National Marine Fisheries Service
Improved Economic Analysis and Evaluation Strategies Needed for Proposed Changes to Atlantic Large Whale Protection Plan Gao ID: GAO-07-881 July 20, 2007The National Marine Fisheries Service (NMFS) developed the Atlantic Large Whale Take Reduction (ALWTR) plan to protect endangered large whales from entanglements in commercial fishing gear, which can cause injury or death. Because whales continued to die after the ALWTR plan went into effect, NMFS proposed revisions in 2005. GAO was asked to review these proposed revisions, including (1) their scientific basis and uncertainties regarding their effectiveness, (2) NMFS's plans to address concerns about the feasibility of implementing them, (3) the extent to which NMFS fully assessed the costs to the fishing industry and impacts on fishing communities, and (4) the extent to which NMFS developed strategies for fully evaluating their effectiveness. GAO reviewed the proposed changes to the ALWTR plan and obtained the views of NMFS officials, industry representatives, scientists, and conservationists.
NMFS used scientific data on whale entanglements, scarification, and sightings as support for its proposed changes to the ALWTR plan. These data indicate that right and humpback whales are being injured and killed by entanglements in commercial fishing gear at a rate that limits the species' ability to recover. One of the key proposed changes to the ALWTR plan involves replacing floating groundline, which forms arcs in the water that can entangle whales, with sinking groundline that lies on the ocean bottom. While there is a consensus among whale experts that using sinking groundline will reduce risks to whales, uncertainties remain regarding how many fewer serious injuries and mortalities will occur as a result of this requirement. NMFS has not yet resolved implementation issues associated with using sinking groundline in rocky bottom areas, particularly off the coast of Maine. While NMFS believes that it is operationally feasible to use sinking groundline in all areas, it recognizes that fishermen may have to modify their fishing practices to use this type of gear effectively. Maine lobster industry representatives told GAO that fishermen who operate in rocky bottom areas will not be able to use sinking groundline because it will wear away and create safety hazards if the line snaps when it is hauled. NMFS's economic assessment of the costs of the proposed gear modifications did not reflect the significant uncertainties associated with the assessment, and the extent to which these costs to the fishing industry could be higher or lower than reported is unclear. Because NMFS lacked verifiable data for some of the key cost variables, it used estimates and assumptions that introduced a significant amount of uncertainty into the cost calculations, which the agency acknowledged. However, instead of presenting a range of costs to account for these uncertainties, NMFS produced a single estimate of compliance costs--about $14 million annually. Moreover, because it lacked key data on fishermen's ability to absorb these costs without going out of business, NMFS could not fully assess the impacts that the cost of gear modifications would have on fishing communities. For example, without knowing which specific fishermen would go out of business, NMFS could not determine the impact lost jobs would have on the communities in which they lived. NMFS has not developed strategies for fully evaluating the effectiveness of the proposed regulatory changes. Specifically, NMFS's gear-marking requirements may not be adequate for effectively assessing future whale entanglements because they do not include comprehensive markings that researchers could use to assess the type of rope involved in entanglements. Additionally, NMFS does not yet have a strategy to monitor the level of industry compliance and therefore lacks a means to determine whether any future entanglements are due to industry noncompliance with the regulatory requirements or the ineffectiveness of the gear modifications.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-07-881, National Marine Fisheries Service: Improved Economic Analysis and Evaluation Strategies Needed for Proposed Changes to Atlantic Large Whale Protection Plan
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Report to the Ranking Member, Subcommittee on Oceans, Atmosphere,
Fisheries and Coast Guard, Committee on Commerce, Science, and
Transportation, U.S. Senate:
United States Government Accountability Office:
GAO:
July 2007:
National Marine Fisheries Service:
Improved Economic Analysis and Evaluation Strategies Needed for
Proposed Changes to Atlantic Large Whale Protection Plan:
GAO-07-881:
GAO Highlights:
Highlights of GAO-07-881, a report to the Ranking Member, Subcommittee
on Oceans, Atmosphere, Fisheries and Coast Guard, Committee on
Commerce, Science, and Transportation, U.S. Senate
Why GAO Did This Study:
The National Marine Fisheries Service (NMFS) developed the Atlantic
Large Whale Take Reduction (ALWTR) plan to protect endangered large
whales from entanglements in commercial fishing gear, which can cause
injury or death. Because whales continued to die after the ALWTR plan
went into effect, NMFS proposed revisions in 2005. GAO was asked to
review these proposed revisions, including (1) their scientific basis
and uncertainties regarding their effectiveness, (2) NMFS‘s plans to
address concerns about the feasibility of implementing them, (3) the
extent to which NMFS fully assessed the costs to the fishing industry
and impacts on fishing communities, and (4) the extent to which NMFS
developed strategies for fully evaluating their effectiveness. GAO
reviewed the proposed changes to the ALWTR plan and obtained the views
of NMFS officials, industry representatives, scientists, and
conservationists.
What GAO Found:
NMFS used scientific data on whale entanglements, scarification, and
sightings as support for its proposed changes to the ALWTR plan. These
data indicate that right and humpback whales are being injured and
killed by entanglements in commercial fishing gear at a rate that
limits the species‘ ability to recover. One of the key proposed changes
to the ALWTR plan involves replacing floating groundline, which forms
arcs in the water that can entangle whales, with sinking groundline
that lies on the ocean bottom. While there is a consensus among whale
experts that using sinking groundline will reduce risks to whales,
uncertainties remain regarding how many fewer serious injuries and
mortalities will occur as a result of this requirement.
NMFS has not yet resolved implementation issues associated with using
sinking groundline in rocky bottom areas, particularly off the coast of
Maine. While NMFS believes that it is operationally feasible to use
sinking groundline in all areas, it recognizes that fishermen may have
to modify their fishing practices to use this type of gear effectively.
Maine lobster industry representatives told GAO that fishermen who
operate in rocky bottom areas will not be able to use sinking
groundline because it will wear away and create safety hazards if the
line snaps when it is hauled.
NMFS‘s economic assessment of the costs of the proposed gear
modifications did not reflect the significant uncertainties associated
with the assessment, and the extent to which these costs to the fishing
industry could be higher or lower than reported is unclear. Because
NMFS lacked verifiable data for some of the key cost variables, it used
estimates and assumptions that introduced a significant amount of
uncertainty into the cost calculations, which the agency acknowledged.
However, instead of presenting a range of costs to account for these
uncertainties, NMFS produced a single estimate of compliance
costs”about $14 million annually. Moreover, because it lacked key data
on fishermen‘s ability to absorb these costs without going out of
business, NMFS could not fully assess the impacts that the cost of gear
modifications would have on fishing communities. For example, without
knowing which specific fishermen would go out of business, NMFS could
not determine the impact lost jobs would have on the communities in
which they lived.
NMFS has not developed strategies for fully evaluating the
effectiveness of the proposed regulatory changes. Specifically, NMFS‘s
gear-marking requirements may not be adequate for effectively assessing
future whale entanglements because they do not include comprehensive
markings that researchers could use to assess the type of rope involved
in entanglements. Additionally, NMFS does not yet have a strategy to
monitor the level of industry compliance and therefore lacks a means to
determine whether any future entanglements are due to industry
noncompliance with the regulatory requirements or the ineffectiveness
of the gear modifications.
What GAO Recommends:
GAO recommends that NMFS revise its economic analysis to present a
range of possible costs, expand its proposed gear-marking requirements,
and develop a strategy to assess industry compliance. The agency
reviewed a draft of this report and did not agree to revise its
economic analysis or expand gear markings but did agree to develop a
strategy to assess industry compliance.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-881.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Anu K. Mittal at (202)
512-3841or mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
NMFS Based Proposed Gear Modifications on Scientific Research, but It
Cannot Estimate the Extent to Which Risks to Whales Will Be Reduced:
NMFS Has Not Resolved Potential Implementation Challenges with Using
Modified Fishing Gear in Rocky Ocean Bottom Areas:
NMFS Did Not Adequately Represent Uncertainties Associated With
Proposed Gear Modifications Cost and Could Not Fully Assess Impacts on
Potentially Affected Fishing Communities:
NMFS Has Not Developed Strategies for Fully Evaluating the
Effectiveness of the Proposed Gear Modifications:
Conclusion:
Recommendations:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Comments from the Department of Commerce:
GAO Comments:
Appendix III: GAO Contact and Staff Acknowledgments:
Table:
Table 1: Number of Injuries and Mortalities to Large Whale Species and
Impact on Their Ability to Recover:
Figure:
Figure 1: Commercial Gear Configurations for Trap Fisheries:
Abbreviations:
ALWTR: Atlantic Large Whale Take Reduction:
DAM: Dynamic Area Management:
DEIS: Draft Environmental Impact Statement:
ESA: Endangered Species Act:
FEIS: Final Environmental Impact Statement:
MLA: Maine Lobstermen's Association:
MMPA: Marine Mammal Protection Act:
NMFS: National Marine Fisheries Service:
NOAA: National Oceanic and Atmospheric Administration:
SAM: Seasonal Area Management:
United States Government Accountability Office:
Washington, DC 20548:
July 20, 2007:
The Honorable Olympia J. Snowe:
Ranking Member, Subcommittee on Oceans, Atmosphere, Fisheries and Coast
Guard:
Committee on Commerce, Science, and Transportation:
n n United States Senate:
Dear Senator Snowe:
Despite regulatory actions designed to ensure their safety and
survival, endangered large Atlantic whales continue to become entangled
in commercial fishing gear, sometimes resulting in death or severe
injury. Right, humpback, and fin whales are three species of Atlantic
large whales that are protected under the Endangered Species Act (ESA)
and Marine Mammal Protection Act (MMPA), under the administration of
the National Marine Fisheries Service (NMFS).[Footnote 1] NMFS is
particularly concerned about the North Atlantic right whale because
scientists estimate that there are only about 300 of these whales in
existence. NMFS has determined that with a population reduced to such a
low number, the death or serious injury of even one right whale from
human-related causes, such as fishing gear entanglement, would limit
the ability of the species to recover.
Atlantic large whales are at risk of entanglement in fishing gear
because they feed, travel, and breed in areas where commercial
fishermen leave traps and gillnets.[Footnote 2] Fishermen set lobster
and other traps either singly, or in strings of multiple traps linked
together with rope known as groundline, as shown in figure 1. A buoy at
the surface, which fishermen use to locate their gear, is connected to
a vertical rope linked to the traps. Fishermen use the vertical rope to
haul traps into their boats. Gillnet fisheries, which catch fish such
as sharks and groundfish, use some of the same gear components, but use
nets instead of traps.[Footnote 3]
Figure 1: Commercial Gear Configurations for Trap Fisheries:
[See PDF for image]
Source: GAO.
[End of figure]
When whales become entangled in fishing gear, they can sometimes free
themselves without serious injury. However, in other cases,
entanglement can impede the whale's normal breathing and movement,
causing it to drown. Even if the whale is eventually able to break
free, part of the gear may remain attached to its body, sometimes
making it more difficult to breathe, feed, and travel, and possibly
leading to an early death.
In 1997, under the MMPA, NMFS developed the Atlantic Large Whale Take
Reduction (ALWTR) Plan to reduce the risk of serious injury and
mortality to right, humpback, and fin whales from entanglement in
commercial fishing gear.[Footnote 4] This plan included several gear
modifications that apply to lobster and certain gillnet fisheries--such
as prohibiting floating vertical line at the surface--as well as season-
specific requirements that are in effect when whales are expected in
certain areas. Due to the continued serious injury and mortality of
large whales after the ALWTR plan was implemented, NMFS established
additional measures. For example, in 2002, NMFS established measures
(1) restricting commercial fishing gear in areas where right whales are
known to feed and (2) allowing the agency to temporarily restrict or
prohibit gear in specific areas of the north Atlantic if three or more
right whales were observed within 75 square nautical miles.
Despite NMFS's efforts, whale entanglements and deaths continued. At
the end of 2002, NMFS determined, after an independent peer review,
that a right whale had been entangled in gear consistent with U.S.
fishing gear. Due to this and other fatal and nonfatal entanglements of
right, humpback and fin whales, NMFS filed a notice of intent in the
June 30, 2003, Federal Register that it planned to prepare an
environmental impact statement to analyze the impacts of revising the
ALWTR plan and stated that it would hold meetings with stakeholders to
collect information on strategies to reduce whale entanglements.
Between 2003 and 2004, after the stakeholder meetings, the agency
developed proposed modifications to the ALWTR plan and conducted an
analysis on the effects these modifications would have on whales, the
fishing industry, and fishing communities. In February 2005, the agency
issued a draft environmental impact statement (DEIS) that identified
six alternative sets of proposed modifications to the existing ALWTR
plan.[Footnote 5] NMFS designated two of these as "preferred"
alternatives with the goal of selecting one in the final environmental
impact statement. The preferred alternatives outlined a broader
approach to whale protection by incorporating additional fisheries into
the ALWTR plan and requiring year-round and seasonal gear modifications
in the North Atlantic. One of the key proposed changes requires
fishermen to replace floating groundline, which creates arcs in the
water that can entangle whales, with sinking groundline, which lies on
the ocean bottom.[Footnote 6] However, there are concerns that the cost
of the gear modifications, particularly sinking groundline, may
threaten the livelihood of fishermen, especially lobstermen. In the
DEIS, NMFS estimated that the total cost to the fishing industry would
be about $14 million annually and that the lobster industry would incur
more than $12.8 million of these projected costs.
In June 2005, NMFS published a proposed rule to amend the regulations
implementing the ALWTR plan.[Footnote 7] In February 2007, after an
interagency review, NMFS withdrew the rule. According to a NMFS
official, the interagency review raised concerns that NMFS had not
fully addressed issues raised by the state of Maine and the Maine
lobster industry, such as which areas along the Maine coast should be
exempt from the proposed gear modifications. NMFS is currently
reevaluating the proposed regulation to determine if any revisions are
needed. The agency hopes to complete its review and have a final
regulation in place by year-end 2007. In the meantime, the current
regulations remain in effect, and endangered large whales continue to
be at risk of entanglement in commercial fishing gear.
