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5 Funding, Legal Issues, and Scientific Rigor FUNDING SOURCES AND DISTRIBUTION . Cooperative research has been funded by a broad range of methods, including direct congressional mandates, congressional line items, funds directed to cooperative research from National Marine Fisheries Service (NMFS) headquarters, funds from NMFS fisheries science centers or re- gional offices, industry set-aside funds, import duties, landing taxes, direct industry contributions, and funding from nongovernmental organizations (NGOs) and foundations. These sources are mutually compatible, and in- deed, we believe that many if not all of these sources of funds will continue to support cooperative research in the future. However, many of the fund- ing sources deserve comment, particularly with respect to the recommen- dations made below (see Table 5-11. Over the last several years, Congress has taken a much more active role in determining the allocation of funds to individual cooperative research programs and projects. Some congressional funds now appear as line items for specific projects or under a general heading of"cooperative research" within a certain region of the NMFS budget. Alternatively, Congress, NMFS, and other agencies like the U.S. Fish and Wildlife Service may provide direct funding for a regional entity such as the Northeast Consor- tium, which then decides how to allocate funds across competing projects. An important feature of both of these methods is that specific funds are set 63

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64 COOPERATIVE ~S~CHIN THE NATIONAL M~NEFISHEMES SERVICE TABLE 5-1 Summary of Current NMFS Grants and Programs Available for Cooperative Research Program FY 2002 (in millions)a NMFS FY2003 Competitive Partner (in millions) Process Required Industry Partner Required? Alaska Fisheries Development Foundation Alaska Fisheries Information Network Gulf and South Atlantic Fisheries Development Foundation $0.75 0 Yes No $3.2 $3.2 Yes Yes No Yes $0.4 0 Yes No Yes Gulf of Mexico $3.5 $3.5 Yes No Yes Fisheries Information Network GoMex Consortium Interjurisdictional fisheries grants Marine Fisheries $3.5 Initiative (MARFIN) Northeast Consortium Pacific Coast Information Network (PACFIN) Recreational Fisheries Information Network (RECFIN) $2.75 $2.59 Saltonstall- Kennedy Grants Program $1.25 $2.59 $3.5 $5.0 $3.0 Yes No Yes Yes No No Yes No Yes 0 Yes No Yes $3.0 Yes No Yes $3.7 $3.7 Yes No Yes ? $4.1 Yes No No Sea Grant $62.4 $57 Yes No No a These are in addition to line items specifically appropriated for cooperative research. They do not include grant, loan, and development programs whose purpose is business development rather than research. SOURCE: NOAA (2002).

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FUNDING, LEGAL ISSUES, AND SCIENTIFIC RIGOR 65 aside for cooperative research, without an evaluation of the economic or scientific merits of cooperative versus dedicated research. NMFS also funds cooperative research from within its own budget, both at the regional office and the fisheries science centers levels. In this case, it is NMFS that determines which projects to fund, which projects to do cooperatively, and what to do solely with NMFS staff. An advantage of this approach is that it provides for a more deliberate consideration by government of the economic and scientific efficiencies of different levels of cooperative work, but it also has the disadvantage of being funded within . . ~ . . . . . . . . the constraints ot an organization attempting to maintain its own 1nstltu- tional infrastructure. Some funds for cooperative research come from specific set-asides and import taxes. The Saltonstall-Kennedy Grants Program is an example of such programs, and there now exist project decision and administrative frameworks for allocation of such funds. The amount of funds available is determined by legislation, but it would certainly be possible to imagine using landing taxes as a primary funding mechanism for most data collec- tion. In New Zealand a regional fishery management board determines the appropriate budget for specific fisheries and sets landing taxes based on the estimated costs. Advantages of this system are that the amount of funds spent on a fishery is determined by the management needs, a "user pay" cost recovery management system with associated stakeholder involvement in the decision making, and potentially less political influence in the fund- ing process. The committee heard several examples of direct industry funding of projects, and this is certainly a trend to be encouraged. It seems that such funding will occur when industry sees an immediate benefit to its eco- nomic interest, and provided such programs meet the scientific criteria of the decision-making process, the committee finds no problem with such projects. NGOs and foundations have been less involved in funding coop- erative research, but some funding has occurred and, as with industry fund- ing of projects, such funding should be encouraged. LEGAL ASPECTS OF COOPERATIVE RESEARCH There are a number of legal issues that participants in cooperative re- search projects need to consider. These issues include vessel licensing and inspection requirements, fishery permits, charter agreements and contracts, insurance, enforcement, and confidentiality and ownership of research data

