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90% Risk Reduction Goal Mandated by NMFS Timing to be set by Judge

There’s a lot of speculation along the coast right now about coming revisions to the Atlantic Large Whale Take Reduction Plan, commonly called the whale rules. Unfortunately, many legal aspects pertaining to two lawsuits have not yet been settled. What we do know, as of publication date, is that NMFS is moving full steam ahead to increase the risk reduction goal for federal fixed gear fisheries, including the lobster fishery, to 90% from the previous 60%. We offer the following to clarify what the heck is going on.

Why do we need to reduce risk by 90%?

NMFS set a risk reduction goal of 60% for the lobster industry in 2019, which was achieved through implementation of the amended whale rules in May 2022. NMFS based the risk reduction figure on observed right whale mortalities from entanglement. The agency assigned half of those mortalities to the U.S. and half to Canada, and then calculated the percentage of risk reduction necessary to reduce that number to below Potential Biological Removal rate (PBR) of 0.9 whales annually.

Since then, NMFS updated its data on the lobster fishery and right whales, which led to revision of several of its assumptions. NMFS stated that due to the continued decline of the right whale population, PBR has been reduced to 0.7. Therefore, less than one right whale can die each year from entanglement in U.S. fishing gear.

In November 2021, NMFS increased the risk reduction goal for the lobster fishery from 60% to 90%. The 90% risk reduction is based on total right whale deaths, which includes all observed deaths and cryptic mortality. The total observed right whale deaths from 2015-2019 equal 157, of which 40.5 were observed and 116.5 were assumed or unobserved cryptic deaths. NMFS then attributed half of these to the U.S. and half to Canada, and then attributed 70% of the U.S. deaths to entanglement. The result of this math is that on average, 11 right whale deaths are attributed to U.S. entanglement annually. This requires a 90% reduction within the lobster and other fixed gear fisheries to get this number below PBR of 0.7.

NMFS also revised its estimate of how much risk reduction the lobster fishery achieved from the new measures begun in the May 2022, downgrading it to 50%.

What changes does the lobster industry need to make to achieve a 90% risk reduction?

It is impossible to answer this question because NMFS has just started the rulemaking. According to NMFS, the “toolbox” to achieve this level of risk reduction includes removing rope from the water, further weakening the remaining rope, and closures. NMFS has stated that ropeless fishing will not be commercially viable by the time these rules are implemented, and that the federal rulemaking process is not flexible enough to accommodate an effective dynamic management program. NMFS has presented two ‘strawman’ illustrations to show the magnitude of changes needed to achieve a 90% risk reduction. During the September Take Reduction Team (TRT) meeting, NMFS presented estimates indicating that a trap cap of approximately 275 would take 50% of vertical lines out of the water.

Example 1 = 89% risk reduction

Example 2 = 94% risk reduction

When will new rules to reach 90% risk reduction be implemented?

Based on the Court filings to date, the new whale rule could be finalized as early as summer 2023 because the environmental groups have asked the Court to give NMFS just six months to do so. Or it could be as late as December 2024 because NMFS has told the Court it needs 26 months to complete the rulemaking. However, we have no way of knowing the timeline until Judge Boasberg issues his Order on Remedy. Since remedy filings, including the MLA’s, will be complete in late October, we would expect to see his Order in November or December.

These Court filings on remedy are taking place in the case brought by three national environmental groups (CBD vs Raimondo). In July the Judge ruled that the 2021 Final Whale Rule and Biological Opinion are both invalid. Fortunately, the Judge allowed the lobster fishery to continue to operate while the Court hears from the parties on how to fix the legal flaws.

Could the federal fishery be shut down?

It’s hard to say at this point.

The environmental organizations have asked for the Judge to send the Final Whale Rule and Biological Opinion back to NMFS and order the agency to fix the legal flaws and issue a new Final Rule and a new Biological Opinion, including a valid Incidental Take Statement (ITS), within six months.

NMFS advised the Judge to leave the new Biological Opinion in place and send only the Incidental Take Statement (ITS) back to the agency. An ITS is required for NMFS to permit the federal lobster fishery. According the NMFS, to create an ITS NMFS must first “make a negligible impact determination (NID) for federal fixed-gear fisheries pursuant to the MMPA (Marine Mammal Protection Act), which would allow the agency to issue an ITS….”

NMFS continues, “But to be clear, the current NID level is 0.095 M/SI (mortality or serious injury) per year–far lower than PBR. In other words, NMFS would have to find that no more than one M/SI will occur in the federal fisheries every 11 years to reach NID.”

NMFS told the Judge that invalidating the 2021 Biological Opinion as recom¬mended by the environmental organizations “– with no feasible means of achieving the NID standard in an operating fishery–would likely require the closure of the federal lobster fishery for eight years to meet the NID standard.” NMFS has not included a valid ITS in past Biological Opinions because it was unable to meet the NID standard.

To this point the Judge earlier wrote, “The agency argues that because the fish¬ery would not have been able to proceed had they complied with the ESA, NMFS was justified in abandoning the Act’s directives altogether. The Service and the statute pass each other like ships in the night…. Defendants cannot rewrite the statute just because they do not agree with its consequences.” The Judge is considering how to fix the flawed Incidental Take Statement as part of the remedy phase of this case. All briefs will be filed by late October; the Judge likely will make his decision before the end of the year.

What can we do to stop this?

The Marine Mammal Protection Act and the Endangered Species Act combined create a standard that sets a course for the lobster fishery to be decimated.

The MLA sued NMFS because we believe that it is misconstruing the science, which makes complying with these laws even harder. In September, the Judge ruled against MLA, deferring to NMFS on all counts without disputing MLA’s claims.

Rather than consider the substance of how NMFS misused the science, the Judge instead stated that NMFS “reasonably explained” its decisions and “that is all that the Administrative Procedure Act requires.” Therefore, “the Court holds that the challenged portions of the BiOp survive under the deferential arbitrary-and-capricious standard of review.”

The MLA does not believe that the Judge grasps the extent to which NMFS has misused and distorted the science and does not understand the devastation this decision will have on lobstermen, the industry and our coastal communities.

The MLA has appealed the Court’s decision. It will fight to block federal actions taken without credible scientific support or an evidence-based plan to protect whales from harm. If that requires appealing the case to the Supreme Court, the MLA will do so.

If MLA can get Judge Boasberg’s decision overturned, then NMFS would be required to properly use its data, with accurate assumptions, which would inevitably lead to a risk reduction figure that more truly reflects the threat posed by the fishery to right whales.

Thus the legal battle will continue.


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