Marine Mammal Commission Annual Report to Congress 1995 Marine Mammal Commission 1825 Connecticut Avenue, N.W. Washington, D.C. 20009 29 February 1996 Os IS Ss Ji co- : _d : -d = r- I So = o ssm Marine Mammal Commission Annual Report to Congress 1995 Marine Mammal Commission 1825 Connecticut Avenue, N.W. Washington, D.C. 20009 29 February 1996 Table of Contents List of Tables iii List of Figures iii Executive Summary v I. Introduction 1 Personnel 1 Funding 1 II. Amendments to the Marine Mammal Protection Act and Related Legislation 3 Marine Mammal Protection Act 3 Endangered Species Act 5 Magnuson Fishery Conservation and Management Act 7 III. Species of Special Concern 9 Florida Manatee 9 Hawaiian Monk Seal 19 Steller Sea Lion 29 Harbor Seals in Alaska 35 Northern Fur Seal 38 Pacific Walrus 43 Sea Otter 49 Northern Right Whale 56 Humpback Whale 62 Bowhead Whale 67 Gray Whale 70 Vaquita 73 Gulf of Maine/Bay of Fundy Harbor Porpoise 76 Beluga Whale 83 Polar Bear 86 IV. Marine Mammal-Fisheries Interactions 89 Implementation of the New Incidental-Take Regime for Commercial Fisheries 89 The Tuna-Dolphin Issue 99 Pinniped-Fishery Interactions 109 The Gulf of Maine Ecosystem 113 V. International Aspects of Marine Mammal Protection and Conservation 115 The Compendium of Treaties and International Agreements 115 Improving Management of Marine Living Resources 116 International Whaling Commission 120 Conservation and Protection of Marine Mammals in the Southern Ocean 126 Convention on International Trade in Endangered Species of Wild Fauna and Flora 137 VI. Activities Related to Marine Mammals in the Arctic 139 Arctic Environmental Protection Strategy 139 Agreements Related to Polar Bears 142 Polar Bear Trophy Imports 147 Agreements Related to Walruses 152 The Bering Sea Ecosystem 153 VII. Marine Mammal Strandings and Die-Offs 157 Unusual Mortality Events in 1995 157 The Regional Marine Mammal Stranding Networks 158 Response to Unusual Mortality Events 159 The Possible Role of Marine Pollution 160 VIII. Impacts of Marine Debris 161 Biological Impacts of Marine Debris 161 Derelict Fishing Gear 162 The Marine Entanglement Research Program 166 Annex V of the International Convention for the Prevention of Pollution from Ships 167 IX. Outer Continental Shelf Oil and Gas Exploration and Development 173 Proposed Offshore Lease Sales 173 X. Research and Studies Program 179 Survey of Federally-Funded Marine Mammal Research 179 Marine Mammal Workshops and Planning Meetings 179 Commission-Sponsored Research and Study Projects 180 XI. Permits and Authorizations to Take Marine Mammals 189 Implementation of Permit-Related Amendments 189 Permit Application Review 191 Permit-Related Litigation 192 Acoustic Thermometry of Ocean Climate Program 194 Small-Take Authorizations 198 XII. Marine Mammals in Captivity 205 Care and Maintenance Standards 206 Foreign Facilities 207 Swim-with-the-Dolphin Programs 208 Appendix A: Marine Mammal Commission Recommendations in 1995 209 Appendix B: Reports of Commission-Sponsored Activities Available from the National Technical Information Service 219 Appendix C: Selected Literature Published Elsewhere Resulting from Commission-Sponsored Activities 227 List of Tables Table 1. Marine mammal species and populations listed as endangered or threatened under the Endangered Species Act and depleted under the Marine Mammal Protection Act, as of 31 December 1995 10 Table 2. Known manatee mortality in the southeastern United States (excluding Puerto Rico) reported through the manatee salvage and necropsy program, 1978-1995 11 Table 3. Steller sea lion population estimates, 1960s to 1994 30 Table 4. Estimated take of Steller sea lions, 1992-1994 34 Table 5. Subsistence harvest levels for northern fur seals in the Pribilof Islands, 1985-1995 . . 40 Table 6. Estimated catch of Pacific walruses in Alaska and total reported catch of walruses in Russia, 1980-1995 46 Table 7. California sea otter population counts by the Fish and Wildlife Service and the California Department of Fish and Game, 1982-1995 50 Table 8. Quotas and number of bowhead whales taken by Alaska Eskimos, 1973-1995 69 Table 9. Estimated incidental kill of dolphins in the tuna purse seine fishery in the eastern tropical Pacific Ocean, 1972-1995 100 Table 10. Estimated U.S. and foreign dolphin mortality, kills per set, sets on dolphins, and percent observer coverage 1988-1995 102 Table 1 1 . The number and percentage of marine species worldwide with documented marine debris entanglement and ingestion records by species group 163 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 168 List of Figures Figure 1 . The Hawaiian Archipelago 20 Figure 2. Range and breeding islands of the northern fur seal 38 Figure 3. Range of the Pacific walrus 44 Figure 4. Process by which permit applications to take marine mammals are reviewed 192 in EXECUTIVE SUMMARY This is the 23rd Annual Report of the Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals. The Commission was established under Title II of the Marine Mammal Protection Act of 1972 to provide an independent source of policy and program guidance to Congress, the Executive Branch, and Federal agencies on domestic and international activities affecting marine mammal conservation. The purpose of this report is to provide timely information on marine mammal-related issues and events to Congress, Federal and state agencies, public interest groups, the academic community, private citizens, and the international community. When combined with previous annual reports, it provides a historical record of the nation's progress in developing policies and programs to conserve marine mammals and their habitat. To ensure factual accuracy, the draft report was provided to relevant federal and state agency representatives and other involved persons for comment. The contents of the report are briefly described below. Introduction (Chapter I) Members of the Commission, its Committee of Scientific Advisors on Marine Mammals, and staff are listed in this chapter along with a brief summary of the Commission's recent funding history. The Commission's fiscal year 1995 appropriation was $1,384,000. Reauthorization of the Marine Mammal Protection Act and Related Legislation (Chapter II) Federal actions to conserve marine mammals are guided by several key laws, the most important of which is the Marine Mammal Protection Act of 1972. In 1994 Congress amended that Act, reauthorizing its funding provisions through 1999 and making certain other changes. Perhaps the most significant amendments are those to establish a new regime for managing interactions between individual marine mammal stocks and commercial fisheries. In part, they call for assessments of the status of each marine mammal stock in U.S. waters and for measures to reduce the bycatch that may be impacting marine mammal stocks determined to be strategic by virtue of their reduced or declining status. Other significant amendments change Federal responsibility for regulating the care and maintenance of captive marine mammals, streamline permitting processes for scientific research and for the take of small numbers of marine mammals by harassment incidental to various other human activities, provide for importing polar bear hunting trophies from Canada, and require analyses of the health and stability of marine ecosystems in the Gulf of Maine and the Bering Sea. Chapter II provides an overview of these changes and identifies sections of the report that discuss actions by the Commission and others to implement the amendments. Two other laws of particular importance to marine mammal conservation are the Endangered Species Act and the Magnuson Fishery Conservation and Management Act. Funding provisions in these Acts expired in 1992 and 1993, respectively. In 1995 Congress considered bills to amend and reauthorize these Acts, but no legislation was enacted. Amendments considered during 1995 that would affect marine mammals are discussed briefly. Species of Special Concern (Chapter III) The Marine Mammal Commission pays particular attention to marine mammal species and populations that have special conservation needs. Chapter III discusses activities by the Commission and others in 1995 to address these needs for several marine mammal species, including Florida manatees, Hawaiian monk seals, Steller sea lions, northern right whales, and Gulf of Maine harbor porpoises. Florida Manatees — Florida manatees are threatened by high levels of mortality, a third of which are human-related, and habitat destruction. In 1995, 203 dead manatees, the second highest annual total ever recorded, were found in the southeastern United States. Collisions with boats and entrapment in water control structures (i.e., flood gates and navigation locks) are the leading human causes of manatee mortality and accounted for 43 and 8 deaths, respectively, in 1995. The Commission helped establish a cooperative Federal-state partnership that now forms the basis of efforts to address these and other manatee recovery issues. The manatee recovery program has become a model for other species recovery programs. To reduce vessel-related manatee deaths, the State of Florida began work in 1989 to develop boat speed rules in 13 key Florida counties. Work to implement these rules continued in 1995. Although it is too soon to judge their effectiveness, vessel-related manatee deaths since 1989 have been relatively stable after a steady increase in the 1980s. The State of Florida, the Army Corps of Engineers, and the South Florida Water Management District also made encouraging progress in 1995 to develop pressure-sensitive gate-reversing mechanisms to prevent manatee entrapment in water control structures. Progress was also made in 1995 to complete a revised Florida manatee recovery plan and to test a new approach for returning long-term captive manatees to the wild. A potential problem for the recovery program arose late in 1995 when the National Biological Service had to consider substantial cuts in its manatee research program to meet proposed agency budget reductions. The reductions could impede the flow of information on the status and ecology of Florida manatees needed to make informed management decisions. Hawaiian Monk Seals — Hawaiian monk seals are one of the world's most endangered seals. Sensitive to human disturbance, they occur almost exclusively on and around small, remote islets in the Northwestern Hawaiian Islands. The number of Hawaiian monk seals has decreased significantly in recent years for reasons that are not certain. However, recovery prospects in some areas were improved by recent decisions to close a Coast Guard LORAN station on Kure Atoll and a Naval Air Station on the Midway Islands — two of the species' six vi major pupping sites. To enhance recovery, the National Marine Fisheries Service increased its efforts in 1995, and the Commission held a monk seal recovery program planning meeting to develop recommendations to involved agencies. A major focus of attention in 1995 was on restoring the monk seal breeding colony on the Midway Islands. The Navy took steps to clean up contaminants and wildlife hazards from its air station, to transfer ownership of the Islands to the Fish and Wildlife Service for use as a national wildlife refuge, and to develop a funding proposal under the Department of Defense Legacy Program to move rehabilitated monk seals to Midway. Navy efforts to clean up and transfer Midway proceeded well, but the proposal to move seals to Midway, while given high priority, was not funded because late in 1995 funding for the program was rescinded. Another important issue in 1995 was assessing the effect of lobster fishing on seal prey at French Frigate Shoals. The largest component of the species' decline has been at this site and appears to be food-related. Other matters receiving attention were expanding and improving efforts to rehabilitate underweight monk seals taken from French Frigate Shoals and reducing attacks by adult male seals that have caused death and serious injuries to female and juvenile seals at Laysan Island. Steller Sea Lions — Steller sea lions, currently listed as threatened under the Endangered Species Act, have experienced the most extensive decline of any marine mammal in U.S. waters over the past 30 years. Recent studies indicate there are two stocks of Steller sea lions. The eastern stock ranges from the central Gulf of Alaska to California and appears stable. The western stock, which once included 90 percent of all Steller sea lions, ranges from the central Gulf of Alaska to Japan and has declined 80 percent from 1960 levels. Reduced availability of prey, which includes fish species taken commercially, is hypothesized to be the leading cause of the decline. In 1995 the National Marine Fisheries Service proposed to reclassify the western stock as endangered. The Commission supported the Service's reclassification proposal and recommended actions to better assess the causes of the decline and to develop possible management actions. The Service also completed assessments for both Steller sea lion stocks and initiated efforts to develop a co-management agreement with Alaska Natives who take Steller sea lions for subsistence purposes. Northern Right Whales — The most endangered marine mammal in U.S. waters is the northern right whale. The largest surviving population, numbering little more than 300 animals, occurs seasonally in three locations off the U.S. Atlantic coast and two areas off Canada. One- third of this population's known mortality is attributed to two human causes — collisions with ships and entanglement in fishing gear. At the recommendation of the Commission, the National Marine Fisheries Service completed a recovery plan in 1994. To help implement its provisions, the Service established two regional interagency teams — a southeast team to protect whales in a winter calving area off Florida and Georgia and a northeast team to protect whales on two summer feeding areas. In 1995 the southeast team continued to coordinate a seasonal early - vu warning aerial survey network to alert ships in transit of the presence of right whales. The northeast team met several times in 1995 to consider a similar early-warning network in the northeast and options to seasonally limit fishing gear known to entangle whales in high-use right whale habitats. Little progress was made. Gulf of Maine Harbor Porpoises — The largest incidental take of any cetacean in U.S. waters is the catch of harbor porpoises in the sink gillnet fishery off New England. Estimated take levels ranged between 1,200 and 2,900 porpoises per year during the early 1990s. Additional animals from the same stock are taken in gillnet fisheries in the Bay of Fundy, Canada, and in coastal waters between New York and North Carolina. The total take is believed to exceed the stock's sustainable replacement level and, with no measures in place to reduce the take, the National Marine Fisheries Service proposed listing the stock as threatened in 1993. In 1992 fishermen and scientists supported by the Service began testing acoustic devices to reduce porpoise bycatch. Tests late in 1994 were promising and fishing was permitted in several otherwise closed areas by vessels using pinger-equipped nets in 1995. Other management efforts, however, were less successful. The New England Fishery Management Council, at the request of the Service, recommended time-area closures for sink gillnets; these were instituted in spring 1994 in an attempt to reduce take levels by 20 percent. They apparently did not prevent a substantial increase in bycatch levels in 1994. In 1995 the Service was able to complete only preliminary analyses of 1994 bycatch data, and the delay contributed to a lag in instituting stronger measures in 1995. In 1995, pursuant to the 1994 amendments to the Marine Mammal Protection Act, the Service completed a stock assessment for Gulf of Maine harbor porpoises. It concluded that the stock's potential biological removal level is 403 porpoises a year and that the stock is a strategic stock. Therefore late in 1995 the Service took steps to convene a take reduction team. The team will have six months to develop a recommended plan to reduce incidental-take levels so that total human-caused mortality does not exceed 403 porpoises per year. Statutory time frames for implementing the plan call for measures to be in place early in 1997. Marine Mammal-Fisheries Interactions (Chapter IV) Marine mammals are caught and killed incidentally in commercial fisheries, damage fishing gear and caught fish, and compete with fishermen for fish and shellfish. In 1994 the Marine Mammal Protection Act was amended to establish a new regime to govern the incidental take of marine mammals in fisheries. The regime requires development of stock assessments for each marine mammal stock in U.S. waters to provide a scientific basis for management actions, a system for classifying individual fisheries by the frequency with which they take marine mammals, registration and reporting requirements for fishermen, and the development of measures to reduce incidental taking to specified levels. In consultation with the Commission and others, the National Marine Fisheries Service and the Fish and Wildlife Service developed, and in 1995 completed, stock assessments for 145 viii and 8 marine mammal stocks, respectively. Also in consultation with the Commission and others, the National Marine Fisheries Service developed regulations in 1995 to classify fisheries by incidental-take levels and took steps to develop take reduction plans in 1996 for certain strategic marine mammal stocks most affected by fisheries. Exempted from the new incidental-take regime is the eastern tropical Pacific purse seine fishery for yellowfin tuna. The incidental take of dolphins in this fishery, which was once as high as 500,000 dolphins annually, has been reduced to less than 5,000. The fishery has been and continues to be subject to separate provisions of the Act and to management under an international program. In 1995 legislation was considered to amend the Act to place U.S. tuna fishermen on an equal footing with foreign fishermen and to recognize the success of the international program in reducing dolphin mortality. In certain areas, predation by seals and sea lions has affected recovery of depleted salmon stocks or interfered with aquaculture operations. The 1994 amendments authorize the killing of individual animals contributing to such problems when other possible solutions prove ineffective. In 1995 actions were considered to protect an endangered steelhead trout run in Seattle, Washington, from California sea lion predation. Steps also were taken to assess interactions between harbor seals and aquaculture operations in the Gulf of Maine. International Aspects of Marine Mammal Protection and Conservation (Chapter V) The Marine Mammal Protection Act directs the Commission to advise the Secretary of State and other Federal officials on policies and international arrangements for the protection and conservation of marine mammals. In response to this directive, the Commission in 1995 initiated efforts to update the compendium of marine-related treaties and international agreements published in 1994; completed a series of workshops and studies to determine steps that can be taken to improve conservation and management of wild living resources worldwide; provided advice to the U.S. Commissioner to the International Whaling Commission on matters related to implementation of the International Convention for the Regulation of Whaling; and worked with the Department of State, the National Oceanic and Atmospheric Administration, the National Science Foundation, and other Federal agencies and non-governmental organizations to further conservation of marine mammals and other components of the Antarctic marine ecosystem. These and related activities are described in this chapter. Activities Related to Marine Mammals in the Arctic (Chapter VI) Many species of marine mammals can be affected by activities in the Arctic. This chapter describes actions by the Commission and others in 1995 to implement the Arctic Environmental Protection Strategy adopted by eight Arctic nations in 1991; develop cooperative agreements to govern conservation of the polar bear and walrus populations shared by the United States and the Russian Federation; implement the provisions of the 1994 Marine Mammal Protection Act amendments authorizing the Secretary of the Interior to issue permits to import ix sport-hunted polar bear trophies from Canada; and determine the causes of and steps that might be taken to reverse the alarming declines in populations of northern fur seals, Steller sea lions, harbor seals, and piscivorous birds that have occurred in parts of the Bering Sea and the Gulf of Alaska since the mid-1970s. Marine Mammal Strandings and Die-Offs (Chapter VII) Since the late 1970s there has been an apparent increase in the incidence of unusual marine mammal mortalities throughout the world. In 1995 there were two unusual mortality events reported. One involved more than 200 common dolphins along the northwest coast of the Gulf of California, Mexico. Cyanide compounds were found in liver and lung samples taken from the dolphins, but a possible source was not identified. The other involved 10 sea otters found in a seven-day period in July in central California. The cause of these deaths could not be determined. In response to the deaths of hundreds of bottlenose dolphins along the U.S. mid- Atlantic coast in 1987-1988, Congress enacted the Oceans Act of 1992. This Act added a new title (Title IV) to the Marine Mammal Protection Act, entitled Marine Mammal Health and Stranding Response. This new section directs the Secretary of Commerce to establish a working group to provide advice on measures necessary to better detect and respond to future unusual mortality events and to develop a contingency plan for guiding response to such events. The working group has been established and at the end of 1995 the required contingency plan had been completed for publication in 1996. Impacts of Marine Debris (Chapter VIII) Lost and discarded plastic debris, such as ropes, bags, and bottles, has become a serious form of marine pollution. Through entanglement and ingestion, such debris can be a significant source of mortality and serious injury for marine mammals, seabirds, sea turtles, fish, and shellfish. As these impacts came to light, the Commission took a leadership role in initiating responsive domestic and international action in the 1980s, and it has continued to help identify needed efforts. Recent analyses by the Commission indicate that the most hazardous items are rope, line, and derelict gear from commercial fisheries. A 1995 Commission review of information on the catch of marine life in derelict gear (i.e., ghostfishing) indicates that, in addition to posing a hazard to marine mammals, there could be significant impacts to some commercially valuable shellfish and fish resources. The Commission has identified actions needed to assess and mitigate such impacts, but to date little has been done to implement them. The principal source of Federal support for work, such as organizing national volunteer beach clean-ups, initiating port programs to recycle and dispose of old fishing gear, and disentangling Hawaiian monk seals, has been the National Marine Fisheries Service's Marine Entanglement Research Program. In 1995, as in past years, the Commission helped identify program priorities. Unfortunately, late in 1995 appropriation of funds to support the program was discontinued. Loss of the program will substantially reduce efforts to address marine debris pollution in 1996 and beyond. In other developments, changes recommended by the Coast Guard were adopted to strengthen the international convention governing the discharge of garbage by ships (i.e., Annex V of the International Convention for the Prevention of Pollution from Ships). Also, the Navy continued efforts to bring its ships into compliance with Annex V by statutory deadlines. Outer Continental Shelf Oil and Gas Exploration and Development (Chapter IX) Marine mammals may be affected by oil spills, routine discharges, noise, vessel and air traffic, and other perturbations caused by activities associated with offshore oil and gas development. The Minerals Management Service has lead responsibility for ensuring that such activities do not adversely affect marine mammals, their habitat, or their availability to be taken for subsistence purposes by Alaska Natives. In 1995 the Commission commented to the Service on plans for two proposed oil and gas lease sales in Alaska and four proposed lease sales in the Gulf of Mexico. Research and Studies Program (Chapter X) The Marine Mammal Protection Act directs the Marine Mammal Commission to undertake such studies as it deems necessary to further the purposes of the Act. In 1995 the Commission's research budget was about $100,000 and was used, in part, to begin updating the Commission's 1993 compendium of international treaties and agreements; prepare and publish a report describing the results of the Commission's 1994 workshop to update principles for wild living resource conservation; help curate a photo-identification catalogue of North Atlantic humpback whales; develop a database and suggested data collection protocol for harbor seals hunted for subsistence purposes by Natives in Alaska; assess new and developing research technologies that might be applied to further marine mammal research; monitor recently reestablished gray seal colonies in New England; evaluate key baleen whale habitat components that are particularly important for managers to recognize and protect; help complete and publish the results of studies left unfinished by the death of Francis H. Fay, Ph.D., an eminent marine mammal biologist; and carry out a survey of federally-funded marine mammal research. The Commission also received funds in 1995 from the National Marine Fisheries Service, the Navy, and the State Department to convene a technical workshop on the use of sound generators and reflectors to reduce marine mammal interactions with fishing gear, to assess the probability of sighting right whales from aerial survey planes operating off Georgia and northern Florida, and to help update the Commission's compendium of treaties and agreements. XI Permits and Authorizations To Take Marine Mammals (Chapter XI) As exceptions to the Marine Mammal Protection Act's moratorium on taking marine mammals, permits may be obtained to take marine mammals for scientific research, public display, and enhancing marine mammal populations. These are issued by the National Marine Fisheries Service and the Fish and Wildlife Service, in consultation with the Commission. Amendments to the Act in 1994 establish a new permit category to allow harassment during commercial and educational photography and also streamline the process for authorizing scientific research that involves only non-injurious disturbance. In 1995 the Commission reviewed and commented on 34 permit applications and 45 requests for permit modifications. The activities of 17 researchers were authorized under the streamlined general authorization for scientific research. Particular attention was given to permits for research to assess the possible effects of the Acoustic Thermometry of Ocean Climate (ATOC) Program, which involves powerful underwater sound sources to measure broad ocean basin temperature change. The first application for a photography permit was also received. The Marine Mammal Protection Act also authorizes the National Marine Fisheries Service and the Fish and Wildlife Service to issue regulations for authorizing the take of small numbers of marine mammals incidental to activities other than commercial fishing, provided the taking would have a negligible impact on marine mammal stocks. The 1994 amendments provided a streamlined process when only harassment is involved. In 1995 small-take authorizations were issued for rocket launches at Vandenberg Air Force Base in California, seismic surveys off California, oil and gas exploration off Alaska, explosive removal of old oil and gas platforms in the Gulf of Mexico, and a dock construction project in the State of Washington. Marine Mammals in Captivity (Chapter XII) The handling, care, treatment, and transportation of captive marine mammals is regulated by the Animal and Plant Health Inspection Service under the Animal Welfare Act. In 1994 the Marine Mammal Protection Act was amended to reduce the authority of the National Marine Fisheries Service and the Fish and Wildlife Service over such matters. In light of the changes, the Commission offered to convene an interagency panel to review the Animal and Plant Health Inspection Service's marine mammal program to identify staffing and funding needs. It also provided the Service with a draft report to guide the review. The review has not yet been undertaken. In 1995 the Animal and Plant Health Inspection Service pursued two new rulemaking efforts. In January it published proposed rules to regulate swim-with-the-dolphin programs (previously regulated by the National Marine Fisheries Service under the Marine Mammal Protection Act). Final rules are expected in 1996. The Service also began a negotiated rulemaking process to update standards for the care and maintenance of marine mammals. The xii first meeting of the negotiated rulemaking advisory committee was held in September 1995 and a final meeting is scheduled for spring 1996. The export of marine mammals to foreign countries has been controversial because standards for foreign facilities are often lower than those in the United States, and animals may be subjected to inhumane conditions. Amendments to the Marine Mammal Protection Act enacted in 1994 require that permits to export live marine mammals be granted only if foreign facilities meet standards comparable to U.S. requirements. The Commission has provided advice to the Animal and Plant Health Inspection Service on how best to implement the requirement, including a recommendation that comparability determinations be based in part on inspection of the foreign facilities in question. Appendices Appendix A lists recommendations made by the Marine Mammal Commission in 1995. Appendix B lists Commission-sponsored reports published by the National Technical Information Service. Appendix C lists citations for other papers and reports, which also result from Commission-sponsored work, that have been published elsewhere. Xlll Chapter I INTRODUCTION This is the 23rd Annual Report of the Marine Mammal Commission, covering the period 1 January through 31 December 1995. 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 Commissioners be knowledgeable in marine ecology and resource management. At the end of 1995 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 Vera Alexander, Ph.D., University of Alaska, Fairbanks. During 1995 Jack W. Lentfer, Homer, Alaska, completed his term of service on the Commission. 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; Gregory K. Silber, Ph.D., Deputy Scientific Program Director; Alison G. Kirk, Permit Officer; Nancy L. Shaw, Administrative Offi- cer; Lisa R. Jackson, Staff Assistant in charge of publications; and Darel E. Jordan and Susan E. Holcombe, Staff Assistants. Anne K. Kiley served as Administrative Officer from 1990 to 1995, when she moved from the area. The Commission Chairman, with the concurrence of other Commissioners, appoints persons to the nine- member Committee of Scientific Advisors on Marine Mammals. Committee members must by statute be scientists who are knowledgeable in marine ecology and marine mammal affairs. At the end of 1995 its members were Robert L. Brownell, Jr., Ph.D., (Chairman), National Marine Fisheries Service, La Jolla, California; Daryl J. Boness, Ph.D., Smithsonian Institution, Washington, D.C.; Daryl P. Domning, Ph.D., Howard University, Washington, D.C.; Joseph R. Geraci, V.M.D., Ph.D., National Aquarium, Baltimore, Maryland; Steven K. Katona, Ph.D., College of the Atlantic, Bar Harbor, Maine; Lloyd F. Lowry, Alaska Department of Fish and Game, Fair- banks; Bruce R. Mate, Ph.D., Oregon State Universi- ty, Newport; Jeanette A. Thomas, Ph.D., Western Illinois University, Macomb; and Judith E. Zeh, Ph.D., University of Washington, Seattle. During 1995 Marc Mangel, Ph.D., University of California, Davis; William Medway, D.V.M., Ph.D., University of Pennsylvania, Philadelphia; and Tim D. Smith, Ph.D., National Marine Fisheries Service, Woods Hole, Massachusetts, completed their terms of service on the Committee. During 1995 Mr. Caleb Pungowiyi, President of the Inuit Circumpolar Conference and resident of Anchorage and Kotzebue, Alaska, served as Special Advisor to the Marine Mammal Commission on Native Affairs. Funding Appropriations to the Marine Mammal Commis- sion's in the past five fiscal years have been: FY 1991, $1,153,000; FY 1992, $1,250,000; FY 1993, $1,260,000; FY 1994, $1,290,000; and FY 1995, $1,384,000. As of 31 December 1995 the Commission's appropriation for FY 1996 had not yet been determined. Chapter II REAUTHORIZATION OF THE MARINE MAMMAL PROTECTION ACT AND RELATED LEGISLATION Several Federal statutes govern activities that affect marine mammals and their ecosystems. Foremost among them is the Marine Mammal Protection Act. Also important are the Endangered Species Act of 1973 and the Magnuson Fishery Conservation and Management Act of 1976. The Marine Mammal Protection Act provides that the primary objective of marine mammal management should be to maintain the health and stability of the marine ecosystem. Secondarily, whenever consistent with this objective, it should be the goal to obtain an optimum sustainable population of each stock, keeping in mind the carrying capacity of the habitat. In 1994 the Marine Mammal Protection Act was amended and reauthorized for a six-year period. A brief summary of the amendments and steps taken to implement them is provided below. As noted in Chapter III, several marine mammal species are listed as endangered or threatened under the Endangered Species Act. This Act provides additional protection to these species, including the requirement that actions taken, funded, or authorized by Federal agencies not be likely to jeopardize the species' continued existence or destroy or adversely modify the species' critical habitat. The primary goal of the Endangered Species Act is to restore listed species to a point where the Act's protection is no longer needed. The Magnuson Act establishes the framework for managing U.S. fishery resources. As such, it has several implications for marine mammals that may compete with fishermen for the same fish and shellfish resources or that may be taken incidentally. Authorization for the Endangered Species Act expired at the end of fiscal year 1992, and autho- rization for the Magnuson Act expired at the end of fiscal year 1993. Although bills were introduced in Congress to reauthorize these statutes, no final action was taken. Efforts undertaken during 1995 to effect amendment and reauthorization of these measures are discussed below. Marine Mammal Protection Act The Marine Mammal Protection Act was originally enacted in 1972. Since then, it has been reauthorized and amended several times, most recently in 1994. As discussed in the previous annual report, the 1994 amendments (Public Law 103-238) reauthorize appro- priations through fiscal year 1999 for the Marine Mammal Commission and the Departments of Com- merce and the Interior (the agencies primarily respon- sible for implementing the Act) and make substantial changes to many of its provisions. A summary of the amendments is included in Appendix D in Commis- sion's annual report for 1994. The most significant amendments establish a new regime to govern the take of marine mammals inci- dental to commercial fishing operations. The new regime replaces the interim exemption that had been in place since 1988. Three new sections were added to the Act to address interactions between commercial fisheries and marine mammals. Section 117 requires the preparation of marine mammal stock assessments to provide a scientific basis for the new incidental-take regime. The assessments, among other things, iden- tify strategic stocks for which take reduction plans are needed. Section 118 sets forth requirements for the new incidental-take regime. It directs the National Marine Fisheries Service to publish a list of commercial MARINE MAMMAL COMMISSION - Annual Report for 1995 fisheries classified according to the frequency with which they kill or seriously injure marine mammals. Various requirements (e.g, a registration requirement and a requirement to carry observers) apply, depend- ing on a fishery's classification. The amendments focus resources on the most pressing marine mammal- fishery interaction problems - those involving strate- gic stocks. A take reduction plan is to be developed for each strategic stock experiencing frequent or occasional death or serious injury in a fishery. The new regime also includes a mechanism for authorizing a limited incidental take of marine mam- mals listed as endangered or threatened, something the interim exemption did not allow. Actions taken with respect to preparation of stock assessments, implemen- tation of the new incidental-take regime, and authori- zation of the incidental take of endangered or threat- ened species are discussed in various parts of Chapter III and in Chapter IV. Also discussed in Chapter IV is implementation of revised section 101(a)(4), which allows fishermen and others to employ certain non- lethal deterrence measures to prevent marine mam- mals from damaging gear, catch, or private property. The new section 120 addresses interactions between pinnipeds and fishery resources. It provides a mecha- nism for states to apply to the National Marine Fisher- ies Service to obtain authorization for the intentional lethal taking of pinnipeds in certain instances. Section 120 also directs the Service to investigate the impacts of growing sea lion and harbor seal populations on the recovery of salmonid stocks and on coastal ecosystems in Washington, Oregon, and California and to estab- lish a pinniped-fishery interaction task force to exam- ine problems involving pinnipeds and aquaculture projects in the Gulf of Maine. Implementation of these provisions is discussed in Chapter IV. Significant amendments to the Act's permit provi- sions were also enacted. Among other things, they limit oversight of captive care and maintenance issues under the Marine Mammal Protection Act, provide a streamlined mechanism to authorize scientific research that has the potential to disturb, but not injure, marine mammals, and add authority for issuing permits for educational or commercial photography. The Act's small-take provisions also were changed to streamline procedure for authorizing incidental take by harass- ment. These and other amendments affecting permits and marine mammal take authorizations are discussed in Chapter XI. A practical consequence of the amendment limiting Marine Mammal Protection Act oversight of captive marine mammals was an increase in the role played by the Animal and Plant Health Inspection Service under the Animal Welfare Act. Among other things, the Service assumed responsibility for regulating swim-with-the-dolphin programs. Activities with respect to captive marine mammals are discussed in Chapter XII. The 1994 amendments add a new permitting authority to allow polar bear trophies to be imported from Canada provided certain findings are made. This amendment and actions taken to implement it are discussed in Chapter VI. Section 1 10 of the Act was amended to require the Secretary of Commerce to convene a regional work- shop to assess human-caused factors affecting the health and stability of the Gulf of Maine marine ecosystem and to recommend a research and manage- ment program designed to restore or maintain that ecosystem. A provision was also added to require the Secretary to undertake a research program to monitor the health and stability of the Bering Sea marine ecosystem and to resolve uncertainties concerning the causes of observed declines in populations of marine mammals, seabirds, and other living resources. Actions related to the Gulf of Maine workshop are discussed in Chapter IV. Actions involving Bering Sea ecosystem studies are described in Chapter VI. In response to concerns that the Agreement on the Conservation of Polar Bears may not have been fully implemented by the United States and other parties, Congress amended section 113 of the Act to require the Secretary of the Interior to initiate reviews of domestic and international implementation. The amendments also directed the Secretary to initiate discussions with Russian officials in pursuit of a bilateral agreement to enhance cooperative research and management of the shared polar bear population. Actions with respect to these mandates are discussed in Chapter VI. Chapter II — Marine Mammal Protection Act and Related Legislation As discussed in Chapter IV, bills to amend the Act's tuna-dolphin provisions were introduced in both Houses of Congress. The only other bill introduced in 1995 to amend the Marine Mammal Protection Act was H.R. 74. That bill, introduced by Representative Porter Goss, would authorize states to reject permits allowing the take of marine mammals from protected state waters. Endangered Species Act The Endangered Species Act was last reauthorized in 1988 for a five-year period. Despite efforts over the past four years, Congress has yet to pass reauthor- izing legislation. At the heart of the reauthorization debate is the interplay between the protection afforded listed species and economic interests, including protection of private property rights. No fewer than 16 bills to amend the Endangered Species Act were introduced in Congress during 1995. Some bills were directed at specific aspects of the Act. For example, H.R. 571, S. 191, and S. 503 would establish a moratorium on new species listings until the Act is reauthorized. Other bills would provide compensation to landowners for losses result- ing from regulatory actions under the Act, amend the consultation requirements applicable to Federal actions, require a review and relisting of all listed species, require a review of the Act's impacts on hunting, fishing, and fish and wildlife management, and establish mechanisms to improve the flow of information between Federal and local governments. Other bills contained comprehensive amendments and reauthorizing language. The first such bill, S. 768, was introduced by Senator Slade Gorton on 9 May. The Gorton bill would revise the process for listing species by establishing formal peer review procedures for all proposals to list species or desig- nate critical habitat and by requiring consideration of captive-bred populations when making listing determi- nations. Also, the implications of listing would be changed by deferring application of the Act's protec- tion pending completion of a conservation plan for a species. The section 7 consultation process would be modified to allow Federal actions to proceed despite issuance of a "jeopardy" biological opinion, if reason- able and prudent alternatives would be inconsistent with the agency's primary mission, and to require preparation of risk assessment and cost/benefit analy- ses. Other key features of the Gorton bill would redefine "harm" to exclude habitat modification that does not directly kill or injure an identifiable member of an endangered species and add a policy statement to ensure reasonable use of private property and avoid any significant diminishment of property values. One provision of the Gorton bill of particular concern to the Commission would provide a broad exemption allowing the incidental take of listed marine species other than fish where the take results from otherwise lawful activities and occurs in the territorial sea or exclusive economic zone of the United States. Representatives Don Young and Richard Pombo introduced H.R. 2275 on 7 September. This bill, which draws on many of the elements of the Gorton bill, is the only Endangered Species Act bill to be ordered out of committee during 1995. Currently, the purposes of the Act include ecosys- tem conservation, conservation of listed species, and taking appropriate steps to achieve the purposes of international agreements related to endangered and threatened species. These would be revised under H.R. 2275, such that a primary purpose of the Act would be to provide a feasible and practical means of conserving listed species consistent with protecting the rights of private property owners and ensuring eco- nomic stability. Also, the specific goal to conserve ecosystems would no longer be recognized. In keeping with the revised statement of purposes, the Young-Pombo bill would prohibit any Federal action under the Endangered Species Act that dimin- ishes the value of any portion of privately owned property by 20 percent or more unless full compensa- tion is offered. If the diminution of value exceeds 50 percent, the Federal agency, at the owner's discretion, would be required to buy that portion of the property at fair market value. Any such compensation would be paid from the agency's annual appropriations. However, if the action arises from a requirement imposed by another agency (e.g., under a biological opinion issued by the Fish and Wildlife Service or the MARINE MAMMAL COMMISSION - Annual Report for 1995 National Marine Fisheries Service), then partial or full reimbursement from the agency imposing the require- ment could be sought. Other provisions of H.R. 2275 would exempt captive-bred wildlife from coverage under the Endan- gered Species Act, the Marine Mammal Protection Act, and other wildlife statutes if the progeny are not intentionally released to the wild. This could cause conservation problems for some listed species by allowing unrestricted imports and trade even when the captive breeding program is based on capturing parental stock from the wild at an unsustainable level. Listing decisions would be made subject to addi- tional review. Before proposing a listing, the Secre- tary would be required to solicit status information from the public for a minimum period of 180 days. Public hearings on the listing proposal would be mandatory in each state where the species occurs. Designation of critical habitat along with a species listing, however, would be made discretionary. In addition, all listing proposals would be subject to a formal peer review requirement. Findings of biologi- cal opinions issued under section 7 would also be subject to the new peer review requirements. Under H.R. 2275, once a species is listed, the Secretary would establish a conservation objective, ranging from recovery of the species to merely prohibiting intentional taking. A conservation plan to achieve the stated objective would then be prepared. Generally, incidental taking would not be prohibited and consultation would not be required until a conser- vation plan is adopted. Appropriations for activities under the Act would be authorized by the Young-Pombo bill through fiscal year 2001 at significantly increased levels. However, as is the current procedure, actual funding levels would be set through enactment of annual appropria- tions measures. Believing the Young-Pombo bill to be too sweep- ing, Representatives Wayne Gilchrest and Jim Saxton introduced more moderate proposals. Representative Gilchrest introduced H.R. 2374 on 21 September. Representative Saxton introduced H.R. 2444 on 29 September. Inasmuch as the Young-Pombo bill was reported out of House Resources Committee on 12 October, the fates of these bills is uncertain. On 26 October Senator Dirk Kempthorne intro- duced a package of three bills related to the Endan- gered Species Act. The primary bill, S. 1364, would amend and reauthorize the Act. The other two bills, S. 1365 and 1366, would amend the federal tax code to provide incentives for landowners to enter into conservation easement agreements to protect endan- gered species habitat. S. 1364 has many features in common with the Young-Pombo bill. The Kempthorne bill, however, has several unique provisions. The term "Secretary" would be redefined, effectively shifting Endangered Species Act responsibilities for marine species from the Department of Commerce to the Department of the Interior. The term "species" would be redefined so that subspecies and distinct vertebrate populations could be listed only if there is a complete lack of gene flow between population segments. Moreover, if a distinct population segment is listed, only minimal protection would be provided unless a special finding of national significance were made. The definition of an endangered species would be amended to require a showing that, without listing, the species would be placed on an irreversible course to extinction within 40 years. A threatened species would be one that would become an endangered species within 100 years without the protection afforded by the Act. The term "take" would also be redefined to eliminate those aspects that do not entail physical injury or capture (e.g., harassment and pursuit) and to restrict the types of habitat modification that would constitute a taking. The Kempthorne bill, like the Young-Pombo bill, would establish a right to compensation for the diminishment of property values resulting from Endangered Species Act activities. The right to compensation under the Kempthorne bill, however, would not be subject to a 20 percent threshold — any diminution in value would be compensable. Another unique feature of the Kempthorne bill would be the creation of a five-member Endangered Species Commission. Each member would be a recognized authority in one of five disciplines — botany, zoology, ecology, resource management, or Chapter II — Marine Mammal Protection Act and Related Legislation economics. Among other things, the commission would oversee establishment of assessment and planning teams to review listing proposals. At the end of 1995 Congressional schedules for further consideration of Endangered Species Act legislation were uncertain. Magnuson Fishery Conservation and Management Act The Magnuson Fishery Conservation and Manage- ment Act was last reauthorized in 1990 for a four-year period. Although reauthorizing legislation was considered during the 1993 and 1994 sessions of Congress, no bill was passed. Bills to reauthorize and amend the Magnuson Act were introduced in both Houses of Congress early in the 1995 session. On 4 January Senator Ted Stevens introduced S. 39 to reauthorize the Magnuson Act through 1999. The bill would also amend the Act to strengthen conserva- tion efforts and rebuild depleted fish stocks. Among other things, the amendments would require fishery management councils to define in each fishery man- agement plan what constitutes overfishing. The Secretary of Commerce would be required to report annually on the status of fisheries and to identify fisheries that are at or approaching overfished levels. Other measures included in the bill to address over- fishing are individual transferable quota systems and vessel buy-out programs. These approaches would reduce or limit fishing effort in overfished fisheries. The bill would require identifying essential habitat for all managed fisheries. It also would expand the authority of the Secretary and fishery management councils to make recommendations on Federal actions affecting such habitat. The Stevens bill would require fishery management plans to assess the level of bycatch in each fishery and to include measures to minimize waste and discards of unusable fish. In addition, the bill would encourage plans to provide incentives for fishermen to reduce bycatch. Other provisions of the bill would stream- line the process for approving fishery management plans and implementing regulations. The bill would also establish new procedures governing conflicts of interest involving members of fishery management councils. Several hearings to consider various aspects of S. 39 were held by the Senate Commerce Committee during 1995. Further action is expected in 1996, including introduction of a substitute bill. Congressman Don Young introduced H.R. 39 on 5 January 1995. While somewhat different than the Stevens bill at the outset, many of the differences were reconciled as H.R. 39 proceeded through the legislative process. An amended version of H.R. 39 was passed by the House of Representatives on 18 October 1995. If enacted, the bill would authorize appropriations to carry out the provisions of the Magnuson Act through fiscal year 2000. H.R. 39 would establish new requirements for fishery management plans. It would require fishery management plans to indicate the amount and species of bycatch and include conservation and management measures necessary to minimize bycatch. Each fishery management plan would be required to include a description of essential fishery habitat and set forth conservation and management measures necessary to minimize adverse impacts to that habitat caused by fishing. Under the House bill, a fishery management plan would also be required to include a measurable and objective determination of what constitutes overfishing in that fishery. Action by the Secretary of Commerce and the appropriate fishery management council would be required if it is determined that overfishing is occurring or has occurred. Definitions of "bycatch," "essential fishery habitat," and "over- fishing" are included in the bill. The bill would provide authority for limiting access to certain fisheries through establishment of individual quota systems. Such quotas would not be transfera- ble and user fees would be collected from quota holders. The bill would also amend provisions governing the operation of fishery management councils. Most notably, council members would be required to disclose their financial interests and recuse themselves from voting on matters in which such interests would be significantly affected. Chapter III 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 Department of Commerce, the Department of the Interior, and other agencies on actions needed to protect marine mammals. To help meet this charge, the Commission devotes special attention to particular- ly vulnerable species and populations. Such species may include marine mammals listed as endangered or threatened under the Endangered Species Act, or depleted under the Marine Mammal Protection Act (Table 1), as well as others species or populations facing special conservation challenges. During 1995 special attention was directed to a number of endangered, threatened, or depleted species or populations found in the United States and else- where. These include Florida manatees, Hawaiian monk seals, Steller sea lions, northern fur seals, sea otters, northern right whales, humpback whales, bowhead whales, and vaquitas. Other species not listed but which nonetheless received special attention in 1995 include harbor seals in Alaska, Pacific wal- ruses, gray whales, harbor porpoises in the Gulf of Maine, beluga whales, and polar bears. Florida Manatee (Trichechus manatus latirostris) The Florida manatee, one of two distinct subspe- cies of the West Indian manatee, occurs only in coastal waters and rivers in the southeastern United States. The other subspecies, the Antillean manatee (T. manatus manatus), occupies the remainder of the species' range in the Greater Antilles in the Caribbe- an, the east coast of Central America, and the north- east coast of South America. As herbivorous marine mammals, West Indian manatees feed on underwater grass beds, marsh grasses, and algae, and can exceed lengths of 3.5 meters (11.5 feet) and weights of 1,000 kilograms (2,200 pounds). Florida manatees exhibit a high degree of indepen- dence in their movements. In winter, when water temperatures fall below about 68 degrees, they aggre- gate at localized warm-water refuges, principally in the southern portions of their range. Preferred winter refuges for most animals include natural warm-water springs and heated outfalls from industrial facilities, such as power plants and paper mills. A few animals use warm-water refuges as far north as southern Georgia. Some animals also occur at the southern tip of Florida in the Florida Everglades where water temperatures stay above 68 degrees year-round. As water temperatures rise in spring, manatees begin to disperse throughout Florida, and by late spring and summer, some animals migrate hundreds of kilometers northward up the Atlantic coast or westward along the northern rim of the Gulf of Mexico at least as far as the Texas coast. The manatee population in the southeastern United States is the species' largest known concentration. In 1992, during a severe winter cold front when most manatees were thought to be at warm- water refuges, the State of Florida organized a two-day aerial survey of known winter manatee habitats in Florida and Georgia. The synoptic survey yielded a count of 1,856 animals with approximately equal numbers on the Atlantic and Gulf of Mexico coasts. Similar counts in 1991 and earlier in 1992 produced lower numbers. In January 1995 the Florida Department of Environmental Protection conducted a fourth survey, yielding a count of 1,443 animals, including 665 animals on the east coast and 778 animals on the west coast. Although lower counts were obtained, there was a general consensus that this was due to sampling variability rather than a decrease in population size. MARINE MAMMAL COMMISSION - Annual Report for 1995 Table 1. Marine mammal species and populations listed as endangered (E) or threatened (T) under the Endangered Species Act and depleted (D) under the Marine Mammal Protection Act, as of 31 December 1995 1 Common Name Manatees and Dugongs West Indian manatee Scientific Name Trichechus manatus Status Range E/D Amazonian manatee Trichechus inunguis E/D West African manatee Trichechus senegalensis T/D Dugong Dugong dugon E/D Otters Marine otter Lutra felina E/D Southern sea otter Enhydra lutris nereis T/D Seals and Sea Lions Hawaiian monk seal Monachus schauinslandi E/D Caribbean monk seal Monachus tropicalis E/D Mediterranean monk seal Monachus monachus E/D Guadalupe fur seal Arctocephalus townsendi T/D Eastern North, Central, and South America coasts and rivers from southeast United States to Brazil; Puerto Rico and other Greater Antilles Islands Amazon River basin of South America West Africa coasts and rivers; Senegal to Angola Northern Indian Ocean from Madagascar to Indo- nesia; Philippines; Australia; southern China; Palau Western South America; Peru to southern Chile Central California coast Hawaiian Archipelago Caribbean Sea and Bahamas (probably extinct) Mediterranean Sea; Atlantic coast of northwest Africa West coast of Baja California, Mexico, to southern California North Pacific Rim from California to Japan North Pacific Rim from Japan to California Lake Saimaa, Finland Changjiang (Yangtze) River, China Indus River and tributaries, Pakistan Northern Gulf of California, Mexico Eastern tropical Pacific Ocean Eastern tropical Pacific Ocean Atlantic coastal waters from New York to Florida North Atlantic, North Pacific Oceans; Bering Sea South Atlantic, South Pacific, Indian, and Southern Oceans Arctic Ocean and adjacent seas Oceanic, all oceans Oceanic, all oceans Oceanic, all oceans Oceanic, all oceans Oceanic, all oceans From Fish and Wildlife Service Regulations at 50 C.F.R. § 17.1 1 and National Marine Fisheries Service Regulations at §216.15. Northern fur seal Callorhinus ursinus D Steller sea lion Eumetopias jubatus T/D Saimaa seal Phoca hispida saimensis E/D 'hales, Porpoises, and Dolphins Baiji Lipotes vexillifer E/D Indus river dolphin Platanista minor E/D Vaquita Phocoena sinus E/D Northeastern offshore Stenella attenuata D spotted dolphin Eastern spinner dolphin Stenella longirostris orientalis D Mid-Atlantic coastal Tursiops truncatus D bottlenose dolphin Northern right whale Eubalaena glacialis E/D Southern right whale Eubalaena australis E/D Bowhead whale Balaena mysticetus E/D Humpback whale Megaptera novaeangliae E/D Blue whale Balaenoptera musculus E/D Finback or fin whale Balaenoptera physalus E/D Sei whale Balaenoptera borealis E/D Sperm whale Physeter catodon E/D 10 Chapter III — 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, 1978-1995 Flood Other Vessel- Gate and Human- Related Lock Related Perinatal Other Total Deaths Deaths Deaths! Deaths Deaths^ Deaths in Year No. (%) No. (%) No. (%) No. (%) No. (%) S.E. U.S. 1978 21 (25) 9(11) 1 (1) 10 (12) 43 (51) 84 1979 24 (31) 8(10) 9(12) 9(12) 28 (36) 78 1980 16 (25) 8(12) 2(3) 13 (20) 26 (40) 65 1981 24 (21) 2(2) 4(3) 13(11) 74 (63) 117 1982 20 (17) 3(3) 2(2) 14 (12) 78 (67) 117 1983 15 (19) 7(9) 5(6) 18 (22) 36 (44) 81 1984 34 (26) 3(2) 1 (1) 26 (20) 66 (51) 130 1985 35 (28) 3(2) 3(2) 23 (19) 59 (48) 123 1986 33 (26) 3(2) KD 27 (22) 61 (49) 125 1987 39 (33) 5(4) 4(3) 30 (26) 39 (33) 117 1988 43 (32) 7(5) 4(3) 30 (22) 50 (37) 134 1989 51 (29) 3(2) 5(3) 39 (22) 78 (44) 176 1990 49 (23) 3d) 4(2) 45 (21) 113(53) 214 1991 53 (30) 9(5) 6(3) 53 (30) 54 (30) 175 1992 38 (23) 5(3) 6(4) 48 (29) 70 (42) 167 1993 35 (24) 5(3) 7(5) 39 (27) 61 (41) 147 1994 51 (26) 16(8) 5(3) 46 (24) 76 (39) 194 1995* 43 (21) 8(4) 5(2) 56 (28) 91 (45) 203 t Includes deaths due to entanglement and ingestion of marine debris, drowning in shrimp nets, poaching, vandalism, etc. $ Includes deaths due to cold stress, other natural causes, and undetermined causes. * Figures for 1995 are preliminary. Source: Florida Department of Environmental Protection In 1996, shortly before this report was completed, two more synoptic surveys were conducted producing total counts of 2,274 and 2,639 animals, respectively. Because of variable environmental conditions that determine manatee occurrence in warm-water refuges and their visibility during a survey period, these counts cannot be used to estimate population size (except to indicate a minimum number), nor can they be compared between years to detect trends. As a result, the most recent count indicates only that the Florida manatee population numbers at least 2,639 animals; lower counts before 1996 do not necessarily indicate manatee numbers have increased. Outside of Florida, Antillean manatees appear to occur in relatively isolated groups usually numbering