Frequently Asked Questions and Answers Regarding Recently Released Bi-Op

Many questions have come from industry after NOAA released the Endangered Species Act (ESA) Section 7 batched biological opinion and the North Atlantic Right Whale (NARW) Conservation Framework. I wanted to help clear up some confusion as many harvesters believed this was the final rule. Below is a Q&A based on some comments we have received. We will update the industry as we earn more about the timeline of the pending final rule.

Pat Keliher
Maine Department of Marine Resources

What's a Bi-Op? - A biological opinion (Bi-Op) is required under the Endangered Species Act (ESA) when an action of a federal agency (in this case authorization of the lobster fishery by the National Marine Fisheries Service) may affect an ESA-listed species (in this case the North Atlantic Right Whale). The Bi-Op is the opinion of the agency (NMFS) as to whether the agency action will jeopardize the listed species.

Did the Bi-Op Find that the lobster fishery jeopardizes right whales? No. The Bi-Op has a no-jeopardy finding.

Is the Bi-Op the same as the upcoming whale rule? No. The Bi-Op is a different document from the Final Rule, which will be published later this summer. As a result, the Bi-Op does not contain information on what the trawling up requirements will be, if Zone conservation equivalencies proposals were accepted, or the implementation timeline.

Do we know when Maine fishermen will have to comply with the Final Rule? The Final Rule has not been published yet, although we expect it to be released later this summer. Until then, we do not know the implementation timeline for the new requirements, or the details of what those requirements will be. Until then, no action is required by the Maine lobster industry.

If the Bi-Op isn't the Rule, what does it mean for the fishery? The good news is that the Bi-Op has a no-jeopardy finding and it was issued ahead of the May 31 court ordered deadline, authorizing federal fisheries to continue to operate under the ESA. Unfortunately, the Bi-Op outlines a series of significant risk reductions over the next 10 years that will significantly impact the lobster fishery as well as other trap/pot and gillnet fisheries along the Atlantic coast. In total, the Bi-Op calls for a 98% risk reduction over ten years, which means only one thing a complete reinvention of the fishery as we know it.

Is the 98% risk reduction set in stone? A key element of the Bi-Op is the inclusion of adaptive management. Within the next 10 years, two evaluation periods are proposed to consider elements which may impact the total risk reduction, such as changes to the whale population, calving rates, and reductions in mortality from other sources including vessel strikes and Canada. Should calving rates improve, or the actions of Canada produce a quantifiable reduction in mortality, that could lower the total risk reduction required of US fisheries.

What is different in the final Bi-Op from the draft Bi-Op? Staff continues to review the final Bi-Op in detail but so far, we have highlighted an important difference between the draft Bi-Op and the final Bi-Op.

A measure was added to the final Bi-Op which requires NOAA, within one year, to specify mandatory harvester reporting requirements in the federal lobster and Jonah crab fisheries. While the timeline of implementation is not clear in the Bi-Op, this does signal that 100% harvester reporting is coming to the federal lobster fishery.

Are there other important things to note in the Bi-Op? Yes.

The Bi-Op calls for NOAA to develop a Roadmap to Ropeless fishing within one year which will consider research needs as well as economic, operational, and enforcement aspects of ropeless fishing. The Bi-Op also suggests that ropeless fishing could be a management tool used within the next ten years to achieve the required levels of risk reduction.

The actions of Canada, and NOAAs ability to quantify the benefit to right whales of these actions, have a strong impact on the trajectory of the right whale population. If mortalities continue at high rates in Canada and the calving rates remain at low levels, the right whale population is predicted to continue to decline even in the absence of US federal fisheries.