Background
The Atlantic Large Whale Take Reduction Plan (ALWTRP, or Plan) was originally developed pursuant to section 118 of the Marine Mammal Protection Act (MMPA, 16 U.S.C. 1387 to reduce the level of mortality and serious injury of three stocks of large whales (fin, humpback, and North Atlantic right) interacting with Category I and II fisheries. Under the MMPA a strategic stock of marine mammals is defined as a stock: (1) For which the level of direct human-caused mortality exceeds the Potential Biological Removal (PBR) level; (2) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act of 1973 (ESA) within the foreseeable future; or (3) which is listed as a threatened or endangered species under the ESA or is designated as depleted under the MMPA (16 U.S.C. 1362(19)). When incidental mortality or serious injury of marine mammals from commercial fishing is over the PBR level, NMFS convenes a take reduction team made up of stakeholders from the fishing industry, fishery management councils and commissions, state and Federal resource management agencies, the scientific community and conservation organizations.
The Atlantic Large Whale Take Reduction Team (ALWTRT or Team) was established in 1996 and is made up of 60 members, including about 22 trap/pot and gillnet fishermen or fishery representatives. Because both right whales and fin whales are listed as endangered, they are considered strategic stocks under the MMPA. Due to population growth, in 2016 certain stocks of humpback whales, which are taken in the Atlantic Category I and II fisheries regulated under the ALWTRP, are no longer listed as endangered or threatened under the Endangered Species Act (81 FR 62259). However, although they are not currently a strategic stock, they continue to be included in the Plan because they are taken in Category I fisheries and will continue to benefit from Plan requirements and proposed revisions.
Specific Category I and II fisheries addressed by the Plan include the Northeast sink gillnet, Northeast drift gillnet, Northeast anchored float gillnet, Southeast Atlantic gillnet, Mid-Atlantic gillnet, Southeastern U.S. Atlantic shark gillnet, Atlantic mixed species trap/pot, Atlantic blue crab trap/pot, and Northeast/Mid-Atlantic American lobster trap/pot. Proposed modifications for this rulemaking are limited in scope to the crab and trap/pot fisheries in the Northeast Region Trap/Pot Management Area (Northeast Region). The Northeast Region encompasses those waters where year-round trap/pot measures are required as described in 50 CFR 229.32. This area includes the Northern Inshore State Trap/Pot Waters, the Northern Nearshore Trap/Pot Waters Areas, the Massachusetts Restricted Area, the Great South Channel Restricted Trap/Pot Area, the Jordan Basin, Jeffreys Ledge, and Stellwagen Bank Restricted Areas and the northeast Offshore Trap/Pot Waters Area that are within the area bounded on the west by a straight line running south from the coast at 41°18.2′ N latitude, 71°51.5′ W longitude to 40°00′ N latitude, and then bounded on the south by a line running east along 40°00′ N latitude to the eastern edge of the Exclusive Economic Zone (EEZ) (Figure 1).
The background for the take reduction planning process and initial development of the Plan is provided in the preambles to the proposed (62 FR 16519, April 7, 1997), interim final (62 FR 39157, July 22, 1997), and final (64 FR 7529, February 16, 1999) rules that implemented the original plan.
Since its 1997 implementation, the Plan has been modified several times to reduce the risk of mortality and serious injury of large whales incidentally taken in commercial sink gillnet and trap/pot gear. The most recent final rule was published in May 2015 (80 FR 30367, May 28, 2015). Because of the declining population and the persistent incidental entanglement mortalities and serious injuries above the stock’s PBR, Plan modifications have, and continue to be, directed primarily at reducing the risk of commercial fisheries on the North Atlantic right whale.
Right Whale Population Decline
In a peer-reviewed scientific paper published in 2017, Pace et al. confirmed that due to decreased calving rates and increased mortality, much of it unseen, the North Atlantic right whale population had been in decline since 2010 (Pace et al. 2017). Seventeen right whale mortalities were documented in 2017, causing NMFS to declare an Unusual Mortality Event, which continues through 2020. Although most right whale mortalities in 2017 occurred in Canadian waters and not all were confirmed to be entanglement related, three mortalities first seen in U.S. waters exhibited signs of entanglement. The evidence of a declining population exacerbated by high mortalities caused NMFS to convene subgroups of the ALWTRT in early 2018 to investigate the feasibility of risk reduction measures. A meeting of the full Team was held in October 2018 to develop recommendations for modifying the Take Reduction Plan.