a few hundred animals or less. The largest known groups include those along the southern Yucatan Peninsula in Belize and Mexico and in Cuba, where numbers may reach several hundred animals. Mana- tee protection laws in these countries are weak or poorly enforced. As a result, protection of the southeastern United States population could determine the species' long-term survival. West Indian manatees are listed as endangered throughout their range under the Endangered Species Act. Whereas the largest sources of human-related 11 MARINE MAMMAL COMMISSION - Annual Report for 1995 mortality for Antillean manatees are poaching for food and entanglement in gillnets, for Florida manatees most human-related mortalities are caused by colli- sions with boats or entrapment in flood gates and navigation locks. For both subspecies, however, the habitat loss due to coastal development may pose the greatest long-term threat. As shown in Table 2, the number of manatee deaths recorded annually in the southeastern United States increased substantially between the late 1970s and 1990, when a record 214 dead manatees were found. Although a large number of cold-related deaths (about 45 animals) contributed to the record level in 1990, most of the increasing mortality trend during the 1980s was attributed to increases in the number of vessel-related deaths (i.e., propeller wounds, hull impacts, or crushing by the weight of watercraft hulls) and perinatal deaths (i.e., stillborn and newborn calf deaths for which the cause usually is undetermined). During the 1980s vessel-related deaths increased from about 20 to 50 animals per year. Almost all manatee deaths in the southeastern United States occur in Florida and the increase in watercraft deaths paralleled an increase in the number of boats regis- tered in Florida. In response the Florida Department of Natural Resources (now the Florida Department of Environmental Protection), in cooperation with the Fish and Wildlife Service, began a major initiative in 1989 to increase boater awareness and develop water- way regulations aimed at reducing collisions between manatees and boats. As described below, work on this initiative has continued. Early in the 1990s total annual mortality declined, but in 1994 and 1995 it again increased to near-record levels. In most of these years the number of vessel- related and perinatal deaths continued to be significant factors determining total annual mortality. Other factors, however, including deaths due to natural causes, drowning and crushing in flood gates and navigation locks, and deaths due to undetermined causes, became increasingly important in some of these years. For example, in 1995 total mortality exceeded 200 animals for only the second time, but vessel-related deaths declined from 51 animals in 1994 to 43 animals, representing only 21 percent of the total mortality. This is the lowest percentage of total annual mortality for the category since 1983. With no cold-related deaths recorded in 1995 and with a decrease in vessel-related deaths, the increase in total mortality between 1994 and 1995 was due mainly to increases in perinatal deaths, which reached a record high, and in deaths from natural causes. Since beginning the new efforts to reduce vessel- related deaths in 1989, deaths due to this cause have ranged between 35 and 53 animals per year. In contrast to increases in this mortality category through the 1980s, the overall trend since 1989 has been relatively stable. Considering that boat registrations in Florida have continued to increase, the lack of a further increase in vessel-related deaths may be an early sign that measures being taken by State and Federal agencies are beginning to successfully address this source of mortality. It is too soon, however, to draw definitive conclusions. With a record high 56 perinatal deaths in 1995, the steady increase seen before 1989 in this mortality category appears to be continuing. The causes of perinatal deaths are not clearly understood. They could be related to physiological stress due to the species' location at the northern limit of its range, disease and bacterial infections, disruption of physio- logical or biochemical processes by pollution, stress among pregnant and nursing females due to vessel traffic or other human activity, and the inexperience of young females raising their first calves. Other possible factors could be increasing levels of pollution or human-related stress. It also is possible that the perinatal death rate is constant, but that the size of the manatee population has increased or that reporting of carcasses has improved giving the appearance of an increased rate. Although small when compared to perinatal and vessel-related deaths, the numbers of manatees killed in flood gates and navigation locks increased in the 1990s and reached a record high of 16 animals in 1994. In 1995 the number of deaths in this category fell to eight. As discussed below, the increase in the 1990s has prompted efforts led by the South Florida Water Management District and the Army Corps of Engineers to reduce this source of mortality, and there 12 Chapter HI — Species of Special Concern is good reason for optimism that further reductions will be possible in the future. In the long term, degradation and loss of habitat may be a greater threat to manatee survival than direct sources of human- related mortality. No other marine mammal population in the United States lives in closer association with human populations than the Florida manatee. The rapid increase in Florida's human population and accompanying development, however, could leave little room for that association to persist. Much of the new development in Florida has occurred along coastal waters and rivers important to manatees. Resulting siltation, nutrient enrichment, and other forms of water pollution, as well as removal and filling of wetlands by construction, degrade or elimi- nate natural feeding, resting, mating, nursing, and calving areas. If increases in human population, coastal development, and waterborne activity continue unabated, habitat modification and increased vessel traffic could eliminate or nearly eliminate Florida manatees from the wild. To address these threats the Department of the Interior's Fish and Wildlife Service and National Biological Service and the Florida Department of Environmental Protection have collaborated to build what has become a model cooperative endangered species recovery program. While these agencies form the core of the Florida manatee recovery program, many other agencies and groups share interests and responsibilities in manatee conservation, and much of what the program has been able to accomplish is in large measure due to their outstanding contributions. Among the notable Federal contributors have been the Army Corps of Engineers, the Coast Guard, the National Aeronautics and Space Administration, and the U.S. Navy. Major contributors at the State and local levels include the Florida Department of Com- munity Affairs, the Florida Game and Freshwater Fish Commission, the Florida Governor and Cabinet, the Florida Inland Navigation District, the Manatee Technical Advisory Council (an advisory body to the Executive Director of the Florida Department of Environmental Protection), the South Florida Water Management District, various county governments throughout Florida, and the Georgia Department of Natural Resources. Important non-governmental participants include, among others, Florida Power & Light Company, Lowry Park Zoo, Miami Seaquari- um, Save the Manatee Club, Sea World, Inc., and the general public, whose voluntary donations to the State of Florida and Save the Manatee Club provide much of the financial support for the state's manatee pro- gram. As discussed in previous annual reports, the Marine Mammal Commission played a major role in organizing the Florida manatee recovery program in the 1970s and has continued to provide advice and assistance at key points throughout its development. Major activities undertaken through the Florida manatee recovery program in 1995 are discussed below. Updating the Florida Manatee Recovery Plan Section 4 of the Endangered Species Act contains provisions for preparing recovery plans for species listed as endangered or threatened under the Act. The purpose of recovery plans is to identify and organize priority recovery work. With advice and assistance from the Marine Mammal Commission, the Fish and Wildlife Service developed and in 1980 adopted a recovery plan for West Indian manatees. It was the first such plan for a listed marine mammal and it has since served as a model for other species recovery efforts. As the manatee plan was implemented and new information was developed, the plan's provisions became outdated and the Commission recommended that it be revised. The Service agreed and in 1989 it adopted a revised plan covering a five-year planning period that ended in Fiscal Year 1994. Anticipating the need for a second update, the Commission held a comprehensive review of the manatee program at its 1992 annual meeting in Tallahassee, Florida. Based on the results, the Commission developed a suggested plan outline and sent it to the Service with a request that it be reviewed by the Florida Manatee Recovery Team — a team of agencies and group officials estab- lished by the Service to help coordinate and guide the manatee recovery program. The Service did so and at the team's November 1992 meeting a drafting subcommittee, chaired by a representative of the Marine Mammal Commission, was established to 13 MARINE MAMMAL COMMISSION — Annual Report for 1995 prepare a recommended revised recovery manatee plan using the Commission's outline. In September 1993 the team transmitted a recom- mended plan revision to the Service. With some minor changes, the Service circulated the "Techni- cal/Agency Draft Florida Manatee Recovery Plan {Trichechus manatus) Second Revision" for public and agency review in November 1994. Like the 1989 plan, the revised plan covered a five-year planning period. It identified and ranked 120 tasks designed to (1) assess and minimize causes of manatee mortality and injury, (2) protect essential habitat, (3) determine and monitor the status of manatee populations and essential habitat, and (4) coordinate and oversee cooperative recovery activities. On 24 February 1995 the Commission, in consulta- tion with its Committee of Scientific Advisors, re- turned comments on the draft plan to the Service. In its comments, the Commission recommended that two new tasks be added and that priority rankings for two proposed tasks be increased. As two new tasks, the Commission recommended (1) establishing a popula- tion assessment working group to review relevant data and develop appropriate models for monitoring Florida manatee population trends, and (2) convening a workshop to evaluate future recovery strategies that might be used if increasing human population and development overwhelm current recovery efforts. With regard to task priorities, the Commission recom- mended that two proposed tasks be upgraded to priority one status; the first involves work to strength- en enforcement of relevant regulations, such as boat speed rules, and the second addresses field surveys to assess compliance with boat speed rules. On 5 April 1995 the Service extended the comment period on the draft revised plan through 5 June to ensure that all interested parties had time to comment. After the comment period closed, the Service incorpo- rated appropriate changes, and at the end of 1995 the revised plan had been submitted for final review and approval by the Service's Regional Director. The second revised Florida manatee recovery plan is expected to be available early in 1996. Program Funding Most funding for work identified in the Florida manatee recovery plan is provided through the Fish and Wildlife Service and the Florida Department of Environmental Protection. In 1993 a newly created branch of the Department of the Interior, the National Biological Service, also assumed important funding responsibilities when the Fish and Wildlife Service's manatee research program (the Sirenia Project) was transferred to it. Following a comprehensive review of the manatee recovery program in spring 1992, the Commission wrote to the Fish and Wildlife Service and the Nation- al Biological Service, recommending funding needs to meet the Department of the Interior's manatee re- search and management obligations in Fiscal Years 1993 through 1997. For 1993 and 1994, departmental funding for both its research and management pro- grams was generally consistent with the levels recom- mended by the Commission. For Fiscal Year 1995 the Commission recommended funding levels of $689,000 for the Sirenia Project and $289,000 for management-related work. Actual funding levels provided to the programs in 1995 were again general- ly consistent with these levels. The National Biologi- cal Service and the Fish and Wildlife Service jointly provided approximately $625,000 to continue the Sirenia Project and additional support was provided by Save the Manatee Club and another non-governmental source. To carry out management obligations, the Fish and Wildlife Service provided its Jacksonville, Florida, field office about $300,000. In the fall of 1995 the Commission learned that the National Biological Service was considering eliminat- ing support for manatee research because of proposed reductions in its Fiscal Year 1996 appropriation. The Commission, therefore, wrote to the Service on 26 September 1995, noting that the scientific information developed by the Sirenia Project was absolutely essential for making informed management decisions under the manatee recovery program and for meeting related statutory obligations. It also noted that the manatee recovery program was both nationally and internationally recognized as one of the world's most successful endangered species recovery programs, due in large part to the databases and leadership provided 14 Chapter III — Species of Special Concern by the Sirenia Project. While recognizing the difficult budgetary choices faced by the Service, the Commis- sion therefore urged that the Service continue support for the Sirenia Project. On 11 October 1995 the National Biological Service replied to the Commission, noting that it recognized the essential role of the Sirenia Project in the manatee recovery program, but that a final deci- sion on support would depend on the extent to which its Fiscal Year 1996 appropriation was reduced. At the end of 1995 decisions in this regard had not yet been made and the National Biological Service was continuing to support the Sirenia Project at reduced levels under temporary spending measures. However, significant reductions in the program's funding in 1996 seemed likely. Recognizing that support for all essential recovery program tasks is beyond its own resources and capa- bilities, the Fish and Wildlife Service has encouraged direct involvement by many other agencies and groups with shared interest and responsibility for manatee conservation. Of particular note in this regard, the Florida Governor and Cabinet and the Florida State Legislature responded in the 1980s by developing a strong complementary state program to address many needs identified in the Florida manatee recovery plan. The state program is now carried out by the Florida Department of Environmental Protection. During the past Fiscal Year, which ended 30 June 1995, nearly $2.8 million was provided by the State to its manatee program, including more than $1.1 million for re- search and $1.6 million for management tasks. Funding for the State's manatee program is provid- ed mainly through the Save the Manatee Trust Fund, authorized by the State Legislature in 1989. Although about one-third of the Trust Fund is derived from a share of annual boat registration fees required by the State, most of its income comes from voluntary donations, including the sale of special manatee automobile license plates and optional check-off donations that boat owners may add to their annual boat registration fees. In a very real sense, therefore, the State's program is a direct reflection of the strong interest and commitment of the citizens of Florida to manatee recovery and conservation. Boating Regulations As indicated in Table 2, vessel collisions are the largest source of human-related manatee mortality. Because vessel operators cannot reliably detect and avoid manatees, reducing this cause of mortality appears dependent on giving manatees time to avoid oncoming boats. Therefore, the Florida Governor and Cabinet approved an approach recommended in 1989 by the Florida Department of Natural Resources to develop county-wide boat speed regulations that would slow boats down in areas where manatees are most likely to occur. The recommendation targeted 13 counties where vessel-related manatee deaths were highest and manatee abundance was greatest. To develop the rules, the Department of Natural Resourc- es (now the Department of Environmental Protection) was directed to work with local residents and county officials to review data on local manatee habitat-use patterns and vessel traffic patterns. Based on that information, agreed site-specific measures for each county were to be devised, taking into account needs for both manatee protection and vessel use. Between 1989 and 1994 rules were developed through a process of negotiations with local represen- tatives and adopted for 12 of the 13 counties. The rules incorporate a suite of site-specific measures, such as channel-exempt, channel-inclusive, and shoreline-only slow speed zones, high-speed water sport areas, and no-entry areas. In 1995 proposed rules for Lee County, the last of the 13 counties, were published and a public hearing was held. As has happened in several other cases, an administrative challenge was filed against the proposal by local interests. In all previous cases, proposed rules have been upheld, but in the case of Lee County, the hearing officer ruled in favor of those challenging the proposal. As a result, the Department will re-initiate the rulemaking process for Lee County in 1996 to develop a new proposal. While substantial progress has been made in developing new rules, their implementation has been slowed by intense controversy and debate that length- ened the negotiation process. Subsequent rule chal- lenges, as occurred in Lee County, also caused necessary implementation steps, such as posting regulatory signs and enforcement, to be deferred 15 MARINE MAMMAL COMMISSION - Annual Report for 1995 pending their resolution. In addition, sign posting for some counties lagged a year or more behind the adoption of final rules, and prior to 1993, when the State Legislature relaxed penalties for manatee speed- zone violations from a second degree misdemeanor to an infraction, some enforcement officers were reluc- tant to issue citations for such violations. As a result of these problems and delays, it will probably be several more years before enforcement and compli- ance records will provide a good basis for assessing the effectiveness of the boating regulations. County Manatee Protection Plans When the Florida Governor and Cabinet approved development of boat speed rules for the 13 key counties in 1989, they also directed those counties to prepare manatee protection plans and adopted an interim policy for siting boating facilities. Although one of the core elements of the county plans was to be the county boating regulations discussed above, other elements were to address the siting of new boating facilities and public awareness. The interim policy, which was to be in effect in the 13 key counties only until their manatee protection plans were adopted, calls for conditionally limiting the construction of new boating facilities and expansion of existing facilities to one power boat slip per 100 feet of shoreline con- trolled by the developer. Demands associated with developing boating regulations precluded immediate attention by county planners to other manatee protection plan provisions. As development of boating rules progressed, however, work on other plan elements increased. By the end of 1994 one county manatee protection plan had been adopted. In 1995 plans for three other counties were adopted and work was underway on plans for the remaining nine counties. As these plans were pro- gressing, the Department applied the interim policy on new boating facilities when reviewing permit applica- tions received for constructing new docks and mari- nas. Required rules for implementing the policy were not developed, however, and during 1995 an adminis- trative challenge was filed against the Department for its failure to meet this requirement. At the end of 1995 it was expected that an administrative hearing would be held early in 1996. Flood Gates and Navigation Locks Animals that are crushed and drowned in flood gates and navigation locks constitute the second largest category of human-related manatee mortality. As noted above, the number of such deaths increased early in the 1990s and reached a record level of 16 animals in 1994 when heavy rains and more frequent flood gate openings may have contributed to the high death toll. In 1995 the number of manatee deaths declined to eight but was still substantially above the average annual mortality observed in the 1980s. Most of the gates and locks in which manatees have been killed are owned and operated by the South Florida Water Management District and the Army Corps of Engineers. To address the problem, officials from these two agencies, the Florida Department of Environmental Protection, Dade County, and the Fish and Wildlife Service formed a task force in 1992. Based on its advice, engineers with the Water Management District and the Corps began work to design pressure-sensitive reversing door mechanisms, similar to those on elevator doors, that could be fitted to the edge of gate and lock doors. The initial design featured a plunger mechanism that would activate a reversing mechanism if depressed by an object caught in a closing door. In 1993 and 1994, under a cost-sharing agreement between the Water Management District and the Corps, prototype devices were tested on two gates with high manatee mortality. Design problems became apparent during the initial tests. However, anticipating that these could be resolved and recognizing the urgent need for a solu- tion, the Corps requested and received a 1994 appro- priation of approximately $2 million under the Water Resources Development Act to design and retrofit existing gates with improved mechanisms. On 5 May 1995 the Corps requested comments from the Commission and others on a draft project modification report and environmental assessment on plans to redesign and test the reversing mechanisms and then retrofit devices on 20 water control struc- tures in south and central Florida where manatee deaths have been reported. The work was estimated to cost about $2.6 million, and would be supported by 16 Chapter III — Species of Special Concern the Corps and the Water Management District under a cost-sharing agreement. On 20 June 1995 the Commission responded, commending the Corps for its attention to this urgent conservation problem and for its efforts to develop and apply innovative solutions in a timely manner. In light of remaining technical problems and limited experience with the improved mechanisms, the Commission recommended that the Corps adopt a flexible approach that would allow construction schedules to be altered as necessary to incorporate refinements that may become apparent as new devices come online. While the Corps was developing plans to further test and install gate reversal systems, the Water Management District continued to experience fouling and maintenance problems with the modified plunger mechanisms. It therefore contracted for a study to assess a promising new triggering mechanism with no moving parts that might replace the plunger designs. The new approach relies on a strip of piezoelectric film — a tough plastic material that converts mechani- cal pressure, such as that from an object pinned in a closing door, into an electric current that could activate the reversing mechanism. The study report suggested that the film may well be a feasible, cost- effective alternative. Therefore, at the end of 1995 the District was developing specifications to test the new approach in 1996. Manatee Rescue, Rehabilitation, and Release Every year Federal and State officials respond to numerous reports of injured and distressed manatees. In some cases injuries or problems are minor or temporary and require no intervention. In other cases, however, animals must be handled or treated, and are either released on the spot or captured for a period of more intensive care in captivity. Most cases requiring intervention involve animals that are injured by boats, entangled in ropes or nets, or orphaned and unable to survive on their own. The number of rescue attempts in recent years has generally ranged from about 15 to 25 annually. However, in 1994 only 14 rescue attempts were made, while in 1995 the number rose sharply to more than 50 attempts. The leading causes for rescues in 1995 were collisions with boats and entanglement in crab pot float lines. The cause of the high entanglement rate, which increased markedly from previous years, is unclear but may reflect a shift in fishing effort prompted by a 1994 ban on fishing with gillnets in state waters. As of the end of 1995, 18 of the rescued animals had died from their injuries and 19 had been treated and released. To care for injured and distressed animals that must be brought into captivity, the Fish and Wildlife Service has authorized five Florida facilities (EPCOT, Lowry Park Zoo, the Miami Seaquarium, Sea World, Inc., and the Homosassa Springs State Wildlife Park) to maintain animals under an Endangered Species Act species enhancement permit. Although most animals brought into captivity are released within a few weeks to a year, some animals have been kept permanently because of the nature of their injuries or because of concern that they lacked or had lost skills necessary for survival in the wild. Over the years the number of animals judged to be unreleasable has increased, making space to treat new animals very limited. As of the end of 1995, 46 animals were being held at the five facilities. To help speed release of rehabili- tated animals and to assess the potential of releasing animals previously judged to be unreleasable, the Service constructed a "soft release" facility in 1994. Located in the upper Banana River within the Kenne- dy Space Center on Florida's east coast, the pen provides an opportunity for animals to adjust to natural conditions and foods while they remain under observation to ensure they are adapting. It is hoped that 10 to 12 animals, particularly animals previously judged unreleasable, might be released annually through the pen. In August 1994 a rehabilitated adult male held in captivity for four months and two young orphaned calves were placed in the soft-release pen as an initial test. Over the next several weeks all three adjusted well and began feeding on seagrasses in the enclo- sures. Late in August the adult male was released and tracked with a satellite transmitter. It readapted quickly to the wild. The two orphaned calves, however, were not released because of the approach- ing winter and concern that time was short for them to associate with wild animals that could lead them to a warm-water refuge. They were therefore returned to captive facilities for the winter. 17 MARINE MAMMAL COMMISSION - Annual Report for 1995 In May 1995 both orphaned calves were released. One that was originally captured in the St. Johns River was tagged and released directly back into the St. Johns River. He was tracked until late September, when the tag fell off. He appeared to be adapting well, but had not been resighted at the river's major warm-water refuge, Blue Spring, as of the end of 1995. The second orphaned animal was released through the soft-release pen on 1 June with an older animal captured for rehabilitation early in 1995. The second orphaned animal was also tagged and appeared to be adapting well as of the end of 1995. In mid- January 1996, however, he was struck by a boat and killed in a high-traffic canal near the release pen. After these animals were released, three other long-term captive animals were introduced into the pen in early June. Because of weight loss and some blood chemistry analyses suggesting possible dehydra- tion, the animals were not released but instead were returned to their respective captive facilities late in June. In mid-July 1995 three other animals, all born in captivity since 1990, were introduced into the soft- release pen. By early in August, all three appeared to be ajusting well, and they were released together late in August. In mid-November, however, one of the three was struck by a boat and killed in Biscayne Bay in southeastern Florida. A second animal was tracked through 1995 but was recaptured at a warm-water refuge on 3 January 1996 because he appeared to be underweight and disoriented, swimming in tight circles. Upon examination, he was found to be emaciated and to have ingested some debris, but he soon began eating normally and is being maintained in captivity. Subsequently, the third animal was recap- tured in a severely emaciated condition and died during transport to a rehabilitation facility. In review, of the four young manatees raised in captivity and released through the soft-release pen in 1995, one was recaptured in poor condition and recovered, one was recaptured in very poor condition and died, and two appeared to have been adjusting well but were struck and killed by boats. The status of the fifth animal raised in captivity and released directly into the St. Johns River is uncertain. He may be using one of the area's small, infrequently moni- tored warm- water refuges. In addition to these difficult release cases, 13 successfully rehabilitated were released at various locations along the east and west coasts of Florida, usually near their capture sites. Because of past success with such releases, released animals are not usually tagged for satellite tracking. In 1995 three adult females that had been rehabilititated and released in recent years were resighted with new calves con- ceived and born in the wild. Manatee Stock Assessments As part of efforts to reduce incidental take of marine mammals in commercial fisheries, the Marine Mammal Protection Act was amended in 1994 to require, in part, that stock assessments be prepared for all U.S. marine mammal stocks. The assessments are to include estimates of population size and maxi- mum net productivity, a determination of the potential biological removal rate (other than natural mortality) that would allow the stock to reach or remain at its optimum sustainable population level, information on fishery interactions, and a determination as to whether the stock should be considered strategic and possibly require establishment of an incidental-take reduction team and preparation of an incidental-take reduction plan. In October 1995 the Service released final stock assessments for marine mammal stocks under its jurisdiction, including the Florida manatee and a population of Antillean manatees in Puerto Rico. The assessment for Florida manatees noted that the popula- tion numbered at least 1,856 animals and that the best estimate of maximum net productivity was four percent per year. Using this and other information, the potential biological removal level was determined to be three animals per year. Between 1975 and 1994 it noted that 17 deaths had been attributed to interac- tions with fishing gear, principally shrimp nets, and that a number of injuries and some mortality also had been attributed to entanglement in crab trap lines, hoop nets, trot lines, and monofilament line. For the Antillean manatee population in Puerto Rico, the assessment estimated a population size of at least 86 animals and a maximum productivity of four percent per year. The potential biological removal level was determined to be zero. The assessment also 18 Chapter III — Species of Special Concern noted that manatees in Puerto Rico were sometimes sold for meat and taken in gillnets. Although infor- mation was scarce, it appeared that fishery interac- tions significantly affect the status of the population. Because of the species' status as endangered and the high levels of natural and human-related mortality, the assessments for both stocks concluded that they should be considered as strategic stocks. As of the end of 1995 no steps had been taken to establish take reduction teams for either stock. Adventures with Chessie In the summer of 1994 a Florida manatee was sighted in the Chesapeake Bay in Maryland, establish- ing a new northernmost record for the species. By September the animal had not begun to move south and its plight became national news. Because of falling water temperatures and limited time to make the 1 , 000-mile return trip to Florida, the animal was captured on 1 October with the assistance of the National Aquarium in Baltimore. Ten days later it was flown back to Florida on a plane donated by the Coast Guard. The animal, a large male nicknamed Chessie, was subsequently placed in the soft-release pen and released early in October with a satellite transmitter attached by Sirenia Project staff to track its movements. He remained in Florida's coastal water for the remainder of the winter. In June 1995, with his satellite tag still attached, Chessie again began moving north up the intracoastal waterway, reaching the Chesapeake Bay in July. Although his tag was lost along the way, he was relocated and a new tag was attached. He again became national news as he continued north, reaching Pt. Judith, Pvhode Island, on 16 August. There cold water presumably stopped his northward trek and he turned south, again losing his tag on 22 August off Connecticut. Occasional reports placed him in New Jersey on 6 September and contingency plans were made in the event another rescue might be needed. The opportunity never arose. With his ability to return to Florida before succumbing to cold-stress in doubt, brief sightings reported to the Service and by the media still had him in the lower Chesapeake Bay on 21 September. After several more weeks with a few unconfirmed sighting reports, he was finally seen at a warm-water power plant outfall in Jacksonville, Florida, on 16 November, having completed a five- month odyssey covering nearly 4,000 miles and setting a northern record for the species' distribution. Hawaiian Monk Seal (Monachus shauinslandi) The Hawaiian monk seal is the most endangered seal in U.S. waters. The species currently is thought to number about 1,300 to 1,400 animals and to have declined significantly since 1990. After the northern right whale, the Hawaiian monk seal is the nation's second most endangered marine mammal. The species occurs only in the Hawaiian Archipelago with most animals living around remote, largely uninhabit- ed islets in the Northwestern Hawaiian Islands extend- ing 1,200 miles northwest of the main Hawaiian Islands (Figure 1). The largest monk seal colony is at French Frigate Shoals where more than 50 percent of the species' births have occurred in recent years. Most of the remaining seals and almost all other pupping occurs at four other islands and atolls: Laysan Island, Lisianski Island, Pearl and Hermes Reef, and Kure Atoll. A sixth atoll, the Midway Islands, supported a major breeding colony as recently as the 1950s, but the colony virtually disappeared by the late 1960s. About 45 animals, mostly immigrants from nearby atolls, now use that site and a few births occur annually. Accounts of Hawaiian monk seals before 1900 are rare. Their numbers are believed to have been reduced significantly in the 1800s by a short-lived commercial sealing venture and by transient visitors, including shipwrecked sailors, who killed seals for food. Since then, other human activities and natural factors have suppressed the species' recovery. The principal human threats have been disruption of normal haul-out patterns by people and pets on beaches, interactions with commercial fisheries, entanglement in derelict fishing gear and other debris, pollution from human activities and abandoned equip- ment, entrapment in old shore protection structures, and overfishing of seal prey species. 19 MARINE MAMMAL COMMISSION - Annual Report for 1995 Figure 1. The Hawaiian Archipelago Natural factors impeding population growth have been the species' limited range and habitat, predation by sharks, die-offs caused by disease or natural biotoxins, attacks on female and juvenile seals by aggressive groups of adult male seals (referred to as "mobbing" behavior), and possibly ecosystem chang- es, such as climate fluctuation, that may have affected prey abundance and carrying capacity. Lead responsibility for the recovery of Hawaiian monk seals rests with the National Marine Fisheries Service under authority of the Endangered Species Act and the Marine Mammal Protection Act. Other agencies and organizations, however, share important duties and roles. Because most monk seal pupping and haul-out habitat (i.e., all major breeding sites except Kure) lies within the Hawaiian Islands National Wildlife Refuge, the Fish and Wildlife Service is a particularly important partner. Other key partners include the Navy, the Coast Guard, the Army Corps of Engineers, the Western Pacific Regional Fishery Management Council, the State of Hawaii, and Sea Life Park, Hawaii. As discussed in past annual reports, the Marine Mammal Commission was instru- mental in initiating the monk seal recovery program late in the 1970s. Since then, it has provided advice and assistance at key points in the program's develop- ment. Recent Developments As noted above, Hawaiian monk seal numbers are declining. After a modest increase early in the 1980s, overall beach counts of seals began decreasing late in the 1980s. This trend has continued through 1995 when combined mean beach counts for all islands dropped 26 percent below 1989 levels and 33 percent below 1986 levels. Most of this decline is due to a decrease at French Frigate Shoals, the largest monk seal colony. However, counts also fell during this period at Laysan and Lisianski Islands. Reasons for these trends differ by location. Based on increasing numbers of underweight and starving animals (mostly pups and juveniles), the decline at French Frigate Shoals is thought to be related to a reduction in the availability of prey resources. At Laysan and Lisianski Islands evidence 20 Chapter HI — Species of Special Concern of food limitation is less apparent, and instead a combination of factors appears to be involved, includ- ing mortality of adult females and juveniles due to attacks by groups of aggressive male seals. Entangle- ment in marine debris also may be a contributing factor, particularly at Lisianski Island where especially large quantities of nets and other debris wash ashore. Seal counts on Kure Atoll, the smallest of the five major breeding colonies, and Pearl and Hermes Reef, now approximately the same size as the Lisianski and Laysan Island populations, have increased over the past 15 years, but not enough to offset declines at the other larger colonies. Against this backdrop there recently have been several significant developments bearing on monk seal recovery. In 1992 the LORAN station operated by the Coast Guard on Kure Atoll was closed. When demolition and clean up work was completed in 1993, Kure was left unoccupied and free of human distur- bance for the first time since 1960 when the station began operations. Also, in 1993 the Navy announced plans to close and clean up its Naval Air Station on the Midway Islands and to transfer the atoll to a new owner by 1997. Finally, in response to a failing bulkhead on Tern Island at French Frigate Shoals that could force abandonment of the only airstrip and permanent field station between Midway and the main Hawaiian Islands, the Fish and Wildlife has been developing plans for the construction of a new shore protection system. In light of these changes and the alarming decline in monk seal numbers, in 1994 the Marine Mammal Commission began a review of the Hawaiian monk seal recovery program and related activities. Mem- bers of the Commission's staff met with Federal and state officials in Hawaii in September, and the Com- mission examined recovery needs at its 16-18 Novem- ber 1994 annual meeting in Falmouth, Massachusetts. Based on the results, the Commission determined that a comprehensive interagency monk seal program review should be held, and it began planning for an in-depth program review in 1995 with the National Marine Fisheries Service. Pending that review, the Commission wrote to the Service and the Navy on 30 November 1994, providing comments and recommen- dations on priority recovery needs. In its letter to the National Marine Fisheries Service, the Commission noted the urgent need to strengthen the recovery program. Among other things, it recommended that the Service: • expand work begun in 1984 to remove and rehabil- itate underweight seals from French Frigate Shoals and relocate them at smaller colonies; • begin working with the Navy on plans to release rehabilitated seals at the Midway Islands to help restore that breeding colony; • increase efforts to evaluate monk seal foraging patterns and prey resources at French Frigate Shoals and close waters at that atoll to lobster fishing, pending study results showing that lobster fishing would not reduce a prey resource important to the atoll's seal colony; and • establish field camps to monitor monk seals at all five major breeding colonies plus the Midway Islands in 1995. To carry out the most essential research and management work, the Commission recommended that $1.2 million be provided to the monk seal program in Fiscal Year 1995, an amount more than twice the program's base funding level in 1994. In its 30 November 1994 letter to the Navy, the Commission noted that closure of the Midway air station offered a much needed chance to restore a major monk seal breeding colony to the atoll. Also noting that the disappearance of monk seals from Midway coincided with, and was likely related to, the expansion of station facilities and operations in the 1950s and 1960s, the Commission expressed its belief that the Navy had an obligation to help restore a viable breeding colony of seals at Midway. Soon after announcing its decision to close the facility, the Navy began to assess contaminant clean-up needs and mitigate wildlife hazards. The efforts were well planned and carried out in close cooperation with the Fish and Wildlife Service, the National Marine Fisheries Service, and others, and the Commission commended the Navy for its initiative and commit- ment to these important tasks. In addition, the Commission recommended that the Navy (1) consult with the National Marine Fisheries Service to identify and help support actions needed to restore monk seals to levels counted at Midway in the late 1950s, and (2) 21 MARINE MAMMAL COMMISSION - Annual Report for 1995 approve a request by the Fish and Wildlife Service for ownership and use of Midway as a national wildlife refuge. Both the National Marine Fisheries Service and the Navy responded to the Commission early in 1995. On 23 January 1995 the Service wrote, noting that it agreed with the Commission on the need for an interagency program review and for strengthening the monk seal program. It advised that steps were being taken to increase program funding in 1995, that it was committed to expanding monk seal rehabilitation facilities to handle more animals, that field camps would be established on all major breeding islands in 1995, and that it had begun working with the Navy on cooperative efforts to rebuild the monk seal breeding colony on Midway. On 3 March 1995 the Navy wrote to the Commis- sion noting that it shared concern about the need for restoring monk seals throughout their range. In addition to steps it had taken to comply with require- ments of the Endangered Species Act, the Navy noted it was working with the National Marine Fisheries Service on a proposal to fund monk seal work at Midway in 1996 under the Department of Defense Legacy Program, which is designed to help meet environmental and cultural needs at Defense Depart- ment installations. While 1996 funding for the program was uncertain, the Navy expressed hope that funds would be available from this source for monk seal work. It also noted that regulations governing the disposal of excess property would allow it to transfer land to other Federal agencies, and that the Fish and Wildlife Service, the only Federal agency asking for title to Midway, was taking steps to pre- pare for the transfer. The transfer of Midway to the Service, however, was placed in doubt by a bill, H.R. 602, introduced in Congress early in 1995. In part, the bill proposed transferring jurisdiction of Midway and certain other remote Pacific islands to the State of Hawaii. In response, state officials began evaluating a range of options for Midway, including development and use that would impact monk seals and other wildlife. Later in 1995 a second bill was introduced proposing transfer of Midway to a foundation interested in developing the atoll as a national historic park. While these bills were not considered in 1995, Congressional action on pending or new bills to transfer Midway to an entity other than the Service is still possible. The 1995 Hawaiian Monk Seal Program Review On 11-13 April 1995 the Marine Mammal Com- mission convened a panel of marine mammal scientists and resource managers to review the Hawaiian monk seal recovery program. Organized with the assistance of the National Marine Fisheries Service's Honolulu Laboratory, the review was held in Honolulu. Partici- pants included officials from the Fish and Wildlife Service, the Navy, the Coast Guard, the Western Pacific Regional Fisheries Management Council, the Army Corps of Engineers, the Hawaii Division of Forestry and Wildlife, the Hawaiian Monk Seal Recovery Team, the academic community, and Sea Life Park, as well as the Commission and the National Marine Fisheries Service. Relevant activities and plans were described by agency representatives, and discussions permitted a thorough, productive review of recovery issues and agency activities. After the review the panel summarized its findings and recommendations and provided them to the Commission. In separate letters sent on 4 August 1995, the Commission, in consultation with its Com- mittee of Scientific Advisors, forwarded its comments and recommendations based on the panel's findings to the National Marine Fisheries Service, the Fish and Wildlife Service, the Navy, and the Coast Guard. The results of the review are summarized below. Program Funding and Personnel — For the past 15 years, support for monk seal research and manage- ment has been insufficient to carry out all priority work identified in program planning documents and recommended by the Commission and the Recovery Team. To address this problem, review participants from the National Marine Fisheries Service advised the panel that it was taking steps to increase program funding to $1,094,000 in 1995 (about twice the base funding level in the Service's Fiscal Year 1994 budget) and to increase ship support for program work. They also noted that additional funds would be used, in part, to (a) hire field crews for work previ- 22 Chapter III — Species of Special Concern ously done by volunteers so that all major breeding colonies, plus Midway, could be monitored in 1995, and (b) contract through a cooperative university program for expert help for tasks that the program had not been able to support in the past. Finally, while it was noted that staff reductions affecting other Service programs would not affect the monk seal program, the panel was advised that the Service's monk seal recovery team leader of 15 years was retiring and that his position might not be retained. The panel concluded that the Service's plan for funding and logistic support in 1995 was a sound approach consistent with the agency's leadership role in recovery work. It recommended that this level be maintained for at least the next three years. It also noted, however, that this level of support would still not meet all critical needs; hence, other agencies and organizations with shared obligations must be called upon to supplement Service resources. The panel therefore recommended that the Service increase its efforts to encourage contributions of funding, exper- tise, and in-kind aid from other agencies, universities, laboratories, foundations, and environmental organiza- tions. Noting that departure of the program's long- time leader would significantly reduce staff expertise, the panel also recommended that the Service promptly fill this vacant position. The Commission concurred with the panel's findings and, in a follow-up letter to the National Marine Fisheries Service, it recommended that the Service maintain its planned 1995 funding level over the next three years and that, if it had not already done so, the Service immediately begin a search for a new recovery program leader. Population Monitoring — Population trends and management needs differ at the various breeding sites. Because of funding, logistic, and personnel constraints for field work, however, up-to-date information to analyze population trends and management needs for most major colonies is lacking. To meet this need, Service officials advised the panel that field camps were planned for all major breeding sites plus Midway in 1995. The panel agreed with these plans and recommended that camps at all six sites also be established in 1996. For subsequent years, the panel recommended reviewing population monitoring results in light of other program needs to determine if some sites could be monitored at less frequent intervals. Pup Rehabilitation and Release Program — In 1984 the Service began removing underweight female pups from French Frigate Shoals, rehabilitating them at facilities on Oahu, and releasing them at Kure to help increase that depleted colony. Between 1984 and 1991, 57 percent of the pups collected and released at Kure had survived through the first year of release, and the effort has helped increase the reproductive potential of Kure's seal colony. Early in the 1990s pup survival at French Frigate Shoals declined sharply, and in 1992 attempts were made to rehabilitate more pups and some juveniles and to shift releases from Kure to Midway. In 1992 and 1993, 18 seals were released at Midway. These releases were not successful like those at Kure; all but two seals died or disappeared. The reasons for the poor suvival have been difficult to assess because funds were not available to monitor the released animals. However, most of the seals released were juveniles rather than pups and, because of limited space, funds, and personnel, the handling and release procedures differed from previous efforts. Because no animals resident at Midway were found dead following the releases, environmental conditions at Midway do not appear to be the cause. In 1994 the Commission recommended that the Service expand its rehabilitation facilities, hire a veterinarian to oversee rehabilitation work, and make another attempt to release seals at Midway. During the April 1995 program review, Service officials described the various seal handling procedures used in the Midway release effort and advised the panel of plans to try another release of seals at Midway in 1996. To carry out the work, they planned to use one-third of the program's 1995 funding to expand a seal holding facility at Kewalo Basin, contract for full- time veterinary services to help oversee management of captive seals and undertake necessary monitoring and research. The panel was concerned about the high cost of rehabilitating seals, the adequacy of criteria to guide this work, and the relatively few seals added to the breeding population. However, recognizing the 23 MARINE MAMMAL COMMISSION - Annual Report for 1995 importance of positive action and the value of adding even a few breeding animals to small colonies, the panel agreed that further rehabilitation and release work was warranted. It recommended, however, that the Service develop a more complete set of criteria to guide decisions on when and how to take and release animals, and how long such efforts should be contin- ued. It also recommended that the Service explore the willingness of Sea Life Park to expand its seal holding facilities, the feasibility of expanding the Kewalo Basin facility to meet needs that cannot be met at Sea Life Park, and contracting for a full-time veterinarian. The Commission agreed with the panel's recom- mendations and, in its 4 August letter to the Service, it highlighted the need for developing criteria to guide rehabilitation/release work and for acquiring the services of a full-time veterinarian. Restoring Monk Seals to the Midway Islands — During World War II the Navy established a naval air station on Midway. The number of seals using Midway prior to that time is unknown, but in 1957 and 1958 when the first seal counts were made at the atoll, up to 68 animals were counted on its beaches, with mean counts of over 50 seals. Late in the 1950s the Navy mounted a major construction effort to expand air station operations. When the next count was made at Midway late in the 1960s, no seals were seen. Between then and the early 1990s, average beach counts ranged from to 10 animals. In the last two years, more intensive studies produced average beach counts of 12 and 16 seals, in 1994 and 1995, respectively, with a total of 29 animals identified in 1994, and 41 animals identified in 1995. Most animals appear to be transient visitors from Kure and Pearl and Hermes Reef. During the program review, attention focused on ways to restore Midway's monk seal colony, future ownership and use of the atoll, and wildlife habitat restoration. Navy officials provided a thorough briefing on its plans to close the air station and transfer Midway to a new owner by June 1997. They described substantial progress and consultation with other Federal and state agencies to assess contami- nants on the island, and expressed a strong commit- ment to completing as much clean-up work as possible prior to the 1997 transfer. In addition to contaminant clean-up, wildlife hazards, such as debris and rusting bulkheads, also are being identified and many situa- tions have already been corrected. Representatives of the Navy and the National Marine Fisheries Service also noted plans to cooperate on a proposal to fund research and mitigation efforts in 1996 to speed recovery of monk seals at Midway. Coast Guard officials advised the panel of steps to assess and clean up contaminants from discarded batteries in Midway's lagoon. The batteries, used to power lights on navigation aids marking the atoll's harbor channel, were discarded in past decades during routine maintenance. It was noted that the Coast Guard, in consultation with the National Oceanic and Atmospheric Administration and the Fish and Wildlife Service, had scheduled work in the summer to assess contamination around the discarded batteries to help identify clean-up needs. The Fish and Wildlife Service, which manages wildlife resources on Midway as an overlay national wildlife refuge under a 1988 agreement with the Navy, has requested title to Midway for use as a national wildlife refuge. Service officials advised the panel that they are working closely with the Navy to assume ownership of the islands. Under Congressio- nal directives for base closures, accommodation of other uses of the islands, such as maintaining and using the island's airfield to refuel Coast Guard aircraft and providing controlled public access for wildlife viewing, also is being considered. As noted above, however, Congressional action could supersede these transfer plans. The panel strongly endorsed the transfer of Mid- way to the Fish and Wildlife Service for use as a national wildlife refuge and recommended that the Commission and others ensure that Congressional and State officials are aware of the importance of Mid- way's habitat for monk seals and seabirds. To speed recovery of its seal colony, the panel recommended that the National Marine Fisheries Service and the Navy design and implement a research and manage- ment plan for moving seals to Midway and ensuring their survival. The panel also was impressed by the Navy's contaminant assessment program at Midway and the Coast Guard's commitment to assess contami- nation by corroded batteries in Midway's lagoon. 