1

New England Fishery Management Council 50 WATER STREET | NEWBURYPORT, MASSACHUSETTS 01950 | PHONE 978 465 0492 | FAX 978 465 3116

John F. Quinn, J.D., Ph.D., Chairman | Thomas A. Nies, Executive Director

MEMORANDUM DATE: December 21, 2016

TO: Executive Committee

FROM: Tom Nies, Executive Director

SUBJECT: Council Performance Review 1. One of the adopted priorities for 2017 is to conduct a programmatic, or performance, review of the Council. The Executive Committee should develop a recommendation to the Council on how the review will be conducted. 2. Throughout the discussion that follows there will be decisions that could be made by either the full Council or a subset of the Council (e.g. the Executive Committee). While a subset of Council members can act more quickly, there is a risk these decisions may not be supported by a majority of Council members. Past Experiences 3. In 2010, NMFS contracted for a review of the NEFMC at the request of a Council member. This review is referred to as either the Pate report (for the leader of the review, Preston Pate) or the Touchstone report (for the contractor who assisted Mr. Pate). The report was delivered in 2011, and for a while both GARFO and the Council tracked progress on implementing its recommendations. 4. No other Council performed a similar review in the recent past. Several Councils expressed interest in learning from our experience. 5. Many international Regional Fishery Management Organizations (RFMOs) were reviewed in recent years. The Food and Agriculture Organization prepared a summary of the reviews conducted from 2004-2014 (FAO 20151). This document is very useful, as it identifies best practices, typical timelines and costs, membership of the review panels, and the conclusions of the reviews. This memo draws extensively from that document. 6. The first RFMO performance review was conducted by the North Atlantic Salmon Organization (NASCO) in 2005. Since then there have been at least 19 RMFOs evaluated, and at least three also completed a second review.

1 FAO. 2015. The implementation of performance review reports by regional fishery bodies, 2004–2014, by Péter D. Szigeti and Gail L. Lugten. FAO Fisheries and Aquaculture Circular No. 1108. Rome, Italy. Avaialable at: http://www.fao.org/3/a-i4869e.pdf.

2

7. While almost all reviews are described as “external” or “independent“ r, the reviews were conducted by a variety of personnel. Many included a mix of internal and external members. Internal members were members of the RFMO or its secretariat. External members were often from other RFMOs or the FAO. In at least two instances an outside contractor was hired to conduct the review. In one case, documents were drafted by an internal working group but then reviewed by an external reviewer. Panels that included internal and external members were frequently split roughly 50/50. Several reviews quoted by the FAO recognized the value of having internal members because they were familiar with the history and practices of the RFMO, saving time for the panel. Two review panels included representatives of ENGOs. 8. Most reviews used a combination of a public meeting (or meetings) and further discussion by correspondence. Several provided an opportunity for stakeholder input through interviews or the completion of questionnaires. 9. The time necessary to complete the reviews ranged from 9 months to over 3 years (measured from the decision to conduct a review to the final report). FAO found it difficult to estimate costs because it is unclear what costs were reported, but provided a range of $6,500 to $145,500 for the eight reviews with data available. 10. Reviews of RFMOs were usually given terms of reference (TORs) that included the criteria for the review. FAO 2015 provides a detailed list of criteria, referred to as the Kobe criteria (see enclosure (1)). In general, however, the reviews focused on four general themes:

a. Conservation and management of fish stocks: what is the state of fish stocks under management? How reliable is the information received on those stocks?

b. Compliance with international obligations: Are the RFMO and its member states able to enforce fishing restrictions?

c. Legal framework, financial affairs, organization: Is the organization adequately staffed and funded? Are decisions transparent? Is decision-making effective?

d. Cooperation with other organizations 11. It may be informative to compare the Pate report to these best practices. The focus of the review was the relationship between the NEFMC, NERO (GARFO) and the NEFSC. The report was largely the work of one individual, an external reviewer familiar with the Council system, U.S. fisheries management general, and fisheries on the east coast. He was not, however, familiar with New England management issues. The reviewer was supported by a contract with a management consultant firm that was not familiar with New England management issues or the MSA process. The design and structure of the review was not determined by the Council and it is not clear from the report how this was developed. The report does not identify specific TORs nor the criteria used to evaluate performance. The focus was on stakeholder interviews (a total of 179) supplemented by the reviewer’s attendance at several Council meetings. The results of these interviews steered the evaluation themes. The reviewer did not conduct any public meetings. Findings were reported by agency, with a summary of general conclusions. The review report was delivered in April 2011, seventeen months after it was requested.

Planning the NEFMC Review 12. While the RFMO experiences provide useful information, they cannot be directly transferred to the Council’s needs without modification. A number of decisions need to be made to move forward. These will be explored in further detail below, but in general they are:

a. What aspects of the New England Council process will be reviewed? b. How will TORs be developed? c. Who will perform the review?

