Rhode Island Fishermen's Alliance

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Comments Regarding Sector Allocation Pilot
Program Proposal for the Summer Flounder Fishery

DEM
November 13, 2008

Current Proposal:

The current proposal was submitted by a group of commercial fishermen from the RI Commercial Fishermen’s Association. It was reviewed by the Marine Fisheries Council’s Summer Flounder Advisory Panel, and through the Panel’s report to the Council, recommended for consideration as a proposed regulatory program. The Department converted the proposal into a regulatory proposal and put it out for notice and hearing. The proposal seeks to :
- Establish a research set-aside that’s directly linked to the historical landings of applicants, averaged over the past 5 years (limited to 20% of the State’s total summer flounder quota for 2009);
- Establish a December 1 deadline for the submittal of proposals, contracts, and operation plans;
- Establish a December 15 deadline for the Department to review and approve eligible applications; and
- Allow approved applicants to harvest under the terms and conditions of the program throughout 2009, beginning on January 1.

DEM’s initial review of proposal during public notice period:

DEM sought and received a legal analysis of the proposal from the Roger Williams University School of Law, through the University’s RI Sea Grant Legal Program. A paper titled “The Legal Implications of Establishing a Cooperative Sector in the Fluke Fishery in Rhode Island,” authored by Kathleen M. Haber, was presented in draft form to the Department on 10/15/08, and in final form on 11/12/08. A copy of Ms. Haber’s paper, in final form, is hereby submitted as part of the record for this hearing.
In general, the Department feels that the proposed pilot program has considerable merit, and is generally consistent with the goals and principles of state law and regulation, which promote adaptive marine fisheries management as a means for improving management policies by learning from their outcomes. However, the Department has identified a number of concerns with the proposal, and in regard thereto , the Department has come up with several suggestions for refining the proposal. We would now like to offer our concerns and our suggested refinements for the record.

Due process/timing

The proposal was formally noticed on October 14, 2008.
Pursuant to the notice, the hearing is being held tonight, on November 13, 2008.
The Marine Fisheries Council meeting, where the issue will be reviewed as a follow-up to tonight’s hearing, is scheduled for December 1, 2008.
At a minimum, the Department would need one week to prepare all relevant documents and materials for the Director’s review, for the Director to undertake his review, for the Director to render his final decision, and, assuming the Director were to decide to enact the pilot program, for the decision to be filed with the Secretary of State. That one-week time frame would result in the filing of a final decision on December 8.
It would then take 20 days for the regulation to become effective, meaning that the terms and conditions of the pilot program, including the process of applying for participation in the program, couldn’t take effect until, say, December 29 at the earliest.
It is therefore apparent that the December 1 and December 15 deadlines set forth in the proposal are legally problematic, and need to be moved back.
Given the projected timelines noted above, it would seem that January 1, 2009 is the earliest date that could be offered for initiation of the application process for the pilot program.

Reasonableness

DEM feels that any group of eligible fishermen should be able to apply for participation in the pilot program.
to allow for such an opportunity, fishermen need to have a reasonable amount of time to apply. But the Department als
recognizes that a prolonged application period would compromise the viability of the program for 2009, since the program needs to span most, if not all, of the year to allow for a full and meaningful assessment of its merits
The Department therefore recommends an application period of 20 days following enactment of the regulations – i.e., an application deadline date of January 20, 2009. Since DEM would issue a press release announcing the program upon the filing of the regulations with the Secretary of State, potential applicants would essentially have 40 days to prepare, which seems to be a reasonable amount of time.
The Department would then devote the period of January 21-30 for review of the applications, and target January 30 as the date by which a final decision would be made.
The pilot program could then begin on February 1, 2009, and run for 11 months, concluding on December 31, 2009.