24 Chapter III — Species of Special Concern Because assessment results were not yet available, however, the panel did not comment on specific clean- up needs. After the review, the Navy provided funds to the National Marine Fisheries Service to help begin the Midway monk seal restoration program. In light of a need for data on at-sea movements of resident and introduced seals to evaluate seal translocation efforts, the funds were used to acquire radio tags to track seals at Midway. The Navy's prompt action in this regard was a welcome and much-needed contribution to the recovery program, and in its 4 August letter, the Commission commended the Navy for its con- structive assistance. To continue recovery work at Midway, the Commission noted that a preliminary cost estimate of $250,000 per year for five years seemed valid, given the costs of transporting seals and personnel, maintaining seal holding pens on Midway, monitoring the population, obtaining and analyzing data, etc. The Commission's letters to the Navy and the Fish and Wildlife Service noted the outstanding merit of managing Midway as a national wildlife refuge. Pending further action by Congress, the Commission expressed hope that the two agencies would do all they could to pursue the transfer. The Commission also wrote to members of Hawaii's Congressional delegation on 4 August 1994, noting the importance of Midway's habitat for monk seals and seabirds and urging that these values be considered in any further actions on bills affecting future use of Midway. In its 4 August letter to the Coast Guard, the Commission noted the importance of assessing envi- ronmental impacts from the discarded batteries in Midway's lagoon and commended the Coast Guard for ensuring that appropriate clean-up work would be undertaken promptly. Mobbing Behavior — Injuries inflicted by sexually aggressive adult male monk seals have resulted in the death of adult female and juvenile seals at several locations but primarily at Laysan and Lisianski Islands. Monitoring studies carried out in the 1980s found that males outnumbered females at both islands, and Service scientists concluded that this was a factor increasing the likelihood of mobbing behavior. Therefore in 1994 the Service removed 22 adult male seals from Laysan, leaving its sex ratio slightly biased towards females . One seal died in the process and the remaining animals were released around the main Hawaiian Islands. Having taken this step, Service officials advised the panel that field work in 1995 would be limited to monitoring the effects of the removals on mobbing at Laysan. As related matters, they noted that commercial fishermen opposed releas- ing any more seals in the main Hawaiian Islands because of possible impacts on fishing operations, and that studies were being done on captive northern elephant seals to test an improved testosterone-sup- pressing drug to reduce aggressive behavior in male seals. The panel noted that local geographic influences on the distribution of adult male seals may be a more important factor than the sex ratio in causing mobbing behavior. Thus, drug treatment could be a useful mitigation approach. The panel therefore recom- mended that the Service test the new drug's effective- ness and delivery protocols on captive monk seals to assess future mobbing-related management options that would not involve capturing and moving animals. Predator-Prey Interactions — As noted above, survival of newly weaned pups and juvenile seals at French Frigate Shoals declined sharply after the late 1980s due to limited prey availability. Beach counts at French Frigate Shoals had doubled between the late 1960s and mid-1980s making it the species' largest colony. It is thought that the colony may have in- creased to a level exceeding its carrying capacity. During the program review, National Marine Fisher- ies Service scientists provided information suggesting that a regional decline in marine productivity occurred in the Northwestern Hawaiian Islands in 1990, possi- bly related to a decadal climate cycle. Simultaneous declines in seabird reproductive success and the size of regional monk seal, reef fishes, and lobster popula- tions were cited in support of the hypothesis. Service scientists also presented data from scat studies and satellite-tagging work. Scales and bones of reef fishes were the most common prey remains in the scat samples and a few scats contained lobster and octopus parts. Because of small sample sizes and inherent biases in scat studies, the relative importance 25 MARINE MAMMAL COMMISSION - Annual Report for 1995 of different prey species for different age classes of seals remains poorly known. Satellite-tracking work begun in 1993 has been limited to three sub-adult male monk seals per year at French Frigate Shoals. The results revealed that most tagged monk seals stayed near the atoll; however, some spent time away from the atoll and one moved repeatedly 50 to 100 miles northeast of the atoll, diving to depths exceeding the 500-meter scale of the depth recorder. Highest priority has been placed on monk seal rehabilitation, population monitoring, and mobbing work by the Hawaiian Monk Seal Recovery Team and it has not recommended expanding these tracking studies. Consistent with this advice, the Service advised the panel that it planned to continue scat sampling and satellite-tagging work at current levels. It noted, however, that the additional funds were being consid- ered to test new global positioning system tags to track seals. Because of their limited mobility and size and their presence near pupping beaches, lobsters and octopuses may be important prey for young seals learning to feed. Lobsters, and incidentally some octopuses, also are taken commercially in the Northwestern Hawaiian Islands. Although most fishing effort has been east and west of French Frigate Shoals at Necker Island and Maro Reef where catch rates are much greater, some fishing has occurred at French Frigate Shoals. Lobster catch rates declined significantly throughout the 1980s and, after the apparent ecosystem-wide decline in productivity in 1990, lobster fishing in the Northwestern Hawaiian Islands was suspended in 1993. The fishery reopened briefly in 1995 to assess stock recovery, but was again closed because of continued low catch rates. Limited lobster fishing is being considered by the Western Pacific Regional Fishery Management Council for 1996. The panel was concerned that too little was being done to assess monk seal prey preferences and forag- ing patterns, particularly given the increase in pro- gram funding in 1995. With the Coast Guard and the Navy leaving Kure and Midway, respectively, the panel noted that future recovery would probably depend on at-sea factors. Also, because of limited reef habitat in the Northwestern Hawaiian Islands, seals could be particularly vulnerable to impacts from commercial fishing and pollution. The panel recog- nized the need for data on at-sea habitat use to evalu- ate such factors and to estimate carrying capacity levels. Therefore it recommended that work on prey analyses and at-sea tracking be expanded and that funding to test new global positioning tags be applied to proven satellite-tagging technology. The panel also recommended that, pending better information on the importance of lobsters in the diet of young seals, any efforts to open the Northwestern Hawaiian Islands' lobster fishery include a closure around French Frigate Shoals. After the meeting, field researchers reported that initial beach counts at French Frigate Shoals were 25 percent lower than counts in 1994 and that young seals continued to show signs of malnourishment and starvation. The Commission's 4 August letter to the National Marine Fisheries Service therefore expressed concern about commercial exploitation of prey re- sources for seals at French Frigate Shoals. It noted that the low catch rate of lobsters in past commercial catches at French Frigate Shoals could be the result of lobster consumption by the large local seal population. Given the clear and continuing signs of malnourished seals at this site and the uncertainty about juvenile prey preferences, the Commission recommended that the Service maintain a lobster fishing closure at French Frigate Shoals pending better data to assess impacts so that, if the fishery reopens, a potentially important prey resource for young seals at this site will not be reduced. Interagency Coordination and Program Over- sight — Although many agencies and groups have responsibilities and interests related to the recovery of Hawaiian monk seals, the panel was advised that the National Marine Fisheries Service has not held periodic interagency meetings to review progress and opportunities for cooperative work. Because of staff workloads, agency coordination has instead been handled by the Service's regional office staff on an ad hoc basis. Also, the Hawaiian Monk Seal Recovery Team, whose membership has not changed in several years, has not sought to fill this need. The panel was impressed by the commitment and interest shown by the key agency representatives at the Commission's review and by the efforts of the Service's management staff to work with other agency 26 Chapter III — Species of Special Concern officials. However, it also was concerned that the ad hoc approach to interagency involvement was not well-suited to keeping agencies and groups informed of critical issues and activities, nor was it the best way to elicit creative ideas on applying their respective programs to help meet monk seal recovery needs. The panel therefore recommended that the Service establish an interagency implementation team, co- chaired by representatives of the Service's monk seal research staff and management staff to review prog- ress and coordinate cooperative agency work. The Commission concurred with this recommenda- tion and reiterated it in its letter of 4 August to the Service. Tern Island — Tern Island at French Frigate Shoals is largely an artificial island protected on three sides by a sheet-metal bulkhead. Built by the Navy in World War II for use as an airstrip, the island was used by the Coast Guard as a LORAN station in the 1960s and 1970s and is now a Fish and Wildlife Service field station for the Hawaiian Islands National Wildlife Refuge. As the only airstrip between the main Hawaiian Islands and Midway, the island is an essential support base for wildlife research and management. Among other things, it has enabled rapid airlifts of seals for rehabilitation purposes. The airstrip and field station, however, are in imminent danger of being lost because of the badly deteriorated seawall protecting the island. To address this threat, the Fish and Wildlife Service contracted with the Army Corps of Engineers for a report evaluating shore protection alternatives. The report was completed in 1993 and, based on its results, the Service again contracted with the Corps to prepare construction plans for a new rock revetment. Corps and Service officials advised the panel that the con- struction plans would be completed by the end of 1995, but that funding to build the revetment had not been included in either Administration or Congressio- nal budgets for the Service. The panel noted that everything possible should be done to maintain the airfield and field station and to complete the planning efforts as soon as possible. It also noted that if the bulkhead was allowed to fail, erosion pockets behind the seawall and exposed debris now buried on the island would create entrapment hazards for sea turtles and monk seals and the collapse would itself require expensive demolition and clean-up work. In view of the possible obligations of former occupants who built and buried material that could soon become wildlife hazards, the panel recommended that the Service, in consultation with the Navy, the Coast Guard, and the Corps, re-examine all possible alternatives for stabilizing the island. The Commission shared the panel's concerns and included the panel's recommendation in its 4 August letter to the Fish and Wildlife Service. The Commis- sion also suggested that certain options, such as involving the Navy Seabees and seeking donations of construction materials, be considered as a possible means of installing a new shore protection system. Kure Atoll — In 1960 the Coast Guard began operating a LORAN navigation station on Kure Atoll. During the first two decades of operation, mean beach counts of seals declined from about 90 to less than 30 animals, apparently due to human disturbance of seal haul-out beaches. Early in the 1980s the Coast Guard significantly increased its efforts to reduce disturbance on atoll beaches, and the National Marine Fisheries Service began a head start program to protect pups born there. In 1984 the Service also started to intro- duce rehabilitated female pups from French Frigate Shoals. Together the decline in seals was reduced and by 1992, when the Coast Guard closed the station, beach counts had increased slowly to about 40 ani- mals. Upon closing the station in 1992 the Coast Guard demolished many of its facilities and undertook contaminant clean-up work, which was completed in 1993. Coast Guard officials advised the panel that some beach sediments with elevated PCB levels had inadvertently been left on the atoll and, in consultation with the National Oceanic and Atmospheric Adminis- tration, the Environmental Protection Agency, and the State, it was therefore considering whether and what further action may be needed. Although no analyses for contaminants in seal tissues have been done, there has been no evidence of effects on seal reproduction, survival, or health. Noting that a field camp would be established to monitor seals on Kure Atoll in 1995, the panel recommended that the Service assist the 27 MARINE MAMMAL COMMISSION - Annual Report for 1995 Coast Guard in collecting sediment and fish samples to assess whether remaining contaminants posed a threat to wildlife that would require further clean-up. Hawaiian Monk Seal Program Review Follow-up Based on the program review, there appeared to be broad agreement and support for most of the Service's monk seal recovery plans and since the meeting substantial progress has been made on most of the key issues. Among other things, the National Marine Fisheries Service: • supported field camps at all major breeding sites plus Midway; • approved a two-year grant request to significantly increase satellite tracking studies of monk seals at French Frigate Shoals, beginning in 1996; • worked with the Navy to develop a $250,000 proposal to the Navy's Legacy Program to fund work beginning in 1996 on rebuilding the Midway monk seal colony; • convened a 5-6 December 1995 interagency plan- ning meeting to develop a cooperative plan of action for restoring monk seals to Midway; • began construction to expand the Kewalo Basin seal holding facilities for its seal rehabilitation work; and • removed 12 more underweight pups from French Frigate Shoals for rehabilitation and subsequent release in 1996. By letter of 5 October 1995 the Service updated the Commission on these and other actions as part of its response to the Commission's 4 August letter. The Commission replied on 1 December, expressing its support and appreciation for the many significant accomplishments made by the Service over the past year. However, the Commission noted that further action was needed in two areas. The first concerned action on the Commission recommendation that a lobster fishery closure be retained at French Frigate Shoals, given the apparent food limitation for seals at that site and the uncertainty about the importance of lobsters in monk seal diets. The Service's letter stated it did not believe information was sufficient to justify the measure. In its reply, the Commission noted that, based on foraging data for other pinniped species, young monk seals may be particularly dependent on slow-moving invertebrates, including lobster, as they learn to feed. Moreover, given the uncertainty surrounding monk seal prey utilization, the Commis- sion observed that the situation was a good example of the need to invoke the precautionary principle support- ed by the United States internationally and not to fish for lobster at the atoll until better data are available on which to base management decisions. The second area in which the Commission urged further action was on its recommendation to convene periodic interagency meetings to coordinate efforts among interested parties. The Service's letter indicat- ed that it planned to defer action on this matter because the scope of such implementation teams is narrow compared to recovery teams, and because the evolving partnership on restoring seals to Midway should be evaluated before proceeding with a broader implementation team. In its 1 December reply, the Commission urged that such meetings not be deferred since most key agencies were not members of the recovery team and the positive follow-up to the April 1995 interagency review proved the value of such meetings. At the end of 1995 a response from the Service to these further points had not been received. In addition to actions by the National Marine Fisheries Service, several cooperating agencies alsc took important steps. In consultation with the Nation- al Marine Fisheries Service, the Coast Guard under- took an assessment of leached contaminants from old navigation light batteries in Midway's lagoon and removed the old batteries for proper disposal. The Fish and Wildlife Service accelerated its efforts to transfer ownership of the Midway Islands from the Navy and to prepare for assuming adminis- trative responsibility of the island. It also convened an interagency meeting in December 1995 to reexam- ine alternative actions to respond to the failing seawall on Tern Island at French Frigate Shoals. The Service advised the Commission of these steps by letter of 22 September 1995 and on 1 December 1995 the Com- mission replied, expressing interest in following progress on these matters. The Commission recom- mended that the Service contact the National Marine Fisheries Service to schedule section 7 consultations 28 Chapter III — Species of Special Concern under the Endangered Species Act on the effects of human activities planned at Midway under the Ser- vice's refuge management program. Throughout 1995 the Navy continued its efforts to assess and clean up contaminants and wildlife hazards on Midway. Planning for these activities was done in close cooperation with other interested agencies and included such actions, as removing debris and a badly rusted seawall along atoll beaches important for the reestablishment of a local seal colony. The Navy also worked closely with the Fish and Wildlife Service on transferring ownership of Midway. At the end of 1995 final action to transfer title to the Service had not yet been taken; however, it was the Commission's understanding that this was expected early in 1996. Finally, the Navy took several other steps to restore a viable seal colony to the atoll. In coopera- tion with the National Marine Fisheries Service, the staff of the Naval Facilities Engineering Command of the Pacific Division helped develop a $250,000 funding request to Navy's Legacy Program to initiate efforts in 1996 to reintroduce rehabilitated monk seals to Midway. Although the proposal was highly ranked, at the end of 1995 it was the Commission's understanding that the Department of Defense had recinded Legacy Program funding for 1996, in effect terminating the program. As a result, the Navy expects to receive no funds for this program in the coming year and to be unable to support the proposed work despite its high ranking. In the absence of funding from the Legacy Program, it was unclear what steps could be taken to carry out the contemplat- ed monk seal reintroduction work at Midway in 1996. Captive Maintenance In 1995, 12 underweight female monk seals were taken into captivity from French Frigate Shoals for rehabilitation and subsequent release. As indicated above, it is hoped that these seals will be released at Midway in 1996. Prospects for their release in 1996, however, became uncertain when, between early September and the end of 1995, nine of the 12 captive animals developed glaucoma, corneal opacity, and related eye problems. The disease process seems unlike any previously identified in captive or wild Hawaiian monk seals or other seal species. Its source has not been identified and, unless the cause can be determined to be non-infectious and without risk to wild animals, release of the seals will not be possible. Other than the observed eye problems, the animals have remained healthy. Some of the first animals exhibiting eye symptoms have recovered. Late in August 1995 two male monk seals died during the course of studies to test the effectiveness of testosterone-suppressing drugs. The Commission learned of the deaths late in September. Based on documentation provided by the Service, the deaths apparently were due to the procedures used to collect sperm samples rather than the drugs being tested. The procedures had been used successfully on other seal species but not previously on monk seals. Steller Sea Lion (Eumetopias jubatus) Steller sea lions (also called northern sea lions) are one of the world's largest pinnipeds. Adult males reach three meters in length and more than 900 kg in weight. Preferring isolated, rocky shores to give birth, breed, and molt, the species' range extends around the northern rim of the North Pacific Ocean from California to Russia, and in the Bering Sea north to the Pribilof Islands. About three-fourths of all Steller sea lions haul out along U.S. shorelines. In the past Steller sea lions were taken by Alaska Natives for fuel, clothing, food, and materials to make small boats. However, with alternative materials available for many of these uses, Steller sea lions are now taken principally for food. Over the past 30 years Steller sea lions have experienced one of the most extensive declines of any marine mammal in U.S. waters. Numbers at some major rookeries in the western Gulf of Alaska, the eastern Aleutian Islands, and Russia have decreased more than 90 percent, and some rookeries, including the species' southernmost rookery at San Miguel Island in southern California, have been abandoned entirely over the past 20 years. Population estimates for Steller sea lions in different parts of the species' range are shown in Table 3. 29 MARINE MAMMAL COMMISSION - Annual Report for 1995 Table 3. Steller Sea lion population estimates , 1960s to 1994 (t = estimates excluding pups; | = estimates including pups) % Difference Area 1960s 1970s 1985 1989 1994 1960 to 1994 Western Stock Russia! 41,000- 52,300 — — 10,000 — — Aleutian Islands! 127,300 115,700 78,400 24,400 19,000 -84% Bering Sea! 11,600 5,200 3,800 1,200 2,200 -58% Gulf of Alaska! 88,700 70,700 48,900 40,600 22,000 -69% Total Western Stock! 227,600 191,600 131,100 66,200 43,200 -81% (U.S. areas only) Eastern Stock Southeast Alaska! 9,000 10,300 10,300 15,800 14,600 + 62% British Columbia! 11,500 6,100 6,100 6,100 8,100 -30% Oregon & California! 10,300 6,400 6,700 6,800 9,300 -10% Total Eastern Stock! 19,300 16,700 17,000 22,600 23,900 +24% (U.S. area only) Sources: Loughlin, T.R., A.S. Perlov, and V.A. Vladimirov. 1992. Range-wide estimation of total abundance of Steller sea lions in 1989. Marine Mammal Science 8:220-239. Small, R.J., and D.P. DeMaster. 1995. Alaska marine mammal stock assessments 1995. NOAA Tech. Memo. NMFS-AFSC-57. National Marine Fisheries Service. 93p. Olesiuk, pers. comm. as cited in National Marine Fisheries Service. 1995. Proposed change in listing status of Steller sea lions under the Endangered Species Act. Federal Register 60( 1 92):5 1 968-5 1 978 . Causes of the decline are uncertain but may be due to a combination of factors that vary in time and by area. Among the possible causes are reduced prey availability due to commercial fishing or climatic change, incidental taking by foreign and joint-venture trawl fisheries between the late 1960s and late 1980s, human disturbance at haul-out sites, deliberate shoot- ing by fishermen, a commercial sea lion harvest in parts of Alaska from the 1950s to the early 1970s, hunting in British Columbia from the early 1900s to the early 1960s to reduce predation on commercial fish stocks, and subsistence hunting. In response to the decline, the Marine Mammal Commission recommended in 1988 that the National Marine Fisheries Service list Steller sea lions as depleted under the Marine Mammal Protection Act. It also called upon the Service to convene a conserva- tion team to review needed actions and prepare a conservation plan using a Steller sea lion species account published that year by the Commission (see Appendix B, Lentfer 1988). The Service conducted a range-wide survey in 1989 to help improve the basis for making management determinations concerning the stock, and in 1990 the Environmental Defense Fund petitioned the Service to list Steller sea lions as endangered under the Endangered Species Act. The Service responded by taking emergency action in April 1990 to list the species as threatened, and in December made the listing final. Under provisions of the Endangered Species Act, the Service also con- vened a recovery team in 1990, and in 1992 it adopt- 30 Chapter III — Species of Special Concern ed a recovery plan based on a draft plan prepared by the recovery team using the Commission's species account and other information. As part of its sea lion recovery program, the Service increased research efforts to monitor the population and determine possible causes of the decline. In addition, the Service designated major rookeries and adjacent waters as critical habitat; established regulations to limit access to rookeries, prohibit fishermen from shooting near sea lions, and restrict commercial fishing around major rookeries; limited proposed increases in commercial catch quotas for pollock, a major sea lion food resource; and adjusted area fishing quotas to divert fishing opera- tions away from sea lion foraging areas. Despite these measures, there has been no indica- tion that the population has begun to recover. As dis- cussed below, the Service has therefore begun steps to upgrade the species' threatened status under the Endangered Species Act and to strengthen protection measures. reversed or slowed. Later in 1993 pup counts at selected rookeries indicated that the decline was continuing. In light of these findings, the Service on 1 November 1993 published a Federal Register notice announcing its intent to review the status of Steller sea lions under the Endangered Species Act to determine if the species should be reclassified as endangered. It also announced plans to conduct another range-wide survey of Steller sea lions in 1994. In its 6 January 1994 comments to the Service on the notice, the Commission recommended that the status review be completed promptly using available data, and that draft criteria for judging whether the species should be listed as endangered be circulated to the Commission and the recovery team for review. The Service replied on 31 January, advising that it planned to await results of the 1994 population survey before reviewing the species' status because the decline between 1989 and 1992 showed some signs of slowing. It also stated that it would provide reclassifi- cation criteria to the Commission and the recovery team for review. Endangered Species Act Status Review As noted above, in 1990 the National Marine Fisheries Service designated Steller sea lions as threatened under the Endangered Species Act and established the Steller Sea Lion Recovery Team to help develop a recovery program. In 1992 the Service also adopted a Steller Sea Lion Recovery Plan prepared by the recovery team. One element of the recovery team's recommended plan not adopted by the Service was criteria for delisting and reclassifying the species under the Endangered Species Act. On this point the Service concluded that further analysis was needed, and over the next two years the Service undertook several related studies. In 1992 the Service conducted another population survey that found Steller sea lion counts were continu- ing to decline in many areas. Early in 1993 it com- pleted a population viability analysis to assess long- term implications of the decline. Using sea lion counts made between 1985 and 1992, the analysis concluded that there was a high probability that the Steller sea lion population would become extinct within 60 to 100 years if the downward trend was not As preliminary results of the 1994 population survey became available, it was apparent that the decline was continuing at an alarming rate. In addi- tion, new analyses of genetic samples and population trends of colonies throughout the species' range indicated that Steller sea lions comprised two distinct stocks exhibiting separate population trends. During 1994 neither the Commission nor the recovery team received proposed reclassification criteria from the Service although the Commission repeated its request by letters of 10 June and 30 November 1994. In addition, the Steller sea lion recovery team reviewed information on the species' status at its 29- 30 November 1994 meeting. Based on its review, the team wrote the Service on 20 December, advising that it had concluded that Steller sea lions should be managed as two separate stocks — an eastern stock from Cape Suckling, Alaska, east and south to Cali- fornia, and a western stock from Cape Suckling west to Russia. The team also concluded that, based on the criteria it had recommended in the draft recovery plan and criteria used by the World Conservation Union, the western stock should be listed as endangered, and the eastern stock should remain listed as threatened. 31 MARINE MAMMAL COMMISSION - Annual Report for 1995 On 4 January 1995 the Service responded to the Commission's request for reclassification criteria for Steller sea lions. It noted that it had been reviewing the general guidelines for listing species under the Endangered Species Act as well as related scientific analyses but, because of the broad non-objective nature of advice on the matter, it had been unable to develop specific relisting criteria for Steller sea lions. It added, however, that an important element in its deliberations would be the results of population viability analyses. In this regard, it noted that an endangerment threshold generally accepted by the scientific community was the probability of extinction within the foreseeable future, which for many mam- malian species is about 100 years depending on life history information. The Service also assured the Commission that it would use the best available scientific information to make its decision. Final results of the 1994 population survey con- firmed that the declining trend was continuing but at a somewhat slower overall rate. Based on the new data, the Service published a proposed rule in the Federal Register on 4 October 1995 to change the Endangered Species Act listing for Steller sea lions. Its proposal recognized two stocks separated east and west of Cape Suckling, Alaska, (east of Prince Wil- liam Sound) and called for listing the western stock as endangered and the eastern stock as threatened. Regarding the western stock, the Service noted that from 1990, when the species was listed as threatened, to 1994 counts of adult and juvenile sea lions at trend monitoring sites had declined by 21 percent, and pup numbers had declined by 28 percent. Applying population trend data from 1985 to 1994 to two population viability models — one based on composite population trends and the other on individual rookery trends — the Service found a 100 percent probability of extinction within 100 years in both cases. Consid- ering only data from 1989 to 1994, however, the models predicted 100-year extinction probabilities of 65 and 10 percent, respectively. Unlike the decline of the western stock, counts for the eastern stock have been relatively stable. Overall counts of juvenile and adult animals at monitoring sites in the eastern stock's range increased by 17 percent between 1990 and 1994 and, given its trend, the Service predicted that the eastern stock would persist for the foreseeable future. The Service noted, however, that prior to the decline, the proportion of U.S. Steller sea lions in the area of the eastern stock was less than 10 percent. It also noted that Steller sea lion numbers in California, the stock's southern limit, had declined 50 percent between 1950 and 1980 and 19 percent between 1990 and 1994, suggesting that the species' range may be shifting northward. Also, pup counts in central and southeast Alaska, which had been stable to increasing before 1991, declined by 20 percent between 1991 and 1994. In view of these latter points and other information, the Service concluded that the eastern stock should be considered vulnerable and remain listed as threatened. At the end of 1995 the Marine Mammal Commis- sion, in consultation with its Committee of Scientific Advisors, was completing a review of the Service's listing proposal and expected to provide comments early in 1996. The Commission found that the Notice provided a thorough, well-reasoned analysis of the proposed changes. With the 1994 counts of Steller sea lions in the western stock's range now less than 20 percent of those in the 1960s, the Commission planned to express support for its listing as endan- gered. Given the recent declines in pup production at the northern end of the eastern stock's range and the disappearance of the southernmost colony in Califor- nia, it also planned to support listing of the eastern stock as threatened. Habitat Protection As noted above and in previous annual reports, between 1990 and 1994 the Service took a number of actions to protect Steller sea lion rookeries, haul-out sites, and prey resources. In 1995 the measures specifically relating to Steller sea lions were not modified or expanded. However, in its 4 October 1995 Federal Register notice on the species' status under the Endangered Species Act, the Service noted that, given the western stock's high probability of extinction within 100 years under current trends, actions taken during the next 20 years would be crucial for the survival of that stock. To help identify additional measures that might be taken, the Federal Register notice invited comments on needed changes with respect to buffer area rules protecting important 32 Chapter III — Species of Special Concern Steller sea lion habitats, provisions to minimize commercial fishing impacts on sea lion prey resourc- es, and other management issues. As a related matter, the Service's notice also described certain conclusions and recommendations made by the Steller sea lion recovery team. To assure that the Service's research program provides the best possible basis for making management decisions, the team had recommended constituting a series of separate review panels with appropriate team members and outside experts to evaluate Service plans for work in the areas of satellite telemetry, physiology and health, and food habits. It also noted that the team had concluded that a change in food availability is the leading hypothesis for explaining the cause of the western stock's decline. In reviewing the Endangered Species Act listing proposal late in 1995, the Commission considered the above points with a view towards including comments on management related needs. Based on its review, the Commission concurred with the recovery team concerning the likelihood that prey availability was an important factor in the decline of Steller sea lions. Noting the importance of better information on sea lion food preferences and foraging ecology to evaluate this hypothesis and related management actions, the Commission expected to recommend to the Service that (1) the research program reviews suggested by the recovery team be prioritized to first examine plans for satellite-telemetry studies and foraging ecology research, and (2) the Service set aside funds as the recovery team may need to conduct reviews and other business in a timely manner. The Commission also observed that it seemed possible, if not probable, that commercial fishing was among the factors affecting sea lion prey. Unfortu- nately, despite considerable research efforts, informa- tion remains insufficient to determine precisely which fisheries may have the greatest effect on sea lion prey resources, the fishing areas of greatest concern, or the extent to which fisheries may affect sea lion prey availability. Given these gaps and recognizing the urgent need to reverse the sea lion decline, the Commission concluded that the most effective way to develop and evaluate appropriate fishery management measures may be through an experimental approach whereby different regulations or management measures are applied to different haul-out sites, feeding areas, or parts of the sea lion's range. The Commission also recognized the need for a comprehensive review of how commercial fisheries are being and should be managed to mitigate potential impacts on sea lion prey, similar to the review of research program elements recommended by the recovery team. The Commission therefore expected to recommend that the Service, in consultation with the recovery team, convene a panel of experts to evaluate and make recommendations on the full range of fishery manage- ment practices that may be useful for reversing the decline of Steller sea lions. Steller Sea Lion Stock Assessments Amendments to the Marine Mammal Protection Act in 1994 established a new regime to govern the incidental taking of marine mammals in commercial fisheries. Among other things, they required the National Marine Fisheries Service to prepare stock assessments for all marine mammal stocks in U.S. waters. Each assessment is to estimate the size and maximum productivity rate of the stock, calculate a potential biological removal level (not including natural mortality) that would allow the stock to increase towards its optimum sustainable population level, assess incidental-take levels in commercial fisheries, and determine if a stock is a strategic stock requiring special attention. The Service circulated draft stock assessments in August 1994 that included assessments for two stocks of Steller sea lions — a western U.S. stock and eastern U.S. stock. Final stock assessments were circulated in August 1995. Based on the 1994 sea lion population survey, the final assessment for the western U.S. Steller sea lion stock estimates the total stock size at 43,200 animals, including 9,600 pups. As data were not available to calculate the stock's maximum productivity rate, a general default value for all pinnipeds of 12 percent per year was considered the best estimate for this population parameter. With these estimates and other data, the Service calculated a potential biological 33 MARINE MAMMAL COMMISSION - Annual Report for 1995 removal level of 766 animals per year for this stock. Using observer data for the groundfish trawl, long- line, and pot fisheries in both the Bering Sea/ Aleutian Islands area and the Gulf of Alaska, and salmon gillnet fisheries in various parts of Alaska, the Service estimated that the annual incidental-take level in Alaska fisheries for the western U.S. sea lion stock is 33.4 sea lions per year. It also estimated that about 8 more animals per year are killed by gear-related injuries and illegal shooting. The final stock assessment for the eastern U.S. Steller sea lion stock estimated its size at 23,900 animals, including 5,300 pups. As it did for the western stock, the Service assumed a maximum productivity rate of 12 percent for the eastern stock. The calculated potential biological removal level for the stock was determined to be 1,056 animals. The assessment considered certain coastal gillnet fisheries to be the only commercial fisheries posing an inciden- tal-take threat to Steller sea lions. Based on observer reports and other data for those fisheries, the assess- ment concluded that the annual incidental take of Steller sea lions from the eastern U.S. stock was no more than five animals per year. Because the species, including both stocks, is listed as threatened, both stocks were automatically consid- ered strategic stocks under the Marine Mammal Protection Act. At the end of 1995 no action had been taken to establish an incidental-take reduction team for either stock. Given the low incidental-take levels, it was the Commission's understanding that the Service considered the need for sea lion take reduction teams to be low priority. Steller Sea Lion Subsistence Harvests Although Steller sea lions have been a traditional component of the subsistence harvests of Alaska Natives in some coastal communities, little informa- tion is available regarding harvest levels prior to 1992. That year, however, the National Marine Fisheries Service contracted with the Alaska Depart- ment of Fish and Game to assess subsistence use of Steller sea lions, as well as harbor seals, by surveying Native hunters and households in 65 coastal villages. Table 4. Estimated take of Steller sea lions, 1992-1994 95% No. Confidence No. Struck Total Limit for Year Landed & Lost Take Total Take 1992 370 179 549 452-712 1993 348 139 487 390-629 1994 336 80 416 330-554 Source: Wolfe, R.J. and C. Mischler. 1995. The subsistence harvest of harbor seal and sea lion by Alaska Natives in 1994. Technical Paper 236. Alaska Department of Fish and Game. Juneau, Alaska. 70p. + Appendices. The surveys have been continued since then with support from the Service, but results from work in 1995 was not yet available as of the end 1995. The estimated take levels for 1992 through 1994 from these surveys are shown in Table 4. Almost the entire subsistence take of Steller sea lions has been in the range of the western U.S. stock, and more than three-fourths of that take occurred on the Pribilof and Aleutian Islands. The highest annual take from the eastern U.S. stock between 1992 and 1994 was estimate at six animals in 1992. In light of concern about the decline of Steller sea lions and their importance as a subsistence resource, Native residents in the Pribilof and Aleutian Islands are considering steps to establish a Steller Sea Lion Commission to develop a system of self-regulation and to explore co-management arrangements with Federal and State resource managers. As of the end of 1995, it was the Marine Mammal Commission's understanding that the Sea Lion Commission had not yet met or scheduled a time to meet, but that member- ship and organizational matters had been discussed among Native village representatives, and that the National Marine Fisheries Service had offered to pro- vide funding for the Sea Lion Commission to meet. 34 Chapter III — Species of Special Concern Harbor Seals in Alaska (Phoca vitulina richardsi) Harbor seals occur in temperate and sub-arctic coastal waters of the North Atlantic and North Pacific Oceans. In the North Pacific Ocean their range extends from San Ignacio Lagoon in Baja California Sur, Mexico, northward and westward around the rim of the ocean basin to Hokkaido, Japan. In Alaska the species is found along the shores of the Gulf of Alaska, the Aleutian Islands, and the southeastern Bering Sea. Harbor seals haul out to rest, pup, and molt on remote beaches, tidal mud flats, offshore rocks and reefs, sea ice, and objects such as buoys and log rafts. They generally remain within about 20 kilometers of shore near estuaries and protected coastal waters. Tagging studies indicate that some harbor seals migrate up to 1 ,000 km between summer and winter habitats; however, in most cases, their seasonal movements are much more confined, usually extend- ing from less than a hundred to a few hundred kilo- meters. Within their individual ranges, harbor seal movements may be influenced by the tides, weather, food availability, and other factors. In some cases, they move seasonally into freshwater streams and lakes. Early in the 1970s approximately 270,000 harbor seals were estimated to occur in Alaska coastal waters. In the 1980s, however, substantial declines were detected in the central and western Gulf of Alaska from Prince William Sound through the Kodiak Island region, as well as in the southeastern Bering Sea. For example, at what was once the world's largest harbor seal colony on Tugidak Island southwest of Kodiak Island, maximum counts declined from more than 9,000 in the mid-1970s to less than 2,000 in the mid-1980s. The reasons for the decline are uncertain but may be related to reductions in prey resources. As described in previous annual reports, the Commission provided funds to the Alaska Depart- ment of Fish and Game in 1988 and 1990 to monitor harbor seal population trends at index sites in south- eastern Alaska, Prince William Sound, and Tugidak Island. In 1991 the National Marine Fisheries Service began a program to obtain minimum estimates of harbor seal abundance throughout Alaska. Because harbor seals occur close to shore, they may be affected by a variety of human activities, including coastal pollution and coastal development. They are also an important subsistence resource for Alaska Natives. These factors, and the sharp declines in some parts of Alaska, have given rise to concern about the need to strengthen conservation efforts for the species in Alaska. Alaska Native Subsistence Harvests Although harbor seals have been a traditional subsistence resource for Alaska Natives in many areas of the State, information on harvest levels prior to the 1990s is limited. Beginning in 1992 the National Marine Fisheries Service provided funds to the Alaska Department of Fish and Game to gather information on the subsistence use of harbor seals (and also Steller sea lions) in Alaska. From surveys with hunters and Native households in coastal villages throughout the State, details of the subsistence take, including an estimate of total take (i.e., landings plus animals struck but lost), have been developed for the years 1992 to 1994. The estimated total Native subsistence take of harbor seals in Alaska for those years was 2,888 in 1992, 2,736 in 1993, and 2,620 in 1994. In each of those years, more than half the take occurred in southeastern Alaska where harbor seal numbers have generally been stable or increasing. Survey results for 1995 are expected to be available in 1996. Co-Management of Harbor Seals in Alaska The 1994 Marine Mammal Protection Act was amended to provide for the establishment of co- management agreements between the National Marine Fisheries Service and Alaska Native organizations. The purpose of the agreements is to provide a frame- work for cooperative efforts related to the conserva- tion of marine mammal species of mutual concern in Alaska. In this regard, Native harbor seal hunters in villages along the Gulf of Alaska formed the Alaska Native Harbor Seal Commission in 1994 to assist in 35 MARINE MAMMAL COMMISSION - Annual Report for 1995 such co-management efforts for harbor seals. In 1995, with funding provided by the National Marine Fisheries Service, the Alaska Native Harbor Seal Commission held several organizational meetings to develop bylaws and to develop a strategy for meeting co-management objectives. As a related matter, discussed in Chapter X, the Commission provided funding in 1995 for a study to determine what more might be done to develop a database on harbor seals taken by Alaska Natives. Among other things, the study is to review data collected by Native harbor seal hunters and determine how it might be made available without compromising proprietary information. The data are presently stored with the Alaska Native Harbor Seal Commission and the Alaska Department of Fish and Game. It also will suggest data collection protocols that could be used by Native hunters. Alaska Harbor Seal Stock Assessments The 1994 amendments to the Marine Mammal Protection Act direct the National Marine Fisheries Service to prepare stock assessments for all marine mammal stocks in the United States to help manage incidental take of marine mammals in U.S. waters (see Chapter IV). The assessments are to include estimates of the minimum stock size, the maximum net productivity, and the potential biological removal level (not including natural mortality) which, if taken, would still allow a stock to reach or remain within its optimum sustainable population level. The assess- ments also are to review information on take levels in commercial fisheries and in other human-related activities and to determine whether stocks are "strate- gic" stocks, which could require special management attention to reduce incidental-take rates . The Service distributed draft stock assessments in August 1994, including assessments for two harbor seal stocks in Alaska: a southeastern Alaska stock and a Gulf of Alaska/Bering Sea stock. For both stocks, the draft assessments concluded that human- caused mortality appeared to exceed the estimated potential biological removal levels and that they should therefore be considered strategic. As de- scribed the previous annual report, the Commission's 1 December 1994 comments to the Service on the draft stock assessments questioned the minimum stock size estimate for the southeastern Alaska stock and the justification for its designation as depleted. For the Gulf of Alaska/Bering Sea stock, the Commission suggested evaluating abundance, fishery take, and subsistence harvest data by region. In August 1995 the Service circulated its final stock assessments, including those for three harbor seal stocks in Alaska: a southeastern Alaska stock, a Bering Sea stock, and a Gulf of Alaska stock. For the first two stocks, respectively, the assessments cited minimum population estimates of 32,745 and 17,243 seals, assumed (given limited direct data) maximum net productivity rates of 12 percent per year, and calculated potential biological removal rates of 1 ,965 and 1,035 seals per year. It also concluded that the southeastern Alaska stock was stable and that, while counts in the Bering Sea area between 1975 and 1991 showed a decline, a potentially anomalous count in 1976 makes such a trend equivocal. For both the southeastern Alaska and Bering Sea stocks, incidental-take levels based on fishery observer data and fishermen's logbooks indicate take levels for the regions were below 10 percent of their estimated potential biological removal levels. Most of the incidental take in both regions involved set and drift gillnet fisheries for salmon. Combined with estimates of subsistence take in those regions, total human- caused mortality also was estimated to be below the calculated potential biological removal rates, and neither stock therefore was considered strategic under the Marine Mammal Protection Act. Estimates of minimum population size and potential biological removal levels were not provided for the Gulf of Alaska harbor seal stock. Instead determina- tions regarding these estimates and the population's status with regard to being a strategic stock were deferred pending analyses of information to be ob- tained through a co-management program. The period of the deferral and the information to be analyzed was not specified in the assessment. It was noted, however, that current estimates of population size are low compared to those from 1970s and 1980s. 36 Chapter III — Species of Special Concern Harbor Seal Status Review In 1988 the Commission published a series of species accounts for selected marine mammal species in Alaska, including harbor seals (see Appendix B, Lentfer 1988). In light of the sharp decline in harbor seal abundance in parts of Alaska, the Commission contracted for an update of the harbor seal species account, which was completed and published in 1994 (see Appendix B, Hoover-Miller 1994). In addition, the National Marine Fisheries Service initiated steps in 1992 to develop a harbor seal conser- vation plan under provisions of the Marine Mammal Protection Act. Work on the plan, however, was suspended in 1994 when efforts were redirected toward conducting a status review to determine whether harbor seals in Alaska should be designated as depleted under the Marine Mammal Protection Act. The Service announced its intent to conduct the status review in the Federal Register on 11 April 1994. In response to the notice the Commission provided the Service with a copy of the final harbor seal species account on 10 May 1994. On 10 June 1994 it also commented to the Service on factors that should be considered in determining whether harbor seals in Alaska should be designated as depleted. Among other things, it noted that harbor seal numbers had clearly declined in some areas of Alaska but have been stable or increasing in other areas. Given the limited understanding of harbor seal population structure throughout Alaska, the Commission recom- mended that the Service work with Alaska Native hunters and the Alaska Department of Fish and Game to gather harbor seal tissue samples from different parts of the State for analyses of possible genetic differences. Also, given the substantial decline in harbor seal numbers in the central and western Gulf of Alaska and the need to determine and eliminate causes of that decline, the Commission recommended that the Service appoint a group of experts to com- plete a conservation plan for harbor seals in those areas. Subsequently the Service amended the subsis- tence contract with the Alaska Department of Fish and Game to provide for collection of genetic samples as part of the Native subsistence sampling effort. As of the end of 1995 the Service had not yet published the result of its status review and had not yet completed a harbor seal conservation plan. Ongoing Research and Population Monitoring As noted earlier, there are uncertainties about the abundance and apparent population declines of harbor seals in certain areas in Alaska. In an attempt to improve population estimates and resolve other uncertainties, the National Marine Fisheries Service convened a workshop in Anchorage on 11-13 Novem- ber 1995 to review Alaska harbor seal population assessment data. A member of the Commission's Committee of Scientific Advisors participated in the workshop. Based on their review of harbor seal survey designs, data analyses procedures, and actual count data for various areas, participants provided recommendations for future research. A workshop report is expected to be available early in 1996. In addition, a number of studies have been and are being done to assess harbor seal declines, natural history, and abundance. Between 1991 and 1995 biologists at the National Marine Mammal Laboratory conducted replicate abundance surveys throughout Alaska, and radio-tracking studies to estimate the fraction of seals likely to be away from a haul-out beach during a survey period to develop a correction factor for calculating total abundance. Following the 1989 Exxon Valdez oil spill, the Alaska Depart- ment of Fish and Game, in cooperation with the National Marine Fisheries Service, conducted oil spill damage assessment studies to document the spill's effects on harbor seals. Since 1992 oil spill restora- tion studies have been conducted annually to monitor harbor seal numbers and to investigate harbor seal biology in the Prince William Sound region. Beginning in 1993 additional funding provided by Congress to the Alaska Department of Fish and Game through the National Oceanic and Atmospheric Administration has allowed harbor seal studies to be conducted in southeastern Alaska and the Kodiak area. These multifaceted studies are addressing seal behav- ior on land and at sea, physiology, disease, population dynamics, and trophic relationships, and have in- volved collaboration with the Service, the University of Alaska, Texas A&M University, and others. 37 MARINE MAMMAL COMMISSION - Annual Report for 1995 Northern Fur Seal (Callorhinus ursinus) Northern fur seals occur in coastal waters of the North Pacific Ocean from southern California to Japan and in pelagic waters from about 35 degrees north latitude to the central Bering Sea (Figure 2). Ap- proximately three-fourths of all northern fur seals breed and pup on Alaska's Pribilof Islands. Most other northern fur seals breed in Russia on the Rob- ben Islands, the Kuril Islands, and the Commander Islands. Two small rookeries also occur on San Miguel Island in southern California and Bogoslof Island in the central Aleutian Islands. Northern fur seals exhibit a high degree of site fidelity. Most animals three years of age or older return to their natal islands in summer to breed, pup, and molt. Tagging studies document only occasional movement of individuals between the various rookery sites. At other times of the year, fur seals generally remain at sea feeding, sometimes migrating long dis- tances. Most one-year-old fur seals and some two- year-old animals remain at sea year-round. Northern fur seals were harvested commercially for their pelts beginning in the late 1700s. By the 1800s excessive pelagic harvests of males and females of all ages threatened the species' economic as well as biological viability. As a result, the principal harvest- ing nations — Canada, Japan, Russia, and the United States — signed the Fur Seal Treaty of 1911. The treaty banned pelagic harvests in lieu of arrangements to share pelts from a managed onshore harvest of sub- adult male seals taken on U.S. and Russian rookeries. By limiting the harvest to sub-adult males, fur seal numbers were able to increase substantially over the next 30 years. With World War II, the treaty and fur seal harvests lapsed, and by the early 1950s the Pribilof Islands' fur seal herd had swelled to about two million animals — a number thought to be at or near its pre-exploitation size. Harvests were soon resumed on the Pribilof Islands. At the time the prevailing wildlife manage- Figure 2. Range and breeding islands of the northern fur seal 38 Chapter III — Species of Special Concern merit theory predicted that, after an initial decline in fur seal numbers, pup production, and pup survival would increase as the population attempted to compen- sate for animals removed by the harvest. Therefore beginning in 1956 some female as well as juvenile male fur seals were taken an effort to increase popula- tion productivity. In 1957 the four signatories to the former treaty signed the Interim Convention for the Conservation of North Pacific Fur Seals, under which land-based harvests were again managed and the take of both adult females and juvenile males continued. Under the harvest strategy the population began to decline as expected, but instead of rebounding a few years later, it continued to decline. The take of females was therefore stopped in 1968. As expected, the population continued to decline through 1970 due to a residual effect of the female harvest, and then began to increase early in the 1970s. But from 1974 through the early 1980s, it again declined at a rate of about eight percent per year for reasons that could no longer be attributed to the female harvest. By 1983 its number had dropped to about 877,000 animals, less than half its size in the early 1950s. Throughout this period the interim convention was extended by a series of protocols until 1984 when it lapsed. At that time management authority for fur seals in the United States reverted to domestic authori- ty under the Fur Seal Act of 1966 and the Marine Mammal Protection Act. Under these acts, com- mercial harvests were stopped and only a much smaller subsistence harvest by Aleut Natives on the Pribilof Islands continued. Since the early 1980s the Pribilof Islands' fur seal herd has remained relatively stable, but because of the magnitude of its decline prior to that time the population was designated as depleted under the Marine Mammal Protection Act in 1988. Based on a 1994 census (the most recent survey), its current size is estimated at about 1,014,000 animals, or about 1,019,000 animals if Bogoslof Island fur seals are included. While causes of the population decline in the 1970s remain puzzling, research indicates that it was related to an increase in mortality of juvenile seals during their first few years of life. Among the more plausi- ble factors thought to have been involved are entan- glement in marine debris, incidental take in high seas driftnet fisheries in the North Pacific Ocean, long- term environmental change, and reduced prey avail- ability. Effects of disease and parasites are poorly understood but also may have been a factor. Causes not thought to be significant include lingering effects of the commercial harvest of females in the 1960s, the commercial harvest of sub-adult males prior to 1985, emigration, and predation. Failure of the population to recover since the early 1980s is equally puzzling but may be related to the continuing effects of marine debris, environmental change, and reduced prey. Subsistence Harvest Before 1985 Aleut residents of St. George and St. Paul Islands in the Pribilof Islands used a portion of the commercial fur seal harvest for food and other purposes. Since then, these needs have been met by a much smaller subsistence harvest of sub-adult male seals taken between June and August using methods similar to past commercial harvests. The subsistence harvest is managed by the National Marine Fisheries Service pursuant to regulations authorized by the Fur Seal Act and the Marine Mammal Protection Act. The regulations require that, before the actual harvests begin, the Service estimate the upper and lower harvest levels likely to meet the annual subsis- tence needs of Aleut residents on the Pribilof Islands. Whenever the estimated lower level is reached, har- vesting is suspended until it can be determined how many additional seals are needed. In 1994 the Service projected that subsistence needs for 1994, 1995, and 1996 could be met by annual harvests of between 281 and 500 fur seals on St. George Island and between 1,645 and 2,000 fur seals on St. Paul Island. In 1995 the total subsistence harvest was 1,525 fur seals, including 260 animals on St. George and 1,265 animals on St. Paul. As shown in Table 5, the 1995 harvest was slightly lower than recent harvests. When the Service requested public comments on its project- ed subsistence harvest needs for the years 1994 to 1996, some commenters suggested that the estimates were too high because recent butchering methods used by Aleut sealers did not fully utilize all suitable parts of seal carcasses. Data on butchering techniques employed in the 1995 harvest indicate seal carcasses were fully utilized. 39 MARINE MAMMAL COMMISSION - Annual Report for 1995 Table 5. Subsistence harvest levels for northern fur seals in the Pribilof Islands, 1985-1995 1 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 St. Paul St. George Total 3,384 1,299 1,710 1,145 1,340 1,077 1,645 329 124 92 113 181 164 281 3,713 1,423 1,802 1,258 1,521 1,241 1,926 1,482 1,518 1,616 1,265 194 319 161 260 1,676 1,837 1,777 1,525 Data provided by the National Marine Fisheries Service, Alaska Region. Northern Fur Seal Stock Assessments In 1994 the Marine Mammal Protection Act was amended to provide a new approach for managing interactions between marine mammals and fisheries. In part, it required that the National Marine Fisheries Service prepare stock assessments for all marine mammal stocks in U.S. waters. The assessments are to include estimates of key population parameters, such as size and maximum productivity, in order to calculate a potential biological removal level (not including natural mortality) that, if taken, would allow a stock to increase towards its optimum sustainable population level. To assure that commercial fisheries do not cause mortality in excess of this level, the assessments also must include a determination as to whether the stock is a "strategic stock" possibly requiring the establishment of an incidental-take reduction team and preparation of an incidental-take reduction plan. The Service circulated draft stock assessments for review in August 1994 and final stock assessments in August 1995. It concluded that northern fur seals in U.S. waters consisted of two distinct stocks — an eastern Pacific stock composed of animals breeding on the Pribilof Islands and Bogoslof Island and a San Miguel Island stock in southern California. Eastern Pacific Stock — Based on fur seal census data collected in 1994, the final stock assessment for the eastern Pacific fur seal stock estimated its size to be 1,019,192 animals, including an estimated 5,173 animals on Bogoslof Island. Using population growth trends from 1912 to 1940 — a period of steadily in- creasing numbers — the Service concluded that the maximum net annual productivity rate for the popula- tion is 8.6 percent. Based on this and other data, the stock's potential biological removal level was calculat- ed to be 20,846 animals per year. Because the Pribilof Island fur seal population is listed as depleted under the Marine Mammal Protection Act, the stock was automatically considered a strategic stock (see Chapter IV for discussion of strategic stocks). In commenting on the draft assessment in 1994 the Commission noted that, unless it could be inferred why the stock presently is not growing, it would seem that a potential biological removal level could not be calculated for this stock. The Service's determination of a potential biological removal level, however, did not address this point, and given the lack of popula- tion recovery since the early 1980s, it is questionable whether the estimated potential biological removal level would allow the population to increase if that number was actually removed. Based on fishery observer and logbook data, the Service noted that incidental take in commercial fisheries appears to be insignificant, approaching a zero mortality and serious injury rate. Six fisheries in the Bering Sea and Gulf of Alaska are thought to be potential sources of incidental take for northern fur seals. The Service estimated that these fisheries resulted in a total annual mortality rate of less than 10 animals now that high-seas driftnet fishing, a previous source of incidental take, was no longer authorized. Considering the low incidental-take rate, no action was taken in 1995 to constitute a take reduction team for this stock even though it is considered a strategic stock. 