August 22, 2005
Mary Colligan
Assistant Regional Administrator for Protected Resources
National Marine Fisheries Service, Northeast Region
1 Blackburn Drive
Gloucester, MA 01930
(sent by fax 978-281-9394)
RE: COMMENTS ON THE PROPOSED RULE TO AMEND ALANTIC LARGE WHALE TAKE REDUCTION
PLAN (70 FR 35894-35944)
Dear Ms. Colligan:
Please accept these comments on behalf of the Garden State Seafood Association
(GSSA); GSSA is comprised of commercial fishermen, shore-based processors,
commercial dock facilities, seafood markets, restaurants, and various industry
support businesses from New Jersey. Members and staff of GSSA participate
on the ALWTRP, HPTRP, as well as BNDTRP and continue to participate in cooperative
research activities to address these complex issues.
Justification of regulatory burden compared with the relative risk of
entanglement
While the MMPA provides significant protection for whales, it also provides
consideration for the human element that is impacted. Section 118 of
the MMPA allows consideration for the economics of the fishery and availability
of existing technology as well as current regulations implemented through
State and Regional FMP’s. We respectfully request that the Agency clearly
justify the regulatory burden of any and all new gear requirements in
the Mid-Atlantic and provide a rationale as to why the impacts of any
new requirements are necessary to achieve the specific goals of the
TRP.
This analysis must be completed by the Agency when considering the best available
information regarding the Mid-Atlantic region, which includes the following:
(1) that the Mid-Atlantic contains no critical habitat for large whales;
(2) that the National Right Whale Survey does not extend below Long
Island; (3) that only 6% of the Large Whale Survey is conducted between
Long Island and South Carolina; (4) that sightings of large whales in
the Mid-Atlantic account for only 1.7% of the total of the East Coast
whale sightings on a yearly basis; (5) that there were 18 entanglements
in the Mid-Atlantic from 1997 – 2002, which accounts for only 5% of
the large whale entanglements for the East Coast; and (6) that pot/trap
density in the Mid-Atlantic region is significantly less than compared
to the rest of the East Coast.
Furthermore, it is important that the Agency considers that there is no research
being conducted in the Mid – Atlantic region to assess the feeding behavior
of large whales due to the fact that there is little or no evidence
suggesting that right whales forage in this region -- a position made
quite clear by Agency officials at the recent ALWTRT meeting in Baltimore
(Dr. Richard Merrick, public communication, 4/26/2005). Clearly,
this region is not a serious concern for whale entanglements and should
not be elevated to such a status in the proposed rule for purposes of
convenience.
We have also provided you with a cursory review of the North Atlantic Right
Whale (NARW) Sightings Database. You will find the sightings information
for the Mid-Atlantic region (attachment 2) and for the inshore and offshore
areas of New Jersey (attachment 3). The database clearly indicates the
small number of sightings in the New Jersey inshore and offshore region
as well as the entire Mid-Atlantic. In fact there are only approximately
14 sightings of right whales in coastal New Jersey that occurred from
as early as 1976 to the present, some of which are the same whale. Furthermore,
the database indicates a few sightings of humpback whales off the New
Jersey coast all of which occur in depths along the 100 fathom contour
line and deeper. These charts have been assembled from NARW sightings
database (attachment 4), which includes sightings occurring from as
early as 1966 for humpback whales and 1762 for right whales. Sightings
occur from many different sources as explained in two e-mail responses
from Dr. Robert Kenney (see attachment 5). This data clearly indicates
the low risk of entanglement in the Mid–Atlantic and questions the regulatory
burden of the gear modifications contained in the proposed rule.
When you consider these statistics clearly illustrate the low risk of entanglement
in the Mid-Atlantic region, the lack of entanglement data for this region,
the poor understanding of the dynamics of entanglement events and the
absence of foraging behavior in this region and the vague understanding
of whale behavior, it remains unclear how the agency can justify the
regulatory burden of a prohibition on floating polypropylene line for
all groundlines on fixed gear in the Mid-Atlantic region.
