AA^AC A5 Marine Mammal Commission Annual Report to Congress 1991 DOCUMENT LIBRARY Woods Hole Oceanographtc Marine Mammal Commission 1825 Connecticut Avenue, N.W. Washington, D.C. 20009 31 January 1992 Marine Mammal Commission Annual Report to Congress 1991 Os z= n- 1^ ; -D i -H i to ' _D : cO i □ i '-' m CD s m .0': \J>iOO-i^ 0^ Marine Mammal Commission 1825 Connecticut Avenue, N.W. Washington, D.C. 20009 31 January 1992 Table of Contents List of Tables iii Executive Summary v I. Introduction 1 Personnel 1 Funding 1 n. Species of Special Concern 3 West Indian Manatee 3 Hawaiian Monk Seal 15 Steller Sea Lion 24 Harbor Seal in Alaska 31 North Pacific Fur Seal 32 Pacific Walrus 37 Sea Otter 43 Polar Bear 47 Northern Right Whale 51 Humpback Whale 55 Bowhead Whale 61 Gray Whale 66 Killer Whale 69 Gulf of California Harbor Porpoise 70 Harbor Porpoise 73 Bottlenose Dolphin 76 in. Marine Mammal-Fisheries Interactions 79 Interim Exemption for Commercial Fisheries 79 Development of a New Regime to Govern the Incidental Take of Marine Mammals after October 1993 84 The Tuna-Porpoise Issue 92 IV. International Aspects of Marine Mammal Protection and Conservation 109 International Whaling Commission 109 High Seas Driftnet Fisheries 119 Conservation and Protection of Marine Mammals in the Southern Ocean 126 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (The Cartagena Convention) 134 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 136 North Pacific Marine Science Organization (PICES) 137 lUCN— The World Conservation Union, Species Survival Commission, Marine Mammal Specialist Groups 138 V. Marine Mammal Strandings and Die-Offs 141 Unusual Events Occurring in 1991 141 Development of a National Die-Off Response Plan and Improvement of the Regional Stranding Networks 143 Workshop on Release of Rehabilitated and Captive Marine Mammals 146 VI, Impacts of Marine Debris 147 Background 147 The Marine Entanglement Research Program 149 Domestic Regulations for Disposal of Ship-Generated Garbage 150 Annex V of the Convention for the Prevention of Pollution from Ships 150 Vn. Marine Mammal Management in Alaska 155 Species Conservation Plans and Species Reports 155 The Bering Sea and Gulf of Alaska Ecosystems 156 The Exxon Valdez Oil Spill in Prince William Sound 159 Federal Marine Mammal Marking and Tagging Regulations 162 Litigation Related to Marine Mammals in Alaska 162 Vin. Outer Continental Shelf Oil, Gas, and Mineral Development 167 Proposed Offshore Lease Sales 167 Impact of Oil Spills on Arctic Natives 169 Small-Take Exemptions 170 The Minerals Management Service's Environmental Studies Program 175 IX. Research and Studies Program 177 Survey of Federally-Funded Marine Mammal Research 177 Research Program Reviews, Workshops, and Planning Meetings 177 Commission-Sponsored Research and Study Projects 178 X. Permits for Marine Mammal Research, Public Display, and Enhancement 187 Permit Application Review 187 Review of the Permit System 188 Implementation of the 1988 Amendments to the Marine Mammal Protection Act 189 Swim-with-the-Dolphin Programs 190 Feeding Wild Marine Mammals 192 Other Litigation 193 XI. Marine Mammals in Captivity 195 Animal Welfare Act 195 Lacey Act 196 Appendix A: Commission Recommendations: Calendar Year 1991 199 Appendix B: Reports of Commission-Sponsored Activities Available from the National Technical Information Service 213 Appendix C: Selected Literature Published Elsewhere Resulting from Commission-Sponsored Activities 221 n List of Tables Table 1 . Marine Mammal Species and Populations Listed as Endangered or Threatened under the U.S. Endangered Species Act as of 31 December 1991 4 Table 2. Known Manatee Mortality in the Southeastern United States (Excluding Puerto Rico) Reported through the Manatee Salvage and Necropsy Program from 1978 - 1991 5 Table 3. Summary of High Counts of Steller Sea Lions at Rookeries and Haulouts in the United States, Canada, and the Former Soviet Union 25 Table 4. Subsistence Harvest Levels for North Pacific Fur Seals in the Pribilof Islands, 1985 - 1991 34 Table 5. Estimated Annual Harvests of Pacific Walruses in Alaska and the Soviet Union, 1970 - 1989 38 Table 6. Sea Otter Population Counts by the Fish and Wildlife Service and the California Department of Fish and Game, 1982 - 1991 45 Table 7. Quotas and Number of Bowhead Whales Taken by Alaska Eskimos, 1973 - 1991 64 Table 8. Estunated Percent Observer Coverage for Category I Fisheries during the Interim Exemption Period 85 Table 9. Estimated Incidental Kill of Porpoises in the Tuna Purse Seine Fishery in the Eastern Tropical Pacific Ocean, 1972 - 1991 94 Table 10. U.S. and Foreign Dolphin Mortality, Kills per Set, Sets on Dolphins, and Percent of Observer Coverage, 1988 - 1991 95 Table 11. Percent of Foreign Tuna Fleets with Observers Aboard 100 Table 12. Summary of Garbage Discharge Limitations under the International Convention for the Prevention of Pollution from Ships (1973 - 1978) and the U.S. Act to Prevent Pollution from Ships, as Amended 151 Table 13. Number of Sea Otters, Walruses, and Polar Bears Presented for Marking and Tagging by Alaska Natives 163 111 Executive Summary This, the nineteenth Annual Report of the Marine Mammal Commission, describes the activities of the Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals during calendar year 1991. The Commission was established under Title II of the Marine Mammal Protection Act to provide guidance on Federal activities and policies, be they domestic or international, that bear on the protection and conservation of marine mammals. The Report is an in-depth summary of Commission activities in this regard. Its purpose is to provide timely information to Congress, government agencies, public interest groups, the academic community, private citizens, and the international community on important issues and events concerning marine mammal protection and conservation. To ensure factual accuracy, the Report was provided in draft form to concerned Federal and State agencies and other involved parties for review and comment prior to publication. As described in Chapter n, the Commission and its Committee of Scientific Advisors pay special attention to certain marine mammal species and populations each year. Among the species and populations facing the most urgent conservation problems in 1991 were West Indian manatees, Hawaiian monk seals, Steller sea lions, the California population of sea otters, and northern right whales. The West Indian manatee is one of the most endangered marine mammals in the United States. It occurs in coastal waters and rivers of Florida and Georgia and is the largest known group in the species' North, Central, and South American range. Numbering something more than 1,800 animals, its long-term survival is in doubt. Known deaths in the past three years have exceeded 550, more than 150 of which were caused by water craft. In 1991, for the sixth time in eight years, vessel-related deaths reached a new record high. However, habitat degradation from development may pose an even more serious long-term threat than boats. As noted in Chapter H, the Commission continued to work closely with the Fish and Wildlife Service, the State of Florida, and other groups in 1991 to strengthen manatee recovery efforts. Encouraging progress was made. Boat speed regulatory systems were expanded, additional manatee habitat was added to Federal and State protected area systems, and shoreline development plans received greater scrutiny. Efforts now appear sufficiently comprehensive to have a chance of succeeding if vigorously sustained, but it will take several years before the effectiveness of this expanded program can be judged. The most endangered seal in United States waters is the Hawaiian monk seal. This species, which may number fewer than 1,500 animals, inhabits the remote, largely uninhabited Northwestern Hawaiian Islands. Over the past two years, significant declines in births and beach counts have been recorded. Over the same period, there has been an increase in reports of seal injuries and deaths due to interactions with the Hawaiian swordfish longline fishery that has expanded from about 15 to 150 vessels. In 1991, the National Marine Fisheries Service, the Fish and Wildlife Service, the Western Pacific Regional Fishery Management Council, the United States Coast Guard, and the Commission cooperated in efforts to prevent these harmful interactions. The National Marine Fisheries Service also continued to rebuild some seal colonies through headstart and pup rehabilitation programs and to address problems caused by groups of aggressive male seals killing adult females and young seals of both sexes. Substantial progress was made with respect to starting restoration efforts at Tern Island, and planning began in earnest for the repair of the disintegrating seawall, something critical to both the welfare of the seals and the integrity of the Island. Particularly noteworthy were the progress made by the National Marine Fisheries Service's program staff over the past two years and the substantially improved levels of cooperation amongst all agencies involved in monk seal recovery efforts. In addition to the groups already mentioned, the Hawaiian Monk Seal Recovery Team, the Corps of Engineers, the Navy, and the Hawaii Department of Land and Natural Resources were important contributors. Because of alarming declines in the number of Steller sea lions throughout their range, particularly in Alaska, the species was listed as threatened under the Endangered Species Act in 1990. In 1991, the Steller Sea Lion Recovery Team constituted by the National Marine Fisheries Service completed and provided a recovery plan to the Service for adoption. At the same time, the Marine Mammal Commission began work to update its 1988 Steller sea lion species account with research and management recommendations. Among the things affecting Steller sea lions were the commercial fisheries for pollock and other groundfish. In these fisheries, sea lions have been caught in nets or shot by fishermen to protect gear and catch, and the fisheries themselves may have depleted sea lion food supplies. In this regard, the Service promulgated emergency rules to close areas within 10 miles of major rookeries to groundfish fishing and adjusted proposed catch limits for pollock downward. Recommendations also were made by the Recovery Team to designate critical habitat under the Endangered Species Act. The remnant population of sea otters along the central California coast numbers about 1,900 animals and remains at risk. A decline in numbers in the 1980s due to incidental take in gillnets has been stopped by State actions to prohibit the use of gillnets in sea otter habitat and otter numbers again appear to be increasing. The major threat to the population has been and continues to be the possibility of a large oil spill. To address this threat, the Fish and Wildlife Service began efforts in 1987 to establish a separate reserve colony of otters at San Nicolas Island, an island some distance from the mainland colony. To date, however, only a few animals have remained at the Island and efforts to translocate additional animals have ended. In addition, the Exxon Valdez oil spill indicates that one massive spill could affect both the mainland and San Nicolas VI Island colonies. Therefore, future recovery objectives and activities were re-examined in 1991. The northern right whale, the most endangered marine mammal in U.S. waters, is also the world's most endangered species of large whale. The largest known population, perhaps 350 animals, occurs seasonally in coastal waters off the east coasts of Canada and the United States. Entanglement in fishing gear and collisions with ships are the principal human causes of mortality and injury for this population. The Marine Mammal Commission has urged development of a recovery plan and the Right Whale Recovery Team has recommended designating critical habitat pursuant to the Endangered Species Act. Although the Commission has provided extensive advice on both matters over the past two years, it is not clear what the National Marine Fisheries Service intends to do. Activities relative to harbor seals. North Pacific fur seals. Pacific walruses, sea otters in Alaska, polar bears, humpback whales, bowhead whales, gray whales, killer whales. Gulf of California harbor porpoises, bottlenose dolphins, and harbor porpoises also are discussed in Chapter n. Marine mammals affect and are affected by certain commercial and recreational fisheries. Currently, the taking of marine mammals incidental to most commercial fisheries is authorized under a five-year exemption, enacted in 1988, from the moratorium on taking marine mammals. Before the interim exemption expires. Congress will re-examine the issue in light of information gathered under the exemption program, and enact a more permanent system for regulating the take of marine mammals by fishermen. Efforts to implement the interim exemption and to develop a new regime to govern the take of marine mammals incidental to commercial fishing operations after 1 October 1993 are discussed in Chapter HI. One fishery not included under the interim exemption is the eastern tropical Pacific purse seine fishery for yellowfin tuna. Actions taken to reduce the mortality of dolphins incidental to that fishery also are discussed in Chapter m. The Marine Mammal Protection Act directs the Commission to review and provide advice to the Secretary of State and other Federal officials on international arrangements affecting marine mammals and their habitat. As discussed in Chapter IV, the Commission devoted particular attention in 1991 to issues regarding the International Whaling Commission, high seas driftnet fisheries, conservation of marine mammals and their habitat in the seas surrounding Antarctica, and formation of the North Pacific Marine Science Organization (PICES). Ineffective regulation of commercial whaling by the International Whaling Commission has allowed most exploited whale stocks to be reduced to dangerously low vu levels. To permit time for the stocks to recover and to review its management practices, the International Whaling Commission initiated a worldwide moratorium on commercial whaling that went into effect in 1986. Several countries are now advocating an end to the moratorium and the resumption of commercial whaling. On 5 December 1991, the Marine Mammal Commission, in consultation with its Committee of Scientific Advisors, sent a comprehensive review of issues related to commercial whaling and operation of the International Whaling Commission to the U.S. Commissioner to the International Whaling Commission. The Marine Mammal Commission noted, among other things, that both the 1946 International Convention for the Regulation of Whaling and the International Whaling Commission's conservation program were in need of fundamental revision and concluded that the United States should initiate efforts to update both. At present, the incidental take of marine mammals in commercial fisheries, particularly high seas driftnet fisheries, poses a greater threat to many marine mammals than does commercial exploitation. As noted in previous Annual Reports, the Commission has advocated banning large-scale high seas driftnet fisheries. In 1991, the Commission continued to work with the Departments of State and Commerce to seek an international ban on these fisheries. Largely thanks to efforts by the Department of State, the United Nations General Assembly adopted a consensus resolution in December 1991 that calls for a 50 percent reduction in large-scale high seas driftnet fishing effort by 30 June 1992 and a global moratorium on all such fishing to begin on 31 December 1992. Another subject discussed in Chapter IV is the Commission's continued work with the Department of State and other Federal agencies to develop and implement international agreements for conserving whales, seals, and their habitats in Antarctica. An action of particular significance in this regard was the conclusion of the Antarctic Treaty Protocol on Environmental Protection on 4 October 1991. At present, the issue of greatest concern to the Commission continues to be the potential for unregulated growth of the Antarctic krill fishery. Many of the issues of concern in the Southern Ocean have parallels in the North Pacific Ocean. To provide a mechanism for cooperatively identifying and assessing key research issues in the North Pacific, the Governments of Canada, Japan, the People's Republic of China, the Soviet Union, and the United States concluded the Convention for a North Pacific Marine Science Organization (PICES) in December 1990. In 1991, the Commission provided partial support for and participated in a workshop to initiate discussions on four key topic areas: climate change, the Bering Sea, environmental quality, and fisheries oceanography. The workshop report, expected to be completed early in 1992, will be provided to the member states to assist in preparing for the first meeting of the Organization. vm As indicated in past Annual Reports, there appears to have been a worldwide increase in unusual marine mammal mortality events since the late 1970s. More occurred in 1991. While the reasons for the apparent increase are not clear, the increase may be due, at least in part, to environmental pollution or other factors that suppress the immune systems and weaken the ability of marine mammals to ward off natural disease. This issue, of great concern to the Commission, is discussed in Chapter V. Marine mammals and other species, including some that are endangered, are killed or injured as a result of becoming entangled in or ingesting lost or discarded nets, line, and other debris. Such debris is now recognized as a major form of marine pollution and a serious threat to many species. As discussed in Chapter VI, the Commission continued in 1991 to help the National Marine Fisheries Service in its efforts to carry out education, mitigation, and research activities through the Marine Entanglement Research Program. In cooperation with the Coast Guard and the National Marine Fisheries Service, the Commission also helped focus attention on implementing the provisions of Annex V of the International Convention for the Prevention of Pollution from Ships, which regulates disposal of ship-generated garbage. As noted in Chapter VII, marine mammal management in Alaska is particularly challenging. This is due, in part, to the large numbers of marine mammals in Alaska, their use for subsistence purposes by Alaska Natives, and interactions with commercial fisheries and offshore oil and gas development. In 1991, the Commission took steps to help the Fish and Wildlife Service and the National Marine Fisheries Service strengthen their marine mammal programs in Alaska. Among other things, the Commission started preparation of draft conservation plans for walruses, polar bears, and sea otters, and the preparation of species accounts with research and management recommendations for Steller sea lions, killer whales, and harbor seals. For reasons that are not known, populations of a number of Alaska marine mammals and seabirds have declined significantly in recent years. In December 1990, the Commission and the National Marine Fisheries Service conducted a workshop to assess possible causes and implications of these declines and related research and management needs. The workshop report, completed and widely distributed in 1991, is among the matters discussed in Chapter VII. The Minerals Management Service, the National Marine Fisheries Service, and the Fish and Wildlife Service share responsibility for ensuring that activities and events, like oil spills, associated with offshore oil, gas, and mineral exploration and development do not have significant adverse effects on marine mammals or the ecosystems of which they are a part. In 1991, these agencies, in consultation with the Commission, promulgated regulations and took other actions, as described in Chapter VIE, to give effect to section 101(a)(5) of the Marine Mammal Protection Act. This section of the Act directs the IX Secretaries of Commerce and the Interior to authorize the taking of small numbers of marine mammals incidental to activities other than commercial fishing, when the taking would have negligible impacts and certain other conditions are met. The Marine Mammal Protection Act directs that the Marine Mammal Commission undertake, or cause to be undertaken, such studies as it considers necessary or desirable to effect the protection and conservation of marine mammals. Actions taken by the Commission in 1991 in response to this directive are described in Chapter IX. Reports and other publications resulting from research and studies supported by the Commission in previous years are listed in Appendices B and C. Chapter X discusses the process for issuing permits to take marine mammals for scientific research, public display, and species enhancement. Chapter XI discusses regulations governing the care and maintenance of marine mammals in captivity. During 1991, the National Marine Fisheries Service continued to review its permitting system and expects to publish proposed revisions to its existing permit regulations in 1992. In 1991, the Commission called upon the Animal and Plant Health Inspection Service, the National Marine Fisheries Service, and the Fish and Wildlife Service to review and, as necessary, revise the Standards and Regulations for the Humane Handling, Care, Treatment, and Transportation of Marine Mammals. To begin the process, the Commission provided the Services with a detailed discussion paper to serve as a base document for the review. Three Appendices follow the body of this Report. Appendix A summarizes recommendations made by the Commission in 1991; Appendix B lists reports published by the National Technical Information Service on Commission-supported studies and activities; and Appendix C lists other reports and papers based upon Commission- supported studies and activities that have been published elsewhere. Chapter I INTRODUCTION This nineteenth Annual Report of the Marine Mammal Commission covers the period 1 January through 31 December 1991. It is being submitted to Congress pursuant to section 204 of the Marine Mammal Protection Act of 1972. Established under Title II of the Act, the Marine Mammal Commission is an independent agency of the Executive Branch. It is charged with developing, reviewing, and making recommendations on the actions and policies of all Federal agencies with respect to marine mammal protection and conservation and with carrying out a research program. Personnel The Commission consists of three part-time Com- missioners appointed by the President. The Marine Mammal Protection Act requires that the Commission- ers be knowledgeable in marine ecology and resource management. At the end of 1991, the Commissioners were: John E. Reynolds, III, Ph.D., (Chairman), Eckerd College, St. Petersburg, Florida; Paul K. Dayton, Ph.D., Scripps Institution of Oceanography, La Jolla, California; and Jack W. Lentfer, Homer, Alaska. During 1991, Robert Eisner, Ph.D., and Francis H. Fay, Ph.D., both witii the University of Alaska, Fairbanks, completed their terms of service on the Commission. Assistant in charge of publications; and Darel E. Jordan and Susan E. Holcombe, Staff Assistants. The Commission Chairman, with the concurrence of the other Commissioners, appoints persons to the nine-member Committee of Scientific Advisors on Marine Mammals. Committee members are required by statute to be scientists who are knowledgeable in marine ecology and marine mammal affairs. At the end of 1991, its members were: William F. Perrin, Ph.D., (Chairman), National Marine Fisheries Ser- vice, La Jolla, California; Douglas G. Chapman, Ph.D., Seattle, Washington; Murray L. Johnson, M.D., Burke Museum, University of Washington, Seattle; Bumey J. LeBoeuf, Ph.D., University of California, Santa Cruz; Lloyd F. Lowry, Alaska Department of Fish and Game, Fairbaiiks; Marc Mangel, Ph.D., University of California, Davis; William Medway, D.V.M., Ph.D., University of Pennsylvania, Philadelphia; Thomas J. O'Shea, Ph.D., U.S. Fish and Wildlife Service, Gainesville, Florida; and Tim D. Smith, Ph.D., National Marine Fisheries Service, Woods Hole, Massachusetts. During 1991, Jack W. Lentfer and John E. Reynolds, ni, Ph.D., completed their terms of service on the Conmiittee. In recognition of the importance of marine mammals in the lives of many Eskimos, Indians, and Aleuts, Matthew lya of Nome, Alaska, serves as Special Advisor to the Marine Mammal Commission on Native Affairs. The Commission's full-time staff members are: John R. Twiss, Jr., Executive Director; Robert J. Hofman, Ph.D., Scientific Program Director; David W. Laist, Policy and Program Analyst; Michael L. Gosliner, General Counsel; Steven L. Swartz, Ph.D., Deputy Scientific Program Director; Richard L. Wallace, Special Assistant to the Executive Director; Anne K. Kiley, Administrative Officer; Alison G. Kirk, Permit Officer; Eileen C. Shoemaker, Staff Funding Appropriations to the Marine Mammal Commis- sion in the past five fiscal years have been: FY 1988, $953,000; FY 1989, $953,000; FY 1990, $960,000; FY 1991, $1,153,000; and FY 1992, $1,250,000. Chapter n SPECIES OF SPECIAL CONCERN Section 202 of the Marine Mammal Protection Act directs the Marine Mammal Commission, in consulta- tion with its Committee of Scientific Advisors on Marine Mammals, to make recommendations to the Departments of Commerce and the Interior and other agencies on actions needed to protect and conserve marine mammals. In 1991, the Commission contin- ued to devote special attention to marine mammals listed as endangered or threatened under the Endan- gered Species Act (Table 1). Because of their occurrence in U.S. waters and/or an exceedingly high risk of extinction, greatest effort in 1991 was devoted to West Indian manatees, Hawai- ian monk seals, Steller sea lions, California sea otters, northern right whales, humpback whales, bowhead whales, gray whales, and Gulf of California harbor porpoises. Given the serious threats facing certain other species in U.S. waters, special attention also was given to North Pacific fur seals. Pacific walruses, sea otters and harbor seals in Alaska, polar bears, killer whales, harbor porpoises, and bottlenose dol- phins. Efforts to protect these species are described in this Chapter. West Indian Manatee (Trichechus manatus) One of the most endangered marine manunals in U.S. waters is the West Indian manatee. The species' U.S. range is limited primarily to rivers and coastal waters of peninsular Florida and southern Georgia. The southeastern U.S. population, also called the Florida manatee population, is geographically isolated from other manatee populations and is recognized as a separate sub-species (7. manatus latirostris). Colli- sions with boats and habitat destruction are by far the leading human threats to these animals. Early in 1991, the Florida Department of Natural Resources organized two state-wide aerial surveys to count manatees in Florida. They yielded preliminary counts of 1,268 and 1,465 animals. Although the counts closely match the previous minimum popula- tion estimate (1,200 animals), which was based primarily on counts at warm-water refuges, weather conditions in all areas were not optimal. Because comparable aerial surveys were not conducted before 1991 and because the previous estimate was intended only as a conservative best guess of minimum popula- tion size, the surveys are not comparable to any earlier estimates. The recent counts are, however, the largest ever recorded anywhere in the species' range. Outside of the United States, West Indian manatees are found in the Greater Antilles (including Puerto Rico), along the Atlantic coast of Central America and northern South America, and in Trinidad and Tobago. In these areas, manatees are considered members of a second subspecies, the Antillean manatee {T. manatus manatus). These populations are thought to be small, numbering perhaps 100 or fewer in most countries, and generally declining. Major threats include poach- ing, incidental take in gillnets, and habitat degrada- tion. Since effective conservation programs do not exist in most other countries, the species' long-term survival may well depend on the success of efforts to protect remaining animals in Florida and Georgia. Mortality in the southeastern United States, how- ever, has increased steadily since 1980 (Table 2). Recent levels are especially alarming given what is known about the species' abundance and low repro- ductive rate. The high 1990 mortality was caused, in part, by the death of at least 47 animals following an intense cold spell the last week of 1989. However, most of the steady increase over the past 13 years is attributable to increasing numbers of vessel-related deaths and perinatal calf mortality. MARINE MAMMAL COMMISSION — Annual Report for 1991 Table 1. Marine Mammal Species and Populations Listed as Endangered (E) or Threatened (T) under the U.S. Endangered Species Act as of 31 December 1991* Common Name Scientific Name Status Range Manatees and Dugongs West Indian manatee Amazonian manatee West African manatee Dugong Otters Marine otter Southern sea otter Seals and Sea Lions Hawaiian monk seal Caribbean monic seal Mediterranean monk seal Guadalupe fur seal Steller sea lion Whales and Porpoises Gulf of California harbor porpoise Northern right whale Trichechus manatus Trichechus inunguis E Trichechus senegalensis T Dugong dugon E Lutrafelina E Enhydra lutris nereis T Monachus schauinslandi E Monachus tropicalis E Monachus monachus E Arctocephalus townsendi T Ewnetopias jubatus T Phocoena sinus Eubalaena glacialis Southern right whale Eubalaena australis Bowhead whale Humpback whale Gray whale Blue whale Finback or fin whale Sei whale Sperm whale Balaena mysticetus Megaptera novaeangliae Eschrichtius robustus Balaenoptera musculus Balaenoptera phy solus Balaenoptera borealis Physeter catodon E E E E E E E E E Eastern North, Central and South America coast and rivers from southeast United States to Bra- zil, including Puerto Rico and other Greater Antilles Islands Amazon River basin of South America West Africa coast and rivers; Senegal to Angola Northern rim of Indian Ocean; Indonesia; Philip- pines; Malagasy; Australia; southern China; Palau Western South America; Peru to southern Chile Central California coast Hawaiian Archipelago Caribbean Sea and Bahamas Mediterranean Sea; Atlantic coast of northwest Africa West coast of Baja California, Mexico, to south- ern California North Pacific Rim from northern Japan to south- em California Northern and central Gulf of California, Mexico North Atlantic Ocean; North Pacific Ocean; Bering Sea South Atlantic, South Pacific, Indian, and South- em Oceans Arctic Ocean and adjacent seas Oceanic, all oceans Eastem and western North Pacific; Bering Sea Oceanic, all oceans Oceanic, all oceans Oceanic, all oceans Oceanic, all oceans From Fish and Wildlife Service Regulations at 50 C.F./?. § 17.11 Chapter 11 — Species of Special Concern Table 2. Known Manatee • Mortality in the Southeastern United States (excluding Puerto Rico) Reported through the Manatee Salvage and Necropsy Program from 1978 - •1991' Vessel- All Related Perinatal Other Deaths Deaths Total No. Deaths Deaths Deaths Inside Outside of Deaths Year No. (%) No. (%) No. (%) Florida Florida in U.S. 1978 21 (24) 10 (12) 55(64) 86 86 1979 24 (28) 9(12) 45 (58) 77 1 78 1980 16 (23) 13 (19) 38 (56) 63 4 67 1981 25 (21) 13(11) 81 (72) 116 3 119 1982 20 (17) 14 (12) 86 (68) 114 6 120 1983 15 (19) 18 (22) 48 (59) 81 81 1984 34 (26) 26 (20) 71 (54) 128 3 131 1985 35 (27) 25 (20) 69 (53) 120 9 129 1986 33 (26) 27 (22) 65 (52) 122 3 125 1987 39 (33) 30 (25) 49 (42) 114 4 118 1988 43 (32) 30 (22) 61 (46) 133 1 134 1989 51 (29) 37 (21) 86 (49) 166 8 174 1990 49 (23) 45 (21) 120 (56) 206 8 214 1991 53 (30) 53 (30) 69 (39) 174 1 175 ' Totals provided by the Florida Department of Natural Resources for 1991 are preliminary. As noted above, death from interactions with boats is one of two principal threats to Florida manatees. Vessel-related deaths have reached record levels in five of the past seven years and appear to be the result of dramatic increases in vessel traffic. In 1960, the number of registered vessels in Florida was about 100,000; in 1990, the number exceeded 700,000. Whereas known vessel-related manatee deaths aver- aged 22 percent of total known mortality from 1978 to 1983, they accounted for 27 percent from 1984 through 1986. Since 1987, vessel-related deadis have been responsible for 29 percent of the total mortality (31 percent if the unusual cold-related death of 47 animals early in 1990 is excluded). Increases in perinatal deaths {i.e., stillborn and newborn calves) parallel those of vessel deaths. Previous records have been equaled or exceeded in six of the past seven years. Perinatal deaths averaged 14 percent of the total known mortality from 1978 to 1983, 20 percent from 1984 through 1986, and 24 percent since 1987. The cause of the increase in perinatal deaths is uncertain and may be due to a combination of factors including contaminant pollution, disease, or environ- mental changes. It also may be related to vessel traffic. That is because some newborn calves may die when their mothers are killed or seriously injure by boat collisions, when they become permanentiy separated from their mothers while dodging intensive boat traffic, or when stress from vessel noise or traffic induces premature births. In any case, whereas vessel-related and dependent calf deaUis together accounted for about one-third of the total known mortality in the late 1970s and early 1980s, it has accounted for more than 50 percent of total mortality in recent years. Although a reliable measure of population trends has proven elusive, it is MARINE MAMMAL COMMISSION — Annual Report for 1991 likely that current mortality exceeds recruitment and that the population is declining. The second primary threat to Florida manatees is degradation and loss of habitat due to coastal develop- ment. Florida's human population is now growing at a rate of more than 1,000 people per day. Develop- ment accompanying this growth has occurred largely along coastal waters and rivers used by manatees. Siltation, nutrient enrichment, other forms of water pollution, and direct removal or filling of wetlands for shoreline development degrade manatee habitat. This degradation, in turn, reduces manatee food supplies, eliminates natural secluded areas for mating, calving, and nursing, and generally reduces the capacity of coastal and river ecosystems to support manatees and other aquatic species native to Florida. In the long term, loss of habitat and environmental pollution may well pose the most serious threat to manatees. Background on Recovery Activities Although the Fish and Wildlife Service is the Federal agency with lead responsibility for research and management related to manatees, assuring protec- tion of manatees and their habitats is beyond the ability of any one agency or group. It requires extensive cooperation by many State and Federal agencies and other organizations. In this regard, the Commission has played a major role in helping the Service and other agencies identify and undertake cooperative efforts. Late in the 1970s, the Conmiission provided the Service detailed comments and advice on developing a recovery plan for manatees, and the first manatee recovery plan was adopted by the Service in 1980. Using a special one-time appropriation from Congress that year, the Commission assisted the Service in initiating and coordinating priority work under the plan. It also helped the Florida Department of Natural Resources by providing seed money to constitute a Manatee Technical Advisory Council to provide recommendations and advice on recovery priorities. The 1980 plan helped forge cooperative efforts among the Service, the Florida Department of Natural Resources, several other State agencies, the Coast Guard, the Army Corps of Engineers, industry groups, such as the Florida Power & Light Company and various marine zoological parks in Florida, and many other groups. Among other things, work under the plan produced new information and fostered development of novel research techniques (such as satellite tagging of manatees) to shed light on manatee movements and ecology. Progress was also made in reducing manatee mortality associated with some human-related perturbations (e.g., entrapment in flood gates), increasing efforts to review and mitigate site- specific impacts of coastal development projects in manatee habitat, and acquiring and protecting critical manatee habitat in Kings Bay, a major warm-water refuge on Florida's west coast. During the 1980s, efforts to protect manatees were greatly enhanced by the Florida Department of Natu- ral Resources as it assumed an increasingly prominent role in supplementing the Service's research and management efforts. For example, in 1985, it as- sumed responsibility from the Service for the manatee salvage and necropsy program, which is the primary source for determining trends in manatee mortality. By doing so, it freed Service support for urgently needed studies of manatee movements and ecology. The Department also supported other needed research {e.g., aerial surveys), established and enforced 20 boat speed regulatory zones in important manatee habitats, and increased efforts to acquire manatee habitat for the state park, reserve, and preserve systems. While all of these efforts were well placed, they proved insufficient. Given the movement of animals throughout the State and the magnitude of increases in vessel traffic and shoreline construction, vessel-related deaths increased and preferred habitat continued to be degraded. Therefore, in 1987, the Commission recommended that the Service re-examine research and management efforts and update the West Indian Manatee Recovery Plan. The Service agreed and, while work on revising the plan was underway, the Commission provided the Service and the State with additional recommendations (see, for example. Appendix B, Reynolds and Gluck- Chapter 11 — Species of Special Concern man 1988 and Marine Mammal Commission 1989). The Commission urged development of an effective satellite tagging and tracking program to gather more precise information on manatee habitat use patterns. It also recommended site-specific actions to enlarge the system of boat speed regulatory zones, strengthen enforcement, acquire important manatee habitat, control shoreline development in key manatee areas, improve the manatee salvage and necropsy program, and speed development of a geographic information system for storing, manipulating, and retrieving research data crucial for manatee management. The Service completed work on the revised recov- ery plan and, in May 1989, adopted it. The revision was exceedingly well done and, in a strong show of support for carrying out its provisions, it was signed by the heads of 12 other cooperating Federal and State agencies and private organizations, including the Marine Mammal Commission. The new plan reflects most of the Commission's recommendations and, consistent with its provisions, research and manage- ment efforts are being further increased. Major new efforts are focusing on tagging and tracking manatees, expanding boat speed regulatory zones, and acquiring and protecting important manatee habitat. Activities in Support of the Revised Manatee Recovery Plan Research and Management Funding — The revised manatee recovery plan adopted in 1989 clearly identifies the need for expanding research and man- agement efforts. While it calls for additional support from all cooperating agencies, most increased commit- ments fall upon the Fish and Wildlife Service and the Florida Department of Natural Resources. As noted in previous Aimual Reports, the Florida Legislature substantially increased funding and person- nel limits to enable the Florida Department of Natural Resources to meet its expanded responsibilities under the recovery plan. In 1990, it authorized nine addi- tional staff positions for the Department's mana- tee/marine mammal program. In 1991, these posi- tions were filled, doubling the size of the program's staff. In 1989, the Florida Legislature established a Save the Manatee Trust Fund, which provides support for the State's manatee program. The Fund is maintained by annual contributions from a part of State boat registration fees, fees for an optional State automobile license plate featuring a manatee, voluntary contribu- tions, and other sources as authorized by the Florida Legislature. To cover increases in salaries and expenses for the manatee program, the Legislature provided supplemental program funding and autho- rized an increase in certain Fund contributions. For Florida's Fiscal Year 1990-1991 (1 July 1990 - 30 June 1991), the program's budget was $1,171,406; for Fiscal Year 1991-1992, it is $2,210,336. The additional staff and funding are being used to: (1) develop and help implement county-wide boat speed regulatory zones in 13 key counties where the risk of boat kills is particularly great; (2) help develop county manatee protection plans in those counties; (3) shorten response times and improve facilities for manatee necropsy and rescue efforts; (4) improve understanding of manatee habitat use patterns through aerial surveys and radio-tagging studies; (5) develop a geographic information system to compile and map relevant information for management decisions; (6) review permit and submerged lands lease applications for development projects and marine events (e.g., boat races) in manatee habitat; and (7) support the develop- ment and distribution of public information and education materials. Early in 1990, however, it was not clear whether the Fish and Wildlife Service was taking the steps necessary to support the most critical elements of its responsibilities under the revised plan. Therefore, the Commission, in consultation with its Committee of Scientific Advisors, reviewed tasks identified in the plan and, on 2 March 1990, wrote to the Service. In its letter, the Commission expressed concern that the level of funding needed to meet Service responsibilities was not adequate for even maintaining past levels of effort. It also set forth views as to minimum levels of funding and personnel needed by the Service to address only its highest priority work in Fiscal Years 1991 through 1995. For Fiscal Years 1991 and 1992, it recommended that Service research MARINE MAMMAL COMMISSION — Annual Report for 1991 funding be no lower than $583,000 and $598,000, respectively, and that funding for management work be at least $315,000 and $327,000, respectively. Late in 1990, the Service received a special Con- gressional appropriation for additional work on manatees and other endangered species. It was not clear how much of that special appropriation would be used for manatee work. Therefore, on 20 November 1990, the Commission wrote to the Service asking for information on immediate and longer term funding plans. The Service replied by letters of 12 March and 20 May 1991. The letters indicated that the Service planned to support manatee work in 1991 and 1992 at levels that would exceed the minimum levels identified in the Commission's 2 March 1990 letter. The Service further expressed an intent to fund research and management needs after 1992 at levels compara- ble to those in the Commission's letter. Among other things, the Service's strong support for manatee work in 1991 enabled it to hire two additional staff members to help review permit appli- cations for shoreline construction projects and to otherwise help implement the revised manatee recov- ery plan. It also allowed the research staff to develop and implement an expanded satellite tagging and tracking program to generate accurate information on manatee movement and habitat use patterns. Such information is essential for directing efforts to develop site-specific boat speed regulations, to assess shoreline development proposals, and to guide land acquisition plans. The Service also was then able to increase its efforts to study manatee population dynamics, ecolo- gy, and life history. As described in this and previous Armual Reports, the Marine Mammal Commission also increased its efforts in support of the revised recovery plan. Among other things, it provided funds to the Fish and Wildlife Service to purchase additional satellite-linked tags for tracking manatee movements, provided partial support for a study to develop and apply techniques to estimate the age of salvaged manatees based on bone samples, helped fund a study of energetics require- ments and thermal tolerances of lactating females and their calves, and increased efforts to review and comment on research and management activities by State and Federal agencies. Other agencies also have increased their effort to address critical issues. A particularly good example in this regard is the Navy's efforts to install propeller shrouds on its tug boats at the Kings Bay Naval Base in southern Georgia. Following the death of a few manatees that apparently were killed by the large propellers of the Base's tugs in 1989, the Navy, in consultation with the Fish and Wildlife Service, promptly began engineering studies to design a propeller guard to prevent animals from coming into contact with the propeller blades. The designs were tested and found satisfactory in 1991 and efforts are now proceeding to install shrouds on all large tugs at the Base. Status of Boat Speed Regulatory Zones — The dark, turbid waters in which manatees live make spotting manatees from boats extremely difficult even for trained observers. Expecting operators of speed- ing boats to spot and avoid hitting manatees is there- fore unrealistic. The only effective ways to reduce collisions between manatees and boats, therefore, are by: (1) slowing boats down in areas where manatees are likely to occur to afford animals a chance to avoid oncoming vessels, and (2) excluding boats from core areas with exceptionally dense concentrations of animals. Because of the extensive movements of manatees throughout Florida and the lack of speed restrictions along most of the State waterway system, slowing boats down over an area wide enough to provide effective protection requires imposing new speed restrictions for a substantial part of the State's water- ways. Doing so, however, increases travel time for many boaters. Public acceptance of and compliance with new speed rules therefore requires a major change in the conduct of boat operators. Even more basic, they require a change in attitudes regarding responsible behavior on public waterways. Although such factors underscore the difficulty and magnitude of efforts to implement an effective boat speed regulatory system to protect manatees, the Florida Governor and Cabinet members recognized Chapter 11 — Species of Special Concern the limited options available and the need to reduce manatee deaths and injuries by boats. They therefore approved a bold recommendation by the Florida Department of Natural Resources to begin developing boat speed regulatory systems in 13 key counties where manatees are most common and mortality is high. The recommended action also required those counties to develop and implement comprehensive manatee protection plans. These efforts were to be followed by similar efforts for other counties contain- ing important manatee habitat. The recommendation was approved late in 1989. As a first step, the Department cooperated closely with officials and residents in each of the 13 counties to begin developing proposed boat speed regulations for all waters used by manatees in their respective counties. After developing proposed rules for a county that reflect a best effort to accommodate needs of both manatees and boaters, the Department must submit each county proposal to the Governor and Cabinet for review and adoption into the State regula- tory code. Using information on manatee distribution and local boating patterns, the Department and county officials have sought to apply various types of speed restrictions throughout manatee habitat. The goal has been to confer effective manatee protection while minimizing inconvenience to boaters. Examples of the types of speed zones considered are: year-round or seasonal slow and idle speed zones for water bodies or river segments of particular importance to mana- tees; shoreline slow or idle speed zones applicable within a set distance (e.g., 50, 100, or 500 feet) from shore; zones in which non-channel areas are slow or idle speed while marked channels are set at higher speeds (e.g., 25 mph); seasonal or year-round no- entry areas in which all vessel traffic is prohibited; and high-speed (e.g., 30 or 35 mph) water sports areas. As noted in previous Annual Reports, representa- tives of the Commission testified before the Florida Governor and Cabinet in 1989 in strong support of the recommended approach. In 1990, the Department completed, and the Governor and Cabinet adopted, rules for 4 of the 13 key counties for manatees (Brevard, Collier, Martin, and Palm Beach Counties). During 1991, the rules for Palm Beach County were amended and rules for four additional counties (Volu- sia, Dade, Sarasota, and Citrus Counties) were developed and adopted. During 1991 , the Commission, in consultation with its Committee of Scientific Advisors, provided com- ments to the Department of Natural Resources on proposed rules for Palm Beach, Volusia, Dade, and Citrus Counties. It also provided comments to, and in some cases testified before, the Florida Governor and Cabinet during deliberations on proposed county rules. Without exception, proposed county rules signifi- cantly strengthened manatee protection. In all cases, the Commission expressed strong support for the pro- posals. In general, it noted that the proposed speed restrictions reflected the best available information on manatee habitat use patterns. In almost all cases, areas known to be used intensively by manatees (e.g., warm water refuges) received high levels of protection (e.g., no-entry or slow and idle speed limits). In addition, major travel corridors, feeding areas, and other important habitats used regularly by mana- tees received important, though more moderate, protection (e.g., shoreline or non-channel slow speed limits). For those counties addressed to date, all areas identified by the Commission as needing stronger boat speed regulations in its 1989 report on east coast manatee habitat protection needs (see Appendix B, Marine Manmial Commission 1989) have been ad- dressed in adopted county rules. Notwithstanding its strong support for rule proposals overall, the Commis- sion suggested a number of technical and substantive changes. Many of these have been adopted. In 1992, efforts will be undertaken to complete and adopt boat speed regulations for the remaining five key counties (Indian River, St. Lucie, Duval, Lee, and Broward Counties). After adopting rules for all 13 key counties, the Department anticipates develop- ing similar rules for important manatee habitat in other counties. It also will continue working with county and municipal officials on local manatee protection plans. These plans may refine boat speed MARINE MAMMAL COMMISSION — Annual Report for 1991 regulatory systems as well as address other needs, such as marina siting policies and guidelines for shoreline development in manatee habitat. Boat Speed Regulations in the Lake Woodruff National Wildlife Refuge — There has been broad support for strengthening boat speed rules to protect manatees. This support includes segments of the boating community anxious to limit speeds to improve boater safety because waterways are becoming in- creasingly congested with faster and faster boats (some of which are capable of speeds in excess of 100 mph). However, there also has been strong opposi- tion from some marine industry groups and other segments of the boating community. Opponents of the new rules believe the new speed limits cover too much area and cause vessel transit times to be unac- ceptably lengthened. A particularly contentious case in this regard arose in 1991 in Volusia County. Over the objections of local officials and some residents, the Department of Natural Resources proposed a slow speed rule for a 10-mile stretch along two County waterways, the Norris Dead River and the Zeigler Dead River, associated with the upper St. Johns River. Radio- tracking data indicate that manatees using the Blue Spring warm-water refiige 10 miles to the south regularly occupy both waterways. Although most lands along the two rivers are part of the Lake Woodruff National Wildlife Refuge, a privately owned sport fishing camp on the Norris Dead River has long operated from a tract of land surrounded by the Refuge. For guests at the fish camp to reach certain preferred fishing sites, the proposed rules would increase travel time by an hour or more. The owner of the fish camp stated the rule would encourage his clientele to go elsewhere and force him out of business. After examining the issue, including comments and testimony provided in support of the Department's slow speed proposal by the Marine Mammal Commission, the Governor and Cabinet adopted the proposed rules for Volusia County on 25 June 1991. State law allows affected parties to challenge such rules. Pending resolution of a challenge, the rules are not effective. Local residents, including the fish camp owner and operators of marine-oriented businesses, made known their intent to challenge the Volusia County rules adopted by the Governor and Cabinet. In response, the Environmental Defense Fund wrote to the Fish and Wildlife Service on 7 August 1991 recommending that the Service develop Federal regulations to back up the State regulations in the Lake Woodruff National Wildlife Reftige. The letter urged the Service to use its independent authority for regulating boat speeds within National Wildlife Refuges. A copy of the letter was sent to and reviewed by the Commission. While the Commission agreed that developing back-up regulations was prudent, it was not clear whether the State or the Service retained jurisdiction over the rivers and lakes within the Lake Woodruff Refuge. Therefore, on 10 September 1991, the Commission wrote to the Service recommending that it consider and act promptly on the Environmental Defense Fund's recommendation. It also noted that, if the rivers and lakes were determined to be outside refuge boundaries and, thus, not subject to refuge management authority, the Service could set speed limits using authority under the Endangered Species Act and the Marine Mammal Protection Act to estab- lish "Manatee Refiiges" under 50 CFR Part 17 of the Service's regulations. On 17 October 1991, the Service replied noting that it intended to publish a notice of intent to prepare rules under the authority cited by the Commission. Concerned about the need to act promptly, the Com- mission wrote to the Service on 19 November 1991 recommending that the Service expedite the intended notice. It also recommended that, if the Service had not already done so, it should immediately begin developing proposed rules that include measures at least as strong as those in the State rules adopted by the Governor and Cabinet for Volusia County. On 27 November 1991, a formal challenge to the State's Volusia County boat speed rules was filed by a local citizens' boating group. By the end of 1991, the Service had not yet published its proposed notice. 