As described in detail in Chapter 3 of the DEIS prepared in support of this action and very briefly below, the location and exact fishery in which each entanglement incident occurs can rarely be determined. However, over 95 percent of vertical buoy lines fished along the U.S. East Coast in waters not currently exempt from Plan requirements are fished by the lobster and Jonah crab trap/pot fishery—93 percent within the Northeast Region. For this reason and given the magnitude of the issue, NMFS is addressing this issue in phases to expedite rulemaking. The initial phase focused the scope of the Team meetings on developing recommendations for the Northeast Region lobster and Jonah crab trap/pot fisheries. In 2021, the ALWTRT will be asked to recommend modifications to the Take Reduction Plan to address risk in the remaining fixed gear fisheries that use buoy lines, including other trap/pot fisheries and gillnet fisheries coastwide. Table 2.3 in the DEIS provides additional information supporting prioritizing the lobster and Jonah crab trap/pot fisheries in the Northeast Region first.
Team members submitted risk reduction proposals for the October 2018 in-person ALWTRT meeting. The lack of agreement on whether or how much risk reduction was necessary, or metrics to compare the wide range of proposal elements, challenged the Team’s ability to develop recommendations. In anticipation of a spring 2019 meeting, the Team created workplans for NMFS identifying data needs to support decision making on Plan modification recommendations.
While the MMPA establishes PBR as a goal for take reduction, the Team identified the need for a risk reduction target that better described what their recommendations should achieve. NMFS estimated that to reduce serious injury and mortality below PBR, entanglement risk across U.S. fisheries needs to be reduced by 60 to 80 percent. There is much uncertainty regarding the source of entanglement mortality to the North Atlantic right whale population. There is no gear present or retrieved from most documented incidents of dead or seriously injured right whales. When gear is retrieved, it can rarely be identified to a fishery or to a location. For the years 2009 through 2018, an average of five entanglement-related serious injuries and mortalities a year were observed. Only 0.2 a year could be attributed with certainty to U.S. fisheries and only 0.7 a year to Canadian fisheries. An annual average of four documented incidental entanglement mortalities and serious injuries could not be attributed to a country.
NMFS’ has produced Guidelines for Assessing Marine Mammal Stocks to address how to consider PBR for transboundary stocks if certain information is available. Those Guidelines specify that in transboundary situations where a stock’s range spans international boundaries or the boundary of the U.S. Exclusive Economic Zone (EEZ), the best approach is to establish an international management agreement for the species and to evaluate all sources of human-caused mortality and serious injury (U.S. and non-U.S.) relative to the PBR for the entire stock range. In the interim, if a transboundary stock is migratory and it is reasonable to do so, the fraction of time the stock spends in U.S. waters should be noted, and the PBR for U.S. fisheries should be apportioned from the total PBR based on this fraction. For non-migratory transboundary stocks (e.g., stocks with broad pelagic distributions that extend into international waters), if there are estimates of mortality and serious injury from U.S. and other sources throughout the stock’s range, then PBR calculations should be based upon a range-wide abundance estimate for the stock whenever possible.
Therefore, if a stock spends half its time in U.S. waters, PBR would be divided by two, resulting in a U.S. PBR for right whales of 0.5. Thus, the U.S. fishery related mortality would need to be reduced to below 0.5 (instead of 0.9 as is currently the goal). The Atlantic Scientific Review Group (established under MMPA sec. 117) that advises NMFS on Stock Assessment Reports, including PBR calculations, does not support this approach yet because we do not have sufficient information to apportion time spent in U.S. versus Canadian waters. Therefore, the U.S. target goal remains 0.9; however, NMFS did consider the relative threat including the time right whales spend in U.S. and Canadian waters when apportioning the unattributed entanglement incidents to create the risk reduction target, as described below.
