Mary Colligan
Assistant Regional Administrator for Protected Resources
National Marine Fisheries Service, Northeast Region
1 Blackburn Drive
Gloucester, MA 01930

Dear Ms. Colligan,

I am writing to offer comments on the Draft Environmental Impact Statement for the proposed changes to the Atlantic Large Whale Take Reduction Plan. I am a human ecologist with College of the Atlantic in Bar Harbor, Maine, and have been studying the issue of whale entanglement from a variety of perspectives since 2001, with special attention to the geographic considerations of whale protection and disentanglement, as well as the social, political, and economic factors involved with the take reduction process. Please find attached the text (pdf) and tables (xls) of my paper published in Proceedings of the International Conference on People and the Sea II: Conflicts, threats and opportunities (2001).

First, let me commend you and your team for your efforts on such a difficult and contentious issue. The proposed changes to the plan show that you have taken seriously many of the concerns stated by whale advocates, fishermen and scientists on the Take Reduction Team (TRT) and in other stakeholder groups in comments, hearings and TRT meetings. The changes proposed in the preferred alternatives (3 and 6) are likely to decrease mortality and serious injury of large whales by fishing gear, and may improve trust and compliance among some of the fisheries.

Comments on specific proposed measures
The following are my comments on specific aspects of the proposed alternatives. While I believe Alternative 6 is the best of the alternatives, none of the alternatives is likely to achieve the mandates of the Marine Mammal Protection Act of reducing serious injury and mortality below the potential biological removal and then to levels approaching zero for any of the strategic species. Moreover, these goals were to have been reached by April, 2001, and yet we have reported mortalities and serious injuries in excess of the potential biological removal for at least two endangered species, right whales and humpbacks, since that deadline. This situation behooves the Fisheries Service to act quickly and efficiently to implement—and fully justify to the public—the best possible measures to protect whales from entanglement and to allow trap/pot and gillnet fisheries to continue. Given the dire need for real take reduction, the Fisheries Service should consider stepping up the timeframe for implementing key measures and/or supporting a voluntary move toward early implementation.

In regard to the overall geographic range of the sinking groundline requirement, a variety of researchers have shown that right whales commonly roam beyond the boundaries of existing closures and gear modification areas. In my work studying the satellite telemetry tracks of entangled whales, I have found that many tagged whales crossed these boundaries many times. Moreover, I and one of my students recently looked at in-season movements of identified humpbacks in the Gulf of Maine and found that many whales in the study were sighted in distant parts of the Gulf of Maine in the same season, suggesting movements similar to those of right whales. In my interview research, many fishermen have reported complying with area closures by moving gear to the edges of the closed areas. Given the wide ranging movements of whales, such a practice would increase the likelihood of entanglements as whales come and go from the area. Therefore, gear modifications throughout the Gulf of Maine and nearby banks and channels are necessary. SAMs, even if expanded as proposed, would be of limited benefit because their geographic scale is smaller than that of whale movements. Comprehensive studies of gear density would help to refine our understanding of these issues.

Expanding requirements for sinking groundline both spatially and temporally will be feasible and effective in reducing entanglements, especially from southern Maine to Florida. It makes sense to exempt areas of the Maine coast from this requirement based on entanglement risk for right whales and humpbacks in that the whales rarely visit these areas. However, for non-exempted Maine waters where fishermen are currently using floating groundline over rocky bottom, requiring sinking groundline will likely lead to a vast increase in vertical buoy lines as fishermen abandon the use of multi-trap trawls for singles. Such an explosion in vertical lines may in fact outweigh benefits gained by removing floating groundline. Requiring sinking groundline in these areas without a plan in place to address the number of buoy lines would be a mistake.

This problem can be addressed by requiring multi-trap trawls, but that will likely make it impossible for many fishermen to continue to fish because of gear loss and the dangers of hauling gear hung down on rocks. A better approach may be a combination of refining and expanding exempted areas where possible, limiting the number of vertical lines, and including provisions that would allow fishermen to use “pre-approved” low-profile groundline configurations in specific areas. Then as the implementation date approaches, fishermen, whale scientists, and gear experts can work with the fisheries service to develop workable, enforceable, and effective low-profile gear configurations for approval. From a regulatory perspective, this would work in much the same way gear modifications were included in the Dynamic Area Management rule, with acceptable gear modifications developed and approved after the rule went into effect. In addition to avoiding a proliferation of buoy lines, such a provision in the upcoming rules would show good faith intentions on the part of the Fisheries Service to make the plan workable for Maine fishermen. It could also foster cooperation among stakeholders and the Fisheries Service.