10 Chapter II — Species of Special Concern While boat speed regulations being adopted by the State afford a strong legal foundation for protecting manatees, their effect cannot be realized until signs are posted, enforcement efforts are implemented, and vessel operators become accustomed to the new restrictions. Logistic matters, including approving sign placement locations and contracting for sign installation, dictate at least some delay between the date of rule adoption and the point at which enforce- ment can begin. The two Florida inland navigation districts are responsible for posting new manatee speed zones, while enforcement duties fall primarily to the Florida Marine Patrol. Substantial progress is being made in posting newly regulated areas. More than 200 miles of waterway were posted or approved for posting in 1991. However, all newly approved speed zones are not yet fully posted and enforced. It will probably take several years to develop, post, and enforce rules for new manatee speed zones and to evaluate their effectiveness in reducing vessel-related manatee deaths. Manatee Sanctuaries — Perhaps the single most important habitat for manatees in Florida is Kings Bay at the head of Crystal River on the west coast of Florida. The Bay is about one mile long and one half to one mile wide. It is formed by the discharge of a few large natural warm-water springs and many smaller ones. In winter, more manatees depend on the Bay's warm waters than any other natural warm- water refuge in Florida. In recent years, peak winter manatee counts have increased significantly, making Crystal River mana- tees one of only two groups of animals in the State known to be increasing in number. Whereas maxi- mum counts early in the 1980s were about 100 animals, they are now about 300 animals. The increase, which appears to be due to natural recruit- ment, very high adult survival rates, and immigration of animals from central and southwest Florida, indicates the special importance and suitability of habitat in and around Crystal River for manatees. The Bay, also used regularly in summer by smaller numbers of animals, is surrounded by residential and commercial development. Its clear, warm waters and the presence of manatees have attracted large and increasing numbers of recreational divers. In response to the increasing numbers of divers and boaters and their potential to affect manatee use of Kings Bay, the Fish and Wildlife Service established three small manatee sanctuaries in parts of Kings Bay in 1980. The three areas, which cover about five acres combined, were designated using the Service's authority under the Marine Mammal Protection Act and Endangered Species Act (50 C.F.R. Part 17) to establish "Manatee Sanctuaries" (i.e., areas in which no waterbome activities are permitted) and "Manatee Refuges" (i.e., areas in which specific waterbome activities can be regulated). The three sanctuaries in Kings Bay are clearly marked by ropes and buoys, and all waterbome activities, including diving and boating, are prohibit- ed. They offer havens where manatees can retreat to avoid human disturbance. Manatees have leamed to use these sanctuaries and their importance is apparent. During periods when large numbers of divers are present, manatees often concentrate within or close to sanctuary boundaries. Since 1980, the number of divers and boaters, as well as manatees, has increased significantly. As a result, it is no longer clear whether the three sanctuar- ies are providing adequate manatee protection. To examine this issue, the Service provided support for a study completed in 1990 to assess manatee habitat use patterns in Kings Bay and the effects of human activities on them. The report noted that the three existing sanctuaries did not include significant feeding areas and that additional sanctuaries in other parts of the Bay appear warranted, given increasing numbers of animals using the Bay, their distribution, and human activity patterns. Based on the report and other information, the Service proceeded to identify and assess additional possible manatee sanctuaries in Kings Bay. On 21 March 1991, it convened a public meeting in Crystal River to receive comments on several possible sites under consideration. To provide manatees protection during the coming winter when their use of the Bay peaks, the Service promulgated emergency mles in 11 MARINE MAMMAL COMMISSION — Annual Report for 1991 November 1991 to establish four additional manatee sanctuaries. The four areas cover a total of about 32 acres and include grassbeds used regularly by mana- tees for feeding. The emergency rules went into effect on 15 November 1991 and expire on 14 March 1992. Like rules for the three existing sanctuaries, they prohibit all waterbome activities, including swimming, diving, and boating. Early in 1992, the Service expects to publish proposed rules to establish new permanent manatee sanctuaries in Kings Bay. Land Acquisition — Acquiring important manatee habitats for inclusion in existing Federal and State protected area systems is a major part of the manatee recovery program. It is one of the most important means of addressing long-term habitat protection objectives. Often habitat most important to manatees also is vital to many other wildlife species as well. Thus, while a few acquisitions may be primarily to further manatee protection, more often a potential site's importance as manatee habitat is but one impor- tant factor favoring the action. At the Federal level, most acquisitions to protect manatees are carried out by the Fish and Wildlife Service using money from the Federal Land and Water Conservation Fund. Acquired sites are added to the National Wildlife Refuge System, which is managed by the Service. At the State level, most acquisitions are made through Florida's Conservation and Recreation Lands Trust Fund. The State Fund is administered by the Florida Governor and Cabinet, which serve as the Fund's Board of Trustees, and by a Land Acquisition Advisory Council. The latter group evaluates and ranks acquisition projects and the Board approves or deletes listed projects. The Divi- sion of State Lands in the Department of Natural Resources provides staff support, and the Office of Protected Species Management identifies acquisition projects important for manatees. Projects important for manatee protection are eligible for priority ftinding through the Trust Fund. Acquisitions in the Crystal River Area: The first land acquisition principally for manatees was in the Crystal River area on Florida's west coast in 1982 when The Nature Conservancy acquired the islands in Kings Bay to prevent their proposed development. In 1984, the Conservancy sold the islands to the Fish and Wildlife Service, which incorporated them into the National Wildlife Refuge System as the Crystal River National Wildlife Refuge. While protecting manatee habitat in Kings Bay is essential because of its fundamental importance as a winter refuge, accompanying efforts also must be made to protect habitat used by manatees in other seasons. To help address this need, the Commission prepared a report on habitat requirements and protec- tion needs for the Crystal River manatees in 1984 (see Appendix B, Marine Mammal Commission 1984). The report recommended that the Service and the State work together to expand the regional network of Refuges and Reserves to include more of the areas most important to manatees. The report urged atten- tion to a four-county area (Dixie, Levy, Citrus, and Hernando Counties) that contained the region's most important manatee habitat. It recommended areas for acquisition along the Crystal River and efforts to coordinate Federal and State regional acquisition efforts. In response, the Service convened a meeting in March 1985 to develop a reconmiended joint Federal-State approach for expanding regional acquisi- tion efforts to better protect manatee habitat. Since 1985, much has been accomplished. In the late 1980s, the Fish and Wildlife Service acquired most of the 56,(X)0-acre Lower Suwannee National Wildlife Refuge. The reftige includes some of the region's most important summer feeding and resting areas for manatees. The Service also developed and approved a proposal to add 3, (XX) acres along the lower Homosassa River to its regional refuge system. The lower Homosassa River is an essential access corridor to the warm-water refuge at the head of the river and a feeding and resting area for manatees in non-winter months. In 1991, the Service received $5(X),(XX) through the Land and Water Conservation Fund to acquire the area as part of the Crystal River National Wildlife Refuge and acquisition is expected to proceed in 1992. In 1990, the Service also acquired a 3.5-acre site on Kings Bay to serve as a headquarters for its regional refuge management staff. The site, selected 12 Chapter 11 — Species of Special Concern to strengthen enforcement of manatee protection rules in Kings Bay, has a direct line of vision to the Bay's main spring, used most intensively by manatees and divers. Recent acquisition efforts by the State in the Crystal River region have focused on a 25-mile stretch of coast from Crystal River south to Weeki Wachee Springs. The northern two-thirds of this area includes natural warm-water refuges at the heads of the Crys- tal, Homosassa, and Chassahowitzka Rivers and forms the core of the region's winter manatee habitat. These rivers and the network of creeks between them also are used by smaller numbers of manatees in other seasons. Since 1984, five adjacent land acquisition projects in this area have been added to the State's Conserva- tion and Recreation Lands priority acquisition list (Stoney-Lane, Crystal River, St. Martins River, Homosassa Springs, and Homosassa Reserve). Together, they include nearly 23,000 acres. More than 10,000 acres had been acquired as of the end of 1991. Among the areas acquired to date is a 150-acre site around the large warm-water spring at the head of the Homosassa River. Discharge from the spring run provides the region's second most important winter refuge for manatees. Land around the spring has been designated as a state park and the upper part of the spring run is used as a site for rehabilitating injured manatees and offering the public a chance to view manatees in a natural environment. In addition, a previously listed State project in the southern third of the 25-mile sfretch (Chassahowitzka Swamp) was expanded in 1988 to 23,000 acres. More than 18,500 acres of that project have been purchased. The State's six regional projects surround the 30,000-acre Chassahowitzka National Wildlife Re- fuge. If all six projects are completed. Federal and State protection would cover more than 75,000 acres of contiguous undeveloped creeks, rivers, wetlands, and uplands. In combination with the Lower Su- wannee National Wildlife Reftige and existing State Reserves and Preserves in the four-county area, an outstanding protected area system would be estab- lished containing much of the region's important manatee feeding and resting habitat. Acquisitions in the Blue Spring Area: After Kings Bay, Blue Spring is Florida's second most important natural warm-water refuge for manatees. Waters north and south of the spring along a 25-mile stretch of the St. Johns River include important non-winter habitat for a significant number of the Blue Spring manatees. While Blue Spring itself is protected within a state park and portions of the surrounding region important to manatees also are protected (e.g., in the Hontoon Island State Park and Lake Woodruff Nation- al Wildlife Refuge), many of the most important surrounding areas used for travel, feeding, resting, and mating are outside the bounds of protected areas. In 1988, the Marine Mammal Commission com- pleted a second report on manatee habitat protection needs. The 1988 report addresses manatees on the east coast of Florida, including the St. Johns River (see Appendix B, Marine Mammal Commission 1988). In part, the report recommends a focused acquisition effort along the upper St. Johns River near Blue Spring to consolidate the regional network of protected areas and better protect important manatee habitats. In 1990, the State's Land Acquisition Advisory Council and Board of Trustees acted on two acquisi- tion projects important to Blue Spring manatees. It revised an 8,290-acre project along the St. Johns River by adding 3,700-acres. The modified project (Wekiva-Ocala Connector) includes about 10 miles of undeveloped shoreline along the St. Johns River and Hontoon Dead River north and south of Blue Spring. The Board and Council also added a new 37,000 acre project (Lake George) along the St. Johns River, Lake Dexter, and Lake George north of the Lake Woodruff National Wildlife Refuge. More than 19,000 acres of the Lake George project have been acquired. If the two projects are completed, a continuous wildlife corridor of Federal and State lands would be established along most of the St. Johns River north and south of Blue Spring from Lake George to the Wekiva River. The 25-mile corridor would provide 13 MARINE MAMMAL COMMISSION — Annual Report for 1991 a solid basis for securing long-term habitat protection for Blue Spring manatees. Acquisitions Elsewhere in Florida: Still other acquisition projects important to manatees are on the State's Conservation and Recreation Lands priority list. These include: Sebastian Creek (3,776 acres) and Spruce Creek (1,790 acres), both of which are manatee feeding and resting areas and freshwater sources along the east coast manatee travel corridor; Rookery Bay (44,846 acres), which is a manatee feeding, resting, and mating area in southwest Flori- da; and Dunns Creek (8,9(X) acres), a travel corridor and a feeding and resting area connecting Crescent Lake and the St. Johns River. During 1991, the State completed acquisition of the Seabranch project (939 acres), which includes more than a mile of shoreline along a critical segment of the east coast manatee travel corridor north of Hobe Sound. Permit Reviews — Each year, public and private interests submit many hundreds of requests to Federal and State agencies for permission to develop or hold events in public waterways. Most of these requests are for dredge and fill permits from the Corps of Engineers and the Florida Department of Environmen- tal Regulation. Many requests also are filed with the Coast Guard for permission to hold events such as boat races or waterskiing contests. The Fish and Wildlife Service and the Florida Department of Natural Resources' Office of Protected Species Management review and comment to the responsible permitting agency on such permit applications when they may affect manatees. For example, under authority of the Fish and Wildlife Coordination Act and the Endangered Species Act, the Service reviews many hundreds of permit applications to the Army Corps of Engineers for dredge and fill projects in manatee habitat. Each application must be examined individually to assess the potential impact of construction work, as well as completed projects, on manatees and their habitat. For those that may affect manatees, formal consulta- tions with the permitting agency must be undertaken. As part of this process, recommendations for permit conditions to mitigate or avoid possible effects must be provided and meetings with permit applicants may be scheduled. Because of the broad distribution of manatees in Florida and the number of projects proposed in manatee habitat, the review process is demanding. Based on reviews of the hundreds of permit applica- tion notices circulated by the Corps of Engineers annually, the Service has initiated consultations on an average of nearly 200 applications per year in recent years. These manatee-related consultations have produced more jeopardy opinions {i.e., projects judged to be unacceptable because of risks to the species) than for all other listed endangered species in the United States combined. Comparable review efforts have been undertaken at the State level by the State's Office of Protected Species Management. As noted above, the Commission recommended that the Service increase funding and staff to address permit review needs. In 1991, the Service did so. To help speed and improve reviews, the Commission also has urged accelerating work on a geographic informa- tion system to facilitate access and retrieval of site- specific manatee related information needed for reviewing permits (see Appendix C, Reynolds and Haddad 1990). The Florida Department of Natural Resources, in cooperation with the Service, has taken the lead in addressing this need. Despite these efforts, the incremental effect of approved projects is a source of serious concern. Conclusions Over the past three years, manatee recovery efforts have been redoubled. This is thanks largely to the efforts of the Fish and Wildlife Service, the Florida Legislature, the Florida Governor and Cabinet, and the Florida Department of Natural Resources. They are now at a point where they have a reasonable chance of being effective, provided efforts to see them through are continued vigorously. Because of the scope of what remains to be done, however, it will be several years before all management components can be put in place, tested, and refined as necessary. In the interim, Florida manatees remain at serious risk. Their future will depend on the ability of 14 Chapter 11 — Species of Special Concern responsible management agencies to maintain and expand the efforts that have been begun. The Com- mission will continue working with those most in- volved to ensure, to the extent possible, that this is done. In this regard, the Commission plans to hold its 1992 annual meeting in Florida and to devote much of its meeting to a review of the status and direction of manatee recovery efforts. Based on its review, the Commission will provide recommendations, advice, and assistance as appropriate. Hawaiian Monk Seal {Monachus schauinslaruU) The Hawaiian monk seal is the most endangered seal in U.S. waters. It occurs almost exclusively along the chain of small, mostly uninhabited islets and atolls stretching 1,100 miles northwest of the main Hawaiian Islands. Although two other species of monk seals have been described — the Caribbean monk seal (M. tropicalis) and the Mediterranean monk seal (M. monachus) — there have been no reliable sightings of the Caribbean species since 1952, and the Mediterranean species, which may number fewer than 500 animals, is one of the world's most endangered seals. Thus, the fate of the entire monk seal genus may depend on the survival of Hawaiian monk seals. The five major breeding sites for Hawaiian monk seals are Kure Atoll, Pearl and Hermes Reef, Lis- ianski Island, Laysan Island, and French Frigate Shoals (Figure 1). Nearly half of the species' pups are bom at the last site, which contains the largest colony. Although monk seals likely occurred on the main Hawaiian Islands before human occupation, there is virtually no record of their presence in Polynesian history. Recently, however, a number of sightings have occurred on Kauai and, in 1991, two births were recorded in the main Hawaiian Islands, on Oahu and Kauai. Shipwrecked sailors and commercial sealers are believed to have reduced the number of monk seals to very low levels in the 1800s. The first systematic counts of seals were made in the 1950s. By 1983, when the total population (including pups) was esti- mated at 1,488 animals, beach counts were roughly half those recorded in 1958. A new estimate of 1,752 seals was derived from beach counts in 1988. How- ever, because of assumptions required in calculating these numbers, both estimates are believed to be high. Population estimates have not been developed since 1988. In part, this is because the National Marine Fisheries Service has been unable to support all the field work needed for such analyses. Based on other population indicators, however, Hawaiian monk seals appear to have declined significantly since 1988. Between 1989 and 1990, total recorded births at the major pupping beaches declined nearly 40 percent from the 1988 level and about 30 percent from the average annual level between 1983 and 1988. De- clines were reported at all five major breeding sites in 1990. In 1991, the number of births recovered to previous levels at three sites, but continued to decline at the largest pupping colony (French Frigate Shoals) and remained low at Lisianski Island. Total births in 1991 (165) remained about 30 percent below the 1988 level (224). In addition, at French Frigate Shoals, mean beach counts of juvenile and adult seals declined about 30 percent from 1989 to 1991. Although immature animals have been the primary group af- fected by the decline, counts decreased for all age and sex classes. The data suggest a possible loss of 150- 200 animals from that colony. The cause of these recent trends is not clear. They may be caused by a combination of human and natural factors that differ from island to island. Among those that may be at least partly responsible are interactions with commercial fishing gear and fishermen, declines in available prey due to over fishing or natural envi- ronmental changes, entanglement in lost or discarded nets or other marine debris, human disturbance on pupping beaches, die-offs due to disease or naturally occurring biotoxins, shark predation, and, on Tern Island at French Frigate Shoals, entrapment in a decaying seawall. In recent years, an additional concern has been a "mobbing" phenomenon involving the death and injury of adult female seals and young animals of both sexes caused by overly aggressive groups of male seals attempting to mate. 15 MARINE MAMMAL COMMISSION — Annual Report for 1991 179* 175* 170* Kure Atoll Midway Is. to :-^ Peari and Hermes Reef Lislan ''i\ Laysan Is. ski Is. ' <■ 165* 160* 15i* 29° 25* French Frigate Shoals Necker I. Nihoa Kauai Nithau Oahu 'Ht; Molokal Lanai Z^^'Jii. Maui ^ Hawaii -1 18° Figure 1. The Hawaiian Archipelago During 1991, particular emphasis was placed on addressing interactions with commercial fishing, protecting and rehabilitating pups for release back into the wild, cleaning up hazardous debris, correcting structural and contamination problems at Tern Island in French Frigate Shoals, reducing the death and injury of adult female and immature seals due to "mobbing," and monitoring the five major breeding populations. Interactions with Commercial Fisheries Hawaiian monk seals interact with at least four commercial fisheries operating around the Northwest- em Hawaiian Islands — the pelagic longline fishery for swordfish, other billfish, and tuna; the hook and line bottomfish fishery for snapper and grouper; the lobster fishery; and the high seas squid driftnet fishery. Interactions may be direct (e.g., entrapment in gear or clubbing and shooting by fishermen seeking to protect gear or catch) or indirect {e.g., depletion of seal prey species). Interactions with Longline and Bottomflsh Fisheries — In 1990, there were several reports of seals, as well as albatrosses, being killed or injured as a result of interactions with longline and bottomfish fisheries. As discussed in its previous Annual Report, the Commission provided recommendations to the National Marine Fisheries Service on steps to investi- gate and respond to the reports. Among other things, the Service interviewed fishermen returning from the Northwestern Hawaiian Islands, advised fishermen of concerns about potential interactions and legal require- ments, and placed observers aboard some longline and bottomfish vessels fishing in the Northwestern Hawai- ian Islands. Although no injuries to seals were reported by observers placed aboard fishing vessels as of early 1991, Fish and Wildlife Service personnel stationed on Tern Island began finding injured seals and alba- trosses. By April 1991, seven seals had been seen on the beaches at French Frigate Shoals or swimming in open water with embedded hooks, cut lips, or head 16 Chapter 11 — Species of Special Concern injuries suggesting that they had been clubbed. There were also reports of large numbers of albatrosses killed or injured by longline fishermen. The increase in reported deaths and injuries coincided with expan- sion of the pelagic longline fishing fleet in Hawaiian waters from about 15 vessels in 1988 to more than 150 vessels in 1991. In addition, a number of long- line vessels were observed fishing within sight of French Frigate Shoals. Concerned that observed injuries were but a fraction of the total number of animals being killed or injured and also alarmed by the rapid growth of the longline fleet, the Western Pacific Regional Fishery Management Council and the National Marine Fisher- ies Service took a number of steps in 1991. In particular, the two agencies acted on various emergen- cy rules and amendments to fishery management plans for pelagic longline and bottomfish fisheries off the Northwestern Hawaiian Islands. The Commission, in consultation with its Committee of Scientific Advisors, provided reconunendations throughout the process (see Appendix A, 7 February, I April, 19 April, 23 April, 9 August, 16 August, 20 September (two letters), 17 December, and 20 December 1991). In its series of letters, the Commission recommend- ed that: waters within 50 nautical miles of the North- western Hawaiian Islands be closed to pelagic longline fishing; observers be placed aboard a representative sample of longline vessels fishing between 50 and 100 nautical miles of the Northwestern Hawaiian Islands and a sample of bottomfish vessels operating over adjacent reefs to document any interactions with seals; formal consultations under section 7 of the Endan- gered Species Act be reinitiated to address the effect of the fisheries on monk seals; haulout beaches be monitored closely for further evidence of fishery- related effects; steps be taken to evaluate the applica- tion and required use of satellite-linked radio transmit- ters aboard longline vessels to monitor vessel posi- tions in real-time; and satellite tagging studies of seals be designed and implemented by the 1992 field season to provide a better basis for assessing the occurrence and habitat use patterns of seals beyond 50 nautical miles from shore. The National Marine Fisheries Service acted shortly after receiving the new reports of injured seals early in 1991 . It began investigating the extent of the problem by interviewing fishermen returning to port from the Northwestern Hawaiian Islands, sending researchers to haulout beaches in the area to look for additional evidence of injured seals, and placing observers aboard bottomfish and longline vessels fishing around the Northwestern Hawaiian Islands. At the same time, the Western Pacific Regional Fishery Management Council also began assessing how to respond to the reports. With regard to regula- tory measures, the Council recommended, and the Service adopted, emergency rules on 18 April 1991 to establish a Protected Species Zone within 50 nautical miles of the Northwestern Hawaiian Islands and in corridors between the islands. The rules prohibited pelagic longline fishing within that zone and required bottomfish fishermen to notify the Service before leaving port if they plaimed to fish in that area. The latter provision, adopted as a permanent rule on 30 May, was intended to assure the Service an opportuni- ty to place observers aboard bottomfish vessels. At the recommendation of the Council, the Service extended the emergency rules establishing the Protect- ed Species Zone on 19 July. The rules were made permanent on 18 October 1991. Some longline fishermen attempted to continue fishing in the closed area by using longline gear shorter than the one-mile regulatory definition of such gear. In response, the Service adopted an emergency rule on 2 August 1991 redefining longline gear within the Protected Species Zone as longline gear of any length. Emergency rules limiting new entries into the longline fishery also were adopted on 12 April 1991 and extended on 24 June and 22 August. The Coast Guard is responsible for assisting the National Marine Fisheries Service with enforcement of fishery regulations. Because of limited fiinds, however, the Coast Guard was not making overflights off the Northwestern Hawaiian Islands early in 1991. On 25 February 1991, the Commission wrote to the Coast Guard asking that the Coast Guard assist efforts to detect and enforce fishing violations in monk seal habitat by providing surveillance flights off the 17 MARINE MAMMAL COMMISSION — Annual Report for 1991 Northwestern Hawaiian Islands. The Coast Guard responded positively and so advised the Commission by letter of 21 March 1991. To help address long-term enforcement needs, the Western Pacific Regional Fishery Management Council contracted for a study to test various types of real-time vessel tracking systems. The study was carried out in the spring and sunmier of 1991 and a copy of the study report was sent to the Commission by the Council. The report indicated that available technology was reliable, could assure confidentiality of location data, and was not cost-prohibitive. On 20 November 1991, the Commission wrote to the Service commending the Council's efforts and recommending that the Service immediately review the report with a view towards developing a strategy that would require vessel tracking devices aboard longline vessels at the earliest possible date. As of the end of 1991, no injured seals other than those reported early in the year had been documented by fishery observers or researchers on island beaches. However, the Service rejected the Commission's recommendation to place observers aboard longline vessels fishing between 50 and 100 nautical miles from shore. In doing so, the Service stated that, because nearly all monk seals occur only in the 50- nautical-mile Protected Species Zone, it assumed that all seal injuries occurred within this zone, and it believed that the expense of placing observers aboard longline vessels was not justified. The Conunission is aware of no reliable informa- tion on at-sea movement patterns of seals during their absence from island beaches or on the geographic range of fishery interactions. In rejecting the Com- mission's recommendation for longline observers between 50 and 100 nautical miles, the Service provided no data on at-sea movements to support its statements. Thus, the Commission remains concerned that seals may be injured by longline fishing beyond 50 nautical miles from shore and may die before they can reach shore. At the end of 1991, it was the Commission's understanding that the Service planned to support the study recommended by the Commission to begin tagging seals and ttacking their movements at sea in 1992. The study should provide at least some data to address this critical concern. Interactions with the Lobster Fishery — Deple- tion of lobster and other prey species by commercial fishermen in the Northwestern Hawaiian Islands also may adversely affect monk seals and impede their recovery. Among other things, decreased prey availability could depress birth rates and increase mortality, particularly among pups, as has been observed in recent years. Lobsters are suspected to be important prey of Hawaiian monk seals. During 1990 and early 1991, lobster stocks were reduced by commercial fishermen and/or possible environmental changes to levels approaching, and perhaps lower than, 20 percent of the pre-exploitation level. The fishery management plan adopted by the National Marine Fisheries Service for lobster in the western Pacific defines "overfishing" of lobster stocks in the Northwestern Hawaiian Islands as fishing which reduces the stock to a level equal to or less than 20 percent of the spawning stock biomass that existed before exploitation, which began in 1978. In re- sponse, the Western Pacific Regional Fishery Manage- ment Council requested, and the Service adopted, an emergency rule closing the lobster fishery in the Northwestern Hawaiian Islands as of 8 May 1991. In addition, the Council began developing a recom- mended amendment to the crustacean fishery manage- ment plan for the western Pacific. Its proposed amendment called for a limited-entry system that would freeze the size of the lobster fleet at approxi- mately current levels, an annual six-month closed season prior to and during part of the spawning season, and a system for setting annual harvest quotas. By letter of 7 November 1991, the Service asked the Commission for comments on the Council's proposed amendment. The Commission, in consultation with its Commit- tee of Scientific Advisors, replied on 6 December 1991, supporting all measures proposed by the Coun- cil. The Commission noted, however, that recent declines and the ultimate recovery of Hawaiian monk seals may be related to the recent declines and recov- ery of lobster stocks in the Northwestern Hawaiian 18 Chapter 11 — Species of Special Concern Islands. It therefore recommended that the Service consult with the Council under section 7 of the Endangered Species Act. The purpose of the consul- tations would be to determine whether, in light of the recent declines in both species, the definition of overfishing and other measures in the crustacean fishery management plan fully reflect ecological relationships between monk seals and lobsters as required by the Magnuson Fishery Conservation and Management Act. Also, the consultation should determine whether the plan provides a level of protec- tion for lobster stocks sufficient to assure recovery of monk seals. Head Start and Pup Rehabilitation Programs Since the late 1950s, Hawaiian monk seal numbers have declined significantly in the western end of the Northwestern Hawaiian Islands. At Kure Atoll, the westernmost island in the chain, the decline appears to have been related to the disturbance of seals on pupping beaches by Coast Guard personnel stationed on the atoll and to a very low pup survival rate through the first year of life. Births on the atoll gradually declined as breeding females disappeared and apparently died. They reached a low point In 1986 when only one pup was bom. To help rebuild the number of breeding females at Kure, the National Marine Fisheries Service began a head start program in 1981. The effort Involves removing newly weaned female pups from the beaches of Kure, placing them In an enclosed pen on the atoll's shoreline, raising them through their first summer in the protective enclosure, and releasing them back Into the wild at Kure. From 1981 through 1991, 33 pups were treated and released, including 5 in 1991. As of the end of the 1991 field season, 25 of the 33 head start animals released on Kure Atoll were known to be alive. To supplement these efforts, emaciated female pups unlikely to survive on their own have been taken from French Frigate Shoals for rehabilitation since 1984. These animals are moved to facilities In Honolulu, hand-reared, and later released at Kure. As of the end of 1990, 14 rehabilitated pups had been released at Kure. In addition five healthy pups were taken from French Frigate Shoals and released on Kure In 1990. In 1991, six additional animals were rehabili- tated and released. Fourteen of the 20 animals rehabilitated and released at Kure were known to be alive as of the end of the 1991 field season. In recent years, the Coast Guard has helped rebuild the Kure Atoll seal colony by reducing human distur- bance of pupping beaches. This has been done by placing some, though not all, beach areas off-limits to its station personnel. During 1991, the Coast Guard announced its Intent to close the Kure Atoll LORAN station by July 1992. At that time, the Island will be returned to the State of Hawaii, and disturbance should be effectively eliminated. During 1991, the Coast Guard began consultations with the State and the National Marine Fisheries Service on steps that would be taken to close the station. Seals released from the head start and pup rehabili- tation programs now constitute a majority of the females giving birth on Kure Atoll, and beach counts on the atoll have Increased significantly since 1981. In light of the Coast Guard's plans and the past success of efforts to reverse the decline in the Kure Atoll seal colony, the Service plans to shift efforts in 1992 to Midway, the atoll Immediately east of Kure. The seal colony at Midway has declined to only a few individuals, and in 1991 only two births were reported. A study to test for ciguatera, a naturally occurring blotoxin that may accumulate in monk seal prey, will be done at Midway early In 1992. If the results indicate that levels of the toxin pose no threat to monk seals, rehabilitated pups from French Frigate Shoals will be released at Midway later in 1992. Head start efforts will not be undertaken at Midway unless it is determined that pup survival rates are low. Efforts at Kure in 1992 will be limited to monitoring the colony to determine if further efforts to rebuild the population are necessary. Interactions with Marine Debris Hawaiian monk seals, particularly pups, can be attracted to derelict fishing nets and other marine debris. Once attracted to such material, they may become entangled, possibly leading to Injury or death 19 MARINE MAMMAL COMMISSION — Annual Report for 1991 (see Chapter VI). Seals also may ingest small items of debris. While evidence of entanglement is clear, no documented cases of monk seals' ingesting debris have been reported. Ingestion of debris has been reported in other seal species. From 1974 through 1984, at least 35 cases of entangled monk seals were documented. In most cases, seals were able to free themselves without injury. From 1985 through 1990, 51 entanglement incidents were observed, including four instances in which seals were known to have died. A few other seals that were badly entangled likely would have died had researchers not freed them. Derelict trawl net webbing appears to be the most common and most hazardous form of debris for seals. Routine efforts were begun in 1982 to remove hazardous debris washing ashore. Observed entanglement rates have fluctuated. From 1982 to 1985, they declined to a low point of about 0.05 incident per 100 camp days per 100 seals (including pups and adults). Between 1985 and 1988, they increased steadily to a high of about 0.5 incident per 100 camp days per 100 animals. For pups alone, entanglements in 1988 averaged about 1.5 incidents per 100 camp days per 100 pups. In 1989, observed entanglement rates declined slightly, in 1990 they declined substantially, and in 1991 they increased again to a level approximately half that observed in 1988. Six entanglements were recorded in 1991, none of which are known to have resulted in the animal's death. Entanglement rates vary from island to island and have consistently been greatest at Lisianski Island where, between 1982 and 1988, they averaged 4.4 entanglements per 100 camp days per 100 seals. Unfortunately, there is no basis for estimating the number of animals entangled offshore that do not make it back to the beach. To mitigate the problem, researchers attempt to free any observed entangled animals and to remove or destroy debris that washes ashore. Since 1985, the Service's Marine Entanglement Research Program has provided funds to help defray program costs needed to accomplish these objectives. Since 1985, the amount of debris observed and removed or destroyed from the Northwestern Hawaiian Islands has more than doubled. Efforts to reduce sources of marine debris are discussed in Chapter VI. In 1991, derelict "lightsticks" used by longline fishermen also became a source of concern. Light- sticks are sealed plastic tubes, several inches in length, filled with liquid. When bent, an interior tube is snapped, releasing chemicals that react to produce a phosphorescent glow lasting several hours. Light- sticks are attached near baited hooks where their light attracts target species, such as swordfish and albacore, as well as other animals during nighttime fishing. Fish and Wildlife Service personnel stationed on Tern Island in French Frigate Shoals began finding large numbers of lightsticks washing ashore early in 1991 during the period when longline fishermen operate closest to the Northwestern Hawaiian Islands. There was no evidence of lightsticks being ingested by seals. However, they did find lightsticks in the gullets of some albatrosses. It appeared that light- sticks, used in the tens of thousands by longline fishermen, were being discarded after use. Discard- ing any plastics in U.S. waters is illegal. When the matter was brought to the attention of the Western Pacific Regional Fishery Management Council, it wrote to the National Marine Fisheries Service asking that steps be taken to assess possible effects on Hawaiian monk seals. A copy of the Council's 5 July 1991 letter was sent to the Commission and, on 16 August 1991, the Commission wrote to the manager of the Service's Marine Entanglement Research Program. In its letter, the Conmiission noted the need to investigate possible toxic effects of chemicals in lightsticks on wildlife as well as possible mechanical injury due to ingestion by seals or albatrosses. It also noted that fishermen should be advised that lightsticks were being found on island beaches and posed a hazard to protected species, that intentional discard is illegal, and that fishermen are obligated to take steps to prevent intentional or unintentional losses. The program manager replied on 27 September 1991, noting that brochures and placards had been provided to the Service's Regional Office in Honolulu 20 Chapter 11 — Species of Special Concern describing legal requirements governing the disposal of plastics and other garbage at sea. The materials would be provided to fishermen during meetings on various fishery issues, including the need to retain lightsticks for disposal back in port. The letter also advised that a preliminary assessment of the chemicals in lightsticks indicated that they are non-toxic and that the matter was being further investigated by contacting the manufacturer. Late in 1991, there was a significant decline in the number of lightsticks found on French Frigate Shoals by Fish and Wildlife Service personnel. In the past, however, peak occurrence on the beaches has been in late winter when fishing vessels were closest to the Northwestern Hawaiian Islands. Thus, it is not yet clear whether the decline resulted from a reduction in the number of lightsticks being lost or discarded or from the seasonal location of fishing operations. Tern Island Cleanup and Seawall Repair Tern Island is a strategically vital facility for protecting Hawaiian monk seals, seabirds, and sea turtles. Located 500 miles west-northwest of Honolu- lu, it is the only permanently occupied field station in the Hawaiian Islands National Wildlife Refuge, which includes a number of small islands extending nearly 1 ,000 miles from Nihoa Island to Midway. The island is little more than a 3,000-foot runway built by the Navy on an 1 1-acre island in 1942. Navy construction expanded the island to 37 acres, most of which was sand and coral backfill behind a sheet- metal bulkhead. In 1952, the Coast Guard took over the island to establish a LORAN navigation station. In 1979, the Coast Guard station was closed and the Fish and Wildlife Service began using the facilities as a full-time field station. As in previous years, the importance of the field station and its facilities was illustrated again in 1991 when Fish and Wildlife Service personnel documented evidence of commercial fishery-related injuries to monk seals and albatross and alerted fishery manag- ers. Field station personnel also documented the occurrence of and problems associated with light- sticks, helped monitor the status of seal and other wildlife populations, assisted in airlifting emaciated seal pups to rehabilitation facilities for subsequent restoration of other island colonies, and freed monk seals and sea turties that might otherwise have died from debris and entrapment in the island's deteriorat- ing seawall. Tern Island, however, is also a source of serious problems and faces an uncertain future. When constructing the runway, the Navy installed 20 under- ground fuel tanks. When the Navy withdrew from the island, many of the tanks were left full or partially full. With age, the tanks began leaching their hazard- ous contents into island subsoil. Large amounts of cable and other debris capable of entrapping wildlife also were buried when the runway was built or left on an adjacent island. When the Coast Guard abandoned the island, it left behind generators and electrical equipment containing highly toxic polychlorinated biphenyls (PCBs). Complicating these problems, the protective seawall has deteriorated to a point where complete structural failure and massive erosion are imminent. In the late 1980s, the Fish and Wildlife Service considered abandoning the field station as a cost- cutting measure. The Commission, as well as Con- gress and others, urged the Service not to do so. After further analysis and with special Congressional appropriations for the Hawaiian Islands Refuge, the Service agreed. Since then, the Commission, the Service, the Navy, the Corps of Engineers, and the National Marine Fisheries Service have worked closely to organize efforts to clean up the island and repair its seawall. In 1991, involved agency officials reviewed progress and coordination needs during the Commission's 25-27 April annual meeting in Belle- vue, Washington, and during a 5-6 November Hawai- ian monk seal program review in La Jolla, California. As part of initial efforts, the Fish and Wildlife Service and the Corps of Engineers signed an agree- ment late in 1990 for an engineering study to identify alternative approaches for restoring the seawall. In 1991, the two agencies also reached an agreement for immediate action to proceed with cleanup efforts. Using funds available under the Defense Environmen- tal Restoration Act, which establishes an account to 21 MARINE MAMMAL COMMISSION - Annual Report for 1991 support work on mitigating environmental damage and hazards caused by Defense Department activities, the Corps emptied the underground storage tanks, filled them with a concrete slurry to stabilize them, and removed the electrical equipment containing PCBs. Further work to treat or remove soils contaminated by leaking fuel may be undertaken in 1992. With regard to repair of the deteriorating seawall, the Fish and Wildlife Service has conducted a bathy- metric survey and provided funds to the Corps for the engineering study. Based on the results, a recom- mended approach will be selected and the Corps will enter a project design phase expected to be completed in 1993. Construction could begin by 1995. Male Mobbing Behavior As noted above, recovery of Hawaiian monk seals at some of the major breeding colonies is being impaired by the death of females and immature seals as a result of aggressive attacks by groups of up to 25 male seals attempting to mate. These incidents are believed to have caused a skewed sex ratio favoring males at some atolls. During mobbing incidents, aggressive males repeatedly bite and scratch their victims on the back and neck, often causing serious injuries. Some female victims die directly from the injuries and others are probably killed by sharks attracted by secretions from open wounds. Mobbing incidents have been most apparent at Laysan Island but have also been seen on Lisianski Island and French Frigate Shoals. The frequency of these incidents appears to have increased in recent years. Mobbing behavior threatens the reproductive potential of affected colonies by reducing the number of breeding females. For example, at Laysan seven mature females were killed in 1989, while only one animal was recruited to the breeding population. In 1990, two mature females were killed and two recruit- ed. In both years, male and female pups were also killed in mobbing incidents at the island. If the behavior continues, the ratio of males to females will become more strongly skewed towards males, which could exacerbate the problem. To address this problem, the National Marine Fisheries Service has investigated the possibility of removing selected male seals known or suspected to have engaged in male mobbings, and administering a drug to suppress testosterone production and reduce their libido, or otherwise treating problem males. Because of risks to the island colonies, including the possibility of removing or otherwise interfering with dominant males responsible for siring pups, the Service has proceeded cautiously. Work to date has been limited to monitoring the nature and frequency of mobbing incidents, identifying male seals involved, collecting tissue samples for analyses to identify male seals responsible for siring pups, and testing on captive males a drug that temporarily suppresses testosterone levels. In previous years, the Commission has recom- mended that certain background studies be completed before any field testing to address the problem. Although much background work has been done, all of the recommended studies have not been completed and some critical questions remain unanswered. For example, genetic studies to identify dominant male seals responsible for siring pups have not been com- pleted. Also, while a testosterone suppressant drug has been tested on captive animals and shown to depress testosterone levels, it has not been determined whether doing so will also decrease the libido of treated males. Nevertheless, the number of female seals being killed as a result of male mobbing is far out-pacing recruitment at some colonies and thereby is seriously threatening their future reproductive potential. Therefore the Service is considering a limited field trial of the testosterone suppressant drug during the 1992 field season to examine behavioral and social structure effects of chemically "removing" males involved in mobbing. Favorable results from the experiment would be followed by further drugging and/or actual physical removal of offending males. At the end of 1991, a decision on whether to proceed had not been made and was to be considered further at a Hawaiian Monk Seal Recovery Team meeting scheduled for 13-15 January 1992. 22 Chapter 11 — Species of Spiecial Concern Hawaiian Monk Seal Program Review As described in previous Annual Reports, in the late 1980s, support and direction of the Hawaiian monk seal recovery activities did not appear to be commensurate with the species' critical status. To help address problems facing the species, the Commission recommended to the National Marine Fisheries Service that the Hawaiian Monk Seal Recovery Team, which had not met since 1984, be reconvened. The Service agreed and scheduled a meeting for 12-14 December 1989. To ensure that the Service and the Team had a careful review of the critical issues, the Commission, in cooperation with the Service, also convened a 4-5 December 1989 review of the Hawai- ian monk seal recovery program. The Commission provided results from the review, including recom- mendations, to the Service and the Recovery Team by letter of 11 December. As noted in the 1990 Annual Report, most of those recommendations were adopted. As indicated above, many critical recovery issues remain. To provide further assistance in identifying priority needs, the Commission, again in cooperation with the National Marine Fisheries Service, scheduled another program review for 5-6 November 1991 at the Service's Southwest Fisheries Science Center in La Jolla, California. The review was again scheduled so that the results could be provided to the Recovery Team in time for its meeting later in the winter. To make the review as productive and as valuable as possible, the Commission invited representatives of the Fish and Wildlife Service, the Navy, the Corps of Engineers, and the Coast Guard. The review confirmed that much progress had been made since the 1989 program review. For example, the Recovery Team had resumed a regular meeting schedule, the budget for monk seal recovery activities had been increased, and the overview of monk seals in captivity had been greatly strengthened. Partici- pants noted, however, that most funding and staff effort was still being devoted to population monitoring and data analyses that do little in and of themselves to actually restore the species. Participants felt strongly that the information base had evolved to a point where greater emphasis could and should be placed on work directly related to specific restoration tasks. On 20 December 1991, the Commission, in consul- tation with its Committee of Scientific Advisors, provided its conclusions and recommendations to the National Marine Fisheries Service and the Recovery Team. Regarding interactions with commercial fisher- ies, the Commission recommended that: (1) a pilot program to track monk seals using satellite-linked tags be designed and organized in time for use in the 1992 field season to assess at-sea foraging and habitat use patterns; (2) fishery observer programs be reviewed to ensure that they provide useful and reliable data on interactions between monk seals and fishing opera- tions, including those for vessels operating between 50 and 100 nautical miles of the Northwestern Hawaiian Islands; (3) information on monk seal prey species, particularly those taken by commercial fisheries, be compiled and used to design studies to monitor prey abundance; (4) a pending proposal be adopted to limit new entrants to the Northwestern Hawaiian Island lobster fishery and develop aimual harvest quotas; and (5) the Service evaluate whether its definition of overfishing for lobsters, which allows lobster stocks off the Northwestern Hawaiian Islands to decline to a level 80 percent below historic levels, provides adequate protection for monk seals, given predator- prey relationships between the two species. With respect to the male mobbing problem, the Commission recommended that the Service provide the Recovery Team and the Commission with key background information on the mobbing issue so that the best possible advice on how to proceed in the coming field season could be developed during and after the January 1992 Recovery Team meeting. Among other points, the background materials should cover information on the nature and frequency of mobbing events, alternative and recommended courses of action, possible beneficial and detrimental effects of each alternative, and the results of studies to date to identify animals that would and would not be treated. Also, if the Service's preferred approach continues to be experimental use of the testosterone suppressant drug, the Commission recommended that the back- ground material include an experimental design with decision criteria for evaluating study results. In other areas, the Commission also recommended that: (1) population monitoring studies be continued 23 MARINE MAMMAL COMMISSION — Annual Report for 1991 during the coming field season, but that use of alter- native sampling and census techniques {e.g., alternate year or triennial censuses of indicator groups, remote sensing, and aerial photogrammetry) be pursued to allow shifting more funds and staff time to tasks directly contributing to recovery; (2) membership of the Recovery Team be expanded to include additional behavioral expertise, a physical oceanographer, and a representative of the Fish and Wildlife Service; (3) officials involved in inspecting facilities maintain- ing captive monk seals be augmented to include marine mammal experts; and (4) support be provided to continue regular meetings of an interagency work- ing group formed as a result of the Commission's pro- gram review to coordinate efforts to clean up Tern Island and repair its seawall. With respect to the interagency working group, the Corps of Engineers convened the group soon after the November 1991 program review to discuss the range of issues affect- ing restoration of the seawall on Tern Island. With regard to closing the Coast Guard's LORAN station on Kure Atoll in 1992, the Conmiission recom- mended in its letter that the Service complete consul- tations with the Coast Guard on the effects of activi- ties associated with closing the station. Among the needs and activities of concern are the complete removal of the solid waste dump on the island, demolition of some of the buildings, dismantling of equipment, and removal of all hazardous materials associated with generators and other equipment at the station. To ensure that such work is carried out with minimal effect on the atoll's seal population, the Commission recommended that the Service place an observer on the island to monitor and, as necessary, provide advice on measures to protect seals during the principal work period to dismantle and remove equipment. At the end of 1991, the Commission looked forward to providing continued advice and assistance to the many agencies whose cooperation is so impor- tant to the success of the Hawaiian monk seal recov- ery program. It also looked forward to the results of the January 1992 Hawaiian Monk Seal Recovery Team meeting and the Service's reply to its 20 De- cember 1991 recommendations. Steller Sea Lion (Eumetopias jubatus) Steller or northern sea lions inhabit coastal areas along the rim of the North Pacific Ocean from the Channel Islands in southern California through the Gulf of Alaska and Aleutian Islands to northern Hokkaido, Japan. In the United States, Steller sea lions are most abundant in the Aleutian Islands and Gulf of Alaska. Available information indicates that Steller sea lions numbers are declining substantially throughout most of their range. Recent censuses of major rook- eries and haulouts in the western Gulf of Alaska and eastern Aleutian Islands in the United States and in the Kuril Islands in Russia indicate declines in some areas of up to 90 percent over the past 30 years. The declines have occurred principally since the mid- 1980s. Between 1985 and 1989, for example, the number of sea lions counted in the eastern Aleutian Islands declined by more than 70 percent. A sum- mary of Steller sea lion counts in the United States, Canada, and the former Soviet Union is given in Table 3. The cause or causes of the declines are uncertain. Natural factors, such as predation by sharks and killer whales, parasites, disease, and natural changes in environmental conditions, may have influenced the population. Likewise, there have been effects result- ing from human-caused factors, such as subsistence harvesting by Alaska Natives, mortality incidental to commercial fishing activities, commercial over-exploi- tation of important prey species, the release of toxic pollutants, entanglement in marine debris Oargely lost or discarded fishing gear), disturbance by boats and aircraft, and the deliberate shooting of sea lions as well as discharge of firearms at or near rookeries and haulout sites. In addition, commercial hunting, which ceased in the United States when the Marine Mammal Protection Act was passed in 1972, may have been responsible for at least part of the earlier observed decline. 24 Chapter II — Species of Special Concern V B I. s: e 93 = i v^ O CO c-» _ t- 00 0\ 00 o I I I I I I I I I en — O O oo r- t-- o\ ON ^ CJ VO — r> — VO "^ 111 + I I I I C9 a c es S I I I I I t^ 00 00 tt' (S VO t-- 00 o\ 0\ ID VO as 42 3 _© 3 « S "O c *u o o Oi 2Sg88 VO O 00 0\ cs VO ov «« r- -H m •<*■ VO >n t~ — VO 1 fr) O p n r~ fS VO Ov Ov m O m r- -« m •«t . i' -a «- uZ"g O 1— ' _ • s « >• 3 li V CO 03 qS .s -> E ^ Si «:: vc OQ 06 PI Js •E o 25 MARINE MAMMAL COMMISSION — Annual Report for 1991 The most likely causes of the recent declines are incidental take by trawl fisheries (more than 20,000 animals between 1966 and 1988), commercial exploi- tation of important prey species, particularly walleye pollock (Theragra chalcogramma), and shooting by fishermen to defend their gear or catch. Sea lions in the central Gulf of Alaska seem to be growing more slowly and reaching sexual maturity later in life, suggesting that decreased food availability may be at least one of the causes of the declines. At present, one cannot say whether the apparent nutritional problem is due to natural or human-related causes or a combination of the two. Ecologically sound man- agement dictates that, unless it is determined that the declines are due to natural factors, efforts should be focused on eliminating or minimizing human-caused mortality, injury, and habitat degradation. Protective Actions In May 1988, the National Marine Fisheries Service published an advance notice of proposed rulemaking to designate the Steller sea lion as depleted under the Marine Mammal Protection Act. By letter of 8 July 1988, the Commission recommended that the Service proceed immediately with the proposed designation and that a conservation plan, similar to a recovery plan for endangered and threatened species, be developed to guide management and research efforts. TTie 1988 amendments to the Marine Mam- mal Protection Act subsequently directed the Service to prepare a Steller sea lion conservation plan by 31 December 1990. By letter of 6 December 1988, the Commission advised the Service that much of the information and analyses needed to prepare the plan were available in the Steller sea lion chapter of the Commission's 1988 Alaska species reports (see Appendix B, Lentfer 1988), and that the Service therefore should be able to complete the conservation plan well before the 31 December 1990 date set by Congress. The Service, in 1989, failed to prepare a conserva- tion plan or publish a proposed rule to designate the Steller sea lion as depleted. On 21 November 1989, the Environmental Defense Fund petitioned the Service for an emergency listing of the Steller sea lion as endangered under the Endangered Species Act. By letter of 20 December 1989, the Commission recom- mended that the Service act immediately on the petition and that it complete and distribute a draft Steller sea lion conservation plan by March 1990. The Commission wrote the Service again on 31 January 1990 to stress the importance of acting promptly on the Environmental Defense Fund's petition and completing a recovery plan or conserva- tion plan for Steller sea lions. At that time, the Commission also recommended that the Service take steps to prepare proposed rules listing the Steller sea lion under the Endangered Species Act, and establish a Steller Sea Lion Recovery Team to expedite the preparation of a recovery or conservation plan. On 5 April 1990, the National Marine Fisheries Service published a Federal Register notice: (1) listing the Steller sea lion as threatened under the Endangered Species Act on an emergency basis; (2) announcing the establishment of the Steller Sea Lion Recovery Team; (3) repealing existing regula- tions that allowed fishermen to shoot at or near sea lions to prevent sea lion interactions with their fishing gear; (4) reducing by half (from 1,350 to 675) the number of Steller sea lions allowed to be taken incidental to commercial fishing operations in the region west of 141 ° west longitude (although the total allowable take remained at 1,350, as an additional 675 were allowed to be taken east of 141 ° west longitude); and (5) establishing no-entry buffer zones around the principal Steller sea lion rookeries in parts of Alaska. The emergency rules were effective through 3 De- cember 1990. By letter of 18 May 1990, the Commission advised the Service that: (1) the conservation measures con- tained in the 5 April 1990 emergency rule could be insufficient to reverse the observed population decline; (2) the Conmiission continued to believe that the species should be listed as endangered rather than threatened; (3) with the exception of prohibiting the discharge of firearms at or near Steller sea lions, all measures contained in the emergency rule were limited to Steller sea lions in Alaska and the Service should consider adopting additional measures, includ- ing designating critical habitat for Steller sea lions in Washington, Oregon, and California as well as Alaska; and (4) a critical habitat designation for 26 Chapter 11 — Species of Special Concern Steller sea lions should include all major rookery areas and sufficient forage habitat around those areas to allow successful breeding and pup rearing. On 20 July 1990, the National Marine Fisheries Service published a proposed rule to designate the Steller sea lion as threatened under the Endangered Species Act and to enact protective measures to replace those in the emergency rule. The final rule was published on 26 November 1990 and, in the 4 December 1990 Federal Register, the Fish and Wild- life Service announced the addition of the Steller sea lion to the List of Endangered and Threatened Wild- life. In the 26 November 1990 rule, the National Marine Fisheries Service stated a number of reasons why the Steller sea lion was being listed as threatened rather than endangered. The Service noted that: (1) there is no basis for considering animals in differ- ent geographic regions as separate populations (there- fore the status of the species as a whole must be considered); (2) there are areas in the species' range where abundance has been stable; and (3) preliminary results of counts done in 1990 appeared similar to those done in 1989, suggesting that the decline may have slowed or stopped. Also during 1990, the Steller Sea Lion Recovery Team met four times. The principal activity of the recovery team was to prepare a recovery plan, which it completed in draft form and provided to the Na- tional Marine Fisheries Service. Late in March 1991, the Service sent the Com- mission a copy of the Technical Draft Steller Sea Lion Recovery Plan prepared by the Recovery Team. The plan recommended "immediate actions... to reduce human-caused mortality to the lowest level practica- ble, protection of important habitats through buffer zones and other means, and enhancement of popula- tion productivity by ensuring that there is an ample food supply available." To implement these objec- tives, the draft plan presented several recommended research and conservation actions, including: (1) iden- tifying habitat requirements and protecting areas of special biological significance; (2) identifying manage- ment stocks; (3) monitoring the status and trends of the species; (4) monitoring the health, condition, and vital parameters of the species; (5) assessing and minimizing the causes of mortality; (6) investigating feeding ecology and factors affecting energetic status; and (7) implementing the recovery plan and coordi- nating recovery activities. On 11 April 1991, the Recovery Team also recom- mended that the National Marine Fisheries Service designate critical habitat for Steller sea lions at major rookeries and haulout sites throughout Alaska, Wash- ington, Oregon, and California. The Recovery Team also identified sites in British Columbia and the Kuril Islands for inclusion in the critical habitat designation and recommended that the National Marine Fisheries Service, through the State Department, work with the Governments of Canada and the Soviet Union to protect Steller sea lion habitat. On 13 May 1991, the Commission provided com- ments to the National Marine Fisheries Service on the draft plan. The Commission recommended that the Service complete and adopt the plan as quickly as possible and that the Service initiate efforts immedi- ately to implement the plan. The Commission further recommended that the Service take steps to: (1) ap- point or hire a full-time Steller sea lion coordinator; (2) reconvene the Recovery Team to solicit advice on actions that the Service should undertake in the coming year as matters of highest priority, given available funding and personnel resources; and (3) develop an implementation plan and strategy to assign priorities and foster the involvement of other appro- priate agencies and groups in implementing recovery actions. The Commission also recommended that the Service convene a separate recovery plan implemen- tation team composed of representatives of relevant agencies and groups to assist in developing and directing plan implementation. On 15 July 1991, the Commission wrote to the National Marine Fisheries Service inquiring about the status of the recovery plan and actions on the Recov- ery Team's critical habitat recommendations. The Service responded on 1 August 1991, noting that the Commission's comments, as well as other comments on the draft recovery plan, had been forwarded to the chairman of the Recovery Team for review and discussion at its sixth meeting, scheduled for 15-16 August 1991. The Service also noted that it was 27 MARINE MAMMAL COMMISSION — Annual Report for 1991 drafting proposed regulations to designate critical habitat. At the end of 1991, the National Marine Fisheries Service had not yet published proposed rules for Steller sea lion critical habitat designation. The Commission also understood that, on 3 October 1991, the Steller Sea Lion Recovery Team forwarded a revised draft recovery plan to the National Marine Fisheries Service. At the end of 1991, it was the Commission's understanding that the plan was under- going final review by the Service and adoption of the plan was expected in 1992. Recognizing the need for a complete, up-to-date summary of information on Steller sea lions, given the considerable amount of new information on this species generated over the past three years, the Com- mission provided funds to the Alaska Department of Fish and Game in September 1991 to update the Steller sea lion species report (see Appendix B, Lentfer 1988). The updated report, expected to be published in mid-1992, will improve the basis for evaluating and implementing priority tasks identified in the recovery plan. The Commission, in consul- tation with its Committee of Scientific Advisors, will review