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Your Questions About the New Whale Rules

On August 31, the NMFS published the final rule amending the Atlantic Large Whale Take Reduction Plan, commonly referred to as the whale rules.

What is the final rule? The final rule is a modification to the existing whale plan to reduce risk by at least 60%. This risk reduction is on top of what has been accomplished through previous whale rules. It is implemented under the Marine Mammal Protection Act. The final rule is the first phase of a 10-year plan included in the biological opinion released by the National Marine Fisheries Service (NMFS) in May, which requires the lobster fishery to reduce risk by 98% by 2030. Future phases include another 60% risk reduction in 2025 and additional 87% risk reduction in 2020. The biological opinion was issued under the Endangered Species Act and NMFS must meet this requirement to continue to permit the federal waters lobster fishery.

How does the final whale rule reduce risk to right whales in Maine? The final rule achieves the required risk reduction by 1) removing rope from the water through minimum trap per trawl requirements, 2) reducing the co-occurrence of right whales and buoy lines in areas of high risk to right whales through seasonal closures, 3) reducing the breaking strength of all remaining buoy lines by requiring the insertion of 1,700-pound weak points in the buoy lines. The final rule also mandates a new gear marking scheme to distinguish buoy lines fished by each state and in Area 3 with a unique color requirement. It also differentiates buoy lines fished in state versus federal waters by requiring all federal waters buoy lines to have a second set of green marks.

How much risk reduction does the rule achieve? NMFS estimates that the final whale rule achieves a risk reduction of 69% to 73%. This risk reduction includes a 7% reduction of risk from n rope through trawling up, a 65% reduction in the co-occurrence of right whales and buoy lines through closures, a 9% reduction due to the mean strength of buoy lines and a 17% reduction of risk through weakening endlines. This overall risk reduction includes credit for the Massachusetts Restricted Area, which was established in 2014 and expanded to its current size in 2015. If credit for this closure is excluded, the overall risk reduction of new measures in the final rule is 60% and the reduction in co-occurrence from new closures is 54%. NMFS estimates that the LMA1 closure reduces co-occurrence by 6.5% and removes approximately 1,100 buoy lines in October, 1,300 in November, 1,425 in December, and 1,725 in January.

What is the implementation date for the new whale rules? Fishing gear modifications including trawling up, weak point insertions, and gear marking are effective May 1,2022. The closure areas are effective October 18, 2021.

Does the final rule include the conservation equivalency proposals submitted by Maine’s Lobster Zone Councils? Yes, for the most part. The final rule fully adopts the zone councils’ conservation equivalency proposals for trawling up and weak point requirements out to the 12-mile line. However, NMFS did not accept the conservation equivalency proposals for gear fished outside of 12 miles. In these waters a minimum of 25 traps per trawl and 1 weak insert one-third of the way down the line are required in all of Area 1. The proposals from Zones C, D, and E to fish 20 trap trawls with two weak inserts in the buoy line outside of 12 miles was rejected. NMFS also accepted Zone A’s proposal to split the zone into “Zone A east” and “Zone A west.” The new boundary runs through Seal Cove buoy from 44°8' N lat., 67°18.00' W long. due north along the 67°18.00' W long. line to Cross Island.

Do the new measures in the final rule apply to all Maine lobstermen? Yes, the gear marking and weak point requirements will be required by all Maine lobstermen. However, the new trawling up requirement do not impact gear fished inside the exemption line.

  1. Exempt waters. The only change for gear set from the beach to the exemption line is that buoy lines must be rigged with one weak insert. There are no trawling up requirements in this area and no changes to gear marking for lobstermen who are compliant with the DMR’s purple marking implemented in September 2020.

  2. Sliver (whale line to 3-mile line). Gear fished in Maine’s non-exempt state waters will adhere to the same requirements for weak points as gear fished in Maine’s exempt state waters. Gear marking is also the same, with the exception that the 6” green mark is no longer required at the top. Gear set in Zones A, B, F and G must fish a minimum of 3 traps per trawl while Zones C, D, E can continue to fish pairs.

  3. Federal waters. Gear fished in federal waters must be rigged with a minimum number of traps per trawl and include weak insertions in all buoy lines. This requirement varies by lobster zone and distance from shore. Federal waters lobstermen must also adhere to an expanded gear marking requirement which replaces the 6” green mark at the top of the line with 4 one-foot green marks to be located within 6” of each purple mark.