Since NMFS has not issued a final environmental impact statement or
regulation, you asked us to review the proposed changes to the ALWTR
plan outlined in the DEIS. Specifically, you asked us to (1) describe
the scientific basis for the proposed changes to the ALWTR plan and the
extent to which uncertainties exist regarding how effectively they will
protect large whales; (2) describe how the agency plans to address
implementation issues, particularly in the rocky bottom areas of the
North Atlantic coast; (3) evaluate the extent to which NMFS fully
assessed costs to the fishing industry and the economic impacts on
fishing communities; and (4) evaluate the extent to which NMFS has
developed strategies for fully assessing the effectiveness of and
industry compliance with the proposed changes.
To address our objectives, we reviewed the DEIS, public comments on the
DEIS, and scientific literature on right, humpback, and fin whales. We
also obtained the views of a wide range of stakeholders on the proposed
changes to the ALWTR plan, such as marine mammal scientists, including
those at the Woods Hole Oceanographic Institution and the Provincetown
Center for Coastal Studies[Footnote 8]; federal regulators, including
officials at NMFS's Northeast Regional Office who participated in
developing the proposed changes to the plan; state fisheries management
officials in Maine and Massachusetts; industry groups, including the
Maine Lobstermen's Association; a conservation group, the Humane
Society of the United States; and the Marine Mammal Commission, an
independent U.S. agency responsible for providing oversight of the
marine mammal conservation policies and programs carried out by federal
regulatory agencies. We also met with officials from Industrial
Economics Inc., who conducted the economic analysis for NMFS that was
included in the DEIS. Finally, we reviewed documentation of federal and
state compliance efforts related to the current ALWTR plan. A more
detailed description of our scope and methodology is presented in
appendix I. We performed our work between August 2006 and June 2007 in
accordance with generally accepted government auditing standards.
Results in Brief:
Figure 2: NMFS based its proposed changes to the ALWTR plan on
scientific research that indicated that whales are becoming entangled
in commercial fishing gear and that sinking groundline will almost
certainly reduce entanglements; however, the agency cannot determine
the overall extent to which the proposed gear modifications will reduce
serious injury or mortality to whales. To support the need for the
proposed changes to the ALWTR plan, NMFS used its scientific stock
assessments and entanglement reports, which showed that--despite
current regulatory measures--right and humpback whales are being
seriously injured or killed by entanglements in commercial fishing gear
at a rate that limits the species' ability to recover. NMFS also relied
on scientific research that showed that about three-quarters of the
right whale population and one-half of the humpback whale population
had scars caused by entanglement with commercial fishing gear. NMFS
developed the specific proposed gear modifications based, in part, on a
study of gear found on entangled right and humpback whales that
indicated that all parts of commercial fishing gear create a risk of
entanglement for these whales. However, the study did not provide
information regarding the extent to which each component of fishing
gear poses a risk to whales. Therefore, NMFS could not estimate how
many fewer serious injuries and mortalities will occur as a result of
its proposed changes. While scientists believe that sinking groundline-
-one of the key features of the proposal--will reduce risks to whales,
they are uncertain if it will eliminate all serious injuries or
mortalities from entanglements in groundline. In addition, the study of
gear found on entangled right and humpback whales indicated that other
parts of the gear, including vertical line, also posed an entanglement
risk. Although NMFS has taken some actions to mitigate this risk, such
as implementing weak link requirements, the agency acknowledges that
more needs to be done, and it plans to further address vertical line in
the future.
NMFS has not resolved challenges associated with implementing the
proposed fishing gear modifications in the rocky bottom areas of the
North Atlantic coast. NMFS maintains that it is operationally feasible
to use sinking groundline in all areas, but the agency told us that
fishermen may have to modify their fishing practices. For example,
fishermen may need to modify the way they retrieve their gear so that
sinking groundline does not become caught on rocks, causing gear loss.
However, Maine lobster fishermen contend that it is not operationally
feasible for them to use sinking groundline in rocky bottom areas
because the rocks will cause abrasion--wearing away or weakening the
rope--which could require them to replace their rope too frequently or
cause gear loss. Fishermen are also concerned that sinking groundline
poses safety risks to them. For example, if sinking groundline abrades
along the rocky bottom and breaks when fishermen retrieve their gear,
the line could strike and injure them. A NMFS official maintained that
fishermen need to be vigilant about the condition of their rope--
whether it is floating groundline or sinking groundline--and replace
it, as needed, to reduce the risk of injury and avoid gear loss. In
January 2007, the Maine Department of Marine Resources submitted a
proposal to NMFS that would allow fishermen to use "low-profile"
groundline--a rope that floats on average about 3 feet above the ocean
bottom--as an alternative to the use of sinking groundline along rocky
bottom areas of Maine's coast. The state believes low-profile
groundline will both benefit the lobster industry and protect whales.
NMFS and the scientists with whom we spoke are unsure if low-profile
groundline will reduce the risk of whale entanglement because it could
form an arc similar to that of floating groundline creating an
entanglement risk for large whales.
NMFS's economic assessment of the proposed fishing gear modifications
did not (1) adequately represent the uncertainties of its cost
estimates, which could result in higher or lower costs to the fishing
industry than reported in the DEIS and (2) fully assess the impacts of
the increased costs on affected fishing communities. NMFS included key
variables, such as the cost of rope replacement and expected increases
in gear loss, in its estimate of the costs of the proposed changes on
the fishing industry. However, NMFS did not have verifiable data to
estimate the costs of these variables. For example, NMFS's estimates of
the costs of gear loss were based on expert opinions, not on data that
had been verified through field testing. The use of estimates and lack
of verifiable data introduced a significant amount of uncertainty into
NMFS's calculations of the cost of the proposed gear modifications on
fishermen. Although the agency acknowledged these uncertainties in the
DEIS, it produced a single estimate of compliance costs--about $14
million annually, most of which would be incurred by the lobster
industry--rather than a range of possible costs. Presenting a range of
costs would have better represented the significant uncertainty that
exists in NMFS's estimate and would have better demonstrated the extent
to which total costs to fishermen and the fishing industry could be
different than what NMFS estimated. In addition, because NMFS did not
have data on fishermen's ability to absorb the costs of the proposed
gear modifications, the agency used revenue estimates and made
arbitrary assumptions to estimate the number of fisherman that would go
out of business because of the increased costs. However, because
fishermen's revenues and their ability to absorb additional costs could
be noticeably different than what NMFS assumed, the number of fisherman
that would go out of business could be lower or higher than NMFS
estimated. Furthermore, because NMFS lacked information about which
specific fishermen, living in which communities, would go out of
business, it could not identify exactly which communities would lose
jobs or determine the impact any lost jobs and income would have on
these fishing communities.
NMFS has not developed strategies for fully evaluating the
effectiveness of the proposed regulatory changes. Specifically, NMFS
could require comprehensive markings on commercial fishing gear that
would enable researchers to assess the type of rope involved in
entanglements. Although NMFS's proposed modifications to the ALWTR plan
include new gear marking requirements--such as marking vertical lines-
-it has not proposed marking sinking groundline because it believes
that the use of sinking groundline will be completely effective in
protecting whales. However, scientists with whom we spoke, including
NMFS's scientists, said that while they believe sinking groundline will
reduce risk of whale entanglements, they also believe its success
cannot be guaranteed; and therefore, it should be marked so that its
performance can be evaluated. To assess the effectiveness of its
proposed regulatory requirements, NMFS also needs to be able to
determine whether any future entanglements are due to noncompliance by
industry with the regulatory requirements or the ineffectiveness of the
gear modifications. However, NMFS has not yet developed a strategy for
monitoring the level of industry compliance.
Given the need to fully disclose the potential cost burden on fishermen
and to assess the proposed measures to protect endangered large whales,
we are recommending that when NMFS finalizes the proposed changes to
the ALWTR plan it revises its economic analysis to present a range of
possible costs, expands its proposed gear-marking requirements, and
develops a strategy to assess industry compliance. In commenting on a
draft of the report, the National Oceanic and Atmospheric
Administration (NOAA) did not agree with our first two recommendations
but did agree to develop a strategy for assessing industry compliance.
NOAA believes that the uncertainty of the data was adequately
represented in the DEIS and therefore did not agree that the agency
needs to present a range of possible costs in its final economic
analysis. Nonetheless, NOAA said that it is planning to clarify the
variations and uncertainties within its analysis in the Final
Environmental Impact Statement. With regard to our recommendation on
markings for sinking groundline and gear in exempted areas, NOAA stated
that such markings are not feasible or practical at this time. It is
unclear to us why NOAA would make such a statement given that in the
DEIS, NMFS has proposed similar marking requirements for vertical line.
Although NOAA agreed with our recommendation to develop a strategy for
assessing industry compliance with the gear modification requirements,
it did not believe that the recommendation could be implemented before
NMFS finalizes the proposed regulations. We believe that if NOAA is
unable to complete its strategy prior to finalizing its proposed
regulations, the strategy should be in place by the effective date of
the final regulations. The full text of NOAA's comments and our
responses appears in appendix II.
Background:
Right, humpback, and fin whales were hunted by commercial whalers. The
right whale, in particular, was targeted by whalers because it is a
slow-moving animal that floats when it is killed, due to its high
blubber content. Accordingly, whalers gave the right whale its name
because it was the "right" whale to hunt. In 1949, the International
Convention for the Regulation of Whaling protected right whales from
commercial whaling. In 1970, the species was listed as endangered under
the Endangered Species Conservation Act, the precursor to the ESA.
Right whales were subsequently listed as endangered under the ESA in
1973. Despite several decades of conservation efforts, the right whale
has struggled to recover due to low reproductive rates and accidental
human-caused mortality. The North Atlantic right whale is among the
most endangered large whale species in the world. A 1999 study
estimated that the species will be extinct within 200 years if
mortality rates continue.[Footnote 9] Humpback and fin whales were
hunted for oil, meat, and materials for utilitarian products (e.g.,
corset stays, umbrella ribs, buggy whips, etc.) until the 20th century.
The International Whaling Commission banned commercial whaling of North
Atlantic humpback whales in 1955. Commercial whaling of the fin whale
was banned in the North Atlantic in 1987.[Footnote 10] Both humpback
and fin whales have been listed as endangered under the ESA since its
passage in 1973.
Atlantic large whales are at risk for entanglement in commercial
fishing gear when they are traveling, feeding, and breeding. For
example, right whales feed with their mouths open for extended periods
of time using their baleen--a substance that grows in comb-like rows
from the upper jaws of toothless whales--to filter plankton from
seawater. Much about the movements and habitats of right whales remains
unknown. However, it is generally thought that some right whales winter
in the lower latitudes--off the southeast U.S. Atlantic coast, where
calving takes place--then migrate to higher latitudes, near
Massachusetts and Maine for the summer, following concentrations of
copepods, their principal food source.[Footnote 11] Right whales
primarily use the mid-Atlantic region to migrate to and from the
calving grounds in the south. Like right whales, humpback whales also
feed off the coasts of Massachusetts and Maine, however, they winter
farther south. Humpback whales employ a variety of feeding techniques
that differ from right whale feeding techniques. For example, one way
that humpback whales feed is by lunging into a patch of small fish with
their mouth wide-open for a short period of time. Like right and
humpback whales, scientists believe that fin whales use northern waters
primarily for feeding and southern waters primarily for calving. Fin
whales also engage in lunge feeding.
Under the MMPA, NMFS must develop a plan to protect Atlantic large
whales from entanglements that cause serious injury or
mortality.[Footnote 12] The MMPA was enacted in 1972 to provide
protection for all marine mammals. Section 118, enacted in the 1994
amendments to the MMPA, specifically outlines a process for reducing
serious injury and mortality incidental to commercial fishing
operations.[Footnote 13] Under that process, if NMFS determines that a
species' ability to recover has become diminished by commercial fishing
activities, the agency must develop and implement a plan--known as a
take reduction plan[Footnote 14]--to reduce serious injury and
mortality to the species. The MMPA requires a take reduction team to be
involved in developing a take reduction plan. Members of the team are
required to have either biological/conservation expertise relevant to
the marine mammal species addressed in the take reduction plan or the
fishing practices that result in the incidental mortality and serious
injury of the species. Team members must include representatives of
federal agencies, state agencies, Regional Fishery Management
Councils,[Footnote 15] interstate fishery commissions, academic and
scientific organizations, environmental groups, and fishery groups that
use gear that could harm the species.
The immediate goal of a take reduction plan is to reduce, within 6
months, mortality and serious injury below the potential biological
removal level--meaning the maximum number of human-related mortalities
that can occur annually without limiting the species' ability to
recover.[Footnote 16] The long-term goal of a take reduction plan is
to, within 5 years, reduce fishery-related mortality and serious injury
to insignificant levels approaching zero.[Footnote 17] The take
reduction plan must include recommended regulatory and voluntary
measures aimed at reducing mortality and serious injury, such as
requiring the use of alternative commercial fishing gear or techniques.
The current ALWTR plan, originally developed in 1997, includes both
universal gear modifications that apply to all lobster traps and
anchored gillnets as well as area-and season-specific requirements. The
universal requirements prohibit floating vertical line at the surface,
require gear to be hauled out of the water at least once every 30 days,
and encourage fishermen to maintain knot-free vertical lines. In
particular areas, such as Cape Cod Bay, fishermen are required to use
sinking groundline, which poses less of an entanglement risk because it
sinks to the ocean floor rather than creating loops in the water.
Fishermen in certain areas are also required to attach weak links--
devices that are designed to break if a particular amount of pressure
is applied--to their vertical lines or gillnet panels and place marks
on their gear so researchers may be able to identify the fishery
involved and the location where the gear was set if it is later
recovered from an entangled whale. In addition, certain restricted
areas are closed to lobster trap fishing or anchored gillnetting during
particular seasons when whales are likely to be in the area. When these
areas are open, fishermen are limited to using gear that meets
particular requirements, such as weak links.
