```

[Senate Hearing 106-1030]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 106-1030
 
   REAUTHORIZATION OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND 
                             MANAGEMENT ACT
=======================================================================

                                HEARING

                               before the

                  SUBCOMMITTEE ON OCEANS AND FISHERIES

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 29, 1999

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

                       U. S. GOVERNMENT PRINTING OFFICE
71-814                          WASHINGTON : 2002
___________________________________________________________________________
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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington             JOHN D. ROCKEFELLER IV, West 
TRENT LOTT, Mississippi                  Virginia
KAY BAILEY HUTCHISON, Texas          JOHN F. KERRY, Massachusetts
OLYMPIA J. SNOWE, Maine              JOHN B. BREAUX, Louisiana
JOHN ASHCROFT, Missouri              RICHARD H. BRYAN, Nevada
BILL FRIST, Tennessee                BYRON L. DORGAN, North Dakota
SPENCER ABRAHAM, Michigan            RON WYDEN, Oregon
SAM BROWNBACK, Kansas                MAX CLELAND, Georgia
                       Mark Buse, Staff Director
                  Martha P. Allbright, General Counsel
     Ivan A. Schlager, Democratic Chief Counsel and Staff Director
               Kevin D. Kayes, Democratic General Counsel
                                 ------                                

                  Subcommittee on Oceans and Fisheries

                    OLYMPIA J. SNOWE, Maine Chairman
TED STEVENS, Alaska                  JOHN F. KERRY, Massachusetts
SLADE GORTON, Washington             DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas          JOHN B. BREAUX, Louisiana

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held July 29, 1999.......................................     1
Statement of Senator Gorton......................................     7
    Prepared statement...........................................     8
Statement of Senator Kerry.......................................     5
Statement of Senator Snowe.......................................     1
    Prepared statement...........................................     3

                               Witnesses

Dalton, Penelope D., Assistant Administrator, National Marine 
  Fisheries Service, U.S. Department of Commerce.................    11
    Prepared statement...........................................    13
Delaney, Glenn Roger, U.S. Commissioner, International Commission 
  for Conservation of Atlantic Tunas.............................    73
    Prepared statement...........................................    75
Fluharty, David, Ph.D., Research Associate Professor, School of 
  Marine Affairs, University of Washington and Member, North 
  Pacific Fishery Management Council, Washington State...........    46
    Prepared statement...........................................    48
Garcia, Terry D., Assistant Secretary for Oceans and Atmosphere; 
  accompanied by Andrew A. Rosenberg, Ph.D., Deputy Assistant 
  Administrator, National Marine Fisheries Service, U.S. 
  Department of Commerce.........................................     9
Hill, Thomas, Member, New England Fishery Management Council.....    37
    Prepared statement...........................................    39
Hinman, Ken, President, National Coalition for Marine 
  Conservation, on behalf of the Marine Fish Conservation Network    79
    Prepared statement...........................................    82
Lauber, Richard B., Chairman, North Pacific Fishery Management 
  Council........................................................    42
    Prepared statement...........................................    43
Raymond, Maggie, Member and Spokesperson, Groundfish Group, 
  Associated Fisheries of Maine..................................    33
    Prepared statement...........................................    35
Swingle, Wayne E., Executive Director, Gulf of Mexico Fishery 
  Management Council.............................................    62
    Prepared statement with attachments..........................    63

                                Appendix

Response to written questions submitted by Hon. Max Cleland:.....
    William M. Daley and Penelope D. Dalton......................   101
Response to written questions submitted by Hon. Ernest F. 
  Hollings to :..................................................
    David Fluharty...............................................   117
    Thomas R. Hill...............................................   100
    William M. Daley and Penelope D. Dalton......................   101
    Maggie Raymond, Thomas R. Hill, Richard B. Lauber, David 
      Fluharty...................................................   102
Response to written questions submitted by Hon. John F. Kerry to:
    Penelope D. Dalton...........................................   103
    David Fluharty...............................................   118
    Thomas R. Hill...............................................   100
    Maggie Raymond, Thomas R. Hill, Richard B. Lauber, David 
      Fluharty...................................................   103
    Maggie Raymond...............................................   140
Response to written questions submitted by Hon. Olympia J. Snowe 
  to:............................................................
    Penelope D. Dalton...........................................   104
    Glenn Roger Delaney..........................................   124
    David Fluharty...............................................   113
    Thomas R. Hill...............................................    95
    Ken Hinman...................................................   135
    Panel I......................................................   104
    Panel II.....................................................   104
    Maggie Raymond...............................................   138
    Wayne E. Swingle.............................................   119
Alverson., Robert, Manager, Fishing Vessel Owners Association....   147
Daley, William M., Secretary, U.S. Department of Commerce, 
  prepared statement.............................................   140
From The Post and Courier, Welcome Fishing-Limit Push............   102
Martin, Guy, Counsel, Essential Fish Habitat Coalition, statement   142
North Pacific Fishery Management Council, prepared statement.....   107
Paul, Ron Hon., U.S. Representative from the State of Texas......   137
Petersen, Rudy A., Fishermen's Finest, Inc., letter dated July 
  27, 1999 to Senator Snowe......................................   160
Proposal for Open Access Fishing Vessel Allocation of Pollock 
  under the American Fisheries Act...............................   161
Thomson, Arni, Executive Director, Alaska Crab Coalition, 
  prepared statement.............................................   128
Williams, Kay H., on behalf of Save America's Seafood Industry 
  Coalition......................................................   159

                    REAUTHORIZATION OF THE MAGNUSON-
            STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

                              ----------                              

                        THURSDAY, JULY 29, 1999

                               U.S. Senate,
              Subcommittee on Oceans and Fisheries,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:30 a.m., in 
room SR-253, Russell Senate Office Building, Hon. Olympia J. 
Snowe presiding.
    Staff members assigned to this hearing: Sloan Rappoport, 
Republican Counsel; Stephanie Bailenson, Republican 
Professional Staff; and Margaret Spring, Democratic Senior 
Counsel.

          OPENING STATEMENT OF HON. OLYMPIA J. SNOWE, 
                    U.S. SENATOR FROM MAINE

    Senator Snowe. Good morning. I am going to try to move this 
along, at least in the first few minutes, because we are going 
to have a series of three votes, starting at 9:30. So I will 
quickly go through my statement. Then if we can begin with the 
first witnesses and see how far we can go before I may have to 
leave.
    First of all, I would like to welcome all the witnesses who 
will be testifying here today and others in attendance, on the 
issue of reauthorization of the Magnuson-Stevens Fishery 
Conservation and Management Act. The most significant issue 
before the Oceans and Fisheries Subcommittee in this Congress 
will be the reauthorization of this Act, which is the principal 
Federal law governing marine fisheries management.
    Today's hearing begins with what is sure to be an 
exhaustive review of the statute and the administration's 
implementation of it. It is my intention to hold field hearings 
in the various coastal regions of this country. They will 
provide us with the opportunity to discuss in great depth the 
specific regional concerns that have been raised. Today's 
hearing, therefore, will lay the foundation for these future 
discussions.
    The last reauthorization of the Act was quite substantial. 
I would be remiss if I did not acknowledge the work of my 
colleagues during the last reauthorization. The Subcommittee 
was led through the last reauthorization by Senator Stevens, 
who chaired this Subcommittee, as well as Senator Kerry, who is 
the ranking minority member of this Subcommittee. Their 
tireless work significantly changed the way we manage 
fisheries.
    Enactment of the Fishery Conservation and Management Act in 
1976 began a new approach to Federal marine fishery management. 
It was a direct response to the depletion of the U.S. fishery 
resources by foreign vessels and secured U.S. jurisdiction and 
management authority over fisheries, out to 200 miles from our 
shores. The Magnuson-Stevens Act is administered by the 
National Marine Fisheries Service and the eight regional 
councils that manage fisheries in geographic areas through 
specific fishery management plans.
    Their actions establish the rules under which the fishing 
industry operates. They determine harvest quota, season length, 
gear restrictions, and license limitation. That is why 
difficult management decisions must involve the people whose 
livelihood depends on the continued access to these resources. 
As such, it is critical that there be a balanced and fair 
apportionment of council seats so that all have a strong voice 
in management.
    Today, we will hear testimony about breakdowns in the 
parti-
cipatory process that have led to the adoption of less than 
adequate management measures. One of the overall goals of the 
Magnuson-Stevens Act is to provide a mechanism to determine the 
appropriate level of catch to maximize the benefit to the 
Nation, while still protecting the long-term sustainability of 
the fisheries. It is a balancing act among competing interests 
of commercial and recreational fishermen.
    We will also hear about the need for participation of non-
fishing interests when managing public resources.
    The Sustainable Fisheries Act was enacted in 1996, and the 
provisions and requirements of the Act reflect significant 
changes to the goals and objectives of the Magnuson-Stevens 
Act. Proper implementation of these provisions is of great 
concern to many groups. Accordingly, there is considerable 
interest in the implementation activities of the regional 
councils, as well as the National Marine Fisheries Service.
    The most substantial change in fishery management under the 
Sustainable Fisheries Act was the mandates to stop overfishing 
and restore overfished stocks. The councils were given a 
timetable to achieve these goals, and we will hear today the 
status of their actions.
    Witnesses from around the country will be able to give 
firsthand reports about the level of success the councils have 
had in fulfilling this mandate. The councils and the National 
Marine Fisheries Service were also told to increase their 
emphasis on social benefits that might better preserve 
traditional fishermen. Because of the high level of 
overfishing, management measures will be required in a variety 
of fisheries. It is essential, therefore, that we remember to 
preserve the fishermen as well as the fish.
    There have been numerous criticisms of NMFS and the 
councils for not taking adequate measures to address the 
financial hardships tough management will inevitably cause.
    Today, we will be hearing from many fishermen, as well as 
representatives of fishing communities, of the impact that 
these management decisions have had on the fishing industry in 
total.
    The Sustainable Fisheries Act also imposed a moratorium on 
the creation of new individual fishing quota management 
programs in which a transferable percentage of the annual catch 
is held privately. Today's witnesses will offer recommendations 
about how to address such programs in the future.
    The final paradigm shift incorporated in the Sustainable 
Fisheries Act that we will hear about today are the provisions 
to 
minimize bycatch and restore and protect fish habitat. Based on 
concerns that certain fish stocks had declined due to their 
loss of surrounding habitat, the Act established a national 
program to facilitate long-term protection of essential fish 
habitat. Many have argued that these provisions have not been 
properly implemented. We will be discussing this problem with 
our witnesses today.
    During recent trips home to Maine, I have had the 
opportunity to discuss the reauthorization of this Act with 
fishermen and people who live in fishing communities. These 
hardworking men and women also have very specific concerns with 
the way the law is being implemented.
    Let me conclude my remarks by saying that those most 
affected by this law believe that the Act is too rigid, that it 
is not being implemented properly by NMFS, and that contrary to 
its mandate, the best science is not being used in management. 
As we begin this reauthorization process, we should try to make 
sure that sustainable fishing and good management become the 
norm and not the exception. Clearly, this reauthorization will 
have major implications for the future of marine fisheries in 
the United States.
    [The prepared statement of Senator Snowe follows:]
  Prepared Statement of Hon. Olympia J. Snowe, U.S. Senator from Maine
    The hearing will come to order. Before we begin, I would like to 
welcome the witnesses, my colleagues, and others in attendance today.
    Today's hearing will address the reauthorization of the Magnuson-
Stevens Fishery Conservation and Management Act.
    The most significant item before the Oceans and Fisheries 
Subcommittee in this Congress is the reauthorization of the Magnuson-
Stevens Act, the principal Federal law governing marine fisheries 
management. With today's hearing, the Subcommittee begins what is sure 
to be an exhaustive review of this statute and the Administration's 
implementation of it.
    It is my intention to hold field hearings in the various coastal 
regions of the country. These field hearings will provide us with the 
opportunity to discuss in great depth the specific regional concerns 
that have been raised. Today's hearing, therefore, will lay the 
foundation for these future discussions.
    The last reauthorization of the Act was quite substantial. I would 
be remiss if I did not acknowledge the work of my colleagues during the 
last reauthorization. This Subcommittee was led through the last 
reauthorization by Senator Stevens and Senator Kerry. Their tireless 
work significantly changed the way we manage fisheries.
    The enactment of the Fishery Conservation and Management Act in 
1976 began a new approach to Federal marine fisheries management. The 
Act was a direct response to the depletion of U.S. fishery resources by 
foreign vessels. It secured U.S. jurisdiction and management authority 
over the fisheries out to 200 miles from our shores. Under the Act, 
foreign catch from the U.S. exclusive economic zone declined from about 
3.8 billion pounds in 1977 to zero in 1992. The Act's intent was to 
provide long-term stability and sustainable fisheries, though today in 
mafiy areas we are again overcapitalized and the stocks face a crisis 
similar to that of the 1970's.
    The Magnuson-Stevens Act is administered by the National Marine 
Fisheries Service and eight Regional Fishery Management Councils that 
manage the fisheries in their geographic areas through specific fishery 
management plans. Their actions establish the rules under which the 
fishing industry operates. They determine the harvest quotas, season 
length, gear restrictions, and license limitations.
    This is where tough management decisions need to be made and must 
involve the people whose livelihood depends on the continued access to 
these resources. As such, it is critical that there be a balanced and 
fair apportionment of council seats so that all have a strong voice in 
management. Today, we will hear testimony about breakdowns in the 
participatory process that have led to the adoption of less than 
adequate management measures.
    One of the overall goals of the Magnuson-Stevens Act is to provide 
a mechanism to determine the appropriate level of catch to maximize the 
benefit to the Nation while still protecting the long-term 
sustainability of the fisheries. It is a balancing act among competing 
interests of commercial and recreational fishermen. We will also hear 
about the need for participation of non-fishing interests when managing 
public resources.
    There is no doubt that fisheries are very important to many states 
and the Nation as a whole. In 1997, commercial landings by U.S. 
fishermen were over 9.8 billion pounds of fish and shellfish, worth 
$3.5 billion. Further, the recreational fishing catch was 234 million 
pounds.
    In my State of Maine, fishing is more than a job, it is a way of 
life. Up and down the Maine coast are communities with long and rich 
fishing heritages. When many people think of Maine, they think of 
lobsters--and get hungry.
    But there is much more to Maine fishing than lobster. In fact, I'm 
very proud to say that in 1998, for the fifth year in a row, Maine has 
led the northeast with fishing revenues valued at $277.4 million.
    Other regions of the country have a similar dependency on 
commercial fisheries, some are strong and robust, others have not fared 
as well--their fish stocks have declined and communities in those 
regions are feeling the economic impact. Throughout the reauthorization 
process we will be examining ways to again bring about healthy 
fisheries and healthy fishing communities.
    The Sustainable Fisheries Act was enacted in 1996. The provisions 
and requirements of the Act reflect significant changes to the goals 
and objectives of the Magnuson-Stevens Act. Proper implementation of 
these provisions is of great concern to many different groups. 
Accordingly, there is considerable interest in the implementation 
activities of the regional councils and NMFS.
    The most substantial change in fisheries management under the 
Sustainable Fisheries Act was the mandate to stop overfishing and 
restore overfished stocks. The councils were given a timetable to 
achieve this goal and we will hear today the status of their actions. 
Witnesses from around the country will be able to give first-hand 
reports about the level of success the councils have had in fulfilling 
this mandate.
    The councils and NMFS were also told to increase their emphasis on 
social benefits that might better preserve traditional small fishermen. 
Because of the high level of overfishing, many tough management 
measures will be needed in a variety of fisheries.
    It is important that we remember to preserve the fishermen as well 
as the fish.
    There have been many criticisms of NMFS and the councils for not 
taking adequate measures to address the financial hardships tough 
management will inevitably cause. We will be hearing examples today of 
the impact on fishermen and fishing communities this has had.
    The Sustainable Fisheries Act also imposed a moratorium on the 
creation of new individual fishing quota programs in which a 
transferable percentage of the annual catch that is held privately. We 
will be hearing today some suggestions about how to handle such 
programs in the future.
    The final paradigm shift incorporated in the Sustainable Fisheries 
Act that we will hear about today are the provisions to minimize 
bycatch and restore and protect fish habitat. Based on concerns that 
certain fish stocks had declined due to loss of their surrounding 
habitat, the Act established a national program to facilitate long-term 
protection of essential fish habitat. Many have argued that these 
provisions have not been properly implemented and we will be discussing 
this problem with our witnesses today.
    During recent trips home to Maine, I have had the opportunity to 
discuss reauthorizing the Magnuson-Stevens Act with a number of people 
who are most affected by it. Obviously, I am talking about fishermen 
and people who live in fishing communities. These are hard-working men 
and women who would probably rather talk about something other than 
changing Federal laws. But, I have listened to them, and many have very 
specific concerns with the way the law is being implemented.
    Let me conclude my remarks by saying this--those most affected by 
the law believe that the Act is too rigid, that it is not being 
implemented properly by NMFS, and that, contrary to its mandate, the 
best science is not being used in management. As we begin the 
reauthorization process, we should try to make sure that sustainable 
fishing and good management becomes the norm and not the exception. 
Clearly, this reauthorization will have major implications for the 
future of marine fisheries in the United States.

    Before I recognize our witnesses, I will turn to our 
ranking minority member for any comments that he would care to 
make.
    I now recognize Senator Kerry for an opening statement.

               STATEMENT OF HON. JOHN F. KERRY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Kerry. Thank you, Madam Chairwoman.
    I am particularly happy to welcome Penny Dalton back here. 
Her contribution to the Act that we are talking about here is 
very significant. There is nobody who understands better what 
we were setting out to do, and it is good to have her here.
    I welcome all of the witnesses on the various panels who 
are here today for this hearing, and thank them for traveling 
to Washington to be part of it. The world of fisheries 
obviously is well understood by everybody in this room. We wish 
it were better understood by lots of other folks who have an 
impact on it who are not here today.
    In 1997, the last figures we have, commercial fishing 
produced some $24.4 billion to the economy of our country. By 
weight of catch, the United States is the world's fifth largest 
fishing nation, harvesting over 5 million tons of fish 
annually. We are the second largest seafood exporter, with 
exports valued over $9 billion. In my home State--and I know 
the chairperson also shares this--we have an enormous 
connection to fishing, to the sea.
    It is big business. But it is also much more than just 
dollars and cents. It is part of our culture and our social 
structure. In places like Gloucester or New Bedford, 
Massachusetts, as well as countless other maritime communities 
along our coastline, we have a very special connection to this 
industry.
    So as we think about the reauthorization of the Magnuson-
Stevens Act, we need to stay focused on the purpose of that Act 
and the long journey that we have traveled here in Washington, 
in trying to create the right balance between regulation at the 
Federal level and local decision making, local capacity to be 
able to try to manage this way of life. It is clear that the 
Sustainable Fisheries Act of 1996 was the single most important 
rewrite of Federal fishing laws since the original enactment of 
the Magnuson-Stevens Fishery Conservation and Management Act in 
1976, when we extended the fisheries regulatory process to the 
200-mile limit.
    Senator Stevens and I, as the chairwoman commented, were 
the original cosponsors of the 1996 effort. We were joined by 
our committee colleagues, Senator Hollings and Senator Inouye, 
in embracing a number of specific goals: first, to prevent 
overfishing; second, to rebuild the depleted stocks; third, to 
reduce bycatch; and, fourth, to designate and conserve 
essential habitat.
    Today, I am interested in the committee being able to 
continue the progress that we have made in the implementation 
of the Act. We all know, as we have seen in the groundfish 
situation in Massachusetts, in New England, there are a number 
of key fishery management challenges. That is not the only part 
of the country, obviously, where those challenges exist.
    But it is obvious that the enactment of the SFA has raised 
a number of unanticipated questions for fishermen and for 
fishery managers that are still going to require further 
creative thinking and application of solutions. But I think the 
fundamental principles laid out in the SFA remain well-founded. 
I do not believe that sweeping changes are necessary. Unless 
testimony today proves to the contrary, in my judgment, we are 
really looking at the reauthorization as a mid-course 
correction, a tweaking if you will, a fine-tuning of the Act.
    One of the key issues that a lot of stakeholders seem to 
agree on is that we need to improve our data collection effort. 
We have always felt this. We are struggling with the resource 
issue. I know the chairwoman voted what I thought was correctly 
yesterday on a tax cut that is going to put--I mean this is 
just one sector; we could be in the Armed Services Committee, 
we could be in the Banking Committee, in VA, HUD--there are a 
whole host of areas where an excessive tax cut at this point in 
time is going to put further constraints on our ability to do 
the fundamental things that we have committed to doing.
    One of them, in my judgment, is the establishment of a 
full-scale observer program that will give the councils the 
best available data so we can make the best informed decisions 
on fishery management issues. I fully support the 
implementation of a full-scale observer program that ensures 
that councils utilize the best science available.
    A second issue, and I will try to wrap up here, a second 
issue is the progress made in identifying and protecting 
essential fish habitat. A number of councils have expressed 
difficulties in trying to identify essential fish habitat, 
mostly due to the lack of biological information or agreement 
about what is essential for fish stocks.
    I agree that we need more research in order to be able to 
do a better definition of the linkages between habitat and 
fishery production. But we can still make management decisions, 
even in the absence of perfect data. We need to do so. I 
encourage NMFS and the councils to move forward to identify 
habitat impacts of fishing and non-fishing activities, which we 
are capable of doing, and to assess the need for protected 
areas to conserve fish stocks.
    I would also like to explore new ways to provide incentives 
to fishermen to develop and use new habitat-friendly fishing 
gear, as other countries have done.
    So, Madam Chairwoman, the Magnuson-Stevens Act requires 
councils to consider biological, economic and socio-cultural 
data in their deliberations. I hope that we can help find ways 
to provide that data to help them incorporate that into their 
decisions.
    Finally, earlier this year, NMFS issued a proposed rule 
that would ban the use of spotter planes by fishing vessels in 
the bluefin tuna fishery in the general harpoon categories. 
That rule was to have been finalized by July 1, but it has not 
been. The administration has not yet issued a final rule. The 
rule was recommended by unanimous vote of the Advisory Panel 
for Highly Migratory Species. It is supported by the vast 
majority of fishermen. I urge the agency to finalize this rule 
expeditiously.
    Now, I look forward to continuing to work with the 
chairwoman on the issue of finding funding for cooperative 
management activities in New England. She has worked hard on 
that. I would encourage the Secretary and the Administrator to 
increase their dialog with fishermen at the grassroots level. I 
look forward to the testimony today.
    Thank you, Madam Chairwoman.
    Senator Snowe. I want to thank you, Senator Kerry for those 
very thoughtful comments. I would concur with you on the 
banning of spotter planes. That rule is long overdue.
    Senator Gorton, do you have any opening comments?

                STATEMENT OF HON. SLADE GORTON, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Gorton. Madam Chair, this hearing is a welcome 
beginning of a series of hearings on the Magnuson-Stevens Act. 
I understand that you are planning to hold field hearings in 
Seattle and Anchorage, among other places, later this year, 
during which we can focus on issues of particular concern to 
Washington and Alaska, and can afford industry participants and 
other interested parties the opportunity to comment on the 
implementation of the Sustainable Fisheries Act and the 
Magnuson-Stevens reauthorization. I look forward to these 
hearings, as well.
    I welcome Dr. David Fluharty, and thank him for coming. 
Fisheries management has to be among the most contentious 
issues I have had to deal with during my entire Senate career. 
Finding someone who can speak for the myriad of Washington 
interests fairly is no easy task. Dr. Fluharty has the 
advantage of being an academic, unaffiliated with any of the 
diverse and warring sectors in West Coast fisheries. Through 
his academic work and thoughtful and deliberative work on the 
North Pacific Council, has earned the respect of all of the 
many sides.
    The last authorization of the Magnuson-Stevens Act 3 short 
years ago was hard to come by. It is my sincere hope that this 
next reauthorization will be less contentious, though there are 
a number of important and controversial issues that must be 
addressed. Among the issues of particular concern to Washington 
State are the lack of stock assessments and useful data on 
bycatch, State jurisdiction over Dungeness crab management for 
purposes of tribal allocations, effort reduction programs, and 
the availability of individual fishing quotas as a management 
tool in some fisheries.
    To address the first issue, bycatch, it is my intention to 
introduce legislation that will enable the Pacific Council, as 
well as North Pacific Council, to adopt an industry-funded 
observer program. I will continue to support Federal funding 
for such a program, and recognize the need for this, given the 
drastic reductions in the groundfish quota. But, nevertheless, 
I feel it is important to enable the councils to collect fees 
should Federal funding be insufficient.
    Another worrisome issue is NMFS's implementation of the 
essential fish habitat provisions in the SFA, an issue of far 
greater concern to non-fishery interests than to fishermen. 
Designating most of the State of Washington as essential fish 
habitat and requiring every Federal agency action to engage in 
an as-yet unspecified consultation process with NMFS could add 
an impenetrable layer of bureaucracy to an already heavily 
laden bureaucratic process provided by the Endangered Species 
Act, the National Environmental Policy Act, the Fish and 
Wildlife Coordination Act, and others, including of course all 
State laws.
    But while there are difficult issues to resolve, we have 
the advantage of more information about some of them. On the 
issue of individual transferable quotas, for example, the 
National Research Council completed a study of ITQ's, which I 
hope will inform and facilitate our consideration of this 
management tool. The study does not, however, answer some of 
the more difficult policy questions about allocation.
    Also making our authorization task somewhat easier this 
year is the elimination of the battle of the titans--the fight 
between the offshore and onshore pollock industries in the 
Bering Sea. Unfortunately, the resolution of this battle 
through the American Fisheries Act and the rationalization of 
the pollock industry has raised additional and very serious 
concerns involving the pollock catcher boats and the non-
pollock harvesters and processors--concerns that I want to 
ensure receive a full hearing, either through this process or 
at a separate forum.
    Madam Chairman, thanks for beginning the process. I look 
forward both to the beginning and to its continuation.
    Senator Snowe. Thank you very much, Senator Gorton, for 
those constructive comments on this reauthorization process.
    We have a series of three votes. Ms. Dalton, we are down to 
about 4 minutes. Let me just say at this point, before we 
recess for probably 30 minutes here, that I welcome you to this 
Subcommittee. I know you are very familiar with this committee 
because you have served on the staff. This is your first 
appearance before this particular Subcommittee, so I cannot 
think of a more appropriate topic, given your familiarity with 
these issues, than discussing the reauthorization of the 
Magnuson-Stevens Act. I know your testimony and input will be 
of considerable value to us as we begin this process.
    I should also tell the audience that Secretary Daley was 
going to appear before this Subcommittee, but when we realized 
that there were going to be three consecutive votes at 9:30, 
and he could have only stayed for an hour, then that time would 
have been used before he would be able to give his statement. 
So, with that, we will recess until the conclusion of the three 
votes. I would expect it would be about 30 minutes.
    [The prepared statement of Senator Gorton follows:]
 Prepared Statement of Hon. Slade Gorton, U.S. Senator from Washington
    Madam Chairman, this hearing is a welcome beginning of a series of 
hearings on the Magnuson-Stevens Act. I understand that you are 
planning to hold field hearings in Seattle and Anchorage later this 
year, during which we can focus on issues of particular concern to 
Washington and Alaska and can afford industry participants and other 
interested parties the opportunity to comment on the implementation of 
the Sustainable Fisheries Act and the Magnuson-Stevens reauthorization. 
I look forward to these hearings as well.
    I welcome Dr. David Fluharty, and thank him for coming. Fisheries 
management has to be among the most contentious issues I have to deal 
with as a U.S. Senator, and finding someone who can speak for the 
myriad of Washington interests family is no easy task. Dr. Fluharty has 
the advantage of being an academic unaffiliated with any of the diverse 
and warring sectors in West Coast fisheries, and through his academic 
work and thoughtful and deliberative work on the North Pacific Council, 
has earned the respect of all of the many sides.
    The last reauthorization of the Magnuson-Stevens Act, three short 
years ago, was hard to come by. I hope that this next reauthorization 
will be less contentious--though there are a number of important and 
controversial issues that must be addressed.
    Among the issues of particular concern to Washington State are the 
lack of stock assessments and useful data on bycatch, State 
jurisdiction over Dungeness Crab management for purposes of tribal 
allocations, effort reduction programs, and the availability of 
Individual Fishing Quotas as a management tool in some fisheries. To 
address the first issue--bycatch, I intend to introduce legislation 
that will enable the Pacific Council, as well as the North Pacific 
Council, to adopt an industry funded observer program. I will continue 
to support Federal funding for such a program and recognize the need 
for this given the drastic reductions in groundfish quota, but 
nevertheless feel it is important to enable the councils to collect 
fees should Federal funding be insufficient.
    Among the most worrisome issues is NMFS's implementation of the 
Essential Fish Habitat provisions in the SFA, an issue of far greater 
concern to non-fishery interests than fishermen. Designating much of 
the State of Washington as Essential Fish Habitat, and requiring every 
Federal action agency to engage in an as yet unspecified consultation 
process with NMFS could add an impenetrable layer of bureaucracy to an 
already heavily laden bureaucratic processes prescribed by ESA, NEPA, 
the Fish and Wildlife Coordination Act, and others.
    But while there are difficult issues to resolve, we have the 
advantage of more information on some of them. On the issue of 
Individual Transferable Quotas, for example, the National Research 
Council completed a study of ITQs, which I hope will inform and 
facilitate our consideration of this management tool. The study does 
not, however, answer some of the most difficult questions about 
allocations.
    Also making our reauthorization task somewhat easier this year, is 
the elimination of the battle of the titans--the fight between the 
offshore and onshore pollock industries in the Bering Sea. 
Unfortunately, the resolution of this battle through the American 
Fisheries Act, and the rationalization of the pollock industry has 
raised additional, and very serious, concerns involving the pollock 
catcher boats and the non-pollock harvesters and processors, concerns 
that I want to ensure receive a full hearing either through this 
process or in a separate forum.
    Madam Chairman, thank you again for beginning this process. I look 
forward to its continuation.

    Senator Snowe. Thank you.
    [Recess.]
    Senator Snowe. The hearing is now reconvened. Since that 
time, we have added a witness.
    Senator Kerry was asking for you, Mr. Garcia. I want to 
welcome you to the Subcommittee. We appreciate your standing in 
for the Secretary this morning. As you know, we had several 
back-to-back votes, and it probably will be that way all day 
long, with the tax bill. So we will try to move efficiently 
through this hearing. I really appreciate your being here this 
morning in place of the Secretary and I am looking forward to 
your participation.
    So, let us begin with you.

 STATEMENT OF TERRY D. GARCIA, ASSISTANT SECRETARY FOR OCEANS 
  AND ATMOSPHERE; ACCOMPANIED BY ANDREW A. ROSENBERG, Ph.D., 
   DEPUTY ASSISTANT ADMINISTRATOR, NATIONAL MARINE FISHERIES 
              SERVICE, U.S. DEPARTMENT OF COMMERCE

    Mr. Garcia. Thank you, Madam Chairman. It is a truly 
unexpected--I underscore ``unexpected''--pleasure to be here. 
The Secretary had intended to be here, had looked forward to 
it, and regrets that he is unable to attend. I would like, with 
your permission, to read his opening statement before we begin. 
I will do that now, if you agree.
    As always, I appreciate the opportunity to discuss fish 
with all of you. I recall one of the first conversations I had 
with your colleague, Senator Lott. The Majority Leader told me 
that when I think of him, I am to think fish.
    Frankly, I think fish when I think of most of you. I do not 
have to tell this Subcommittee about the value our fishing 
industry provides to this country. You all represent some of 
our finest coastal States and fisheries. I have had the 
pleasure of being with many of you in your States. I have met 
with fishermen on their home turf--shrimpers in the Gulf, 
scallopers in New England, and salmon fishermen in Alaska. I 
have met with many of them here in Washington.
    One of my finest experiences as Secretary of Commerce is 
becoming familiar with our fishing communities and appreciating 
their contributions, of understanding how the U.S. commercial 
fish industry generates more than $25 billion to our economy 
and employs 300,000 people. We are the fifth largest fishing 
nation, and our exports are valued at over $3 billion. It is an 
important recreational resource for millions of saltwater 
anglers. It is my support for this resource and the people it 
supports that brings me here.
    It is easy to look at the past decades and see failure. 
Many important fish stocks are under great pressure, and we do 
not know enough about the health of many more. We do know our 
fishing grounds can be rebuilt to support far more fishing than 
they do today. Scientists estimate we could increase our 
catches 60 percent if we manage them better.
    At the same time, we must recognize it took 20 years of 
poor management and good intentions gone wrong to bring us to 
where we were in 1996, when the Magnuson Act was overhauled 
into the Magnuson-Stevens Act. This administration is committed 
to the philosophy embodied in the Act. I believe the best way 
to restore our fisheries and sustain a growing economy is 
through the combined participation of public, business and 
government interests. We must apply the best science, including 
economics and social sciences, to help fishing communities move 
from traditional fishing management to newer, sustainable 
approaches.
    I have strongly encouraged NOAA, the councils and all 
stakeholders to take advantage of the flexibility of the 
Magnuson-
Stevens Act to develop creative solutions and partnerships. I 
have learned through my regulatory actions as Commerce 
Secretary that there is no ``one-size-fits-all'' solution. Each 
case has its own set of unique circumstances, conflicts and 
challenges.
    Resolving these is not easy. These are contentious issues, 
as you well know. But the fact is, if we fail to come together, 
we will not have fishermen or fish left. Frankly, I think this 
is an important test of sustainable development.
    Despite the challenges, I see hope in a number of small 
recent successes. I think, with Magnuson-Stevens, we are 
getting back on the track to build sustainable fisheries.
    Let me illustrate, if I may, with the progress we are 
making with scallops in the Northeast. The first directive of 
Magnuson-Stevens is to end overfishing and rebuild fish stocks. 
In 1994, we were very concerned about groundfish and scallops 
off of New England. We took the aggressive and painful step of 
closing large areas to all fishing. Then, in late 1998, we 
learned that after over 4 years of closure, scallop stocks were 
recovering. In other words, the closure was working to rebuild 
scallop stocks and it was time to start rebuilding the scallop 
fishery.
    While Magnuson-Stevens directs us to rebuild fisheries, it 
also says: Use the best science available when we act. Though 
we knew that scallops were on the way back, our science was not 
detailed enough to act on it. Also, many raised concerns about 
starting up scalloping again. Scalloping disturbs the bottom 
and can have lots of bycatch of groundfish that still needed 
protection. It looked like yet another contentious issue.
    So the first thing we did was ask for and listen to the 
advice of constituents. Soon, we came together around a shared 
goal: scallop if possible, while protecting other fish and the 
habitat. Then everyone contributed to a solution. We built an 
extraordinary partnership with industry and the academic 
community to find out exactly where the scallops were healthy 
and what areas could be reopened for scalloping.
    Also, we talked to the industry about a management approach 
that would let scallopers catch scallops if they controlled 
their bycatch. For our part, we developed a new way to fund 
independent observers. I asked the council and NOAA to make 
sure the regulatory process kept moving. Magnuson-Stevens is 
clear that the council process is key to making management 
decisions. But that does not mean we cannot find ways to make 
it flexible and responsive to urgent needs.
    I am pleased to say scallopers are fishing within a 
formerly closed area of Georges Bank nearly 9 months earlier 
than scheduled. In the last 6 weeks, the fleet has landed more 
than 2 million pounds of scallops, worth nearly $10 million. 
They are making money without compromising long-term 
sustainability. It is good news for the economy and good news 
for the environment.
    My point is that the Magnuson-Stevens Act works. It does 
not need major changes at this time. What we need is to 
continue to work collaboratively and creatively. No question, 
we want to work with this committee on addressing outstanding 
issues, like individual transferable quotas and observer 
programs. We feel there is a need to collect more economic data 
to better understand and manage our fishery resources.
    Penny Dalton will point out all of this in her testimony. 
Let me assure the members of this committee that I understand 
when we try new approaches, even though they may be 
incremental, there are often serious concerns from your 
constituents back home. So I want to work with you to take into 
account these concerns as we move forward with developing and 
implementing the legislation.
    Thank you for asking me here, and I ask that my remarks be 
included in the record.
    Senator Snowe. Thank you.
    Ms. Dalton.

   STATEMENT OF PENELOPE D. DALTON, ASSISTANT ADMINISTRATOR, 
 NATIONAL MARINE FISHERIES SERVICE, U.S. DEPARTMENT OF COMMERCE

    Ms. Dalton. Madam Chair, members of the Subcommittee, I 
appreciate the opportunity to testify with Assistant Secretary 
Garcia today on the Magnuson-Stevens Fishery Conservation and 
Management Act.
    I am Penny Dalton, Assistant Administrator for Fisheries of 
the National Oceanic and Atmospheric Administration. I have to 
say it is really, really odd to be on this side of the table. 
[Laughter.]
    Over the years, the Magnuson-Stevens Act has changed and 
evolved through several reauthorizations. Of these, the most 
significant probably is the revisions in 1996 by the 
Sustainable Fisheries Act (SFA). The Sustainable Fisheries Act 
strengthened conservation provisions to prevent overfishing and 
rebuild depleted fisheries, identify and protect fishery 
habitat, and minimize bycatch and discards of unusable fish. 
These new conservation requirements may have far-reaching 
effects on fishermen, their families and communities.
    To address this concern, the SFA established a new national 
standard to ensure sustained participation of fishing 
communities and minimize adverse impacts. In addition, a 
national standard had been added on promoting the safety of 
human life at sea.
    The SFA also provides a number of new tools for addressing 
problems relating to the transition to sustainable fisheries, 
including amendments to provide for fisheries disaster relief, 
fishing capacity reduction programs, vessel financing, and 
grants and other financial assistance. NOAA Fisheries has 
developed and published nearly all of the regulations and 
policy guidance related to SFA implementation.
    In addition, the SFA required about 20 studies and reports 
to Congress that address critical issues in fisheries 
management. We will be using the findings and recommendations 
of these reports to improve our programs. They also contain a 
great deal of useful information that could inform and guide 
the reauthorization process.
    The new SFA requirements necessitated amendments to each of 
the 39 existing fishery management plans. As of June 1999, 52 
amendments were either approved or partially approved. Another 
two amendments were under Secretarial review. The remaining 13 
amendments were scheduled to begin Secretarial review this 
summer.
    Throughout this process, we relied on the regional fishery 
management councils. I cannot overemphasize the critical role 
and contribution of the councils in developing plans, resolving 
conflicts among stakeholders and making the transition to 
sustainable fisheries.
    We are still working to understand and effectively 
implement the SFA, and would not propose major changes to the 
Magnuson-
Stevens Act at this time. However, we have identified revisions 
in five areas that may be useful to improve efficiency and 
resolve some relatively minor problems.
    No. 1, the SFA attempted to simplify and tighten the 
approval process for management plans and regulations. However, 
it creates two distinct review processes--one for plans and 
amendments and another for implementing regulations. As a 
result, the decision to approve or disapprove a plan or 
amendment may be necessary before the public has had an 
adequate opportunity to comment on the accompanying 
regulations. This disconnect should be addressed in the 
reauthorization.
    In addition, the committee may wish to consider reinstating 
the initial review of fishery management plans and amendments 
by the Secretary. At present, 2 or 3 months may elapse before a 
plan or amendment is approved or disapproved. If it is 
disapproved, months may go by before the council can modify and 
resubmit it. While the initial review was eliminated by the SFA 
to shorten the review process, it actually may reduce the time 
needed to get a plan or amendment in place.
    No. 2, the Magnuson Act current restricts the collection of 
economic data from processors. Removal of this restriction 
could improve the quantity and quality of information available 
to meet the requirements of the Regulatory Flexibility Act and 
other laws requiring economic analysis.
    No. 3, special management areas, including those designated 
to protect coral reefs, hard bottoms and precious corals, are 
important commercial resources and valuable habitats for many 
species. Currently, we have the authority to regulate anchoring 
and other activities of fishing vessels that affect fish 
habitat. Threats to such habitat from non-fishing vessels 
remain largely outside agency jurisdiction. We would like to 
clarify and strengthen NOAA Fisheries authority to regulate the 
actions of a vessel that directly impacts resources being 
managed under the Magnuson-Stevens Act.
    No. 4, the current description of the Caribbean Council 
limits its jurisdiction to Federal waters off Puerto Rico and 
the U.S. Virgin Islands. As a result, the council cannot 
develop plans governing fishing in Federal waters around 
Navassa Island or any other U.S. possession in the Caribbean 
jurisdiction of the Caribbean Council could be expanded to 
cover U.S. possessions.
    No. 5, Magnuson-Stevens Act mandates currently result in 
the councils spending tens of thousands of dollars a year to 
publish meeting notices in local newspapers and regional 
fishing ports. By contrast, E-mail, public service 
announcements and notices included with marine weather 
forecasts are much cheaper and could be more effective in 
reaching fishery participants and stakeholders.
    NOAA Fisheries takes seriously its new mandates under the 
SFA, and we are working to ensure that they are fully 
implemented. We recognize that the benefits of the changes we 
make now may take years, and perhaps decades, to realize. In 
addition, we must build consensus with the public and among 
various stakeholders to facilitate development of approaches 
that move us toward healthy and sustainable fisheries.
    As Assistant Secretary has stated, we look forward to 
working with the Committee on the reauthorization and on the 
high priority policy issues, such as observer programs, 
individual transferable quotas, and funding and fee 
authorities.
    This concludes my testimony. Thank you for the opportunity 
to discuss the Magnuson-Stevens Act. I am happy to answer any 
questions.
    [The prepared statement of Ms. Dalton follows:]
  Prepared Statement of Penelope D. Dalton, Assistant Administrator, 
     National Marine Fisheries Service, U.S. Department of Commerce
    Madam Chair and members of the Subcommittee, thank you for inviting 
me to testify today on implementation and reauthorization of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am Penny Dalton, Assistant Administrator for Fisheries 
for the National Oceanic and Atmospheric Administration.
            building a foundation for sustainable fisheries
    The fishery resources found off our shores are a valuable national 
heritage. In 1997, U.S. commercial fisheries produced almost $3.5 
billion in dockside revenues. By weight of catch, the United States is 
the world's fifth largest fishing nation, harvesting almost 10 billion 
pounds annually. The United States also is the third largest seafood 
exporter, with exports valued at over $3 billion in 1996. In addition 
to supporting the commercial seafood industry, U.S. fishery resources 
provided enjoyment for almost 9 million saltwater anglers who caught an 
estimated 366 million fish in 1997.
    As we approach the close of the 20th Century, we are at a crucial 
point in fisheries management, with considerable work ahead of us. In 
the 23 years since the enactment of the Magnuson-Stevens Act, we have 
seen the complete Americanization of fisheries in Federal waters, the 
expansion of the U.S. fishing industry, declines in many fishery 
resources, and the rise of public interest in fisheries issues. We have 
seen some successes from our management actions, including the initial 
rebound of a few depleted stocks like Georges Bank haddock, the 
rebuilding of Atlantic king mackerel, and the continued strong 
production of fish stocks off Alaska. However, 12 percent of U.S. 
living marine resources are overfished or are approaching overfished, 
24 percent are not overfished, and there is another 64 percent whose 
status is unknown. Scientists estimate that we could increase U.S. 
fishery landings by up to 3 million metric tons by rebuilding fisheries 
and harvesting them at long-term potential yields.
    The Magnuson-Stevens Act, of course, provides the national 
framework for conserving and managing the wealth of fishery resources 
found within the 197-mile-wide zone of Federal waters contiguous to the 
United States. To allow broad-based participation in the management 
process, the Act created eight regional fishery management councils 
(Councils) composed of State fishery managers, the regional NOAA 
Fisheries administrator, and qualified fishing industry, academic, and 
environmental representatives. Each Council has authority over the 
fisheries seaward of the states comprising it while NOAA Fisheries has 
management authority over most highly migratory species (e.g. 
swordfish) in the Atlantic ocean. The primary responsibility of the 
Councils is the development of fishery management plans that set the 
rules for each fishery and meet national conservation and management 
standards established in the Act.
    Over the years, the Magnuson-Stevens Act has changed and evolved 
through several reauthorizations. In 1996, Congress ushered in a new 
era in fisheries management, making significant revisions to the 
Magnuson-Stevens Act in the Sustainable Fisheries Act (SFA). The SFA 
addresses a number of conservation issues. First, to prevent 
overfishing and rebuild depleted fisheries, the SFA caps fishery 
harvests at the maximum sustainable level and requires fishery 
management plans to rebuild any overfished fishery. NOAA Fisheries 
reports annually on the health of marine fisheries and identifies 
fisheries that are overfished or approaching an overfished condition. 
Second, the SFA sets a new direction for fisheries management that 
focuses on protecting fisheries habitat. To enhance this goal, the SFA 
requires that management plans identify habitat that is necessary to 
fish for spawning, feeding or growth. The new law also clarifies our 
existing authority to comment on Federal actions that affect essential 
fish habitat. Third, to reduce bycatch and waste, the SFA adds a new 
national standard requiring that conservation and management measures 
minimize bycatch and the mortality of bycatch that cannot be avoided. 
It also calls for management plans to assess bycatch and to take steps 
to reduce it.
    The new conservation requirements may have far-reaching effects on 
recreational and commercial fishing and on fishermen, their families 
and communities. To address this concern, the SFA establishes a new 
national standard which requires, consistent with conservation 
objectives, that fishery management plans ensure sustained 
participation of fishing communities and minimize adverse impacts. In 
addition, a national standard has been added on promoting the safety of 
human life at sea. Finally, the SFA provides a number of new tools for 
addressing problems relating to the transition to sustainable 
fisheries, including amendments to provide for fisheries disaster 
relief, fishing capacity reduction programs, vessel financing, and 
grants and other financial assistance.
            implementation of the sustainable fisheries act
    NOAA Fisheries takes seriously its new mandates under the SFA. We 
are continuing to work to ensure that SFA requirements are implemented, 
and that conservation and management measures fully protect the 
resource and provide for the needs of fishing communities and the 
Nation. A great deal of work remains to be done. We are laying a better 
foundation for future fisheries management, yet the benefits of the 
changes made by Congress in 1996 will take years, perhaps decades, to 
realize. In addition, the management decisions that we face are 
becoming ever more complex and contentious, and good solutions are hard 
to come by. We need to direct resources and effort to the scientific 
and technical aspects of our work. We also must build consensus with 
the public and among various stakeholders to facilitate progress in 
developing management programs that will move us toward the goal of 
healthy and sustainable marine resources.
    Regulations and guidelines.--Nearly all of the regulations and 
policy guidance related to SFA implementation (other than implementing 
regulations for plan amendments) have been developed and published. 
These regulations and guidelines address such issues as foreign 
processing in internal waters, observers' health and safety, procedures 
for monitoring recreational fisheries, secretarial emergency actions, 
and negotiated rulemaking. Proposed regulations for carrying out 
fishing capacity reduction programs were published in January 1999; 
final regulations currently are under review in the agency clearance 
process. However, sectors of the fishing industry that are interested 
in pursing buyouts can proceed with the development of buyout plans 
while this rule is being finalized.
