Chapter II — Species of Special Concern 



Based on its review, the Commission wrote to the 

 Service on 8 December 1998 to provide further 

 comments and recommendations on implementing the 

 harbor porpoise take reduction plan. In its letter, the 

 Commission noted that it was clear that the Service 

 was devoting a high level of attention to the issue and 

 the Commission commended the Service for the steps 

 it was taking to implement the plan. 



The Commission remained concerned, however, 

 that the plan was based on low bycatch estimates for 

 the mid-Atlantic area and overly optimistic expecta- 

 tions for bycatch reduction measures. For example, 

 the Service provided a new 1997 estimate of bycatch 

 for the mid-Atlantic region of 572 porpoises, which 

 was more than twice the estimate used to develop the 

 take reduction plan (i.e., an average of 207 for 1995 

 and 1996). As noted above, the 1997 estimate, based 

 on improved observer data, is likely more accurate. 

 If the Service's assumed bycatch reduction of 79 

 percent under the plan's measures is applied to the 

 1997 figure, then the predicted bycatch level for the 

 mid-Atlantic region would be more than twice that 

 projected by the Service (i.e., 120 porpoises rather 

 than 50 porpoises). In addition, for some times and 

 areas, information provided by the Service indicated 

 that bycatch rate reductions during commercial fishing 

 operations using pingers have been substantially less 

 than the 80 percent level assumed in the Service's 

 plan. Therefore, in the Commission's 8 December 

 letter it restated its belief that take reduction measures 

 should be strengthened and it referenced recommenda- 

 tions in this regard that were set forth in its 13 

 October 1998 letter. 



In addition, because of the increasing reliance on 

 pingers to reduce bycatch, the Commission recom- 

 mended that the Service undertake additional research 

 on pingers to improve understanding of the factors, 

 such as the frequencies, frequency variations, and 

 harmonics, that serve to prevent harbor porpoises 

 from being caught. It also recommended that the 

 Service determine how pinger sound characteristics 

 and associated bycatch rates change over time as 

 battery power declines. Also, to speed progress in 

 designing pingers that are easier to use and require 

 less maintenance, the Commission recommended that 

 the Service (1) consult with fishermen and scientists 

 experienced in using pingers to identify ways of 



making pingers more reliable and easier to use, and 

 (2) as warranted, contract with a qualified engineer to 

 design an improved prototype pinger incorporating 

 desired features. 



Proposal To List Gulf of Maine 

 Harbor Porpoise as Threatened 



In September 1991 the Sierra Club Legal Defense 

 Fund, on behalf of 13 environmental organizations, 

 petitioned the National Marine Fisheries Service to list 

 the Gulf of Maine harbor porpoise stock as threatened 

 under the Endangered Species Act. Shortly thereafter, 

 the Service published a Federal Register notice 

 announcing receipt of the petition and requesting 

 comments and related information on the action. In 

 considering the petition and available information, the 

 Service determined that bycatch in the gillnet fisheries 

 was exceeding sustainable levels and that the popula- 

 tion was likely to become endangered in the foresee- 

 able future if bycatch levels were not reduced. At the 

 time no measures were in place to reduce porpoise 

 bycatch levels. Therefore, on 7 January 1993 the 

 Service published a proposed rule in the Federal 

 Register to list the Gulf of Maine harbor porpoise as 

 threatened. Shortly thereafter, the New England 

 Fishery Management Council began developing 

 measures to reduce harbor porpoise bycatch, and in 

 1994 amendments to the Marine Mammal Protection 

 Act set in motion steps to develop take reduction 

 plans. In light of these efforts, the Service deferred 

 final action on its proposal. 



As noted above, initial actions proved insufficient 

 and steps were taken to strengthen them. Although 

 incidental take levels remained high and the Endan- 

 gered Species Act requires action to be taken on a 

 petitioned listing within one year, the Service contin- 

 ued to defer action on its proposed rule. As noted 

 below, a lawsuit was filed on 21 August 1998 by the 

 Center for Marine Conservation, the Humane Society 

 of the United States, and the International Wildlife 

 Coalition alleging a number of violations by the 

 National Marine Fisheries Service with regard to its 

 efforts to reduce harbor porpoise bycatch. The 

 Service's failure to take final action on the petition to 

 list harbor porpoises as threatened was among the 

 violations cited. 



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