While NMFS has developed the ALWTR plan pursuant to its
responsibilities under the MMPA, NMFS also has responsibilities under
the ESA. The ESA directs all federal agencies to utilize their
authorities to conserve threatened and endangered species. In addition,
such species and their habitats must be protected against adverse
effects of federal activities such as operating hydroelectric dams,
thinning vegetation to prevent wildfires, and--as in this case--
permitting fishing, so that the continued existence of protected
species is not jeopardized. The right, humpback, and fin whale species
are all listed as endangered under the ESA. Section 7 of the ESA
directs federal agencies that are taking actions that may affect
protected species--referred to as action agencies--to initiate a
"consultation" to assess the impacts of their actions on threatened and
endangered species. Federal action agencies consult with either NMFS or
the U.S. Fish and Wildlife Service within the Department of the
Interior, depending on which species their actions may affect.[Footnote
18] These agencies are referred to as the consulting agencies. For
example, because NMFS regulates commercial fishing and the activities
of the fishing industry have seriously injured or killed endangered
whales, NMFS must consult on its proposed fishery regulation that may
affect endangered whales. Consequently, in this case, NMFS acts as both
the action agency and the consulting agency. Action agencies submit
biological assessments to the consulting agencies that discuss their
proposed activities and their likely effects on protected species and
their habitat. The consulting agency completes the formal consultation
process by issuing a biological opinion. If the consulting agency
concludes that the proposed activities are likely to jeopardize the
species' continued existence or adversely modify its habitat, the
biological opinion will include reasonable and prudent alternatives
that are necessary or appropriate to minimize impacts to protected
species. If any "take" of a species is expected to occur, the
biological opinion also must contain terms and conditions designed to
reduce take and address adverse modification of designated critical
habitat. For example, NMFS has prepared biological opinions to assess
the impact of continuing to permit the multispecies, spiny dogfish,
monkfish, and lobster fisheries on protected marine species.[Footnote
19] In the most recent opinion, NMFS identified the fishing gear
modifications contained in the ALWTR plan as a reasonable and prudent
alternative to protect right whales from fishing gear entanglements.
In 2000, after new whale entanglements caused serious injuries to right
whales, as well as at least one right whale fatality in gillnet gear,
NMFS reinitiated a section 7 consultation for the multispecies, spiny
dogfish, monkfish, and lobster fisheries. NMFS's biological opinion
found that its administration of these fisheries was likely to
jeopardize the continued existence of the right whale. Consequently,
NMFS developed the Seasonal Area Management (SAM) and Dynamic Area
Management (DAM) programs as reasonable and prudent alternatives to
avoid further jeopardizing the existence of the right whale. The SAM
program imposes seasonal restrictions on lobster and gillnet fishermen
to protect predictable aggregations of right whales that annually feed
in waters north and east of Cape Cod. Gear set in the SAM zone during
designated times must be low-risk gear, which is defined as gear that
is highly unlikely to cause death or serious injury to large whales.
For example, lobster and gillnet fishermen are prohibited from using
floating groundline in the western part of the SAM area from March 1 to
April 30 and in the eastern part of the SAM area from May 1 to July 31,
when whales are expected to be in the area. The DAM program, on the
other hand, requires temporary gear restrictions in areas that
experience an unexpected aggregation of right whales. If three or more
right whales are spotted within 75 square nautical miles, NMFS can
restrict fishing by taking one or all of the following actions: (1)
requiring lobster and gillnet fishermen to remove their gear and
prohibiting them from setting additional gear within the area, (2)
limiting the type of gear that can be used in the area, or (3)
encouraging fishermen to voluntarily stop fishing and remove their gear
from the area. DAM zone restrictions remain in effect for 15 days and
can be extended if three right whales continue to be sighted in the
area within 75 nautical miles of each other.
Because whale entanglements that led to serious injury or mortality
continued to occur after the SAM and DAM programs went into effect, in
2003, NMFS began a process of revising the ALWTR plan to require
additional fishing gear modifications that apply to trap and gillnet
fisheries throughout the U.S. Atlantic coast. These fisheries were
selected because gear associated with them was found on entangled
whales. In February 2005, NMFS issued a draft environmental impact
statement under the National Environmental Policy Act that outlined its
proposed regulatory changes to the ALWTR plan and the associated costs
and impacts to those affected by the regulation. The DEIS identified
six regulatory alternatives, two of which were identified as preferred
alternatives. Some of the elements of the proposed changes were to (1)
replace floating groundline with sinking groundline, (2) alter the
requirements for weak links, and (3) change the gear marking
requirements. Regarding weak links, NMFS proposed that lobster and
other trap fisheries in some areas be required to use weak links of a
lower breaking strength--making it easier for whales to break them--and
that gillnet fisheries in some areas be required to use more weak links
per net panel than called for in the current requirements. Regarding
gear marking, NMFS proposed expanding the frequency of gear marking to
one 4-inch mark every 60 feet on the vertical line, among other things.
NMFS also proposed applying these gear modifications more broadly than
previous regulations. First, NMFS proposed incorporating additional
trap and gillnet fisheries in to the ALWTR plan because these fisheries
also use gear that poses a risk to whales.[Footnote 20] Second, NMFS
proposed year-round gear modifications in the North Atlantic, because
whales are always present there, and seasonal gear modifications in the
Mid-Atlantic and the South Atlantic regions at times when right,
humpback, and fin whales sightings primarily occur.
In anticipation of increased gear costs to fishermen as a result of the
proposed gear modifications, NMFS and nonprofit organizations have
provided funding for fishermen to make initial replacements of floating
groundline with sinking groundline. NMFS officials told us the agency
recently funded a $600,000 rope buyback and recycling program for the
Mid-Atlantic trap fishermen. NMFS officials also told us that the
agency recently provided $2 million to the Gulf of Maine Lobster
Foundation to fund a rope buyback program to assist Maine lobster
fishermen. The foundation began disbursing the funds to fishermen in
May 2007. In addition, NMFS officials told us the agency provided
$660,000 to the International Fund for Animal Welfare, which matched
the federal funding, to finance a Massachusetts rope buyback and
recycling program for the lobster industry.
While fishing gear entanglement is a significant source of risk for
Atlantic large whales, so are collisions with ships. For example, from
2000 to 2004, NMFS reported that one right whale and 0.6 humpback whale
serious injuries or mortalities per year were attributable to
collisions with ships in U.S. waters.[Footnote 21] NMFS has proposed a
regulation to reduce the risk of ship strikes to North Atlantic right
whales, which would restrict ship speed along certain areas of the east
coast during certain times of the year. NMFS expects to issue the
regulation in 2007. In addition to this regulation, NMFS has also
recommended changes to shipping routes off four major ports where high
densities of ships and right whales overlap.
NMFS Based Proposed Gear Modifications on Scientific Research, but It
Cannot Estimate the Extent to Which Risks to Whales Will Be Reduced:
Based on its scientific stock assessments of whale populations, NMFS
determined that right and humpback whales are being seriously injured
or killed at a rate that limits the species' ability to recover. NMFS
also analyzed scientific data on whale entanglements, scarification
caused by entanglement, and sightings, which supported the need to
propose changes to the ALWTR plan. These data indicate that whales
travel widely up and down the Atlantic coast and encounter and become
entangled in commercial fishing gear. NMFS then developed the specific
proposed gear modifications based, in part, on a study of the gear
involved in entanglements of right and humpback whales that indicated
that all parts of commercial fishing gear pose a risk to whales. While
there is general agreement among scientists, conservationists, federal
and state regulators, and industry groups that requiring certain
commercial fisheries to use sinking groundline--one of the key features
of NMFS's proposed modifications to the ALWTR plan--will reduce risks
to whales, uncertainties remain regarding how many fewer serious
injuries and mortalities will occur. There is also uncertainty over
whether other proposed changes to the ALWTR plan will effectively
protect large whales.
NMFS Based Its Proposed Gear Modifications on Scientific Studies of
Whale Entanglement, Scarification, and Sightings:
To support the need to propose changes to the ALWTR plan, NMFS used its
annual stock assessment reports of endangered large whale populations
and entanglement reports, which showed that--despite current regulatory
measures--right and humpback whales were being seriously injured or
killed by entanglements in commercial gear at a rate that limits the
species' ability to recover to their maximum sustainable
population.[Footnote 22] In the 2003 stock assessment report, the
agency determined--based on the size of the right whale population--
that the maximum annual number of human-related mortalities that can
occur without limiting the species' ability to recover is
zero.[Footnote 23] However, this stock assessment report showed that
from 1997 to 2001, there were about 1.2 documented serious injuries and
mortalities annually to right whales from fishing-gear
entanglements.[Footnote 24] The 2003 stock assessment report also
indicated that humpback whales were being seriously injured or killed
from fishing-gear entanglements at a rate that limits the species'
ability to recover. The most recent stock assessment report (2006)
indicates that right and humpback continue to be seriously injured or
killed from fishing-gear entanglements at a rate that limits their
ability to recover.[Footnote 25] In contrast, NMFS determined that fin
whales are not being seriously injured or killed at a rate that limits
their ability to recover based on their population size and the number
of serious injuries and mortalities that occur annually. Table 1 shows
the data that NMFS used to assess the ability of the three species to
recover based on their population size and the number of annual serious
injuries and mortalities from entanglements.
Table 1: Number of Injuries and Mortalities to Large Whale Species and
Impact on Their Ability to Recover:
Large whale species: Right;
Estimated population size: 291;
Average number of serious injuries and mortalities due to entanglement
annually (1997-2001)[A]: 1.2;
Maximum number to deaths before limiting species' ability to recover:
0.
Large whale species: Humpback;
Estimated population size: 647 to 902;
Average number of serious injuries and mortalities due to entanglement
annually (1997-2001)[A]: 2.2;
Maximum number to deaths before limiting species' ability to recover:
1.3.
Large whale species: Fin;
Estimated population size: 2,362 to 2,814;
Average number of serious injuries and mortalities due to entanglement
annually (1997-2001)[A]: 0.6;
Maximum number to deaths before limiting species' ability to recover:
4.7.
Source: NMFS data.
[A] These data include whales found in Canadian waters.
[End of table]
However, NMFS's annual stock assessment reports are likely to
understate the full extent of whale entanglements in commercial fishing
gear, as the reports only include confirmed entanglements in commercial
fishing gear that have caused serious injury or mortality to whales.
Additional serious entanglements may occur, but either because
researchers do not recover the corpses or there is not enough evidence
to determine that entanglement in commercial fishing gear caused the
whales' deaths, these incidents are not captured in the stock
assessment reports. A NMFS scientist with whom we spoke believes that
it is likely that the agency documents only a small to modest fraction
of large whale entanglements that result in serious injury or
mortality. Although NMFS's stock assessment reports include data on
seriously injured or dead whales found in Canadian waters, whether
these whales were entangled in U.S. or Canadian gear is generally not
known.[Footnote 26]
In addition to the serious injuries and mortalities from entanglements
documented in NMFS's stock assessment reports, NMFS also used
information from scarification studies developed by various scientific
institutions to demonstrate a need to revise the ALWTR plan. These
studies analyzed the rate of scarring on large whales due to
entanglement in fishing rope--thereby identifying the percentage of the
right and humpback whale populations that experience entanglement. For
these studies researchers identified individual whales using a
photographic database and determined the percent that have physical
evidence indicative of entanglement.[Footnote 27] For example, in a
2005 report, researchers from the New England Aquarium found that
approximately 75 percent of right whales had scars indicating that they
had survived an entanglement in fishing rope.[Footnote 28] Similarly, a
2004 report by scientists at the Provincetown Center for Coastal
Studies found that approximately half of the humpback whale population
also had entanglement scars.[Footnote 29] However, according to a
scientist with whom we spoke, these scarification studies may actually
underestimate the percentage of whales that have experienced
entanglement because whales that die of entanglement may not be found;
researchers only count scars that they believe, based on their
professional judgment, are highly likely to be from entanglement in
fishing gear; and some scars may fade over time.
To determine the specific gear-modification requirements to be included
in the revised ALWTR plan, NMFS relied, in part, on a study of the
fishing gear found on entangled right and humpback whales conducted by
NMFS researchers and gear specialists as well as researchers from the
Provincetown Center for Coastal Studies and the New England
Aquarium.[Footnote 30] This study found that any fishing rope from trap
and gillnet fisheries presents an entanglement risk to large whales
because all parts of the rope, such as vertical line and groundline,
have been found on entangled whales.[Footnote 31]
To determine when and where to implement the proposed gear
modifications, NMFS used data from the North Atlantic Right Whale
Sightings Database, supplemented by additional data on humpback and fin
whale sightings.[Footnote 32] Using these data, researchers can
identify where large whales are at risk of entanglement based on where
they congregate during certain times of the year. For example, NMFS
determined that right and humpback whales are sighted in the South
Atlantic region from late November through early April, but are
typically not present there the rest of the year. NMFS acknowledges
that large whales can be found throughout the year in the Mid-Atlantic
but notes that sightings occur primarily between September and May. As
a result, in its preferred alternatives, the agency proposed seasonal,
as opposed to year-round, gear modifications in the Mid-and South
Atlantic. NMFS also used the sightings data to modify the exempted
areas--those areas where commercial fishermen are not subject to the
gear modifications outlined in the ALWTR plan because whales rarely, if
ever, venture there.
Uncertainties Exist Regarding the Extent to Which the Proposed Gear
Modifications Will Protect Large Whales:
There is general agreement among scientists, conservationists, federal
and state regulators, and industry groups that requiring the use of
sinking groundline will reduce risks to whales. However, uncertainties
remain regarding how many fewer serious injuries and mortalities will
occur. NMFS was unable to quantify how much the risk of whale
entanglement will be reduced by sinking groundline because researchers
cannot quantify the extent to which each component of fishing gear
poses a risk to whales. In addition, the scientists with whom we spoke
stated that the proposed modifications to the ALWTR plan will not
eliminate all entanglements because NMFS has not fully addressed the
risks posed by vertical line. Although NMFS has taken some actions to
mitigate the risk associated with vertical line, the agency recognizes
that more needs to be done because whales continue to become entangled
in this line. The agency stated that it will further address vertical
line after conducting additional research and consulting with the ALWTR
Team.
The scientists and conservationists with whom we spoke or who provided
written comments to NMFS on the DEIS are also uncertain about the
effectiveness of other aspects of the proposed changes to the ALWTR
plan. Specifically, they were uncertain about whether the use of weak
links will reduce risks to whales because whales have been found
entangled in fishing rope that had weak links, but the links failed to
break apart. A NMFS official acknowledged that weak links are not
effective for all types of entanglements. For example, if the whale
thrashes around in response to the entanglement and becomes wrapped in
the gear, the weak link will not disengage. However, NMFS officials
noted that weak links were designed for mouth entanglements, and there
have been no documented cases of weak links malfunctioning in a mouth
entanglement. Rather, the entanglements with weak links that failed to
break apart were entanglements that involved the whale's tail. Even
though weak links may not enable whales to free themselves each time
they encounter gear, some scientists told us that weak links should be
required because they may prevent certain entanglements and are
inexpensive and easy for fishermen to use. In fact, two of the three
fishing industry association groups with whom we spoke support the use
of weak links. The third group, while supportive of using weak links,
wanted the breaking strength of weak links to be maintained at its
current level during the fall and winter months because if the breaking
strength was any weaker, rough tides and weather in offshore waters may
cause the buoy to break from the vertical line at the weak link.