    The national standard guidelines were one important area where 
substantial revisions were necessary because of the significant changes 
made by the SFA. The national standards are the guiding principles for 
the management of our Nation's fishery resources, and any management 
plans or associated regulations prepared by either the Secretary or the 
Councils must satisfy the criteria which they establish. The Magnuson-
Stevens Act requires that the Secretary prepare advisory guidelines on 
their application to assist in the development of management plans. The 
guidelines build on the national standards, providing more detailed 
advice for plan development and a guide to the Secretary in the review 
and approval of proposed plans and regulations. They were revised to 
reflect the changes made by the SFA and published as a final rule in 
May 1998. The final rule addresses the need to end overfishing, reduce 
bycatch and rebuild stocks, emphasizing use of the precautionary 
approach. It adds important guidelines on evaluating impacts on fishing 
communities, and provides guidelines to enhance safety at sea.
    Among the changes made by the SFA, one of the most important may be 
a strengthened standard for preventing overfishing, accomplished by 
revising the definition of terms used in National Standard 1. The 
effect of this revision is to cap the optimum yield from a fishery at 
the maximum sustainable yield (MSY) and require all stocks to be 
rebuilt to and maintained at levels consistent with MSY. In addition, 
fishery management plans must establish clear criteria for determining 
when overfishing of a stock is occurring. NOAA Fisheries has worked 
with the Councils to develop an understanding of the new requirements 
to prevent overfishing. The Councils, in turn, have worked hard to 
develop new overfishing definitions, management programs to achieve the 
revised goals, and rebuilding programs where stocks were found to be 
overfished. This has proven to be a very difficult task--in part 
because of the complex biological structure of fisheries and 
complicated calculations of MSY and other fishery parameters--but also 
because of the necessity to consider impacts on fishermen and dependent 
communities while achieving conservation goals.
    The Act calls for ending overfishing and rebuilding the fishery in 
the shortest time possible, taking into account a number of factors and 
within 10 years except under certain circumstances. As a result, the 
national standard guidelines allowed the Councils to take into account 
potential impacts on the industry or communities to extend the 
rebuilding period up to the 10-year limit, even when the stock could 
otherwise be rebuilt in a much shorter period. For long-lived and slow-
maturing species like red snapper, the rebuilding period may be as long 
as the time it would take the stock to rebuild without any fishing plus 
a period equal to the species generation time. This solution balances 
the need to meet the conservation requirements within a reasonable 
period while minimizing effects on the industry and dependent 
communities.
    Another significant change that resulted from passage of the SFA is 
the increased emphasis of the Magnuson-Stevens Act on conserving and 
enhancing essential fish habitat (EFH). NOAA Fisheries published a 
proposed rule in April 1997 for the implementation of the EFH 
provisions of the SFA, and an interim final rule in December 1997. The 
extended time frame was necessary so that all interested groups and 
individuals had ample opportunity for comments on the rulemaking. These 
rules establish guidelines to assist the Councils and the Secretary in 
the description and identification of EFH in fishery management plans, 
including identification of adverse impacts on such habitat from 
fishing and identification of other actions to encourage conservation 
and enhancement of EFH. The rule also provides procedures for EFH 
consultations on actions that may adversely affect EFH. The interim 
final rule became effective in January 1998, and is treated as final 
for the purposes of implementing the EFH provisions. We currently are 
reviewing the comments received on the interim final rule and plan to 
issue a final rule early next year. This will enable us to benefit from 
experience with EFH consultations with other Federal agencies and from 
the practical experience we will have gained from the first round of 
fishery management plan amendments on EFH. To date, NOAA Fisheries has 
conducted over 400 consultations with Federal agencies whose actions 
may adversely affect EFH. We have completed seven agreements with other 
Federal agencies to establish specific procedures for using existing 
environmental review processes (e.g., NEPA) to handle EFH 
consultations, and we are working on 36 more. Federal agencies have 
been generally receptive to the new consultation requirements and have 
begun responding to NOAA Fisheries EFH conservation recommendations, as 
mandated by the Magnuson-Stevens Act. We expect consultations to 
increase as outreach efforts with Federal agencies continue to build 
awareness of the EFH statutory requirements.
    Turning to Council operations, Council members currently are exempt 
from conflict-of-interest provisions of the criminal code, as long as 
they are in compliance with the financial disclosure requirements of 
the Magnuson-Stevens Act. Concern that these provisions were not 
adequate to prevent the financial interests of Council members from 
influencing the decision making process led to their revision in the 
SFA. As a result, NOAA Fisheries prepared regulations that prohibit 
Council members from voting on matters that would have a significant 
and predictable effect on any personal financial interests disclosed in 
accordance with existing regulations.
    Amending fishery management plans to meet SFA requirements.--In 
addition to revising the national standards, the SFA established a 
number of other new requirements for fishery management plans that 
necessitate their amendment. NOAA Fisheries and the Councils have made 
dedicated efforts to meet most SFA deadlines for 121 major activities 
and approximately 400 separate tasks to bring fishery management plans 
into compliance with the new requirements. Commendably, this has been 
accomplished in a relatively short period of time. The SFA imposed a 
deadline of October 11, 1998 for amendments to each of the 39 existing 
fishery management plans to provide overfishing definitions; measures 
to prevent overfishing and rebuild overfished stocks; measures to 
minimize bycatch; descriptions of essential fish habitat; measures to 
minimize adverse effects of fishing on habitat; descriptions and 
analysis of trends in landings for commercial, recreational, and 
charter sectors; and assessment of effects on fishing communities. As 
of June 1999, 52 amendments were either approved or partially approved, 
another two amendments were under Secretarial review, and the remaining 
13 amendments were scheduled to begin Secretarial review this summer. 
Despite the Councils' best efforts, there were some proposed amendments 
that did not satisfy the requirements, for which the analyses were 
inadequate, or that did not minimize socioeconomic or environmental 
impacts to the extent possible and achieve management objectives. NOAA 
Fisheries disapproved or partially approved those amendments and is 
working closely with the Councils to improve them, particularly in the 
areas of overfishing definitions, bycatch reduction measures, and EFH 
identification and protection.
    I cannot over-emphasize the critical role and contribution of the 
Councils in implementing the SFA and bringing Federal fishery 
management into compliance with its new requirements. The Councils have 
performed admirably over the years in developing plans, resolving 
conflicts among stakeholders, and making recommendations to the 
Secretary, particularly in light of the controversy and conflicts 
surrounding many fishery decisions. While both NOAA Fisheries and the 
Councils are adjusting to the changes made by the SFA, we remain 
committed to working together in the transition to sustain fisheries.
    Turning to the management of wide-ranging Atlantic fish like tunas 
and billfish, NOAA Fisheries has taken the lead in preparing management 
plans and rebuilding programs. Of these Atlantic highly migratory 
species (HMS), the following are currently classified as overfished: 
bluefin tuna, big eye tuna, Northern albacore tuna, swordfish, blue 
marlin, white marlin, and the 22 species that make up the large coastal 
shark management complex. Yellowfin tuna are fully exploited, with a 
fishing mortality rate that is probably above the levels that support 
the maximum sustainable yield. This past April, NOAA Fisheries 
completed a fishery management plan for Atlantic tunas, swordfish and 
sharks (HMS Plan) and an amendment to the billfish fishery management 
plan (Billfish Amendment) that contained rebuilding programs. Numerous 
and substantial changes were incorporated in the final rule to 
implement the HMS Plan and Billfish Amendment, based on the thousands 
of public comments received by the agency. Advisory Panels established 
under the SFA and composed of representatives of commercial and 
recreational fishing interests and other knowledgeable individuals, 
including members of the ICCAT Advisory Committee, participated in the 
development of the management measures. The final rule became effective 
July 1, 1999.
    Improving technical and scientific information and analyses.--
Another initiative of the SFA was to establish a new title in the 
Magnuson-Stevens Act on fishery monitoring and research. NOAA Fisheries 
is committed to using the best possible science in the decision making 
process, and to incorporating biological, social, and economic research 
findings into fisheries conservation and management measures. Meeting 
our responsibilities under the Magnuson-Stevens Act and other 
applicable laws requires collection of a considerable amount of data, 
and in many fisheries we do not have all the data we need. We will 
continue to support a precautionary approach in the face of scientific 
uncertainty. At the same time, we are expanding our collection efforts 
and, wherever we can, partnering with the states, interstate 
commissions, fishermen and others to collect and analyze critical data. 
In addition, we are using a variety of methods to improve public input 
in the management process and the availability of socioeconomic data to 
assess and minimize impacts to communities and small entities and to 
meet the requirements of other applicable laws such as the Regulatory 
Flexibility Act.
    Despite these efforts, we are vulnerable to overlooking or 
accepting alternatives with unanticipated effects, due to the 
limitations of our models and underlying data. NOAA Fisheries is 
addressing this vulnerability by placing a high priority on using funds 
to fill in gaps, particularly in the area of economic and social data 
collection and analysis. In January of this year, NOAA Fisheries 
delivered a Report to Congress entitled Proposed Implementation of a 
Fishing Vessel Registration and Fisheries Information System that calls 
for innovative state-Federal partnerships to improve the quality and 
quantity of information for marine resource stewardship. Such Federal-
state partnerships are an important mechanism for sharing resources and 
reducing duplicative efforts.
    Just as important as the collection of timely and complete data is 
sophisticated modeling to analyze the complex interactions between 
management measures and various impacts. State-of-the-art modeling 
techniques that incorporate information from the biological and social 
sciences, for instance, would improve NOAA Fisheries' ability to make 
accurate predictions about economic impacts and benefits. As we improve 
our capabilities to conduct integrated analyses, scientific assessments 
of the effects of management decisions on both fish and fishermen will 
be enhanced. This information will enable managers to choose the 
alternative that best balances conservation needs and community 
impacts.
    Reports to Congress.--In addition to the data management report, 
the SFA required about 20 other studies and reports to Congress that 
address many critical issues in fisheries management. We will be using 
the findings and recommendations of these reports to improve our 
conservation and management programs. They also contain a great deal of 
useful information that could inform and guide the reauthorization 
process.
    One of the most thorough and interesting of these reports is the 
National Research Council's study, Sharing the Fish: Toward a National 
Policy on Individual Fishing Quotas (IFQs), an examination of the 
issues surrounding the use of such quotas to manage fisheries. The 
report recommends that IFQ programs be retained as a fisheries 
management tool. It also contains a number of useful suggestions for 
developing potential ground rules for and key elements of IFQ programs 
if they are authorized.
    Another NRC report, The Community Development Quota Program in 
Alaska, highlighted some of the current successes of existing CDQ 
programs, and recommended expanding the programs over the long term to 
ensure overall success in meeting a variety of community development 
goals. We look forward to transferring some of the lessons learned to 
future programs.
    Earlier this month, the Federal Fisheries Investment Task Force 
released its report analyzing the Federal role in subsidizing expansion 
and contraction of fishing capacity. We will be looking closely at the 
recommendations in the report, including those that propose to rework 
existing programs and develop new funding mechanisms, to address 
problems of overcapacity and resource degradation.
    The National Research Council's report entitled Sustaining Marine 
Fisheries and the Ecosystem Principles Advisory Panel's Ecosystem-Based 
Fishery Management--A Report to Congress both advocate greater use of 
the precautionary approach and an ecosystem-based approach to 
management. In the latter report, the authors maintain that the burden 
of proof must shift to the fishery to ensure that the ecosystem will 
not be harmed by fishing. They also suggest that we develop indices of 
ecosystem health as targets for management. We will be looking to these 
reports and others for ideas as we continue to move toward ecosystem-
based fisheries management.
                         reauthorization issues
    We are still working to understand and effectively implement the 
changes to fishery management policies and procedures made by the SFA. 
Consequently, we would not propose major changes to the Magnuson-
Stevens Act at this time. However, we have established an internal 
agency task force to evaluate SFA implementation, and the group has 
identified some revisions of existing provisions that may be useful to 
make the management process more efficient and to resolve some 
relatively minor problems. We currently are reviewing various issues 
raised by the task force, the Councils, and some of our stakeholders. 
Among the issues identified are the following:
    Review process for fishery management plans, amendments and 
regulations.--The SFA attempted to simplify and tighten the approval 
process for management plans and regulations. However, one result of 
that effort has been two distinct review and implementation processes--
one for plans and amendments and another for implementing regulations. 
This essentially uncouples the process for plans and amendments from 
the process for regulations, and as a result the decision to approve or 
disapprove a plan or amendment may be necessary before the end of the 
public comment period on the implementing regulations. This prevents 
agency consideration of public comments that could be germane to the 
decision on plan or amendment approval. We are considering amendments 
that would modify the process to address this issue.
    In addition, the Committee may wish to consider reinstating the 
initial review of FMPs and FMP amendments by the Secretary. 
Considerable energy and staff resources are expended on plans or 
amendments that are ultimately disapproved because of serious omissions 
and other problems. At present, 2 to 3 months must elapse before the 
Secretary makes his determination, and if the amendment is then 
disapproved, it can be months or longer before the Council can modify 
and resubmit the plan or amendment. While the initial review was 
eliminated by the SFA to shorten the review process, it actually may 
provide a mechanism to shorten the time it takes to get a plan or 
amendment approved and implemented.
    Restrictions on data collection and confidentiality.--As I 
indicated in the April hearing on this topic, the Magnuson-Stevens Act 
currently restricts the collection of economic data from processors. 
Removal of this restriction could improve the quantity and quality of 
information available to meet the requirements of the Regulatory 
Flexibility Act and other laws requiring economic analysis. In 
addition, the SFA changed the term ``statistics'' to ``information'' in 
the provisions dealing with data confidentiality. The change has raised 
questions about the intended application of those provisions, 
particularly with respect to observer information, and Congressional 
clarification would be useful.
    Coral reef protection.--Special management areas, including those 
designated to protect coral reefs, hard bottoms, and precious corals, 
are important commercial resources and valuable habitats for many 
species. Currently, we have the authority to regulate anchoring and 
other activities of fishing vessels that affect fish habitat. Threats 
to those resources from non-fishing vessels remain outside agency 
authority except when associated with a Federal action that would 
trigger EFH consultation or where addressed in regulations associated 
with a national marine sanctuary. We suggest amending the Act to 
clarify, consolidate, and strengthen NOAA Fisheries' authority to 
regulate the actions of any recreational or commercial vessel that is 
directly impacting resources being managed under the Magnuson-Stevens 
Act.
    Caribbean Council jurisdiction.--The current description of the 
Caribbean Council limits its jurisdiction to Federal waters off Puerto 
Rico and the U.S. Virgin Islands. As a result, the Council cannot 
develop FMPs governing fishing in Federal waters around Navassa Island 
or any other U.S. possession in the Caribbean. Jurisdiction of the 
Caribbean Council could be expanded to cover Navassa Island, by 
including ``commonwealths, territories, and possessions of the United 
States'' within the description of that Council's authority.
    Council meeting notification.--Pursuant to the notification 
requirements of the Magnuson-Stevens Act, Councils spend tens of 
thousands of dollars a year to publish meeting notices in local 
newspapers in major and/or affected fishing ports in the region. By 
contrast, e-mail, public service announcements, and notices included 
with marine weather forecasts are much cheaper and could be more 
effective in reaching fishery participants and stakeholders. The 
Committee may wish to consider modifying notification requirements to 
allow Council use of any means that will result in wide publicity.
    We also look forward to working with the Committee on high-priority 
policy issues such as observer programs, individual transferable 
quotas, and funding and fee authorities. We appreciate the concern of 
the Congress and industry regarding the Administration's fee proposal, 
and NOAA is interested in working with all relevant parties to develop 
a viable fee proposal. However, at this time, we have no specific 
recommendations for changes in the Act to address these issues.
    Madam Chair, this concludes my testimony. Thank you for the 
opportunity to discuss the implementation and reauthorization of the 
Magnuson-Stevens Act. I am prepared to respond to any questions members 
of the committee may have.

    Senator Snowe. Thank you, Mr. Garcia and Ms. Dalton, for 
your testimony here today, as we begin a series of hearings on 
reauthorization. I know that you are speaking, Mr. Garcia, on 
behalf of the Secretary. Ms. Dalton, you indicated that it 
really is not necessary to have any significant changes with 
respect to the Magnuson-
Stevens Act. That may be true, and obviously we may reach that 
conclusion at the end of this process.
    But, nevertheless, what concerns me is that somehow there 
is a belief that we are satisfied with the way in which the Act 
has been implemented, and particularly in response to some of 
the issues that were inserted in the Act in 1996. I would like 
to review that for you.
    First of all, when it comes to responding to the social and 
economic impact on communities. That was a critical issue. The 
agency has gone through several lawsuits because it has not 
responded to the mandates under the Regulatory Flexibility Act. 
In addition, the lawsuits cited National Standard Number 8, an 
amendment that I offered in 1996, that in considering the 
management measure, you have to consider the socio-economic 
impact on the fishing communities.
    That is an area in which the agency has not responded. That 
is obvious by the numerous lawsuits that have been filed. 
Further, we all know that 95 percent of commercial fishing 
businesses are small businesses. That is why the Department has 
been sued several times, because they have not responded to the 
Regulatory Flexibility Act and the mandate to consider the 
impact of regulations on small business.
    Now, OSHA and EPA, for example, have set up panels to 
review the impact. That way, they have been able to measure the 
effect of their rules and regulations.
    We are talking about flexibility, and we keep hearing it. 
But I would like to go beyond just stating the fact that 
flexibility should be part of this Act. We have to demonstrate 
a good-faith effort, that in fact we are flexible in managing 
the fisheries and that we are considering the impact of 
management decisions on fishing communities. That is the way we 
can best demonstrate flexibility. That was the genesis for 
National Standard 8. Certainly, the Regulatory Flexibility Act 
focuses on these issues as well.
    The Department has not responded to that issue. That is the 
one thing I keep hearing over and over again. It is replete. 
You folks cite it. But you are in the position, representing 
the agency, to be flexible. We have not seen that response.
    So, what are you going to do in your positions--and I am 
talking about here and now; I am not talking about 6 months 
from now or 8 months from now--what are you going to do to 
respond to the mandate of flexibility with respect to the 
impact on the communities that are directly affected by the 
consequences of regulatory measures in fishery management 
plans?
    Mr. Garcia. I will start off, Senator, and then Penny can 
add to it. I also want to note that Andy Rosenberg, who is the 
Deputy Assistant Administrator for Fisheries, is here with us 
and is also available to answer questions.
    I do not disagree with your point that the economic and 
social impacts of these measures must be taken into account. 
Nor would I challenge your concern that at times we have not 
fully implemented those directives. We have 2 to 2\1/2\ years 
of experience now. I think that the agency is making progress. 
The lawsuits are regrettable. The Secretary and I have both 
issued instructions that the highest priority is to be given to 
the consideration in these regulations of the economic and 
social impacts on communities, and that we are to take those 
into consideration as we develop management measures.
    We are also concerned about resources in the agency to 
develop the necessary analysis, and we have devoted additional 
resources to it. We also have requests in the budget to add to 
those resources. But we are taking steps now to deal with it. I 
think that you will find, as we move forward, that we are doing 
a much better job of taking into account those issues.
    We have always been concerned, this administration has 
always been concerned, about the impact that management 
measures have on communities. That is why we had sponsored the 
buy-out program in New England, to assist fishermen and 
fisherwomen who are impacted by these decisions. That is why we 
continue to be concerned about the need to deal with 
overcapacity in our fisheries, and the need to assist 
communities as they transition to a more sustainable fishery.
    So we agree with you that these are issues that must have a 
high priority. The Secretary and I, as I said, have both 
instructed the Fisheries Service to give it high priority. We 
expect that these regulations, as they are finalized, will 
reflect that.
    Penny, you may want to add to it.
    Ms. Dalton. Yes. I think we do have a number of 
requirements that we have to meet to deal with the economic 
consequences. We do a regulatory impact review. We have to 
comply with the Regulatory Flexibility Act. We have to do a 
fishery impact statement as one of the requirements for fishery 
management plans. We have to meet the requirements of National 
Standard 8.
    I think this is an evolutionary process in the Act. We have 
put increasing emphasis on the need to do economic analysis in 
the Act in recent years, and our bureaucratic processes have 
not always geared up to deal with it. We are hiring more 
economists. We have requested a million dollars in the fiscal 
year 2000 budget to beef up and increase the amount of economic 
and social data that we collect. So we are working with that.
    Mr. Garcia. Senator, could I also say, the point about the 
Act not needing a major overhaul or change, I still want to 
address that. As I said in the opening remarks, we do not feel 
that the Act needs to be changed in any major way. I think 
there is a distinction that we need to draw between 
implementation--and I take responsibility for that, as does the 
Fisheries Service--and the Act itself. The Act has the tools in 
place that are needed to address these problems.
    The question has been implementation. We are working hard 
to ensure that we follow the spirit of the authors of this 
legislation. As I said, I think that you will see, over the 
coming months, that we are doing an effective job in 
implementing the Act.
    Senator Snowe. Senator Breaux and I had sent a letter, 
requesting the GAO to conduct an investigation across the 
country. GAO has conducted four hearings on National Standard 8 
because of the failure of NMFS to implement that Standard 
properly. Frankly, it is regrettable that we reached this point 
where we had to even pursue this option.
    It suggests to me that the agency is not taking the issue 
very seriously with respect to the impact on the fishing 
communities. Frankly, the mandate of the Act is to consider all 
of these issues in a comprehensive fashion. That does include 
the social and economic impact on fishing communities. It is 
stated very clearly in the Act.
    Now GAO has to conduct hearings--the most recent one was 
conducted in my State, in Portland, ME, in July--because the 
agency has not properly implemented this aspect of the Act. I 
continue to hear it.
    So what is it going to take? What resources? What is 
necessary to change? Is it an attitude adjustment? What is it 
that will ensure that this is part and parcel of the overall 
consideration of the agency?
    Ms. Dalton. I think that we are working internally to make 
the necessary adjustments in our resources. We did not have 
very many people with a lot of expertise on economic issues. We 
are hiring more people. We are going to be continuing to hire 
more people. This is also an area, because we did not have the 
expertise, we will get better. We freely admit that we have 
been weak in the area of doing economic analysis.
    We have also been in touch with SBA and begun to work with 
them on improving our implementation of the Regulatory 
Flexibility Act. We have also been in touch with the Economic 
Development Administration within the Department. They have 
recently listed fisheries as among their priorities.
    So we are reaching out to other agencies that traditionally 
have had that expertise. We are also working in house to 
improve our expertise, as well. But it is not going to happen 
overnight. But we will get better.
    Senator Snowe. Senator Inouye.
    Senator Inouye. Madam Chair, if I may follow up on your 
question. In the assessment of the impact, I have been told 
that one of the problems may be traced to the fact that self-
employed fishermen are counted as farmers and miners in the 
census. Is that correct?
    Ms. Dalton. I honestly do not know. We can find out for you 
and get back with you.
    Senator Inouye. I see people nodding their heads. If that 
is the case, I hope that steps will be taken to correct this 
for the 2000 census.
    Ms. Dalton. OK.
    Senator Inouye. As you know, Hawaii is surrounded by water, 
and we have a lot of self-employed fishermen. I would hate to 
have them designated as miners. We do not have any mines in 
Hawaii. [Laughter.]
    Senator Inouye. Thank you.
    Senator Snowe. Thank you, Senator Inouye.
    Senator Stevens.
    Senator Stevens. Thank you very much, Madam Chairman. I 
appreciate your holding this hearing. I am sorry I was late 
because of other problems.
    First, Ms. Dalton, it was nice to have you seated behind 
me, but it is nice to see that you are where you are right now.
    Mr. Garcia, I thank you for coming to Alaska. It is a trip 
that many people do not take, to western Alaska, so we are 
delighted that you took the time.
    We had two major purposes for the Sustainable Fisheries 
Act: clarify the management policies for fisheries, and give 
the councils the tools to implement and enforce those policies. 
We had the general impression that the fisheries were 
overcapitalized and overfished. I thought for a while that the 
first was taken care of. I am not sure anymore now. But it is 
clear that many of the fisheries are still overfished.
    The councils have begun to address these problems. I think 
the North Pacific Council--we will hear from them later--has 
done a good job of attempting to manage our own fisheries. We 
have, in the Sustainable Fisheries Act, required the North 
Pacific Council to file new amendments to its fishery 
management plan. Nine of those, I understand, have now been 
approved, which I think is a significant record for them. I do 
hope that we can get to some of the other issues that we have 
here.
    First, I do not mean to be critical, but just to be 
specific--on the floor is the tax bill. The farmers are very 
aggressive. They have two significant amendments coming. One 
will enable farmers to establish a fund, like our old fund for 
boat owners, but it is a fund into which they can put up to 20 
percent of their income, and keep that for 5 years, untaxed. If 
they have a disastrous year, they can pull that out and assist 
themselves, or they can keep it for the end. If it goes over 5 
years, the first year is taxed in that sixth year.
    Second, they have an income averaging concept, like artists 
have. They can have it rolling forward at least 3--I think it 
could be up to 5 years--of income. So that if they have a good 
year, then a bad year, they can go back and average and get 
some tax money back. They can continue to do that for the next 
year, as I understand it.
    But although the census includes fishermen with farmers, 
fishermen are not included in the tax law with farmers. I think 
that ought to be your job. I think, within the administration, 
the National Marine Fisheries Service ought to be speaking up 
and NOAA ought to be speaking up more for fishermen, and 
ensuring that things we are doing to help farmers extend to 
fishermen as well.
    I have got to go out this afternoon to do battle. Time is 
almost up. But it will be one of those amendments where we have 
no time to debate--maybe 1 minute to try and explain what we 
are doing. But I really think that fishermen shouldn't have to 
fight for that right.
    We have a lot of things like that that are sort of plaguing 
us as far as trying to get into these activities. I hope that 
we will have a hearing on the IFQ's later. It would take too 
long to really get into the discussion of IFQ's today. I do 
have some specific questions I would like to get into, if that 
is all right.
    I understand that you have now a proposal to develop a data 
collection system that will preempt the States' systems. 
Particularly, Alaska has a fish ticket system, and the industry 
follows that system. Is that right, are you developing a new 
concept of data collection that would be inconsistent with the 
policies that already exist and have been approved by the 
existing regional councils?
    Mr. Garcia. Senator, if I could respond to two things.
    First, to your point about assisting fishermen. As you 
know, I was with Dave Russell, from your staff, recently in 
Alaska. We visited several villages along the Yukon River, 
villages that contained 200 people, some 300, some 500. But 
they all had one thing in common, which was that they depend 
upon fishing. They are subsistence fishermen. The sole source 
of revenue in many cases is fishing. When the fish do not come 
back, these villages and the people who inhabit those villages 
are in very tough straits.
    I agree with you that we need to develop a national 
strategy for dealing with problems, both of 
overcapitalization--which the Act does address--but also 
dealing with some of the natural occurrences that impact 
fishing and that--for example, in Bristol Bay, the Kuskokwim 
and Yukon areas have resulted in 2 years of disastrously low 
salmon returns that have impacted people in a very direct way.
    We will have more of these incidents--perhaps not in 
Alaska, but in other parts of the country. We do need to have a 
comprehensive way of responding. So we are working toward that 
end. We would look forward to working with you and members of 
this Subcommittee in developing such a plan that would allow us 
to respond, along with States, in dealing with these problems.
    On your second point, I will defer to Penny.
    Ms. Dalton. One of the initiatives of the SFA was to 
establish a new title in Magnuson-Stevens basically on fishery 
monitoring and research. One of the things that was required in 
that new title was a study of vessel information and 
registration system. I think what you are talking about, if I 
am not mistaken, is the report that we did to respond to that 
section.
    That section actually was developed--the State of Alaska 
was one of the primary people that were involved in developing 
it. The intent of it was to establish a cooperative State/
Federal plan so you had a national data base.
    The idea is the States have--and Alaska is a great 
example--have far more information that we do about what 
vessels are out there and what they are doing.
    What we were trying to do is something actually that was 
modeled after the system in the North Pacific. It certainly 
would not preempt it.
    Senator Stevens. The industry and the State and our 
individual fishermen all--I am talking about the processing 
industry, the fishermen and the State--are all in agreement 
with the regional council that we have a system that works. I 
would hope that if we are going to go forward, that system that 
is working will not in any way be crippled by a new national 
system that is trying to meet the needs and necessities in 
other places.
    Recently--I will change the subject--recently, Andy Grove 
pointed out to me that at the turn of the century, 40 percent 
of the people of the United States were on farms or were 
involved in food processing and food gathering. I assume he 
would have included fishermen in that. At the end of this year, 
it will be 4 percent.
    Now, with farms, that is a significant figure. But 
fishermen are still living on the seacoast, and we have a great 
problem with that, because there are many more fishermen today 
than there are fish. I think we need to find some plan for 
dealing with that. Because many of them cannot go into a city, 
like the farmers were able to, and adjust to another way of 
life. Fishermen are still out there, and many of them are in 
extremely disaster-ridden areas, in my judgment, along the 
entire coastline, not just in Alaska.
    I am glad to hear you say, Mr. Garcia, you are looking at 
the concept of dealing with fishery failure for these 
communities. But I am concerned that the community and regional 
assistance has not been available through the SBA and the EDA. 
Are you working to coordinate their activities with these 
disaster plans? It seems we have to come up with disaster 
assistance after the fact in fishing communities. Whereas, if 
you look at the farm communities, they have a program that is 
there to reach out, and they know in advance that if there is 
either economic failure or a natural disaster failure, it means 
the farmer is in trouble.
    We have to wait for the disaster to occur in order to 
trigger a response. Then it is probably almost 9 months late in 
getting there to assist these people.
    Mr. Garcia. That is right.
    Senator Stevens. Are you working on trying to bring that 
together, government agencies with the State agencies, so we 
can have a plan in effect and, if someone finds there is a 
disaster, we move to it like we do with FEMA? We need a FEMA 
for fisheries.
    Mr. Garcia. We are. One of the concerns expressed in the 
recent trip to Alaska, to the villages on the Yukon, was that 
some of the assistance, the medium-term and long-term 
infrastructure aid from EDA and SBA, were not getting to people 
as quickly as we might have hoped. It is our intention to call 
a meeting of the Federal agencies that are involved in the 
administration of these disaster funds, as well as the State, 
to talk about any mid-course corrections that we need to make. 
If there are statutory changes that we need, then we will be 
discussing it with the Subcommittee.
    I think that the lessons we have learned in Alaska can be 
applied to other parts of the country. So the trip was timely. 
We gathered a lot of good information. As I said, we intend to 
meet with EDA, SBA, any other agencies that are involved--and 
the State, too, has to be part of this, because the State is 
administering much of the Federal assistance right now--and 
talk about what we need to do to make it more effective and to 
respond quickly to these problems.
    Senator Stevens. That is good. FEMA has been helpful when 
there is a natural disaster. But when you have a fisheries 
disaster, too often it is a combination of economic 
circumstances, just like the farmers of the country are facing 
right now. The Pacific Rim markets have collapsed, so the 
farmers have overproduction, and they are plowing away 
livestock now. They cannot sell it and they cannot feed it 
either.
    Now, I think that we ought to have a similar plan to deal 
with fisheries, in terms of projections and knowledge of what 
is going on in the fishery community, so that there is a plan 
there. Again, I commend to you the two amendments we found in 
this tax bill. I think each one of them would help.
    I know I have talked to some of the people in the Bristol 
Bay disaster. Several of those people had paid substantial 
taxes the year before. But there they were, with no capability 
of recovering any of that to meet their own needs. The farmers, 
under this bill, will be able to do so. I hope the Senate will 
listen to me and include fishermen today.
    Let me shift gears to essential fish habitat. You have 
regulations that define essential habitat to include areas 
where there are no fish. Now, that disturbs me a little bit, 
because I do think we all have been very strong defenders--I 
spend a lot of my time trying to get people in the private 
sector to contribute money to protect fish habitat, but I did 
not know that you had used your authority to extend to areas 
where there are no fish under the essential fish habitat 
program. Can you tell me why you did that?
    Ms. Dalton. I am not aware of any areas where we have 
actually defined it as no fish. The initial identification of 
essential fish habitat has been quite broad, and it 
encompasses--in Alaska, it would include probably most of the 
EEZ and also some inland areas where you have anadromous 
species. The definition of essential fish habitat under the law 
itself is anyplace where--any area or waters or substrate that 
are necessary for fish growth, breeding spawning. It basically 
is anyplace where a fish goes ends up being essential fish 
habitat. So that is one issue.
    The other issue is that we do not know, or did not have a 
lot of baseline information, to do the initial identification 
of essential fish habitat. So, very often, what we did is use 
the entire range of the species.
    Senator Stevens. Well, that does have an impact on the 
State that has half the coastline of the United States, if 
every inch of the coastline is fish habitat. Because we are 
going to have a little bit of development along the line there. 
I would not want to see development which would interfere with 
fish runs. But, on the other hand, if there are no fish there 
but could be there later, I think you have to take a closer 
look at that one.
    Ms. Dalton. What we have tried to do with these 
regulations, basically the only new authority, the authority 
for the councils and the Secretary to comment on activities 
that affected fish habitat has been there in the Act for 20 
years.
    Senator Stevens. On the other hand, we have a lot of barren 
streams, streams where fish used to be. You know where they are 
located? In National Park Service areas, Fish and Wildlife 
refuge areas.
    If you are right--I would like for you to be right--the 
fish habitat concept could go back in there and do something 
about restoring those fish runs. I am not sure you are ready 
for that battle yet. But I would like to see you think about 
it.
    Ms. Dalton. OK.
    Senator Stevens. Because the concept--I remember distinctly 
the concept of not being able to have fishery enhancement 
projects in the Kenai moose range. Now, moose do not eat fish. 
So, therefore, that was not compatible. But then we went to the 
Kodiak Bear Refuge, and they said we could not do that there 
either. But bears do eat fish. There is an inconsistent policy 
in the agencies that are managing restricted areas as far as 
fish propagation is concerned. I would hope that the fish 
habitat concept would win.
    Ms. Dalton. I guess part of it is we are not--the authority 
that is in the law just says that the Federal agency that is 
taking action that will affect the essential fish habitat has 
to respond to concerns that are expressed by either NMFS or the 
councils. It does not say that the activity cannot move 
forward. What we are trying to do is piggyback those kinds of 
consultations on top of existing activities that we have--
things like 404 permits, under the Clean Water Act, NEPA 
analysis that needs to be done for Federal activities and 
things like that.
    So hopefully it is not going to have any--it will bring a 
new dimension to those activities, so that people pay attention 
to their impacts on fisheries, but it should have no impact on 
them in terms of the processing of permits and things like 
that.
    Senator Stevens. Now, this is just a request, and I have 
got a bunch of questions I could ask. We are coming up to the 
end of the period on the moratorium on the IFQ's. I am not sure 
whether Congress will extend that in whole or in part. But 
without regard to that, we will certainly have some hearings. I 
would hope that you are spearheading the task of getting some 
real information about what has happened where there are IFQ's 
and where there are not IFQ's, so we can have some real factual 
information to deal with it.
    One of the basic problems we have about the IFQ's is, the 
IRS believes those are property rights, they have property 
rights, and an IFQ permit is something that they can execute 
on, and then put it up for sale to someone that does not even 
know anything about the fishery. Suddenly we have a bunch of 
absentee owners that are executing rights with regard to a 
fishery. The IFQ was supposed to perpetuate the concept of 
people who know what they are doing and trying to harvest our 
fish.
    I think we have to have some basic understanding of what an 
IFQ is. It is really not something that people pay for. 
Therefore, I do not know why the IRS should create a property 
right value in it and seize it. But that is just one of the 
issues that is involved in IFQ's. IFQ's also have a capability 
of bringing about a consolidation of vessel size if we are not 
careful. Because if you have an IFQ and I have one, and I want 
to go bigger, I buy yours and I go bigger. Suddenly, we are 
going into a matter of a new race between a larger boat and a 
fishery that was primarily made up of vessels of the same size.
    I think we have to do something about the transferability 
of IFQ's. If a person wants out of an IFQ, I really think it 
ought to be returned to the source from which it came. I think 
our largest objection to IFQ's has been the fact that it will 
soon be a non-
fishermen asset, owned by people who are more interested in the 
bottom line than they are in terms of preserving the species 
for the next generation.
    So I am urging you to find a way to collect the data on 
what has happened under IFQ's, what are the problems there, 
before we get to the hearings, which I hope will take place 
either this fall or next year, about IFQ's. That is something 
beyond our ability.
    We could put the GAO and the Library of Congress in it, but 
you all have got the expertise. If you need more money, Senator 
Inouye and I happen to be in a position to get you more money. 
[Laughter.]
    Mr. Garcia. We appreciate that.
    Senator Stevens. We would like to have you have people who 
are really looking at this from the point of view of 
establishing a policy for the Nation for the next century--at 
least for the first part of the next century--that will protect 
our fish and, at the same time, enhance the survivability of 
some of these fishermen. Because I really am worried about what 
is going to happen to fishermen. I think if we did a study--it 
would be interesting if you would do a study and see how many 
people really were fishing in 1900 as compared to those who 
really were harvesting fish and making money in the year 2000.
    Andy Grove has got that figure for farmers, as I told you, 
but I think it would be very interesting. We ought to know what 
we are dealing with. Are we going to have to give incentives to 
people to catch fish?
    I think, from a health point of view, we are better off to 
have our fish population healthy, and we will be healthy. I do 
think that we ought to have really a comprehensive review of 
that before we get to those hearings. So I urge you to help us 
do that.
    Mr. Garcia. Senator, we are gathering the data on IFQ's, 
and we look forward to the hearing. It is the agency's position 
that IFQ's are not property rights, and we have had discussions 
with the IRS. So we will look forward to discussing this with 
you further at the hearings.
    Senator Stevens. Well, I suggest to you, the next time 
around, I am going to insist that Congress legislate that IFQ's 
are not property rights, they are not to be sold. They can be 
transferred from generation to generation but, if there is no 
one within the family, they have to be turned back.
    Thank you, Madam Chairman.
    Senator Snowe. Thank you, Senator Stevens.
    Just a few additional questions on the groundfish fishery 
in New England. We have been waiting for a response to the 
emergency request made by the New England Fishery Management 
Council with respect to the groundfish fishery. The whole issue 
was nothing short of a disaster as it has impacted fishermen in 
my State and throughout New England. The Council should have 
made a different decision, which at the time the State of Maine 
was arguing, and it should have been proportionate to the 
problem and where the problem had developed.
    Now it has been 2 months. The daily trip limit for cod went 
from 700 to 200 pounds a day. They achieved that in a matter of 
weeks. Then the plan shifted to a 30-pound limit a day. Now 
there is a recommendation by the Council to go back up to 700 
pounds.
    What has happened in the meantime is that the fishermen 
have been catching cod as bycatch and have had to discard those 
cod. It has been 2 months, and there has been no response to 
the emergency request.
    Mr. Garcia. Yes, Senator. Let me respond today. Today we 
are filing an interim final rule with the Federal Register. 
Penny and Andy can both provide additional details. But this 
will increase the landing limits to 100 pounds daily, and 
establish a 500-pound trip limit, as well as restrict the so-
called running clock provision that allowed people to go out, 
catch fish, come back, and then sit.
    We think that while this is an interim response, it is not 
the long-term solution. We have urged the council to deal with 
the problem of bycatch in this fishery. We are looking forward 
to working with the council. If an acceptable management scheme 
is not developed, however, the Department is prepared to do 
what is necessary to protect this fishery and the fishing 
industry.
    Senator Snowe. So, when can we expect a final decision on 
this matter?
    Mr. Garcia. Well, it will be final once published. So the 
first of next week it is effective. But it is going to the 
Register today.
    Senator Snowe. How would the running clock proposal work 
with these changes?
    Dr. Rosenberg. Senator, the running clock proposal is 
changed, such that the trip limit applies for 100 pounds per 
24-hour period. But instead of continuing to run your clock for 
whatever amount that you land, you are restricted to that 100-
pound per day period and you have to wait to go back out until 
your time is allotted. Say, you have landed 200 pounds in a 48-
hour period, you have to be at the dock for 48 hours until you 
can go back out again and catch more, as opposed to continuing 
to just run your clock and make another trip.
    Senator Snowe. How did you arrive at the 100 pounds now, 
since we have been all over the lot?
    Dr. Rosenberg. Well, we started the fishing year at 200 
pounds, in May, on recommendation of the council, along with 
some additional closed areas. The tension here, of course, is 
between ensuring that there is a disincentive to target cod, 
while also allowing people to bring in bycatch. And 100 pounds, 
up to a 500 limit, was within the scope of options that the 
council analyzed and could be justified under the conservation 
guidelines for rebuilding the stock.
    If we had gone--the council vote was for up to 700 pounds. 
That was outside the scope of what they had originally 
considered and, frankly, impossible to justify under the 
rebuilding program. So this provides some relief in terms of 
bycatch, but stays within the scope of the plan that they had 
put forward to us.
    Senator Snowe. To followup on the groundfish industry in 
general, we passed, under an appropriations bill last fall, $5 
million to aid those who participate in the fishery. Again, the 
final rules have not been issued with respect to how that money 
is going to be used. So now it has been about a year until the 
fishermen will see the benefits of this money to mitigate a 
disastrous situation in the groundfish industry in New England. 
Why has it taken so long to issue the regulations and how is 
this money going to be used?
    Ms. Dalton. Part of it is I think we changed course a 
little bit after the money was appropriated. There was a 
decision made to work with many of the stakeholder groups in 
New England. They came up with a proposal that we work with 
them to go ahead and implement, that basically compensates 
fishermen who were adversely affected by the rolling closures 
last spring for their lost days at sea.
    So one of the things that is going on is they are actually 
going to be compensated for the regulatory actions that we took 
this past spring. So there is no way for us to go ahead and do 
this until they turn in their logbooks. That will be by the end 
of July.
    We have done the proposed regulation on it. We also had 
some issues that came up, like income requirements and things 
like that, that we have been getting worked out. We expect the 
rule to come down here and to go through the review process and 
be ready to be finalized sometime in the beginning, first week, 
of August. Then, when the fishermen go ahead and turn in their 
logbooks, they will be compensated this fall for that lost 
period of time.
    Part of this is we are making--this is a brand-new program 
and a brand-new concept that we are trying to work through and 
make sure that it works effectively.
    Senator Snowe. On spotter planes, the harpoon category was 
closed last week by NMFS because the quota had been achieved. 
Most of the bluefin tuna had been caught in that category by 
the use of spotter planes. NMFS has not issued a rule on this 
issue out of fear of litigation.
    Now, I cannot believe that there are not lawyers within the 
Department that could come up with a rule that would not invite 
litigation or at least could withstand a lawsuit. Why has this 
taken so long? What is going to happen now?
    Mr. Garcia. All of our rules seem to invite litigation 
these days.
    Senator Snowe. Some you fear more than others.
    Mr. Garcia. Yes. The key, as you point out, is withstanding 
the judicial challenge. We did issue a proposed rule on spotter 
planes, banning spotter planes in the fishery.
    We have been challenged on that rule. We were recently 
taken back to court by the plaintiffs. The judge felt that it 
was not ripe for a decision at this point because it was just a 
proposed rule, although he did very clearly indicate that he 
did not like the proposed rule.
    So we are very carefully now reviewing the record with the 
Justice Department, as well as the Department lawyers, to make 
sure that when and if we issue that final rule, that we have a 
rule that will pass judicial muster. As I said, we had a 
proposed rule that banned spotter planes, and we are working 
very hard now to try to finalize that rule. We have received a 
number of comments. We are analyzing those. The Justice 
Department has expressed its concern to us about the rule. We 
are working with them to make sure that we have a rule that is 
strong and will do what we had intended.
    Senator Snowe. Will that be sooner rather than later?
    Mr. Garcia. It would be soon, yes. Sooner rather than 
later. I cannot give you a precise date.
    Senator Snowe. On essential fish habitat, again, final 
rules have not been published on that. When do you expect that 
to occur?
    Ms. Dalton. What we are doing with that is we are beginning 
now--we have an interim final rule that has gone into effect. 
What we are hoping to do is basically go through--we have done 
about 400 consultations now on essential fish habitat, and the 
process seems to be working well--is to do this very 
deliberatively, so that we make sure that the final rule is one 
that will actually work. What we are doing is trying to take 
advantage of our earlier experiences with the consultations, to 
try to make sure that the system is responsive to the needs.
    Senator Snowe. Are you going to be very careful in not 
implementing it in a way that is too broad? Have you been able 
to determine the best way to do that? That seems to be the 
major issue with respect to how we are going to define what our 
essential habitats are.
    Ms. Dalton. The broadness of the identification of the 
areas is based on the scientific information that we have and 
on the definition that is currently in the Act. What our 
guidelines have focused on is trying to integrate any 
consultations or any requests or concerns that the councils and 
the Department have about activities that could affect 
essential fish habitat into existing permit processes.
    One of the things that Terry Garcia has been very involved 
in is, we have a pilot program now in California that we are 
going to be doing that is going to be one-stop shopping for all 
of these different types of permits. We chose it there because 
we also have the salmon/ESA issues going on. It will also pull 
in marine sanctuary permits and permits for national estuary 
and research reserves. So that when somebody has something that 
they are doing in one of these areas, they only have to make 
one call on the National Oceanic and Atmospheric Administration 
to get their permits.
    Mr. Garcia. I just want to say that there has been some 
concern expressed in various quarters that we are creating a 
new regulatory program. That is just not true. That was not the 
purpose of the Act, and it was not our intent in promulgating 
regulations. We have to identify essential fish habitat.
    That is a necessary piece of information for the councils 
as they move forward in amending their fishery management 
plans. We need to consult with other Federal agencies when 
their actions may affect essential fish habitat. But we are not 
trying to use this as a mechanism to reach other activities 
that had not formerly been regulated. It is just not true that 
we are using it in that way.
    The consultation mechanism which people have questioned, we 
have gone to great lengths to ensure that we are not 
duplicating efforts, that we are not creating a new 
consultation mechanism where others could do the job. So that 
if someone has to consult under the Endangered Species Act, we 
will use the Endangered Species Act consultation to satisfy 
EFH. Similarly, if there is another consultation that is 
ongoing, we will use that consultation to satisfy the EFH 
consultation.
    I think that when the various groups that have expressed 
concerns about this rule see how it is implemented, they will 
agree with us that this is not a threat, it is not going to 
interfere with business, and that it is useful information that 
the councils will be able to incorporate into their fishery 
management plans, and that we will not be creating multiple 
consultations where one would do just as well.
    Senator Snowe. Is it true that NMFS is pursuing a 
subdefinition that would include habitat areas of particular 
concern? Would that probably more closely approximate what 
Congress had in mind with respect to this mandate?
    Dr. Rosenberg. Senator, we are urging the councils, 
although it is council prerogative, to identify habitat areas 
of particular concern. One of those areas in New England, for 
example, is on the so-called Northeast Peak, as groundfish 
habitat.
    We feel that helps prioritize the conservation measures 
that might be needed or comments that we might provide to other 
agencies in terms of those areas that can currently be 
identified with the available science as clearly of particular 
concern, usually as nursery habitat for young fish. So that is 
one of the mechanisms we have used to narrow down the focus and 
prioritize the various kinds of consultations.
    Senator Snowe. I have other questions that I will submit.
    But let me just say in conclusion that I think it would be 
very important to think about how the Department could respond 
to the issue of flexibility and identify a way that would 
implement the whole concept of National Standard 8, to minimize 
adverse economic impacts as a result on fishing communities. 
