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In response to recent recommendations from the Atlantic Large Whale Take Reduction Team (TRT) to reduce the risk of North Atlantic right whale entanglement in commercial trap/pot fisheries along the U.S. East Coast, the National Marine Fisheries Service (NMFS) intends to propose regulations to amend the Atlantic Large Whale Take Reduction Plan (Plan).

Overall Description of Deadline: By court order, the current Biological Opinion providing coverage to the relevant fisheries under the Endangered Species Act will be vacated on this date. NMFS aims to implement a new Biological Opinion by this date, which would consider a final rulemaking action, to provide the fisheries with the appropriate coverage.

Statement of Need:

The Marine Mammal Protection Act requires that serious injury or mortality of strategic marine mammal stocks related to incidental entanglement in U.S. commercial fisheries remain below a designated Potential Biological Removal (PBR) level. In 2017, it became apparent that the endangered North Atlantic right whale population was declining and NMFS followed the marine mammal take reduction procedures laid out in the MMPA for modifying the Atlantic Large Whale Take Reduction Plan to reduce right whale entanglements in northeast lobster and crab trap/pot fishery gear. This effort involved extensive coordination with the Atlantic Large Whale Take Reduction Team, which is composed of fishermen, scientists, conservationists, and state and federal officials from Maine to Florida. The proposed measures consider the Team’s recommendation, proposals received from New England state fishery managers and offshore lobster fishermen, input from public comment, and analyses of risk reduction and economic impacts.

Summary of the Legal Basis:

Marine Mammal Protection Act

Alternatives:

There are three alternatives being considered to regulate northeast lobster and crab trap/pot fisheries; the status quo (Alternative One) and two alternatives that would reduce entanglement risk posed by lobster and Jonah crab trap/pot fisheries in the Northeast Trap/Pot Management Region. Alternative Two would: modify existing closed areas to allow fishing without buoy lines (ropeless); implement seasonal buoy line closure areas; establish requirements (according to distance from shore) to add more traps to groundlines in order to reduce the number of buoy lines needed; require weak rope or weak insertions in all buoy lines to reduce severity of entanglements; require state-specific gear marks across all northeast waters except for in those fisheries regulated by Maine.  Alternative Three would: modify existing closed areas to allow fishing without buoy lines; analyze alternative areas of closure to buoy lines; propose a longer buoy line closure season; create a line allocation capped at 50% of the estimated buoy lines fished in 2017 for Federal waters; include gear marking throughout the buoy lines in all waters; require weak rope, rather than weak insertions (so that more buoy line would be converted to weak rope).  Alternative Two is the basis of the current proposed rule.

Anticipated Costs and Benefits:

While the proposed rule is currently pending at OIRA (at the time of this submission), the first year costs (upfront costs) of Alternative 2, which forms the basis of the current proposed rule, is about one third the costs of Alternative Three. The range of costs depends on assumptions about catch loss caused by trawling up and about whether fishermen choose to remove lines or relocate due to buoy line closures. The cumulative costs calculation is based on the assumption that the rule changes would last for six years which is the average rule-making cycle for the Plan, as well as the life cycle for vertical lines used in pots/traps fisheries. The proposed rule would benefit large whales by reducing the risk of large whale entanglement in vertical buoy lines or, if an entanglement occurs, reduce the likelihood of mortality or serious injury as required by the MMPA.

Risks:

Failure to implement a rule would violate the Marine Mammal Protection Act and the Endangered Species Act, as well as exacerbate ongoing litigation against the federal government, and various New England state governments. The North Atlantic right whale population may further decline without regulatory action to address entanglement risks both in the United States and Canada.