Despite their general support of weak links, some of the scientists and
conservationists with whom we spoke or who provided written comments to
NMFS on the DEIS remain concerned that the breaking strengths of weak
links established by NMFS were based on fishing industry needs and not
whale protection. According to NMFS scientists, the tests the agency
conducted to determine the appropriate breaking strength of weak links
were designed to ensure the line does not break when fishermen haul
their gear. NMFS officials stated that the agency also considered what
was needed to protect whales when developing the breaking strength for
weak links. However, research by a scientist at the Stellwagen Bank
National Marine Sanctuary and members of the fishing industry suggests
that gillnet fishermen could operate successfully using weak links that
would be easier for whales to break, specifically a 600-pound breaking
strength rather than the current 1,100-pound strength.[Footnote 33]
NMFS officials stated that despite what the report said, the lower
breaking strength may not be operationally feasible because after the
report was released a fisherman involved in the study experienced
failures on some of the weak links in his gear. NMFS officials also
questioned whether larger gillnet vessels in deeper water would be able
to successfully operate with 600-pound weak links.
Similarly, some of the scientists and conservationists with whom we
spoke or who provided written comments to NMFS on the DEIS expressed
concern about the areas NMFS proposed for exemption from the gear
modifications.[Footnote 34] Some cautioned that there are risks
associated with any exemption area because it only takes one whale
traveling within exempted waters for a fatal entanglement to occur--and
for right whales one death limits the ability of the species to
recover. In addition, some scientists told us that they were concerned
that the sightings data used to draw the exemption line may not reflect
the actual long-term distribution of whales, as there have been limited
efforts to survey the whale population outside of known calving and
feeding grounds. In addition, some conservationists note that there
have been whale sightings within the exempted areas. However, NMFS
officials stated that the agency conducts broad-scale aerial surveys of
whales from the Maine-Canada border to New York and has aerial survey
coverage in other areas along the east coast as well. In addition, NMFS
said in the DEIS that it plans to monitor whale sightings in exempted
areas and assess if gear modifications are necessary in these areas.
NMFS Has Not Resolved Potential Implementation Challenges with Using
Modified Fishing Gear in Rocky Ocean Bottom Areas:
A controversial aspect of the proposed changes to the ALWTR plan that
has yet to be resolved is whether sinking groundline is operationally
feasible in rocky ocean bottom areas. NMFS told us that it is
operationally feasible to use sinking groundline in all areas, but that
fishermen may have to modify their fishing practices. For example, the
Massachusetts Lobstermen's Association stated that while fishermen have
experienced problems operating in rocky bottom areas off the coast of
Massachusetts, they have been able to adapt to using sinking
groundline. In contrast, officials from the Maine Lobstermen's
Association (MLA) told us that fishermen who operate in rocky ocean
bottom areas will not be able to use sinking groundline because it will
abrade on the rocky bottom--requiring them to replace their rope too
frequently and causing gear loss--and may create safety hazards for
fishermen.
To assess the feasibility of using sinking groundline, NMFS gear
specialists distributed it to 55 fishermen in Northeast states,
including Maine, in 2000.[Footnote 35] NMFS then formally surveyed
these fishermen to assess the performance of the sinking groundline in
2003.[Footnote 36] The 25 fishermen who responded to the survey
reported mixed views on the performance of the sinking groundline, with
the greatest amount of negative feedback coming from fishermen who
operate in eastern Maine. Fishing industry representatives told us that
the waters off the coast of eastern Maine consist of rocky bottom. Some
of the fishermen who responded to the survey reported experiencing rope
abrasion when using sinking groundline in rocky ocean bottom areas.
NMFS gear specialists stated that there was a wide range in the length
of time that fishermen used the line that was distributed to them in
2000--while some stopped using it after 1 week due to abrasion, others
are still using the line today, including some in the rocky bottom
areas of Maine. The agency maintains that while fishermen will
experience different rates of abrasion in different areas, overall,
abrasion will not be a significant problem because fishermen move
around and operate in multiple bottom types, instead of exclusively
fishing in one area. In addition, NMFS officials noted that rope
abrasion is not a problem exclusively associated with the use of
sinking groundline; fishermen who use floating groundline also
experience rope abrasion.
In addition, NMFS gear specialists maintain that fishermen will be able
to use sinking groundline once they gain experience using it. NMFS gear
specialists attributed the increased negative feedback regarding using
sinking groundline in the rocky areas of Maine to the fact that
fishermen in these areas are less likely than fishermen elsewhere to
have experience using sinking groundline. The gear specialists told us
that fishermen may have to modify their fishing practices in order to
successfully use sinking groundline, although NMFS did not discuss this
in the DEIS. For example, when using sinking groundline, fishermen will
have to be more precise when positioning their boat to haul up their
traps. According to these gear specialists, one technique that
fishermen could use is to set their boats directly above the traps, so
that the fishermen can haul the line straight up and prevent it from
getting caught on rocks. However, NMFS maintains that there is no one
answer to successfully fishing with sinking groundline on rocky bottom,
and it will take fishermen several attempts and techniques to adjust to
using sinking groundline.
In contrast, the MLA conducted some limited testing of experimental
sinking groundline[Footnote 37] under contract with the Consortium for
Wildlife Bycatch Reduction[Footnote 38] and concluded that it was not
feasible to use in all areas. According to an MLA official, some Maine
fishermen reported that sinking groundline performed well, but
fishermen who fish in rocky areas generally reported negative
experiences. An MLA official told us that, due to abrasion, sinking
groundline does not last longer than 1 month in the rockiest areas of
Maine, where fishermen experienced such bad abrasion that they stopped
using the line to avoid losing their traps. At best, in areas of Maine
that are not as rocky, the MLA official told us that sinking groundline
would last 1 year--5 years less than NMFS's estimate in the
DEIS.[Footnote 39] However, the MLA acknowledged that sinking
groundline was only tested for a short period of time and therefore
recommends additional testing to get a better understanding of its
durability.
Fishermen are also concerned that rope abrasion from using sinking
groundline in rocky bottom areas will cause gear loss. Based on his
professional experience, an MLA official told us that Maine fishermen
who fish in rocky bottom areas will experience more gear loss than NMFS
estimated because the weakened rope will cause the traps to easily
separate. NMFS recognizes that gear loss will be higher, in certain
areas, if sinking groundline is required, but a NMFS official told us
that rope abrasion will not cause more gear loss than fishermen
currently experience because fishermen have the ability to recognize
when their rope should be replaced. The NMFS official maintained that
fishermen need to be vigilant about the condition of their rope--
whether it is floating groundline or sinking groundline--and replace
it, as needed, in order to avoid gear loss. However, the agency
recognizes that sinking groundline could contribute to increased gear
loss as a result of line wrapping around rocks or other marine debris
on the ocean floor. If the line becomes caught on the ocean floor, it
may break as it hauled to the surface, causing the traps to become
separated from the vertical line. When traps become separated from the
vertical line, NMFS officials told us that it may be more difficult for
fishermen to retrieve their gear if they are using sinking groundline.
For Maine inshore fishermen, lost traps will also be more difficult to
retrieve because (1) these fishermen are more likely to use shorter
trawls than fishermen in other areas--which can be more challenging to
locate than a longer trawl that covers more area--and (2) the hook used
to retrieve lost gear can bounce off of the rocky bottom, instead of
grasping the gear. While an MLA official did not dispute that the
factors NMFS cited will contribute to gear loss, he maintained that
rope abrasion will also cause gear loss.
MLA officials told us that the Association also has concerns about
hauling gear in the manner NMFS described and indicated that there are
safety issues with using sinking groundline in rocky bottom areas. Due
to rough tidal and weather conditions, an MLA official told us that it
is not possible for fishermen to haul their traps from a precise
location, as NMFS described. The MLA also is concerned that using
sinking groundline in the rocky bottom areas of Maine poses safety
issues. For example, if fishermen attempt to haul line that is caught
on a rock, their boat could tip, potentially causing injury. Also, if
the line snaps when being hauled because it has been weakened due to
abrasion, it could strike and injure people on the boat. The Atlantic
Offshore Lobstermen's Association also expressed concern about the
safety hazards associated with hauling traps using an abraded line that
may break. In the DEIS, NMFS acknowledged that there are potential
safety hazards associated with the use of sinking groundline. However,
an agency official told us that floating groundline can also pose a
similar type of safety hazard.
To overcome the operational difficulties associated with using sinking
groundline in rocky bottom areas, the Maine Department of Marine
Resources submitted a proposal to NMFS in January 2007 that outlined an
alternative to the use of sinking groundline along rocky areas of
Maine's coast. One of the most prominent features of this proposal
involves using low-profile groundline instead of sinking groundline in
Maine's rocky bottom areas. Low-profile groundline is still in
development, but to reduce abrasion, the Department of Marine Resources
tested a line that floats, on average, about 3 feet above the ocean
bottom instead of sinking to the bottom. Maine officials acknowledge
that whales are present in the waters where they proposed using low-
profile line, but maintain that it is a better alternative to using
sinking groundline in rocky bottom areas. The state believes that low-
profile groundline will be beneficial for fishermen in these areas,
while also protecting whales from entanglement. The scientists with
whom we spoke were not willing to support low-profile groundline until
further research is conducted because they were unsure if it would
reduce the risk of entanglement. NMFS is also concerned because
although the low-profile groundline tested by the Maine Department of
Marine Resources may on average float 3 feet above the ocean floor, in
reality the rope moves constantly in the water, sometimes higher than 3
feet and sometimes lower. When it moves above the average height it
could form an arc similar to that of floating groundline creating an
entanglement risk for large whales. A NMFS official told us that the
agency plans to compile proposals on issues related to overcoming the
operational difficulties associated with using sinking groundline,
including the Maine Department of Marine Resources' low-profile
groundline proposal, and will circulate them to the ALWTR Team for
comment and discussion.
NMFS Did Not Adequately Represent Uncertainties Associated With
Proposed Gear Modifications Cost and Could Not Fully Assess Impacts on
Potentially Affected Fishing Communities:
NMFS did not have verifiable data for some of the key variables used in
its assessment of the fishing industry's costs of complying with the
proposed gear modifications.[Footnote 40] In lieu of such data, NMFS
relied on data that contained significant uncertainties about the
compliance costs. NMFS acknowledged these uncertainties but, by not
analyzing and presenting a range of possible costs, did not adequately
represent them in the cost assessment included in the DEIS. As a
result, the extent to which the fishing industry's actual costs to
comply with the proposed gear modifications could be lower or higher
than the amount reported in the DEIS is unclear. In addition, NMFS
could not fully assess the impacts of these costs on fishing
communities because it lacked data to estimate the affected fishermen's
ability to absorb additional compliance costs as well as which specific
communities would have to absorb any loss in jobs. Without such data,
the agency could not adequately determine how many fishermen would be
forced out of business or what impact this would have on communities
whose economies are closely tied to the fishing industry.
Significant Uncertainties Exist Regarding NMFS's Cost Estimates of
Complying with the Proposed Gear Modifications:
NMFS estimated that the total cost to the fishing industry of complying
with the proposed gear modifications would be about $14 million
annually.[Footnote 41] NMFS estimated that the lobster industry would
incur more than $12.8 million of the projected $14 million costs. To
estimate these costs, NMFS analyzed important differences between
fishermen such as their location of operation, number of months of
operation, and what they catch. This approach allowed the agency to
capture variations in the gear configurations and operating
characteristics of different types of fishermen and their associated
differences in expected compliance costs. NMFS also identified and
analyzed the key variables that are responsible for the total cost of
complying with the proposed gear modifications, such as the lifespan of
groundline, price of groundline, amount of gear loss, and the number of
fishermen that would incur these costs. However, there were significant
uncertainties associated with the data used to develop these cost
estimates, which were not fully represented in NMFS's single cost
estimate.
First, NMFS determined the lifespan of both floating and sinking
groundline based on undocumented estimates from fishermen and
commercial marine suppliers it interviewed, rather than data that could
be verified from field tests of groundline. Knowing the lifespan of
groundline is important because replacing it more frequently results in
higher costs to fishermen. Though NMFS tested sinking groundline to
determine if it was operationally feasible to use throughout the
northeast coast, it did not use the results of these tests to determine
its lifespan. The agency believes that field testing would not have
provided better information than the interviews it conducted on the
lifespan of groundline because its use varies from fisherman to
fisherman. Based on its interviews, NMFS reported in the DEIS that
sinking groundline, depending on its diameter, would last between 1 and
3 years less--a 17 to 33 percent shorter lifespan--than the
corresponding diameter of floating groundline.[Footnote 42] However,
NMFS could not provide documentation of its interviews or details on
how the lifespan--as reported by those interviewed--varied. According
to the MLA, the lifespan of sinking groundline can range substantially
and could be much shorter than the average NMFS reported in the DEIS.
In the DEIS, NMFS acknowledged that the lifespan of groundline is
extremely uncertain due to variations in where it is used, such as
water temperature and bottom conditions, and the specific operating
practices of fishermen. NMFS does not expect that all fishermen's
groundline would have the same lifespan as the estimates reported in
the DEIS and acknowledges that actual costs to replace groundline could
be higher or lower than estimated. Nonetheless, the agency believes
that its estimates of the lifespan of sinking groundline are accurate
and reflect what fishermen would experience in typical operating
conditions. However, by using an average lifespan of groundline in its
cost estimate, rather than the range of data collected from fishermen,
NMFS did not fully address the concern that the useful life of
groundline can vary significantly, depending on a fisherman's practices
and fishing location.
Second, while the price of groundline can vary substantially, NMFS did
not use a range of prices in its analysis to account for these
differences. In 2003, NMFS contacted four commercial marine suppliers
and dealers to obtain prices of both sinking and floating groundline.