The agency should continue to consider the Regulatory 
Flexibility Act and the significant economic impact their 
regulations have on small businesses because 95 percent of 
commercial fishermen are small businesses.
    Obviously, the Department has failed in the regard. It gets 
back to what Senator Stevens was raising--the whole issue of 
whether or not we are going to have fishermen in the future. We 
have got to consider how these management plans affect 
individuals and, collectively, as communities. If the 
Department is disregarding that aspect, it is disregarding an 
entire segment of our economy and a very important one at that.
    So I think it requires a change in the way you address 
issues. For so long, obviously the mandate has been to look at 
the fish, which stocks have been overfished, how you are going 
to rebuild the fisheries, but you were not looking at the 
entire picture. Now, we have grave concerns that the entire 
picture is wreaking havoc on fishing communities. So we have 
got to do both. They are not mutually exclusive. So we cannot 
pursue this narrow path without looking at the whole picture. 
That is now the mandate of the Act.
    I would encourage you to do what OSHA and EPA have done. 
That is to set up specific panels that look at the rules and 
regulations and how they have an economic impact on small 
business. In the case of fishermen, they certainly are small 
businesses. I would encourage you to adopt that emphasis within 
the Department. Because I think that if you do not give it that 
kind of consideration, it is just going to be disregarded in 
the future.
    Mr. Garcia. Senator, we will do whatever is necessary to 
comply with the law.
    Senator Snowe. I appreciate it. I do not think it means 
that you disregard the health of the fish stocks. That is not 
what we are talking about. But we have to look at the entire 
health of the industry, as well. So I think it is critical. 
Obviously the Department has not figured out how to address 
that aspect of its responsibilities.
    If you have multiple lawsuits in this area alone, I think 
you would have to acknowledge that the Department has been 
deficient in this area.
    Senator Inouye. Madam Chair.
    Senator Snowe. Yes, Senator Inouye, go ahead.
    Senator Inouye. I would like to take this opportunity to 
thank Assistant Secretary Garcia, Ms. Dalton and Dr. Rosenberg 
for being so helpful to the Western Pacific Regional Fishery 
Management Council. I have been receiving communication from 
them, expressing their gratitude.
    As you know, we have problems that are unique in the 
Pacific, and also in the Atlantic. I hope that you will take 
into consideration some of the cultural issues that we are 
having problems with.
    If I may, Madam Chair, I would like to submit a few 
questions.
    Senator Snowe. Without objection, so ordered.
    Senator Inouye. Thank you.
    Thank you very much.
    Mr. Garcia. Thank you.
    Senator Snowe. Again, I want to thank you, Mr. Garcia, Ms. 
Dalton and Dr. Rosenberg, for being here today and taking the 
time. I am sorry it took so much time, because of the votes, 
but I thank you.
    Mr. Garcia. Thank you, Senator.
    Senator Snowe. Thank you.
    We will proceed with our second panel of distinguished 
witnesses. Our first witness will be Mr. Thomas Hill, from 
Gloucester, MA. Mr. Hill is a marine surveyor and a member of 
the New England Council.
    We will also hear from Ms. Maggie Raymond, from Portland, 
ME. Ms. Raymond has had a significant amount of experience in 
commercial fisheries in New England. She has seen dramatic 
changes in an industry faced with many serious problems and 
difficult choices.
    We will also hear from Mr. Rick Lauber, from Juneau, AK. 
Mr. Lauber serves as the chairman of the North Pacific Fishery 
Management Council.
    Dr. David Fluharty, a research associate professor at the 
School of Marine Affairs, the University of Washington, will be 
the final witness of this panel.
    Would everybody step forward? I would ask you to limit your 
statements to 5 minutes, if you could. You can summarize them 
and I can include your entire statements in the record.

            STATEMENT OF MAGGIE RAYMOND, MEMBER AND 
 SPOKESPERSON, GROUNDFISH GROUP, ASSOCIATED FISHERIES OF MAINE

    Ms. Raymond. Chairwoman Snowe, good morning. My name is 
Maggie Raymond. I am the spokesperson for the Groundfish Group 
of Associated Fisheries of Maine. I am also the wife of a 
fisherman. My husband, John, has fished for 25 years. Together, 
we have managed our own successful fishing business for the 
past 13 years. I am pleased to be here today to offer the views 
of the Groundfish Group on the Magnuson-Stevens Act and the 
Sustainable Fisheries Act.
    Senator Snowe, as you know, commercial fishing makes a 
significant contribution to Maine's economy, and our fishing 
families and communities define the charm and the character of 
our State. The last several years have been difficult, but we 
are committed to ensuring that fishing remains a strong 
component of Maine's economy. I want to assure you that our 
membership is dedicated to the revitalization of the resources 
on which our industry depends.
    The cornerstone of the Magnuson-Stevens Act is the 
scientific principle expressed as maximum sustainable yield. 
The Sustainable Fisheries Act has reaffirmed MSY. The National 
Marine Fisheries Service guidelines have elevated MSY to the 
dominant factor in decision making.
    Although there are many issues attendant on the Magnuson-
Stevens Act that your Subcommittee will be considering--and I 
do hope you will allow us a future opportunity to speak to 
those--there are few as significant as the questions related to 
the validity of MSY as a management tool, the scientific 
information used to support MSY-based decision making, and the 
impact of MSY-based decision making on the fishing community.
    Senator you did not invite me here today so that I could 
pretend to be a scientist. Believe me, I am not going to do 
that. I am sure that in the 5 minutes I have today, I could be 
more successful at selling you a boat-load of fish than I could 
ever be at selling you the idea that I fully understand fishery 
science.
    Maximum sustainable yield has been explained to me in the 
very simplest of terms as an assumption that a stock of fish 
exists in equilibrium. MSY does not fully factor in all the 
complexities of the environment or the ingenuity of fishermen, 
and therefore does not represent conditions as we know them to 
exist in the fishery. It is for this reason that MSY is 
considered flawed and has been rejected by many in the 
scientific community.
    Unfortunately, this flaw has been exacerbated by the SFA.
    The SFA mandates the achievement of MSY by defining 
overfishing as a relative mortality level that jeopardizes the 
capacity of the fishery to produce MSY. Furthermore, the SFA 
redefines optimum yield to mean that which provides for a 
rebuilding of an overfished fishery to levels consistent with 
the production of MSY.
    In response to the SFA, NMFS has published guidelines to 
assist the councils in meeting their new obligations. In 
response to the criticism of MSY, the agency responds,

    MSY is the key to the Magnuson-Stevens Act even more so 
than under the former Magnuson Act. MSY now constitutes an 
upper limit on optimum yield. NMFS believes that the lack of 
flexibility imposed by ascribing such a fundamental role to MSY 
was clearly an intent of Congress.

    The problems with MSY-based management are more apparent 
when one considers the basis of the scientific information used 
to support the fisheries management process. Although an 
imperfect analogy, it is valid nonetheless to point out that 
one cannot measure the size of a stock of fish as one would 
count head of cattle. The marine environment can be hostile, 
and it is remote. Of necessity, stock assessments are 
statistically driven, and decisions are based on the 
probability that the statistics are right.
    NMFS recognizes, ``The difficulty of estimating MSY is a 
significant problem that will require the best efforts of NMFS 
and the councils to solve.''
    Because MSY is central to SFA management and is admittedly 
imprecise, the consequences of this imprecision is damaging to 
the fishing community. This is particularly so because NMFS 
advocated the risk-averse approach as highly desirable for 
estimation of MSY and the criteria used to set target catch. 
Despite the potential for inaccurate stock assessments and the 
agency's claim that allowing for the uncertainty inherent in 
the estimate of MSY is important, it is the view of our members 
that neither the SFA nor the agency will allow the flexibility 
to free councils to consider social and economic factors when 
confidence levels around MSY and optimum yield are low.
    This brings me to the most important point I wish to make 
today--that being that the SFA and NMFS guidelines, in spite of 
the best intentions of National Standard 8, simply do not allow 
management decisions to consider the social and economic needs 
of fishing communities. The changes made to the definition of 
optimum yield have reduced economic impacts on fishing 
communities from a relevant factor which could be used to 
justify optimum yield to a subordinate concern. We are very 
concerned that unless the balance is restored, it will be 
impossible to maintain our traditional dependence upon the 
fisheries.
    Senator Snowe, you asked me today to speak specifically to 
the current situation with cod in New England. With your 
indulgence of an additional minute, I can do that.
    The current status of Georges Bank cod, along with the most 
recent management advice for that stock, provide a good example 
of the need for flexibility within the law to allow the 
balancing of measurable progress in the resource with the needs 
of the fishing community. Five years ago, the New England 
Council took the unprecedented step of closing year-round the 
known spawning areas on Georges Bank. This simple principle of 
providing complete protection to aggregations of spawning fish 
resulted in what is now likely a permanent closure of over 
6,000 square miles of world-
renowned fishing grounds.
    As a regrettable consequence, many harvesters and 
processors, including many from Maine who were dependent on 
that catch, are now out of business. This action also, 
predictably, resulted in great leaps forward in the rebuilding 
status of Georges Bank cod. Now, fishing effort is down, the 
Georges Bank cod stock is rebuilding, and the target total 
allowable catch has increased every year. But because landings 
have out-paced the target, additional restrictions on fishing 
effort are mandated. Despite obvious progress and the magnitude 
of that progress, the principle of MSY does not allow the 
recognition of that achievement.
    On the other hand, when it came to Gulf of Maine cod, the 
council simply could not bring itself to ignore the severe 
economic impacts that would result from the restrictions 
mandated to meet the rebuilding schedule. So, instead, it 
recommended, and National Marine Fisheries Service approved, 
measures both knew to be inadequate. To compensate, included a 
default mechanism, a lowered trip limit, intended to keep 
landings within the numbers allowed. The conservation goals 
were achieved on paper, but landings have been converted to 
discards, and both the fish and the fishermen now suffer.
    As I said at the outset, we are committed to sustainable 
fisheries and we have willingly made many sacrifices. We have 
always found strength through faith in our abilities and in our 
community. But the events of the past few years, and especially 
the potential impacts of the SFA, have shaken that faith and 
raised concerns that our community may be changed forever.
    I hope you will seriously consider these issues, and I urge 
you to seek the counsel of those with the expertise to guide 
you in this task. Thank you again for this opportunity to be 
here.
    [The prepared statement of Ms. Raymond follows:]
        Prepared Statement of Maggie Raymond, Groundfish Group, 
                     Associated Fisheries of Maine
    Chairwoman Snowe and Members of the Subcommittee on Oceans and 
Fisheries, my name is Maggie Raymond. I am a member of and spokesperson 
for the Groundfish Group of Associated Fisheries of Maine. Associated 
Fisheries of Maine is a trade organization of fishing and fishing 
dependent businesses. The Groundfish Group is an ad hoc committee 
formed to represent the interests of the Association's harvesters in 
fisheries policy development.
    I am also the wife of a commercial fisherman. My husband, John 
Raymond, is a career fisherman with over 25 years experience in 
different fisheries in the Northwest Atlantic Ocean. Together we have 
managed our own commercial fish harvesting business for the past 13 
years.
    I am pleased to be here today to offer the views of the Groundfish 
Group on the Magnuson-Stevens Act and, specifically, the implementation 
of the 1996 amendments referred to as the Sustainable Fisheries Act.
    Senator Snowe, as you know, commercial fishing makes a significant 
contribution to Maine's economy, and our fishing families and 
communities define the charm and character of our state. The last 
several years have been difficult for our industry, but we are 
committed to ensuring that the industry remains a strong component of 
Maine's economy. It is for this reason that the members of Associated 
Fisheries are dedicated to revitalization of the fishery resources on 
which our industry depends.
    With the initial passage of the Magnuson-Stevens Act, many felt 
that fisheries management had been put on a rational footing; that 
those with practical and scientific experience with the fisheries would 
collectively guide us and that we would regain control of our fishery 
resources. The cornerstone of the Magnuson-Stevens Act is the 
scientific principle expressed as maximum sustainable yield and it is 
this principle which has served as the foundation for all fisheries 
management decisions for nearly a quarter century.
    But if this central tenant of fisheries management, this principle 
of maximum sustainable yield, is valid, then why does it appear that we 
have made so few gains in the status of our fisheries resources? 
Fisheries management as prescribed under the Act has not been 
successful; that is clear and there are few that would dispute that 
statement. But many have cast about looking for some human failure, 
placing blame on fishermen and the men and women who serve on 
management councils. While I readily admit that human errors, including 
my own, have played a role, in my view, the most significant cause for 
fishery management failures is the hubris which led us to believe that 
we can render the complexities of Mother Nature to a two dimensional 
equation. The principle of maximum sustainable yield in fisheries 
management is seriously flawed and has been repudiated by many in the 
scientific community as not accurately depicting conditions as they 
exist in the fisheries. Nevertheless, this principle remains the 
fundamental component of U.S. fisheries management, and despite 
scientific evidence against MSY, the SFA has reaffirmed its use, and 
the National Marine Fisheries Service guidelines have elevated its use 
to the dominant factor in decision making.
    Senator Snowe, although there are many issues attendant to the 
Magnuson-
Stevens Act that your Subcommittee will be considering--and I do hope 
you will allow us a future opportunity to speak to those--there are few 
as significant as the questions related to the validity of MSY as a 
management tool, the scientific information used to support MSY-based 
decision making, and the impact of MSY-based decision making upon the 
fishing community.
    Senator, I am not a scientist and I won't pretend to fully 
understand the science of fishery management.
    Maximum sustainable yield in a fishery, as I understand it, is 
based upon an assumption that a stock of fish exists in equilibrium. 
Simply put, it assumes that if the number of fish in a stock changes as 
a result of environmental conditions or fishing, for example, that the 
growth of the stock will automatically adjust to compensate for that 
change. Over the short run, this is perhaps so. But over the long run, 
the time frame within which our fisheries are managed, this assumption 
has proven to be wrong. MSY assumes away the complexities of the 
environment and even the actions of fishermen and treats them as simple 
events. Intuitively we know, and many in the scientific community have 
confirmed, that the complexities of the environment and of human 
decision making can not be rendered unidi- 
mentional--they can not be assumed away as they are under MSY. It is 
for this reason that so many have rejected MSY as a scientific 
principle.
    Unfortunately, this fundamental flaw in Magnuson-Stevens has been 
exacerbated by the SFA. The SFA mandates the achievement of MSY by 
defining overfishing as a relative mortality level that jeopardizes the 
capacity of the fishery to produce MSY. Furthermore, the SFA redefines 
optimum yield to mean that which provides for a rebuilding of an 
overfished fishery to levels consistent with production of MSY. With 
all due respect, given the flaws inherent in the MSY principle, these 
changes amount to pretzel logic and that has fisheries managers tied in 
a knot.
    In response to the SFA, NMFS published regulations referred to as 
guidelines to assist the management councils in meeting their new 
obligations. In its summary, its response to public comment, and its 
guidelines, NMFS has pledged itself to the MSY principle. In response 
to criticism of its use of MSY, NMFS responds; ``MSY is the key to the 
Magnuson-Stevens Act, even more so than under the former Magnuson Act. 
MSY now constitutes an upper limit on OY . . . NMFS believes that the 
lack of flexibility imposed by ascribing such a fundamental role to MSY 
was clearly an intent of Congress.''
    NMFS also cites Congress' willingness to delete the modifying words 
``long term'' when referring to the capacity of a stock to produce MSY 
and concludes ``(u)nless MSY is established as a strict goal, the 
greatly enhanced benefits anticipated by enaction of the SFA cannot be 
achieved.'' Unfortunately, the only flexibility the Council's had in 
addressing the flaws inherent in MSY was in setting the optimum yield 
over the long term, flexibility which was removed by the Gilchrist 
amendment which states specifically that OY can no longer exceed MSY.
    The flaws of MSY-based management become more apparent when one 
considers the basis of the scientific information used to support the 
fisheries management process. Although perhaps a trite comment or an 
imperfect analogy, it is valid nonetheless to point out that one cannot 
measure the size of a stock of fish as one would count head of cattle. 
The marine environment can be hostile and it is remote. Of necessity, 
fishery stock assessments are statistically driven, sample sizes are 
typically low, and decisions are based on the probability that the 
statistics are right. What this means is that the best science 
available can in reality be nothing more than an educated guess and 
perhaps more often than not derived by seat-of-the-pants methods.
    NMFS recognizes that ``. . . the difficulty of estimating MSY is a 
significant problem that will require the best efforts of NMFS and the 
Council to solve.'' Because MSY is central to SFA management and is 
admittedly imprecise, the consequence of this imprecision is damaging 
to the fishing community. This is particularly so because NMFS 
advocates the risk adverse approach as highly desirable for estimation 
of MSY and the criteria used to set catch targets. Despite the very 
great potential for inaccurate stock assessments and the agency's claim 
that ``(a)llowing for the uncertainty inherent in the estimate of MSY 
is important . . .'' it is my view that neither the SFA nor the agency 
will allow the flexibility necessary to free Councils to consider 
social and economic factors when confidence intervals around MSY and OY 
estimates are low.
    This brings me to the most important point I wish to make today, 
that being the SFA and NMFS guidelines, despite the addition of 
National Standard 8, simply do not allow management decisions to 
consider the social and economic needs of fishing communities. The 
changes made to the definition of optimum yield have reduced economic 
impacts on fishing communities from a relevant factor, which could be 
used to justify an optimum yield, to a subordinate concern. The NMFS 
guidelines allow consideration of the needs of fishing communities only 
as a means of adjusting the rebuilding period and only when that 
rebuilding period is less than 10 years. We are very concerned that, 
unless the balance is restored, it will be impossible to maintain our 
traditional dependence upon the fisheries.
    Senator Snowe, you asked me today to speak specifically to the 
current situation with cod in New England. The current status of 
Georges Bank cod along with the most recent management recommendations 
for that stock provide a good example of the need for flexibility 
within the law to allow the balancing of measurable progress in the 
resource with the needs of fishing communities.
    Five years ago, the New England council took the unprecedented step 
of closing year-round the known spawning areas on Georges Bank. This 
simple principle of providing complete protection to aggregations of 
spawning and juvenile fish has resulted in a 5-year closure of over 
6,000 square miles of world-renowned fishing grounds. As a regrettable 
consequence, many harvesters and processors, including many from Maine, 
who were dependent on the catch from those areas, are now out of 
business. This action also, predictably, resulted in great leaps 
forward in the rebuilding status of Georges Bank cod, haddock, and 
yellowtail. Fishing effort is down, the GB cod stock is rebuilding, and 
the target total allowable catch has increased every year. But because 
annual landings have outpaced the target, additional restrictions on 
fishing effort are mandated. Despite obvious progress, and the 
magnitude of that progress, the principle of MSY simply does not allow 
for recognition of that achievement.
    On the other hand, when it came to Gulf of Maine cod, the council 
simply could not bring itself to ignore the severe economic impacts on 
fishing communities that would result from the restrictions recommended 
to meet the rebuilding schedule. So instead, the council recommended 
and NMFS approved, measures both knew to be inadequate, and to 
compensate included a default mechanism--a lowered trip limit--intended 
to keep landings within the numbers allowed. The conservation goals 
were achieved on paper, but landings have been converted to discards, 
and both the fish and the fishermen must suffer.
    As I said at the outset, we are committed to sustainable fisheries 
and we have willingly made many sacrifices. We have overcome many 
obstacles, and have always found strength through faith in our 
abilities and our community. But the events of the past few years and, 
especially, the potential impacts of the Sustainable Fisheries Act have 
shaken that faith and raised concerns that our community may be changed 
forever.
    Senator Snowe, I urge you to seriously consider the issues I have 
raised here today and implore you to seek the counsel of those with the 
necessary expertise to guide you in that task.

    Senator Snowe. Thank you very much.
    Mr. Hill.

     STATEMENT OF THOMAS HILL, MEMBER, NEW ENGLAND FISHERY 
                       MANAGEMENT COUNCIL

    Mr. Hill. Thank you, Madam Chairman. It is an honor to be 
here today to speak on this important issue. For the record, I 
am a member of the New England Fishery Management Council. My 
past fishing experience was largely related to the recreational 
passenger boat industry in New England. I am testifying here 
today on my own behalf and do not represent the views of the 
Council. In fact my views are significantly diverged from the 
views of many of our council members.
    I think it is difficult to imagine anywhere in the country 
where fisheries management is not as contentious and visceral 
as it is in New England. We have had probably some of the 
greatest controversies in fisheries management in recent 
memory.
    I would like to begin by making the premise that I think 
healthy fish stocks generally ameliorate many of the social and 
economic costs and concerns that are stated in terms of the 
social consequences of tough fisheries regulations. It is the 
goal, in my opinion, of the Act that we maintain and ensure 
healthy fish stocks in order to prevent the social and economic 
dislocations that occur when we have depressed fish stocks.
    On the other hand, it is very difficult to achieve rebuilt 
fish stocks without having social and economic costs. It is 
clear that many of the Council's actions over the past several 
years have been intended to try to avoid the social and 
economic consequences of trying to rebuild overfished stocks. 
In that attempt, the council has used various input controls 
and soft TAC's in order to try to avoid closing fisheries which 
have attendant social and economic impacts on the industry that 
we serve.
    In my opinion, though those measures have been well 
intended, we have exceeded our target TAC's 4 years running, 
which has led to the consequences of the Gulf of Maine codfish 
situation, where we spent the principal, so to speak, in the 
bank of the codfish stocks by allowing ourselves to go over our 
target TAC's on a regular basis.
    There are four separate issues that I think are critical in 
the coming revision that I think would be helpful in the 
council in terms of either technical or biological information 
that will help us to make decisions, in addition to some 
standards that I believe each council ought to be held to what 
I believe will assist the council in focusing its attention on 
the issues that will improve the stock conditions in a way that 
will provide the greatest benefits to the Nation.
    The first is that I believe, as has been mentioned 
earlier--I believe it was by Senator Kerry--I believe in a 
full-scale observer program. It is impossible to manage some of 
these stocks with the level of information that we have. The 
recent revision of the Act required the council to pass 
management plans for all of the stocks under our jurisdiction. 
Many of those stocks have poor or inadequate science.
    In the stocks where we have overfishing conditions, it is 
very difficult to make finite management changes with stock 
information that is a year to 15 months old. We need more real-
time data in order to make critical decisions that are based on 
the best science in order to avoid the kind of social impacts 
that the wrong decision will make. It will strengthen the 
council's ability to be thoughtful and deliberate about our 
decisions and avoid those consequences that I think everybody 
wishes to.
    The second thing I believe that would he helpful and I 
think productive is to work on an industry-based science 
program that assisted the National Marine Fisheries Service and 
other bodies that collect conditions for the council in order 
to have an industry participation that will strengthen their 
faith in the science that we use.
    Third, I believe that the requirement for mortality 
targets, the standards by which we set are often set in terms 
of a 10-year timeframe. In my opinion, it is clearly apparent 
that when you look out into the future in overfished stocks, it 
is very easy for the council to look off into the future and 
delay the significant mortality cuts up front because of the 
social costs.
    My recommendation is that the council should be required to 
establish TAC's for the stocks under their jurisdiction, and 
then to be required to implement regulations that ensure that 
the fish stock targets are met in the fishing year that we are 
fishing in. The overages that we have experienced in fishing 
have taken the principal out of the bank. Just like in a 
business, when you do not have a budget that you live within, 
the following year you have economic consequences that cause 
further cuts in your budgetary process. If you are not careful, 
it leads to bankruptcy.
    In my opinion, that physical discipline is occasionally 
lacking in an environment where the social costs to fish 
mortality reductions have significant impacts in the 
communities that we affect.
    Finally, I believe just as critically that we must address 
the issue of economic and social data collection. We do not 
have adequate data to assess the social and economic impacts 
that fishery regulations have. It is clear to me that the 
Congress intends for us to do the best we can in making those 
decisions and ameliorating those impacts. I must tell you that 
the data is totally inadequate.
    It is clear that the analysis to do so and the difference 
between my Port of Gloucester and the Port of Newberryport both 
have fishing fleets and the impacts of different regulations 
are totally different. The substantive analysis that is 
required to do community-based impact analysis is sadly 
lacking. I urge the Senate, in their deliberations of the 
reauthorization, to address that issue.
    But I think, finally and in closing, that I would suggest 
that even if the council knows what those impacts are, if we 
are clear about what those impacts are, what does that mean in 
a fishery that needs to be rebuilt? Their options are very few. 
That the impacts are clear, the alternatives are few because, 
in rebuilding a fishery that is overfished, there are always 
social and economic consequences.
    My own view is that if we rebuild fisheries as rapidly and 
as straightforwardly as we can, with as straightforward 
regulations as we can, the social and economic benefits from a 
rebuilt fishery outweigh the short-term costs if we are 
deliberate and we do our job and rebuild fisheries and not make 
compromises that prolong the agony of the rebuilding process.
    Thank you, Madam Chairman. I am grateful to be here. I will 
be happy to answer any questions.
    [The prepared statement of Mr. Hill follows:]
    Prepared Statement of Thomas Hill, Member, New England Fishery 
                           Management Council
    Madame Chairman and members of the Subcommittee, thank you for 
inviting me to testify on implementation and reauthorization of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am Thomas Hill, a member of the New England Fishery 
Management Council. I was appointed to this position, based on my past 
experience, to provide the council a perspective regarding the 
recreational fishing sector of New England. I have already served one 
3-year term on the Council and was recently reappointed to a second. I 
would like to make it clear that my testimony represents my personal 
views and that I do not speak on behalf of the New England Fishery 
Management Council. In fact, on many issues, I represent the minority 
view on the Council.
    It is difficult to imagine anywhere in the country where fishery 
management issues are as visceral and contentious as in New England. I 
am a native of Gloucester, Massachusetts, where fishing has been a way 
of life for nearly 400 years. My community's economy and culture have 
been built around its ability to harvest fish from the Gulf of Maine 
and Georges Bank. For many years, it appeared to many that the ocean 
held an endless supply of fish. However, over the last 20 years, due to 
our collective failure in managing the resource, we have observed a 
steady decline in most of our stocks.
    As an illustration of our management policies, the current plan in 
the Gulf of Maine restricts a fisherman to 30 lbs. of cod per trip in 
certain areas. This might amount to a catch of one good fish per trip, 
and potentially results in the discard of thousands of pounds of dead 
fish. Clearly, in too many cases, the council and the fishing industry 
leadership have been more interested in limiting short term social or 
economic impacts than in ensuring the healthy rebuilding of fish 
stocks. The council has been more concerned with the reaction their 
decisions might receive, than in ensuring the effectiveness of the 
fishery management plans themselves. As a result, we have experienced 
greater dislocation than might have occurred if other choices had been 
made.
    I would like to address several issues today that I believe should 
be considered during reauthorization of the Magnuson-Stevens Act. While 
my perspective is based on my experience on the New England Fishery 
Management Council, I feel many of the regional councils face similar 
challenges. In my view, the following issues should be given priority 
during consideration of this legislation:
    (1) Establish a full-scale observer program;
    (2) Develop a cooperative industry-agency science program;
    (3) Allow an average Maximum Sustainable Yield for aggregate 
species;
    (4) Require a performance standard for mortality targets, such as 
setting a hard Total Allowable Catch; and
    (5) Provide for the collection of economic data.
                establish a full-scale observer program
    National Standard 2 in the Magnuson-Stevens Act requires the 
Councils use the best science available. We need information in a 
timely manner to fulfill our responsibilities under the Act. A first-
class observer program that gathers real-time data is desperately 
needed. This should be both required and funded.
    The Act was changed during the last reauthorization to require 
management plans for all the species under the Council jurisdiction. 
For many of these species we have incomplete and sometimes inadequate 
science. We need to ensure that the Council has the best available data 
to make the decisions that are incumbent upon it. This should include 
current assessment information, which should be no more than 6 months 
old. To use data that is 12 to 15 months old (as we now do) to make 
management decisions, undermines the trust and confidence we must have 
with the community to make our decisions. For example, in the recent 
Gulf of Maine codfish situation, if we had had observers on board the 
fishing vessels, we would have known immediately upon opening the 
fishery that we were experiencing high bycatch beyond the limits that 
were set, and the Council could have taken immediate action to avoid 
the ugly aspects that occurred in this debate.
         develop a cooperative industry-agency science program
    Involve the fishing industry in the collection of data where 
possible. Ensure that the development of science needs and the 
utilization of platforms include the fishing industry wherever 
possible. Done properly, the fishermen can have input into the science 
and subsequent rules that will regulate them--it will build confidence. 
The fishermen have hands-on, practical knowledge that a non-fisherman 
will never have. Farming practices would never be regulated without the 
input of farmers. Fishery practices should be provided the same level 
of respect.
    allow an average maximum sustainable yield for aggregate species
    Allow the Councils to manage for the average Maximum Sustainable 
Yield (MSY) for those species that are caught in aggregate. Given some 
thoughtful discussion about the way the language of the Act is crafted, 
Congress could acknowledge the interrelationships of various fish 
stocks and set thresholds for the minimum but not necessarily the 
optimum yield. There are two ways to view this issue:
    First, Congress' intent is that all stocks will be re-built without 
regard for the social and economic costs. As an example, if you are 
using a control on ``days at sea'' as your primary mortality tool, you 
will be setting your days at sea schedule to the lowest common 
denominator of the stock complex to insure rebuilding, since each stock 
in a stock complex must be maintained at optimum yield. You will 
therefore forgo the social and economic benefits that would be derived 
from capturing the other stocks that may be in abundant and in 
excellent biological condition while you try to re-build a single stock 
that is depressed.
    As an alternative, the Councils could be allowed to conduct 
aggregate assessment/management plans for those stocks that are 
interrelated in terms of habitat and likely removal by commercial and 
recreational gear. So on average, the stocks that are involved are 
above the MSY, even though one stock may be below the MSY. This would 
avoid triggering significant restrictions by the Councils and would 
maximize the total yield and therefore the total value of the entire 
fishery. Because the multi-species fish stocks are caught in aggregate, 
we end up managing for the fish stock in the worst condition no matter 
what the economic or social cost with respect to the other stocks. This 
may be a lost opportunity. There needs to be a way to manage for the 
highest aggregate rebuilding, coupled with the maximum economic and 
social benefit.
    Congress could acknowledge this type of stock interrelationships 
and set thresholds for the minimum but not necessarily the optimum 
yield. This issue would require some hard thought to provide a way of 
doing this, but is significant enough to be raised as a concern without 
offering a specific solution.
require a performance standard for mortality targets, such as setting a 
                       hard total allowable catch
    The Magnuson-Stevens Act should require that the Councils set a 
hard Total Allowable Catch (TAC) limit for each species under their 
jurisdiction. Requiring the setting of a hard TAC on an annual basis 
will hold the Councils and industry to a standard of performance 
regarding the setting and meeting of mortality targets. This needed 
discipline will help ensure a clarity of thought and testimony before 
the Council.
    For example, the mortality tools currently used (i.e., trip limits, 
Days-At-Sea, area closures) have allocation implications built into 
them. A given fisherman will support one tool, but not another 
depending on his/her allocation interests, as much as whether it will 
help insure a healthy fishery. In other words, the mortality tools have 
become a surrogate for stock allocations among the various sectors of 
the industry (small boat, big boat, inshore, offshore, etc.) versus 
whether they will insure meeting the mortality targets.
    This change would require that the Councils draft and submit 
Fishery Management Plans that meet the TAC goals within the year in 
question, to ensure that the mortality targets are not exceeded in each 
fishing year. This would avoid the exponential increase in the degree 
of restrictions caused when the mortality targets are exceed by using 
soft targets, as is currently common in many fisheries management 
plans. This then requires more restrictions on the industry in future 
management actions for the following year.
              provide for the collection of economic data
    I find it extremely frustrating that the council does not have data 
that would enable us to incorporate socio-economic information into 
fishery management decisions. The Magnuson-Stevens Act specifies the 
collection of biological, economic, and socio-cultural data to meet 
objectives of the Act and for the fishery management councils to 
consider this information in their deliberations. However, Section 
303(b)(7) specifically excludes the collection of economic data, and 
Section 402(a) precludes Councils from collecting ``proprietary or 
confidential commercial or financial information.'' NMFS should not be 
precluded from collecting such proprietary information so long as it is 
treated as confidential information under Section 402. Without this 
economic data, multi-disciplinary analyses of fishery management 
regulations are not possible preventing NMFS and the Councils from 
satisfying the requirements of the Magnuson-Stevens Act and the 
Regulatory Flexibility Act (RFA).
    Assuming that the council does have accurate socio-economic 
information available, the larger question still remains: ``How does 
the council make changes in proposed management measures if there are 
negative socio-economic impacts forecast for the needed reductions in 
fishing mortality?'' This unresolved issue is at the heart of many of 
the disagreements about policy development in New England today. The 
consequence of taking expedient short term management steps in lieu of 
a long term approach has led to a series of measures which have not 
resolved the biological concerns and in fact have led to severe 
economic and social dislocation.
    Madame Chairman, I would like to thank you for this opportunity to 
comment on the Magnuson-Stevens Act reauthorization. I'm also happy to 
answer questions or provide further information about the positions 
taken by the Council chairmen.

    Senator Snowe. Thank you very much, Mr. Hill.
    Mr. Lauber.

STATEMENT OF RICHARD B. LAUBER, CHAIRMAN, NORTH PACIFIC FISHERY 
                       MANAGEMENT COUNCIL

    Mr. Lauber. Good afternoon, Madam Chairman. Thank you for 
the opportunity for me to offer comments related to the 
implementation of the Magnuson-Stevens Fishery Conservation and 
Management Act. As requested, my comments will focus on the 
implementation of the 1996 amendments, the Sustainable 
Fisheries Act.
    In addition to the provisions which apply to all of the 
Nation's fisheries, there were, as you know, many provisions in 
the 1996 amendments which were specific to the North Pacific 
Council and the fisheries off of Alaska. Beginning in late 
1996, and continuing to the present, the North Pacific Council, 
along with the National Marine Fisheries Service, the Alaska 
region has devoted a tremendous amount of time and energy to 
implementing the provisions contained in those amendments.
    I am happy to say that those efforts have paid off, and the 
implementation of those amendments have improved our fishery 
management process and strengthened the long-term viability of 
an already healthy fishery in the North Pacific.
    I would like to make note of some supplemental materials 
that we have supplied your committee on more detail in what we 
have done. This packet here should have come to you and your 
staff and the other members of the Senate. I hope you will find 
these materials useful, and I believe they will show that we 
have made some very significant progress.
    I would like to speak to the specific things that were 
mentioned in the Sustainable Fisheries Act. One of them was the 
overfishing definitions. Overfishing definitions, according to 
the mandates of the SFA, are now in place for all species 
managed by our council. With the exception of Tanner crab, 
currently managed by the Alaska Department of Fish and Game, 
there are no overfished species in the North Pacific, though we 
actively manage over 100 species or species complexes of 
groundfish and crab. The Tanner crab is the subject of an 
aggressive rebuilding plan drafted by the council, the National 
Marine Fisheries Service and the Alaska Department of Fish and 
Game, which is scheduled for implementation this next January.
    As required, we have developed a comprehensive description 
of essential fish habitat for all species we manage, and are 
now concentrating on identification of habitat areas of 
particular concern, based on ecological functions and 
vulnerability to man-made impacts. I think Dr. Fluharty may 
speak more to that.
    Our council has found the use of marine protected areas to 
be a particularly useful tool for managing bycatch and 
protecting habitat. Vast areas of the North Pacific have been 
permanently closed to groundfish, trawling and scallop dredging 
to protect habitat and juvenile crab. These marine protected 
areas comprise a relatively large portion of the continental 
shelf and, in my respects, serve as marine reserves.
    In the Bering Sea, habitat area closures encompass about 
30,000-square nautical miles. This is an area more than twice 
the size of Georges Bank, off the coast of Massachusetts. 
Bycatch has been a focal issue for our council over its 23-year 
existence. We spend a significant amount of our time addressing 
bycatch management allocation and reduction.
    Since enactment of the 1996 amendments, the council has 
taken specific actions, such as banning on-bottom trawling for 
pollock, established an incremental Chinook salmon bycatch 
reduction in trawl fisheries from 48,000 Chinook salmon down to 
29,000 by the year 2003, and our developing, in cooperation 
with industry, a halibut mortality avoidance program, and 
reducing the maximum retainable bycatch amount for several 
species, including sablefish and rockfish.
    Among the provisions of the SFA is the reduction of 
economic discards. The council has implemented and improved the 
retention and utilization program, which took effect beginning 
in 1998, and which prohibits the discard of all pollock and 
Pacific cod in all North Pacific fisheries, regardless of gear 
type or fishery. This measure has drastically reduced discards 
of groundfish.
    For example, in 1997, about 22,000 metric tons of cod--
almost 9 percent of the cod catch--and 95,000 metric tons of 
pollock--about 8.2 percent of the pollock catch--was discarded. 
In 1998, discards amounted to only 4,300 of cod, approximately 
2 percent, and 16,000 of pollock, about 1.5 percent.
    We also have entered into a total catch measurement system, 
where we are requiring scales in many of our fisheries. We 
have, as you know, a comprehensive onboard observer program 
which, by the way, in my opinion, without such an observer 
program, we would not have had such healthy fisheries. We have 
had observer programs in place for 10 years or longer. We 
commend them. There are problems with them, but they still are 
very, very important to us.
    Madam Chairman, I am cutting my remarks close to reduce the 
time, but I do not pretend that our system is perfect by any 
means or that there is not room for improvements, whether those 
improvements originate with the council or in the congressional 
arena. Our council respects the intent of the 1996 amendments, 
and has worked extremely hard to bring those to pass.
    We also stand ready to respond to any new amendments that 
come out for the pending reauthorization, and to provide any 
input into the process that you require. Thank you, Madam 
Chairman.
    [The prepared statement and information of Mr. Lauber 
follows:]
   Prepared Statement of Richard B. Lauber, Chairman, North Pacific 
                       Fishery Management Council
    Good morning Senators, and thank you for the opportunity to offer 
comments related to implementation of the Magnuson-Stevens Fishery 
Conservation and Management Act. As requested, my comments will focus 
on implementation of the 1996 amendments (the Sustainable Fisheries 
Act), and you will find more detailed comments attached to my summary 
oral comments. Also attached is a copy of the recommendations which 
arose from the Council Chairman's meeting which was held last month in 
Rhode Island. These are consensus recommendations from the eight 
Regional Councils regarding the upcoming reauthorization of the Act. I 
believe these recommendations were provided last week to the House 
Subcommittee on Fisheries, Conservation, Wildlife, and Oceans by Joseph 
Brancaleone, Chairman of the New England Council. I provide these 
collective Council recommendations for your reference and would be 
happy to try and answer any questions related to those recommendations. 
For now however, I will return my comments to implementation of the 
1996 amendments.
    In addition to provisions which apply to all the Nation's 
fisheries, there were as you know many provisions in the 1996 
amendments which were specific to the North Pacific Council and the 
fisheries off Alaska. Beginning in late 1996 and continuing to the 
present the North Pacific Council, along with the National Marine 
Fisheries Service--Alaska Region, have devoted a tremendous amount of 
time and energy to implementing the provisions contained in those 
amendments. I am happy to say that those efforts have paid off, and 
that implementation of those amendments has improved our fishery 
management process and strengthened the long-term viability of an 
already healthy fishery resource in the North Pacific. I would like to 
take this opportunity to toot our own horn a bit and note that the 
North Pacific Council had already initiated several conservation 
related management programs at the time of passage of the SFA, and that 
the amendments therein provided both a mandate to follow through on 
those initiatives as well as a mandate for additional measures. I can 
assure you that the fish harvesters and processors in the North Pacific 
are as dedicated as anyone to preserving and maintaining the health of 
our fisheries and oceans, and we welcome the past and future efforts of 
Congress to provide us the tools to realize that goal.
    I would like at this time to make note of the supplemental 
materials I have provided--you will find these in the white folder with 
our Council logo--which summarize the overall management philosophy of 
the North Pacific Council and provide examples of what we are doing as 
fisheries managers to protect these fisheries, and to incorporate 
habitat considerations and a broader perspective of ecosystem 
management. I hope you find these materials useful and I believe they 
will serve to instill some confidence that we are, with your guidance, 
operating as responsible stewards of our national marine resources off 
Alaska. I would like to speak further to some of the Council's actions 
in response to the provisions of the SFA. Most of those provisions are 
fully addressed by Council actions since 1996 while others are in the 
iterative stages of implementation.
    Again, details on our implementation schedule for all issues 
covered by the 1996 amendments are contained in the attachment that has 
been provided. I would like to spend the remainder of my time briefly 
addressing a few of the specific actions that we have taken to 
implement the mandates of the SFA.
    Overfishing definitions.--Overfishing definitions, according to the 
mandates of the SFA, are now in place for all species managed by our 
Council. With the exception of Tanner crab, there are no overfished 
species in the North Pacific, though we actively manage over 100 
species, or species complexes, of groundfish and crab. Tanner crab is 
the subject of an aggressive rebuilding plan drafted by the Council, 
National Marine Fisheries Service, and Alaska Department of Fish and 
Game, which is schedule for implementation this January.
    Essential Fish Habitat.--As required we have developed a 
comprehensive description of essential fish habitat for all species we 
manage, and are now concentrating on identification of Habitat Areas of 
Particular Concern (HAPC), based on ecological function and 
vulnerability to man-made impacts. Concurrent with that effort will be 
the necessity to evaluate potential impacts of fishing gears and 
implement additional measures as necessary. Our Council has found the 
use of marine protected areas to be a particularly useful tool for 
managing bycatch and protecting habitat. Vast areas of the North 
Pacific have been permanently closed to groundfish trawling and scallop 
dredging to protect habitat and juvenile crab. These marine protected 
areas comprise a relatively large portion of the continental shelf, and 
in many respects, serve as marine reserves. In the Bering Sea, habitat 
area closures encompass about 30,000 square nautical miles. To put this 
in perspective, this is an area larger than Indiana or Maine and more 
than twice the size of Georges Bank off the east coast of the United 
States.
    Bycatch Reduction.--Bycatch has been a focal issue for the Council 
over its 23 year existence and we spend a significant amount of our 
time addressing bycatch management, allocation, and reduction.
    Since enactment of the 1996 amendments the Council has taken the 
following specific actions:
     Banned on-bottom trawling for pollock;
     Established an incremental chinook salmon bycatch 
reduction in trawl fisheries from 48,000 chinook down to 29,000 chinook 
by year 2003;
     Are developing, in cooperation with industry, a halibut 
mortality avoidance program (HMAP); and
     Reduced the maximum retainable bycatch (MRB) amount for 
several species, including sablefish and rockfish.
    Additional measures have been proposed and are awaiting development 
pending other pressing Council issues such as Steller sea lion 
protection and implementation of the American Fisheries Act.
    Waste and Discard Reductions.--Among the provisions of the SFA is 
the reduction of economic discards. The Council has implemented an 
Improved Retention and Utilization Program (IR/IU) which took effect 
beginning in 1998, and which prohibits the discard of all pollock and 
Pacific cod in all North Pacific fisheries, regardless of gear type or 
fishery. This measure has dramatically reduced overall discards of 
groundfish. For example in 1997, about 22,100 mt of cod (8.6 percent of 
the cod catch) and 94,800 mt of pollock (8.2 percent of the pollock 
catch) were discarded. In 1998, discard amounted to only 4,300 mt of 
cod (2.2 percent) and 16,200 mt of pollock (1.6 percent). These rates 
are not 0 percent as might be expected because at certain times of the 
year regulatory discards come into play, which are required to avoid 
exceeding the total allowable catch (TAC). A regulation requiring full 
retention of all demersal shelf rockfish species was adopted in 1999. 
Flatfish retention will be required beginning in 2003--the delay will 
allow for development of new markets and gear technological responses 
by the vessels engaged in these fisheries. These overall retention 
requirements are expected to reduce total discard rates (all species) 
from about 15 percent to about 5 percent.
    Total Catch Measurement.--One section of the SFA requires the 
Council to develop and submit measures to ensure total catch 
measurement in each fishery under our jurisdiction, and to require 
weighing of all fish if necessary. I feel confident when I say that 
North Pacific fisheries are the most tightly managed and monitored in 
the U.S. Between the National Marine Fisheries Service in-season 
management division, the Alaska Department of Fish and Game fish ticket 
system, catch reporting requirements, the U.S. Coast Guard, the NMFS 
Enforcement Division, our comprehensive on-board fisheries observer 
program, and requirements for weighing of fish in many of our 
fisheries, we have a good handle on the amounts of catch, bycatch, and 
discards occurring in the North Pacific. The Council initiated scale 
requirements for some of the pollock fisheries as early as 1994 to help 
tighten catch estimates. In specific response to the mandates of the 
SFA, our Council has undertaken a review of our estimation procedures 
which has included an assessment from the National Marine Fisheries 
Service, an assessment from the Alaska Department of Fish and Game, and 
an in-depth assessment by our Scientific and Statistical Committee 
(SSC) which is comprised of some of the most respected stock assessment 
scientists and fish population dynamics experts in the country. These 
assessments have resulted in suggestions for incremental improvements 
to our existing program, but overall have endorsed our catch 
measurement system as adequate, specifically in reference to the 
mandates of the SFA. The SSC comments conclude with the statement ``In 
many respects, the system in place is better than any found around the 
world''. Additional actions taken by the Council in 1998 include: (1) 
initiation of a requirement for either certified bins or scales in all 
pollock and yellowfin sole fisheries; (2) initiation of a framework 
plan to evaluate and improve catch estimation fishery by fishery; and, 
(3) began a formal process for the SSC to annually review sampling 
methods and catch estimation procedures.
    In summary Madame Chairperson, I do not pretend that our system is 
perfect by any means, or that there is not room for improvements, 
whether those improvements originate in the Council arena or in the 
Congressional arena. Our Council respects the intent of the 1996 
amendments and has worked extremely hard to effect that intent. We also 
stand ready to respond to any new amendments that come out of the 
pending reauthorization and to provide any input into that process that 
you require. Again, I appreciate the opportunity to speak to you today 
on these issues. Thank you.

    Senator Snowe. Thank you very much, Mr. Lauber. The entire 
text of your statement will be included in the record, and all 
additional materials.
    Dr. Fluharty.

         STATEMENT OF DAVID FLUHARTY, Ph.D., RESEARCH 
        ASSOCIATE PROFESSOR, SCHOOL OF MARINE AFFAIRS, 
          UNIVERSITY OF WASHINGTON AND MEMBER, NORTH 
      PACIFIC FISHERY MANAGEMENT COUNCIL, WASHINGTON STATE

    Dr. Fluharty. Thank you, Senator Snowe. I am very happy to 
be here.
    Besides being on the faculty of the University of 
Washington, I also am a Member of the North Pacific Fishery 
Management Council. I had the privilege to chair the Ecosystem-
Based Principles Fisheries Management Panel, which is part of 
the SFA. I believe you received our report in March. If you 
have questions about that, I would be happy to discuss those.
    Today, Senator Gorton invited me to try to cover the span 
of traditional interests of Washington State in fisheries off 
of Alaska and off our West Coast. These include recreational, 
commercial and processing interests in fisheries.
    Essential fish habitat is obviously an important issue. Our 
conclusions, after looking at the first iteration, are that we 
really know remarkably little about the distribution and 
utilization of habitat by life history stage of the managed 
species, and of course much less about the non-managed species.
