The Design and Use of Fishing Community And Regional Fishery Association Entities in Limited Access Privilege Programs Joshua Stoll School of Marine Sciences University of Maine Orono, Maine Prepared for the Kodiak Fisheries Working Group – September 8, 2015

Purpose: To help clarify the purpose of and requirements for creating Fishing Community (FC) and Regional Fishery Association (RFA) entities within the context of Limited Access Privilege Programs. “A bycatch management program that would allocate exclusive harvest privileges to fishery participants who voluntarily join a cooperative and either 1) a Community Fishing Association as defined in section 303A(c)(3) of the Magnuson-Stevens Act or 2) an Adaptive Management Program.” Alternative 3 (as defined in the proposed NOI)

Outline History MSA language Status update Considerations IF moving forward with Alternative 3 Questions and discussion

History: Congress modified Section 303A of MSA in 2007 by specifying three types of statutorily-defined entities that could hold quota in a LAPP: (1) individuals; (2) fishing communities; and (3) regional fishery associations. “These provisions were created in response to the concerns of communities and shoreside businesses around the country over the economic harm that could result from consolidation of quota in IFQs and similar programs… In particular, the Committee recognizes that many small, poor coastal communities lack the resources to enter fisheries that may be subject to future LAPPs, and they have often been overlooked in allocation decisions.” US Senate Committee on Commerce, Science, and Transportation |

FisheryTimeframeTypeExtentReference Mid-Atlantic quahog fishery Number of vessels-68%Brand (2005) Alaskan Pacific halibut fishery Number of crew-70%Hartley and Fina (2001) Northeast Multispecies groundfish fishery Number of vessels-14%Murphy et al. (2014) Atlantic Scallop fishery New of crew-21%NEFMC (2013, p139) Grouper-Tilefish Individual Quata Program Number of vessels-16%SERO (2014a, p2) Gulf of Mexico Red Snapper Individual Fishing Quota Number of vessels-24%SERO (2014b, p13) Wreckfish Individual Transferable Quota program Number of vessels-89%NMFS (2009) British Columbia halibut fishery Number of crew-32%Casey et al. (1995) Netherlands Demersal North Sea Fisheries Number of crew-30%Davidse (2001)

MSA Section 303A(c)(3) Fishing Communities Eligibility – To be eligible to participate in a limited access privilege program to harvest fish, a fishing community shall – Be located within the management area of the relevant Council; Meet criteria developed by the relevant Council, approved by the Secretary, and published in the Federal Register; Consist of residents who conduct commercial or recreational fishing processing, or fishery-dependent support businesses within the Council management area; and Develop and submit a community sustainability plan to the Council and the Secretary that demonstrates how the plan will address the social and economic development needs of coastal communities, including those that have note historically had the resources to participate in the fishery, for approval base on criteria developed by the Council that have been approved by the Secretary and published in the Federal Register.

MSA Section 303A(c)(4) Regional Fishing Associations Be located within the management area of the relevant Council; Meet criteria developed by the relevant Council, approved by the Secretary, and published in the Federal Register; Be a voluntary association with established by-laws and operating procedures; Consist of participants in the fishery who hold quota share that are designated for use in the specific region of subregion covered by the regional fishery association, including commercial or recreational fishing, processing, fishery-dependent support businesses, or fishing communities; Not be eligible to receive an initial allocation of limited access privilege buy may award such privileges after the initial allocation, and may hold the annual fishing privileges of any limited access privileges it holds or the annual fishing privileges that is [sic] members contribute; and Develop and submit a regional fishery association plan to the Council and the Secretary for approval based on criteria developed by the Council that have been approved by the Secretary and published in the Federal Register.