3

d. What is the desired timeline? e. How will the response to the review be developed?

13. What will be reviewed? This first question is the most important in designing the review. While the Council said it wanted to conduct a performance review, it has not yet defined its scope. This should be a Council decision. Examples of specific Council activities and practices that could be subject to or excluded from the review include:

a. Council operations i. Meeting planning and organization

ii. Use of Committees and Advisory Panels iii. Plan Development Team activities; support of plan development teams

by other partners iv. Decision-making process v. Setting of Council priorities

vi. Council policies and procedures vii. Use of Scientific and Statistical Committee

viii. Adaptation to changing ecological conditions b. Legal Authorities

i. Legal basis for Council action ii. Adequacy of legal/policy guidance

c. Council administrative practices i. Staff qualifications and organization

ii. Staff training and development iii. Administrative policies iv. Budgeting and financial management

d. External Interactions i. Scientific support and provision of scientific information

ii. GARFO support iii. Interaction with other management bodies (states, MAFMC, SAFMC,

Canada/TMGC, ASMFC, BOEM) e. Overall Performance

i. What is the status of stocks managed by the Council? ii. What are the effects of management on fishing communities?

14. How will TORs be developed? Once the scope of the review is determined, TORs with specific evaluation criteria will be needed. This could be a role for a Steering Committee appointed by the Chair, rather than the staff or the Executive Committee. If the Steering Committee is given the authority to approve TORs, it would help speed the review since they would not need to be approved at a Council meeting. If the Council is uncomfortable with this approach a compromise might be to have the Executive Committee approve the TORs developed by a Steering Committee. 15. Who will perform the review? As noted in FAO 2015 there are many different ways to construct the review. Deciding the form of the review could be another task assigned to a Steering Committee. Related to this decision is whether there is a role for a contractor to support a review panel, if that is the path chosen. It is clear that Council staff will be heavily involved in providing information to reviewers. A contractor, however, might be helpful to distribute the information, compile meeting records, prepare reports, etc., removing some of the administrative burden from Council staff. Should the reviewers plan to use written surveys, a qualified contractor could help with the survey design. The use of contractors may slow the start of the review as a result of the procurement process but later gains in efficiency may make this worthwhile.

4

16. Timeline/Budget: The desired timeline will be closely linked to the scope of the review. If a report is desired in time to be considered during the development of 2018 priorities, the review may need to be more narrowly focused than if the timeline is longer. The best approach might be to focus first on the scope and then develop a realistic timeline, accepting that the review may not be completed by late 2018. The necessary budget for the review will depend on whether reviewers are compensated, whether a contractor is hired, the number of meetings, travel associated with any interviews, etc. Council funds are not unlimited but should be sufficient to support the review. 17. How will a response be developed? Once the report is delivered to the Council, I recommend any recommendations should be discussed by the full Council and a plan for implementation developed. The Executive Committee could prepare the initial draft, assisted by staff.

5

Enclosure (1): Extracted from FAO 2015

“KOBE” CRITERIA FOR REVIEWING THE PERFORMANCE OF RFMOS Area General criteria Detailed criteria

1. Conservation and management

Status of living marine resources

• Status of marine living resources under the purview of the RFMO.

• Trends in the status of those resources.

• Status of species that belong to the same ecosystems as, or are associated with or dependent upon, targeted marine living resources.

• Trends in the status of those species.

Ecosystem approach

• Extent to which the RFMO decisions take account of and incorporate an ecosystem approach to fisheries management.

Data collection and sharing

• Extent to which the RFMO has agreed formats, specifications and time frames for data submissions, taking into account Annex 1 of the 1995 UN Fish Stocks Agreement.

• Extent to which the RFMO Contracting Parties, individually or through the RFMO, collect and share complete and accurate data concerning marine living resources and other relevant data in a timely manner, including analysis of trends in fishing activities over time.

• Extent to which fishing and research data and fishing vessel and research vessel data are gathered by the RFMO and shared among Contracting Parties.

• Extent to which the RFMO is addressing any gaps in the collection and sharing of data as required.

Quality and provision of scientific advice

• Extent to which the RFMO produces the best scientific advice relevant to the marine living resources under its purview, as well as to the effects of harvesting, research, conservation and associated activities, on the marine ecosystem.

Adoption of conservation and management measures

• Extent to which the RFMO has adopted measures based on the best scientific advice available to ensure the long- term conservation and sustainable use of marine living resources in the Convention Area.

• Extent to which the RFMO has applied a precautionary approach as set forth in Article 6 of the 1995 UN Fish

6

Area General criteria Detailed criteria

Stocks Agreement, including the application of precautionary reference points.

• Extent to which consistent/compatible management

measures have been adopted as set out in Article 7 of the 1995 UN Fish Stocks Agreement.

• Extent to which the RFMO successfully allocates fishing

opportunities consistent with the RFMO’s Convention and

Article 11 of the 1995 UN Fish Stocks Agreement.