    Second, based on what we do know, most of the waters and 
substrates within 200 nautical miles are essential habitats for 
some species at some life history stage. That is a fact. It 
certainly is consistent with what the language has told us to 
do. It does not mean we cannot refine it.
    Concern continues to exist over consultation requirements 
in the Pacific and North Pacific Council areas, where you have 
extensive salmon, ESA and Steller sea lion ESA consultations. 
Those have essentially trumped any of the activities by the 
National Marine Fisheries Service with respect to consultation. 
So we do not know really how it is going to work. But I think 
that, as Ms. Dalton mentioned, it will work in a coordinated 
way.
    But what is really clear to us is that the most important 
reason for maintaining efforts to further define and refine the 
essential fish habitat measures, if we do not pay attention to 
habitat, then other places will be in the same management 
straits that we are with managing endangered species. We really 
do need to monitor habitat very carefully, to avoid surprises 
in the management of our fisheries.
    Councils in our region have yet to identify and take 
comprehensive action concerning fishing effects on fish 
habitats. However, that should be seen in the context of 
measures that have already been taken, such as those Chairman 
Lauber mentioned.
    As a component of essential fish habitat, the tool of 
designating marine reserves for fisheries has long been part of 
our fishery management, and we expect that it will expand in 
the future.
    As I mentioned, the Ecosystem-Based Fisheries Report has 
come out. We feel that some of the recommendations can be very 
helpful in refining the way that essential fish habitat is 
implemented, particularly the concept of a fisheries ecosystem 
plan that might be considered.
    With respect to overfishing, the North Pacific, as Mr. 
Lauber mentioned, has been very successful at using an MSY-
based TAC since 1977. We feel that careful application of that 
approach is a key to our success. In the Pacific Fishery 
Management Council, the biggest issue there is how to manage 
what has been managed as a species complex of over 60 species 
of rockfish under the new overfishing definitions. They have 
been struggling with that mightily.
    One of the most difficult parts of the implementation of 
the overfishing definition is the assessment of all sources of 
mortality. The Pacific Council is desperately interested in 
having the option of an observer program, either federally-
funded, or by giving the Council authority to levy fees in that 
region.
    Rebuilding plans, we have made significant progress in 
bringing those into effect. Some of our concerns are technical, 
relating to the 10-year timeframe. But the important part, we 
feel, is that we have started and we are moving ahead to 
rebuild those fisheries.
    The North Pacific, as mentioned, has some of the best data 
on bycatch over the years, through its extensive observer 
program. In the Pacific Marine Fisheries Council area, they are 
less known, and therefore we have a significant problem in even 
estimating progress against the SFA requirements to reduce 
bycatch. We also have problems that are occasioned by ESA-
listed stocks of salmon that require special efforts to monitor 
and to contain interceptions of the wild stocks for which we 
are trying to cause recovery.
    One of the concerns among the fleets is over the 
interpretation of minimization of bycatch. The basic feeling is 
that where it imposes cost over and above the biological and 
conservation benefits, then it becomes a punitive measure.
    There is very strong interest on the West Coast in 
management measures that will deal with problems of 
overcapacity. Our efforts to work on license limitation and 
setting moratoria on new entry in fisheries are insufficient 
for managing a number of the fisheries. Notably, for example, 
would be the Bristol Bay red king crab fishery that takes place 
in the winter. The race for fish there creates some very 
hazardous conditions that cannot be solved by license 
limitations alone.
    Also the SFA, the ITQ report by the National Research 
Council, we think, is very beneficial, and provides some 
information for how to proceed to reduce fishing capacity. 
Under the American Fisheries Act, which was passed last year, 
with leadership from members of this committee, a new approach 
dealing with fishing cooperatives has been set up and has 
worked the first year. Based on the information we have so far, 
it has been extremely successful.
    Other co-ops are in the process of being formed at the 
present time. There is a great deal of interest in other 
sectors of our fishing industry to see how these co-op 
agreements might work for them. So this is a new and innovative 
approach that is there.
    I would close by stating that with respect to safety 
requirements, we are still struggling how to implement them. We 
know that we have some of the worst cases to deal with. We 
really feel that it is an integrated approach that will be most 
necessary--one that combines flexible choices among fishermen 
for effort reduction, with a decrease in the race for fish.
    Finally, we would second the recommendations on social and 
economic information. This is notwithstanding what Senator 
Stevens said about the excellent information that is gathered 
in the State of Alaska. We, frankly, in the States of 
Washington and Oregon, have less well-documented fisheries. 
Many of the kinds of things that we need--proprietary data, 
obviously properly taken care of for privacy concerns, are 
really necessary. In major decisions on inshore or offshore and 
looking into the ``community'' national standards, we lack the 
actual data that we need, both economic and social information.
    Thank you.
    [The prepared statement of Dr. Fluharty follows:]
  Prepared Statement of David Fluharty, Research Associate Professor, 
           School of Marine Affairs, University of Washington
    Thank you for the opportunity to testify on the implementation of 
the Sustainable Fisheries Act (SFA) amendments to the Magnuson-Stevens 
Fishery Conservation and Management Act (MSFCMA). I am David Fluharty, 
Research Associate Professor, School of Marine Affairs, University of 
Washington and a member of the North Pacific Fishery Management Council 
from Washington State. I speak in my personal capacity as an analyst 
(1) and participant in fisheries management, however, in preparation of 
this testimony, I have consulted with others (2), especially with 
respect to implementation issues before the Pacific Fishery Management 
Council. I had the privilege to Chair the National Marine Fisheries 
Service (NMFS) Ecosystem Principles Advisory Panel requested under the 
SFA (Section 406 MSFCMA). Our report entitled, ``Ecosystem-Based 
Fishery Management'' (3) was delivered to Congress in March 1999. I 
presently serve on the National Research Council, Ocean Studies Board, 
Committee on the Evaluation, Design and Monitoring of Marine Reserves 
and Protected Areas in the United States.
             general context for sfa implementation issues
    The Sustainable Fisheries Act amendments to the Magnuson-Stevens 
Fishery Conservation and Management Act were major steps forward toward 
solving many of the problems in U.S. fisheries management. Congress 
clarified and strengthened its directives to the NMFS and the Councils 
to end overfishing, rebuild stocks, reduce bycatch, protect fish 
habitat, reduce conflict of interest and establish user fees. Congress 
intended reform. Conservation came first and fishery management was 
intended to become more precautionary. I believe that fishery 
management institutions are responding.
    In the scant two and a half years since enactment, implementation 
of the SFA is happening at a pace limited by three factors:
    First, is the limit of the capacity of a large fishery management 
institutional system to make rapid change in a democratic and open 
process. I believe that NMFS deserves a fair amount of credit for 
organizing itself for implementation. Within weeks after the passage of 
the SFA, Councils were given marching orders in letters from the 
Director, Rolland Schmitten and NOAA General Counsel. Not everything 
could be accomplished at once. Priorities were established and then 
reestablished as regulatory processes bogged down. Still, I would argue 
that as much of what Congress intended was implemented in a short time 
under the SFA as in 1976 when Federal management for the 200 n.mi. zone 
was established. Much still remains to be done. Continued support and 
oversight by Congress is a necessary component of staying the course.
    Second, is the limit of the available resources for management. Few 
tasks were removed from management responsibility by the SFA and 
enormous tasks were added. Congress did increase funding in later 
budgets, but, as with all legislative mandates, ``Was the increase in 
budget and employees commensurate with the increase in tasks?'' Besides 
the SFA, other Federal fishery management responsibilities affected the 
implementation work loads of the Councils and NMFS in the Pacific West 
Coast. More species of salmon were listed as threatened or endangered 
under the Endangered Species Act (ESA). Similar ESA issues were raised 
with respect to Steller sea lions and the Short-tailed albatross. The 
adequacy of the environmental impact assessment under the National 
Environmental Policy Act (NEPA) was challenged with respect to 
groundfish management. Finally, as members of this committee know, the 
passage of the American Fisheries Act (AFA) 1998, set in motion 
extensive reduction in fishing effort and rationalization of pollock 
fisheries in the North Pacific. Implementation of ``sideboard'' issues 
to prevent spillover effects into other fisheries has been a major 
focus of fishery management.
    Third, is the limit of our understanding of the fisheries and their 
interrelationships with ocean and coastal processes as well as other 
ecosystem components. This is to be distinguished from the failure to 
use the scientific knowledge and common sense that we do have 
available. It is not an excuse for inaction, nor is it a defensible 
formula for regulatory choices.
    Actions that are being taken now may not show results for some 
time. Like a large ship, turning to a new course is not instantaneous. 
But the course is set. And the Councils with which I am most familiar, 
the North Pacific and Pacific Fishery Management Councils, have gotten 
the message. Much has been accomplished to implement the SFA and this 
is turning fishery management toward a more sustainable pathway. This 
should not be forgotten as we continue to implement other parts of the 
SFA.
                     specific implementation issues
    In the interest of brevity, these issues are presented in a series 
of short paragraphs without extensive documentation. (4) I would be 
pleased to answer questions or supply additional documentation as 
needed. The order of presentation is a focus on the fisheries 
environment issues and then moving to socio-economic and allocation 
issues. I have sought to avoid making recommendations for resolving 
these issues as I understand the Committee's focus for this hearing is 
on implementation.
                      essential fish habitat (ehf)
    The SFA requires that Councils become much more serious about 
habitat issues than before. For managed stocks, i.e., those under a 
fishery management plan (FMP), Councils are to designate essential fish 
habitat considering all life stages and, through new consultation 
requirements, manage to reduce impacts from other ocean uses. In 
addition, Councils were required to consider the effects of fishing on 
habitat. This latter emphasis is a new focus and one for which Councils 
and NMFS have the least information and preparation to implement.
    NMFS worked extremely hard and quickly to develop regulatory 
guidelines to implement EHF and to initiate teams at the regional 
levels to pull together and evaluate information. Some scientific 
issues were raised about the original guidelines and many of these were 
resolved. More serious challenges to the guidelines, in concept, came 
from other potentially affected parties in the mining, forestry, 
agriculture and water resources management arenas. This delayed the 
final regulations, but the job did get done. The two important 
conclusions that I believe came from this effort are: (1) despite, 
significant long term scientific study, we know remarkably little about 
distribution and utilization of habitat by life history stage of the 
managed species [and much less about non-managed species]; and (2) 
based on what we know, most of the waters and substrates within the 200 
n.mi. Exclusive Economic Zone (EEZ) are essential habitats for some 
species at some life history stage. Some find fault with the definition 
of essential fish habitat by the Councils as being too encompassing, 
but I argue, the onus is on them to demonstrate their position given 
the language of the SFA. Habitat is important for fisheries management.
    These results and the documents identifying EFH do several 
important things. They establish a baseline of knowledge from which to 
build. This should help to prioritize research. They show the necessity 
to gain a better understanding of time/space scales in fisheries in 
order to develop appropriate fishery management approaches that take 
these factors into account. They point out the iterative nature of the 
task, i.e., to continually develop and apply better understanding of 
fish and their habitats. Perhaps most important, is that expanded 
effort and expenditure of resources on better defining the habitat 
needs of fish is critical to avoid more serious management issues under 
the ESA and to avoid ``surprises'' in the management of fisheries.
    Concern continues to exist over the EFH consultation requirements 
that the SFA advises for all fisheries and requires for anadromous 
species. To some these requirements are simply redundant to other 
regulatory processes (NEPA, Fish and Wildlife Coordination Act, ESA, 
etc.) where fishery management agencies have long held a commenting 
role. Others consider the requirements impractical and beyond the 
resources of fishery management if any but the most significant 
projects affecting habitat are brought forward for consultation. In 
fact, experience, so far, indicates that the Councils and NMFS in the 
NE Pacific region have not involved the consultation provisions. NMFS 
has continued its normal role of commenting in other processes. It has 
assumed a major role regarding Section 7 consultations with respect to 
ESA processes for salmonids and the ESA trumps the EFH under such 
circumstances. Thus, the EFH consultative provisions do not appear to 
be another layer of bureaucracy. However, this could change if the 
implementation approach is challenged and that is the worry.
    The aspect of implementation of the SFA provisions for EFH that is 
least complete is for Councils to identify and take actions concerning 
fishing effects on fish habitats. In the North Pacific and Pacific 
Council regions, very little study of benthic impacts of fishing has 
been done. Since passage of the SFA, efforts have increased but the 
task is almost overwhelming and the resources are undoubtedly 
inadequate for the task. This failure to take new, comprehensive 
actions under the SFA requirements, as is being urged in legal actions 
at present, should be seen in the context of efforts, [some before and 
after the SFA took effect] to reduce benthic impacts of fishing. In the 
North Pacific region, more than 15,000 sq. n. mi. in the Bering Sea are 
closed to bottom trawls to protect red king crab habitats, reduce crab 
bycatch and to reduce gear conflicts. In the SE Gulf of Alaska a much 
larger area is closed to bottom trawls. Numerous other fisheries gear 
closure areas exist. In addition, the requirement to use midwater 
trawls in the pollock fisheries lessens benthic impacts as well. This 
is not to argue that the Council's work is done but to remind that we 
are not starting from a blank slate. In the North Pacific region, work 
is underway to develop a systematic approach to identification of 
Habitat Areas of Particular Concern as expected under the EFH 
guidelines.
                       ecosystem-based fisheries
    The National Marine Fisheries Service (NMFS) Ecosystem Principles 
Advisory Panel established under the SFA (Section 406 MSFCMA) reported 
to Congress as noted above. The NMFS is in the process of implementing 
the portions of the recommendations that can be done under existing 
authorities. The Report makes recommendations to Congress on how to 
build off of the work done under the SFA (especially EFH) using the 
concept of a Fishery Ecosystem Plan (FEP). Ecosystem-based fishery 
management is not a substitute for good fisheries management. The full 
implementation of the SFA is a prerequisite to the development of 
ecosystem-based fishery management.
                            marine reserves
    As noted above, extensive areas have been designated in the North 
Pacific (4) to control impacts of fisheries on habitat, reduce bycatch 
and to minimize gear conflicts. The tool of designating marine reserves 
for fisheries has long been part of fishery management and it is likely 
that it will be used more in the future. NPFMC is developing a 
systematic way to evaluate areas for consideration. The PFMC has 
established a committee to advise it on how marine reserves can be used 
in fishery management. It expects to initiate actions in the fall of 
1999. The National Research Council, Ocean Studies Board, Committee on 
the Evaluation, Design and Monitoring of Marine Reserves and Protected 
Areas in the United States has met three times and is hard at work 
drafting its report [Draft expected by April/May 2000]. This study, 
sponsored by the NMFS and other agencies, should result in extensive 
information on use of marine reserves in fishery management and for 
other purposes. My impression of the West Coast fishery management 
institutions is that they are actively interested in how to use marine 
reserves in fishery management. They are keenly aware that such areas 
must be part of an integrated approach to fishery management. There is 
considerable concern over the frequently advanced view that large no-
take reserves are a substitute for fishery management. Full 
implementation of the SFA measures will go a long way toward resolving 
the fishery management failures that critics can so easily point out. 
Marine fishery reserves should be employed for fishery management 
purposes where they are the most effective and reliable approach to 
achieving the goals and objectives defined. [There are, of course, 
other marine management goals and objectives that can be served by 
marine reserves].
                              overfishing
    Probably the most fundamental shift in the SFA was the requirement 
that MSY not be exceeded for any reason. While this seems like it 
should be an obvious tenet of fisheries management, Councils and NMFS 
were permitted to exceed MSY for socio-economic and other reasons in 
the earlier versions of the MFCMA. The new overfishing definition had 
to be worked out and placed in regulations. This delayed somewhat, its 
application in TAC setting until 1999. The new definition clarifies 
that all sources of fisheries mortality (including bycatch, discards, 
and estimates of unobserved mortality) should be counted against the 
Total Allowable Catch calculated around MSY. Fishery science has long 
regarded MSY as a crude measure and one that is not necessarily 
conservative because of its focus on ``maximum'' yields as opposed to 
long term sustainable yields. The regulatory definition goes quite far 
to incorporate more modern fishery reference points than straight MSY 
but the question remains as to how conservative it is and how useful it 
is to apply universally.
    In the NPFMC area, conservative TACs have been set since 1977 so 
the new definition continues existing practices. The one species that 
falls under the new overfished definition is a species of crab for 
which the directed fishery has been closed for several years. Some 
discussion exists that there may be a need to examine how appropriate 
MSY is for management of crab species where recruitment and survival 
appear quite sensitive to ocean regimes as well as fishing pressure. 
This is a technical issue that can be resolved by stock assessment 
biologists given sufficient flexibility in the interpretation of the 
law.
    For the PMFC the biggest issue in this respect has been how to 
implement the overfishing definition on its multi-species rockfish 
fisheries (nearly 60 species previously managed as a species complex). 
The overfishing definition applies to species and not to species 
complexes. Thus, there has been a major effort to work out 
scientifically how to implement the regulations and the species-by-
species approach has radically reduced the TACs and fishing patterns 
have been altered. One of the most difficult parts for implementation 
is the assessment of direct and estimation of non-direct mortalities 
where there is not an observer program to gather reliable data across 
the fleet. PMFC is desperately aware of this problem and is working 
with members of this Committee to resolve it. There are further 
complications in managing this fishery because of the difficulty of 
using trip limits to accomplish management objectives. This appears to 
result in high regulatory discards and possibly in high grading of 
catches.
                            rebuilding plans
    Implementation of rebuilding plans is necessarily downstream of 
determination if a fish stock is overfished. Thus, rebuilding plans on 
the West Coast are lagging behind the SFA mandated schedule in terms of 
implementation. Significant progress has been made and these plans will 
go into effect in the near future. SFA has set in motion the kinds of 
actions intended to reverse downward trends in some fish stocks. For 
some species, results cannot be expected to be seen within a 10-year 
time period due to the long life spans and slow recruitment into the 
fisheries (e.g., rockfish). For species dependent on special 
environmental conditions beyond the control of management, a similar 
problem exists with the specification that the plan causes recovery 
within 10 years. The most important effect of this provision of the SFA 
is that it forces Councils and the NMFS to focus on rebuilding the 
stocks once overfished.
                                bycatch
    With the addition of a new National Standard, SFA requires Councils 
and the NMFS to ``minimize'' bycatch to the extent practicable, and, 
with respect to the NPFMC, sets a requirement for successive reduction 
of bycatch annually over a period of 4 years. NPFMC probably has some 
of the best data on bycatch over the years because of its extensive 
observer program. These bycatch amounts have been counted against the 
TAC for a considerable period of time and relatively little biological 
impact is attributed to it by the Plan Development Teams and by the 
Scientific and Statistical Committee of the Council. Bycatch of 
prohibited species (mostly high value species caught in other fisheries 
like salmon, herring, halibut) is closely monitored and, in some cases, 
this has led to a closure of a fishery before the TAC of the target 
species was caught. Thus, there has been a responsible management of 
bycatch to avoid conservation and economic concerns in the NPFMC area. 
To the extent that ``minimization'' of bycatch imposes costs over and 
above the biological benefits, it becomes a punitive measure in the 
eyes of the fishing fleets. Reducing bycatch commensurate to 
biological, conservation and economic realities is seen as a reasonable 
approach whereas minimization for the sake of minimization is not. It 
all boils down to the interpretation of ``to the extent practicable''.
    NPFMC has reduced its total bycatch by approximately 50 percent in 
on set of management actions taken just prior to the SFA amendments but 
implemented after the SFA. It required that all non-prohibited species 
of bycatch be retained and utilized under its Improved Retention/
Improved Utilization amendments to the groundfish FMP for cod and 
pollock. Some objected to this being considered as bycatch reduction 
and instead, called it a sleight of hand because the same fish were 
caught but simply re-categorized as utilized. The difference was that 
they were no longer discarded. This points to the conflict among 
fishery management objectives that promote utilization and those that 
call for minimizing bycatch. A common sense approach is needed to 
ensure that where there is not a discernible biological or conservation 
impact, utilization would seem a more important objective than bycatch 
reduction. To further complicate matters, some insist that utilization 
of fish for purposes other than human consumption is inappropriate even 
if profitable. Again, a common sense clarification is necessary along 
with what is outlined above.
    Further actions by the NPFMC have aimed at reducing bycatch but 
these have not been as dramatic in effect as the earlier measures. They 
have probably resulted in a reduction in bycatch in each of the 
subsequent years but it is difficult to track completely. This points 
to the need for flexible options for bycatch reductions, rather than a 
target schedule, as effective ways to reduce bycatch. In the same 
amendment that produced large reduction in bycatch in pollock and cod 
fisheries, NPFMC adopted the goal of IR/IU for yellowfin sole and rock 
sole in 5 years from date of approval to allow the industry to adapt 
gear and equipment to accommodate the acknowledged changes that would 
be necessary.
    In the PFMC region bycatch amounts are less well known because of 
the lack of an observer program over the full range of fisheries. To be 
certain, some management measures like trip limits and regulatory 
discards from them, make implementation difficult. Problems with 
interceptions of ESA listed salmon runs and a general management 
concerns over other depleted stocks have led to greater efforts to 
restrict time and fishing areas to those with the least interceptions 
and/or highest degree of catch of hatchery fish. This has had major 
impacts on all salmon fisheries but especially on coastal charter 
fisheries and commercial troll fisheries.
    I am convinced that a necessary component of bycatch reduction 
measures is bycatch allocation and monitoring at the vessel level. 
NPFMC efforts from its Vessel Incentive Program (VIP) demonstrate this. 
Effective use of such a measure at the vessel level is complicated by 
due process limitations and by concerns that such allocations represent 
individual quotas not allowed under the SFA moratorium on IFQs.
                         reducing overcapacity
    The SFA and concomitant measures under ESA for salmon have resulted 
in some buyback programs for fisheries in economic crisis in the PFMC 
region. Obviously, the long term goal is to have healthy fisheries and 
fishing industries. The SFA measures discussed above are setting the 
stage for that scenario.
    One of the keys to successful implementation of fisheries 
management measures is providing the right kinds of incentives to 
fishermen to do what is needed. When the fishing industry can see the 
justification for and reap the benefits of management measures, they 
can more readily accept additional costs to achieve them. If the 
benefits are not spread too thinly, fishing interests are much more 
likely to be able to afford the sometimes costly measures required to 
achieve management goals. On the West Coast, fishery managers and 
fishing interests are eager to embrace a variety of programs that would 
reduce the amount of fishing capacity. In this regard, the SFA provides 
for the use of industry-funded buyback programs. However, the Federal 
regulations for this approach are yet not approved, despite pleas from 
some segments of the fishing industry and interventions by some members 
of this Committee. This delay in developing regulations has impeded 
industry actions to develop such programs.
    The SFA moratorium on IFQ programs has set back Council development 
of IFQ plans in several cases on the West Coast. Because of its 
concerns about the use of IFQ programs, Congress requested that the 
National Research Council report on use of IFQs in fisheries 
management. That report was released earlier this year. It finds that 
IFQs and similar measures should be in the fishery management toolbox 
for use where they are determined to be appropriate at the regional 
level, and where they are properly conditioned to avoid mistakes and 
unintended consequences of some previous efforts. This sparks interest 
in reviving in that mechanism.
    Since passage of the SFA, fishery management Councils have 
continued efforts to limit access to the fisheries through moratoria on 
new entry and through license limitation programs. While these measures 
are important in and of themselves, they do not address the underlying 
issue of too much active and latent capacity in the fishing fleet. For 
some fisheries, like Bristol Bay red king crab, the race for fish under 
very hazardous conditions cannot be solved by license limitation alone. 
Management problems, too, are considerable in such a short duration, 
high intensity fishery. It is my impression that market-based choices 
by fishing entities to exit or remain in a fishery relieve the Councils 
of this onerous task and are more likely to be viewed as fair than any 
formula that might be designed by a Council process. These choices are 
served by a variety of effort limitation mechanisms, including 
industry-funded buyback programs, IFQs, etc.
    Since the passage of the SFA, one of the most innovative 
developments in capacity reduction is the formation of a Pacific 
whiting fishing cooperative that significantly reduces the number of 
vessels competing for a specific allocation of the Pacific whiting 
catch in the Pacific region. In 1998, a similar cooperative approach 
was enabled through passage of the American Fisheries Act (AFA) with 
leadership by members of the Committee. Already pollock fisheries 
cooperatives have formed among the at-sea processors and the catcher 
vessels delivering fish to them. Similar efforts are underway for 
catcher vessels delivering to onshore processors as one of the 
alternatives allowed by the AFA. The cooperative approach is being 
observed favorably by other fishing sectors and it is likely that other 
efforts will be made to form them. The benefits of increased recovery 
rates, reduced bycatch and increased ability to produce high value 
products, as opposed to high volume products, appear to be realized. 
The environmental costs of operating redundant fishing capacity, the 
ending of the ``Olympic-style'' competitive race for fish, the losses 
to net economic benefits, and the social benefits of more stable 
fishing opportunities at increased returns all point in the right 
direction from the cooperative approach.
                      national standard for safety
    Two new national standards were promulgated under the SFA--for 
bycatch (discussed above) and for fishing safety. With respect to the 
national standard for fishing safety, it does not appear that 
significant changes are being made to implement it in FMPs. The 
willingness of fishing entities to take risks seems highly correlated 
with the economic incentives to race for fish in high value, low 
volume, short duration fisheries. Management measures that allow more 
flexibility in choices of when and how to fish without competing for a 
share of the fish, seem most favored by the participants in such 
fisheries. Market-based and cooperative mechanisms are likely to 
develop the innovations to vastly improve decision making with respect 
to risk. In addition, fishing operations that are profitable are able 
to maintain vessel systems and retain qualified crew members--all of 
which contribute to but do not guarantee safety of fishing.
        national standard definition of fishing communities and 
                       socio-economic information
    One of the realizations of efforts to implement the fishing 
community definition was that socio-economic data gathered by states 
are woefully inadequate for fishery council deliberations. Almost no 
socio-economic data is collected on fishing entities (despite 
willingness of industry to provide them) that is sufficient for 
management decisions. This means that even qualitative judgments are 
hard to make. Implementation of a scientifically sound policy with 
respect to fishing communities requires a significant new effort to 
obtain them on a routine basis and this implies a need for budgetary 
support.
                              other issues
    Two issues of particular concern for West Coast fisheries are the 
development of an observer program and the continuation State 
management authority for Dungeness crab in Federal waters off 
Washington. Whether the observer program is based on fees collected 
from the fleet or general appropriation is a matter to be decided, as 
well. Without an observer program it is nearly impossible to make 
measurable progress toward bycatch reduction or the monitoring of 
discards or high-grading. The ability of the State to continue to 
manage Dungeness crab in Federal waters is particularly important given 
its co-management agreements with Native American tribes under Treaty 
obligations. This option has been implemented quite successfully under 
the SFA and makes the management approach inside State waters and in 
Federal waters a more coherent and consistent one.
    In the SFA, there were a variety of other reports on such things as 
lien registries for fishing vessels and reduction of subsidies in 
fishery management. Based on anecdotal reports these studies are 
progressing but not yet complete. These reports are needed links in 
developing more innovative and sustainable fisheries under the SFA.
                                 notes
    1. See, for example, Fluharty, David. 1996. ``Magnuson Fishery 
Conservation and Management Act Reauthorization and Fishery Management 
Needs in the North Pacific Region.'' Tulane Environmental Law Journal. 
Vol. 9:2 Summer 1996. Pp. 301-328.
    2. Preparation of this statement included discussions with a number 
of people in the ``Council families'' of the North Pacific Fishery 
Management Council and the Pacific Fishery Management Council. NPFMC: 
Rick Lauber, Chairman; Clarence Pautzke, Executive Director; Dennis 
Austin, Council Member, Washington Department of Fisheries and Wildlife 
(WDFW); Wally Pereyra, Council Member; Arni Thomsen, Alaska Crab 
Coalition; Paul MacGregor, Jim Gilmore, Trevor McCabe, At-Sea 
Processors Association; Tom Casey, Alaska Fisheries Conservation Group. 
PMFC: Larry Six, Executive Director; Phil Anderson, Council Member 
WDFW; Bob Alverson, North Pacific Vessel Owners Association and Council 
Member; Rob Zuanich, Purse Seine Vessel Owners Association. The press 
of time did not allow for contact with processors, tribes, and many 
other interests.
    3. http://www.nmfs.gov.sfa/reports.html
    4. This presentation is coordinated with that of Rick Lauber, 
Chairman, NPFMC in order to avoid repetition. Materials supporting his 
presentation are incorporated by referenced herein as well.

    Senator Snowe. Obviously that is an issue that has been 
raised consistently by many of the witnesses here today and in 
my discussions with others in the industry. What should we do 
in this reauthorization process to ensure that the essential 
data is collected and is done in order for the councils to make 
the best decisions possible? I know that you have mentioned it. 
Mr. Hill has mentioned it. We have had others. How recent 
should that data be? Because Mr. Hill said I think that it is 
as old as 1 year to 15 months. How updated should that 
information, how recent, can it be and should it be?
    Dr. Fluharty. Senator Snowe, I think the best 
recommendation, the most telling that I have seen and I think 
where the most work is being done, comes out of the council 
chair recommendations to this committee. I think Mr. Lauber has 
appended those to his remarks. So, in terms of the detail, I 
think there is a committee of the councils that is working on 
sort of a more uniform approach that would perhaps provide that 
kind of information.
    But it really gets at who is doing what, when. One of the 
problems that we have is obviously the time lag in obtaining 
these data. So I do not know that we are going to be able to 
get them in any real-time sense. That, coupled with the 
problems of dealing with the changing fisheries is another 
problem. So that much of our data base is out of date relative 
to the way that the fisheries are being prosecuted, say, in 
1999 compared with 1998.
    So there are a number of data problem areas that we 
probably will not be able to overcome. But getting a time 
series about social and economic information that is similar to 
what we have for biological data on fisheries is, I guess, the 
simplest way that I know to express what we need.
    Senator Snowe. Mr. Lauber.
    Mr. Lauber. Senator, I have been a chairman for a number of 
years, and therefore have been somewhat involved with and 
talked to a number of other council members and chairmen from 
other areas. Everything, of course, that Dr. Fluharty says is 
correct. We always can use better and we can use more timely 
information. But I have the feeling that the North Pacific 
Council has always had better data than many of the councils, 
if not most or all of the other councils. More recently, 
because of our observer programs, we have had a lot better data 
on bycatch, discards, waste, that type of thing, better catch 
estimates in the round, before they were processed, that type 
of thing.
    Now, we may suffer from some of the same problems that 
other councils have on social and economic data, but even there 
I think we have gone a long way, because some pressing issues 
that we have had have caused us to collect through other means, 
private sources, whatever, contracts, some of that data, on a 
case-by-case basis. But probably the reporting system and the 
observer program have made it much easier for us than a lot of 
the councils are experiencing, because they just do not have 
access. In many cases, they do not really know how much is even 
being caught. Certainly they do not know how much is being 
discarded.
    Senator Snowe. Has that been a decision that has been made 
unilaterally by the North Pacific Council with respect to the 
observer program?
    Mr. Lauber. Yes. The original observer program was by us. 
The one in existence today is strictly a North Pacific observer 
program and is totally funded by the industry. We actually, a 
few years ago, had an amendment to the Magnuson Act then that 
called it the North Pacific Research Plan. Quite frankly, we 
called it that because, to some areas of the United States, 
observers were such a bad word that we did not want to use the 
word ``observers'' when we put it into effect. When it became 
law, we have not implemented under that law for various reasons 
of no concern to this meeting. But we put in our own observer 
program many years ago. To us, it seemed like a logical thing 
to do.
    Now, I do not mean to say that every single vessel that 
take every catch is observed. Very briefly, all vessels over 
125 feet are observed. Those 125 feet to 160 feet have 30 
percent observer coverage. This gives us a wealth of 
information.
    In the CDQ fishery, we have two observers on each vessel.
    In the new American Fisheries Act, on factory trawlers, 
there will be two observers aboard each vessel. So we have a 
pretty extensive observer program.
    Senator Snowe. Do you think that is the most effective 
means of gathering information?
    Mr. Lauber. Well, yes, it is. Of course, you do not rely 
just upon the observer program, as well. We have other things 
that supplement that. But one of the things that we have found 
is that the observer program collects the data, but the more 
important thing is that it gives a degree of confidence to not 
only the council, but to other fisheries that are involved that 
the bycatch numbers are in fact correct or close to being 
correct. They still quibble or think somebody is pulling 
shenanigans, of course. You know how fishermen would be. But 
for management purposes at least, the data is very good data.
    Senator Snowe. Plus, it involves the fishermen themselves. 
They are involved. It gives them more confidence in the 
outcome.
    Mr. Lauber. Yes.
    Senator Snowe. I guess it is as recent as you can get, 
because they had a chance to observe onboard what is happening.
    Mr. Lauber. Well, we do not have instantaneous data. We are 
working toward that. Senator Stevens made some reference to 
data reporting and the problem. This is a unique problem, 
obviously, in Alaska, where the National Marine Fisheries 
Service is preempting the State program. I think that Senator 
Stevens is correct in that.
    Senator Snowe. I do not know if that would go over well.
    Mr. Lauber. That needs to be looked into. I have a sneaking 
suspicion that since the Senator brought it up, it will be 
looked into.
    Senator Snowe. Right. That would not go over well in Maine, 
I can assure you.
    Mr. Hill and Ms. Raymond.
    Mr. Hill. Thank you, Senator.
    Just a couple of brief points. In my written testimony, 
there are several sections of the Act that exclude the 
opportunity of the councils or the National Marine Fisheries 
Service from collecting data from processors and proprietary 
information. It would seem to me if that data is handled in an 
appropriate manner, it would be helpful for the councils and 
the Service would be able to have access to that in order to 
make these decisions.
    I think also it is critical to point out that the kind of 
data that is necessary to make the kind of social assessments 
that you are talking about, that you have raised during your 
comments, it is fairly finite. The difference between Portland, 
Maine, and Gloucester is fairly significant in terms of the 
impacts. It would be helpful to have a time series of data 
between gear sectors, vessel sizes, communities themselves 
where the fish is landed.
    When we go to try and make allocation decisions or when we 
are trying to make decisions of the reduction of mortality and 
how that is fairly attributed to the different participants 
within the fishery, the kind of data we are talking about, at 
least lends an air and a sense of credibility to the decisions 
that are made. When they are made in a vacuum of--I will not 
call it ignorance, but when the data is really weak, it leads 
to very strong suspicions that they are inappropriate transfers 
of opportunity and/or transfers of responsibility.
    I think it breeds distrust in our process, to a degree. 
Anything we can do to strengthen that I think would strengthen 
our ability to be viewed as being evenhanded and 
straightforward during our deliberations.
    Senator Snowe. So what approach should be taken in this 
reauthorization with respect to that issue? Is it money?
    Mr. Hill. Well, I would make the observation that an 
observer program funded by the industry is very appropriate in 
a fishery where the fishery is very healthy. I think the 
problem has been, in New England, where we have had very 
depressed stocks, boat owners cannot even afford to take care 
of their boats. The thought of levying fees on them during a 
time of great distress is not politically tenable.
    So my view is that a nationally-funded observer program, 
focused on fisheries that are having difficulties, I think 
would be very helpful. The time series that I spoke about 
earlier in my testimony, relative to the year to 15 months was 
related to biological information. We need to do better on 
that. The social and economic data, in my opinion, is 
extraordinarily weak and/or does not exist at all in many 
instances.
    Senator Snowe. Ms. Raymond.
    Ms. Raymond. Senator Snowe, I just want to emphasize the 
need for collecting more accurate and timely social and 
economic data. At the beginning of this hearing, both Senator 
Kerry and Assistant Secretary Garcia quoted some numbers about 
the numbers of people who are employed throughout the country 
and the value of those fisheries.
    Just because they both said the same number, I hope you do 
realize that those are just gross estimates. We really do not 
have any kind of information about what the value of these 
fisheries are. In our own State, this information is very 
lacking. We cannot call the Department of Labor and ask how 
many people are employed in fishing, and we cannot call the 
planning office. Nobody knows these figures.
    I think the problem can be partially solved at the State 
level by an emphasis on the States in collecting some of this 
data, to make it available. But certainly it should be a high-
priority issue.
    Senator Snowe. Can I ask you a follow-up on the 
announcement that Mr. Garcia mentioned with respect to the 
groundfish industry and the 100-pound trip limit? What is your 
reaction to that and the revisions on the running clock? Do you 
think it will still end up with major discards of cod?
    Ms. Raymond. Yes, I do, Senator. Again, the numbers, as you 
said, were all over the map. The numbers have changed daily.
    I guess I am glad that the number is going up, from 30 to 
100. But what I am most disappointed at is that the decision 
does not include any recommendations to compensate for those 
changes and to compensate for the loss that has already 
occurred to the status of the resource because of this 
continuing discard that has gone on for 2 months. The council 
and the Service debated several plans on what to do.
    Everybody knew what to do, but nobody wanted to do it. When 
the council threw up its hands and gave the emergency action 
request to the Secretary, that literally gave the Secretary the 
power to do anything he wanted to do. He knew what to do, 
Senator, and I submit that he did not do it.
    Mr. Hill. Could I just make a quick observation?
    Senator Snowe. Yes.
    Mr. Hill. As a part of my testimony, my point about having 
specific mortality targets, TAC's, that the councils are 
required to meet under their obligations of the administration 
of the Act, would have prevented the kind of issues that we are 
dealing with now. That it is by the overages that we have spent 
the money in the bank, so to speak, for 3 or 4 years in a row 
that led us to the consequences of this recent implementation 
of the trip limit.
    Senator Snowe. Because it was a failure of the information 
that you had at hand, although I think we all expressed deep 
concerns about the direction the council was likely to take on 
this issue that would result in what happened.
    Mr. Hill. Personally, I do not think it was a failure to 
understand--well, there were several failures--and one of them 
was that we did not have as good a data on a timely basis about 
what landings were occurring. But I think, more specifically, 
the council was reluctant, and has been reluctant, to implement 
specific mortality controls that would ensure that we did not 
exceed our target TAC's.
    The reason for that has been the potential adverse social 
and economic consequences of having hard TAC's, because they 
have undesirable consequences, as well. Unfortunately, the 
consequences of exceeding the TAC on an annual basis for 
several years, we have stripped away the principal in the bank 
and we are now paying that price. The choice we made in January 
relative to the trip limit--I can honestly say I did not vote 
for it--but it was a choice between competing possibilities.
    The choice that was made was made, I think, in good faith. 
In the subsequent fishery, there was a big movement of fish 
into the inshore bottom from, I believe, Georges Bank. We had a 
fairly significant movement of fish that caused discards far in 
excess of anything that anybody anticipated when we were 
drafting that regulation.
    Thank you.
    Senator Snowe. Well, in rebuilding schedules for depleted 
stocks, do you think that socioeconomic impacts should be 
considered?
    Mr. Hill. I have been told that Senators ask hard questions 
when you come here. You just confirmed that. [Laughter.]
    Mr. Hill. I will do my best to answer that. I believe, 
Senator--and it is my point earlier about having probably a 
minority view on my council in some respects, or at least I am 
not in the majority, I would suspect--I honestly believe, 
Senator if we rebuild fisheries, we will provide the industry 
with the social and economic benefits that they need in order 
to be able to be fully self-sufficient in the fishery.
    My opinion is that the council has attempted to ameliorate 
those social and economic consequences for about 7 or 8 years. 
That the measures that we have taken, the incremental steps 
that we have taken, in my opinion, were an attempt to avoid the 
social and economic consequences and not alter the fabric of 
the fishing communities that we regulate.
    My opinion is that in fisheries management, dramatic 
action, particularly in an overfished stock, dramatic action, 
the closure of Georges Bank, significant reductions in 
mortality by either TAC or reductions in days at sea, are far 
more effective, far more likely to lead to success, than 
incremental measures that seek to avoid those social costs. I 
do not want to dismiss the consequences of those social costs, 
but I believe it is beyond the ability of the council, quite 
frankly, to wrestle with them sometimes.
    When you are in a depressed fishery that is significantly 
overfished, any measure that you take has consequences. The 
visceral and contentious arguments about who should bear that 
cost, the council is the recipient of those arguments.
    Oftentimes the council errs on the side of caution in 
trying to protect the industry from the consequences. In my 
opinion, we have prolonged the cost, we have prolonged the 
impacts that might have been borne by the industry by our 
attempting to address those very consequences.
    That is my own opinion. I think it has been borne out by 
history. How we address the social consequences I put in my 
written testimony, it is the fundamental question. We are 
required, under National Standard 1 to rebuild these fisheries. 
We have been given a timeframe. In any reasonable timeframe, 
the rebuilding of these stocks have consequences to the 
participants in the fishery. I, quite, frankly, do not have a 
good solution to dealing with those consequences. I believe 
that is beyond the council's ability. But I believe that if we 
rebuild these stocks, we will enjoy the benefits that the 
industry is looking for.
    I would submit that the closure of Georges Bank was 
probably the most contentious fisheries management measure that 
has been taken probably in New England ever. It is now viewed 
as a major success. It is touted by many of the industry now, 
today, as a sacrifice that they made that has provided 
significant benefits. But at the time, it was widely hated. It 
was--there are not enough proper adjectives to describe their 
views. [Laughter.]
    Senator Snowe. Thank you.
    Ms. Raymond. It was, however, supported by the Groundfish 
Group of Associated Fisheries. [Laughter.]
    Senator Snowe. Yes. Mr. Lauber, what do you think?
    Mr. Lauber. We do not have to deal with Georges Bank. 
[Laughter.]
    Not to say that we do not have contentious issues. I do not 
know how other councils operate. All I can tell you is that 
this system that Congress put together, they were either very, 
very smart or they were very, very lucky, or maybe a little bit 
of both.
    Senator Snowe. That is the first time we have ever been 
described that way. [Laughter.]
    Mr. Lauber. Because it has the elements of a very, very 
good system. Because the council system, if it does its job--
and let us say, as anything composed of individuals, most of 
the time it does its job most of the time. This is grade A to 
the Secretary and the Department of Commerce and the National 
Marine Fisheries Service, of course. But the councils are only 
advisory in nature. Therefore, there is a stopgap. There is a 
checks and balances. So that if the council does not do what it 
should be doing, the agency can step in, the Secretary can step 
in with secretarial plans and so forth.
    Fortunately, most times the Secretary does not feel that 
that should be done. But I think that, like in any system, 
everybody has to do their job. If for some reason some council, 
sometime, is not doing what it should, then I think it is up to 
the agency, the Secretary, to step in and they have a 
responsibility, as well. It is difficult to make some of these 
decisions when you have people that you are putting out of 
business. There are human beings that are appearing before you. 
But we have a mandate.
    So far--knock on wood--but we do not have any fisheries in 
the State of Alaska that are in an overfished state that are 
under our jurisdiction, that we are managing. That has not been 
easy. We have set some serious limits on fisheries, shut 
fisheries down--maybe not as dramatic as Georges Bank, but we 
have shut fisheries down and people have been impacted 
negatively, seriously. It just has to be done. The end result 
is that we do not have these fisheries disasters.
    Now, that does not mean that environmental conditions and 
so forth are not going to create problems, but at least they 
will not be our management problems.
    Senator Snowe. Can you tell me, should this be a 4-year 
authorization? Should it be longer? Should it be shorter?
    Any thoughts on that?
    Mr. Lauber. Well, I submitted as part of my testimony, and 
I am sure maybe others will, the council chairman's comments. 
Many of those I would put more in the housekeeping category. At 
the North Pacific Council, we have had this on our agenda 
several times, as to amendments. Quite frankly, I do not know 
whether we are so busy working on the American Fisheries Act 
and our problems with Steller sea lions and attempting to 
implement the amendments that you gave us in 1996, that we 
really are not asking you to do an awful lot, because we have 
got enough to do.
    So, I do not know, the year does not make much difference 
to us. We do not have any burning issues in the North Pacific, 
that I am aware of, that we are asking you to amend.
    Senator Snowe. Yes, it gives us an opportunity, I think 4 
years, thinking about it. Although it may be that we will not 
be required to make some significant changes, as did occur in 
1996. But, nevertheless, it gives you an opportunity to conduct 
oversight and review in the event that there are problems. If 
it goes much longer, then it makes it much difficult, 
particularly if there are issues that warrant the attention of 
Congress.
    Mr. Lauber. I think that was the way your staff suggested 
that I concentrate on commenting on the 1996 amendments and our 
problems, if any, in implementing those and how we have done. 
In following that suggestions, that is what I did.
    Senator Snowe. Dr. Fluharty, do you have any comments?
    Dr. Fluharty. I think it is important to recognize that, as 
has been pointed out, we have not fully implemented the 1996 
Act. Even where we have, we may not have done a good enough job 
in various councils. So I think it is really important for 
Congress to stay the course on that and keep the pressure on.
    I do think that there are some specific issues, regionally 
and perhaps nationally, that will come to the fore through this 
process that can be useful. One of these is certainly the 
question of authorization for observers, observer-type 
programs, and the ability of councils to develop those at their 
discretion. Specifically, in the Pacific Council area, the need 
to maintain management authority over Dungeness crab by the 
State of Washington permits it to better fulfill its 
responsibilities under treaty obligations.
    Senator Snowe. One other question on the essential fish 
habitat. Obviously that is of serious concern to many and 
obviously to the stakeholders. Some have said that the councils 
have had difficulty in distinguishing between essential and 
nonessential habitat. Do you have any comments on that?
    Dr. Fluharty. I think that the answer that the councils 
have given in the first iteration is that habitat is essential, 
and lots of it.
    Senator Snowe. Can you make that narrower, like the NMFS is 
talking about, or is that possible? I guess it was Senator 
Gorton saying they did the whole State of Washington, 
designating the entire State of Washington.
    Dr. Fluharty. Right. But that is a function of the way that 
the law was written and I think correctly interpreted. It does 
not mean that every area is going to be subject to a 
significant determination for every activity. I think that the 
approach taken so far is going to be a successful way to 
implement it. But I can understand why some people are worried.
    I think the habitat areas of particular concern (HAPC under 
the SFA) approach which is being implemented in some areas, is 
an important part of the SFA. But it still does not solve all 
problems. There are many scientific discussions about how you 
define essential habitat. Here Congress has said, look at your 
managed fisheries and tell us what they need. Another approach 
is to look at the habitat and say, which of these areas are 
particularly important for groups of species?
    Right now we have dis-aggregated approach to defining 
Essential Fish Habitent. With something like the Fisheries 
Ecosystem Plan (FEP) Proposal that we have submitted through 
the Ecosystem-Based Fisheries Management Panel, it provides a 
vehicle to start aggregating, to start looking at the way that 
these processes and functions, i.e., the way the ecosystem 
functions. So I think that there are some leads here as to how 
to narrow that down, how to make them a more useful approach 
for fisheries management.
    Senator Snowe. Mr. Hill.
    Mr. Hill. Madam Chairman, I would just bring to your 
attention the New England Council has implemented that section 
of the Act in a very similar way. Because of the life stages of 
all of the different species that are under our jurisdiction 
covers almost every area of the Gulf of Maine. But I think Dr. 
Rosenberg accurately--what I would call--clarified the 
council's approach to areas of critical concern.
    Those are areas where they are unique in nature, have 
either very high spawning activity or are used in a variety of 
life stages. Our council is being very cautious but very 
deliberate about determining. There has only been one so far, 
and we are looking at a couple of others.
