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In response to National Marine Fisheries Service (NFMS) request for comment on the Proposed Rule for the 2021 List of Fisheries, the Maine Lobstermen's Association (MLA) respectfully requests that the Maine state waters fishery be reclassified as Category III, and Maine federal waters fishery as Category II.

The MLA is Maine's oldest and largest fishing industry organization representing 1200 members. The MLA has been an actively engaged leader in efforts to protect endangered large whales since the inception of the Atlantic Large Whale Take Reduction Plan (TRP) in 1996. The MLA remains steadfast in its commitment to identify innovative conservation measures that both protect endangered right whales while preserving Maine's sustainable lobster fishery and the communities that depend on it.

1. NMFS has the flexibility under MMPA to categorize individual fisheries, such as the Maine lobster fishery, under the MMPA List of Fisheries

In response to MLA's request last year that the Maine lobster fishery be recategorized under the MMPA 2020 List of Fisheries, NMFS responded "that there is insufficient information to suggest that Maine's fisheries should be split from the American lobster trap/pot fisheries, because the gear used in Maine waters are not unique from other states." The MLA disagrees. The MMPA does not require that NMFS treat individual fisheries that utilize the same gear type the same, but rather provides the agency flexibility to consider a variety of criteria, such as differences in gear and fishing techniques, and the distribution of endangered stocks relative to individual fisheries.

As stated in the Federal Register Notice for this Proposed Rule (Vol 85, No 15), "Section 118 of the [Marine Mammal Protection Act] MMPA required NMFS to place all U.S. commercial fisheries into one of three categories based on the level of incidental mortality and serious injury of marine mammals occurring in that fishery," namely Category I, II or III. Under Section 118 of the MMPA, "fishery has the same meaning as in section 3 of the Magnuson Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)." Under Magnuson, "the term 'fishery' means - (A) One or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic characteristics; and (B) any fishery for such stocks."

The Maine state and federal waters lobster fisheries better meet this definition compared with the "Trap/Pot Fisheries, Northeast/Mid-Atlantic American lobster trap/pot" fishery sector currently used for the MMPA LOF classification. In 2018, the state of Maine issued 5,900 commercial lobster licenses (4830 commercial and 1095 students).

The majority in Maine are small operations fishing seasonally from May through November within state waters where right whales are rare. Only 1,275 of Maine lobstermen hold federal permits allowing them to fish in federal waters. Having access to deeper offshore waters provides these lobstermen an opportunity to execute the fishery on a year-round basis, if they choose.

The Maine state waters' lobster fishery is managed and enforced by the state of Maine. The federal waters portion of the Maine lobster fishery is managed through the Atlantic States Marine Fisheries Commission (AMSFC) as part of Lobster Management Area 1, but is subject to further regulation and enforcement by the state of Maine through the Lobster Management Policy Councils (M.R.S.A. Title 12, Sec. 6447). All of Maine's federal waters lobstermen also hold a state waters license and are subject to the "most restrictive rule." Maine's state and federal waters lobstermen must declare a lobster zone and are required to fish the majority of lobster gear in their home zone, limiting the spatial footprint of where individual lobstermen can set gear. This requirement differentiates the Maine lobster fishery from all other lobster fisheries through the Northeast and Mid-Atlantic.

2. NMFS "Trap/Pot Fisheries, Northeast/Mid-Atlantic American lobster trap/pot" fishery sector does not accurately capture marine mammal interactions and risk from each fishery

Maine's lobster fisheries (state and federal waters) are currently classified as Category I, as part of the broad "Trap/Pot Fisheries, Northeast/Mid-Atlantic American lobster trap/pot" gear sector. This designation is driven by interactions with the North Atlantic right whale. This broad fishery sector spans the Atlantic coast from Maine to the mid-Atlantic and covers numerous independently managed state waters fisheries and several federal waters fishery jurisdictions. As such, NMFS cannot accurately determine the likelihood or frequency of serious injury or mortality for these fisheries, and therefore, is challenged to adequately manage the risks posed by each fishery. The MLA understands that data on commercial fisheries interactions with right whales are imperfect, making categorization of these fisheries under MMPA a challenge.