• Extent to which the RFMO has moved toward the adoption of conservation and management measures for previously unregulated fisheries, including new and exploratory fisheries.

• Extent to which the RFMO has taken due account of the need to conserve marine biological diversity and minimize harmful impacts of fishing activities and research on living marine resources and marine ecosystems.

• Extent to which the RFMO has adopted measures to minimize pollution, waste, discards, catch by lost or abandoned gear, catch of non-target marine living resources, and impacts on associated or dependent species through measures including, to the extent practicable, the development and use of selective, environmentally safe and cost-effective fishing gear and techniques.

• Extent to which the RFMO has adopted and is implementing effective rebuilding plans for depleted or overfished stocks including guidance for stocks under moratoria.

Capacity management

• Extent to which the RFMO has identified fishing capacity levels commensurate with the conservation objectives of the RFMO’s Convention.

• Extent to which the RFMO has taken actions to prevent or eliminate excess fishing capacity and effort.

• Extent to which the RFMO monitors the levels of fishing effort, including taking into account annual notifications of participation by Contracting Parties.

2. Compliance and enforcement

Flag State duties • Extent to which the RFMO Contracting Parties are fulfilling their duties as flag States under the RFMO’s Convention, pursuant to measures adopted by the RFMO, and under other international instruments, including, inter alia, the 1982 Law of the Sea Convention, 1995 UN Fish

7

Area General criteria Detailed criteria

Stocks Agreement and the 1993 FAO Compliance Agreement, as applicable.

Port State measures

• Extent to which the RFMO has adopted measures relating to the exercise of the rights and duties of its Contracting Parties as port States, as reflected in Article 23 of the 1995 UN Fish Stocks Agreement, as well as the minimum standards set out in the 2009 FAO Agreement on Port State Measures to Combat IUU Fishing.

• Extent to which these measures are effectively implemented.

Monitoring, control and surveillance (MCS)

• Extent to which the RFMO has adopted integrated MCS measures (e.g. required use of boarding and inspection schemes, VMS, observers, catch documentation and/or trade tracking schemes, and restrictions on transhipment).

• Extent to which these measures are effectively implemented.

Follow-up on infringements

• Extent to which the RFMO and its Contracting Parties follow up on infringements to conservation and management measures.

Cooperative mechanisms to detect and deter noncompliance

• Extent to which the RFMO has established adequate cooperative mechanisms to both monitor compliance and detect and deter non-compliance (e.g. compliance committees, vessel lists, sharing of information about non- compliance).

• Extent to which these mechanisms are being effectively utilized.

Market-related measures

• Extent to which the RFMO has adopted measures relating to the exercise of the rights and duties of the RFMO Contracting Parties as market States for marine living resources under the purview of the RFMO.

• Extent to which these measures are being effectively utilized.

3. Decision- making and dispute settlement

Decision-making • Efficiency of the RFMO meetings in addressing critical issues in a timely and effective manner.

• Extent to which the RFMO has transparent, consistent and adequate decision-making procedures that facilitate the adoption of conservation and management measures in a timely and effective manner.

Dispute settlement

• Extent to which the RFMO has established adequate mechanisms for resolving disputes.

Area General criteria Detailed criteria

4. International Cooperation

Transparency • Extent to which the RFMO is operating in a transparent manner, taking into account Article 12 of the 1995 UN Fish Stocks Agreement.

• Extent to which the RFMO’s decisions, meeting reports, scientific advice upon which decisions are made, and other relevant materials are made publicly available in a timely fashion.

Relationship with non- contracting parties

• Extent to which non-Contracting Parties have undertaken fishing activities in the RFMO’s Regulatory Area.

• Extent to which the RFMO facilitates cooperation with non-Contracting Parties, including encouraging non- Contracting Parties to become Contracting Parties or to implement the RFMO’s conservation and management measures voluntarily.

• Extent to which the RFMO provides for action in accordance with international law against non-Contracting Parties undermining the objective of the Convention, as well as measures to deter such activities.

Cooperation with other international organizations

• Extent to which the RFMO cooperates with other RFMOs and other international organizations.

Special requirements of developing States

• Extent to which the RFMO recognizes the special needs of developing States and cooperates with developing States, taking into account Part VII of the 1995 UN Fish Stocks Agreement.

• Extent to which the RFMO’s Contracting Parties, individually or through the Commission, provide relevant assistance to developing States as reflected in Article 26 of UN Fish Stocks Agreement.

5. Financial and administrative issues

Availability of resources for activities

• Extent to which financial and other resources are made available to achieve the aims of the RFMO and to implement the RFMO‘s decisions.

9

Efficiency and cost- effectiveness

• Extent to which the RFMO is efficiently and effectively managing its human and financial resources, including those of the secretariat.

• Extent to which the schedule and organization of the meetings could be improved.

18.