    So my view is that all of the marine environment is 
critical habitat. The question is, how much of it deserves 
special attention from a regulatory standpoint? Thank you.
    Senator Snowe. I want to thank all of you very much for 
your very thoughtful information here today and your testimony. 
It is going to be very helpful to us as we pursue this process 
over this next year. I thank you for taking the time, for 
traveling long distances, to be here today and to spend so much 
time with the committee. We certainly appreciate your insight 
and your testimony and your thoughtfulness here today. Thank 
you.
    OK, we are down to the last panel. I apologize that it has 
taken so long today. Now, we will proceed with our third panel 
of distinguished witnesses. You may step forward.
    I would like to welcome Mr. Wayne Swingle, from Tampa, FL. 
Mr. Swingle is executive director of the Gulf of Mexico Fishery 
Management Council.
    The next witness is Mr. Glenn Delaney. Mr. Delaney serves 
as the U.S. Commissioner on the International Commission for 
Conservation of Atlantic Tuna.
    Our final witness will be Mr. Ken Hinman, the co-chair of 
the Marine Fish Conservation Network.
    I thank you and I welcome you for being here today. Again, 
I apologize for the length of this hearing, but we got set back 
by those votes earlier today. But I really appreciate you being 
here today to share your thoughts with the committee.
    Mr. Swingle, we will begin with you.

  STATEMENT OF WAYNE E. SWINGLE, EXECUTIVE DIRECTOR, GULF OF 
               MEXICO FISHERY MANAGEMENT COUNCIL

    Mr. Swingle. Madam Chairman, I greatly appreciate the 
opportunity to appear before you and present the councils' 
progress in implementing the provisions of the Sustainable 
Fisheries Act and to provide the council's recommendations for 
amendments to the Magnuson Act.
    First, let me briefly acquaint you with the status of our 
stocks under the Sustainable Fisheries Act. We manage the 
shrimp, spiny lobster and stone crab, none of which are 
overfished or have been. The shrimp fishery is probably the 
Nation's most valuable, having contributed about $2.9 billion 
to the gross national product in 1989, and certainly more than 
that at this date.
    We protect the coral and coral reef resources and manage 
three finfish fisheries. Our reef fish fishery consists of 
snappers and groupers and results in landings of about 30 
million pounds annually. Red snapper are classified as 
overfished. We have been rebuilding this stock since 1990. With 
the new standards, this task will extend well into the next 
century. Gag grouper was recently classified as approaching an 
overfished state, and the council recently took action to 
reduce fishing mortality that should alleviate that condition.
    We also manage species such as mackerels, cobia and 
dolphin, of which only the Gulf king mackerel and Spanish 
mackerels have been classified as overfished. We began the 
rebuilding programs for those stocks in 1985, and have 
completely restored Spanish mackerel and nearly restored the 
king mackerel. We also manage red drum, which is a major 
recreational fishery in our area. This stock would have been 
restored by the year 2001, but will take longer under the new 
Sustainable Fisheries Act overfishing criteria.
    In complying with the Sustainable Fisheries Act, we 
developed two generic amendments. The first of these was an 
amendment that identified and described essential fish habitat 
for the life stages of the stocks. The National Marine 
Fisheries Service partially disapproved that amendment because 
we depicted the life history stages and their distributions for 
only 26 dominant stocks. The distribution information for the 
minor stocks was not available to us, so that was not included. 
The amendment is currently under litigation, filed by the 
Florida Wildlife Federation.
    The second amendment addressed bycatch, overfishing 
criteria, rebuilding periods, and fishing communities. Prior to 
the completion of this document, we implemented an amendment to 
our shrimp plan for the Central and Western Gulf that reduced 
bycatch by requiring bycatch reduction devices in the trawls. 
An amendment addressing the shrimp trawl bycatch for the 
Eastern Gulf is currently being prepared. Therefore, our 
Sustainable Fisheries Act amendment only described the bycatch 
in other fisheries, most of which was regulatory discards.
    In the section on overfishing criteria, the council acted 
conservatively by increasing our overfishing standard from 20 
percent spawning potential ratio to about 30 percent, to assure 
the stocks are managed at or above MSY. The effect of these new 
standards, however, will be that additional stocks will be 
classified as overfished and will require amendments to rebuild 
those stocks.
    In gathering the U.S. census data and other information to 
characterize fishing communities, we found that most of these 
data are inadequate for that purpose, and certainly inadequate 
to assess the impacts of management measures on communities. We 
did suggest, in an attachment to this testimony to Secretary 
Daley, actions that could be taken to make the census data more 
useful.
    As you can see, the increased workload for the councils 
from the Sustainable Fisheries Act will carry over into the 
next several fiscal years. However, we would like to point out 
the administration proposed to increase the fiscal year 2000 
allocation for the eight councils by only 2.3 percent, which 
will be inadequate to carry out that mandate.
    I have appended the council's recommendations for 
amendments to the Magnuson Act to this testimony. I thank you 
for this opportunity to testify.
    [The prepared statement and information of Mr. Swingle 
follows:]
  Prepared Statement of Wayne E. Swingle, Executive Director, Gulf of 
                   Mexico Fishery Management Council
    Madame Chairman and members of the Committee, I greatly appreciate 
the opportunity to appear before you to present the Council's progress 
in implementing the provisions of the Sustainable Fisheries Act (SFA), 
and to provide you with the Council's recommendations for amendments to 
the Magnuson-Stevens Act (MSA).
    First, let me briefly acquaint you with the fisheries we manage, 
and the status of those stocks under the SFA. The crustacean fisheries 
we manage include shrimp, spiny lobster, and stone crab, none of which 
are overfished or have ever been. The Gulf shrimp fishery is the 
nation's most valuable fishery, having contributed 2.9 billion dollars 
to the GNP in 1989, and certainly more than that now.
    We also preserve and protect the corals and coral reef resources 
and manage three finfish fisheries. Our reef fish fishery consists of 
more than 40 stocks of snappers, groupers, and related species and 
results in landings by recreational and commercial fisherman of about 
30 million pounds annually. Red snapper is the principal snapper 
species and is classified as overfished. We have been rebuilding this 
stock since 1990, but with the new SFA standards, this task will extend 
well into the next century. Gag, a major grouper stock, was recently 
classified as approaching an overfished state. The Council took action 
within the last 2 weeks to reduce fishing 
mortality by about 17 percent, which should alleviate that condition. 
We have also prohibited harvest and possession of two other minor reef 
fish stocks (Jewfish and Nassau grouper) that were classified as 
overfished in the early 1990's.
    We also manage the fishery for coastal migratory pelagics species, 
such as mackerels, cobia, dolphin, etc. In this species complex only 
Gulf king and Spanish mackerels have been classified as overfished. We 
began the rebuilding program for these stocks in 1985 and have 
completely restored the Spanish mackerel stock and have nearly restored 
King mackerel. We also manage Red drum, which is a major recreational 
fishery in all our states. This stock would have been restored by 2001 
under the current overfishing criteria, but it will take longer under 
the new SFA criteria.
    In complying with the SFA, we developed two generic amendments that 
addressed those issues for our seven fishery management plans (FMPs). 
The first of these was an amendment that identified and described 
essential fish habitat (EFH) for the estuarine and marine life stages 
of the stocks in our FMPs. The amendment also discussed threats to EFH 
and management measures for enhancing EFH. NMFS partially disapproved 
the amendment, largely because we had diagrams depicting the estuarine 
and marine life stage distributions for only the 26 dominant stocks, 
rather than for all of them (Attachment 1). This distribution 
information for the minor stocks was not included because it was not 
available (Attachment 2). This amendment is currently under litigation 
filed by the Florida Wildlife Federation with the allegation that it 
does not comply with the SFA because it does not include management 
measures reducing the impact of gear on EFH.
    The second generic amendment principally addressed bycatch, 
overfishing criteria, rebuilding periods, and fishing communities. This 
amendment has not yet been considered for approval by NMFS. Prior to 
completion of this document an amendment to our Shrimp FMP was 
implemented (May 1998) that reduces bycatch in that fishery by 
requiring shrimp vessels fishing the Gulf, off the Florida panhandle 
west to the Mexican border, to install bycatch reduction devices (BRDs) 
in the trawls. An amendment addressing shrimp trawl bycatch for the 
eastern Gulf is being prepared. Therefore, the generic amendment only 
describes the bycatch in other fisheries, which primarily consists of 
regulatory discards created by our management rules.
    In the section on overfishing criteria, the Council acted 
conservatively by increasing our overfishing standard from 20 percent 
SPR (spawning potential ratio) to about 30 percent SPR to assure the 
stocks are managed at or above the MSY (maximum sustainable yield) 
level. The effect of these new standards, when approved, will likely be 
that several additional reef fish stocks will be classified as 
overfished and will require amendments to rebuild those stocks.
    We have a fairly large number of coastal communities that likely 
would be classified as fishing communities. However, in gathering the 
U.S. Census data and other available information to characterize the 
economic and social structure of these communities, we found most of 
the data to be inadequate for that purpose, and certainly inadequate to 
assess impacts of management measures on the communities. We did call 
to the attention of Secretary Daley some actions that could be taken to 
make the U.S. Census data more useful for these purposes (Attachment 
3).
    As you can see from this discussion, the increased work load on the 
Councils from the SFA will carry over into the next several fiscal 
years. We call to your attention that the Administration proposed to 
increase the FY2000 allocation to the 8 Councils by only 2.3 percent, 
which will be inadequate to carry out that mandate.
    I have appended the Gulf Council's recommendations of amendments 
needed under the re-authorization to the Magnuson-Stevens Act as 
Attachment 4, and we appreciate your consideration of these 
recommendations.
    I thank you for this opportunity to testify on behalf of the Gulf 
Council.

                            Attachment No. 1
                         National Marine Fisheries Service,
                                                St. Petersburg, FL.
Mr. Hal Osburn, Chairman,
Gulf of Mexico Fishery Management Council,
Tampa, FL.
    Dear Hal: This advises you that NMFS has partially approved the 
Generic Essential Fish Habitat (EFH) Amendment to the Fishery 
Management Plans of the Gulf of Mexico. All sections of the Amendment 
have been approved, except for sections 5.0. (Identification and 
Description of EFH) and 6.1 (Fishing Activities that may Adversely 
Impact EFH). NMFS approved only the EFH designation for the 26 selected 
species and coral complex in section 5.0 and only the fishing gear 
impact assessments on EFH discussed in the categories of trawls, 
recreational fishing, and traps in section 6.1.
    I am asking that the Council place high priority on identifying and 
describing EFH for all non-selected managed species in a subsequent 
amendment as soon as possible. Additionally, the Council needs to 
describe and address the impacts of all fishing gears used in all EFH 
areas, also in future amendments. NMFS is committed to working 
cooperatively with the Council to complete the remaining work. NMFS 
expects to initiate a gear impact study this fiscal year, with emphasis 
given to trawl gear. Reports on the status of this research will be 
provided to the Council as the research progresses.
    There appear to be errors in the text, tables and figures provided 
in the amendment. It appears that information provided by the SEFSC on 
Gag grouper EFH was unintentionally omitted relative to the 
distribution of juvenile Gag in Apalachee Bay, and there is no 
reference list for these fish. These errors should be corrected through 
errata sheets.
    Explicit, regional research needs sections should be included in 
future EFH amendments to FMPs. Inclusion of this information will help 
identify data gaps and focus needed research to improve EFH 
identification and protection within the Gulf of Mexico. NMFS 
appreciates the great effort expended by the Council to complete the 
Gulf EFH amendment in a timely manner. We look forward to continuing 
our close association with the Council in working to improve and refine 
EFH designations, and in identifying and addressing adverse impacts to 
EFH.
            Sincerely yours,
                                        Andrew J. Kemmerer,
                                            Regional Administrator.
                                 ______
                                 
                            Attachment No. 2
                 Gulf of Mexico Fishery Management Council,
                                         Tampa, FL, March 23, 1999.
Dr. Andrew J. Kremmerer, Regional Administrator,
St. Petersburg, FL.
    Dear Dr. Kemmerer: The Gulf of Mexico Fishery Management Council 
(Council) has reviewed your letter dated February 8, 1999 concerning 
the partial approval of the Generic Essential Fish Habitat (EFH) 
Amendment to the Fishery Management Plans of the Gulf of Mexico. In 
Section 5.0, NMFS only approved EFH designations for the 26 selected 
species and coral complex. In Section 6.1, only the fishing gear impact 
assessments on EFH discussed in the categories of trawls, recreational 
fishing, and traps were approved. With this letter, the Council would 
like to comment on this partial EFH approval.
    This Generic EFH Amendment was produced as a cooperative effort 
between the Council, the National Marine Fisheries Service, the Gulf 
States Marine Fisheries Commission, and the National Ocean Service. As 
stated in the Sustainable Fisheries Act, ``NMFS, in consultation with 
participants in the fishery, shall provide each Council with 
recommendations and information regarding each fishery under that 
Council's authority to assist it in the identification of essential 
fish habitat, the adverse impacts on that habitat, and the actions that 
should be considered to ensure the conservation and enhancement of that 
habitat.'' This clearly states that it is NMFS's responsibility to 
provide EFH information to the Council.
    The final draft, National Marine Fisheries Service Essential Fish 
Habitat Recommendations to the Gulf of Mexico Fishery Management 
Council, states on Page 2 that ``The best available information was 
used that could be gathered in the time available for preparation of 
EFH descriptions. As additional information becomes available and as 
research results are produced, it is expected that the level of 
precision for designating EFH will be increased and that the 
appropriate FMPs will be amended accordingly.'' Specifically with 
regard to EFH designations the draft also states on Page 4 that ``. . . 
even if maps of additional species was available, they would not 
encompass any habitat that is not already included and identified as 
EFH. EFH for the remaining managed species will be addressed in future 
FMP amendments, as appropriate.'' The Council would have included 
additional species EFH identifications and fishing gear impacts in the 
Amendment if this information had been provided or available but it was 
either not provided or unavailable. We reiterate that even if this data 
was available, they would not include any additional habitat that is 
not currently described as EFH for the selected species. It would be 
ludicrous for the Council to proceed with an additional amendment at 
this time and to attempt to specifically describe habitat of species 
for which such habitat is unknown especially when EFH has already been 
defined as all estuarine and marine habitat in the Gulf of Mexico (see 
page 22 of the Amendment).
    Regarding impacts of fishing gear, the draft Recommendations on 
Page 11 State that ``The NMFS understands that information is presently 
lacking in the Gulf of Mexico to draw definitive conclusions. As 
additional information becomes available, it should be included in the 
amendment.''
    Concerning the errors in the amendment, the Council simply copied 
the tables that were provided by NMFS. When corrected information is 
provided to the Council, we will be happy to correct the problems.
    As stated in the NMFS recommendations to the Council and in the 
Amendment, as future information concerning individual species' EFH and 
fishing gear impacts on EFH becomes available, the Council will update 
the Amendment. Although your letter did not indicate a time frame for 
developing an update, it did include the terms ``high priority'' and 
``as soon as possible''. While the Council looks forward to working 
closely with NMFS in the effort to further identify and describe EFH 
and fishing gear impacts in the Gulf of Mexico, it is our view that the 
primary responsibility to initiate gathering and developing this 
information lies with NMFS. While Council staff will proceed with 
gathering additional information for updating the Amendment, the 
Council's priority for this task will mirror that of NMFS, and we will 
proceed with appropriate amendments as data is made available.
            Sincerely,
                                                Hal Osburn,
                                                          Chairman.
                                 ______
                                 
                            Attachment No. 3
                 Gulf of Mexico Fishery Management Council,
                                         Tampa, FL., June 23, 1999.
Hon. William M. Daley, Secretary of Commerce,
Washington, DC.
    Dear Mr. Secretary: Pursuant to National Standard 8 of the 
Sustainable Fisheries Act, the Gulf of Mexico Fishery Management 
Council (Council) is required to assess the impacts of fishery 
regulations on fishing communities. In its Generic Sustainable 
Fisheries Act Amendment of several fishery management plans, the 
Council attempted to delineate the socioeconomic characteristics of 
fishing communities within the coastal counties of the five Gulf 
states. Census data for 1970,1980, and 1990 was assembled by the 
Louisiana State University through a MARFIN-funded study and used for 
this purpose. Because the census data aggregated information for 
persons employed in agriculture, fishing, and mining industries, and 
aggregated information on self-employed persons for the farming, 
fishing, and forestry sectors, the data cannot be used to assess 
impacts of measures on communities or even to provide an adequate 
representation of fishing communities. To this effect, the Counci1 is 
requesting that for the year 2000 census, employment data in coastal 
counties should be collected and reported separately for fishing.
    We believe modifying the census for the coastal counties would be 
adequate to make the data set usable for fishery analyses related to 
fishing communities. We also feel it would be very advantageous if 
technical personnel within NMFS and NOAA were utilized to modify the 
census forms for the coastal counties so that the data is more 
appropriate in economically characterizing the communities. We 
sincerely hope for your favorable action on this matter that is of 
vital importance to all of the Councils.
            Sincerely,
                                                Hal Osburn,
                                                          Chairman.
                                 ______
                                 
                            Attachment No. 4
   Magnuson-Stevens Act (MSA) Reauthorization Issues--Gulf of Mexico 
               Fishery Management Council Recommendations
      rescinding the congressional prohibitions on ifos (or itos)
    Currently Section 303(d)(1) of MSA prohibits a Council from 
submitting or the Secretary approving an IFQ system before October 1, 
2000. Section 407(b) prohibits the Gulf Council from undertaking or 
continuing the preparation of a red snapper individual fishing quota 
(IFQ) or any system that provides for the consolidation of permits to 
create a trip limit before October 1, 2000. If the reauthorization 
process is completed in 1999, the Council supports rescinding those 
provisions before the year 2000 deadline. The Council also opposes 
extending the moratorium on IFQs.
             regional flexibility in designing ifo systems
    The Council, while philosophically opposed to fees that are not 
regional in nature and dedicated by the Councils, is concerned over the 
ability of the overcapitalized fleets to pay fees. However, they do 
support the National Academy of Science (NAS) recommendation that 
Congressional action allow the maximum flexibility to the Councils in 
designing IFQ systems and allowing flexibility in setting the fees to 
be charged for initial allocations, first sale and leasing of IFQs [MSA 
Sections 303(d)(2-5) and 304(d)(2)].
   coordinated review and approval of plan amendments and regulations
    The Sustainable Fisheries Act (SFA) amended Sections 304(a) and (b) 
of the MSA to create separate sections for review and approval of plans 
and for review and approval of regulations. This has resulted in the 
approval process for these two actions proceeding in different time 
periods, rather than concurrently as before the SFA Amendment, which 
also deleted the 304(a) provision allowing disapproval or partial 
disapproval of the amendment within the first 15 days. The Council and 
the Timely Review Panel recommend these sections be modified to include 
the original language allowing concurrent approval actions for plan 
amendments and regulations and providing for the initial 15-day 
disapproval process.
              regulating non-fishing activities of vessels
    The Council recommends that Section 303(b) of MSA be amended to 
provide authority to Councils to regulate non-fishing activities that 
adversely impact fisheries or essential fish habitat (EFH) by vessels. 
One of the most damaging activities to such habitat is anchoring of 
large vessels near habitat areas of particular concern (HAPC) or other 
EFH (e.g., coral reefs, etc.). When these ships swing on the chain 
deployed for anchoring in 100 feet, 20 to 70 acres of bottom may be 
plowed up by the chain dragging over the bottom. Regulation of this 
type of activity should be allowed.
                                bycatch
    The MSA, under Section 405, Incidental Harvest Research, provided 
for conclusion of a program to (1) assess the impact on fishery 
resources of incidental harvest by the shrimp trawl fishery of the Gulf 
and South Atlantic, and (2) development of technological devices or 
other changes to fishing operations necessary to minimize incidental 
mortality of bycatch in the course of shrimp trawl activity, etc. 
Because this program has been the principal vehicle under which 
research and data collection has been carried out, the Council 
recommends that this program be extended and funded for another 3 
years.
           gulf of mexico red snapper research (section 407)
    The research provided for has been completed. This section also 
provides, in Subsection (c), that a referendum be conducted by the 
National Marine Fisheries Service (NMFS) of persons holding commercial 
red snapper licenses, to determine if a majority support proceeding 
with an IFQ program and in Subsection (d) makes the recreational red 
snapper allocation a quota and provides for closure of the fishery when 
that quota is reached. The Council recommends that both subsections be 
rescinded. The recreational fishery closure is having severe adverse 
economic impacts on the charter and head boat sectors. This year that 
fishery is projected to close on August 29. As the red snapper stock is 
being restored, the size of fish increases each year and the closure 
comes earlier each year, e.g., November 27 in 1997 to August 29 in 
1999.
            collection of economic data [section 303(b)(7)]
    Situation.--Language throughout the MSA specifies the collection of 
biological, economic, and sociocultural data to meet specific 
objectives of the Act and for the fishery management councils to 
consider in their deliberations. However, Section 303(b)(7) 
specifically excludes the collection of economic data, and Section 
402(a) precludes Councils from collecting ``proprietary or confidential 
commercial or financial information.'' However, NMFS should not be 
precluded from collecting such proprietary information so long as it is 
treated as confidential information under Section 402. Without this 
economic data, multi-disciplinary analysis of fishery management 
regulations is not possible, preventing NMFS/Councils from satisfying 
the requirements of the Act and of the Regulatory Flexibility Act 
(RFA). Economic data is required to meet the requirements of RFA and 
other laws, yet MSA restricts the economic information that can be 
collected under the authority of the MSA.
    Recommendation.--Amend the Act to eliminate these MSA restrictions 
on the collection of economic data. Amending Section 303(b)(7) by 
removing ``other than economic data'' would allow NMFS to require fish 
processors who first receive fish that are subject to the plan to 
submit economic data.
    Discussion.--Removing this current restriction will strengthen the 
ability of NMFS to collect necessary data and eliminate the appearance 
of a contradiction in the law requiring economic analysis without 
allowing the collection of necessary data. NMFS and the Councils need 
data to be able to comply with RFA, and we should not be prohibited 
from requiring it.
            confidentiality of information [section 402(b)]
    Situation.--Section 402 replaced and modified former Sections 
303(d) and (e). The SFA replaced the word ``statistics'' with the word 
``information'' expanded confidential protection from information 
submitted in compliance with the requirements of an FMP to information 
submitted in compliance with any requirement of the MSA, and broadened 
the exceptions to confidentiality to allow for disclosure in several 
new circumstances.
    Recommendation.--The following draft language clarifies the word 
``information'' in 402(b)(1) and (2) by adding the same parenthetical 
used in (a), and deletes the provision regarding observer information. 
The revised section would read as follows (additions in bold):
    (b) Confidentiality of Information.
    ``(1) Any information submitted to the Secretary by any person in 
compliance with any requirement under this Act and that would disclose 
proprietary or confidential commercial or financial information 
regarding fishing operations or fish processing operations shall not be 
disclosed, except:
    a. To Federal employees and Council employees who are responsible 
for fishery management plan development and monitoring;
    b. To State or Marine Fisheries Commission employees pursuant to an 
agreement with the Secretary that prevents public disclosure of the 
identity or business of any person;
    c. When required by court order;
    d. When such information is used to verify catch under an 
individual fishing quota program; or
    e. When the Secretary has obtained written authorization from the 
person submitting such information to release such information to 
persons for reasons not otherwise provided for in this subsection, and 
such release does not violate other requirements of this Act.''
    The Secretary shall, by regulation, prescribe such procedures as 
may be necessary to preserve the confidentiality of information 
submitted in compliance with any requirement under this Act and that 
would disclose proprietary or confidential commercial or financial 
information regarding fishing operations or fish processing operations, 
except that the Secretary may release or make public any such 
information in any aggregate or summary form which does not directly or 
indirectly disclose the identity or business of any person who submits 
such information. Nothing in this subsection shall be interpreted or 
construed to prevent the use for conservation and management purposes 
by the Secretary or with the approval of the Secretary, the Council, of 
any information submitted in compliance with any requirement or 
regulation under this Act or the use, release, or publication of 
bycatch information pursuant to paragraph (1)(E).
                           observer programs
    Reaffirm support to give discretionary authority to the Councils to 
establish fees to help fund observer programs. This authority would be 
the same as granted to the North Pacific Council under Section 313 for 
observers.
               congressional funding of observer programs
    Situation.--Currently, the Secretary is not authorized to collect 
fees from the fishing industry for funding of observer programs. 
Funding of observer programs has been through MSA or MMPA 
appropriations.
    The lack of adequate appropriations to run observer programs has 
resulted in 
statistically inadequate observer programs that do not satisfy the 
monitoring requirements of the statutes. This is of particular concern 
with regard to observer requirements that are a requirement or 
condition of an ESA biological opinion or a condition of a take 
reduction plan or take exemption under the MMPA. In addition, funding 
is taken from extremely important recovery and rebuilding programs to 
pay for the observer requirements. Consequently, investigations into 
fishing practices or gear modification (or other areas that would 
actually prevent the lethal take from occurring or causing serious 
injury in the first place) cannot proceed.
    Recommendation.--If the MSA is not amended to authorize the 
Secretary to collect fees from the fishing industry, then those 
fisheries that are required to carry observers as a condition of 
biological opinion under ESA, or as a condition of a take exemption 
under the MMPA, should be funded through the Congressional 
appropriations directed toward fisheries management under the MSA.
           defining overfish and overfishing [section 3(29)]
    Currently, both overfished and overfishing are defined as a rate of 
fishing mortality that jeopardizes the capacity of a fishery to produce 
maximum sustainable yield (MSY) on a continuing basis. The 
Administration proposed redefining these to be consistent with NMFS' 
guidelines in the guidelines for National Standard 1. The Council 
opposes this change and feels no change is needed.
                       state fishery jurisdiction
    The Council supports language in the Act to establish the authority 
of the states to manage species harvested in the exclusive economic 
zone (EEZ) that occur in both the State territorial waters and the EEZ, 
in the absence of a council fishery management plan similar to the 
language specified for Alaska in the last amendment to the Act.
                              enforcement
    The Council supports the implementation of cooperative state/
Federal enforcement programs patterned after the NMFS/South Carolina 
enforcement cooperative agreement. While it is not necessary to amend 
the Act to establish such programs it is consistent with the changes 
needed to enhance management under the Act to suggest to Congress that 
they consider establishing and funding such cooperative state/Federal 
programs.
                      council member compensation
    The Act should specify that Council member compensation be based on 
the General Schedule that includes locality pay. This action would 
provide for a more equitable salary compensation. Salaries of members 
serving in Alaska, the Caribbean, and Western Pacific are adjusted by 
COLA. The salary of the Federal members of the Councils includes 
locality pay. The DOC has issued a legal opinion that prohibits Council 
members in the continental U.S. from receiving locality pay; therefore, 
Congressional action is necessary.
   emergency rule vote of nmfs regional administrator on the council
    Proposal.--Modify the language of Section 305(c)(2)(A) as follows 
(new language bolded):
    (A) The Secretary shall promulgate emergency regulations or interim 
measures under paragraph (1) to address the emergency or overfishing if 
the Council, by unanimous vote of the members (excluding the NMFS 
Regional Administrator) who are voting members, requests the taking of 
such action; and . . .
    Currently, the NMFS RA is instructed to cast a negative vote even 
if he/she supports the emergency or interim action to preserve the 
Secretary's authority to reject the request. The Council believes that 
Congressional intent is being violated by that policy.
              disclosure of financial interest and recusal
    Proposal.--Modify the language of Section 302(j)(2) as follows (new 
language bolded):
    (2) Each affected individual must disclose any financial interest 
held by:
    (A) that individual;
    (B) the spouse, minor child, or partner of that individual; and
    (C) any organization (other than the Council) in which that 
individual is serving as an officer director, trustee, partner, or 
employee; in any harvesting, processing, or marketing activity that is 
being, or will be, undertaken within any fishery over which the Council 
concerned has jurisdiction, or any financial interest in essential fish 
habitat (EFH).
    The Council feels an interest in EFH should be treated from an 
ethical point of view, the same as an interest in fishery operations, 
in determining whether a Council member should abstain from voting. The 
effect of this action would be to exclude the Council member who held 
interests in/or related to EFH from the provisions of Section 208 of 
title 18, USC, which would prevent that person from voting on habitat 
protection issues. However, if he/she were able to file a disclosure 
notice under 302(j) of the MSA they could vote unless that action would 
substantially change the financial interests of the member. This action 
would put them on the same basis as a person having an interest in a 
commercial harvesting, processing, or marketing activity.
                                 ______
                                 
       Magnuson-Stevens Act (MSA) Reauthorization Issues Council 
                       Chairmen's Recommendations
      rescinding the congressional prohibitions on ifqs (or itqs)
    Currently Section 303(d)(1) of MSA prohibits a Council from 
submitting or the Secretary approving an IFQ system before October 1, 
2000. Section 407(b) prohibits the Gulf Council from undertaking or 
continuing the preparation of a red snapper individual fishing quota 
(IFQ) or any system that provides for the consolidation of permits to 
create a trip limit before October 1, 2000. If the reauthorization 
process is completed in 1999, the Council chairmen support rescinding 
those provisions before the year 2000 deadline. The chairmen also 
oppose extending the moratorium on IFQs.
             regional flexibility in designing ifq systems
    The Council chairmen are philosophically opposed to fees that are 
not regional in nature and dedicated by the Councils, and are concerned 
over the ability of the overcapitalized fleets to pay fees. However, 
they do support the National Academy of Science (NAS) recommendation 
that Congressional action allow the maximum flexibility to the Councils 
in designing IFQ systems and allowing flexibility in setting the fees 
to be charged for initial allocations, first sale and leasing of IFQs 
[MSA Sections 303(d)(2-5) and 304(d)(2)].
   coordinated review and approval of plan amendments and regulations
    The Sustainable Fisheries Act (SFA) amended Sections 304(a) and (b) 
of the MSA to create separate sections for review and approval of plans 
and for review and approval of regulations. This has resulted in the 
approval process for these two actions proceeding in different time 
periods, rather than concurrently as before the SFA Amendment, which 
also deleted the 304(a) provision allowing disapproval or partial 
disapproval of the amendment within the first 15 days. The Council 
chairmen and the Timely Review Panel recommend these sections be 
modified to include the original language allowing concurrent approval 
actions for plan amendments and regulations and providing for the 
initial 15-day disapproval process.
              regulating non-fishing activities of vessels
    The Council chairmen recommend that Section 303(b) of MSA be 
amended to provide authority to Councils to regulate non-fishing 
activities that adversely impact fisheries or essential fish habitat 
(EFH) by vessels. One of the most damaging activities to such habitat 
is anchoring of large vessels near habitat areas of particular concern 
(HAPC) or other EFH (e.g., coral reefs, etc.). When these ships swing 
on the chain deployed for anchoring in 100 feet, 20 to 70 acres of 
bottom may be plowed up by the chain dragging over the bottom. 
Regulation of this type of activity should be allowed.
            collection of economic data [section 303(b)(7)]
    Situation.--Language throughout the MSA specifies the collection of 
biological, economic, and sociocultural data to meet specific 
objectives of the Act and for the fishery management councils to 
consider in their deliberations. However, Section 303(b)(7) 
specifically excludes the collection of economic data, and Section 
402(a) precludes Councils from collecting ``proprietary or confidential 
commercial or financial information.'' However, NMFS should not be 
precluded from collecting such proprietary information so long as it is 
treated as confidential information under Section 402. Without this 
economic data, multi-disciplinary analysis of fishery management 
regulations is not possible, preventing NMFS/Councils from satisfying 
the requirements of the Act and of the Regulatory Flexibility Act 
(RFA). Economic data is required to meet the requirements of RFA and 
other laws, yet MSA restricts the economic information that can be 
collected under the authority of the MSA.
    Recommendation.--Amend the Act to eliminate these MSA restrictions 
on the collection of economic data. Amending Section 303(b)(7) by 
removing ``other than economic data'' would allow NMFS to require fish 
processors who first receive fish that are subject to the plan to 
submit economic data.
    Discussion.--Removing this current restriction will strengthen the 
ability of NMFS to collect necessary data and eliminate the appearance 
of a contradiction in the law requiring economic analysis without 
allowing the collection of necessary data. NMFS and the Councils need 
data to be able to comply with RFA, and we should not be prohibited 
from requiring it.
            confidentiality of information [section 402(b)]
    Situation.--Section 402 replaced and modified former Sections 
303(d) and (e). The SFA replaced the word ``statistics'' with the word 
``information'' expanded confidential protection from information 
submitted in compliance with the requirements of an FMP to information 
submitted in compliance with any requirement of the MSA, and broadened 
the exceptions to confidentiality to allow for disclosure in several 
new circumstances.
    Recommendation.--The following draft language clarifies the word 
``information'' in 402(b)(1) and (2) by adding the same parenthetical 
used in (a), and deletes the provision regarding observer information. 
The revised section would read as follows (additions in bold):
    (b) Confidentiality of Information.
    ``(1) Any information submitted to the Secretary by any person in 
compliance with any requirement under this Act and that would disclose 
proprietary or confidential commercial or financial information 
regarding fishing operations or fish processing operations shall not be 
disclosed, except:
    a. To Federal employees and Council employees who are responsible 
for fishery management plan development and monitoring;
    b. To State or Marine Fisheries Commission employees pursuant to an 
agreement with the Secretary that prevents public disclosure of the 
identity or business of any person;
    c. When required by court order;
    d. When such information is used to verify catch under an 
individual fishing quota program; or
    e. When the Secretary has obtained written authorization from the 
person submitting such information to release such information to 
persons for reasons not otherwise provided for in this subsection, and 
such release does not violate other requirements of this Act.''
    The Secretary shall, by regulation, prescribe such procedures as 
may be necessary to preserve the confidentiality of information 
submitted in compliance with any requirement under this Act and that 
would disclose proprietary or confidential commercial or financial 
information regarding fishing operations or fish processing operations, 
except that the Secretary may release or make public any such 
information in any aggregate or summary form which does not directly or 
indirectly disclose the identity or business of any person who submits 
such information. Nothing in this subsection shall be interpreted or 
construed to prevent the use for conservation and management purposes 
by the Secretary or with the approval of the Secretary, the Council, of 
any information submitted in compliance with any requirement or 
regulation under this Act or the use, release, or publication of 
bycatch information pursuant to paragraph (1)(E).
                              enforcement
    The Council chairmen support the implementation of a cooperative 
state/Federal enforcement programs patterned after the NMFS/South 
Carolina enforcement cooperative agreement. While it is not necessary 
to amend the Act to establish such programs it is consistent with the 
changes needed to enhance management under the Act to suggest to 
Congress that they consider establishing and funding such cooperative 
state/Federal programs.
                      council member compensation
    The Act should specify that Council member compensation be based on 
the General Schedule that includes locality pay. This action would 
provide for a more equitable salary compensation. Salaries of members 
serving in Alaska, the Caribbean, and Western Pacific are adjusted by 
COLA. The salary of the Federal members of the Councils includes 
locality pay. The DOC has issued a legal opinion that prohibits Council 
members in the continental U.S. from receiving locality pay; therefore, 
Congressional action is necessary.
                            observer program
    Reaffirm support to give discretionary authority to the Council to 
establish fees to help fund observer programs. This authority would be 
the same as granted to the North Pacific Council under Section 313 for 
observers.
                         essential fish habitat
    The 1996 MSFCMA required the Councils to identify and describe EFH, 
but gave little direction on how to designate EFH. The definition of 
EFH, i.e., ``those waters and substrate necessary to fish for spawning, 
breeding, feeding or growth to maturity,'' allows for a broad 
interpretation. Data on species' relative abundance and distribution 
for each life history stage was interpreted in a risk-averse manner, as 
directed by the interim final rule. This led to EFH designations that 
were criticized by some, as being too far reaching. ``If everything is 
designated as essential then nothing is essential,'' was a common theme 
throughout the EFH designation process, on a national and regional 
scale. Either the EFH definition should be modified, or the guidance on 
how to use different types of data should be more specific.
    Data restrictions also hampered the EFH designation process. In the 
short-term, additional data could be used to refine the EFH 
designations. The MSFCMA also requires that EFH designations are 
reviewed every 5 years, which adds an additional burden to NMFS and the 
Councils and creates long-term and short-term funding and process 
needs. This review requirement should be eliminated.
                            interim actions
    Section 305(c) should be changed to allow adoption of interim rules 
for any of the 10 National Standards, not just to ``. . . reduce 
overfishing . . .'' under National Standard 1.
                           rebuilding periods
    The Councils should have greater latitude for specifying rebuilding 
periods than is provided under the national standard guidelines, which 
are based entirely on biological considerations. The social and 
economic factors should be given equal or greater consideration in 
determining schedules that result in the Greatest Net Benefit to the 
Nation.
                        redefine ``overfishing''
    Problem: MSY-based definition of overfishing:
     MSY is an outdated and possibly inappropriate concept for 
fisheries management;
     Determining accurate estimations of MSY requires fishing 
at a range of effort, including well beyond the point of MSY;
     MSY does not reflect the difficulties in estimation nor 
the dangers of using it as a management objective;
     MSY changes over time due to environmental and other 
conditions, that may not directly be related to SPR;
     Adopting (or relaxing) various management measures may 
also change the resulting MSY.
    Proposal.--The definition for overfishing should be broadened and 
made more flexible to accommodate other methods to assess overfishing 
that may be more appropriate based on the nature of the fishery and 
type and availability of data. For example it may be more appropriate 
to define overfishing based on the spawning biomass, exploitation 
rates, etc.
    receive money from any state or federal government organization
    Problem: Council can only receive funds through the Department of 
Commerce/NOAA/NMFS:
    The Councils work with other government organizations to support 
research, workshops, conferences or to procure contractual services. In 
Hawaii, examples include: Department of State and MHLC4; Department of 
the Interior and Seabird Workshop; State of Hawaii Office of Hawaiian 
Affairs and demonstration projects. In each of these cases, complex 
dual contacts, timely pass troughs and unnecessary administration/grant 
oversight were involved to complete the task.
    Proposal.--Give Councils authority to receive money or support from 
other local, State and Federal Government agencies and non-profit 
organizations. This would be consistent with the existing provision of 
the MSA Sec. 302 (f)(4) that requires the Administrator of General 
Services to provide support to the Councils.
                             bycatch issues
    Problem.--Inconsistent definition of bycatch between Atlantic and 
Pacific. In the Atlantic, highly migratory species harvested in catch 
and release fisheries managed by the Secretary under 304(g) of the MSA 
or the Atlantic Tunas Convention Act are not considered bycatch where 
in the Pacific they are.
    Proposal.--HMS in the Pacific managed under a Western Pacific 
Council FMP that are tagged and released alive under a scientific or 
recreational fishery tag and release program should not be considered 
bycatch.
    Note.--There is an inconsistency between the MSA definition of 
bycatch and the NMFS Bycatch Plan. NMFS definition is much broader and 
includes marine mammals and birds and retention of non-target species. 
The Council chairmen prefer the MSA definition.
    The Council chairmen also wish to retain turtles in the definition 
of ``fish'' because of their importance in every region and especially 
in past and possibly future fisheries pursued by indigenous peoples of 
the Western Pacific Region.
                           fmp review program
    Problem.--In the review of recommended management measures, NMFS 
has failed to adequately communicate to the Councils perceived problems 
in a timely manner.
    Proposal.--Mandate that NMFS consult with the Councils before 
disapproving FMPs, amendments or rule changes under frameworking 
procedures.
   emergency rule vote of nmfs regional administrator on the council
    Proposal.--Modify the language of Section 305(c)(2)(A) as follows 
(new language bolded):
    (A) The Secretary shall promulgate emergency regulations or interim 
measures under paragraph (1) to address the emergency or overfishing if 
the Council, by unanimous vote of the members (excluding the NMFS 
Regional Administrator) who are voting members, requests the taking of 
such action; and . . .
    Currently the NMFS RA is instructed to cast a negative vote even if 
he/she supports the emergency or interim action to preserve the 
Secretary's authority to reject the request. The Council chairmen 
believe that Congressional intent is being violated by that policy.
                          mafmc at-large seat
    The Council chairmen recommend that an additional At-Large seat be 
added to the MAFMC along with funding for that purpose. If such a seat 
was added, most of the time it would likely be filled by the State of 
North Carolina. This would allow the State to have both a recreational 
and commercial representative on the MAFMC.

    Senator Snowe. Thank you.
    Mr. Delaney.

     STATEMENT OF GLENN ROGER DELANEY, U.S. COMMISSIONER, 
  INTERNATIONAL COMMISSION FOR CONSERVATION OF ATLANTIC TUNAS

    Mr. Delaney. Thank you.
    Madam Chair, as one of the three Commissioners appointed by 
the President to ICCAT, I am very grateful for the opportunity 
to provide testimony on the implementation of the Sustainable 
Fisheries Act, with particular respect to Atlantic highly 
migratory species of fish. It is not often that these species 
get this level of attention, and I greatly appreciate that.
    I would also say that if your votes this morning were to 
reduce my taxes, it was well worth our time to sit here and 
wait for you. [Laughter.]
    Senator Snowe. We are getting there.
    Mr. Delaney. For the record, ICCAT is the International 
Commission for Conservation of Atlantic Tunas, comprised of 27 
members, representing over 40 nations. ICCAT conducts research 
and sets international conservation regulations for such 
species as Atlantic swordfish, the various billfish species, 
and the five major species of Atlantic tunas.
    Given that our time is our brief, I would like to make some 
very simple points: because Atlantic highly migratory species 
are so important, and because the biology and fisheries for 
these species are so unique, these species must continue to be 
treated under the Act separately and differently from those 
species under regional council authority. In fact, I believe 
those distinctions need to be further clarified and 
strengthened.
    But, first, Atlantic highly migratory species are important 
to the economy of our fishing communities. The ex-vessel value 
of commercial fisheries for these species is about $100 
million, involving over 10,000 vessels from Maine to Texas. 
This value is comparable to such major fisheries as Atlantic 
sea scallops. I might note that it has provided an important 
alternative source of income for New England groundfishermen.
    U.S. recreational fishermen take 100,000 trips each year to 
fish for these species, spending $200 million at billfish 
tournaments alone. The biology of these fish is also very 
unique. A bluefin tuna can make a 4,200 mile transatlantic 
migration in 50 days, due in part to its ability to regulate 
its body temperature as much as 10 degrees above that of the 
water. Swordfish are ubiquitous in the Atlantic, migrating vast 
distances and depths, following currents, temperature 
gradients, and even the cycle of daylight.
    The fisheries for these species are also unique, and among 
the most distant water of all. U.S. Atlantic swordfishermen may 
travel 8 or more days just for the opportunity to compete side 
by side with ships from 20 nations, all fishing on the same 
stocks. When they return to port, our fishermen have to compete 
with the 80 nations that export swordfish to the U.S. market.
    Nevertheless, as important as these species are to the 
United States, the reality is that the total U.S. catch of all 
ICCAT-managed species represents less than 5 percent of the 
total harvest of these species by all ICCAT nations. This is 
perhaps the most important distinction from other U.S. 
fisheries, because it means that the United States cannot 
conserve, manage or rebuild Atlantic highly migratory species 
unilaterally.
    Consequently, U.S. policy has long recognized that 
multilateral cooperation throughout the range of these species 
is essential to 
effective conservation. I believe this reauthorization provides 
the opportunity to strengthen this policy through greater 
linkage of domestic management to U.S. international policy 
objectives and obligations at ICCAT. I would like to provide 
two specific examples.
    First, section 304(e), and other sections of the Act, 
should be clarified to specifically reflect the policy set 
forth by Madam Chair, Senator Breaux, and other members of this 
committee in a January 1998 letter to NOAA, providing extensive 
clarification of congressional intent regarding the SFA. I 
quote from this letter:

          Finally, the law makes clear that U.S. regulatory measures, 
        including rebuilding schedules for fisheries managed under an 
        international agreement to which the United States is a party, 
        must be consistent with the recommendations or regulatory 
        measures adopted under the agreement.

    As you stated, this policy should be clarified not only in 
section 304(e), but through the Act, where appropriate.
    My second example regards section 304(g), which sets forth 
plan development provisions specific to highly migratory 
species. I believe this section should be clarified to ensure 
that our domestic implementation of ICCAT conservation measures 
reflects the explicit intent of U.S. Commissioners as to how 
such measures are applied to U.S. fishermen and women.
    I draw the analogy to congressional intent in legislative 
history to which NMFS rightly looks when implementing fishery 
legislation. However, when NMFS implements fishery agreements 
made at ICCAT, there is no analogy to such legislative history 
that documents the Commissioners' intent. This is a problem 
because, as an ICCAT Commissioner, I have two fundamental 
responsibilities: first, to protect the resource; and, second, 
to protect the best interests of U.S. fishermen and women, both 
commercial and recreational.
    What and how the Commissioners negotiate depends heavily on 
our knowing how a particular conservation measure will be 
implemented domestically and how it will affect the lives and 
families of U.S. fishermen in their communities back home. 
Unfortunately, domestic implementation of our ICCAT 
conservation obligations has not always reflected the express 
intent of the Commissioners on some very key issues. This 
undermines the role of the Commissioners, and will limit our 
ability to be the aggressive conservation leaders at ICCAT we 
have become in recent years.
    I would also note that it has led to a number of lawsuits--
I think there are nine now--for the highly migratory species 
plan--on one plan alone.
    I believe that if there is specific Commissioner intent 
associated with a specific ICCAT obligation, and that intent is 
not inconsistent with the Act, then such intent should be 
reflected in the relevant implementing plans and regulations.
    In closing, I would be grateful for the opportunity to work 
with the Committee to develop an appropriate process and 
provision to address this concern. I would be happy to respond 
to any questions you may have. I would also like to 
particularly thank Madam Chair and the other members, Senator 
Breaux and Senator Kerry, and others of this Committee, who 
have been very supportive of our efforts to solve the many 
problems at ICCAT and to try to make ICCAT work.
    You have committed your time and efforts to understand 
these fisheries and the ICCAT process, and have even committed 
the time of your staff to directly participate in our meetings. 
This has been a great contribution, and I know all the 
Commissioners greatly appreciate it. Thank you very much.
    [The prepared statement of Mr. Delaney follows:]
     Prepared Statement of Glenn Roger Delaney, U.S. Commissioner, 
      International Commission for Conservation of Atlantic Tunas
    Madam Chair, Senators, ladies and gentlemen, as one of the three 
U.S. Commissioners appointed by the President to ICCAT, I am grateful 
for the opportunity to provide testimony on the implementation of the 
Sustainable Fisheries Act with respect to Atlantic Highly Migratory 
Species of fish.
    For the record, ICCAT is the International Commission for the 
Conservation of Atlantic Tunas which is a 27-member forum representing 
over 40 nations including the U.S. Its charge is to conduct research 
and to conserve and manage commercial and recreational fisheries for 
highly migratory species throughout the Atlantic Ocean. These include 
swordfish, the billfish species--Blue and White marlin, Sailfish and 
Spearfish, and the Atlantic tunas including: Bluefin, Bigeye, 
Yellowfin, Skipjack and Albacore. ICCAT also collects important catch 
data on species of oceanic sharks such as blue, porbeagle, mako and 
thresher.
    The Sustainable Fisheries Act was indeed a remarkable achievement 
by Congress and this Committee in particular. It was perhaps the most 
comprehensive review and revision of the Act ever accomplished. 
