31: Two commenters stated that NMFS has used a number of
different population numbers, including raw counts, abundance
estimates, minimum abundance estimates, and anecdotal accounts in
making listing decisions and that the agency should halt this practice
and choose one value for evaluation.
Response: When making a finding on a stock of marine mammals that
is used for subsistence harvest, NMFS must, by statutory requirement,
ensure that the finding is supported by substantial evidence on the
basis of the record as a whole. Therefore, NMFS has considered all
sources of evidence in evaluating the status of Cook Inlet beluga.
Comment 32: One commenter states that NMFS's population trend data
is imprecise and that beluga in Cook Inlet may not be depleted.
Response: Although the estimates and data upon which they are based
are not perfect, they are sufficient to conclude that the stock is
depleted. As explained in the previous response to comment 24, NMFS
supports the abundance estimates upon which this determination is
based.
Comment 33: One commenter questioned why NMFS used the most recent
population estimate of 347 and not the more conservative figure of 217
beluga whales as its 1998 population estimate.
Response: NMFS scientists counted 193 beluga during its 1998 aerial
survey and 217 during the 1999 survey. These counts are not abundance
estimates. Instead, abundance estimates include calculations for the
number of animals that were not seen during the count but were present
during the survey. Such an approach is a standard statistical practice
and is overwhelmingly supported in the scientific literature. The
abundance estimate from the 1998 surveys is 347 beluga.
Comment 34: One commenter stated that the abundance estimates are
confusing and questionable.
Response: NMFS understands that statistical procedures used in
abundance estimates are often complex; however, they provide the best
available scientific information.
Comment 35: One commenter stated that the data and conclusions do
not match when applying NMFS harvest figures against NMFS population
estimates.
[[Page 34594]]
Response: The relationship between the harvest and the population
trend is within the margins of error for the estimates.
Comment 36: One commenter stated that more research is needed on
food resource availability for beluga especially in regard to the
Susitna River salmon stocks.
Response: Comment noted.
Comment 37: Two commenters suggested that NMFS establish a research
protocol for the Cook Inlet beluga that involves an advisory committee
of Federal and state agencies, CIMMC, oil and gas industry, fishing,
transportation, municipality, tourism, and environmental groups.
Response: Comment noted. NMFS also notes that the Alaska Scientific
Review Group was established specifically to review and advise NMFS on
research protocols and other scientific matters on marine mammals in
Alaska. Although the Review Group does not include representatives from
all the entities suggested in the comment, its meetings and workshops
are open to the public.
Comment 38: One commenter stated that NMFS should take the time to
improve the quality of its data before making any listing decisions.
Response: See response to comments 24 through 35.
Comment 39: One commenter stated that NMFS should direct resources
for the collection of more biological data on beluga, including data to
estimate life history parameters.
Response: Comment noted.
Comment 40: One commenter stated that more research is needed to
determine where Cook Inlet beluga go during the winter months.
Response: Such information would improve our understanding of Cook
Inlet beluga; however, winter distribution likely has little effect on
the size and trend of the breeding population that is found in Cook
Inlet. This comment, however, did cause NMFS to realize that the
proposed rule would have included individuals from the stock only when
they were in Cook Inlet. NMFS realizes that beluga may leave the
confines of Cook Inlet during the winter and perhaps at other times
during the year. To correct this oversight, NMFS has revised the final
rule to modify the definition of the stock so that Cook Inlet beluga
are included when they are outside of the inlet.
Comment 41: One commenter stated that NMFS needs to conduct
additional DNA studies of beluga in Cook Inlet and Bristol Bay, as well
as DNA studies of other whales sighted in Prince William Sound to
determine whether the Cook Inlet Beluga population is isolated and
unique.
Response: The models used to distinguish between aggregations of
animals are very sensitive to animals moving between areas; thus, if
more than a handful of individuals dispersed between the groups during
an entire generation, the models would not distinguish them as
separate. The existing data support a significant difference among all
5 stocks of beluga in Alaska, and the Cook Inlet stock is the most
distinct. Given these findings, additional information is not likely to
add meaningfully to the question of whether or not the stocks are
distinct. Beluga occurrence in Prince William Sound is too rare to
justify a dedicated sampling effort, but, when one or more beluga are
seen there, NMFS will attempt to obtain tissue samples for genetic
analysis as the opportunity arises.