40 Chapter III — Species of Special Concern San Miguel Island Stock — The final stock assessment for the San Miguel Island stock of fur seals estimated its population size in 1994 to be 10,536 animals and assumed that the estimated annual maximum recovery rate for the eastern Pacific stock (8.6 percent) also applied to this stock. Except for a sharp decrease in numbers in 1982, the year of a severe El Nino event, the population has increased steadily since the early 1970s. The potential biologi- cal removal level was calculated to be 227 fur seals. Noting there have been no reports from fishery observers or fishermen of fur seals being taken incidentally in California gillnet fisheries in the past five years, the Service determined that the San Miguel Island fur seal stock was not a strategic stock, and no action was taken in 1995 to constitute a take reduction team. Development on the Pribilof Islands With the end of commercial fur seal harvests on the Pribilof Islands in 1984, Native residents began to encourage development of regional fishing and sea- food processing industries as a new base for the islands' economy. Port facilities were improved and, since the late 1980s, new seafood processing plants have begun operating on St. Paul and St. George Islands. In addition, several processing vessels have begun anchoring nearshore where they discharge processing waste during the fishing season. Coinci- dent with this development, concern arose over the effects of discharged seafood processing waste, vessel traffic, and oil spills on fur seals and rookeries. In 1990 a condition previously unreported in marine mammals called white muscle disease syn- drome was observed in fur seal pups at rookeries close to a broken sewage outfall pipe on St. Paul Island. At the time, both sewage and seafood pro- cessing waste was being discharged through the municipal waste system and the pipe was leaking close to shore. Although the syndrome has not recurred and its cause was never identified, some sort of oxidizing compound or chemical dumped into the waste treatment system was a possible factor in the occurrence of the incident. Late in 1993 and early in 1994 several new pro- cessing plants opened. As a result of installation and design problems in the waste discharge outfalls, some of the outfalls using plastic pipe soon ruptured, allowing discharges closer to shore than permitted. Coincident with the peak crab processing season in February, crab shells, rubber packing bands, and other processing wastes began washing onto rookeries close to the outfalls. That summer researchers found that, while the overall number of northern fur seals on St. Paul Island remained steady, numbers at the two rookeries nearest the outfalls and the industrial area had declined. Also early in 1994, both islands experienced an incident where a vessel ran aground and released fuel and other materials on or near fur seal haul-out beaches. During the subsistence harvest the following summer, a sharp increase in the number of fur seals with tar-like material in their ventral pelage was observed among the fur seals harvested from rookeries near the outfalls on St. Paul Island. Although the origin of the substance was not determined, the groundings and increased nearshore vessel traffic were considered among the possible sources. While these observations raised concern about impacts on wildlife from seafood processing discharg- es and increases in associated vessel traffic, informa- tion was insufficient to predict possible impacts and develop appropriate management measures. Waste outfalls from seafood processing plants for most parts of Alaska, including the Pribilof Islands, have been authorized under a single five-year National Pollution Discharge Elimination System general permit issued by the Environmental Protection Agency under the Clean Water Act. In 1994 the agency proposed replacing a 1989 general permit, scheduled to expire in October 1994, with a new permit incorpo- rating more restrictive provisions on discharges near significant biological resources. Many of the new restrictions were precipitated by concern for the many fur seal rookeries, seabird nesting sites, and critical habitats on the Pribilof Islands and would have limited the nearshore areas around the islands where discharg- es could be allowed. The proposed restrictions raised concern among some residents of the Pribilof Islands and seafood processors that seafood processing plants would be precluded from operating on or near the Pribilof Islands. 41 MARINE MAMMAL COMMISSION — Annual Report for 1995 In response to these concerns, in 1994 the Alaska Division of Government Coordination issued a consis- tency determination under the State's Coastal Zone Management Program, finding that seafood processors on the Pribilof Islands should be exempted from the statewide general permit and instead be covered under an interim two-year general permit. Pending issuance of the interim permit, pre- 1994 discharge restrictions would apply, and an interagency task force of local, state, federal, and industry officials would evaluate key issues and recommend conditions for the two-year interim permit period. During that two-year permit period, monitoring studies would be undertaken to resolve uncertainties about potential wildlife impacts. Based on their results, general permit conditions specific to the Pribilof Islands would be developed for implementation when the interim permit expired. During 1995 several steps were taken to address problems that had arisen with the various waste outfalls. Two of the three seafood processing plants on St. Paul Island replaced waste outfalls made of plastic pipe with steel pipelines, which were properly secured to prevent rupturing. Leaks in the remaining plastic pipe were also repaired, and municipal sewage from the city of St. Paul was then discharged through that pipeline, pending construction of a new municipal outfall to be completed in 1996. Heavy seas and sea ice conditions common in the Pribilof Islands in winter and early spring, however, remain a threat to the integrity of this outfall. Also in 1995 the Environmental Protection Agency developed a proposed two-year general permit for all seafood processors on or within three miles of the Pribilof Islands. Its provisions would ban discharges of solids larger than one-half inch in any dimension and prohibit all discharges within one-half nautical mile of any fur seal rookery or protected seabird nesting area. Other provisions would prohibit dis- charges within three nautical miles of Walrus Island (a major Steller sea lion rookery) and require monitor- ing studies to document evidence of discharged wastes on the sea floor, the sea surface, and adjacent shore- lines. Public comments on the proposed permit were received by the agency late in 1995 and a final decision on the proposed two-year interim permit is expected early in 1996. The development of plans to carry out an adequate research program to help identify needed actions after the two-year interim period remain uncertain although some steps have been taken. To help assess the likely movement of discharged seafood processing wastes, the Environmental Protection Agency provided funds to study ocean currents around the Pribilof Islands and, as noted below, the National Marine Fisheries Service undertook monitoring studies to detect possi- ble impacts from outfall discharges at fur seal rooker- ies on the Pribilof Islands. The interagency task force responsible for identifying and evaluating problem areas, however, has not met to develop final recom- mendations on needed research and monitoring studies, and it was not clear what steps would be taken to address this need. As a related matter, a separate task force to consider vessel traffic problems and oil spills was to be convened by the Coast Guard, but as of the end of 1995, it too had not yet met. Northern Fur Seal Research Activities in 1995 In response to recommendations by the Marine Mammal Commission and a requirement added to the Marine Mammal Protection Act in 1988, the National Marine Fisheries Service developed and, in 1993, adopted a conservation plan for northern fur seals. The plan's primary purpose is to identify and guide research and management actions needed to restore the depleted fur seal population on the Pribilof Is- lands. As described elsewhere in this section, fur seal management activities in 1995 focused on the subsis- tence harvest, waste discharges from seafood process- ing plants and associated vessel traffic, and incidental mortality due to commercial fishing operations. To provide an informed basis for making manage- ment decisions, the fur seal conservation plan includes research provisions for monitoring the status and trends of fur seal populations, and clarifying the causes of the recent population decline and lack of recovery of the Pribilof Islands population. However, after the Interim Fur Seal Convention lapsed in 1984, funding for fur seal research declined significantly. In recent years, funding has been sufficient to carry out little more than basic population monitoring work, which itself was cut back in 1985 from an annual effort to a biennial program. This work has been supplemented by cooperative studies with Native 42 Chapter III — Species of Special Concern organizations, universities in the United States, and research institutes in nations party to the former Fur Seal Convention — particularly Japan and Russia. In 1995, however, the Service provided $291,000 for fur seal research, significantly increasing the species' research budget. As a result, Service scien- tists were able to continue basic population monitoring work and cooperative studies and also to initiate work in several new areas. With regard to ongoing popula- tion monitoring work, the Service conducted counts of adult males at rookeries on the Pribilof Islands, collected and analyzed scat samples to monitor prey utilization, took measurements of pups to assess their condition, and evaluated the accuracy of the methodol- ogy used to estimate population size. As noted above, the decline in fur seal numbers has been linked to a decrease in juvenile survival. To help assess factors affecting juvenile survival rates, the Service used some of its 1995 funding to initiate two new lines of study. The first involves investigat- ing the proportion of time pups spend at sea and on land prior to their weaning and departure from the rookeries to begin their one- to three-year period of life at sea. The second area of new work involves developing and constructing lightweight satellite tags suitable for safe use on fur seal pups to determine their at-sea habitat-use patterns. The Service expects to deploy the tags built with this year's funding during the 1996 field season. Finally, the Service continued partial funding for cooperative studies. Among the cooperative research projects undertaken in 1995 were investigations of differences in female foraging patterns and rates of milk transfer to pups during the lactation period; an evaluation of the effect of ending the commercial harvest on population growth and demography; genetic studies to assess movement of animals between rookeries in different parts of the species' range; an assessment of the effect of pollutants on the immune response system of fur seal pups; monitoring marine debris entanglement rates among juvenile male fur seals returning to the rookeries after their first few years at sea; and monitoring population trends and mortality at rookeries on the Pribilof Islands for possible impacts associated with discharges from seafood processing plants. Pacific Walrus (Odobenus rosmarus divergens) The world's largest stock of walruses, and the only stock found in U.S. waters, occurs over continental shelves in the Bering and Chukchi Seas between Alaska and Russia (Figure 3). Numbering more than 200,000 animals, this stock represents perhaps 80 to 90 percent of the world's walruses. It also is the only stock comprising the Pacific walrus, which is recog- nized as a distinct subspecies. Other walrus stocks, which belong to either one or possibly two other subspecies, are located in north- eastern Canada, Greenland, Svalbard and Franz Josef Land in the northern Barents Sea east of Greenland, and northern Russia. The seven or eight stocks in these areas failed to recover from intense commercial hunting that began in the 1500s and continued into the early 1900s. Their current sizes are estimated to range from less than 500 to about 6,000 animals. As recently as the 1700s walruses also reportedly oc- curred in very large numbers in the Gulf of St. Lawrence and as far south as Sable Island, southeast of Nova Scotia, Canada. In both of these areas, however, they were extirpated by commercial hunters and there have been no signs of recolonization. Most Pacific walruses migrate seasonally with the advance and retreat of sea ice. When the pack ice reaches its maximum extent between January and March, nearly all walruses are in the Bering Sea, principally south and west of St. Lawrence Island and south and east of Nunivak Island. During the summer months, animals move north with the receding pack ice and by August most of the reproductive compo- nent of the herd (females and dependent calves) have moved through Bering Strait into the Chukchi Sea between Wrangel Island, Russia, and Barrow, Alaska. However, adult males and some immature males remain year-round in the Bering Sea along the east coast of Russia between the Chukotka and Kamchatka Peninsulas and as far south as Bristol Bay in Alaska. The Pacific walrus has experienced at least three cycles of depletion and recovery brought on by episodes of excessive commercial hunting. In the 1860s they were hunted intensively for oil and ivory 43 MARINE MAMMAL COMMISSION - Annual Report for 1995 Figure 3. Range of the Pacific walrus by American whalers. The resulting depletion in the 1870s caused widespread starvation and death among Native villages around the Bering Sea that were reliant on walruses for food. When walruses became scarce, commercial hunting pressure diminished, and walrus numbers rebounded in the late 1800s. Early in the 1900s Pacific walruses were again taken by U.S., Canadian, and Norwegian traders who used the animals to barter with Alaska and Chukotka Natives for furs. This practice declined in the 1920s, again leaving walrus numbers depleted but apparently not so depleted as in the 1870s. The third cycle began in the 1930s when Russian hunters began taking about 8,500 walruses annually for hides, oil, and ivory. By the mid-1950s, the population was again severely deplet- ed. The most recent recovery occurred in the 1960s and 1970s under management measures adopted independently by the State of Alaska and the Soviet Union. In the United States, lead management authority for marine mammals shifted to the Federal Government following passage of the Marine Mammal Protection Act in 1992. Under provisions of the Act allowing transfer of this responsibility to interested state governments, the State of Alaska requested a return of management authority for walruses and certain other marine mammals. As discussed in previous annual reports, problems arose in acting on this request and, after a protracted period of uncertainty about who would have lead responsibility over the long term, the State of Alaska decided in 1988 not to pursue its interest in this regard. 44 Chapter III — Species of Special Concern To help reach agreement on Alaska marine mam- mal conservation needs, whether under Federal or State leadership, the Commission in the mid-1980s initiated a cooperative effort involving all interested parties to prepare a series of species accounts for Alaska marine mammals. The series included ac- counts for walruses and nine other Alaska marine mammals with each account providing research and management recommendations. These were complet- ed in 1988 (see Appendix B, Lentfer 1988). With the determination that lead responsibility for walrus conservation would remain with the Fish and Wildlife Service, the Commission wrote to the Service late in 1988 recommending that it use the walrus species account to prepare a walrus conservation plan as suggested under the Marine Mammal Protection Act. The Service agreed, but work on the plan was soon interrupted by the Exxon Valdez oil spill and other matters. With further assistance from the Commis- sion, and in consultation with Native walrus hunters, the State of Alaska, and others, a final walrus conser- vation plan was completed and adopted by the Service in March 1994. Under current management programs in both the United States and Russia, authorized taking of walrus- es is limited principally to Native subsistence harvests and the take of a few animals for purposes of research and public display. Illegal hunting of walruses for ivory, however, is an important management issue in both countries. Other important walrus conservation issues shared by the two countries include the effects of contaminants on the health of both walruses and Native people who consume walruses, the effects of tourism on walrus behavior at some of the few land- based haul-out sites in the Bering Sea, and determin- ing the status and trends of the Pacific walrus stock. Recognizing the importance and benefits of cooper- ation on these matters, government officials and Native community leaders in the United States and Russia began work in 1994 on parallel government-to- government and Native-to-Native agreements to build an international framework to conserve the Pacific walrus stock. Efforts to develop these agreements are discussed in Chapter VI; other walrus conservation efforts in the United States are discussed below. Pacific Walrus Harvest Monitoring Program Native peoples in coastal areas throughout the Arctic have depended on walruses for thousands of years. The meat from harvested animals was an indispensable source of food for both people and dogs, while other walrus parts were used for fuel, tools, and construction materials essential, for every- day living. Although Native hunters now use rifles instead of the lances and harpoons used by their forbearers, walruses remain a vital cultural and subsistence resource. Native communities still rely on them for food, for ivory that can be worked into handicrafts and sold for needed income, and for maintaining cultural traditions. To meet these needs, the Marine Mammal Protection Act exempts Alaska Natives from its moratorium on taking marine mam- mals, provided the taking is not wasteful and the population is not listed as depleted under the Act. Native residents in at least 20 Alaska villages have taken walruses in recent years, but 50 to 80 percent of the annual harvest typically occurs in three villages — Gambell and Savoonga on St. Lawrence Island and Diomede on Little Diomede Island in Bering Strait. In the 1950s the Alaska Department of Fish and Game initiated a program to monitor walrus harvests. In 1980 the Fish and Wildlife Service and the Alaska Eskimo Walrus Commission assumed responsibility for the harvest monitoring program, which has been conducted each year except 1991 and 1992 when limited funding forced suspension of operations. In addition to providing data to estimate harvest levels, the program offers an important opportunity to work with Native hunters and to gather biological samples. Estimates of annual catch levels in Alaska since 1980, as well as the reported catch in Russia and the combined total catch in both countries, are shown in Table 6. These estimates do not include animals that are shot but escape mortally wounded. Most hunting occurs at sea while animals are on ice floes, and animals that are shot on ice floes may roll into the water and sink before they can be retrieved. Also, some hunting occurs while animals are swimming and some of those shot in the water may sink before they can be retrieved. A recent analysis of struck and lost rates from data on Alaska hunting between 1952 and 1972 concluded that 42 percent of the walruses shot 45 MARINE MAMMAL COMMISSION - Annual Report for 1995 by hunters were not recovered. The need to update this analysis is identified in the walrus conservation plan, and the Service is discussing work in this regard with Native hunters. The percentage of struck and lost animals that survive is uncertain, but based on the rare observation of healed bullet wounds on stranded animals and other information this may be low. As a result, the catch figures in Table 6 may reflect only 60 to 70 percent of the total number of animals killed annually by hunters. In light of the combined catch estimates for the United States and Russia and animals stuck but lost, the Service has expressed concern that harvest mortality in the mid-1980s may have approached or exceeded replacement levels. Table 6. Estimated catch of Pacific walruses in Alaska and total reported catch of walruses in Russia, 1980-1995 (Catch figures do not include animals struck and not retrieved.) Alaska Soviet Total Year Catch Catch Catch 1980 2,625 2,653 5,278 1981 3,518 2,574 6,092 1982 2,557 3,569 6,124 1983 2,261 3,946 6,207 1984 4,929 4,424 9,353 1985 3,903 4,708 8,611 1986 3,207 3,884 7,091 1987 2,734 4,673 7,407 1988 2,567 3,989 6,556 1989 1,008 3,678 4,686 1990 — 3,269 - 1991 — 2,514 — 1992 1,485 1,750 3,235 1993 1,352 856 2,208 1994 1,681 1,103 2,784 1995 1,979 — — Sources: Fay, F.H., and C.E. Bowlby. 1994. The harvest of Pacific walrus, 1931-1989. Technical Report MMM 94-2. U.S. Fish and Wildlife Service, Anchorage, Alaska. 44 pp. Data for 1990-1995 from Fish and Wildlife Service. Another source of data on walrus harvests is the marine mammal marking, tagging, and reporting program begun by the Service in 1988. The pro- gram's purposes are twofold — to help control illegal trade in marine mammal parts, including walrus ivory, and to improve information on the number of animals being taken. Under the program, walrus tusks taken in the subsistence harvest are tagged by authorized Service agents. The tags must thereafter remain with the uncarved tusks. From 1990 to 1994 tusks were tagged from 1,466, 2,163, 1,678, 1,173, and 1,303 walruses, respectively. Preliminary data indicate 966 animals were tagged in 1995. Walrus calves, which are sometimes taken by hunters, are not reflected in the tagging data because they lack tusks. Resumption of Subsistence Hunting at Round Island One of the four major terrestrial haul-out sites for walruses in the United States is on Round Island in northern Bristol Bay. In recent years, peak summer counts of walruses at Round Island have ranged from about 4,000 to 7,000 animals; in 1995 the peak count was 7,800 animals, the highest since 1986. Telemetry studies indicate that the walruses at Round Island are part of a regional group that also hauls out on beaches in at least two other Bristol Bay areas — Cape Senia- vin on the Alaska peninsula and Cape Peirce on the mainland. Round Island was traditionally a walrus hunting site for Native hunters in nearby villages; however, in 1960 the State of Alaska designated the Walrus Islands, which include Round Island, as a state game sanctuary. Established to protect what had become one of the last viable terrestrial walrus haul-out beaches in North America, the sanctuary was placed under management authority of the Alaska Board of Game and the Alaska Department of Fish and Game. As part of the action, Round Island was closed to hunting and access was restricted by a permit system. Since 1960 the sanctuary has become an increasingly popular destination for tourists interested in viewing walruses in their natural habitat. In 1991 Native hunters from several Bristol Bay villages asked the Alaska Board of Game to allow access to Round Island to resume a small subsistence hunt for walrus- 46 Chapter III — Species of Special Concern es. Action on the request was deferred pending collection of additional information and in 1993 a task force established by the Department met to examine the request. The task force concluded that a con- trolled harvest of up to 10 walruses in October likely would not have a serious impact on the walrus popula- tion or on use of the island as a major walrus haul-out site. After further consideration, the Board adopted new regulations on 20 March 1995 allowing the Department to issue access permits to the islands by qualified hunting parties. To represent their interests, Native walrus hunters in seven nearby villages formed the Qayassik (Round Island) Walrus Commission. The Department of Fish and Game, the Fish and Wildlife Service, the Eskimo Walrus Commission, and Qayassik Walrus Commis- sion then developed a cooperative management agreement and recommended regulations to govern subsistence harvesting on Round Island. Signed by the four parties on 22 September 1995, the agreement provides for a controlled harvest of up to 10 animals during the month of October. The cooperative agreement calls for limiting the harvest to experienced walrus hunting captains ap- proved by the Qayassik Walrus Commission. In addition, authorized hunters are to provide advance notice of hunting trips to the Department to facilitate monitoring of the harvest and its impact, all hunting is to be done on land, and the Qayassik Walrus Commission is to designate individuals to help collect biological samples from harvested animals for re- search purposes. As funding permits, the Department and the Service are to participate in monitoring the harvest to assess effects of the hunts on the walrus herd and other island resources, and the Eskimo Walrus Commission is to review and, as needed, assist activities of the Qayassik Walrus Commission. Permits for the hunt were subsequently issued by the Department and the Qayassik Walrus Commission, and the hunt took place 3-14 October 1995. A representative of the Department accompanied the hunters and a Service biologist monitored the behavior of the walruses from a remote vantage point. A total of 10 male walruses were killed and butchered as part of the hunt. In addition, one animal that was found very badly injured from natural causes was shot for humane reasons under the authority of the Service official monitoring the hunt's impact on walruses. Because of its poor condition, meat was not taken from it. Four other walruses appeared to have been seriously wounded by bullets apparently passing through adjacent target animals. All wounded animals escaped into the water. The Service biologist monitored walrus haul-out patterns before, during, and after hunting periods. The observations found no evidence of abandonment of the haul-out site except while hunters were on the beach. In many cases, groups of walruses remained a few meters off shore while hunters were on the beach and they usually returned to shore by the morning after a hunt. During the harvest, blood, liver, kidney, lung, tooth, and other biological sam- ples from the butchered animals were contributed by the hunters for research purposes. In 1996 results of the 1995 hunt will be reviewed by parties to the agreement to determine how best to proceed with future subsistence harvests at Round Island. The cooperation exhibited in preparing the agreement and carrying out the hunt is widely viewed as an important and positive step in the development of a collaborative co-management approach between responsible government agencies and the Native community on walrus conservation issues. Walrus Research and Monitoring Studies To provide information necessary for management purposes, the Service supports various projects identified in the walrus conservation plan. The National Biological Service provides support to address fundamental biological questions on walrus behavior, ecology, and population dynamics, while the Fish and Wildlife Service's Marine Mammals Man- agement Office supports monitoring studies to help detect and assess potential human- related effects. In 1995 walrus studies by the National Biological Service were directed to two principal areas: compi- lation of a database of biological information on Pacific walruses, and telemetry studies to determine movement patterns. The former effort, being done in cooperation with scientists in Russia, will combine available information in both the United States and 47 MARINE MAMMAL COMMISSION - Annual Report for 1995 Russia on counts of walrus at haul-out sites, walrus distribution, population censuses, harvests, and other topics. The work is scheduled to be completed early in 1998 and is being done in conjunction with a project to develop a geographic information system database of biological and ecological data for the entire Bering Sea ecosystem. The telemetry studies involved attaching VHF and satellite tags to 17 walruses in Bristol Bay to determine haul-out patterns and to locate feeding areas. The results are expected to be available in 1996 when work is planned to field- test new global positioning system satellite tags that provide more accurate location data. If successful, it is hoped that the new tags can be used on walruses hauled out along the ice edge to assess behavioral responses to vessel traffic and aircraft overflights. Monitoring studies carried out by the Fish and Wildlife Service's Marine Mammals Management Office have focused on three areas, in addition to the harvest monitoring work noted above. In 1995 the Office contracted for laboratory analyses of contam- inant levels and effects in walrus livers and kidneys collected in cooperation with Native hunters during spring hunts at Gambell and Savoonga between 1992 and 1994. Past studies have found high levels of mercury and cadmium in these tissues, and the studies are part of a continuing effort to detect trends and assess possible effects. A report of the work will be available early in 1996. Also in 1995 the Division supported laboratory analyses of blood samples from 20 walruses for signs of unusual diseases. None were found. It was also determined that there were no signs of exposure to several highly contagious animal diseases, such as morbillivirus or brucellosis. To monitor walrus health, the Service also has encouraged Native hunters to report observations and collect samples from walruses with unusual physical conditions. Among other things, laboratory analyses of samples collected by Native hunters found two samples that were apparently coated with crude oil and two liver samples with fibrosis possibly caused by infection. Pacific Walrus Stock Assessment In 1994 amendments to the Marine Mammal Protection Act directed the Fish and Wildlife Service to prepare stock assessments for marine mammal stocks under its jurisdiction. The purpose of the assessments is to provide a basis for managing the incidental take of marine mammals in commercial fishing gear. Among other things, the assessments are to include estimates of population size and maximum productivity, and to calculate the potential biological removal level (not including natural mortality) that could be taken annually and still allow the stock to reach or remain within optimum sustainable popula- tion levels. The assessments also are to provide information on annual incidental-take rates and to determine whether the stock is a "strategic" stock, which could require special management action (see Chapter IV). The Service circulated draft stock assessments for walruses and certain other species in August 1994. As described in the previous annual report, the Commission provided comments to the Service on 1 December 1994. The draft assessment concluded, among other things, that the Pacific walrus stock should be considered a strategic stock because the combined average annual harvest in the United States and Russia over the past 30 years exceeded its esti- mated potential biological removal level. In its comments to the Service on this conclusion, the Commission noted that if the analysis was limited to harvest levels since 1990 — the date of the population estimate used to calculate the potential biological removal level — the average annual harvest number would not exceed the potential biological removal level. The Commission, therefore, recommended that the Service reassess its finding that the stock should be considered strategic. Final stock assessments were provided to the Commission by the Service in October 1995. The assessment for Pacific walruses concluded that the stock probably numbers between 200,000 and 250,000 animals, but that, based on coefficients of variation from the most recent population survey, the best minimum stock estimate is 188,316 animals. It also concluded that the best current estimate of the maxi- mum productivity rate is eight percent per year. Using these and other data, the Service calculated a potential biological removal rate of 7,533 animals per year. National Marine Fisheries Service observer data 48 Chapter III — Species of Special Concern from 1990 to 1994 for various sectors of the Bering Sea groundfish fishery, the only fishery reported to incidentally take walruses, indicated an annual inci- dental-take rate of about 16 animals. The Service concluded this was an insignificant level that met the Marine Mammal Protection Act goal of approaching a zero level of mortality and serious injury. Considering total catch landings of walruses in the United States and Russia, plus an estimate of animals that were struck and lost, the Service estimated that the average annual level of human-related mortality and serious injury for the past five years was 5,894 animals. As this was below the estimated potential biological removal rate, the Service concluded that the Pacific walrus stock was not a strategic stock. Sea Otter (Enhydra lutris) The sea otter is the smallest marine mammal in the world with the exception of the marine otter (Lutra felina). It is the only member of the genus Enhydra, and comprises three identified subspecies: E.l. lutris, E.l. nereis, and E.l. kenyoni. Sea otters were historically found in nearshore waters of the North Pacific Ocean, from Hokkaido in northernmost Japan through the Kuril Islands, Kam- chatka Peninsula, the Commander Islands, the Aleu- tians, peninsular and south coastal Alaska, and south- ward down the west coast of North America to Baja California. Prior to the mid- 18th century, the world- wide population of sea otters was estimated at 150,000 to 300,000 animals. The Russian discovery of Alaska in 1741 led to intense commercial exploitation of sea otters that continued without regulation for 150 years. By the early 1900s, the total sea otter population was reduced to as few as 1,000 to 2,000 animals existing in 13 small and widely scattered remnant groups. Commercial exploitation of the species ended with the North Pacific Fur Seal Convention of 1911, an agreement between the United States, Russia, Great Britain, and Japan. With this protection, sea otters have recolonized or have been reintroduced into a substantial part of their historic range in Russia, the Aleutian Islands, south coastal Alaska, British Co- lumbia, Washington, and California. In the past 20 years, however, new threats have developed. They include possible oil spills from tanker accidents and well blow-outs, entanglement in fishing gear, and marine pollution. Efforts by the Marine Mammal Commission and others to ensure the continued protection of sea otters and their habitat have been discussed in previous annual reports. A summary of these actions and a discussion of efforts undertaken in 1995 follows. The Central California Population The sea otter population in California was nearly eradicated by commercial hunting. By the time protection was afforded in 1911, the total sea otter population in California may have numbered fewer than 50 animals found within a few miles of nearshore habitat along the rocky Point Sur coast. Under the Fur Seal Convention and additional protective mea- sures later implemented by the State of California, the population increased slowly. By the mid-1970s, approximately 1,800 sea otters inhabited nearshore areas along 160 miles of the central California coast. More recent population counts are shown in Table 7; the 1995 counts continued an upward trend that began in the 1980s. Because of its small size and limited distribution, and the growing risk of oil spills as a result of in- creasing tanker traffic in the area, the population was designated as threatened under the Endangered Species Act in January 1977. At that time, it was recognized that perhaps the best way to minimize the risk from oil spills would be to encourage further expansion of the population's range. However, such range expan- sion could impact commercial and recreational abalone and other shellfish fisheries that had developed in the absence of sea otters. In response to this realization, the Fish and Wildlife Service, acting on a December 49 MARINE MAMMAL COMMISSION — Annual Report for 1995 Table 7. California sea otter population counts by the Fish and Wildlife Service and the California Department of Fish and Game, 1982-1995 Year Independent Otters Dependent 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 1992 Spring Fall 1,810 1,581 291 134 2,101 1,715 1993 Spring Fall 2,022 1,662 217 143 2,239 1,805 1994 Spring Fall 2,076 1,730 283 115 2,359 1,845 1995 Spring Fall 2,095 2,053 282 137 2,377 2,190 1980 recommendation by the Marine Mammal Com- mission, adopted and implemented a management stra- tegy recognizing the need for "zonal" management of sea otters and the need to establish one or more sea otter colonies at a site or sites not likely to be affected by an oil spill in or near the population's present range. The zonal management concept was incorpo- rated into the Service's Southern Sea Otter Recovery Plan adopted in February 1982. As discussed in previous annual reports, the Fish and Wildlife Service initiated efforts in 1981 to establish a sea otter "reserve" off California. In 1986 Congress passed Public Law 99-625, which included provisions authorizing and encouraging the devel- opment and implementation of a program to establish at least one sea otter colony outside the then-existing sea otter range in California. The Fish and Wildlife Service, in consultation with the Marine Mammal Commission, the California Coastal Commission, and the California Department of Fish and Game, subse- quently developed and adopted a plan to establish a reserve sea otter colony at San Nicolas Island in the California Channel Islands. Translocation Efforts — Capture of sea otters for translocation to San Nicolas Island began on 24 August 1987. As of June 1990, 139 animals had been transported to and released at San Nicolas Island. No animals have been captured for translocation since mid- 1990. Between August 1987, when the translocation program was initiated, and December 1993, 28 pups are known to have been born at the San Nicolas Island translocation site and 9 of these are believed to have survived to weaning. Of the 139 sea otters trans- located to San Nicolas Island during that period, 14 are known to have died, 10 have been recaptured in the sea otter management zone south of Point Concep- tion, 36 have been resighted back in the mainland range, and a few remain at San Nicolas Island. The fate of the remaining animals is unknown. In 1993 funding and opportunities to observe the San Nicolas population were reduced. At least six pups were observed. However, the population did not appear to be growing and was estimated at 12-14 animals, about the same as the previous year. Counts conducted in 1994 and 1995 indicate that the San Nicolas sea otter population is remaining stable at about 15 animals. Six pups were known to have been born at San Nicolas Island in 1995. Sea Otter Necropsy Program — The California sea otter population has not grown as rapidly as populations in Alaska. Through an agreement reached in 1991 between the Fish and Wildlife Service and the California Department of Fish and Game, veterinary 50 Chapter III — Species of Special Concern pathologists with the National Biological Service's National Wildlife Health Center in Madison, Wiscon- sin, have been conducting necropsies on all fresh beach-cast sea otter carcasses collected along the California coast to determine if there are unusual causes or rates of mortality. National Wildlife Health Center pathologists have determined that 42 percent of southern sea otter deaths can be attributed to infectious diseases. These include acanthocephalan peritonitis (15.9 percent), protozoal encephalitis (11.4 percent), coccidioidomycosis (6.8 percent) and other diseases (7.9 percent). Other sources of mortality have included trauma, such as shark bite, lacerations, etc. (18.2 percent), emaciation (11.4 percent), tumors (3.4 percent), and various conditions of mechanical or functional impairment (9.1 percent). The cause of death of 15.9 percent of animals is undetermined at this time. Between 16 and 25 July 1995, 11 southern sea otters were found dead or dying along the beach in Monterey County, California. This was substantially more than normal and the event prompted a multi- agency investigation involving, among others, the Fish and Wildlife Service, the National Biological Service, the California Department of Fish and Game, and the Monterey Bay Aquarium. Necropsies and diagnostic tests on 10 of the 1 1 carcasses were carried out by the National Wildlife Health Center, and additional tests were performed through the Department of Fish and Game and the Aquarium. Samples were also collected from apparently healthy animals captured in the Monterey Bay area. Despite the thorough investiga- tion, no cause of the mortality has been identified. A number of tissue samples from the dead animals have been frozen and saved for possible future investiga- tion. As of the end of 1995 no further unusual mortalities had been observed in the area. Update of the Southern Sea Otter Recovery Plan — In 1989 the Fish and Wildlife Service reconstituted the Southern Sea Otter Recovery Team to review and recommend changes necessary to update the Southern Sea Otter Recovery Plan. This action was precipitat- ed, in part, by the 1989 Exxon Valdez oil spill and the subsequent realization that the entire California sea otter population could be jeopardized by a similar oil spill. Based on the recovery team's recommendations, the Fish and Wildlife Service drafted a plan update and in August 1991 provided it to the Commission and others for review and comment. The Commission, in consultation with its Committee of Scientific Advisors, reviewed the draft and provided comments to the Service on 8 November 1991. As discussed in previous annual reports, the Commission recommend- ed that a second draft be done and be provided to the Commission and others for review and comment. On 8 July 1992 the Service advised the Commission that it had decided not to prepare a second draft for further agency and public review. The Service indicated that the recovery team had reviewed the comments on the draft recovery plan update and had proposed to redirect the focus of the update specifi- cally to actions needed to remove the population from the List of Endangered and Threatened Species. Subsequently a number of industry and conservation groups expressed concern to the Fish and Wildlife Service that revision of the recovery plan was being done without public input and consideration of socio- economic factors. In response to these concerns, early in 1993 the Fish and Wildlife Service formed a public interest group to identify and suggest ways for resolving conflicting views regarding needed conser- vation actions. Members of the recovery team finalized a revision of the update for review at the end of 1994. Early in 1995 the revision was submitted to the Service's Regional Director. At the end of 1995 it was the Commission's understanding that the proposed update of the recovery plan was still under review in the regional office. Pup Survival Study — The California sea otter population has experienced a relatively slow rate of increase compared to sea otter populations in Wash- ington and Alaska. This could be due to low pup survival. As discussed in Chapter X, in 1995 the Commission provided funds to support analysis of data on patterns of sea otter pup survival and develop- ment in different geographic areas. A draft report was completed and circulated for review in December 1995. It is anticipated that the final report will be available early in 1996. 51 MARINE MAMMAL COMMISSION - Annual Report for 1995 The Washington Sea Otter Population As noted above, sea otters historically ranged along the North Pacific coast of the United States and Canada from the Pribilof Islands in the north to California in the south. During the 18th and 19th centuries the species was extirpated from most of its range. Between 1965 and 1972 Federal and state agencies cooperated in a project to translocate sea otters from Alaska to parts of the species' former range. As part of this effort, in 1969 and 1970, 59 animals were translocated and released in waters off the State of Washington. In 1995 it was estimated that the population numbered about 360 individuals occupying a small range off remote portions of the Olympic Peninsula. The population is thought to be growing at a rate of 15 to 20 percent annually and within the next decade could expand into waters supporting active shellfish and set-net fisheries. Based on experience in Alaska and California, it can be anticipated that this expansion will lead to conflicts between sea otters and fisheries, as well as the in- creased likelihood of incidental take of sea otters in set-net fisheries. In order to anticipate and possibly avoid potential problems involving the Washington sea otter popula- tion, the Marine Mammal Commission provided support in 1995 for an assessment of potential fisher- ies conflicts in Washington State waters. During 1995 a draft report was provided to the Commission for review. This is discussed further in Chapter X. The Alaska Sea Otter Population Small groups of sea otters survived the era of commercial exploitation in several remote areas of Alaska. Since then, sea otters have repopulated most of their former range in Alaska although they have not yet reached carrying capacity in some areas. No sea otters survived in southeast Alaska, and repopulation of the area was initiated by translocating otters from Amchitka Island and Prince William Sound in the late 1960s and early 1970s. The best available data indicate that there currently are 100,000 to 150,000 sea otters in Alaska. Al- though the population is large 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 gillnet and other fisheries; (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 1989 Exxon Valdez oil spill, which directly killed 3,500 to 5,500 sea otters and may have affected many others through contamination and destruction of food species. As described in past reports, the Commission initiated efforts in 1984 to develop conservation plans for sea otters and other marine mammals in Alaska. Also as described in past reports, the Fish and Wild- life Service completed and adopted conservation plans for sea otters, walruses, and polar bears in 1994. Marking, Tagging, and Reporting Program — In 1981 the Marine Mammal Protection Act was amend- ed to give the Fish and Wildlife Service and the National Marine Fisheries Service authority to pro- mulgate regulations requiring the marking, tagging, and reporting of marine mammals taken by Alaska Natives. The purposes of the amendment were to obtain better information on the numbers and species of marine mammals taken for subsistence and handi- craft purposes and to help control illegal trade in products from those species. Marking, tagging, and reporting regulations were issued by the Fish and Wildlife Service on 28 June 1988. They require that within 30 days of taking a polar bear, walrus, or sea otter, Native hunters must report the take to the Service and present specified parts of the animal to be marked and tagged. Since promulgating its regulations, the Service has worked closely with Native groups and the State of Alaska to implement the marking, tagging, and reporting pro- gram. Data obtained from the program are main- tained by the Service in a computerized database. During 1995, 589 sea otters were presented for marking and tagging by Alaska Natives. The number of sea otters tagged for the years 1990 through 1994 were 166, 231, 637, 1,242, and 830, respectively. 52 Chapter III — Species of Special Concern Developing a Co-Management Plan — In Decem- ber 1988 Alaska Natives formed the Alaska Sea Otter Commission to promote Native participation in development of policies and programs affecting sea otters and their use in Alaska. The Commission is comprised of representatives from Alaska coastal regions where sea otters occur. To facilitate Native involvement in developing and implementing an agreed sea otter conservation plan, the Alaska Sea Otter Commission drafted and in 1991 proposed that the Fish and Wildlife Service, the Alaska Department of Fish and Game, and the Sea Otter Commission enter into a formal Memorandum of Agreement specifying their respective responsibili- ties related to the conservation of sea otters in Alaska. Subsequently the Marine Mammal Commission, in consultation with the Sea Otter Commission and others, developed a draft sea otter conservation plan, which it provided to the Fish and Wildlife Service on 5 May 1992. The Sea Otter Commission also began work on regional sea otter management plans to complement the statewide sea otter conservation plan being developed by the Fish and Wildlife Service. A Memorandum of Agreement satisfactory to all three parties was signed on 1 February 1994 by representatives of the Fish and Wildlife Service, the Alaska Department of Fish and Game, and the Alaska Sea Otter Commission. The purpose of the agreement is to assist signatories in the cooperative management of sea otters in Alaska by providing for the exchange of biological, management, and socioeconomic infor- mation, and to support the requirements of pertinent laws, regulations, and resolutions. Further, in 1994 the Sea Otter Commission completed draft manage- ment plans for sea otters in the Chugach (Prince William Sound), southeast, and Kodiak regions. During 1995 draft plans for the remaining three regions — Bristol Bay, Cook Inlet, and Aleutian- Pribilof — were completed and forwarded to the Native communities for review. Internal review has been completed for the Chu- gach, southeast, and Kodiak regions. The Service has reviewed and commented on the southeast manage- ment plan. Thus far, the review process does not include a response to comments prior to final ization of the plans. When the internal review is completed, the draft plans will be provided to the Fish and Wildlife Service, the Alaska Department of Fish and Game, and the Marine Mammal Commission for review. CITES Permit Request — The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) requires that before species listed on Appendix I or II may be exported, a permit must be obtained. The responsible government agency may issue a permit only if it determines that the specimen was acquired lawfully and that the proposed export would not be detrimental to the species' survival. As noted in the previous annual report, on 1 April 1994, Kuiu Kwan Inc., of Lynnwood, Washington, applied to the Fish and Wildlife Service for a permit to export three sea otter pelts on which were painted Alaska Native artwork. The pelts were to be used as product samples to determine if a foreign market existed for painted pelts. In response to a 31 May 1994 Federal Register notice on the permit application, the Marine Mammal Commission by letter of 14 July 1995 provided comments to the Service. The Commission noted that a decision on whether to issue a CITES export permit in the Kuiu Kwan case would hinge on whether the proposed export would be detrimental to the survival of the species and whether the pelts were acquired lawfully. In the Commission's opinion, the export of pelts from three animals would not be detrimental to the survival of the Alaska sea otter population or any sub- population. The Commission noted, however, that the export of the pelts would be merely a prelude to further exports, should a foreign market be developed. Therefore, the Commission advised that, if an export permit is issued, the Service should advise the permit- tee that making future findings of "no detriment" may be difficult for any large-scale commerce in sea otter pelts that may result. As to whether the animals were lawfully acquired, the Commission noted that this requirement would have been met in this instance only if the painted sea otter pelts constitute "authentic Native articles of handicrafts" as defined in the Marine Mammal Protec- 53 MARINE MAMMAL COMMISSION - Annual Report for 1995 tion Act. The critical issue identified by the Commis- sion was whether the pelts had been "significantly altered from their natural form." The Commission was concerned that the painted pelts, once exported, could readily be transformed into other saleable items, in no way related to the Native artwork. The 1994 amendments to the Marine Mammal Protection Act prohibit export of any marine mammal or marine mammal product taken in violation of the Act or for any purpose other than public display, scientific research, or enhancement of the species or stock. The Commission noted that the proposed export would not be for one of these enumerated purposes and may be impermissible. On 6 October 1994 the Service wrote to the peti- tioner denying the request to export and re-import the three sea otter pelts. It stated that, while export of just three pelts may not adversely affect the Alaska sea otter population, the specimens were taken as part of a total harvest that may not be biologically sustain- able at the local population level. The Service also concluded that the pelts did not qualify as Native articles of handicrafts because they had not been significantly altered from their natural form. The Service noted that, if the petitioner's intent was to market Native paintings, rather than sea otter pelts or handicrafts, a different substrate could be used. The Service also questioned whether the proposed develop- ment of a broad foreign market would contravene the Marine Mammal Protection Act's provisions against producing handicrafts through mass production. On 8 November 1994 Kuiu Kwan Inc. wrote to the Service seeking reconsideration of the permit denial. The petitioner alleged that the Service was improperly seeking to protect sea otters from possible over- harvesting by means that are contrary both to the Marine Mammal Protection Act and the Service's own regulations. The petitioner contended that there are only two legal bases for denying a permit request under CITES: (1) the subject wildlife was not lawful- ly taken or (2) the proposed export activity would be detrimental to the survival of the species. The peti- tioner argued that the Service had no factual basis for finding that the proposed export would be detrimental. The Service's alternative ground for denial — that the proposed export would violate the Marine Mam- mal Protection Act provision limiting sale to "au- thentic Native handicrafts" — was also challenged by the petitioner. The petitioner argued that, because the proposed export activity specifically excludes any sale in commerce, it could not possibly result in a viola- tion of the Act. The petitioner also disputed the Service's conclusion that the pelts were not signifi- cantly altered from their original form, and questioned the basis for the Service's speculation that a buyer of the handicrafts might subsequently alter the pelts. By letter of 3 January 1995 the Service responded to the petitioner's request for reconsideration, again denying the permit application. In its letter the Service stated that the applicant's request for reconsid- eration neither introduced any new evidence nor refuted in any way the Service's basis for its initial denial of the permit request. By way of clarification, the Service noted that Article IV(2)(a) of CITES requires a finding of no-detriment prior to allowing the export of specimens of species listed in Appendix II, and that the Service continued to be unable to find that the proposed export would not be detrimental to the survival of the species. As a second point, the Service noted that it cannot issue a CITES permit for an activity that would be in violation of the Marine Mammal Protection Act. The Service found that the export of not-for-sale samples for market research is considered a commercial activity. Because the altered pelts do not qualify as Native handicraft, these items cannot be exported under the Marine Mammal Protection Act. On 15 February 1995 the applicant appealed the decision to the Director of the Fish and Wildlife Service. A decision on the matter was postponed for six months to allow the Service time to develop a handicraft policy. Subsequently, the Director asked the Service's Alaska regional office to work with Native groups to develop a handicraft policy. On 18 September the regional office circulated a draft policy to Native groups for review. On 9 November 1995 the Deputy Director of the Fish and Wildlife Service wrote to the applicant denying the request for a CITES export permit. That 54 Chapter III — Species of Special Concern decision marked the end of the plaintiffs administra- tive review process. Sea Otter Stock Assessments As discussed in Chapter IV, amendments to the Marine Mammal Protection Act in 1994 established a new regime to govern the incidental taking of marine mammals in commercial fisheries. Among other things, they required the National Marine Fisheries Service and the Fish and Wildlife Service to prepare stock assessments for all marine mammal stocks in U.S. waters. Each assessment is to estimate the size and maximum productivity rate of the stock, calculate a potential biological removal level (not including natural mortality) that would allow the stock to remain or increase towards its optimum sustainable population level, assess incidental-take levels in commercial fisheries, and determine if a stock is a strategic stock requiring special management attention. On 15 August 1994 the Fish and Wildlife Service distributed to the Marine Mammal Commission and others draft stock assessments for marine mammal populations under its jurisdiction, including sea otter stocks in California, Washington, and Alaska. As discussed in the previous annual report, the Commis- sion, in consultation with its Committee of Scientific Advisors, reviewed the drafts and by letter of 1 December 1994 provided comments to the Service. Final stock assessments for sea otters and other marine mammals under its jurisdiction were circulated by the Fish and Wildlife Service on 4 October 1995. Based on its 1994 spring survey, the minimum size of the California sea otter population was estimated at 2,359 animals. The population is continuing to increase, and its maximum net productivity rate is estimated at six percent a year. Based on available data, the estimated potential biological removal level for the California sea otter stock is 7 animals. The assessment noted, however, that this estimate serves no practical purpose since incidental take of the California sea otter is not governed under section 1 18 of the Marine Mammal Protection Act. The assessment further noted that, since 1985, when fishing restrictions were enacted to protect sea otters from incidental take in gill and trammel nets, known fishing-related mortality was zero in 1991 and 1992, one in 1993, and zero in 1994. However, the level of take of sea otters in lobster and crab fisheries in California is unknown. The assessment concluded that, if the restrictions on gill and trammel nets were lifted, the California sea otter stock would be classi- fied as a strategic stock. The Service's final stock assessment of the Wash- ington sea otter stock estimates a minimum population of 360 animals and a maximum annual growth rate of about 20 percent. The potential biological removal level is set at 11 animals. The assessment noted that known instances of incidental take of sea otters in fisheries are rare and other sources of human-caused mortality are not well documented. The Washington sea otter stock has no federal designation as either threatened or endangered al- though it is legally designated as endangered by the State of Washington. The Service's stock assessment concluded that the population is below its optimum sustainable population level. The Service's final assessment for the Alaska sea otter population established a minimum population estimate of 100,000 animals. The assessment noted that information on population growth rates is not available for all areas in Alaska; therefore, it adopted a maximum net productivity rate of 20 percent. Using these data, the Service calculated the potential biological removal level at 10,000 sea otters per year. It noted, however, the impact of such a removal could realistically be considered not adverse only if the removal is allocated throughout the state and takes into account the sex and age of the harvested animals. With respect to human-caused mortality, the assess- ment noted that activities associated with oil and gas development have the potential for adversely impact- ing sea otters and their habitat in Alaska, and that approximately 2,650 sea otters died as a result of the 1989 Exxon Valdez spill. Subsistence harvest of sea otters is estimated at approximately 1.2 percent of the total population and is not believed to have affected the Alaska sea otter population as a whole. The assessment noted, however, that the harvest must be spread throughout the population's range to ensure that overharvesting does not occur in local areas. 