the revised species report and recommend appropriate follow-up actions. Steller Sea Lion-Fisheries Interactions As noted above, a possible cause of observed declines in Steller sea lion abundance is the over- exploitation of prey species, particularly walleye pollock, by conunercial fisheries. In December 1990, the North Pacific Fishery Management Council proposed increasing the total allowable catch of pollock in the Gulf of Alaska from 73,400 metric tons in 1990 to 133,400 metric tons in 1991. In response, the Sierra Club Legal Defense Fund, on behalf of Greenpeace and several other environmental groups, wrote to the Service on 28 January 1991 advising that it intended to file suit under the Endangered Species Act and the National Environmental Policy Act if an increased harvest level were adopted. Approval of the 1991 pollock catch level was deferred by the National Marine Fisheries Service to allow for ftjrther analysis of the effects on Steller sea lions. Based upon a reassessment of available fisher- ies data, the Service's Northwest and Alaska Fisheries Science Center recommended that the total allowable catch of pollock for 1991 be set at 103,400 metric tons. The Center also recommended that measures be taken to protect the Steller sea lions' food supply, including allocation of the quota by region, as well as by quarter, and imposition of a trawling prohibition around Steller sea lion rookeries. The Service also solicited the views of the Recovery Team on the proposed catch limit. The Recovery Team, consider- ing "only what is best for conservation and recovery of sea lions," recommended a total allowable catch of zero, or one equal to or less than the 1990 level. Based on this and other advice and information, the Service prepared an Environmental Assessment and undertook consultations pursuant to section 7 of the Endangered Species Act on a recommended 1991 pollock catch level of 103,400 metric tons. Based on these further steps, the Service adopted the Northwest and Alaska Fisheries Science Center's recommended catch quota on 13 June 1991. Emergency regulations were also issued on that date allocating the quota among sub-areas, limiting the amount of unharvested pollock that may be taken during subsequent quarters in a fishing year, and prohibiting fishing within 10 nautical miles of 14 designated sea lion rookeries. On behalf of Greenpeace and other environmental groups, the Sierra Club Legal Defense Fund filed a lawsuit {Greenpeace v. Mosbacher) in the U.S. District Court for the Western District of Washington on 26 June I99I. Plaintiffs alleged, among other things, that the Service had violated the Endangered Species Act by improperly finding that the 1991 pollock catch level was not likely to jeopardize the continued existence of the Steller sea lion and by failing to use the best scientific and conmiercial information available in determining the allocation. Plaintiffs also contended that the Service's conclusion that the 1991 pollock catch level would not have significant environmental impacts and its decision not to prepare an environmental impact statement on the action violated the National Environmental Policy Act. 28 Chapter II — Species of Special Concern On 11 July 1991, plaintiffs filed a motion for a preliminary injunction seeking to close the pollock fishery because of the alleged violations and the potential harm to Steller sea lions. A hearing on the motion was held on 26 July 1991. Two days before the hearing, however, the fishery was closed by the Service until 29 September 1991 because the quarterly pollock quota had been reached. In light of that closure, the Court determined that expedited review was not necessary and directed the parties to file briefs on the merits during August. Following briefing and a hearing on cross-motions for summary judgment, the Court ruled in favor of the Federal defendants. In its 10 October 1991 order, the Court found that the Service had used the best available information in determining that the 1991 pollock catch level would not jeopardize the continued existence of the Steller sea lion. In this regard, the Court noted that the defendants provided "plausible, factually based arguments" that conservation measures adopted by the Service would "adequately mitigate any potential (and unproven) harm to the Steller sea lion from pollock fishing." The Court also noted that, while plaintiffs may reasonably debate the efficacy of the mitigation measures, "[r]easonable differences of opinion... do not indicate that the Secretary's no- jeopardy determination was irrational or conclusory." The Court also found the plaintiffs' National Envi- ronmental Policy Act claims to be unpersuasive. It ruled that, "[wjhile the Secretary [of Commerce] has acknowledged that past pollock fishing may have adversely impacted Steller sea lions and harbor seals," the action at issue in this case, the 1991 pollock catch level, "avoids those risks because of mitigation measures" (emphasis in original). The Court also ruled that the controversy as to the possible effects of the pollock catch level were insufficient to warrant preparation of an environmental impact statement. Greenpeace appealed the District Court ruling to the Ninth Circuit Court of Appeals on 11 October 1991. Federal appellees, in their 16 December 1991 reply brief, reiterated the substantive arguments made in the lower court, but also argued that, inasmuch as the challenged fishery closed on 25 October 1991, the case should be dismissed as being moot. Consider- ation of the matter by the Court of Appeals is expect- ed in 1992. As a related matter, on 18 November 1991, the National Marine Fisheries Service published in the Federal Register a proposed rule to revise several measures designed to reduce the impact of groundfish fisheries on Steller sea lions in Alaska. The Service proposes to adopt: (1) year-round trawl fishery clo- sures in the Gulf of Alaska and Bering Sea/ Aleutian Islands area within 10 nautical miles of key Steller sea lion rookeries, and (2) new Gulf of Alaska walleye pollock management districts and a limit on seasonal harvest allocations for each district. Sea Lion Rock Sea Lion Rock is a small exposed reef in the Copal is National Wildlife Refuge on the outer coast of Washington. It is used as a seasonal haulout site by Steller sea lions, California sea lions (Zalophus calif omianus), and harbor seals (Phoca vitulina); it is also used by many species of seabirds and waterfowl. In May 1944, the Secretary of the Interior granted permission to the U.S. Navy to conduct practice bombing activities on Sea Lion Rock as part of the Naval Air Training Program, with the stipulation that the program's use of the island would cease six months after the end of World War 11. In July 1949, the Navy again requested permission to use Sea Lion Rock as a practice bombing site. The Secretary of the Interior granted the request and gave the Navy per- mission to use the island for an indefinite period of time. In 1970, Sea Lion Rock and a number of surrounding islands in the refuge were included in the Washington Islands Wilderness Area under the Wil- derness Act of 1964. The Navy has continued to use Sea Lion Rock as a practice bombing site since that time. In 1984, the Washington Department of Game began a two-year study to determine the effect of Navy activities on wildlife in the Copalis National Wildlife Refuge. In its 1986 report, the Department noted that bombing activities may cause the abandon- ment of Sea Lion Rock by all wildlife, and, as the Navy sometimes bombs other islands in the Refuge 29 MARINE MAMMAL COMMISSION — Annual Report for 1991 accidentally, the bombing may adversely affect wildlife on those islands as well. In a compatibility determination prepared by the Fish and Wildlife Service's Refiige Division, the Service concluded that under no circumstances could practice bombing of Sea Lion Rock by the Navy be made compatible with refuge objectives to protect and enhance wildlife resources. On 8 February 1991, the Marine Mammal Com- mission wrote to the Navy regarding its use of Sea Lion Rock. The Commission noted that the Navy's use of the island for practice bombing purposes was incompatible with other wildlife conservation uses of the island. In particular, the Commission noted that: (1) the island is a part of both a wildlife refuge and a wilderness area; (2) it is used by many marine mam- mal, seabird, and waterfowl species; (3) the designa- tion of the Olympic Coast National Marine Sanctuary, which would incorporate all islands in the Copalis National Wildlife Refuge, was pending; (4) all marine mammal species are protected under the Marine Mammal Protection Act; (5) the Steller sea lion and gray whale {Eschrichtius robustus) also are protected under the Endangered Species Act; and (6) certain seabird and waterfowl species are protected under the Migratory Bird Treaty Act. The Commission further noted that the Navy's practice bombing activities on Sea Lion Rock were inconsistent with provisions of the cited statutes and with the island's wildlife refuge and wilderness status. Therefore, the Commission, in consultation with its Committee of Scientific Advisors, recommended that the Navy stop using Sea Lion Rock for practice bombing and the low level flying that it necessitates. The Commission noted that the Navy cannot continue using Sea Lion Rock unless it takes steps to comply with applicable laws, including the Marine Manmial Protection Act, the Endangered Species Act, the Migratory Bird Treaty Act, and the Wilderness Act. The Commission further noted that the Department of the Interior should give serious consideration as to whether to continue authorizing the Navy's use of Sea Lion Rock for practice bombing. In an effort to further the Navy's understanding of problems associated with the use of Sea Lion Rock, the Commission supported a group comprised of three researchers and one lawyer expert in Steller sea lion issues to travel to Whidbey Island Naval Base on 14 February 1991 to meet with key Navy personnel. The group, led by a former member of the Commission's Committee of Scientific Advisors, included the National Marine Fisheries Service's Steller sea lion program director and the counsel for the National Oceanic and Atmospheric Administration's Northwest and Alaska Region. The group briefed the command- ing officer and his staff on changes in the status of Steller sea lions and the effect of these changes on the Navy's use of Sea Lion Rock. The group also noted that the meeting could help the Navy avoid a major legal conflict. The group came away from the meeting with six specific findings: (1) the Navy states that Sea Lion Rock is used exclusively as a backup for another, primary practice bombing site; (2) the Navy personnel present at the meeting acknowledged that they need to comply with the Marine Mammal Protection and Endangered Species Acts; (3) the Navy indicated improved compliance with their own protocol (result- ing in decreased adverse effects on the islands nearest to Sea Lion Rock); (4) the State will not allow the Navy to place radar reflectors on the islands nearest to Sea Lion Rock, despite the fact that doing so would likely also decrease adverse effects on these islands; (5) no sea lions are hit directly by the inert practice bombs, and therefore the main "take" under the Marine Mammal Protection Act and the Endangered Species Act is harassment of the animals; and (6) as alternative targets, smoke targets were unacceptable to the Navy because of the importance of radar target acquisition to the training activities, and a moored barge was unacceptable due to cost and the inability to use it on short notice. Following the meeting, the group concluded that the most expeditious way to stop bombing at Sea lion Rock would be to have the Department of the Interior withdraw the Navy's permission to use the island. On 20 March 1991, the Navy responded to the Commission's 8 February 1991 letter. In its letter, the Navy advised the Commission that it would review the issue of the taking of marine mammals incidental to its activities at Sea Lion Rock and would 30 Chapter 11 — Species of S|)ecial Concern initiate appropriate actions as required by relevant statutes. On 9 May 1991, following a presentation by Navy personnel at the Marine Mammal Commission's annual meeting in Bellevue, Washington, the Commis- sion wrote to the Fish and Wildlife Service regarding Sea Lion Rock. The Commission noted that it found the Navy's use of Sea Lion Rock as a practice bomb- ing target to be incompatible with: (1) its designation as a wildlife refuge and a wilderness area and its pending designation as a marine sanctuary, and (2) the presence of species protected under provisions of the Marine Mammal Protection Act, the Endangered Species Act, and the Migratory Bird Treaty Act. The Commission, in consultation with its Committee of Scientific Advisors, therefore recommended that the Service no longer permit the Navy to use Sea Lion Rock as a practice bombing site. On 3 June 1991, the Fish and Wildlife Service responded to the Commission's letter. The Service noted that it was currently reviewing the compatibility of the Navy's use of Sea Lion Rock with the island's status as a refuge and wilderness area and the protect- ed status under applicable laws granted to many wildlife species found there. As of the end of 1991, the Marine Mammal Com- mission had not yet been advised as to the results of the Navy's and Fish and Wildlife Service's respective reviews of Sea Lion Rock use conflicts. In early 1992, the Commission intends to pursue the issue to a definitive conclusion. Harbor Seal in Alaska {Phoca vituUnd) Harbor seals inhabit temperate and sub-arctic coastal waters in the North Pacific and North Atlantic Oceans and contiguous seas. In the North Pacific, they occur nearly continuously along the Pacific Rim, fi-om San Ignacio Lagoon, Baja California, Mexico, north through southeastern Alaska, and west to the Bering Sea, the Aleutian, Commander, and Kuril Islands, and south to Hokkaido, Japan. In the early 1970s, approximately 270,000 harbor seals were estimated to occur in the coastal waters of Alaska. Although there is no up-to-date state-wide estimate, counts made sporadically since the early 1970s at harbor seal rookeries and haulout sites in the Gulf of Alaska and Bering Sea indicate significant declines in many areas. In order to assist research efforts on harbor seal population trends, in 1990 the Commission provided funds to the Alaska Department of Fish and Game to conduct a survey of harbor seals on Tugidak Island in the central Gulf of Alaska. Tugidak was believed to have the largest concentration of harbor seals in the world as recently as the mid-1960s when more than 20,000 seals hauled out on the island. By the mid- 1970s, however, the mean count had declined to less than 7,000 seals. The 1990 survey revealed that, since 1976, mean counts at the Island had declined from approximately 6,900 animals to fewer than 1 ,000, a decrease of 86 percent. A report of the 1990 survey, published in February 1991, recommended that counts be conducted again in 1992 in order to continue monitoring of population trends. To help determine what, if anything, needed to be done to better protect the declining harbor seal popu- lation in Alaska, the Commission provided funds in 1986 to compile and evaluate information on the biology, ecology, and status of harbor seals as well as nine other species of marine mammals in Alaska. The resulting report, published by the Commission in 1988 (see Appendix B, Lentfer 1988), indicated that num- bers of harbor seals, as well as Steller sea lions (Eumetopias jubatus), had declined dramatically in Alaska since the 1970s. As described elsewhere in this Report, North Pacific fiir seals (Callorhinus ursinus) also have declined dramatically since the 1970s. Harbor seals were also affected by the Exxon Valdez oil spill in March 1989. For further discussion of the spill, see previous Annual Reports and Chapter Vn of this Report. Since publication of the 1988 report, much addi- tional information on harbor seals in Alaska has become available, including the counts at Tugidak Island discussed above. Therefore, early in 1991, the Commission contracted for an update of the 1988 31 MARINE MAMMAL COMMISSION — Annual Report for 1991 harbor seal report. The updated report will review and make recommendations for needed research and management actions, including: (1) evaluating popu- lation status by monitoring relative population sizes and trends and the health, condition, and vital parame- ters of harbor seals; (2) coordinating cooperative actions involving the Alaska Department of Fish and Game, the National Marine Fisheries Service, the Fish and Wildlife Service, and the National Park Service; (3) initiating a comprehensive study of harbor seals in Bristol Bay, Alaska, where large concentrations of harbor seals occur; (4) studying direct and indirect effects of commercial fisheries on harbor seals; (5) studying the effects of existing and potential harvests on harbor seals; and (6) studying the short- and long-term effects of anthropogenic disturbance, especially in areas subject to heavy boat and aircraft traffic. species' largest breeding colony is on the Pribilof Islands, where three-fourths of the global population is found. It is estimated that, when the Pribilofs were discovered in 1786, the islands' fur seal population numbered 2-2.5 million animals. Their numbers subsequently fluctuated widely. Despite being re- duced to about 300,000 animals by 1912, the fiir seal population on the Pribilofs recovered to what is believed to have been historically high levels in the late 1940s and early 1950s. From the late 1950s to the mid-1980s, however, the number of fur seals on the Pribilof Islands experienced two periods of decline with a net reduction of 60-70 percent. Population estimates from the mid- 1980s place the number of seals on the islands at about 870,000 animals, and it is believed that the population has remained stable since that time. A similar decline was observed at Robben Island. The updated report is expected to be completed early in 1992. The Commission, in consultation with its Committee of Scientific Advisors, will review the report to determine whether harbor seals in Alaska merit designation as depleted under the Marine Mammal Protection Act or as either threatened or endangered under the Endangered Species Act. As a related matter, the Commission held a work- shop on 12-13 December 1990 in Seattle, Washington, to identify research needed to resolve critical uncer- tainties concerning the decline of Steller sea lions, harbor seals, fiir seals, and other species in the Bering Sea and Gulf of Alaska (see Chapter VII). The final workshop report, published in July 1991, concluded that a reduction in available food resources and incidental take in fisheries were likely to be major factors in the observed harbor seal declines. North Pacific Fur Seal (CaUorhinus ursinus) North Pacific or northern fur seals occur seasonally in waters along the North Pacific rim from California to Japan. Major breeding locations occur on Robben Island and the Kuril Islands in the Okhotsk Sea, in the western Bering Sea on the Commander Islands, and on the Pribilof Islands in the eastern Bering Sea. The Although causes of the observed declines are not known, several factors may have affected or be affecting North Pacific fiir seals. Between 1956 and 1968, more than 300,000 female fur seals were harvested in Alaska. At the time, it was believed that the harvest would result in greater overall productivity within the population. The predicted increase never occurred. Because some nursing females were taken, many of their pups died. The death of these adult females prevented this further contribution to the population. From the mid-1970s to the early 1980s, the Pri- bilof Islands' fur seal population declined at a rate of approximately 4-8 percent per year. In the early 1980s, it was suggested that a major cause of this decline was entanglement of seals in marine debris such as net fragments and packing bands. Analyses by the National Marine Fisheries Service estimated that approximately 50,000 juvenile seals (those up to three years old) were lost due to entanglement every year. Direct evidence of such losses, however, was weak. Observed entanglement rates from counts of entangled juvenile male fiir seals taken in harvests on the Pribilof Islands in the late 1970s were only about 0.4 percent. Since the late 1980s, observed entangle- ment rates on the islands have declined to an estimat- ed 0.34 percent in 1990. 32 Chapter II — Species of Special Concern However, it is likely that many fiir seals that be- come entangled die at sea, where mortality is not readily observed. Evidence that this occurs includes high fur seal pupping rates followed by low overall survival rates of juvenile animals, and recovery of some dead fur seals in derelict nets found floating at sea. In addition, results of entanglement studies in the late 1980s suggest that entanglement-related mortality among fiir seal pups in their first year of life may have exceeded 14 percent in the late 1970s to early 1980s. These results lend further support to the suggestion that entanglement may have been a signifi- cant cause of earlier declines. They also suggest that, although population trends have appeared stable over the past few years and observed entanglement in trawl net fragments at the rookeries declined in the late 1980s, entanglement may still be a significant factor slowing or preventing population recovery. Fur seals are also taken incidentally in large-scale high seas driftnet fisheries in the North Pacific Ocean (see Chapter IV for a more detailed discussion of driftnet fisheries' impacts). Other possible impacts on fur seals are: toxic contaminants; disease; and compe- tition with commercial fisheries. Although little is known about these three effects, they are generally regarded as not being significant. With respect to competition with fisheries, fiir seals feed on a variety of fishes and squids, some of which are commercially important. Recent population studies, however, suggest that fiir seals in the Pribilof Islands and other areas of the North Pacific are exhibiting increased growth and maturation rates, which are inconsistent with insufficient food resources. Subsistence Harvest North Pacific fur seals were harvested commer- cially for their pelts from the 1700s until 1984. They are presently taken for subsistence purposes by Native residents of the Pribilof Islands in Alaska. As noted in previous Annual Reports, the nations involved in commercial fur seal harvests managed fur seal herds under a series of international agreements during most of the 20di century. Between 1957 and 1984, North Pacific fur seals were managed cooperatively by the Governments of Canada, Japan, the Soviet Union, and the United States under provisions of the Interim Convention on Conservation of North Pacific Fur Seals. The Interim Convention, which was extended four times during that period, sought to bring the North Pacific fur seal population to a level that would provide the greatest aimual harvest, with due regard for the productivity of other living marine resources. The Convention lapsed in 1984, when the United States did not ratify a protocol to extend it. As a result, management authority in the United States became subject to domestic laws, including the Fur Seal Act of 1966 (16 U.S.C. 1151 et seq.) and the Marine Mammal Protection Act. Under the latter Act, commercial harvesting of North Pacific fiir seals is prohibited and directed taking has been limited to Native subsistence harvest. The current subsistence harvest of fiir seals is limited to sub-adult males taken on St. Paul and St. George Islands between the end of June and the second week of August. In early August, immature female seals begin arriving at the rookeries in large numbers and the rookery structure {i.e. , the separation of non-breeding seals from breeding seals) begins to break down. At this time, immature male and female seals, which are not easily distinguished, become intermixed. Extension of the harvest beyond the first week of August has resulted in a marked increase in the number of female seals taken. The hunt is regulated by the National Marine Fisheries Service under authority of the Fur Seal Act and the Marine Mammal Protection Act. Under applicable regulations, before each year's harvest the Service is required to estimate the minimum and maximum number of seals needed for subsistence purposes by Native residents of the Pribilof Islands. To develop this estimate, the Service must look at previous harvest levels, economic conditions in Native communities, and the current size of the Aleut com- munities. Once the estimated minimum number of seals is reached, the harvest is temporarily suspended until the Service determines whether subsistence needs have been met or whether additional seals are re- quired. Subsistence harvest levels from 1985 to 1991 are shown in Table 4. 33 MARINE MAMMAL COMMISSION — Annual Report for 1991 Table 4. Subsistence Harvest Levels for North Pacific Fur Seals in the Pribilof Islands, 1985 - 1991' 1985 1986 1987 1988 1989 1990 1991 St. Paul 3,384 1,299 1,710 1,145 1,340 1,077 1,645 St. George 329 124 92 113 181 164 281 Total 3,713 1,423 1,802 1,258 1,521 1,241 1,926 Data provided by the National Marine Fisheries Service. In 1990, 1,241 fur seals were taken in the subsis- tence harvest (1,077 on St. Paul Island and 164 on St. George Island), a decrease from the 1989 total take of 1,521 seals. On 1 May 1991, the National Marine Fisheries Service published in the Federal Register estimates of 1991 subsistence needs of the Pribilof Islands Native population. In deriving its estimates, the Service took into account the following facts: (1) the number of seals taken on St. Paul Island in 1990 was the lowest in five years; (2) since 1989, unemployment levels on St. Paul Island have risen from 20-30 percent to 60-80 percent; and (3) the Aleut population has remained relatively stable. Also, according to the Service, pup production estimates indicate that the St. Paul Island fiir seal population is stable or possibly increasing. Based on this information, and using a statistical analysis of previous harvest levels, the Service pro- posed that the 1991 harvest level for St. Paul Island be set at 1,314 seals. The Service noted that, if this number were reached before 8 August 1991, the Aleut community could request additional seals if needed for subsistence, but that no more than 246 additional seals would be authorized to be taken on St. Paul Island. The Service also noted that economic conditions on St. George Island were similar to those on St. Paul Island, but added that the fur seal population there was declining. The Service stated, however, that, since only sub-adult males were taken in the subsis- tence harvest, the harvest was likely not contributing significantly to the decline. Based upon these factors and on past subsistence harvest levels, the Service set the estimated 1991 harvest level for St. George Island at 135, with a possible supplemental authorization of no more than 37 additional animals. After receiving public comments on its proposed harvest levels, the Service decided to abandon the use of purely statistical analysis to set harvest levels and to take into account factors in addition to past harvest levels. Final harvest levels for 1991 were published on 1 August 1991. Subsistence needs on St. Paul Island were expected to range from 1,145 to 1,800 seals and, on St. George Island, from 181 to 500. On 27 July 1991, Aleut sealers on both St. Paul Island and St. George Island reached the lower ends of their respective subsistence need estimates. As required by regulations, the harvests were temporarily stopped to allow the Service to determine whether subsistence needs had been met and, if not, how many more seals would be required. On 29 July, Natives on St. Paul Island and St. George Island each formally requested that the subsistence harvest be allowed to resume. Based upon the information submitted by the Pribilovians and the National Marine Fisheries Service observers, including the harvest data, the Director of the Service authorized the harvest of an additional 500 seals on St. Paul Island and an additional 100 on St. George Island on 31 July. On that day, the Humane Society of the United States filed suit in the U.S. District Court for the District of Columbia against the Secretary of Com- merce, the Assistant Secretary of Commerce, and the Director of the National Marine Fisheries Service seeking a temporary restraining order to suspend further harvesting of North Pacific fur seals on both St. Paul and St. George Islands. In Humane Society of the United States v. Mosbacher, the Humane Society alleged that (1) the Service's authorization of a continuation of the Alaska Native subsistence 34 Chapter 11 — Species of Special Concern harvest of North Pacific fur seals violated the Marine Mammal Protection Act and applicable regulations; (2) adequate numbers of seals had been taken to satisfy Native subsistence needs; and (3) seals already harvested had been taken in a wasteful manner. During consideration of the Humane Society's motion for a temporary restraining order, the Court requested that the Service suspend further seal har- vesting, pending a ruling on the motion. After holding two hearings on the matter and reviewing briefs submitted by the parties, the court denied the Humane Society's motion on 2 August 1991. In a written order issued on 5 August 1991 the Court explained the basis for its ruling as follows: (1) the Humane Society did not demonstrate that an authori- zation to continue the harvest violates the Marine Mammal Protection Act; (2) the Humane Society did not demonstrate that the harvest had been conducted in a wasteful manner, while the National Marine Fisheries Service did demonstrate that it had consid- ered wastefulness or potential wastefulness as a factor in allocating harvest limits; (3) the Humane Society did not sufficiently demonstrate that it would be "irreparably injured" if the injunction was denied; and (4) the Court believed that the injunction, if enforced, would substantially harm the Pribilof Islands' Aleut population by impairing their ability to harvest food resources for the coming year. After the St. Paul Island harvest was resumed, 500 additional seals were taken, resulting in a total 1991 subsistence take of 1,645 seals. St. George Islanders harvested an additional 100 seals after the harvest was resumed, for a total take of 281 seals. In its 1 August 1991 Federal Register notice estimating harvest levels and in a 26 August 1991 notice summarizing the 1991 harvest, the Service announced its intention to review and re-evaluate the methods used to determine subsistence needs and to measure waste as they apply to the subsistence harvest of fur seals on the Pribilof Islands. Towards this end, on 5 November 1991 the National Marine Fisheries Service held a working session, which included participation by Federal and state agencies, Pribilo- vians, other Alaska Native groups, and environmental and animal welfare groups. The purpose of the working session was to gather information and recommendations to assist the Service in determining or implementing changes to the regime for managing the Native subsistence fur seal harvest on the Pribilof Islands. The participants considered, among other things: (1) the legal and regulatory basis for managing the harvest; (2) the need for a subsis- tence harvest by the Native population of the Pribilof Islands; (3) methods of determining annual subsistence demand for fur- seals; (4) waste and wasteful use of fur seal meat or by-products; (5) managing and monitoring the harvest on St. Paul and St. George Islands; and (6) methods of establishing harvest levels. The report of the working session will be available in 1992. The Marine Mammal Commission expects to be consulted by the National Marine Fisheries Service during 1992 in that agency's efforts to determine what, if any, changes should be made to the current subsistence harvest regime. International Actions As discussed in previous Annual Reports, in 1989 the United States put forward, but later withdrew, a proposal to list the North Pacific fur seal on Appendix n to the Convention on International Trade in Endan- gered Species of Wild Fauna and Flora (see Chapter IV of this Report). The proposal initially was made in order to prevent seal parts firom animals taken in the Alaska Native subsistence harvest, which are indistinguishable from seal parts taken in commercial harvests outside the United States, from illegally entering international commerce. The proposal was withdrawn to give the National Marine Fisheries Service an opportunity to resolve questions regarding the status of the Pribilof Islands' flir seal population, the level of incidental take in high seas driftnet fisheries, and the possibility that the high seas take would expand existing markets for fur seal products. On 5 October 1989, die Commission wrote to the National Marine Fisheries Service, recommending that the Service consider seeking an Appendix III listing for the species pending reassessment of the Appendix II listing proposal. On 4 December 1990, the Com- mission again wrote to the Service, requesting that the Service advise it as to whether the 1990 research season had provided information pertinent to the questions noted above and what steps the Service had 35 MARINE MAMMAL COMMISSION — Annual Report for 1991 taken or planned to take to consider an Appendix HI listing. On 25 April 1991, the Service responded to the Commission, stating that it was taking no further actions in pursuit of either an Appendix 11 or Appen- dix m listing. The Service noted that the annual subsistence harvest bans the commercial use of fur seal products, which accomplishes the intent of an Appendix III listing under the Convention. North Pacific Fur Seal Research Program and Conservation Plan The National Marine Fisheries Service's North Pacific fur seal research program is directed by the National Marine Mammal Laboratory. According to a prospectus prepared by the Laboratory for its 16-17 October 1991 program review, the goals and objec- tives of the fur seal research program are to monitor changes in population dynamics by: (1) determining pup production as an index to population change; (2) comparing historical, on-land habitat use of fur seals to present use by monitoring rookeries and counting harem and idle bulls; (3) identifying migration pat- terns and at-sea foraging areas; and (4) detecting signs of disease in sampled dead animals. According to the laboratory, the purpose of the research program is to implement the North Pacific Fur Seal Conservation Plan by studying fur seals throughout the eastern North Pacific Ocean. However, a conservation plan for fur seals has yet to be published by the Service, despite the obvious need based on the observed decline in fur seal numbers in the North Pacific and the fact that it is required by Federal law. As discussed in previous Annual Reports, the Pribilof Islands fur seal population was designated as depleted under the Marine Mammal Protection Act by the National Marine Fisheries Service in June 1988. The Commission had recommended such a designation in 1984 and again in 1985 and 1986. By letter of 29 November 1985, the Commission also reconmiended that the Service prepare a conservation plan to provide a basis for identifying and directing priority research and management actions needed to restore the popula- tion. It was reconunended that the plan be similar to the recovery plans required for endangered and threatened species under the Endangered Species Act, and an annotated outline was provided. In the 1988 amendments to the Marine Mammal Protection Act, Congress required that conservation plans be developed for all species or populations of marine mammals listed as depleted under the Act. With respect to the North Pacific fur seal, the amend- ments explicitly directed the National Marine Fisher- ies Service to prepare a conservation plan by 31 December 1989. A draft plan was prepared by the National Marine Mammal Laboratory and forwarded to the Commission for comment on 27 March 1990. On 23 April 1990, the Commission provided the Service with extensive comments on the draft plan. The Commission noted that the plan provided useful information on research concerning past exploitation, life history, population status and trends, and possible causes of decline. The Commission also noted, however, that the plan did not sufficiently develop recommendations for ftirther research and manage- ment activities or indicate how such activities would contribute to the recovery and conservation of the fur seal population. The Commission made several specific recommendations to improve the plan by advising the Service to, among other things: (1) deve- lop a clear statement of goals and objectives; (2) pro- vide a clear description of the rationale, nature, and scope of recommended actions; (3) prepare a step- down outline to illustrate the relationships among research and management tasks needed to achieve the plan's objectives; and (4) prepare an implementation schedule setting priorities and estimating costs for undertaking the recommended actions. Having received no reply to its 23 April 1990 letter, the Commission, on 4 December 1990 and on 13 March 1991, again wrote to the Service seeking a response to its questions and comments on the draft plan. On 25 April 1991, the Service replied that it had received substantial comments on the draft plan circulated in March 1990, and that it had forwarded all comments to the National Marine Mammal Labora- tory for review. The Service also indicated that the emergency listing of the Steller sea lion as threatened under the Endangered Species Act in the fall of 1990 had caused the plan to be delayed, but that after the conclusion of the 1991 fur seal field season, the plan would be finalized and distributed for public com- ment. As of the end of 1991, the Commission had not received the conservation plan. 36 Chapter 11 — Species of Special Concern Pacific Walrus (Odobenus rosmarus divergens) Within historic times, walruses appear to have been grouped in at least seven population centers distribut- ed around the Arctic Ocean and adjacent northern seas. All populations were exploited heavily for commercial purposes and one, in the Canadian Mari- time Provinces from southern Newfoundland to southern Nova Scotia, was hunted to extinction more than 100 years ago. The remaining six populations occur: (1) from eastern Hudson Bay to western Greenland, (2) from Baffin Bay, northwest Canada, to northwest Greenland, (3) along the east coast of Greenland, (4) in the Barents, Kara, and White Seas north of Norway and the eastern Soviet Union; (5) in the Laptev Sea off the north-central Soviet Union; and (6) in the Bering and Chukchi Seas between the Soviet Union and the United States. The walrus population in the Bering and Chukchi Seas, known as the Pacific walrus, is recognized as a separate sub-species. Animals occur year-round as far south as die Alaska Peninsula and the northern Kuril Islands. Most animals, however, follow the edge of die pack ice as it advances south into the Bering Sea in winter and recedes north into the Chukchi Sea in summer. At least three times since the late 1700s, the Pacific walrus appears to have been over-exploited to very low levels and to have subsequently recovered. It now represents perhaps 80 to 90 percent of the total world number and is the only walrus population that has substantially recovered from past hunting. Estimates of the size of the Pacific walrus popula- tion are based on joint U.S.-U.S.S.R. aerial surveys conducted once every five years from 1975 to 1990. The 1980 and 1985 estimates of 246,360 and 234,020 walruses, respectively, are considered comparable to estimates of pre-exploitation population levels. Unusual ice conditions in 1990 made it impossible to compare results of that survey with those of previous surveys. Thus, results of the 1990 survey are not usable for assessing recent population trends. Howev- er, the 1990 survey indicates that the population numbers at least 201,039 animals. Subsistence Harvests of Walruses Pacific walruses are a traditional subsistence resource of great importance to the Native peoples of coastal Alaska and eastern Siberia. They provide food and raw materials essential for survival in the far north. They also provide ivory for traditional Native handicrafts that are important to the economies of Native villages. The Marine Mammal Protection Act includes an exemption from its moratorium on taking of marine mammals, including walruses, for Native subsistence and handicraft purposes, provided the take is done in a non-wasteful maimer. Results of annual Native harvests in Alaska and Siberia from 1970 to 1989 are shown in Table 5. The data do not include all animals killed in the harvest because some walruses that are shot sink before they can be retrieved and some escape mortally wounded. An estimate made in the 1960s suggests that perhaps 40 percent of the animals killed in the Alaskan harvest are not retrieved. Assessments of such losses since then have not been undertaken. In 1990, the Fish and Wildlife Service suspended its harvest monitoring program because of ftinding constraints. The only data on harvest levels for 1990 and 1991 are from a program begun by the Service late in 1988 to mark and tag walrus tusks to help prevent illegal trade. In 1990, 1,483 walruses were reported through the marking program; in 1991, the number was 1,938 walruses. It is not clear whether all walruses harvested in 1990 and 1991 were report- ed. For example, calves and other animals without tusks need not be marked but are taken by hunters. In addition, some hunters may have been reluctant to participate in the new marking and tagging program. It also is not clear how the annual marking totals relate to previous estimates based on past harvest monitoring. Harvest figures for 1990 and 1991 in Siberia are not available. 37 MARINE MAMMAL COMMISSION — Annual Report for 1991 Table 5. Estimated Annual Harvests of Pacif- ic Walruses in Alaska and the Soviet Union, 1970 to 1989" Alaska Soviet Total Year Harvest Harvest Harvest 1970 1,422 988 2,410 1971 1,915 897 2,812 1972 1,325 1,518 2,843 1973 1,581 1,291 2,872 1974 1,410 1,205 2,615 1975 2,378 1,265 3,643 1976 2,989 1,253 4,242 1977 2,377 1,461 3,838 1978 2,224 2,120 4,344 1979 2,745 1,526 4,271 1980 2,625 2,653 5,278 1981 3,518 2,574 6,092 1982 2,557 3,569 6,126 1983 2,261 3,946 6,207 1984 4,930 4,424 9,354 1985 3,903 4,708 8,611 1986 3,205 3,884 7,089 1987 2,735 4,673 7,408 1988 2,567 3,974 6,541 1989 1,008 3,679 4,687 This table is based on data collected through harvest monitoring programs carried out by the Alaska Department of Fish and Game from 1970 to 1979 and by the Fish and Wildlife Service from 1980 to 1989. Alaska harvest estimates for 1978-1989 are extrapolated from a subsample of catches at selected villages. Interactions between Walruses and Commercial Fisheries As the Pacific walrus recovered from over-exploi- tation in the first half of the 1900s, walruses reoccu- pied certain previously abandoned haulouts in Bristol Bay. Two of the largest haulouts in this area are at Round Island and Cape Peirce in northern Bristol Bay. In the early 1950s, walruses returned to Round Island, which appears to be the best-suited terrestrial walrus haulout in Bristol Bay. In 1960, the State of Alaska designated Round Island as part of the Walrus Islands State Game Sanctuary and, by 1978, counts at Round Island reached 15,000 animals. Between 1978 and 1984, however, counts declined to about 6,000 animals. The decline was attributed to disturbance caused by the development of a herring fishery in nearshore waters around the island and an increasing number of people visiting the island to view the wildlife. The State of Alaska therefore expanded the restricted access area around the island from one-half mile to two miles. The measure appeared to be effective and the peak count increased to 12,378 in 1986. In 1981, walruses began hauling out regularly in large numbers at Cape Peirce, which, with its adjacent waters, is within the Togiak National Wildlife Refuge. Although counts by refuge staff have fluctuated, the peak count at Cape Peirce in 1986 was 9,494. Reciprocal ttends in counts at Round Island and Cape Peirce suggest that walruses move back and forth between the two sites, which are about 60 miles apart. Because peak counts at the two locations have been obtained on different days, they cannot be added to obtain a regional population estimate. Between 1986 and 1988, walrus counts at Round Island and Cape Peirce declined significantly. By 1988, there were 4,424 animals at Round Island and 6,938 animals at Cape Peirce. The declines coincided with the introduction in 1987 of yellowfin sole fishing in northern parts of Bristol Bay, particularly around Round Island. Noise from trawlers and processing vessels was clearly heard on Round Island and this was thought to be the likely cause of the decline. At times, more than 180 fishing vessels were visible from the island. Also, several walruses were caught and killed in fishing nets. In response, the Eskimo Walrus Commission and the Fish and Wildlife Service asked the North Pacific Fishery Management Council to consider actions to close areas around the walrus haulouts to yellowfin sole fishing. The Council did so and, in 1989, it recommended that the National Marine Fisheries Service adopt a two-year seasonal (April-September) 38 Chapter 11 — Species of Special Concern closure in Federal waters from 3 to 12 miles offshore of Cape Peirce and the Walrus Islands. As noted in previous Annual Reports, the Com- mission commented to the Service on the Council's recommended action on 13 September 1989. In its comments, the Commission supported a larger closure alternative that included waters north of a line be- tween Capes Peirce and Constantine. The alternative appeared preferable because it avoided the possible creation of a concentrated ring of noise from vessels fishing the perimeter a 12-mile closed area. In addition, fishery studies indicated northern Bristol Bay was a concentration area for spawning sole during the summer, and the larger closure could therefore enhance conservation of yellowfin sole stocks. The Commission also noted that, while the pro- posed measure prohibited yellowfin sole fishing in waters beyond three miles from shore under Federal jurisdiction, it did not address fishing restrictions within three miles of shore in State waters. There- fore, the Cormnission noted the need to consider comparable regulatory action in State waters. Also, because of uncertainty as to the cause of the declines, the Commission recommended that research and monitoring studies be undertaken to assess the effects of vessel-related noise on walruses around the haul- outs and to evaluate the effectiveness of the measure. Late in 1989, the Service adopted the Council's recommendation and closed waters between 3 and 12 miles off Round Island, Cape Peirce, and the Twins Islands for the 1990 and 1991 fishing seasons. Also, the Alaska Department of Fish and Game again strengthened vessel access restrictions off Round Island by expanding the controlled access zone out to three miles. Comparable measures, however, were not taken for nearshore waters off Cape Peirce or the Twins Islands. Also in 1989, the Fish and Wildlife Service initiated a study to test the feasibility of assessing noise characteristics around walrus haulouts at Round Island and Cape Peirce. In 1990, the Fish and Wildlife Service asked the Commission to review a draft fishery management plan for the Togiak National Wildlife Refuge, which includes Cape Peirce. While the refuge boundaries include waters within three miles of the Cape Peirce walrus haulouts, jurisdiction over that area remains imder State management authority under an agreement reached when the refuge was established. To address management needs in coastal waters of the refuge, a Memorandum of Agreement between the Service and the State of Alaska calls for cooperative management and for the Service to recommend needed measures to the State. The draft fisheries management plan did not include provisions to close waters to yellowfin sole fishing within three miles of walrus haulouts in the refuge. Therefore, on 20 February 1990, the Commission wrote to the Service noting the need to pursue mea- sures in nearshore waters off Cape Peirce that would complement the protective measures adopted by the National Marine Fisheries Service for waters 3 to 12 miles off walrus haulouts. In its 27 July reply, the Service noted that it did not consider the matter a fishery management issue and that it had provided the recommendation to a refuge public use planning group. By letter of 22 August, the Commission asked the Service what actions had been or would be taken by that group. The Service replied on 4 October 1990, noting that it would work with the State and others to support regulations on marine mammals. However, the Service did not indicate what actions would be taken to resolve inconsistencies between Federal and State provisions around walrus haulouts. The Service also noted that its preliminary research on noise levels near Round Island in 1989 did not produce useful results because of unreliable equipment, and that studies in 1990 would be limited to counts of walrus at haulouts because no fishing was planned in northern Bristol Bay that year. On 8 March 1991, the Commission again asked the Service what actions had been or would be taken to address inconsistencies in Federal and State regula- tions. The Service's 20 March 1991 reply offered no further information on this point. As of the end of 1991, the Commission was aware of no actions taken by the Service to address the Commission's recom- mendations, and regulations within State waters around Cape PeLrce and the Twins Islands remained inconsistent with Federal regulations throughout the two-year closure. The Service's 20 March letter did. 39 MARINE MAMMAL COMMISSION — Annual Report for 1991 however, indicate that it was cooperating with the Alaska Department of Fish and Game and the North Pacific Fishery Management Council on an amend- ment to extend the closure in Federal waters for an additional five years. When the North Pacific Council recommended a two-year closure around walrus haulouts in 1989, it planned to reexamine the measure at the end of the period to determine if it should be modified, extend- ed, or terminated. Because the Service's research on noise characteristics near Round Island was suspended in 1989 without obtaining useful results, the only way to assess the effectiveness of the measure is by exam- ining counts at walrus haulouts. In 1990, the peak count at Round Island (6,891 animals) was substantially higher than in 1988 (4,424 animals), but at Cape Peirce it was substantially lower (1,474, as compared to 6,938 animals in 1988). The counts suggest the measures may have had a modest positive effect at Round Island. However, on several occasions, vessels fished illegally within the closed areas. It is not clear whether concentrations of fishing vessels occurred along the perimeter of the closure. As a result of its assessment of the situation late in 1990, the North Pacific Fishery Management Council agreed to consider alternative actions either to extend the 3 to 12-mile closures permanently, or for five years, or to establish a larger closure as had been considered in 1989. The closure alternatives would require amending the Bering Sea and Aleutian Islands groundfish fishery management plan and preparing a supporting background document for public review {i.e., an "environmental assessment/regulatory impact review/initial regulatory flexibility analysis"). Due to other demands, the Council's staff was unable to prepare the necessary background document. The Fish and Wildlife Service also was unable to provide staff or funds to contract for the required assessment. Therefore, the Commission contracted for the needed draft document early in 1991 (see Chapter IX). The draft document was completed in time for review by the Council at its 23-26 April 1991 meet- ing. At that time, the document was approved for public review. The Council did not, however, indi- cate a preferred alternative. On 14 June 1991, the Commission provided comments to the Council. Because of the still unresolved relationship between walrus haulout patterns and yellowfin sole fishing, the Commission recommended that, regardless of the alternative selected, the document should be expanded to identify the need for studies to (1) continue moni- toring walrus haulout patterns; (2) determine at-sea movement and habitat use patterns by tagging and tracking walruses in Bristol Bay; (3) characterize and monitor acoustics and the effects of sound near walrus haulouts; and (4) correlate data from the above studies with the distribution of fishing effort. As a preferred alternative, the Commission again supported the expanded closure, including waters north of a line between Capes Constantine and Peirce. Also, because of uncertainty as to when information would be adequate to assess the effectiveness of the measure and because of the costs associated with extending the measure, the Commission recommended that any closure be made permanent, pending avail- ability of data indicating that a change was justified. Finally, the Commission noted the need for steps to ensure that provisions in State waters shoreward of three miles are consistent with any closures outside three miles. At its 24-29 June and 13-16 August 1991 meet- ings, the Council considered comments and recom- mendations on the matter and approved a recommen- dation that the National Marine Fisheries Service close waters between 3 to 12 miles of haulouts on Round Island, the Twins Islands, and Cape Peirce on a permanent basis. The National Marine Fisheries Service agreed with the Council's recommendation and, on 4 December 1991, published a notice of proposed rules to amend the Bering Sea and Aleutian Islands groundfish fishery management plan to pro- vide for permanent fishing closures between 3 to 12 miles around the three walrus haulouts. Effects of Offshore OU and Gas Exploration Noise and disturbance due to seismic profiling, drilling, and ice management associated with offshore oil and gas exploration may affect walrus and other marine mammals. Among other effects, it may alter the normal distribution and haulout patterns of walrus- es near exploration sites. Noise and disturbance also 40 Chapter 11 — Species of Special Concern may startle animals hauled out on ice, causing them to rush into the water. In doing so, stampeding adults may kill or injure calves, and calves, unable to fend for themselves, may become separated from their mothers. same year, the Commission completed a series of species reports with research and management recom- mendations for several Alaska marine mammals (see Appendix B, Lentfer 1988). Among the species covered was the Pacific walrus. Section 101(a)(5) of the Marine Mammal Protec- tion Act authorizes the Secretary of the Interior and the Secretary of Commerce, depending on the species involved, to develop regulations upon request to allow incidental, but not intentional, taking of small num- bers of marine mammals by U.S. citizens engaged in activities other than commercial fishing. Such autho- rization may be granted for periods of up to five years, provided the activities will have a negligible impact on the species and will not have an unmitigable adverse impact on the availability of that species for subsistence uses. The regulations must specify the permissible activities, the means of minimizing possible adverse impacts, and the monitoring require- ments that will be followed to ensure that effects are indeed negligible. At the request of representatives of Alaska's offshore oil and gas industry, the Fish and Wildlife Service prepared regulations in 1991 to allow the incidental take of walruses and polar bears during certain offshore oil and gas exploration activities in the Chukchi Sea. The Service subsequendy reviewed several industry requests for letters of authorization to take walruses and polar bears pursuant to those regulations. The Marine Mammal Commission provided detailed comments to the Service on both the regulations and industry requests for letters authoriza- tion. These efforts are described in Chapter VUI. Preparation of a Pacific Walrus Conservation Plan In 1988, Congress amended the Marine Mammal Protection Act by adding a section authorizing the Secretaries of the Interior and Commerce to develop conservation plans for non-depleted marine mammals, such as Pacific walruses, if doing so would further conservation needs. Like recovery plans for endan- gered species, conservation plans provide a basis for identifying and coordinating research and management tasks necessary to assure species conservation. That When it transmitted the species reports to the Fish and Wildlife Service on 11 January 1989, the Com- mission expressed its belief that a conservation plan for walruses should be prepared and that most of the work necessary to do so had been done through development of its walrus species report. In its 3 March 1989 reply, the Service stated that it expected to complete a conservation plan in about 18 months. In this regard, the Service noted that a preliminary meeting between the Service, the State, and a Native group had taken place in November 1988 to help guide work on developing and implementing a walrus plan. However, because of other pressing needs, such as the response to the Exxon Valdez oil spill. Service staff was unable to make much progress on the plan. On 25-27 April 1991, as part of a review of Alaska marine mammal issues conducted during its annual meeting in Bellevue, Washington, the Commis- sion and its Committee of Scientific Advisors re- viewed the status of walrus research and management work, including development of a conservation plan. During the meeting, representatives of the Service stated that, while they remained committed to prepar- ing a plan, efforts to begin drafting a plan had been suspended because of other essential demands on the Service's limited staff and funding. Moreover, the Service indicated that this situation was not likely to change in the foreseeable future. As a result, the Commission offered to contract for the development of an initial draft conservation plan which the Service could use to facilitate the plan development process and help overcome the problem of limited resources. By letter of 29 April, the Commission confirmed its offer. The Service indicat- ed that it would use the initial draft conservation plan and other information previously prepared by the Commission in developing the walrus plan. As noted in Chapter DC, the Commission contracted for a project to develop a preliminary draft plan. 41 MARINE MAMMAL COMMISSION — Annual Report for 1991 The draft plan, completed in December 1991, included a thorough review of the biology and conser- vation issues concerning walruses. It also identified specific tasks for monitoring the status and trends of the Pacific walrus population, defining the optimum sustainable population level, protecting and monitoring essential habitats, monitoring Native subsistence harvests to ensure that they are consistent with the provisions of the Marine Mammal Protection Act, and coordinating Federal, State, Native, industry, and international efforts to conserve the Pacific walrus population. Based on its review of the draft plan, the Commis- sion and its Committee of Scientific Advisors conclud- ed that it provided a well-reasoned set of research and management actions and would provide a sound basis for charting and coordinating cooperative research and management efforts. The Commission therefore transmitted the plan to the Service on 23 December 1991. In doing so, the Commission recommended that: (1) the draft plan be circulated for review and comment by the Service's Walrus Management Plan Advisory Team; (2) the Service prepare a final draft conservation plan using the comments of the advisory team and the transmitted draft plan; and (3) the final draft plan be circulated to the Commission and others for agency and public review prior to adoption. While noting that work to complete the walrus plan should proceed as quickly as possible, the Commission also noted that other important research and management tasks should be pursued without delay. To help ensure progress in these areas, the Commission offered recommendations on matters that it believed required immediate attention. In view of the importance of discerning current population trends and the inability of the 1990 joint walrus survey to provide information useful in this U.S.