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Sea Change? NOAA Seeks Public Comment on New Policy for Allocating Fishery Resources

January 6, 2010

The National Oceanic and Atmospheric Administration (NOAA) is seeking public comments on a draft national fisheries policy that promotes the use of “catch shares” – a system that divides up and allocates percentages, or shares, of the total allowable catch to individual fishermen or fishing groups – in federal fisheries management programs. Catch share programs have the potential to dramatically change who can fish for a particular species and how much can be caught by one fisherman or group of fishermen. NOAA is accepting comments on the draft policy until April 10, 2010.

Although forms of catch share programs have been used in the management of discrete regional fisheries, primarily in Alaska, since 1990, the new policy signals the creation of a national policy aimed at transitioning to the widespread use of catch share programs “wherever appropriate.” NOAA convened a Catch Shares Task Force in June 2009, which sought input from commercial and recreational fishing stakeholders in the development of the draft policy. The draft policy encourages the use of catch share programs in fishery management while pledging NOAA’s administrative and technical support of the design and implementation of these complex and often controversial management programs.

What is a “Catch Share”?

The draft policy defines “catch share” as

a generic term used to describe fishery management programs that allocate a specific percentage of the total allowable fishery catch or a specific fishing area to individuals, cooperatives, communities, or other entities. It includes more specific programs defined in statute such as Limited Access Privileges (LAP) and Individual Fishing Quotas (IFQ). It also includes Territorial Use Rights Fisheries (TURFs) that grant an exclusive privilege to fish in a geographically designed fishing ground. The recipient of a catch share is directly accountable to stop fishing when its specific share allocation is reached.[1]

A catch share is a right to fish under a permit – not a property right. The holder, however, can usually transfer all or portions of its initial allocation to other members of the fishing community. By allocating a market share to particular fishermen, the aim of a catch shares is to avoid “derby-style” open access fishing, which has often proven to be economically and biologically wasteful.

Although there are well-established catch share programs, such as the IFQ programs for the Alaska halibut and sablefish fisheries, the relative merits and benefits of such programs remain controversial. Proponents argue that catch share programs provide benefits such as greater economic certainty and safety for fishermen by ending “the race for fish,” and greater conservation of the resource by reducing bycatch (fish that are not kept or sold, but discarded, usually at sea). Opponents cite concerns about inequitable initial allocations of quota shares, the possible concentration of wealth and monopolization of a public resource, and uneven impacts on individuals and communities.

The conservation benefits of catch share programs are also the subject of continued debate. A study released at the same time as NOAA’s draft catch share policy examined 15 established North American catch share programs to determine their effect on marine ecosystems. The study found that “catch share programs can help eliminate erratic swings in fishing rates, catch landings and fish population sizes, among other factors, but may not necessarily lead to larger fish populations.”[2] The study’s author, Dr. Tim Essington of the School of Aquatic and Fishery Sciences at the University of Washington, stated: “Many proponents of catch share programs presume that they improve the health of fisheries, but our research indicates a much different expectation: They work very well to avoid erratic swings. They generally do not lead to more fish to catch.”[3]

Regulatory Framework for Fisheries Management

The Magnuson-Stevens Fishery Conservation and Management Act[4] (MSA) was first enacted in 1976 to govern fishing activities in federal waters. It strengthened American fisheries by phasing out foreign fishing within three to 200 miles of the nation’s coasts, and established a system of regional fishery management councils (Councils) to govern fishing activities, set harvest limits and manage conservation efforts. The Councils prepare fishery management plans for finfish, shellfish and crustaceans that are reviewed by the agency and approved or disapproved by the Secretary of Commerce. In late 2006, Congress significantly amended the MSA, including the addition of a new section related to limited access privilege programs (LAPPs).[5] These amendments include provisions regarding national requirements for LAPPs, the initial allocations of catch shares, and how shares can be traded.

Draft Catch Shares Policy

The draft catch shares policy, issued on December 10, 2009, “encourages the consideration and adoption of catch shares wherever appropriate in fishery management and ecosystem plans,” and states that NOAA “will support the design, implementation, and monitoring of catch share programs.”[6] The draft policy emphasizes that catch shares may not be the “best management option for every fishery or sector,” and that “NOAA will not require the use of catch shares in a particular fishery,” but that NOAA intends to “encourage the careful consideration of catch shares as a possible choice to best meet the conservation, social, and economic goals of fishery management.”[7]

To support the consideration and use of catch share programs, NOAA is committing in the draft policy to provide leadership, technical advice, and support to federal, state, and regional decision-makers. The draft policy outlines four categories in which NOAA intends to do so, and identifies specific actions for increasing the efficacy and utility of catch share programs:

1) Reduce technical and administrative impediments to designing catch share programs

To support the design and implementation of catch share programs, NOAA will assist in the evaluation of whether catch shares are applicable to a particular fishery and how and whether specific provisions in the MSA apply to the proposal, including streamlining aspects of the program to decrease costs and promote best practices. This includes evaluating the characteristics of a fishery that are best suited to catch shares (such as where the fishery is overcapitalized, stakeholders are receptive, stocks are overfished, catch share infrastructure exists in the region, and bycatch is significant); issuing specific policy guidance regarding issues associated with the 2006 MSA amendments; creating a common catch share infrastructure; developing enforcement protocols; and creating a model catch share program design process.