55 MARINE MAMMAL COMMISSION - Annual Report for 1995 Northern Right Whale (Eubalaena glacialis) The northern right whale occurs in both the North Atlantic and North Pacific Oceans and is the world's most endangered large cetacean. Right whales, the first of the great whales to be targeted by a regular whaling industry, have been exploited since at least the 1 1th century along the coast of present day France and Spain, and at least the 1600s in Japan. By the late 1800s northern right whales were commercially extinct in both oceans. Even so, whalers seeking other species continued to take right whales opportu- nistically until the mid- 1900s pushing the species to the edge of extinction. Although small populations of northern right whales survive in both the North Atlantic and North Pacific Oceans, their numbers are so small that their continued existence is in serious doubt. In the North Pacific Ocean, catch records and sighting data suggest that right whales in the eastern and western parts of the ocean basin constitute separate stocks. Because sightings in the eastern North Pacific over the past 20 years are so few and include neither groups of animals nor a single calf, the present generation could well be the last generation for eastern North Pacific popu- lation. Sighting records from the western North Pacific Ocean and Okhotsk Sea, while scarce, are more numerous than in the eastern North Pacific. As they also include some sightings of groups, it seems possible that the western North Pacific population may still number in the low hundreds. In the North Atlantic Ocean, between 300 and 350 whales occur seasonally off the east coasts of the United States and Canada. Rare sightings also occur off Greenland, Iceland, Europe, and northwest Africa. These could represent either remnants of an eastern North Atlantic population or stragglers from the western North Atlantic. Since 1980 an average of 10 to 12 calves per year have been counted along the U.S. and Canadian coasts making the species' pros- pects for recovery in the North Atlantic Ocean tenu- ous, but still brighter than in the North Pacific Ocean. For the years 1993 to 1995, however, the number of calves counted declined to 6, 9, and 7, respectively. Although international laws banning commercial hunting of right whales have been in place for about 50 years, ship collisions, entanglement in fishing gear, and perhaps other human activities threaten the species' potential recovery. Between 1970 and the end of 1995 more than one-third (13 of 35) of all right whale carcasses found along the east coast of North America died from apparent human-related causes. Ten deaths (29 percent) are attributed to collisions with ships and three (9 percent) to entangle- ment in fishing gear. Analyses of identifiable right whales in a photographic catalogue of the North Atlantic population suggest that more than half of the population has scars or are trailing line indicative of entanglement interactions, and that seven percent has scars apparently from ship collisions. Observed carcasses represent an unknown percent- age of total northern right whale mortality. However, it seems likely that at least as many deaths have gone unrecorded. Between 1980 and 1995 researchers documented 175 calves in the western North Atlantic and confirmed 26 deaths. Analyses of data in a right whale photo-identification catalogue have suggested an annual population growth rate of 2.5 percent which, assuming a current population of 325 animals, would equal an increase of about 100 animals since 1980. If this growth rate is correct and if all calves in the population were recorded since 1980, about 75 deaths have occurred since 1980, of which only about one- third (26 of 75 carcasses) have been documented. The proportion of unrecorded deaths could be even greater if estimated 2.5 percent growth rate is high or some calves are not counted. If the causes of death for documented carcasses are representative of total mortality, deaths due to ship collisions and entangle- ment could be three times or more greater than documented levels. Other potential human threats to the species include disturbance and displacement of whales from seasonal- ly important habitat by noise and human activity, prey reduction caused by perturbations to local environ- mental conditions in preferred feeding grounds, physiological impacts caused by chemical pollutants, and entanglement and ingestion of marine debris. Specific human activities that could contribute to one or more of these impacts include discharges by municipal sewage and storm-water outfalls, offshore 56 Chapter III — Species of Special Concern disposal of dredge spoil and excavation wastes, commercial and recreational vessel traffic, aquacul- ture, and offshore mineral exploitation. Natural factors affecting population recovery include predation by killer whales, disease, and perhaps inbreeding due to the extremely small size of remaining populations. Northern right whales are listed as endangered under the Endangered Species Act and, at the recom- mendation of the Marine Mammal Commission, the National Marine Fisheries Service adopted a recovery plan for the species in 1991. In 1994 the Service also designated three areas off the U.S. Atlantic coast as critical habitat for northern right whales under the Endangered Species Act. The areas include winter calving grounds off the coast of Georgia and northeast Florida and two spring feeding areas off Massachu- setts — one in Cape Cod Bay and the other in the Great South Channel about 40 miles east of Cape Cod. Information in support of the designation was compiled in a report prepared for the Commission and provided to the Service (see Appendix B, Kraus and Kenney 1991). Although the Commission recom- mended that the Service include rules with the critical habitat designation to reduce hazards from fishing gear and vessel traffic during seasons of peak whale abundance, the recommendation was not adopted. To help carry out actions in the recovery plan, the National Marine Fisheries Service established two regional implementation teams composed of represen- tatives of Federal and State agencies, environmental groups, industry, and the research community. The Southeast U.S. Right Whale Recovery Plan Implemen- tation Team was established in August 1993 to coordi- nate and guide actions needed to conserve whales on the winter calving grounds off Florida and Georgia. The Northeastern U.S. Right Whale and Humpback Whale Recovery Plan Implementation Team was established in August 1994 to serve a similar purpose for both right whales and humpback whales using spring and summer feeding areas off New England. Recent Right Whale Injuries and Mortalities Since 1970, 35 right whale mortalities have been confirmed in the western North Atlantic, including two deaths in 1995. On 17 July 1995 a 33-foot-long juvenile male born in 1993 washed ashore on Second Beach in Middletown, Rhode Island. Several lines thought to be from lobster pots were wrapped tightly around a pectoral fin and had cut several inches into the underlying bone. The animal was first seen entangled in 1993 as a calf about six months old and was resighted in August 1994 in Cape Cod Bay, still entangled. During the second sighting, the staff of the Center for Coastal Studies made an unsuccessful try to remove the entangling gear, but suspended efforts, in part because the degree of entanglement did not seem critical. Because entangled whales sometimes free themselves and because human intervention can pose risks to both whales and people, a decision as to whether to disentangle an animal can be a difficult. The experience with this whale was an unfortunate but important lesson with regard to decisions on future disentanglement efforts. On 20 October 1995 the carcass of a 40-foot-long male right whale washed ashore on the Bay of Fundy coast in Nova Scotia, Canada. Researchers respond- ing to the report found signs of crushed vertebra and, upon a closer laboratory examination, they concluded that the animal died as a result of a ship collision. In addition to the two confirmed deaths, two human interactions were reported. In March 1995 the Navy reported that a submarine leaving Morehead City, North Carolina, struck a whale that might have been a right whale. No carcass was found and there is no further information to confirm either the species or the fate of the whale. In September a right whale was observed in Canadian waters east of Grand Manan Island towing about 800 feet of gillnet anchor line. Researchers from the New England Aquarium were able to remove about 700 feet of the rope; however, 100 feet of line trailing from the animal's mouth could not be dislodged. The animal was not seen again in 1995, and its fate is uncertain. From previous sighting records in the right whale photo- identification catalogue, the animal was determined to be a four-year-old male bearing scars from a previous ship collision and entanglement. Northern Right Whale Research in 1995 On 3-7 October 1994 the National Marine Fisheries Service's Northeast Fisheries Science Center held a scientific peer review of its research program for the 57 MARINE MAMMAL COMMISSION - Annual Report for 1995 North Atlantic right whale population. Its purpose was to formulate recommendations on future research priorities. During 1995 the Service used the results of the review to direct the allocation of $156,000 in Fiscal Year 1994 funding and $200,000 in Fiscal Year 1995 funding to needed studies. Work supported by the Northeast Fisheries Science Center in 1995 included (a) maintenance of the right whale photo-identification catalogue essential for monitoring the status of the North Atlantic population, (b) responding immediately to reports of stranded and entangled right whales and humpback whales, (c) assessing and developing means of avoiding vessel- related impacts in high-use right whale habitats, (d) studies of whale foraging patterns and prey resources in Cape Cod and Massachusetts Bays, (e) analyzing a backlog of genetic samples to improve information on reproductive patterns and potential inbreeding effects, and (f) population modeling and data analyses to refine understanding of demographic parameters and habitat use patterns. Some of the funds also are to be used for satellite tracking off New England in 1996 to try to locate other summer nursing and wintering areas used by northern right whales. In the southeastern United States, the National Marine Fisheries Service has provided funding to the Georgia Department of Natural Resources and the Florida Department of Environmental Protection to survey areas further offshore and to assess the sight- ing efficiency flights in an early-warning survey program. As discussed below, early-warning survey flights were initiated in recent years off Florida and Georgia to provide vessel traffic with up-to-date information on the location of right whales using the winter calving grounds. The assessment of flight sighting efficiency will be done by a second plane following the same track as the early-warning survey flight a few minutes later to evaluate the extent to which whales are not sighted during a single overpass. In addition, to improve information on fine-scale movements of right whales on their calving grounds, the National Marine Fisheries Service contracted with the New England Aquarium, the Florida Department of Environmental Protection, and the Georgia Depart- ment of Natural Resources to satellite-tag and track at least four animals on the winter calving grounds. Northern Right Whale Management in 1995 In October 1994 the National Marine Fisheries Service received a request from an environmental group to establish regulations prohibiting vessels from approaching within 500 yards of any right whale and 100 yards of all other whales. In response the Service published an advance notice of rulemaking in the Federal Register on 27 December 1994 asking for comments and information to help identify and evaluate appropriate conservation measures to mini- mize harmful effects of noise and vessel traffic on northern right whales. The Marine Mammal Commis- sion, in consultation with its Committee of Scientific Advisors, wrote to the Service on 27 March 1995 and forwarded several Commission-sponsored reports indicating that noise and vessel traffic are potential concerns that merit management attention, particularly in high-use right whale habitats. In its letter the Commission noted that management measures reducing close approaches to right whales would help address both ship collision and disturbance impacts, provided that the measures themselves had no adverse impact. To help assess the usefulness of the petitioned action, the Commission suggested consideration in three areas. First, it suggested considering the practicality of the petitioned measure to actually reduce close ap- proaches. To prevent approaches closer than 500 yards, vessel operators would need to detect and identify right whales at distances greater than 500 yards in all weather and sea conditions and at night. The Commission noted that it may not be reasonable to expect vessel-based observers to do this routinely at distances that may need to be considerably greater than 500 yards for large vessels. The Commission suggested instead that the Service estimate the distanc- es at which observers might be expected to routinely detect and identify right whales under different sighting conditions. It also suggested that it may be more practical to (a) prohibit deliberate approaches, diversions, or stopping to observe right whales; (b) apply the measure to certain types of vessels, areas, and/or times; and/or (c) establish guidelines for whale avoidance maneuvers in cases where it is determined that a vessel is within or likely to come closer than 500 yards of a right whale. 58 Chapter III — Species of Special Concern Second, the Commission suggested considering the extent to which the measure may complement other management actions. In this regard, it noted that, while the petitioned action may not be feasible as an isolated measure, it may be useful if done in conjunc- tion with other existing or planned measures (e.g., real-time notices to mariners on the location of whales) to help vessel operators locate and avoid right whales. Finally, the Commission suggested evaluating the measure's merit in different geographic areas, given right whale habitat use patterns and vessel traffic patterns. For example, it suggested that approach limits might be useful in high-use right whale habitats or other areas where vessel interactions seem likely to occur, but of little value in areas were the occurrence of whales or ship traffic is negligible. Also, focusing the approach in problematic areas could help heighten operator awareness and caution in those areas. As of the end of 1995 it was the Commission's understand- ing that the Service was considering the publication of proposed rules on the matter. Off the southeastern United States, efforts in 1995 continued to focus on the development of an early- warning system to alert vessel operators of the loca- tion of right whales during the winter calving season off Georgia and northeast Florida. For the winter of 1995-1996, as in the previous winter, the Navy, the Coast Guard, and the Army Corps of Engineers initiated a program of daily aerial surveys beginning 1 December to obtain whale location data that can be passed on to ships transiting the winter calving grounds. The daily surveys, which are to continue through 31 March 1996, cover waters within 15 miles of the coast from a point about 10 miles north of Brunswick, Georgia, to a point 10 miles south of the St. Johns River in Florida. Whale locations are then provided to operators of large vessels by the Coast Guard through its Notices to Mariners as well as to harbor pilots and the Navy. Southeast U.S. Implementation Team for the Recovery of Right Whales The southeast implementation team includes representatives of the Army Corps of Engineers, the Navy, the Coast Guard, the port of Fernandina Beach (Florida), the Florida Department of Environmental Protection, the Georgia Department of Natural Re- sources, the Georgia Ports Authority, the Glynn County (Georgia) Conservancy, the Jacksonville Port Authority, the National Marine Fisheries Service, the New England Aquarium, and the University of Georgia. The team met twice in 1995 and, as in previous years, it gave particular attention to develop- ing and implementing the early-warning network to alert vessel operators of recent right whale sighting locations. For the 1995-1996 winter right whale season, the team developed a set of recommended safe operating procedures for large vessels transiting the right whale calving grounds. The recommended measures offer non-binding advice on posting observers aboard transiting ships, communicating information to incom- ing and outgoing ships on right whale sightings, suggested actions for ships to take under alternative right whale sighting scenarios, and the reporting of right whale sightings by transiting ships. The recom- mended procedures are intended for use by port personnel participating under a voluntary partnership agreement among team members. The team also considered recommendations to restrict hazardous fishing gear in portions of the right whale calving grounds. Although the team did not offer specific advice on the issue, it urged the agencies and groups represented on the team to submit comments and advice on appropriate restrictions to the Service. At its final meeting in 1995, the southeast imple- mentation team also considered a recommendation to the National Marine Fisheries Service to prohibit gillnets from use in Federal portions of the right whale calving grounds during the winter whale season. The states of Georgia and Florida already prohibit gillnets in State waters eliminating potential entanglement threats from gillnets in those areas. The team decided that rather than submitting a formal recommendation in this regard to the Service, individ- ual agencies represented on the team should provide advice on the matter directly to the Service. As of the end of 1995, the Commission was not aware of what actions may have been taken or planned in this regard by agencies represented on the team. 59 MARINE MAMMAL COMMISSION - Annual Report for 1995 Northeast U.S. Right Whale and Humpback Whale Recovery Plan Implementation Team The northeast implementation team includes representatives of the National Marine Fisheries Service, the Marine Mammal Commission, the Coast Guard, the Environmental Protection Agency, the Stellwagen Bank National Marine Sanctuary, the New England Fisheries Management Council, the Massa- chusetts Water Resources Agency, MASSPORT, the Massachusetts Coastal Zone Management Office, the Massachusetts Office of Non-Game and Endangered Species, the New England Aquarium, the Center for Coastal Studies, and the University of Rhode Island. At its initial and only meeting in 1994, the team agreed that attention should be directed to work on reducing ship collisions and entanglement in fishing gear, encouraging high priority research, and protect- ing and monitoring essential right whale habitat. During 1995 the team met three times. It ex- changed information on related activities and projects potentially affecting right whale conservation. It also considered further actions needed with regard to northern right whale research and funding, restricting hazardous fishing gear in right whale critical habitats, advice to fishermen on how to disentangle whales caught in gear, establishing an early-warning system to alert ships transiting off New England to the location of right whales, plans for constructing a sewage outfall tunnel in Massachusetts Bay, and issuing permits for proposed scallop aquaculture projects in Cape Cod Bay. Progress on these issues was slow, and the team developed specific advice and recommendations only with regard to proposed aquaculture projects in Cape Cod Bay. A permit for placing aquaculture equipment at sea is required from the Army Corps of Engineers and the team provided comments to Corps and Na- tional Marine Fisheries Service officials who were reviewing related permit applications pursuant to Endangered Species Act consultation requirements. In its comments the team noted the need to consider impacts related to entanglement, physical obstructions to right whale feeding, effects on plankton communi- ties on which right whales feed, and potential effects of predator control programs. Among other things, the team identified facility designs that would mini- mize entanglement risks and recommended studies to assess the effects of aquaculture on whale prey. Although the northeast implementation team did not take final action before the end of the year, it also considered a recommendation to the National Marine Fisheries Service to prohibit the use of fishing gear, such as gillnets and offshore lobster gear that could pose an entanglement threat to right whales, in high use right whale habitats during periods of peak whale occurrence. At its final meeting in 1995 the team agreed to postpone the recommendation pending a determination of possible action in this regard by the New England Fishery Management Council. Right Whale Stock Assessment In August 1995 the National Marine Fisheries Service distributed final assessments of all marine mammal stocks in U.S. waters. As required by amendments to the Marine Mammal Protection Act in 1994, these assessments are to provide a basis for managing the incidental take of marine mammals in commercial fishing operations. Among other things, each assessment is to include an estimate of the potential biological removal level (not including natural mortality) that would allow the stock to increase towards its optimum sustainable population level, and a finding as to whether the stock is a strategic stock requiring special management attention. For stocks designated as strategic and subject to taking in numbers greater than the estimated potential biolog- ical removal level, the Service is required to designate a take reduction team and prepare a take reduction plan. Stocks of species listed as endangered under the Endangered Species Act, such as northern right whales, are to be considered strategic automatically. For the North Pacific stock of right whales, the Service's final assessment cites population estimates of 100 to 200 right whales, but concludes that the estimates are not reliable and that a potential biologi- cal removal level of zero should be assumed given its small size. The only fishery interaction record from the North Pacific Ocean involves a right whale carcass found entangled in a gillnet on the coast of Russia in 1989. With no fishery interaction records involving 60 Chapter III — Species of Special Concern right whales in U.S. North Pacific waters, no action was taken in 1995 to establish a take reduction team for the North Pacific stock of right whales. The Service's assessment for the western North Atlantic stock cites a minimum population estimate of 295 whales and concludes that the potential biological removal level is less than one whale. It also cites records of fishery interactions, including entangle- ment, involving large-mesh gillnets, cod traps, and herring weirs. At the end of 1995, the Service had not yet established an incidental take reduction team to address the western North Atlantic right whale population, but it was the Commission's understand- ing that it planned to convene a team early in 1996 to jointly address take reduction needs for right whales and other endangered whales along the east coast. Right Whale Litigation On 7 June 1994 a complaint was filed in the U.S. District Court for the District of Massachusetts (Strahan v. Linnori) alleging that the Coast Guard had violated provisions of the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Policy Act, and the Whaling Convention Act. In the past four years, Coast Guard vessels had struck and killed two northern right whales, including one off Florida in 1993. The plaintiff alleged that such taking of right and other whales was prohibited. Accordingly, the plaintiff sought to enjoin certain Coast Guard operations, including issuance of inspec- tion documents to private vessels allowing them to operate in U.S. waters, that may result in the death, injury, or disturbance of any of six species of whales. Among other things, the plaintiff asked the court to order the Coast Guard to prevent its vessels and other vessels from approaching within 500 yards of a northern right whale or 100 yards of any other whale. The complaint also alleged that the Coast Guard had violated the National Environmental Policy Act by not preparing an environmental assessment on the effects of its operations. It further alleged that the Coast Guard had failed to consult with the National Marine Fisheries Service to determine that its opera- tions are not likely to jeopardize the continued exis- tence of right whales or other endangered species in violation of the Endangered Species Act. To address some of the points raised in the com- plaint, the Coast Guard initiated consultations with the Service on the effects of its activities on endangered whales and sea turtles. It also reviewed its vessel operating procedures to identify ways it could better avoid collisions with marine species. A hearing on the matter was held on 10 February 1995 and on 2 May the court issued its ruling. As a preliminary matter, the court ruled that the plaintiff only had standing to challenge Coast Guard activities in the First Coast Guard District, which includes the area between New Jersey and Maine. With regard to the Endangered Species Act, the court ruled that until the consultations under section 7 were complete, the Coast Guard would not be in full compliance with the Act. It found, however, that the Coast Guard did not need to consult on its inspection and documentation activities for other vessels because the Coast Guard was statutorily required to issue vessel documents if specific criteria were met and, thus, did not have the discretion to withhold such documents because of potential risks to endangered whales. Noting recent efforts by the Coast Guard to prevent its vessels from striking whales, the court found the question of whether additional whales might be struck to be a disputed material fact and declined to rule on that issue until after the section 7 consulta- tion is completed. It noted, however, that an injunc- tion may ultimately be needed to prevent further incidental taking of right whales by the Coast Guard. With respect to the Marine Mammal Protection Act, the court found that the Coast Guard is required to apply for a small-take authorization if it anticipates that it will take a marine mammal at any time during the course of its operations. Based on this ruling, the court ordered the Coast Guard to apply for a small- take authorization by 31 May 1995. The court also found the Coast Guard to be in violation of the procedural requirements of the Na- tional Environmental Policy Act. The court ordered the Coast Guard to prepare, by 30 June 1995, a draft environmental assessment and to provide to the court 61 MARINE MAMMAL COMMISSION - Annual Report for 1995 a schedule for completion of a final environmental assessment. The court ruled in favor of the Coast Guard on plaintiff's claims arising under the Whaling Conven- tion Act. The court found that the Coast Guard activities did not constitute whaling, which is prohibit- ed by the Act, even though "whaling" is defined to include killing of whales. On 15 September 1995 the National Marine Fisheries Service issued a biological opinion on the Coast Guard's activities along the Atlantic Coast. The Service concluded that Coast Guard activities were not likely to jeopardize any endangered or threatened species, but specified that, if another endangered whale was struck, consultations should be reinitiated. Subsequently a Coast Guard vessel struck an unidenti- fied whale, thought possibly to have been a humpback whale, off Cape Cod. On 22 September 1995 the Coast Guard circulated and requested comments on a draft environmental assessment concerning the potential impacts of its activities along the Atlantic coast. The assessment identified steps the Coast Guard would take to avoid collisions with whales and, based on those measures, proposed a finding of no significant impact. The proposed measures include plans for using safe, slow vessel speeds when transiting marine sanctuaries and critical habitat areas during non-emergency opera- tions, posting lookouts on all vessels, giving wildlife a wide berth during non-emergency operations, notifying other vessels by radio of the location of whales and broadcasting seasonal notices about the need for caution in critical habitat areas, carefully reviewing permit applications for regattas and boat races to ensure events are not held in sensitive areas when vulnerable species are likely to be present, and continuing to serve on the southeast U.S. right whale recovery plan implementation team and participate in southeastern U.S. right whale early-warning surveys. On 24 October 1995 the Commission, in consulta- tion with its Committee of Scientific Advisors, com- mented on the draft environmental assessment. The Commission noted that the proposed measures would improve protection for right whales and other marine wildlife and supported their adoption. The Commis- sion also suggested additional measures that might be taken. In this regard, it suggested that the Coast Guard participate on other relevant planning teams, such as the northeastern right whale and humpback whale implementation teams, consider using forward- looking sonar on some vessels, and assist with logistic support for research and monitoring programs set forth in endangered species recovery plans. Regarding the latter point, the Commission noted that information from such surveys could be an important source of up-to-date data on areas where vessel-wildlife encounters may be most likely. Noting Coast Guard plans to alert vessels by radio of the location of whales and the potential for such broad- casts to increase close approaches by whale-watchers, the Commission suggested that the Coast Guard consider developing guidelines on the situations, methods, and frequency of such communications so as to avoid collisions by transiting ships, but also to avoid attracting large numbers of whale watching boats to individual animals. On 2 June 1995 the Coast Guard applied to the National Marine Fisheries Service seeking a small- take authorization under section 101(a)(5)(A) of the Marine Mammal Protection Act. Action on the application was deferred pending completion of consultation under the Endangered Species Act. At the end of 1995, the Service was reviewing the Coast Guard request. Humpback Whale (Megaptera novaeangliae) Humpback whales occur in all oceans of the world. They typically migrate from calving and nursing regions in tropical and sub-tropical latitudes to tem- perate to polar latitudes where they feed during warmer months. Thirteen humpback whale stocks have been identified worldwide. Four of these occur in U.S. waters: the western, central, and eastern North Pacific stocks and western North Atlantic stock. All humpback whale stocks were severely depleted by commercial whaling. The International Whaling Commission adopted a series of measures between the 62 Chapter III — Species of Special Concern mid-1950s and the early 1960s banning the hunting of humpback whales in certain areas. By 1966 all stocks were fully protected. Humpback whales were listed as endangered under the U.S. Endangered Species Preservation Act in 1970, a designation carried forward under the Endangered Species Act of 1973. Under this protection some stocks have shown signs of recovery. However, recovery rates may be slowed by human-related impacts associated with noise disturbance, entanglement in fishing gear, offshore oil and gas exploration and development, oil spills, whale- watching activities, coastal development, and depletion of prey. Humpback Whales in Alaska At least two stocks of humpback whales occur seasonally in U.S. waters in the Pacific: the central North Pacific stock, with winter calving areas near the Hawaiian Islands and summer feeding grounds off Alaska and Canada, and the eastern North Pacific stock, with winter calving grounds off mainland Mexico and Central America and summer feeding grounds along the coasts of California, Oregon, and Washington. Members of the western North Pacific stock also may use feeding grounds off Alaska in summer. The winter calving grounds for this stock are around the Ryukyu, Bonin, and Mariana Islands in the Philippine Sea off Southeast Asia. Glacier Bay National Park — During the summer, a portion of the central North Pacific stock of humpback whales feeds in the coastal waters of southeastern Alaska, including Glacier Bay. The bay, lying entirely within Glacier Bay National Park and Preserve and administered by the National Park Service, is a popular destination for cruise ships. Late in the 1970s the number of humpback whales in Glacier Bay declined suddenly. It was thought that noise and disturbance from boats may have caused whales to avoid the bay. The Park Service reviewed the problem and subsequently limited vessel entries into the bay. In 1983 the National Marine Fisheries Service provided the Park Service with a biological opinion pursuant to section 7 of the Endangered Species Act. The opinion recommended that vessel traffic not be allowed to increase unless the number of whales using Glacier Bay remained at or above the 1982 level. The opinion also provided recommendations regarding research and monitoring programs. The Park Service adopted these recommendations which have remained in effect since 1985. In 1986 and 1987 the number of whales using the bay exceeded the 1982 level. At the urging of cruise ship companies, the National Park Service increased the allowed number of cruise ship entries for the 1987 and 1988 seasons to 107 per season. Between 1988 and 1991 the number of whales using the bay again declined. Reasons for the decline were not clear. In 1991 the Park Service initiated steps to evaluate alternatives for managing boat traffic in the bay. A draft vessel management plan was prepared by the Park Service and provided to the National Marine Fisheries Service, which reviewed the document and returned a biological opinion in February 1993. The National Marine Fisheries Service concluded in its opinion that an increase in vessel entries is not likely to jeopardize the continued existence of any threatened or endangered species. The Service also noted that previous declines in the number of whales using the bay was a source of concern, and the possibility that some whales may avoid the bay because of vessels could not be ruled out. However, establishing a relationship between the declines and boat disturbance was not possible because the noise levels produced by boats in the bay and the abundance and distribution of whale prey and other variables had not been monitored. The opinion recommended that the Park Service (1) implement a research program to obtain information on the movement, distribution, and abundance of humpback whales in Glacier Bay and to assess the effects of vessels on the distribution of whales, and (2) continue monitoring programs to document the number of humpback whales that feed in the bay and their length of residence. In 1993, 1994, and 1995 the National Park Service continued to limit cruise ship entries to 107 per year. However, on 5 June 1995 the Park Service published a proposed rule in the Federal Register to revise the regulations, including vessel entry quotas, that 63 MARINE MAMMAL COMMISSION - Annual Report for 1995 were established to protect humpback whales and other resources in the bay. The notice also announced the availability of, and requested comments on, the Service's Glacier Bay National Park and Preserve Management Plan and Environmental Assessment. In the Service's plan, the preferred alternative proposes a 72 percent increase in the number of cruise ships entering the bay in June, July, and August. The proposed action would not authorize an increase in the number of smaller vessels allowed to enter the bay but would authorize tour boat companies to offer passen- gers kayaking and hiking excursions from the boats. By letter of 24 August 1995 the Commission commented to the Park Service on the plan and environmental assessment. In its letter, the Commis- sion made reference to the National Marine Fisheries Service's February 1993 biological opinion on the proposed rule. The Commission indicated that it concurred with the Service's conclusion that the proposed increase in vessel entries is not likely to jeopardize the continued existence of either humpback whales or other endangered species such as Steller sea lions. It also concurred with the Service's recommen- dation that monitoring be continued to document the number and length of residence of humpback whales in the bay, and that studies be done to document the distribution, abundance, and movement patterns of humpback whales in adjacent areas. Also, the Commission pointed out that it is not clear that an increase in cruise ships would not cause humpback whales or other species to abandon or avoid the bay. Therefore, the Commission suggested that an adequate, fully funded monitoring program, necessary to detect and determine the cause of signifi- cant declines in humpback whale use of the bay, should be an integral part of the vessel management plan. In this regard, the Commission recommended that the Park Service consult with the National Marine Fisheries Service and the cruise ship industry to determine (a) the monitoring program required to detect and determine the cause of any significant declines in the use of Park waters by humpback whales, (b) the funding, personnel, special equipment, and logistical support required to carry out the pro- gram, and (c) possible alternative means for funding the required program. As of the end of 1995 the Park Service was re- viewing comments on the draft plan and expected to issue a final rule and a decision on the revised regula- tions early in 1996. Humpback Whales in Hawaii A number of researchers and research groups study humpback whales wintering in Hawaii, and there is concern that duplicative work could result in unneces- sary disturbance of the whales. In 1992 and 1993 the Commission provided funds to help support meetings of the Hawaiian humpback whale researchers to coordinate research and identify and avoid studies that are unnecessarily duplicative. At the meetings, the researchers presented recent research findings and discussed ways to improve cooperation and data-sharing. Participants at the 1993 meeting recommended that the workshops be held annually and that they include time on the water to help standardize data collection procedures. Work- shops have been held annually since then. As de- scribed in Chapter X, the Commission provided partial support for the meetings held prior to the 1995 and 1996 seasons. As before, the 1996 meeting is expected to include time in the field and will be open to all humpback whale research groups. The Hawaiian Islands Humpback Whale National Marine Sanctuary - National marine sanctuaries are administered by the Sanctuaries and Reserves Division of the National Oceanic and Atmo- spheric Administration's National Ocean Service under the Marine Protection, Research, and Sanctuar- ies Act. The goal of the sanctuaries is to protect and manage areas of special importance for their ecologi- cal, historical, recreational, and aesthetic marine resources. On 4 November 1992 the President signed into law legislation designating the Hawaiian Islands Humpback Whale National Marine Sanctuary. The Hawaiian Islands sanctuary, as originally designated, consists of approximately 1,300 nmi 2 of Federal and state waters and includes the area within the 100-fathom isobath adjoining Lanai, Maui, and Molokai, including the Penguin Bank, the deep-water area of the Pailolo Channel, and the waters adjacent to the Kilauea National Wildlife Refuge on Kauai. 64 Chapter III — Species of Special Concern Not included are waters within three nautical miles of the island of Kahoolawe. These waters are high-use areas for humpback whales. Although the sanctuary was designated by an Act of Congress, no comprehensive management plan, implementing regulations, or draft environmental impact statement was developed prior to the designa- tion. The responsibility for developing these lies with the Sanctuaries and Reserves Division. In 1994 and 1995 Commission staff met several times with person- nel from the Division and the National Marine Fisher- ies Service to discuss factors that should be considered in designing the sanctuary's management program. As part of the process of preparing a draft environ- mental impact statement and management plan, the Division, in conjunction with the National Marine Fisheries Service, convened a workshop on 26-28 April 1995 to identify and establish priorities for research and management activities. Prior to the workshop, members of the Commission staff helped identify the goals and structure of the workshop. A Commission representative participated in the work- shop, as did humpback whale researchers and repre- sentatives of Federal, state, and local governments and environmental groups. Subsequently the Division developed a draft environmental impact statement and management plan and announced their availability in a 15 September 1995 Federal Register notice. The Marine Mammal Commission, in consultation with its Com- mittee of Scientific Advisors, reviewed the document and will provide comments early in 1996. In its letter the Commission will concur with the conclusions regarding the proposed boundary and recommend that the Division proceed with efforts to designate and implement the preferred boundary alternative. In addition, the Commission will concur with the conclusions that management activities should continue year-round, and research and education programs would should provide a complementary mixture of leadership and support. The Commission will also agree that a sanctuary advisory council should be established but will suggest that a separate scientific review panel be established to review and provide recommendations to the sanctuary manager on scientific issues and the sanctuary research program. The Commission will point out that the results of the research planning workshop convened by the Division were not but should be considered in the draft envi- ronmental impact statement. The Commission also will point out that the highly endangered Hawaiian monk seal occurs within the sanctuary boundary and will recommend that the Divi- sion take the steps necessary to include this species as a resource of national significance for special protec- tion within the sanctuary. The Commission will recommend further that the Division contact the National Marine Fisheries Service about identifying and implementing education programs designed to inform the general public about where and when hauled-out seals may be encountered, the legislation and regulations that protect monk seals and the consequences of violating them, and the appropriate responses to take if monk seals are encountered. Acoustic Thermometry of Ocean Climate Program — As discussed in Chapter XI, the Defense Department's Applied Research Projects Agency provided funding in 1993 to the Scripps Institution of Oceanography for a 30-month study to determine whether travel times of low-frequency sounds across ocean basins can be measured accurate- ly and used to detect changes in ocean temperature associated with global climate change. The effect, if any, that the sound transmissions will have on hump- back whales and other marine organisms is uncertain. During the 30-month pilot study, low-frequency sound transmitters are to be installed and operated periodically in the deep sound channel off Hawaii and California. The California transmitter was installed late in October. A series of transmissions were done during the installations to test the transmitter. At about the same time, a dead humpback whale was observed near Stinson Beach, California, and two additional humpback whale carcasses were seen floating near the Farallon Islands. Although it was suspected that the sound transmissions may have caused or contributed to the deaths of the whales, assessments of available information on the effects of sounds on marine mammals, the estimated time of the deaths relative to the time of the transmission, and the distance the whales were from the sound source 65 MARINE MAMMAL COMMISSION - Annual Report for 1995 strongly suggests that the sound transmission was not responsible for the deaths. Humpback Whales in the North Atlantic At least two stocks of humpback whales are thought to exist in the North Atlantic Ocean — an eastern and a western stock. The western stock winters in coastal waters of countries bordering the eastern Caribbean Sea. Its known summer feeding grounds include the Gulf of Maine, the Bay of Fundy, the Gulf of St. Lawrence, and waters off Newfound- land, Labrador, southwestern Greenland, and Iceland. The location of the winter calving grounds of the eastern North Atlantic humpback whale stock is uncertain; its summer feeding ground appears to be west and north of Norway in the Norwegian Sea. Project YONAH — A major cooperative research effort on the abundance, population structure, vital rates, and migratory movements of North Atlan- tic humpback whales was begun early in 1992. The program, titled Years of the North Atlantic Humpback Whale, or Project YONAH, involves scientists from seven countries (Canada, Denmark, the Dominican Republic, Iceland, Norway, the United Kingdom, and the United States). The first two years of the project, 1992 and 1993, were devoted primarily to field work. Biopsy samples for genetic analysis and photographs for individual identification were collected from both summer feeding areas in the northeast and breeding areas in the West Indies. About 2,500 individual whales have been identified from more than 5,200 photographs, and about 2,600 biopsy samples for genetic analysis have been collected. The field work has been completed and data analysis is underway. As indicated in Chapter X and in previous annual reports, the Commission provided funds in 1991, 1993, and again in 1995 to assist with project administration, data analysis, and dissemina- tion of results. In addition, the Commission provided partial funding in 1995 for assessing the quality of photographs in the North Atlantic humpback whale photo-identification collection. Much new information on the species' North Atlantic population is expected to result from this large-scale project. Humpback Whale Stock Assessments The 1994 amendments to the Marine Mammal Protection Act direct the National Marine Fisheries Service and the Fish and Wildlife Service to prepare stock assessments for all marine mammal stocks occurring in U.S. waters (see Chapter IV). The assessments are to provide information on take levels in commercial fisheries and in other human-related activities and to include estimates of the minimum stock size, maximum net productivity rate, and potential biological removal level which, if taken, would still allow a stock to remain within its optimum sustainable population level. The assessments are to determine whether stocks are "strategic" stocks, which could require special management attention to reduce incidental take rates. As indicated previously, the Commission in 1994 reviewed draft marine mammal stock assessments prepared by the National Marine Fisheries Service and the Fish and Wildlife Service. In letters dated 1 and 12 December 1994, the Commission provided com- ments to the National Marine Fisheries Service on draft assessments of humpback whale stocks occurring in the North Pacific and North Atlantic Oceans. The Commission indicated that the western North Atlantic humpback whale stock assessment should provide better justified estimates of population size and productivity and more thorough assessments of human-related threats to the population. With regard to the central North Pacific stock, the Commission noted that the draft assessment should provide information on the demography and threats to whales wintering in Hawaiian waters. The draft assessment of the eastern North Pacific (Califor- nia/Mexico) humpback whale population provided a reasonably complete summary and evaluation of available information. Final assessments for North Pacific marine mam- mal stocks were distributed by the National Marine Fisheries Service in July 1995, including three hump- back whale stock assessments. Assessments for North Atlantic stocks were distributed in September 1995. Humpback whales, listed as endangered under the Endangered Species Act, were automatically classified as strategic stocks. 66 Chapter III — Species of Special Concern The western North Atlantic humpback whale stock assessment indicated that the stock size is an estimated 5,543 individuals, the maximum net productivity is assumed to be 4 percent (a default value used for all cetaceans when data are inadequate to estimate the value), and the potential biological removal rate is 9.7 whales per year. The assessment indicated that the level of human-caused mortality and serious injury in commercial fisheries and other human activities is unknown, but current data indicate it is significant. The central North Pacific humpback whale stock assessment indicates that an estimate of population size for this stock is not currently available, the maximum net productivity is assumed to be 4 percent, and the potential biological removal rate is 2.8 whales per year. It indicates that the level of human-caused mortality and serious injury likely does not exceed the rate of potential biological removal. The eastern North Pacific (Califor- nia/Oregon/Washington - Mexico) humpback whale stock assessment indicates that the estimate of this stock is approximately 597 whales, and there are no estimates of maximum net productivity. The assess- ment also indicates that the potential biological remov- al level is 0.5 whales per year, and the estimated annual mortality due to entanglement and ship strikes exceeds the level of potential biological removal. The stock assessment for the western North Pacific humpback whale stock indicates that for this stock there is no reliable estimate of abundance, the as- sumed maximum net productivity is 4 percent, and without a population estimate, it is not possible to determine the potential biological removal level. The estimated mortality rate incidental to commercial fisheries is believed to be zero, but without an esti- mated level of potential biological removal, it is not possible to determine what annual level of incidental mortality is considered significant. In 1996 the Commission will follow developing issues regarding vessel traffic in Glacier Bay, review the results of Project YONAH, and otherwise provide advice regarding the recovery of North Pacific and North Atlantic humpback whale stocks. Bowhead Whale (Balaena mysticetus) Bowhead whales occur only in the northern hemi- sphere and are circumpolar in distribution. There are believed to have been at least four separate stocks, all of which were severely depleted by commercial whaling in the late 19th and early 20th centuries. The period of exploitation and extent of depletion differed for each. The western Arctic stock off Alaska (also called the Bering-Chukchi-Beaufort Seas stock) was most heavily exploited between 1848 and 1915. This is the largest surviving stock of bowhead whales. During spring whales from this stock migrate from wintering areas in the northern Bering Sea to the Chukchi and Beaufort Seas. There they spend much of the summer before returning to the Bering Sea in autumn. The bowhead whale is an important subsis- tence resource for Alaska Natives who hunt them as they migrate along the coast of Alaska in both spring and fall. Bowhead whales are listed as endangered under the Endangered Species Act and are considered depleted under the Marine Mammal Protection Act. All stocks of bowhead whales are classified as protected stocks by the International Whaling Commission (IWC). As such, commercial whaling quotas are set at zero; however, under subsistence whaling provisions for aboriginal hunters, limited catch quotas are recom- mended by the IWC for the western Arctic stock of bowhead whales. Factors such as environmental change, pollution, and noise disturbance from activities related to off- shore oil and gas exploration, combined with subsis- tence take, could have a cumulative effect that might hinder recovery of the western Arctic bowhead whale stock. With regard to oil and gas activities, the Marine Mammal Commission provided comments to the Minerals Management Service in 1995 on a draft environmental impact statement regarding a proposed oil and gas lease sale in the Beaufort Sea. These are described in Chapter IX. 67 MARINE MAMMAL COMMISSION - Annual Report for 1995 Bowhead Whale Stock Assessment The 1994 amendments to the Marine Mammal Protection Act direct the National Marine Fisheries Service and the Fish and Wildlife Service to prepare stock assessments for all marine mammal stocks occurring in U.S. waters (see Chapter IV). The assessments are to include estimates of the minimum stock size, maximum net productivity rate, and potential biological removal level which, if taken, would still allow a stock to remain within its optimum sustainable population level. The assessments also are to provide information on take levels in commercial fisheries and by other human-related activities. They are to indicate whether stocks are "strategic" stocks and could require special management attention to reduce incidental take in commercial fisheries. The Commission reviewed draft marine mammal stock assessments prepared by the National Marine Fisheries Service and provided comments concerning Alaska stocks to the Service on 1 December 1994. With regard to the western Arctic bowhead whale stock, the Commission indicated that the draft report did not appear to provide a complete assessment of all available information concerning estimates of the potential biological removal. The Commission also noted that if there is reason to believe that bowhead whales or their habitat could be adversely affected by offshore oil and gas or other activities, the Service, in consultation with the State of Alaska and appropriate Native organizations, should develop a recovery plan for bowhead whales. The National Marine Fisheries Service distributed final assessments of Alaska marine mammals in September 1995. The assessment of the western Arctic bowhead whale stock indicated that unusually good counting conditions in 1993 resulted in what was considered the most accurate population estimate to date for this stock: 8,000 whales, with a confidence interval of 6,900 to 9,200. The assessment also indicated that the best estimate of the maximum net productivity rate is 4 percent and indicated that the estimated potential biological removal level is 75 whales, but noted that the IWC subsistence harvest quotas, described below, take precedence over the potential biological removal estimate for the purpose of managing the Alaska Native harvest. The assess- ment concluded that the level of human-caused mortal- ity and serious injury does not exceed the potential biological removal level nor the IWC quota for 1995. Nonetheless, the stock is listed as endangered under the Endangered Species Act and was thus classified as a strategic stock. Eskimo Whaling Bowhead whales are hunted by Alaska Natives for subsistence and cultural purposes. Allowable catch levels are established by the IWC, based on estab- lished need, and are implemented by the National Marine Fisheries Service and the Alaska Eskimo Whaling Commission under the terms of a memoran- dum of agreement. In 1982 the IWC amended its Schedule of Regula- tions and set forth guidelines for establishing catch limits for aboriginal subsistence whaling. The new guidelines formally recognized the distinction between commercial and aboriginal subsistence whaling, and 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 depleted whale stocks. In response to the guidelines, the U.S. Department of the Interior developed a quantitative procedure for determining the subsistence and cultural needs of Alaska Eskimos. Based on information available in 1988, the subsistence and cultural needs of Alaska Eskimos for bowhead whales was estimated to be 41 whales. In 1991, on behalf of Alaska Natives, the United States requested a quota of 54 strikes per year for the years 1992, 1993, and 1994 with not more than 41 whales to be landed in any year. In response, the IWC adopted a three-year block quota allowing a total of 141 bowhead whales to be struck during 1992- 1994. In addition, the IWC adopted a provision allowing 13 unused strikes from the 1989 through 1991 quota to be carried forward and added to the new quota. Thus, Alaska Native whalers were authorized up to 154 strikes during 1992-1994. During any single year, however, the number of strikes could not exceed 54 and the number of whales landed could not exceed 41. 68 Chapter III — Species of Special Concern Table 8. Quotas and number of bowhead whales taken by Alaska Eskimos, 1973-1995 1 IWC Quotas 2 Struck % Struck (Landed/ No. but not Total and Year Struck) Landed Landed Struck Landed 1973 39 20 59 66 1974 — 20 34 55 36 1975 — 15 28 43 35 1976 ~ 48 43 91 53 1977 — 29 82 111 26 1978 14/20 12 6 18 67 1979 18/27 12 15 27 44 1980 18/26 16 28 44 36 1981 17/27 17 11 28 61 1982 17/27 8 11 19 42 1983 17/27 9 9 18 50 1984 3 -/43 12 13 25 48 1985 3 -/26 11 6 17 65 1986 3 -126 20 8 28 71 1987 3 —132 22 9 31 71 1988 3 —135 23 6 29 79 1989 41/44 18 8 26 69 1990 41/47 30 14 44 68 1991 41/44 28 19 47 60 1992 41/54 38 12 50 76 1993 41/54 41 11 52 79 1994 41/52 34 12 46 74 1995 3 -/68 45 12 57 79 1 Cited quotas established by the International Whaling Com- mission; data on numbers of whales landed, struck but not landed, and total struck are from Suydam, R.S., R.P. Angliss, J.C. George, S.R. Braund, and D.P. DeMaster. 1995. Revised data on the subsistence harvest of bowhead whales (Balaena mysticetus) by Alaska Eskimos, 1973-1993. In: Forty-fifth report of the International Whaling Com- mission. 45:335-338. 2 Whaling is to cease whenever the number of whales landed or the number of strikes made reaches the specified number, whichever comes first. 3 Quotas set for strikes only. At its 1994 meeting the IWC amended the Schedule of Regulations to authorize bowhead whale takes for subsistence and cultural purposes for the years 1995 to 1998. The amendment permits the landing of no more than 204 bowhead whales from the Bering- Chukchi-Beaufort Seas population during the four-year period. The IWC based this total on a need of 51 whales per year for Alaska Natives in 10 whaling villages, up from 41 landed per year for 1992 to 1994. In an effort to continue improving the efficien- cy of the hunt, the quota permits a decreasing number of strikes each year: 68, 67, 66, and 65 in 1995, 1996, 1997, and 1998, respectively. The IWC allowed any unused portion of the strike quota to be carried forward for use in subsequent years, provided that no more than ten strikes are added to the strike quota for any one year. Catch and strike totals of bowhead whales taken by Alaska Natives between 1973 and 1995 are shown in Table 8. Bowhead Whale Recovery Plan The National Marine Fisheries Service has lead U.S. responsibility for coordinating actions necessary to ensure that human activities do not adversely affect bowhead whales or their habitat. Development of a recovery plan specifying needed research and manage- ment actions would help the Service meet its responsi- bilities. The Marine Mammal Commission recom- mended that the Service develop and implement such a recovery plan for bowhead whales in a 5 December 1991 letter to the U.S. IWC Commissioner, and again in a letter to the Service dated 10 March 1993. On 14 May 1993 the Service advised the Com- mission that it concurred that a bowhead whale recovery plan would be useful. At the same time, however, the Service indicated it would be preferable to defer plan development until 1994 when the IWC's bowhead whale population assessment would be completed. By the end of 1995 the Commission had heard nothing further from the Service regarding development of a bowhead whale recovery plan. In 1996 the Marine Mammal Commission will continue to monitor matters related to bowhead whales and advise the National Marine Fisheries Service, the Minerals Management Service, and other involved agencies on further actions that may be necessary to protect and encourage the continued recovery of the western Arctic bowhead whale population while meeting the subsistence and cultural needs of Alaska Eskimos. 