The Maine lobster fishery is unique in comparison to other Northeast and Mid-Atlantic American lobster trap/pot fisheries. In a generic sense, all of these fisheries utilize the same gear -- lobster traps, surface systems and rope. In fact, there are many other trap/pot fisheries that also use this gear, such as Atlantic blue crab and Atlantic mixed species fisheries such as crab (red, Jonah, and rock), hagfish, finfish (black sea bass, scup, tautog, cod, haddock, pollock, redfish (ocean perch), and white hake), conch/whelk, and shrimp. As each of these fisheries are unique, the Northeast and Mid-Atlantic American lobster trap/pot fishery is far from a homogenous fishery or gear sector.

In the absence of sufficient data to properly classify all fisheries, the MMPA provides that NMFS may evaluate other factors such as "fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fishermen reports, stranding data, and the species and distribution of marine mammals in the area, or at the discretion of the Assistant Administrator for Fisheries (50 CFR 229.2)."/1

A deeper look at several of these factors reveals the immense disparity among the Northeast and Mid-Atlantic lobster fisheries, and significant differences in potential overlap with North Atlantic right whales. Differences among these various lobster fisheries include:

* Fishing Techniques - varying methods of rigging ropes (knots, splices, rope length, and scope), traps per endline (singles, pairs, triples or short, medium or long trawls), type of bottom fished (hard rocky bottom, gravel, sand, mixed substrates), oceanographic conditions (varying tides and currents), and boat, hauling gear and crew size;

* Gear Used -- size of traps, diameter of ropes, and size and number of buoys in the surface system;

* Seasons and Areas Fished -- each lobster fishery and area is highly seasonal, impacting the location and quantity of gear deployed in various months throughout the year;

* Fishermen's Observations very few Maine lobstermen have ever reported observing a North Atlantic right whale despite having spent decades on the water, while right whale sightings are commonplace among lobstermen who fish in other jurisdictions, such as areas around Cape Cod Bay; and

* Distribution of Marine Mammals in an Area - right whale distribution has changed significantly since 2010, creating new areas of overlap between right whales and fishing gear. Researchers have documented right whale distribution shifts away from Maine's lobster fishing grounds since 2010,/2 in large part due to low concentrations of Calanus finmarchicus shoreward of the 100 meter isobath./3

Even prior to this distribution shift of whales away from Maine's lobster fishing grounds, the agency wrote "...NMFS believes large whales rarely occur inside many of Maine's bays, harbors, or inlets..." and "NMFS does not believe that regulating the waters that will be exempted from the ALWTRP would have a significant benefit to large whales."/4

It is clear that the lobster fishery prosecuted close to shore in Maine is significantly different than that which occurs in offshore Lobster Management Area 3, or off of New Jersey. Similarly, the number of whales that aggregate off the coast of Maine are on orders of magnitude less than the numbers which aggregate in the waters off Nantucket, Cape Cod Bay or along the Mid-Atlantic coast. In the face of imperfect data, NMFS must fully consider these factors to better determine the likelihood or frequency of serious injury for the various lobster fisheries spanning the Maine coast.

In summary, it is clear that Maine state and federal waters lobster fisheries are unique when compared to other Northeast and Mid-Atlantic lobster fisheries, and should be individually classified under the 2021 List of Fisheries.

3. Maine's State and Federal Lobster Fisheries do not meet the Criteria of a Category I Fishery under MMPA, and should be Recategorized as Category III (state waters) and Category III (federal water) fisheries

The Federal Register provides the following explanations of the fishery categorizations as required under MMPA:

* Category I: Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50 percent of the PBR level (i.e. frequent incidental mortality and serious injury of marine mammals).

* Category II: Annual mortality and serious injury of a stock in a given fishery is greater than 1 percent and less than 50 percent of the PBR level (i.e. occasional incidental mortality and serious injury of marine mammals).

* Category III: Annual mortality and serious injury of a stock in a given fishery is less than or equal to 1 percent of the PBR level (i.e. remote likelihood of or no known incidental mortality and serious injury of marine mammals).

A fishery can be recategorized "... if no interactions are documented in the 5-year timeframe summarized in that year's LOF. For fisheries with no observer coverage and for observed fisheries with evidence indicating that undocumented interactions may be occurring (e.g., fishery has low observer coverage and stranding network data include evidence of fisheries interactions that cannot be attributed to a specific fishery) species and stocks may be retained for longer than 5 years. For these fisheries, NMFS will review the other sources of information listed above and use its discretion to decide when it is appropriate to remove a species or stock."/5

The 2019 North Atlantic right whale stock assessment report (RWSAR), which serves as the basis for the 2021 List of Fisheries, considers data from 2013 to 2017. According the RWSAR, the Potential Biological Removal for right whales is 0.8, and serious injury and mortality for commercial fisheries is 5.55. Since this exceeds PBR, NMFS must address "the impact of individual fisheries on each stock."/6

An analysis of the number of serious injury and mortality attributed to the Maine lobster fishery over this most recent five-year period is zero. In sharp contrast, there were six documented cases in Canadian trap/pot gear fisheries which do not have equivalent whale protection measures in place. There was also one case involving netting.