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66 COOPERATIVE RESE^CHIN THE NATIONAL MINE FISHERIES SERVICE and information. Failure of participants involved in cooperative research to consider and address these and other legal issues can result in project de- lays, increased project costs, or project failure. Some of these important legal issues are discussed below. U.S. Coast Guard Licensing anti Inspection Requirements A critical element of cooperative research is the chartering of fishing vessels as research vessels by NMFS. NMFS, fishermen, and other partici- pants involved in cooperative research need to be aware of and meet all U.S. Coast Guard licensing and inspection requirements as they relate to the performance of each research project using fishing vessels. A brief de- scription follows below. The U.S. Coast Guard has for decades had safety regulations in place covering oceanographic research vessels and passenger-carrying vessels and more recently has established safety regulations for fishing vessels. These regulations range from the designation of vessels for particular uses, to the inspection and certification of vessels for designated uses, to the licensing of operators and crew aboard those vessels as required. Vessels under 100 tons engaged in recreational fishing but carrying passengers for hire range from small motor vessels chartered for a fee to carry one recreational fisherman to large motor vessels taking 100 or more recreational fishermen to fishing grounds for a simple fee. When carrying fewer than six passengers, these vessels require an operator licensed by the U.S. Coast Guard but do not have to be inspected. Vessels carrying more than six passengers require both a licensed master and certification. Vessels engaged in fishing and so designated are not required to have such certifica- tion, but if the vessel is over 200 gross tons (GT), it must be operated by a master licensed by the U.S. Coast Guard. Oceanographic research includes the taking of biological samples from the sea, including fishery resources. Fisheries research, a type of oceanographic research, is interpreted to include environmental and fishery resource surveys and experimental fishing trials. Vessels engaged exclusively in oceanographic research are not required to have certification if under 300 GT, and the operators are not required to be licensed if the vessel is under 200 GT. An uninspected motor vessel of under 300 GT (such as a designated fishing vessel) operating exclusively as an oceanographic research vessel when chartered for scientific research is addressed specifically in U.S. Coast Guard policy. For long-term research vessel charters, these vessels may request a letter of designation from the

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FUNDING, LEGAL ISSUES, AND SCIENTIFIC RIGOR 67 local Coast Guard officer in charge, marine inspection (OCMI). After determining the vessel is employed exclusively in oceanographic research, the OCMI will issue a letter of designation for a period of two years. If the vessel receives this letter, the scientific personnel onboard are not consid- ered crew members. An uninspected motor vessel of under 300 GT that does not possess a letter of designation may also engage in oceanographic research operations provided that such use does not violate applicable man- ning and inspection requirements. However, on these "undesignated" oceanographic research vessels, scientific personnel who serve in any capacity on vessels of at least 100 GT require merchant mariner's documents (MMDs) as members of the crew. In addition, the carriage of students is considered carriage of passengers, depending on the size of the vessel and number of passengers onboard. This compels Coast Guard certification and licensing of the vessel's master. In summary, fishing vessels under 100 tons can be chartered for oceano- graphic research, and an operator or captain licensed by the U.S Coast Guard is not required as the scientific party is considered part of the crew. Fishing vessels over 100 tons can also be chartered to conduct oceano- graphic research; however, unless the vessel is issued a letter of designation, the entire crew, including the scientific party, must carry MMDs. Fishery Permits The need for fishery permits varies with the scope and type of the cooperative research projects. In the case where a fishing vessel is carrying a scientific sea sampler or observer that is collecting data under normal legal fishing operations, no special permits other than those required to legally conduct normal fishing operations within restrictions of the relevant fish- ery management plans are required. If a fishing vessel has been chartered or will be otherwise engaged in scientific research that will not require the sampling or taking of fishery resources, no fishery permits are required. If a fishing vessel has been chartered or will otherwise be engaged in scientific research that will require the sampling or taking of fishery resources with minimal impact on the stock or habitat, the leader of the scientific research project must submit a research plan to the NMFS regional director at least 60 days prior to the proposed activity, and after review the NMFS regional office may issue a letter of acknowledgment (LOA) to the project and the specified fishing vessel, authorizing the activity and specifying reporting procedures. If a fishing vessel is chartered or otherwise engaged in the sam-