Comment 42: One commenter stated that a better method for counting
beluga whales needs to be developed and more aerial surveys of Cook
Inlet beluga need to be performed in the summer months.
Response: Comment noted. NMFS plans to continue aerial surveys of
Cook Inlet beluga in the late spring and early summer.
Comment 43: One commenter stated that limited food supplies might
be affecting beluga health in Cook Inlet and that reports indicated
that the beluga appeared thin.
Response: Comment noted.
Comment 44: Two commenters offered assistance to NMFS to improve
assessment methods and provide practical, enhanced data collection
methods.
Response: NMFS appreciates offers of assistance. Currently, NMFS is
satisfied with its beluga assessment methods; however, NMFS staff are
open to new ideas to improve assessment or conduct the assessments more
efficiently.
Comment 45: One commenter stated that the extensive subsistence
harvest is to blame for the decline in beluga.
Response: Comment noted.
Comment 46: One commenter expressed concern over the impact the
depleted listing will have on their subsistence way of life.
Response: NMFS recognizes that subsistence harvests are important
to Alaska Native culture and supports the provisions of the MMPA that
enable such harvests to continue. Conservation measures may restrict
harvest of the stock temporarily; however, the lack of conservation
measures could lead to a continued decline or extirpation of the stock,
which would have a profound and long-term effect on local subsistence
harvest. Furthermore, NMFS does not intend to promulgate conservation
measures unilaterally. Rather, NMFS intends to work with the local
Alaska Native community through the co-management process to design
conservation measures that would sustain the beluga population for
subsistence use by future generations.
Comment 47: One commenter stated that tribal knowledge should be
used to determine OSP and that the tribes should collect and analyze
this data.
Response: NMFS welcomes information based upon tribal knowledge to
be presented for use in conservation decisions. Tribal knowledge would
be incorporated into the entire body of evidence supporting management
decisions. NMFS, however, is directed to use the best available
scientific information in making findings under the MMPA and would have
to follow this direction in its decisions.
Comment 48: One commenter stated that NMFS cites Traditional
Knowledge for its K in determining OSP, yet the agency does not
adequately consider Traditional Knowledge when identifying the cause of
the beluga decline and the appropriate remedies. The commenter noted
that it is not appropriate for NMFS to use Traditional Knowledge to
support one point while failing to consider it in other regards.
Response: NMFS considered all information available in making the
depletion finding. The tangible evidence for historical abundance of
Cook Inlet beluga is sparse and not well documented, and NMFS concluded
that the historical abundance, which is used as an estimate of K, is
unknown. Several lines of evidence, including observations by Alaska
Natives and weakly-supported abundance estimates, were considered to
estimate historical abundance.
For the purposes of the depletion finding, assigning the cause of
the decline is of less importance than establishing whether the
population is below its OSP. Addressing the cause or causes of the
decline will be more critical in designing and implementing
conservation measures to promote recovery of the stock. NMFS will give
due consideration to all sources of information and intends to work
closely with the affected Alaska Native community, as well as with
other affected constituents, in identifying and designing appropriate
conservation measures.
Comment 49: One commenter stated that NMFS has acknowledged that
many hunters do not belong to organized native organizations and that
they have
[[Page 34595]]
not been cooperative about reducing the harvest of beluga.
Response: NMFS agrees that voluntary efforts have not been
effective in limiting harvest to sustainable levels; however, NMFS has
observed an overall cooperative approach to recognizing the problem and
the need to promote recovery.
Comment 50: One commenter stated that NMFS decided to list the
beluga as depleted because of pressure from conservation groups.
Response: NMFS is basing its depleted determination on the basis of
the best available scientific information, as required by the MMPA. The
best available scientific information indicates that the stock is below
its OSP.
Comment 51: One commenter stated that NMFS's review of factors in
the beluga's decline (other than harvest) was cursory. While NMFS's
assumptions may prove to be correct, it appears that NMFS was pressured
by political and commercial entities to downplay the role of
anthropogenic factors in the beluga's decline.
Response: NMFS acknowledges that there is little information
available to evaluate the range of factors (other than harvest) that
may be involved in the decline. Thus, it is not surprising that such an
evaluation appears cursory. NMFS maintains, however, that there is
sufficient information available to conclude that the stock is
depleted.