Reducing the Risk of Entanglements Associated With Groundlines
While NMFS has indicated it is unable to support an alternative for “low profile”
groundlines at this time, it is important that NMFS consider the concept
of lowering the profile of groundlines as part of a comprehensive effort
to reduce the risk of entanglements to large whales. The agency
must maintain a clear, articulated sense of urgency for the development
and commercial application of a low profile alternative prior
to implementation of the Final Rule. This low cost option is consistent
with the MMPA which requires the agency to consider options that are
both technologically and economically feasible.
We respectfully request the Agency examine available whale behavior data for
the Mid-Atlantic region and implement a low profile alternative and
(or) a clear commitment to develop an alternative that is reasonable,
cost effective, and defensible based on the fact that it will substantially
reduce the amount of line in the water column above the ocean bottom.
Reducing the Risk of Entanglements Associated With Vertical Lines
We strongly support the Agency’s decision to address more vertical line issues
associated with fixed gear in a future amendment. NMFS indicated that
further research and discussions with the ALWTRT are needed to address
risks associated with vertical lines and GSSA agrees with that position.
It is important to note here that the current proposed alternatives are addressing
some elements of vertical line issues through such measures as mandating
weak links on buoy lines and net panels and other proposed gear requirements.
It is our opinion that the implementation of fishing gear mitigation
requirements via the proposed rule will provide a significant reduction
in the risk and potential mortality of large whales due to both groundline
and vertical line entanglements. The pending rule will also help clarify
the origin and circumstances of future entanglement events thereby providing
more data upon which the Agency can base responsible future action.
Preferred Alternatives
Changes Proposed for the ALWTRP for Boundaries and Seasons
We cannot support the current Alternative that imposes regulations from September
1st through May 1st. Any modifications to groundlines should
be imposed seasonally instead of on a year round basis and specifically
for the Mid-Atlantic region -- the regulatory season should begin
on September 1st and remain in effect until March 31st. Requiring
gear modifications for part of the year will reduce risks associated
with sinking groundlines such as an increase in lost gear and difficulty
in the retrieval of lost trap/pots.
The agency cites the North Atlantic Right Whale (NARW) Sightings Database as
the rationale for seasons and boundaries for gear modifications.
GSSA has yet to see the spatial and temporal assessment of
whale sightings that serves as the agency’s justification for the
proposed rule as it is currently drafted. Here again, we respectfully
request the agency to provide the proper justification and data
for the regulatory burden that will be precipitated by implementation
of the proposed rule.
Changes Proposed for ALWTRP for Lobster Trap/Pot Gear
Offshore Trap/Pot Waters Area and Great South Channel Restricted
Area
We support the extension of the southern boundary of the Offshore Trap/Pot Waters
Area and the lowering of the maximum breaking strength of weak links
on all floatation devices attached to the buoy line, from 2000 pounds
to 1500 pounds.
Southern Nearshore Trap/Pot Waters
We support the extension of
the southern boundary of the Southern Nearshore Trap/Pot Waters Area
as contained in the proposed rule.
Changes Proposed for ALWTRP for all Trap/Pot Gear
Broad-based Gear Modifications
ALWTRP Regulated Trap/Pot Waters:
We support the designation change of ALWTRP Lobster Waters to be changed to
ALWTRP-regulated Trap/Pot Waters to capture the additional trap/pot
fisheries as well as the changes to the term “lobster trap/pot”
with “trap/pot” as it appears in the regulations.
Seasons and Boundaries:
We support the area boundary created by this proposed rule, that runs from the
Rhode Island/Connecticut border south to 40 degrees North, and east
to the eastern edge of the EEZ.
We cannot support the part of the proposed rule that requires any gear fished
in the area south of this line to be required to comply with gear modifications
from September to May.
We request that the proposed rule enact gear modifications for this area that
would be effective September through March.
Sinking/Neutrally Buoyant Groundlines:
We cannot support the broad-based sinking/neutrally buoyant groundline requirements
for trap/pot fisheries in the Mid-Atlantic as recommended in the proposed
rule. When one considers the best available scientific data which
clearly illustrates the low risk of entanglement in the Mid-Atlantic
region, the lack of entanglement data for this region, the poor understanding
of the dynamics of entanglement events and the absence of foraging behavior
in this region and the vague understanding of whale behavior, it remains
unclear why the regulatory burden of prohibiting floating polypropylene
line for groundlines should rest on the fixed gear fishermen in the
Mid-Atlantic region. As such:
Any mandatory requirements to switch to a sinking and/or neutrally buoyant groundline
by 2008 should be extended until 2009 to lessen the burden on affected
fishermen. GSSA had originally requested the extension until 2010.