Status Update ReasonExplanation Relatively short existence< 10 years Use of other strategiesRegulatory – e.g., allocation caps; sector separation; processor requirements; port restrictions Non-regulatory – e.g., permit banks Confusion about terminologyFishing Community? Regional Fishery Association? Concern about riskAllocation limits; Secretarial approval Added complexitySustainability plan Timeline Lack of clarityNo agency guidance (until 2014) 17 – Federal programs 10 – Post-MSA reauthorization 0 – With FC provisions * [Note: Map not updated]

Consideration # 1. Terminology What does it mean to be a fishing community? Geographic area Fishing sector (including shoreside) Fishing sector Subset

Regional Fishery Association As used in Section 303A(c) (3) and (4) (e.g., FC and RFA) As used in MSA 16 U.S.C Section 3 (14) and (17) As used by public Fishing Community Public MSA 303A Consideration # 1. Terminology “The allocation to a Community Fishing Association or Adaptive Management Program would meet objectives that include providing for sustained participation of fishing communities, promoting conservation measures, and assisting vessel owner operators, captains, and crew who want to enter and participate in the GOA trawl groundfish fisheries.” (NOI 2015)

Consideration # 2. Risk Could non-compliance result in loss of allocation? “It mandates that the Secretary of Commerce revoke the fishing privileges granted under the section for any person who fails to comply with the requirements of the fishery sustainability plan. I don’t know what that provision means in practice, but the implications are draconian. Until the circumstances under which this penalty would apply are much better defined, I would counsel (and have counseled) clients NOT to form entities under this Section.” (Reviewer comment). Potentially define de mininus elements of the sustainability plan (e.g., those of minor importance that would not result in immediate lost of allocation) Type of action taken for non-compliance of each requirement Trigger Secretarial action Types of Requirement AccountabilityPlanning Major Minor Medium

Consideration # 3. Added complexity What are the criteria, content of a sustainability plan, and timeline for creating these entities? Tech Memo (2014) Existing programs: a roadmap for criteria and sustainability plans

Action initiated by Council Draft options paper(s) developed and discussed Public meeting notice(s) or NOI * published Scoping for FMP/am package 1 Alternatives for analysis identified and preferred alternative selected Draft FMP/Amd package developed 2 Draft reviewed by NMFS & NOAA NOA on Draft FMP/Amd published by EPA* Public comment period (45-day*) Final FMP/Amd package submitted to NMFS w/ transmittal date 3 Final FMP/Amd package revised by Council Final FMP/Amd package reviewed by NMFS & NOAA Final FMP/Amd package prepared by Council NOA on FEIS published by EPA * 30-day cooling off period * Decision day on FMP/Amd ROD signed Proposed rule reviewed by NMFS & NOAA DOC reviews proposed rule OMB reviews, if required OMB clearance, if required Proposed rule published Public comment period on proposed rule (15-60-day) NMFS prepares final rule Final rule reviewed by NMFS & NOAA DOC reviews final rule OMB reviews file rule, if required MSA deadline for file rule OMB clearance, if required AA approves final rule OFR publishes final rule START FINISH Public comment period (60-day) FMP/Am effective Early and ongoing consideration in FMP/Am process This includes scoping for: NEPA – Scoping for DEIS or FONSI Reg. Flexibility Act – Scoping for IRFA MSA – Scoping for FIS/SIA EO – Scoping for RIR E – Scoping for “significance” determination by OMB PRA – Estimate of burden hours 2 This includes: NEPA – Prepare DEIS, if necessary Reg. Flexibility Act – Prepare IRFA document, if necessary EO – Prepare RIR document E – Include as part of DEIS MSA – Prepare FIS/SIA PRA – Prepare 83-I Key decision point * If an EIS is required 3 This initiates the MSA Secretarial Review Actual FMP/Amd timelines vary regionally. Consideration # 3. Added complexity

Summary FC and RFA are legislative tools can may provide a way to anchor quota in communities and maintain fleet structure; There are a number of legitimate concerns, but these can be addressed and should not be viewed as an impediment to use; Existing programs may prove useful in providing a roadmap; Include FC and/or RFA language early or forget.

Thank you Joshua Stoll School of Marine Sciences University of Maine Orono, Maine