The Lobster Fishing Associations Maine Lobstermen’s Maine Coast Fishermen’s Maine Lobster Dealers Association Association Association Massachusetts Lobstermen’s New Hampshire Commercial Maine Center for Coastal Association Fishermens’ Association Fisheries Atlantic Offshore Lobstermen’s Downeast Lobstermen’s Maine Aquaculture Association Association Association O’Hara Corporation Maine Lobstering Union Southern Maine Lobstermen’s Association February 19, 2021 Via Email to [email protected] Paul N. Doremus, Ph.D. Acting Assistant Administrator NOAA Fisheries 1315 East-West Highway 14th Floor Silver Spring, MD 20910 Re: Comments of the Lobster Fishing Associations to the Draft Biological Opinion on 10 Fishery Management Plans in the Greater Atlantic Region and the New England Fishery Management Council’s Omnibus Habitat Amendment 2 (Released January 15, 2021) Dear Dr. Doremus: Thank you for the opportunity to comment on the above-referenced draft Biological Opinion (“Draft BiOp”) released on January 15, 2021. The following comments are submitted on behalf of the Maine Lobstermen’s Association, the Massachusetts Lobstermen’s Association, Atlantic Offshore Lobstermen’s Association, New Hampshire Commercial Fishermens’ Association, Maine Coast Fishermen’s Association, Maine Lobstering Union, Downeast Lobstermen’s Association, Southern Maine Lobstermen’s Association, Maine Lobster Dealers Association, Maine Center for Coastal Fisheries, Maine Aquaculture Association and the O’Hara Corporation (collectively, the “Lobster Fishing Associations” or “Associations”). While the extremely short comment period has not allowed for as thorough a response as this lengthy and complex document warrants, we appreciate the National Marine Fisheries Service’s (“NMFS”) consideration of these comments, which we provide in the spirit of refining and improving the Draft BiOp to present an accurate assessment of the proposed actions consistent with the standards of Section 7 of the Endangered Species Act (“ESA”).1 1 In a letter dated February 5, 2021, the Associations requested a 10-day extension of the comment period for the Draft BiOp to align with the public comment period on the proposed Atlantic Right Whale Take Reduction Plan rule that is concurrently posted for public review and comment (“Proposed TRP Rule”). See 85 Fed. Reg. 86,878 (Dec. 31, 2021). Similar requests were made by the State of Maine, Atlantic States Marine Fisheries Commission, and Maine’s Congressional delegation. NMFS regrettably denied the requests. The Associations appreciate that NMFS is working against a litigation deadline, but its denial of a modest 10-day extension request to allow stakeholders to coordinate their comments on two inextricably linked regulatory proposals that could fundamentally alter the management, operational integrity, safety, and financial viability of the fisheries is unreasonable. The Lobster Fishing Associations strongly encourage NMFS to consider the comments submitted on the Proposed TRP Rule as it revises and finalizes the BiOp. I. THE LOBSTER FISHING ASSOCIATIONS HAVE STRONG INTERESTS IN THE FUTURE OF THE NORTHEAST LOBSTER FISHERY AND SURVIVAL OF THE NORTH ATLANTIC RIGHT WHALE The Lobster Fishing Associations represent members who are active participants in the U.S. Northeast Lobster Fishery (the “Lobster Fishery”) or who are otherwise active in businesses and organizations directly connected to the extraordinary marine resource that makes up the Lobster Fishery. A description of each association’s membership, mission and interest in this proceeding is presented in Addendum A. The Lobster Fishing Associations share a commitment to support the continued viability of the Lobster Fishery under principles of sound resource management that promote sustainability and ensure best practices for the protection and conservation of all marine resources in the area. They are also dedicated to an effective management plan incorporating practices and measures built upon the best available commercial and scientific data that supports the health of the endangered North Atlantic right whale (“NARW”). As professionals with a deep understanding of our ocean environment, we have specialized knowledge, experience and perspective to inform this issue. We draw our livelihoods from the ocean and recognize the fragility of our shared marine environment. Our fisheries have been well-managed by generations of fishermen who feed our nation with healthy, sustainably harvested seafood. The Northeast Lobster Fishery has long been an integral part of the region’s culture, heritage and economy supporting tens of thousands of jobs and hundreds of ancillary businesses.2 The fishery remains the most valuable in the United States value at more than $640 