The agency used the median reported price to estimate the costs of
replacing floating groundline with sinking groundline. However, the
agency does not have documentation of the prices collected and could
not describe how these prices varied. We contacted the same suppliers
and dealers and found that the price of groundline can range
substantially. For example, in February and April 2007 the price of 3/
8" sinking groundline--the most commonly used groundline by fishermen
and within NMFS's cost analysis--ranged from almost 1 percent to almost
34 percent higher than the price reported in the DEIS.[Footnote 43]
NMFS acknowledges that the price of groundline could be higher or lower
than reported in the DEIS but did not analyze and report the range of
groundline prices it collected from suppliers and dealers.
Third, NMFS's estimates of the costs of gear loss were based on expert
opinion because data from field tests were not available. In the DEIS,
NMFS generally reported that fishermen that comply with the proposed
gear modifications would experience greater gear loss than they do
currently. For example, sinking groundline could lead to greater gear
loss because the groundline can get caught on rocks and break as gear
is hauled up. However, due to a lack of data, NMFS cannot estimate with
confidence how much gear loss would increase for fishermen complying
with the proposed gear modifications. The agency did not believe it
would be practical to conduct field testing to determine what gear loss
could be throughout the Atlantic because it can vary greatly, depending
on how and where the gear is used. Instead, NMFS relied on the expert
opinions of its gear research team, composed of ex-fishermen who are
experienced with fishing gear, and the contractor that prepared the
DEIS to estimate gear loss. The research team and the contractor
assumed that gear loss attributable to the proposed gear modifications
would be approximately double what the fishing industry currently loses
in most areas. They estimated that gear loss would be even higher--
approximately three times as much as they currently lose--for fishermen
operating in areas near the coast of Maine due to difficulties with
retrieving gear in rocky bottom areas. While NMFS believes its
estimates were reasonable, the MLA believes that these gear-loss
estimates are inaccurate and likely to be too low in Maine's rocky
bottom areas. The agency does acknowledge that actual gear-loss costs
could be higher or lower than it estimated in the DEIS. However, by not
analyzing and reporting a range of possible gear-loss costs, NMFS did
not fully represent the uncertainty of its gear-loss assumptions, even
though it recognized that gear loss can vary, depending on the
conditions of use.
Fourth, NMFS may have underestimated the number of Maine lobster
fishermen that would be required to comply with the proposed gear
modifications. While all fishermen that operate in northern federal
waters would be subject to gear modification requirements, all
fishermen that operate in state waters along the east coast would not
share these requirements because NMFS proposed that some areas be
exempted from the regulation.[Footnote 44] However, NMFS lacked data to
effectively determine where state-permitted fishermen operate
throughout the year and specifically how many would operate in waters
exempted from the new requirements because Maine does not require
fishermen to report where they operate.[Footnote 45] Without this
information, NMFS assumed that the percentage of fishermen who would
operate in areas exempt from the proposed regulation would correspond
to the percentage of state waters that are exempt. For example, NMFS
reported in the DEIS that approximately 50 percent of Maine's state
waters would be exempted from the gear-modification requirements. The
agency also assumed that fishermen would operate in the same areas year-
round so those operating in exempted waters would not be affected by
the proposed gear modifications. NMFS made this assumption because it
believes that lobster fishing in Maine is extremely territorial, and
therefore the distance that fishermen move their gear is limited by
traditional fishing area boundaries. Consequently, the agency assumed
that approximately 50 percent of Maine's lobster fishermen, or
approximately 1,853 fishermen, would operate exclusively in exempted
waters and would not be affected by the gear-modification
requirements.[Footnote 46] However, a Maine state official and a MLA
representative told us that it was unreasonable to assume that lobster
fishermen would operate in only one area throughout the year. In fact,
they said that fishermen operate wherever lobsters are, which may be in
or out of exempted waters. If so, NMFS may not have captured the costs
of the proposed gear modifications for an unknown number of Maine
fishermen, and therefore may have underestimated how many would be
affected by the proposed ALWTR plan changes and thus the total
associated costs to the fishing industry.
NMFS acknowledges that there were uncertainties with the data used in
its analysis of the costs to the fishing industry and that actual costs
could be higher or lower than presented in the DEIS. However, NMFS did
not determine the extent to which changes in the lifespan of
groundline, price of groundline, amount of gear loss, or the number of
fishermen who would have to comply with these requirements would impact
the overall $14 million cost estimate. By reporting a single estimate
rather than a range of the fishermen's compliance costs, the DEIS did
not adequately represent the uncertainties of these key variables in
NMFS's assessment. Furthermore, without reporting such a range to
account for these uncertainties, the extent to which the total
estimated cost of complying with the proposed gear modifications could
be different than the $14 million estimate reported in the DEIS is
unclear.
NMFS Could Not Fully Assess the Impacts of the Proposed Changes on
Fishing Communities Because It Lacked Data on Fishermen's Ability to
Absorb Additional Costs and Remain in Business:
In addition to assessing the cost of the proposed gear modifications to
the fishing industry, NMFS analyzed the effects of the costs of
complying with the proposed gear modifications on both fishermen and
fishing communities. Conducting an analysis of the effects on fishing
communities first requires determining fishermen's ability to absorb
additional costs and remain in business and may also include an
estimate of changes in regional employment and income directly and
indirectly related to the cost of complying with the proposed
regulation.[Footnote 47] However, NMFS could not fully conduct these
analyses due to a lack of data.
Specifically, NMFS lacked data on fishermen's costs and revenue in a
way that it could estimate their ability to absorb the increased costs
of complying with the proposed gear modifications without going out of
business. Instead, NMFS estimated fishermen's average annual revenue
and then made an arbitrary assumption about the level of increased
costs that would cause a fisherman to go out of business. First, NMFS
estimated fishermen's annual revenue based on a limited number of
fishermen because comprehensive revenue data do not exist. For example,
NMFS used data from 9 lobster fishermen to estimate the revenue of 284
northern lobster fishermen that operate vessels less than 28 feet long.
However, without fishermen-specific revenue data for all fishermen, the
agency was unsure how well its estimates would compare with their
actual revenue. Regarding small lobster vessels, NMFS said that it is
possible that its analysis in the DEIS systematically underestimates
their revenue. NMFS then made an arbitrary assumption that if gear-
modification costs were greater than 15 percent of a fisherman's
estimated annual revenue, then the fisherman could not absorb the
additional costs and would go out of business. NMFS reported in the
DEIS that it made this assumption because there is no clearly defined
threshold of additional costs that would cause a fisherman to go out of
business. Using this assumption, NMFS estimated that approximately 379
fishermen would go out of business, including many that operate smaller
vessels for which NMFS lacked actual revenue data. However, because
fishermen's actual revenues, as well as their ability to absorb
additional costs, could be noticeably different from what NMFS assumed,
the number of fisherman that would go out of business could be lower or
higher than NMFS estimated.
Furthermore, because NMFS lacked information about which specific
fishermen, living in which communities, would go out of business, it
could not predict the extent to which specific communities would be
affected. That is, NMFS could not identify exactly which communities
would lose jobs or quantify any loss of regional income as the result
of complying with the regulation. NMFS officials stated that
associating any impact to a particular fishing community is
particularly difficult because fishermen can sell their fish in one
town, harbor their boat in a different town, and reside in a
neighboring town. As an alternative, the agency identified potentially
affected counties that had (1) over 100 fishermen that would be subject
to the ALWTR plan requirements and (2) reported annual landings--
seafood caught by fishermen--over 2 million pounds by vessels using
ALWTR plan regulated gear.[Footnote 48] The agency identified 15
counties that met these criteria, many of which were in Maine and
economically dependent on the fishing industry.[Footnote 49] The agency
reported a general description of possible employment effects on these
counties, but could not quantify and specifically associate the impact
of lost income and employment to any specific community. Consequently,
it is not clear how significant the potential economic impacts on these
communities would be and how well these communities could withstand the
potential loss of fishing jobs and related income.
NMFS Has Not Developed Strategies for Fully Evaluating the
Effectiveness of the Proposed Gear Modifications:
Although NMFS's proposed modifications to the ALWTR plan contain some
revisions to the current gear-marking requirements, such as increased
marking of the vertical line, the agency has not developed a
comprehensive approach to gear marking that would provide more complete
information about the gear involved in future whale entanglements.
Markings on commercial fishing gear can enable researchers to assess
the type of rope involved in an entanglement, thereby providing
critical information to assess the effectiveness of current whale
protection measures and insights into needed changes. In addition, NMFS
has not developed a strategy for determining whether future
entanglements are due to industry noncompliance with the gear
modification requirements or the ineffectiveness of the gear
modifications themselves.
Lack of Comprehensive Gear-Marking Requirements Could Hamper Assessment
of Proposed Gear Modifications:
Table 5: Research on the nature and source of whale entanglements is
challenging in that entanglements are not directly observed when they
occur. Instead, NMFS's gear research team is forced to rely on the gear
it retrieves from entangled whales and/or photographs taken of the
entanglement, if any. Even when gear is recovered, the gear research
team may have only a rope fragment to evaluate. Therefore, markings on
gear can play a critical role in informing scientists about the nature
of the entanglement. Gear markings can potentially indicate whether a
whale became entangled in groundline or vertical line, whether the gear
was from the lobster fishery or some other fishery, and the geographic
area where the gear was set. Currently, gear markings, such as vessel
or permit numbers on buoys, can identify the name of the fisherman who
set the gear so that NMFS officials can obtain specific information
from the fisherman, such as the exact location where the gear was set.
Under the current regulation, NMFS requires some trap and gillnet
fishermen to place one color-coded, 4-inch mark on the vertical line
mid-way through its length, which fishermen typically paint on or tape
to the rope. The color-coding scheme provides information about the
location and fishery involved in the entanglement. For example, lobster
fishermen in the Cape Cod Bay Restricted Area in federal waters--an
area NMFS has designated as a critical habitat for large whales--are
required to use a red mark. Other colors are used to indicate other
fisheries and areas. However, according to a NMFS official, the current
gear-marking scheme has not been effective in assisting researchers
because only rarely have fragments of vertical line been recovered that
included the required mark.
NMFS proposed a new requirement for marking vertical line because the
agency recognized that markings would be useful as the agency and the
ALWTR Team further evaluate vertical line for future regulatory action.
For example, if the agency recovered a rope that was marked, it would
be better able to determine that it was vertical line and how
frequently vertical line was involved with entanglements. Specifically,
NMFS proposed expanding the frequency of gear marking--to one 4-inch
mark every 60 feet on the vertical line.[Footnote 50] A NMFS official
with whom we spoke said the agency based the 60-foot requirement on the
average length of rope found on entangled whales. The official
explained that the 60-foot requirement would increase the likelihood of
recovering marked rope from an entangled whale and would also minimize
the burden on fishermen by not requiring them to mark rope even more
frequently.
However, we believe NMFS's proposed gear-marking requirement may not be
adequate in assisting researchers in identifying the gear that is
recovered from an entangled whale because it is not comprehensive.
First, even with increased markings on vertical lines, researchers may
still not retrieve the marked portion of the rope. For example, some of
the rope recovered from entangled whales has been only 6 feet long.
Some stakeholders, including scientists at the Provincetown Center for
Coastal Studies, recommended that NMFS require continuous marking
throughout the length of the rope through the use of tracer lines--
colored threads of line throughout the length of the rope. However,
according to a NMFS official, continuous marking throughout the length
of the rope is not practical because, among other reasons, it would
limit fishermen's ability to move between different fishing areas that
require different color markings.
Second, NMFS has not proposed marking sinking groundline. NMFS did not
provide a rationale in the DEIS for not requiring the marking of
sinking groundline. However, a NMFS official told us that the agency
believed that sinking groundline would be completely effective at
reducing groundline entanglements, and therefore there was no need to
burden fishermen with a marking requirement on such line. However,
scientists with whom we spoke believe that while sinking groundline
will reduce entanglement risk, they do not believe that its complete
success can be guaranteed. For example, scientists have observed
endangered whales with mud on their heads, which scientists believe
whales acquired scraping the ocean floor as they feed. Based on this
information, scientists are concerned that endangered whales could
become entangled in sinking groundline. Consequently, several
scientists with whom we spoke, including several NMFS scientists, told
us that sinking groundline should be marked so its performance can be
evaluated.
Third, NMFS did not require gear markings in areas that have been
exempted from the proposed gear modifications. NMFS developed exempted
areas because the agency determined, based on whale sighting data, that
certain waters pose a relatively low risk of entanglement because they
are not as frequently traveled by endangered whales as others. However,
because some of these areas are dense with commercial fishing gear,
they nevertheless pose some risk. Consequently, we believe that any
assessment of the new regulations would benefit from gear markings on
the gear used by fishermen in exempted areas, even if they are not
required to use modified gear.
Various stakeholders with whom we spoke or who submitted comments on
the DEIS expressed concern about NMFS's proposed gear- marking scheme.
Industry representatives were concerned about the burden the
requirement would place on fishermen who would have to mark rope more
frequently and the impracticality of marking rope every 60 feet.
According to the Massachusetts Lobstermen's Association, painted marks
can fade or become covered by algae and therefore must be maintained to
retain their visibility--a problem that would be exacerbated with
additional marking requirements. Also, maintaining a 60-foot space
between marks is difficult because commercial fishermen must routinely
cut and splice fishing lines. For example, fishermen may find their
ropes inadvertently cut due to commercial and recreational vessel
traffic and need to splice rope together. Fishermen may also change the
length of their ropes when moving gear into and out of deep water.
Given the impracticality of marking rope every 60 feet, the Cetacean
Society International stated that NMFS should consider requiring rope
that was marked continuously through the length of the rope by the
manufacturer.
Stakeholders with whom we spoke observed that markings that were
specific to individual fishermen could be useful to researchers because
they would enable researchers to obtain information from fishermen,
specifically on how and where they set their gear. The Maine
Lobstermen's Association and the Provincetown Center for Coastal
Studies noted that new technology, such as microchips embedded in
fishing rope, could potentially provide fishermen-specific information
and that they would favor its use if the technology was feasible in the
commercial fishing environment. NMFS's gear research team is aware of
this technology, but believes that it is not yet suited to commercial
fishing conditions because microchips embedded in rope may pop out as
the rope moves through hauling devices used to pull gear out of the
water.