Control date/Use of historical landings

The licensing statute in the RI General Laws expressly allows for the use of historical fishing practices and past performance as factors that can be considered in the development and implementation of management programs; however the statute als
expressly prohibits the use of retroactive control dates, unless required by federal law, regulation or court decision.
The Department feels that any program, even a one-year pilot program, that provides opportunities for certain fishermen based solely on past landings could run afoul of the retroactive control date prohibition, if such a program were enacted without sufficient, advance public notice.
In response to such concern, the Department feels that it would be more appropriate, at this time, to consider a pilot program that is not tied solely to the historical landings of participants and thus does not invoke the control date provision.

Amount of research set-aside

Instead of using the historical landings of applicants as the basis for determining the amount of the research set-aside, the Department recommends an alternative approach, namely, using the net increase in RI’s overall commercial summer flounder quota for 2009 as the basis for the set aside. to put that in more quantitative terms, the coastwide commercial quota for summer flounder went from 9.46 million pounds in 2008 to 11.07 million pounds for 2009. That is an increase of 1.61 million pounds, of which RI’s share will be 15.7%. It therefore appears that the net increase in RI’s 2009 quota will be about 252,000 pounds. It is that amount, or actually up to that amount, that DEM proposes to make available for the research set aside.
The Department acknowledges that the amount may need to be adjusted to account for the fact that the program would not begin until February 1.

Selection process/eligibility criteria

to help ensure that all appropriately licensed fishermen have a reasonable opportunity to apply for consideration for the pilot program, to provide for a fair and objective process for selecting participants, and keep the pilot program limited in size and scope, the Department recommends several refinements to the selection process for the pilot program.
First, the Department recommends allowing any group of appropriately licensed fishermen to apply for consideration, provided that n
one in the group has been assessed any penalties over the past three years and that all necessary steps have been taken by the group to formally organize as a sector, as set forth in the current proposal. Such steps would continue to involve the development of a fully executed sector contract and a detailed operations plan.
The Department further recommends formation of an ad hoc review panel, which would be asked to review all applications, in accordance with a pre-established set of eligibility criteria, and make a recommendation to the Director regarding the most qualified applicant. The panel would be appointed by the Director, and members would be selected based on their expertise in marine fisheries and their ability to objectively review the applications. A single applicant – i.e., a single sector – would be selected for the pilot program via this process. The Department suggests that the evaluation criteria include such factors as the completeness, accuracy, clarity, and strength of the application, the relationship of the application to the goals, principles and standards for marine fishery management as set forth in state law, and the potential applicability and benefit of the application to other RI-based fishers and fisheries. The Department would further suggest that the landing histories of applicants be considered, however only as one of several factors in addition to those just mentioned.
The Department suggests that the amount of the allocation provided to the sector selected for the pilot program would be determined by the Director, based on the details set forth in the application; and that amount could equal to or less than the amount of the set aside. If the amount were less, than the balance of the set aside would be made available for harvest by all other fishermen not participating in the pilot program.

Terms & Conditions/Enforcement

Lastly, the Department supports adoption of all the terms and conditions that would apply to the sector that is selected for the pilot program, as set forth in subsection 5 of the current proposal. And the Department further supports the enforcement provisions, as set forth in subsection 6 of the current proposal.

2009 Control Date

On a separate but related note, the Department recognizes that the primary purpose of the pilot program is to assess the potential viability of sector allocation as a management tool. It follows that if the program proves effective, there might well be a proposal offered next year that would seek to establish sector allocation as a permanent, broad-based component of the State’s management program for summer flounder. Such a program might draw upon the historical landings of individual sector participants as a primary basis for establishing individual sector allocations. In view of the importance of giving all relevant license holders advance notice of such a possibility and, by so doing, to enable all such license holders to engage or increase participation in the summer flounder fishery during 2009 to possibly better position themselves for participation in a sector allocation program in 2010, if one is adopted, the Department recommends, as a corollary to the pilot program proposal, the establishment of a prospective control date of December 31, 2009 for the commercial summer flounder fishery.