For the purposes of creating a risk reduction target, NMFS assigned half of these right whale entanglement incidents of unknown origin to U.S. fisheries. Under this assumption, a 60 percent reduction in serious injury or mortality would be needed to reduce right whale serious injury and mortality in U.S. commercial fisheries, from an annual average of 2.2 to a PBR of 0.9 per year.
The upper bound of the risk reduction target (80 percent) considered estimated but unseen right whale mortalities, generated by a new population model (described in Hayes et al. 2019). Because all observed mortalities that can be attributed to a source have been caused by either entanglements or vessel strikes (except for some natural neonate mortalities), estimated non-observed mortalities are likely caused primarily by entanglements and vessels strikes. However, there is no way to definitively apportion unseen but estimated mortality across causes or country of origin (United States or Canada). For the purposes of developing a conservative target, NMFS assumed that half of the unseen mortalities occurred in U.S. waters and were caused primarily by incidental entanglements.
However, given the additional sources of uncertainty in the 80 percent target, as well as the challenges achieving such a target without large economic impacts to the fishery, the Take Reduction Team focused on recommendations to achieve the lower 60 percent target.
Additionally, to support the April 2019 Team meeting, the NMFS Northeast Fisheries Science Center created a preliminary decision support tool (DST): A model for analyzing and comparing how various proposal elements contributed toward the target risk reduction.
Both the target risk reduction and the DST generated a common understanding of the scope of measures that NMFS determined were necessary to reduce mortality and serious injury to below the PBR level for right whales. After some discussion, there was general agreement that risk reduction should be shared across jurisdictions so that no one state or fishing area would bear the bulk of the restrictions. This encouraged adoption of measures across the Northeast Region that would be resilient to changes in North Atlantic right whale distribution within the region. All but one Team member agreed that NMFS should move forward on a framework of recommended modifications to achieve 60 percent risk reduction. The dissenting Team member did not believe that the recommended modifications were sufficient to achieve PBR. The Team’s recommendations was essentially a framework, largely dependent on extensive buoy line reduction goals and expansive requirements to use weak rope or weak insertions with breaking strengths of 1,700 lbs. (771 kgs.) or less that would allow large whales to break free of gear before a serious injury or mortality can occur (Knowlton et al. 2016).
In acknowledgement of the regional diversity of the fisheries, New England states sought and were given the lead in developing measures and implementation details related to the Team’s near-consensus recommendation. Maine, New Hampshire, Massachusetts, and Rhode Island conducted public meetings before and after drafting measures. NMFS also worked closely with the Team members that represent the Atlantic Offshore Lobster Association on measures for the northeast Offshore Trap/Pot Waters Area, widely referred to as Lobster Management Area (LMA) 3. NMFS conducted its own scoping in August 2019 (84 FR 37822, August 2, 2019), receiving over 130 unique written comments as well as over 89,000 form emails generated by about a dozen campaigns. Oral comments were also collected during eight public meetings attended by over 800 stakeholders. The measures proposed in this rule are drawn largely from proposals received from New England states. Those proposals can be found in Appendix 3.2 of the DEIS. As described in the DEIS associated with this action, some Plan modifications in state waters will be implemented by Maine and Massachusetts under state laws and so are not included in the proposed Federal measures. Additionally, some measures proposed by the states for this rulemaking were not adopted in the regulations proposed here because they were inconsistent between adjacent states. Public comments received during scoping were considered throughout the development of the DEIS and proposed rule (Appendix 3.3 of the DEIS).
It should be noted that a draft population estimate developed by the North Atlantic Right Whale Consortium for their October 2020 meeting indicates that the right whale population has declined further, to about 366 right whales as of January 2019. Further peer review of this preliminary estimate is anticipated during Scientific Review Group meetings in early 2021 in preparation for an updated stock assessment. The updated stock assessment information along with other updates and analyses will be considered in drafting the final rule and environmental impact statement.
SOURCE: U.S National Oceanic and Atmospheric Administration on Dec 31, 2020
