While we are excited about the prospect of better fishing gear reducing the risk of entangling whales, a recent proposal to test experimental fishing practices on the northern edge of Jeffery's Ledge, Gulf of Maine has left us concerned. The request for permit by a fishermen to the National Marine Fisheries Service (NMFS) is to test lobster fishing gear without using buoy lines.

The buoy lines connect the pots, or traps, sitting on the ocean floor to a bouy at the surface. The surface buoy marks the gear and is the means by which the fishermen hauls their gear on board their vessel. But these lines also entangle whales. For years fishermen, scientists, conservationists, government agencies and engineers have been trying to find a way to fish, either without using lines in the water column, or making the lines less likely to entangle whales. They have thought of stiff lines that would stay rigid and not wrap around whales if they came in contact with it; lines that glow in the dark so that whales might see and avoid them; and remote control lines that pop up from the bottom when the fishermen is ready to haul their gear.

And while we agree that fishing without buoy lines would be a tremendous step forward, we are not sure this request, as proposed, will be able to adequately evaluate whether this can work. First of all, the current proposal does not stipulate gear that is completely lineless. The gear would continue have groundline, a line which connects the traps to each other, forming a trawl. This is not consistent with the experimental design recommendation that a group of scientists (WDCS being part of that group) recommended at the last Atlantic Take Reduction Team meeting.

What we asked for was a fishery to experiment with a completely lineless fishing method which could only occur in areas already closed to trap and pot fisheries. This would ensure that gear conflicts would not play a role in the experiment. Putting the lineless gear in an area with traditional gear (with vertical lines or mobile gear like draggers) can cause substantial conflicts. Gear can be overlayed (one type on to of another), pulled up, or moved by the activities of the other fisheries, making it hard to evaluate whether lineless gear can be fished.

Secondly, this proposal does not have any means to evaluate the experiment. No scientists or observers will be enlisted to review or collect data during the experiment. We believe that this is a violation of NMFS's own protocols regarding fishing exemptions for scientific research or educational activity which require an observer on the boat.

WDCS wants line free fishing proposals to meet scientific scrutiny.

The deadline for these comments has already past - but we'll let you know the outcome and in the mean time you can help by always making sure your lobster is caught in Massachusetts where the lobstermen use whale safer gear.

I promise - This is not another blog about health care, how Americans feel about health care, or how we have had to watch the law making process (often liken to the unsavory act of watching sausage being made). But it is part of a series we will be doing about an important part of the process, public comment.

For those of you who think our government is too big – hold on to your hat – we are going to be talking about administrative law and process. However, my secret desire is to convince you that government is not the problem, but a crucial part of the solution. But why do I care? And why do I want you to care? Because it's important. Because WDCS spends a lot of time and energy writing comments regarding proposed governmental actions: an example being NOAA’s recovery plan for the endangered Southern Resident killer whales and their primary focus on whale watch regulations as a fix.

We are going to be writing a series of blogs describing the comments we submit (or at least trying to) and from time to time asking you to submit your own comments as well. But first – a bit about the process and how it came to be. We all know Congress enacts laws, but the part that can get hazy is how federal executive departments and administrative agencies write regulations that carry out the laws. So Congress passes federal laws and the agencies pass regulations to implement laws. For example congress passed the Clean Air Act – but the EPA issues an emission standard for car makers to keep our air clean. Our world abounds with these examples, agencies control much of our daily lives-  overseeing America's space program, protecting its forests, and gathering intelligence – there are hundreds of US Governments Departments and Agencies. 

These hundreds of agencies is where small government people probably begin getting agitated, but truth is you know you want the FDA making sure your food is safe, the EPA making sure your environment isn’t going to poison you, and the National Highway Traffic Safety Administration making sure your airbags and brake pedals work (also I bet your ready for the Department of Transportation to get out there and repair all those winter potholes). The other truth is without governmental oversight greater concerned is often paid to making money rather then looking out for the common good and safety of the public. So we have the agencies to create the rules and regulations necessary to implement and enforce major legislative acts.

It's important to know that Agencies can exercise powers characteristic of all three branches of the government: judicial, legislative and executive. From the beginning many were fearful of the separation of powers issues this would cause under the Constitution. These concerns were heightened when President Roosevelt expanded and added many agencies during the New Deal era of the 1930. So to provide safeguards, in 1946, the Administrative Procedure Act (APA) was passed. However like our current Health Care Bill this Law took about 10 years to sort out.

It started in 1936 when President Roosevelt established the President's Committee on Administrative Management. The committee's report found the agencies were "irresponsible" and that they had been given "uncoordinated powers." Additionally, Congress was concerned about the expanding powers of the federal agencies. So in 1939 the Attorney General's Committee on Administrative Procedure was established and charged with reviewing criticisms of the federal administrative processes and formulating recommendations for improvement. The committee issued its recommendations in 1941 in a detailed report of almost 500 pages. Legislation was drafted based upon the recommendations of the 1941 report, but World War II interrupted the process. After the war the legislation was reintroduced and a series of compromises resulted in the 1946 Administrative Procedure Act.