-U.S.S.R. regard, the Commission recommended that the Service immediately begin planning for another census to be conducted by 1993 if at all possible. It recommended convening a small group of experts to describe alternative census approaches, and arranging for consultations with Soviet counterparts to discuss and agree on plans for a new joint census. With respect to Native subsistence harvests, the Commission recommended that the Service immedi- ately reinstitute the harvest monitoring system sus- pended in 1990. It also recommended that harvest and biological sampling needs be reviewed to deter- mine how that monitoring system should be altered in the future. The Commission urged that, in coopera- tion with the Eskimo Walrus Commission and Native hunters, the Service carry out a study to identify and, as possible, suggest ways to minimize the number of walruses that are shot and either sink or escape without being retrieved. To address possible interactions between walruses and commercial fishing in Bristol Bay, the Commis- sion recommended in its 23 December letter that the Service consult with agencies and groups, including the Alaska Department of Fish and Game, the Nation- al Marine Fisheries Service, the North Pacific Fishery Management Council, and the Eskimo Walrus Com- mission, to ensure that fishery closures in Federal waters around Round Island, the Twins Islands, and Cape Peirce are continued after 1991. In addition, it recommended that steps be taken to ensure, insofar as possible, that comparable measures are considered and adopted expeditiously for State waters and that the need for protecting other Bristol Bay walrus haulouts also be considered. To provide for optimal coordination with Soviet scientists and managers, the Commission recommend- ed that, in developing the walrus conservation plan, the Service and other involved parties assess the scope and effectiveness of existing mechanisms for coordi- nating joint activities concerning walruses. In doing so, it suggested the Service consider whether and how a bilateral agreement with the Soviet Union might further facilitate work on priority research and man- agement tasks identified in the walrus plan. At the end of 1991, the Commission looked forward to the Service's reply to its letter and to continuing to help with the development and imple- mentation of an effective walrus conservation plan. 42 Chapter 11 — Species of Special Concern Sea Otter (Enhydra lutris) Sea otters historically inhabited the coastal waters of the North Pacific Ocean from central Baja Califor- nia, Mexico, north along the coasts of California, Oregon, Washington, British Columbia, and southern Alaska; west through the Aleutian, Pribilof, and Commander Islands; and south along the Kamchatka Peninsula, the Kuril Islands, and the islands of north- em Japan. Commercial hunting of sea otters for their fur began in the mid- 1700s, shortly after the discovery of the Commander Islands by Vitus Bering. Hunting continued, largely unregulated, until 1911 when the species was protected by the North Pacific Fur Seal Convention, an agreement signed by the United States, Great Britain, Russia, and Japan. Small groups of sea otters survived in remote areas in the Soviet Union, Alaska, and central California. The Central California Population The remnant sea otter population in California occupied a few miles of nearshore habitat along the rocky Point Sur coast and may have numbered fewer than 50 animals in 191 1 when hunting was prohibited by the Fur Seal Convention. Protected by the Con- vention and later by the State of California, the population grew slowly until, by the mid-1970s, it numbered nearly 1,800 animals and inhabited near- shore areas along approximately 160 miles of the central California coast. At that time, the risk of oil spills along the central California coast was expected to increase, due largely to the expected increase in tanker traffic transporting oil ft"om the Trans-Alaska pipeline, then nearing completion. Because of its small size, its limited distribution, and the increasing threat of oil spills and other cata- strophic events, the population was designated as threatened under the Endangered Species Act in January 1977. Recognizing that range expansion was the best way to minimize the risk posed by oil spills and that range expansion could impact commercial and recreational abalone and other shellfish fisheries that developed in the absence of sea otters, the Com- mission in December 1980 recommended that the Fish and Wildlife Service adopt and implement a "zonal" management strategy for sea otters and recreational and commercial shellfish fisheries in California. The Fish and Wildlife Service concurred with the Commis- sion's recommendation and incorporated the zonal management concept into the Southern Sea Otter Recovery Plan adopted in February 1982. The Fish and Wildlife Service initiated efforts in 1981 to identify possible sites for establishing one or more "reserve" sea otter colonies in California, develop a translocation plan, and assess the possible environmental and economic consequences of re- establishing sea otters in additional parts of their historic California range. In 1985, Congress directed that the Service develop a translocation plan. In the fall of 1986, Congress passed Public Law 99-625, which included provisions authorizing and encourag- ing the development and implementation of a plan to establish at least one sea otter colony outside the then existing sea otter range in California. The law required that the plan specify a translocation zone that would meet the habitat needs of the translocated animals and provide a buffer against possible adverse activities that may occur outside the zone. It also required that the area surrounding the translocation zone be designated a "management zone" firom which sea otters are to be excludaJ by non-lethal means to prohibit range expansion and protect fishery resources south of Point Conception. The Fish and Wildlife Service subsequently devel- oped and adopted a plan to establish a reserve sea otter colony at San Nicolas Island, one of the Califor- nia Chaimel Islands. Implementation of the plan required cooperative efforts by the Fish and Wildlife Service and the California Department of Fish and Game. To clarify their respective roles, the two agencies concluded a Memorandum of Understanding on 18 August 1987. Among other things, the Memo- randum specified that: • the Fish and Wildlife Service will be responsible for providing funds and personnel necessary to implement, enforce, and carry out the transloca- tion program; • if verified sightings of sea otters are made at any location within the designated management zone ("no-otter zone"), the Fish and Wildlife Service 43 MARINE MAMMAL COMMISSION — Annual Report for 1991 will undertake recapture efforts, as soon as weath- er and sea conditions permit, and return the captured otters either to the mainland sea otter range or to the translocation zone; • the Fish and Wildlife Service, in cooperation with the California Department of Fish and Game, will evaluate the safety, effectiveness, and cost of possible alternative techniques for limiting popula- tion growth, including but not limited to reduction of fecundity and, as part of a long-term manage- ment plan, the appropriateness of selective culling, recognizing that evaluations involving the lethal take of California sea otters could not be permit- ted; • the California Department of Fish and Game will be responsible for designing and carrying out a research program, using funds provided by the Fish and Wildlife Service, to evaluate the feasibili- ty of humane, non-lethal methods to experimental- ly maintain the southern boundary of the mainland sea otter range in an area between Point Arguello and Point Conception; and • the California Department of Fish and Game will initiate and/or support State legislation to imple- ment appropriate restrictions on the use of gill and trammel nets in the translocation zone. Translocation Efforts — Capture of sea otters for translocation to San Nicolas Island began on 24 August 1987. As of June 1991, 252 sea otters had been caught along the central California coast for possible translocation to San Nicolas Island. Of these, 101 were released at the capture site, or were released before being translocated to San Nicolas Island, 8 died during the translocation process, and 139 were trans- ported to and released at San Nicolas Island. Since the translocation was initiated in August 1987, 13 pups are known to have been bom at the island; 4 of these are known to have survived to weaning. As of June 1991, 14 of the 139 otters translocated to San Nicolas Island remained at the island; 10 were known to have died; 3 had been recaptured in the Management Zone; and 31 had been resighted back in the mainland range. The fate of the remaining 81 animals is unknown. Containment — From September 1987 through June 1991, there were 103 reports and 67 verified sightings of sea otters within the designated Manage- ment Zone. Some of the reports were of seals and sea lions, rather than sea otters, while others were dupli- cate sightings of the same animals. In previous years, sea otters sighted in the Man- agement Zone appeared not to stay in one place for very long. In 1991, however, there were indications of animals taking up residence in the nearshore waters of San Miguel Island. A single sea otter was reported by a fisherman at the western end of the island on 30 March 1991. A dead sea otter was found on the island on 1 May. This otter was a male that had been translocated to San Nicolas Island on 4 October 1988 and sighted near Point Buchon on the mainland on 17 October 1989. During an aerial survey on 13 May, nine adults and one pup were sighted in waters around San Miguel Island. The Fish and Wildlife Service has attempted to capture and remove the animals, but to date has been able to capture only two. There also are indications that the distribution of sea otters along the mainland California coast is moving south towards Point Conception. On 2 January 1991, three independent sea otters and a dependent pup were sighted near Purisima Point, about 12 miles north of Point Conception. During a shore-based count on 4 June 1991, eight independent sea otters and two pups were seen in this area. Although none of the animals had a complete set of flipper tags, the tags present suggested that 3 of the animals likely were animals that had been translocated to San Nicolas Island. Inddental Take in Fisheries — When the Califor- nia sea otter population was listed as threatened in January 1977, it was assumed that population size and range were increasing and would continue to increase at about five percent per year until all of the available habitat was reoccupied. As noted in previous Annual Reports, however, subsequent studies indicated that substantial numbers of sea otters were being caught and killed in coastal gill net fisheries and that the incidental take had stopped, and possibly reversed, the population increase. In addition to sea otters and other marine mammals, thousands of seabirds and 44 Chapter 11 — Species of Special Concern non-target fish species also were being caught and killed in the fisheries. The State of California, recognizing the problems being caused by these non-selective fishing practices, enacted a series of regulations starting in 1982 to prohibit the use of gill and trammel nets in areas where seabirds, sea otters, and other marine mammals were likely to become entangled. The prohibitions have reduced the incidental take of sea otters and, as shown in Table 6, subsequent counts suggest that the population increase has resumed. The restrictions did not, however, eliminate the incidental entanglement of sea otters. Therefore, in 1990, the State of California enacted legislation prohibiting use of gill and trammel nets in waters shallower than 30 fathoms throughout most of the sea otter range in the State. There have been no reports of sea otters being taken in the closed area since the legislation went into effect. The Southern Sea Otter Recovery Plan — As noted in the Commission's previous Annual Report, the Fish and Wildlife Service reconstituted the South- ern Sea Otter Recovery Team in 1989 to review and recommend changes necessary to update the Southern Sea Otter Recovery Plan. This action was precipitat- ed, in part, by the Exxon Valdez oil spill that occurred in Prince William Sound, Alaska, on 24 March 1989 (see Chapter VII for information on the spill). The Recovery Team reviewed and subsequently recommended revision of the Recovery Plan. Taking into account the Recovery Team's recommendations, the Fish and Wildlife Service developed and, in August 1991, provided a draft revised Recovery Plan to the Commission and others for review and com- ment. The Commission, in consultation with its Conmiittee of Scientific Advisors, reviewed and provided comments on the draft revision to the Service by letter of 8 November 1991. In its com- ments, the Commission noted that the draft Recovery Plan revision appeared to reflect four conclusions: • the Exxon Valdez oil spill had demonstrated that (a) the entire southern sea otter range, including San Nicolas Island, could be contacted by a single large oil spill occurring in or near the population's California range, and (b) efforts to contain a large Table 6. Sea Otter Population Counts by the Fish and Wildlife Service and the California Department of Fish and Game, 1982 - 1991 Year Independent Otters Pups Total 1982 Spring Fall 1,124 1,194 222 144 1,346 1,338 1983 Spring Fall 1,131 1,062 120 164 1,251 1,226 1984 Spring Fall 1,181 123 1,304 1985 Spring Fall 1,124 1,066 236 155 1,360 1,221 1986 Spring Fall 1,345 1,088 225 113 1,570 1,201 1987 Spring Fall 1,430 1,263 220 104 1,650 1,367 1988 Spring Fall 1,505 219 1,724 1989 Spring Fall 1,574 1,484 290 115 1,864 1,599 1990 Spring Fall 1,466 1,516 214 120 1,680 1,636 1991 Spring Fall 1,700 1,523 241 138 1,941 1,661 oil spill and to capture and rehabilitate oiled otters are likely to be unsuccessful; • efforts to establish the reserve breeding colony at San Nicolas Island have thus far been unsuccessful and, if successful, will not provide an adequate basis for removing the southern sea otter from the List of Endangered and Threatened Species; • the only effective way to eliminate the risk of an oil spill endangering the southern sea otter popula- 45 MARINE MAMMAL COMMISSION — Annual Report for 1991 tion is to substantially increase the population's range and size; and • the risk of endangerment as a result of oil spills will not be eliminated (i.e., become insignificant) until the population's range has expanded north to the Oregon border and the population numbers at least 5,400 animals (60 percent of the estimated carrying capacity of the species' potential range in California, excluding San Francisco Bay and the area south of Point Conception). The Commission noted that, while these conclu- sions seem intuitively reasonable, they were not ade- quately supported by the information and analyses in the draft revised recovery plan. The draft revision did not, for example, indicate why the Fish and Wildlife Service and/or the Recovery Team believed that the threat posed by oil spills could not be effec- tively eliminated by altering tanker routes or taking other steps to reduce the risk of an oil spill occurring in or near the California sea otter range, or by devel- oping a more effective oil spill response plan and pre- positioning containment and clean-up equipment to reduce the possibility of sea otters' being impacted if an oil spill does occur. Further, the draft revision provided no explanation for the apparent determina- tions that (1) nothing can or should be done to expe- dite natural range expansion, and (2) only the present California sea otter range and coastal areas north to the Oregon border (excluding San Francisco Bay) should be considered in determining the optimum sustainable sea otter population. On a related matter, the Commission noted that the draft revision appeared to be proposing or recommending, but did not explain the rationale for, repeal of Public Law 99-625 and the related regulations and agreements that allowed establishment of the reserve breeding colony at San Nicolas Island, and maintaining the southern boundary of the sea otter population at Point Conception to prevent adverse effects on shellfish and other fisheries in the Channel Islands and the California Bight. In light of these uncertainties, the Commission recommended that a second draft of the proposed Recovery Plan revision be done and be provided to the Commission and others for review and comment before it is considered for adoption by the Service. The Alaska Sea Otter Population Available information suggests that small groups of sea otters survived the era of commercial exploi- tation in several remote areas of Alaska (e.g.. Rat Islands, Delarof Island, False Pass, Sandman Reefs, Shumigan Islands, Kodiak Island, and Prince William Sound). Since then, sea otters have repopulated most of their former range in Alaska although they have not yet reached historic levels in some areas. No sea otters survived in southeast Alaska and repopulation of this area was initiated by translocating otters from Amchitka Island and Prince William Sound in the late 1960s and early 1970s. The most recent surveys indicate that there are 100,000 to 150,000 sea otters in Alaska. Although the population currently is healthy and growing, there are a number of existing and foreseeable threats and conservation issues. These include (1) conflicts with commercial, subsistence and recreational shellfish fisheries that have developed in the absence of sea otters; (2) incidental take in gill net and other fisher- ies; (3) oil and gas development and transportation; (4) logging, mariculture, and other coastal develop- ment; (5) Native subsistence hunting; and (6) the increasing tourist industry in Alaska. The reality of these threats is illustrated by the Exxon Valdez oil spill, which is estimated to have killed 3,500 to 5,500 sea otters in Prince William Sound and adjacent areas (see Chapter VII). Recognizing the threats and possible conflicts being generated by increasing human populations and development in Alaska, the Commission in 1984 initiated efforts to assess the state of knowledge and identify conservation issues regarding sea otters and nine other species of marine mammals that occur commonly in State waters. This effort led to the publication in 1988 of species accounts, with research and management recommendations, for each of the ten species (see Appendix B, Lentfer 1988). As noted in Chapter VII and previous Commission reports, the Marine Mammal Protection Act, as amended in 1988, directs that the Secretaries of the Interior and Commerce develop conservation plans for depleted and, when appropriate, for non-depleted marine mammal species and populations. Also as 46 Chapter n — Species of Special Concern noted in previous Annual Reports, the Commission wrote to iht Fish and Wildlife Service on II January 1989 suggesting that the Service prepare conservation plans for walruses, polar bears, and sea otters. The Commission pointed out that much of the needed background work had been done and was published in the Commission-sponsored species reports mentioned above. The Service advised the Commission on 3 March 1989 that it had begun developing a walrus conser- vation plan and intended to begin development of conservation plans for polar bears and sea otters in the near future. Efforts to develop the conservation plans were delayed by the Exxon Valdez oil spill. Because of limited staff and other constraints, the Service has been unable to complete conservation plans for any of the three species. This and related matters were discussed with representatives of the Fish and Wildlife Service during the annual meeting of the Commission and its Com- mittee of Scientific Advisors in Bellevue, Washington, on 25-27 April 1991. At that time, the Commission offered to provide assistance in developing draft plans that could be used to expedite the planning process, and the Service accepted the offer. With regard to sea otters, the Commission, as indicated in Chapter IX, organized and held a meeting in Anchorage, Alaska, on 25-26 September I99I to identify conservation issues from the perspective of different organizations. The meeting involved repre- sentatives of the Fish and Wildlife Service, the Native conmiunity, the fishing industry, and the environmen- tal community. Following the meeting, the Commis- sion prepared a draft conservation plan and provided it to the meeting participants for review and comment. At the end of the year, the draft conservation plan was being revised to take account of reviewers' comments. The Commission anticipates that the draft plan will be completed and provided to the Fish and Wildlife Service in February 1992. At that time, the Commis- sion expects to recommend actions necessary to accomplish priority research and management tasks. Polar Bear (Ursus maritimus) The polar bear is one of three species of the genus Ursus, which also includes the North American black bear (U. americanus) and the brown or grizzly bear (JJ. arctos). Polar bears inhabit most ice-covered seas of the northern hemisphere and are circumpolar in distribution. The species occurs throughout most of the Arctic basin; animals have been seen as far north as 88 degrees north latitude and as far south in the eastern Bering Sea as St. Matthew Island. Available information indicates that parts of two relatively discrete polar bear populations occur in Alaska — a western population shared with the former Soviet Union and an eastern population shared with Canada. International Agreement on the Conservation of Polar Bears Increased hunting of polar bears in the 1950s and 1960s and concerns about the effects of industrial activities on polar bears and their habitat led to an international dialogue on the need to conserve polar bears throughout the Arctic. In 1973, the Govern- ments of Canada, Denmark (for Greenland), Norway, the Soviet Union, and the United States concluded the International Agreement on the Conservation of Polar Bears. The Agreement, which entered into force in 1976, allows the taking of polar bears under certain conditions {e.g., for scienteific research and Native subsistence), but prohibits the use of aircraft and large motorized vessels for the purpose of taking polar bears. It also prohibits the sale of skins and other polar bear parts for commercial purposes. Article 11 of the Agreement requires that each of the contracting parties "take appropriate action to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites and migration patterns... ." It is not clear whether the Marine Mammal Protection Act provides sufficient legal authority for assuring U.S. compliance with this provision. Therefore, as noted in Chapter Vm, the Fish and Wildlife Service, acting on advice from the Commission, is undertaking a review to determine whether additional regulations or implementing legislaiton is needed to ensure that 47 MARINE MAMMAL COMMISSION - Annual Report for 1991 the United States meets its obligations under the Agreement. Native Subsistence Hunting Prior to passage of the Marine Mammal Protection Act in 1972, hunting of polar bears in Alaska was managed by the State. The Act gave management authority to the Fish and Wildlife Service, and ex- empted coastal Alaska Natives from its prohibitions on taking when the taking is non-wastefiil and for subsis- tence or handicraft purposes. The Act authorizes the Fish and Wildlife Service to prescribe regulations necessary to monitor the numbers, ages, and sexes of polar bears taken by Alaska Natives, but prohibits limiting the take unless the affected population is depleted. The Beaufort Sea polar bear population is hunted by Natives from western Canada as well as Alaska. If not regulated effectively, such hunting, by itself and in combination with other activities, could jeopardize the continued existence of the population. Recogniz- ing this, the Fish and Game Management Committee of Alaska's North Slope Borough and the Inuvialuit Game Council of Canada's Northwest Territories entered into an agreement in January 1988 to govern cooperatively the hunting of polar bears in the area between Icy Cape, Alaska, and the Baillie Islands, Canada. Among other things, the Agreement calls for protection of cubs, females with cubs, and all bears inhabiting or constructing dens, and for prohibiting hunting at certain times of the year. It also provides that a harvest quota, based upon the best available scientific evidence, be established aimually; the quota be allocated equitably between Alaska and Canadian Natives; and data be collected and shared on the number, location, age, and sex of bears killed. The agreement has no legal status in Alaska or Canada and does not provide for enforcement and penalties in Alaska. Thus, its success depends upon voluntary compliance. Also, it does not apply to Native subsistence hunting of polar bears in Alaska west of Icy Cape. Oil and Gas Exploration and Development As noted in the Commission's previous Annual Report, the increasing level of human activity in the Arctic, particularly those activities related to oil and gas exploration and development, poses risks to polar bears and other wildlife. In recognition of this, the Marine Manmial Commission, in January 1989, sponsored a workshop to determine ways to assess and minimize the possible adverse effects of oil and gas exploration and development on polar bears. Partici- pants included representatives of Native groups and relevant U.S. and Canadian federal, provincial, and state agencies. The workshop report was forwarded to the Fish and Wildlife Service and others on 28 December 1990 (see Appendix B, Lentfer 1990). The workshop report notes that polar bears and their habitat could be affected in several ways by activities and events associated with Arctic oil and gas exploration and development. These include: (1) shooting or harassment of polar bears to protect workers carrying out exploration and development activities; (2) damage or destruction of polar bear denning or other essential habitats; (3) contact with and ingestion of oil from acute and chronic oil spills; (4) contact with and ingestion of other contaminants; (5) disturbance by aircraft, ship, drilling, and other operations; (6) increased hunting pressure; (7) mdi- rect, food chain effects; and (8) mortality, injury, and stress resulting from scientific research done to assess the possible effects of oil, gas, and other activities on polar bears and other species. The report noted that the probability of interactions between polar bears and people, and the risk of death or injury of both bears and people, will increase as the level of exploration, development, and other activities increases in the Arctic. It concluded that the likelihood of harmfiil interactions resulting from oil and gas activities could be reduced substantially by requiring development of site-specific polar bear interaction plans. In its 28 December 1990 letter forwarding the workshop report to the Fish and Wildlife Service, the Commission recommended that the Service: (1) work with the Minerals Management Service and the corresponding State agency to identify and agree upon information that should be contained in, and proce- dures that should be used to review and approve, site- 48 Chapter n — Species of Special Concern specific polar bear interaction plans; (2) encourage an appropriate industry group to seek an exemption, pursuant to section 101(a)(5) of the Marine Mammal Protection Act, to allow the incidental take of small numbers of polar bears in the process of implementing approved interaction plans; (3) identify and, with the Minerals Management Service and the Alaska Depart- ment of Fish and Game, cooperatively carry out or support such additional research and monitoring programs as necessary to evaluate the relative merits of possible detection and deterrence systems, and to better determine important polar bear denning areas and how such areas and the bears denning in them may be affected by construction and operation of facilities nearby; and (4) if it had not already been done, work with the Minerals Management Service, the National Marine Fisheries Service, the Coast Guard, the Environmental Protection Agency, and relevant State agencies to (a) include in oil spill contingency plans specific measures for assessing and minimizing the impact of possible oil spills on polar bears, and (b) develop a program to assess and monitor the levels of anthropogenic hydrocarbons and other possible contaminants present in polar bears and other components of the ecosystem of which they are a part. The Commission also recommended that the Fish and Wildlife Service take such steps as necessary, including promulgating regulations or seeking domes- tic implementing legislation, to give full effect to the provisions of the International Agreement on the Conservation of Polar Bears described above. In this regard, the Commission noted that, in some cases, oil and gas development and other activities in Alaska may be inconsistent with Article 11 of the Agreement which, as noted above, specifies that the Parties "shall take appropriate actions to protect the ecosystems of which polar bears are a part, with special attention to habitat components such as denning and feeding sites...." On 11 June 1991, the Fish and Wildlife Service responded to the Commission's 28 December 1990 letter. The Service noted that it anticipated that the regulations being developed to give effect to section 101(a)(5) of the Marine Mammal Protection Act (see the discussion in Chapter Vm) would require develop- ment and approval of site-specific interaction plans as one of the requirements for obtaining letters of au- thorization allowmg the take of polar bears incidental to oil and gas activities. The Service also noted that the oil and gas industry had been very cooperative in responding to recommendations concerning develop- ment and implementation of polar bear interaction plans. The Service indicated that it shared die Commis- sion's view that regulations or implementing legis- lation were required to give full effect to the Inter- national Agreement on the Conservation of Polar Bears. Development of a Polar Bear Conservation Plan As discussed in Chapter VII, the 1988 amendments to the Marine Mammal Protection Act directed the Secretaries of the Interior and Commerce to develop conservation plans for depleted and, when appropri- ate, non-depleted marine mammal species and popula- tions. As noted in the previous Annual Report, the Commission wrote to the Fish and Wildlife Service on 11 January 1989 suggesting that the Service prepare conservation plans for walruses, polar bears, and sea otters. The Commission pointed out that much of the needed background work had been done and was published in Marine Mammals in Alaska: Species Accounts with Research and Management Recommen- dations (see Appendix B, Lentfer 1988). The Service's 3 March 1989 response to the Commission's letter indicated that it concurred and had initiated development of a walrus management plan, and intended to begin work on plans for polar bears and sea otters in the near future. As noted in Chapter VII, however, the Exxon Valdez oil spill caused personnel and funding to be diverted to assess- ing and attempting to mitigate the impacts of the spill. As noted in Chapter VII, this and related matters were discussed with representatives of the Fish and Wildlife Service during the meeting of the Commis- sion and its Committee of Scientific Advisors in Bellevue, Washington, on 25-27 April 1991. At that meeting, the Commission offered to provide assistance in developing draft plans that then could be used by 49 MARINE MAMMAL COMMISSION — Annual Report for 1991 the Service to expedite completion and adoption of conservation plans for each of the three species. The Service accepted and the Commission subsequently initiated efforts to develop draft conservation plans. The draft polar bear plan is expected to be completed and forwarded to the Service early in 1992. Proposed Oil and Gas Development in the Arctic National Wildlife Refuge By letter of 3 September 1991, the American Institute of Biological Sciences and the Defenders of Wildlife requested that the Commission undertake a review to determine whether proposed oil and gas development in the Arctic National Wildlife Refuge is in conflict with (1) protection of the Beaufort Sea polar bear population, and (2) U.S. obligations to protect polar bear denning habitat under the Interna- tional Agreement on the Conservation of Polar Bears. The letter cited recent studies indicating that the coastal plain of the Arctic National Wildlife Refuge constitutes important polar bear denning habitat and pointed out that the United States is obligated, under the 1973 polar bear agreement, to protect such areas. On 17 September 1991, the Commission advised the Fish and Wildlife Service of the request. In its letter, the Commission noted that the Arctic National Wildlife Refuge is the only remaining relatively undisturbed on-land polar bear denning area in Alas- ka. It also noted that reproductive success appears to be greater in on-land dens than in pack ice dens, and that it is not clear how oil and gas development and other activities in the Reftige, and other areas along the coast and offshore Alaska and Canada, would affect the Beaufort Sea polar bear population. In this regard, the Commission noted that, while activities in any one area might not have significant adverse impacts, it is reasonable to presume that activities in certain areas, such as the Arctic National Wildlife Refuge, might have effects greater than activities in other areas, and that the cumulative effects of activi- ties in many areas could disadvantage polar bear populations throughout the Arctic. The Commission noted that it previously had advised the Fish and Wildlife Service and the Min- erals Management Service of actions necessary to assess and avoid or minimize the possible adverse impacts of Alaska oil and gas development on polar bears and other marine mammals. To allow it to respond fiilly to the request from the American Institute of Biological Sciences and the Defenders of Wildlife, the Commission requested that the Service advise it as to: (1) what the Service had done, in addition to the actions described in its 11 June 1991 letter mentioned previously, to respond to the rec- ommendations in the Commission's letter of 28 December 1990; (2) what the Service was doing, or had advised the Minerals Management Service that it should be doing, to identify important polar bear denning areas and how oil and gas development in the Arctic might affect those areas and the bears that use them; and (3) what the Service has done or is consid- ering doing to ensure that oil and gas development and other activities in Alaska are not inconsistent with the International Agreement on the Conservation of Polar Bears. The Service responded to the Commission's letter on 16 October 1991. In its response, the Service noted that it had placed highest priority on developing and implementing regulations allowing the take of polar bears and other marine mammals incidental to oil and gas operations as directed by section 101(a)(5) of the Marine Mammal Protection Act (see Chapter VIII for additional discussion of this issue). As regards the Arctic National Wildlife Refuge, the Service noted that it has conducted research since 1981 to identify and evaluate the importance of the Refuge and adjacent areas in the Beaufort Sea for polar bear denning, and has sought and received support from the Minerals Management Service to expand those studies. The Service described efforts that it and the Minerals Management Service have undertaken to assess and ensure that oil and gas activities do not adversely affect polar bears or their habitat. With regard to the Commission's question as to what was being done to ensure that oil and gas activities and other activities in Alaska are not incon- sistent with the International Agreement on the Con- servation of Polar Bears, the Service indicated that letters of authorization issued pursuant to the previ- ously mentioned regulations would require monitoring programs to further evaluate the predicted effects of 50 Chapter 11 — Species of Special Concern the authorized activities on polar bears. The Service also indicated that extensive measures would be implemented to protect polar bears if Congress authorizes oil and gas development within the Arctic National Wildlife Refuge and that, in its view, it was presumptuous to speculate about potential exploration or development scenarios before Congress acted. At the end of 1991, the Commission was consid- ering the issues described above and in Chapters VII and Vni to decide what if any additional actions are necessary to conserve polar bears and their habitat in Alaska and to ensure that the United States is meeting its obligations under the International Agreement on Conservation of Polar Bears. Northern Right Whale {Eubalaena glacialis) The northern right whale is the most endangered large whale in the world. Remnant stocks survive in both the North Atlantic and North Pacific Oceans. Worldwide, northern right whales may number fewer than 400 animals. The closely related southern right whale {Eubalaena australis), which occurs only in the Southern Hemisphere and numbers a few thousand individuals, is probably the second most endangered of the great whales. The largest known stock of northern right whales occurs seasonally in coastal waters off the eastern United States and Canada. Photo-identification studies suggest that the northwest Atlantic stock numbers perhaps 300-350 animals. In spring and sunmier, right whales are found regularly in certain waters from less than a mile to a few tens of miles off Cape Cod, Massachusetts, northern Maine, and southern Nova Scotia. In winter, pregnant females and females with young of the year occur in waters within a few miles of the Georgia and northern Florida shores. Whether these are all of the pregnant females about to give birth and all females with young of the year and where the remainder of the population over-winters are unknown. No such concentrations of right whales are known to exist in the eastern North Atlantic. Sightings of right whales in the North Pacific over the past 50 years are so few and so widely scattered that there is no basis for assessing how many animals remain in that ocean or where they are likely to occur. They may well number no more than a few tens of animals. In addition, there have been virtually no reports of calves from the North Pacific for the past several decades, and the population very well could disappear before the end of this century. Right whales were brought to their precarious state by commercial whaling. In fact, the species' common name derives from the combination of factors that made it the "right" whale to kill. It was prized for the large quantity and high quality of its oil and baleen; it occurred conveniently close to shore; it swam slowly; and when killed, it tended to float. Northern right whales were taken by Basque whalers along the coast of southern Europe in the 1 1th century and were probably the first whale to be hunted regu- larly by a whaling industry. By the mid-1800s, they were taken throughout their range in both the Atlantic and Pacific Oceans; by the early 1900s, all known stocks were commercially extinct and close to biologi- cal extinction. Although done belatedly, right whales were the first species to receive international protection from commercial whalers. Through the first International Convention for the Regulation of Whaling, which entered into force in 1935, a ban on the harvest of right whales was accepted by most whaling nations. The hunting ban was later carried forward by the International Whaling Commission under the 1946 International Convention for the Regulation of Whal- ing and has been accepted by all whaling nations for several decades. Right whales also receive protection through their listing on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, their listing as endangered under the U.S. Endangered Species Act, and their consideration as depleted under the U.S. Marine Mammal Protec- tion Act. Despite protection over the past 50 years, the number of right whales remains perilously low and it is not clear whether or at what rate their numbers may have increased (or decreased) in recent decades. The absence of any apparent signs of recovery may be due, at least in part, to the very low levels to which stocks were reduced and the species' inherently low 51 MARINE MAMMAL COMMISSION — Annual Report for 1991 reproductive capacity. Mature females typically bear only a single calf every two to four years. Recovery of at least some stocks probably has been retarded by human activities that have caused the death and injury of individual animals and the degra- dation of essential habitats. Because of the extremely small population levels, the premature loss of even a single animal can have a major effect on population recovery. In this context, data from right whale strandings along the northwest Atlantic indicate that at least ten animals have been killed over the past 20 years by collisions with large vessels or by entangle- ment in commercial fishing gear. Additional animals killed by these causes may have gone unrecorded. There also is evidence that many other right whales have been injured. During 1991, an animal was killed and washed ashore near the Florida-Georgia border. Although the whale was apparently killed by a colli- sion with a vessel, wrapped around its tail was a large piece of gillnet that had been photographed on the animal a year earlier. Right whales also may be affected by vessel traffic (including whale-watching trips) in ways that may not cause direct physical harm. That is, vessel-related noise and disturbance could alter normal behavior, cause stress, and perhaps cause abandonment of preferred habitat. Right whales and dieir habitat also may be affected adversely by dredging and dredge spoil disposal, exploration and development of off- shore petroleum and hard mineral resources, oil spills, municipal outfalls, whale research, and perhaps other human activities. The Commission has supported several studies to improve understanding of the status of right whales (see, for example. Appendix C, Winn 1984, Winn et al. 1985, and Brownell et al. 1985) and to help identify needed research and management activities (see, for example. Appendix B, Kraus 1985 and the Georgia Conservancy 1986). In 1991, the Commis- sion continued its efforts in this regard. As noted in Chapter IX, the Commission provided partial support for a study of right whale behavior, including reaction to vessel traffic, using airships as observation plat- forms. Other recent activities are discussed below. Preparation of a Right Whale Recovery Plan Section 4 of the Endangered Species Act directs the Secretaries of Commerce and the Interior to prepare recovery plans identifying priority research and management needs for listed endangered species that would benefit from such planning. On several occa- sions, the Commission has recommended that the National Marme Fisheries Service prepare recovery plans for endangered whales, including right whales, that occur regularly in U.S. coastal waters. As a part of a favorable response in 1987, the Service constitut- ed a Northern Right Whale Recovery Team and began work on drafting a recovery plan. Although funding was not available to convene the team before December 1988, the Service prepared a preliminary draft plan and provided it to team mem- bers for review in advance of its first meeting. At its initial meeting, the team concluded that the draft should be substantially modified and offered to draft a recommended plan for Service consideration. The Service agreed. By early 1990, the team completed a recommended draft plan, which it provided to the Service. On 6 February 1990, the Service published a Federal Register notice requesting public and agency comments on the team's recommended draft plan. The Commission, in consultation with its Commit- tee of Scientific Advisors, provided comments to the Service by letter of 22 March 1990. The Commission noted that a number of statements, conclusions, and recommended actions in the draft plan appeared inappropriate or unjustified. For example, the plan concluded that the number of right whales had not changed in the past 50 years even though a reliable basis for estimating the size or trends of the popula- tion prior to 1970 did not exist. In addition, the goals and task statements in the recommended draft plan were not developed in a way that offered clear guidance concerning needed actions. For example, the plan suggested that $5,000 per year could usefully be spent to ensure that the ban on commercial taking of right whales is maintained despite the fact that the ban has been universally accepted by all whaling nations for several decades. No explanation was provided regarding work that the team thought needed to be done. The Commission 52 Chapter 11 — Species of Special Concern therefore recommended that the draft plan be refor- matted and substantially revised. In this regard, the Commission developed and attached to its comments a revised outline of research and management tasks. In light of comments by the Commission and others, the Service decided that the recommended draft plan should be revised. The Commission subsequently offered to assist the Service in this effort, and the Service agreed. The Commission completed a suggested revised draft plan in the fall of 1990, taking into account its earlier comments as well as those of others. The Commission and its Commit- tee of Scientific Advisors reviewed the revised draft plan and, by letter of 21 November 1990, forwarded it to the Service. In its letter, the Commission noted that the revision addressed most of the comments on the recommended plan. Because it included a number of substantive changes, however, the Commission suggested that, if the Service were to put forward the revised draft plan, it should be circulated for agency and public review as the Service's proposed plan. Among other points, the revision identified steps to monitor right whale occurrence and habitat use patterns in known high-use areas; improve the salvage and necropsy program for right whales; develop and implement area, season, gear, and/or other fishing restrictions in important right whale habitat areas; establish public awareness programs to advise vessel operators of ways to reduce the likelihood of vessel- whale collisions in areas where right whales occur most frequently; consider vessel speed restrictions in areas where right whales occur frequently; establish interim whale-watching regulations setting forth allowable approach distances for right whales; limit approval of research permit applications involving right whales to studies that would further the objec- tives and provisions of the approved right whale recovery plan or involve other essential research whose expected results would outweigh likely adverse effects on the whales; and designate critical habitat for right whales. The Service did not respond to the Commission's suggestions and, on 13 March 1991, the Commission asked to be advised of the steps and schedule that the Service would follow to complete, adopt, and imple- ment a final recovery plan. The Service replied on 25 April, noting that it believed the November 1990 revision placed too much emphasis on research and that information was sufficient to begin management actions. The Service advised the Commission that it was drafting another version that would be sent to the Recovery Team in the first week of May for a ten-day review. It also stated that it did not believe another public comment period was warranted. By July, the Commission had not been advised of any further efforts to complete or adopt the recovery plan. On 12 July 1991, the Commission requested information on the status of efforts to complete the plan and what the Service proposed to include in it. The Service's 18 October 1991 reply noted that it was sending the plan to its regional offices and science centers for review, after which it would be submitted to the Service's Director for approval. The letter did not indicate what actions were called for in the plan or when it would be submitted for approval. Inasmuch as the Service provided no comments on the provisions recommended by the Recovery Team when it circulated the initial recommended plan and it has not announced publicly its views as to appropriate research and management measures, it is not clear what the Service contemplates including in the right whale recovery plan. Critical Habitat for Right Whales in the Northwest Atlantic Certain coastal waters off the eastern United States and Canada are used seasonally by a significant portion of the right whale stock in the western North Atlantic Ocean. Five key areas have been document- ed over the past ten years, three of which occur in U.S. waters: (1) nearshore waters within 10 to 15 miles of the coast of southern Georgia and northern Florida (a calving ground and nursery area used between January and March); (2) Cape Cod Bay and Massachusetts Bay (a feeding area often used by cow- calf pairs as well as others in March and April); and (3) the Great South Channel, 40 to 60 miles east of Cape Cod (a feeding and migratory corridor for a substantial number of right whales in May and June). 53 MARINE MAMMAL COMMISSION — Annual Report for 1991 The two areas in Canadian waters are in the lower Bay of Fundy near the U.S. -Canadian border (a feeding and nursing area for cow-calf pairs from July to November) and near Browns Bank, 25 miles southeast of southern Nova Scotia (a feeding and mating area for adult and juvenile animals between July and November). On 12 July 1990, the National Marine Fisheries Service published a Federal Register notice announc- ing receipt of a petition from the Right Whale Recov- ery Team asking that three right whale habitats in U.S. waters be designated as critical habitat under section 4 of the Endangered Species Act. The petition identified proposed boundaries and briefly discussed why each area was important. The Service's notice stated that, within 12 months, it would conduct a review to determine if the requested action was warranted. To help with the review, the Service asked for comments on the petitioned action and other relevant information or publications. Based on a review of the notice and petition, the Commission concluded that there appeared to be sufficient grounds for designating critical habitat in each area. However, a synthesis and analysis of information on right whale sighting data and special management considerations had not been developed to properly evaluate the merits of designating the three areas as critical habitat. The Commission, therefore, contracted for a study to synthesize and evaluate relevant information according to criteria established by the Service for designating critical habitat. On 26 September 1990, the Commission wrote to the Service noting its views on the petitioned action and advising that it had contracted for a synthesis of relevant information to help evaluate the petition. The Com- mission also provided the Service with copies of relevant reports prepared for the Commission. In May 1991, the Commission and its Committee of Scientific Advisors accepted a final contract report entitled "Information on Right Whales (Eubalaena glacialis) in Three Proposed Critical Habitats in U.S. Waters of the Western North Atlantic Ocean" (see Appendix B, Kraus and Kenney 1991). By letter of 31 May 1991, the Commission forwarded the report to the Service. In its letter, the Commission noted that the analysis indicated that all three areas are used seasonally each year by a substantial percentage of the remaining right whale population and/or by a vital stock component (e.g., cow-calf pairs). It also noted that each area appeared to meet established criteria for designating critical habitat. The Commission, therefore, recommended that the Service proceed with actions to propose and designate as critical habitat all three areas identified in the petition. The Commission also noted, however, that the Commission-sponsored study did not fully evaluate data on right whale sighting effort and that such analyses might justify designating additional areas adjacent to the petitioned boundaries. Therefore, the Commission also recommended that the Service evaluate effort data associated with right whale sightings to determine if additional adjacent areas also merit designation. In recommending the additional analysis, the Commission noted that it should in no way delay action to designate the areas already identified. On 18 October 1991, the Service advised the Commission that an environmental assessment was being written to accompany a proposed rule to desig- nate critical habitat and that it expected to publish the proposed rule in January 1992. Right Whale Status Review Section 4(c)(2) of the Endangered Species Act requires that, at least once every five years, a review of listed species be conducted to determine whether changes in their listing status are warranted. In June 1991, the Service completed a status review of endan- gered whales, including right whales and, on 27 June, it published a Federal Register notice requesting comments. The Service's review concluded that right whales were the most severely depleted and least abundant of all large whale species. In the eastern North Pacific, the review noted, no more than seven animals had been sighted over the past 25 years in spite of consid- erable effort to locate them in areas where they once were common. Regarding right whales in the western North Atlantic, the Service cited two recent population estimates that were in close agreement with each other. One placed the population size at 71-333 54 Chapter 11 — . Species of Special Concern animals (with a coefficient of variation of 0.26 to 0.32); the other estimated a population of 350 ani- mals. In the eastern North Atlantic, only five right whale sightings have been reported in the past 30 years. If the animals sighted are remnants of the former eastern stock, the stock would appear to be nearing extinction. If they are stragglers from the western stock, the eastern stock may already be extinct. Regarding right whales in the Southern Hemi- sphere, the review reported that separate southern right whale stocks off South Africa, western Australia, and Argentina have been estimated to have increased over the past two decades at annual rates of 6.8 percent, 11.7 to 13 percent, and 7.6 percent, respec- tively. On 31 July 1991, the Commission provided com- ments on the status review. Among other points, the Commission noted that the regulations listing right whales as endangered did not recognize northern right whales and southern right whales as separate species. It therefore recommended that a technical amendment be made to correct the listing. The Service agreed and, by letter of 14 November 1991, it advised the Commission that, in cooperation with the Fish and Wildlife Service, it was proceeding to amend the regulations to list both species as endangered. Humpback Whale (Megaptera novaeangUae) Humpback whales occur in all the world's oceans. They range seasonally from the tropics to the polar ice caps and may be found in both coastal and open ocean areas. All populations were so severely reduced by commercial whaling that the International Whaling Commission (IWC) banned exploitation of the species in 1966. In 1970, humpback whales were designated as endangered under the U.S. Endangered Species Preservation Act, a designation that was carried forward under the Endangered Species Act of 1973. The only direct take of humpback whales presently authorized is a few animals taken for subsistence purposes by residents of St. Vincent and the Grena- dines. Present quotas adopted by the IWC allow the take of up to three animals annually by residents of those islands (see Chapter IV). At least three of thirteen recognized humpback whale stocks are found seasonally in U.S. waters. These are the western North Atlantic, the eastern North Pacific, and the central North Pacific stocks. The primary threats to the species differ among the regions, but they generally are related to noise, disturbance, and collisions associated with vessel traffic, offshore oil and gas development, whale- watching activities, water sports, coastal development, and commercial fishing. Other effects associated with commercial fishing may include entanglement in fishing gear and depletion of prey resources. Preparation of a Humpback Whale Recovery Plan In 1984 and again in 1986, the Marine Mammal Commission reconmiended that the National Marine Fisheries Service prepare recovery plans for hump- back whales, right whales, and other endangered whales that occur in U.S. waters. In response to these recommendations, the Service constituted a Humpback Whale Recovery Team in July 1987 to assist in preparing a recovery plan. In 1989, work on the draft plan was completed and, on 16 October 1989, the Service circulated the draft for agency and public review. The Commission, in consultation with its Commit- tee of Scientific Advisors, reviewed the draft plan and provided comments to the Service on 30 November 1989. The Commission noted that the document did not identify needed research and management tasks in sufficient detail to effectively guide development of recovery activities and that problems were sufficiently different among the regions in which the populations occur to merit independent recovery programs for each region. Therefore, it recommended that the plan outline and narrative be restructured and expanded to provide a clearer indication of the specific research and management actions necessary to rebuild each of the separate stocks in U.S. waters and that detailed implementation plans be developed for each stock. 55 MARINE MAMMAL COMMISSION — Annual Report for 1991 On 18 May 1990, the National Marine Fisheries Service acknowledged receipt of the Commission's comments and noted that a revised draft recovery plan, incorporating reviewers' comments, had been distributed to the Recovery Team in preparation for its 23-24 May 1990 meeting in Seattle, Washington. Following the meeting, an implementation schedule with cost estimates and task priorities was completed and circulated for public and agency review. By early 1991, it was not clear what was being done to com- plete, adopt, and begin implementing the recovery plan and the Commission asked to be advised of the status of the recovery plan and implementation sched- ule. The Service replied on 25 April 1991, noting that the Recovery Team had reviewed all the com- ments submitted on the draft plan, incorporated those comments as appropriate, and submitted a recom- mended final plan that was awaiting clearance by the directors of the Service's regional offices. On 16 September 1991, the Commission sent the Service the final report of the contract study on the conservation and protection of humpback whales in Hawaii (see Appendix B, Townsend 1991). The purpose of the study was to help develop specific recommendations for protecting humpback whales in Hawaiian waters. The study report, which examined conservation issues and management actions related to a number of activities including whale watching, water sports, scientific research, and military activi- ties, illustrated the importance of addressing recovery actions on a regional basis. Therefore, in its letter sending the report to the Service, the Commission recommended that, when the humpback whale recov- ery plan is completed, the Service immediately take steps to develop area-specific implementation plans to address implementation needs peculiar to each region- al population. The final recovery plan was approved and adopted by the National Marine Fisheries Service on 14 November 1991; it is to be distributed to agencies and interested organizations in 1992. The Marine Mam- mal Commission will review the final plan to deter- mine what further steps should be taken to develop cooperative regional implementation programs. Humpback Whales in Alaska During summer, part of the central North Pacific stock of humpback whales feeds in the coastal waters of southeastern Alaska, including Glacier Bay. The bay lies entirely within the Glacier Bay National Park and Preserve, an area administered by the National Park Service. In 1978 and 1979, the occurrence of humpback whales in Glacier Bay declined significantly from previous years, and it was believed that in- creased tour boat and other vessel traffic may have caused or contributed to their reduced numbers. As described in previous Annual Reports, the Commission, in cooperation with the National Park Service and the National Marine Fisheries Service, convened a meeting of scientists in October 1979 to review available data related to whale use of the bay, identify possible causes of the regional shift in whale distribution, and identify research needed to better assess and determine possible causes. In addition, the National Park Service undertook consultations with the National Marine Fisheries Service pursuant to section 7 of the Endangered Species Act to identify measures necessary to protect humpback whales and their habitat in Glacier Bay. As a result of the meeting and consultations, the National Park Service initiated a multi-year research program in 1980 to assess factors affecting humpback whale distribution in Glacier Bay and adjacent waters. It also promulgated temporary regulations to reduce the number of large commercial tour ships and smaller recreational vessels that could enter the bay. The regulations established entry limits at levels permitted in 1976, which was the last year before humpback whale use of the bay declined significantly. These regulations were modified and reissued aimually until 1985, when the National Park Service adopted permanent regulations. The permanent regulations established a permit system for vessel entries, prohib- ited fishing for certain humpback whale prey species in the bay, and provided for the designation of "whale waters" where special vessel operating procedures apply to minimize possible disturbance of whales. 