2) Provide expertise and related support to assist development of new catch share programs

NOAA intends to encourage the consideration of catch shares by Councils as they amend fishery management plans. The agency plans to identify a pool of catch share experts to assist Councils; reduce the costs related to use of outside consultants; develop bioeconomic tools for industry to use under various management options to assist consideration of catch share alternatives; support fishing communities on innovative fishery management options; and promote the use of the NMFS Fisheries Finance Program to support the purchase of quota shares.

3) Inform and educate stakeholders so that they can best participate in the design and implementation of catch share programs

NOAA will work to disseminate information regarding technical issues and their implications to stakeholders by multiple means.

4) Coordinate data collection, research and performance monitoring of catch share programs

The draft policy states an intent to expand existing data collection, science, and research support from collaborations from NOAA, Councils, states, commissions, universities and the fishing industry. These activities include: establishing a nationwide reporting goal for all fisheries, observer program design, establishing data collection programs on catch shares markets, and establishing relevant performance measures for monitoring the outcomes of catch share programs.

Relationship Between the Draft Policy and MSA Section 303A

The draft policy acknowledges that its broad and high-level scope does not address specific questions regarding the technical interpretation and implementation of the 2006 MSA amendments, although the issues were raised with the Task Force by representatives from the Councils, industry, and environmental groups. The draft policy states that some of these issues were identified during a scoping process in October 2007,[8] and that many will continue to be addressed through informal guidance and workshops. However, the draft policy also states, without providing additional detail, that “there may remain other issues requiring formal notice, public comment and rulemaking, and NOAA will seek input from stakeholders, Councils and NMFS staff to complete this task using a public participatory process.”

Shortly after the 2006 MSA amendments took effect, NOAA solicited public comment on necessary guidance for the MSA LAPP provisions. During Task Force stakeholder meetings, participants inquired as to how the catch shares policy relates to pending LAPP guidance. The Task Force stated that the “two products will be separate but complementary, with the policy focused on principles and the LAPP guidance focused on details of design and implementation.” NOAA indicated[9] that LAPP guidance would be issued during 2009, and that the guidance would complement the catch shares policy.

The Devil is in the Details

Reactions to catch shares are still evolving. Some commercial stakeholders have concerns about the manner of allocating shares and the potential for increased wealth by larger stakeholders, while recreational fishers have concern that their interests may not be adequately represented. Even those who support catch shares are wary of the technical hurdles associated with developing efficient, fair and reliable catch shares programs within a fishery. As the draft policy acknowledges, catch shares “may not be the best management option for every fishery or sector.”[10] Nevertheless, catch share programs are well under development or about to be implemented for the Gulf of Mexico grouper and tilefish fishery, Pacific groundfish trawl fishery, and New England multi-species sectors. Public comments on those proposals may help refine the perceived benefits and drawbacks of catch share programs.

For more information about the draft catch shares policy, contact any member of the Natural Resources practice group.

[1] Draft NOAA Catch Share Policy (Draft Policy) at 3.

[2] Essington, T., Ecological indicators display reduced variation in North American catch share fisheries, Proceedings of the National Academy of Sciences (2009).

[3] Press release, Lenfest Ocean Program, Pew Environmental Trust, New Study Finds Catch Shares Improve Consistency, Not Health, of Fisheries (Dec. 2009).

[4] 16 U.S.C. § 1801 et seq., amended by Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (P.L. 109-479).

[5] 16 U.S.C. § 1853a.; see also L. Larson, Lame Duck Congress Reauthorizes and Revamps Magnuson-Stevens Fishery Conservation and Management Act, Marten Law Group Environmental News (Jan. 10, 2007).

[6] Draft Policy at 3.

[7] Id.

[8]See NOAA Fisheries Office of Sustainable Fisheries, Guidance for Limited Access Privilege Program. NOAA issued a lengthy and detailed November 2007 guidance document related to the use and design of LAPs.

[9] Summary of Catch Shares Briefing for Environmental Organizations (July 23, 2009).

[10] Draft Policy at ii.

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