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68 COOPERATIVE RESEAR CHIN THE NATIONAL MARINE FISHERIES SERVICE pling or taking of fishery resources where the catches may be retained and sold to offset the cost of the research, or the catches are potentially large enough to impact the goals of a fishery management plan, an exempted fishing permit (EFP) is required. To obtain an EFP, the research project leaders must submit a research plan and application to the NMFS regional director at least 60 days prior to the proposed activity. After review, the NMFS regional office may issue an EFP specifying the conditions of the allowed research activity and the reporting procedures. Research activities that require the sampling or taking of fishery re- sources have been problematic for NMFS, scientific researchers, and the operators of fishing vessels. One example is the participation of a fishing vessel in a scientific survey where tow duration is short, liners are used to retain small animals, the catches are returned to the sea, and enumeration and measurement are clearly covered by the LOA. For some EFP applica- tions, an environmental assessment (EA) may also be required because the environmental impact of the proposed fishing activity is believed to the substantial. The preparation of an EA requires considerable effort and ex- pertise, and the criteria for when an EA is required vary from region to region. In summary, there can be considerable confusion and frustration about the application procedures and specific requirements for LOAs, EFPs, and EAs. There appear to be differences between NMFS regions in terms of what constitutes scientific research covered by an LOA and what is covered by an EFP. In some cases there can be substantial delays in NMFS approval of applications, which result in project delays and, in some cases, their cancellation. NMFS must improve the clarity of the application procedure and the timeliness of the process. Similarly, scientific research leaders must follow the application process explicitly and submit applications in a timely fashion. Charter Agreements or Contracts The purpose of the charter agreement or contract is to explicitly state all the conditions and specifications related to the charter of the fishing vessel used in cooperative research. The request for proposals or quotations and the subsequent agreement should include similar elements. These en- compass the period of the charter, costs and contingencies, vessel and op- erational requirements, and safety considerations.

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FUNDING, LEGAL ISSUES, AND SCIENTIFIC RIGOR 69 The agreement must begin with a clear statement of the parties in- volved, the owner of the vessel, and the charterer. Specifically the agree- ment should address the following: The charter term or the period of charter and the geographic limit of the charter: Provision for foul weather should be considered in the agree- ment, as this may extend the charter period. The geographic limit of the charter should be within the limits covered in the insurance policy of the vessel and the safe operating range of the vessel. The requirements of the vessel: including length, tonnage, horse- power of the main propulsion engine; auxiliary systems (including electri- cal, hydraulic, potable water, seawater and waste, electronic navigational); fish-finding equipment; fishing gear (including winches, wire, nets, dredges, etch; and deck and interior space (including the number of berths, show- ers, storage, etc.) . Operational requirements: including the length of the work day and watch schedule, the number of meals, required assistance of the vessel crew to the scientific party, the disposition of the catch, etc. Crew requirements or the manning of the fishing vessel, specifically the qualifications and experience of the captain and crew . Safety considerations, including the requirements that the vessel be equipped with all U.S. Coast Guard-required safety equipment, that all this equipment be inspected prior to commencement of the charter, that the vessel provide a stability letter demonstrating the vessel's stability report (and include copies of recent inspections and surveys that document the seaworthy condition of the vessel), and that the vessel provide appropriate safety equipment for all crew and scientific party members working on deck Provision for each party to terminate the agreement for justifiable reasons, but also specifying a penalty for early termination . Fees, including the daily charter rate and the costs of mobilization and demobilization, foul weather or failed equipment standbys, and break- downs The costs of fuel beyond some specified level, dockage, and modifi- cations to the vessel Resolution of disputes using arbitration Integration, that is that the parties agree that the contract super- sedes all prior agreements and discussions