56 Chapter 11 — Species of Special Concern During consultation with the National Park Service in 1983, pursuant to section 7 of the Endangered Species Act, the National Marine Fisheries Service advised that an increase in vessel traffic in Glacier Bay above the 1976 level could jeopardize the south- east Alaska stock of humpback whales. It therefore recommended that, if cruise ship entries were to exceed more than 20 percent of the 1976 level, section 7 consultation should be re-initiated. Since promulgation of its temporary regulations in 1980, the National Park Service has gradually in- creased the number of vessels permitted to enter the bay during the summer whale season. In 1988, the number of permitted entries for cruise ships reached 107 entries, which was 20 percent above the 1976 level and the maximum level allowed without re- initiating consultation and amending existing National Park Service regulations. In 1989, the National Park Service considered authorizing more than 107 entries but, decided not to do so, and maintained the cruise ship entry level at 107. In 1990, however, the National Park Service autho- rized 109 vessel entries, which exceeded the maxi- mum level recommended by the National Marine Fisheries Service and authorized under National Park Service regulations. In response, the Alaska Wildlife Alliance filed a complaint alleging that the National Park Service had not followed applicable procedures in authorizing the additional entries, that it had exceeded the maximum allowable number of entries established by regulations, and that it had violated the National Environmental Policy Act by not preparing a supplemental environmental assessment (see Chapter Vn). The plaintiffs also alleged that the National Park Service was impermissibly allowing commercial fishing operations in the Glacier Bay National Park and Preserve. Parties to this lawsuit met early in 1991 to begin negotiating a settlement. At the end of 1991, the parties had, with judicial consent, suspended proceedings pending completion of negotiations. In 1991, the National Park Service again limited cruise ships to 107 vessel entries. However, the Service also initiated steps to consider a new system for regulating vessel entries. By letter of 15 February 1991, the National Park Service forwarded to the Commission copies of the "Glacier Bay National Park and Preserve Humpback Whale Population Monitoring Data — 1990." The Service's letter advised the Commission that it planned to consider modifying its regulations in ways that could result in an increase in cruise ship entries above the current limit of 107 entries. In this regard, the Service stated that it had determined that the best approach for managing vessel use in the bay would be to develop a vessel man- agement plan and establish a citizen's steering group to provide input to its development. The Commission subsequently received a copy of the "Glacier Bay National Park and Preserve Vessel Management Plan — Workbook 1" and the "Environ- mental Assessment on Regulations Regarding Fisher- ies in Glacier Bay National Park," both dated May 1991. On 18 July 1991, the Commission wrote to the Service expressing its understanding that the Service planned to maintain vessel entry levels for the 1991 whale season in Glacier Bay at 107 entries. With regard to developing a vessel management plan, the Commission noted that, if new regulations are con- templated that could authorize an increase in vessel entries above current limits, consultations with the National Marine Fisheries Service pursuant to section 7 of the Endangered Species Act should be re-initiat- ed. To ensure that such consultations are carried out effectively, the Commission recommended that the National Park Service informally consult with the National Marine Fisheries Service before circulating any draft vessel management plan for public review and append the results of those consultations to the draft plan circulated for review. By letter of 18 September 1991, the National Park Service responded, indicating that it agreed with the Commission's recommendations. It also noted that it would provide the Commission with copies of the draft vessel management plan and the results of consultations with the National Marine Fisheries Service when they were completed. At the end of 1991, the Commission had not yet received a draft plan. Also during 1991, the National Park Service published a proposed rule in the Federal Register to amend its regulations regarding commercial fishing in Glacier Bay. The action was taken to allow commer- cial fishing to continue to be exempt from a current 57 MARINE MAMMAL COMMISSION — Annual Report for 1991 nationwide prohibition of such activities within national parks. The proposed rule, published on 5 August, would allow commercial fishing to continue in the bay until 31 December 1997 to allow existing fishermen time to amortize their investments by phas- ing out or relocating elsewhere. In support of its proposed rule, the Service noted that commercial fishing had occurred in Glacier Bay since before it was designated a national monument in 1925. On 8 November 1991, the Commission, in consul- tation with its Conmiittee of Scientific Advisors on Marine Mammals, provided comments to the Service on the proposed rule and associated environmental assessment. It noted that, notwithstanding the nation- wide prohibition on commercial fishing in national parks, the proposed rule leaves open the possibility of an indefinite extension of authorization to permit commercial fishing in the Park if the Service deter- mines that the fisheries are compatible with objectives for conserving park resources. In this regard, the Commission noted that the Service did not explain why a seven-year period was chosen, how many vessels or what fisheries were involved, or why commercial fishermen could not shift their operations elsewhere in a shorter period of time. Without such information, the Commission noted that it was diffi- cult to determine how either the proposed rule or alternative actions would affect park resources and commercial fishermen. With respect to marine mammals, the Commission noted that eliminating commercial fishing within Glacier Bay could benefit humpback whales and other wildlife that utilize the bay. Doing so would reduce vessel noise and disturbance, the risk of vessel-whale collisions, the potential for whales to become entan- gled in fishing gear, and the possibility of further altering the Park's natural ecosystem. The Commis- sion also noted that the proposed rule addressed subsistence fishing, which was prohibited by the 1980 Alaska National Interest Lands Conservation Act. Therefore, the Commission recommended that the Service: (1) reconsider its proposed rule to allow commercial fishing to continue within Glacier Bay National Park; (2) refrain from proceeding with a final rulemaking unless sufficient information became available to support a finding that commercial fishing will not conflict with the values and purposes for which the Park was established; and, (3) before publishing a final rule, circulate information on the anticipated level and possible effects of commercial fishing in the Park for public review and comment. At the end of 1991, the National Park Service had not yet published a final rule on conmiercial fishing within Glacier Bay National Park. Humpback Whales in Hawaii Hawaii is the principal calving ground of the central North Pacific stock of humpback whales. During 1991, the Sanctuaries and Reserves Division of the National Oceanic and Atmospheric Administra- tion's National Ocean Service considered a possible national marine sanctuary designation in Hawaii that could enhance protection of humpback whales as well as other marine resources in Hawaii. Title HI of the Marine Protection, Research, and Sanctuaries Act of 1972 directs the Secretary of Commerce to designate marine sanctuaries to protect and manage areas of the marine environment that are of national significance. The major goals of the National Marine Sanctuary Program, the group designated to carry out this directive, are to provide enhanced resource protection through comprehensive and coordinated conservation and management; support, promote, and coordinate scientific research and monitoring related to the specific marine resources that sanctuaries are designat- ed to protect; enhance public awareness, understand- ing, appreciation, and wise use of the marine environ- ment; and, facilitate multiple use, to the extent com- patible, with the primary objective of sanctuary resource protection. Proposals to designate a marine sanctuary to protect humpback whales in Hawaii also received extensive consideration in the 1970s and 1980s. However, actions to designate a sanctuary in Hawaii were not taken. In 1990, Congress directed that the Sanctuaries and Reserves Division study the feasibility of establishing a national marine sanctuary in the waters adjacent to Kahoolawe, the smallest of the main Hawaiian Islands. The purpose of the study was to assess the contribution sanctuary management of the area might make to protecting the population of 58 Chapter n — Species of Special Concern humpback whales that use the waters around the island. The waters surrounding Kahoolawe also are used by a variety of other marine mammals. The island also is historically significant because of its use for cultural and religious practices by native Hawaiians and other Pacific islanders and as a seasonal camp for fishing activities. It has been protected from develop- ment and tourism by access restrictions imposed by the U.S. Navy, which, over the past 40 years has used the island for practice bombing. The waters around the island are reported to contain significant amounts of unexploded ordnance from past military use. In response to the Congressional directive, the Sanctuary and Reserves Division examined marine resources within three nautical miles of Kahoolawe and consulted with Federal and State agencies, includ- ing the Commission, and the public during 1991. By letter of 16 October 1991, the Hawaii Governor's Office of State Planning informed the Sanctuaries and Reserves Division that the State favored, among other things, "reconsideration of a single-species humpback whale sanctuary, the boundaries of which would extend around all appropriate islands at a distance which is scientifically justifiable, provided that such a sanctuary is designated within three years," after which the term of the present Governor expires. In December 1991, the Sanctuaries and Reserves Division released the results of its study. The study report concluded that, although there is evidence of biological as well as cultural and historical resources adjacent to Kahoolawe Island that merit further investigation, information does not conclusively support a finding of special national significance that warrants national marine sanctuary status. The Division also concluded that there are, however, additional marine areas within the Hawaiian archipela- go that merit further consideration as possible compo- nents of a multiple-site, multiple-resource national marine sanctuary. The report noted that fiirther investigation will be required to determine whether a finding of special national significance can be made regarding these resources, and that the Division will continue these investigations in 1992. With regard to the State's position, the report noted that a national marine sanctuary in Hawaiian waters would include the humpback whale as a component of a comprehen- sive sanctuary resource protection and management program design to complement other agency efforts. As noted above, the Commission contracted for a study in 1990 to compile and evaluate information on the status of humpback whales in Hawaii and the steps being taken and needed to identify and avoid or mitigate threats to the whales and their habitats in Hawaiian waters. Among other things, the contractor noted that several research groups conduct similar humpback whale studies and that the studies could be duplicative and disturb the whales. In this regard, the report noted that research goals need to be clarified and it recommended that aimual research coordination meetings be convened by the National Marine Fisher- ies Service. By letter of 16 September 1991, the Commission transmitted the contract report to the National Marine Fisheries Service and involved researchers. In its letter, the Commission reiterated its earlier recom- mendation that, when the humpback whale recovery plan is completed, the Service immediately take steps to develop area-specific implementation plans. In this regard, the Hawaiian implementation plan should include research and related activities noted in the humpback whale recovery plan. In response to the Commission's recommendations, the National Marine Fisheries Service, in consultation with the Commission, developed and circulated terms of reference for a two-day research coordination workshop. On 20 December 1991, the Commission wrote to the National Marine Fisheries Service offering to provide partial support for such a work- shop and offering its views on the workshop's objec- tives. In the Commission's view, the purpose of the workshop would be to facilitate communication between researchers and management agencies, identify critical research needs, and better coordinate efforts among investigators to avoid conflicts and unnecessary duplication of effort. The workshop is scheduled to be held in Wailuku, Maui, Hawaii, on 23-24 January 1992 and will be co- sponsored by the Marine Mammal Commission, the National Marine Fisheries Service, the University of 59 MARINE MAMMAL COMMISSION — Annual Report for 1991 Hawaii Sea Grant College Program, and Hale Kohola/ Whaler's Village. Also relevant to humpback whales in Hawaii are recent efforts to develop population models that would permit improved assessments of the status of the central North Pacific stock, as well as other North Pacific Ocean stocks of humpback whales. Such models require estimates of vital rates, including age at maturity, reproductive intervals, adult mortality, and calf/juvenile mortality. Of these parameters, estimates of calf and juvenile mortality are the least well documented. In this regard, the report of a 1989 International Whaling Commission workshop on photographic identification techniques for whale research noted that it might be possible to estimate humpback whale calf/juvenile mortality from photo- graphs of individually recognizable mother-calf pairs and other whales taken in calving and feeding areas. To pursue this idea, the National Marine Mammal Laboratory, in conjunction with researchers studying humpback whales in the North Pacific, began organiz- ing a series of workshops to compare photographic records of humpback whale mother-calf pairs from the Hawaiian calving ground with records of female whales photographed on the feeding grounds in Alaska. The objectives of the workshops were to estimate calf/juvenile mortality and female humpback whale reproductive intervals using photographs. The first workshop, supported in part by the Marine Mammal Commission, was held 20-23 No- vember 1991 in Seattle, Washington (see Chapter DC). It focused on cataloguing photographs taken by researchers in Hawaii, Alaska, California, Mexico, Canada, and Japan, and identifying possible data biases. The workshop participants concluded that, while there was sufficient information to develop preliminary estimates of humpback whale calf/juvenile mortality and female reproductive intervals, such analyses could be biased. Possible sources of bias identified by the participants included, among other things, calves that died after they were photographed but were presumed to be alive during the season, and calves that were alive but were missed by researchers. A second workshop is planned for April 1992 to compile lists of female humpback whales that were photographed with calves of the year during the 1991/1992 winter in Hawaii. Photographs of these females will be distributed to researchers in Alaska in order to estimate the numbers of females that were seen in Hawaii with calves and that visited the sum- mer feeding range with their calves during 1992. To the extent possible, these results, along with previous photographs of known female whales with calves will be used to develop preliminary estimates of calf/ juvenile mortality and female reproductive intervals. North Atlantic Humpback Whales In 1983, Stellwagen Bank, located north of Cape Cod and east of Boston, Massachusetts, was added to the site evaluation list for the National Marine Sanctu- ary Program. To help assess the merits and options for designating the bank as a national marine sanctu- ary, a series of public meetings was held in 1990. On 8 February 1991, the Sanctuaries and Reserves Division published a Federal Register notice announc- ing a proposed rule for designating approximately 453 square miles of the bank and adjacent waters as the Stellwagen Bank National Marine Sanctuary. The notice also aimounced the availability of a draft management plan and a draft environmental impact statement and requested public and agency comments. On 9 April 1991, the Commission, in consultation with its Committee of Scientific Advisors on Marine Mammals, responded. In its comments, the Commis- sion noted that the proposed designation would affect a variety of fish, seabirds, and marine mammals, including five species of endangered whales (i.e., humpback, right, fin, blue, and sei whales). Given the information on the importance of Stellwagen Bank as a feeding and nursing area for humpback, fin, and minke whales, and because right whales also migrate through the area seasonally, the Commission con- curred with the Division's determination that this area is nationally significant and warrants designation as a national marine sanctuary. The Commission recom- mended that the Division proceed with efforts to draft and implement the associated sanctuary management program. The Commission also noted, however, that the proposed action did not thoroughly identify or assess possible effects and management needs related to 60 Chapter II — Species of Special Concern commercial and recreational fishing. With respect to humpback whales and other whales, such activities could result in disturbance, possible area avoidance by whales, incidental taking, entanglement in lost or discarded fishing gear, and the depletion of available food for marine mammals and other species. There- fore, the Commission recommended that: (1) the environmental impact statement be expanded to include a more thorough description of the possible direct and mdirect effects of commercial and recre- ational fishing on marine mammals and other species; and (2) the sanctuary designation document be ex- panded to include commercial and recreational fishing as an activity that could be subject to regulation if new information indicates that existing management authorities are not providing the necessary level of site-specific protection needed. The Commission's comments and those of other reviewers were being considered by the Division at the end of 1991, and the final environmental impact statement and management plan is expected to be completed in 1992. An additional effort initiated in 1991 bearing on humpback whales in the North Atlantic is the coopera- tive research program entitled "Years of the North Atlantic Humpback Whale" (Project YONAH). This three-year project was developed to address questions concerning the discreteness of humpback whale stocks in the North Atlantic Ocean, the extent to which whales move between feeding areas, reproduction and mortality rates, and the status of the various hump- back whale stocks in the North Atlantic basin. The project involves collaboration by researchers from seven nations to obtain and analyze photographs and biopsy samples from humpback whales throughout the North Atlantic. Sampling is scheduled to begin in January 1992 on breeding grounds (Silver Bank, Navidad Bank, Samana Bay, and Mona Passage) in the West Indies. Sampling is to continue in summer 1992 at all known North Atlantic feeding grounds (i.e., the Gulf of Maine, Gulf of St. Lawrence, off the Atlantic coast of Newfoundland and Labrador, off southwestern Greenland, around Iceland, and off Norway). Sampling will be continued in 1993 and final analyses are expected to be completed sometime in 1994. The Marine Mammal Commission provided funds at the outset to help support project administra- tion costs (see Chapter DC). Bowhead Whale (Balaena mysticetus) Bowhead whales historically occurred throughout the seasonally ice-covered areas of the arctic and sub- arctic region. Over-exploitation by commercial whalers between 1600 and 1900 severely depleted all four recognized populations. The species is listed as endangered under the Endangered Species Act and depleted under the Marine Mammal Protection Act. It also is classified as a protected stock by the Interna- tional Whaling Commission (IWC). The largest surviving population is the western Arctic population, which migrates seasonally between the Bering Sea and the Chukchi and Beaufort Seas. Recently bowhead whale calls were recorded in an area north of Scandinavia that was once populated by the Spitsbergen bowhead whale population. Although this population had been thought to be extinct, new evidence suggests it may still be extant. Populations exist in odier areas as well, but information adequate to assess their status is not available. Eskimo Whaling The western Arctic bowhead whale population is important to Alaska Natives who continue to hunt the whales for subsistence and cultural purposes. In the mid-1970s, the number of whales struck and landed or lost by Eskuno whalers increased (Table 7). The increase was due to several factors, including an increase in the number of whaling crews and restric- tions on the subsistence take of caribou. As jobs became available on the Alaska oil pipeline and as compensation claims on Native land rights were settled, more cash was available to purchase whaling equipment, which also contributed to the increased amount of whaling. At its June 1977 meeting, the IWC reviewed information on the status of the western Arctic bow- head whale population and the increasing take by Alaska Eskimos. Concern that the increasing subsis- 61 MARINE MAMMAL COMMISSION — Annual Report for 1991 tence take was jeopardizing the population prompted the IWC to eliminate its exemption under which Natives were allowed to take bowhead whales and other protected species for subsistence purposes. The United States subsequently sought and achieved reinstatement of the exemption, based largely on a pledge by the U.S. Commissioner to the IWC that the United States would undertake a comprehensive research program to monitor the western Arctic bowhead whale population's status and trends. In 1982, the IWC adopted a new paragraph, 13(a), to its Schedule of Regulations setting forth principles and guidelines for establishing catch limits for aborigi- nal/subsistence whaling. The new measure formally recognized the distinction between commercial and aboriginal/subsistence whaling. It also codified the IWC's past practice of attempting to strike a balance between the subsistence, cultural, and nutritional needs of aboriginal people and the need to protect affected whale stocks. Specifically, the new para- graph states that "[F]or stocks below the maximum sustainable yield (MSY) level but above a certain minimum level, aboriginal/subsistence catches shall be permitted so long as they are set at a level which allows the whale stock to move to the MSY level." Allowable catch levels established by the IWC are based on advice from its Scientific Committee and are implemented by the member nations. To help implement the new measure, the U.S. Department of the Interior began to develop a quanti- tative procedure for determining the nutritional, subsistence, and cultural needs of Alaska Eskimos for bowhead whales. The procedure multiplied the mean annual number of bowhead whales landed per capita during the period (1910-1969) by the current size of the Eskimo population in nine Alaska Native whaling villages. Based on data available in 1983, the cultural need for bowhead whales was established at 26 animals landed per year. This estimate was revised in 1988 to a take of 41 whales landed per year, based on new data from additional research on past cultural needs in the nine Alaska Native whaling villages. The United States subsequently requested and received an annual quota of 41 whales landed or a maximum of 47 whales struck for the years 1989, 1990, and 1991. During that period the struck-and- landed rate was 66 percent. Based on this rate, at the 1991 meeting of the IWC, the United States asked for a quota of 54 strikes per year for the years 1992, 1993, and 1994 with no more than 41 whales landed in any year for the next three years (Table 7). The IWC adopted these proposed catch limits, along with a provision to allow Natives to carry over a combined total of up to 13 unused strikes during the 1989, 1990, and 1991 seasons. The Alaska Eskimo bowhead whale hunt is regulat- ed by the Alaska Eskimo Whaling Commission pursuant to a memorandum of understanding signed in 1981 by the Commission and the Department of Commerce. The memorandum has been renewed annually, and the number of whales struck, landed, and lost by Alaska Natives has been consistent with the quotas established by the IWC. In August 1991, the Minister of Fisheries and Oceans of Canada approved a license for the take of one bowhead whale by the western Arctic Native community of Aklavik. Canada, which is not a mem- ber of the FWC, did so without consulting the IWC. The Inuvialuit Natives subsequently struck two bowhead whales, one of which was landed. Absent consultations with the IWC, Canada's action could be viewed as "diminishing the effectiveness" of the IWC's conservation program and grounds for certifi- cation under relevant U.S. laws — the Pelly Amend- ment to the Fishermen's Protective Act (22 U.S. C. § 1978) and Packwood-Magnuson Amendment to the Magnuson Fishery Conservation and Management Act (16 U.S.C. § 1821(e)(2)). In response to U.S. concerns, the Canadian Am- bassador wrote to the U.S. Secretary of Commerce on 30 September 1991 stating that a committee of offi- cials from various Canadian Government departments would review the issues arising from the Inuvialuit bowhead whale hunt, including the Canadian Govern- ment's position vis-a-vis the IWC. Because of the implications of the Canadian hunt for the conservation of bowhead whales, the Marine Mammal Commission wrote to the U.S. IWC Commissioner on 5 December 1991. In its letter, the Marme Mammal Commission recommended that, notwithstanding the need for an investigation of the circumstances surrounding the issuing of the Canadian license, the Secretary certify 62 Chapter n — Species of Special Concern the Government of Canada under the Pelly Amend- ment for diminishing the effectiveness of the IWC's conservation program. At the end of 1991, the United States was continuing informal discussions with representatives of the Canadian Government, and no action had been taken on the recommendation. Industry /Native Agreement Seismic surveys and other activities associated with offshore oil and gas exploration and development may affect the movement and behavior of bowhead whales during their migrations. These in turn may affect the Alaska Eskimo spring and fall bowhead whale hunts as well as the whales themselves. Hunters may have to travel greater distances to find whales, thereby increasing die risk that they may be injured or killed or unable to bring the whales killed back to their villages. To avoid such possibilities, the Alaska Eskimo Whaling Commission and certain oil compa- nies engaged in activities on Alaska's North Slope entered into a cooperative agreement in 1986 calling upon the industry to assist with towing whales killed by Native hunters to a suitable butchering site to prevent meat from spoiling; cache emergency sup- plies, such as gasoline and food, at selected sites for use by Native subsistence hunters; provide emergency assistance to hunters during adverse weather condi- tions; assist with the transport of whale meat and muktuk to prevent spoilage and maximize utilization; and specify actions that industry planes and vessels would take to avoid interfering with ongoing whaling activity. The agreement was approved by the Nation- al Oceanic and Atmospheric Administration and has been renewed annually. Current Population Status In May 1991, the IWC's Scientific Committee undertook a comprehensive assessment of the western Arctic bowhead whale population. The Committee reviewed the results of recent and ongoing photogram- metric studies, ice-based censuses, subsistence catch- es, and carbon isotope baleen aging studies. In combination, these results provided new information suggesting that: individual growth is slower, and age at first parturition (i.e., female sexual maturity) is later, tiian previously thought (13-17 years instead of 9 years); age at recruitment into the exploitable population is from 1 to 7 years; the average calving interval is probablyb about 4 years; the proportion of immature animals in the population is 0.44 to 0.65, which is indicative of a recovering population; and the net rate of population increase for the period 1978 to 1988 was 3.1 percent per year. The Scientific Committee estimated that, in 1988, the western Arctic bowhead whale population num- bered approximately 7,500 animals (95 percent confidence interval of 6,400 to 9,200 animals). The initial pre-exploitation (1848) population was estimat- ed to have numbered 12,400 to 18,200 animals. Although the Scientific Committee was unable to define the maximum sustainable yield (MSY) level, it concluded that the current depletion level (cur- rent/historic population size) is likely between 0.44 and 0.65 and that the stock, therefore, may be closer to its MSY level than previously thought. In addition, the Scientific Committee estimated that from 1978 to 1988, the population increased at an average of 3.1 percent per year (95 percent confidence interval 0. 1 to 6. 1 percent per year). Assuming no dramatic changes in the environment or in the age composition of the catch, the Scientific Committee estimated that the annual replacement yield (i.e., the number of animals that could be replaced by population growth if taken from this population) would be 254, with 92 whales being the lower bound of the estimate's 95 percent confidence interval. The Scientific Committee concluded that the expected Native subsistence kills of 41 to 54 whales per year, by themselves, should not prevent recovery of this stock. It noted, however, that other factors (e.g., environmental change, pollution, noise disturbance from offshore oil and gas resource development, etc.), combined with the subsistence take, could have cumulative effects that might prevent or delay the stock's recovery. The Scientific Committee noted that the distribution and known feeding areas of the western Arctic bow- head whale population include areas that have been, and are likely to be, leased for oil, gas, and other mineral resource exploration and development. Although a great deal of research has been undertaken to identify and assess the possible effects of such 63 MARINE MAMMAL COMMISSION — Annual Report for 1991 Table 7. Quotas and Number of Bowhead Whales Taken by Alaska Eskimos, 1973 - 1991' IWC Quotas^ Number Taken Struck Percent But Total Struck Year Landings Strikes Landed Lost Struck Landed 1973 (No Quotas) 37 10 47 79 1974 (No Quotas) 20 31 51 39 1975 (No Quotas) 15 28 43 35 1976 (No Quotas) 48 43 91 53 1977 (No Quotas) 26 82 108 24 1978 14 20 12 6 18 67 1979 18 27 12 15 27 44 1980 18 26 16 18 34 47 1981 17 27 17 11 28 61 1982 17 27 8 11 19 42 1983 17 27 9 9 18 50 1984^ — 43 12 13 25 48 1985 — 26 11 6 17 65 1986 — 26 19 9 28 68 1987 — 32 22 9 31 71 1988 — 35 23 6 29 79 1989 41 44 18 8 26 69 1990 41 47 30 14 44 68 1991 41 44 27 17 44 61 Cited quotas provided by the International Whaling Commission, Cambridge, England; data on the number of whales taken provided by the National Marine Fisheries Service. In establishing quotas for both landings and strikes, the International Whaling Commission stipulated that whaling should cease whenever the number of whales landed or the number of strikes reached the specified number, whichever came first. For the years 1984 through 1988, quotas were set for strikes only. activities, particularly the short-term response of bowhead whales to noise associated with resource development, the potential long-term effects on the whales and their habitat remain uncertain. The Scientific Committee, therefore, recommended that "[RJegulatory agencies in the USA should expand efforts to monitor the status of the Bering-Chukchi- Beaufort Seas stock of bowhead whales to detect possible adverse effects of industrial /petroleum activities." Research Planning and Coordination The Marine Mammal Conmiission has played a major role in planning and coordinating bowhead whale research. Following the June 1977 meeting of the International Whaling Commission mentioned earlier, the Marine Mammal Commission recommend- ed that the National Marine Fisheries Service expand its bowhead whale research program. As noted in previous Annual Reports, the research plan subse- 64 Chapter II — Species of Special Concern quently developed by the Service was judged inade- quate and, on 2 September 1977, the Commission convened a group of experts to critically review the plan. The Commission subsequently developed and, on 14 September 1977, transmitted a recommended research program to the Service. The Service modi- fied and adopted this plan and presented it at the December 1977 meeting of the IWC in support of the U.S. pledge to undertake a comprehensive research and monitoring program. Also, the Bureau of Land Management (which later relinquished authority over offshore mineral resources to the Minerals Manage- ment Service) initiated a bowhead whale research program in 1978 in response to consultations with the National Marine Fisheries Service pursuant to section 7 of the Endangered Species Act. At issue were the possible effects of offshore oil and gas exploration and development on bowhead whales and how best to address the matters. Between 1978 and 1981, the Marine Mammal Commission recommended and helped to organize research reviews and coordination meetings. The meetings were designed to avoid duplication and to coordinate research being planned or supported by Federal agencies (particularly the Bureau of Land Management and the National Marine Fisheries Service) and other groups. By letter of 11 January 1982, the Marine Mammal Commission recommended that the National Marine Fisheries Service's Alaska Regional Director assume responsibility for convening regular coordination meetings of all researchers and sponsors before the start of each spring bowhead whale research season. In subsequent years, formal coordination meetings were not always held. It was not clear that everything necessary was being done to ensure that bowhead whale studies continued to be well-designed and properly coordinated. For example, a representative of Alaska's Native community raised questions during the Commission's 1989 annual meeting in Monterey, California, as to whether the objectives of a contract study being supported by the Minerals Management Service were realistic, given the described study design, and whether this study would interfere with other ongoing studies and adversely affect both the whales and the armual subsistence hunt by Alaska Eskimos. In its 20 March 1989 letter commenting on the permit application for the Minerals Management Service contract study, the Commission recommended that the National Marine Fisheries Service issue the permit with the condition that the funding agency (the Minerals Management Service) constitute a quality review board to review the proposed study design and reconmiend needed modifications. A Scientific Review Board was subsequently constituted and now meets twice each year to review the results of the preceding season's research and plans for the forth- coming season. The board will meet in February 1992 to review the results of the 1991 season and the plans for the program's final season in 1992. Although bowhead whale research planning and coordination meetings were not held before the 1990 and 1991 research seasons, representatives of the National Marine Fisheries Service and the Service's National Marine Mammal Laboratory met in early spring in Barrow, Alaska, with representatives of the Minerals Management Service's contractor hired to conduct bowhead whale studies and with representa- tives of the Native community to organize and coordi- nate the 1990 and 1991 research programs with the Native hunt and other planned research. Research activities planned for spring 1992 include aerial photogrammetric surveys directed by the National Marine Mammal Laboratory staff, an ice- based census directed by the North Slope Borough staff, and continuation of sound playback studies supported by the Minerals Management Service. Disruptions resulting from these activities, by them- selves and in conjunction with noise and other distur- bances from industry exploration for oil and gas resources off Alaska (see Chapter VHI), could affect the bowhead whale's spring migration past Barrow, Alaska, and the availability of bowhead whales for the Native subsistence hunt. Also, these programs could result in mutual interference and inefficient use of logistic support if not coordinated effectively. There- fore, the National Marine Fisheries Service has proposed a formal program coordination meeting for January 1992 to discuss research plans and field requirements, aerial and ice safety procedures and communication, and geographic overlap between the aerial surveys, the ice census, and the Native subsis- tence hunt. 65 MARINE MAMMAL COMMISSION — Annual Report for 1991 The National Marine Fisheries Service has lead U.S. responsibility for identifying, encouraging, and coordinating research necessary to ensure that human activities do not adversely affect bowhead whales or their habitat. Therefore, in its 5 December 1991 letter to the U.S. IWC Commissioner (see Chapter TV), the Marine Mammal Commission recommended that the Service undertake or cause to be undertaken research called for by the IWC to monitor the status of this population and the effect of the subsistence harvest on its continuing recovery. The Marine Mammal Commission also recommended that the National Marine Fisheries Service develop a recovery plan to guide research and recovery efforts for the western Arctic bowhead whale population. Small-Take Exemption On 18 July 1990, the National Marine Fisheries Service published in the Federal Register a final rule authorizing the incidental, non-lethal take of six species of marine mammals, including the bowhead whale, with no specified limit on the numbers of animals that can be taken, incidental to oil and gas exploration activities in the Beaufort and Chukchi Seas from 1990 to 1995. The Commission's conunents on this rule and subsequent requests by industry groups for letters of authorization to take bowhead whales are described in Chapter Vin. In 1992, the Marine Mammal Commission will continue to review matters related to bowhead whales and advise the National Marine Fisheries Service, the Minerals Management Service, and other involved agencies and groups on further actions that may be necessary to protect and encourage the recovery of the western Arctic bowhead whale population. Gray Whale (Eschrichtius robustus) The gray whale is the sole member of the family Eschrichtiidae. It breeds, feeds, and migrates primar- ily in coastal waters of the continental shelf. Its presence in nearshore waters exposes the gray whale to industrial, recreational, and other human activities throughout most of its range. There are two recognized stocks of gray whales — the western North Pacific (Korean) stock, which is severely depleted, and the eastern North Pacific (California) stock, which has recovered from severe depletion caused by over-exploitation. Although commercial hunting of both stocks is prohibited, the eastern North Pacific stock is subject to an annual subsistence harvest in the Chukchi Sea. Each year, virtually the entire eastern North Pacific gray whale population migrates between major summer feeding grounds in the Bering and Chukchi Seas and winter breeding grounds in the nearshore waters, bays, and lagoons of southern California and Baja California, Mexico. Following discovery of the principal breeding lagoons along the Pacific coast of Baja California by commercial whalers, the population was severely depleted in the 1850s and 1860s. A second period of commercial whaling using factory ships further depleted the stock in the early 1900s. By 1946, when the International Convention for the Regulation of Whaling afforded the stock protec- tion from commercial whaling, gray whales were believed to number no more than a few thousand animals. In 1970, additional protection was provided when the species was designated as endangered under the Endangered Species Conservation Act of 1969, the predecessor to the Endangered Species Act of 1973. By virtue of this listing, the species is also considered depleted under the Marine Mammal Protection Act. Since commercial whaling for gray whales was prohibited, the eastern North Pacific population has grown to approximately 21,000 animals and appears to be still increasing. Past analyses suggested the pre- exploitation population size was between 15,000 and 24,000 animals. However, a more recent analysis suggests that the pre-exploitation level could have been as high as 35,000 animals. In response to its | continuing recovery, the International Whaling Com- mission (IWC) in 1978 reclassified the eastern North Pacific gray whale from a protected stock to a sus- tained management stock. Since 1986, under a subsistence quota set by the IWC, 179 gray whales have been taken annually by the Soviet Union on behalf of its Siberian Natives. 66 Qiapter 11 — Species of Special Concern Despite its numerical recovery and evidence that the population may be approaching carrying capacity, the gray whale's nearshore presence exposes it to many threats from habitat degradation and direct physical harm resulting from human activities. Commercial fishing, offshore oil and gas exploration and development, commercial shipping, whale-watch- ing, recreational boating, and military activity pose threats to feeding, breeding, and migratory habitats essential to the survival of the species and to individu- al whales. Comprehensive Assessment of Gray Whales As noted in the Commission's 1990 Annual Re- port, the IWC conducted a comprehensive assessment of the status of the two extant gray whale populations at a special meeting of its Scientific Committee on 23- 27 April 1990. Participants at the meeting concluded that, although recent sightings of gray whales in the area suggest that the western North Pacific population may be recovering slowly, it remains severely deplet- ed. They recommended that research be undertaken cooperatively by the Soviet Union, Japan, the Repub- lic of Korea, the People's Democratic Republic of Korea, and the People's Republic of China to better determine the distribution, abundance, and possible increase of the western North Pacific population. With regard to the eastern North Pacific (Califor- nia) population, the participants concluded that the best estimate of population size was a 1988 estimate of 21,113 animals (standard error 688). They also estimated that, between 1968 and 1988, the population had increased at an average annual rate of 3.2 percent (standard error 0.5 percent), despite an average annual Soviet subsistence catch of 166 whales per year during this period. Recognizing the threats posed by coastal development and industrial activity, the participants recommended that the responsible governments continue population censuses and initiate other studies, as necessary, to detect and monitor changes in produc- tivity and other key population parameters. Endangered Species Status Review Section 4(c)(2) of the Endangered Species Act re- quires that a status review of listed species be con- ducted at least once every five years to determine whether any species should be removed from the list or reclassified as endangered or threatened. The National Marine Fisheries Service conducted status reviews of endangered whales, including gray whales, in 1984 and in 1990. The Service's 1984 review concluded that a potential threat to the California gray whale population may be increasing industrial devel- opment and vessel traffic in the calving lagoons and in other vital habitats along the migration route and on the feeding grounds. After taking into account the considerable and continuing growth of the population, the Service concluded that, although the population was no longer endangered, threats to critical feeding and breeding areas and migratory corridors warranted its listing as threatened. The Service also concluded that the western North Pacific stock had not recovered and should remain listed as endangered. The National Marine Fisheries Service's 1990 status review of endangered whales again noted the numerical recovery of gray whales. It concluded, however, that the California stock has recovered to near its original population size and is neither in danger of extinction throughout all or a significant portion of its range, nor likely to become endangered again within the foreseeable future. Proposal To Remove the Eastern North Pacific Gray Whale Population from the Endangered Species List In light of the National Marine Fisheries Service's 1990 status review, the Northwest Indian Fisheries Commission petitioned the Service on 1 March 1991 to remove the eastern North Pacific population of gray whales from the List of Endanger«j and Threatened Wildlife. The petitioners argued that the population's recovery to 2 1 , 1 13 animals and its continuing increase merited removal from the list. The petitioners claimed that leaving gray whales on the list subjected users of living marine resources to unwarranted restrictions and penalties and jeopardized the credibili- ty of the Endangered Species Act. On 15 July 1991, the Service sent the Commis- sion a draft Federal Register notice proposing to remove the eastern North Pacific gray whale popula- 67 MARINE MAMMAL COMMISSION — Annual Report for 1991 tion from the List of Endangered and Threatened Wildlife, while retaining the western North Pacific population on the list as endangered. The draft notice cited information indicating that the eastern population is equal to or greater than its historical stock size in 1846, and the population has been increasing at a rate of 3.2 percent per year since the early 1960s. It also noted that the western North Pacific population is geographically isolated from the eastern population and shows no signs of recovery. On 21 August 1991, the Commission advised the National Marine Fisheries Service that it agreed that the eastern North Pacific gray whale population had recovered to near its estimated historic size. It noted, however, that the population occupies coastal waters of four nations — the Soviet Union, Canada, the United States, and Mexico — and that ongoing and foreseeable human development in all four countries must be considered to accurately assess the possible threats to the population and habitats critical to its survival. In this regard, the Commission pointed out that, if the eastern North Pacific gray whale popula- tion were removed from the endangered list, major Federal actions, such as oil and gas resource develop- ment and coastal development, that could adversely affect gray whales and their habitats would proceed without benefit of Endangered Species Act section 7 consultations, and that equivalent habitat protection could not be achieved under the Marine Mammal Protection Act. The Commission therefore recommended that the Service: (1) identify and assess present and foresee- able threats to the principal breeding lagoons, feeding grounds, and other areas of special biological impor- tance to the species; (2) explain why such threats are no longer considered justification for a threatened designation, as the Service concluded in 1984; (3) review all Biological Opinions issued pursuant to section 7 of the Endangered Species Act to determine how removal from the list or down-listing gray whales to threatened status might affect implementation of identified reasonable and prudent alternatives or other conservation measures described therein; and (4) describe the specific actions that the Service would take to ensure that human activities do not damage or degrade habitat essential to the population. On 22 November 1991, the National Marine Fisheries Service published a proposed rule in the Federal Register to remove the eastern North Pacific (California) population of gray whales from the List of Endangered and Threatened Wildlife. In its notice, the Service noted that the eastern North Pacific gray whale population has recovered to near or above its estimated pre-exploitation population size, or approxi- mately 88 percent of its carrying capacity, and is probably still increasing. In addition, the Service noted that a number of studies since 1984 suggest that, while cumulative impacts from oil and gas activities may affect the eastern North Pacific gray whale population, they are not likely to jeopardize the population's continued existence. It concluded that the population had recovered to near its estimated original population size and was neither in danger of extinction throughout all or a significant portion of its range, nor likely to become endangered again within the foreseeable future. The proposed rule further noted that section 4(g) of the Endangered Species Act requires that, whenev- er a species has recovered to a point where protective measures provided under the Act are no longer necessary, the Secretary must implement a system to monitor the status of that species for five years. The proposed rule stated that, as part of its gray whale monitoring program, the National Marine Fisheries Service would create a panel of gray whale experts to monitor activities potentially affecting gray whales, serve as a quick-response advisory team in the event of a catastrophic event affecting gray whales, recom- mend actions to mitigate any unforeseen catastrophic events, including the reimposition of emergency protective measures, and, within six months following the conclusion of the first five-year monitoring pro- gram, conduct a comprehensive status review to determine whether the monitoring program should be continued and/or the gray whale population should be relisted under the Endangered Species Act. On 25 November 1991, the National Marine Fisheries Service replied to the Commission's 21 August 1991 comments on the draft Federal Register notice. The Service reaffirmed its view that, while individual and cumulative impacts from human activi- ties throughout the range of the eastern North Pacific gray whale population may have the potential to ad- 68 Chapter n — Species of Special Concern versely affect this population, such impacts were not likely to jeopardize its continued existence. The Service, therefore, believed that the population should be removed from the List of Endangered and Threat- ened Species, not merely down-listed to threatened. At the end of 1991, the Marine Mammal Com- mission was reviewing and preparing comments on the proposed rule to be sent to the Service early in 1992. Based on its preliminary review, the Commis- sion anticipates reconmiending that the eastern North Pacific gray whale population be down-listed to threat- ened rather than being removed from the list unless the National Marine Fisheries Service can (1) provide assurances that habitat degradation and destruction do not present significant threats to the survival of the population, (2) develop and undertake a program to effectively assess and monitor essential habitat, as well as the population's status and trends, throughout its range, or (3) have the Marine Mammal Protection Act amended to provide a mechanism for protecting essential habitats. KiUer Whale (Orcinus orca) Killer whales are found in all the world's oceans and major seas from polar to equatorial latitudes. Although most common in colder waters, they occur in both coastal and pelagic areas and may be found in any area in all seasons. Two new killer whale species {0. nanus and O. glacialis) in Antarctic waters have been proposed based on size and color differences. However, the IWC has determined that these are probably different forms of a single, highly variable species, O. orca. Killer whales are highly social. Individual whales form long-term associations along maternal lines. The basic social unit is the "pod." Most pods contain 5 to 20 animals, although some may have as few as two or three whales and others more than 100 animals. In the United States, killer whales are most common in Puget Sound, Washington, and the coastal waters of Alaska. While the species is not considered endan- gered or threatened in any ocean or region, its highly organized pod structure could make local groups vulnerable to adverse impacts. In the past, commercial whalers took some killer whales; however, exploitation was typically opportu- nistic and never large-scale. The most recent com- mercial take of killer whales was by Soviet whalers in the Antarctic in 1979-1980. Since the early 1960s, killer whales also have been taken live for public display in oceanaria and zoos. Killer whales were taken for this purpose from coastal waters of British Columbia and Puget Sound from 1962 to 1976. A permit to take killer whales in Alaska waters for public display was issued in 1983. In response to a lawsuit, however, the permit was ruled invalid in 1985 because it had not met require- ments of the National Environmental Policy Act. As a result, no animals were taken. Since the mid-1970s, most animals taken for public display have been from waters off Iceland. As a top-level predator, killer whales feed on other marine mammals, including large whales, dolphins, and seals, as well as seabirds, turtles, and fish. Their prey includes species of fish taken com- mercially. In some areas, killer whales are attracted to commercial fishing operations where they damage catch and gear. As a result, some fishermen consider killer whales as competitors and nuisance animals. In some regions, they have been the target of culling programs to reduce interference with fishing opera- tions. In the United States, killer whales are known to interact with the blackcod, or sablefish, longline fishery in waters off Alaska. In the 1960s, Japanese longline fishermen operating off the Aleutian Islands began noticing killer whales removing or damaging hooked fish as lines were retrieved. Begiiming in 1985, longline fishermen in Prince William Sound reported similar interactions. Field surveys in Prince William Sound in 1986 suggested that fishermen lost more than 20 percent of their catch to killer whales. 