The APA governs the process agencies use to propose and establish regulations. It does not require all agencies to follow one single model for rulemaking, but it does impose minimum procedural conditions, ensures there is minimum standards for judicial review, and …...requires public comment. The Act forces the agency to listen to comments and concerns of people whom the regulation will likely affect; allowing the public the opportunity to participate in the formulation and revision of government regulations. It’s beautiful. So if the Federal Aviation Administration (FAA), Federal Communications Commission (FCC), National Telecommunications and Information Administration (NTIA), or Environmental Protection Agency (EPA) want to do something that will adversely impact you, they are required to log your complaints. What they do with them is for another blog.

An example is when FDA adopted standards of what goes into our white bread. Before they did- nutritionists, bread manufacturers, and consumer groups provided comments on which ingredients they wanted--or didn't want--in white bread. Through this process most agencies engage in notice-and-comment rulemaking, which is required as the minimum rulemaking procedure under the APA. Under notice-and-comment rulemaking, agencies are required to give the public advance notice of the contents of proposed rule and to offer the public an opportunity to express their views of the proposed rule.
So a notice of proposed rulemaking (NPRM) goes into the Federal Register when an agency wishes to add, remove, or change a rule or regulation. The notice typically gives 60 days for public comment from any interested party, and an additional 30 days for reply comments.

So now you know why we write comments and you’re on the path to writing your own.

Nothing is wrong, in fact it's good- but good can be bad too. If I am making no sense then welcome to my brain right now- too much going on at once and too little time to make it all happen.

Here's the good news- we were asked to submit a full proposal for a very large federal grant for Whale SENSE! Only 25% of the applicants were invited back to submit a full proposal and we were among them! We now have a 1 in 10 chance of actually getting the funding. Not a sure thing, but well worth giving it a shot!

Whale SENSE is a voluntary recognition program for commercial whale watch boats that go above and beyond in education and conservation. We would be able to expand the program, expand on education, and reach millions of people!

So what is bad? The application is due on April 6th, we are in the midst of a huge mailing about the whaling compromise the US is supporting, we haven't secured the agenda for the naturalist workshop for next month, I don't know where our inflatable right whale is as I lent it out to another organization and I need it for talks for next week, and I am behind on most of my other work.

Well, I need to get back to grant writing, securing our application for a federal charity list, updating the Whale SENSE presentation, answering an email to a corporate sponsor, and printing another 2,000 letters (that last 2000! I'm almost done!).

This time last week many nations and NGOs gathered in St. Petersburg, Florida to discuss the future of the International Whaling Commission. Two of our concerns were (and still are) overturning the moratorium on commercial whaling and the abuse of the aboriginal hunting designation. In the end, pro whale nations and organizations were very disappointed. But it's not just us -  some in Congress are concerned enough to write a letter to President Obama. We are hoping once they hear from their constituents, even more will follow suit.

I'm guessing that anyone reading this blog is either a supporter or a lover of whales, so by default you are against whaling and probably finding it hard to understand what the big deal is because how could the world possibly allow whaling to be made legal again. Well Norway, Iceland, and Japan are not the only countries voting in favor of whaling at the IWC.  For years, Japan has been recruiting countries with no obvious interest in whaling to join the IWC and vote in its favor, using development aid as an incentive.  In addition, many countries that were once firmly opposed to commercial whaling have felt pressured by Japan’s ever expanding whale hunts to make a compromise that will be dangerous for whale conservation.

The basic tenants of The Deal would permit commercial whaling (legitimizing the controversial "scientific" kill) in the Antarctic, for 10 years in exchange for a slight quota cut. Here are some problems with the deal as voiced by ASOC (The Antarctic and Southern Ocean Coalition).

And here are just a few of the other flaws in the deal:

• legally IWC can not say extend this privilege to only Japan, Norway, and Iceland: quotas can not be granted to specific nationalities...so who knows what other nations might want to start whaling.
• the deal doesn't prevent scientific whaling from happening on top of these newly proposed whale quotas
• the deal would legitimize whaling in the Southern Ocean Sanctuary
• the deal fails to provide adequate compliance mechanisms or sufficient deterrents for violations because it would be the whalers government and not the IWC with the authority to punish violations
• the deal is not based on science. the catch limits would not be determined by the IWC or it's scientific committee but instead on past hunts
• the deal imposed the costs of regulating whaling on all members of IWC not just the whaling nations that will benefit from it.

For the rest of the flaws you can see our report.

From now until June when the IWC meets in Morocco, we have to make sure we are telling our government leaders that this deal is no deal at all and we oppose it vehemently. For US citizens you can do that here. But truthfully, given the abuse of process that occurred at the St Petersburg meetings last week, we might have to do more then make our voice heard.