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Sector Development A Complex Legal Affair
Sectors are a cutting-edge management tool that has both substantial benefits and numerous risks for fishermen, said Elizabeth Butler, of the Portland-based firm Pierce Atwood. Butler summarized major legal issues in sector operating agreements. To start, a sector proposal must be submitted to the New England Fisheries Management Council at least one year in advance of the start of a sector. An operations plan and sector contract must follow. These documents must take into account a number of considerations, including the corporate status of each fisherman and the sector as a whole; start-up money; National Environmental Policy Act compliance; joint and several liability; enforcement; and antitrust law. It must be decided whether each member should be incorporated, and whether the sector should exist as a non-profit. An issue that arises is whether a member can be prevented from leaving the sector. Enforcement, reporting, and the rigorous performance of the sector manager will be important considerations. Issues of enforcement will be complicated in sectors where there is dual management with the National Marine Fisheries Service, and if there are different total allowable catches for different species. The question of antitrust law revolves around whether the sectors will be exempted from antitrust liability. Butler stressed that, as sector development plays out, it will be vital to have communication between regulators, fishermen, and the legal community. “The effect will be to shift primary enforcement from the shoulders of the regulators into the sector, so it can be done among friends first and foremost,” she said. “NMFS remains in total charge and control. But they hope the sectors will handle things and keep things on track. It’s a real change.” She said that any of the sectors in development should be thinking in terms of a one-year trial period. “The bottom line is: Keep it simple,” she said. |