See table here (https://www.regulations.gov/contentStreamer?documentId=NOAA-NMFS-2020-0054-0009&attachmentNumber=1&contentType=pdf)

To look beyond the most recent five year period covered in the 2019 RWSAR, NMFS's historic entanglement data reveal that there has been only one confirmed right whale entanglement in the Maine lobster fishery, a non-serious injury, which occurred in 2002 (RW 3120). Maine lobster gear was involved in a second case in 2004 which was determined to be a secondary entanglement (RW 3346).

NMFS's historic entanglement data show records for 11 confirmed right whale entanglements in the U.S. lobster fishery from 1997 to 2018. The data show that the frequency of these entanglement incidents has decreased dramatically over the last decade. Prior to 2000, there were four reported entanglements in U.S. lobster gear; from 2000 to 2010 there were six; from 2010 to 2018 there has been only one. Of these 11 incidents, one resulted in a serious injury or mortality (RW 3107) in 2002.

It is important to note that the Atlantic Large Whale Take Reduction Plan was implemented in the late 1990's, with its most significant modifications implemented in 2009 and 2014. Maine has had excellent compliance with the measures required under the plan, and strongly believes the plan contributed significantly to the lack of documented right whale entanglements in the Maine lobster fishery. Furthermore, the plan has effectively reduced the entanglement encounters between right whales and other U.S. lobster fisheries.

There are four additional trap/pot cases that resulted in right whale serious injury or mortality for which a fishery was not determined and, therefore, for which the Maine lobster fishery cannot be completely ruled out. However, a close look at these cases reveals that the entangling gear is either no longer fished, efforts to trace registration numbers to U.S. fishery were unsuccessful, or a Maine fishery was explicitly ruled out.

* RW 3311, 2009, Unknown trap/pot -- this case involved 9/16" float rope, which is larger than rope typically fished in Maine's state or federal waters lobster fishery. Furthermore, float rope was phased out of the U.S. trap/pot fishery in 2009.

* RW 3911, 2010, Unknown trap/pot -- this case also involved float rope from a groundline system. The whale was last sighted gear-free in February 2009, and float rope was phased out in April.

* RW 4193, 2012, U.S. trap/pot -- much of the surface system was recovered from the entangling gear but could not be traced to any U.S. licensed state or federal fishery.

* RW unknown, 2014, U.S. unknown -- this whale was anchored off Nantucket; NMFS confirmed that this gear could not have originated from Maine.

Neither the state nor federal waters portions of the Maine lobster fishery meet the Category I criteria under the MMPA List of the Fisheries. The annual mortality and serious injury to right whales from the Maine lobster fishery from 2013 to 2017 is not greater than or equal to 50 percent of PBR. In fact, it is zero. Furthermore, the Maine lobster fishery has never been associated with a right whale serious injury or mortality, and the last documented interaction with the Maine lobster fishery occurred 16 years ago.

4. NMFS must consider Additional Data Sources, Particularly Recent Accounts of Right Whale Mortality in Canada

While NMFS relies on the latest U.S. marine mammal stock assessment reports to determine which marine mammal stocks are incidentally killed or injured in each commercial fishery, the agency may also review other sources of new information. However, the agency did not consider the 10 right whales that died in Canadian waters in 2019 as documented by the Marine Animal Response Society in its June 2020 report, Incident Report: North Atlantic Right Whale Mortality Event - Eastern Canada - 2019, which states, "a total of nine individual right whales were reported dead in eastern Canadian waters in 2019. An additional whale, NEA #1226 (Snake Eyes), was reported live-entangled while in Canadian waters but later is believed to have succumbed to his injuries and died upon his return to U.S. waters (see below). Thus, he represents a 10th whale which most likely either died in Canadian waters or died due to Canadian activities."/8

Four of these deaths were determined to be due to ship strikes, and one likely entanglement.

