Though a new rule from the National Atmospheric and Oceanic Administration affecting the gear lobster fisherman can use has gone into effect, it will not yet be enforced.
As of May 1, lobster fishermen fishing in federal waters are now required to use ropes with weak points approved by the National Marine Fisheries Services (NMFS) that will break if a whale becomes entangled in them.
The rule requiring the gear was part of a final rule announced by NOAA on August 31, 2021 amending the agency’s Atlantic Large Whale Take Reduction Plan, which attempts to reduce the number of injuries and deaths to North Atlantic right whales, listed as endangered under the Endangered Species Act.
However, supply chain issues have prevented fishermen from obtaining approved gear. On April 20, Michael Portnoy, the Greater Atlantic Regional Administrator for NOAA Fisheries, acknowledged that availability of gear compliant with the new rule is “not yet universal” and announced the agency would proceed with graduated enforcement.
“I want to assure fishermen who are making good faith efforts to comply with these new measures but are not able to procure compliant gear that we understand the difficulty of their situation. We are working closely with our state and federal enforcement partners to implement a graduated enforcement effort that will focus on compliance assistance rather than civil penalties until we have determined that localized supply chain issues have been sufficiently resolved,” Portnoy wrote in the April 20 statement.
On top of supply chain issues, the new rules are confusing to fishermen, according to Patrice McCarron, executive director of the Maine Lobstermen’s Association.
“MLA is relieved that NOAA has finally listened to lobstermen, the state, and our congressional delegation, that despite lobstermen’s best efforts, lobstermen are unable to meet the deadline. The new rules are very confusing to fishermen which is why MLA has widely distributed a comprehensive outreach guide to help them better understand what they need to do. Some have complied and had products recalled, others have complied and had devices fail, and many more have not been able to secure the materials they need. Lobstermen are still frustrated that NOAA is not allowing the use of knots determined by the State of Maine to meet the requirements of the rule and could be readily implemented with existing gear,” McCarron said.
In March, a weak link approved by NOAA was recalled, leading some fishermen, including the Maine Lobstering Union, to call for the agency to approve the use of knots in fishing line as weak points in rope. Currently, knots are approved by Maine’s Department of Marine Resources (DMR) for use in state waters. The agency has submitted them for approval for use in federal waters.
In late March, Gov. Janet Mills and the Maine congressional delegation sent a letter to Gina Raimondo, secretary of the federal Department of Commerce, asking for an extension to the date the gear requirements went into effect.
The lobster community, as well as Maine’s state government and federal congressional delegation, remain opposed to the final rule, which also closes roughly 1,000 square miles of federal waters to lobster fishing between October and January each year. There has been no documented case of right whale entanglement in the Maine fishery since 2010.
“The fact remains that the ten-year whale plan is based on flawed science and will not help protect the right whale. That is why we are suing to force the government to come up with a valid plan that will protect the whales and the future of Maine’s lobster fishery.” McCarron said.
During its second session, the 130th Legislature passed LD 1916, which creates a legal defense fund for the lobster industry as it fights NOAA’s final rule. There are currently three ongoing court cases related to the rule.
The bill was finally passed by both chambers of the legislature on April 25 and is awaiting Mills’ signature. It would be funded by an ongoing General Fund deposit of $500,000 starting in fiscal year 2022-2023 and an ongoing Other Special Revenues Fund deposit of $380,000 starting in fiscal year 2022-2023 taken from the Lobster Marketing Collaborative. DMR, which administers the fund, is also required to allocate 20% of what it makes through license surcharges to the fund.
The fund would be repealed on October 1, 2024.