Currently there are two ongoing line testing experiments being conducted
through cooperative research between industry and NMFS; the results
of which will determine the usable life of alternative sinking groundlines
as well as the practical commercial application of these new materials.
It is imperative that the Agency provide as much time as possible
to allow these initiatives to proceed to conclusion.
The industry could support, if necessary, the Agency’s goal of reducing groundline
profile for pot and traps. We believe that a technologically simple
and cost effective modification to existing floating rope by adding
sections of standard leadline at precise intervals along the entire
length of the groundline is an appropriate and enforceable alternative
to a complete prohibition on all sinking groundline.
This alternative was discussed and supported by the regional subgroup from the
Mid-Atlantic, during the ALWTRP Meeting that took place on April
25th –27th, 2005, in Baltimore, Maryland. Our subgroup was comprised
of TRT members all of whom were representing the cetacean science,
academic, fishing and animal rights interests. We feel strongly
that a total prohibition on polypropylene groundlines for all trap
or pot gear in this region is unnecessary.
Changes Proposed for the ALWTRP for Gillnet Gear
Mid/South Atlantic Gillnet Waters:
We support expanding and re-naming the Mid-Atlantic Coastal Gillnet Waters to
include waters south of 72 degrees 30 minutes West, south to the Virginia/North
Carolina border, South Carolina/Georgia border and to the eastern edge
of the EEZ.
Anchored Gillnet:
We cannot support the definition
as defined under CFR 229.2 that a set gillnet should be considered an anchored
gillnet.
A set gillnet should be considered
as any gillnet that is weighted but do not have an anchor(s) on either end
and are nets that return to port with the vessel.
We can support the following gear modification for anchored gillnets fished
in the Mid-Atlantic. These changes in the proposed rule will achieve
the goals of the ALWTRP and will significantly reduce the risk of entanglements
or mortality associated with Mid-Atlantic anchored gillnet fisheries
while not having a significant impact on the fisheries or its participants;
Appropriate weak link requirements on flotation devices as specified, including
a 1,100 pound weak link on all floatation and or weighted devices,
including buoys, toggles and leaded lines attached to the buoy line.
Requirements that would have all anchored gillnets anchored at each end with
an anchor capable of a holding power of at least a 22-lb Danforth-style
anchor.
We cannot support the requirement in the proposed rule that would have all anchored
gillnets that do not return to port contain five or more weak links with
a maximum breaking strength of no more than 1,100 pounds for each net panel.
As requested in the Proposed Rule we offer significant comments on
those proposed weak link configurations and are confident they will provide
the necessary conservation benefits to large whales.
The following recommendations for weak link requirements will achieve the same
dynamics as observed in the simulated testing referred to in the DEIS. (5-23/27)
Due to the anchoring requirements, the float line weak link will break with
very little net attached and will separate from the sinking line due to
the light breastlines and the fact the gill net is the only thing holding
to the groundline. This alternative weak link configuration is considered
to be a low cost alternative that can be applied to gill net fisheries with
results that lessen the impact to the industry while still achieving the
goals of the ALWTRP and reducing the risk of entanglement is supportable
and consistent with the Agency’s position on many of the issues contained
in the DEIS.
Anchored gillnets that do not return to port with the vessel, will be required
to use a 1,100 pound weak link that would be added to the floatline
between any two gillnet panels and an additional 1,100 pound weak link
must be added to the float line and will be required to be in the center
of each gill net panel, resulting in a gillnet that is structurally
vulnerable. The net will also be required to have one weak link along
the floatline at either end of the net, before the anchor and buoy system.
Any line of appropriate breaking strength shall be considered to serve as a
weak link. For gillnet net panels with up and down line (breastlines)
that have a breaking strength that is less than 1,100 pounds no weak
link is needed. Any line running from the float line to the leadline
at the end or along any portion of the net must have a breaking strength
of less than 1,100 pounds.
