**WRITTEN TESTIMONY OF**

**JAMES H. LECKY**

**DIRECTOR, OFFICE OF PROTECTED RESOURCES**

**NATIONAL MARINE FISHERIES SERVICE**

**NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION**

**U.S. DEPARTMENT OF COMMERCE**

**ATLANTIC LARGE WHALE TAKE REDUCTION PLAN**

**BEFORE THE SUBCOMMITTEE ON OCEANS, ATMOSPHERE, FISHERIES AND COAST
GUARD**

**COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION**

**U.S. SENATE**

**February 19, 2008**

Good morning. I am James H. Lecky, Director of the Office of Protected
Resources, within the National Marine Fisheries Service (NMFS). Thank
you, Senator Snowe, and members of the Subcommittee, for the opportunity
to testify on this important issue. Before I begin I would like to thank
you for your leadership and for the support you and this Committee have
given NMFS. We appreciate your continued support for our programs as we
work to improve our products and services for the American people.

NOAA's National Marine Fisheries Service, or NMFS, is mandated to
protect endangered right whales under both the Endangered Species Act
(ESA) and the Marine Mammal Protection Act (MMPA). The ESA requires that
federally authorized fisheries do not jeopardize the continued existence
of right whales. The MMPA requires no serious injuries to, or
mortalities of, right whales.

To achieve its goals, the MMPA requires the establishment of teams of
experts, called Take Reduction Teams, to work in concert with NOAA to
evaluate current population status and to develop Take Reduction Plans
to reduce the serious injury and mortality to mammals from incidental
interactions with commercial fishing gear. The Atlantic Large Whale Take
Reduction Plan (Plan) covers right, humpback and fin whales. Routine
assessment indicated that continued serious injury and morality of right
whales from entanglement in commercial fishing gear required additional
modifications to the Plan to protect right whales and meet NOAA's legal
mandates. The process to initiate this action began in 2003, with the
publication of a Notice of Intent. Public scoping and meetings with the
Plan in 2003 further helped define this action and resulted in the
publication of a Draft Environmental Impact Statement and a proposed
rule in 2005. Publication of the Final Environmental Impact Statement
and final rule followed in 2007.

**The Atlantic Large Whale Take Reduction Plan Rule**

This final rule needed to include significant measures in order to
achieve the statutorily-required protection for right whales. This rule
implements fishing gear modifications throughout the range of right,
humpback and fin whales from Maine to Florida and out to the eastern
edge of the Exclusive Economic Zone for trap/pot and gillnet fisheries.
The broad-based gear modifications include:

-   A requirement to use sinking groundlines (as opposed to floating
    groundlines) beginning in October 2008 for trap/pot and gillnet
    fisheries;

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-   Expanded weak link requirements for trap/pot and gillnet gear that
    allow the line to 'break' if entangling a whale;

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-   Time/area management measures that take into account the predictable
    movements of large whales;

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-   Identification of exempted waters where whales typically are not
    found and therefore these gear modifications will not apply; and

-   Additional gear marking requirements to help identify the source of
    the entangled gear.

Most of the trap/pot gear modifications will be effective in April 2008.
Also beginning in April 2008, the final rule eliminates the Dynamic Area
Management program, which requires temporary gear modification or
closures in certain areas to protect unexpected aggregations of right
whales. The rule also expands the Seasonal Area Management program,
which requires gear modifications on a seasonal basis, until October
2008. After October 2008, the Seasonal Area Management program will be
replaced with the broad-based sinking groundline requirement, thus
eliminating unpredictable, temporary modifications in favor of
predictable, broad-based modifications.

While many comments were in support of the measures in the proposed rule
and Draft Environmental Impact Statement, other comments provided
negative feedback on specific aspects of these proposals. In response to
public comment on the Draft Environmental Impact Statement and proposed
rule, as well as new information obtained since the development of these
documents, NMFS made a number of changes in the final rule and Final
Environmental Impact Statement. These changes are intended to minimize
potential economic impacts through various regulatory modifications
without reducing protection to large whales. I would like to highlight
some of the major modifications related to the State of Maine.

Traditionally, trap/pot fishermen use floating lines between their
traps. The loops created from the float rope used between the traps
create an entanglement risk for large whales. A significant measure in
the final rule is a requirement to use sinking groundlines to reduce the
entanglement risk to large whales. Public comments received on the
proposed rule indicated that this is an issue of particular concern for
some trap/pot fishermen. They commented that using this type of line in
areas with rock/boulder and coral bottom topography may present
operational feasibility issues. They also commented that the costs
associated with converting from float groundline to sink groundline,
coupled with the increased frequency in replacing line due to wear,
would create economic hardship for them. In response to these comments
and concerns, additional time for the conversion was provided.

In addition, NMFS has been actively working with commercial lobstermen
to convert from floating groundline to sinking groundline and has
created funding opportunities for this purpose. Since 2005, NMFS has
promoted lobster gear buyback and recycling programs from Maine to North
Carolina. This has been done with the assistance of industry and
conservation organizations such as the Gulf of Maine Lobster Foundation,
the National Fish and Wildlife Foundation and the International Fund for
Animal Welfare.

The proposed rule also included a nearshore exemption line, shoreward of
which large whales are not typically found and therefore the gear
modifications would not apply. In comments on the proposed rule, the
State of Maine recommended an exemption line further offshore than the
one that NMFS proposed, citing safety, economic and gear loss issues. In
response to public comments, the final rule moved the exemption line in
several areas further offshore, bringing it closer to what the State of
Maine requested.

The buoy line gear marking scheme was also modified in the final rule in
response to public comments. Number range CHAPTERAlthough many
commenters support the concept of gear marking, NMFS received numerous
comments opposing the proposed gear marking scheme on the grounds that
it would be time-consuming, costly, and impractical to implement while
at sea. In response to these comments, a gear marking scheme was
finalized (i.e., one 4" mark midway on the buoy line) to make it easier
to implement and use currently available technology.

Number range CHAPTER NMFS received many comments on economic issues
raised in the Draft Environmental Impact Statement.  In response, the
economic analysis presented in the Final Environmental Impact Statement
incorporates updated information on labor and material costs.  It also
incorporates sensitivity analyses examining the impact of alternate
assumptions on estimated compliance costs.  This included analyzing the
projected increase in gear loss that lobster trap/pot vessels fishing in
Maine inshore waters may experience as a result of converting from
floating groundline to sinking and/or neutrally buoyant groundline, the
rate at which sinking and/or neutrally buoyant groundline will wear out
and need to be replaced, the variation in the price of sinking and/or
neutrally buoyant line relative to floating line, and the variation in
the number of state-permitted vessels potentially subject to the Plan
requirements.  Each of these sensitivity analyses was performed
independently to isolate the effects of altering each assumption on
estimated compliance costs.

**Conclusion**

Number range CHAPTERNumber range CHAPTERNMFS believes that, overall, the
measures implemented in the final rule represent the best alternative to
balance environmental and economic considerations related to the
conservation of right whales and are consistent with the requirements of
the MMPA and ESA. Thank you for the opportunity to testify. I look
forward to working with you, the public, and the fishing industry on
implementing this critical rule. I will be happy to answer any of your
questions.