The Northeast Seafood Coalition has written to NMFS Regional Administrator Patricia Kurkul expressing its "serious reservations regarding Amendment 17 as proposed by the Council". Partial text of the letter follows:
NSC has serious reservations regarding Amendment 17 as proposed by the Council.
The Council suggests that the purposes and objectives of Amendment 17 are limited to streamlining and expediting a process to enable the state-operated permit banks to operate as sectors.
The Council further asserts it does not have the responsibility to conduct its normal deliberate process to analyze, evaluate or discuss the purposes and objectives of the state-operated permit banks themselves, or more importantly, the impacts thereof.
This might have been the case if no state–operated permit banks were in existence and the Council was merely providing in advance a process for state-sponsored permit banks to follow in their establishment. However, the banks do exist, and so the proposed action will trigger the impacts the existing banks will have. But for this proposed action, these banks would not be able to operate as sectors and participate in the private-sector permit market and thus would have no impacts thereon. Implementation of this proposed action will cause impacts to occur that would not occur in its absence. They must be analyzed.
Failure to fully analyze these impacts appears to be a deliberate attempt to circumvent the very core of Magnuson-Stevens Act policy and process. Why?
From the affected public’s perspective, the purposes and objectives of these banks have been shrouded in mystery–having first been asked to provide input on the subject when the Agency took the unilateral action to unveil this new concept for first time in its proposed rule to implement sectors under Amendment 16. This was done absent any discussion, consideration or recommendation by the Council.
This unprecedented lack of transparency, together with the fact that representatives of these same states have voted to approve this Amendment is troubling. The fact that these same state representatives will continue to vote on future actions that their banks may have a fundamental financial interest in is disturbing. The fact that they will also continue to vote on future actions that directly affect the financial business interests of fishermen that will be forced to compete with these banks in the private-sector permit market is downright alarming.
With this in mind, will the states, as voting members of the Council, continue to be exempt from the section 302(j) provisions of Magnuson-Stevens Act governing financial disclosure and conflicts of interest once they are enjoying a direct financial interest in actions over which the Council has jurisdiction?
Even a rudimentary understanding of the groundfish fishery and the complexities of the sector system would suggest that the state-operated permit banks will certainly have some significant impacts. In reality, these banks may go so far as to completely restructure the fundamentals of the business side of the sector system –and with that the socio-economics of fishing communities throughout the region. Yet, the Council has proposed to deny itself, its staff, the Agency, the sectors, common-pool participants, all other interested parties and even the states themselves from having the analyses necessary to understand the true nature and scope of such impacts.
NSC feels very strongly that the usual robust process of analysis and deliberation by the Council, Agency, states, industry and affected public must apply to this proposal just like it does for all other actions of this magnitude pursuant to the MSA and other relevant statutes including NEPA and the Regulatory Flexibility Act. In our view this is bad government even in the absence of such clear statutory mandates.
If state-operated permit banks are to operate on par and in direct competition with real sectors, then they must be held to the same standards applied by Amendment 16. At a minimum, the banks must be subject to the same rigorous level of transparency needed to evaluate their operations and performance in meeting the objectives of the applicable statutes and the NE Multispecies Fishery Management Plan—not simply the objectives of the states and their permit banks over which there is no Council control.
Under normal circumstances, because this proposal has strayed so far off base, we would assume that it is simply not approvable by the Agency. However, given the Agency's unusual and as yet not fully explained advocacy for the state-operated permit banks and this proposed action, it must also be assumed it will devise some rationale for giving its approval. This will likely lead to the intervention of a federal judge to evaluate the legality of the proposed action.