This report also notes a significant increase in right whale entanglement in Canada since 2015. The reports states that there were 45 reported incidents involving live entangled whales since 1999. This includes 25 live entanglements reported from 1999-2014, averaging 1.5 whales annually, and an additional 20 entangled or entrapped animals since 2015, a nearly three-fold increase, averaging 4.2 whales annually. From 2015 to 2018, there were 14 cases in which the fishing gear was identified; half of these were identified as snow crab fishing gear (pgs 17-18).

It is clear that the changes in the ocean environment have significantly impacted right whale distribution patterns. Right whales now rarely frequent the waters off the Maine coast, where whale protections are in place, and are spending significantly more time aggregating in Canada, where whale protection measures are still evolving. NMFS must consider the significant increase in entanglement trend in Canadian fishing gear which is in sharp contrast to the decreasing entanglement trend in Maine and other U.S. lobster gear.

Although data is limited, the fact remains that right whale entanglements in U.S. lobster gear were observed consistently prior to 2010; but are now rarely observed. Conversely, right whale entanglements in Canadian snow crab gear were not recorded prior to 2016 but have been consistently observed since then. Based on these trends, it is highly probable many of the unknown entanglements are occurring fisheries that occur outside the U.S.

5. Summary

The MLA strongly urges NMFS to reclassify the Maine state waters lobster fishery as Category III fishery since there are no documented serious injuries or mortalities with this fishery and the agency determined that regulating the waters exempt from the ALWTRP would have no significant benefit to large whales.

NMFS should also reclassify the Maine federal waters fishery as Category II. Although there are no documented serious injuries or mortalities in this fishery, the categorization may be warranted under an abundance of precaution that a future interaction could occur due to the offshore migration of right whales.

The Maine lobster fishery meets all of the criteria of Section 118 of the MMPA to be classified as its own fishery for categorization under the MMPA List of Fisheries. In the absence of complete data, NMFS has the flexibility to consider other criteria to inform the categorization of the fishery. The Maine lobster fishery is easily differentiated from other Northeast and Mid-Atlantic lobster fisheries based on its unique fishing techniques, gear used, seasons and area fished, qualitative reports from fishermen, and distribution of right whales in the area. In addition to the many factors outlined above, it must be emphasized that right whales are rarely detected along the Maine coast, and on the rare occasions when they are detected, they are not in large aggregations.

Neither the state nor federal waters portions of the Maine lobster fishery meet the Category I criteria under the MMPA List of the Fisheries. The annual mortality and serious injury to right whales from the Maine lobster fishery from 2013 to 2017 is not greater than or equal to 50 percent of PBR. In fact, it is zero. Furthermore, the Maine lobster fishery has never been associated with a right whale serious injury or mortality, and the last documented interaction with the Maine lobster fishery occurred 16 years ago. The last documented serious injury or mortality in any U.S. lobster gear occurred 18 years ago.

NMFS should also carefully consider the disturbing increase in entanglement trend in Canadian fishing gear, and the high probability that many of the unknown entanglements are occurring fisheries outside the U.S.

View table at: https://www.regulations.gov/contentStreamer?documentId=NOAA-NMFS-2020-0054-0009&attachmentNumber=1&contentType=pdf

Thank you for your consideration.

Sincerely.

Patrice McCarron

Executive Director

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Footnotes:

1/ Federal Register Notice for this Proposed Rule (Vol 85, No 15), pg 59259 "Other Criteria That May Be Considered"

2/ Davis et al, Scientific Reports 7, # 13460, 2017; see Appendix 1

3/ Runge, 2012, "Summer distribution of the planktonic copepod, Calanus finmarchicus, along the coast of the Gulf of Maine"

4/ 72FR 57104 and 57103, October 5, 2007

5/ Federal Register Notice for this Proposed Rule (Vol 85, No 15), pg 59259

6/ Federal Register Notice for this Proposed Rule (Vol 85, No 15), pg 59258 "Fishery Classification Criteria"

7/ Personal communication between Patrice McCarron and Dave Morin, GARFO, August 2019.

8/ Incident Report: North Atlantic Right Whale Mortality Event - Eastern Canada - 2019, page 21, at http://marineanimals.ca/what-we-do/research/?fbclid=IwAR0g-LVR_0jrARtvkzxiAIoK1FAChyhzHXLBJfXszFqR-nVfj1jBAVlsJY

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The proposed rule can be viewed at: https://www.regulations.gov/document?D=NOAA-NMFS-2020-0054-0001

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