MARINE MAMMAL COMMISSION - Annual Report for 1998 



To help resolve action on the petition and pro- 

 posed rule and in light of the elapsed time since the 

 previous comment period, the Service published a 

 Federal Register notice on 22 October 1998 reviewing 

 new information and developments bearing on the 

 proposed action since 1993 and reopening the com- 

 ment period. In this regard, the Commission's 8 

 December 1998 letter to the Service noted that by- 

 catch levels have remained several times higher than 

 the potential biological removal level since 1993 and, 

 in the Commission's view, it seemed doubtful that 

 actions currently proposed would reduce bycatch 

 below that level. Even if the Service's plan is suc- 

 cessful in reducing bycatch to levels below the poten- 

 tial biological removal level, the Commission noted 

 that it could take several years of successful manage- 

 ment for the stock to recover from past decades of 

 unsustainable bycatch levels. Therefore, the Commis- 

 sion recommended that the Service announce an intent 

 to proceed with listing the Gulf of Maine harbor 

 porpoise stock as threatened unless measures adopted 

 under the take reduction plan successfully reduce 

 bycatch levels to less than the potential biological 

 removal level. 



The Commission also recommended that the 

 Service keep the population's status under close 

 review and continue to improve information on the 

 stock's abundance and trends by (1) completing the 

 planned population survey scheduled for the summer 

 of 1999; (2) developing a correction factor to account 

 for ship avoidance behavior by harbor porpoises 

 during population surveys; (3) conducting a retrospec- 

 tive analysis of past bycatch levels to account for 

 harbor porpoise bycatch in areas, such as the mid- 

 Atlantic region and the area south of Cape Cod, that 

 were not previously considered because of limited data 

 on local bycatch rates; (4) developing a harbor por- 

 poise population model using the best available 

 information on key biological parameters to assess 

 population status and trends; and (5) conducting a 

 population viability analysis based on the analysis of 

 population size and trends to determine the probability 

 of extinction. 



At the end of 1998 the Service expected to 

 announce a decision regarding its listing proposal in 

 early January 1999. 



Litigation 



After efforts to persuade the National Marine 

 Fisheries Service to adopt additional protective mea- 

 sures for harbor porpoises proved unsuccessful, the 

 Center for Marine Conservation, the Humane Society 

 of the United States, and the International Wildlife 

 Coalition filed suit in U.S. district court on 21 August 

 1998 to compel the Service to implement such mea- 

 sures (Center for Marine Conservation v. Daley). The 

 plaintiffs alleged that the Service had violated the 

 Endangered Species Act by failing to take final action 

 on its proposed rule to list harbor porpoises as threat- 

 ened within the prescribed timeframe. They also 

 claimed that the Service had violated the Marine 

 Mammal Protection Act by failing to publish a take 

 reduction plan by 1 April 1997 that would reduce the 

 incidental mortality and serious injury of harbor 

 porpoises to below the stock's potential biological 

 removal level within six months. 



The plaintiffs filed a motion for summary judg- 

 ment on 29 September 1998, but before the case could 

 be argued, the parties worked out a settlement. Under 

 the settlement agreement, approved by the court on 2 

 November 1998, the National Marine Fisheries 

 Service committed to issuing a final take reduction 

 plan for the Gulf of Maine harbor porpoise population 

 by 1 December 1998. The Service agreed that, if 

 pingers are required to be deployed off New England 

 during December under the plan, they would be 

 required immediately in coastal waters off northeast- 

 ern Massachusetts, Rhode Island, and southern Maine, 

 within 7 days in offshore waters of the Gulf of Maine, 

 and within 15 days in all other New England fishing 

 areas. All other elements of the plan were to take 

 effect by 1 January 1999. 



The parties also agreed to a schedule for complet- 

 ing the listing process under the Endangered Species 

 Act. The Service committed to issue a final determi- 

 nation on the listing proposal by 4 January 1999. In 

 the event that the Service does not list the harbor 

 porpoise, it will undertake and, by 31 March 2000, 

 complete a 90-day review of the status of the Gulf of 

 Maine harbor porpoise stock. 



The defendants also agreed to provide information 

 on harbor porpoise incidental take levels for 1998 and 



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