March 8, 2021 Mainers Guarding Right Whales 2080 North Road Mount Vernon, ME 04352 President Joseph R. Biden, Jr. The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Dear Mr. President: We write to address a serious issue threatening the North Atlantic right whale and other indigenous whale species that inhabit the east coast of the United States. We reference a letter dated February 24th, 2021 from the Maine Congressional Delegation. We strongly disagree with many of the points made in their letter. The delegation letter states that there are no right whales being entangled by Maine fishermen, that the Canadians are to blame for the right whale problem, and that the Maine Lobster industry will be shut down by currently proposed rules leading to the destruction of “thousands of livelihoods, hundreds of coastal communities and the economic backbone of the state.” None of these accusations are true. The North Atlantic right whale is in critical danger of extinction In the last decade, the population of the North Atlantic right whale has plummeted due to entanglement in fishing gear and vessel or ship strikes, human caused forms of mortality that have been happening for decades. Currently, data incontrovertibly shows that entanglement in fishing gear is the leading cause of right whale deaths. Even many of the reproductive-aged females that survive entanglement are showing that they are not healthy enough to bring a calf to term and calving is delayed. In a healthy population, the average length of time between births is 3 years. Instead, the average interval in our population of right whales is now at least 8 years, a scientifically accepted sign that the population is in extremely poor health. The IUCN recently declared the right whale as “critically endangered”, with most models predicting the species’ extinction within the next two decades at the current level of human-caused mortality. This letter focuses on the entanglement problem because NOAA is poised to issue a final rule based on recently proposed measures that aim to meet the legal requirements of the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA) by reducing the risk of entanglement for right whales and other large whales (Fed. Reg. 86, 878 12/31/2020).1 Scientifically, under the MMPA human-caused right whale deaths and serious injuries from all causes in the U.S. and Canada, the Potential Biological Removal (PBR), must be reduced to 0.7 per year. This means that even one right whale per year killed or seriously injured by entanglement in US fishing gear is too many. We are not including information about vessel strike mortality, but we encourage NOAA to improve the current ship speed rule and to impose the strictest rule it can to prevent vessel strikes anywhere within the US EEZ by vessels of all sizes. The Proposed Rule will not put Maine lobstermen out of business NOAA’s current Proposed Rule to reduce risk of entanglement in lobster and crab pot/trap gear is meeting a great deal of resistance from Maine lobstermen. It is notable that New Hampshire, Massachusetts, and Rhode Island lobstermen are working with NOAA and none of these states’ fishermen have made the claim that the rule will shut down their fisheries or put them out of business. In fact, some fishermen from Massachusetts have adopted some of the potential new requirements already and they are working well. We believe that the arguments made by the Maine Congressional Delegation are overstated and misinterpret the Proposed Rule as well as the related draft BiOp for the fishery (Biological Opinion). The Proposed Rule— and even the “non-preferred” Alternative #3 that includes the most comprehensive measures—will not stop Maine lobstermen from fishing. However, not taking strong enough conservation measures now may put Maine’s lobster fishery at greater jeopardy in the future, which is one reason the Maine delegation’s position appears short sighted. We agree that the Maine lobster fishing industry is a significant part of the U.S. fishery and adds more than a billion dollars a year to the Maine economy. As conservationists, it is not our intent to shut down this iconic industry. Instead, we want to find a sustainable balance between Maine’s economy and the federally mandated requirement to protect the endangered right whale. The proposed gear modifications and partial closures will not stop Maine fishermen from fishing. In fact, Maine fishermen are industrious and resourceful; they will adapt to these rules and continue fishing. A bigger question is whether Maine’s fisheries are evolving toward an end to entanglement, which is what seafood consumers want. The Maine delegation’s letter states their concern that the BiOp—a requirement of the Endangered Species Act— suggests that within a ten-year period lobstermen would be required to “use ropeless fishing gear when it is not technologically or economically viable”. Ropeless fishing—or on- demand fishing—relies on an acoustic signal to retrieve the