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Commercial Fisheries News
Volume 34 Number 7
March 2007
NMFS withdraws whale rule; enviros file suit
WASHINGTON, DC – There were two major developments on the northern right whale front in mid-February. The National Marine Fisheries Service (NMFS) withdrew its final rule amending the Atlantic Large Whale Take Reduction Plan (ALWTRP). And two environmental groups filed suit against the agency for failing to protect the endangered animals.
On Feb. 8, the NMFS Office of Protected Resources in Gloucester sent a terse e-mail message to members of the Atlantic Large Whale Take Reduction Team stating that it had withdrawn the “broad-based gear modification final rule” from the Office of Management and Budget’s (OMB) review.
The agency added that it had begun “re-evaluating aspects of the rule” based on comments it had received during the OMB review.
“This process is likely to take months,” NMFS said.
According to agency spokesperson Teri Frady, whether NMFS will re-issue a final rule at that time or start again from scratch with a new proposed rule will depend on the extent of any changes it decides to make.
“In general, if there are revisions and they are within the scope of the draft environmental impact statement (issued in 2005), we probably would not have to go back out with a proposed rule,” she said.
The e-mail to the take reduction team also indicated the rule review would take time away from the agency’s work on additional gear restrictions to protect whales, including vertical line restrictions.
Still, there’s no illusion that the withdrawal signals an end to stricter federal gear modification rules.
“I think it’s a bad thing,” said Maine Lobstermen’s Association Executive Director Patrice McCarron of the rule withdrawal decision. “A lot of people have spent a lot of time working on this. I would hope that whatever NMFS comes out with would reflect that public input.”
The rule NMFS withdrew is the one fishermen and environmentalists alike have been waiting years for.
Back in 2003, following an 18-month period in which eight right whale entanglements and one entanglement-related death were reported, NMFS determined that the current ALWTRP was not effectively protecting large whales from fishing gear.
In June of 2003, the agency conducted a series of scoping meetings from Maine to Florida that drew big crowds of concerned fishermen, especially in Maine.
Then early in 2005, hinting that the final rule would require a phase-out of the use of float rope, NMFS began urging all Northeast Area lobstermen and Northeast and Mid-Atlantic gillnetters to purchase “neutrally buoyant” or sinking rope when replacing gear. NMFS also suggested that other fish trap and pot fisheries would likely face similarly restrictions.
Old proposed rule
In June 2005, the agency published a proposal rule detailing those gear modifications and where they would be imposed.
The proposed rule’s preferred alternative created an exemption area for the state of Maine but the border line hugged the islands, meaning that many of the state’s lobstermen would have to adopt year-round gear modifications and phase out the use of floating groundline.
Industry people in various parts of the region were unhappy with the proposal but the outcry was loudest in Maine, where lobstermen denied ever even seeing right whales.
Late last year, US Sen. Susan Collins (R-ME) asked OMB to conduct an analysis of the costs Maine’s lobstermen would have to bear to come into compliance with NMFS’s anticipated final rule.
Collins said it was likely NMFS had vastly underestimated the cost because, among other factors, the agency hadn’t taken into account that sinking groundline is not only more expensive than float rope but must be replaced more frequently.
Enviros’ suit
NMFS actually withdrew the rule on Feb. 7, the same day the Humane Society and The Ocean Conservancy notified the agency of their intent to sue. The environmental groups followed up that notice by filing their case with the US District Court for the District of Columbia on Feb. 12.
The case challenges NMFS’s failure to comply with a “strict statutory deadline” spelled out in the Marine Mammal Protection Act (MMPA) that requires the issuance of a final ALWTRP rule and implementing regulations “not later than 60 days after the close of the proposed rule comment period.”
It asks the court to compel NMFS to issue the final rule and implementing regulations immediately. The complaint also includes a lengthy history of “failed attempts” by the agency to comply with the law.
“NMFS routinely (adjusts) fishery management plans in less than a year,” said the Humane Society’s Sharon Young. “The agency has been under a great deal of political pressure – I am mindful of that – but that doesn’t mean it’s OK or legal to shirk the law.”
She added that even if they win the suit, environmental groups won’t really be satisfied.
“We’ve been quite critical of the proposed rule as being lax in its protective measures,” Young said. “But be that as it may, we need a final rule to begin to tweak it.”
Lorelei Stevens
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