69 MARINE MAMMAL COMMISSION — Annual Report for 1991 A variety of techniques have since been tried to eliminate such interactions. Fishermen have tried acoustic harassment (fi.g., "bang pipes" and seal bombs) and working in teams with vessels alternately retrieving lines. None of the approaches, however, has been effective. Fishermen also tried large explosive charges and shooting whales. Until the mid-1980s, such measures were permissible under the Marine Mammal Protec- tion Act's incidental take permits for commercial fishermen to allow them to protect gear, catch, or human safety. The results were apparently mixed, providing fishermen only temporary relief at best. In this regard, studies of killer whaJe pods in Prince William Sound between 1985 and 1986 documented at least eight gunshot wounds and a high annual mortali- ty (more than seven percent) in one pod known to interact with fishing operations. In response, in July 1986, the National Marine Fisheries Service amended incidental take permits to prohibit the use of explo- sives on or the shooting of any cetacean as a way to prevent interactions with fishing gear or catch. Interactions between whales and longline fishing in Prince William Sound and along the Aleutian Islands have continued, and recent reports indicate that whales sometimes take halibut and Pacific cod from longlines in Alaska waters. As noted in Chapter VII, killer whales also may have been affected by die Exxon Valdez oil spill. In one Prince William Sound pod, six animals, known to have been in the pod a few months before the spill, had disappeared when observers documented pod composition a few weeks after the spill. Another seven animals disappeared from the pod the following year. Also, as noted in Chapter VII, populations of some marine mammals that serve as prey for killer whales have declined greatly in parts of Alaska. It is uncer- tain what effect this may be having on killer whale predator-prey relationships or population dynamics. However, recent shifts in killer whale distribution and behavior in some regions, such as Bristol Bay, have been noted and may be due, at least partially, to these changes. In view of these issues and the need to consider what further actions, if any, should be taken to address research and management needs regarding killer whales in Alaska, the Commission contracted in 1991 for a study to develop a species account with research and management recommendations on killer whales. The report will be added to the series of Commission-sponsored species reports on Alaska marine mammals (see Appendix B, Lentfer 1988). The report on killer whales is expected to be complet- ed in the spring of 1992, at which time the Commis- sion, in consultation with its Committee of Scientific Advisors, will consider a range of recommendations that may be appropriate to make to the National Marine Fisheries Service or other Federal agencies. Gulf of California Harbor Porpoise {Phocoena sinus) The endangered Gulf of California harbor por- poise, or vaquita, is found only in the northern Gulf of California in northwest Mexico. It is one of the smallest, rarest, and least known of all cetaceans. The species was first described taxonomically in 1958. Prior to 1984, it was known from only 20 confirmed reports. Between 1986 and 1989, aerial and boat surveys by researchers from the University of Califor- nia at Santa Cruz sighted 110 animals (although a number of these may have been resightings). To date, no reliable population estimates exist. Given so few sightings, the species may number no more than a few hundred individuals. As noted in previous Annual Reports, the Com- mission has encouraged and supported vaquita re- search and conservation efforts. In 1976 and again in 1979, the Conraiission provided funding for surveys to determine the distribution of the species (see Appendix B, Wells et al. 1981). In the mid-1980s, the Commission provided support to locate the re- mains of dead animals along the shores of the north- em Gulf of California and to train Mexican students to identify, collect, and prepare museum specimens of the species. In 1987, the Commission supported a smdy of environmental contaminants present in blubber samples of vaquitas incidentally caught and killed in fishing gear. The results of this study 70 Chapter 11 — Species of Special Concern suggested that, at that time, pollutants were not a significant threat to the vaquita. The greatest known threat to the vaquita appears to be incidental catch in gillnets, especially large-mesh nets used in fisheries for the endangered totoaba (Totoaba macdonaldi), other finfish, sharks, and sea turtles. The totoaba fishery began in the niid-1920s and peaked m the 1940s. By the early 1970s, the totoaba catch had declined so dramatically that the Mexican Government closed the fishery in 1975 to allow the recovery of the stock. Nevertheless, illegal totoaba fishing continues, and vaquita mortality due to incidental take is still high. To assess the status of the totoaba stock, the Mexican Government began autho- rizing experimental gillnet fishing in 1985. Between 1985 and 1991, at least 121 vaquitas were reported killed in fishing nets, including at least 52 in the experimental totoaba fishery. Due to under-reporting by fishermen, however, the true number is probably much greater. Several protective measures have been taken for both the vaquita and the totoaba. Both are listed under Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) — the totoaba in 1977 and the vaquita in 1979. In 1978, the Government of Mexico designated the vaquita as rare and in danger of extinction. That same year, the International Union for the Conserva- tion of Nature and Natural Resources (now called the World Conservation Union) listed the species as vulnerable in its Red Data Book. It is presently listed as endangered. In 1979, the totoaba was listed as endangered under the U.S. Endangered Species Act; following a recommendation by the Marine Mammal Commission, the vaquita received the same designa- tion in 1985. In 1988, a study of fishermen's knowledge of and interactions with the vaquita in the northern Gulf of California was conducted by the Center for the Study of Deserts and Oceans in Tucson, Arizona, in coop- eration with the Universidad Nacional Autonoma de Mexico. The study concluded, among other things, that all reported takes occurred in waters less than 160 feet deep and estimated the annual fishery-related mortality of vaquita at about 32 animals. The study report recommended: (1) closing certain areas to gillnet fishing; (2) explicitly prohibiting all sale of totoaba; and (3) developing (a) economic alternatives for gillnet fishermen, (b) public education programs focusing on conservation of marine resources in the northern Gulf of California, and (c) a management plan for the vaquita. Also in 1988, the Cetacean Specialist Group of the World Conservation Union's Species Survival Com- mission published an action plan for conserving the biological diversity of cetaceans throughout the world. The plan proposed, among other things, a three-year project for research and conservation of the vaquita. The Cetacean Specialist Group considered the vaquita project among those deserving the very highest priority. The project would include: (1) a populafion monitoring program, including vessel-based censuses; (2) a program to monitor incidental take by fisheries; (3) examination of vaquita carcasses; (4) a public awareness program; and (5) a recovery plan for the species. In 1990, the Cetacean Specialist Group, with partial support from the Marine Mammal Commis- sion, established an office at the National Marine Fisheries Service's Southwest Fisheries Science Center in La Jolla, California, to help implement action plans for the vaquita and other species. The office moved in 1991 to Texas A&M University in Galveston. In October 1990, the Workshop on the Mortality of Cetaceans in Passive Fishing Nets and Traps was convened at the request of the International Whaling Commission. The Marine Mammal Commission gave partial support to the workshop, which reviewed the worldwide incidental take of cetaceans in fishing gear. Workshop participants noted that the vaquita's future is seriously threatened by illegal totoaba fishing and other gillnet fisheries and that inadequate enforcement and a lack of economic alternatives for gillnet fisher- men were exacerbating the problems. On 10-20 May 1991, the IWC's Scientific Com- mittee met in Reykjavik, Iceland. At the meeting, the Scientific Conmiittee endorsed several recommenda- tions concerning the vaquita forwarded by its subcom- mittee on small cetaceans. Affording the vaquita the highest priority of any endangered cetacean species, the full Scientific Committee recommended that action be taken to fully enforce the closure of the totoaba fishery and immediately halt illegal shipments of 71 MARINE MAMMAL COMMISSION — Annual Report for 1991 totoaba into the United States. The Committee also recommended that a management plan for the vaquita and its habitat be developed to include: (1) an evalua- tion of incidental take of vaquita in fisheries; (2) development of alternative fishing methods and other economically viable activities to reduce further vaquita mortality in the illegal totoaba fishery; (3) develop- ment of educational programs to increase awareness of the vaquita among fishermen and the general public; and (4) monitoring the status and improving knowl- edge of the population biology of the species. Acting on the advice of its Scientific Committee, the International Whaling Commission adopted a resolution asking the Committee to collect information on small cetacean species, including the vaquita, that are subject to significant direct or incidental take in fisheries. The results of this work were forwarded to the United Nations for use in preparing for its Confer- ence on Environment and Development scheduled to meet in Rio de Janeiro, Brazil, on 1-12 June 1992 (see Chapter IV). On 11-14 September 1991, researchers at the Southwest Fisheries Science Center undertook a cooperative research program with the Instituto Nacional de Pesca, La Paz, Mexico, to conduct an experimental aerial survey of vaquita habitat. The survey covered 709 miles over three and one-half days during which one certain sighting of two vaquitas was made. Because of the low number of sightings, the survey methods, the turbidity of the water at the time of the survey, and the extent of vaquita habitat not covered by the survey, the survey did not result in a reliable estimate of the vaquita population. The researchers recommended that a much larger scale survey be conducted, either by air or, preferably, by ship, in order to develop a reliable population estimate for the vaquita. On 1 November 1991, the Marine Manmial Com- mission wrote to the National Marine Fisheries Service and the Fish and Wildlife Service regarding the status and conservation needs of the vaquita and enforcement of the prohibition on the import of totoaba into the United States. The Commission noted that, since totoaba was listed both as endangered under the Endangered Species Act and on Appendix I of the Convention on International Trade in Endan- gered Species of Wild Flora and Fauna, its importa- tion into the United States was illegal. The Commis- sion also noted that totoaba imports apparently still occur, often disguised as sea bass, and are most often brought into the United States as fish fillets, a form in which it is difficult to identify the species. The Conmiission therefore recommended that the South- west Fisheries Science Center and the Fish and Wildlife Service's Forensics Laboratory coordinate efforts to develop a test to identify totoaba imported into the United States. The Conmiission also recom- mended that, once this has been achieved, the Servic- es: (1) establish a cooperative program with Mexico to coordinate enforcement activities for the longstand- ing Mexican prohibition on totoaba fishing and to stop entry of totoaba into the United States, and (2) estab- lish programs to inform the public about the endan- gered status of the vaquita and the totoaba, the link between the two species, applicable prohibitions of the Endangered Species Act, and the consequences of violating the Act's provisions. On 4 December 1991, the National Marine Fisher- ies Service published a notice in the Federal Register that it was issuing a permit to the Southwest Fisheries Science Center for die collection and importation of one whole ft-ozen totoaba specimen. The notice stated that the specimen would be analyzed by the National Seafood Inspection Laboratory to determine distin- guishing characteristics of totoaba muscle tissue that would enable the Service to identify totoaba fillets and take measures to stop illegal importation. A review of all available information on the population biology and incidental mortality of the vaquita was presented at the Ninth Biennial Confer- ence on the Biology of Marine Mammals in Chicago, Illinois, on 5-9 December 1991. The review, con- ducted at the Instituto Tecnoldgico y de Estudios Superiores de Monterrey, Mexico, concluded that, given the vaquita's low population size and high rate of incidental mortality and the difficulty in enforcing conservation measures for the species, the vaquita is in imminent danger of extinction. At the end of 1991, the Commission was awaiting responses to its 1 November 1991 letters to the National Marine Fisheries Service and the Fish and 72 Chapter EI — Species of Special Concern Wildlife Service and was looking forward to progress in protecting and encouraging recovery of the species. Elarbor Porpoise (Phocoena phocoena) The harbor porpoise, one of the smallest cetaceans, occurs in coastal areas throughout most of the North- em Hemisphere, including Europe, West Africa, the Far East, and both coasts of North America. The species' preference for nearshore waters makes it particularly vulnerable to impacts from human activi- ties, such as coastal fisheries and environmental pollution. Substantial numbers of harbor porpoises are caught and killed incidentally in domestic fisheries. These include salmon gillnet fisheries off Alaska and Wash- ington; groundfish fisheries in the Bering Sea and Gulf of Alaska; shark and swordfish driftnet fisheries off Washington, Oregon, and California; and set and driftnet fisheries for halibut and other finfish off central California. Harbor porpoises are also taken incidentally in Canadian fisheries operating in waters between Alaska and Washington, and these animals may be from populations being affected by fisheries in United States waters and vice versa. On the east coast of North America, harbor porpoises are taken in the groundfish gillnet fishery; in purse seine and weir fisheries for Atlantic herring and mackerel; in shad and sturgeon gillnet fisheries; and in trap and pot fisheries in both U.S. and Canadian waters. Fisheries impacts on harbor porpoises occur throughout their range. A 1990 report of the sub- conmiittee on small cetaceans of the International Whaling Commission's Scientific Committee noted that incidental take of harbor porpoises may be a problem wherever gillnet fisheries operate in close proximity to harbor porpoises. It further noted that the level of incidental take may be especially high in the North and Baltic Seas. Until 1983, a large-scale Turkish commercial fishery for harbor porpoises existed in the Black Sea. Although no exact catch statistics exist, the Interna- tional Whaling Commission estimates that between 1976 and 1983, when the fishery was suspended, the average annual take was between 34,000 and 44,000 animals. Fishermen claim that the Black Sea anchovy fishery is declining due to competition from cetaceans, and the Turkish Government is under great pressure from the fishermen to reopen the cetacean fishery. There are no reliable estimates of the number of harbor porpoises inhabiting the Black Sea. As noted in the previous Annual Report, in July 1990 the Marine Mammal Commission contracted for a review of abundance estimates of small cetaceans in the Black Sea (see Appendix B, Buckland 1990). The Commission supported the review in response to a 1990 presentation by researchers from the Karadeniz Teknik University in Trapzon, Turkey, to the Inter- national Whaling Commission in support of harvesting small cetaceans in the Black Sea. The review, pub- lished by the Commission in October 1990, examined data on die abundance of three species of small cetaceans in the Black Sea: harbor porpoise, bottle- nose dolphin (Tursiops truncatus), and common dolphin (Delphinus delphis). The report concluded that the most recent cetacean abundance estimates submitted by the Turkish researchers are unreliable for a number of reasons including, but not limited to, extrapolating the survey data to an estimate of total abundance based on invalid assumptions about the species' distributions. The report recommended, among other things, improving survey and analysis methodologies and conducting regular surveys of the entire sea. It further reconunended that, until such improvements are made, current abundance estimates should not be used as a basis for a harvest of Black Sea cetaceans. The only currently active direct fishery for harbor porpoises is a small fishery in Greenland, where the porpoises are taken for local human consumption. Annual catches since 1982 have been estimated at between 700 and 1,000 animals, from a total estimat- ed population of 10,000-15,000 animals. In North America, the impact of fisheries on harbor porpoises appears to be particularly severe in waters off the central coast of California and in the Gulf of Maine and the Bay of Fundy. Between 1983 and 1986, for example, an estimated 755 harbor porpoises were taken incidentally in the California set 73 MARINE MAMMAL COMMISSION — Annual Report for 1991 net fisheries for halibut and other finfish. In the northwest Atlantic, an estimated 300 to 1,500 harbor porpoises are killed each year in the groundfish gillnet fishery. Until 1991, the total estimated harbor porpoise population in the northwest Atlantic was approximately 23,000 animals. A recent survey by the National Marine Fisheries Service's Northeast Fisheries Science Center, discussed below, has led to a revised estimate. The number, size, discreteness, and productivity of harbor porpoise populations in U.S. waters has not been documented, and it is difficult to judge whether the level of take has caused or is causing one or more populations to be reduced below the maximum net productivity level. As noted in past Annual Reports, in 1986 and 1987 the Marine Mammal Commission provided funds to the University of California at Santa Cruz for a pilot project to radio-tag and track harbor porpoises. The purpose of the study was to obtain information on distribution and movement to help assess the relative discreteness of harbor porpoise populations off the west coast of the United States. The investigators were unable to catch animals, and the research objectives were not met (see Appendix B, SilhQTetal. 1990). On 8 August 1990, a group of scientists and conservationists in New England wrote to the Marine Mammal Commission to express concern about the status of harbor porpoises in the Gulf of Maine. In the letter, the group noted that a 1981 survey carried out by the New England Aquarium with support from the National Marine Fisheries Service indicated that between 8,000 and 15,300 harbor porpoises were present in U.S. coastal waters in the Gulf of Maine. Based on mortality estimates from various sources, the group estimated that 1,000 harbor porpoises are caught and killed each year in the Gulf of Maine and Bay of Fundy fisheries. The group also noted that studies comparing animals caught in the late 1970s with those taken in 1987 and 1988 indicate a change in population age structure that is characteristic of a declining population. Based on this information, the group concluded that the harbor porpoise population in the Gulf of Maine is in trouble. It sought the Commission's support for a number of recommended actions aimed at conserving the population. Among other things, the group recommended: (1) listing the harbor porpoise as threatened or endangered under the Endangered Species Act (the species is already listed as threatened by the Canadian Government's Com- mittee on the Status of Endangered Wildlife); (2) repeating the 1982 Gulf of Maine harbor porpoise survey to determine current abundance; (3) analyzing harbor porpoise sighting data collected over the past decade to detect possible trends in relative abundance; (4) closing certain areas to gillnet fishing on a season- | al basis, if necessary, to protect and rebuild the harbor porpoise population; and (5) investigating ways to reduce the incidental take of harbor porpoises in fishing nets. The Commission, in consultation with its Com- mittee of Scientific Advisors, reviewed the letter and, on 10 October 1990, advised the National Marine Fisheries Service that it agreed that there is reason to believe that incidental taking may be having a signifi- cant adverse effect on harbor porpoise populations in the northwest Atlantic. The Commission further noted that incidental take in commercial fisheries also may be having a significant adverse effect on harbor porpoises off central California and possibly off Washington and Alaska. In its letter, the Commission requested, among other things, that the Service advise it of the results of the fishery observer programs and population assess- ment programs conducted by the Service's Northeast and Southwest Fisheries Science Centers as they pertain to harbor porpoises, and what the Service was doing or planned to do to assess and monitor the status of affected harbor porpoise populations in the northwest Atlantic and along the west coast of the United States. The Commission also noted that effective conservation of harbor porpoise populations would require cooperative efforts with Canada. Therefore, the Commission recommended that, if the Service had not already done so, it consult with the responsible Canadian authorities to develop a coordi- nated harbor porpoise research and management program. The National Marine Fisheries Service responded to the Commission's letter on 6 February 1991 . In its letter, the Service agreed that more detailed informa- 74 Chapter 11 — Species of Special Concern tion on fishing effort and incidental take of harbor porpoises in the northwest Atlantic and better data analysis were needed to determine the appropriate action or actions to list the harbor porpoise either as depleted under the Marine Mammal Protection Act or as threatened or endangered under the Endangered Species Act. The Service advised the Commission that: (1) it intended to conduct a status review of the harbor porpoise, including local populations; (2) its Northeast Fisheries Science Center was working with Canadian scientists to obtain information on interac- tions between fisheries and harbor porpoises in the Bay of Fundy; (3) the Atlantic Ocean, Caribbean, and Gulf of Mexico gillnet fisheries for swordfish, tuna, and shark were to be designated as Category I fisher- ies, which would allow for placement of observers on fishing vessels to gain further information on interac- tions with harbor porpoises; (4) information from the Service's west coast regions indicates that the situation in the eastern Pacific is not as serious as in the northwest Atlantic; and (5) if a preliminary analysis of the information received indicates that action under section 114(g)(3) of the Marine Mammal Protection Act is warranted, the Service will request the appro- priate Fishery Management Council(s) to take steps to mitigate any adverse impacts. On 12 February 1991, the Service published a notice in the Federal Register announcing its review of the status of harbor porpoises to determine whether any distinct population should be listed under either the Marine Mammal Protection Act or the Endangered Species Act, and requesting information and data on the species' status. On 24 May 1991, the Service published a follow-up notice stating that it had deter- mined that there is no information available to indicate that harbor porpoises off the west coast of the United States are below their optimum sustainable population level, and it was therefore terminating its review of the status of harbor porpoises off the west coast. The notice stated that the Service's review of harbor porpoise status in the northwest Atlantic would continue. On 26-28 March 1991, the Service's Northeast Fisheries Science Center held a program review of its Marine Mammals Investigation program. The Marine Mammal Commission participated in the review. Regarding harbor porpoises in the northwest Atlantic Ocean, the reviewers recommended, among other things, that: (1) the highest priority be given to obtaining reliable estimates of the harbor porpoise population(s) affected by the groundfish gillnet fishery in the Gulf of Maine and Bay of Fundy, including the estimated number of porpoises taken annually; (2) the Service determine the most cost-effective survey design for obtaining the necessary information; and (3) if necessary, funds from lower priority programs be given over to the harbor porpoise program. The reviewers also noted that, in the near future, the Service should give priority to studies of harbor porpoise stock discreteness, abundance, and diet in the northwest Atlantic Ocean. As a related matter, in June 1991, the National Marine Fisheries Service released a draft legislative environmental impact statement on its Proposed Regime to Govern Interactions Between Marine Mammals and Commercial Fishing Operations. The draft statement discusses the incidental take of harbor porpoises in the North Pacific and North Atlantic Oceans. It notes that the population of harbor por- poises off the west coast of North America may be at its optimum sustainable population level, but that the susceptibility of the species to incidental take in coastal gillnet fisheries is nonetheless a cause for concern. The Service therefore recommended that management actions be taken to protect local harbor porpoise populations. The Service noted that no optimum sustainable population level has been estimated for the harbor porpoise in the western North Atlantic. Previous estimates of harbor porpoise abundance and estimates of incidental take in the Gulf of Maine, however, suggest that as much as 7.5 percent of the harbor porpoise population is taken incidental to commercial fisheries every year. On 23 September 1991, the Marine Mammal Commission provided comments to the National Marine Fisheries Service on the draft legislative environmental impact statement. The Commission noted that: (1) the Service's proposed regime to manage marine mammal-fishery interactions was intended to ensure that no marine mammal population would be adversely affected by levels of take autho- rized under the regime, and (2) this premise appears 75 MARINE MAMMAL COMMISSION — Annual Report for 1991 to be violated with respect to harbor porpoises be- cause the best available data indicate that there is a relatively discrete population of harbor porpoises in central California that may have been depleted as a result of incidental take in set net fisheries. The Commission therefore recommended that the Service consider the possibility that lower localized harbor porpoise densities are the result of incidental taking (for further discussion of marine mammal-fisheries interactions, see Chapter III of this Report). Since 1987, the Northeast Fisheries Science Center has been working to develop programs to determine harbor porpoise abundance and incidental take in commercial fisheries in the Gulf of Maine and Bay of Fundy. A program report, published by the Center in December 1991, indicated significantly greater num- bers of harbor porpoises and greater relative levels of incidental take than previously estimated. Two at-sea abundance surveys were conducted in the Gulf of Maine and Bay of Fundy in 1991: a primary survey between 22 July-30 August 1991 and a supplementary survey of inshore bays on the coast of Maine from 3-17 August 1991. The survey used a two-team approach to allow correction for animals not seen on the track line. There were uncertainties in determining the exact number of schools seen by both teams simultaneously and, hence, in determining an exact correction factor. Based on a lower and a higher estimate of duplicate sightings, two separate population estimates were derived: 66,000 and 45,000 animals, respectively. From June 1989 through May 1991, under contract to die Northeast Fisheries Science Center, the Mano- met Bird Observatory in Manomet, Massachusetts, placed observers on commercial groundfish gillnet fishing vessels in the Gulf of Maine to record inciden- tal take of marine mammals, seabirds, sea turtles, and non-target fish species. With observers on just over one percent of commercial fishing trips during the period, 34 harbor porpoises were observed taken incidental to fishing activities. Extrapolation of tiiese data result in preliminary estimates of approximately 1,250 animals per year being caught and killed. This number equals about 2.8 percent per year of the Northeast Fisheries Science Center's lower population abundance estimate and about 1 .9 percent per year of the higher estimate. On 13 December 1991, the National Marine Fisheries Service published a notice in the Federal Register announcing that on 18 September 1991 it had received a petition from the Sierra Club Legal De- fense Fund on behalf of the International Wildlife Coalition and 12 co-petitioners to list the Gulf of Maine/Bay of Fundy harbor porpoise population as threatened under the Endangered Species Act. At the end of 1991, the Marine Mammal Com- mission had not been informed of any further actions regarding the Service's status review of harbor porpoises in the northwest Atlantic. The Commission was also anticipating action by the Service on the petition for protective listing. Bottlenose Dolphin {Tursiops truncatus) The bottlenose dolphin is found throughout temper- ate and tropical waters of the world, commonly in nearshore waters. It is the most common cetacean species in the coastal waters of the southeastern United States, and the cetacean species most frequent- ly maintained in captivity for public display and scientific research. Capture of bottlenose dolphins for these purposes began in the 1900s in the United States. Considerable, though unknown, numbers of animals were taken prior to the enactment of the Marine Mammal Protection Act in 1972. Since that time, when a permit procedure for taking of marine mammals was implemented under the Act, more than 500 bottlenose dolphins have been collected. Although the status of local or regional populations is often unclear, it is unlikely that captures and removals alone have caused significant declines in the affected dolphin populations. Unusually high numbers of bottlenose dolphins died and washed up on beaches from New Jersey to Florida along the U.S. Atlantic coast in 1987-1988. This happened again in 1990 along die coast of the Gulf of Mexico. (See Chapter V for further discussion of marine mammal strandings and mortality). In addition, unknown but perhaps ( 76 Chapter 11 — Species of Special Concern significant numbers of bottlenose dolphins are caught and killed in fisheries for menhaden, shrimp, and other species in the coastal waters of the southeastern United States. In some areas, bottlenose dolphins also may be affected by environmental pollution, coastal and offshore oil and gas development, dumping and dredging, and other human activities. The indepen- dent and collective effects of the mortality have not been determined. It is therefore possible that one or more local bottlenose dolphin populations have been depleted or that continued incidental taking or taking for purposes of public display or scientific research may have caused one or more local populations to be reduced or maintained below the maximum net productivity level. Unusually High Mortality and Proposed Depleted Designation According to population monitoring surveys conducted by the National Marine Fisheries Service, the 1987-1988 die-off of bottlenose dolphins along the east coast of the United States may have reduced the population by as much as 60 percent. As noted in previous Annual Reports, on 11 November 1988, the Center for Marine Conservation petitioned the Service to list the coastal mid-Atlantic migratory stock of bottlenose dolphins as depleted under the Marine Mammal Protection Act. The Service published an advance notice of proposed rulemaking and a request for comments on the proposal on 1 1 October 1989. On 21 December 1989, the Commission com- mented to the Service on the notice. The Commission noted that, in its opinion, the Service would be ill- advised to list the coastal mid-Atlantic bottlenose dolphin population as depleted without, at the same time, describing the steps that would be taken to verify the assumptions upon which the designation was based and to determine when the population no longer was depleted. The Commission recommended also that, before promulgating such a rule, the Service develop and implement a conservation plan for bottlenose dolphins along the U.S. mid-Atlantic coast that, in part, would identify the monitoring programs needed to meet this objective. On 13 March 1991, the Commission wrote to the National Marine Fisheries Service about a nimiber of issues, including the Service's proposed rulemaking to list the nearshore mid-Atlantic stock of bottlenose dolphins as depleted under the Marine Mammal Protection Act. The Commission noted that the Service had not published a proposed rule and asked about its plans to do so. The Commission also requested that the Service advise it as to what actions it was taking or planning to take to develop and implement the conservation plan for bottlenose dol- phins that the Commission had recommended in its 21 December 1989 letter. In its 25 April 1991 response, the Service noted that: (1) it was completing its review of the status of the northwest Atlantic nearshore stock of bottlenose dolphins; (2) a status determination would be made soon; (3) if a determination were made to designate the stock as depleted, the Service would move quickly to develop a conservation plan; and (4) if a plan should be necessary, the Service would consult with the Commission before convening a team to draft it. On 15 August 1991, the Service published a Federal Register notice proposing to designate the coastal migratory stock of bottlenose dolphins along the U.S. mid-Atlantic coast as depleted under the Marine Mammal Protection Act. On 4 November 1991, the Commission commented on the Federal Register notice, noting that the main concerns ex- pressed in its 21 December 1989 letter regarding the proposed listing had not been addressed in the notice. The Commission therefore recommended that the final rule address, among other things, how the Service will determine when the affected population no longer is depleted. As of the end of 1991, the final rule had not yet been promulgated by the Service. Live Capture and Removal from the Wild Bottlenose dolphins are most commonly taken for research or public display from populations in the Gulf of Mexico and the Indian River system along the central east coast of Florida. Because of uncertainties stemming from the previously noted mass mortalities, the Commission advised the National Marine Fisheries 77 MARINE MAMMAL COMMISSION — Annual Report for 1991 Service on 12 April 1989 that it was suspending consideration of all applications to take bottlenose dolphins from the Gulf of Mexico and the east coast of Florida pending an assessment of the status of the affected populations and the effectiveness of research and management programs to ensure that the affected populations were not disadvantaged by such taking. Subsequently, the Service provided the Commis- sion with additional information on its research and management programs, including proposed revisions of quotas for Atlantic bottlenose dolphins in south- eastern U.S. waters. In a 23 May 1989 letter to the Service on the additional information, the Conunission recommended that the Service review available data on bottlenose dolphin surveys, incidental take in fisheries, and chase-and-capture records by age and sex. The Commission also recommended that the Service identify research and monitoring programs required to better define discrete stocks of bottlenose dolphins and the number of dolphins by age and sex being taken incidentally by fisheries. In its 26 June 1989 reply, the Service noted that it would be desirable to conduct an independent review of survey data and, by letter of 24 November 1989, it addressed the remaining issues raised by the Commis- sion. The Service noted, among other things, that it would develop new quotas to regulate the taking of bottlenose dolphins. In its 28 December 1989 re- sponse to the Service, the Commission remarked on a variety of matters, including the apparent inadequa- cy of planned monitoring efforts to verify that autho- rized removals, by themselves and in conjunction with other removals, such as incidental take in commercial fisheries, would not cause affected dolphin populations to be reduced below their maximum net productivity levels. The Commission therefore recommended that (1) the Service assess potential effects of cumulative human activities on bottlenose dolphin populations, including types and levels of commercial fishing and levels of incidental take, and (2) the Service provide information on steps being taken or planned to obtain more reliable information on incidental take. On 16 March 1990, the Commission wrote to the National Marine Fisheries Service regarding the unusually high mortality of bottlenose dolphins in the Gulf of Mexico in January through March of that year. The Commission noted that the cause or causes of the mortality had not yet been determined. It recommended that, given the possibility that the high mortality could have been the result of a contagious disease, live captures and removals of bottlenose dolphins from the Gulf of Mexico be suspended. On 2 April 1990, the Service advised the Commission that all permit holders had voluntarily agreed to suspend capture of bottlenose dolphins in the Gulf for 90 days to allow time to evaluate the die-off. On 31 May 1990, the Service published in the Federal Register a notice of proposed rulemaking to establish regulations and revise quotas for removal of bottlenose dolphins for purposes of public display and scientific research. The Service noted that it was preparing an environmental impact statement on the proposed regulations that would provide a compre- hensive review of the population status of bottlenose dolphins off the southeastern coast of the United States. In the same issue of the Federal Register, the Service announced that, due to the high dolphin mortality in the Gulf of Mexico, it had adopted conservative interim quotas for the capture of bottle- nose dolphins. The Service announced that it would reduce the quota fi-om 91 animals in 1989 to 35 animals for 1990 (of which no more than 17 could be female). Because information was not sufficient to allow definitive conclusions to be reached about the status of bottlenose dolphins in the Gulf of Mexico, the Service wrote to permit holders on 20 August 1990 asking them not to collect bottlenose dolphins until 1991 or 1992 except in situations where collection is absolute- ly necessary to maintain a public display. Permit holders agreed and no animals were taken under the interim quotas for 1990 and 1991. Wild Dolphin Feeding Programs Beginning in the late 1980s, public feeding of marine mammals in the wild, particularly bottlenose dolphins, and the potential adverse effects that this activity may have on the animals was addressed by the National Marine Fisheries Service. Under regulations issued by the Service in 1991, the feeding of marine manmials was prohibited. For further discussion of this issue, see Chapter X of this Report. 78 Chapter m MARINE MAMMAL-FISHERIES INTERACTIONS Marine mammals may interact with fisheries in a number of ways. They may be disturbed, harassed, injured, or killed either accidentally or deliberately during fishing operations; they may take or damage bait and fish caught on lines, in traps, and in nets; they may damage or destroy fishing gear or injure fishermen while trying to remove bait or caught fish or when they accidentally become entangled in fishing gear; and they may compete with conmiercial and recreational fishermen for the same fish and shellfish resources. The Marine Mammal Protection Act directs the Secretaries of Commerce and the Interior, in consulta- tion with the Marine Mammal Commission, to devel- op regulations governing the incidental taking of marine mammals by persons subject to the jurisdiction of the United States. In 1988, the Marine Mammal Protection Act was amended to establish a five-year interim exemption to govern the taking of marine mammals incidental to commercial fisheries other than the eastern tropical Pacific tuna fishery. Incidental taking of marine mammals in the tuna fishery continue to be regulated under a general permit issued in 1980 to the American Tunaboat Association and legislative- ly extended in 1984. The interim exemption was designed to allow commercial fisheries to operate while information is collected on the extent and effects of marine mammal- fisheries interactions. The 1988 Marine Mammal Protection Act amendments also direct the Secretary of Commerce, based upon recommended guidelines provided by the Marine Mammal Commission, to suggest to Congress a new regime to govern incidental taking of marine mammals in fisheries other than the tuna purse seine fishery after the interim exemption expires in October 1993. Actions with respect to the interim exemption and efforts to develop a system to govern incidental taking in fisheries after October 1993 are discussed below. Also discussed are recent actions regarding the take of dolphins and porpoises incidental to the eastern tropical Pacific tuna fishery. Fishery interactions affecting species of special concern are discussed in Chapter H. Activities concerning high seas driftnet fisheries, which pose serious threats to marine mam- mals and many other marine species, have been subject to international negotiations and are discussed in Chapter IV. Interim Exemption for Commercial Fisheries Subject to certain exceptions, the Marine Mammal Protection Act establishes a moratorium on the takmg and importing of marine mammals. Recognizing that a total prohibition of taking could seriously affect certain fisheries, the Act authorizes the Secretaries of Commerce and the Interior, through formal rule- making, to issue general permits allowing for the taking of marine mammals incidental to commercial fishing operations when such taking would not disad- vantage the affected marine manmial species or stocks. The Act was amended in 1981 to allow use of streamlined procedures to authorize the accidental, but not intentional, taking of small numbers of non-de- pleted marine mammal species and stocks during commercial fishing operations conducted by citizens of the United States if, after notice and opportunity for public comment, the Secretary finds that the total of such taking would have a negligible impact on the affected species or stocks. In May 1987, the Department of Conmierce issued a general permit to the Federation of Japan Salmon 79 MARINE MAMMAL COMMISSION — Annual Report for 1991 Fisheries Cooperative Association authorizing the take of Dall's porpoises {Phocoenoides dalli) in the Japa- nese North Pacific salmon driftnet fishery. Issuance of the permit was challenged in a lawsuit filed by the Kokechik Fishermen's Association, representing Alaska subsistence fishermen, and several environ- mental groups. As a result of that litigation, Kokechik Fishermen's Association v. Secretary of Commerce, the permit was invalidated. The Court ruled that issuance of the single-species permit violated the Marine Mammal Protection Act because other species {e.g.. North Pacific fur seals) not covered by the permit would inevitably be caught if the Japanese were allowed to fish as authorized by the permit. The Court's decision overturned a longstanding National Marine Fisheries Service interpretation of the Marine Mammal Protection Act permit provisions and cast serious doubt on the Service's ability to issue incidental -take permits for other fisheries, including several domestic fisheries whose permits were to expire at the end of 1988. For some fisheries, there was insufficient information to determine which marine mammal species were likely to be incidentally taken. In other cases, it appeared likely that there were insufficient data to make the required showing that the affected marine mammal species and popula- tion stocks were within their optimum sustainable population range and would not be disadvantaged {i.e., be reduced below their maximum net productivi- ty level) as a result of the incidental taking. In addition, small numbers of depleted species, for which incidental-take permits could not be issued, were known to be taken incidental to some fisheries. 1988 Amendments to the Marine Mammal Protection Act In response to uncertainties raised by the Kokechik decision, representatives of the fishing industry and environmental community jointly proposed that Congress enact a three-year exemption to the provi- sions of the Marine Mammal Protection Act to allow the take of marine mammals incidental to certain commercial fisheries. Based largely on that proposal, the Marine Mammal Protection Act was amended in 1988 to provide a limited five-year exemption from the Act's taking prohibition for most commercial fisheries. During the exemption period, which runs until 1 October 1993, the general permit and small- take provisions of the Act do not govern the incidental taking of marine mammals in the course of commer- cial fishing operations by domestic fishermen or by foreign fishermen fishing pursuant to valid permits issued under section 204 of the Magnuson Fishery Conservation and Management Act. Rather, the incidental take is authorized and regulated in accor- dance with the exemption provisions of new section 1 14. Foreign fisheries not regulated under the Mag- nuson Act, such as the Japanese high seas salmon fishery at issue in the Kokechik case, were not includ- ed in the exemption. An exception was also made for the yellowfin tuna purse seine fishery, which contin- ues to operate under its present general permit. The goal of the exemption program is to enable commer- cial fisheries to continue to operate while information essential for long-term management of marine mam- mal-fishery interactions is developed. Under the exemption provisions, owners of vessels operating in fisheries identified by the National Marine Fisheries Service as frequently or occasionally taking marine mammals must register with the Service and obtain an exemption certificate in order to engage lawfully in those fisheries. Vessel owners, masters, and crew members are not subject to penalties under the Marine Mammal Protection Act for the incidental take of marine mammals, except for the take of California sea otters or the intentional lethal take of Steller sea lions, cetaceans, or marine mammals from depleted populations, if the owners maintain a current exemption. Unauthorized taking of endangered or threatened marine mammals continues to be a viola- tion of the Endangered Species Act. In addition, if the incidental taking is having an immediate and significant adverse impact on a marine mammal stock or if more than 1,350 Steller sea lions or 50 North Pacific fur seals will be killed during a calendar year, the Service, in consultation with the appropriate regional fishery management councils and state agencies, must prescribe emergency regulations to prevent, to the extent practicable, any further taking. In order for an exemption to remain valid, the vessel owner must submit a report detailing any instances of incidental taking and providing other information prescribed by the National Marine Fisher- 80 Chapter HI — Marine Mammal-Fisheries Interactions ies Service. In addition, owners of vessels engaged in fisheries that frequently take marine mammals must, if requested, accept the placement of natural resources observers on board their vessels or face revocation of their exemptions. Fishermen engaged in fisheries determined to have only a remote possibility of taking marine mammals need not register with the Service or obtain an exemp- tion certificate. They must, however, report all marine mammal mortalities incidental to their opera- tions to avoid being liable for penalties. The 1988 amendments required the National Marine Fisheries Service to publish, by 22 January 1989, a proposed list of all U.S. fisheries, classifying them as Category I (those with frequent incidental takes). Category II (those with occasional incidental takes), or Category EI (those with either a remote possibility of or no known incidental takes). After opportunity for public comment, the Service was to publish a final list by 23 March 1989, along with information advising vessel owners how to obtain exemptions and otherwise comply with the new provi- sions. Other Service responsibilities included estab- lishing an observer program under which 20 to 35 percent of the operations by Category I vessels would be monitored; creating an alternative observation program if less than 20 percent of the operations in a Category I fishery would be observed; implementing an information management system capable of pro- cessing and analyzing observer data and reports required from vessel owners engaged in Category I and Category n fisheries; and consulting with the Fish and Wildlife Service before taking actions or making determinations involving marine mammal species under jurisdiction of the Department of the Interior. As noted above, the interim exemption was intend- ed to govern marine mammal-fishery interactions for a five-year period. It is expected that, before the interim exemption expires. Congress will re-examine the issue in light of the information gathered under the exemption program, and enact a permanent system for regulating incidental taking. Efforts to develop a new regime to govern the take of marine mammals inci- dental to commercial fishing operations after 1 Octo- ber 1993 are discussed in the following section of this Chapter. Implementation of the Interim Exemption To implement the interim exemption for commer- cial fisheries, the National Marine Fisheries Service issued a series of regulations during 1989. Develop- ment of those regulations and other actions taken by the National Marine Fisheries Service and others during 1989 and 1990 to implement the interim exemption for commercial fisheries are discussed in the Annual Reports for 1989 and 1990. One of the continuing responsibilities of the Service is to update, at least annually, the list of fisheries. The initial list of fisheries was published by the Service on 20 April 1989, placing each fishery in one of three categories depending on the frequency with which marine mammals are taken. Based on observer data, fishermen's reports, and other available information, the Service, on 17 July 1990, proposed certain revisions to the list. The Service proposed to reclassify four fisheries (the Florida east coast shark gillnet fishery, the southern New England/mid-Adantic inshore squid fishery, the Gulf of Alaska/Bering Sea longline/setline sablefish fishery, and the Oregon sea urchin fishery) from Category IH to Category H. The Service also proposed to add the following four fisheries to the list: the Atlantic Ocean swordfish, tuna, and shark gillnet fishery to Category I; the Caribbean and Gulf of Mexico swordfish, tuna, and shark gillnet fishery to Category II; the Gulf of Maine squid trawl fishery to Category HI; and the groundfish ttawl fisheries in Alaska State-managed waters to Category m. In addition, the Service proposed to revise its listing of the Category I, Alaska Peninsula salmon drift gillnet fishery, keeping the South Unimak portion of the fishery in Category I while placing the remainder of the fishery in Category n. By letter of 17 August 1990, the Commission commented on the proposed revisions. The Commis- sion noted that it had not been consulted prior to publication of the proposed changes as required by section 1 14 of the Marine Mammal Protection Act and requested that such consultations be conducted as part of future re-examinations of the list. 81 MARINE MAMMAL COMMISSION — Annual Report for 1991 Applicable regulations set forth two bases for placing a fishery in Category I — a specific directive from Congress or the existence of "documentary evidence" demonstrating a frequent take of marine mammals. The Commission had previously recom- mended that the Service use the best available infor- mation when categorizing a fishery, whether or not the level of take has been "documented." In its 17 August 1990 letter, the Conunission again noted that, in some instances, the Service should place fisheries in Category I based on analogy to other Category I fisheries because of a similarity in gear type, fishery location, etc. By analogy to the Atlantic Ocean swordfish, tuna, and shark gillnet fishery, the Com- mission recommended a Category I listing for the Caribbean and Gulf of Mexico gillnet fishery for these species despite the absence of "documentary evidence" on the level of incidental take in those areas. The Commission also noted that some Category m fisheries, such as the shrimp trawl and menhaden purse seine fisheries off the South Atlantic and Gulf states, may take marine mammals only rarely in individual fishery operations, but, because a large number of operations are conducted, may cumulative- ly have significant adverse effects on marine mammal populations. The Commission therefore recommended that, unless available information is sufficient to show that the take in these fisheries is negligible, they be upgraded to Category II fisheries so as to require registration and reporting to obtain needed information on fishing effort and incidental take rates. The Commission cautioned that, without such information, it may be difficult to justify authorizing a take under the new management regime being developed to govern the incidental take of marine mammals after I October 1993. The revised list of fisheries was published by the Service on 7 February I99I. As proposed, the Florida east coast shark gillnet fishery, the southern New England/mid-Atlantic inshore squid fishery, and the Gulf of Alaska/Bering Sea longline/setline sable- fish fishery were placed in Category U. Also as proposed, the groundfish trawl fishery in Alaska State-managed waters was added to the list as a Category III fishery. The Service determined that the Atlantic Ocean swordfish, tuna, and shark gillnet fishery and the Caribbean and Gulf of Mexico swordfish, tuna, and shark gillnet fishery should be treated as a single fishery. The combined Atlantic Ocean, Caribbean, and Gulf of Mexico gillnet fishery for swordfish, tuna and shark was placed in Category I. The Alaska Peninsula salmon drift gillnet fishery, including the South Unimak portion of that fishery, was moved from Category I to Category II. However, the South Unimak fishery was listed separately to improve monitoring of incidental take in that fishery. The Prince William Sound set gillnet fishery was also downgraded from a Category I to a Category n fishery. In light of efforts undertaken by the State of Oregon to reduce the impact of the sea urchin fishery on Steller sea lions, including a public education program and adoption of a 1,000-foot buffer zone around Steller sea lion rookeries, the Service deter- mined that placing the Oregon sea urchin fishery in Category II was not warranted. The Service also determined that squid landed in Gulf of Maine trawl fisheries were primarily caught as bycatch in the groundfish and shrimp trawl fisheries. As such, the Gulf of Maine squid fishery was determined not to warrant inclusion in the list of fisheries. In August 1991, the Service consulted informally with the Commission regarding possible changes to the list of fisheries for the 1992 fishing season. By letter of 31 August 1991, the Commission provided recommendations to the Service. Among other things, the Commission recommended that, when possible, proposals to reclassify Category I fisheries be accom- panied by data on observer effort and the numbers and species of marine mammals taken. The Commission also reiterated its recommendation that certain fisher- ies, such as the shrimp trawl and menhaden purse seine fisheries off the South Atlantic and Gulf states, which may be having more than a negligible impact on marine mammal stocks, be upgraded to Category n so that more reliable information on fishing effort and marine mammal take rates can be obtained. The Service had plaimed to have a revised list of fisheries in place by 1 January 1992; however, proposed revisions had yet to be published at the end of 1991. Under the interim exemption, all vessels participat- ing in Category I or Category n fisheries must 82 Chapter III — Marine Mammal-Fisheries Interactions register with the National Marine Fisheries Service and obtain an exemption certificate. At the end of 1989, approximately 10,400 vessel owners had registered for and had been issued exemption certifi- cates. Exemption certificates were renewed automati- cally by the Service in 1990 and, by the end of that year, nearly 16,000 vessels participating in Category I or Category n fisheries had registered and had obtained exemption certificates. Exemption certifi- cates were renewed in 1991 only if the required reports had been received by the National Marine Fisheries Service. At the end of 1991, 12,194 vessels were registered as participating in Category I and/or Category II fisheries. With the exception of those fisheries added to the list of fisheries in February 1991, the number of vessels registered in nearly all Category I and Category 11 fisheries declined between 1990 and 1991. It is unknown whether the decline in registration reflects a decline in the number of vessels engaged in conmiercial fisheries or an increase in the number of vessels participating in fisheries without registering for an exemption. Fishermen operating in Category I and Category n fisheries must maintain accurate daily logs of fishing effort, including gear type and target species; the number, species, and location of marine mammals taken; type of marine mammal interaction {e.g., disturbance, injury, or mortality); any intentional takes and the methods used to deter marine mammals from gear or catch; and any loss of fish or gear caused by marine mammals. By the end of each year, an annual report, including a copy of the required logs, must be submitted to the Service. Category III fishermen are not required to submit armual reports, but must report all lethal incidental taking of marine mammals to the Service within 10 days after returning from the trip during which the taking occurred. Regulations setting forth the reporting requirements under the interim exemption did not become effective until 16 January 1990. Even though the reporting regulations had yet to enter into force, some 3,500 annual reports for 1989 were voluntarily submitted, based upon the requirements set out in an earlier published proposed rule. For 1990, the first year of mandatory reporting, just over 10,000 reports were filed. That is, less than two-thirds of the vessels required to submit reports did so. Preliminary data from the 1990 reports indicate that, for the 571,000 fishing days covered, 250,000 marine mammal interactions with fishing gear occurred, 9 1 ,600 marine mammals were harassed by fishermen, almost 2,100 marine mammals were injured, and more than 2,600 marine mammals were killed. Some reported interac- tions may have been very minor and, in some cases, may constitute nothing more than observations of marine mammals in the vicinity of the fishing opera- tion. Gillnet fisheries, which accounted for just over half of the reported fishing effort in terms of the number of days fished, accounted for 70 percent of the reported mortality. Troll fisheries, which account- ed for 30 percent of the fishing effort, accounted for about one-half of the reported marine mammal injur- ies. Extrapolations based on data fi"om the observer program suggest that fishermen's reports may under- estimate marine mammal mortality occurring in at least some conmiercial fisheries. Figures on the number of reports filed by Category I and Category n fishermen for 1991 and on the reported level of incidental take are not yet available. As discussed above, the 1988 amendments required establishment of an observer program to monitor between 20 and 35 percent of the fishing operations conducted by Category I vessels. Early in 1989, however, it became apparent that funding levels would be insufficient even for minimal (20 percent) coverage of all designated Category I fisheries. In response, the National Marine Fisheries Service established criteria for setting priorities for placing observers in Category I fisheries based upon (1) whether depleted species are taken; (2) the population trends of the species taken in the fishery; (3) the annual take rate of marine mammals, expressed in terms of population percentage; and (4) whether marine mammals for which a quota has been established (i.e., Steller sea lions and North Pacific fur seals) are taken. The Service also decided that, rather than providing straight 20 percent coverage in the top priority fisher- ies until funds were exhausted, it would consider reduced coverage in some fisheries if reliable esti- mates of incidental taking could be made from less than 20 percent coverage. For Fiscal Years 1990 and 1991 the annual author- ization for the interim exemption observer program was $7.5 million. While this level of funding was 83 MARINE MAMMAL COMMISSION — Annual Report for 1991 insufficient to enable the Service to provide 20 to 35- percent coverage for all Category I fisheries, observ- ers were placed on board some vessels in all but one Category I fishery in 1990 and on board some vessels in all Category I fisheries during 1991. Coverage in certain fisheries, however, failed to meet targeted levels. Projected and estimated observer coverage of Category I fisheries under the interim exemption are shown on Table 8. Development of a New Regime To Govern the Incidental Take of Marine Mammals after October 1993 The interim exemption for commercial fisheries was enacted in 1988 to govern marine mammal- fishery interactions for a five-year period. At the endof the five-year period, it is expected that the mterim exemption will be replaced by a new regime with a firm scientific rationale for setting take limits based on sound principles of wildlife management. Congress is expected to begin consideration of the new incidental take regime during the first half of 1992. The Commission's Recommended Guidelines As a first step in developing the long-term regula- tory regime, the Marine Mammal Commission was directed by the 1988 Marine Mammal Protection Act amendments to make available to the Secretary of Commerce and to the public recommended guidelines to govern the take of marine mammals incidental to commercial fishing operations after the interim exemption expires on 1 October 1993. The amend- ments required that the guidelines: "(A) be designed to provide a scientific rationale and basis for determining how many marine mammals may be inciden- tally taken under a regime to be adopted to govern such taking after October 1, 1993; "(B) be based on sound principles of wildlife management, and be consistent with and in furtherance of the purposes and poli- cies set forth in this Act; and "(C) to the maximum extent practicable, include as factors to be considered and utilized in determining permis- sible levels of such taking — (i) the status and trends of the affected marine mammal population stocks; (ii) the abundance and annual net recruit- ment of such stocks; (iii) the level of confidence in the know- ledge of the affected stocks; and (iv) the extent to which incidental tak- ing will likely cause or contribute to their decline or prevent their recovery to optimum sustainable population levels." The Commission began developing proposed guidelines in July 1989, widi the goal of transmitting final recommended guidelines to the National Marine Fisheries Service by 1 February 1990. However, when a possible new approach was suggested by members of the Commission's Committee of Scientific Advisors in late 1989, circulation of the draft guide- lines for public review was delayed. On 26 January 1990, draft guidelines were circulated to interested parties, including fisheries managers, fisheries groups, and environmental organizations. A notice of avail- ability was also published in the Federal Register, inviting public comment. Comments were accepted until 30 March 1990. The Commission, in consultation with its Commit- tee of Scientific Advisors, considered the numerous comments received on the draft guidelines, revised the guidelines, as appropriate, and, on 12 July 1990, transmitted its recommended guidelines to the Nation- al Marine Fisheries Service. Copies of the guidelines were also provided to other interested parties, includ- ing conmiercial fishing organizations and environmen- tal groups. In addition to the recommended guide- lines, the Commission prepared and provided to the Service and others a document summarizing all substantive comments it received on the draft guide- lines, explaining how they were addressed. The Commission, in its guidelines, recommended that the legislation to govern the taking of marine 84 Chapter HI — Marine Mammal-Fisheries Interactions Table 8. Estimated Percent Observer Coverage for Category I Fisheries during the Interim Exemption Period Fishery FY 1989 Target' CY 1989 Estimate^ FY 1990 Targrt CY1990 Estimate FY 1991 Target CY1991 Estimate FY 1992 Target Atlantic Mackerel Foreign Trawl 100 100 100 100 100 100 100 Gulf of Maine Groundfish/Mackerel 10 1.6 10 1.1 10 5* 10 Prince William Sound Drift Gillnet 20 5 3.9 5 5.0 0« Prince William Sound Set Gillnet^ 5 2.7 — — — Alaska Peninsula Drift Gillnet^ 20 5 4.1 — — — Washington Marine Set Gillnet 20 26.9 35 47.1 35 62.4 35 Lower Columbia River Drift Gillnet 10 8 10 California Drift Gillnet (Thresher Shark/ Swordfish 10 20 4 20 10-11 20 California Set Gillnet (Halibut/ Angel Shark) 15 20 5-6 20 12 20 Alaska Groundfish (Joint Venture)' 100 94 100 60 — — — Alaska Groundfish (Domestic) 20 14 20 54 20 54-60 20 Atlantic Ocean, Caribbean, Gulf of Mexico GiUnet' — — — ^ N/A 5-10 N/A ' Observer coverage is funded on a fiscal year basis and targeted coverage is for the period 1 Oclober-30 September. ^ Estimated observer coverage is recorded on a calendar year basis. ' Observer coverage for the first six months of 1991 was approximately one percent and approximately ten percent for the last six months of 1991. ^ The National Marine Fisheries Service plans to propose reclassifying this fishery as Category D and does not plan to place observers in 1992. * These fisheries were reclassified as Category II in 1991 . ' No joint fishery operations occurred in 1991 and none are expected in 1992. ' This fishery was added to Category I in 1991 . No specific observer coverage level was established. In FY 1991 and FY 1992, respectively, $168,000 and $75,000 was allocated for the observer program in this fishery. mammals incidental to commercial fishing after 1 October 1993 do the following: fishing to insignificant levels approaching a zero mortality and serious injury rate; • re-affirm the Marine Mammal Protection Act's goal to reduce the incidental kill and serious injury of marine mammals in the course of commercial reinstate the substantive, although not necessarily the procedural, requirements of the general permit and small-take provisions of the Marine Mammal 85 MARINE MAMMAL COMMISSION - Annual Report for 1991 Protection Act for marine mammal populations known or reasonably believed to be at their opti- mum sustainable population levels; • allow the incidental take of marine mammals listed as endangered or threatened under the Endangered Species Act or designated as depleted under the Marine Mammal Protection Act when: (1) a recovery plan or conservation plan, including an implementation plan, has been developed, adopted, and put in place; (2) the authorized level of take, by itself and in combination with other sources of mortality, is not likely to cause or contribute to a further population decline or cause more than a 10- percent increase in the estimated time it will take for the affected species or population to recover to its maximum net productivity level; (3) ongoing and planned monitoring and enforcement programs are adequate to ensure that the authorized levels of take are not exceeded and to detect any unforeseen effects on the size or productivity of the affected species or population; and (4) there is good reason to believe that the incidental take has been or will be reduced to as near zero as practicable; • authorize, on an experimental basis, for periods of three to five years, the incidental take from species and population stocks whose status is uncertain when: (1) the authorized level of incidental take clearly would have a negligible effect on popula- tion size and productivity; and (2) ongoing or planned assessment, monitoring, and enforcement programs are adequate to ensure that the authorized level of take will not be exceeded, the status of the affected species or population stock will be deter- mined with reasonable certainty within three to five years, and possible ways to avoid or reduce the level of incidental take will be identified and implemented; • streamline and continue the vessel registration and reporting programs initiated under the 1988 Marine Mammal Protection Act amendments; • grant explicit authority to the Secretary of Com- merce to place observers aboard any commercial fishing vessel operating in U.S. waters; and • provide necessary funding or authorize the collec- tion of user fees sufficient for observer and other marine mammal monitoring programs. | The Commission noted that one assumption behind the establishment of the interim exemption was that, at the end of the five-year period, sufficient informa- tion would be available on the status of marine mammal stocks taken incidental to commercial fisher- ies and the impact of fisheries on those stocks to enable the Secretaries of Commerce and the Interior to authorize specific levels of take based upon sound principles of wildlife management. In developing its reconunended guidelines, the Commission accepted that assumption. However, based on comments received on the draft guidelines, the Commission indicated that it was unlikely that, unless additional population assessments were undertaken by the National Marine Fisheries Service, the information needed to make required status determinations for many marine mammal stocks would be available by 1993. To address this problem, the Commission, in the guidelines, recommended that the Service hold a workshop or series of workshops by early 1991 to (1) review available information on the status of marine mammal stocks and the effects of fisheries and other activities on those stocks; (2) identify what additional information, if any, will be needed to make status-of-stocks and other determinations required to authorize the incidental take of marine mammals by fisheries in U.S. waters after 1 October 1993; and (3) describe the research programs necessary to obtain and analyze tiiat information. \ The recommended guidelines also noted that marine mammals may be affected indirectly, as well as directly, by commercial fisheries. To minimize adverse indirect effects, the Commission recommend- ed that the Service promulgate regulations under the Fishery Conservation and Management Act requiring Fishery Management Councils to assess and take into account the food requirements (and uncertainties related thereto) of marine manraials and other non- target species when calculating the optimal yield of fishery resources. Towards this end, the Commission recommended that the Service organize and hold a workshop or series of workshops in 1991 or 1992 to identify and evaluate possible procedures for assessing interactions and ensuring that fisheries do not directly or indirectly disadvantage marine mammal popula- 86 Chapter HI — Marine Mammal-Fisheries Interactions tions. Among other things, the workshop(s) should consider the establishment of thresholds below which exploitation of fish stocks should be prohibited; guidelines and procedures for addressing uncertainty with respect to the status of and functional relation- ships among fisheries resources and other components of the ecosystems; and research and management programs needed to fill critical gaps in our knowledge of the structure and dynamics of marine ecosystems. The National Marine Fisheries Service's Proposed Regime The 1988 amendments to the Marine Mammal Protection Act directed the Secretary of Commerce, after consultation with the Marine Mammal Commis- sion, Regional Fishery Management Councils, and other interested agencies and organizations, to publish by 1 February 1991 a suggested regime to govern incidental taking after 1 October 1993. The amend- ments mandated that the suggested regime include proposed scientific guidelines to be used in determin- ing permissible levels of incidental taking, a descrip- tion of the arrangements for consultations with other agencies and interested parties, and a summary of the regulations and legislation necessary to implement the suggested regime. After consultation with the Com- mission and consideration of public comment on the proposed regime, the Secretary is to provide to Congress, by 1 January 1992, the suggested regime, recommendations for legislation to implement the regime, and a proposed schedule for implementation. The National Marine Fisheries Service, on 24 May 1991, published its proposed regime for public review and comment. In addition, a Draft Legislative Envi- ronmental Impact Statement on the Service's proposal was made available for public review and comment. In many respects, the Service's proposal closely followed the guidelines recommended by the Commis- sion. Among other things, the Service's proposal would: (1) retain the Act's goal of reducing inciden- tal kill and serious injury of marine mammals to insignificant levels approaching a rate of zero; (2) allow incidental taking from stocks designated as depleted only in compliance with approved conserva- tion plans for such stocks; (3) require vessel owners operating in certain fisheries to register with the Service; (4) prohibit fishing as well as incidental taking absent required registration and incidental take authorization; (5) grant the Service authority to place observers aboard any vessel operating in any commer- cial fishery; (6) allow assessment of a user fee to cover administrative costs associated with the pro- gram; and (7) enable the Service to require fishermen to contribute funding for unusual monitoring require- ments associated with some fisheries. The Service proposed that the new regime be implemented over a two-year period beginning in 1993. The primary difference between the Service's proposed regime and that recommended in the Com- mission's guidelines was the addition of an allowable biological removal concept. The total removal of animals ft-om a population from all sources, including subsistence takes, taking incidental to commercial fishing and other activities, and taking for public display and scientific research, for any year could not exceed the estimated allowable biological removal level. Under the Service's proposal, an allowable biolog- ical removal would be calculated for each marine mammal stock by multiplying the estimated minimum abundance of the stock by the best estimate of the stock's maximum annual net productivity rate and by a recovery factor, which would vary depending on the status of the stock relative to its carrying capacity. In making these calculations, the Service proposed to use a conservative measure of minimum stock abundance such as the lower limit of the 95 percent confidence interval of the estimated stock size or an actual count of animals. Default values for maximum net produc- tivity rates of six percent for pinnipeds and sea otters and two percent for cetaceans and manatees would be used when specific information on net productivity rates is unavailable. Recovery factors would depend upon a qualitative estimate of a stock's status and would be 0.9 for stocks believed to be above two- thirds of carrying capacity, 0.5 for stocks between one-third and two-thirds of carrying capacity, and 0. 