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70 COOPERATIVE RESEAR CHIN THE NATIONAL MARINE FISHERIES SERVICE insurance The type of insurance required depends on the nature of the coopera- tive research. In the case of sea samplers or observers aboard fishing vessels, the issue is problematic because it is not clear which insurance is applicable .. . . ~ . . . . . . to tnls situation. State wor~mans compensation Insurance IS 1na( ~equate, as it does not apply to observers on vessels in federal or international waters. Longshore and harbor workers insurance, intended for shoreside workers, will not necessarily cover observers at sea. Tones Act insurance may not cover observers on fishing vessels, as they do not meet the requirement of "seamen" under the act. Companies hiring observers and placing them aboard fishing vessels often overlap insurance coverage, so as to be certain that they are insured. This increases the cost of observer programs. NMFS should provide clarification as to the source and level of insurance coverage to ensure coverage and reduce costs. In the case of the chartering of a fishing vessel for fisheries research, the insurance issue is clearer. The operator of the fishing vessel should be re- quired to procure and maintain indemnity insurance at a specified level, with the NMFS as a named insured, and the certificate of insurance should be presented prior to the commencement of the charter. The agreement should specify that the fishing vessel for itself and its insurers waive any right of subrogation against the NMFS, its employees, agents, or contrac- tors for any claim arising for the vessel charter. Similarly, the NMFS agrees to defend and indemnify the fishing vessel for any claim or demand against the NMFS stemming from the operation of the fishing vessel, including the cost of defense. Any additional cost of the insurance should be included in the vessel charter fee. If insurance will be necessary for a cooperative research project, ad- equate time and resources need to be allocated in advance of the project start date to prevent delays. Data Collection and Enforcement The success of vessel observers or sea samplers for use in collection of fishery-dependent data has been clearly demonstrated throughout many of the U.S. fisheries. An important distinction exists among observer pro- grams: those that are mandatory and those that are collaboratively incorpo- rated into the fishery (and are considered voluntary). Through cooperative observer efforts, the fishing industry and the scientific community can

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FUNDING, LEGAL ISSUES, AND SCIENTIFIC RIGOR 71 achieve a degree of ownership for data collected; trust in the validity of the information and invaluable collaboration can be established through work- . , . ~~, . .. . . .. ng partnerships. 1 hese 1nltlatlves are not Immune to pro ulems. Reporting of fishery violations by observers aboard cooperative vessels can present a dilemma. Mandatory observer programs have been utilized to jointly provide data collection and enforcement aspects. Voluntary observer programs have been designed more to collect fishery information and data. It appears that most cooperative observer programs are seldom exposed to violations; however the potential for encountering such problems exists. Many cooperative observer programs exist in fisheries that incorporate relatively small or mid-sized vessels. In some cases, an observer accompa- nies a crew of three to four fishermen aboard vessels up to 85 feet in length for periods normally lasting from 30 to 45 days. The observer is placed in very cramped quarters with the crew and must live in close contact with them for long periods of time. It is stressed to the observer that teamwork should be established aboard the vessel. For cooperative research to suc- ceed, it is vital that the professional fisheries observers live in harmony with the crew. The observer should be perceived as an unbiased collector of sci- entific information data and not that of an enforcer. Many potential prob- lems can be avoided by clear agreement at the genesis of cooperative plan- ning that fishery violations are not to be expected or tolerated. It is a responsibility of the fishery observer involved in cooperative research efforts to record data as required, without regard to whether it could later result in a fishery violation. The observer generally has no obli- gation to report observed fishery infractions. However, if a vessel is cited for a fishery violation with an observer aboard, it is his or her duty to provide accurate information to authorities investigating the case. Furthermore, if the observer is summoned to court to testify as a witness for the prosecu- tion, it is the obligation of the observer to report his or her observations truthfully. Cooperative fisheries observers have a challenging occupation. They are often placed in a delicate and potentially contentious environment aboard vessels. Data collection can be a recondite task requiring special individuals who can adapt to rigorous conditions, yet maintain scientific integrity through use of prescribed protocols. If observers are perceived as enforcement adjuncts aboard vessels, a different atmosphere is established between the crew and the observer. This can result in the observer's primary job, data collection, becoming a much more difficult process.