69 MARINE MAMMAL COMMISSION - Annual Report for 1995 Gray Whale (Eschrichtius robustus) The gray whale is primarily a coastal species that occurs only in the North Pacific Ocean. Two separate stocks are recognized: a western North Pacific (Korean) stock and an eastern North Pacific (Califor- nia) stock. A few skeletal remains and subfossil specimens, as well as some historical accounts also indicate that gray whales once occurred along the eastern and western coasts of the North Atlantic Ocean as recently as the early 1700s. Along the New England coast, there is a description from the early 1700s of "scrag" whales that are thought to have been gray whales. Also, radiocarbon data indicate that the most recent gray whale specimen, found along the coast of New Jersey, died around 1675, well into colonial times. The North Atlantic gray whale therefore may have been the first whale population subject to whaling pressure to have become extinct. Pacific gray whales were also severely depleted by commercial whalers in the mid- 1800s and again in the early 1900s. Along the eastern North Pacific, the species was probably reduced to no more than a few thousand animals by the 1940s when it was protected from commercial whaling under international law. The gray whale also was listed as endangered in 1970 under the Endangered Species Conservation Act, which preceded the Endangered Species Act of 1973. With protection from commercial whaling, the eastern North Pacific gray whale population has made a substantial recovery. This population migrates seasonally along the coast between wintering grounds off the Baja California Peninsula in Mexico, to summer feeding grounds as far north as the Bering and Chukchi Seas between Alaska and Russia. Its current population size is estimated at about 23,000 animals and is continuing to increase. Its size is thought to be at or near pre-exploitation levels and, as described in previous annual reports, the eastern North Pacific gray whale population was removed from the U.S. endangered and threatened species list in 1994. Because of the eastern North Pacific population's principal occurrence in nearshore waters and bays for breeding, migrating, and feeding, gray whales remain vulnerable to effects of various human activities. Gray whales are occasionally entangled in coastal gillnets and also may be affected by offshore oil and gas development, whale-watching, commercial and recreational vessel traffic, coastal development, and salt recovery operations in breeding lagoons. In addition, under subsistence whaling quotas set by the International Whaling Commission, gray whales have been taken by U.S. and Russian Natives. The vast majority have been taken in Russia, where catches between 1966 and 1991 averaged 177 animals per year. In 1994, however, only 44 gray whales were taken in Russia. The current IWC subsistence quota for gray whales is 140 animals per year for 1995 1996, and 1997. The western North Pacific gray whale population, which migrates annually between summer feeding grounds in the Okhotsk Sea off eastern Russia and winter breeding areas along the South China Coast, has shown no signs of recovery. It numbers perhaps a few hundred animals at most and therefore has remained listed as endangered under the Endangered Species Act. Gray Whale Stock Assessment Amendments to the Marine Mammal Protection Act in 1994 directed the National Marine Fisheries Service to prepare stock assessments for all marine mammal stocks occurring in U.S. waters to provide a basis for managing the incidental take of marine mammals in commercial fishing operations. Among other things, the assessments are to include estimates of population size and maximum net productivity, determine the level of potential biological removal (not including natural mortality) while still allowing a stock to increase or remain at its optimum sustainable popula- tion level, review information on incidental take levels, and determine if a stock is a "strategic," i.e., one that requires special management attention. The Service circulated draft stock assessments, including a draft assessment for eastern North Pacific gray whales, in August 1994. As described in the previous annual report, Commission comments on the draft assessment for gray whales noted that consider- ation should be given to the effects of habitat degrada- 70 Chapter III — Species of Special Concern tion in important gray whale breeding areas and feeding grounds. In September 1995, the Service published final stock assessments for marine mammal stocks in Alaska, including eastern North Pacific gray whales. For the gray whale stock, the assessment cited 23,109 individuals as the best estimate of population size, and four percent per year as the best estimate of maximum net productivity. Based on this and other information, it determined the potential biological removal level to be 434 animals per year. From observer data and fishermen logbook data, the Service concluded that only a few individuals per year were killed or serious- ly injured in gillnets. It also concluded that human- caused mortality and serious injury does not exceed the estimated potential biological removal level and that the stock therefore should not be considered a strategic stock. Research and Monitoring As noted earlier, the eastern North Pacific stock of gray whales was removed from the List of Endan- gered and Threatened Wildlife in 1994. The Endan- gered Species Act requires that if a species under the Department's jurisdiction is delisted, the Secretary of Commerce must implement a system to monitor the status of the species for at least five years. The National Marine Fisheries Service prepared a draft five-year plan of research and monitoring of the eastern North Pacific gray whale stock, and forwarded the draft to the Commission for review in 1993. The plan set forth the following priority-ranked research tasks: (1) estimate abundance from biennial surveys during the southbound migration; (2) estimate calf production by counting calves during the north- bound migration; (3) determine potential biases in methods used to estimate abundance and calf produc- tion; (4) estimate the number of animals killed for subsistence purposes by Russia for its Natives; (5) determine trends in pregnancy rates of animals taken in the subsistence harvest; (6) evaluate the current status of the stock; and (7) determine the degree to which human-caused effects may compromise the viability of the stock and its habitat. As discussed in the previous annual report, the Commission provided comments to the Service on 29 July 1994 recommending, among other things, that the plan be revised to include identification of human activities that could affect the principal calving and breeding lagoons in Baja California and summer feeding grounds in the Bering and Chukchi Seas; and indicate what will be done to determine the depen- dence of the eastern Pacific gray whale stock on specific feeding and breeding areas. At the end of 1995 the final plan had not been completed and it was the Commission's understanding that the plan would be finalized and released in early or mid 1996. Early in 1996, the Commission expects to write to the Service to inquire about the status of the plan. Although the plan has not been completed, the Service has undertaken a number of gray whale monitoring studies. Shore-based abundance surveys were done during the southbound migration at Granite Canyon, California in 1992-1993, 1993-1994, and again in 1995-1996. The abundance estimate from the 1993-1994 survey is 23,109. These surveys also revealed that proportionally more calves are being seen during the southward migration than in previous studies, some of which date back several decades. This finding indicates that for some individuals calving occurs prior to migration and suggests a trend toward successively later migrations. In 1994 and 1995 shore-based surveys were done to estimate the number of northward migrating gray whale calves passing Piedras Blancas, California. Estimates of calf production were 4.3 percent of the population in 1994 and 2.7 percent in 1995. The reasons for the decrease in the estimated calf produc- tion for 1995 is not known. In addition, studies were done to assess and reduce potential biases in the visual abundance surveys. In 1993-1994 and 1994-1995 aerial surveys were done to determine the offshore distribution of migrating whales and thermal sensors were used to measure day/night migration rates. The thermal sensor study revealed no differences in pod size or surfacing intervals between day and night. 71 MARINE MAMMAL COMMISSION - Annual Report for 1995 Budget limitations have not allowed the Service to initiate studies on other research priorities identified in the draft five-year plan. Potential Threats to Gray Whale Habitat As noted above gray whales spend much of their lives in nearshore waters and are therefore exposed to a variety of human activities and development. Particular concern in this regard has arisen recently with respect to potential development in lagoons along the coast of Mexico used by wintering gray whales. To help assess and avoid possible adverse impacts in these areas, the Commission contracted in 1993 for a study of ongoing and planned development in two major breeding lagoons along the west coast of Baja California, Mexico: San Ignacio Lagoon and Magda- lena Bay. Results of that study were published in 1995 (see appendix B, Dedina and Young 1995). The contract report identifies and describes potential threats to the breeding lagoons, including whale- watching, coastal development, and industrial activi- ties; provides a summary of relevant mechanisms utilized in Mexico for resource conservation; de- scribes efforts that have been made to limit the activities or mitigate potential impacts to gray whales and their habitat; and provides suggestions of actions that might be taken to avoid or mitigate potential adverse affects from human activities. The sugges- tions include increasing fees for whale-watching permits to support gray whale habitat protection and other local conservation programs, and increasing public involvement in the review of plans and envi- ronmental assessments of proposed industrial and coastal development activities near the lagoons. Early in 1996 the Commission expects to transmit the report to the Administrator of the National Oceanic and Atmospheric Administration and key scientists in the National Marine Fisheries Service. Among the potential threats is the proposed con- struction of new salt production facilities at San Ignacio Lagoon, one of the principal breeding/calving lagoons. Construction of the salt processing facilities would include substantial alteration of parts of the lagoon and construction of conveyor belts and a deep- water pier for loading and transporting salt. An environmental impact assessment was prepared by the salt-works owners and submitted to the Mexican government. The assessment was turned down due to insufficient information on the project's location, size, and potential environmental consequences. Apparent- ly, there are plans to submit a revised environmental impact assessment. On a related point, a Commission-sponsored contract report completed in 1994 described the reaction of gray whales to noise experiments conduct- ed in San Ignacio Lagoon in 1983 and 1984 (see Appendix B, Jones et al. 1994). The authors con- cluded that gray whales left the lagoons, at least temporarily, in response to underwater projection of noises of boats, industrial activities, and other sounds. These results suggest that noise associated with coastal development and related activities could cause whales to avoid or abandon areas that may be essential to calving, nursing, and breeding. This report was transmitted to the National Oceanic and Atmospheric Administration on 16 December 1994 with the com- ment that noises generated by various human activities have the potential to adversely affect gray whales using the lagoons. IWC Consideration of Threats to Gray Whale Habitat Potential development effects on the species' breeding lagoons also has been a recent subject of concern within the International Whaling Commission. At its May 1994 meeting, the IWC's Scientific Com- mittee reviewed the effects of tourism and other developments in gray whale critical habitats. The Committee took special note of the Mexico's recogni- tion of the importance of gray whale breeding lagoons and its action to conserve these critical habitats. The Committee recommended that efforts should be made to protect and maintain the integrity of the lagoon habitats by (1) evaluating and considering the effects of lost habitats elsewhere, (2) careful planning of any development to accommodate the needs of developers and wildlife, and (3) implementing an ongoing re- search and monitoring program to allow detection and analysis of any changes in use of the lagoon by gray whales that could be associated with development, including tourism. 72 Chapter III — Species of Special Concern At the IWC 1995 meeting, Mexico requested that the IWC help review the proposed salt-producing operation in San Ignacio Lagoon. Mexico indicated that the original proposal was rejected by Mexican authorities, but an appeal had been made and the Government decided to approach the Commission to request assistance in selecting one or two independent scientists from outside Mexico to help review the potential environmental impacts of the proposed commercial salt processing operation. The Commis- sion agreed to the request and authorized its Secretary and chair of the Scientific Committee to consult with the Mexican government on the implementation of this request and report at the next annual meeting on the final arrangements made. Request to Take Gray Whales for Subsistence Purposes In May 1995 the Makah Tribal Council wrote to the Departments of Commerce and State indicating that the Council intends to ask the agencies formally to seek IWC approval of an annual ceremonial and subsistence harvest of up to five gray whales. The Council indicated that whaling has been a traditional part of the tribe's way of life. It contended that there were no legal impediments to the tribe's rights to take whales because the eastern North Pacific gray whale stock had been removed from the Endangered Species Act's list of endangered and threatened wildlife and because the enactment of the Marine Mammal Protec- tion Act had not abrogated its rights under the 1855 Treaty of Neah Bay. Article IV of that treaty pre- serves the Makah 's "right of taking fish and of whaling or sealing at usual and accustomed grounds. . . . " Although not part of its current propos- al, the Tribal Council also asserted a treaty right to harvest whales for commercial purposes. When approached informally about the proposal, the government had taken the position that any whal- ing by the Makah would require approval by the International Whaling Commission. The Tribal Council responded that, while it believed that Whaling Commission endorsement was not legally required, it would nevertheless be willing to seek such approval. The Council also requested the National Marine Fisheries Service to enter into negotiations to develop a co-management agreement that would delineate tribal and federal management responsibilities regard- ing the proposed gray whale harvesting activities. At the end of 1995 the National Marine Fisheries Service and the Department of State were reviewing the Makah's request. The agencies were expecting to receive additional documentation to support the proposed harvest from the Makah early in 1996. After reviewing that information the agencies will decide whether to seek a quota for gray whales on behalf of the Makah at the 1996 International Whaling Commission meeting. In 1996 the Marine Mammal Commission will continue to track and, as appropriate, provide advice on the Makah Tribal Council's request to take gray whales. In addition, the Commission continues to have concerns about the impact of human activities on gray whale habitats in breeding lagoons and feeding areas. Therefore the Commission will continue to review and provide advice on measures necessary to avoid or mitigate activities that could adversely affect gray whales and their essential habitats. Vaquita (Phocoena sinus) The vaquita, or Gulf of California harbor porpoise, is one of the rarest of all cetacean species . It is found only in the northern Gulf of California, Mexico, and has the most limited range of any cetacean. In 1978 the Government of Mexico added the species to its list of rare and endangered wildlife. In 1979 the vaquita was listed on Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The International Union for the Conservation of Nature and Natural Resources (now The World Conservation Union) listed the species as vulnerable in its Red Data Book in 1979 and changed its status to endangered in 1991. The vaquita was listed as endangered under the U.S. Endangered Species Act in 1985. Neither the historic nor the present size of the vaquita population is well documented. However, 73 MARINE MAMMAL COMMISSION — Annual Report for 1995 recent abundance estimates derived from boat and aircraft surveys done between 1986 and 1993 range from 224 to 885 individuals. These are among the first quantitative estimates of vaquita population size, and they confirm that the species is very rare. Also, the researchers making the estimates indicated that the population could be declining at a rate of about 20 percent annually. Data obtained in recent years further emphasizes the gravity of the situation. Age and reproductive data from a sample of 56 vaquitas obtained between 1985 and 1993 suggest that the life history of the vaquita appears to be similar to that of depleted harbor porpoise populations found elsewhere. How- ever, the potential rate of increase may be lower for the vaquita than for its congeners because the vaquita does not calve annually. The sample consisted mainly of young and old individuals, suggesting that there may be few adults of prime reproductive age. The analysis also revealed the presence of unusual ovarian pathologies in many of the females. In addition, some scientists believe that habitat alteration in the northern Gulf of California may represent a significant threat to the species. On the other hand, contaminants such as chlorinated hydrocarbons and polychlorinated biphenyls were found in low levels in the vaquita relative to small cetaceans in other parts of the world, and contaminants do not appear to pose an immediate threat to the species. Incidental Mortality in Fisheries The greatest threat to the vaquita is entanglement in gillnets. The species is known to have been caught incidentally in the fishery for totoaba since the mid- 1940s. The fish stock itself was severely overexploit- ed and in 1975 the Mexican Government banned the fishery to allow it to recover. Despite the closure, the fishery has continued at low levels, both illegally and as a legal experimental fishery. In 1979 the totoaba was listed as endangered under the U.S. Endangered Species Act to help stop the illegal sale of the fish in the United States. Historic levels of vaquita incidental take are not known, and only recently have attempts been made to quantify fishery-related mortality. Between February 1985 and June 1991 the deaths of 121 vaquitas were documented in gillnet operations for totoaba, shark, ray, sierra (a mackerel-like fish) and in shrimp trawls. At least five vaquitas are known to have died in fishing operations in 1992. More recently, fishing activities involving mesh sizes less than 25 centimeters were monitored in one of the upper Gulfs primary fishing ports between January 1993 and March 1994. Fourteen vaquita deaths were documented in gillnets with mesh sizes between 7 and 15 centimeters, and one vaquita died in a shrimp trawl. In an effort to limit vaquita incidental mortality in gillnets, the Mexican Secretary for Fisheries issued a regulation in February 1992 reiterating the ban on the totoaba fishery and prohibiting the use of large-mesh gillnets in the northern Gulf of California. The mortality monitoring effort does not include all fishing communities and fishermen do not report all incidental takes; therefore the actual mortality is probably higher than reported and may be higher than previously believed. Given the small population size and the low potential rate of increase, it is unlikely that the population can sustain the current rate of fishery-related mortality. International Efforts to Protect Vaquitas At its 1991 meeting the International Whaling Commission's Scientific Committee recommended that actions be taken to fully enforce the closure of the totoaba fishery and halt illegal shipments of totoaba into the United States. It also recommended prepara- tion of a management plan for the vaquita that in- cludes an evaluation of incidental take of vaquita in fisheries and a program to monitor the species' status. At its 1994 meeting the IWC's Scientific Com- mittee concluded that the present levels of incidental catch could result in extinction of the species. The Committee recommended that fishing activity and incidental mortality be monitored throughout the species' range and that surveys be conducted to improve abundance estimates. The Committee ac- knowledged the recent joint research efforts by Mexican and U.S. Government agencies and com- mended efforts by the Mexican Government to protect the vaquita. In response to the Scientific Committee's findings, in 1994 the IWC adopted a resolution 74 Chapter III — Species of Special Concern commending the Mexican Government for creating a biosphere reserve in the upper Gulf of California (see below) and encouraging Mexico to develop a manage- ment plan for the reserve. At the 1995 meeting Mexico reported to the IWC on actions taken with regard to the reserve. In addition to enforcing exist- ing regulations and improving measures to prevent environmental degradation, the Mexican Government is encouraging scientific research, environmental monitoring, education programs, and eco-tourism in the area. Creation of a Biosphere Reserve In June 1993 the Mexican Government created a biosphere reserve in the northern Gulf of California to conserve the ecosystems of the Sonoran Desert, the upper Gulf of California, and the Rio Colorado delta; provide permanent protection to unique species such as the totoaba, the vaquita, the desert pupfish, and various bird species; and promote scientific investiga- tion and environmental education in the region. A draft management plan for the reserve has been developed. It incorporates input from local residents as well as information obtained from recent studies of the area and its ecosystems. The plan describes the physical, biological, social, and economic environ- ments of the area and reviews activities underway to study, protect, and use the area's natural resources. The final plan, entitled "Programa de Manejo: Re- serva de la Biosfera Alto Golfo de California y Delta del Rio Colorado" (Management Program: Upper Gulf of California and Colorado River Delta Bio- sphere Reserve), is expected to be approved and released by spring 1996. Other Conservation Efforts As discussed in previous annual reports, in 1992 the President of Mexico established the Comite Tecnico para la Preservacion de la Totoaba y la Vaquita (Technical Committee for the Preservation of the Totoaba and the Vaquita) to plan, evaluate, and coordinate research on the totoaba and vaquita and to recommend actions to preserve both species. Recognizing the need for a framework to coordi- nate international efforts to protect the vaquita, the Marine Mammal Commission consulted with the chairman of the technical committee as to whether the Commission might assist in developing a vaquita recovery plan. The offer was accepted and support was provided for the committee chairman to prepare a recovery plan. The purposes of the plan are to encourage and coordinate research and management efforts by environmental groups, research institutions, and government agencies of Mexico and the United States. The recovery plan, which was completed in March 1993 (see Appendix B, Villa-Ramirez 1993), calls for assessments of population size and trends, distribution and range, and life history and ecology, and develop- ment of programs to educate fishermen and the general public about the vaquita and its status. In 1993 the Commission provided additional support to translate the plan into Spanish and distribute it to researchers and interested parties in Mexico. Efforts to Strengthen Import Restrictions In November 1991 the Marine Mammal Commis- sion wrote to the National Marine Fisheries Service and the Fish and Wildlife Service, noting that illegal importation of totoaba into the United States appeared to be continuing. Because the species was most often imported in the form of fillets, it was impossible to visually distinguish totoaba from closely related species. Among other things, the Commission called for efforts to develop a test to distinguish totoaba fillets from other fish fillets. In 1992 researchers the National Marine Fisheries Service developed a biochemical test to distinguish totoaba from related species. In 1993 the Service, in cooperation with the U.S. Customs Service, made intensive efforts to intercept totoaba fillets at the U.S./ Mexican border. Ten fillets suspected of being totoaba were seized and analyzed using the biochemi- cal test. In all cases, the fish were not totoaba. During 1994 and 1995 the Service continued to work with Customs officials to make spot checks for totoaba fillets, respond to any reports of suspected 75 MARINE MAMMAL COMMISSION — Annual Report for 1995 illegal fillets, and otherwise assist in stopping possible transport of totoaba fillets. No fillets were seized. The Fisheries Service also is making efforts to educate U.S. travellers entering Mexico about the illegality of catching or transporting totoaba. In 1993 the Service developed a brochure for tourists that describes the distribution and external features of the totoaba and the vaquita and discusses the prohibitions regarding their capture or transport. Several thousand copies were distributed in 1993. The brochure was reprinted in 1994, and in 1994 and 1995 the Service distributed copies to tourists entering Mexico and other interested parties. The Commission is encouraged by actions taken by the Government of Mexico and others to conserve the vaquita and its habitat. However, it is not clear if everything possible is being done to recover the species. The Commission, in consultation with its Committee of Scientific Advisors, will continue to track activities related to the conservation of this species. Gulf of Maine/Bay of Fundy Harbor Porpoise (Phocoena phocoena) Harbor porpoises, measuring less than two meters in length, are among the smallest cetaceans. They occur in coastal temperate and boreal waters only in the Northern Hemisphere, and feed on a variety of small schooling fishes, such as herring, silver hake, and capelin. The species is prone to becoming entangled in gillnets and, because its coastal distribu- tion off New England overlaps major gillnet fishing grounds whose target species, groundfish, also feed on the same prey species, incidental catch of harbor porpoises in gillnets is a significant conservation problem in that area. Harbor porpoises appear to occur in discrete stocks whose boundaries and geographic ranges generally are not well known. Along the east coasts of the United States and Canada, however, harbor porpoises have been comparatively well studied. The studies suggest a single migratory stock of animals exists from the Bay of Fundy in Canada south to North Carolina, the southern limit of the species' normal range in the western North Atlantic. It is known as the Gulf of Maine/Bay of Fundy harbor porpoise stock because it concentrates in those areas in summer. During spring and fall, this stock disperses between the Bay of Fundy and North Carolina. Its distribution in winter is mostly unknown. Harbor porpoises also occur in Canada north of the Bay of Fundy and off southern Greenland, but porpoise in those areas are not thought to part of the same stock. Many species of marine mammals are taken incidental to commercial fishing in the United States; however, the largest cetacean bycatch in recent years has been the take of harbor porpoises in a sink gillnet fishery for groundfish off New England. Harbor porpoises from the same stock also are taken by sink gillnets in the Bay of Fundy in Canada and by coastal gillnets south of New England. A subjective analysis by Canadian scientists combining anecdotal informa- tion and very limited catch data suggested that early in the 1980s perhaps 600 porpoises a year were being taken in the Bay of Fundy, the Gulf of Maine, and more southern waters, and that take in commercial fisheries may have been affecting the regional harbor porpoise stock since the 1970s. A study comparing body lengths of porpoises collected in 1969-1973 with those taken in 1981-1986 found that, while calves tended to be larger in the latter period, the overall population was composed of smaller animals. This suggested that individuals were not surviving to older ages, that calf-bearing periods of mature females were becoming shorter, and that food was not a limiting factor. In an effort to reduce the incidental take of marine mammals in commercial fisheries, Congress amended the Marine Mammal Protection Act in 1988. In part, the amendments require that the National Marine Fisheries Service establish an observer program to assess and monitor incidental-take levels in U.S. fisheries. Observer sampling in the New England sink gillnet fishery for groundfish began in 1990. Based on the levels of observed take of harbor por- poises in that sampling program and estimates of total fishing effort from port-based landing reports, the Service estimated that harbor porpoise incidental-take levels in the New England sink gillnet fishery was 76 Chapter HI — Species of Special Concern 2,900 porpoises in 1990, 2,000 porpoises in 1991, 1,200 porpoises in 1992, and 1,400 porpoises in 1993. As discussed below, the observer program was continued in 1994 and 1995 but, due to changes in the way the Service tracked fishing effort and other problems, estimates of total incidental take for the fishery in those years were not yet available at the end of 1995. Partial analyses in 1995, however, suggest that incidental take in 1994 increased substantially above the 1992 and 1993 levels. The incidental catch of harbor porpoises in the Canadian gillnet fishery in the Bay of Fundy also has been a concern, but until recently reliable data on take levels from that area have not been available. In 1993 and 1994 the Canadian Department of Fisheries and Oceans carried out an observer program to assess harbor porpoise take in the Bay of Fundy in Canada. Based on results for those years, incidental take by gillnets in that area has been estimated at 424 porpois- es in 1993 and 101 porpoises in 1994. Almost all of the porpoises were taken in two small areas in sum- mer and early fall. Adding together the 1993 catch estimates for Canadian and New England waters suggests a total take of more than 1,800 animals in the northern end of the range of the Gulf of Maine/Bay of Fundy harbor porpoise stock in that year. Information on incidental take of harbor porpoises between New York and North Carolina is based on stranded porpoises exhibiting marks from gillnets or attached net fragments. In 1993, 50 harbor porpoises were found stranded in this area, mostly in Virginia and North Carolina between March and May, and several animals showed signs of gillnet interactions. In 1994 the number of harbor porpoise strandings in the area increased. As of the end of 1995 information was not yet available on the number of strandings showing evidence of gillnet interactions or the number of strandings in 1995. The source of these interactions is unclear. Coastal gillnetters fishing between New York and North Carolina target various fish species depending on location and season. In recent years many gillnet fishermen from the northeastern United States also have begun fishing in this area for dogfish and monk- fish. They often operate from small boats on sched- ules that make observer programs difficult. Although gillnet fishery observers in this region have not yet identified the fishery responsible for harbor porpoise strandings, a coastal shad fishery that has not yet been studied may be involved. The high number of porpoises caught in gillnets off New England prompted the National Marine Fisheries Service to conduct harbor porpoise surveys in 1991 and 1992 to estimate stock size. The surveys were carried out in the summer when the stock is concen- trated in the northern part of its range, and they produced stock size estimates of 37,500 animals (95% confidence interval 26,700 to 86,400) from 1991 data, and 67,500 animals (95% confidence interval 32,900 to 104,600) from 1992 data. Pooling the results gives a weighted stock size estimate of 47,200 animals (95% confidence interval 39,500 to 70,600). Al- though a new survey was conducted in the summer of 1995, analyses had not yet been completed as of the end of 1995. Given estimates of stock size, harbor porpoise reproductive biology, and other information, it seems likely that incidental-take levels from the Gulf of Maine/Bay of Fundy harbor porpoise stock have exceeded sustainable levels. Gulf of Maine/Bay of Fundy Harbor Porpoise Stock Assessment In 1994 the Marine Mammal Protection Act was amended to require that the National Marine Fisheries Service develop marine mammal stock assessments to help manage the incidental take of marine mammals in U.S. fisheries (see also Chapter IV). The assessments are to include estimates of stock size, maximum net productivity, and a potential biological removal level (other than natural mortality) that would allow the stock to increase to or remain within optimum popula- tion limits. The assessments also are to include a determination as to whether a stock should be consid- ered "strategic," which could trigger the formation of an incidental-take reduction team to prepare an incidental-take reduction plan. The Service circulated the draft stock assessments in August 1994. In its 12 December 1994 comments on the draft assessments, the Commission noted that 77 MARINE MAMMAL COMMISSION — Annual Report for 1995 the Gulf of Maine/Bay of Fundy harbor porpoise stock clearly met the strategic stock criteria and that a take reduction team should be formed immediately. By letter of 24 February 1995 the Service advised the Commission that it anticipated completing its final stock assessments by early March 1995 and that it would establish a take reduction team for the Gulf of Maine/Bay of Fundy stock of harbor porpoises by the end of March 1995. The Service, however, was unable to meet to this schedule and, as discussed below, pending formation of the incidental-take reduction team for this harbor porpoise stock and preparation of a take reduction plan, the Northeast Multispecies Fishery Management Plan prepared by the New England Fisheries Management Council continued to serve as the basis for managing incidental take of harbor porpoise in the New England sink gillnet fishery. The Service circulated its final stock assessments in August 1995. The final assessment for the Gulf of Maine/Bay of Fundy harbor porpoise stock cited the above-noted population estimate of 47,200 animals as the best estimate of abundance and calculated a minimum abundance estimate of 40,297 animals. The assessment also determined that the best estimate of maximum net productivity for the stock was four percent per year and that its potential biological removal level was 403 porpoises per year. Noting that the above-mentioned estimates of incidental take in New England sink gillnets exceed the potential biological removal level, the Service determined that the stock should be considered a strategic stock. On 22 November 1995 the Service invited the Commission to participate on a harbor porpoise incidental-take reduction team scheduled to meet early in 1996. The team will be charged with developing and providing the Service with a recommended take reduction plan within 6 months of its establishment. The plan is to include measures that would immediate- ly reduce harbor seal incidental-take levels to below the potential biological removal level for the entire stock and to reach levels approaching a zero mortality and serious injury rate within five years. As the Service is required to review and take appropriate action to implement the plan within six months of receiving the team's plan, measures to meet this goal must be in effect no later than spring 1997. Use of Acoustic Alarms To Deter Harbor Porpoises from Nets Between 1991 and 1993 the National Marine Fisheries Service supported studies to investigate the use of acoustic deterrents to prevent harbor porpoise entanglement in nets. The work, carried out by commercial fishermen and scientists with the Memori- al University of Newfoundland, Canada, the New England Aquarium, and other institutions, involved attaching acoustic alarms (pingers) to nets to divert approaching animals and thereby prevent their entan- glement. Although used with some success in other fisheries to prevent baleen whales entanglement, experiments with other cetaceans had not proved useful. Results of the initial work on harbor porpoise, however, were encouraging and early in 1994 the Service convened a scientific panel to review the harbor porpoise deterrent work and determine whether further experimentation was warranted. Based on the panel's recommendations, the New England Aquarium proposed an experimental protocol to test pingers on the nets of cooperating gillnet fishermen in an area off New Hampshire where the bycatch of harbor porpois- es had been high. As described in the previous annual report, the Commission commented on the experimental protocol early in the fall of 1994. Between October and December 1994 the study was carried out with funds provided by the Service and the National Fish and Wildlife Foundation. The study used a double-blind sampling protocol in which an equal number of gillnets were deployed with active and inactive alarms and the incidental catch of harbor porpoise was recorded by independent observers. Neither observers nor fishermen knew whether deployed nets were equipped with active or inactive alarms and the alarms were changed by a third party after each set. On 25 July 1995 the New England Fishery Man- agement Council provided the Commission with a draft study report, requesting comments on its find- 78 Chapter III — Species of Special Concern ings and asking for advice as to whether and how acoustic alarms might be incorporated into future management decisions for the regional sink gillnet fishery. The Commission, in consultation with its Committee of Scientific Advisors, reviewed the report and replied to the Council on 14 August 1995. The draft report noted that during the study 421 sets were made with inactive alarms and 423 sets with active alarms. It also reported that only two porpoises were caught in nets with active alarms, while 25 porpoises (0.059 porpoise per set) were caught in nets with inactive alarms. Most of the porpoises caught were mature males. Three harbor seals were also caught — two in nets with active alarms and one in a net with inactive alarms. Among other things, the investigators noted that it was not clear why the alarms had worked so well or whether animals would habituate to the sound over time, rendering the alarms ineffective. They also cautioned that the results should not be extrapolated to other porpoise or dolphin species. They concluded, however, that acoustic alarms would be an effective means of reducing the incidental catch of harbor porpoises in the sink gillnet fishery in the Gulf of Maine. In its 14 August letter, the Commission noted that the study design was well conceived, the statistical methods used to analyze the data were appropriate, and the results were very encouraging and highly significant. However, given uncertainties (such as potential habituation of porpoises to deterrent sound and possible differences in the effectiveness of deter- rents in areas and seasons where the age-sex composi- tion, social interactions, and behavior of porpoises could differ from those in the study) the Commission noted there was a clear need for further study of the device's effectiveness. Therefore, pending further study, the Commission cautioned against relying on the use of acoustic deterrents in normal fishing practices to reduce harbor porpoise bycatch. With regard to incorporating use of the devices into future management actions, the Commission noted that the Service had recently adopted a system of three time-area closures recommended by the Council to reduce harbor porpoise bycatch. Based on past observer data, however, the closures covered only part of the peak bycatch areas and time periods (see below). The Commission therefore recommend- ed that the seasonal closures be expanded to better bracket the months and areas where past observer data indicated high porpoise bycatch had occurred, and that limited fishing opportunities be allowed within those closures to further test the effectiveness of acoustic deterrents, preferably by using the same methodology as in the 1994 study. The Northeast Multispecies Fishery In 1986 the National Marine Fisheries Service adopted a fishery management plan prepared by New England Fishery Management Council to manage the fishery for groundfish (e.g., cod, flounder, and haddock) taken off New England by trawls, longlines, and sink gillnets. Because of the large harbor por- poise bycatch, in October 1992 the Service asked the Council to develop an amendment to that plan to reduce the incidental take of porpoise in the sink gillnet component of the fishery. The Council in turn established a harbor porpoise subgroup to analyze porpoise bycatch patterns using data from the Ser- vice's fishery observer program for the 1991 and 1992 fishing seasons. The analysis indicated that the bycatch of harbor porpoises shifted by season and area as harbor por- poise migrated along the coast. Depending on the year, about one-half to three-fourths of the bycatch occurred in a "mid-coast" area between northeast Massachusetts and southern Maine, particularly around a topographic feature called Jeffreys Ledge, from October to December, and along a "northeast" area off the central and northern coast of Maine from June to September. Lower bycatch levels also oc- curred in the mid-coast area in April and May, and a few porpoises also were caught in Massachusetts Bay in March and April. Based on this information, in September 1993 the Council recommended interim take-reduction measures on which the National Marine Fisheries Service requested public comments in October. The Council proposed adding a goal to the fishery management plan to reduce harbor porpoise bycatch levels by 20 percent per year over a four-year period to reach an annual bycatch level of less than two percent of the stock's estimated size by the fifth year. Assuming a 79 MARINE MAMMAL COMMISSION — Annual Report for 1995 minimum population estimate of 39,500 animals and an average annual bycatch level of 1 ,300 porpoises for 1992 and 1993, the goal called for reducing bycatch levels to 1,040, 780, and 520 porpoises by years two, three, and four, respectively. To achieve this goal, it proposed rules to limit seasonal fishing effort begin- ning in April 1994, pending the development of alternative time-area closures. As noted in its previous annual report, the Com- mission commented to the Service on 15 November 1993 recommending, among other things, a more expeditious reduction of incidental-take levels and expressing support for developing time-area closures. The Service published final rules on 1 March 1994 to implement the Council's recommendations. To allow it to respond quickly to unforeseen developments, the Council's framework management system provides for expedited rulemaking, whereby a recommended measure can be implemented as a final rule by the Service without public comments on proposed rules, provided that the Council considers the measure at two of its public meetings before recommending it to the Service. Using the expedited rulemaking process, the Council recommended and the Service adopted a system of time-area closures for the sink gillnet component of the fishery. The final rules, published by the Service on 20 May 1994, took effect before the measures to reduce fishing effort were implemented. The closure boundaries adopted by the Service excluded some areas where bycatch rates had been high and the closure times covered only part of the high bycatch periods in different areas. For example, the "mid-coast" closure excluded most of Jeffreys Ledge, allowing fishermen to simply move from the closed area to another area where bycatch rates were high. The mid-coast closure was in effect only for November, rather than September to December when peak bycatch periods had been observed. Also, the "northeast" closure was effective from mid-August to mid-September although the peak bycatch in that area occurred from June through September. As noted in the previous annual report, it seemed questionable whether the adopted measures would achieve the Council's goal of reducing bycatch by 20 percent in the first year of its four-year program. As noted above, the Commission's 14 August 1995 comments to the Council on the acoustic deterrent experiment recommended that the time-area provisions for the closed areas be expanded to better bracket the times and areas of observed harbor porpoise bycatch. Information from the 1994 observer program on harbor porpoise bycatch was not available from the Service early in 1995, and the Council took no action in advance of the second year of its four-year take reduction program to strengthen bycatch control measures. On 9 August 1995, however, the Service advised the Council that, based on a partial analysis of observer program data for 1994, the harbor porpoise bycatch rate for September and December of that year in the mid-coast area was about three times higher than catch rates from 1991 to 1993, and the highest catch rates were in September and October. The tentative findings therefore indicated that there was greater year-to-year variability in the timing of peak bycatch levels than previously thought, and that the adopted closures for the area were insufficient to meet the take-reduction goal. To develop new measures, the Council asked its harbor porpoise review team to examine the new information and recommend new bycatch reduction measures. A representative of the Marine Mammal Commission was invited to participate on the team, which met on 8 September 1995. During its meeting, the team considered preliminary analyses from the National Marine Fisheries Service's 1994 observer effort as well as analyses from earlier years of the program, preliminary results from the 1994 acoustic deterrent experiment (see above), and the Service's final stock assessment for the Gulf of Maine/Bay of Fundy harbor porpoise stock (see above). With regard to information from the 1994 observer program, the team was advised that preliminary analyses of bycatch rates were available only for the mid-coast area, and that summary analyses had been delayed by data processing problems. It also was told that because of new methods adopted by the Service in 1994 to record fishing effort, it would no longer be possible to assess the geographic distribution of harbor porpoise bycatch within fishing areas. As a result, new information to evaluate appropriate closure 80 Chapter III — Species of Special Concern boundaries would not be available and, instead of estimating the number of harbor porpoises caught in different regions as in the past, assessments would be limited to regional catch-per-set rates based on observ- er data. Based on available information, the team concluded that existing time-area closures were neither large enough nor long enough to account for year-to-year variability in harbor porpoise bycatch. It also con- cluded that the Council's first-year goal had not been met and that the existing closures were not sufficient to achieve the Council's stated bycatch reduction goal. Because it was too late to implement new closure rules for September 1995, the team recommended that, for the fall 1995 fishing season, the mid-coast closure should be expanded to include Jeffreys Ledge and it should cover the months October through December 1995. Noting the promising results from the 1994 acoustic deterrent study, the team also discussed further testing of fishing with acoustic devices in the closed area. No recommendations were made in this regard, however, as the team understood acoustic devices could not be manufactured in time for the fall 1995 fishing season. Among other things, the team also noted that 1996 spring and summer closures should be expanded in time and area to better cover the periods and areas of harbor porpoise bycatch, that consideration should be given to allowing controlled fishing within portions of those areas to test the effectiveness of acoustic deter- rents, and that a new closure south of Cape Cod should be considered, given new observer data show- ing that harbor porpoise bycatch also occurs in that area. Because further analyses from the 1994 observ- er program was expected before the 1996 fishing seasons, the team deferred offering specific advice on these actions. The team also noted that the Service's stock assessment for the regional harbor porpoise stock had established a potential biological removal level of 403 porpoises, to include both bycatch in Canada and off U.S. mid- Atlantic states as well as New England. The team therefore noted that the Council should clarify its bycatch reduction goal to ensure its consis- tency with new provisions of the Marine Mammal Protection Act that call for incidental-take levels to be reduced below potential biological removal levels. Considering the advice of the harbor porpoise review team and others, the Council proceeded with expedited rulemaking to revise the harbor porpoise take-reduction measures for the fall 1995 fishing season in the mid-coast area. The Council recom- mended that the mid-coast closure be redefined to include most of Jeffreys Ledge. At the request of fishermen, a portion of Jeffreys Ledge (i.e., Tillies Bank) where porpoise bycatch rates have been low was excluded from the recommended closed area. Given the required procedural steps, the earliest the new rules could be implemented was November, and the Council therefore recommended a closure period of 1 November through 31 December. It also asked the Service to examine the possibility of further tests, particularly in the Jeffreys Ledge area, of the effec- tiveness of acoustic deterrents in reducing harbor porpoise bycatch. On 30 October 1995 the Service published final rules in the Federal Register adopting the Council's recommendations. It also took steps to allow gillnet fishing in the Jeffreys Ledge area, provided nets were equipped with suitable acoustic devices and an opportunity was afforded to place observers aboard vessels. The Service's Federal Register notice also noted that changes were under consideration for other closed areas but that needed changes to regulations for these areas would be evaluated during the Council's next annual review of the harbor porpoise bycatch reduction program. As noted above, the peak period of harbor porpoise bycatch in the mid-coast area in 1994 occurred in September and October. Because of the delay in revising provisions for this closure, it was again unclear how effective the measures would be in reducing harbor porpoise bycatch in this key area in 1995. Preliminary information on further tests of acoustic devices at Jeffreys Ledge late in 1995, however, was again encouraging. A number of gillnet fishermen were able to obtain acoustic devices and, by pooling funds, they hired a technician to carry out routine maintenance of their acoustic alarms. As of the end of 1995 apparently no harbor porpoise had 81 MARINE MAMMAL COMMISSION - Annual Report for 1995 been caught in nets equipped with the alarms and monitored by the Service's observer program. Harbor Porpoise Program Oversight As indicated above, the bycatch of harbor porpoise in sink gillnets off New England is one of the most urgent marine mammal incidental-take problems in the United States. Actions in 1994, however, failed to prevent an increase in harbor porpoise bycatch levels and actions taken in 1995 proved to be problematic and late. Based on information presented at the September 1995 harbor porpoise review team meeting discussed above, the Service was unable to provide to the Council timely or complete analyses of harbor por- poise bycatch from its 1994 observer program. This was due to a new computer data management system and an ad hoc data editing procedure. In addition, because of a change in the way fishing effort data was collected in 1994, analyses of the spatial distribution of bycatch, which had provided the basis for defining area closure boundaries, are no longer possible. As a result, even when bycatch analyses are completed, they likely will provide a poor and perhaps question- able basis for evaluating the effectiveness of individual area closures or needed changes. Concerned that Service planning and responsive- ness to management needs was not adequate, the Commission wrote to the Service on 10 October 1995. In its letter, the Commission asked to be advised as to the schedule for completing analyses of 1994 bycatch levels and the steps and schedule for ensuring more timely analyses of bycatch data in 1995 and beyond. Given the fundamental change in the way bycatch is measured, the Commission also asked to be advised how the Service plans to identify and evaluate appro- priate changes in area closures to reduce harbor porpoise bycatch without the fine-scale geographic information on fishing effort and bycatch levels that was previously available for particular fishing areas. The Commission also noted that timely action to adjust the time-area closures under the four-year harbor porpoise bycatch reduction program had not been taken even though the third year of the program would begin in a few months. In addition, the Com- mission noted that, while it was advised earlier in 1995 that the Service planned to establish a harbor porpoise incidental-take reduction team in March, that team had not yet been designated, and the Service also had still not announced a decision on its January 1993 proposal to designate harbor porpoises as threatened under the Endangered Species Act. The Commission therefore also asked to be advised as to the current schedule for addressing these issues and the steps the Service would take to assure that future deadlines and schedules would be met. Following its 10 October 1995 letter, the Commis- sion gave further thought to how it might assist in resolving data management and analysis problems related to estimating total bycatch levels. Based on its deliberations, it wrote to the Service on 31 October offering the services of a member of its Committee of Scientific Advisors, an expert statistician, as a consul- tant to the Service to examine and provide advice on related data management issues. By letter of 17 November 1995, the Service accepted the Commis- sion's offer. As of the end of 1995, the Commission had not received a response to its 10 October letter, but it expected that its Committee member would meet with Service staff responsible for harbor porpoise bycatch analyses early in 1995. As noted above, the Service also invited the Commission on 22 November 1995 to participate on a harbor porpoise incidental-take reduction team scheduled to meet early in 1996 to develop a plan for reducing harbor porpoise inciden- tal-take levels. Endangered Species Act Status Review In September 1991 the Sierra Club Legal Defense Fund petitioned the National Marine Fisheries Service to list the Gulf of Maine harbor porpoise population as threatened under the Endangered Species Act. The petition was submitted in light of the large harbor porpoise bycatch in the Gulf of Maine and the Bay of Fundy, the absence at that time of any management action to reduce the take, and the possible impact of the bycatch on the regional harbor porpoise stock. As discussed in previous annual reports, the Service requested public comments on the action and on 7 82 Chapter III — Species of Special Concern January 1993 published a Federal Register notice proposing that the population be listed as threatened. The analysis accompanying the Service's proposal noted that at least 2,000 harbor porpoises were being caught incidentally in regional gillnet fisheries, that the minimum bycatch was about 4.5 percent of the best population estimate, that the incidental take was exceeding sustainable levels, and that regulations necessary to reduce the level of bycatch did not exist. During 1993 and 1994 the comment period on the proposal was extended several times as new informa- tion became available on harbor porpoise incidental take and management actions. In its comments of 22 September 1994, the Commission noted that informa- tion summarized by the Service in support of its proposal justified the listing action and that more recent information on harbor porpoise bycatch levels indicated that the situation was actually worse than believed when the Service first made its proposal. Accordingly, the Commission recommended that the Service immediately proceed with its proposed action. Although the Commission understood that the Service intended to announce a decision on the matter early in 1995, it did not do so, nor did it make a decision subsequently in 1995. As noted above, the Commission wrote to the Service on 10 October 1995 expressing concern about the timeliness of Service action on this and other harbor porpoise management actions and asking to be advised when a decision would be made on the listing proposal. As of the end of 1995, it had not received a reply from the Service. Beluga Whale (Delphinapterus leucas) The beluga whale (also known as the belukha or white whale) is distributed widely throughout Arctic and sub- Arctic seas. The size and discreteness of individual populations is uncertain. Total abundance is estimated to be 50,000 to 70,000 animals world- wide. Five relatively discrete beluga whale popula- tions are thought to exist in U.S. waters. The largest is the Beaufort Sea stock, shared with Canada. Other populations are found in the eastern Chukchi Sea, Norton Sound, Bristol Bay and Cook Inlet. Beluga whales have been a traditional source of food and oil for northern Natives for centuries. Subsistence hunting may have begun as early as the ninth century. Commercial exploitation of the species began in the mid- 1800s and continued until the end of the century when whaling fleets turned their attention to more profitable species. However, a commercial take by land-based trading companies continued, in some cases into the 1960s. Some stocks thought to have been reduced to 10 to 20 percent of their initial size. Today almost all catches of beluga whales are by local peoples for subsistence use, including a take by Alaska Natives. In a few cases, beluga whales are captured for public display. The species is listed on Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Alaska Beluga Whale Committee Beluga whales are an important subsistence re- source in several Alaska Native villages. In the 1980s beluga whales became a focus of attention by conser- vation groups, which were concerned that the numbers of beluga whales in Alaska waters might be declining. At the same time, there were discussions within the International Whaling Commission on possible management of small cetaceans. In March 1988 the Alaska Beluga Whale Committee was formed by concerned Natives and representatives of local, state and Federal agencies to promote the wise conserva- tion, management, and use of beluga whales. Since 1992 Congressionally appropriated funds passed through the National Marine Fisheries Service have allowed the committee to take an active role in beluga whale management and research. The Alaska Beluga Whale Committee held a work- shop on the beluga whale in Anchorage, Alaska, on 5- 7 April 1995 to review available information on the status and conservation of beluga whales. The work- shop included Native hunters from 16 Alaska coastal communities and representatives of local, state and Federal agencies. Also participating were government representatives from Canada and Denmark (for Greenland). The workshop reviewed current infor- mation about beluga whales, reports of studies being supported by the Alaska Beluga Whale Committee, harvest information from Alaska, Canada, and Green- land, and research needed to resolve uncertainties 83 MARINE MAMMAL COMMISSION - Annual Report for 1995 concerning the status and trends of beluga whales in Alaska. Since its creation in 1988, the Alaska Beluga Whale Committee has been collecting harvest data from Native hunters. Information presented at the April 1995 workshop indicated that the total average annual harvest for the years 1987 to 1994 from all beluga whale stocks in Alaska was 274 whales. The Beaufort Sea stock, which is shared with Canada, has also been subject to an annual take by Canadian Natives. The average annual Canadian harvest from this stock for this period was 118 whales. As noted earlier, there are believed to be five relatively discrete stocks of beluga whales in Alaska. The annual take from all but the Cook Inlet stock is believed to be less than two percent of the estimated stock size. During 1995 the Alaska Beluga Whale Committee, working with the North Slope Borough and with support from the National Oceanic and Atmospheric Administration, completed a data and sample collect- ing manual for use by Native hunters. The 22-page manual includes instructions on how different biologi- cal samples should be collected and handled, as well as a discussion of what biologists can learn from the samples. Beluga Whale Stock Assessments Section 1 17 of the 1994 amendments to the Marine Mammal Protection Act requires that the National Marine Fisheries Service and the Fish and Wildlife Service prepare stock assessments for each stock of marine mammal that occurs in waters under U.S. jurisdiction. As discussed in Chapter IV, each stock assessment report is to estimate the minimum size and maximum productivity rate of the stock, calculate a potential biological removal level (not including natural mortality) that can be safely taken without causing the population to fall below its optimum sustainable population level, and assess the level of incidental take by commercial fisheries. In cases where the estimated level of mortality and serious injury exceeds the estimated potential biological removal level, the stock is to be classified as a "stra- tegic" stock. Draft stock assessment reports for species under the jurisdiction of the National Marine Fisheries Service were prepared and distributed for review on 9 August 1994. With respect to beluga whales, the Service identified five presumed discrete stocks in Alaska: the Beaufort Sea stock (shared with Canada), the eastern Chukchi Sea stock, the Norton Sound/Yukon Delta stock, the Bristol Bay stock, and the Cook Inlet stock. The Beaufort Sea stock was estimated at 21,000 animals and stable. Data were insufficient to estimate the maximum net productivity rate for this as well as the other four beluga whale stocks. Therefore, a 4 percent default rate applicable to cetaceans generally was used in all cases to calculate the potential biologi- cal removal level. The potential biological removal level for the Beaufort Sea stock was calculated at 420 whales a year. There was no reported incidental take in commercial fisheries, and the subsistence take by Alaska Natives was estimated at fewer than three whales a year. The Bristol Bay stock was also considered to be stable with an estimated minimum population level of 1 ,800 animals. The potential biological removal level was calculated to be 36 whales per year, and the annual subsistence take was estimated to be 8 whales. The draft assessments classified the three remaining beluga whale stocks as strategic stocks. These are the eastern Chukchi Sea stock, with a minimum popula- tion estimate of 2,500 animals, a potential biological removal level of 50 whales, and an annual subsistence take of 92 whales; the Norton Sound/Yukon Delta stock with a minimum population estimate of 4,000 animals, a potential biological removal level of 51, and an annual subsistence take of 168; and the Cook Inlet stock with a minimum population estimate of 332 whales, a potential biological removal level of 6.6, and an annual subsistence take of 13 whales. As discussed in the previous annual report, the Marine Mammal Commission, in consultation with its Committee of Scientific Advisors, provided comments on the draft assessments to the Service on 1 December 1994. In its comments, the Commission noted that because the Beaufort Sea stock is shared with Canada, the stock assessment should include information on 84 Chapter III — Species of Special Concern levels of incidental take in commercial fisheries and subsistence hunting in Canada as well as in Alaska. The Commission also noted that the draft assessment was based on subsistence harvest information from Alaska that was neither complete nor accurate. For instance, the Commission cited harvest data showing that the known retrieved harvest from the stock by Alaska natives ranged from 25 to 83 during the period 1987-1993 and, at the same time, the Canadian Native take ranged from 106 to 171. The Commission concluded that, although not based on the best avail- able information, the statement that the current level of take is below the potential biological removal level appears correct. It suggested that the final stock assessment should provide more up-to-date informa- tion on population size as well as levels of subsistence take in both Alaska and Canada. With regard to the Chukchi Sea stock, the Com- mission noted that the draft assessment did not clearly identify the range of the stock. Also, it appeared that the estimate of population size was not based on the most up-to-date information, and the estimated aver- age annual Native subsistence harvest appeared to be based on data for a single year, and was not a multi- ple-year average. The Commission also noted that the assessment appeared to be inconsistent in some conclusions. On one hand, the draft indicated that, given the uncertainty concerning the minimum popula- tion estimate, it was not possible to predict the impact of human- related removals from the stock. On the other hand, the draft concluded that the stock should be considered stable. The Commission recommended that the Service obtain more up-to-date information on Native subsistence harvest and that the assessment be expanded to identify the uncertainties concerning the status and management of the stock and what would be needed to resolve them. With respect to the Norton Sound/Yukon Delta stock and the Bristol Bay stock, the Commission similarly noted that there was not sufficient evidence to judge the validity of the Service's conclusions and, again, the estimate of Native take appeared to be based on one year, not an average. It suggested that the final stock assessment be expanded to identify any uncertainties, and the measures needed to resolve uncertainties, concerning the status and management of the stock. With respect to the Cook Inlet stock, the Commis- sion suggested that the final assessment provide more detailed descriptions of fisheries and the incidental take of beluga whales in those fisheries, and also identify uncertainties concerning the stock size, stock productivity, and the numbers of animals being and killed or injured incidental to the various fisheries. Finally, the Commission recommended that, if it had not already done so, the Service consider develop- ing a conservation plan for the stocks of beluga whales in Alaska as well as the development of a cooperative agreement with the Alaska Beluga Whale Committee to help implement the plan. Subsequently, a number of Alaska Native organiza- tions raised concerns about the Service's final stock assessment reports for some Alaska marine mammal species subject to subsistence harvests but not to significant interactions with commercial fisheries. They expressed concern that, for stocks with no known significant fishery-related mortality or with uncertain stock status, classification as a strategic stock focused undue attention on Native subsistence harvests as a primary cause of the strategic determi- nation. The Service wrote to the Commission on 28 March, relating the concerns expressed by Alaska Native groups. In its letter, the Service noted that it interpreted the primary intent of the 1994 amendments and the guidelines for determining potential biological removal levels as addressing marine mammal mortali- ty and injury incidental to commercial fisheries. The Service expressed the view that it would be more appropriate to develop a management program to address subsistence harvests and the status of stocks subject to subsistence harvests through a co-manage- ment process. Thus, for certain stocks subject to subsistence harvests in Alaska, the Service planned to defer determinations as to their status and their potential biological removal level pending analyses of sustainable harvest levels using information gathered through the co-management program and further research on the affected stocks. The Service indicated that the stocks to be addressed in this manner would include those that (1) are not listed as endangered or threatened under the Endangered Species Act or depleted under the Marine Mammal Protection Act; 85 MARINE MAMMAL COMMISSION - Annual Report for 1995 (2) are subject to an Alaska Native subsistence take and also have a low level of mortality and serious injury incidental to commercial fishing; and (3) are identified in the draft report as having a total estimat- ed human-related mortality that may not be sustainable over the long term. Some beluga whale stocks were to be so addressed. Final stock assessments for Alaska marine mammal populations under the jurisdiction of the National Marine Fisheries Service were distributed in Septem- ber 1995. With respect to beluga whale populations, the Service increased its estimate for the Beaufort Sea population size to 38,194 animals with a potential biological removal level of 764 whales. Annual subsistence take was estimated at 160 whales. The estimate for the Bristol Bay stock size and the poten- tial biological removal level were reduced to 1,526 animals and 31 whales per year, respectively. Inci- dental take in commercial fisheries was estimated at 0.3 animal per year with an annual subsistence take of 22 whales. The estimated population size for the eastern Chukchi Sea stock was increased to 3,710 whales with a potential biological removal level of 74 whales. The annual subsistence take from this stock averages about 65 whales. For the remaining two beluga whale stocks — the Norton Sound and Cook Inlet stocks — the Service concluded that it was not possible to provide a mini- mum population level or a potential biological remov- al level. Accordingly, the final stock assessments for these stocks noted that estimates of potential biological removal and status under the Marine Mammal Protec- tion Act have not been determined because they are (1) not listed under the Endangered Species Act or the Marine Mammal Protection Act, (2) subject to Alaska Native subsistence harvests, and (3) fisheries-related mortality and serious injury incidental to commercial fisheries is absent or a relatively minor contribution to total human-related mortality and injury. The final assessments noted that sustainable harvest levels and status determinations for these stocks will be deter- mined from the analysis of information gathered through the co-management process and will reflect the degree of uncertainty associated with the informa- tion obtained. Polar Bear (Ursus maritimus) Polar bears occur in most ice-covered areas of the Arctic and adjacent coastal lands. Their distribution, although not continuous, overlaps the national bound- aries of the United States, Canada, Greenland, Nor- way and Russia. The worldwide population of polar bears is estimated at 21,000 to 28,000 animals divided among six relatively discrete populations. Parts of two of these populations occur in Alaska: the western Alaska (Chukchi/Bering Seas) population shared with Russia and the northern Alaska (Beaufort Sea) popula- tion shared with Canada. The total number of polar bears off Alaska is estimated at 3,000 to 5,000 animals and appears to be stable. Historically polar bears were taken primarily by Natives for subsistence purposes and for the sale of hides. Beginning late in the 1940s a sport hunt devel- oped which involved trophy hunters using professional guides to hunt animals with the use of aircraft. As a result, hunting pressure on the Alaska polar bear populations increased substantially. Recognizing this, the State of Alaska adopted regulations in 1961 to restrict the sport hunting season and require hunters to present all polar bear skins for tagging and examina- tion. At the same time, preference was provided to subsistence hunters and a prohibition was adopted on shooting cubs and females with cubs. Between 1961 and 1972 in Alaska an average of 260 polar bears was taken annually, 75 percent of which were males. In 1972 the State of Alaska banned hunting with the use of aircraft. Also in 1972, enactment of the Marine Mammal Protection Act established a moratorium on the take of polar bears and other marine mammals and transferred management responsibility from the states to the Federal Government. Under the Act, Alaska Natives are allowed to take polar bears and other marine mammals for subsistence purposes and for purposes of creating and selling traditional handicrafts and cloth- ing. The Act does not restrict the number of animals that can be taken or prohibit the take of cubs or females with cubs by Alaska Natives, provided the take is not wasteful and the population is not listed as depleted. 