1 for stocks below one-third of carrying capacity or for which information necessary to make such a determi- nation is unavailable. To provide information necessary to calculate allowable biological removal levels, the Service would prepare a stock assessment report for each affected stock at least once every three years. Stock assess- ment reports would be evaluated by scientific review 87 MARINE MAMMAL COMMISSION — Annual Report for 1991 groups and would be made available for public review and comment. The life history and population data contained in the final stock assessment reports would be used to calculate the allowable biological removal level. The allowable biological removal level calculated for each stock would be allocated aimually by the Service among the various user groups. The Service proposed to give priority to those takes that it could not control, such as subsistence harvests of non- depleted marine mammals, collisions with ships, and incidental takes by foreign fisheries outside the U.S. Exclusive Economic Zone. All or part of the remain- ing allowable biological removal would be allocated to "controllable" activities such as commercial fishing, public display, and scientific research. Allocations would be based on an assessment of need, economic impacts, historic take levels, and the ability of the user group to reduce its level of take. Further division of the portion of the allowable biological removal allocated to commercial fisheries would be made for individual fisheries. The Service proposed to establish Regional Quota Boards com- prised of representatives of the Service, the Fish and Wildlife Service, the Marine Mammal Conunission, Regional Fishery Management Councils, state fishery agencies, and appropriate Indian tribes, to recommend incidental take quotas for each fishery. The Regional Quota Boards would seek the views of fishing industry representatives, enviroiunental groups, and other interested parties before making recommendations to the Service. Based upon the advice of the Regional Quota Boards, the Service would issue final quotas for each fishery. In no case, however, could the sum of the fishery quotas exceed that portion of the allowable biological removal allocated to commercial fisheries. By letter of 23 September 1991, the Marine Mammal Commission, in consultation with its Com- mittee of Scientific Advisors on Marine Mammals, provided the Service with detailed comments on the proposed regime and the associated Draft Legislative Environmental Impact Statement. The Commission noted that most parts of the proposal were conceptual- ly sound, but that, in some cases, the proposal was not explained in sufficient detail to allow critical evaluation. For example, determining a stock's status relative to its carrying capacity level would be one of the key elements in calculating allowable biological removal levels, yet the criteria, minimum data, or procedures that would be used to make such determi- nations were not presented. These determinations would, in effect, constitute (/e^cro judgments of the stock's status relative to its optimum sustainable population. As such, the Commission reconmiended that they be based upon clearly articulated criteria and be made using procedures that afford an opportunity for full scrutiny of the evidence before the agency, provide for independent review of the data, and require a complete explanation of the rationale for the determinations made. The Commission also noted that it was not clear how the proposed regime would deal with situations in which marine mammal carrying capacity has been reduced by overharvesting of prey species or other types of habitat degradation or destruction caused by commercial fisheries, coastal development, offshore oil and gas development, or other activities. In addition, while the Service's proposal addressed mortalities and other removals of animals from wild populations, it did not indicate how noise disturbance and other forms of harassment, which may indirectly result in decreased survival and productivity, would be considered. The Commission also noted problems with the proposed formula for calculating allowable biological removal levels. The Service, in calculating the allowable biological removal level, proposed to use the "best estimate of the stock's net production rate at the population level where net productivity is maxi- mized" even in those situations when the population is known to be declining or the actual growth rate is known to be less than the estimated maximum growth rate and when there is uncertainty as to whether the decline or reduced growth rate is due to some factor i other than incidental take by commercial fisheries. Another potential problem with the proposed regime noted by the Commission was its failure to account for the age and sex, as well as the number, of animals that may be taken, when calculating allowable bio- logical removal levels. Despite claims that the proposed regime was conservative, it would allow the Service to authorize incidental take for indefinite periods of time, even when there may be substantial uncertainties concem- 88 Chapter III — Marine Mammal-Fisheries Interactions ing the possible adverse effects of the take on marine mammal stocks. The Commission explained that this was problematic inasmuch as the proposed monitoring programs probably could not detect population de- clines as great as five to ten percent per year in less than 10 to 20 years. The Commission therefore recommended that the length of time that incidental takes could be authorized without making formal status-of-stocks determinations or verifying that affected populations are increasing toward, or being maintained within, their optimum sustainable popula- tion ranges be limited to three to five years. Without such a limit, there would be little incentive to ensure that incidental take during commercial fishing opera- tions, by itself and in combination with other forms of take, does not cause the affected populations to be reduced or to be maintained below their maximum net productivity levels. Under the Service's proposal, recovery plans and conservation plans could establish allowable removal levels less than those calculated using the allowable biological removal formula. The proposal, however, did not identify those situations when such reductions would be appropriate or provide any criteria for making such determinations. Noting that such deter- minations were likely to be highly controversial and could impede necessary conservation measures, the Commission recommended that the Service expand its proposal to provide criteria forjudging when it would be appropriate for recovery plans and conservation plans to establish take levels less than would be authorized using the general allowable biological removal formula. The Draft Legislative Environmental Impact Statement that accompanied the Service's proposal assessed the economic impacts of four alternatives using the period before enactment of the Marine Mammal Protection Act as a baseline. This created the misimpression that adoption of any of the alterna- tives would adversely affect fisheries to one degree or another. The Commission noted that, absent addition- al legislation, the system for authorizing the take of marine mammals incidental to commercial fisheries would revert to that in existence prior to enactment of the interim exemption in 1988 and recommended that the economic analyses be redone using that as the baseline. Such analyses would show that three of the four alternatives, including the Service's proposal and the Commission's recommended guidelines, would benefit fisheries to various degrees, at the expense of marine mammals. In addition, the Commission recommended that: • the term "allowable biological removal" be changed to clarify that it represents the maximum number of animals that might be taken from a population with confidence that the removals would not cause the population to be reduced or to be maintained below its maximum net productivity level; • the proposed regime be revised to include a streamlined procedure for authorizing "small takes" of marine mammals in fisheries that have few interacations similar to that for non-fisheries activities provided in section 101(a)(5) of the Marine Mammal Protection Act; • the Service establish a threshold below which no incidental taking could be authorized unless it were reasonably demonstrated that the population is increasing at or near its maximum growth rate and the authorized level of take would not significantly reduce the recovery rate; • the Service revise its approach for allocating allowable biological removals so that each re- quested authorization is judged on its own merits, taking into account: (1) other forms of taking; (2) measures that might be taken to reduce unneces- sary taking and to allocate the allowable take equitably among foreign and U.S. fisheries and other users; and (3) the likelihood that ongoing or planned monitoring programs are adequate to ensure that the affected populations are increasing toward, or being maintained within, their optimum sustainable population ranges; • the proposal be expanded to describe the program that would be undertaken to reduce marine mam- mal mortalities and injuries incidental to commer- cial fishing operations to as near zero as practica- ble; and • the Service provide, as part of the proposal and Legislative Environmental Impact Statement, draft legislative language illustrating how the proposed 89 MARDSfE MAMMAL COMMISSION — Annual Report for 1991 regime might be translated into law and an estimate of costs associated with implementing the proposed regime. The National Marine Fisheries Service's Revised Proposed Regime The National Marine Fisheries Service received a large number of comments on its proposed regime. While comments were received on all aspects of the proposal, many commenters focused on two points, the complexity of the Service's proposal and the broad applicability of the proposed regime. Several com- menters also believed that more attention should be given to those fisheries with significant marine mam- mal incidental take problems. To address those concerns and other comments received on its original proposal, the Service, on 20 November 1991, made a revised proposal available for public review. In the revised proposal, the Service replaced the term "allowable biological removal" with "potential biological removal" to clarify that it represented the total number of individuals that could potentially be removed from a population, not necessarily that that number of removals would be authorized. The Service also proposed revisions to the recovery factors to be used in calculating potential biological removal levels in response to comments that the original recovery factors were not necessary for effective conservation of marine mammal stocks. The recovery factor for severely depleted stocks (those below one- third of carrying capacity) and those of unknown status was revised upward from 0. 1 to 0.5 (a five-fold increase) and the factor for stocks between one-third and two-thirds of carrying capacity was revised from 0.5 to 0.75. Under the revised proposal, no recovery factor would be used for stocks determined to be above two-thirds of carrying capacity. The Service noted that these changes would allow marine mammal stocks to attain optimum sustainable population levels within a reasonable period of time and would not appreciably increase recovery times. The Service also proposed a new, and somewhat more complex, method for classifying fisheries. Historical data would be used to determine which commercial fisheries interact with marine mammals and which do not. All vessels operating in fisheries identified as interacting with marine mammals would be required to register with the Service. These fisheries would be fiirther classified based on the status of the marine mammals taken and the level of total removals relative to the calculated potential biological removal. Class A fisheries would be those that interact with endangered, threatened, or depleted marine mammals or with marine mammal stocks with an estimated annual removal level (from all sources) which equals or exceeds the potential biological removal level. Class B would include those fisheries that do not interact with depleted marine mammals but that interact with stocks whose potential biological removal level, although not now exceeded by total annual removals, is expected to be exceeded within the next three to five years. Class C fisheries would be those that do not interact with marine mammals from depleted stocks or from stocks whose potential biological removal level is likely to be exceeded within the next five years. Under the Service's revised proposal, only Class A fisheries would be subject to comprehensive monitor- ing on an annual basis. Only when the total fisheries removal is expected to exceed the portion of the potential biological removal level allocated to fisher- . ies, however, would annual monitoring be required. Class B fisheries would, at the Service's discretion, be monitored every two to five years. Class C fisheries would be monitored every five to ten years, depend- ing on the estimated level of incidental removals. I Fishery-specific quotas would be established only for Class A fisheries, and then only if the portion of the potential biological removal level allocated to fisheries would otherwise be exceeded. Removals in fisheries subject to quotas would be monitored suffi- ciently to enable the Service to implement additional resfrictions on fishing activities if necessary to prevent the potential biological removal level from being exceeded. Other major changes contained in the Service's revised proposal included: sfreamlining of the alloca- J tion process and elimination of the Regional Quota " Boards proposed earlier; requiring development of annual research plans to identify and fill data gaps with respect to marine mammal stocks; recommending that the new regime be implemented under a "phased sfrategy" with a goal of reducing take to potential biological removal levels by the end of 1997. 90 Chapter HI — Marine Mammal-Fisheries Interactions The Commission provided comments on the Service's revised proposed regime by letter of 20 December 1991. While the revised proposal respond- ed to some of the conmients and recommendations provided by the Conmiission and others on the origi- nal proposal, it failed to address others. Moreover, some of the modifications instituted by the Service made the revised proposal, in the Commission's view, "even less adequate" than the earlier version. The Commission expressed its belief that the revised proposal could and should be improved and indicated a willingness to recommend that Congress postpone the deadline for transmitting the suggested regime to enable the identified deficiencies to be corrected. The Commission noted that both the original and revised proposals were, in some respects, inconsistent with the Recommended Guidelines provided by the Commission and the fundamental purposes and policies of the Marine Mammal Protection Act. For example, the Service's revised regime would appar- endy allow takes from all sources to exceed the estimated sustainable removal levels, at least during the initial phases of implementation. Enactment of the Service's proposal could therefore allow certain marine mammal stocks to be reduced below their maximum net productivity levels and might signifi- cantly delay or prevent recovery of depleted species and stocks. Further, the revised regime did not appear to recognize or consider situations in which marine mammal survival and productivity are being or may be reduced by habitat degradation or destruction, or by unusual disease outbreaks, natural catastrophe, etc. For example, it failed to address the adverse impacts that might result from such things as commercial exploitation of key marine mammal prey species, offshore oil and gas development, non-point source pollution, and unusual die-offs such as have occurred in several areas in recent years. That is, the revised proposal considered only direct mortality and serious injury from incidental fisheries take, subsistence hunting, and other known and quantifiable human sources. It also appeared that the Service was propos- ing to use current carrying capacity, without consider- ing human-caused habitat degradation and destruction, as the basis for making status-of-stocks determina- tions. Many of the apparent deficiencies in the Service's revised proposed regime may have been attributable to the lack of detail in the proposal. For example, the proposal purported to retain the Act's zero mortality rate goal, but neither described the programs needed to meet the goal nor estimated the cost of such pro- grams. In addition, while the proposal indicated that recovery and conservation plans could establish removal levels more restrictive than the potential biological removal level, it did not describe those situations in which it would be appropriate to do so and did not provide any criteria for making such determinations. In light of these and other omissions, the Commission noted that it was impossible to assess the pros and cons of the revised proposal accurately. To overcome the deficiencies, the Commission recommended, among other things, that the National Marine Fisheries Service revise and expand the legislative proposal to: • include the specific statutory amendments and related report language that the Service will pro- pose to establish the regime; • specify what the Service means by the term "sound principles of wildlife management"; • prohibit taking from species or populations whose minimum estimated size is less than 3,000 individ- uals or 30 percent of the best available estimate of historic abundance, whichever is higher, unless it reasonably can be demonstrated that the population is increasing at its maximum potential rate and the authorized level of take will not cause a greater than 10 percent increase in the estimated time it will take the population to reach its maximum net productivity level; • take account of situations where either marine mammal survival or productivity has been or may be affected by habitat degradation or destruction; • identify situations and propose criteria for deciding when recovery plans and conservation plans for endangered, threatened, and depleted species should be used to establish removal levels less than the estimated potential biological removal levels; 91 MARINE MAMMAL COMMISSION — Annual Report for 1991 • revise the definitions of Class A, B, and C stocks to make it clear that the burden of proof will remain, as presently is the case under the Marine Mammal Protection Act, on potential users to demonstrate that levels of taking do not disadvan- tage the affected marine mammal species and stocks; • describe the program or programs the Service is planning or proposing to move toward the zero mortality rate goal; • provide an estimate of the funding and special logistic requirements that would be required to implement the proposed assessment, monitoring, and mortality reduction programs; and • if it has not already done so, revise the assessments of possible economic impacts in the Legislative Environmental Impact Statement to use the Marine Mammal Protection Act prior to 1988, to which the interim exemption will revert absent enactment of new legislation, as the baseline against which the various alternatives are compared. The Commission also noted that, in the recom- mended guidelines forwarded to the Service in July 1990, it had recommended that the National Marine Fisheries Service and the Fish and Wildlife Service, in consultation with the Commission, the Fishery Management Councils, and other relevant organiza- tions, hold a workshop or series of workshops in 1991 or 1992 to consider and provide advice on: (1) thresholds below which exploitation of fish stocks should be prohibited to ensure maintenance of target, dependent, and associated species at optimum sustain- able levels (i.e., to ensure the fullest possible range of management options for future generations); (2) guidelines and procedures for dealing with uncertainty concerning the status of and numerical and functional relationships among fish stocks and other components of the ecosystems of which they are a part; and (3) research and monitoring programs needed to fill critical gaps in our knowledge of the structure and dynamics of marine ecosystems and to verify the predicted effects and detect the possible unforeseen effects of fishery management programs. The Com- mission noted fiirther that the Service had not re- sponded to this or a number of the other reconmienda- tions made in the Commission's recommended guide- lines and in its 23 September 1991 comments on the Service's initial proposed regime. The Commission reiterated its belief that failure to carry out the recom- mended actions could result in fisheries having significant adverse effects on marine mammals and the ecosystems of which they are a part. Thus, the Commission requested that, if the Service decides not to adopt one or more of these recommendations, the Service provide it widi a detailed explanation as to the reasons why the recommendations were not followed or adopted, as required by section 202(7)(d) of the Marine Mammal Protection Act. At the end of 1991, the Service was reviewing the comments received on its revised proposal. It is expected that the Service will complete and transmit to Congress its suggested regime to govern the taking of marine mammals incidental to commercial fishing operations, and issue a Final Legislative Environmen- tal Impact Statement on the proposal, early in 1992. The Tuna-Porpoise Issue For reasons not fully understood, schools of large yellowfin tuna (>25 kg) tend to associate with dolphin schools in the eastern tropical Pacific Ocean, an area of more than five million square miles stretch- ing from southern California to Chile and westward to Hawaii. In the late 1950s, U.S. fishermen began to exploit this association by deploying large purse seine nets around the more readily observed dolphin schools to catch the tuna swinmiing below. Despite efforts by the fishermen to release the encircled dolphins, some become trapped in the nets and drown. As discussed below, efforts to reduce the incidental mortality of dolphins in this fishery have been a central focus of the Marine Mammal Protection Act since its enact- ment in 1972. Early efforts under the Act focused almost exclusively on the operations of the U.S. purse seine fleet. Beginning in the mid-1980s, however, the focus shifted to reducing dolphin mortality from foreign tuna fishing activities in the eastern tropical Pacific. Background The eastern tropical Pacific tuna purse seine fishery was dominated by the United States fleet during the first two decades of its existence. At its peak in the 92 Chapter HI — Marine Mammal-Fisheries Interactions mid-1970s, a U.S. fleet of more than 150 vessels accounted for nearly 70 percent of the fishery capaci- ty. In the late 1970s and 1980s, significant shifts in the fishery to overseas operations occurred. By the beginning of 1990, only 30 U.S. tuna vessels re- mained in the eastern tropical Pacific fishery, account- ing for less than a third of the total fleet capacity. As discussed in the previous Annual Report, about 45 U.S. purse seiners have left the eastern tropical Pacific since the EI Niiio event of 1 983- 1 984 and have relocated to the western Pacific. On 12 April 1990, the three largest U.S. tuna canners announced that they would no longer purchase tuna caught in association with dolphins. In response, there has been a further exodus of U.S. purse seine vessels from the eastern tropical Pacific. During 1991, only 13 U.S. vessels fished for tuna in the eastern tropical Pacific and, of these, only two to six vessels fished for tuna by setting on porpoises. Despite the decline of the U.S. fleet in the eastern tropical Pacific, the United States remains an impor- tant market for tuna caught in that area. Prior to the announcement by U.S. canners of their "dolphin safe" purchasing policy, about 44 percent of tuna caught in the eastern tropical Pacific was sold in the United States, about 30 percent in Latin America, about 20 percent in western Europe, and about 5 percent in Asia. Although the full extent of any market shift that may have resulted from the "dolphin safe" policy of U.S. canners is unknown, it is believed that the U.S. share of the market for eastern tropical Pacific tuna has declined since April 1990. The decline of the U.S. fleet in the eastern tropical Pacific during the 1970s and 1980s has been offset in large part by a growth of foreign fleets in the area. The Mexican fleet, now with 44 vessels, increased by nearly 50 percent during the 1980s to displace the U.S. fleet as the primary participant in the fishery. The Venezuelan fleet more than tripled in size during the 1980s and now has 21 vessels participating in the fishery. The other major participants in the eastern tropical Pacific tuna fishery are Vanuatu and Ecuador, with ten vessels and nine vessels, respectively. Ecua- dor's vessels, however, are not currently fishing for tuna by setting on dolphins. A parallel shift has also occurred in the tuna canning industry. During the early years of the purse seine tuna fishery, most of the tuna canning industry was controlled by U.S. interests. In the 1960s, 12 tuna canneries were in operation in southern Califor- nia, others were located on both coasts of the United States, and two canneries were operating in American Samoa and two in Puerto Rico. Today only two canneries, both in southern California, remain in operation in the United States. Three canneries are operating in Puerto Rico and two remain open in American Samoa. The country with the most drama- tic increase in canned tuna production during the past decade is Thailand, which began caiming tuna in the early 1980s and now is one of the world's largest producers. Other nations that substantially increased canned tuna production during the 1980s are Italy, France, Mexico, the Philippines, and C6te d'lvoire. More recently, Indonesia has experienced considerable growth in its tuna caiming industry and is currently building more canneries. As the eastern tropical Pacific tuna fishery shifted to foreign control, so did the problem of incidental dolphin mortality. Recognizing this trend, Congress amended the Marine Mammal Protection Act in 1984 to require foreign nations exporting yellowfin tuna to the United States to adopt dolphin-saving programs equivalent to the U.S. program and to achieve an incidental mortality rate comparable to that of the U.S. fleet. In 1988, the Act was further amended to provide more specific standards with respect to what would constitute acceptable foreign programs and comparable mortality rates. As discussed below, the Marine Mammal Commis- sion, the National Marine Fisheries Service, the U.S. Congress, the U.S. tuna industry, the Inter- American Tropical Tuna Commission, and others continued to devote substantial attention to the tuna-porpoise issue in 1991. Now that the U.S. fleet has largely left the fishery and is making very few sets on dolphin schools, most of this effort was directed towards seeking further reductions in dolphin mortality by foreign fishing fleets. Discussions of the Commis- sion's past activities and a summary of earlier efforts to resolve the tuna-porpoise problem are presented in previous Annual Reports. 93 MARINE MAMMAL COMMISSION — Annual Report for 1991 The 1991 Tuna Fishing Season In 1980, the National Marine Fisheries Service promulgated final regulations establishing annual quotas for individual porpoise stocks and a total annual allowable take for U.S. fishermen of 20,500 porpoises for the years 1981-1985. A general permit to take porpoises in compliance with those regulations was also issued in 1980 to the American Tunaboat Association. In 1984, the Marine Mammal Protection Act was amended to extend the annual quotas, the regulations, and the general permit indefinitely and to add quotas for eastern spinner and coastal spotted dolphins. The U.S. fleet continues to operate under the 1980 general permit. Estimates of the annual incidental kill of porpoises by the U.S. and foreign tuna purse seine fleets since passage of the Marine Mammal Protection Act are listed in Table 9. Although these are the best avail- able mortality estimates, it should be noted that many of the estimates may not be accurate. Substantial observer coverage of the U.S fleet did not begin until 1976 and coverage remained below 50 percent until 1987. Observer data for estimating porpoise mortality in the non-U. S. fleet is very sparse for all years prior to 1986. The foreign observer program did not begin in earnest until 1986, when observer coverage was approximately 25 percent. More detailed data for the last four fishing seasons are provided in Table 10. In addition to annual dolphin mortality data, information on mortality rates, fishing effort, and observer coverage are presented. The 1991 dataset for non-U. S. vessels is not yet complete, but estimates based on partial-year data are provided. Also, data for revised year 1991 are given for the U.S. fleet. (As discussed below, on 8 October 1991, the National Marine Fisheries Service changed the period it would use to make foreign comparability findings from the calendar year to the period from 1 October to 30 September. Revised year 1991 covers the period 1 October 1990 to 30 September 1991.) Dolphin mortality resulting from U.S. tuna fishing operations in the eastern tropical Pacific during 1991 was the lowest since the purse seine fishery began. The single most important factor contributing to the reduced mortality was the 12 April 1990 announce- ment by major U.S. tuna canners that they would no longer trade in tuna caught by setting on dolphin and the resulting decrease in sets on dolphins by U.S. vessels. As shown in Table 10, there has been a steady decline In the number of marine mammal sets made by U.S. tuna fishermen over the past four years, with more than a 90 percent decline occurring in the past two years. The low mortality figure for 1991 was not solely attributable to abandonment of the practice of setting on porpoises, however. The average dolphin kill for liie U.S. fleet was about 2.5 dolphins per set, its lowest mortality rate on record. Table 9. Estimated Incidental Kill of Porpois- es in the Tuna Purse Seine Fishery in the Eastern Tropical Pacific Ocean, 1972 - 1991' Non-U.S. Year U.S. Vessels Vessels 1972 368,600 55,078 1973 206,697 58,276 1974 147,437 27,245 1975 166,645 27,812 1976 108,740 19,482 1977 25,452 25,901 1978 19,366 11,147 1979 17,938 3,488 1980 15,305 16,665 1981 18,780 17,199 1982 23,267 5,837 1983 8,513 4,980 1984 17,732 22,980 1985 19,205 39,642 1986 20,692 112,482 1987 13,992 85,185 1988 19,712 59,215 1989 12,643 84,336 1990 5,083 47,448 1991 812 — Estimates, based on kill per set and fishing effort data provided by the National Marine Fisheries Service and the Inter- American Tropical Tuna Commission, do not include deaths of seriously injured animals released alive. 94 Chapter HI — Marine Mammal-Fisheries Interactions Table 10. U.S. and Foreign Dolphin Mortality, Kills per Set, Sets on Dolphins, and Percent of Observer Coverage, 1988 - 1991' Revised 1988 1989 1990 1991^ 1991' Dolphin Mortality U.S. 19,712 12,643 5,083 812 891 Foreign 59,215 84,336 47,448 24-25,000 — Total 78,927 96,979 52,531 25-26,000 — Kills per Set U.S. 5.28 3.60 2.75 2.53 1.89 Foreign 10.87 10.87 6.35 3.0-3.2 — Combined 5.34 3.69 2.81 2.49 — Sets on Dolphins U.S. 3,766 3,435 1,845 321 471 Foreign 6,749 9,145 8,770 8-9,000 — Total 10,515 12,580 10,615 8,300- 9,300 "^ Observer Coverage"* U.S. 53.2% 99.0% 100.0% 100.0% 100.0% Foreign 35.3% 35.5% 40.1% 56.4% — Combined 40.4% 48.2% 48.8% 59.7% — Data provided by the National Marine Fisheries Service. Figures for 1991 for other than the U.S. fleet are preliminary estimates provided by the Inter- American Tropical Tuna Commission. On 8 October 1991, the National Marine Fisheries Service issued a final rule changing the period on which foreign comparability findings are based. Data for revised year 1991 cover the period from 1 October 1990 through 30 September 1991. Observer coverages are given for the percentage of trips observed. Final incidental take data for 1991 for the foreign fleets are not yet available. Preliminary data suggest that the total dolphin mortality for the foreign fleets during 1991 will be about 25,000. This would constitute a reduction of nearly 50 percent in foreign fleet dolphin mortality since 1990 and a reduction of about 70 percent since 1989. These reductions have occurred without any appreciable reduction in the number of dolphin sets engaged in by foreign purse seiners and are primarily the result of improved performance rather than decreased fishing effort. Since 1988 and 1989, the mortality rate for the foreign fleet has been reduced by more than two- thirds, from more than ten dolphins killed per set to about three. The Vanuatu tuna fleet has improved its performance even more dramatically. For the first 10 months of 1991, it achieved a mortality rate (1.75 dolphins per set) well below that of the U.S. fleet. Also, observer coverage of foreign tuna fishing in the eastern tropical Pacific increased in 1991. Implementation of the 1988 Amendments In 1988, changes were enacted in the legislative program governing the take of marine mammals by the U.S. tuna fishery and the importation of yellowfin tuna taken by foreign fleets. These amendments and steps taken to implement them during 1991 are summarized below. 95 MARINE MAMMAL COMMISSION — Annual Report for 1991 Domestic Program — Several modifications to the tuna-porpoise program for U.S. vessels were enacted in 1988. To address the problem of higher dolphin mortality in night sets, the 1988 amendments specified that, effective 1 January 1989, U.S. tuna fishermen setting on marine mammals must complete the process of backdown to remove porpoises from the net no later than 30 minutes after sundown. The restriction on sundown sets may be waived for individual vessel operators who, based on observer reports, have attained an incidental take rate for sundown sets that is no higher than the average daytime take rate for the fleet as a whole. No sundown sets were made by U.S. tuna fishermen in 1991. The amendments also required the placement of an observer on every fishing trip made by U.S. vessels during 1989 and subsequent fishing seasons unless, for reasons beyond the control of the Secretary, an observer is not available. The 100 percent observer requirement may be waived after the 1991 fishing season if it is determined that a less extensive observ- er program would yield sufficiently reliable informa- tion. Full observer coverage was achieved for the U.S. fleet in 1991. There are no plans to decrease observer coverage in 1992. Further, the amendments prohibited the use of explosives other than Class C pest control devices (large firecrackers) in the yellowfin tuna fishery by U.S. fishermen. They directed the Secretary to regulate the use of Class C explosives by 1 April 1990 based on a study to determine if such devices result in physical impairment or increased mortality of marine mammals. Inasmuch as the Service could not determine that Class C explosives do not result in injury, physical impairment, or increased mortality of dolphins, the Service issued an interim final rule on 29 March 1990 to prohibit the use of all explosives during sets on marine mammals. While the Service had expected to publish a final rule to replace the interim rule early in 1991, no such rule was published in 1991. The amendments also directed the Secretary to develop and implement, by the beginning of the 1990 fishing season, a system of performance standards designed to maintain the diligence and proficiency of vessel operators. Those skippers whose incidental marine mammal mortality rate is consistently and substantially higher than the average rate for the fleet will be subject to supplemental training. Continued poor performance may result in suspension or revoca- tion of a certificate of inclusion. The Service pub- lished an interim final rule on 17 May 1990 establish- ing operator performance standards. The Service indicated in the preamble to the interim rule that it would report on implementation of the performance system during the first quarter of 1991 . Based on that report, the Service planned to propose revised stan- dards or replace the interim rule with a final rule. Because of the changes to the U.S. tuna fishery in 1990, the report was never prepared and no final rule has been published. In summary, all of the requirements of the 1988 amendments with respect to the U.S. tuna fleet have been implemented. All that remains to be done is issuing final rules to replace the interim rules now in effect regarding vessel operator performance stan- dards, sundown sets, experimental fishing permits, and the use of explosive devices in the yellowfin tuna fishery. National Academy of Sciences Study — The 1988 amendments also directed the Secretary of Commerce to contract with the National Academy of Sciences for an independent review of possible alternative tuna fishing methods that do not involve the incidental take of marine mammals. This review was to have been completed by 8 September 1989 and the results submitted to Congress by 5 December 1989, along with the Service's proposed plan for researching, developing, and implementing the identified alterna- tives. Completion of the study is considerably behind schedule. A contract for the study was not concluded by the Service and the Academy until September 1989. Under the terms of that contract, the study was to have been completed by 10 September 1990. Repeated extensions of the performance period of the contract have been reluctantly agreed to by the Ser- vice, and the study had not yet been completed by the end of 1991. Comparability of Foreign Programs — During reauthorization hearings on the Marine Mammal Protection Act in 1984, the Commission, the National Marine Fisheries Service, the tuna industry, and the 96 Chapter III — Marine Mammal -Fisheries Interactions environmental community expressed cx)ncern that progress realized by the U.S. fleet in reducing inci- dental porpoise mortality was being offset by the high kill rates of foreign fleets. It was believed that, if fiirther progress were to be made in achieving the Act's goal of reducing incidental mortality to insignifi- cant levels approaching zero, foreign fleets would have to comply with porpoise-saving regulations similar to those applicable to the U.S. fleet. There- fore, Congress amended the Act to require that each nation exporting tuna to this country provide docu- mentary evidence that, with respect to regulating the take of marine mammals, it has adopted a program comparable to that of the United States and that the average rate of incidental take by its fleet is compara- ble to that of the U.S. fleet. Failure to meet these requirements would result in a ban on the import of tuna and tuna products from the nation involved. The National Marine Fisheries Service did not implement these requirements until 18 March 1988, when it published interim regulations. Dissatisfied with the Service's regulations and the pace at which they were developed. Congress amended the Act in 1988 to provide more specific guidance as to when foreign tuna-porpoise programs would be considered to be comparable to that of the United States and to force timely implementation. The amendments require that, to be found comparable to the U.S. program, a foreign program must include: (1) by the begiiming of the 1990 fishing season, prohibitions on encircling pure schools of certain marine mammals, conducting sundown sets, and such other activities as are applicable to U.S. vessels; (2) monitoring by observers from the Inter-American Tropical Tuna Commission or an equivalent international program; and (3) observer coverage equal to that for U.S. vessels unless an alternative observer program with lesser coverage is determined to provide sufficiently reliable documentary evidence of the nation's inciden- tal take rate. In addition, the average incidental take rate for a foreign fleet could be no more than twice that of the U.S. fleet by the end of die 1989 season and no more than 1.25 times the U.S. rate by the end of the 1990 and subsequent seasons. Limitations were also placed on the take of coastal spotted and eastern spinner dolphins. Beginning in 1989, eastern spinner dolphins may not account for more than 15 percent of a nation's total incidental take and coastal spotted dolphins may not exceed two percent of the nation's total take. Harvesting nations are also required to comply with all reasonable requests from the United States to cooperate in conducting its porpoise stock assessment and monitor- ing program. Final regulations implementing the 1988 amend- ments were published by the National Marine Fisher- ies Service on 30 March 1990. As discussed below, the comparability provisions and findings made thereunder were the subject of litigation durmg 1990 and 1991. On 28 August 1990, the District Court issued a ruling with respect to the comparability provisions of the 1988 amendments. It required the Service to embargo yellowfin tuna harvested by foreign fleets in the eastern tropical Pacific until the Service deter- mined that those fleets had achieved a marine mammal mortality rate, by the end of 1989, that was no more than twice that for the U.S. fleet. Pursuant to the Court's order, imports of yellowfin tuna and tuna products were prohibited on 6 September 1990. On 7 September 1990, affirmative findings were made for Venezuela, Vanuatu, Ecuador, and Mexico and the embargo of tuna from those countries was lifted. The finding for Mexico was issued under a provi- sion of the Service's regulations that allowed reconsid- eration of a negative finding based on at least six months of data from the following year. It was based on data from the first eight months of 1990. As noted below, the embargo of Mexican tuna was later reim- posed by the District Court when it ruled that a finding with respect to the quota for eastern spinner dolphins must be based on data from an entire fishing year. That embargo was stayed by the Ninth Circuit Court of Appeals pending appeal of the lower Court's ruling but was reimposed on 22 February 1991, three days after the Court of Appeals lifted the stay. In response to the April 1990 announcement by several U.S. canners that they would no longer purchase tuna caught in association with dolphins, Ecuador and Panama both passed legislation prohibit- ing their vessels from setting on marine mammals. The Service, on 16 November 1990, published an interim final rule enabling comparability determina- tions to be made based upon the passage and effective 97 MARINE MAMMAL COMMISSION — Annual Report for 1991 implementation of such legislation. Under the interim rule, tuna from a foreign nation may be imported into the United States if (1) the laws of that nation prohibit the intentional setting of purse seine nets on marine mammals; (2) every fishing trip of the nation's fleet is observed by an Inter-American Tropical Tuna Commission or other acceptable observer; and (3) the observer certifies that no intentional sets on marine mammals were in fact made. The Service issued a finding of comparability for Panama under this new provision on 15 November 1990, and one for Ecuador on 15 March 1991. The Service issued another interim rule on 27 December 1990 revising the schedule for submitting mortality data and other information upon which comparability findings are based. The rule changed the date by which required information for the preced- ing fishing season must be provided to the Service from 31 July to 15 March and required the Service to issue a finding by 31 May. An affirmative finding from the previous year would remain in effect until then. The District Court found this schedule to be inconsistent with the provisions of the Marine Mam- mal Protection Act and on 26 March 1991 invalidated the rule. The Court directed the Service to revoke all findings of comparability and ban tuna imports from all foreign nations fishing in the eastern tropical Pacific until such time as it determined that the nation has achieved a dolphin mortality rate that is no more than 1.25 times the U.S. rate. The ruling left intact the provision that allowed tuna imports from nation's such as Ecuador and Panama that had enacted and were enforcing legislation prohibiting fishing for tuna by setting on dolphins. On 7 May 1991, the Service published a notice in the Federal Register revoking its 27 December 1990 rule and announcing that, effective 3 April 1991, tuna from Mexico, Venezuela, and Vanuatu had been embargoed. Vanuatu and Venezuela submitted mortality data for the 1990 fishing season. While both nations satisfied the Marine Mammal Protection Act's requirements with respect to the take of eastern spinner and coastal spotted dolphins, neither met the mortality rate comparability requirement. The mortal- ity rate for Vanuatu, which was 1.27 times the U.S. rate, just barely failed to meet the 1.25 limit set forth in the Act. Mexico did not submit any data for 1990. Under the 1988 amendments to the Marine Mam- mal Protection Act, the Secretary of Commerce is required to certify to the President when an embargo of any nation's tuna has been in place for six months. Such a certification is deemed to be a certification for purposes of the Pelly Amendment of the Fishermen's Protective Act and may result in import bans against j other fish products from the offending nation. On 22 ' August 1991, six months after the embargo of Mexi- can tuna became effective, the Secretary issued a certification finding against Mexico. On 22 October, the President transmitted a message advising Congress of his finding. His message indicated that, in light of the tuna embargo already in effect and ongoing j negotiations with Mexico regarding an international ' dolphin conservation program, further sanctions would not be imposed against Mexico at that time. On 15 November 1991, Venezuela and Vanuatu were certified by the Secretary. As with Mexico, the President has thus far declined to impose additional sanctions against fish products from those nations under the Pelly Amendment. On 8 October 1991, the Service published an interim final rule setting forth a new schedule for issuing comparability findings. The action was taken in response to Court rulings in Earth Island Institute v. Mosbacher, discussed below. The rulings required the Service to embargo tuna from nations that purse seine in the eastern tropical Pacific unless mortality rate comparability findings have been made by the end of each year. Under the Service's interim rule, the period from 1 October to 30 September will constitute a fishing year for purposes of comparing foreign dolphin mortality rates with that of the U.S. fleet. In this way, comparisons will be made using data from at least a full year, yet the Service will be able to issue its findings before 31 December. Findings regarding the percentage take of eastern spinner and coastal spotted dolphins will continue to be made on a calendar year basis. Data for the U.S. fleet for revised fishing year 1991 are presented in Table 10. By switching to the new schedule, U.S. dolphin mortality for 1991, against which foreign performance will be compared, decreased from 2.53 dolphins per set to 1.89 dolphins per set. It is unlikely that any of the nations fishing for tuna by setting on dolphins except Vanuatu will 98 Chapter HI — Marine Mammal-Fisheries Interactions meet the comparability test based upon data for the revised 1991 fishing year. The 8 October rule also revised the method used to calculate mortality rates. Previously, the Service weighted data according to three fishing areas and for two species groupings. The weighting process was adopted to treat the various fishing nation more equitably, since incidental take rates vary depending on fishing location and the stock of dolphins set upon. Under the revised approach, the Service will continue to use weighted data when sample sizes for an area and species grouping are sufficient to do so. How- ever, with only two to six U.S. vessels fishing for tuna by setting on dolphins, the statistical variability of the samples would make such comparisons inappro- priate in some circumstances. Under the revised ap- proach, comparability determinations will be based on overall, unweighted mortality rates when there are fewer than five sets by the U.S. fleet in an area and for a species grouping if the foreign nation has any fishing effort for that species grouping in that area. As noted above, the 1988 amendments require that, before a foreign program may be found comparable to the U.S. program, the Secretary must determine that its tuna fishing operations are monitored by Inter- American Tropical Tuna Commission observers, or an equivalent international program in which the United States participates, and is based upon observer cover- age that is equal to that for U.S. vessels. Since January 1989, the United States has achieved 100 percent observer coverage. Under an exception to the general comparability requirement, however, compa- rable foreign programs may have lesser observer coverage if the Secretary determines that such a program will provide sufficiently reliable documentary evidence of the average rate of incidental taking by the harvesting nation. The National Marine Fisheries Service determined that, for 1990, 33 percent coverage would provide sufficiently reliable data for fleets of 10 or more vessels but that 50 percent observer coverage was necessary for fleets consisting of five to nine vessels. Although the Service found these levels to be statisti- cally acceptable, it noted several benefits that would result from higher observer coverage and committed itself to seek 100 percent coverage under the interna- tional observer program. The Service sought and obtained agreement at the 17-20 September 1990 meeting of the Inter-American Tropical Tuna Commission that observer coverage should be increased to levels approaching 100 percent. Consistent with this international agreement, the Service, on 18 October 1990, proposed to accept 75 percent observer coverage for all fleets in 1991 and 90 percent coverage for the 1992 and subsequent fishing seasons. Observer coverage provided by the Inter-American Tropical Tuna Commission since 1987 for the five major foreign fleets operating in the eastern tropical Pacific are provided in Table 1 1 . With the exception of Mexico, those nations have increased observer coverage substantially over the past five years. As required to guarantee compliance with their prohibi- tions on setting on dolphins, Panama and Ecuador achieved 100 percent observer coverage in 1991. Observer coverage for Vanuatu exceeded 90 percent in 1991. Mexico has aimounced that it intends to increase observer coverage of its fleet to 100 percent. Howev- er, only about one-third of the observers on Mexican vessels will be provided by the Inter-American Tropi- cal Tuna Commission. The remainder will be provid- ed by the Government of Mexico under a separate observer program. With the assistance of the National Marine Fisheries Service, Mexico began training and certifying its own observers in 1991. While increased observer coverage for Mexico should be encouraged, it is not clear whether the planned program will satisfy the comparability requirements of the Marine Mammal Protection Act. As noted above, the Act requires observers to be provided by the Inter-Ameri- can Tropical Tuna Commission or an equivalent international program in which the United States participates. Intermediary Nations — The 1988 amendments also restricted tuna imports from third-party nations seeking to export yellowfin tuna to the United States. An intermediary nation must certify and provide reasonable proof that it has acted to prohibit the importation of tuna ft-om any country banned from directly exporting tuna to the United States. Interme- diary nations have 60 days following the imposition of a U.S. import ban to implement a similar prohibition on tuna imports from the embargoed harvesting 99 MARINE MAMMAL COMMISSION — Annual Report for 1991 Table 11. Percent of Foreign Tuna Fleets with Observers Aboard' 1987 1988 1989 1990 1991 Ecuador 9.5 35.9 34.6 48.3 100.0 Mexico 26.8 38.4 35.4 37.6 35.2 Panama 12.3 30.0 43.5 47.6 100.0 Vanuatu 31.0 30.0 35.4 52.2 94.4 Venezuela 21.8 31.3 35.2 37.1 47.9 ' Data provided by the National Marine Fisheries Service. nation. Failure to adopt a parallel import ban within six months of U.S. action will prompt certification of the intermediary nation under the Pelly Amendment to the Fishermen's Protective Act and may result in restrictions on imports of all or some fish products from that nation. These requirements were implemented through an interim rule issued by the National Marine Fisheries Service on 7 March 1989 and a final rule issued on 30 March 1990. Under those regulations, intermediary nations are not required to implement a ban on tuna imports from a country embargoed by the United States if the Service is satisfied that the intermediary nation imports tuna products only from sources other than the embargoed country. The regulations also specify that an intermediary nation embargo will only apply to yellowfin tuna and tuna products harvested in the eastern tropical Pacific by a fishing nation that is subject to a primary embargo. On 12 June 1991 , the Service published a notice to importers in the Federal Register requiring importers to certify that yellowfin tuna shipments to the United States do not contain any yellowfin tuna or tuna products harvested with purse seines in the eastern tropical Pacific Ocean by vessels from Mexico. This requirement became effective on 24 May 1991. On 2 July 1991, a notice with respect to yellowfin tuna harvested by Venezuela and Vanuatu was published by the Service. In accordance with that notice, shipments of yellowfin tuna being imported from only three countries (Costa Rica, France, and Italy) believed to have recently imported yellowfin tuna from Venezuela and Vanuatu must be accompanied by a certification that no yellowfin tuna or tuna products harvested by purse seine vessels of Venezuela or Vanuatu in the eastern tropical Pacific Ocean are included in the shipment. By Federal Register notice of 7 August 1991, the Service limited the certification requirement regarding yellowfin tuna from Mexico to Costa Rica, France, Italy, Japan, and Panama, the five countries believed to have recently imported yellowfin tuna from Mexico. As discussed in the Litigation section below. Earth Island Institute challenged the Service's interpretation of the breadth of the tuna embargoes required under the Marine Mammal Protection Act's intermediary nation provision. It contended that intermediary nation embargoes apply to all yellowfin tuna from the intermediary nation regardless of where or how the tuna were harvested. As with harvesting nations, intermediary nations from which tuna has been embargoed for six months are to be certified by the Secretary of Commerce and may face additional sanctions under the Pelly Amend- ment. Costa Rica, France, Italy, Japan, and Panama were certified on 25 November 1991; however, no sanctions on other fish products have been imposed. Report to Congress — The 1988 amendments to the Marine Mammal Protection Act require the National Marine Fisheries Service to convene annual meetings with representatives of conservation groups, the tuna fishing industry, and other interested parties to discuss the results of efforts to reduce the incidental 100 Chapter III — Marine Mammal-Fisheries Interactions mortality of dolphins in the eastern tropical Pacific tuna fishery and to develop plans for such efforts during the subsequent year. The Service is also required to submit a comprehensive report to Con- gress by 1 April 1992 setting forth the results of the efforts to reduce dolphin mortality and recommenda- tions for actions that should be taken to reduce incidental mortality further. The Service held the second annual review of its tuna program on 21-22 January 1991. To meet the 1 April 1992 deadline for submitting its report to Congress, the Service convened the third, and last, of the annual reviews on 13-14 November 1991. In addition to representatives of conservation groups, U.S. tuna fishermen, U.S. tuna canners, the Marine Mammal Commission, and other Federal agencies, participants included the Inter-American Tropical Tuna Commission and representatives of several tuna fishing nations. Data and trends for the 1990 and 1991 fishing seasons were presented at the meetings. Research underway to develop tuna fishing methods that do not involve setting on dolphins was also discussed. In conjunction with the November meeting. Com- mission representatives held a one-day meeting with the staff of the National Marine Fisheries Service to review the scientific and other aspects