  4. Pocket Waters. Under the federal whale rules, Maine’s pocket waters are treated as state waters. Lobster gear fished in Maine’s pocket waters should adhere to the trawling up, weak point and gear marking measures required for Maine’s non-exempt (sliver) state waters for each lobster zone.

  5. Portion of Zone G exempt waters that are outside the state waters line. The portion of Zone G’s exempt waters that fall outside state waters (roughly from Cape Porpoise Whistler to Murray Rock off York) are exempt from trawling up measures. However, gear fished in this area must comply with gear marking and weak point measures as required for federal waters.

What are the new trawling up requirements?

  1. In Maine’s exempt waters, there are no trawling up requirements.

  2. In the sliver (non-exempt state waters), there are no changes to the trawling up requirements for Zones C, D and E, which can continue to fish pairs. The minimum traps per trawl for gear fished in the sliver in Zones A (east and west), B, F and G is 3 traps per trawl.

  3. From 3 to 6 miles, Zones B must fish a minimum of 5 traps per trawl with one endline; Zones C, D, E, F and G must fish a minimum of 10 traps per trawl with 2 endlines (or 5’s with one endline); Zone A east must fish a minimum 20 traps per trawl with 2 endlines (or 10’s with one endline); and Zone A west must fish a minimum of 8 traps per trawl with 2 endlines (or 4’s with one endline).

  4. From 6 to 12 miles, Zones B, D, E and F must fish a minimum of 10 traps per trawl with one endline (or 5’s with one endline); Zones A east, C and G must fish a minimum 20 traps per trawl with 2 endlines (or 10’s with one endline); and Zone A west must fish a minimum of 15 traps per trawl with 2 endlines (or 8’s with one endline).

  5. Beyond 12 miles, all gear must be fished with a minimum of 25 traps per trawl.

What are the new weak point requirements? All lobster buoy lines fished in Maine’s state and federal waters are required to include 1,700-pound weak points or weak rope insertions that contrast with the color of the buoy line.

  1. In state waters, all buoy lines must be rigged with one weak insertion halfway down the line.

  2. In the federal waters of Zone A east, Zone G, and all lobster zones outside of 12 miles, all buoy lines must be rigged with one weak insertion one-third of the way down the line.

  3. In the federal waters of Zone A west, B, C, D, E and F from 3 to 12 miles, all buoy lines must be rigged with two weak insertions located one-quarter and halfway down the line.

Alternatively, approved rope that breaks at 1,700 pounds can be fished for the portion of line above the lowest weak point. For example, if a weak insert is required one-third of the way down the line, 1,700-pound weak rope can be fished on the top one-third of the buoy line.

NMFS approved an "in-line weak link". Prototypes are being manufactured by Seaside in Warren, Maine.

What options do I have to weaken my buoy line? NMFS is still in the process of finalizing its list of approved options to weaken buoy lines. To date, NMFS has approved an “in-line weak link,” which is a small plastic breakaway that can be tucked into the line and runs through the hauler. NMFS has also approved two manufactured 1,700-pound ropes made by Rock Mount Cordage (www.rmcord.com) and the “south shore sleeve” manufactured by Nova Braid. NMFS also lists the lazy or 4-tuck splice, the cut splice with 3 tucks, the end or butt splice, and the eye loop splice on its website. NMFS has not yet determined if 5/16” rope will be approved for use as weak rope. It is still reviewing the list of knots (sheet bend with loop or eye splice and lazy splice) tested by Maine DMR. NMFS expects to make a decision on these in November. Check the NMFS website to see the latest list of approved weak inserts.

I still have questions about weak inserts. Who can I call? If you have questions about approved methods to weaken buoy lines, contact a NMFS gear specialist: John Higgins, 207-610-3282 or john.higgins@noaa.gov; Rob Martin, 617-710-6322 or robert.martin@noaa.gov

Do I still need my 600-pound break away below the buoy? No, the 600-pound breakaway is no longer required. However, you can continue to fish with it if you choose.