Comment 52: One commenter advised NMFS that if Cook Inlet and
Bristol Bay beluga are found to co-mingle, the depleted determination
should be revoked.
Response: If NMFS were to learn that individuals from Cook Inlet
and Bristol Bay mix temporarily during the non-breeding seasons, NMFS
would still not have the evidence upon which to conclude that the stock
is no longer depleted. The genetic analyses demonstrate conclusively
that there is insufficient interbreeding among the various stocks of
beluga in Alaska to mask the genetic distinction of each stock or to
have a measurable effect on population status and trends.
Comment 53: One commenter disagreed with NMFS's assertion that the
Cook Inlet stock of beluga is an isolated stock that lives yearround in
the Inlet.
Response: NMFS has not asserted that all members of the stock
remain within the inlet yearround (see response to comment 40). NMFS
has asserted, and continues to assert, that the stock within Cook Inlet
is genetically distinct from other aggregations of beluga in Alaska,
which inhabit areas north of the Aleutian Peninsula.
Comment 54: One commenter expressed a fear that, if NMFS designates
the Cook Inlet beluga whale as depleted, it will regulate the harvest
with little regard for the opinions of Native Alaskan hunters.
Response: NMFS recognizes the importance of beluga whales to the
Cook Inlet communities and will work with local Alaska Natives to
promote recovery of the beluga stock so that a sustainable harvest can
be maintained for future generations.
Comment 55: One commenter stated that the MMPA does not provide
sufficient habitat protection to Cook Inlet beluga.
Response: Comment noted.
Comment 56: One commenter urged NMFS to develop a regional
contingency stranding plan under 16 U.S.C. 1421c(b).
Response: NMFS intends to develop a contingency stranding plan for
the region.
Comment 57: One commenter expressed concern that beluga blubber
from Cook Inlet is a source of significant contaminant exposure for
human subsistence consumers.
Response: Comment noted.
Comment 58: One commenter urged NMFS to conduct studies on beluga
tissue samples to assess the health of the population, determine
contaminant body burdens, and determine the effects of various
pollutants on the Cook Inlet stock of beluga whales.
Response: NMFS has conducted health, contaminant, and life-history
studies on Cook Inlet beluga and intends to continue such studies.
Comment 59: One commenter, concerned about incidental mortality in
fishing operations, suggested that NMFS reclassify fisheries in Cook
Inlet from Category III to Category II fisheries to allow for
additional data collection to assess the fisheries' impact on the
beluga.
Response: These fisheries are currently included in Category III
because NMFS believes they have only a remote likelihood of seriously
injuring marine mammals. Because these fisheries have such a low
mortality rate, NMFS would more likely use its limited resources to
evaluate other mortality factors than to direct them into such an
expensive activity that would likely provide little additional
information.
Comment 60: Three commenters stated that NMFS lacks the data to
determine the level of incidental take in fisheries. They recommended
that NMFS place observers on Category III fishing vessels to determine
the accurate level of incidental take, if any. The commenter insisted
that these actions would help NMFS to better assess incidental take of
beluga and to better understand what is happening to their food supply.
Response: See response to comment 59.
Comment 61: One commenter urged NMFS to expeditiously prepare a
conservation plan under the MMPA for Cook Inlet beluga.
Response: NMFS will prepare a conservation plan as quickly as
limited resources will allow. Initial conservation efforts will not,
however, be delayed until such a plan is final.
Determination of ``Population Stock'' or ``Stock''
To designate the Cook Inlet population of beluga whales as a
depleted stock under the MMPA, it must first qualify as a ``population
stock'' or ``stock''. Based on the best available information as
discussed below, NMFS determined that beluga whales in Cook Inlet are a
population stock or stock as defined by the MMPA.
Section 3(11) of the MMPA defines a 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 interpretation, stocks, species, and
populations are biological concepts that must be defined on the basis
of the best scientific data available.
NMFS considered several lines of evidence regarding the population
structure of Cook Inlet beluga whales in the proposed designation. They
are summarized in the following discussion.
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., In press).