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72 COOPERATIVE RESEAR CHIN THE NATIONAL MARINE FISHERIES SERVICE Confidentiality of Data and Results The data collected as a result of cooperative research projects or pro- grams often contain information that is sensitive or confidential. Observers or sea samplers collect data ranging from catch rates and fishing locations to interactions with protected species. Release of this confidential informa- tion to other fishermen or to the press with specific reference to the origi- nating fishing vessel can be problematic for the vessel owner, captain, or crew. All government parties involved with observer programs must make every effort to keep the data confidential, or when released they should be aggregated with those of other similar vessels so as to prevent the identifica- tion of individual vessels. Often questions of immediate importance to fishery management or to the fishing community are being addressed by cooperative research. There is often pressure to release information or to speculate in a public forum on the implications of data as they are being generated. Data, obser- vations, and results should not be released to the public until the project is completed, including the peer review process. This should be made very clear to all participants in the project. If the release of data or preliminary results will be necessary, this needs to be understood and agreed to in ad- vance by all participants in the project. Such concerns are best addressed in contracts signed by all participants prior to the commencement of a project. ENSURING SCIENTIFIC RIGOR Standards Applicable to Cooperative Research Cooperative research must meet the same levels of scientific rigor and quality expected of any other scientific research endeavor. Obtaining high- quality results depends on setting high standards and employing oversight processes to ensure that these standards are met. What makes cooperative research especially challenging in this regard is that if it is conducted in a highly cooperative mode, nonscientists who are generally not familiar with the scientific method are integrally involved in making decisions about the scientific aspects ofthe research project. Meaningful participation and buy- in of nonscientists in scientific decisions clearly require that some training and other mechanisms to facilitate understanding of scientific standards should be built into the project design and implementation process. It is also necessary for scientists to communicate with nonscientists so they can

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FUNDING, LEGAL ISSUES, AND SCIENTIFIC RIGOR 73 understand how they perceive marine ecosystems and the scientific process. Throughout the committee's deliberations it was emphasized that, in addi- tion to passing scientific muster, cooperative research should be conducted in a practical, cost-effective manner and one that maximizes true coopera- tion and participation and the chances that the results will be used for management purposes. Thus, one often sees recommendations that coop- erative studies be conducted aboard commercial fishing vessels operating under commercial fishing conditions (refer to examples in Chapters 2 and 31. Clearly, fishermen are the experts on the practicalities of employing various data collection methodologies (especially fishing gear) aboard com- mercial fishing vessels, and thus the scientific members of the team will need openness to the practical aspects of the project design and implemen- tation. Scientists, on the other hand, are experts at utilizing and deploying an array of instruments according to rigorous protocols. Fishermen will need training that ensures that all participants understand the importance of these protocols and that there may be a need to compromise practicality and efficiency of fishing operations on occasion to ensure the validity and usefulness of the data being collected. Ensuring that Standards Are Met A cooperative research project team must include, at a minimum, fish- ermen and scientists. The committee heard reports of successful coopera- tive research in instances where the team scientists were independent of the management agency (e.g., academics), as well as instances where the team scientist was an employee of NMFS, although the former appeared to be more common than the latter. In instances where the scientist was an NMFS employee, the scientist did not have regulatory responsibilities. The process for developing, implementing, and evaluating the project should be broadly inclusive and transparent. Many ofthe cooperative research projects reviewed in this report made use of advisory committees with broader mem- bership, including agency personnel with regulatory responsibility, science administrators, employees of environmental organizations, fishing industry association representatives, and additional scientists and fishermen. Such committees can provide an informal and consistent source of guidance throughout the duration of the research project. Such a committee also provides a ready mechanism for regular communication among project par- ticipants and managers, while maintaining independence of the research r project trom management pressures.

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74 COOPERATIVE RESEAR CHIN THE NATIONAL MARINE FISHERIES SERVICE Cooperative research projects should be subjected to independent sci- entific and practical peer review at the proposal stage and at project comple- tion. At the proposal stage, peer review should evaluate the validity and efficiency of the experimental design, data collection methods (including sample sizes, stratification, and data quality control mechanisms), and pro- posed data analysis methods. At the completion of the project, the findings and conclusions need to be peer reviewed. Where possible the findings and conclusions should be submitted to a recognized scientific journal for pub- lication. For multiyear projects, one or more interim reviews are advisable to be sure the project is on track and meeting its intended objectives. Pro- grams that administer cooperative research should also be subjected to pro- grammatic peer review not less often than every five years. Validation of data accuracy and precision is an important part of the research process and overall project quality control. Every cooperative project needs a system of data verification and quality assurance. Indepen- dent scientific observers aboard commercial fishing vessels are likely to be the major tool employed for data quality assurance, but other surveillance tools may be useful in some circumstances. Procedures regarding the announcement, use, and publication of re- sults should be clarified as part of the initial contractual agreement between the project team and the cooperative research-granting entity. In all cases, following project completion, results should be disseminated broadly and be available in the public domain.