NMFS Lacks a Strategy for Assessing Industry Compliance with the
Proposed Gear Modifications:
NMFS has not developed a strategy that will allow it to determine
whether any future whale entanglements are due to noncompliance with
the proposed new gear requirements by fishermen or the ineffectiveness
of the gear modifications. NMFS did not specify in the DEIS how it
plans to monitor industry compliance with its proposed rule and has not
developed such a plan outside of the DEIS. Stakeholders with whom we
spoke or who submitted comments on the DEIS have expressed concern that
the DEIS did not include a plan for monitoring compliance with the
proposed rule. According to the Whale Center of New England, the lack
of monitoring plans in the past have made it difficult to evaluate the
effectiveness of previous actions, and as a new regulation goes into
effect, a monitoring plan would be critical in assessing the success or
failure of the proposed actions.[Footnote 51] A Provincetown Center for
Coastal Studies scientist observed that a plan for monitoring the
proposed rule is as important to effectively protecting whales as the
gear modifications themselves. A NMFS official told us that the agency
understands the importance of having a compliance strategy and plans to
develop one.
Regarding the current regulatory requirements, NMFS has not conducted a
systematic survey of industry compliance and therefore, does not know
the extent of industry compliance along the east coast. Maine is the
only state to have conducted even limited compliance surveys of its
state-permitted vessels. Since 2002, Maine has conducted annual
compliance surveys over a 30-day period in both state and federal
waters off the coast of Maine, according to a Maine Department of
Marine Resources official.[Footnote 52] During the survey, enforcement
officers in patrol boats target large concentrations of gear and
randomly pull gear out of the water. The enforcement officers document
information about the type and location of gear, the owner, and what
species the fishermen were targeting. This effort is conducted
separately from routine enforcement patrols during which enforcement
officers complete logs that record only violations. According to a
Department of Marine Resources official, the state can conduct this
compliance survey because it has vessels that are equipped to haul
commercial fishing gear, even from deep water areas and because NMFS
has provided funding to support this effort. Although Maine's annual
compliance survey indicates a high rate of compliance, it is subject to
a number of limitations. The survey is not conducted using scientific
sampling of gear, so the results cannot be generalized to all gear, and
it does not incorporate all segments of Maine's fishing industry, so it
is not comprehensive.
Effective January 2007, Massachusetts required that sinking groundline
be used throughout state waters--a requirement similar to what NMFS
proposed along the north Atlantic coast. Officials with the
Massachusetts Office of Law Enforcement Environmental Police stated
that they are exploring the use of a vessel equipped with sonar to
assess whether fishermen are complying with the state's sinking
groundline requirement. Through sonar, the department can detect if
fishermen are using floating or sinking groundline without hauling the
gear out of the water. They explained that sonar could be an efficient
method for conducting a systematic survey because hauling gear is time
consuming, particularly since the gear must be placed back carefully
where the fisherman had the gear set.
Conclusion:
NMFS has a challenging mandate of reducing the risks posed to the
survival of Atlantic large whales by entanglements in commercial
fishing gear, while also taking into account the economic interests of
commercial fishermen. In its continuing efforts to protect endangered
whales, including the right whale which is critically endangered, NMFS
is considering various revisions to the existing regulations which
include certain gear modifications for the fishing industry. However,
the economic analysis that NMFS developed to support its actions does
not disclose the full range of possible costs that the proposed gear
modifications may impose on fishermen although it acknowledges that
costs could be higher or lower than it presented. While we believe the
approach that NMFS used to estimate compliance costs is reasonable, we
are concerned that the presentation of costs did not fully reflect the
uncertainty of the analysis. Moreover, given the concerns raised by
scientists and other experts regarding the effectiveness of the
proposed gear modifications in eliminating whale entanglements, it is
important for NMFS to develop strategies that will allow it to assess
the effectiveness of these changes as well as monitor industry
compliance. However, NMFS has neither developed a comprehensive
strategy to help it assess whether its proposed gear modifications are
effective in eliminating whale entanglements nor has it developed a
program to monitor industry compliance.
Recommendations:
Before NMFS finalizes its proposed regulations for the ALWTR plan, we
recommend that the Secretary of Commerce direct the Administrator of
National Oceanic and Atmospheric Administration to direct the Assistant
Administrator for NMFS to take the following three actions:
² adequately represent the uncertainty in data that the agency used to
determine the costs of the proposed fishing gear modifications, by
presenting a range of possible costs in the economic analysis section
of the final environmental impact statement;
² revise the proposed gear-marking requirements to include markings on
sinking groundline and gear marking requirements in exempted areas;
and:
² develop a strategy for assessing the extent of industry compliance
with the gear modification requirements.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Department of Commerce for
review and comment. In its comments, the Department of Commerce's NOAA
questioned whether we had obtained input from a broad range of
stakeholders, felt the report appeared to focus solely on the impacts
to the Maine fishing community, and disagreed with two of our
recommendations.
We disagree with NOAA's comment that we did not obtain and reflect a
range of stakeholders' views in this report. As described in detail in
our objectives, scope, and methodology, included in appendix I, we
conducted interviews, reviewed documents, and took other steps to
ensure that our work adequately portrays a wide range of stakeholders'
views and appropriately addresses the complexities of these issues. In
addition to NMFS officials, the stakeholders we contacted include state
marine fishery management agency officials from Maine and
Massachusetts; fishing industry representatives from the Massachusetts
Lobstermen's Association, Maine Lobstermen's Association, and the
Atlantic Offshore Lobstermen's Association; a representative from the
Humane Society of the United States; and scientists from the
Provincetown Center for Coastal Studies, the New England Aquarium, the
Woods Hole Oceanographic Institution, and the Marine Mammal Commission.
We also reviewed all of the stakeholders' comments submitted to NMFS on
the DEIS and attended a meeting of the ALWTR Team--composed of
fishermen, scientists, conservationists, and state and federal
officials who are tasked with monitoring the status of the ALWTR plan
and advising NMFS as it develops revisions to the plan.
In its general comments, NOAA also stated that, in its view, the draft
report appears to focus solely on the impacts to the Maine fishing
community. We do not agree with this characterization of the report.
Although the report clearly places some emphasis on issues of concern
to the Maine lobster industry, we believe this is appropriate given the
objectives we were asked to address in this review. Two of our
objectives specifically focus on how NMFS plans to address issues
related to implementing the proposed changes to the ALWTR plan,
particularly in the rocky bottom areas of the north Atlantic coast, and
to evaluate the extent to which NMFS fully assessed costs to the
fishing industry and economic impacts on fishermen. The rocky bottom
areas of concern are located primarily off the coast of Maine; and as a
result, the report describes concerns raised by Maine lobstermen
regarding the implementation challenges they believe they will face. In
addition, according to NMFS's analysis contained in the DEIS, the
lobster industry will bear $12.8 million of the approximately $14
million annual cost of complying with the proposed regulatory changes,
and this industry is primarily centered in Maine and Massachusetts.
Consequently, the report appropriately includes concerns raised by
Maine lobstermen about NMFS's analysis of the costs of complying with
the proposed regulatory changes.
With regard to our recommendations, NOAA believes that the uncertainty
of the data was adequately represented in the DEIS and therefore did
not agree with our recommendation that the agency present a range of
possible costs in its final economic analysis to represent the
uncertainty in the data. Nonetheless, NOAA said that it is planning to
clarify the variations and uncertainties within its analysis in the
Final Environmental Impact Statement (FEIS). NOAA said that this
clarification would discuss potential differences in total compliance
cost from variations in several of the assumptions that we had
identified in our report. By recognizing that the treatment of
uncertainty in the DEIS can be improved and by taking additional steps
to explain the effect of uncertainty on compliance costs, the agency
appears to be taking a step in the direction we recommended. However,
we continue to believe that unless NMFS includes a range of possible
costs facing the fishing industry in the FEIS, the agency will not have
clearly and thoroughly represented the uncertainties in its analysis.
NOAA also did not agree with our recommendation that the agency revise
the proposed gear-marking requirements to include markings on sinking
groundline and gear marking in exempted areas. Although NOAA concurred
that methods are needed for identifying sinking groundline and gear
from exempted areas, it stated that such markings are not feasible or
practical at this time. It is unclear to us why NOAA would make such a
statement given that in the DEIS, NMFS has proposed marking
requirements for vertical line. We believe that if such marking is
feasible and practical for vertical line, similar marking should also
be feasible and practical for sinking groundline. Without such
comprehensive gear-marking requirements, we believe that NMFS will not
be in a position to evaluate whether or not its regulations, including
the use of sinking groundline, will be effective in protecting Atlantic
large whales from entanglement.
NOAA did agree with our recommendation that NMFS should develop a
strategy for assessing industry compliance with the gear-modification
requirements. However, NOAA stated that the recommendation cannot be
implemented before NMFS finalizes its proposed regulations for the
ALWTR plan, as we recommended. This is because NMFS is currently
working on the strategy and plans to continue discussions with the
ALWTR team at its next meeting, tentatively scheduled for early 2008,
which is beyond the time the FEIS and final regulation will be issued.
If NOAA is unable to complete its strategy for assessing industry
compliance prior to finalizing its proposed regulations, we believe the
agency should have the strategy in place by the effective date of the
final regulations so that NMFS can be in a position to evaluate the
effectiveness of its regulatory changes from their inception.
NOAA also provided technical comments, which we have incorporated in
this report as appropriate. NOAA's comments and our detailed responses
are presented in appendix II.
We are sending copies of this report to the Secretary of Commerce,
appropriate congressional committees, and other interested Members of
Congress. We also will make copies available to others upon request. In
addition, the report will be available at no charge on the GAO Web site
at http://www.gao.gov.
If you or your staff have any questions about this report, please
contact me at (202) 512-3841 or mittala@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix III.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
Since the National Marine Fisheries Service (NMFS) has not issued a
final environmental impact statement or regulation, we have reviewed
the proposed changes to the Atlantic Large Whale Take Reduction (ALWTR)
plan outlined in the draft environmental impact statement (DEIS).
Specifically we (1) described the scientific basis for the proposed
changes to the ALWTR plan and the extent to which uncertainties exist
regarding how effectively they will protect large whales; (2) described
how the agency plans to address implementation issues, particularly in
the rocky bottom areas of the North Atlantic coast; (3) evaluated the
extent to which NMFS fully assessed costs to the fishing industry and
economic impacts on fishermen; and (4) evaluated the extent to which
NMFS has developed strategies for fully assessing the effectiveness of
and industry compliance with the proposed changes.
To address all four objectives, we reviewed the DEIS and the public
comments made in response to the issuance of the DEIS. We interviewed
officials at NMFS's Northeast Regional Office who participated in
developing the proposed changes to the plan outlined in the DEIS. We
interviewed state marine fishery management agency officials from the
Maine Department of Marine Resources and the Massachusetts Division of
Marine Fisheries. We also interviewed fishing industry representatives
from the Massachusetts Lobstermen's Association, Maine Lobstermen's
Association, and the Atlantic Offshore Lobstermen's Association. We
interviewed a representative from the Humane Society of the United
States, a conservation group. Finally, we attended a meeting of the
ALWTR Team--composed of fishermen, scientists, conservationists, and
state and federal officials who are tasked with monitoring the status
of the ALWTR plan and advising NMFS as it develops revisions to the
plan--held in December 2006. At this meeting, we observed presentations
on the status of endangered whales, new strategies to reduce the
entanglement risk of vertical line, and experimental whale safe rope
that could be used in rocky bottom areas.
To obtain information on the scientific basis for the proposed changes
to the ALWTR plan outlined in the DEIS and any uncertainties regarding
how effectively they will protect large whales, we interviewed NMFS
scientists at its Northeast Fisheries Science Center and officials that
developed the proposed changes to the ALWTR plan. In addition, we
interviewed marine mammal scientists from the Provincetown Center for
Coastal Studies, the New England Aquarium, the Woods Hole Oceanographic
Institution, and the Marine Mammal Commission to obtain expert opinions
on the need for regulatory action and the effectiveness of the actions
proposed by NMFS. We also reviewed scientific literature on right,
humpback, and fin whale behaviors and entanglements in commercial
fishing gear. Additionally, we attended the annual meeting of the North
Atlantic Right Whale Consortium, a group composed of a number of both
nongovernmental and governmental organizations and individuals,
including marine mammal scientists, who study and work to conserve
North Atlantic right whales. At this meeting, we observed presentations
on recent scientific research on right whales, including their
migratory behaviors and entanglement risks.
To obtain information on how NMFS plans to address issues with
implementing its proposed changes to the ALWTR plan, especially in
rocky bottom areas of the North Atlantic coast, we obtained the
opinions of representatives from fishing industry associations on the
challenges posed by the proposed gear modifications. We also
interviewed NMFS officials from its gear research team--former
fishermen who develop whale safe gear and provide educational outreach
to fishermen--to obtain information on how fishermen could overcome
these challenges. In addition, we interviewed officials from the Maine
Department of Marine Resources and the Massachusetts Division of Marine
Fisheries to obtain their views on how these challenges could impact
fishermen. Finally, we reviewed the results from NMFS's testing of
sinking groundline throughout the east coast as well as the results of
the Maine Lobstermen's Association's tests of sinking groundline.
To evaluate the extent to which NMFS fully assessed the costs to the
fishing industry and impacts to fishing communities, we interviewed
representatives of Industrial Economics Inc., the contractor who
conducted the economic analysis that is included in the DEIS. We also
interviewed officials from NMFS's Northeast Regional Office, including
the gear research team, that contributed to the economic assessment. In
addition, we interviewed economists from NMFS's Northeast Fisheries
Science Center. We also interviewed fishing industry representatives to
get their views on the data and assumptions used within the DEIS
analysis. We also contacted commercial marine suppliers in February and
April of 2007 to obtain the price of sinking groundline.
To evaluate the extent to which NMFS has developed strategies for
assessing the effectiveness of and industry compliance with the
proposed ALWTR plan changes, we interviewed officials from NMFS's
Northeast Regional Office on NMFS's current and planned evaluation
strategies. We interviewed NMFS's gear research team and officials from
the Northeast Regional Office that developed the gear-marking scheme on
the proposed gear-marking requirements and how they were developed. We
interviewed scientists from the Provincetown Center for Coastal
Studies, the New England Aquarium, and the Woods Hole Oceanographic
Institution to obtain their views on the proposed gear-marking
requirements and which markings would be most beneficial to assessing
the effectiveness of gear modifications. We also interviewed
representatives from the Maine Lobstermen's Association to obtain their
views on gear-marking requirements. Finally, we interviewed marine
fisheries law enforcement officials from the Massachusetts Executive
Office of Environmental Affairs and the Maine Department of Marine
Resources on gear-marking requirements and their current compliance
evaluation strategies.