Nevertheless, due in part to our experience with the implementation of 
the SFA to date, and due in other part to the fundamental reality that 
fisheries research, conservation and management are forever dynamic, 
still further revisions will be necessary. This certainly holds true 
for the highly migratory species policy and provisions of the Act and 
so I am very pleased to have this considered as part of the process.
    Given that my time is very brief, I would like to make some very 
simple points: that highly migratory species are very important; that 
highly migratory species biology and fisheries are very unique; and, 
because of this, highly migratory species must continue to be treated 
in the Act in a manner that is very distinct from those fisheries under 
Regional Council authority. In fact, I believe those distinctions need 
to be further clarified and strengthened.
    First, I would like to present a few facts from the NMFS socio-
economic data regarding the economic importance of these fisheries.
     By my own estimates commercial fisheries for Atlantic 
highly migratory species have an ex-vessel value of about $100 million 
involving over 10,000 vessels from Maine to Texas. This accounts for 
about 5 percent of the ex-vessel value of total U.S. catch of all 
finfish species and is comparable in value, for example, to the total 
value of the New England Sea Scallop fishery as well as to the Atlantic 
and Gulf of Mexico menhaden fishery, one of the largest volume 
fisheries in the U.S.
     NMFS has literally issued 20,194 permits to U.S. 
commercial and recreational fishermen just to fish for Bluefin Tuna, 
and this fishery has provided an important alternative source of income 
to the currently depressed New England groundfish economy.
     There are nearly 400 permitted U.S. pelagic longline 
vessels with over 1,400 crew members supporting about 3,500 shoreside 
jobs, and NMFS has issued permits to over 200 U.S. dealers just to 
handle their $19 million (ex-vessel) swordfish catch.
     NMFS estimates U.S. recreational fishermen spend 100,000 
fishing trips per year targeting these large pelagic fish. Billfish 
tournament anglers alone spend nearly $200 million each year which 
equates to about $4,000 per billfish caught.
     Fresh Atlantic swordfish and tuna are among the most 
expensive seafood dishes in the most expensive restaurants in America. 
At times, the best quality U.S.-caught Atlantic Bluefin Tuna have sold 
for over $25,000 at the Tsukiji fish market in Tokyo.
    As I stated, HMS are also very different--their biology is 
different and their fisheries are different. In terms of biology:
     Bluefin Tuna have been documented to make a 4,200-nautical 
mile trans-
Atlantic migration in as few as 50 days and those tagged this summer 
off Maine and Massachusetts by Dr. Molly Lutcavage of the New England 
Aquarium will likely show up off Iceland, in the Sargasso Sea, or in 
the Mediterranean.
     Although everyone knows fish are cold blooded, Bluefin 
Tuna are actually able to regulate their body temperatures as much as 
10 degrees above the water temperature. This adaptation has allowed 
this species to extend its range far beyond that of tropical and semi-
tropical tunas.
     Swordfish are virtually ubiquitous in the North and South 
Atlantic Ocean, migrating vast distances as they follow currents and 
temperature gradients. And, unlike nearly all other U.S. fishery 
resources, highly migratory species are the apex predators of the 
marine ecosystem. They tend to be long lived and reproduce at a 
relatively late age.
    In terms of the fisheries:
     Compared to most other U.S. fisheries, which occur 
nearshore and well within the U.S. EEZ, some HMS fisheries are among 
the most distant water of all. Some of you may have come to appreciate 
just how distant after reading the recent best-seller ``The Perfect 
Storm''.
     U.S. Atlantic swordfishermen may travel 8 or more days in 
relatively small vessels just to reach their fishing grounds where they 
then have to compete side-by-side with fishing ships from 20 or more 
nations all fishing on the same stocks. If and when they make it back 
home, our swordfishermen then have to compete with the 80 nations that 
export swordfish to the U.S. market.
     Finally, although these fisheries are very important to 
the U.S. in terms of our fisheries economy and recreation, the total 
U.S. catch of all ICCAT-managed species represents less than 5 percent 
of the total harvest of these species by all ICCAT fishing nations.
    This is perhaps the most critical difference because it means that, 
unlike nearly all other U.S. fish stocks, the U.S. cannot conserve, 
manage or rebuild any Atlantic highly migratory species unilaterally. 
Instead, U.S. policy recognizes that effective conservation and 
management of these species can only be achieved on a multilateral 
cooperative basis throughout their range.
    Based on this policy and our experience with the implementation of 
the SFA, I believe there needs to be an even clearer and stronger link 
made in the Act between our international policy objectives for HMS and 
the resulting domestic implementation. I will provide two specific 
examples.
    First, as you will recall Madam Chair, there had been an extensive 
debate with NMFS as to the proper interpretation of the section 304(e) 
rebuilding provisions as they related to HMS. Thanks to the 
interpretations provided by you, Senator Breaux and other members of 
this Committee, we have thus far prevented the `tail from wagging the 
dog' in terms of having domestic fishery management plans preempt and 
dictate U.S. international policy at ICCAT. Still, I believe this 
reauthorization process provides an opportunity we should take to 
clarify your intent in the statute as so well stated in your and 
Senator Breaux's January 28, 1998, letter to Terry Garcia, and I quote:

          Finally, the law makes clear that U.S. regulatory measures, 
        including rebuilding schedules, for fisheries managed under an 
        international agreement to which the United States is a party 
        must be consistent with the recommendations or regulatory 
        measures adopted under the agreement.

    This policy also needs to be strengthened in section 304(g), which 
includes the fishery management plan development provisions that are 
specific to highly migratory species. In that subsection, I believe a 
stronger linkage of plan development to what I will call `Commissioner 
intent' is needed.
    I draw the analogy to the notion of Congressional intent in 
legislative history to which the Administration rightly looks when 
promulgating plans and regulations to implement fishery legislation. 
Though not binding, it provides critical guidance to the agency. 
However, when NMFS promulgates fishery management plans and regulations 
to implement our obligations under ICCAT agreements, there is no 
analogy to such legislative history that documents ``Commissioner 
intent''.
    Why is this a problem? When I go to ICCAT as a Commissioner I 
believe I have two fundamental responsibilities: (1) to protect the 
resource, and (2) to protect the interests and maximize the benefits to 
U.S. fishermen. Both are weighty responsibilities that all the 
Commissioners take every seriously.
    When we make proposals and negotiate with other nations at ICCAT, 
and enter the United States into international conservation 
obligations, it is always with the best interests of U.S. fishermen, 
both commercial and recreational, in the forefront of our minds. What 
and how we negotiate depends heavily on our having a reasonably strong 
degree of confidence as to how a particular conservation measure will 
be implemented by the U.S., how it will be applied to the various U.S. 
fishery sectors and, thus, how it will affect the lives and families of 
U.S. fishermen back home.
    Unfortunately, domestic implementation of our ICCAT conservation 
obligations has not always reflected the express intent of the 
Commissioners on some key issues. This makes me very uncomfortable. Not 
knowing what effect our negotiations and agreements will have on U.S. 
fishermen and their coastal communities seriously undermines our role 
as Commissioners. Ultimately, I think it will limit our ability to be 
the aggressive conservation leaders at ICCAT we have been in recent 
years. I think it has also led unnecessarily to some of the costly 
litigation now facing the agency.
    Of course, this is not to suggest that the Commissioners should be 
in a position to preempt the policies of the Act or the usual 
prerogatives of NMFS. However, if there is specific Commissioner intent 
associated with a particular ICCAT obligation, and that intent is not 
inconsistent with the policies and provisions of the Act, then I 
believe the Act should ensure that such intent is ultimately reflected 
in the relevant plans and regulations. I would be grateful for the 
opportunity to work with the Committee to develop an appropriate 
process to address this concern.
    Finally, I would like to briefly raise some further issues for your 
consideration regarding provisions of the Act as they relate to 
Atlantic highly migratory species.
   (1) national standard 1 and the definitions of ``overfished'' and 
                            ``overfishing''
    I think the use of MSY as a goal is as useful as any of the 
reference points regarding the condition of a fish stock. However, I 
think the Act could reflect a better understanding of what it is, what 
the underlying assumptions are, and what its limitations are. I think 
there is a generally held misconception that any fishery that is not 
continuously producing the maximum sustainable yield is somehow in 
imminent danger of collapse. As a result, I think the Act is fairly 
conservative in its application of this concept.
    This issue relates to the definitions of ``overfishing'' and 
``overfished''. I don't think these two terms should be used in the 
same definition. I think it is appropriate to use MSY as a reference 
point to define a fishery as ``overfished'' with the meaning that the 
stock is not producing the greatest yield it could and that our goal 
should be to gain the greatest yield, in terms of fishing mortality, 
that we can from a fish stock. But, this has more to do with maximizing 
the benefits of a fishery resource to the U.S. than it does to the 
actual protection of a fish stock from decline.
    In my view, the concept of ``overfishing'' relates more to the 
issue of sustainability. Fisheries can be perfectly sustainable at 
yields that are less than the maximum so long as there is an 
equilibrium between the stock inputs of recruitment and growth, and the 
stock outputs; natural and fishing moralities. In my view, overfishing 
is not occurring if the level of fishing mortality is sustainable--
meaning that fishing and natural mortality are in equilibrium with the 
sum of growth and recruitment. There is no decline of the stock under 
that circumstance. The definition of overfishing should reflect a 
fishing mortality rate that when combined with the natural mortality 
rate is not in equilibrium with growth and recruitment and, as a 
result, is causing the stock to decline by weight or numbers of fish.
    I would note there is probably some low level of stock biomass that 
represents a critical level below which a stock might collapse because 
the reproductive potential has been reduced too far. But, above such a 
threshold, I think it might be worth reevaluating how we define these 
terms and how we apply them as either absolute standards or goals.
    Finally, I would note that a fundamental assumption of MSY is that 
environmental parameters are constant. As we know from fishery science, 
however, physical parameters such as temperature, salinity, sunlight, 
nutrients, and currents in estuarine, coastal, demersal and pelagic 
environments have perhaps the most profound effect on recruitment, 
growth and natural mortality.
    Why this can be a problem is that MSY is sometimes based on 
historical data on fisheries during times when environmental parameters 
were almost certainly different than they are today. As a result, it 
may not even be possible today for a stock to achieve an MSY calculated 
from data on a fishery 20 or 30 years ago--even at a fishing mortality 
level of zero. My suspicion is that this may be the situation we face 
with western Atlantic Bluefin Tuna.
    In a similar line of thought, I think it is also unclear within the 
field of fishery population dynamics whether the individual species of 
a given fishery ecosystem can all achieve the species-specific MSY 
simultaneously. When codfish and haddock stocks are low, we can predict 
a relatively high MSY for dogfish. But if those stocks rebound, can we 
expect to achieve the same MSY for dogfish while simultaneously 
achieving high yields of codfish and haddock? Probably not.
    Again, the stringency the Act holds itself to MSY should be 
considered. The point in time at which an MSY for a stock is determined 
relates heavily to the complex relationship between prevailing 
environmental parameters and ecosystem dynamics. As such, should it be 
an absolute standard, or should it be a general goal? And, should the 
Act consider a fishery's sustainability in addition to whether it is 
producing the absolute maximum sustainable yield in weight or numbers 
of fish?
                        (2) national standard 2
    The best available science for highly migratory species is 
inadequate. For example, for the past 16 years, ICCAT has managed the 
Bluefin Tuna as two separate stocks based in part on the premise that 
one of these two stocks spawns exclusively in the Mediterranean and the 
other in the Gulf of Mexico. Now the U.S. is tagging fish of spawning 
age and size that are frequenting vast areas of the central Atlantic/
Sargasso Sea areas at the very same time our science tells us they 
should be spawning.
    Sixteen years of managing the species based on fundamentally-
incorrect assumptions may well have caused significant but unknown 
economic harm to U.S. fishermen and may have seriously compromised our 
ability to effectively manage this species. The bottom line is we need 
more science. We need more dollars for science. Satellite pop-up 
archival tagging is a good start and this needs to be substantially 
expanded for many ICCAT species.
    Finally, the General Accounting Office is currently performing a 
comprehensive study on NMFS implementation of this national standard. A 
careful review of the results of this study when available may provide 
important guidance to the Committee for further revisions to the 
statute in this context.
                        (3) national standard 8
    Socioeconomic data on U.S. fisheries is generally inadequate to 
support proper implementation of this new national standard. The 
situation with respect to Atlantic highly migratory species is 
certainly no exception. A greater commitment of agency resources to the 
collection and proper analysis of socioeconomic data is needed. Proper 
application of the requirements of the Regulatory Flexibility Act would 
also help to satisfy the requirements of this national standard.
    The General Accounting Office is currently performing a 
comprehensive study on NMFS implementation of this national standard as 
well. A careful review of the results of this study when available may 
also provide important guidance to the Committee for further revisions 
to the statute in this context.
                        (4) national standard 9
    This standard requires fishery management plans to minimize bycatch 
to the extent practicable. Bycatch is a tough issue for highly 
migratory species fisheries--both commercial and recreational. However, 
please be aware that much of the U.S. bycatch of highly migratory 
species is ``regulatory'' bycatch--meaning fish that are required by 
NMFS regulation to be discarded by U.S. fishermen. I believe this 
approach needs to be seriously reevaluated. Does it make sense to first 
require a fisherman to discard certain fish and then subsequently to 
establish bycatch reduction requirements on those same regulatory 
discards? I believe it is only logical that a national standard policy 
that requires minimization of bycatch should preclude the widespread 
use by the agency of regulatory discard requirements to achieve 
conservation goals. More creative management is needed.
      (5) section 304(g) highly migratory species advisory panels
    This section requires the Secretary to establish for each highly 
migratory species fishery management plan an advisory panel under 
section 302(g). Section 302(g)(4) requires each such advisory panel to 
``be balanced in its representation of commercial, recreational, and 
other interests''. NMFS has established two such advisory panels; one 
for ``Atlantic highly migratory species'' and one for ``Atlantic 
billfish''. Two issues need to be considered. First, whether the 
appointment of only one commercial fishing representative to the 
billfish advisory panel meets the statutory test for ``balanced''. The 
second issue relates to the fact that, although this is not set forth 
in the statute, NMFS often combines these two panels for meetings to 
secure input on both plans. The net result of this combination is a 
very different ``balance'' of interests than that of the two advisory 
panels held separately. Again, it is unclear if such combined meetings 
and the procedures thereof meet the statutory test for ``balanced''.
    Thank you again for this opportunity to present my views. I look 
forward to working with the Committee on these and other important 
issues. I would be happy to respond to any questions at this time.

    Senator Snowe. Thank you very much, Mr. Delaney.
    Mr. Hinman.

         STATEMENT OF KEN HINMAN, PRESIDENT, NATIONAL 
COALITION FOR MARINE CONSERVATION, ON BEHALF OF THE MARINE FISH 
                      CONSERVATION NETWORK

    Mr. Hinman. Thank you. Good afternoon, Madam Chair.
    My name is Ken Hinman. I am President of the National 
Coalition for Marine Conservation. I have been working on 
marine fisheries management issues professionally for over 20 
years, since shortly after passage of the Magnuson Act in 1976. 
I have served on numerous council advisory panels, as well as 
the ICCAT Advisory Committee. Recently, I was proud to serve as 
a member of the NMFS Ecosystems Advisory Panel that Dave 
Fluharty mentioned earlier.
    I am appearing before you today on behalf of the Marine 
Fish Conservation Network, of which I am co-chair. I appreciate 
this opportunity to present the views of the Network on 
implementation of the Sustainable Fisheries Act by NMFS and by 
the councils.
    The Network is a broad-based coalition of more than 80 
leading environmental groups, commercial and sport fishermen, 
and marine scientists that came together 6 years ago to seek 
reform of the Nation's fisheries laws.
    Enactment of the SFA in 1996 represented a sea change in 
the way marine fish are to be managed in the United States.
    No longer would short-term economic concerns be used to 
allow overfishing, postpone rebuilding and to sacrifice future 
economic benefits. Overfished stocks would be rebuilt as soon 
as possible to healthy and productive levels, and kept there. 
Bycatch, a serious but largely unaddressed problem in many 
fisheries for many years, would be assessed and minimized. 
Essential fish habitat, the biological foundation of all of our 
fisheries, would be identified and protected from degradation 
from both fishing and non-fishing activities.
    Unfortunately, what began with such promise in 1996 has 
failed in many ways to live up to that promise in 1999. The 
Network was the primary advocate of the conservation reforms of 
the SFA. Utilizing our member organizations, active in every 
region of the country, we have evaluated the revised fishery 
management plans and FMP amendments submitted to NMFS by the 
councils. We forwarded our report, evaluating the councils' 
response to the SFA, ``Missing the Boat,'' to this Subcommittee 
in February.
    Since then, we have been actively involved in evaluating 
the NMFS review of the SFA implementation amendments, and have 
found their response lacking in several key areas. The councils 
commonly adopted rebuilding plans with the longest recovery 
periods permitted under the law, instead of rebuilding 
overfished stocks in as short a period as possible. By pushing 
recovery schedules to the absolute limit, given the scientific 
uncertainties involved in making projections on rebuilding, we 
are concerned that the recoveries could and, in some cases, are 
likely to take much longer than 10 years.
    Short-term overfishing is illegally allowed in several 
fisheries. The NMFS National Standards guidelines regulations 
allow overfishing of some fish stocks to occur in mixed-stock 
fisheries unless the stock will be driven to extinction.
    To address these concerns, the Subcommittee may wish to 
prohibit overfishing of every stock in a mixed-stock fishery, 
which would effectively overturn the mixed-stock exception; 
mandate the application of the precautionary approach to 
fisheries management by requiring that conservation and 
management measures include a safety margin, to provide a 
buffer against scientific uncertainty and the risk that 
rebuilding schedules will not be met.
    Of the amendments submitted to NMFS to date, none contain 
any new measures to minimize bycatch. NMFS has allowed the 
councils to ignore the bycatch requirements by approving the 
vast majority of these deficient bycatch amendments. To date, 
only five of 22 amendments where NMFS has issued a decision 
have been disapproved.
    To address these concerns, Congress may wish to refine the 
definition of bycatch to more specifically address the root 
causes--nonselective fishing practices resulting in 
uncontrollable fishing mortality. Second, Congress must 
strengthen the national policy in the Magnuson-Stevens Act to 
avoid bycatch in marine fisheries, not just deal with the 
discards. Finally, amend the Act to require fishery managers to 
establish bycatch reduction targets and schedules to meet these 
targets.
    A bright spot in the otherwise mediocre response to the SFA 
was the identification of essential fish habitat. Across the 
board, councils engaged in a thorough information-gathering 
process, solicited much public input, and produced documents 
that should help protect EFH.
    But all of the councils failed to conduct comprehensive 
assessments of fishing impacts on EFH. Every council failed to 
adequately reduce the harmful effects of fishing on EFH. NMFS 
has approved all but three of these inadequate EFH amendments.
    To address these concerns, the Subcommittee may wish to 
consider an amendment to the Magnuson Act to require regional 
fishery management councils to act to protect EFH from adverse 
fishing impacts. To further encourage councils to take action, 
amend the Act to prohibit the introduction of new fishing gear 
or the opening of closed areas to prohibited fishing gear 
unless EFH damage is minimized.
    Finally, to ensure that EFH is protected from land-based 
activities, the Subcommittee could enhance the NMFS EFH 
consultation authority by requiring Federal agencies to ensure 
that their actions are not likely to adversely affect EFH.
    In regard to some more general fisheries management 
concerns, the Network is concerned, as we heard from a lot of 
others this morning, with the serious lack of comprehensive 
fisheries data. The Subcommittee may wish to consider 
addressing this problem in two ways.
    First, in many parts of the country, inadequate fisheries 
surveys are conducted because of a lack of funding. Inadequate 
fishery-independent data is recognized as a major impediment to 
sound fishery management of many fisheries. NMFS is attempting 
to address these problems by purchasing four new fisheries 
research vessels. Funding for the first is contained in its 
fiscal year 2000 budget request. The Subcommittee should 
support this request, as well as funding for fisheries surveys 
generally.
    The second way--and this is seconding what many of the 
previous witnesses have endorsed, as well as Senator Kerry in 
his opening remarks--is obtaining fisheries data through the 
use of onboard observers. Observer-generated information can 
provide the statistically significant and reliable information 
necessary to meet the objectives of the Magnuson Act. To 
improve observer coverage, Congress may consider amending the 
Magnuson Act to establish a mandatory fishery observer program 
for all federally-managed fisheries, and fund observer programs 
with a user fee based on value and applied to all fish landed 
and sold in the United States.
    The regional councils are charged with the conservation and 
management of the Nation's marine fish, which are held in trust 
for all Americans. Unfortunately, the councils are dominated by 
representatives of the fishing industry. To address this 
concern, Congress may wish to amend the Magnuson Act to ensure 
that councils are more broadly representative of the public 
interest as they make decisions regarding the conservation and 
management of public resources.
    Last, we would like to take just a moment to react to some 
of the reauthorization issues included in the testimony of the 
council chairmen that was submitted for the record. While we 
are supportive of certain of their suggestions, we have some 
concerns with others. The council chairs are advocating 
unconditionally that the moratorium on IFQ's not be extended. 
The Network disagrees with an unconditional lifting of the 
moratorium, believing instead that the moratorium should be 
extended unless and until Congress satisfactorily establishes 
the conservation standards the Network has identified as 
necessary components of any IFQ program.
    Standards must be adopted that, among other things, clarify 
that IFQ programs do not create a compensable property right, 
demonstrably provide substantial new conservation benefits to 
the fishery, are of limited duration, and are reviewed 
periodically by an independent body to determine whether they 
are living up to those standards and, based on this review, 
whether IFQ programs or quota shares would be renewed, 
terminated, restructured or reallocated.
    Finally, and maybe most importantly, the Network strongly 
opposes the councils' suggestion that they be given greater 
latitude in specifying rebuilding periods, and that economic 
considerations be given equal or greater consideration. As I 
stated earlier, the councils have fully utilized the latitude 
provided them by consistently developing 10-year rebuilding 
plans--the longest allowed under law. Allowing the councils 
greater latitude in placing greater emphasis on short-term 
economics will result in extending rebuilding periods even 
longer. Instead of easing economic hardship, this would prolong 
it.
    I would like to second the remarks of Mr. Hill in the 
previous panel that swift and deliberate action to rebuild 
fisheries can provide far greater economic benefits in the long 
run than to take incremental and baby steps, and prolong the 
economic hardship through a protracted recovery period.
    I have probably gone over my limit, so I will wrap up my 
comments here, and thank you for allowing the Network the 
opportunity to address these concerns. I would be happy to 
answer any questions. Thank you.
    [The prepared statement of Mr. Hinman follows:]
  Prepared Statement of Ken Hinman, President, National Coalition for 
                          Marine Conservation
    Good morning Madame Chair and Members of the Subcommittee, my name 
is Ken Hinman. I am President of the National Coalition for Marine 
Conservation. I am appearing before you today on behalf of the Marine 
Fish Conservation Network (Network), of which I am Co-Chairman. I 
appreciate the opportunity to present the views of the Network on 
implementation of the Sustainable Fisheries Act (SFA) by the National 
Marine Fisheries Service (NMFS) and the regional fishery management 
councils (councils). The Network is a broad-based coalition of more 
than 80 leading environmental groups, sport and commercial fishermen, 
and marine scientists that came together 6 years ago to seek reform of 
the nation's fisheries laws. Overall, our member groups represent more 
than two million Americans.
    The Network is unique in that it represents both environmentalists 
and fishermen. In fact, the commercial and recreational fishermen that 
are Network members are some of the strongest conservationists you will 
find. That is what makes the Network truly unique, fishermen working 
hand in hand with environmentalists to conserve marine fish for future 
generations.
    Enactment of the SFA in 1996 represented a sea change in the way 
marine fish are to be managed in the United States. No longer would 
short-term economic concerns be used to allow overfishing and postpone 
rebuilding. Overfished stocks would be rebuilt as soon as possible. 
Bycatch, the catch of non-target species, would be assessed and 
minimized. Essential Fish Habitat (EFH), critical to the long-term 
sustainability of U.S. fish, would be identified and protected from 
degradation resulting from both fishing and non-fishing activities. 
Unfortunately, what began with such promise in 1996 has failed to live 
up to that promise in 1999.
    The Network was the primary advocate of the conservation reforms of 
the SFA, including mandates to prevent and stop overfishing, rebuild 
overfished stocks, minimize bycatch, and protect essential fish 
habitat. As such, we are very concerned that the SFA is implemented as 
Congress intended. Utilizing our member organizations active in every 
region of the country, we have evaluated the revised fishery management 
plans (FMPs) and FMP amendments submitted to NMFS by the councils. We 
forwarded our report evaluating the councils' response to the SFA 
entitled Missing the Boat: An evaluation of fishery management council 
response to the Sustainable Fisheries Act to the Subcommittee in 
February 1999.
    Since then, we have been actively involved in NMFS's review of the 
SFA implementation amendments and have found their response lacking in 
several areas. Below is a listing of our primary areas of concern.
                              overfishing
    The SFA requires that FMPs contain a new definition of overfishing, 
setting both maximum fishing mortality levels and minimum population 
size thresholds. For species determined to be overfished, it requires 
that FMPs include conservation measures designed to rebuild the stocks 
to maximum sustainable yield (MSY) within a prescribed period. The 
plans must include provisions to restore the population to MSY in less 
than 10 years, unless the biology of the species dictates a longer 
rebuilding period, in which case recovery should be ``as short as 
possible.''
Network Issues
     The councils commonly adopted rebuilding plans with the 
longest recovery periods permitted (10 years), instead of rebuilding 
overfished stocks in as short a period as possible.
     Short-term overfishing is illegally allowed in several 
fisheries, e.g., Atlantic Sea Scallops, Monkfish, and Black Sea Bass.
     NMFS's National Standard Guideline regulations allow 
overfishing to occur in mixed stock fisheries, unless the stock will be 
driven to extinction. This ``mixed stock'' exception has allowed 
certain councils to sanction overfishing of severely depleted fish 
stocks, e.g., Boccacio Rockfish on the west coast.
    There are several legislative options to address these concerns 
that the Subcommittee may wish to consider as it develops legislation 
to reauthorize the Magnuson-Stevens Act. First, prohibit overfishing of 
every stock in a mixed stock fishery, which would effectively overturn 
the ``mixed stock exception.'' Second, prohibit overfishing of each 
population of an overfished species to prevent even short-term 
overfishing. Finally, mandate the application of the precautionary 
approach to fisheries management by requiring that conservation and 
management measures include a safety margin to provide a buffer against 
scientific uncertainty, thus guarding against inadvertent overfishing. 
Caution is particularly important given the fact that the status of 544 
species of managed fish is currently unknown. This level of uncertainty 
is an accident waiting to happen.
                                bycatch
    The SFA requires councils to establish a standardized reporting 
methodology to assess the amount and type of bycatch in managed 
fisheries. The Act also requires councils to adopt conservation and 
management measures that avoid bycatch and minimize the mortality of 
unavoidable bycatch.
Network Issues
     No council established a required standardized bycatch 
reporting system.
     Of the amendments submitted to NMFS to date, none contain 
any new measures to reduce bycatch.
     NMFS has allowed the councils to ignore the bycatch 
requirements by approving the vast majority of these deficient bycatch 
reduction measures (to date, only 5 of 22 amendments where NMFS has 
issued a decision have been disapproved).
    To address these concerns, Congress may wish to refine the 
definition of bycatch to more specifically address the root causes and 
effects of this problem and its harmful effects on fish populations and 
marine ecosystems, non-selective fishing 
practices. Second, Congress must strengthen the national policy in the 
Magnuson-Stevens Act to avoid bycatch in marine fisheries. Finally, 
amend the Magnuson-Stevens Act to require fisheries managers to 
establish bycatch minimization standards and schedules to meet those 
standards.
                      essential fish habitat (efh)
    The SFA requires councils to describe, identify, and conserve EFH 
for each managed species. The Act also requires councils to assess the 
impacts of all fishing activities on EFH and minimize any adverse 
impacts. Further, the SFA requires NMFS to identify Federal activities 
that may adversely impact EFH and provide recommendations to those 
agencies on ways to minimize or mitigate those adverse impacts.
Network Issues
     All of the councils failed to conduct comprehensive 
assessments of fishing impacts on EFH.
     Every council failed to adequately reduce the harmful 
effects of fishing on EFH. Only two councils (North Pacific and South 
Atlantic) adopted any measures to protect EFH from fishing, and those 
measures do not adequately protect all EFH within each council's 
jurisdiction.
     NMFS has approved all but one of these inadequate EFH 
amendments (it recently disapproved the fishing impacts on EFH sections 
for three of the Mid-Atlantic Council's FMPs). In other cases, NMFS has 
appropriately disapproved amendments for not assessing the impacts of 
all fishing activities under a council's jurisdiction, while at the 
same time approving wholly inadequate assessments of certain fishing 
activities. For example, it disapproved parts of the Gulf of Mexico's 
amendment for not assessing all fishing gear, but approved a cursory 
analysis of shrimp trawling.
     The one bright spot in the otherwise mediocre response to 
the SFA was the identification of EFH. Across the board, councils 
engaged in a thorough information gathering process, solicited much 
public input, and produced documents that should help protect EFH.
     In an effort to appease development interests, NMFS is 
preparing expedited and consolidated EFH consultation procedures. The 
Network is concerned that these new procedures will not result in 
enhanced protection of EFH, as envisioned by Congress.
    To address these concerns, the Subcommittee may wish to consider an 
amendment to the Magnuson-Stevens Act, to require regional fishery 
management councils to act to protect EFH from adverse impacts from 
fishing. To further encourage councils to take action, amend the Act to 
prohibit the introduction of new fishing gear or the opening of closed 
areas to prohibit fishing gear unless EFH damage is minimized. Finally, 
to ensure that EFH is protected from land-based activities, the 
Subcommittee could enhance the EFH consultation authority by requiring 
Federal agencies to ensure that their actions are not likely to 
adversely impact EFH.
                 general fisheries management concerns
Fisheries Data
    The Network has several other concerns with Federal fisheries 
management. One of the most serious is the lack of comprehensive 
fisheries data. Fisheries management decisions are too often made 
without adequate information. In many parts of the country, inadequate 
fisheries surveys are conducted because of a lack of funding. For 
example, west coast fisheries surveys are only conducted once every 3 
years. In other fisheries, managers rely on self-reporting by 
fishermen. This type of data is often of questionable accuracy because 
it is used to enforce quotas and assess bycatch; fishers may have a 
tendency to under report. Finally, not all fishing sectors are 
adequately assessed, often because of the difficulty in conducting 
assessments. For example, the catch of party fishing boats--vessels 
carrying from 20 to more than 100 recreational fishers--is not being 
quantified. This is a fast-growing sector of recreational fishing whose 
potentially significant catches must be quantified and included in 
calculations of fish stock abundance.
    The Subcommittee may wish to consider addressing this problem in 
two ways. First, ensure that adequate funds are available for fisheries 
independent assessments of fish population size. Fishery independent 
data is essential to providing unbiased indices of abundance for stock 
assessments, which are too often based on self-reported fishery-
dependent data. Inadequate fishery-independent data is recognized as a 
major impediment to sound fisheries management. NMFS is attempting to 
address these problems by purchasing four new fisheries research 
vessels, funding for the first is contained in its fiscal year 2000 
budget request. The Subcommittee should support this request as well as 
funding for fisheries surveys generally.
    Another way to increase funding for fisheries surveys is to earmark 
a portion of outer continental shelf (OCS) revenues for fisheries data 
collection. As you know, there are several legislative proposals before 
the Congress to distribute OCS revenues to states. The Network has not 
taken a position in support of, or opposition to, any particular bill. 
However, we would like to encourage you to set aside at least $50 
million annually for the collection of fisheries data. Such funds 
should be available for the conduct of projects in both State and 
Federal waters. These programs should be undertaken jointly by NMFS and 
the three interstate marine fisheries commissions. Such cooperative 
programs will ensure that the data collected is consistent among the 
states and useful to Federal fisheries managers. An example of such a 
program is the Atlantic Coast Cooperative Statistics Program which is 
conducted cooperatively by NMFS and the Atlantic States Marine 
Fisheries Commission.
    The second way to obtain fisheries data is through the use of on-
board observers. Observers are essential to monitoring and minimizing 
bycatch as well as collecting other important fisheries information. 
Fisheries managers recognize the need for objective observation and 
data collection to effectively manage marine fish and fisheries. 
Managers' abilities to address the problems of overfishing, bycatch, 
and degradation of fish habitat are limited because they do not have 
accurate and reliable information on a fishing vessel's catch, 
including bycatch and discards. Observer generated information can 
provide the statistically significant and reliable information 
necessary to meet the objectives of the Magnuson-Stevens Act, including 
monitoring, analyzing, and reporting bycatch and discards, landings, 
and fishing impacts on EFH.
    To address these problems, the Congress may amend the Magnuson-
Stevens Act to: (1) establish a mandatory fishery observer program for 
all federally-managed fisheries; and (2) fund observer programs with a 
user fee based on value and applied to all fish landed and sold in the 
United States.
Regional Fishery Management Councils
    The regional fishery management councils are charged by the 
Magnuson-Stevens Act with developing FMPs and FMP amendments for the 
managed species under their jurisdiction. Therefore, the councils were 
responsible for developing SFA implementation amendments, and as we 
pointed out in our report, they all ``missed the boat.'' While much of 
the blame can be placed at the feet of NMFS for the regulatory and 
other guidance that it provided, the councils are also responsible for 
not adequately addressing the requirements of the SFA. The Network 
believes that the councils' dismal response to the SFA is at least in 
part due to their composition. Although the councils are charged with 
the conservation and management of the nation's marine fish, which are 
held in trust for all Americans, the councils are dominated by 
representatives of the fishing industry. Interests of the general 
public, as well as non-consumptive users of marine fish, such as 
divers, are not adequately represented on the councils.
    Marine fish are public resources. Decisions regarding their 
management should be made in the public interest, not simply the 
economic interest of a few in the fishing industry. Accordingly, 
representatives of the public interest must sit on regional fishery 
management councils.
    To address this concern, Congress may wish to amend the Magnuson-
Stevens Act to ensure that councils are more broadly representative of 
the public interest as they make decisions regarding the conservation 
and management of public resources. Additionally, Governors should be 
required to consult with conservation groups before nominating 
individuals to a council.
   network reaction to reauthorization issues raised by the council 
                                chairmen
    The Network has reviewed the reauthorization issues raised by the 
council chairmen. While the Network is supportive of certain of these 
suggestions, we have significant concerns with others. Below is a 
listing of our concerns.
Rescinding the Congressional Prohibitions on Individual Fishing Quotas 
        (IFQs) or Individual Transferable Quotas (ITQs)
    The council chairs are advocating, unconditionally, that the 
moratorium on IFQs not be extended. The Network disagrees and believes 
that the moratorium should be extended unless Congress satisfactorily 
addresses all of the Network's conservation principles. Standards must 
be adopted that, among other things, clarify that IFQ programs: (1) do 
not create a compensable property right; (2) demonstrably provide 
substantial new conservation benefits to the fishery; (3) are of 
limited duration, not to exceed 5 years; and (4) are reviewed 
periodically by an independent body to determine whether they are 
living up to these standards.
Regulating Non-Fishing Activities of Vessels
    The council chairs have requested additional legal authority to 
regulate non-
fishing activities of vessels that adversely impact EFH. The Network 
supports this proposal. However, we find it ironic that the councils 
would ask for additional authority to protect EFH when none of the 
councils have used their existing authority to adequately reduce the 
harmful effects of fishing on EFH. To justify their proposal, the 
council chairs point out that anchor chains can damage 70 acres of 
bottom habitat. While that is a significant area of impact, it pales in 
comparison to the area impacted by fishing activities. In New England, 
scientists from the University of Connecticut have found that the 
40,806-square kilometer bottom of Georges Bank is ``plowed'' by bottom 
trawls and dredges between two and four times per year. Given the much 
greater area impacted by fishing activities, we hope that this request 
for new authority represents a renewed emphasis by the councils to 
protect EFH.
Observer Program
    The council chairmen have asked that they be given discretionary 
authority to establish fees to help fund observer programs modeled 
after the authority granted to the North Pacific Council. The Network 
strongly supports observer programs. However, we differ from the 
council chairs in that we believe that mandatory observer programs 
should be established in all fisheries to provide statistically valid 
and reliable information for monitoring, analyzing, and reporting 
bycatch and discards, landings, and fishing impacts on EFH. Moreover, 
we believe that such programs should be industry funded.
                         essential fish habitat
    The Network strongly objects to the council chairs suggestion that 
the legal definition of EFH be modified in order to narrow its 
geographic scope. The legal definition of EFH is: ``those waters and 
substrate necessary to fish for spawning, breeding, feeding, or growth 
to maturity.'' The key to the definition is how ``necessary'' is 
interpreted. The councils and NMFS could have interpreted the area that 
is ``necessary'' to be smaller. However, they chose to identify EFH in 
a precautionary manner and designated fairly large areas as EFH. Given 
the general lack of information on EFH this is appropriate. As more and 
better information becomes available, the areas identified as EFH can 
be narrowed. The definition of EFH does not need to be changed for this 
to happen.
Rebuilding Periods
    The Network strongly opposes the councils' suggestion that they be 
given greater latitude in specifying rebuilding periods and that 
economic considerations be given equal or greater consideration. As I 
stated earlier, the councils have fully utilized the latitude provided 
them by consistently developing 10-year rebuilding plans--the longest 
allowed under current law. Allowing the councils greater latitude and 
placing greater emphasis on economics will result in extending 
rebuilding periods even longer. Extending rebuilding periods beyond 
that which is biologically feasible, thus allowing overfishing to 
continue in the short-term, increases the chances that overfished 
stocks will not be rebuilt. Instead of easing economic hardship, it 
prolongs it. The best way to minimize the economic impact of fisheries 
conservation measures is to insure the long-term stability of fish 
stocks. Extending rebuilding periods past the current limit of 10 years 
will perpetuate the boom and bust cycles that have characterized our 
fisheries.
Redefine ``Overfishing''
    The council chairs have stated that they believe that there are a 
number of problems with basing the definition of overfishing on maximum 
sustainable yield (MSY). While the council chairs have not made a 
specific proposal to modify the definition of overfishing, we are 
concerned that they seem to be blaming the use of MSY for the large 
number of fish that are defined as overfished. This is akin to shooting 
the messenger when you don't like the message. The Network opposes any 
changes to the definition of overfishing. The National Standard 
Guidelines allow the use of ``alternatives to specifying MSY'' when 
data is insufficient to estimate MSY directly. In addition, 
deficiencies in the data upon which MSY based can, and should, be 
addressed through the use of uncertainty buffers. Under such a system, 
MSY would be lowered to guard against uncertainty, thus protecting fish 
stocks from being overfished because of errors in estimating MSY.
    Thank you for allowing the Marine Fish Conservation Network the 
opportunity to discuss implementation of the Magnuson-Stevens Act. The 
Network looks forward to working with the Subcommittee as it reviews 
implementation of the SFA by NMFS and the councils, and develops 
legislation to reauthorize the Magnuson-
Stevens Act. I am prepared to answer any questions members of the 
Subcommittee may have.

    Senator Snowe. Thank you.
    I want to thank you all of you for your testimony.
    Mr. Hinman, let me just begin with you. You say that no 
council has defined EFH's, essential fish habitats, you are 
saying adequately or what?
    Mr. Hinman. No. Actually, we complimented them on their 
identifying and defining EFH.
    Senator Snowe. They just did not define it appropriately or 
the scope of it?
    Mr. Hinman. It was their actions to protect EFH from the 
effects of fishing activities in particular that most 
disappointed us. Because, in nearly all cases, they did not 
take any action. That is probably the single thing that the 
councils, under their authority, can do to protect habitat, is 
to regulate fishing impacts.
    Senator Snowe. But you admit that they probably do not have 
enough information or accurate data to make those decisions, 
and that there would be obviously the problem that has been 
already raised, about being almost too broad? Now, you might 
not think so. You might think that is fine. But in the event 
that it is too broad and it does have an impact on an industry, 
should not there be an ability to sort of narrow the scope of 
the area, the geographic area?
    I think NMFS is attempting to do that in its own way.
    But would it require more information, more data? I will 
ask Mr. Swingle to comment, too, since he serves on a council, 
on how they have handled that issue. But what would you 
recommend, short of something that is wrenching to the 
industry? Obviously, this is a new area and one that should be 
appropriately addressed--no question about it.
    Obviously, I think we have to look in the entire area, and 
habitat is very important to the survival and the health of the 
species. But it also could entail being a much broader area 
that creates other problems.
    Mr. Hinman. What we wanted was at least a good-faith effort 
on the part of the councils to address this problem. I think, 
in some cases, there is information available that was 
overlooked. There is certainly truth to the fact that in a lot 
of cases better information is needed.
    Unfortunately, the councils in most cases did not even take 
the trouble to assess those situations, to try to draw together 
a plan on how they were going to obtain that information that 
was necessary to make these decisions. So I do not think they 
even made a good-faith effort, and they really tried to duck 
this issue.
    I do not know that this is a matter of the scope of the 
definition of EFH. I think it is a matter of determining the 
impacts of the fishing gear on specific habitats. If those 
impacts are severe enough that they are having detrimental 
impacts on the resources, this is not just a resource issue. It 
becomes a fishery management issue and a fishing industry 
issue.
    Many members of this Network that I am speaking on behalf 
of today are commercial and sport fishermen and associations on 
both coasts, who agree with us and feel very strongly that the 
EFH implementation did not go far enough and it was not 
aggressive enough, because their incomes, their jobs and their 
industries depend on that habitat.
    Senator Snowe. Does the EFH definition in the current Act 
allow for the consideration of the impact of fishing gear on 
the habitat?
    Mr. Hinman. It requires consideration of the impact, yes.
    Senator Snowe. So the councils have the ability to include 
that?
    Mr. Hinman. Yes.
    Senator Snowe. Did any of the councils?
    Mr. Hinman. There was some cursory attempts to do that, 
yes.
    Senator Snowe. Mr. Swingle, the Gulf of Mexico Council 
approached this issue.
    Mr. Swingle. Yes. I would like to point out, the litigation 
that is going on really is from the American Ocean Campaign and 
the same charge is made against the Gulf Council, the New 
England Council, the Caribbean Council, the Pacific Council, 
and the North Pacific Council, of being delinquent in their 
duty of regulating gear that might affect the habitat.
    I think part of the problem is the group that Mr. Hinman 
represents is not aware, at least, of what has been done in the 
past in that type of management. Having been, the State Fishery 
Director of Alabama, we regulated the use of trawls in a large 
number of areas to protect habitats or to protect other 
resources. That has always occurred at the State level.
    Our council has drawn a zone from the Florida Keys to the 
Mexican border, in which three types of gear are prohibited. 
One of these is roller trawls, which I guess they call rock 
hoppers in the New England area. So, overall, there is probably 
about on the order of 40,000 square miles where that gear is 
prohibited. We also establish habitat areas of particular 
concern under our council, where bottom-type gear was 
prohibited for operating in that area because it might damage 
coral or other resources. I am sure that those types of actions 
over the 22-year period of the councils were taken by other 
councils.
    So I do not think, really, Mr. Hinman's group has really 
gone back and assessed all the amendments done by all the 
councils to really establish what has or has not been done.
    Mr. Hinman. Yes, I will respond to that.
    Senator Snowe. Mr. Hinman.
    Mr. Hinman. Actually, I am aware of things that were done 
prior to the implementation of the Sustainable Fisheries Act. I 
am also aware that the Gulf Council, when it was not required 
to, I think it was one of the earlier movers in putting 
together a habitat committee and addressing habitat issues. But 
that is not the issue.
    The issue is that since passage of the Sustainable 
Fisheries Act and the requirement to take a more vigorous and 
more aggressive approach to protecting habitat from these kind 
of threats, the councils chose to rely on past actions as 
adequate and sufficient in meeting the requirements of the Act. 
We do not believe that they are. There were still a lot of 
problems and a lot of threats outstanding. There was not a 
good-faith effort to address those.
    It kind of reminds me of when the Ecosystems Advisory 
Panel, when we took Congress' first step of trying to assess, 
to the extent ecosystem principles were being applied by all of 
the councils, we requested from the councils, OK, what are you 
doing, how are you applying these principles? Almost to a one, 
they all came back trying to characterize almost all kinds of 
management that they were doing as ecosystems management. It 
was really just trying to pass off what has already been done 
as being adequate and that we really do not need to do anymore.
    We always end up coming out as if we are just focusing on 
the negative. But the negative is the problem. We do not need 
to sit here and congratulate the councils for the things that 
they have done in the past. What we want to do is to make sure 
that the things that still remain to be done, that still are 
very important to our fisheries and to rebuilding them, are 
done.
    Senator Snowe. Mr. Delaney, you referred to the fact that 
the rules and regulations that are implemented by NMFS do not 
reflect oftentimes the intent of the agreements that have been 
negotiated by you as a Commissioner to ICCAT. Could you further 
elaborate and give us examples as to which areas there is a 
disconnect between the agreements and the rules and regulations 
that are ultimately promulgated by the Department?
    Mr. Delaney. Yes, I will. I appreciate that question.
    As I said, when we are negotiating internationally, we have 
to account for the protection of the resource as well as the 
best interests of U.S. fishermen. We have to be thinking 
simultaneously about the effect of our conservation 
recommendations on the fish and the effect on U.S. fishermen. 
We often discuss among the Commissioners our specific intent as 
to how a measure should be applied, how will we apply this to 
our own fishermen, before going forward with making a 
commitment and obligating the United States in the form of an 
international agreement at ICCAT.
    It is with that understanding, that confidence, that we 
protected the interests of U.S. fishermen, that I feel I can go 
forward in negotiating and obligate the United States into that 
agreement.
    Unfortunately, I have observed a number of cases where 
those very explicit discussions have taken place which were not 
ultimately reflected in plans and regulations. I jotted down a 
few.
    In 1997, we had a very specific understanding of how a 
particular ICCAT vessel monitoring system would be applied to 
the domestic pelagic longline fishery. The agreement for the 
pilot program was that it would apply to 10 U.S. vessels or 10 
percent of the U.S. high seas fleet. This is the fleet that 
fishes offshore, beyond our exclusive economic zone. The 
contrary result was that NMFS required equipment to be 
installed on 100 percent of the fleet, both inshore and 
offshore. The result is another lawsuit.
    Another example is with regard to bluefin tuna, which is 
close to home for you. We just went through a process in 1998, 
where our agreement on the rebuilding of bluefin tuna resulted 
in a net increase of 43 tons for the United States. Our 
discussions among the Commissioners was that these 43 tons 
should be appropriately distributed in a proportional manner 
among each of the different U.S. gear sectors, as were other 
provisions that we agreed to that year. The result was that one 
particular gear group was singled out for not receiving any of 
that tonnage, and the remaining was distributed among all the 
other gear types.
    I am not here to advocate for any particular gear group. 
The point was that it was a very, very explicit discussion that 
was not reflected in the plan. It had to go through a rather 
elaborate process afterwards to clarify that intent. Another 
lawsuit was filed. I think the problem will ultimately be 
resolved, but what an incredible waste of time, energy and 
money.