As outlined in the DEIS, the requirements for the preferred alternatives would put a disproportionate financial burden on New England’s lobster fishery. The Fisheries Service should implement or at very least support and facilitate gear buy-back programs to help lobstermen comply with the new rules. Also, such assistance programs can be used to encourage fishermen to adopt sinking or low profile line earlier in the process.

Weak links have not been shown to be effective in preventing or mitigating entanglement. Since their widespread implementation with the last round of rule-making, there has been no documented decrease in serious injury and mortality. In at least two cases, according to the large whale entanglement report for 2003, at least two entangled whales have been reported with serious injuries from entangling gear that had weak links attached. This points to two important issues: first, the value of weak links is still in question and as such they should not be the primary method of gear modification in the plan until their value is more clearly assessed. Second, the Fisheries Service must implement comprehensive studies to assess the effectiveness of the Take Reduction Plan as it is implemented at any given time.

Assessment studies are needed to refine the plan and to clearly justify continuing measures to stakeholders, Congress and the courts. The Fisheries Service should work with scientists to devise an assessment program to determine how effective individual measures are for all whale species and to understand fishing practices and geography in order to adapt the plan accordingly.

Line marking would certainly help in assessing the causes of entanglement and the geographic scope of the problem. However, the line marking method proposed in the DEIS would be unnecessary and unduly difficult for fishermen to implement. Line manufactured with marking elements such as color or tracers, as suggested by some members of the TRT and by some comments submitted during scoping of this DEIS, would be more practical and would provide the same benefit. It would be particularly beneficial to require different types of marking on different parts of the gear to allow us to distinguish between, say, groundline and buoy line on an entangled whale.

The Dynamic Area Management rule is slated for phase-out in most proposed alternatives. I would encourage the Fisheries Service to expedite the phase-out of the DAM rule in whatever way possible. For a complete discussion of the DAM rule, please see Chapters 8 and 12 of my recent book, Entanglements: The intertwined fates of whales and fishermen. I will say here, however, that the DAM rule taps Fisheries Service resources, undermines trust among stakeholders, and offers—at best—no protection against whale entanglement. I see no value in retaining it as part of the plan in any form.

General comments
The DEIS states that the plan is intended to provide some protection for all stocks of large whales covered under the plan, in addition to the right whale. Clearly the measures will have some benefit for species other than the right whale, but the Fisheries Service has not fully investigated the impacts on other species and has presented little basis for assuming humpbacks, minkes and finbacks would get adequate protection from any of the proposals. Right whales, the main target of conservation measures under the plan, have very different prey requirements from the other whales. This leads to important differences in feeding and distribution, and may therefore require different conservation strategies. For example, I and others have observed a large number of humpbacks off the eastern shore of Cape Cod in the summer, while CHA and SAM East are in effect primarily to protect right whales to the east. In some years, many of the entangled humpbacks are reported in this area. Relying on area closures and gear modifications targeting right whales will miss areas important to other whales like these.

Also, a great deal of attention has been paid to right whales and humpbacks, but the Fisheries Service has not updated stock assessments and entanglement studies for finbacks (listed under the ESA) or minkes (covered by the MMPA). Without this scientific information, we have no way of assessing the impacts of entanglement on these stocks or the benefits afforded by the Take Reduction Plan.

The proposed changes to the plan would take the necessary step of bringing new fisheries under the plan. However, recreational fisheries are currently not covered under the plan and in some areas, such as southern New England, they comprise a great deal of fixed gear. These fisheries need to be regulated under the plan. Also, the recent passage in Canada of the Species at Risk Act presents an important opportunity to open a dialog with Canada about joint efforts to protect whales from entanglement. The Fisheries Service, in association with the Department of State, must begin earnest dialog with Canadian authorities to develop a treaty for protecting whale stocks throughout their range.

Finally, as the Fisheries Service moves forward in choosing and refining an alternative, they should remain mindful of the role of trust and cooperation in the success or failure of the plan. I have attached my paper published in Proceedings of the International Conference on People and the Sea II: Conflicts, threats and opportunities (2001) which offers some insights into the beliefs and values of the people involved with the issue. I hope you find it useful.

Thank you for the opportunity to comment on the proposal.

Sincerely,
Tora Johnson