MARINE MAMMAL COMMISSION — Annual Report for 1992 
the Service expand the Federal Register notice to (1) 
assess present and foreseeable threats to areas of 
special biological importance to the species; (2) re- 
view all biological opinions issued pursuant to section 
7 of the Endangered Species Act to determine how 
delisting or downlisting gray whales might affect 
implementation of reasonable alternatives or other 
conservation measures; and (3) describe specific 
actions the Service would take to ensure that human 
activities do not damage or degrade habitat essential 
to the population’s survival. 
On 22 November 1991 the National Marine Fisher- 
ies Service published a proposed rule in the Federal 
Register to remove the eastern North Pacific popula- 
tion of gray whales from the List of Endangered and 
Threatened Wildlife. As required by the Endangered 
Species Act, the Service assessed five factors in 
determining whether the population should remain 
listed as endangered, be downlisted to threatened, or 
be removed from the list completely. Those factors 
are (1) the present or threatened destruction, modifica- 
tion, or curtailment of the species’ or range; (2) over- 
utilization for commercial, scientific, or educational 
purposes; (3) disease or predation; (4) the inadequacy 
of existing regulatory mechanisms; and (5) other 
factors affecting the species’ continued existence. 
In its assessment, the Service determined that the 
eastern North Pacific gray whale population has 
recovered to near or above its estimated pre-exploita- 
tion population size and is probably continuing to 
increase; a number of studies since 1984 suggest that 
impacts from oil and gas activities are not likely to 
jeopardize the continued existence of the population; 
and the population was neither in danger of extinction 
nor likely to become endangered again within the 
foreseeable future. 
In a letter dated 15 May 1992 the Commission, in 
consultation with its Committee of Scientific Advisors 
on Marine Mammals, commented on the Service’s 
proposed rule. The Commission concurred that 
significant progress toward recovery had been made, 
but questioned whether delisting was justified. As a 
threshold matter, the Commission noted that there was 
no conclusive evidence that the eastern and western 
North Pacific gray whale stocks are discrete, repro- 
ductively isolated populations and thus should be 
treated as separate entities for listing purposes. The 
Commission also noted that, while the eastern Pacific 
stock may be at or near pre-exploitation levels, it 
continues to face threats, particularly to critical 
feeding areas, breeding areas, and migratory corri- 
dors. In this context, the Commission pointed out 
that, with little analysis or supporting documentation, 
the Service had concluded that the major gray whale 
calving lagoons in Baja California, Mexico and the 
feeding grounds off Alaska were sufficiently protected 
by Mexican and U.S. law. 
The Commission also noted that the Service, in 
1983 and 1984, had issued jeopardy biological opin- 
ions for five proposed oil and gas lease sales in the 
Bering and Chukchi Seas, but that the proposed rule 
did not provide information or analyses to support the 
conclusion that the situation had changed. In addi- 
tion, the Commission noted that habitat degradation 
was the principal current threat to the population and 
that essential habitats, as well as population numbers, 
should be monitored following delisting to verify that 
the action was appropriate. In this regard, the Com- 
mission noted that the Service, in its 25 November 
1991 reply to its comments on the draft proposed rule 
discussed earlier, had advised the Commission that 
“because of limited funding and critical needs else- 
where, monitoring will likely be limited to biennial 
surveys to monitor trends in abundance.” 
The Commission recommended that, rather than 
delist the eastern North Pacific gray whale population, 
the Service downlist it to threatened status unless it 
could provide more compelling support for the conclu- 
sions that (1) the western and eastern North Pacific 
populations are independent; (2) habitat degradation 
and destruction do not present a significant threat to 
survival of the population; (3) the jeopardy biological 
opinions issued for gray whales are no longer valid; 
(4) programs necessary to effectively assess and 
monitor habitat as well as population status and trends 
throughout the range of the species have been identi- 
fied and will be implemented; and (5) arrangements 
have been made with other nations sufficient to be 
confident that gray whales and essential gray whale 
habitat will be protected if delisting occurs. 
In a letter dated 30 December 1992, the Service 
responded to the Commission’s recommendations and 