What are the new gear marking requirements? State waters (exempt and non-exempt): The gear marking requirement adopted by Maine in September 2020 requiring 3 purple marks remains in place. The marks are a 36” purple mark within the top two fathom of the line, a 12” mark midway and another at the bottom of the line. In exempt waters, the exception allows buoy lines shorter than 100 feet in length to be marked with 2 purple marks. In the sliver (non-exempt waters), this relaxes the gear marking requirements for buoy lines from 4 purple marks to 3 purple marks, and no longer requires the additional green mark at the top of the line. However, it is anticipated that buoy lines that are shorter than 100 feet will be required to have 3 purple marks. In federal waters, buoy lines must be marked with four purple marks to include a 36” mark within two fathoms of the buoy, and one 12” mark located at the top of the buoy line below the surface system, in the middle of the line and at the bottom of the line. In addition, buoy lines must also have four 12” green marks, each located within 6” of a purple mark.

What is the LMA 1 Seasonal Restricted Area? The LMA 1 Seasonal Restricted Area is a 967-square-mile closure in the Gulf of Maine from October through the end of January. All lobster gear must be removed from the area by October 18, 2021. Gear cannot be reset in the area until February 1, 2022. As a seasonal restricted area, it is closed to fishing lobster gear that uses traditional buoy lines. Lobstermen who wish to fish ropeless gear that meets criteria set by NMFS may apply for an Exempted Fishing Permit during the closure months. Lobstermen must also obtain a special permit from Maine Department of Marine Resources to set gear in this area.

Where is the LMA 1 Restricted Area? The Restricted Area is in offshore LMA 1, spanning lobster zones C, D, and E, running along the Area 1/3 line. It is roughly 97 miles long by 10 miles deep with the following boundaries: -69° 36.77’ W/43° 06.00’ N -68° 21.60’ W/43° 44.00’ N -68° 17.27’ W/43° 32.68’ N -69° 32.16’ W/42° 53.52’ N

Where can lobstermen move gear with buoy lines? Lobstermen who hold only an Area 1 federal permit must fish that gear in Area 1. Gear displaced from the LMA1 closure cannot be shifted offshore into Area 3. Maine regulations require that lobstermen fish only a maximum of 49% of their traps in another zone. A second zone tag must be affixed to traps when fishing those traps in a zone other than the declared lobster zone.

Can I set my traps in the closure without buoy lines? NMFS will allow “ropeless” gear to be fished in that area, but only if your proposed fishing method meets specific requirements and you successfully apply for and obtain an Exempted Fishing Permit (EFP) from NMFS. You must also obtain a special permit from Maine DMR. Ropeless fishing refers to fixed gear fishing without the use of persistent buoy lines to mark and retrieve gear. It can include the use of timed or remotely controlled technology to release floating devices or stored buoy lines to retrieve trawls.

What requirements do I have to meet to apply to NMFS to fish ropeless gear in LMA1? NMFS will require any lobstermen who wants to fish ropeless gear within the LMA 1 Restricted Area to obtain an Exempted Fishing Permit (EFP). NMFS has established several criteria which must be met to be eligible for an EFP:

  1. Use only acoustic release systems. Using these systems, fishermen must be close to the gear in order for the signal to be received and the line released, which minimizes the time the line spends in the water column unsupervised.

  2. Use technology that has been tested elsewhere under comparable environmental conditions.

  3. Have previous experience using these new technologies.

  4. Coordinate with other EFP holders and the mobile gear fleet to minimize gear conflicts.

  5. May be subject to additional reporting or monitoring requirements for enforcement purposes

NMFS anticipates that through 2025, ropeless fishing in seasonal restricted areas is likely to be done primarily by collaborators borrowing ropeless gear from NMFS. NMFS expects to have up to 33 vessels fishing ten ropeless trawls by 2025. This would include 300 ropeless units and enough deck controllers for about 30 vessels, as well as technology to support adjacent mobile fishing vessels. Lobstermen interested in applying for an EFP should contact the Greater Atlantic Regional Fisheries Office (GARFO) at (978) 281-9315 or email nmfs.gar.researchpermit@noaa.gov. The state of Maine also has regulations that require a lobsterman to obtain a special permit from the state to fish gear without buoy lines.

How many Maine lobstermen will be impacted by this closure? NMFS estimated that 62 lobstermen will be displaced as a result of the LMA 1 closure, and an additional 62 lobstermen will be impacted when displaced vessels relocate their gear. NMFS estimated the economic impact of this closure to range from $563,000 to $1.2 million.

What conservation measures are required for other states and LMA 3 under the final rule? While measures vary by state and area, all northeast lobstermen are required to adopt measures to reduce rope in the water through trawling up, adding weak points to buoy lines and adopting expanded and unique gear marking. See summary table on page 8 for breakdown of measures by area.

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