This weak link configuration was presented to, discussed and supported by the
regional subgroup from the Mid-Atlantic, during the ALWTRP Meeting that
took place on April 25th –27th, 2005, in Baltimore, Maryland and appears
in the Draft Meeting Summary of the Atlantic Large Whale Take Reduction
Team Meeting. Our subgroup was comprised of TRT members all of whom were
representing the cetacean science, academic, fishing and animal rights interests.
(A diagram is provided for you refer to Attachment 1)
Exceptions to the rule
Anchored Gillnets:
We support an exception for those fisheries in the North Carolina/South Carolina
coastal fisheries that would allow for a smaller anchor to be used in
the surf zone to allow for the safe retrieval of gillnets deployed and
retrieved in the surf zone. (See Draft Meeting Summary of the Atlantic
Large Whale Take Reduction Team Meeting, April 25-27, 2005).
We oppose the weak link requirements of one 1,100 lb. weak link per net panel
for anchored gillnets that return with the vessel to port in the croaker
strike net fishery off New Jersey. This fishery targets Atlantic
croaker in close proximity to our beaches, chiefly inside NJ State waters.
It is a unique fishery that occurs only from August through November.
During the last 4 years there were 72 observed trips in
this fishery and there were zero reports of entanglement events. The
best information indicates that due to the regional aspects associated
in these fixed gear fisheries, the migratory patterns of large whales,
and the lack of a single entanglement, should allow for the Agency to
take a flexible management approach and lessen the socioeconomic impact
on affected fishermen that participate in this fishery.
Drift Gillnets:
We oppose the weak link requirements that would add one 1,100 lb. weak link
per net panel for drift nets deployed at night. This gear modification
remains untested and its fishery application is completely unknown.
Our NJ driftnet fishery uses a net that is 50-60 feet deep (measured
from the corkline to the leadline), and often catches bluefish and small
albacore in great quantities that will likely break the 1,100 pound
weak link while it is being hauled aboard. Any modification to these
gillnets may cause the loss of mesh, resulting in the needless waste
of fish and possibly increasing the possibility of a derelict net, is
unacceptable.
Furthermore, this fishery exists only in the months of May, June and July, which
are outside of the months when large whales are known to concentrate
in the Mid-Atlantic. This fishery has also experienced extensive Federal
observer coverage during the last 4 years, 36 trips to be exact, during
which there were zero entanglements observed. Based on the best
available information this fishery should be exempted from the proposed
rule.
Changes Proposed for All Gillnet Gear
Broad Based Gear Modifications:
We can support a requirement for sinking and/or neutrally buoyant groundline
by 2008. This would apply to all groundlines found in anchored gillnets
that are part of the anchoring components found at the end of each net
string where the net is attached to the anchor.
Seasons Boundaries:
We support the area boundary
created by this proposed rule, that runs from the Rhode Island/Connecticut
border south to 40 degrees North, and east to the eastern edge of the EEZ.
We cannot support the component of the proposed rule that requires any gear
fished in the area south of this line should be required to comply with
gear modifications from September to May.
We request that the proposed rule enact gear modifications for this area that
would be effective September through March.
Sinking/Neutrally Buoyant Groundlines:
We can support sinking and/or neutrally buoyant groundline by 2008. This would
apply to all groundlines found in anchored gillnets that are part of
the anchoring components found at the end of each net string where the
net is attached to the anchor.
Weak Links:
We can support appropriate weak link requirements on flotation devices as specified,
including a 1,100 pound weak link on all floatation and or weighted
devices, including buoys, toggles and leaded lines attached to the buoy
line.
Other changes Proposed for All Trap/Pot and Gillnet Marking:
We can support the proposed gear marking scheme which includes marking surface
buoys with vessel or permit number for identification purposes.
We cannot support the marking of buoy lines every 10 fathoms. Many fishermen
use the same gear in different locations. This would cause confusion
when fishermen are trying to comply with regional regulations and would
not be useful or accurate when trying to confirm the location (source)
of an entanglement event. We request the Agency disapprove this
gear marking component of the proposed rule and remand the issue to
the ATLWTRT for further discussion and development.