Analysis of aerial surveys for beluga whales and other survey data for
the northern Gulf of Alaska suggests no large, persistent group of
beluga whales exists other than in Cook Inlet. This distribution
pattern is consistent with western and Arctic beluga whale stocks in
Alaska, which regularly return 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 Isolation: Genetic profiles have been obtained from
approximately 470 beluga whales in Alaska and Canada, including 64
animals from Cook Inlet. Mitochondrial DNA analysis of beluga whale
stocks from Cook Inlet, Bristol Bay, eastern Chukchi Sea,
[[Page 34596]]
eastern Bering Sea, and Beaufort Sea indicated that they are all
significantly different from each other (O'Corry-Crowe, et al., 1997).
Of these, the Cook Inlet beluga whales were found to be the most
distinct.
Final Determination under the MMPA
Based on the best available scientific information available as
discussed below, NMFS has determined that the Cook Inlet stock of
beluga whales is below OSP and is, therefore, depleted.
Historical Abundance: The true K, which is the basis for OSP
determinations, for this stock is unknown. Furthermore, reliable
historical abundance estimates, which may be used as a substitute for
K, are not available.
The available evidence for historical abundance prior to the 1994
surveys includes counts from the 1960s through the early 1980s
conducted by the Alaska Department of Fish and Game. These counts
ranged from about 200 to about 500 individuals. Based upon reports from
these counts, Gehringer and Greenwalt (1978) concluded that the
abundance in Cook Inlet was about 500 beluga and that the stock was
considered to be at carrying capacity. More recent information and
evaluation of the data upon which Gehringer and Greenwalt (1978) based
their conclusions show that their conclusions were not correct.
There is a large body of literature on estimating the abundance of
wild animals, including marine mammals. The literature is conclusive
that direct counts are not an accurate estimate of actual abundance
because animals are missed due to a variety of reasons: marine mammals
may be underwater when the aircraft is in the area; wind and water
conditions may be so rough that animals are missed; animals may be so
close to one another that they are counted as one; and some animals
(particularly juveniles) may be so small that they are missed in the
count. To expand counts to an estimate of the actual abundance, the
literature contains a variety of statistical models to estimate the
number of individuals that were in the area, but were not counted
during a survey. These models result in correction factors to expand
direct counts into estimates of abundance.
Calkins (1984) used such a correction factor of 2.7, which was
developed for beluga surveys in Bristol Bay. By applying this
correction factor to his maximum count of 479 beluga in August 1979,
Calkins estimated the abundance to be about 1,300 beluga in Cook Inlet.
NMFS scientists advise that, when a survey includes locating and
counting animals on a single pass in an airplane, the correction factor
may be as high as 3. Thus, Calkins's estimate of about 1,300 beluga in
August 1979 appears reasonable. Furthermore, applying such a correction
factor to other counts by the Alaska Department of Fish and Game
suggests the historical abundance may have been 1,000 or more animals.
Additional evidence also supports an estimate of historical
abundance exceeding 1,000 beluga. NMFS biologists have discussed beluga
biology, distribution, and abundance with experienced Alaska Native
hunters in the Cook Inlet region, and these hunters agreed that there
may have been 1,000 or more beluga in the 1970s and early 1980s.
Huntington (1999) interviewed Alaska Native elders and hunters
regarding their knowledge of Cook Inlet beluga and reported their
observation that fewer Cook Inlet beluga have appeared in upper Cook
Inlet in recent years.
Recent Abundance: More recently, Hobbs et al. (in press) designed a
research program to establish a reliable method to estimate the number
of beluga in Cook Inlet and to provide such estimates of abundance.
Their methods included repeated counts of groups of beluga by multiple
observers and video-taping groups for an extended period to reduce the
number of whales that were missed during the counts. The video, along
with another enlarged image, was used to identify beluga that surfaced
during the counting period and to distinguish between small animals
that may have been counted as a single individual. Their survey design
also used radio-tagged whales to estimate the duration of dives by
individual whales so the abundance estimate could be further corrected
to account for whales that were underwater for the entire period that
the group was counted and video-taped.
Hobbs et al. (in press) flew standardized surveys of beluga whales
in Cook Inlet during June/July of 1994-1999. An aerial survey was also
conducted in 1993; however, the objectives of the 1993 survey were to
establish optimal survey timing and conditions and to refine survey
methods. The data collected in 1993 were insufficient for a reliable
abundance estimate. Abundance estimates derived from their sighting
data declined from 653 in 1994 to 347 in 1998 (Table 1). The 1999
abundance estimate was 357.