86 Chapter III — Species of Special Concern Because of the species' circumpolar distribution, efforts to protect and conserve polar bears require the cooperation of all range states. Concern over the dramatic increase in the polar bear harvest levels in the 1950s and 1960s led to negotiation of the interna- tional Agreement for the Conservation of Polar Bears. The agreement was concluded in 1973 by the Govern- ments of Canada, Denmark (for Greenland), Norway, the Soviet Union, and the United States. In 1994 Congress enacted extensive amendments of the Marine Mammal Protection Act, including a number of measures related to polar bears. Among these was a provision that allows for the issuance of permits to import sport-hunted polar bear trophies legally taken by U.S. citizens hunting in Canada. Efforts by the Fish and Wildlife Service to promulgate regulations for imports are discussed in Chapter VI. The 1994 amendments also called on the Secretary of the Interior to initiate two reviews relative to imple- mentation of the 1973 Agreement for the Conservation of Polar Bears. Activities in this regard are discussed in Chapter VI, along with efforts related to other international agreements regarding polar bears. Chapter VI also includes a discussion of ongoing efforts to develop a cooperative U.S. -Russian research and management agreement. As discussed in Chapter VI, in 1992 the Marine Mammal Commission contracted for a comprehensive legal assessment of steps undertaken by the United States to implement the 1973 polar bear agreement. The contractor's report was submitted in 1993 and distributed to the Fish and Wildlife Service and other interested groups. During 1995 the contract report was updated to take into account the 1994 amend- ments to the Marine Mammal Protection Act (see Appendix B, Baur 1995). Polar Bear Conservation Plan In 1988 Congress amended the Marine Mammal Protection Act to direct the Secretaries of the Interior and Commerce to develop conservation plans for depleted and, when appropriate, non-depleted marine mammal species and populations. In January 1989 the Marine Mammal Commission recommended to the Fish and Wildlife Service that it prepare conservation plans for polar bears, walruses, and sea otters in Alaska. To help in this task, the Commission devel- oped and provided preliminary draft conservation plans for the three species. The preliminary draft conservation plan for polar bears was forwarded to the Service on 28 June 1992. As discussed in previous annual reports, from 1992 through 1994 the Commission worked closely with the Service to ensure that the polar bear conservation plan accurately identified research and management actions necessary to determine and maintain populations in Alaska within their optimum sustainable population range, as required by the Marine Mammal Protection Act. In September 1994 the Service forwarded to the Commission and others the final conservation plan for the polar bear in Alaska, as well as conservation plans for walruses and sea otters in Alaska. The Service noted that the plans would be reviewed annually and considered for rewriting and updating in three to five years. Marking, Tagging and Reporting Program In 1981 the Marine Mammal Protection Act was amended to give the Fish and Wildlife Service and the National Marine Fisheries Service authority to pro- mulgate regulations requiring the marking, tagging, and reporting of marine mammals taken by Alaska Natives. The purpose of the amendments was to obtain better information on the numbers and species of marine mammals taken for subsistence and handi- craft purposes and to help control illegal trade in products from those species. Marking, tagging, and reporting regulations were issued by the Fish and Wildlife Service on 28 June 1988. They require that within 30 days of taking a polar bear, walrus, or sea otter, Native hunters must report the take to the Service and present specified parts of animals, including polar bear hides, to be marked and tagged. Since promulgating its regula- tions, the Service has worked closely with Native groups and the State of Alaska to implement the marking, tagging, and reporting program. Data obtained from the program are maintained by the Service in a computerized database. During the harvest year running from 1 July 1994 to 30 June 1995, 80 polar bears were presented for marking and 87 MARINE MAMMAL COMMISSION — Annual Report for 1995 tagging by Alaska Natives. The number of polar bears tagged from 1990 through 1994 were 99, 76, 59, 65, and 120, respectively. Stock Assessments As discussed in Chapter IV and elsewhere in this report, the 1994 amendments to the Marine Mammal Protection Act directed the Secretaries of Commerce and the Interior to prepare marine mammal stock assessments of all marine mammal stocks in U.S. waters to serve as the scientific basis for a new regime governing the taking of marine mammals incidental to commercial fisheries. In August 1994 the Fish and Wildlife Service distributed to the Marine Mammal Commission and others draft stock assess- ments for marine mammal populations under its jurisdiction, including polar bear stocks in the Beau- fort Sea and the Chukchi and Bering Seas. The Marine Mammal Commission, in consultation with its Committee of Scientific Advisors, reviewed the drafts and, by letter of 1 December 1994, provided com- ments to the Service. These are discussed in detail in the previous annual report. On 4 October 1995 the Fish and Wildlife Service published final stock assessments for the two polar bear populations in Alaska. With regard to the Chukchi/Bering Sea stock shared with Russia, the assessment concluded that a reliable estimate of stock size was not possible because of uncertainty of the data. Therefore, a potential biological removal level could not be calculated. However, the assessment concluded that the stock appears to have increased during the past 20 years despite an average subsis- tence take of 86 bears a year, and currently appears to be increasing slightly or stabilizing at a relatively high level. As a result, the Chukchi/Bering Sea stock was classified as a non-strategic stock. With respect to the Beaufort Sea polar bear stock shared with Canada, the Service's assessment set a minimum population estimate of 1 ,579 and a potential biological removal level of 72 bears a year. The annual subsistence take by both U.S. and Canadian Natives is estimated at 63 animals, and the stock appears to be growing at a rate of 2.4 percent. Therefore, the Beaufort Sea stock also was classified as a non-strategic stock. Habitat Conservation Strategy Section 101(a)(5) of the Marine Mammal Protec- tion Act directs the Secretaries of the Interior and Commerce to authorize, in certain instances, the unintentional taking of small numbers of marine mammals by U.S. citizens incidental to activities other than commercial fishing operations. As noted in previous annual reports, in 1993 the Fish and Wildlife Service issued regulations to authorize and govern the take of small numbers of polar bears and walruses by U.S. citizens engaged in offshore oil and gas activities in Alaska. In issuing the regulations, the Secretary of the Interior directed the Fish and Wildlife Service to develop and begin implementing a polar bear habitat conservation strategy to further the goals of Article II of the 1973 Agreement on the Conservation of Polar Bears. This is discussed in the small-take section in Chapter XI. 88 Chapter IV MARINE MAMMAL-FISHERIES INTERACTIONS Marine mammals may be disturbed, harassed, injured, or killed either accidentally or deliberately during fishing operations. They also may take or damage bait and fish caught on lines, in traps, and in nets, damage or destroy fishing gear, or injure fisher- men trying to remove them from fishing gear. Marine mammals also compete with fishermen for the same fish and shellfish resources. In 1994 the Marine Mammal Protection Act was amended to establish a new regime to govern fisheries-related incidental take. As in the past, however, the incidental take of dol- phins in the eastern tropical Pacific tuna fishery continues to be regulated under separate provisions of the Act. Amendments related to the tuna fishery were also considered by Congress in 1995. Actions taken to implement the new incidental-take regime and to minimize the take of dolphins in the eastern tropical Pacific tuna fishery are discussed below. Also discussed are efforts to assess the causes of recent changes in the structure of the Bering Sea, the Gulf of Alaska, and the Gulf of Maine ecosys- tems. This chapter also provides information on the establishment of pinniped-fishery interaction task forces, as required under the 1994 amendments. Fishery interactions affecting Hawaiian monk seals, Steller sea lions, harbor seals in Alaska, harbor porpoises, vaquitas, right whales, and sea otters are discussed in Chapter III. Implementation of the New Incidental-Take Regime for Commercial Fisheries In 1994 two new sections were added to the Marine Mammal Protection Act to manage the inci- dental take of marine mammals in commercial fishing operations. New section 117 requires the preparation of stock assessments for all marine mammal stocks in U.S. waters. The purpose of the assessments is to provide a scientific basis for implementing marine mammals take- reduction measures. New section 118 sets forth requirements for a new incidental-take regime that replaced the interim exemption provisions previously in effect. Specific provisions of both sections and efforts to date to implement them are discussed below. (A more complete summary of the incidental-take provisions and other Marine Mammal Protection Act amendments enacted in 1994 can be found in Appendix D of the annual report for 1994.) Stock Assessments Section 1 17 of the Marine Mammal Protection Act as amended in 1994 requires the Secretaries of Com- merce and the Interior to establish three regional scientific review groups to help prepare assessments for each marine mammal stock in U.S. waters. These groups were established in 1994 for Alaska, the Pacific Coast, including Hawaii, and the Atlantic Coast, including the Gulf of Mexico. They included experts in marine mammal biology, commercial fishing technology and practices, and Alaska Native subsistence needs. Among other things, the regional groups were to advise the Secretaries on (1) the estimated size, status, and trends of marine mammal stocks, (2) uncertainties and research needs regarding stock separation, abundance, and trends; (3) research on modifications in fishing gear and practices to reduce the incidental mortality and serious injury of marine mammals, and (4) potential impacts of habitat destruction on marine mammals and, for strategic stocks, conservation measures to reduce such impacts. By 1 August 1994 the Secretary of Commerce and the Secretary of the Interior, depending on the marine mammal species, were to prepare a draft stock assess- ment for each stock following consultation with the regional review groups. The draft stock assessments were to be made available for a 90-day public com- 89 MARINE MAMMAL COMMISSION - Annual Report for 1995 merit period. Preparation of draft stock assessments and the Commission's comments on them are dis- cussed in the previous annual report. Within 90 days of the close of the public comment period on the draft stock assessments, the Secretary was to issue final stock assessments. Each assessment was to (1) describe the geographic range of the stock, (2) provide a minimum population estimate, the stock's current and maximum net productivity rates, and current population trend, including the basis for those findings, (3) estimate the annual human-caused mortality and serious injury, by source, and, for stocks determined to be strategic stocks, describe other factors that may be causing a decline or imped- ing recovery, (4) describe the commercial fisheries that interact with the stock, including estimates of fishery-specific mortality and serious injury levels and rates, a description of seasonal or area differences in incidental take, and an analysis of whether incidental- take levels are approaching a zero mortality and serious injury rate, (5) assess whether the level of human-caused mortality and serious injury would cause the stock to be reduced below its optimum sustainable population or, alternatively, whether the stock should be categorized as a strategic stock, and (6) estimate the potential biological removal level for the stock. As defined in the Act, a stock's potential biological removal level is the maximum number of animals, not including natural mortality, that can be removed from the stock while allowing the stock to reach or remain at its optimum sustainable population level. The potential biological removal level is calculated by multiplying three variables — the minimum population estimate for the stock, one-half of the theoretical or estimated maximum net productivity rate of the stock at a small population size, and a recovery factor of between 0.1 and 1.0. Strategic stocks are those that (a) have a level of direct human-caused mortality exceeding the calculated potential biological removal level, (b) are designated as depleted under the Marine Mammal Protection Act, (c) are listed as endangered or threatened under the Endangered Species Act, or (d) are likely to be listed as endangered or threatened in the foreseeable future. On 25 August 1995 the National Marine Fisheries Service published a notice in the Federal Register announcing the availability of the final stock assess- ments for species under its jurisdiction. The stock assessments were released as three National Oceanic and Atmospheric Administration technical memoranda covering, respectively, stocks occurring in Alaska, the Pacific, and the Atlantic and Gulf of Mexico. The Service also published a separate report describing the guidelines used in preparing the stock assessments and summarizing the information in the assessments. Assessments were prepared for 34 stocks of cetaceans and pinnipeds along the U.S. Atlantic coast. Sixteen of those were determined to be strategic because the estimated annual mortality incidental to commercial fisheries exceeds the stock's potential biological removal level. As discussed in Chapter HI, the Gulf of Maine stock of harbor porpoise is being hit particularly hard by fisheries-related mortality, with incidental mortality in the sink gillnet fishery exceeding the potential biological removal level by more than a factor of four. The Service found the Atlantic drift gillnet fishery for swordfish, shark, and tuna to be primarily responsible for 13 of the stocks being classified as strategic but noted that frequent mortality also occurs in the pair-trawl fishery for swordfish, shark, and tuna, the longline fishery for swordfish, tuna, and billfish, the New England groundfish trawl fishery, and perhaps the mid-water trawl fisheries for mackerel and squid. The Service cautioned, however, that some of the stocks may have been determined to be strategic because of difficulty in differentiating certain species, such as beaked whales and pilot whales. None of the 26 cetacean stocks occurring in the Gulf of Mexico was deter- mined to be a strategic stock due to fisheries-related mortality. The National Marine Fisheries Service also pre- pared assessments for 34 cetacean and pinniped stocks off California, Oregon, and Washington. For seven of those stocks, estimated mortality incidental to com- mercial fisheries exceeds the potential biological removal level. Incidental mortality involving these stocks results almost exclusively from the drift gillnet fishery for swordfish and shark. Of the 20 stocks of marine mammals that occur in Hawaiian waters and the 31 marine mammal stocks under National Marine 90 Chapter IV — Marine Mammal-Fisheries Interactions Fisheries Service jurisdiction that occur in Alaska, none has an estimated incidental fisheries mortality that exceeds its calculated potential biological removal level. In addition to those stocks determined to be strate- gic because of take by commercial fisheries, 21 stocks, primarily large whales, are also considered strategic stocks by virtue of being listed as endangered or threatened under the Endangered Species Act or designated as depleted under the Marine Mammal Protection Act. The only pinniped stocks determined to be strategic are the endangered Hawaiian monk seal, two Alaskan stocks of Steller sea lions and the Guadalupe fur seal, which are listed as threatened, and the Alaskan stock of northern fur seals, which is depleted. Six other stocks of cetaceans were designated by the National Marine Fisheries Service as strategic stocks even though the estimated annual incidental mortality in fisheries does not exceed potential biolog- ical removal levels. The stocks of dwarf sperm whale and pygmy sperm whale that occur in the western North Atlantic and in the northern Gulf of Mexico were designated as strategic because difficulty distin- guishing between the two species prevented the Service from calculating separate potential biological removal levels for the stocks and because of suspected mortality from ingesting plastic bags. The Service also designated 33 localized stocks of bottlenose dolphin that inhabit bays, sounds, and estuaries in the Gulf of Mexico as strategic after concluding that the take of a single animal in most of those areas would exceed the stock's potential biological removal level. The Gulf of Mexico stock of short-finned pilot whale was also determined to be a strategic stock because of its low population size and a relatively high mortality level observed in the longline fishery for swordfish, tuna, and billfish compared to the estimated potential biological removal level. The National Marine Fisheries Service did not calculate a potential biological removal level or make a strategic stock determination for Alaska marine mammals that met three criteria: (1) the stock is not listed as threatened, endangered, or depleted, (2) the stock is subject to taking by Alaska Natives for subsistence purposes but fisheries-related mortality is absent or relatively minor, and (3) the estimated human-caused mortality may not be sustainable on a long-term basis. The Service identified three stocks meeting these criteria — harbor seals in the Gulf of Alaska and the Cook Inlet and Norton Sound stocks of beluga whales. The Service believes that developing co-management agreements with Alaska Natives is the appropriate mechanism to address such removals from these stocks and it intends to calculate potential biological removal levels and make status determina- tions in the course of developing those agreements. On 4 October 1995 the Fish and Wildlife Service published assessments for the eight stocks of marine mammals under its jurisdiction. Three stocks, the Florida and Antillean stocks of the endangered West Indian manatee and the threatened California stock of sea otter, were determined to be strategic stocks. The assessments for strategic stocks are to be reviewed at least annually. For other stocks, assess- ments must be reviewed at least once every three years. As a first step in the review, the National Marine Fisheries Service plans to re-examine the its guidelines for preparing the initial stock assessments. Among other things, the Service intends to look at the guidelines pertaining to migratory stocks and the appropriateness of recovery factors used for certain stocks. The New Incidental-Take Regime Section 118 of the Marine Mammal Protection Act establishes the new regime governing the take of marine mammals incidental to commercial fishing operations. Replacing the interim exemption that had regulated fisheries-related incidental taking since 1988, the new regime became effective on 1 Septem- ber 1995. Responsibility for the new regime rests with the Secretary of Commerce. The amendments require, however, that the Secretary consult with the Secretary of the Interior before taking any action that affects or relates to marine mammal stocks under jurisdiction of the Department of the Interior — i.e., manatees, dugongs, sea otters, polar bears, and walruses. Requirements of the Act — The new fisheries regime shares certain elements with the interim 91 MARINE MAMMAL COMMISSION — Annual Report for 1995 exemption. These similarities include classification of fisheries according to the frequency with which marine mammals are taken, registration requirements for fishermen participating in fisheries that frequently or occasionally take marine mammals, monitoring and reporting requirements, and the goal of reducing incidental mortality and serious injury of marine mammals to insignificant levels approaching zero. The most significant difference between the interim exemption and the new regime is the greater focus now placed on those stocks most affected by commer- cial fisheries. As discussed above, the National Marine Fisheries Service and the Fish and Wildlife Service, through preparation of stock assessments, have identified strategic stocks of marine mammals. A take reduction plan is to be developed for each strategic stock that sustains frequent or occasional mortality or serious injury due to fishing operations. Take reduction plans, among other things, are to include recommended regulatory or voluntary mea- sures to reduce incidental mortality and serious injury and to recommend dates for achieving specific objec- tives. The immediate goal of these plans is to reduce, within six months, incidental mortality and serious injury to levels less than the potential biological removal level calculated in the stock assessment. The long-term goal of the plans is to reduce incidental mortality and serious injury to insignificant levels approaching a zero rate within five years, taking into account the economics of the fishery, existing technol- ogy, and applicable state or regional fishery manage- ment plans. Another difference between the interim exemption and the new fisheries regime is in the treatment of species listed as endangered or threatened under the Endangered Species Act. Under the interim exemp- tion, there was no mechanism to authorize the inci- dental take of listed species. The 1994 amendments added section 101(a)(5)(E) to the Marine Mammal Protection Act to allow incidental taking of listed species under certain circumstances. Before issuing an authorization under this provision, the Service must determine, after notice and opportunity for public comment, that (1) the incidental mortality and serious injury from commercial fisheries will have a negligi- ble impact on the species or stock, (2) a recovery plan has been, or is being, developed, and (3) where required under section 1 18, a monitoring program has been established, the vessels are registered, and a take reduction plan has been or is being developed. No taking of California sea otters may be authorized under the new provision. Such takings are subject to the requirements of public Law 99-625. Proposed Implementing Regulations — On 16 June 1995 the National Marine Fisheries Service published proposed regulations to implement the new incidental-take regime. Among other things, the proposal sets forth procedures for vessel owners to register for an authorization certificate, observer and reporting requirements, and proposed criteria for classifying fisheries. Along with these proposed regulations, the Service published proposed changes to the list of fisheries, which classifies each commercial fishery into one of three categories depending on the level of incidental take. The Marine Mammal Commission commented of the proposed regulations on 15 August 1995. The Commission noted that several provisions of section 1 18, such as the registration requirement, vary among fisheries depending upon the frequency with which marine mammals are killed or seriously injured. Thus, a key issue is how the Service classifies fisher- ies under the new regime. The Service proposed a two-tiered system that looks at total fishery-related impacts to each affected marine mammal stock and then at the impacts of each fishery on the stock. If annual mortality and serious injury of an affected stock from all fisheries combined is less than 10 percent of the calculated potential biological removal level or if the number of mortalities or serious injuries resulting from a specific fishery is equal to or less than one percent of the potential biological removal level, the fishery would be placed in category III. A category II fishery would be one that annually takes between 1 and 50 percent of a stock's potential biological removal level and for which the total annual mortality and serious injury level from commercial fisheries exceeds 10 percent of a stock's potential biological removal level. A category I fishery would be one that, by itself, is responsible for the annual mortality or serious injury of 50 percent or more of a stock's potential biological removal level. 92 Chapter IV — Marine Mammal-Fisheries Interactions The Commission agreed that the system for catego- rizing fisheries should reflect the impact that a fishery or a combination of fisheries is having on marine mammal stocks. However, the Commission cautioned that the regulations must track the statutory provision, which seems to anticipate that fisheries will be classi- fied based on take rates rather than on absolute numbers of marine mammals taken. The Commission also expressed concern that the rigid, numerically based categorization system proposed by the Service would not provide the flexibility needed to categorize fisheries appropriately in all instances. This would pose particular problems when the potential biological removal level for an affected stock was either very large or relatively small. Depending on the species taken, a fishery could be placed in category I if it took only one or two individuals per year. At the other extreme, a fishery with only a small number of vessels and a limited season could annually take hundreds or even thousands of marine mammals from a large stock and not be placed in category I. To address these problems, the Commission recommended that the categorization system be made more flexible by looking not only at the number of mortalities and serious injuries relative to a stock's potential biological removal level, but also by includ- ing some elements of the categorization system under the interim exemption that consider the number of mortalities and serious injuries per vessel-day. In the Commission's view, looking at overall take rates as well as the impacts to individual stocks would be more in keeping with the statutory criteria for classi- fying fisheries. The Commission also noted that the proposed rule did not include a reliable means of estimating fishing effort. The Commission noted that if its recommen- dation to consider take rates as well as numbers were adopted, and if reliable effort data were not otherwise available, the proposed rule would need to be revised so that the Service could obtain the information neces- sary to estimate take rates from fishermen's reports and other data-gathering programs under the inciden- tal-take regime. In the Commission's view, reliable effort data also seems necessary in order to extrapo- late the total number of mortalities and serious injuries in a fishery from take rates observed in its monitoring program even if the selected categorization option is based entirely on the number of marine mammals killed and seriously injured in a fishery. The Com- mission therefore recommended that the Service explain in the final rule how it will obtain reliable effort data for the covered fisheries. The Commission also questioned the proposed demarcation between category I and category II fisheries (50 percent of a stock's potential biological removal level). The analysis of the various alterna- tives in the proposed rule and the accompanying environmental assessment considered only the number of fisheries that would be placed in each category under each alternative, not the possible impacts to marine mammal stocks under the various options. Thus, it was not possible to determine the relative advantages and disadvantages of the various alterna- tives. Absent such an analysis and a more thorough rationale for adopting the 50 percent threshold, the Commission suggested that a more conservative break point be adopted. Another potential problem identified by the Com- mission was how fisheries would be defined. Because the proposed classification system looked at the number of marine mammals taken relative to the potential biological removal level for a stock rather than the rate of taking, a fishery could be downgraded merely by subdividing it into two or more fisheries. That is, a category I fishery could be downgraded simply by redefining it into two or more category II fisheries. The Commission therefore cautioned that the classification of fisheries should be based on an objective and logical system that looks at the target species, gear type, affected marine mammal stocks, and the region involved. The effect on marine mammal stocks should be the guiding principle, not other non-biological criteria. The Service proposed excluding any intentional lethal taking when classifying fisheries, inasmuch as such taking is prohibited by the 1994 amendments. The Commission agreed with this proposal but recom- mended that, where exclusion of previously document- ed levels of intentional lethal taking resulted in placing a fishery in a lower category than under the interim exemption, the Service should monitor the fishery sufficiently to detect and respond to any illegal intentional taking until such time as there is justifica- 93 MARINE MAMMAL COMMISSION - Annual Report for 1995 tion for concluding that little, if any, illegal taking is occurring. Under the interim exemption, fisheries were classified based on all incidental take of marine mammals, including animals that were harassed, caught, and released unharmed and animals that were entangled and able to free themselves. In contrast, under section 118, only the frequency of incidental mortality and serious injury is considered. Recogniz- ing that it may be imprudent to allow individual fishermen to determine which marine mammal injuries are or are not serious, Congress adopted provisions requiring fishermen to report all mortalities and injuries, leaving it to the Service to determine which injuries are serious. The requirement that fishermen report all injuries was accurately reflected in the proposed rule. Missing, however, was discussion of how the Service would determine whether a reported injury was serious. The Commission noted that distinguishing between serious and other injuries is important, not only for classification purposes but for determining whether a stock's potential biological removal level has been exceeded. The Commission therefore recommended that the Service either expand the reporting provisions to require the submission of information sufficient to enable it to determine wheth- er an injury is serious or otherwise adopt a mecha- nism (e.g., generic or fishery-specific formulae) to determine what proportion of reported injuries will be considered to be serious. The Service proposed to exclude treaty Indian tribes from coverage under section 118. Tribal fisheries would not be included in the list of fisheries, and participants in those fisheries would not be required to register, report mortalities and serious injuries, or comply with take reduction plans. The Commission expressed the view that this pro- posal, at least in part, was based on a misinterpreta- tion of the 1994 amendments. While the Commission generally concurred with the Service's determination that the Marine Mammal Protection Act does not provide clear evidence that Congress "intended to abrogate the [Makah] Tribe's treaty right of sealing at usual and accustomed grounds and stations," the Commission suggested that additional analyses were needed before excluding tribal fisheries from the incidental-take regime. Noting that the Service believed treaty tribes to be subject to the provisions of the interim exemption, and that the intent of the 1994 amendments was to preserve the status quo, the Commission maintained that a clear explanation was needed as to why the Service does not believe section 1 18 to be similarly applicable. The Commission also noted the unique features of the 1855 treaty between the United States and the Makah. It is the only such treaty that explicitly recognizes the "right of taking fish and of whaling or sealing at usual and accustomed grounds and sta- tions.. .." As such, the Commission suggested that the Service explain why findings based on that treaty were considered to be generally applicable to other tribes. By proposing to exclude tribal fisheries from all provisions of section 118, the Service would make it difficult to administer the incidental-take regime with respect to non-Indian fishermen that take marine mammals from the same stocks. Unless there is some mechanism to determine the species and numbers of marine mammals taken by tribal fisheries, the Service will be unable to determine whether the total take from the affected stocks exceeds potential biological removal levels. In cases where there is any doubt, the precautionary principle built into the Marine Mammal Protection Act could preclude the Service from allowing other fisheries to take any marine mammals from those stocks. Therefore, the Commission recommended that, if the Service concludes that tribal fisheries are exempt from all requirements of section 118, including the reporting and monitoring provi- sions, the Service pursue cooperative agreements with tribal representatives to obtain reliable incidental-take data from those fisheries so as to be able to regulate incidental take in other fisheries. A key feature of the new incidental-take regime is a directive that incidental mortality and serious injury of marine mammals resulting from commercial fishing operations be reduced to insignificant levels approach- ing a zero mortality and serious injury rate by 2001. The proposed rule explained that this "zero mortality rate goal" will have been achieved when "total incidental mortality and serious injury from fisheries has no biological impact." The Service proposed that the zero mortality rate goal be considered to have 94 Chapter IV — Marine Mammal-Fisheries Interactions been met when fisheries collectively are responsible for killing or seriously injuring no more than 10 percent of a marine mammal stock's potential biologi- cal removal level. The Commission pointed out that, at least concep- tually, removals from a marine mammal stock would have an insignificant biological impact if they are at or below the stock's potential biological removal level. Thus, it was not entirely clear how the Service determined that biological insignificance would be achieved at 10 percent of potential biological removal levels. To clarify the issue, the Commission suggest- ed a two-part analysis looking initially at the require- ment that mortalities and serious injuries be reduced to insignificant levels and secondly at the requirement that the rate of incidental mortality and serious injury approach zero. Under this approach, the Service could assert that a take rate would have approached zero when it is 10 percent or less of a stock's poten- tial biological removal level. The Commission noted, however, that for stocks with a large potential biologi- cal removal level, it may be difficult to find that the take rate is approaching zero when the 10 percent threshold has been achieved. Thus, the Commission suggested that the Service consider adopting a tiered approach that establishes lower thresholds (e.g., 5 percent or 1 percent) for different ranges of potential biological removal levels. The Commission also noted that merely looking at the numbers of marine mammals killed or seriously injured may be inadequate to determine if the zero mortality rate goal has been achieved. It is also important to consider the significance of those animals to the population. The Commission noted, for exam- ple, that removals consisting mostly or entirely of reproductive females may not be insignificant to the population, even at the proposed 10 percent threshold. The Commission therefore recommended that the Service consider ways in which it can tailor its monitoring and reporting programs to obtain data on the age, sex, and reproductive condition, as well as the numbers of marine mammals that are killed or injured incidental to commercial fishing operations. The discussion accompanying the proposed rule created the false impression that participating in a category I or category II fishery without registering would not constitute a violation of the Marine Mam- mal Protection Act so long as no taking of a marine mammal resulted. The Commission suggested lan- guage to clarify that it is unlawful to engage in a category I or II fishery without obtaining and main- taining a current authorization. Section 101(a)(5)(E) of the Marine Mammal Protection Act directs the Service to authorize, for a period of up to three years, the incidental taking of endangered and threatened marine mammals if, after notice and opportunity for public comment, the Service determines that (1) the incidental mortality and serious injury from commercial fisheries will have a negligible impact on the species or stock, (2) a recovery plan has been or is being developed, and (3) where required under section 118, a monitoring program has been established, vessels in such fisheries have registered, and a take reduction plan has been or is being developed. The Service stated that the proposed list of fisheries identified those fisheries having interactions with listed species and that the associated environmental assessment provided the data necessary to make negligible impact determinations. The Service therefore solicited public comment on proposed findings for listed species. The Commission expressed concern that it and others had not been given a reasonable opportunity to comment on the Service's proposed determinations regarding the take of endangered and threatened species. The Commission noted that it was not clear whether all of the necessary information to make the findings had been provided. In addition, the informa- tion that was provided was not presented in a way to facilitate informed comment. More importantly, the Service had not explained its rationale for believing that such takes would have a negligible impact. The Commission therefore recommended that, before authorizing the take of endangered or threatened marine mammals incidental to commercial fishing operations, the Service publish for public review and comment a separate Federal Register notice clearly describing the stocks and fisheries for which it pro- posed to make negligibility findings and clearly explaining the basis for the proposed determinations. Based on the information provided by the Service, the Commission made some general observations with 95 MARINE MAMMAL COMMISSION - Annual Report for 1995 respect to authorizing the take of listed species. For some highly endangered species — e.g., right whales, Hawaiian monk seals, and manatees — the Commis- sion expressed the view that no level of mortality or serious injury likely could be considered negligible. Thus, it would be difficult to make a negligible impact determination for such species in the face of any fishery-related mortality or serious injury. The Commission noted that it also would be difficult to make a negligible impact determination for Steller sea lions, which continue to decline despite considerable reductions in taking incidental to commercial fisheries. With respect to the western North Atlantic stock of humpback whale, the Commission noted that the Service identified 13 different Atlantic fisheries that interact with the stock. Therefore, the Commission suggested that the Service examine the cumulative impacts of these fisheries before concluding that mortalities and serious injuries from these fisheries are negligible. With respect to the California-Washington stock of sperm whale, the Commission noted that the environmental assessment prepared by the Service concluded that the drift gillnet fishery for thresher shark, swordfish, and blue shark takes 15 times the potential biological removal level calculated for that stock. Absent further information on the nature of the take or other justification, the Commission believed that it would be difficult for the Service to conclude that this take is negligible. The Commission also offered several drafting suggestions to clarify various provisions of the pro- posed rule. The Commission did not suggest any changes to the proposed list of fisheries. Final Implementing Regulations — The National Marine Fisheries Service published a final rule imple- menting section 1 18 on 30 August 1995. To meet the statutorily imposed deadline, that rule became effec- tive on 1 September. Some, but not all, of the Commission's recommendations were adopted. For instance, the Service did not incorporate any of the suggested changes to the proposed criteria for classifying fisheries. The Service declined to adopt an approach that considered incidental take rates rather than absolute numbers of marine mammals killed or seriously injured because of its mandate under the 1994 amendments to focus limited agency resources on those fisheries that have biologically significant levels of take. Also, the Service indicated that it did not have the capability to collect the requisite effort data for determining take rates. The Service also dismissed the risk that a fishery would be downlisted as a result of splitting it into multiple fisheries. While acknowledging that some category I fisheries could be split into two or more category II fisheries, the Service noted that this would have only minimal practical effect — vessels partici- pating in either category of fishery must register, carry observers as requested, and comply with take reduction plans. The Service believed it unlikely that any fishery could be placed in category HI by splitting a category I or II fishery. As to how it will determine whether reported injuries are "serious," the Service stated that it was developing guidelines for making such determinations. As noted in its final rule, the Service will require vessel owners to describe the nature of the injury on the reporting form. It expects to use that information to judge which injuries are serious on a fishery-by- fishery and case-by-case basis. As under the proposed rule, the final rule excludes treaty Indian tribes from coverage under the inciden- tal-take regime. Indians covered by such treaties who fish in their usual and accustomed fishing grounds need not register or comply with any other provision of the regulations. As to the potential effect that such an exclusion may have on other fishermen, the Service noted that it had in place or was working on establishing cooperative arrangements with the tribes to secure data on marine mammal-fishery interactions. Despite a clear statement in section 1 18(c)(3)(C) of the Marine Mammal Protection Act that it is in viola- tion of the Act to engage in a category I or II fishery without obtaining and maintaining a current incidental- take authorization, the Service declined to incorporate this requirement as a prohibition in the final rule. Instead, the Service opted to include a regulatory requirement that fishermen participating in such fisheries "must register for and receive an authoriza- tion certificate." Presumably fishing in a category I or category II fishery without such a certificate would constitute a violation of the regulations. 96 Chapter IV — Marine Mammal-Fisheries Interactions Take of Endangered and Threatened Species — The Service agreed with the Commission that the information provided in the proposed rule and accom- panying environmental assessment was insufficient to promote informed comment on the proposed findings for endangered and threatened species. Therefore, the Service indicated that it would publish a separate notice that lists those fisheries that meet the criteria for such incidental-take authorizations and explains the process by which negligible impact determinations have been made. On 31 August 1995 the Service published a notice in the Federal Register announcing negligibility findings under section 101(a)(5)(E) of the Marine Mammal Protection Act for three stocks of listed marine mammals — the central North Pacific stock of humpback whale and the eastern and western stocks of Steller sea lion. Based on these findings, the Service issued an interim permit authorizing the taking of marine mammals from these stocks incidental to 22 commercial fisheries in Alaska and 2 along the west coast. This authorization, originally set to expire at the end of 1995, was extended until 1 March 1996 to coincide with the effective date of the new list of fisheries. The Service also noted that it was unable to make negligible impact findings for seven other stocks of endangered marine mammals known to interact with commercial fisheries — the western North Atlantic stocks of right, fin, sperm, and humpback whales, the eastern North Pacific stocks of sperm and humpback whales, and the Hawaiian monk seal. For 15 other stocks of endangered or threatened marine mammals, the Service noted that it had no documented evidence of fishery-related interactions. List of Fisheries — The Service published its final list of fisheries for 1996 on 28 December 1995. Because it had taken longer than expected to complete the list, the Service announced that the 1995 list would remain in effect until 1 March 1996. This extension will allow fishermen in reclassified fisheries time to register for an authorization under the new section 118 requirements. Under the revised list of fisheries, two Pacific and four Atlantic fisheries are placed in category I. Category II includes 16 Pacific fisheries, primarily in Alaska, and 6 Atlantic fisheries. The remaining fisheries all have been placed in category HI. Take Reduction Teams — As noted above, section 118 requires the National Marine Fisheries Service to develop a take reduction plan for each strategic stock that interacts with a fishery that fre- quently or occasionally kills or seriously injures marine mammals. Take reduction plans, among other things, are to include recommended regulatory or voluntary measures designed to reduce incidental mortality and serious injury and recommended dates for achieving specific objectives. The immediate goal of a take reduction plan for a strategic stock is to reduce, within six months, incidental mortality and serious injury to levels less than the potential biologi- cal removal level calculated in the stock assessment. The long-term goal of the plan is to reduce incidental mortality and serious injury to insignificant levels approaching a zero rate within five years, taking into account the economics of the fishery, existing technol- ogy, and applicable state or regional fishery manage- ment plans. As a first step toward preparing take reduction plans, the Service contracted for a study to examine how best to undertake the process. A report provided to the Service in April 1995 proposed a model for convening take reduction teams and specifically considered the establishment of teams for the Gulf of Maine/Bay of Fundy stock of harbor porpoise and the Atlantic coastal stock of bottlenose dolphin. Although required to establish take reduction teams for certain strategic stocks within 30 days of complet- ing the final stock assessments (i.e., by 25 September 1995), no team was established during 1995. Howev- er, the Service expects to establish four take reduction teams early in 1996. The teams would address the incidental take of Gulf of Maine/Bay of Fundy harbor porpoise, offshore cetaceans taken in Pacific gillnet fisheries, offshore small cetaceans taken in Atlantic gillnet fisheries, and Atlantic baleen whales, focusing on right and humpback whales. The Service has decided to defer the establishment of take reduction teams for the Atlantic coastal stock of bottlenose dolphin and for marine mammals in Alaska, in part because of insufficient funding. 97 MARINE MAMMAL COMMISSION — Annual Report for 1995 Reporting Forms — Section 118(e) requires each owner or operator of a commercial fishing vessel to report all incidental mortality and injury of marine mammals within 48 hours of the end of the fishing trip on which the incident occurred. The reports are to be submitted on a standard form to be developed by the National Marine Fisheries Service. On 28 Sep- tember 1995 the Service published its draft reporting form for public review and comment. By letter of 12 December 1995, provided comments on the form. Commission believed the proposed reflected the reporting requirements Act. The Commission did, however technical changes to make the form stand and use. The Service expects form available to fishermen early in the Commission In general, the form accurately set forth in the , suggest several easier to under- to have the final 1996. Intentional Taking — As discussed in the previous annual report, section 118 of the Act also established a prohibition on the intentional lethal take of marine mammals in commercial fishing operations. The only exception to this prohibition is set forth in new section 101(c), which allows lethal taking if imminently necessary in self-defense or to save the life of another person in immediate danger. The National Marine Fisheries Service determined that there was no reason to delay implementation of the lethal-take prohibition pending the development of implementing regulations for other provisions of section 118. Therefore, on 8 December 1994 the Service published a proposed rule to amend the regulations promulgated under the interim exemption to prohibit intentional lethal taking except in self-defense or defense of others. A final rule instituting the prohibition was published on 1 February 1995. Deterrence Regulations While not restricted to commercial fisheries, a related provision of the Marine Mammal Protection Act, section 101(a)(4), authorizes the taking of marine mammals for deterrence purposes in certain instances. Under this exception, an owner of fishing gear or catch or an employee of the owner may deter a marine mammal from damaging the gear or catch. Similarly, an owner of other private property or the owner's agent may take steps to deter a marine mammal from damaging that property. Also, deter- rence actions may be taken by any person to prevent a marine mammal from endangering personal safety or by a government employee to prevent damage to public property. In each case, such measures are authorized only if death or serious injury does not result. The statutory provision directs the National Marine Fisheries Service to publish in the Federal Register a list of guidelines for use in safely deterring marine mammals. In the case of marine mammals listed as endangered or threatened, the Service is to recom- mend specific measures that can be used to deter the animals non-lethally. If the Service determines that certain types of deterrence measures have a significant adverse effect, it may prohibit their use. The National Marine Fisheries Service published proposed regulations under this provision on 5 May 1995. The Service offered guidance on passive, preventative, and reactive measures that could be taken to deter marine mammals. The Service set forth four general principles regarding acceptable deterrence measures. In addition to the statutory directive that such measures not result in the death or serious injury of the animal, the measures should not (1) result in the separation of a female marine mammal from its unweaned offspring, (2) break the skin of a marine mammal, (3) be directed at a marine mammal's head or eyes, or (4) be used to deter pinnipeds hauled out on unimproved private property. In addition, the Service proposed to prohibit certain types of deterrence activities. Under the proposed regulations, the following deterrence mea- sures would be prohibited: the use of any firearm or other devise to propel an object that could injure a marine mammal, the use of any explosive device to deter cetaceans or the use of explosives more power- ful than seal bombs to deter seals or sea lions, translo- cation of any marine mammal, or the use of tainted food or bait or any other substance intended for consumption by the marine mammal. As noted by the Service in the proposed rule, deterrence of marine mammals listed as endangered or threatened under the Endangered Species Act would not be authorized by the proposed regulations. 