    We need a process that documents the Commissioners' intent 
so that we feel comfortable that when we go to ICCAT and make 
those commitments, that will be the way it is carried out back 
home. Perhaps there needs to be a Commissioners' report, some 
analogy to legislative history that you produce in the 
legislative process. I would like to work with your Committee 
on that.
    Senator Snowe. Do they seek your input?
    Mr. Delaney. Actually, the Sustainable Fisheries Act does 
have a provision, in 304(g) I believe, that does require 
consultation with the U.S. Commissioners in the development of 
plans. I have to say that in my own personal experience, 
although I often offer my own unsolicited opinions on different 
issues before the agency, I have never had my opinion as a 
Commissioner solicited in terms of how to develop a plan or a 
regulation that was implementing an ICCAT agreement--never. The 
process does not exist.
    Senator Snowe. How long have you been Commissioner?
    Mr. Delaney. I am going into my fifth-year cycle, 5 years.
    Senator Snowe. They have never solicited my opinion?
    Mr. Delaney. No. But, in fairness, I have given my opinion 
unsolicited. [Laughter.]
    Senator Snowe. Well, it is a good thing you are assertive.
    Mr. Hinman. I can attest to that.
    Mr. Delaney. But there is no process set up for it 
whatsoever.
    Senator Snowe. There is no process, and obviously there 
should be. It is unfortunate that it even has to be required or 
that it is necessary. But it does not make sense. If you are 
spending all your time representing the United States in 
negotiating these agreements and it is not reflected in how it 
is implemented at home, it just clearly does not make any 
sense.
    Well, that is something we will work with, in the 
reauthorization process, to ensure that communication takes 
place, if we have to require it. I think it is regrettable that 
it is even necessary, but it may well be. Because it is not 
right, nor fair, and it puts our fishermen at I think a 
competitive disadvantage, in the final analysis.
    Mr. Delaney. Indeed. Thank you.
    Senator Snowe. Yes, Mr. Hinman?
    Mr. Hinman. Yes, I wanted to comment on that, if I might. 
There is one aspect of consistency with the Sustainable 
Fisheries Act and international fisheries management, in this 
case, under ICCAT, that I would like to address. That is the 
requirement in the SFA to minimize bycatch.
    Bycatch is a serious problem in our highly migratory 
species fisheries. It is also a problem that must be--not just 
legally, but as a practical matter--must be addressed 
domestically. ICCAT cannot tell us how to modify our gear, what 
areas to close, how to change fishing practices, how to 
reallocate quotas. It does not do that. Those are domestic 
decisions. This is a problem that we have to address ourselves.
    It is also something that has been undermining the 
effectiveness and the recommendations of ICCAT, because we have 
not dealt with it sooner. There are ICCAT recommendations on 
minimum sizes, where because we have not dealt with non-
selective fishing practices, we end up discarding all those 
fish that we are meant to protect. We also have fisheries where 
ICCAT recommendations applying to landings are meant to control 
mortality in the billfish fisheries, where a great majority of 
the mortality is bycatch mortality. Because we have not 
addressed that, we are not controlling that mortality.
    I do not believe that such measures are inconsistent with 
management under ICCAT or ICCAT recommendations. In fact, they 
are very consistent, and will help achieve ICCAT 
recommendations without disadvantaging U.S. fishermen. They are 
also something that only we can do. We cannot push that kind of 
decision making and resolving that problem into the 
international arena.
    Senator Snowe. Mr. Swingle, again, can you respond to the 
issue of the bycatch in the definition that is in the current 
Act? As you heard from Mr. Hinman's testimony, he is saying 
none of the amendments that have been submitted to numbers by 
the council contain any new measures to reduce bycatch--
according to his testimony.
    Mr. Swingle. In the case of ours, that would be correct. 
What we did is operated outside that amendment and went forward 
with an amendment, prior to submitting our Sustainable 
Fisheries Act amendments, that addressed bycatch in the shrimp 
fishery for the area from Apalachicola, FL to the Mexican 
border. We required bycatch reduction devices in the trawls 
used in that fishery. That was implemented in May 1998.
    We are currently developing an amendment to the shrimp 
plan, again, to address bycatch for the Eastern Gulf of Mexico. 
That one probably will be implemented next year.
    We did evaluate the extent of bycatch for all of our 
fisheries. A lot of them, basically, have almost none--like the 
spiny lobster and stone crab fisheries. Probably the biggest 
problem that we may have is in regulatory discards, that we 
have created. In requiring minimum size limits, we have created 
bycatch, or regulatory discards, levels that, for instance, in 
the recreational fishery for red snapper are on the order of 60 
percent of all fish caught are thrown back overboard. In the 
case of the two major grouper fishes off Florida, the 
recreational sector is throwing back 85 percent of the fish.
    So all of this results in some release mortality. We are 
not quite sure how to address alleviating those levels of 
regulatory discards in those fisheries. It does not really 
matter if that return rate is that high as long as the fish 
survive. But the survival of the fish is a function of the 
water depth that they were taken from. The deeper the water, 
the less the survival rate is.
    So we are not quite sure how to address those issues. We 
may at some point in time, the ideal system would be that if 
you fish beyond 20 fathoms, you kept all your fish, regardless 
of what size they were. If you fished inshore, then you would 
have to return all undersized fish because they would probably 
survive. But that has a lot of complications in that type of 
system, as well.
    Senator Snowe. Mr. Delaney.
    Mr. Delaney. Since the issue of bycatch in the context of 
ICCAT was brought up by Mr. Hinman, I would just like to 
clarify a couple of points. First of all, ICCAT does address 
the issue of bycatch. I would first note that we do have what I 
believe is a failed policy at ICCAT to try to protect juvenile 
fish, regardless of the species. We have it almost across the 
board where we have minimum sizes. Minimum sizes, we found, are 
just not internationally enforceable.
    So, increasingly, ICCAT has started to focus on 
alternatives to reduce the bycatch of small juvenile fish. This 
is on the strong advice of our scientific committee, the SCRS 
at ICCAT, which has urged us, in almost all species, to reduce 
the mortality of juvenile fish in order to help us restore and 
rebuild the stocks.
    The alternative that we are finding more and more 
attractive is the development of time-area closures. Rather 
than have the policy of regulatory discards, which is exactly 
what I just referred to as minimum size requirements--which I 
find to be totally inconsistent with the National Standard to 
reduce bycatch while simultaneously requiring bycatch and 
discards, it is an inconsistent policy that needs to be 
addressed. But, again, the alternative that we are looking at 
is time area closures. Already, ICCAT, contrary to what Mr. 
Hinman said, has moved in the area of bycatch, by restricting 
the use of different gears for different times and areas, 
particularly in the Gulf of Guinea, which we have identified as 
a mass nursery area for a number of the important tuna species 
that are managed by ICCAT.
    Interestingly, the U.S. swordfish fleet, pelagic longline 
fleet, is working very closely now with the recreational 
stakeholders in pelagics and highly migratory species to 
develop a very large time area closure proposal in the U.S. EEZ 
that would address small swordfish bycatch, and also billfish 
bycatch and the bycatch of other species, as well. So that is 
the direction that our industry and ICCAT prefers to the 
concept of regulatory discards, where fishermen are forced to 
waste fish.
    They cannot avoid the catching of the fish with the type of 
gear that is employed. I know there are questions about non-
selectivity of the gear, but the reality I face at ICCAT is 
that pelagic long-lining is the gear that is used throughout 
the world, throughout the globe. That is what I have to deal 
with, that reality, and other types of gear, as well.
    So that is the direction I would like to see things go. 
ICCAT does have the capacity to do that. I still think the 
United States should take approaches that are consistent with 
international approaches, so that we do not disadvantage our 
own fishermen by taking actions that are more adverse to their 
interests than what are being pursued internationally.
    Senator Snowe. Well, to that point, Mr. Hinman, what would 
you recommend, banning fishing gear having an impact on 
bycatch, in reference to the point that he made with respect to 
swordfish?
    Mr. Hinman. Right. As a preface to answering that very 
specific question, I did want to--I thought it was very ironic 
that the U.S. swordfish industry and ICCAT have come around to 
realizing that the minimum size in the swordfish fishery is not 
effective and results in regulatory discards when those were 
the only two bodies in this country, in this world, that in 
1991, when that was made a regulation, thought otherwise, 
thought that this would be effective, thought it would protect 
juvenile swordfish. Everybody else said this is just going to 
result in discarding these fish.
    The other thing is that this alternative to the minimum 
size is not a recent thing. In that very first recommendation 
on the minimum size, ICCAT included a recommendation that 
countries take other actions, including time and area closures 
to protect juvenile fish. The U.S. swordfish industry resisted 
doing that. If they are now talking this year seriously about 
that, I think that is great. But that is 7 years later, when we 
have already discarded 30,000 to 40,000 juvenile swordfish 
every year in the duration because this measure does not work.
    Also, I think it points up both what Mr. Swingle and Mr. 
Delaney said about--the regulatory discard issue points up--the 
need to address the root cause of bycatch, which is non-
selective fishing practices. It is not just dealing with 
economic discards and finding markets for them. It is not just 
dealing with regulatory discards and changing the regulations 
in order to allow them to keep them. I mean, is that the 
answer?
    If the mortality is what we are trying to reduce--and that 
is very often the case in the serious bycatch problems--we have 
to change fishing practices. That has to be dealt with. Just 
focusing on the discard issue, and whether it is regulatory or 
economic, is not bringing us to that answer.
    As far as the specific question of what would I do, ban 
this gear, I am speaking here today on behalf of the Marine 
Fish Conservation Network, which does not have a position on 
that, other than that appropriate measures should be taken, 
under the Magnuson Act to minimize bycatch in the U.S. longline 
fisheries, and that there are proposals out there, that have 
been made for years and that are being discussed at this time, 
to enact time and area closures and some other measures. We are 
hoping that they are going to be implemented, implemented soon, 
and that they are not just token measures, but they will solve 
this problem.
    Senator Snowe. Well, I appreciate your testimony. 
Obviously, we will be following up with each of you on a number 
of these issues as we go through the course of this 
reauthorization. But I think it has been very helpful to hear 
the respective views, even if some of them are divergent. It 
obviously provokes discussion and ideas in terms of what we 
need to focus on as we pursue the reauthorization in the course 
of the next few months.
    So I really do appreciate your presence here today and for 
traveling here, to be here. So I thank all of you.
    This concludes the hearing. But before I do adjourn, I 
would ask unanimous consent that the hearing record remain open 
for 10 legislative days, so that the Subcommittee may accept 
additional testimony, questions from Senators, or any other 
information that the Subcommittee may want to include in the 
hearing record.
    Without objection, so ordered.
    The hearing is adjourned. Thank you.
    [Whereupon, at 1:30 p.m., the hearing was adjourned.]
                            A P P E N D I X

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                             Thomas R. Hill

    Question 1. The National Marine Fisheries Service (NMFS) and the 
Councils have begun to identify a subset of essential fish habitat 
(EFH) called ``habitat areas of particular concern.'' This subset 
targets critical areas such as places of spawning aggregations. Should 
these ``habitat areas of particular concern'' be the true focus of 
NMFS's implementation of EFH? Please explain.
    Response. The statutory definition of essential fish habitat (EFH) 
is ``those waters and substrate necessary to fish for spawning, 
breeding, feeding or growth to maturity'' (16 U.S.C. 1802 Sec. 3). 
Based on the guidelines provided by the National Marine Fisheries 
Service (NMFS) in the Interim Final Rule (FR 62(244):66531--66559) and 
the information available to the Councils and NMFS, EFH was designated 
rather broadly in most cases. The broad designations resulted in EFH 
designations covering large expanses of area, from the coastline out to 
the limit of the exclusive economic zone (EEZ). These broad 
designations, while not necessary ideal, were necessary to meet the 
statutory definition.
    The advantages of the broad designations include ensuring that all 
habitat necessary to a fish throughout its life-cycle is included and 
addressed and giving the Councils and NMFS discretion over the focusing 
of their attentions to areas known to be particularly important while 
not neglecting other areas that may also be important. There are some 
disadvantages, however, including the ``watering down,'' so to speak, 
of the perceived importance of the EFH designations. It is also 
difficult to address all impacts to EFH when most of the coastline and 
EEZ are designated as EFH.
    In the Interim Final Rule, NMFS suggested that where sufficient 
information exists fishery management plans (FMPs) identify ``habitat 
areas of particular concern'' (HAPCs) within EFH. The Rule goes on to 
describe several criteria that should be met for an area to be 
considered for an HAPC designation. The New England Council's 
interpretation of the intent of the HAPC designation is to identify 
those areas that are known to be important to species which are in need 
of additional levels of protection from adverse impacts.
    In most cases, there is not sufficient information regarding the 
ecology or effects of impacts to warrant an HAPC designation. In fact, 
the result of an evaluation of information on all eighteen New England 
Council-managed species was that only two HAPC designations were made 
as part of the Council's omnibus EFH FMP amendment. These two HAPC 
designations were limited to a small portion of the northern edge of 
George's Bank, based on the documented importance of habitat found in 
this area for recently settled juvenile Atlantic cod, and several 
rivers in Maine, based on the important genetic legacy held by the 
remaining native Atlantic salmon that utilize those rivers.
    While these areas are known to be particularly important for these 
two species, they are not the only areas or habitat types believed to 
be necessary for the fish to spawn, breed, feed or grow to maturity 
(e.g., the juvenile Atlantic cod HAPC does not address areas important 
for cod eggs, adults, or larger juveniles). Also, there has not been 
enough information to identify similarly important areas for the other 
sixteen species managed by the New England Council. As more research is 
conducted, we may someday be able to identify additional HAPCs for 
other species. This does not, however, preclude the need for or 
appropriateness of the current EFH designations. As more information 
becomes available, the New England Council envisions revising its EFH 
designations. In many cases, this will involve a refining of the EFH to 
include smaller areas. This activity will most likely be accompanied by 
the designation of additional HAPCs--places either more important to a 
critical life history stage (an ecological ``bottleneck'') or 
threatened by an activity with a specific adverse impact.
    Essentially, the HAPC designations, in conjunction with the EFH 
designations, provide a tiered prioritization for Council and NMFS 
action and attention. The EFH designations serve as the backdrop of the 
Council's habitat management program, identifying the range of habitats 
and areas important in some way to one or more life history stages of 
one or more species. These designations demonstrate the importance of 
much of the ocean waters and substrates to a variety of species. They 
also serve to indicate that activities that affect habitat may have 
wide ranging effects and implications for commercially important 
species. The HAPC designations, layered on the EFH designations, serve 
to identify particular places either critically important for the 
survival of fishery species or particularly sensitive to the effects of 
human activities.
    Using this tiered approach, the Councils and NMFS may identify 
areas where certain activities should not occur at all (HAPCs), other 
places where they can occur if certain criteria are met (EFH), and 
other places where they can occur unrestricted (everywhere else). HAPCs 
should not replace the EFH designations but, in conjunction with them, 
can make stronger NMFS's and the Councils' implementation of the EFH 
process intended by the Congress.

    Question 2a. Since the date of the hearing, the Secretary raised 
the cod trip limit from 30 lbs. to 100 lbs. per day. The 100 lbs. limit 
will be effective until Framework 31 is approved. As part of Framework 
31, the New England Fisheries Management Council has recommended a 400 
lbs. per day limit.
    Do you believe that raising the trip limit to 400 pounds per day 
will alleviate some of the adverse impacts which occurred under the 
lower trip limits?
    Response. Raising the trip limit will alleviate some of the adverse 
impacts of the lower trip limit. The following summarizes the impact of 
Framework 31:
    It will not have a significant impact on the annual fishing 
mortality rate of Gulf of Maine cod, even if you assume that cod not 
landed under the lower trip limit is ``saved'';
    It will result in positive net revenues to the vessels in the Gulf 
of Maine of approximately $500,000;
    It will mitigate some of the social impact of forced discards that 
was manifested in the outrage expressed by fishermen at Council 
meetings and in their correspondence;
    It will improve the data used in assessing stock status, by 
allowing for a better accounting of fishing mortality since reliable 
data on discards is unavailable;
    It will forestall a discarding problem on George's Bank cod and 
avoid a repetition of the situation that occurred in the Gulf of Maine;
    It will close a loophole in the trip limit/days-at-sea system that 
enables vessels to target cod, land large overages of the trip limit 
and run their days-at-sea clock to account for the overage. This 
strategy is not only counter to the intent of the stock-rebuilding 
program, it distorts the data on overall fishing effort because some 
vessels use allocated days-at-sea that they otherwise might not use.

    Question 2b. Do you believe that sensible trip limits are the only 
measures needed to provide adequate protection for cod stocks or are 
other measures necessary?
    Response. No, trip limits, appropriately set, are only part of the 
management program needed to protect and rebuild cod stocks. The 
management plan in place for the multi-species fishery includes days-
at-sea controls, gear restrictions (mesh size, modified trawl 
configurations, and limits on the number of hooks and gillnets fished), 
and area closures. Other methods not currently in use in this fishery 
such as quotas (TACs), are also effective in controlling mortality in 
fisheries around the country.
    The current strategy has proven successful for some of the multi-
species stocks in the relatively short time since Amendment 7 was 
implemented where nature has cooperated with good recruitment even 
though some of those stocks were at critically low levels only four 
years ago. The delay in rebuilding of cod stocks can be attributed to 
several factors, including poorly designed management measures which 
allowed the fishery to exceed it mortality rated by 50% to 200% for 
several years in a row, (which will be addressed by the Council with 
Framework 31, the upcoming annual adjustment framework and Amendment 
13), poor recruitment, and record-low survival of pre-recruits. These 
latter two are outside of the direct control of the Council.

    Question 3a. NMFS has been criticized for its lack of compliance 
with the Regulatory Flexibility Act. Other agencies, such as the 
Environmental Protection Agency, are required to convene small business 
advocacy review panels for each rulemaking that will have a significant 
economic impact on small businesses.
    Please explain the impact that inadequate consideration of socio-
economic factors has had on fishing communities that you represent.
    Response. The Council has been criticized for not considering 
socio-economic impacts on the fishing communities, however, another 
frequently heard criticism is that the Council spends too much time 
considering these factors to the detriment of conservation.
    The underlying problem is that when fish stocks are severely 
depressed, the need to substantially reduce fishing levels to meet 
National Standard 1 of the Magnuson-Stevens Act requires large fishing 
reductions that cannot avoid having severe negative short-term impacts 
on fishing communities.
    No consideration of socio-economic issues fundamentally lessens 
this problem, however, the Council can ensure that the burden of 
achieving conservation goals is fairly distributed. This is not easy in 
a climate of despondency over Magnuson-Stevens Act stock rebuilding 
guidelines, severe cutbacks in fishing and uncertainty about the 
future. All meaningful actions are criticized by any group negatively 
impacted.
    The Council fully understands that mandated fishing reductions, 
often greater than 50%, will reduce good-paying jobs both on the water 
and shoreside, and will damage fishing community economic independence 
and well-being in the short-run. In the long run, responsible action 
will preserve these benefits to the greatest extent possible.
    The Council spent years developing limited access and fishing 
effort reduction plans for the major fisheries for groundfish, scallops 
and monkfish, not to mention the foundation for the current state-
federal lobster management efforts. None of these efforts have been 
popular, but there's recognition that not addressing overfishing would 
be not only worse, but irresponsible.
    During the development of all Council plans there has been 
extensive public and scientific debate over the efficacy of quotas, 
mesh regulations, area closures, gear limitations, limited access, 
days-at-sea reductions and other proposals. As a result, the Council 
believes that it has given great consideration to socio-economic 
factors in selecting management alternatives. Major management 
problems, however, have no widely accepted solutions that 
simultaneously meet Magnuson-Stevens Act goals and avoid severe short-
term impacts on fishing communities.
    Many of the provisions that appear to make fishery management plans 
too complicated have been implemented to allow flexibility to different 
types of fishing activity.

    Question 3b. Please explain in detail how a similar panel process, 
such as the one utilized by the EPA, could aid NMFS in bringing 
economic impact analysis to the forefront of fisheries decision-making.
    Response. Unlike many businesses affected by EPA actions, almost 
all fishing operations and shore-side businesses are small business 
entities, the focus of the Regulatory Flexibility Act. As a result, all 
scoping meetings, public hearings, and the extensive array of meetings 
of the Council, industry advisory panels, species committees, stock 
assessment workshops, plan development and monitoring committees, and 
ad-hoc workshops provide opportunity for regulated small entities to 
participate in the decision-making process to a much greater extent 
than panel processes of most federal regulatory agencies. In 1998 
alone, the Council held or was represented at an estimated 200 meetings 
that provided affected user groups opportunities for participation.
    Council procedures require biological, economic and social impact 
analysis, to the extent that information is available, of all 
management options under consideration. These analyses are mandated to 
be available to the public for review and comment before the Council 
votes on any course of action. Additionally, 10 of 17 voting Council 
members have insights into to the economic impacts of management 
measures as a result of their personal experience in the commercial and 
recreational fishing industries.
    The most difficult problem facing the Council is not making use of 
socio-economic analyses but solving allocation disputes among competing 
interest groups.
    The Council is expanding the Stock Assessment and Fishery 
Evaluation Report to include economic impact analyses and industry 
management proposals. The report provides impacted entities with 
scientific information, proposed management options and impact analyses 
as early as possible in the management process.
    The New England Council has long supported increasing the 
collection of and improving fisheries and economic data. It recognizes 
that the many analyses are limited by the data currently available. It 
has tasked its newly formed Social Sciences Advisory Committee, 
comprised of independent economists and other social scientists, to 
report on how to improve social, economic and community impact 
analyses. The committee will present the report to the public at the 
November 16-18, 1999 Council meeting.

    Question 4. The New England Fishery Management Council has been 
criticized for its inability to manage meetings in a civilized manner. 
This has created an environment in which people may be too 
uncomfortable to actively participate. As a result, some proposed 
management measures may not receive adequate consideration. Please 
comment on your experiences at Council meetings in this regard.
    Are there examples of effective management proposals that have been 
set aside in favor of inadequate, but more popular measures?
    What has been the result of such decisions?
    Response. It is true that over the course of the last two years, 
there have been several unfortunate outbursts by a few members of the 
fishing community at New England Council meetings. I would characterize 
these incidents as outside of the norm, though I would be the first to 
admit that fisheries management in New England is a lively environment. 
Most Council meetings in the past have been, and will continue to be 
conducted in a business-like and orderly manner.
    I will emphasize, however, that as the new Chairman, I have made a 
strong commitment to Council members to establish an environment that 
ensures public opportunity to comment, but retains the dignity of the 
Council. Additionally, we have scheduled a special closed meeting of 
the Council at the end of October to review our meeting procedures, 
address problems and develop an improved process where necessary.
    I do not believe that the Council has made any management decisions 
that involve setting aside an effective proposal in favor of one that 
is ``more popular''. The Council may have not acted on any number of 
proposals that would clearly get the job done because they were 
associated with very serious negative economic and social impacts on 
some fishermen and the communities in which they reside, or required 
allocation decisions which the industry and the Council collectively 
could not agree. Instead, the Council has consistently sought to craft 
management measures that would be effective in addressing resource 
conditions while minimizing those impacts. I must point out that a 
number of communities in southern Massachusetts have been far more 
negatively affected than most other areas in New England as the result 
of the Council's actions.
    In some cases, the management measures selected by the Council may 
not have been as effective as others, but in all these instances we 
have developed additional measures to address any outstanding problems. 
Again, no simple straightforward solutions have been available, and the 
Council has sought to balance resource conditions and the economic and 
community impacts that accompany our actions. I believe it is important 
to point out that despite some errors, the Council remains on target 
with its ten-year rebuilding programs for most stocks.

    Question 5. Some groups have criticized the New England Council for 
not using information and recommendations submitted by its advisory 
committees. Please explain how the Council should use the 
recommendations of such committees in the decision-making process.
    Response. The Council not only uses its advisory panels, but also 
solicits proposals directly from industry when developing yearly 
adjustments to all our fishery management plans. The chair of each 
panel brings the recommendations of the respective panel directly to 
the Council for consideration. Their advice is considered, particularly 
in the context of whether its recommendations meet the management 
objectives of the action contemplated. If the panel's recommendations 
do not meet the objectives, the Council is not likely to adopt their 
proposals. In the case of the Atlantic Herring and FMP for Scallops, 
however, the advisory panels were very active in the development of the 
plan, and worked with the plan objectives as guiding principals. As a 
result, many of their recommendations were incorporated into the final 
FMP.

    Question 6a. Some question whether it is appropriate to continue to 
use Maximum Sustainable Yield as the target for fisheries management. 
Please explain whether you think that there are any modifications to 
the management process, which would make MSY a reasonable goal.
    Response. The Councils may need more flexibility to adopt 
responsible biological goals, when setting biomass targets and yield 
objectives in a multi-species complex. The potential targets and 
objectives could be identified as ranges, rather than a single target 
at an optimum biomass level (BMSY). Allow for this would 
help Councils to accommodate natural variability and allow them to set 
biomass targets that are consistent with aggregate stock combinations.
    Others species, on the other hand, may add value by maintaining a 
low, but still risk adverse, biomass level. The current law does not 
allow this flexibility. It allows the Councils to set optimum yield 
(OY) for a group of interrelated species, provided that the policy does 
not exceed MSY for any one species.
    Species falling into this category could have low recreational and 
commercial value, compared with other species in a fishery. To maintain 
this species at MSY conditions (i.e. above BMSY), it might 
require another more valuable species to be underutilized or worse yet 
unavoidably increase regulatory discarding. The species may also play a 
role in the productivity of other more highly valued species and 
therefore it would be preferable to keep a predator with low value at 
lower biomass levels yet not risk stock collapse. In this case, a 
rebuilding program might also force a Council to shut down a commercial 
species with low value for as much as ten years to achieve the 
rebuilding objectives. A domestic fishery that relies on foreign market 
may have little prospects for recovering in ten years, once the 
rebuilding objectives are met. In our experience, spiny dogfish may be 
a case in point.
    In another respect for some species, for example, it might be 
preferable to maintain a high biomass (i.e. a large population with 
large fish) to support recreational fisheries. The current law allows 
Councils to achieve this goal, but it does not achieve the maximum 
yield in purely biological terms (i.e. MSY).

    Question 6b. Please outline alternatives to MSY as a target for 
management.
    Response. I support setting biomass targets that achieve sound, 
risk adverse, biological targets. I also support setting maximum 
fishing mortality thresholds that prevent unsustainable or risk-prone 
fishing. Yield goals in this case, would be allowed to vary and 
accommodate natural variation and long-term trends. MSY, on the other 
hand, is actually an estimate of the maximum productivity of a resource 
where catch balances the maximum surplus production when the stock is 
at optimum biomass levels.
    Basing management decisions purely on achieving MSY (or some high 
fraction of MSY) could be a risk-prone strategy. One example of this is 
a problem the New England Council is now considering, that is the 
question of fishing capacity. Thus, if the Councils use MSY as an 
objective, mistakenly believing that stock biomass is at the optimum 
level when in fact it is not, then on average stock biomass will 
decline whether biomass is above or below the optimum level. In either 
case, surplus production declines and is less than MSY. If the MSY 
policy continues while the stock is declining, believing that the stock 
will naturally recover, the MSY-based management policy could reduce 
the biomass to still lower levels and require a new rebuilding program.
    MSY management objectives could, therefore, give people a false 
sense of stability, even though natural variation requires that yield 
change to balance the resource's dynamic productivity. In lieu of MSY, 
the Council prefers a maximum fishing mortality threshold that prevents 
long-term unsustainable policies and a biomass target, set as a range, 
which allows flexibility to meet risk adverse social and economic 
objectives. With regard to rebuilding objectives, it would be 
preferable and easier to predict short-term goals (i.e. a percent 
increase in stock biomass over one, two, or three years) rather than 
achieving a theoretical optimum biomass levels ten years out during a 
rebuilding program. The latter policy (the one now required by law) 
causes the Councils to set current management regulations based largely 
on recruitment that is highly variable and often measured with high 
uncertainty. The current policy can cause short term negative effects 
to achieve uncertain long-term goals. The uncertainty in the long-term 
objectives can also make management policies that depend on achieving 
them unsuccessful in the long run.

    Question 6c. How do you view ecosystem management as it relates to 
the management of species at maximum sustainable yield?
    Response. As indicated in the question above (6a), the current law 
may prevent the Councils from implementing some policies intended to 
achieve ecosystem management objectives. At the present time, it is 
very difficult to implement ecosystem management due to sparse 
information that directly relates to current conditions. Ecosystem 
management is rich in theory based on equilibrium principles, but there 
is insufficient data to make ecosystem-based management decisions that 
respond to dynamic conditions.
    At present, we have single-species MSY estimates since there isn't 
sufficient information to relate the productivity of one species to the 
abundance and productivity of many other predators, competitors, and 
prey and include the interactions between them. Such a system would 
require an intensive, real-time data collection system to identify the 
interrelationships and the potential outcomes from management of 
dynamic conditions. Just quantifying the impact of predatory species 
like striped bass, cod, and sharks has proven very difficult.
    On a more pragmatic basis, achieving MSY for all species in an 
ecosystem may not be possible. Due to natural variation, some 
proportion of those species will be at low biomass levels due to 
natural events and require rebuilding. The programs needed to rebuild 
some of these species could require other more abundant species to be 
underutilized, especially with the added objective of minimizing 
discard mortality. As a result of the complex dynamics, it may be 
unrealistic to continuously achieve MSY for any individual species much 
less than for all species simultaneously. This and the undefined 
interactions between related species, means that MSY for a group of 
species must be less than the sum of MSY for each species considered 
individually.

 Response to Written Questions Submitted by Hon. Ernest F. Hollings to 
                             Thomas R. Hill

    Question 1. Due to the Magnuson-Stevens Act's requirement that 
Council members be knowledgeable or experienced regarding the fisheries 
within the Council's geographic area of responsibility, Council members 
may have a personal or financial interest in the fishery that they are 
managing. Over the years, the Magnuson-
Stevens Act has been revised to require that Council members disclose 
any financial interests in the harvesting, processing, or marketing of 
fishery resources under the Council jurisdiction held by that person, 
any relative, or partner or recuse themselves from voting on Council 
decisions that would have a ``significant and predictable'' effect on 
any personal financial interest.
    Have the conflict of interest provisions we enacted in the 1996 
Sustainable Fisheries Act solved the problem or is there more work to 
do?
    Response. There is more work to do. Without a doubt, the Regional 
Fishery Council concept is the best way to manage fisheries. The 
Council process enlists the help of credible community organizations, 
fishermen, and the public, publishes its procedures for all to 
understand, listens to all input and maintains a consistent process. 
More work needs to be done with the Council member appointment process. 
The Council membership is supposed to reflect different sectors of the 
industry and consider what's the best for the fisheries resource and 
the nation as a whole. The industry perception of what happens at 
Council meetings is quite the opposite.

    Question 2. Some have suggested not allowing individuals with 
current fishing interests serve on the Councils. Do you support such a 
change? How would it affect the quality and function of the Councils?
    Response. I do not support such a change. However, I do believe 
that significant improvements in the membership, function, and 
effectiveness of the Councils can be achieved by changing the make-up 
of the voting members. I suggest that the Council voting membership 
consist of greater diversity of representation by scientists, managers, 
public policy experts, fishermen (recreational and commercial), and 
environmentalists. I believe the broader member make-up would 
facilitate better decisions, which are not based on parochial interests 
but rather on knowledge and experience. Major decisions would be 
evaluated not only on community impacts, fairness, enforceability, and 
bycatch, but also on whether the decision adds to or takes away from 
the public interest.

    Question 3. How are non-fishing interests such as environmental 
interests represented on the Councils? Is that representation adequate?
    Response. The New England Council has representation by the 
environmental community. We have a voting Council member who is an 
employee of the Environmental Defense Fund. An employee of the Wildlife 
Conservation Society chairs our Science and Statistical Committee. An 
employee of the Conservation Law Foundation chairs our Social Sciences 
Advisory Committee. Lastly, we have assigned another employee of the 
Conservation Law Foundation to several of our advisory panels. As 
addressed in the above question, I believe this group, as others should 
have representation on the Council. At present, we have one Council 
member representing an environmental interest out of a total of 
seventeen voting members.

   Response to Written Questions Submitted by Hon. John F. Kerry to 
                             Thomas R. Hill

    Question 1. Dr. Fluharty, you tell us that the North Pacific 
Council has closed more than 15,000-square nautical miles to bottom 
trawling in order to protect king crab habitat, reduce crab bycatch, 
and reduce gear conflicts. We have some of the same concerns in New 
England on Georges Bank, where-Mr. Hinman tells us that bottom trawls 
are used over 40,000 square kilometers of bottom habitat.
    What lessons can we draw from the North Pacific to help us address 
fish habitat issues in New England?
    Response. An important consideration to keep in mind is one of 
scale. While the North Pacific Council has closed more than 15,000 
square nautical miles to bottom trawling, this represents only little 
more than three percent of their management area. The New England 
Council, on the other hand, has closed 7,700 square nautical miles to 
bottom trawling year-round on George's Bank and in the Gulf of Maine, 
with another 13,000 square nautical miles closed to bottom trawling 
during a portion of the year in the Gulf of Maine. The year-round 
closures on George's Bank represent approximately 40% of the fishing 
grounds--a significantly larger proportion of the management area 
closed than in the North Pacific.
    One significant difference between the two regions is that the New 
England closures were all implemented for stock recovery reasons other 
than habitat, while the North Pacific closures specifically were 
implemented to protect habitat from the impacts associated with bottom 
trawling. Even so, all management measures proposed in New England 
receive a thorough review and evaluation for any potential adverse 
impacts to essential fish habitat (EFH) that may be associated with the 
proposed measure.
    Thus, any proposed action which could adversely impact EFH 
contained within the current closed areas (the entirety of these areas 
has been designated as EFH for one or more species) is reviewed and the 
habitat-related implications are considered. For example, this past 
spring the Council evaluated proposals to allow a program of limited 
access to a closed area for scallop fishing. The final access program 
restricted scallop fishing to a portion of the closed area where the 
potential adverse impacts to EFH from scallop fishing would be 
minimized.
    While the New England Council still has much to do to better 
understand and address the impacts of fishing activities on fish 
habitat, we are moving along a similar path as the North Pacific 
Council.
                                 ______
                                 

    Response to Written Questions Submitted by Hon. Max Cleland to 
                William M. Daley and Penelope D. Dalton

    The Committee did not receive responses to the following questions.
    Question 1. What is the National Marine Fisheries Service's (NMFS) 
stance on Congress lifting the Individual Transferable Quotas (ITQ) 
moratorium imposed by the 1996 amendments?
    Response. None.

    Question 2. How does NMFS recommend implementing the 
recommendations of its Fishing Information System/Vessel Registration 
System Report to Congress? And, in the absence of additional funds, how 
would NMFS restructure their existing data collection systems or other 
operations to enhance data collection as recommended in the report?
    Response. None.

    Question 3. What would NMFS think about revisiting Section 306 to 
further extend State authority to apply to vessels fishing in the 
adjacent EEZ, to all coastal states, not just the State of Alaska?
    Response. None.

    Question 4. On another subject, isn't NMFS over-reaching the intent 
of Congress as expressed in the Act by listing all species found in the 
EEZ?
    Response. None.

    Question 5. Further, doesn't this contravene Section 306 pertaining 
to State Jurisdiction of vessels in the EEZ for which there is no 
fishery management plan. or for which the Council has delegated to the 
State the authority to manage?
    Response. None.

    Question 6. Finally, there is an issue that is of particular 
concern to my State that I hoped you could address for me, specifically 
relating to shark management. My question is how NMFS can suspend 100 
percent observer coverage on the drift gillnets when the regulation is 
in effect?
    Response. None.

    Question 7. Relating to this issue, should the management of Highly 
Migratory Species (HMS) be given back to the Councils? If not all of 
the HMS species, then at a minimum, sharks?
    Response. None.
                                 ______
                                 

 Response to Written Questions Submitted by Hon. Ernest F. Hollings to 
                William M. Daley and Penelope D. Dalton

    Question 1a. For a few years now, the State of South Carolina has 
been working with the National Marine Fisheries Service (NMFS) on a 
joint enforcement program.
    What benefits has this program had for enforcement in South 
Carolina waters? Has close cooperation with the state allowed NMFS to 
leverage its resources?
    Response. None.

    Question 1b. What would it take to expand this program to other 
states?
    Response. None.

    Question 2a. Last Friday, the (attached) lead editorial in my 
hometown paper the Charleston Post and Courier congratulated the South 
Carolina Department of Natural Resources for stepped up enforcement of 
federal recreational fishing limits. Rampant violations were found--one 
angler was caught with more than 4 times the legal limit for vermillion 
snapper. One cooler on one ``head boat'' contained 311 fish despite the 
per person limits aboard the such boats.

                                                         Attachment

           [From The Post and Courier, Friday, July 23, 1999]

                       Welcome Fishing-Limit Push

    Intensified enforcement of state and federal recreational-fishing 
limits is good news for responsible anglers.
    Those fishermen already know that any violation of those 
regulations on the size and number of fish could lead to costly fines--
and if they don't have enough cash to post bond, even a trip to jail. 
That's sufficient motivation to obey the law.
    But responsible anglers share a more long-range motivation for 
limiting their catches: Widespread compliance with these sensible 
restrictions enhances the prospects for a bright fishing future.
    Fortunately, South Carolina is naturally blessed with numerous 
saltwater and freshwater fish species. Unfortunately, overfishing 
threatens to squander that blessing. Many of our species, their 
populations dwindling have become vulnerable.
    And when S.C. Department of Natural Resources officers caught a 
single angler with 89 vermilion snapper (more than four times the limit 
of 20 allowed for two days of fishing) Tuesday, it was clear that he 
wasn't showing the proper concern for that vulnerability. Because of 
the greedy few who threaten to spoil the fishing fun for the rest of 
us, DNR is stepping up its efforts to apprehend and punish violators.
    Our Lynne Langley reports that officers found evidence of rampant 
violations at a Mount Pleasant dock this week in coolers containing 311 
fish (including red snapper, red porgy, sea bass, sharks, amberjack, 
dolphin finfish, triggerfish, scamp grouper and 247 vermillion snapper) 
caught aboard a ``head boat.'' Such vessels take paying anglers out for 
up to 24 hours.
    Some reportedly abandoned their coolers in order to evade the legal 
consequences. Other fishermen paid fines of up to $425 apiece.
    Ignorance of the law is no excuse--especially on those ``head 
boats,'' which regularly distribute the legal limits in written form 
and even announce them on board. DNR also will focus on smaller, 
private boats. And at a time when many anglers, worried about dwindling 
fish stocks, have resorted to the catch-and-release method (a self-
imposed limit of zero), those who exceed legal limits can expect scant 
sympathy on land or sea.
    DNR Communications Director Mike Willis has given fair notice: ``We 
will be going up and down the coast. Officers can show up anywhere, any 
time.''
    All anglers should remember that warning--and remember why it's 
necessary.

    How reliable can the recreational catch data be if such violations 
are regularly occurring? What can we do to get better recreational 
data?
    Response. None.

    Question 2b. Other than stepped up enforcement action and 
cooperative programs like the NMFS/South Carolina enforcement program, 
what can be done to keep ``head boats'' within the law?
    Response. None.
                                 ______
                                 

 Response to Written Questions Submitted by Hon. Ernest F. Hollings to 
 Maggie Raymond, Thomas R. Hill, Richard B. Lauber, and David Fluharty

    Question 1a. Due to the Magnuson-Stevens Act's requirement that 
Council members be knowledgeable or experienced regarding the fisheries 
within the Council's geographic area of responsibility, Council members 
may have a personal or financial interest in a fishery that they are 
managing. Over the years, the Magnuson-Stevens Act has been revised to 
require that Council members disclose any financial interests in the 
harvesting, processing, or marketing of fishery resources under the 
Council jurisdiction held by that person, any relative, or partner and 
recuse themselves from voting on Council decisions that would have a 
``significant and predictable effect'' on any personal financial 
interest.
    Have the conflict of interest provisions we enacted in the 1996 
Sustainable Fisheries Act solved the problem or is there more work to 
do? Please explain.
    Response. None.

    Question 1b. Some have suggested not allowing individuals with 
current fishing interests serve on the councils. Do you support such a 
change? How would it affect the quality and function of the councils?
    Response. None.

    Question 1c. How are non-fishing interests such as environmental 
interests represented on the councils? Is that representation adequate?
    Response. None.
                                 ______
                                 

Response to Written Questions Submitted by Hon. John F. Kerry to Maggie 
     Raymond, Thomas R. Hill, Richard B. Lauber, and David Fluharty

    Question 1a. Tom Hill has stated in his testimony that it is 
essential to set hard total allowable catch (TAC) limits if we are to 
achieve our management objectives in New England. The North Pacific 
Council, along with all other Councils, have set hard TACs, but the New 
England Council has not.
    Mr. Lauber and Dr. Fluharty, why did your Council decide to set 
hard TACs?
    Response. None.

    Question 1b. How could you manage your fishery consistent with the 
SFA if you did not use hard TACs? What are the problems you would 
encounter?
    Response. None.

    Question 2a. Dr. Fluharty, you tell us that the North Pacific 
Council has closed more than 15,000 square nautical miles to bottom 
trawling in order to protect king crab habitat, reduce crab bycatch, 
and reduce gear conflicts. We have some of the same concerns in New 
England on George's Bank, where Mr. Hinman tells us that bottom trawls 
are used over 40,000 square kilometers of bottom habitat.
    Is the North Pacific Council working with fishermen to develop 
innovative ideas for gear improvements to mitigate these habitat 
impacts?
    Response. None.

    Question 2b. What lessons can we draw from the North Pacific to 
help us address fish habitat issues in New England?
    Response. None.
                                 ______
                                 

   Response to Written Questions Submitted by Hon. John F. Kerry to 
                           Penelope D. Dalton

    Question 1a. We have provided a fair amount of money to NMFS to 
address economic impacts and fisheries research needs in New England, 
specifically $5 million in emergency funding, and an addition $1.88 
million for cooperative research. Further, the Senate Appropriations 
bill would provide $8 million for cooperative management. One of the 
most strongly felt needs is for observers to document bycatch levels of 
cod in the Gulf of Maine. In addition, we have been encouraging NMFS to 
work cooperatively with our fishermen in management and on research 
projects.
    How are the available monies now being used to assist with research 
and build confidence with our fishing communities?
    Response. None.

    Question 1b. What are the obstacles to improving cooperative 
fisheries management and research both in New England and elsewhere?
    Response. None.

    Question 1c. Can you point to successful cooperative efforts in the 
New England region or in other areas of the country that could provide 
the basis for regional or national cooperative management approach?
    Response. None.

    Question 2a. The report recently issued by the NMFS Ecosystem 
Principles Advisory Panel advocates amending fishery management plans 
to incorporate ecosystem approaches in accordance with a Fisheries 
Ecosystem Plan.
    Do NMFS and the Councils have sufficient funds to undertake such a 
project? NMFS has estimated that a fishery-dependent data collection 
system alone would cost approximately $50 million.
    Response. None.

    Question 2b. How much of this work is already being in your SFA 
implementation efforts?
    Response. None.

    Question 2c. Do you foresee the need for legislative changes to 
implement this recommendation?
    Response. None.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                   Panel I (Administration Witnesses)

    Question 1. Maximum Sustainable Yield (MSY) is considered by many 
fisheries experts to be an outdated and possibly inappropriate concept 
for fisheries management. Determining accurate estimations of MSY 
requires fishing at a range of effort, including well beyond the point 
of MSY, and adopting or relaxing various management measures may change 
the resulting MSY. Further, MSY changes over time due to environmental 
and other conditions.
    Does NOAA believe that a broader definition of overfishing is 
needed to allow other methods of assessing overfishing based on the 
nature of specific fisheries and the currently available data on them? 
If so, how do you recommend changing the current definition of 
overfishing within the Magnuson-Stevens Act?
    Response. None.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                                Panel II

    Question 1. Mr. Swingle, you pointed out in your written testimony 
that while the work of the councils has increased dramatically due to 
the requirements of the Sustainable Fisheries Act, the budget request 
for the councils has increased a mere 2.3%.
    Do the councils have adequate financial resources to carry out 
their work? If not, what is being left undone due to financial 
constraints?
    Response. None. What would you recommend as an appropriate level of 
council funding, compared to current funding?
    Response. None.

    Question 2. Mr. Hinman, you have pointed out that ``no council 
established a required standardized bycatch reporting system'' since 
the passage of the Sustainable Fisheries Act.
    What would the establishment of such a system entail in terms of 
data collection, technical operations, and funding?
    Response. None.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                           Penelope D. Dalton

    Question 1. In your testimony, you stated that two distinct review 
processes exist for fishery management plans and plan amendments and 
the publication of agency regulations. You further state that this 
creates a disconnect for public opportunities to comment. Please 
explain in detail the resulting effect and how it should be addressed 
in the reauthorization language.
    Response. None.

    Question 2a. The Sustainable Fisheries Act requires each highly 
migratory species advisory panel to be balanced in its representation 
of commercial, recreational, and other interests. The Billfish Advisory 
Panel, however, has approximately 11 representatives from the 
recreational sector and only one from the commercial sector.
    Please explain in detail the extent to which the Billfish Advisory 
Panel considers issues related to commercial fishing, such as pelagic 
longlining.
    Response. None.

    Question 2b. Please explain the agency's definition of ``balance'' 
as it was used in the selection of members to serve on the Billfish 
Advisory Panel.
    Response. None.

    Question 2c. There are two advisory panels to cover HMS issues. The 
HMS panel covers highly migratory species, such as bluefin tuna and 
swordfish. The only other advisory panel is the Billfish panel. Why was 
the Billfish AP established separately and what effect has it had on 
the development of other HMS policies?
    Response. None.

    Question 3a. The Regulatory Flexibility Act mandates that agencies, 
such as NMFS, consider the potential impact of their regulations on 
small businesses. The Office of Advocacy in the Small Business 
Administration has notified NMFS that there has been a consistent 
failure to acknowledge a ``significant economic impact'' when the 
agency makes proposals.
    During the hearing, you stated that NMFS has devoted additional 
resources to address compliance with the Regulatory Flexibility Act 
(RFA). Please explain in detail what resources NMFS has used to date, 
including the number of employees and the specific area of expertise 
for each employee dedicated to compliance with the RFA.
    Response. None.

    Question 3b. You further stated that NMFS has requested $1 million 
in the FY 2000 budget to improve economic data collection. Please 
explain in detail how this funding will be utilized for on-the-ground 
data collection projects.
    Response. None.

    Question 3c. What further resources will be necessary in order to 
fully incorporate economic analysis into agency decisions?
    Response. None.

    Question 3d. Please explain in detail how NMFS can improve its 
regulatory process so that small fishing businesses receive adequate 
consideration under National Standard 8 and the Regulatory Flexibility 
Act.
    Response. None.

    Question 3e. In the 1996 amendments of the Regulatory Flexibility 
Act, OSHA and EPA were required to convene small business advocacy 
review panels for each rulemaking that will have a significant economic 
impact on a number of small businesses. To date, this panel process has 
resulted in higher compliance with economic information requirements of 
the Regulatory Flexibility Act. How would a similar panel process 
assist NMFS in its consideration of economic impact analyses in 
fisheries decision-making?