Trap/Pot gear marking colors:
We cannot support the marking requirements as stated in this propose rule. The
industry can only support gear specific marking requirements that are
consistent with current State/Federal FMP requirements and for the other
TRT’s including the final rule to the BDTRP that will be implemented
in the near term. During the last ALWTRT meeting there was significant
concern that the current gear marking requirements in the DEIS would
achieve very little in the way of new information but would be a burden
to the industry. It was agreed that any additional gear marking requirements
would be remanded to a gear group comprised of members from the TRT.
This could possibly be included in the same amendment to address vertical
lines.
Gillnet gear marking colors:
We cannot support any gillnet gear marking requirements, that use different
colors to determine the origin or region where this gear might be fished,
as an identifier. Many fishermen use the same gear in different locations.
This would cause confusion when a fisherman was trying to comply with
regional regulations and would not be useful or accurate when trying
to confirm the location of any entanglement event.
Critical Habitat:
We support the Agency’s continued analysis of the critical habitat for the conservation
of right whales.
Exempted Waters
Coastal exempted waters:
We support this provision of the proposed rule that would exempt all marine
and tidal waters landward of the 72 COLREGS demarcation lines.
The Agency’s consideration of the low probability that whales would be present
in these waters is a crucial point that we feel should also apply
to address the relative risk of whale entanglements in state waters
off the coast of New Jersey.
Alternatives to address additional sources of entanglement events
There are two known large whale entanglement events that involve “vessel anchoring
systems”. It is widely known that the origin of this anchoring system
has been identified as the system used extensively by recreational anglers
which has already been removed from two large whales in past entanglements.
This anchoring system is typically composed of a large stainless steel
ring attached to an inflatable poly-ball, which is attached to the anchor
line to help in the retrieval of the anchor by using the forward motion
of the boat.
It is also a standard practice in popular areas like the Canyons and Stellwagon
Bank that these recreational vessel anchoring systems are left in place
for unknown periods of time to mark a recreational fishing spot for
use at a later date. Based on the best available scientific information,
issues of fairness and equitability, and considering the fact that these
devices are also “vertical lines”, we recommend the Agency include the
following information in the final rule and include the recreational
sector’s impacts on large whales in the TRT vertical line mitigation
process as follows:
1) Regulations must be considered to prohibit
recreational boats from using these anchoring systems.
2) Some method of enforcement needs to be
considered that would prohibit recreational boats from leaving these
anchoring systems as a method of occupying a fishing spot without
actually fishing there.
3) Some enforcement needs to be pursued to
prohibit recreational vessels from tying up to our high flyers,
which mark the location and serve as the only way to retrieve our
fixed gear. It is standard practice for recreational boats to tie
up to our gear, often the line is simply cut and thrown overboard,
it is also doubtful that a 1,500 weak link will hold a pleasure
boat and will increase lost gear and associated risk to large whales.
Making this practice a violation of the law would be helpful.
Areas to be Exempt from Low Profile Requirements
We support the establishment of “Exempted Areas” to be determined prior to implementation
of the Final Rule that will be exempted from the use of mandatory “low
profile” groundlines. These areas could include the “17 – Fathom Rocks”
and other fishing areas that contain wrecks or artificial habitat. Due
to the high bottom relief and artificial structure found in theses areas
it will not be practical to use sinking groundlines in these areas.
The groundlines between each pot/trap would become tangled in the structure
and could cause many pots/trap top be lost.
Proposed Rule as it pertains to NEPA Requirements
While not in total agreement with all the proposed management measures contained
in the Proposed Rule, the GSSA is of the opinion that the Proposed Rule
sufficiently addresses the requirements of NEPA. The Act requires decision
makers to take into account environmental factors and consideration
of a suite of management alternatives using a through public process.
The Proposed Rule and the regulatory alternatives contained in it, do
take into consideration environmental factors as well as concerns and
suggestions raised during public meetings along with the ALWTRT process
collectively provide information that is sufficient to meet NEPA requirements.
Thank you for the opportunity to comment on the Proposed Rule. We look forward
to working with NMFS throughout the ALWTRT process to find solutions that
are reasonable and effective.
Sincerely,
Gregory P. DiDomenico
Executive Director
Garden State Seafood Association
cc: Dan Furlong, Executive Director MAFMC