Table 1.--Estimated Abundance of Beluga Whales in Cook Inlet, Alaska
--------------------------------------------------------------------------------------------------------------------------------------------------------
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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Numbers in parentheses are the coefficients of variation of each estimate.
Under ideal conditions, NMFS would compare the current population
estimate with the true K and MNPL to make a determination whether a
stock is depleted. However, such conditions do not exist in this case,
and NMFS must make the determination considering the uncertainty that
exists in the available evidence. Therefore, NMFS considered whether
the reliable information available from the standardized surveys from
1994 through 1998 indicated that the population had declined more than
40 percent during that period. If this limited series of abundance
estimates indicated such a decline, the stock would clearly be below
its MNPL and, thus, depleted.
Monte Carlo simulations indicate a 71-percent probability that a
40-percent decline occurred between the June 1994 abundance survey of
the Cook Inlet beluga whales and the June 1998 survey. The support for
a depleted determination is strengthened by the fact that K was assumed
to be the highest of NMFS's abundance estimates, in this case the 1994
estimate of 653 animals. The actual K, as represented by the historical
abundance, of Cook Inlet is probably higher than this number based on
previous counts, discussions with local Native Alaskan hunters, and
[[Page 34597]]
anecdotal estimates of 1,000 or more animals in the early 1980s. Native
subsistence harvest occurred throughout the 1980s and 1990s, which
suggests that the 1994 abundance estimate likely reflected a population
that had already been significantly reduced. If the historical
abundance, thus K, were above 1,000 beluga, then the decline would be
even greater. If K for the stock is more than 1,000, which is likely
the situation, the stock would be less than 35 percent of its
historical abundance, which is far below the MNPL.
References
Calkins, D.G. 1984. Belukha whale. Vol. IX, in Susitna
hydroelectric project; final report; big game studies. Alaska
Department of Fish and Game. Doc. No. 2328.
Gehringer, J.W. and L.A. Greenwalt. 1978. Final Environmental
Impact Statement: Consideration of a waiver of the moratorium and
return of management of certain marine mammals to the State of Alaska,
Vol. 1, summary and text. U.S. Dep0artment of Commerce, NOAA, NMFS and
U.S. Department of the Interior, Fish and Wildlife Service, Washington,
DC.
Hobbs, R.C., D.J. Rugh, and D.P. Demaster. In press. Abundance of
beluga whales, Delphinapterus leucas, in Cook Inlet, Alaska. Marine
Fisheries Review.
Laidre, K.L., K.E.W. Shelden, D.J. Rugh, and B.A. Mahoney. In
press. Distribution of beluga whales and survey effort in the Gulf of
Alaska. Marine Fisheries Review.
National Marine Fisheries Service. 1999. Synthesis of available
information on the Cook Inlet stock of beluga whales. Processed Report
99-06, National Marine Mammal Laboratory, Alaska Fisheries Science
Center, NMFS, December 1999. 22 pp.
O'Corry Crowe, G.M., R.S. Suydam, A. Rosenberg, K.J. Frost, and
A.E. Dizon. 1997. Phylogeography, population structure and dispersal
patterns of the beluga whale Delphinapterus leucas in the western
Nearctic revealed by mitochondrial DNA. Molecular Ecology 6:955-970.
Classification
The Assistant Administrator for Fisheries, NOAA (AA) has determined
that this is not a significant rule under E.O. 12866. The regulations
are not likely to result in (1) an annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, Federal, state, or local government agencies, or
geographic regions; or (3) a significant adverse effect on competition,
employment, investment, productivity, innovation, or on the ability of
U.S.-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
NMFS has determined that the depleted designation of this stock
under the MMPA is excluded from the requirements of the National
Environmental Policy Act of 1969 and that an Environmental Assessment
or Environmental Impact Statement is not required. 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
Administrative practice and procedure, Exports, Imports, Marine
mammals, Transportation.
Dated: May 19, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 216 is 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) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus
leucas). The stock includes all beluga whales occurring in waters of
the Gulf of Alaska north of 58 deg. North latitude including, but not
limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince
William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and
freshwater tributaries to these waters.
[FR Doc. 00-13371 Filed 5-30-00; 8:45 am]
BILLING CODE 3510-22-F