We conducted our review from August 2006 through June 2007 in
accordance with generally accepted government auditing standards.
[End of section]
Appendix II: Comments from the Department of Commerce:
The Deputy Secretary Of Commerce:
Washington, D.C. 20230:
July 5, 2007:
Ms. Anu K. Mittal:
Director, Natural Resources and Environment:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, D.C. 20548:
Dear Ms. Mittal:
Thank you for the opportunity to review and comment on the Government
Accountability Office's draft report entitled National Marine Fisheries
Service: Improved Economic Analysis and Evaluation Strategies Needed
for Proposed Changes to Atlantic Large Whale Protection Plan (GAO-07-
881). On behalf of the Department of Commerce, I enclose the National
Oceanic and Atmospheric Administration's programmatic comments to the
draft report.
Sincerely,
Signed by:
David A. Sampson:
Enclosure:
Department of Commerce:
National Oceanic and Atmospheric Administration Comments on the Draft
GAO Report Entitled "National Marine Fisheries Service: Improved
Economic Analysis and Evaluation Strategies Needed for Proposed Changes
to Atlantic Large Whale Protection Plan" (GAO-07-881/June 2007):
General Comments:
The Department of Commerce's National Oceanic and Atmospheric
Administration (NOAA) acknowledges GAO's efforts in addressing previous
comments provided on the Statement of Facts and recognizes GAO staff
for its hard work toward understanding the issues and complexities of
managing these high profile protected species.
NOAA has three general comments on the report's content.
1. In considering issues surrounding the conservation of Atlantic large
whales, NOAA takes into account a variety of input from diverse
stakeholders. In developing the proposed alternatives, for example,
NOAA weighed input from the Atlantic Large Whale Take Reduction Team
(ALWTRT), which includes:
* seventeen individuals representing fishing organizations and groups
that utilize trap/pot gear;
* twelve individuals representing fishing organizations and groups that
utilize gillnet gear;
* five individuals representing conservation/environmental groups;
* thirteen individuals representing state agencies;
* eight Federal Government and fishery management organizations; and:
* eight academic/scientific organizations.
In addition, NOAA has discussed many of the management concepts
contained in the Draft Environmental Impact Statement (DEIS) at several
public forums including:
* six scoping meetings held prior to the development of the DEIS;
* several ALWTRT meetings; and:
* thirteen public hearings in which extensive public testimony was
provided.
NOAA also received 81 letters providing comments on the DEIS and
received approximately 25,000 additional form letters via e-mail and
regular mail.
NOAA balanced the input received with all of the various legal mandates
to which it is required to adhere. NOAH encourages the GAO to ensure
the report adequately portrays the various stakeholder views and the
complexities involved in addressing these complicated issues.
2. The Atlantic Large Whale Take Reduction Plan (ALWTRP) proposes
changes that affect commercial fishing operations from Maine to
Florida; however, the GAO draft report appears to focus solely on the
impacts to the Maine fishing community, which is only one sector of the
stakeholders affected by this rulemaking. If the intent of the report
is to focus on primarily one sector affected by the ALWTRP, the report
and its title should be revised to clarify this. However, if the intent
is to provide a more comprehensive assessment, other stakeholder views
should be included. In addition to the Maine Lobstermen's Association
(MLA), whose views seem to have been heavily relied upon by GAO in
developing its findings and conclusions, there are other industry-based
organizations within the state of Maine. The Downeast Lobstermen's
Association, Southern Maine Lobstermen's Association, and Maine
Offshore Lobstermen's Alliance are also prominent industry-based
organizations within the state of Maine. In addition, the MLA and the
other industry-based groups in Maine do not always share the same
viewpoint. NOAA notes GAO should have more equally reflected the wide
extent of the plan, including geographic extent, range of fisheries
affected, conservation interests and other aspects of the plan outside
of select stakeholders from Maine. For example, the report would have
benefited from input from other industry-based organizations such as
the Massachusetts Lobstermen's Association, the Atlantic Offshore
Lobstermen's Association, the Garden State Seafood Association, and the
North Carolina Fisheries Association. In addition, input from
conservation interests like the Humane Society of the United States,
the Ocean Conservancy and the International Wildlife Coalition, as well
as right whale research organizations like the New England Aquarium
would have provided a wider viewpoint, allowing perspectives from other
stakeholders affected by the ALWTRP.
3. The report provides numerous statements indicating NOAA's National
Marine Fisheries Service (NMFS) did not provide data to support some of
its important caveats and estimates used in its DEIS analysis. For
example, the report states, "Based on its interviews, NMFS reported in
the DEIS that sinking groundline, depending on its diameter, would last
between one to three years less-a 17 to 33 percent shorter lifespan-
than the corresponding diameter of floating groundline. However, NMFS
could not provide documentation of its interviews or details on how the
lifespan-as reported by those interviewed-varied." To support the
author's claim, the report states, "According to MLA, the lifespan of
sinking groundline can range substantially and could be much shorter
than the average NMFS reported in the DEIS." NOAA believes this is the
opinion of the MLA (with no documentation of how the MLA arrived at its
conclusion provided in the GAO report). Consistent with general
comments 1 and 2 above, NOAA believes that GAO should have included
views from other stakeholders, particularly those who, unlike the MLA,
are not proposed to be regulated under this action. Examples of such
stakeholders would be those in the environmental and science
communities.
NOAA Response to GAO Recommendations:
The draft GAO report states, "Before NMFS finalizes its proposed
regulations for the ALWTR plan, we recommend that the Secretary of
Commerce direct the Administrator of NOAA to direct the Assistant
Administrator for NMFS to take the following three actions:"
NOAA Response: NOAA does not believe actions to fully address the
recommendations can be implemented "before NMFS finalizes its proposed
regulations for the ALWTR plan." NOAH has evaluated the recommendations
and has provided details below.
Recommendation 1: "Adequately represent the uncertainty in the data the
agency used to determine the costs of the proposed fishing gear
modifications by presenting a range of possible costs in the economic
analysis section of the final environmental impact statement."
NOAA Response: NOAA believes that it has adequately represented the
uncertainty in the data the agency used to determine the costs of the
proposed fishing gear modifications. Thus, NOAA does not agree with the
recommendation to present a range of possible costs in the economic
analysis section of the final environmental impact statement. Given the
proposed regulations vary depending on fishery, location of fishing
activity, time of year, and the variety of fishing habitats and
practices, data are not available to assess differences in gear loss,
wear, and replacement rates specific to each vessel or to develop
probability distributions. The economic analysis contained in the DEIS
relies on the best professional judgment to estimate the average rate
of gear usage, replacement, and loss under varying conditions for
varying fishing locations.
GAO reports MLA anticipated different rates of gear loss and
replacement. Similarly, NOAA anticipates and acknowledges in the DEIS
that certain vessels will experience higher rates of gear loss and
replacement and, as a result, higher compliance costs. NOAA also
anticipates other vessels will experience lower rates of gear loss and
replacement and, as a result, lower compliance costs. As such, NOAA
believes application of higher gear loss and replacement rates to the
entire fishing industry would be misleading.
The report also cites discussions with MLA stating that vessels fishing
on rocky bottom within Maine state waters will experience higher rates
of gear loss, wear, and replacement than assumed in the analysis. It is
important to note, however, that a significant portion of Maine's state
waters would be exempt from the provision, including areas of rocky
bottom. For vessels fishing in the proposed regulated portions of Maine
state waters, the analysis also assumes a higher rate of gear loss than
in other waters. As a result, NOAH anticipates the uncertainty in gear
loss and replacement within Maine state waters is less than suggested
by GAO.
NOAA is planning to clarify the variations and uncertainties within its
analysis contained in the Final Environmental Impact Statement. This
clarification would discuss potential differences in total compliance
costs from variations in several of the assumptions identified in the
report.
Recommendation 2: "Revise the proposed gear marking requirements to
include markings on the sinking groundline and gear marking
requirements in exempted areas."
NOAA Response: NOAH does not agree with this recommendation. While NOAA
agrees a method for identifying sinking groundline and gear in exempted
areas is needed, NOAA does not believe revising the proposed gear
marking requirements to include markings on the sinking groundline and
gear marking requirements in exempted areas would be feasible or
practical at this time. NOAA discussed marking sinking groundline and
gear in exempted areas during the development phase of the DEIS and
proposed rule. Commenters objected to this gear marking scheme for the
following reasons:
1. It would be impossible to adhere to in deep water;
2. Tape will not stick to wet rope, nor will paint;
3. Marking techniques lose their visibility within a few weeks in the
water due to basic wear and tear and the accumulation of algal growth
on the ropes making the marks hard to discern;
4. Gear marking would be difficult to implement as line is spliced or
fouled over the course of its useful life;
5. There would be a problem in trying to figure out whether the space
between marks is the exact length;
6. It will be tough to mark at sea, especially given temperature, sea
state, and safety considerations;
7. The marking scheme is generic and limited marks will not provide
much information. For instance, the scheme would only identify a buoy
line or groundline, but not a fishery or even a region where the gear
was fished (i.e., no unique identifier); so this limits the amount of
information that can be tracked and evaluated;
8. It is too time consuming, costly, impractical, and unworkable;
9. Too many areas will not have marking requirements (e.g., exempted
areas, recreational gear, Canadian waters);
10. Gear loss would be too much using the new gear marking;
11. It will be a financial burden to fishermen, without much chance for
results that are useful;
12. Buoys and traps are already marked under current lobster fishing
rules; and:
13. It would be hard to enforce given the large number of recreational
lobstermen.
GAO should note NOAH has tested alternative gear marking schemes to
address the concerns raised by the industry and is currently working on
a chip technology that can be inserted into the line and coded with
fishermen identification for the entire eastern seaboard. NOAH
anticipates this will help to more easily identify gear in the water.
NOAA will be discussing this technology with the ALWTRT in the future.
However, NOAA believes it would be premature to propose this technology
or any other specific method as a requirement.
Recommendation 3: "Develop a strategy for assessing the extent of
industry compliance with the gear modification requirements."
NOAH Response: NOAA agrees with this recommendation. A strategy should
be developed for assessing the extent of industry compliance with the
gear modification requirements. However, a strategy cannot be developed
prior to NMFS finalizing its proposed regulations for the ALWTRP.
NOAH is currently working on developing a monitoring/compliance
strategy with the ALWTRT and other stakeholders. NOAA has discussed
this strategy with the ALWTRT on several occasions. However, the
results of these discussions were not conducive to development of a
meaningful strategy. At its April 2003 meeting, the ALWTRT recommended
that NOAH establish a Compliance Committee to discuss issues such as
evaluating, monitoring, and improving ALWTRP compliance. The plan
development includes working through the Atlantic States Marine
Fisheries Commission and Joint Enforcement Agreement (JEA) contacts and
involves stakeholder groups on the ALWTRT. As noted in the report, NOAA
has made some progress regarding this issue, particularly with NOAA and
state enforcement offices through the JEA process. However, NOAA
acknowledges more work is needed in this area. At its 2004 and 2005
meetings, the ALWTRT also discussed separating monitoring issues from
the Compliance Committee and addressing these through a Status Report
Subcommittee. The discussion focused on the interpretations of the
annual right whale and humpback whale scarification analysis.
Specifically, the ALWTRT discussed whether the scarification analysis
was the best method for evaluating the ALWTRP. NOAA intends to continue
this discussion with the ALWTRT at its next meeting, tentatively
scheduled for early 2008.
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
The following are GAO's comments on the Deputy Secretary of Commerce
letter dated July 5, 2007.
GAO Comments:
1. We believe that the report reflects a wide variety of input from a
diverse group of stakeholders. For this reason, we did not revise the
report based on this comment. As discussed in appendix I of the report,
we obtained input from stakeholders through interviews, a review of
relevant documents, and attendance at meetings. We interviewed fishing
industry representatives from the Maine Lobstermen's Association (MLA),
the Massachusetts Lobstermen's Association, and the Atlantic Offshore
Lobstermen's Association. We obtained the views of the Garden State
Seafood Association and the Downeast Lobstermen's Association through
the written comments they submitted on the DEIS. We also interviewed
officials from Maine's and Massachusetts' state marine agencies because
10 of the 15 communities that the DEIS identified as "at-risk" as a
result of the projected economic impacts of the ALWTR plan
modifications are located in these two states. We also interviewed a
representative of the Humane Society of the United States and marine
mammal scientists at the New England Aquarium, Woods Hole Oceanographic
Institution, the Provincetown Center for Coastal Studies, and the
Marine Mammal Commission. Moreover, we obtained views from scientists
at the NMFS Northeast Fisheries Science Center as well as the views of
the NMFS gear research team. We attended the annual meeting of the
North Atlantic Right Whale Consortium, a group that studies and works
to conserve North Atlantic Right Whales. We also attended the December
2006 ALWTR Team meeting, which included representatives from a wide
range of groups including trap and gillnet fishing groups, conservation
groups, federal and state agencies, and academic/scientific
organizations. Finally, we reviewed all of the public comments
submitted to NMFS on the DEIS, which included comments from a wide
variety of government, scientific, industry, and environmental groups.
2. We do not agree with National Oceanic and Atmospheric
Administration's (NOAA) contention that the report appears to focus
solely on the impacts to the Maine fishing community. In addressing the
first and fourth objectives of the report, we broadly describe the
scientific basis for the proposed changes to the ALWTR plan and
evaluate the extent to which NMFS has developed strategies for fully
assessing the effectiveness of and industry compliance with the
proposed changes. Our second objective was to describe how NMFS plans
to address issues related to implementing the proposed changes to the
ALWTR plan, particularly in the rocky bottom areas of the North
Atlantic coast. These rocky bottom areas are located primarily off of
the coast of Maine; and as a result, the report describes concerns
raised by Maine lobstermen regarding the implementation challenges they
believe they will face. Finally, our third objective was to evaluate
the extent to which NMFS fully assessed costs to the fishing industry
and economic impacts on fishermen. As NMFS stated in the DEIS, the
lobster industry is expected to bear more than $12.8 million of the
approximately $14 million annual cost of complying with the proposed
regulatory changes, and the Atlantic lobster industry is primarily
centered in Maine and Massachusetts. Consequently, the report includes
concerns raised by Maine lobstermen about NMFS's analysis of the costs
of complying with the proposed regulatory changes. For the reasons
stated above, we did not revise the report.