98 Chapter IV — Marine Mammal-Fisheries Interactions Measures for deterring listed species are to be the subject of a separate rulemaking. The Marine Mammal Commission commented on the proposed guidelines and regulations by letter of 30 August 1995. The Commission noted that, for the most part, the proposed rule accurately reflected the provisions of section 101(a)(4). However, the Com- mission believed that the regulations did little to clarify some of the uncertainties inherent in the statute. For example, the regulations did not explain how imminent the perceived damage to fishing gear or catch or private property must be before deterrence actions could be taken. Similarly, there was no discussion as to how severe the damage to property must be before deterrence measures could be taken. The Commission also noted that the proposed rule did not appear to give consideration to well-estab- lished haul-out or rookery sites. Under the proposed rule, it would appear that a property owner could construct a structure at such a site, knowing full well that the area is frequented by marine mammals, and then use deterrence measures to prevent the mammals from returning to the area or to deter the animals from approaching and damaging the structure. The Commission suggested that adequate protection to important marine mammal habitat be provided to prevent conflicts between marine mammals and property owners. Also, the Commission suggested that the rule consider the potential adverse effects that driving marine mammals away from haul-out sites and rookeries could have on populations (e.g., decreased survival or productivity) even if there were no direct mortality or serious injury of a marine mammal. The Commission expressed concern about the unrestricted use of noisemakers as deterrence mea- sures. Without any specifications as to the types and intensities of noises that may be used, the Commission was unable to agree that noisemakers, in all cases, would be a safe means of deterring marine mammals . The Commission also expressed concern that certain types of noises might have significant adverse effects on marine mammals by causing them to abandon important habitats. The Commission agreed that the use of explosives to deter cetaceans is not warranted. However, the Commission questioned the Service's proposal to allow the unrestricted use of certain types of explo- sives for deterring pinnipeds. The Commission noted the possibility that such "light" explosives may cause injury if detonated close to a marine mammal or if they blast sand or other particles into a marine mam- mal's eyes. The Commission therefore suggested that the Service consider prohibiting their use entirely. Alternatively, the Commission suggested that the Service consider setting a distance limit for using seal bombs and prohibiting their use on land. As of the end of 1995 a final rule was undergoing review within the National Marine Fisheries Service. Publication of a final rule is expected early in 1996. The Fish and Wildlife Service has yet to publish guidelines or proposed regulations with respect to deterrence of marine mammals under its jurisdiction. The Tuna-Dolphin Issue For reasons not fully understood, schools of large yellowfin tuna (those greater than 25 kilograms) tend to associate with dolphin schools in the eastern tropi- cal Pacific Ocean. This area covers more than five million square miles stretching from southern Califor- nia to Chile and westward to Hawaii. Late in the 1950s U.S. fishermen began to exploit this association by deploying large purse seine nets around observed dolphin schools to catch the tuna swimming below. Despite efforts by the fishermen to release the encir- cled dolphins, some become trapped in the nets and drown. Efforts to reduce the incidental mortality of dolphins in this fishery have been a primary focus of the Marine Mammal Protection Act since it was enacted in 1972. Background The eastern tropical Pacific tuna fishery was domi- nated by U.S. vessels during the 1960s and early 1970s. In the late 1970s and early 1980s the U.S. fleet declined and the number of foreign vessels participating in the fishery grew. Along with these shifts in the fishery came changes in the associated dolphin mortality. As reflected by mortality data presented in Table 9, progress made by the United 99 MARINE MAMMAL COMMISSION — Annual Report for 1995 States in reducing dolphin mortality under the Marine Mammal Protection Act was offset by increasing mortality from foreign operations. This prompted Congress to amend the Marine Mammal Protection Act in 1984 and again in 1988 to establish compara- bility requirements for nations seeking to export tuna to the United States. In an effort to reduce dolphin mortality further, provisions were also added to the general permit under which U.S. tuna fishermen operate. Table 9. Estimated incidental kill of dolphins in the tuna purse seine fishery in the eastern tropical Pacific Ocean, 1972- 1995 1 Year U.S. Vessels Non-U.S. 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 61,881 1989 12,643 84,403 1990 5,083 47,448 1991 1,002 26,290 1992 439 15,111 1993 115 3,601 1994 106 4,095 1995 3,274 2 These estimates, based on kill per set and fishing effort data, are provided by the National Marine Fisheries Service and the Inter-American Tropical Tuna Commission. They include some, but not all, seriously injured animals released alive. Preliminary estimate. As shown in Table 10, the requirements enacted in 1988 and the threat of tuna embargoes resulted in substantially reduced dolphin mortality by foreign fleets. There has been more than a 95 percent reduc- tion in dolphin mortality since 1988 and 1989. While there has been some decline in the number of sets made on dolphins in recent years, reduced mortality has, by and large, been the result of drastic reductions in the average number of dolphins killed per set. While the number of dolphin sets per year has de- clined by about 30 percent over the past eight years, dolphin mortality per set is only one-twentieth of what it was in 1988. These factors led to record low dolphin mortality in 1995. Subsequent to enactment of the 1988 amendments, some environmental organizations began to push for a consumer boycott of tuna caught by encircling dolphins. In response, the three largest U.S. tuna canners announced in April 1990 that they would no longer purchase tuna caught in association with dolphins. This announcement led to further shifts in the eastern tropical Pacific tuna fishery as more U.S. vessels relocated to the western Pacific. It also prompted Congress to pass the Dolphin Protection Consumer Information Act, which set standards for labeling tuna as being "dolphin-safe." Efforts to reduce dolphin mortality began to take on a more international flavor beginning in 1990. At a special meeting of the Inter- American Tropical Tuna Commission, participants from all nations with a significant interest in the eastern tropical Pacific tuna fishery, whether or not members of the Commission, met and adopted a resolution calling for an expanded dolphin conservation program. The program was to include limits on dolphin mortality, 100 percent observer coverage, research to improve fishing gear and techniques and to investigate possible alternative fishing methods that might eliminate dolphin mortali- ty, and a training program to improve operator performance throughout the international fleet. Also in 1990 Mexico challenged the imposition of an embargo of its tuna under the Marine Mammal Protection Act as being inconsistent with U.S. obliga- tions under the General Agreement on Tariffs and Trade (GATT). As discussed in previous annual reports, the dispute resolution panel found the unilat- 100 Chapter IV — Marine Mammal-Fisheries Interactions erally imposed U.S. embargo provisions to be incon- sistent with the Agreement. The panel suggested, however, that such trade sanctions may be permissible if designed to ensure compliance with a multilateral agreement. It should be noted that the panel decision and a decision in a related challenge of the Marine Mammal Protection Act intermediary nation embargo provisions have yet to be formally adopted by the GATT Council. An international agreement was concluded among the eastern tropical Pacific fishing nations at a special meeting of the Inter-American Tropical Tuna Com- mission in 1992. This non-binding agreement, called the "La Jolla Agreement" after the site of the negotia- tions, established the International Dolphin Conserva- tion Program (IDCP) under the auspices of the Tuna Commission. The specifics of the agreement and actions taken to implement it are discussed below. The Marine Mammal Protection Act's tuna-dolphin provisions were amended further by the International Dolphin Conservation Act of 1992. The amendments focused on ways to eliminate, rather than merely reduce, incidental dolphin mortality and established a framework for a global moratorium on the practice of setting on dolphins to catch tuna. Although no fishing nation agreed to the moratorium and certain provi- sions of the Act never went into effect, other provi- sions were not contingent on concluding a moratorium agreement. Significant changes included (1) revising the quotas applicable to the U.S. fleet, (2) modifying the American Tunaboat Association's general permit to proscribe setting on eastern spinner or coastal spotted dolphins, and (3) prohibiting effective 1 June 1994 the sale, purchase, transport, or shipment in the United States of any tuna that is not dolphin-safe. As discussed in the previous annual report, a U.S. district court also ruled in 1994 that the general permit did not authorize U.S. fishermen to encircle any dolphins from a depleted stock, including the northeastern offshore spotted dolphin, which was declared depleted in 1993. Prohibited from making sets on three of the ten stocks of eastern tropical Pacific dolphins, faced with a quota of 105 dolphins, and foreclosed from market- ing in the United States any tuna caught by setting on dolphins, none of the five U.S. vessels remaining in the eastern tropical Pacific fishery initially requested a dolphin mortality quota for 1995 under the interna- tional program. Although the five vessels each requested and received a quota for the second half of 1995, no sets on dolphins were made and no dolphins were killed by the U.S. fleet in 1995. 1992 La Jolla Agreement As noted above, the governments of all nations participating in the eastern tropical Pacific tuna fishery adopted the La Jolla Agreement at a special meeting of the Inter-American Tropical Tuna Commission in 1992. The countries resolved to establish a multilat- eral program to reduce incidental dolphin mortality in the eastern tropical Pacific to levels approaching zero by setting annual limits. The annual limits on total incidental dolphin mortality established by that resolu- tion were 19,500 in 1993, 15,500 in 1994, 12,000 in 1995, 9,000 in 1996, 7,500 in 1997, 6,500 in 1998, and less than 5,000 in 1999. Other aspects of the program adopted under the resolution were (1) the continuation of the international observer program with the additional requirement that at least 50 percent of the observers deployed by a nation each year be placed by the Tuna Commission; (2) the establishment of a review panel to monitor compliance by the international fleet with the annual dolphin mortality limits; (3) expansion of the existing research and education programs, including an increase in efforts to find methods of catching large yellowfin tuna that do not involve encircling dolphins; and (4) establishment of a scientific advisory board to assist the Tuna Commission in efforts to coordinate, facilitate, and guide research directed at reducing dolphin mortality. The parties subsequently agreed to a system where- by each vessel participating in the fishery would be given an individual dolphin mortality limit. Under that agreement, any vessel that leaves the fishery or that does not use any of its quota by 1 June forfeits its quota for the remainder of the year. Unused quotas may be allocated to other vessels for the second half of the year. Any vessel that exceeds its dolphin limit will have the amount of the excess deducted from its limit for the following year. 101 MARINE MAMMAL COMMISSION - Annual Report for 1995 g. ~2.ro « £ % 3 c w re 3 O 3 now ■« 3 n 5-1.3 o> 92 n n n BR n 3 W ft ft) w aw * °-< — .C3.ni s-s = p re » * 5' (TO s- *1 o £ re tu -■ 3 ■g§B O K (TO — ■ — re >? o o ■*> re ~ S« -a a- "1 w O O O 2, CTQ -t " <-l < « w rt § 3 p- to' c o. c C 3 on B 5- o 5" > 3 3 =■ vo £ re &: "^i'O 3 re re o^ — » R>^ Z r* ^ " ^ re (to' g- re- -a 0> » a. t=- re S' =•0 2. 3' a 5' a- 3 IIS. re T3 — ■ < ■" o 3 £ to < to re 3 S'S » O- Q. c/i 3 -2-5. to °* 1/1 o- to *< 3 re C/l t It re 2. D. 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Ov Ov "vo "-J N> Ul U O U) to I— 2 00 00 VOI u< o ~J vo U> vi w bv ,— Ji. o 4^- <-fi to vo * ^1 to to to bo vo ■*». 00 O vo _>— >— O in Ln ov O Ov Ov OOO l/l l/l Ul to to 00 p p to Ln In h- to — to o o Ov Ov O T1 O re S 00' .. 3 o o E D O G £. 00,5- -O Ov >— OO •— vo VO 00 "-J tO OO H- -o ■— to to ^J (_« to to •O Ov 1— to to VO VO tO O O O to U) ►— (jj vo 1— vo Ov 4*. h- O 00 ►— 1— -o Ui 4- UJ b *vo •— vo vo O Ov O Ov to to -O -J *. 4^. O VO 00 ^ TD Ov (-n to •"* VO *»• Ov ~J O *>• VO 00 3 VD U U VO (/I 4> O VO U) 4> 00 VO 1 — ' 00 OJ VO VO H re" W re Q. C en o re ff o. o ■8 "1 en re O 3 a. o I r> re 3 O O" v> ft re n o •«! re ore re vo 00 00 vo VO in 102 Chapter IV — Marine Mammal-Fisheries Interactions The parties adopted resolutions in 1993 and 1994 to modify the overall dolphin mortality limits for 1994 and 1995, respectively. The limit was reduced to 9,300 for each year. In 1994, 73 vessels, including three from the United States, received individual dolphin mortality limits. For 1995, 81 vessels re- quested individual dolphin mortality limits. Of these, 42 vessels were from Mexico, 19 from Venezuela, 13 from Vanuatu, 6 from Colombia, and 1 from Panama. As stated above, five U.S. vessels requested dolphin mortality limits for the second half of 1995 but did not make any sets on dolphins. Under the schedule adopted in 1992, the dolphin mortality quota for 1996 is 9,000. There has been no agreement to reduce the quota further even though it is more than twice the mortality levels achieved each of the past three years. As noted above, the 1992 La Jolla Agreement called for expansion of existing research and education programs and establishment of a scientific advisory board to assist the Tuna Commission. Due to a lack of funds, however, the scientific advisory board has met only once since its establishment. Nevertheless, the Inter-American Tropical Tuna Commission has continued to pursue research into improved and alternative fishing methods. During 1995, the Tuna Commission continued to study the feeding habits of dolphins, tuna, and other large pelagic predators in an attempt to determine why these species associate in the eastern tropical Pacific and under what circumstances large yellowfin tuna might be found without dolphins. Preliminary analy- ses indicate that yellowfin tuna feed primarily during the day while spotted and spinner dolphins are mainly nocturnal or twilight feeders. The study suggests that feeding habits may contribute to the formation of the tuna-dolphin association, but they are probably not the major factor. The National Marine Fisheries Service has also continued its research program to develop dolphin-safe fishing techniques. As discussed in the previous annual report, the Service held a workshop in March 1994 to consider the direction this program should take. During 1995 three of the highest priority projects identified by workshop participants were completed. These studies looked at alternative ways of locating large yellowfin tuna, including acoustic, optical, and radar detection. The studies identified acoustic systems (sonar) as the most promising option for long-range detection of large yellowfin tuna not associated with dolphins. Based on these results, the Service plans to conduct additional research on acoustic detection devices in 1996, including an examination of the potential physiological effects of these devices on tuna and dolphins. At the 13-15 June 1995 meeting of the Inter- Ameri- can Tropical Tuna Commission, six parties to the La Jolla Agreement issued a joint statement urging the United States to lift the primary and intermediary tuna embargoes currently in effect. Those nations — Colombia, Costa Rica, Ecuador, Mexico, Panama, and Venezuela — reiterated their commitment to conserve the living marine resources of the eastern tropical Pacific and to abide by the provisions of the La Jolla Agreement. The statement expressed the view that increased use of dolphin-safe fishing meth- ods would harm biodiversity by increasing the discard of juvenile tuna and the bycatch of non-target species. The nations therefore endorsed fishing for tuna by setting on dolphins as the most effective method for protecting the tuna stocks and other resources of the eastern tropical Pacific. The six nations alleged that U.S. embargoes of tuna that is not dolphin-safe are contrary to international law, lack a scientific basis, are counterproductive to broader conservation goals, and are incompatible with the United States signing the La Jolla Agreement. Expressing concern that the current situation endangers the continued viability of the La Jolla Agreement, the tuna fishing nations called on the United States to allow importation of tuna caught in association with dolphin and to redefine the term dolphin-safe to include all tuna caught in compli- ance with the regulatory measures adopted pursuant to the La Jolla Agreement. Oversight Hearing Since 1992 the signatories of the La Jolla Agree- ment have operated under its provisions. As noted above, some nations have considered withdrawing from the agreement because, despite significant reductions in dolphin mortality, the United States 103 MARINE MAMMAL COMMISSION - Annual Report for 1995 continues to embargo tuna harvested by their fleets. Dissatisfaction with existing law has also been ex- pressed by some U.S. tuna fishermen, who have been all but eliminated from the eastern tropical Pacific purse seine fishery. These concerns prompted the Subcommittee on Fisheries, Wildlife, and Oceans of the House of Representatives Committee on Resources to convene an oversight hearing on 21 June 1995 on the tuna-dolphin issue with particular emphasis on the provisions of the International Dolphin Conservation Act. Participants at the hearing included representa- tives of the Department of State, the Inter-American Tropical Tuna Commission, the American Tunaboat Owners Coalition, the National Fisheries Institute, Earth Island Institute, and the Center for Marine Conservation. The State Department expressed its view that the threat and imposition of U.S. trade embargoes under the Marine Mammal Protection Act were useful tools in reducing dolphin mortality and bringing about negotiation of a responsible international dolphin protection program under the auspices of the Inter- American Tropical Tuna Commission. The State Department noted, however, that the factual underpin- ning for the embargoes no longer existed and that participants in the international program remain subject to embargoes with no prospect for relief. The Department witness also expressed concern that tuna fishing nations were re-evaluating their participation in the international program, placing its future in jeopardy. Based on these views, the State Department advo- cated amending the Marine Mammal Protection Act to conform to the Inter-American Tropical Tuna Com- mission standards. That is, a nation that participated effectively in the international program would no longer be subject to a U.S. embargo of its tuna and tuna products. The Department of State believed that such an amendment would preserve the progress made to date in reducing dolphin mortality and would ensure further progress under the La Jolla Agreement. The Department of State also advocated amending the Act to allow U.S. fishermen to participate in the eastern tropical Pacific tuna fishery on an equal footing with foreign fishermen. The Department noted that allowing U.S. fishermen to fish in accor- dance with the terms of the La Jolla Agreement would not result in an increase in overall dolphin mortality but would merely reallocate the existing quota. The Department also noted the need to amend U.S. law to allow a U.S. citizen to serve as the captain or a crew member on a foreign purse seine vessel so as to provide the expertise needed to further the goal of reducing dolphin mortality throughout the fishery. The Department of State also addressed the provi- sions of the Marine Mammal Protection Act concern- ing dolphin-safe tuna, which exclude from the U.S. market any tuna caught in the eastern tropical Pacific by vessels encircling dolphins. The Department discussed several alternatives for addressing the issue, ranging from maintaining the current restrictions to abandoning the labeling standard entirely, but took no position pending further examination. The Inter-American Tropical Tuna Commission also advocated amending the Marine Mammal Protection Act to reflect the standards established under the La Jolla Agreement. In support of this position the Tuna Commission noted the progress that had been made under the international program, the potential for some nations to withdraw from the program if U.S. embargoes of their tuna continued, the fact that the number of sets on dolphins in the eastern tropical Pacific had not declined appreciably despite the U.S. embargoes, and the adverse effect that abandoning the practice of setting on dolphins would have on tuna stocks. The Tuna Commission representative present- ed data showing that switching to school sets and log sets, the two principal alternatives to setting on dolphins, would result in greatly increased catch of immature tuna and the bycatch of other marine species, including billfish, sharks, mahi-mahi, and sea turtles. The Inter- American Tropical Tuna Commis- sion estimated that, if sets on dolphins were replaced by school and log sets, between 10 to 25 million undersized yellowfin tuna with no commercial value would be discarded each year. This represents between 13 and 32 percent of the total recruitment for the species and, in the view of the Tuna Commission, would have a drastic effect on the fishery. In further support of its position that dolphin sets are an environmentally sound practice, the Tuna Commission argued that dolphin stocks in the eastern 104 Chapter IV — Marine Mammal-Fisheries Interactions tropical Pacific were generally healthy; that the two depleted stocks, northeastern offshore spotted dolphins and eastern spinner dolphins, would rebound to optimal levels in the next few years; and that the present quotas were biologically insignificant. With respect to the latter point, the Tuna Commission noted that if incidental take in the eastern tropical Pacific tuna fishery were treated under a potential biological removal level standard, as are other fisheries under the Marine Mammal Protection Act, the annual allowable mortality and serious injury of dolphins would exceed 50,000. The American Tunaboat Owners Coalition proposed the broadest amendments to the Marine Mammal Protection Act that, in its view, would allow U.S. tuna fishermen to return to the eastern tropical Pacific on an equal footing with foreign fishermen. The Coalition advocated an amendment to substitute the provisions of the Inter-American Tropical Tuna Commission dolphin conservation program for the provisions currently set forth in the Act. This would include repealing the ban on U.S. fishermen encircling dolphins, including those stocks designated as deplet- ed, as well as the ban on importing and selling tuna caught by encircling dolphins. Existing quotas would be replaced by those established under the internation- al program and would reflect the dolphin mortality limits assigned to individual vessels under that pro- gram. The Coalition further proposed limiting the international quotas to reflect stock-specific potential biological removal levels applicable to marine mam- mals taken incidental to domestic fisheries. The Coalition supported replacing the current embargo provisions with an embargo of tuna harvested by vessels of any country that does not participate in the international program. The Coalition also backed an amendment to repeal the dolphin-safe labeling stan- dards, deferring instead to general Federal Trade Commission labeling standards and consumer choice. The Coalition emphasized that the existing labeling standards were based on an unsupported premise that encirclement of dolphins is in itself harmful. The testimony of the National Fisheries Institute, whose membership consists of about 1,000 fishery- related businesses, focused not specifically on the eastern tropical Pacific tuna fishery but on the broader ramifications of U.S. tuna embargoes on the seafood industry. The crux of the Institute's testimony was that imposition of unilateral trade sanctions and refusal by the United States to recognize the primacy of the International Dolphin Conservation Program under- mine the cooperation needed to conserve other fishery resources upon which U.S. fishermen and processors depend. In particular, the Institute noted the need for cooperation by Mexico, Venezuela, and other western hemisphere nations in managing fish stocks under the auspices of the International Commission for Conser- vation of Atlantic Tunas and in reducing the take of sea turtles incidental to shrimp fisheries. The Institute also argued that the nations subject to U.S. embargoes had found alternative markets for their tuna and those suffering most were U.S. firms and customers that historically relied on the banned products. The Institute also expressed fear that U.S. fishery products could be subject to retaliatory trade sanctions if the rulings of the GATT dispute resolution panel are ever adopted. Earth Island Institute, representing 16 environmental and animal welfare organizations including Defenders of Wildlife and the Humane Society of the United States, opposed amending the tuna-dolphin provisions of the Marine Mammal Protection Act. Earth Island Institute remained committed to a complete elimina- tion of dolphin mortality, to the establishment of a global moratorium on the practice of encircling dolphins, and to retaining the current definition of dolphin-safe tuna. To do otherwise, it argued, would be contrary to the Marine Mammal Protection Act's goal of achieving a zero mortality and serious injury rate incidental to commercial fishing operations. Earth Island Institute further asserted that, even if no encircled dolphins are killed in purse seine nets, the stress resulting from repeated chase and capture likely causes numerous physiological problems. Earth Island Institute pointed to the experience of those U.S. fishermen who have continued to fish in the eastern tropical Pacific as evidence that a commercially viable fishery can be maintained without setting on dolphins. Earth Island Institute maintained that the current U.S. prohibition on the sale of tuna caught in associa- tion with dolphins was working and should not be modified. It contended that allowing access to the U.S. market would unnecessarily harm dolphins by allowing the number of dolphins killed to double from 105 MARINE MAMMAL COMMISSION — Annual Report for 1995 current levels to allowable quotas under the La Jolla Agreement, would hurt U.S. canners who remain committed to selling only dolphin-safe tuna, and would be detrimental to the majority of the U.S. tuna fleet, which has relocated to the western Pacific where tuna are harvested using dolphin-safe methods. Earth Island Institute also opposed ceding manage- ment authority for dolphin conservation programs to the Inter-American Tropical Tuna Commission. Earth Island Institute noted that the Tuna Commission is a fisheries organization whose primary mission is to ensure sustainable tuna production. Only secondarily, it contended, does the Tuna Commission attempt to minimize dolphin mortality. Earth Island Institute also noted that the La Jolla Agreement, which forms the basis for the international program, is not a binding international agreement and has not been formally adopted by the Inter- American Tropical Tuna Commission. Other criticisms of placing management authority in the Tuna Commission leveled by Earth Island Institute were that some tuna-fishing nations, including Mexico, Colombia, and Ecuador, are not members and that the Commission operates by con- sensus, allowing any member to veto proposed conservation measures. Earth Island Institute further contended that backing away from tuna embargoes, in part because of GATT considerations, set a dangerous precedent for other U.S. environmental laws. Earth Island Institute asserted that imposition of trade sanctions is often the only effective means of securing environmentally responsible behavior on the part of other nations. The Center for Marine Conservation presented testimony on behalf of itself, the Environmental Defense Fund, Greenpeace, the National Audubon Society, the National Wildlife Federation, the Whale and Dolphin Conservation Society, and World Wild- life Fund. These organizations noted the success of the Marine Mammal Protection Act and the La Jolla Agreement in reducing dolphin mortality, but stated that it was time to examine the unintended conse- quences of current conservation efforts. The Center for Marine Conservation recognized that the 1992 amendments to the Marine Mammal Protection Act had not brought about an international moratorium on setting on dolphins as hoped and that, absent such a moratorium, some provisions of the amendments had not been effective. In addition, the Center questioned the durability of the unilateral approach to dolphin conservation embodied in the Act and noted early evidence suggesting that the dolphin-safe policy advanced by current U.S. law may create other bycatch problems in the fishery if there were a widespread shift to such fishing methods. Although the Center for Marine Conservation believed there to be problems with existing tuna- dolphin legislation, it recommended against amending the Marine Mammal Protection Act at that time. Rather, the Center supported initiation of a multilater- al process, involving all stakeholders in the fishery, to address the outstanding issues through establishment of a binding international agreement. In the Center's view, such an agreement, at a minimum, must address the conservation of the ecosystem and biological diversity of the eastern tropical Pacific, establishment of international conservation and management of tuna and dolphin stocks, and maintenance of consumer confidence. While acknowledging the success of the La Jolla Agreement, the Center noted that the agree- ment was a non-binding resolution and needed to be strengthened to provide effective long-term conserva- tion and management under the auspices of the Inter- American Tropical Tuna Commission. Representatives of Colombia, Costa Rica, Ecuador, Mexico, Panama, and Venezuela met in San Jose, Costa Rica, on 14 July 1995 to review the tuna- dolphin situation. The nations issued a joint declara- tion in light of the House Resource Committee over- sight hearing. While reiterating many of the concerns expressed in the 15 June statement, the nations were heartened by the statements that had been made by the State Department, Congressional representatives, and various non-governmental organizations. The six nations expressed concern, however, that the U.S. Administration and most other witnesses did not call for Congress to amend the definition of dolphin-safe tuna. They stated that lifting the tuna embargoes without also addressing the dolphin-safe definition would not be acceptable and expressed the view that promoting such fishing practices would be detrimental to the eastern tropical Pacific ecosystem and the tuna resource. The nations reiterated their concern that the continued stability of the La Jolla Agreement was in 106 Chapter IV — Marine Mammal-Fisheries Interactions jeopardy unless the United States, during the 1995 session of Congress, enacted legislation lifting the primary and secondary tuna embargoes, codifying the La Jolla Agreement, and redefining dolphin-safe to include all tuna and tuna products harvested in accor- dance with the regulatory measures adopted under the La Jolla Agreement. Declaration of Panama Dissatisfied with the pace at which international negotiations to resolve the tuna-dolphin issue were being pursued by the United States, the Center for Marine Conservation, the Environmental Defense Fund, Greenpeace, the National Wildlife Federation, and World Wildlife Fund undertook discussions in September 1995 with representatives of Mexico to explore the possibility of reaching a multilateral agreement among the tuna-fishing nations to provide a framework for strengthening the international conservation program and lifting U.S. tuna embar- goes. These discussions led to a compromise ap- proach supported by the tuna-fishing nations, this segment of the environmental community, and the U.S. Administration. The compromise developed by Mexico and the five environmental organizations ultimately formed the basis for the Declaration of Panama, signed by representatives of 12 nations on 4 October 1995. Signatories to the declaration included Belize, Colom- bia, Costa Rica, Ecuador, France, Honduras, Mexico, Panama, Spain, the United States, Vanuatu, and Venezuela. Those nations reaffirmed the commit- ments and objectives of the La Jolla Agreement to reduce dolphin mortality in the eastern tropical Pacific tuna fishery to levels approaching zero through the setting of annual mortality limits, with the goal of eliminating dolphin mortality by seeking a means of capturing large yellowfin tuna not in association with dolphins. Moreover, the nations declared their intention, contingent on the enactment to changes in U.S. law, to formalize by 31 January 1996 the La Jolla Agreement as a binding Inter-American Tropical Tuna Commission resolution or other binding legal instrument. The envisioned changes to U.S. law include lifting the primary and secondary embargoes for tuna caught in compliance with the La Jolla Agreement as it would be modified under the Declara- tion of Panama, allowing access to the U.S. market for all tuna, whether dolphin-safe or not, caught in compliance with the agreement by nations that are members of the Inter-American Tropical Tuna Com- mission or that have initiated steps to become mem- bers, and redefining the term dolphin-safe to include any tuna caught in the eastern tropical Pacific by a purse seine vessel in a set in which no observed dolphin mortality occurred. The signatories to the Declaration of Panama specified several provisions that would be included in the binding international instrument once the requisite changes to U.S. law had been enacted. These would include commitments to (1) adopt conservation and management measures that ensure the long-term sustainability of tuna stocks and other living marine resources in the eastern tropical Pacific, (2) assess the catch and bycatch of juvenile yellowfin tuna and other living marine resources of the eastern tropical Pacific and adopt measures to reduce or eliminate such catch, (3) implement the international agreement through enactment of domestic legislation and/or adoption of regulations, (4) enhance existing mechanisms for reviewing compliance with the international program, (5) establish annual stock-specific quotas on dolphin mortality based on minimum population estimates, (6) limit overall dolphin mortality to no more than 5,000 per year, (7) establish a system that provides incen- tives to vessel captains to continue to reduce dolphin mortality, and (8) establish or strengthen national scientific advisory committees to advise their respec- tive governments on research needs. As provided for in the Declaration of Panama, until the year 2001 an annual quota for each stock would be set at between 0. 1 and 0.2 percent of the minimum population estimate for the stock. Beginning in the year 2001, the annual per-stock quota would be set at 0.1 percent of the stock's minimum population esti- mate. If the annual quota for any stock were exceed- ed, all sets on that stock and any mixed schools containing individuals from that stock would cease for the remainder of the year. In addition, should the annual mortality for the eastern spinner or the north- eastern spotted dolphin exceed 0.1 percent of the minimum population estimate, the governments would conduct a scientific review to consider whether further action to reduce mortality is needed. 107 MARINE MAMMAL COMMISSION - Annual Report for 1995 Proposed Legislation During 1995 four bills to amend the tuna-dolphin provisions of the Marine Mammal Protection Act were introduced in Congress. Representative Randy Cunningham and three co-sponsors introduced H.R. 2179 on 3 August 1995, prior to the negotiations that culminated in the Declaration of Panama. The second bill, S. 1420, was introduced by Senator Ted Stevens and four co-sponsors on 17 November to give effect to the Declaration of Panama and provide relief for U.S. tuna fishermen. Senators Barbara Boxer and Joseph Biden introduced S. 1460 on 7 December as an alternative to the Stevens bill. The fourth bill, H.R. 2823, was introduced on 21 December by Representa- tive Wayne Gilchrest and 26 co-sponsors, including the four sponsors of H.R. 2179, as a companion bill to S. 1420. A companion bill to S. 1460 is expected to be introduced in the House of Representatives early in 1996. The Cunningham bill proposes the broadest changes to existing tuna-dolphin legislation. The existing comparability requirements for nations seeking to import tuna into the United States would be repealed. Instead, comparability would be based on a require- ment that the nation participates in the international program established under the La Jolla Agreement, provided that (1) dolphin mortality under the program is within the potential biological removal level for each affected dolphin stock, (2) all vessels of the nation participate in the program and are subject to 100 percent observer coverage, (3) the nation autho- rizes the release of information sufficient to demon- strate participation in the program, and (4) the nation complies with all reasonable requests to participate in cooperative scientific research. Also, the provisions regarding the general permit issued to the American Tunaboat Association would be deleted and replaced with a requirement that U.S. purse seine vessels in the eastern tropical Pacific be subject to regulation by the Secretary of Commerce, provided the regulations were consistent with the International Dolphin Conservation Program. In addition, the Dolphin Protection Con- sumer Information Act would be repealed, as would the definition of dolphin-safe tuna and the existing provision that limits imports to dolphin-safe tuna. More generally, there would be a shift in U.S. policy from seeking the elimination of marine mammal mortality in the eastern tropical Pacific tuna fishery to seeking the continued reduction of dolphin mortality. Another policy goal of the bill is to put U.S. tuna fishermen who fish in or wish to return to the eastern tropical Pacific on a equal footing with foreign fishermen. The Stevens bill would institute the changes to U.S. law necessary to trigger implementation of the Decla- ration of Panama. The bill would lift the tuna embar- goes now in place and allow imports of all tuna harvested in compliance with the La Jolla Agreement, as it would be modified under the declaration, by vessels from countries that are members of the Inter- American Tropical Tuna Commission or that have taken steps to become members. An exporting nation must also show that the tuna was not banned from import by a pre-existing embargo, e.g. by showing that the tuna was harvested after the effective date of the amendment. The Stevens bill would allow all tuna caught in the eastern tropical Pacific to be labeled as dolphin-safe if no dolphins were killed during the set in which the tuna was caught. Regulations to be issued by the National Marine Fisheries Service would include provisions addressing weight calculations and well location of a vessel's catch as a means of track- ing what tuna is dolphin-safe. As under the Cunningham bill, the Stevens bill would rescind the American Tunaboat Association general permit. In its place, the Stevens bill would require promulgation of new regulations to govern U.S. participation in the fishery and issuance of annual permits to those U.S. vessels participating in the International Dolphin Conservation Program. Under regulations to be issued by the National Marine Fisheries Service, U.S. vessels would be allowed to take marine mammals, including those designated as depleted, incidental to their fishing operations. The taking of species listed as threatened or endangered under the Endangered Species Act, however, would not be permitted. The Stevens bill would also direct the National Marine Fisheries Service, in cooperation with other nations participating in the international program, to undertake research aimed at reducing dolphin mortali- ty and developing cost-effective methods of catching large yellowfin tuna without setting on dolphins. 108 Chapter IV — Marine Mammal-Fisheries Interactions Research on the status of dolphin stocks and on the effects of chase and encirclement of dolphins would also be required. In many respects, the Boxer bill tracks the Stevens bill. There are, however, several key differences. The most significant differences concern what tuna may be imported into the United States and how that tuna may be labeled. The Boxer bill would retain the current provisions of the Marine Mammal Protection Act that effectively prohibit the import of tuna that is not dolphin-safe. It would also preserve the existing definition of dolphin-safe tuna as tuna harvested on a trip during which no dolphins sets were made. Data from the past two years suggest that about 20 to 30 percent of the yellowfin tuna from the eastern tropical Pacific is harvested using dolphin-safe fishing tech- niques. Thus, the Boxer bill offers only limited relief to those nations currently subject to embargoes. Further, the Boxer bill's import provisions would apply only to those nations that are members of the Inter-American Tropical Tuna Commission; it would not include those nations that had initiated steps to become members. The Boxer bill also takes a more aggressive ap- proach to pursuing the zero mortality rate goal of the Marine Mammal Protection Act than does the Stevens bill or the Declaration of Panama. While the mortali- ty cap of 5,000 dolphins would be adopted for 1996, there would be an accompanying requirement that the quota be reduced by a statistically significant amount in each successive year until the goal of zero mortality is reached. The Boxer bill would also limit the annual stock-specific quotas for depleted dolphins to the levels achieved in 1994. The Boxer bill, like the Stevens bill, tries to put U.S. and foreign tuna fishermen operating in the eastern tropical Pacific on an equal footing. The current prohibition on encircling dolphins would be lifted and U.S. fishermen allowed to operate under the International Dolphin Conservation Program, subject to an assigned vessel dolphin mortality limit. Howev- er, U.S. fishermen would be subject to the same import limitations as would foreign fishermen. Any tuna they caught during a trip on which dolphins were encircled would be excluded from the U.S. market. A further limitation on U.S. fishermen would continue in place under the Boxer bill. They would not be allowed to set on any depleted stock of dol- phins, including northeastern offshore spotted dol- phins, the most commonly encircled stock in the northern part of the fishery. Behind some of the more restrictive provisions of the Boxer bill is a belief that the practice of setting on dolphins, whether or not they are killed, may be harmful. Some supporters of the bill have postulated that stress caused by chase and encirclement may be retarding the recovery of eastern tropical Pacific dolphin stocks. They believe that additional research into the effects of this practice is needed before changes to U.S. law are made. Consistent with this view, the Boxer bill would authorize $1 million for research on the effects of chase and encirclement of dolphins and on the bycatch associated with dolphin- safe fishing practices. Neither the Stevens bill nor the Boxer bill, if enacted, would become effective until a binding international agreement establishing the International Dolphin Conservation Program had been adopted and entered into effect. At the end of 1995 no Congressional action had been taken on any of the bills. It is expected that hearings will be held early in 1996. Pinniped-Fishery Interactions The 1994 amendments added several new provisions to the Marine Mammal Protection Act relating specifi- cally to pinniped-fishery interactions. Section 120(a- e) allows states to request and the Secretary of Com- merce to grant authority for the lethal removal of individual pinnipeds affecting certain salmonid stocks without obtaining a waiver of the Act's moratorium on taking, provided certain conditions are met. Section 120(f) directs the Secretary of Commerce to investigate and to submit a report by 1 October 1995 indicating whether California sea lions and Pacific harbor seals are having a significant negative impact on recovery of salmonid fishery stocks or other components of the coastal ecosystems of Washington, 109 MARINE MAMMAL COMMISSION - Annual Report for 1995 Oregon, and California. Section 120(h) directs the Secretary of Commerce to establish a pinniped-fishery interaction task force to advise on possible measures for minimizing interactions between pinnipeds and aquaculture operations in the Gulf of Maine. Actions generated by these new provisions are described below. Request from the Washington Department of Fish and Wildlife for Lethal Taking Authority The number of winter-run steelhead trout returning through the Chittenden, or Ballard, Locks in Seattle to spawn in streams emptying into Lake Washington declined from nearly 3,000 in the early 1980s to fewer than 100 in the 1993-1994 run. At the same time, there was a substantial increase in the number of California sea lions congregating near the locks and preying on steelhead. As described in the Commis- sion's previous annual report, measures taken by the National Marine Fisheries Service and the Washington Department of Fish and Wildlife to reduce sea lion depredation of the winter-run steelhead have been largely ineffective (see Appendix B, Fraker 1994, for a more complete description of the problem). As noted above, under the 1994 Marine Mammal Protection Act amendments, states may request authority to lethally take individually identifiable pinnipeds causing or contributing to declines of salmonid stocks. On 30 June 1994 the Washington Department of Fish and Wildlife applied to the National Marine Fisheries Service for authority to lethally take individually identifiable California sea lions preying on winter-run steelhead migrating through the Ballard Locks. The application also asked that a pinniped-fishery interaction task force be established as required under section 120(c). The Ballard Locks Pinniped-Fishery Interaction Task Force was established by the Service on 30 September 1994. Members included representatives of the National Marine Fisheries Service, the State of Washington, concerned Indian tribes, the academic community, recreational fishermen, and public interest groups. The task force met several times in October and November 1994 and forwarded its recommenda- tions to the National Marine Fisheries Service on 22 November 1994. The task force recommended that sea lions preying on steelhead trout in the vicinity of Ballard Locks be removed, preferably by non-lethal means, to reduce predation during the 1994-1995 winter run. The task force further recommended that, if facilities were not or could not be made available to hold depredating sea lions in captivity during the winter run, the state or National Marine Fisheries Service be authorized to kill depredating sea lions provided that (a) predation exceeds 10 percent of the returning steelhead trout in any consecutive seven-day period after 1 January 1995, (b) depredating sea lions are captured and euthanized humanely, (c) the Army Corps of Engi- neers provide a report to the National Marine Fisher- ies Service describing its response to task force recommendations for improving fish passage at Ballard Locks, and (d) the Service and the Washing- ton Department of Fish and Wildlife further investi- gate the possible benefits of using acoustic deterrence devices to keep sea lions away from the lock area. Not all members of the task force supported the recommendations put forth in the 22 November report. On 5 December 1994 a minority report signed by 8 of the 21 task force members was provided to the Service. The report noted the minority view that (1) the available data did not support the premise that removing sea lions would produce an increase in the winter-run steelhead population, (2) if sea lions observed repeatedly eating steelhead in the vicinity of the locks were removed, they likely would be replaced by other nearby animals, (3) lethal removal would constitute a significant precedent with broad implica- tions for future management of marine mammal- fishery interactions under the Marine Mammal Protec- tion Act, and (4) the State of Washington had failed to make the required showing that there were no feasible and prudent alternatives to lethal removal. The minority group also expressed concern that the Army Corps of Engineers had been unresponsive to the National Marine Fisheries Service regarding the need to improve fish passage at the locks. The Marine Mammal Commission, in consultation with its Committee of Scientific Advisors, reviewed and by letter of 19 December 1994 provided com- 110 Chapter IV — Marine Mammal-Fisheries Interactions merits to the National Marine Fisheries Service on both the majority and minority reports. The Commis- sion noted the importance of responding to the State's request in time to take measures to reduce depredation of the 1995-1996 winter steelhead run. The Commis- sion recommended that the Service make its decision and be ready to implement appropriate actions by 1 January 1995. These and other comments and recom- mendations made by the Commission are described in the previous annual report. The National Marine Fisheries Service adopted the task force's recommendations and by letter of 4 January 1995 authorized the Washington Department of Fish and Wildlife to lethally remove individually identifiable California sea lions observed preying on winter-run steelhead migrating through the Lake Washington ship canal in the vicinity of the locks. The authorization specified that only "predatory" sea lions could be lethally removed, that non-lethal deterrents had to be tried first and found ineffective, and that lethal removals could not be done unless the sea lion predation rate exceeded 10 percent of the steelhead migrating through the ship canal in any seven-day period after 1 January 1995. The authori- zation also specified that the State convene an animal care committee to provide recommendations on the handling of sea lions and that predatory sea lions identified for lethal removal be captured and euthan- ized using protocols developed by the animal care committee. The authorization, valid until 31 June 1997, also specifies that the State must submit a report on its authorized activities by 1 September each year. After receiving the report, the Service will ask the task force to evaluate the effectiveness of the actions taken and compliance with the conditions of the lethal taking authorization. In its 4 January 1995 transmittal letter, the National Marine Fisheries Service also requested that the State take the lead in responding to the task force's recommendations regarding changes in the locks and lock operations to improve fish passage, assessing the feasibility of constructing sea lion barriers and/or refugia where steelhead can escape from sea lions, and developing a comprehensive winter-run steelhead recovery plan. The Washington Department of Fish and Wildlife submitted the required report to the National Marine Fisheries Service on 31 August 1995, describing actions taken to reduce California sea lion predation on the 1994-1995 winter run of steelhead in the Lake Washington ship canal. The report indicated that no sea lions had been killed during the run; that a large male sea lion, which had been observed eating steel- head in the vicinity of the locks in preceding years, as well as during the 1994-1995 winter run, had been captured on 25 January 1995 and held until 8 June when it was released in the Strait of Juan de Fuca west of Port Angeles; and that two additional sea lions observed preying on steelhead in the vicinity of the locks had been captured, marked, transported, and released in the Strait of Juan de Fuca. The letter transmitting the report to the National Marine Fisher- ies Service indicated that the State did not have sufficient funding to continue predation monitoring at the locks or to provide for the care and feeding of any sea lions taken into captivity during the 1995-1996 season. It expressed the State's hope that the Service would again be able to provide financial assistance for the monitoring and captive holding programs, as well as to continue its sea lion capture and tagging program and experiments with acoustic deterrents. The State's report was provided to the Ballard Locks Pinniped-Fishery Interaction Task Force for review. The task force met in Seattle on 6-8 Septem- ber 1995 to review the report and provide advice on follow-up actions to the National Marine Fisheries Service. The task force report was completed on 8 November 1995. By the end of the year, it had not yet been forwarded to the Commission for review. Gulf of Maine Task Force on Aquaculture-Pinniped Interactions Both the salmon aquaculture industry and popula- tions of harbor seals and gray seals in the northeastern United States have grown substantially in recent years. Seals can kill and eat many salmon if they are able to get into the salmon pens. Seals also can kill and injure penned salmon by biting through the netting. If nets are torn, the penned salmon may escape, causing substantial economic loss and possible threats to the genetic integrity of local wild salmon stocks. Ill MARINE MAMMAL COMMISSION — Annual Report for 1995 As noted earlier, the 1994 amendments to the Marine Mammal Protection Act called on the Secre- tary of Commerce to establish a task force to assess possible means for minimizing the impacts of the pinniped populations on the salmon aquaculture industry in the Gulf of Maine. The amendments directed the Secretary to report to Congress no later than 30 April 1996 describing recommended alterna- tives for mitigating damaging interactions. Following consultations with the Commission and others, the National Marine Fisheries Service in January 1995 established a seven-member task force made up of scientists and representatives of the aquaculture industry and the environmental communi- ty. The task force met three times in 1995, visited representative aquaculture sites, and met with aquacul- ture operators in the region. The task force report is expected to be completed and made available for public comment early in 1996. The growing populations of harbor and gray seals in the Gulf of Maine also could affect and be affected by other fisheries in the area. As noted in the previ- ous annual report, the Commission wrote to the National Marine Fisheries Service on 19 December 1994 to call attention to this possibility. The Com- mission pointed out the many uncertainties concerning the diets, feeding habits, and foraging ranges of harbor seals and gray seals and uncertainties as to how pinniped predation may affect the recovery and maintenance of important finfish stocks in the New England area. As a first step toward anticipating possible pinniped-fishery conflicts and ensuring that they are addressed in ecologically and economically sound ways, the Commission recommended that the Service assess available information to determine (1) the types of conflicts likely to arise from the continu- ing growth of gray seal and harbor seal populations in the region, (2) when and where such conflicts are apt to arise, (3) additional information needed to make sound judgments concerning probable cause-effect relationships, (4) the research and monitoring pro- grams that would be required to obtain the needed information, and (5) how potential conflicts might best be avoided. The Service responded by letter of 13 February 1995, noting that the 1994 Marine Mammal Protection Act amendments had directed the Service to convene workshops or task forces to examine possible conflicts on both coasts and to report the findings to Congress. It indicated that the Service had initiated the congres- sionally mandated assessments and that it believed these assessments would address the Commission's concerns. On a related matter, the New England Aquarium convened a forum on 14-15 June 1995 to discuss issues concerning interactions between commercial fisheries and the growing pinniped populations in the Gulf of Maine. Participants included representatives of the Commission, the National Marine Fisheries Service, other Federal agencies, the academic commu- nity, the fishing industry, and environmental groups. The forum proceedings, published by the New Eng- land Aquarium in September 1995, provide a thor- ough assessment of the various issues and how they might be approached. [The forum proceedings, titled "Pinniped Populations in [the] Gulf of Maine: Status, Issues, and Manage- ment, " can be obtained from the New England Aquar- ium, Central Wharf, Boston, Massachusetts 02110]. Investigation of Possible Pinniped Impacts on Endangered West Coast Salmonid Stocks The 1994 Marine Mammal Protection Act amend- ments directed the Secretary of Commerce to investi- gate whether California sea lions and Pacific harbor seals are having significant negative impacts on the recovery of salmonid stocks that are listed or are candidates for listing under the Endangered Species Act. In addition, the Secretary is to determine whether these pinnipeds are having broad impacts on the coastal ecosystems of Washington, Oregon, and California. A report on the results of the investigation was to be completed by 1 October 1995. As a first step in the required investigation, the Service constituted a working group to compile and evaluate existing data. At the end of 1995 it was the Commission's understanding that the working group had prepared a draft report, but that the report would not be completed until sometime early in 1996. 112 Chapter IV — Marine Mammal-Fisheries Interactions The Gulf of Maine Ecosystem The 1994 amendments to the Marine Mammal Protection Act added a new section 1 10(c) requiring the Secretary of Commerce to convene a workshop by 30 April 1995 to assess human-caused factors affect- ing the health and stability of the Gulf of Maine ecosystem of which marine mammals are a part. Organization and planning of the workshop was to be done in consultation with the Marine Mammal Com- mission, the adjacent coastal states, individuals with expertise in marine mammal biology and ecology, representatives of environmental organizations and the fishing industry, and other appropriate persons. The Secretary was directed to report to Congress on or before 31 December 1995 describing the results of the workshop and measures proposed or recommended to restore or maintain the health and stability of the Gulf of Maine marine ecosystem and its key components. Responsibility for the workshop was assigned to the National Marine Fisheries Service's Northeast Fisher- ies Science Center, which in September 1994 estab- lished a steering committee to help plan the workshop. The steering committee was composed of relevant experts, including a Marine Mammal Commission representative. The Regional Association for Re- search on the Gulf of Maine, headquartered at Dart- mouth College, Hanover, New Hampshire, was contracted to convene the workshop. Because of the broad range and complexity of relevant topics, it was not possible to complete the preparatory work and hold the workshop by 30 April 1995, as specified in the amendments. On 3 May 1995 a planning meeting was held at the Woods Hole Oceanographic Institution, Woods Hole, Massachu- setts. Participants included representatives of the Service, the Commission, the Environmental Protec- tion Agency, the New England coastal states, the fishing industry, the academic community, and the environmental community. Following the meeting, the Northeast Fisheries Science Center drafted a workshop prospectus based on input from the steering committee and the planning meeting participants. The draft prospectus was forwarded to the Marine Mammal Commission on 13 July 1995. The Commis- sion, in consultation with its Committee of Scientific Advisors, reviewed the draft and forwarded its com- ments to the National Marine Fisheries Service on 1 August 1995. The Commission noted that there appeared to be inconsistencies between the workshop objective and the terms of reference described in the prospectus. The prospectus indicated that the work- shop objective was to assess human-caused factors affecting the Gulf of Maine and to recommend a program of research and management to restore or maintain the health and stability of the Gulf. Howev- er, the proposed workshop terms of reference indicat- ed that the principal objective was to "develop a conceptual model of the Gulf of Maine that would provide a way forward to a longer term ecosystem- based management regime." In its comments the Commission noted that a conceptual ecosystem model could be used to help structure and focus the workshop. It suggested that at least a first iteration of a conceptual model, showing the key components and factors affecting the Gulf of Maine ecosystem, be developed and provided to participants in advance of the workshop. The Com- mission also suggested ways that the workshop terms of reference could be reformulated to make them more useful for structuring the workshop. The draft prospectus indicated that much of the first day of the workshop would be devoted to presentation of background papers or issue papers. However, the draft provided no indication of the expected content of the papers. To enable it to comment substantively on this aspect of the workshop, the Commission asked to be advised of at least the principal points expected to be addressed in the papers. The Commission also noted that the second day of the workshop would be devoted to meetings of three small working groups, but that the draft prospectus did not provide the terms of reference for the working groups. Likewise, the prospectus did not indicate the individuals expected to make up the working groups. The Commission recommended