of the Service's tuna-porpoise program. Based on information pre- sented at the reviews, at the end of 1991, the Com- mission was preparing a letter to the Service recom- mending ways the program might be improved. Status of Dolphin Stocks As noted above, the incidental take permit issued to the American Tunaboat Association in 1980 was legislatively extended, and quotas for eastern spinner and coastal spotted dolphins were added, during the 1984 reauthorization of the Marine Mammal Protec- tion Act. The 1984 amendments also directed the Secretary of Commerce to undertake a scientific research program to monitor indices of abundance and trends of dolphin stocks taken incidental to the eastern tropical Pacific tuna fishery. If, based upon data collected under the monitoring program and other information, the Secretary determines that the fishery is having a significant adverse effect on any dolphin stock, the Secretary is required to modify the inciden- tal take quotas and/or gear requirements of the Ameri- can Tunaboat Association's permit to the extent necessary to protect the affected stock. The Service initiated its monitoring program in 1986 and has completed five of the six planned survey cruises. In light of the decreased participation of the U.S. fleet in the fishery beginning in 1990 and the corresponding reduction in dolphin mortality, survey cruises were not conducted in 1991. The monitoring program was designed to detect changes in the abun- dance of northern offshore spotted dolphins (on the order of 6 to 10 percent per year), the stock most frequently taken in the fishery. No significant trends in the abundance of northern offshore spotted, eastern spinner, or other dolphin stocks' were detected from data collected during the five-year monitoring pro- gram. However, for such trends to be deteaed over the five-year survey period, stock sizes would have had to increase or decrease by roughly 40 to 50 percent. Analyses based on data collected by observ- ers onboard tuna fishing vessels also indicate no significant trend, suggesting that most dolphin stocks in the eastern tropical Pacific remained stable during the last half of the 1980s. The National Marine Fisheries Service convened a workshop in November 1991 to assess the status of dolphin stocks in the eastern tropical Pacific. Repre- sentatives of the Marine Mammal Commission, the Inter-American Tropical Tuna Commission, and the U.S. tuna industry participated. The findings of the workshop will be presented in a report to Congress early in 1991 prior to hearings on reauthorization of the Marine Mammal Protection Act. When the monitoring program requirement was enacted in 1984, Congress noted the shortcomings of the system then in place to regulate incidental taking (i.e., determining the status of stocks by comparing estimates of current and historic population abun- dance). Congress intended the new program to be the "primary... source of information for monitoring and assessment of the health and status of affected por- poise stocks." Contrary to Congressional expecta- tions, however, the monitoring program has not proven to be an effective means for determining if marine mammal stocks are being adversely affected by the tuna fishery. In this regard, a draft paper pre- 101 MARINE MAMMAL COMMISSION — Annual Report for 1991 pared by National Marine Fisheries Service scientists stated: "If the recent level of mortality continues and given the level of precision in monitoring trends and abundance, it is unlikely that significant changes in abundance will be detected in the near future. Therefore, managing mortality levels so that they do not exceed some fraction of the expected net production should be consid- ered as a more reasonable management strategy than managing levels based on trends in relative abundance. " Concerned that dolphin stocks had been and continue to be adversely affected by the tuna fishery, environmental groups petitioned to have two stocks designated as depleted under the Marine Mammal Protection Act and listed as threatened under the Endangered Species Act in 1991. Under the Marine Mammal Protection Act, any population that is below its maximum net productivity level, the lower bound of the optimum sustainable population range, is considered to be depleted. The National Marine Fisheries Service has determined that maximum net productivity in small cetaceans, such as those dolphin species taken incidental to the eastern tropical Pacific tuna fishery, occurs at about 60 percent of carrying capacity. A threatened species is one "which is likely to become endangered in the foreseeable future throughout all or a significant portion of its range." On 2 August 1991, the Committee for Humane Legislation and 23 other groups petitioned the Secre- tary of Conmierce to designate the eastern spinner dolphin (Stenella longirostris orientalis) as a depleted stock. The petition asserted that a depletion finding was warranted because "[i]ncidental catches of this population in the tuna purse-seine fishery have re- duced it to about 20 percent of its original size over the last two decades — declining from about 2,000,000 to 400,000." The petitioners also noted a recent report published by the National Marine Fisheries Service's Southwest Fisheries Science Center that estimated mortality incidental to the tuna fishery to have resulted in a 56 to 74 percent decline in eastern spinner dolphin abundance since the 1950s. On 30 August 1991, the Center for Marine Conser- vation, the Committee for Humane Legislation, and 19 other groups petitioned the Secretary of Commerce to list the eastern spinner dolphin as threatened. The petition indicated that more than 1.5 million eastern spinner dolphins had been killed incidental to the eastern tropical Pacific tuna fishery since 1959, reducing the population to approximately 20 percent of its original size. The petitioners also noted that, between 1986 and 1990, fishery-related mortality of this stock averaged 13,860 animals per year. The annual mortality during this period constituted about 2.4 percent of die population and exceeded the popu- lation's estimated net productivity rate of two percent. The petition also called upon the Secretary to enter into bilateral or multilateral agreements to conserve the species and to eliminate tuna fishing by setting purse seine nets on dolphins. A petition seeking designation of the northern offshore stock of spotted dolphins {Stenella attenuata) as depleted was submitted to the Secretary of Com- merce by Environmental Solutions International, Greenpeace U.S.A., and seven other groups on 28 October 1991. Comparing the historic abundance estimate for this stock adopted by the Service in its 1980 quota-setting rulemaking (5,030,000) with the "best available" current population estimate (658,300- 2,205,500), the petitioners assert that the northern offshore spotted dolphin is well below 60 percent of carrying capacity and is therefore depleted. The Center for Marine Conservation petitioned the Secretary of Commerce on 30 October 1991 to list the northern offshore spotted dolphin under the Endan- gered Species Act as threatened. Based on data published by the National Marine Fisheries Service, the petitioners maintained that the stock had been reduced by mortality in the tuna fishery to about 30 percent of its original size. In addition, the petitioners noted that annual incidental mortality during 1986- 1990 averaged 48,040 animals, for an annual mortali- ty of about 3.2 percent. In the absence of evidence to the contrary, mortality rates in excess of two percent per year are assumed to be unsustainable by Service scientists. The National Marine Fisheries Service published a notice in the Federal Register on 5 November 1991 finding that the petitions presented substantial infor- mation indicating that designating the eastern spinner dolphin as depleted and listing the stock as threatened 102 Chapter HI — Marine Mammal-Fisheries Interactions may be warranted. On 18 December 1991, the Service published a notice that the petitions concern- ing the northern offshore spotted dolphin also present- ed substantial information indicating that the petitioned actions may be warranted. Public comment on all four petitions was invited. The Commission expects to comment on the proposals early in 1992. On 28 October 1991, Earth Island Institute wrote to the Secretary of Commerce seeking to have the U.S. quota for incidental dolphin mortality reduced to zero. In its letter, Earth Island Institute maintained that the success of U.S. purse seiners that were catching only "dolphin safe" tuna had demonstrated that it was economically and technologically feasible to fish for tuna without setting on dolphin. The letter also noted that the current level of incidental taking was adversely affecting the eastern spinner dolphin stock and should be reduced. The Service had not yet responded to the letter at the end of 1991. Inter-American Tropical Tuna Commission The Inter-American Tropical Tuna Commission is an international body established in 1949 to study the tuna resources of the eastern Pacific Ocean and make recommendations for the management and conserva- tion of those resources. As the foreign share of the purse seine fishery grew, and the associated marine mammal mortality increased, die role of the Tuna Commission was expanded. Beginning in 1977, the Tuna Commission was charged with monitoring incidental mortality of porpoises throughout the fish- ery, assessing the impact of that mortality on porpoise stocks, and introducing measures to reduce the level of take to the maximum extent possible. At the Tuna Commission's 26-28 June 1990 annual meeting, the United States proposed that the Conmiis- sion's porpoise conservation program be expanded to (1) enhance research into ways to avoid killing por- poises incidental to purse seine operations; (2) provide 100 percent observer coverage on all tuna vessels in the eastern tropical Pacific; and (3) include interna- tional marine mammal quotas that would be progres- sively reduced over time to levels as close to zero as possible. The U.S. proposal was discussed in greater detail at a special meeting of the Tuna Commission on 17-20 September 1990 in Costa Rica. During that meeting, an intergovernmental meeting with partici- pants from all nations with a significant interest in the fishery, whether members of the Commission or not, was convened and a resolution calling for an expanded porpoise conservation program was adopted. The nations participating in the intergovermnental meeting agreed to establish an international program to reduce dolphin mortality in the eastern tropical Pacific tuna fishery. The program has a short-term goal of significantly reducing dolphin mortality and a long-term goal of reducing dolphin mortality to insignificant levels approaching zero. Under the agreement, these goals are not paramount, but are to be pursued in concert with the goal of maintaining optimal utilization and conservation of the tuna resource. Among other things, the international program calls for (1) limits on dolphin mortality; (2) 100 percent observer coverage; (3) research programs to improve existing fishing gear and techniques and to investigate possible alternative fishing methods that may eliminate dolphin mortality; and (4) a training program to improve operator performance throughout the international fleet. The parties to the intergovernmental agreement further agreed to convene a follow-up meeting by February 1991 to elaborate on the technical and economic aspects of the international program. That meeting was held in La Jolla, California, on 16-18 January 1991. At that meeting, U.S. representatives agreed to set forth requirements which, if met, would allow a nation's tuna to be imported into the United States. Noting that commitment, the parties to the intergovernmental agreement expressed their willing- ness to make their best efforts to: (1) achieve 100 percent observer coverage; (2) contribute to the funding of the Inter-American Tropical Tuna Commis- sion's observer program; (3) support research pro- grams to identify and develop alternative fishing techniques to catch large yellowfin tuna without setting on dolphins; (4) reduce dolphin mortality in 1991 by 50 percent as compared with 1989; and (5) continue to develop and implement a dolphin conser- vation program in 1992 and subsequent years. Legislation Since enactment of amendments to the Marine Mammal Protection Act in 1988, various legislative proposals have been introduced that would modify 103 MARINE MAMMAL COMMISSION — Annual Report for 1991 certain requirements regarding the U.S. tuna-porpoise program. The only one of these to be enacted is the Dolphin Protection Consumer Information Act, which was enacted on 28 November 1990 as section 901 of the Fishery Conservation Amendments of 1990. The Dolphin Protection Consumer Information Act establishes criteria for when tuna and tuna products may be labeled "dolphin safe." Contrary to earlier proposals, however, it does not require negative labeling for tuna caught in ways that may harm marine mammals. To qualify as dolphin safe, tuna caught in the eastern tropical Pacific must have been caught by a vessel too small to deploy its nets on dolphins or must be accompanied by a certification from a qualified observer that no dolphin sets were made for the entire trip on which the tuna was caught. In addition, the Act specifies that tuna harvested on the high seas by any vessel engaged in large-scale driftnet fishing may not be labeled as dolphin safe. A knowing violation of the labeling requirements is punishable by a fine of up to $100,000. Under the Dolphin Protection Consumer Informa- tion Act, the National Marine Fisheries Service was required to publish implementing regulations by 28 May 1991. Interim regulations were published on 12 September 1991. On 3 January 1991, Representative Barbara Boxer (Democrat-California) introduced H.R. 261, the Dolphin Protection and Fair Fishing Act of 1991. That bill, if enacted, would revoke the American Tunaboat Association's general permit on 31 Decem- ber 1992 and thereafter prohibit the Secretary of Commerce from authorizing U.S. fishermen to fish for yellowfin tuna by intentionally setting purse seine nets on marine mammals. During 1992, the U.S. quota would be reduced to 2,500 dolphins. To ensure compliance with these provisions, all U.S. tuna vessels operating in the eastern tropical Pacific would be required to carry observers. The bill also would modify the foreign comparabil- ity provisions of the Marine Mammal Protection Act by requiring foreign fleets to achieve an incidental dolphin mortality rate no greater than 1.0 times the U.S. rate by the end of the 1991 fishing season and thereafter. In addition, the bill would require compa- rable foreign tuna-porpoise programs to have 100 percent observer coverage and to prohibit their vessels from intentionally setting on dolphins after 1992. H.R. 261 had not been considered by the House of Representatives at the close of the 1991 Congressional session. As indicated above, the Department of State committed itself at the January 1991 intergovenmien- tal meeting in La Jolla to seek amendments to the tuna embargo provisions of the Marine Mammal Protection Act. Proposed legislation was transmitted to Congress in June 1991. Under the proposal, tuna would not be subject to embargo if the harvesting nation (1) partici- pates in an international dolphin conservation program in which the United States participates; (2) participates in research designed to find alternative ways to catch yellowfin tuna without setting on dolphins; (3) has 100 percent observer coverage; (4) achieved a 50 percent reduction in dolphin mortality in 1991 as compared to 1989; and (5) achieved a 60 percent reduction in dolphin mortality in 1992 as compared to 1989. Legislation to give effect to the State Depart- ment proposal has yet to be introduced. Litigation Related to the Tuna-Porpoise Issue A lawsuit originally filed by Earth Island Institute on 12 April 1988 (Earth Island Institute v. Mos- bacher), before enactment of the 1988 amendments to the Marine Mammal Protection Act, amendments, continued to be an important factor in shaping the U.S. tuna-porpoise program during 1991. Earlier rulings in the case focused on the observer require- ments for both the U.S. and foreign fleets. These are discussed in the previous Annual Report. Beginning in mid-1990, the focus of the case shifted to the Act's comparability requirements with respect to dolphin mortality rates. As noted above, the 1988 amendments specified that, for a foreign tuna-porpoise program to be found comparable to the U.S. program, the average incidental take rate of that nation's fleet must be no more than 2.0 times that of the U.S. fleet by the end of the 1989 season and no more than 1.25 times the U.S. rate by the end of the 1990 and subsequent seasons. In addition, a foreign program would not be considered comparable to the U.S. program if the mcidental take of eastern spinner dolphins exceeded 15 percent, or if the incidental take 104 Chapter HI — Marine Mammal-Fisheries Interactions of coastal spotted dolphins exceeded 2 percent, of the nation's total incidental take. On 22 June 1990, plaintiffs filed a motion for a preliminary injunction, asking the District Court to enjoin tuna imports from those foreign nations whose vessels purse seine for tuna in the eastern tropical Pacific until such time as the required mortality rate findings had been made by the National Marine Fisheries Service. Plaintiffs argued that, as of 1 January 1990, only tuna fi-om countries whose dolphin kill rate was no more than twice that of the U.S. fleet and whose take of eastern spinner and coastal spotted dolphins during 1989 did not exceed the established quotas could be imported. The National Marine Fisheries Service contended that the comparability findings must be based on data from the entire 1989 fishing season and therefore could not be made until after 31 July 1990, when data from all 1989 trips were available and had been analyzed. On 28 August 1990, the Court issued a preliminary injunction partially granting and partially denying Earth Island Institute's motion. The Court ruled that the 1988 amendments to the Marine Mammal Protec- tion Act clearly prohibited, as of the end of 1989, a positive comparability finding, and tuna imports pursuant to such a finding, for any nation whose vessels had an average incidental take rate that ex- ceeded 2.0 times that of U.S. vessels. The Court therefore ordered the Secretary of the Treasury to embargo yellowfin tuna harvested in the eastern tropical Pacific Ocean by foreign fishermen until the required determinations had been made. The Court's opinion indicated that the Act does not require the comparison between foreign and U.S. dolphin mortali- ty rates to be based upon data for an entire calendar year, but merely for "the same period." Thus, while the Service could have based its mortality rate com- parisons on data for the entirety of 1989, it could also have made findings based upon data fi-om the first six or eight months of that year. In contrast to the ruling regarding total dolphin mortality rates, the Court ruled that findings based on the take of eastern spiimer and coastal spotted dol- phins by foreign fleets must be based on data fi"om an entire fishing year although they need not be made by the end of a fishing season. As such, the Court left intact the Service's regulations that gave foreign nations until 3 1 July to provide stock-specific data for the preceding fishing year. The Court cautioned, however, that, once the necessary reports are filed, the Service should make prompt decisions as to whether the eastern spinner dolphin and coastal spotted dolphin limits have been exceeded. As required by the Court, the U.S. Customs Service, on 6 September 1990, prohibited imports of yellowfin tuna and yellowfin tuna products into the United States unless a declaration that the fish were not caught using purse seine nets in the eastern tropical Pacific was provided. The embargo applied to tuna imports from the five nations fishing for tuna in the eastern tropical Pacific: Mexico, Venezuela, Vanuatu, Panama, and Ecuador. The following day, however, the National Marine Fisheries Service completed its review of the 1989 dolphin mortality data submitted by Venezuela, Vanuatu, and Mexico and, based on those data, issued positive comparabili- ty findings for Venezuela and Vanuatu. The embargo of tuna from these two countries was immediately lifted. Data submitted by Mexico revealed a 1989 dolphin mortality rate that was 2.39 times that of the U.S. fleet. In addition, eastern spinner dolphins accounted for approximately 24 percent of the Mexi- can fleet's 1989 incidental mortality. Thus, Mexico failed to meet either the mortality rate comparability test or the eastern spinner quota. Anticipating that its program would not be found comparable based on 1989 data, Mexico also submit- ted data for the first eight months of 1990, seeking reconsideration of the finding based on the more recent performance of its fleet. Based on the partial 1990 data, which indicated a mortality rate that was 1.58 times the U.S. rate and an acceptable reduction in the percentage of eastern spinner dolphins taken, the National Marine Fisheries Service also issued a positive finding of comparability for Mexico on 7 September 1990. A positive finding was made for Ecuador on 1 1 September, based upon its enactment of legislation banning its nationals from fishing for tuna by setting on dolphins. This left Panama as the only nation affected by the Court-imposed tuna embargo. In response to the Service's finding of comparabili- ty for Mexico, Earth Island Institute, on 17 September 1990, sought a temporary restraining order to reim- 105 MARINE MAMMAL COMMISSION — Annual Report for 1991 pose the import ban against tuna from that country. Plaintiffs argued that, under the Court's 28 August ruling, a foreign incidental mortality rate based on 1990 data must be no more than 1.25 times the U.S. rate before the embargo could be lifted. Plaintiffs also contended that Mexico's failure to meet the eastern spinner quota for 1989 could be corrected only by meeting the standard for the entirety of 1990. The Court issued a temporary restraining order on 4 October 1991, again prohibiting the importation of Mexican tuna. That order was based on a determina- tion that the Marine Mammal Protection Act does not permit reconsideration of the eastern spinner finding based on data for less than a full fishing season. The Court also ruled that foreign fleets were not required to achieve a mortality rate that is no more than 1.25 times the U.S. mortality rate until the end of 1990. Thus, had it not been for the unacceptably high mortality of eastern spinner dolphins in 1989, the showing by Mexico that its mortality rate for the first eight months of 1990 was less than twice the U.S. rate for the same period would have been sufficient to overcome the import ban. At defendants' request, the Court converted the temporary restraining order to a preliminary injunc- tion on 19 October 1990, clearing the way for an immediate appeal. Federal defendants appealed the District Court ruling to the U.S. Court of Appeals for the Ninth Circuit on 22 October 1990, seeking expe- dited review. On 14 November 1990, the Court of Appeals granted the Government's motion to stay the ban on tuna imports from Mexico pending resolution of the appeal. Pursuant to that stay, the import prohibition on Mexican tuna was lifted on 16 Novem- ber 1990. Oral argument of the appeal was heard on 14 February 1991 and, five days later, the Court of Appeals vacated its stay of the District Court's injunc- tion, reimposing the embargo of Mexican tuna. The Court of Appeals issued its decision on 11 April 1991, affirming the lower Court's ruling. The Court of Appeals, like the District Court, found the statutory language to be clear. Contrary to the Service's regulations, which allowed for reconsidera- tion on data from part of a year, the statute required findings with respect to eastern spinner and coastal spotted dolphins to be based on a full year's data. The Court also rejected the Service's policy-based argument that the reconsideration provision offers foreign nations an incentive to speed up efforts to comply with Marine Mammal Protection Act stan- dards. The Court noted that, contrary to this conten- tion, the reconsideration provision allowed nations to continually exceed the Act's limits for part of each year, yet never be subject to an import ban. The Court illustrated this point by noting that Mexico, which had exceeded Marine Mammal Protection Act standards for the entirety of 1990, had been subject to an embargo for less than one day. Further, the Court found the Government's contention that it sought only to provide additional incentives to further dolphin protection was belied by the Service's record of non- enforcement of the Act's provisions prior to enactment of the 1988 amendments. On 15 February 1991, Earth Island Institute filed another motion in the District Court seeking to enjoin tuna imports from all foreign nations fishing in the eastern tropical Pacific until the National Marine Fisheries Service determined that those nations had achieved a dolphin mortality rate no more than 1.25 times the U.S. rate by the end of 1990. Despite the Court's earlier rulings, the Service, on 27 December 1990, had issued an interim rule giving tuna fishing nations until 15 March 1991 to submit mortality data for the 1990 fishing season and extending the 1989 comparability findings until 31 May 1991, by which time new findings would have been issued. A hearing on the motion was held on 18 March 1991. As expected, the Court ruled in plaintiffs favor and, on 26 March 1991, ordered a prohibition on tuna imports from each nation fishing in the eastern tropi- cal Pacific until such time as the Service made a positive finding that the nation has achieved an average incidental taking rate that is no more than 1.25 times the U.S. rate for the same period or until the Service determined that the government of the exporting nation has taken sufficient steps to prohibit its vessels from setting on porpoises in the course of fishing for tuna. In accordance with this ruling, tuna harvested by Venezuela and Vanuatu in the eastern tropical Pacific, in addition to tuna harvested by Mexico, which already had been embargoed, were embargoed on 3 April 1991. On 8 August 1991, Earth Island Institute moved to convert four preliminary injunctions into permanent 106 Chapter IH — Marine Mammal-Fisheries Interactions injunctions. Those preliminary injunctions concerned domestic observer coverage (issued on 18 January 1989), 1989 foreign comparability findings (issued 28 August 1990), the 1990 reconsideration of the compa- rability finding for Mexico (issued 19 October 1990), and the 1990 foreign comparability findings (issued 26 March 1991). On 26 August 1991, plaintiffs fUed another motion seeking (1) to compel the National Marine Fisheries Service to issue regulations to implement the Dolphin Protection Consumer Informa- tion Act's ban on importing tuna and other fish products harvested with large-scale driftnets and (2) to broaden the scope of the intermediary nation tuna embargoes that had been implemented by the Service under the Marine Manmial Protection Act. The Court ruled on the motion to convert the preliminary injunctions to permanent injunctions and on the motion to compel issuance of regulations in a 13 November 1991 order. All of the preliminary injunctions were converted into permanent injunctions. Under the Dolphin Protection Consumer Information Act, the Service was required to issue implementing regulations by 28 May 1991. While these regulations had not been issued when the plaintiffs filed their motion on 26 August 1991, the Service issued final interim regulations on 12 September 1991 . The Court found the interim regulations sufficient to satisfy the requirements of the Act and denied plaintiffs motion. Other than the matter of attorneys' fees, the only issue in the case pending at the end of 1991 was the breadth of the secondary embargoes required under the intermediary nation provision of the Marine Mammal Protection Act. Section 101(a)(2)(C) of the Act requires that tuna imports from intermediary nations be embargoed unless the government of the intermediary nation that exports yellowfin tuna or tuna products to the United States certifies that it has acted, within 60 days of a U.S. embargo, to prohibit the importation of such tuna from those nations that are banned from directly exporting tuna to the United States. Plaintiffs assert that a secondary embargo under section 101(a)(2)(C) is broader than the under- lying primary embargo and applies to all yellowfin tuna and tuna products. Plaintiffs also maintain that the Secretary of the Treasury is not obtaining the required certifications from all intermediary nations before allowing tuna from those nations to be import- ed into the United States. The Service contends that the scope of the secondary embargo is the same as the scope of the primary import ban. That is, a second- ary embargo applies only to yellowfin tuna harvested by embargoed fishing nations with purse seine nets in the eastern tropical Pacific. Oral argument on this issue was heard on 23 September 1991 . A decision is expected early in 1992. General Agreement on Tariffs and Trade The General Agreement on Tariffs and Trade (GATT) is an international agreement that sets forth limitations on the use of international trade restric- tions, such as taxes, duties, quotas, or unnecessarily restrictive standards. The agreement was originally drafted in 1947 and currently has over 100 contracting parties, including the United States. Trade disputes that may arise between contracting parties are settled either by consultations between the parties or, if consultations prove unsuccessfiil, by referral to a formal dispute panel. On 5 November 1990, Mexico requested consulta- tions with the United States concerning the imposition of tuna import restrictions under the Marine Mammal Protection Act. Consultations were held on 19 December, but failed to resolve the dispute. On 25 January 1991, Mexico requested that a panel be established under the General Agreement to resolve the dispute. The panel met three times in May and June 1991 to hear arguments from Mexico and the United States, as well as from other interested parties. Mexico asserted not only that the Marine Manmial Protection Act's embargo provisions were inconsistent with the General Agreement, but also challenged the possible broadening of trade sanctions under the Pelly Amend- ment, the intermediary nation tuna embargoes, and the tuna labeling provisions of the Dolphin Protection Consumer Information Act. The panel delivered its decision to the GATT contracting parties on 3 September 1991. The panel found the U.S. embargo of Mexican tuna to be inconsistent with the General Agreement. The panel rejected the U.S. position that the embargo was consistent with General Agreement Article HI because the Marine Mammal Protection Act constituted an internal measure that treated foreign caught tuna no 107 MARINE MAMMAL COMMISSION — Annual Report for 1991 less favorably that tuna caught by the U.S. fleet. The panel found that Article HI was not applicable in this instance because the trade measure was not applied to tuna as a product, but rather to the method of produc- tion. Having found that Article m did not apply, the panel determined that the Act's embargo provision violated General Agreement Article XI, which prohib- its quantitative restrictions on imports. The panel then considered arguments made by the United States that the embargo provision fits within exceptions under Article XX(b) and XX(g) that allow contracting parties to adopt trade measures "necessary to protect human, animal or plant life or health" or "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption. " The panel found that Article XX(b) did not apply to measures taken to protect the life or health of animals beyond the jurisdiction of the country applying the measures. Similarly, the panel found that the Article XX(g) exception did not apply extrajurisdictionally. To interpret the provision more broadly, the panel stated, would allow contracting parties to dictate unilaterally the environmental policies from which other countries could not deviate without jeopardizing their rights under the General Agreement. The panel also determined that, even if the Article XX exceptions could be applied extrajurisdictionally, they would not be available in the case of the tuna embargoes. In the panel's view, the United States had not demonstrated that the embargoes were "necessary" within the meaning of Article XX(b) or "primarily aimed at conservation" within the meaning of Article XX(g) because there had been no showing that other, less restrictive means of addressing the tuna-porpoise problem, such as international agreements, were unavailable. authorizes, but does not require, trade measures inconsistent with the General Agreement is not itself in conflict with the General Agreement. The tuna labeling requirements of the Dolphin Protection Consumer Information Act were determined to be consistent with the General Agreement. Under GATT procedures, a panel decision does not become effective until it has been adopted unanimous- ly by the GATT Council. That is, one nation can block adoption of the decision. Shortly after release of the panel's decision, 62 members of the U.S. Senate wrote to the President asking that the United States block adoption. Pending further bilateral negotiations, Mexico and the United States agreed not to have the panel decision considered by the GATT Council. Unless and until the Council has adopted the decision, the United States is not technically in violation of the General Agreement and is under no obligation to bring its domestic law into conformance with the General Agreement. Several nations have expressed concern about the panel's decision and are reviewing potential conflicts between international trade policies and environmental objectives. A GATT working party on trade and the environment has been reconstituted to study whether multilateral agreements may be used as a basis for invoking the Article XX(b) and XX(g) exceptions extrajurisdictionally. Using identical reasoning, the panel also found the intermediary nation embargo provision of the Marine Mammal Protection Act to be inconsistent with the General Agreement. The Pelly Amendment provi- sions were found not to be inconsistent with the General Agreement. While indicating that trade sanctions imposed under the Pelly Amendment would likely be found inconsistent with the General Agree- ment, the panel stated that a statutory provision that 108 < Chapter IV INTERNATIONAL ASPECTS OF MARINE MAMMAL PROTECTION AND CONSERVATION Section 108 of the Marine Mammal Protection Act directs that the Departments of Commerce, the Interior, and State, in consultation with the Marine Mammal Commission, seek to further the protection and conservation of marine mammals under existing international agreements and take such initiatives as may be necessary to negotiate additional agreements required to achieve the purposes of the Act. In addition, section 202 of the Marine Mammal Protec- tion Act directs that the Marine Mammal Conunission recommend to the Secretary of State and other Federal officials appropriate policies regarding international arrangements for the protection and conservation of marine mammals. The Commission's activities in 1991 with respect to the International Whaling Commission, alleviating the widespread impacts of high seas driftnet fisheries on marine resources, the conservation and protection of marine mammals in the Southern Ocean, and the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region are discussed below. International Whaling Commission During 1991, representatives of the Marine Mam- mal Commission and its Committee of Scientific Advisors consulted with the U.S. Commissioner to the International Whaling Commission (IWC) in prepara- tion for the 43rd annual meeting of the IWC. They participated in meetings of the IWC and its Scientific Committee and worked with the U.S. Commissioner to the IWC, the Department of State, and others on related post-meeting actions. Activities taking place before, during, and after the 1991 annual meeting of the IWC are discussed below. Pre-Meeting Activities Management Procedure Workshop — At its 1982 meeting, the IWC adopted a resolution establishing a moratorium on commercial whaling, effective with the 1985/1986 pelagic and the 1986 coastal whaling seasons. The moratorium provision called on the IWC to, among other things, undertake a compre- hensive assessment of the effects of this decision on whale stocks and to consider alternative management procedures. To guide its Scientific Committee in this task, in 1987 the IWC set forth the following three general management objectives: (1) the risk of depleting a stock below some chosen level (e.g., some proportion of its carrying capacity) must be accept- able; (2) catch limits should be stable over time to allow orderly development of the whaling industry; and (3) catch limits should seek to achieve the highest possible continuing yield from the stock. The IWC Scientific Committee held a series of workshops to examine five potential revised manage- ment procedures to assess the status of whale stocks and to serve as the basis for recommending catch quotas. The fourth workshop, held on 5-12 December 1990 in Tokyo, Japan, was convened to review results of tests using the five candidate management proce- dures and to identify ftirther tests to be undertaken and reviewed during the 1991 meeting of the Scienti- fic Committee. During the December workshop, a recommended approach for comparing the five candi- date procedures was developed to help meet the goal of presenting a recommended "best" procedure to the Scientific Committee and the IWC at their 1991 meetings. Although the United States did not participate directly in developing the candidate procedures. 109 MARINE MAMMAL COMMISSION - Annual Report for 1991 members of the U.S. delegation to the Scientific Com- mittee (including members of the Marine Mammal Commission's Committee of Scientific Advisors) participated in intercessional workshops. In preparing for the 1991 meeting of the Scientific Committee, they also reviewed the results of the simulation studies conducted at the Tokyo workshop. Comprehensive Assessment of North Atlantic Fm Whales — As noted above, the 1982 moratorium provision called upon the IWC to undertake a compre- hensive assessment of the effects of the moratorium decision on whale stocks, the purpose being to deter- mine if catch limits should be set at levels other than zero. At its 1986 meeting, the IWC Scientific Com- mittee agreed that the comprehensive assessment would include an in-depth evaluation of the status of all whale stocks. For each stock, this would include examination of current stock size, recent population trends, carrying capacity, productivity, and other relevant biological information. The Scientific Com- mittee identified three work components of the com- prehensive assessment: (1) a review of current knowledge concerning methodology, stock identity, and data availability; (2) identification and collection of data required for the comprehensive assessment; and (3) examination of possible alternative manage- ment regimes. At its 1990 meeting, the IWC Scientific Committee agreed to convene a special intercessional meeting on 26 February-3 March 1991 in Reykjavik, Iceland, to conduct a comprehensive assessment of North Atlantic fin whales. During the meeting, participants consid- ered stock definition, abundance estimates, population models, ecological interactions, and additional re- search needs. The meeting was generally unsuccess- ful. Information proved insufficient to allow a determination as to whether there were two or more discrete fin whale stocks in the North Atlantic, and no conclusions were reached regarding population size. The workshop participants therefore recommended, among other things, that additional data from DNA and/or photographic identification studies be collected to answer questions regarding stock structure and to complete other aspects of the assessment of North Atlantic fin whales. 1991 Meeting of the IWC and its Scientiflc Committee Membership and Participation — The 43rd meeting of the Scientific Committee of the IWC was held 10-20 May 1991 in Reykjavik, Iceland. Follow- ing the Scientific Committee meeting, representatives of 30 of the 37 member nations participated in the 43rd annual meeting of the IWC on 27-31 May in Reykjavik. At its 1990 meeting, the IWC deferred consider- ation of lifting the 1982 moratorium on commercial whaling pending development of a revised manage- ment procedure by its Scientific Committee. As described below, die Scientific Conmiittee put forward its best candidate for such a procedure in 1991 and its adoption by the IWC has set the stage for future consideration of commercial catch limits other than zero. The implications for such a decision on the conservation of whale stocks and for the United States are discussed below. Comprehensive Assessments — As noted above, the 1982 moratorium called upon the IWC to under- take, by 1990 at the latest, a comprehensive assess- ment of the effects of the moratorium decision on whale stocks and to consider establishing catch limits other than zero. To date, the Scientific Conmiittee has completed or attempted to complete compre- hensive assessments for eastern North Pacific gray whales (April 1990); Southern Hemisphere minke and North Atlantic minke whales (June 1990); North \ Atlantic fin whales (February 1991); North Pacific minke whales (May 1991); and Bering-Chukchi- Beaufort Seas bowhead whales (May 1991). The comprehensive assessments have been difficult to carry out, largely because of uncertainties concern- ing key issues, such as stock discreteness and mixing rates, interpretation of abundance trends, appropriate maximum sustainable yield rates and levels, and the integration of biological information into assessment models. At its 1991 meeting, the Scientific Commit- tee noted that these were the same difficulties that resulted in the failure of the previously used manage- ment procedure, and that they continued to prevent the Committee from reaching agreement on stock 110 Chapter FV — International Status. The Committee agreed that, for future assess- ments, it would need to determine first whether adequate data were available. If not, data needs would have to be identified and satisfied before proceeding with the assessment. To address these problems, the Committee established a working group on population assessment models to develop reliable population models to integrate biological and abun- dance data. As discussed in Chapter 11, at its 1991 meeting, the Scientific Committee undertook a comprehensive assessment of the Bering-Chukchi-Beaufort Seas stock of bowhead whales. The assessment produced a new estimated initial (1848) population size of 12,400- 18,200 whales; a current population estimate of 7,500 whales (95 percent confidence interval 6,400 to 9,200); a provisional rate of annual increase of 3.1 percent (95 percent confidence interval 0.1 percent to 6.2 percent) from 1978 to 1988; and a minimum estimate of annual replacement yield of 92 whales. This new assessment suggests that the Bering-Chuk- chi-Beaufort Seas stock has increased under relatively consistent subsistence catches of approximately 0.3 percent per year and that the stock may be closer to its maximum net productivity level than previously thought. The Scientific Committee also conducted a compre- hensive assessment of western North Pacific minke whales at its 1991 meeting. It concluded that there are at least two stocks of minke whales — the Ok- hotsk Sea-West Pacific stock and the protected Sea of Japan-Yellow Sea-East China Sea stock — that mix to some unknown degree in the area north of Japan in early spring. The Committee concluded that, if exploited, individuals from both stocks would be likely subject to harvests in the area where they overlap and, therefore, each stock would need to be managed separately. Despite inadequate biological information, the Committee concluded that, for the Okhotsk Sea-West Pacific stock, the best estimate of population size in the Okhotsk Sea was 19,209 ani- mals (95 percent confidence interval 10,069 to 36,645) and the best estimate of population size in the northwest Pacific was 5,841 animals (95 percent confidence interval of 2,835 to 12,032) with a com- bined population size of 25,049 whales (95 percent confidence interval of 13,689 to 45,835). Because of the wide range of the confidence intervals for these estimates, it was impossible for the Committee to advise the IWC on the effect of the 1982 moratorium decision on the Okhotsk Sea-West Pacific stock of minke whales. Regarding future comprehensive assessments, the Scientific Committee recommended, and the IWC agreed to consider, all Southern Hemisphere baleen whales (except minke and right whales) and North Atlantic minke, fin, and sei whales at its 1992 meet- ing. A steering group for baleen whale assessments was established and is scheduled to meet in Copenha- gen on 2-6 March 1992. Revised Management Procedure — As noted above, the 1982 moratorium provision called upon the IWC to undertake a comprehensive assessment of the effects of the whaling moratorium on whale stocks. The IWC subsequently agreed with a recommendation of its Scientific Conunittee that this should include an examination of alternatives to its management proce- dure for calculating whaling quotas. The Scientific Conmiittee began developing a revised management procedure and assessing candidate procedures during a series of workshops and special meetings beginning in 1989. The Committee reviewed results of the December 1990 workshop in Tokyo and, at its 1991 meeting, it reconunended adoption of a single-stock management procedure developed by J. Cooke. Based on an assumption that long-term management of a population should not allow it to be reduced below 72 percent of the stock's carrying capacity or pre-exploitation size, the procedure would: (1) establish catch limits of zero for stocks found to be below 54 percent of their carrying capacity size, and (2) reduce catch limits from maximum level, when the stock is at its carrying capacity size, to zero, as a stock approaches 54 percent of its carrying capacity size. The IWC subsequently adopted by resolution the recommended single-stock procedure. As a related matter, the resolution also requested the Scientific Committee to address the development of a multi- stock management procedure and provide advice on the minimum standards for data, including coverage and methodology for sighting surveys, analytical tech- 111 MARINE MAMMAL COMMISSION — Annual Report for 1991 niques, and acceptable levels of precision necessary to implement the recommended revised management procedure. To speed its work, the IWC asked its Scientific Committee to convene an intercessional workshop and special meeting to consider the IWC's recommendations. The intercessional workshop is scheduled for 24-28 February 1992 and the special meeting of the Scientific Committee for 2-6 March in Copenhagen. Aboriginal/Subsistence Whaling — During its 1991 meeting, the IWC adopted the following aborigi- nal subsistence catch limits: • Bering-Chukchi-Beaufort Seas stock of bowhead whales (taken by Alaska Eskimos) — 141 total strikes for the years 1992, 1993, and 1994 witii no more than 54 whales struck and no more than 41 landed in any one year, and a maximum of 13 unused strikes that may be carried over from the period 1989 to 1991; • Eastern North Pacific gray whales (taken by Soviet Eskimos) — 179 whales for each of the years 1992, 1993, and 1994; • West Greenland fin whales (taken by Greenland) — 21 whales for 1992; and • West Greenland minke whales (taken by Green- land) — 315 total strikes for the years 1992, 1993, and 1994 with no more than 115 whales struck in any one year. No changes were made in catch limits for other aboriginal subsistence whaling adopted at previous meetings. They remained as follows: • East Greenland minke whales (taken by Greenland) — 12 whales for the years 1990, 1991, and 1992; and • Humpback whales (taken by St. Vincent and the Grenadines) — 3 whales for the 1990/1991 and 1992/1993 seasons. Special Permits for Scientinc Research Whaling — The IWC conservation program allows member nations to issue special permits to take whales for scientific purposes, provided that the IWC and its Scientific Committee have an opportunity to review and comment on the research proposals. Since 1985, the rWC has adopted resolutions setting forth research criteria and guidelines governing its review of such proposals. Acting on advice from its Scientific Committee, the IWC has also adopted non-binding resolutions calling upon member nations to refrain from issuing or to reconsider proposed special permits that do not fiiUy satisfy the FWC research criteria and guidelines. At its 1991 meeting, the Scientific Committee considered research proposals from the Soviet Union to take 90 minke whales in the Okhotsk Sea and from Japan to take up to 330 Antarctic minke whales. As mentioned above, during its 1991 assessment of western North Pacific minke whales, the Scientific Committee commented on the uncertainties concerning the number and discreteness of minke whale stocks in the Okhotsk Sea and noted that, without better infor- mation, it was not possible to assess the effects of the proposed Soviet catch. In addition, the Scientific Committee noted that the Soviet proposal provided insufficient information to assess either the program's objectives, methodology, and minimum sampling needs for the coming and subsequent field seasons, or the degree to which non-lethal techniques could be used as alternatives to killing whales. In view of the Scientific Committee's comments, the IWC adopted a resolution requesting the Soviet Union to refrain from issuing a permit for the proposed catch. With respect to the Japanese proposal, the Scientif- ic Committee noted that the proposed research was essentially a continuation of the program that it had reviewed extensively during previous meetings. Therefore, the IWC again adopted a resolution invit- ing Japan to reconsider its research whaling program. Small Cetaceans — Because the Whaling Conven- tion itself neither lists nor defines the species it was created to manage, there has been extensive debate over the IWC's competence to regulate catches of small cetaceans, particularly as such regulation would relate to the rights of coastal states to regulate small cetacean catches within their respective Exclusive Economic Zones. Despite a lack of consensus on this issue, the IWC adopted a resolution in 1980 that: 112 Chapter IV — International (1) noted that the question of the IWC's competence over small cetaceans was not resolved; (2) recom- mended that the Scientific Committee's subcommittee on small cetaceans continue to review the status of small cetaceans and develop advice on their conserva- tion; and (3) invited all contracting govenmients to consider that advice. At its 1990 meeting, the IWC adopted a resolution requesting the Scientific Committee to compile infor- mation on the status of small cetacean stocks subject to significant directed and incidental takes and the effect of those takes on the stocks. The Scientific Committee presented its report to the IWC at the 1991 meeting. The report noted that three species of small cetaceans are critically endangered — the Gulf of California harbor porpoise, or vaquita (see Chapter n), the Indus river dolphin (susu), and the Chinese river dolphin (baiji) — and recommended immediate steps to protect them. The report also noted that the IWC-sponsored Workshop on Mortality of Cetaceans in Passive Fishing Nets and Traps, held in 1990 (see the previous Annual Report), reviewed information on the incidental take of small, as well as large, cetaceans in high-seas driftnet fisheries and concluded that this take is largely undocumented. At its 1991 meeting, the IWC adopted a resolution commending the Scientific Committee for its work and adopting the report's recommendations. It also requested that its Secretariat forward the report to the United Nations for consideration at the 1992 United Nations Conference on Environment and Develop- ment, as well as to non-contracting governments, intergovernmental organizations, and other appropriate groups. Humane Killing — At its 1980 meeting, the IWC adopted a resolution calling for a prohibition on the use of the "cold" or non-explosive harpoon for killing cetaceans. This measure resulted from concern that the non-explosive harpoon, used to improve the condition of the harvested product, prolong^ the time it takes a whale to die and its use was, therefore, morally indefensible. As a result, the IWC Technical Committee established a working group on humane killing methods to review annually information on development of humane techniques to kill whales. At its 1991 meeting, the working group reviewed subsistence whaling programs in Greenland and Alaska. Denmark presented information that, as of 1 April 1991, its whaling vessels were permitted to use only "penthrite" grenade harpoons to take minke and fin whales. (The penthrite harpoon, developed by Japan in the early 1980s, has been shown to signifi- cantly reduce the time required for a struck whale to die.) The United States presented a report by the Alaska Eskimo Whaling Commission on steps it had taken to improve harpoons and to train whalers in the use of the penthrite grenade harpoon to take bowhead whales. The Technical Committee's last comprehensive review of humane killing methods took place in 1980 and new information has since been developed on the efficiency and physiological effects of killing methods. Noting this, the IWC adopted a resolution calling for a workshop to: (1) review killing methods currently in use or under development, and (2) assess and compare the their efficiency. A steering group for the workshop was formed and is expected to meet on 20- 22 June 1992, prior to the next IWC meeting. Review of Catch Limits for Commercial Whal- ing — As noted above, the 1982 moratorium provides for consideration of catch limits other than zero, based on the results of the comprehensive assessment of whale stocks. With the IWC's 1991 adoption of a revised management procedure for calculating catch limits, the Scientific Committee was given the task of advising the IWC on implementation of the procedure. It is expected to do so at its 1992 meeting. However, during the 1991 meeting, some IWC member nations argued that catch limits for certain whale stocks should be set and commercial whaling resumed under interim provisions until the revised management procedure was in place. Specifically, the Government of Japan proposed an interim take of 50 western North Pacific minke whales and the Government of Iceland proposed an interim take of 92 fin and 192 minke whales from the North Atlantic. Other members argued that it was inappropriate to discuss interim catch limits in light of the IWC's previous resolution to refrain from considering new commercial catch limits until the revised management procedure was implemented and the comprehensive assessments were completed. 113 MARINE MAMMAL COMMISSION — Annual Report for 1991 During the discussion, Iceland's Commissioner to the IWC cited past IWC resolutions asking Iceland to refrain from issuing special permits for research proposals, its refusal to reclassify Icelandic minke whale stocks despite a Scientific Committee recom- mendation to do so, and its decision to delay the implementation of the revised management procedure by asking the Scientific Committee for advice on how to do so. Given these actions, the Commissioner stated that the organization is fundamentally flawed and that he would propose to his Government that Iceland withdraw from the IWC. Under Article XI of the Whaling Convention, any contracting government may withdraw from the Convention on 30 June of any year by giving notice to the depository government of its intention to do so on or before 1 January of the same year. Subsequently, by letter of 27 December 1991, the Government of Iceland notified the United States, in its role as depository government for the Convention, that it had filed such a notice and that Iceland intended to withdraw from the International Convention for the Regulation of Whaling on 30 June 1992. Post-Meeting Activities Scientiflc Research Permits — The United States has considered failure to follow resolutions adopted by the IWC on scientific research to be grounds for certification under two provisions of domestic law — the Packwood-Magnuson Amendment to the Mag- nuson Fishery Conservation and Management Act and the Pelly Amendment to the Fishermen's Protective Act. Certification under the Packwood-Magnuson Amendment mandates an immediate 50 percent reduction in the offending nation's fishery allocation from U.S. waters. Under the Pelly Amendment, the President has discretion to impose economic sanctions by restricting imports of fish and fish products into the United States from the certified nation. At past meetings, the IWC adopted a series of resolutions asking Japan to refrain from and reconsid- er authorizing the lethal take of Antarctic minke whales for research purposes. Despite these resolu- tions, Japan took 272 whales during the 1987/1988 season, 241 whales during the 1988/1989 season, 330 during the 1989/1990 seasons, and 327 minke whale during the 1990/1991 season. As noted in past Annual Reports, the Secretary of Commerce certified Japan under the Packwood- Magnuson and Pelly Amendments on 9 February 1988 for authorizing a research take. On 6 April 1988, the President directed the Secretary of State to withhold 100 percent of Japan's allocation of fish from U.S. waters pending further review. After each annual meeting of the IWC in 1988, 1989, and 1990, U.S and Japanese officials and scientists have met to discuss revisions or reconsideration of the Japanese research whaling program. Despite disapproval of the technical merits of the program by the IWC, Japan has carried out its research program and killed South- em Hemisphere minke whales. As mentioned above, the IWC noted that Japan's 1991 research proposal was essentially a continuation of the previous program that failed to meet established criteria for lethal whale research programs. The IWC again adopted a resolution calling on Japan to recon- sider its research program take of up to 330 minke whales from Area IV of the Antarctic. Following the 1991 IWC meeting, Japanese offi- cials and scientists presented U.S. officials with a revised scientific whaling research proposal and, as m previous years, asked that it be reviewed by U.S. scientists before it was submitted to the IWC. Princi- pal changes in the program included the addition of two sighting vessels (for a total of five vessels) for abundance surveys. The Japanese scientists also agreed that, given the number of animals to be taken, they would be able to calculate only average mortality rates rather than age-specific mortality rates, which had been one of the major objectives of its research. Members of the Marine Mammal Commission's Committee of Scientific Advisors and other U.S. scientists reviewed the revised Japanese research proposal. The reviewers concluded that: (1) the revised program continued to suffer firom technical inconsistencies that had been noted in reviews of previous Japanese proposals; (2) it failed to reflect progress towards addressing the concerns identified by the IWC Scientific Committee; and (3) it was not clear whether the proposed objectives would contrib- ute significant information to the IWC conservation program, particularly with respect to information 114 Chapter IV — International needed to make use of the revised management proce- dure. By letter of 6 November 1991, the IWC Secretariat notified member nations that Japan had provided a revised research plan for the 1990/ 1991 field season. As noted in previous Annual Reports, the Secretary of Commerce certified Norway in 1986 under the Pelly and Packwood-Magnuson Amendments for exceeding quotas adopted by the IWC for North Atlantic minke whales. The President chose not to impose sanctions against Norway under the Pelly Amendment because the Norwegian Government announced its intent to suspend commercial whaling indefinitely after 1987, thereby demonstrating efforts to bring its whaling program into conformance with the IWC conservation program. At the 1988 IWC meeting, Norway submitted a scientific research proposal involving the killing of 35 minke whales in the North Atlantic. After reviewing the proposal, the IWC adopted a resolution expressing a majority view that its criteria for research involving the killing of whales had not been fully satisfied and calling upon Norway to refrain firom issuing a special permit. Although Norway took 29 minke whales that summer, the U.S. Secretary of Commerce withheld certification in view of Norway's intention to modify its research program to better reflect the advice of the IWC. By the time of the 1989 IWC meeting, the program was not significantly improved and a resolu- tion was again adopted calling on Norway to reconsid- er its lethal research catches. After the meeting, Norway issued a special permit for the research, allowing the take of 17 minke whales. In light of Norway's action, the United States began to prepare a certification action. Norwegian and U.S. officials met in November 1989 to review Norway's research program and to discuss Norway's intentions in view of the pending certification. On 3 January 1990, the Marine Mammal Commission provided the National Oceanic and Atmospheric Administration with a summary of actions regarding Norway's research whaling, noting that certification was justified. On 9 February 1990, the Secretary of Commerce advised Norway's Ministry of Foreign Affairs that, if Norway subsequentiy decided to propose a lethal take of whales in 1990 and if the IWC continued to find that the research proposal failed to satisfy all applicable research criteria, Nor- way would be certified. At its 1990 meeting, the IWC adopted a resolution noting that Norway's proposed take of five North Atlan