3. As stated in comment two, we do not believe that the report focuses
on one industry sector affected by the ALWTR plan. Because we believe
that the report title is accurate and appropriate we did not revise the
report in response to this comment.
4. We did not rely heavily on the views of the MLA in developing our
finding and conclusions as NOAA contends. As we stated in comment one,
we made use of information from a wide range of stakeholders in
developing our findings. Although the report clearly places some
emphasis on issues of concern to the Maine lobster industry, we believe
this is appropriate given the objectives we were asked to address in
the report. As a result, we did not revise the report in response to
this comment.
5. We believe that the report adequately describes the geographic
extent of the proposed changes to the ALWTR plan and the range of
fisheries affected. In addition, we reviewed comments on the DEIS
submitted by the Garden State Seafood Association and obtained input
from the Massachusetts Lobstermen's Association and the Atlantic
Offshore Lobstermen's Association through interviews with their
representatives. We have revised the report to include specific
comments from the latter two groups.
6. As we noted in comment one, we interviewed a representative from the
Humane Society of the United States and scientists from the New England
Aquarium. We also reviewed comments on the DEIS submitted by the Ocean
Conservancy and the International Wildlife Coalition. Consequently, we
did not revise the report in response to this comment.
7. NOAA correctly states that our report identifies instances in which
NMFS could not provide documentation for some of the estimates it used
in the economic analysis in the DEIS, including how the lifespan of
sinking groundline varied based on interviews NMFS conducted. However,
NOAA then erroneously claims that we used statements from the MLA to
support the fact that the lifespan of sinking groundline varied. We
reported NMFS's contention that the lifespan of sinking groundline
varied, despite the fact that it could not provide documentation of the
interviews it conducted. We also reported the MLA's view that, based on
its experience, the lifespan of sinking groundline can range
substantially and could be shorter than the average NMFS reported in
the DEIS. For these reasons, we did not revise the report in response
to this comment.
8. As stated in comment one, we made use of information from a wide
range of stakeholders in developing our findings, including those in
the science and environmental communities. However, regarding the costs
and economic impacts of gear modifications, we relied on the views of
the affected fishermen because they have direct experience in this
area, whereas scientists and conversation groups generally do not.
Consequently, we did not revise the report in response to this comment.
9. We do not agree that NOAA has adequately represented the uncertainty
in the data the agency used to determine the costs of the proposed
fishing gear modifications. We believe that presenting its estimates as
single point values (for example, $14 million) rather than showing the
range of possible costs, implies a degree of preciseness that is
misleading and not supportable by the limitations and sometimes lack of
available data. Moreover, while, on one hand, NOAA claims that it has
adequately addressed uncertainty, on the other hand, it goes on to say
that it is planning to clarify the variations and uncertainties within
its analysis contained in the Final Environmental Impact Statement.
This clarification would discuss potential differences in total
compliance costs from variations in several of the assumptions
identified in our report. We believe such clarification is needed and
continue to believe that presenting a range of possible costs would be
the best way to represent the uncertainty in the analysis. For these
reasons, we did not revise the report in response to this comment.
10. We agree that gear loss and replacement and the associated
compliance costs could be higher or lower than the average cost that
NMFS reported in the DEIS and that is why we recommended that NMFS
represent this uncertainty by presenting a range of possible costs in
its economic analysis. We did not recommend applying higher gear loss
and replacement rates to the entire fishing industry as NOAA seems to
suggest in its comments. Therefore, we did not revise the report in
response to this comment.
11. We recognize that portions of Maine's state waters are proposed to
be exempt from the changes to the ALWTR plan. This does not change the
fact that NMFS's gear research team estimated that gear loss would vary
by area of fishing operation and that, according to the MLA, NMFS's
estimates are likely to be too low in Maine's rocky bottom areas that
will be subject to the new regulation. Furthermore, the report does not
attempt to identify a particular level of uncertainty related to gear
loss as NOAA contends. For these reasons, we did not revise the report
in response to this comment.
12. We do not agree with NOAA's comment that markings for identifying
sinking groundline and gear in exempted areas are not feasible or
practical at this time. In the DEIS, NOAA proposed requiring that
vertical line be marked. If such marking is feasible and practical for
vertical line, the same type of marking should be feasible and
practical for sinking groundline. Many scientists we spoke to indicated
that sinking groundline should be marked. Consequently, we did not
revise the report in response to this comment.
13. Because the draft report already included a paragraph which
discusses the status of efforts to use "chip technology" to identify
fishing gear, including that NMFS believes that it is not yet ready to
be implemented, we made no changes in response to this comment.
14. If NOAA is unable to complete its strategy for assessing industry
compliance prior to finalizing its proposed regulations, we believe the
agency should have the strategy in place by the effective date of the
final regulations so that it is in a position to evaluate the
effectiveness of its regulatory changes from their inception. We did
not revise the report in response to this comment.
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, Director, (202) 512-3841 or mittala@gao.gov.
Staff Acknowledgments:
In addition to the contact named above, Stephen D. Secrist, Assistant
Director; John W. Delicath; Doreen S. Feldman; Nancy A. Hess; Justin M.
Jaynes; Gregory A. Marchand, Mehrzad Nadji; Kelly Agnese Richburg; and
Bruce Skud made key contributions to this report.
FOOTNOTES
[1] This report addresses the western North Atlantic stock of right
whales, the Gulf of Maine stock of humpback whales, and the western
North Atlantic stock of fin whales. NMFS is an agency of the Department
of Commerce's National Oceanic and Atmospheric Administration.
[2] Traps are also referred to as pots.
[3] There are many different types of bottom-dwelling Atlantic
groundfish, including haddock, cod, and various flounder.
[4] In this report, we will refer to the Atlantic Large Whale Take
Reduction Plan as the ALWTR plan.
[5] NMFS. Draft Environmental Impact Statement for Amending the
Atlantic Large Whale Take Reduction Plan: Broad-Based Gear
Modifications. (Washington, D.C.: February 2005).
[6] Sinking groundline is also referred to as neutrally buoyant
groundline.
[7] 70 Fed. Reg. 35893 (June 21, 2005).
[8] NMFS has authorized the Provincetown Center for Coastal Studies as
the lead organization on the east coast to disentangle large whales.
[9] Caswell, H; Fujiwara, M; Brault, S. "Declining survival threatens
the North Atlantic right whale," Proceedings of the National Academy of
Sciences, vol. 96, no. 6 (1999).
[10] Fin whales were rarely hunted in U.S. waters, except near the
shores of Provincetown, Massachusetts in the late 1800s.
[11] Copepods are small crustaceans.
[12] NOAA delegated its MMPA responsibilities to NMFS.
[13] 16 U.S.C. § 1387.
[14] As defined in the MMPA, the term "take" means to harass, hunt,
capture, or kill or to attempt to harass, hunt, capture or kill a
marine mammal. 16 U.S.C. § 1362(13). Take reduction plans must be
developed to mitigate the effects of Category I and II fisheries,
defined as fisheries that have frequent incidental mortality and
serious injury of marine mammals (Category I) and fisheries that have
occasional incidental mortality and serious injury of marine mammals
(Category II). 16 U.S.C. § 1387(c)(1)(A).
[15] The Magnuson Fishery Conservation and Management Act of 1976
(since renamed the Magnuson-Stevens Act) created eight regional
councils to manage fishery resources within federal waters (from 3 to
200 miles off the coast).
[16] As defined in the MMPA, potential biological removal is the
maximum number of animals, not including natural mortalities that may
be removed from a marine mammal stock annually while allowing that
stock to reach or maintain its optimal sustainable population.
[17] The MMPA does not define "insignificant" mortality and serious
injury rates approaching zero. NMFS has established a "zero mortality
rate goal" as no more than 10 percent of the potential biological
removal level for each stock.
[18] The Department of Interior administers the ESA for freshwater and
land species and the Department of Commerce through NMFS administers
the act for marine species.
[19] A fisherman with a multispecies permit is able to target more than
one species of groundfish, such as haddock, yellowtail flounder, winter
flounder, Atlantic cod, white hake, and American plaice.
[20] Additional fisheries include black sea bass, scup, conch/whelk,
shrimp, red crab, hagfish, Jonah crab, Northeast driftnet and Northeast
anchored float gillnet.
[21] Waring, G.T; Josephson, E; Fairfied, C.P; Maze-Foley, K. U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--2006.
(Woods Hole, MA: 2007).
[22] The stock assessment report uses the term "potential biological
removal" to refer to the maximum number of human-related mortalities
that can occur annually while allowing a stock to reach or maintain its
optimum sustainable population.
[23] Waring, G.T; Pace, R.M; Quintal, J.M; Fairfied, C.P; Maze- Foley,
K. U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--
2003. (Woods Hole, MA: 2004).
[24] NMFS is required under the MMPA to prepare stock assessment
reports of marine mammals, including large whales, in order to monitor
their population status. 16 U.S.C. § 1386.
[25] Waring, G.T; Josephson, E; Fairfied, C.P; Maze-Foley, K. U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--2006.
(Woods Hole, MA: 2007).
[26] While NMFS can develop regulations in response to recovering gear
of unknown origin from entangled whales, according to a NMFS official,
all the regulatory actions the agency has taken in the past have been
in response to entanglements in U.S. gear, or gear consistent with U.S.
fisheries.
[27] The New England Aquarium maintains a photo identification
database, funded by NMFS, which includes all known photographed
sightings of right whales since 1935. NMFS's aerial surveys, research
groups, whale watch vessels, and others have contributed to the
database.
[28] Knowlton, A.R; Marx, M.K; Pettis, H.M; Hamilton, P.K; Kraus, S.D.
Analysis of Scarring on North Atlantic Right Whales (Eubaleana
glacialis): Monitoring Rates of Entanglement Interaction 1980-2002.
Final report to NMFS submitted by The New England Aquarium (2005).
[29] Robbins, J. and Mattila, D. Estimating Humpback Whale (Megaptera
novaeangliae) Entanglement Rates on the Basis of Scar Evidence. Report
to the Northeast Fisheries Science Center submitted by The Center for
Coastal Studies (2004).
[30] When whales are discovered entangled, NMFS sends a team that may
attempt to disentangle the whale, depending on the nature of the
entanglement. The team attempts to obtain information about the gear
involved in the entanglement, such as whether it is vertical line or
groundline.
[31] Johnson, A; Salvador, G; Kenney, J; Robbins, J; Kraus, S; Landry,
S; Clapham, P. "Fishing Gear Involved in Entanglements of Right and
Humpback Whales," Marine Mammal Science, vol. 21, no. 4, (2005).
[32] The North Atlantic Right Whale Consortium Sighting Database,
maintained by the University of Rhode Island, includes sightings from
NMFS's aerial survey as well as other sightings along the eastern
seaboard. It does not include photographs, like the database maintained
by the New England Aquarium, as researchers and others are not able to
photograph each whale that is spotted.
[33] Mackintosh, W. and Wiley, D. The Development and Operational
Testing of Gillnet Fishing Gear Equipped with Five 600 lb Weak Links.
Report to the International Wildlife Coalition and the Northeast
Consortium. (May 6, 2005).
[34] NMFS opened a formal public comment period on the DEIS during
which any stakeholder could submit comments.
[35] In addition to the field testing of sinking groundline with
fishermen described in this report, NMFS conducted additional testing
of sinking groundline, including using a line testing machine that
simulates some of the long-term wear and tear that lines experience in
the field. NMFS gear specialists are former fishermen or boat captains
who test fishing gear and conduct outreach with fishermen.
[36] While the formal survey was conducted in 2003, NMFS gear
specialists told us that they interviewed fishermen throughout the
duration of the test and still informally check in with fishermen who
continue to use the line today.
[37] Experimental sinking groundline refers to rope that is under
development. It is being tested because it is made with different
materials or coatings than rope currently on the market.
[38] The Consortium for Wildlife Bycatch Reduction is a NMFS-funded
partnership between scientists and industry to design, field test, and
promote fishing gear that minimizes incidental harm to marine life.
Founding members include the University of New Hampshire, Duke
University, the Maine Lobstermen's Association, and the New England
Aquarium.
[39] NMFS's estimate for the lifespan of 3/8" sinking groundline is 6
years.
[40] NMFS's analysis was based on vessels, but in this report we will
refer to vessels as fishermen because they are affected by the
regulation and would incur the costs.
[41] NMFS estimated the total cost to the fishing industry from the
gear modifications outlined in each of its six proposed alternatives to
revising the ALWTR plan in 2003 dollars. In this report, we discuss the
costs of the two preferred alternatives, both of which NMFS estimated
would cost the fishing industry about $14 million annually.
[42] Lifespan percentages are GAO's analysis of NMFS lifespan data.
[43] The prices reported for rope in the DEIS were adjusted to 2007
dollars to account for inflation.
[44] Federal waters, that is, waters under the jurisdiction of the
United States, extend from 3 nautical miles to 200 nautical miles
offshore. State waters extend from the shore to 3 nautical miles
offshore.
[45] State-permitted fishermen are those that operate in state waters
and are required to obtain a permit from the state.
[46] This estimate only includes state-permitted fishermen, not those
that may also have a federal permit.
[47] NOAA guidance, which NMFS followed to conduct the economic
assessment within the DEIS, does not require the agency to estimate
changes in regional employment and income.
[48] NMFS identified over 100 vessels within each county to determine
if they would be at-risk of being affected; however, in this report we
refer to them as fishermen.
[49] The Magnuson-Stevens Act requires that NMFS consider impacts on
"communities." The act defines "fishing community" as "a community
which is substantially dependent on or substantially engaged in the
harvest or processing of fishery resources to meet social and economic
needs and includes fishing vessel owners, operators, and crew and
United States fish processors that are based in such community." 16
U.S.C. § 1802(16). NMFS used counties as a proxy for communities
because fishermen may reside in an area different from where they port
their vessel. In addition, much of the landings data was county
specific.
[50] For vertical lines that are less than 60 feet, fishermen would be
required to place one 4-inch mark in the center of the line.
[51] The Whale Center of New England is a nonprofit organization that
conducts research, conservation, and education.
[52] The lack of federal funding in 2006 prevented Maine from
conducting the survey that year, but the state plans to resume the
survey in 2007.
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