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  • MLCA

Steaming Ahead - September 2021

The Final Whale Rule is finally out. The amendments to the Atlantic Large Whale Take Reduction Plan have been several years in the making. It was 2017 when NMFS first announced that the right whale population had been declining since 2010 and that we all needed to work together to help the species recover. That was also the year that the first massive die-off of right whales occurred in Canada. Two years later NMFS dropped the bomb that it would require the lobster fishery to reduce risk of gear entanglement by 60%. As it turns out, when NMFS called for all of us to work together to help the right whale population recover, what they meant was for the lobster fishery to do so. Since then the MLA has been working nearly non-stop on this issue. While there are a few things in the final rule that turned out as expected, overall I am extremely frustrated by it. NMFS adopted the majority of the conservation equivalencies proposed by Maine’s lobster zone councils, but not all of them. Zones C, D, and E had proposed going to 20-trap trawls with two weak inserts in the endline outside of 12 miles. Instead, the final rule requires all LMA 1 lobstermen fishing outside of 12 miles to fish a minimum 25-trap trawl with one weak insert in the endline. NMFS did not provide any good reasons for not adopting such commonsense measures. As you know, NMFS blindsided Maine’s lobster industry when it included the vast 967-square-mile closure in LMA 1. The closure runs the length of Zones C, D and E along the Area 3 line. This closure had not been brought up at all during the earlier scoping process for the rule. When it turned up in the Proposed Rule, the MLA offered alternative options in our comments. NMFS responded that the MLA had provided “a novel idea that could have been assessed if it had been received during scoping.” NMFS never acknowledged that the idea for the closure did not exist at that time! In early July, NMFS published the Final Environmental Impact Statement (FIES) on the rule where it first revealed what it intended to include in the Final Rule. In addition to keeping the LMA 1 closure, NMFS delivered a second punch by adopting a gear marking strategy that had not been included in the proposed rule. Maine DMR worked closely with the Maine lobster industry and NMFS to develop and implement a new gear marking strategy to differentiate Maine lobster gear with purple marks which are different from those used in other states. Maine also required that gear fished outside the exemption line be marked with a 6-inch green mark. NMFS adopted an entirely different gear marking plan in the Final Rule. Gear marking will not change for Maine lobstermen who fish in state waters, however those who fish in federal waters will be required to have four twelve-inch green marks located within six inches of each purple mark. Translation: you will likely need two full sets of endlines — one with just purple marks for state waters, and a second set with purple and green marks for federal waters. The MLA wasted no time after reading the FIES in sending written comments to NMFS outlining our strong concerns over the LMA 1 closure and the new gear marking proposal. The MLA also followed the rule to the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA), its last stop before final publication. We met with OIRA to urge them to make changes to the final rule to reduce the size and duration of the Area 1 closure, streamline the approval process for conservation equivalencies, and not make last-minute changes to Maine’s gear marking system. The MLA raised our concerns with Maine DMR and the Congressional delegation, both of which also elevated these issues with NMFS and OIRA. Needless to say, I am extremely angry by the last minute changes that NMFS has made to Maine’s gear marking system without any input from Maine lobstermen, and that the closure is much larger than it needs to be to protect right whales. DMR ran some numbers to present to OIRA which showed that reducing the size of the closure by not including Zone E during December and January would have a negligible impact (.4%) on conservation benefit to right whales. The implementation date for all of the gear-related changes is May 1, 2022, but the LMA 1 closure will be in effect for this year’s fishing season, starting in October. We have provided a table in with a summary of the measures required in the Final Rule. I know that you are not going to be happy with them. I certainly am not. This process has been extremely frustrating, but I promise you that MLA will continue to fight to improve the poor science that serves as the foundation of these rules. We will continue to work closely with our members, our legal team, the state of Maine, and the Maine delegation to keep the Maine lobster fishery from being erased. Remember, this Final Whale Rule is only Phase I of a ten-year plan to implement a 98% risk reduction in our fishery. We now know what this first 60% risk reduction means for our fishermen. We are scheduled for another 60% risk reduction in 2025, and up to an 87% risk reduction in 2030. We have a long road ahead of us, but we will continue the fight! As always, stay safe on the water.

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