lobster trap from the seafloor, thus removing the vertical lines that present the greatest entanglement risk to right whales. It offers a 1 National Oceanic and Atmospheric Administration and the National Marine Fisheries Service, Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan Regulations; Atlantic Coastal Fisheries Cooperative Management Act Provisions; American Lobster Fishery, Proposed Rule. 85 Fed. Reg. 86,878 (December 31, 2020) (“Proposed Rule”). potential win-win solution. Importantly, this is new technology that is in development, but the early results are extremely promising and with investment in its industrial application, could easily be available for widespread implementation within 5-10 years. Maine fishermen are not being asked to use ropeless technology in the Proposed Rule; it is only included as an option that can be used in closed areas under a special exempted fishing permit to allow for its continued development. Ropeless technology is not yet available as a commercial fishing option, but many fishermen, including Canadian and Massachusetts fishermen, are testing ropeless prototypes because they know it holds great promise for the future, and they believe we should use technology to solve human/whale conflicts. In just three years, ropeless fishing of pot/trap gear has significantly advanced. We believe ropeless fishing can expand quickly with more federal funding and support to become a viable technology that can be used to address the co-occurence of whales and vertical fishing lines. We all know the importance of economic markets in driving demand for fisheries. More and more, the American public has demonstrated their desire to eat only sustainably caught seafood. Yet, because of currently unsustainable fishing practices—techniques that kill, maim, or seriously injure whales— the Maine lobster fishery has lost its Marine Stewardship Council endorsement. The long-term adoption of sustainable fishing practices is key to regaining the public’s trust in this fishery, but NOAA will not require ropeless fishing until it is fully proven, trustworthy, and financially viable for fishermen. Maine lobster fishing gear is entangling whales The way the Maine delegation presents the “facts” about right whale entanglements in the Gulf of Maine paints a rosy picture of Maine lobstermen. But it’s not okay, even for the most politically powerful among us, to selectively pick information that fits their argument and leaves out important facts. They would have you believe that Maine lobster gear has not caused a single entanglement in the past decade and only a couple before that. But there are some significant facts that are conveniently omitted and are needed for context. The Maine lobster and crab industry has a far greater number of vertical lines than any other fishery on the entire eastern seaboard, including Canada. Significantly, 93% of all vertical line fisheries in U.S. Atlantic coast waters are lobster and jonah crab (a combined fishery) and Maine fishermen have 87% of all the traps for that fishery (2015 AFSMC). Annually, Maine issues 3,000,000 trap tags to 4,800 commercial fishing boats and catches 82% of the total catch (2017, Maine DMR). Additionally, NOAA’s Draft Environmental Impact Statement2 for the rule summarized the known entanglements for a recent 9-year period (2009-2018) found in the waters between Canada and Florida - 267 minke whales, 264 humpbacks, 89 right whales, and 62 fin whales. That is an astonishing 682 entangled whales or 75 whales per year. Yet, the Maine delegation would have you believe that Maine has no responsibility for any of these entanglements. 2 Draft Environmental Impact Statement, Regulatory Impact Review, and Initial Regulatory Flexibility Analysis for Amending the Atlantic Large Whale Take Reduction Plan: Risk Reduction Rule (Nov 2020) (“DEIS”). Photo-identification studies paints an even gloomier picture. North Atlantic right whales are the most studied large whale in the world; scientists have collected over one million photographs of individuals within the population over forty years. These photographs show that, based on scars from entanglement and cases with attached gear, there have been at least 1,624 right whale entanglements, that an extraordinary 87% have been entangled at some time in their life, and 59% have been entangled more than once. Annually 26% are entangled, and importantly, 8% of those entangled have either died or are so seriously wounded that death is likely. In truth, the vast number of entanglements go unseen and are only re-discovered through the evidence of the scars they leave on the animal. We suggest that understanding this is key in interpreting the Maine Delegation’s misleading statements. The delegation states that there is no recent evidence that Maine fishing gear is killing right whales—there is no “proof.” In truth, of all the right whale entanglements mentioned above, we only know where less than one percent of them have happened.