million in 2019 and contributing more than $2 billion to the region’s economy3. For rural coastal communities, the lobster fishery is the economic engine that keeps many small towns alive as detailed in Addendum B. These comments focus only on those portions of the Draft BiOp relevant to interactions between NARWs and anthropogenic sources. As summarized in Section II below and set forth in detail in Section III, these comments identify significant questions and concerns associated with the data and analyses presented in the Draft BiOp. Our comments present recommendations for additional data and analyses to be considered and undertaken by NMFS in order to ensure accurate identification and analysis of the relative risk to the species and the associated application of Section 7(a)(2) of the ESA. The Draft BiOp has profound implications for the future of the Lobster Fishery. It is therefore essential that the Final BiOp issued by NMFS comprehensively and accurately considers all of the best available scientific and commercial data, and correctly applies Section 7(a)(2)’s standards. With these comments, we seek to ensure that the Final BiOp presents a 2 Maine's lobster fleet directly supports more than 10,000 jobs (3,670 captains, up to 5,750 crew, and 1,095 students). 3 Donihue, Michael. Lobsters to Dollars: The Economic Impact of the Lobster Distribution Supply Chain in Maine. June, 2018.Colby College at http://www.colby.edu/economics/lobsters/Lobsters2DollarsFinalReport.pdf. 2 defensible assessment of the reasonably certain effects of the proposed actions and addresses actual sources of harm credibly identified and supported by verifiable scientific observations, data and analysis. It is of paramount importance to the Associations that the Final BiOp meets these standards because our members will be asked to implement any additional measures. Such measures must be plainly demonstrated—based on the best scientific and commercial data available—to promise positive benefits for the NARW population so that the Associations’ members will have confidence that any additional sacrifices are worthwhile. II. SUMMARY OF COMMENTS The Draft BiOp is an expansive document with far-reaching implications for New England’s iconic fisheries and cultural heritage. The Associations are alarmed that NMFS has developed a BiOp that assigns highest priority for NARW population recovery to the Lobster Fishery despite evidence that the most urgent risks are vessel strikes and entanglements in Canadian fisheries, which do not implement mitigation measures nearly as protective as those undertaken by the Lobster Fishery. The relative risks presented by the Lobster Fishery—which have already been substantially mitigated over the last decade—do not justify unsupported agency mandates that could eliminate an economic and fishing heritage that has sustained our coastal communities for centuries and is an integral part of New England’s identity. With that said, the Associations remain committed to working with NMFS and other stakeholders to design an effective program for avoiding and minimizing impacts to the NARW population. We have carefully reviewed the Draft BiOp and provide detailed comments in Section III below, which are summarized as follows: 1. The Lobster Fishery has substantially reduced the risk it presents to NARWs over the past decade through implementation of risk reduction measures. The best available data shows that those measures have been effective, and the Final BiOp’s environmental baseline should fully reflect the benefits of such measures. The Associations encourage NMFS to focus on implementing effective measures in areas where there is demonstrated risk. In particular, ropeless gear is not economically viable at this time and there are numerous technical and operational challenges that must be addressed before it can be substituted for gear using vertical lines, as explained in greater detail below. 2. NMFS should not be considering a management strategy that holds U.S. fishermen accountable for NARW M/SI in Canada. The U.S. must engage directly with Canada in an open and transparent manner. The Associations implore NMFS to engage more directly and aggressively with Canada to ensure that effective and measurable risk reductions are implemented bilaterally. 3. The Draft BiOp presents an inaccurate assessment of the effects of the Lobster Fishery by relying upon unsupported assumptions that artificially inflate the risk from the Lobster Fishery. The result is that the Draft BiOp does not present an effects scenario that is “reasonably certain to occur” or supported by the best scientific and commercial data available. 3 a. NMFS arbitrarily assigned a level of risk to the Lobster Fishery that is unsupported by the