    Response. None.

    Question 3f. In implementing National Standard 8, does NMFS take 
into account the cumulative social and economic impacts of previous 
fishery regulations when it proposes to create additional measures? 
Please explain.
    Response. None.

    Question 4a. Observers on vessels have provided an effective way to 
manage the bycatch of both untargeted fish and marine mammals.
    Please explain in detail which fisheries successfully utilize 
observers and what bycatch is reduced through observer coverage. Please 
provide a list of fisheries that do not currently have adequate 
observer coverage but could benefit by such a program.
    Response. None.

    Question 4b. Since adequate observer coverage does not exist in 
several New England fisheries, such as scallops and groundfish, what 
other measures is NMFS employing to help minimize bycatch?
    Response. None.

    Question 4c. Maine fishermen have expressed their serious concerns 
about marine mammal interactions and groundfish bycatch in the New 
England herring fishery. The fishery management plan for herring 
includes a provision for the use of observers. Please explain in detail 
why NMFS has not implemented an observer program for this fishery and 
provide a schedule for expected implementation of observers in this 
fishery.
    Response. None.

    Question 5a. The Magnuson-Stevens Act provides 10 National 
Standards that are supposed to be followed by the councils when making 
management proposals. Proposals are submitted to NMFS for review to 
ensure that they adhere to the statutory mandate. NMFS is then supposed 
to send all or portions of the proposal back to the council if NMFS 
finds that it does not fulfill the Magnuson-Stevens mandate. It is this 
system of review that is supposed to ensure that the councils take the 
necessary actions.
    Proposals from the New England Council, particularly those related 
to groundfish, have been noted as not adhering to the National 
Standards. However, the proposals have not been sent back to the 
Council. Please explain NMFS' procedure for deciding which proposals to 
send back to the councils.
    Response. None.

    Question 5b. Please explain in detail why the use of a running 
clock was judged as contrary to the National Standards and thus not 
allowed in the New England monkfish fishery, yet was allowed in the 
Northeast multispecies fishery.
    Response. None.

    Question 6. The fiscal year 1999 Omnibus Appropriations bill 
provided $5 million in disaster relief to mitigate the collapse of the 
New England groundfish fishery. That bill was signed in law on October 
21, 1998. When will this money be dispersed by NMFS?
    Response. None.

    Question 7a. At the hearing, Terry Garcia, Assistant Secretary for 
Oceans and Atmosphere said a final rule prohibiting the use of spotter 
planes in the General and Harpoon Categories of the Atlantic Bluefin 
Tuna fishery would be implemented ``sooner rather than later''.
    Please explain in detail what Mr. Garcia meant by ``sooner rather 
than later'' and explain when the final rule prohibiting the use of 
planes will be implemented.
    Response. None.

    Question 7b. Should fishery management decisions be based on how to 
defend against a lawsuit? If not, please explain in detail how the 
decision-making process at issue has not been based on how to defend 
against a lawsuit.
    Response. None.

    Question 7c. Since you were sued two years ago on a similar rule, 
please explain why the agency has been unable to prepare a legally 
defensible rule to date?
    Response. None.

    Question 8. The Sustainable Fisheries Act authorizes the Secretary 
or Councils to establish rebuilding schedules longer than 10 years if 
the fish is managed under an international agreement. Please explain in 
detail how NMFS interprets this provision with regard to the 20-year 
rebuilding plan for bluefin tuna, adopted by ICCAT last year and with 
regard to a rebuilding plan for swordfish, which will be a major topic 
at the 1999 ICCAT meeting.
    Response. None.

    Question 9a. The U.S. Commissioners to ICCAT represent the United 
States and negotiate the U.S. position at ICCAT. NMFS is responsible 
for the domestic implementation of the agreements negotiated by the 
Commissioners. These agreements are a critical element of NMFS 
management of highly migratory species.
    At what step in the regulatory process are the views and intent of 
the U.S. Commissioners taken into account when developing the domestic 
implementing regulations for highly migratory species pursuant to the 
international agreements?
    Response. None.

    Question 9b. Would NMFS support a formal consultation process with 
the U.S. Commissioners during the development of the domestic 
implementing regulation?
    Response. None.

    Question 10a. In 1990, Congress amended the Magnuson-Stevens Act to 
place highly migratory species under the direct management of the 
Secretary. Some have suggested, however, that authority over such fish 
be moved back to the regional council level.
    Do you support such a move or can the current Secretarial process 
be improved sufficiently to be effective?
    Response. None.

    Question 10b. What suggestions do you have to improve the 
management of highly migratory species?
    Response. None.

    Question 11a. Implementation of the essential fish habitat 
provisions of the Sustainable Fisheries Act has raised a number of 
concerns. Some are concerned about the scope, complexity and cost. 
Others believe that NMFS has not been aggressive enough. Despite 
receiving many critical comments on the interim rule, NMFS has not 
moved forward with a final rule.
    When do you expect to publish a final rule?
    Response. None.

    Question 11b. Please describe any proposed changes to the interim 
final rule?
    Response. None.

    Question 12a. NMFS has also been working to identify ``habitat 
areas of particular concern''.
    Please explain in detail how ``habitat areas of particular 
concern'' are different than currently defined areas of essential fish 
habitat.
    Response. None.

    Question 12b. Under what authority has NMFS developed this new 
designation?
    Response. None.

    Question 12c. What type of regulatory measures does NMFS plan to 
implement in these areas of particular concern?
    Response. None.

    Question 13a. The National Academy of Science has recommended that 
Congressional action allow flexibility to the Councils in designing 
individual fishing quota programs.
    Should Congress establish criteria for Councils to use in 
developing IFQ programs?
    Response. None.

    Question 13b. If so, do you have any recommendations for the 
criteria?
    Response. None.

    Question 14a. Some question whether it is appropriate to continue 
to use Maximum Sustainable Yield as the target for fisheries 
management.
    Please explain whether you think that there are any modifications 
to the management process which would make MSY a reasonable goal.
    Response. None.

    Question 14b. Please outline alternatives to MSY as a target for 
management.
    Response. None.

    Question 14c. How do you view ecosystem management as it relates to 
the management of species at maximum sustainable yield?
    Response. None.

    Question 15. The fishery management plan for highly migratory 
species requires Atlantic pelagic longline vessels to pay for and carry 
Vessel Monitoring System (VMS) equipment. Please explain how this 
requirement meets National Standard 8 and it differs from the use of 
VMS on Pacific pelagic longline vessels.
    Response. None.
                                 ______
                                 
   Prepared Statement of the North Pacific Fishery Management Council
                              introduction
    The Sustainable Fisheries Act of 1996 (SFA) added many new 
requirements to the Magnuson-Stevens Fishery Conservation and 
Management Act. Some apply across the board to all regional fishery 
management councils. Some apply specifically to the North Pacific 
Fishery Management Council (the Council). The following report 
summarizes actions the North Pacific Council has taken to meet the new 
requirements. The lead for responding to each of the requirements may 
be the Council or the National Marine Fisheries Service (NMFS). On most 
issues, there is shared responsibility for getting the job done by the 
required deadline. In order to compare each section below to the 
specific provisions in the SFA, we have included page references which 
are to the red copy of the Magnuson-Stevens Act, NOAA Technical 
Memorandum NMFS-F/SPO-23, dated December 1996. In summary, the Council 
and NMFS have responded to each of the required provisions of the SFA--
most actions are complete, while a few others are in the iterative 
stages of development and implementation. During 1997 and 1998 the 
Council (and staff) spent a major portion of its time developing 
amendments to its fishery management plans to respond to these 
mandates. These amendments have strengthened the fishery management 
process in the North Pacific and helped to ensure the long-term 
viability of the fisheries off Alaska.
                   section 3: definitions (pp. 4-11)
    SFA added twelve new definitions (e.g. bycatch, economic discards, 
essential fish habitat, fishing communities, individual fishing quotas, 
overfishing, regulatory discards, etc.) and revised several others, 
most notably optimum yield (OY), which now cannot exceed maximum 
sustainable yield (MSY). NMFS reviewed the Council's fishery management 
plans (FMPs) and regulations and found that, except for ``individual 
fishing quota'', none of the definitions was contained in the FMPs or 
regulations. Therefore, NMFS notified the Council by letter on February 
20, 1997, that no revisions were needed. It was noted that OY is 
defined in the groundfish plans as a numerical range, which is still 
consistent with the new definition in the SFA. Although the definition 
of OY strictly speaking may not need revision, the Council needs to 
review each OY and ensure it does not exceed MSY. Progress on this 
review and revision is further explained below in reference to Section 
303(a)(3)--OY and MSY specification.
section 302(e, i, j): sopp update to reflect new procedures (pp. 51-56)
    The SFA revised several Council procedures relating to the 
transaction of business, procedural matters, and disclosure of 
financial interest and recusal. The Council approved revisions to its 
Standard Operating Practices and Procedures on February 7, 1997. The 
revised SOPP was submitted to NMFS on February 12, 1997, and 
subsequently withdrawn on advice that NMFS is withdrawing the Council 
Administrative Handbook. Revised SOPPs are nevertheless in preparation 
and expected to be filed and published by end of 1999.
      section 303(a): new required provisions of fmps (pp. 58-60)
    There are new fishery management plan requirements that relate 
principally to the following five areas: (1) essential fish habitat; 
(2) overfishing and stock rebuilding; (3) bycatch reporting and 
minimization, (4) recreational and charter sector descriptions and 
allocations, and (5) fishery impact statements as they relate to 
impacts on fishing communities. Additionally, Section 303(a)(3) on the 
specification of MSY and OY, though unchanged, needs to be considered 
to ensure that OY does not exceed MSY. Conforming plan amendments were 
to be submitted by October 11, 1998 (see PL 104-297, sec. 108(b), M-S 
Act Section 303 note at top of p. 64).
    Status: See individual amendments below.
           section 303(a)(3) oy and msy specification (p. 58)
    The SFA did not amend this section directly, but because the 
definition of OY was revised to not exceed MSY (Section 3(28), p. 9), 
each FMP OY needs to be examined and revised if necessary to conform 
with this new definition. The Council has processed changes to OY as 
amendment 7 to the BSAI crab FMP, and amendments 6 to the salmon and 
scallop FMPs. These three FMPs defer management to the State of Alaska. 
These plan revisions were approved in June 1998 and are now in place; 
the proposed rule for the salmon plan revisions are being prepared for 
Secretarial review.
    Regarding the groundfish fisheries, the Council has submitted and 
the Secretary has approved amendments 56 to the GOA and BSAI groundfish 
FMPs. They redefined overfishing and acceptable biological catch, but 
did not revise MSY and OY, which are numerical ranges in each plan. 
Trailing revisions of OY and MSY, as they relate to the overfishing 
definitions and minimum stock size threshold, may be considered in the 
future.
    Status: Council actions complete on groundfish, crab, salmon, and 
scallops; all revisions except for salmon overfishing have been 
approved by Secretary.
           section 303(a)(7): essential fish habitat (p. 59)
    Councils are required to describe and identify essential fish 
habitat (EFH) based on the NMFS guidelines established under Section 
305(b)(1)(A), and to minimize to the extent practicable adverse effects 
on such habitat caused by fishing. NMFS published EFH guidelines as an 
Interim Final Rule on December 19, 1997. The Council has moved ahead 
with processing amendments to its five fishery management plans, Gulf 
of Alaska (GOA) groundfish, Bering Sea and Aleutian Island (BSAI) 
groundfish, BSAI king and Tanner crab, scallops, and salmon. The latter 
three plans defer management to the State of Alaska. The Council also 
is describing EFH for various non-plan species such as herring, 
halibut, forage fish, and GOA crab. The final Council decision on 
identifying and describing EFH was made in June 1998, and the EFH 
amendments have been approved by NMFS.
    A second new EFH requirement is to minimize to the extent 
practicable adverse effects on EFH caused by fishing. The Council 
already has enacted many measures such as closed areas to certain 
gears, mainly directed at controlling bycatch of crab, halibut, herring 
and salmon in the groundfish fisheries. To varying degrees, they also 
reduce the impact of fishing on EFH. The Council has implemented one 
additional mitigation measure, closure of the Cape Edgecumbe pinnacles 
off Sitka, an area critical to ling cod and rockfish recruitment. Other 
mitigation measures may be proposed and developed during the annual 
call for groundfish proposals this summer, where the Council has 
requested proposals to identify habitat areas of particular concern 
(HAPC).
    Status: Council action complete on EFH amendments and approved by 
Secretary. Council will consider future proposals for habitat areas of 
particular concern, and will further consider impacts of fishing 
activities on EFH.
                section 303(a)(10): overfishing (p. 59)
    This provision requires addition of overfishing criteria, measures 
to prevent overfishing, and if necessary, measures to rebuild stocks 
identified as approaching overfished or are overfished. NMFS initially 
reported on overfished stocks to Congress on September 30, 1997. No 
North Pacific Council stocks were identified as overfished, although 
Tanner (bairdi) crab stocks have subsequently been classified as 
overfished under the new definitions. An aggressive rebuilding plan for 
bairdi crab has been developed and is scheduled for approval by the 
Council this fall. The Council has taken final action on new 
definitions of overfishing for each of its five fishery management 
plans: salmon, scallop, BSAI crab, BSAI groundfish, and GOA groundfish 
to conform to the National Standard guidelines published in the Federal 
Register on May 1, 1998. The plan amendments have been submitted to 
NMFS well ahead of the October 11, 1998 deadline.
    Status: Council action complete--awaiting Secretarial approval for 
salmon overfishing definitions.
     section 303(a)(11): bycatch reporting and minimization (p. 60)
    The Council has implemented many measures to restrain and reduce 
bycatch and bycatch mortality of non-groundfish species in the 
groundfish fisheries over the past twenty-three years. However, to 
further comply with the new mandate in this section the Council, in 
summer 1997, put out a special call for proposals to reduce bycatch. 
Responses were reviewed by the Council in September 1997, and the 
following proposals (with proposer identified) were chosen for further 
development:
    1. Ban on-bottom trawling for pollock in the BSAI (Alaska Marine 
Conservation Council);
    2. Lower chinook bycatch limit in trawl fisheries from 48,000 to 
36,000 salmon, and implement other measures to reduce chinook bycatch 
(Yukon River Drainage Fisheries Association);
    3. Create an individual vessel checklist program, similar to 
harvest priority, and provide for a reward fishery (Alaska Marine 
Conservation Council);
    4. Create a halibut mortality avoidance program (Groundfish Forum); 
and
    5. Reevaluate halibut discard mortality and implement quick release 
mechanisms such as grid sorting (United Catcher Boats)
    Plan amendments for proposals 1 and 2 were approved by the Council 
in 1998. Details of the remaining three proposals are being developed 
further by a special committee, with number 4 being developed further 
under an experimental fishing permit by industry participants. The 
Council believes the above actions, combined with existing bycatch 
management measures, satisfy the new requirements of the SFA, though it 
will consider fully any new proposals that may help to better address 
the bycatch issue.
    Concerning bycatch reporting, NMFS and the Council believe that 
observer reports, as applied through the blend catch accounting system, 
provide sufficiently accurate information on bycatch in the groundfish 
fisheries to conform with the new requirements of the SFA. Only for 
chinook salmon bycatch in BSAI pollock fisheries does there remain 
concern over accuracy of the data. To address those concerns, the 
Council in April 1998 added options to the analysis of chinook bycatch 
reductions that could increase observer coverage to 100 percent on 
vessels over 60 ft. in length when fishing in an area known for high 
bycatch, and provide for vessel monitoring systems on vessels fishing 
for pollock. The Council has also requested NMFS to report further on 
the accuracy of basket sampling for salmon and other measures to ensure 
accurate enumeration of catch.
    The scallop, BSAI crab, and salmon plans defer management to the 
State of Alaska. The scallop fisheries are monitored with observers. 
The main bycatch of concern in the scallop fishery is crab, and the 
scallop plan contains provisions to close fisheries when crab bycatch 
caps are reached. Crab bycatch is closely monitored by the State of 
Alaska to determine mortality, size frequency, shell-age, and injuries. 
Additionally, halibut bycatch and discarded scallop bycatch are 
monitored closely through the at-sea observer program. Bycatch 
information is being added to the scallop fishery management plan along 
with the definitions of overfishing, MSY and OY, as part of amendment 6 
which was approved by the Council in 1998. Additional bycatch 
mitigation measures are not being contemplated for the scallop fishery.
    The crab FMP designates bycatch measures as category 3 measures 
which are deferred to the State of Alaska. The State has an extensive 
observer program for crab and has adopted seasons, escape rings, 
biodegradable panels, mesh size, and maximum entrance size requirements 
to reduce bycatch and associated mortality of non-target crab in the 
directed crab pot fisheries. These measures complement Council efforts 
to reduce crab bycatch in other fisheries, and are consistent with 
National Standard 9, which states that conservation and management 
measures shall, to the extent practicable, minimize bycatch and to the 
extent bycatch cannot be avoided, minimize the mortality of such 
bycatch. Bycatch information on the crab fisheries is summarized in the 
crab FMP. Additional bycatch mitigation measures are not being 
contemplated by the Council for the BSAI crab FMP.
    The salmon FMP covers a multitude of salmon fisheries managed 
directly by the Alaska Department of Fish and Game or through the 
Pacific Salmon Commission. Management decisions take into account the 
mixed stock nature of the fisheries which often is the basis for heated 
allocational disputes. Aside from recognizing the mixed stock nature of 
the fisheries, the Council is not contemplating any additional measures 
concerning bycatch or bycatch mitigation in the salmon fisheries beyond 
the chinook bycatch cap reduction described above. The Council is 
working on measures to control bycatch of salmon in the Bering Sea and 
Aleutian Islands groundfish fisheries as noted above, but not on 
bycatch measures for the directed salmon fisheries.
    Status: Council action complete to date, but will continue to 
consider bycatch reduction and mortality measures including individual 
vessel incentives.
      section 303(a)(5.12-14): recreational and charter fisheries 
                descriptions and allocations (pp. 59-60)
    The only significant recreational fishery under direct Council 
management is for halibut. That fishery has no fishery management plan. 
It is managed biologically by the International Pacific Halibut 
Commission, and the Council has authority over allocative and limited 
entry issues. Even though there is no formal fishery management plan, 
many of the types of data required by the SFA were presented in the 
analysis performed on the halibut charterboat industry, completed in 
1997. Further action to establish a guideline harvest level (GHL) for 
the guided sport halibut fishery is scheduled for early next year. 
Future analyses on recreational halibut issues will include to the 
extent available the types of information identified in Section 
303(a)(5, 12-14).
    Status.--Future analyses will incorporate this information as 
necessary and appropriate.
  section 303(a)(9)(a): include fishing communities in fishery impact 
                           statements (p. 59)
    The Council already incorporates information on affected fishing 
communities in its fishery management plan amendment analyses as 
appropriate, and will continue to do so, particularly when fishery 
allocations are considered. Examples of recent efforts in this regard 
include comprehensive community profiles for 126 coastal communities in 
Alaska and the Pacific Northwest, and a Social Impact Assessment 
associated with recent major actions including inshore/offshore pollock 
allocations and license limitation programs.
    Status: Future analyses will incorporate this information as 
available. The Council, through its Social and Economic Data Committee 
and NMFS, is also developing a more programmatic data collection 
program for baseline community impact information.
  section 303(d)(4): north pacific loan program (pp. 63, 67, and 120)
    Development of a North Pacific Loan Program is guided by three new 
provisions added by the SFA. Uncodified section 108(g) on p. 120 
compels the North Pacific Council to recommend, by October 1, 1997, a 
loan program to guarantee obligations for sablefish and halibut IFQ 
purchases by entry level and small boat fishermen. The guarantees shall 
be based on a fee program developed in accordance with Section 304(d) 
on p. 67, and funds allocated as provided in Section 303(d)(4) on p. 
63.
    The Council took final action in recommending a loan program in 
September 1997. The process was then put on hold pending resolution of 
several issues, most notably the availability of funds to implement the 
program, and uncertainty in NMFS and NOAA GC regarding the appropriate 
form of the submittal package, more specifically whether an FMP 
amendment and/or implementing regulations would be required. Some of 
these issues were resolved by March 1998, and the Council wrote to NMFS 
on March 9, 1998, formally requesting agency action to implement the 
loan program. On March 26, 1998, NMFS wrote to the Council approving 
the loan program and stating that no further action was required by the 
Council to implement the program. Under the current arrangement, the 
loan program will be supported by special appropriations, unrelated to 
any fee program, for 1998. The fee program is being developed by NMFS 
and is scheduled for implementation in 2000 (see Section 304(d)(2) 
below). To base the loan program on the fee program, when implemented, 
may require additional action by the Council to amend its FMPs for 
groundfish and regulations for halibut (which has no FMP). NMFS and 
NOAA GC need to provide guidance to the Council on further actions.
    Status: Council action complete. NMFS has implemented loan program 
based on appropriated funding. Further loans will depend on additional 
funding through the fee plan being developed by NMFS.
          section 304(d)(2): fees on ifq/cdq programs (p. 67)
    This section directs NMFS to establish fees up to 3 percent on IFQs 
and community development quotas (CDQs). NMFS is preparing the fee 
program as a secretarial amendment to the groundfish FMPs. A discussion 
paper was provided by NMFS to the Council at the April 1998 Council 
meeting. The Council established a committee to work with NMFS on 
further development of the fee program and reviewed an implementation 
plan for the fee program in late 1998. Implementation is expected in 
year 2000.
    Status: Council action has been completed using a committee to 
advise NMFS on program structure and implementation. Fee program now 
awaiting implementation by NMFS.
       section 305(i): community development program (pp. 78-80)
    This section requires the Council to establish CDQ programs for 
groundfish and crab in the Bering Sea and Aleutian Islands. The Council 
already had approved a multispecies CDQ program in June 1995 along with 
provisions for a groundfish and crab license limitation program. The 
amendment package was submitted for Secretarial review on June 3, 1997 
as amendment 39 to the BSAI groundfish plan, amendment 41 to the GOA 
groundfish plan, and amendment 5 to the BSAI crab plan. The amendments 
were formally approved by NMFS on September 12, 1997 and are now in 
effect.
    Related to this section is the existing pollock CDQ program in the 
BSAI. It was due to expire at the end of 1998. In June 1998, the 
Council took final action on continuing the pollock CDQ program and 
melding it with the multispecies CDQ program. It has now been 
implemented, with revised percentages as mandated by the American 
Fisheries Act.
    Status: Council action complete.
section 313(f, i): four-year reduction in economic discards and report 
                    on full retention (p. 103, 105)
    Section 313(f) requires the Council to submit measures to reduce 
economic discards for a period of not less than 4 years. The Council 
has complied by submitting amendments 49 to the BSAI and GOA groundfish 
FMPs, requiring full retention of pollock and Pacific cod in all 
groundfish fisheries beginning in 1998, and adding full retention of 
BSAI rock sole and yellowfin sole and GOA shallowwater flatfish in 
2003. These amendments were approved by NMFS on September 3, 1997 for 
the BSAI and on October 29, 1997 for the GOA, and implemented on 
January 1, 1998. They will reduce economic discards of groundfish very 
significantly from pre-1998 levels. Discards of pollock and Pacific cod 
have been significantly reduced already, from 8.2 percent to 1.6 
percent and from 8.6 percent to 2.2 percent respectively. Full 
retention requirements for selected rockfish species were recently 
approved by the Council as well. At this time there are no plans to 
develop such measures for other Council FMPs, all of which defer 
significant management to the State of Alaska.
    Section 313(i) requires the Council to submit to the Secretary by 
October 1, 1998, a report on the advisability of requiring full 
retention and utilization. The report shall address the projected 
impacts of such requirements on participants in the fishery and 
describe any full retention and utilization requirements that have been 
implemented. Because the Council has already approved and implemented a 
full retention and utilization program for the groundfish fisheries, 
beginning in 1998, the emphasis of that report focused on the first-
year performance of the fisheries under the new requirements and 
lessons learned.
    Status: Council action complete.
         section 313(g): bycatch reduction incentives (p. 104)
    The Council may submit a system of fines in a fishery to provide 
incentives to reduce bycatch and bycatch rates. Though discretionary, 
the Council has a committee developing a vessel bycatch allowance 
system to place the onus for responsible fishing at the individual 
vessel level. This committee reported to the Council in June 1998, but 
has been on hold pending resolution of monitoring/legal issues with 
regard to accounting for individual bycatch quotas.
    Status: Council action pending.
            section 313(h): total catch measurement (p. 104)
    This section requires the Council by June 1, 1997 to submit 
measures to ensure total catch measurement in each fishery under its 
jurisdiction that will ensure the accurate enumeration, at a minimum, 
of target species, economic discards, and regulatory discards. By 
January 1, 1998, the Council and Secretary are required to submit a 
plan to Congress to allow for weighing, including recommendations to 
assist such processors and processing vessels in acquiring necessary 
equipment, unless the Council determines that such weighing is not 
necessary to ensure total catch measurement.
    The Council and NMFS already have a long history on efforts to 
provide for total catch measurement in North Pacific fisheries. For the 
groundfish fisheries, catch reporting is based on weekly processor 
reports, observer reports, and NMFS' blend system that estimates catch 
over the entire fishery. Fish delivered ashore are weighed, and 
observed, at the processing station. For the offshore catcher processor 
and mothership fleet, catch is measured volumetrically and transformed 
into catch weight using various algorithms and density coefficients. 
The Council and NMFS have been working together since the early 1990's 
to improve catch estimation and reporting, beginning with the 
comprehensive observer program approved by the Council in 1989 and 
implemented for the 1990 fisheries.
    By 1992, the observer program had been up and running for two 
years, the Council had just finished addressing the extremely 
contentious issue of allocations of pollock between the inshore and 
offshore sectors, and the first CDQ program had been approved for 
pollock in the BSAI. In resolving the inshore-offshore issue, 
significant debate revolved around how much pollock each sector was 
harvesting and how much pollock and other species were being discarded. 
Attention focused on the ability of then current catch measurement and 
reporting systems to provide accurate data. Thus, in January 1992, the 
Council commenced a special initiative to further improve catch 
information, by requesting development of a regulatory amendment that 
would require accurate estimation and reporting of total catch by 
species, either by weighing or volumetric measurements, and 
installation of communications systems capable of daily interactive 
reporting of harvest and observer data. By April 1993, the amendment 
had been prepared, and in June 1993, the Council took final action, 
recommending that catcher-processors in the pollock CDQ fisheries carry 
two observers and provide certified receiving bins for use in 
volumetric estimates of the catch, or provide tamper-proof scales to 
weigh all fish prior to sorting and discard. NMFS implemented 
regulations on May 16, 1994 requiring CDQ pollock vessels to either 
provide certified bins for volumetric estimates of catch or scales to 
weigh catch.
    In a separate initiative in October 1994, the Council approved a 
requirement for all processors in the directed pollock fishery to weigh 
all pollock harvest on a scale, intending that the program be 
implemented within two years. Various technical problems arose in 
finding scales that performed accurately at sea and in funding scale 
inspectors that would ensure accurate performance by the scales once 
installed. The Council was briefed periodically by NMFS in 1995 an 
development of scale requirements and NMFS published an advanced notice 
of proposed rulemaking on February 20, 1996, stating its intent to 
require weighing of all fish on pollock processing vessels. In April 
1996, NMFS informed the Council that certified scales would be needed 
before the new multispecies CDQ program, passed by the Council in June 
1995, could be implemented.
    In February 1997, NMFS emphasized once again to the Council that 
certified scales would be needed before the multispecies CDQ program 
could commence. NMFS described the funding that would be needed to 
commence such a program. In response, the Council wrote to NOAA on 
February 13, 1997, urging funding for the certified scale program so 
that the new CDQ programs could commence. NMFS published a proposed 
rule on June 16, 1997 that responded to comments received on the 
February 20, 1996 advanced notice. It established the ground rules for 
testing and certifying scales and performance and technical 
requirements in an At-Sea Scales Handbook, but did not require specific 
processors or vessels to use certified scales. NMFS then notified 
industry and the Council again that it would require certified scales 
in the multispecies CDQ fisheries that were scheduled to begin late in 
1998. On February 4, 1998, a final rule was published establishing 
testing and certification procedures. Those catcher processors that 
intend to operate in the multispecies groundfish CDQ fisheries later in 
1998 must have certified scales as well.
    In direct response to the new Section 313(h) requirements, the 
Council in June 1997 requested a report from NMFS on the accuracy and 
precision of groundfish catch reporting, and from the Alaska Department 
of Fish and Game (ADF&G) on salmon, crab and scallops. ADF&G and NMFS 
reported to the Council in February 1998. ADF&G concluded that its 
harvest enumeration methods for all scallop, salmon, crab, and 
groundfish species managed under FMPs were adequate to meet the 
requirements of the Magnuson-Stevens Act. NMFS presented a detailed 
report on groundfish reporting and several recent studies of their 
catch estimation procedures. The Council's Scientific and Statistical 
Committee (SSC) received a full-day presentation in February 1998 on 
NMFS catch and bycatch estimation. The SSC commended NMFS for its work 
to improve catch estimation and to document protocols and procedures, 
and then encouraged further work in that direction. The SSC provided 
specific recommendations for further improvements, but concluded in 
general that ``. . . existing measures for observer, reporting, and 
monitoring requirements provide for a reasonable system of total catch 
and bycatch estimation. In many respects, the system in place is better 
than any found around the world.'' The SSC stated its intent to review 
catch estimation each February.
    The Council then proceeded to take three actions in February 1998. 
First, it moved to initiate an analysis for a plan amendment for catch 
management measures in the pollock and yellowfin sole fisheries in the 
BSAI with an analysis of two options: (1) a certified bin program, and 
(2) a scale program. In recognition of limited availability of NMFS 
personnel to conduct the analysis, the Council did not set a deadline, 
but noted that although a fully developed amendment would not be 
prepared in the near future, the Council would need to report to 
Congress on this new initiative and work underway. Second, the Council 
requested NMFS to prepare a matrix of current measures used in each 
fishery and a framework plan to improve total catch estimation over 
time, and report back at a future meeting as staff availability 
allowed. Third, the Council asked NOAA General Counsel to provide a 
legal opinion on whether the Council was meeting the requirements of 
SFA. These initiatives will be the subject of further Council 
discussion in 1999 and 2000.
    Status: Council action complete, except for ongoing analysis of 
catch measurement and refinements in future years. SSC will review 
annually each February and provide recommendations to Council.
                    appendix: russia report (p. 120)
    By September 30, 1997, the Council was required to submit to 
Congress a report describing the institutional structures in Russia 
pertaining to stock assessment, management, and enforcement for fishery 
harvests in the Bering Sea, and recommendations for improving 
coordination between the U.S. and Russia in managing and conserving 
Bering Sea, resources of mutual concern. The report, entitled ``Russian 
Far East Fisheries Management,'' was submitted on September 30, 1997.
    Status: Council action complete.
    In addition to the above specific provisions, the Council and 
Council staff also contributed reports and information to the National 
Academy of Science (NAS) reports on IFQs and CDQs.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                             David Fluharty

    Question 1. The National Marine Fisheries Service (NMFS) and the 
Councils have begun to identify a subset of essential fish habitat 
(EFH) called ``habitat areas of particular concern.'' This subset 
targets critical areas such as places of spawning aggregations. Should 
these ``habitat areas of particular concern'' be the true focus of 
NMFS's work on EFH implementation?
    Response. I would like to respond to this key question in several 
ways.
    First, Essential fish habitat (EFH) under NMFS regulations to 
implement the SFA describes the habitats occupied by all of the life 
stages of fisheries managed under the MSFCMA. In relatively few cases 
can the NMFS and the Councils fully describe these habitats as 
specified by the Act. Thus, there remains an enormous amount of work to 
implement the Congressional mandate. Full implementation of this 
mandate is a prerequisite to understanding the relationships of fish 
and habitats. With respect to the habitats of spawning aggregations of 
fish, this is only one component of EFH. Thus, I would argue that it is 
not a surrogate for the habitat areas of particular concern (HAPC).
    [Parenthetically, I had a recent conversation with a key Senate 
staffer (Trevor McCabe) for the SFA who informed me that it was 
Congressional intent that HAPC would be closer to the definition of EFH 
than the broad brush interpretation taken by NMFS. The plain language 
of the SFA, however, leads me to agree with the NMFS in its drafting of 
implementing regulations. EFH does encompass the full life history 
range of managed species. HAPC is a subset of that area. It is more 
than a semantic debate--there are significant biological and management 
differences that affect management choices].
    Second, my observation is that HAPCs are being developed by west 
coast fishery management councils to be unique areas of EFH where 
unique or rare aggregations of habitat exist. In some cases, these 
habitats are exceptionally productive or diverse. In other cases they 
are habitats of non-managed species, like cold water corals, 
biologically consolidated soft sediments, etc. that could be harmed by 
fisheries. Thus, it appears that a hybrid has developed through NMFS 
interpretation of Congressional intent. With all due respects to 
Congressional drafters, I would argue that the NMFS interpretation of 
EFH and HAPC is appropriate and should be allowed to adjust the intent 
of Congress that is not clearly expressed in the SFA. Biologically, the 
NMFS interpretation works well in the Council management context.
    Third, I firmly believe that the intent of Congress and the efforts 
of the NMFS will converge in the implementation of HAPC. Congress 
should supply the financial and human resources support and the 
political leadership to fully implement EFH [this includes the fishing 
effects components of the SFA].
    Fourth, and finally, the EFH and HAPC efforts by NMFS under the SFA 
are very much needed initiatives to lay out what is known about the 
relationships of fish and their habitats in a fishery management 
context. This work is a prerequisite for eventual management of 
fisheries spatially and temporally in ways that will lessen fisheries 
effects and promote sustainability. This work is also a prerequisite 
for starting to utilize the knowledge of the ecosystem that is 
currently available, e.g., in the proposed Fishery Ecosystem Plan 
recommended by the NMFS Ecosystem Principles Advisory Panel, Report to 
Congress on Ecosystem-Based Fishery Management www.nmfs.gov/sfa/
reports.html.

    Question 2. Several non-fishing interests have expressed concern 
that the EFH consultation requirement is duplicative of other federal 
consultation requirements and will result in unnecessary delays of 
projects. Do you have any suggestions which would address the concerns 
of such non-fishing interests?
    Response. I would agree that the EFH consultation requirements are 
redundant to the comments required under the National Environmental 
Policy Act and the Fish and Wildlife Coordination Act. Still, used 
judiciously by the Councils and NMFS, the modest consultation 
requirements do not impose an onerous burden. The fisheries managers 
should be allowed, as a matter of public responsibility to request a 
clarification of the intent of project proposers when fish habitat 
interests are at stake.
    As written, the consultation authority is extremely modest and 
lacking in teeth. An agency can go forward with an action that 
adversely affects fish habitat. The NMFS and the Councils are not given 
authority, other than moral suasion, to reject projects. The 
opportunity to initiate a formal dialogue could contribute to a 
positive outcome [achieved by voluntary means] in terms of habitat 
protection In terms of my analysis, the NEPA and FWCA opportunities, 
have statutorially stronger provisions.
    Through a combination of consultations, proposers of actions that 
could negatively affect fish habitat are put on notice that their 
actions are in conflict with other federally supported and protected 
activities. A political balancing of interests would have to be 
brokered. I do not expect that the requirements would require 
unnecessary delays in projects. This is because the proponent of any 
large project substantially affecting fish habitat would be expected to 
be able to conform to the very reasonable review process deadlines in a 
timely manner. If I recall correctly, the whole process envisioned 
would transpire over a period of two or three months. No permit 
authority is provided the NMFS.
    Non-fishing interests were late in recognizing that Congress was 
drafting this legislation (SFA). They are alarmed that it passed the 
Senate and the House with overwhelming majorities but they are 
overreacting in terms of the strength and enforceability of the 
provisions.

    Question 3a. Some question whether it is appropriate to continue to 
use Maximum Sustainable Yield as the target for fisheries management.
    Please explain whether you think that there are any modifications 
to the management process which would make MSY a reasonable goal.
    Response. In short, MSY has been rejected by fishery scientists as 
a management goal since the mid-1970s. Still, it is an easily 
understood and reasonably easily quantified standard depending on the 
definition used. In fishery management situations where harvests 
allowed are above MSY there is a clear need to employ the concept. The 
SFA does this by requiring that all Councils and NMFS not exceed this 
concept.
    Beyond the SFA, the use of MSY is still criticized. The fundamental 
critique is easy to understand. If one constantly manages for the 
``maximum'', one is constantly pushing the limits. In fishery 
management, there are enormous uncertainties in recruitment, survival 
and fishing effects, including the effects of unreported harvests. 
Thus, it is precautionary to harvest at less than the MSY when one 
considers difficult to quantify levels of uncertainty in the fisheries 
management data.
    The appropriate management target level for harvests is somewhat 
controversial in scientific circles but it certainly lies below MSY 
except for some species, like crab and small pelagic species, where 
environmental conditions and highly variable recruitment make MSY-type 
management irrelevant. Unfortunately and fortunately, Congress has, at 
least, tied the hands of Councils to not exceed MSY. Now there is a 
need to make for a more sophisticated directive. I offer the expert 
discussion of the Scientific and Statistical Committee of the NPFMC 
Minutes (10/14/99) as an indication of the direction that Congress must 
work. This is a direct empirical response to the general problem. [See 
below].
                    comments on the nmfs guidelines
    The NMFS Guidelines were set up to implement the stronger language 
in the Magnuson-Stevens Act regarding overfishing. The SSC has 
previously commented on the problems with these Guidelines and is 
discouraged that NMFS has not seen fit to revise these guidelines to 
cure the flaws previously identified and to allow consideration of 
alternative approaches that take advantage of modern science. [The 
Congressional direction tends to define stocks that are a slight amount 
below MSY as overfished when, if fact, this standard is traditionally 
quite reasonable as a target to achieve. A pound under MSY is 
considered overfishing, when, in fact, it is well within the range of 
appropriate management.] Consequently, the SSC believes that strict 
adherence to the NMFS Guidelines is problematic for several reasons.
    A. Fish populations fluctuate widely due to a variety of reasons. 
One of the most important is recruitment fluctuations due to change in 
the environment. Setting an MSST [Minimum Stock Size Threshold] that 
balances conservation concerns with efficacious management is very 
difficulty in these circumstances.
    B. Using BMSY/2 as the lower bound for the MSST is fairly arbitrary 
and is based on population dynamics concepts that are about 50 years 
old. The use of such a high value may be draconian in its effect and 
induce unnecessary management action in light of naturally fluctuating 
stocks.
    C. The use of a fixed 10-year period for evaluating rebuilding is 
also arbitrary. It also conveys the impression that we can predict 
where the population will be ten years hence and ignores where the 
population currently is in the definition of overfished.
    D. Uncertainty in stock projections is not explicitly considered 
and the notion of risk is ignored.
    E. The requirement to set an MSST that can ``recover'' to a target 
biomass while being fished at F(ofl) is baffling. By definition, F(ofl) 
is defined as a fishing rate which, if continued, is likely to 
jeopardize a stock's long-term productivity. This is clearly 
inconsistent with the National Guidelines that seem to expect this same 
fishing rate to also promote stock recovery.
    F. There is strong potential for public confusion concerning the 
term ``overfished''. Stocks with wide natural swings in abundance will 
be classified as ``overfished'' with minor or no contribution from 
fishing. Under this definition, there are probably hundreds of species 
that were ``overfished'' and these are species that went extinct long 
before humans walked the planet. No rebuilding plan, no matter how 
stringent, would have ``rebuilt'' these species. All of this is to say 
that the public's expectation of rebuilding must be tempered with an 
understanding of ecological possibilities. Since these are often 
largely unknown, the SSC feels it is appropriate for primary 
conservation emphasis to be on avoiding ``overfishing.''

    Question 3b. Please outline alternatives to MSY as a target for 
management.
    Response. Please take note of the above critique. Fundamentally, 
the issue is that strict adherence to MSY allows managers to select the 
highest possible rate of fishing from a statistically derived range of 
target levels. This inevitably leads to a decline in harvests over 
time. Selection of the lower range of target level would remedy this 
problem but that tends to be unacceptable to the fishing fleet. 
Experience on the NPFMC indicates that conservative fishing rates tends 
to allow rebuilding of stocks and sustainable yields for most species. 
The species like crab for which recruitment fluctuates wildly in 
response to environmental conditions is not susceptible to this model. 
Many different conservative reference points could be defined less than 
MSY.

    Question 3c. How do you view ecosystem management as it relates to 
the management of species at maximum sustainable yield?
    Response. We are far from being able to define what is meant by 
ecosystem sustainable yield but it is likely to be a target that is 
below MSY for any single component of the ecosystem. Ecosystem 
components vary through time in response to environmental variability. 
Maintaining the complex interactions of a species within an ecosystem 
requires that it is not over-stressed by harvest of other measure.

    Question 4. Based on experiences in the Pacific Northwest with 
cooperatives under the American Fisheries Act, do you believe that 
Congress should look at similar cooperative agreements for other 
fisheries? Please explain.
    Response. The ability to form cooperatives has been available to 
U.S. fishing interests since 1934. It is a little realized alternative 
available to rationalize fisheries. The general intent of the Act was 
to allow harvesters to join into an association to process their catch 
independently of previous sole buyer arrangements that gave them a low 
price. The Pacific hake cooperative off Washington, Oregon and 
California and the pollock cooperatives off Alaska are based on another 
type of cooperative where a sector of the industry seeks a 
determination from the Department of Justice of whether or not its 
agreement is in restraint of trade. These cooperatives are dramatically 
reducing the amount of effort in the sector of the fishery, increasing 
product yields from a given quota, avoiding bycatch, improving safety 
and yielding higher revenues.
    The American Fisheries Act (AFA) cooperatives for inshore 
processors and catcher vessels falls into yet another arrangement--one 
mandated under the AFA to include processors and harvesters in a 
cooperative. In theory, these are potentially able to deliver the 
benefits of a cooperative form by sharing the benefits of a fishery 
equally, but there is much skepticism about the way they are structured 
in the AFA over the balance of bargaining power. At the present time 
(1999) the cooperatives are in the process of formation for the fishing 
season in the year 2000. Based on recent analysis, the balance of 
negotiating power lies in the onshore processing sector at the expense 
of the harvesters. The key provisions that enforce this imbalance are 
the requirement that harvesters may only form cooperatives with the 
processor to whom they have delivered the majority of their catch in 
the previous year and the requirement that to change cooperative units, 
a harvester would have to spend one year in the open access fishery. 
The effect of these two requirements conspire to make leaving a 
cooperative extremely expensive to a harvester and thereby reducing 
harvester freedom of movement in a market.
    Despite these flaws in the AFA style cooperative, there are 
potentially many models whereby quota can be allocated to sectors of a 
fishery acting in a cooperative arrangement. Such arrangements have the 
potential to achieve rationalization of the fisheries and increase in 
value.

    Question 5. The National Academy of Sciences recently published a 
report titled Sharing the Fish. Please comment on it findings and 
recommendations.
    Response. This is a tall order. Suffice it to say that the key 
question that Congress posed concerning whether or not the regional 
fishery management councils should be allowed, as appropriate, to 
develop Individual Transferable Quotas as fishery management measures, 
was answered in the affirmative. Thus, the moratorium on development of 
ITQ type programs should be allowed to lapse in October 2000 as 
specified in the legislation. Councils should have the ITQ in their 
tool kits to use when conditions warrant.
    The NAS/NRC study committee made numerous recommendations that 
Congress should consider concerning ``sidebars'' for Councils when they 
apply ITQs but stopped short of actual design of a system of or 
guidelines for application of ITQ programs in fisheries. My abstraction 
of the findings would indicate that Congress has the opportunity to 
provide guidelines that avoid ITQ programs that allocate windfall 
profits to harvesters, limit the concentration of IFQ, collect rent 
from the IFQ holder on behalf of the public owner of the resource, etc. 
I am convinced by the NASINRC analysis that much more use of this 
approach can be beneficial in fisheries management but I am also 
convinced that it is not the only approach that can be applied. Other 
approaches like license or effort limitation, moratoria, marine 
reserves, cooperatives, etc. can also be used. The fundamental issue is 
regional choice of the appropriate mechanism.
                                 ______
                                 

 Response to Written Questions Submitted by Hon. Ernest F. Hollings to 
                             David Fluharty

                         council representation
    Due to the Magnuson-Stevens Act's requirement that Council members 
be knowledgeable or experienced regarding the fisheries within the 
Council's geographic area of responsibility, Council members may have a 
personal or financial interest in a fishery that they are managing. 
Over the years, the Magnuson-Stevens Act has been revise to require 
that Council members disclose any financial interests in the 
harvesting, processing, or marketing of fishery resources under the 
Council jurisdiction held by that person, any relative, or partner and 
recuse themselves from voting on Council decisions that would have a 
``significant and predictable effect'' on any personal financial 
interest.
    Question 1. Have the conflict of interest provisions we enacted in 
the 1996 Sustainable Fisheries Act solved the problem or is there more 
work to do? Please explain.
    Response. I am a member of the NPFMC who has no financial stake in 
the outcome of any fishery which I manage. This makes me an ideal at-
large representative in a situation where there are many fishery 
interests competing for a seat at the table. As an honest broker, I am 
trusted to vote for good fishery management in a fair and impartial 
manner taking into account all of the interest I represent. While each 
of the interests would prefer to have the seat I occupy to be filled by 
someone with their interests, there is a recognition that having a 
neutral party is better than having a representative from an opposing 
interest in the seat.
    That said, I do not bring as much fishery expertise to the Council 
process as any of the potential interests who could occupy my seat. 
Despite my academic credentials and analytical capacities, I am reliant 
on interactions with the fishing industry to develop an understanding 
of the detailed considerations of how fisheries regulations can work 
for or against practical results in fisheries management. In the nearly 
six years I have served as a Council member, I have come to know and 
respect my industry colleagues.
    Frankly, I do not think that the SFA amendments regarding Council 
representation changed any interest conflict problems substantially. 
There are relatively few fisheries in the NPFMC where any individual or 
firm controls a 10% interest. Thus, the standard in the SFA as defined 
in NMFS regulations is not very restrictive. Still, I find that the 
Council process is one with many competing interests. Even when a 
Council member argues for and votes his or her personal benefit, it 
should be remembered that the vote is only one out of eleven (in our 
case) and that votes are very seldom decided on that close a margin.
    Our Advisory Panel has 23 members representing nearly the full 
panoply of interests in the Council process. Even their votes are 
seldom decided on the basis of a single individual.
    More important from my perspective is the obligation through the 
Oath of Office of Council members to uphold the national interest in 
the federal fisheries. In our area, not surprisingly, there is a strong 
bias toward regional, as opposed to national, benefit being promoted. 
Given the difficulty of analyzing net national benefit, the Council 
generally errs on the side of allocation of benefits sub-optimally. 
Because over 50% of the U.S. catch occurs in NPFMC waters, this can 
have significant implications. Even more vexing is the problem of loss 
of regional benefit by ill-perceived local benefits.
    Therefore, I am not as concerned about individual holdings in a 
fishery as I am about the overall result achieved. From 1976 to the 
present, I have been a skeptic of a Council process dominated by 
individual fishing interests. Gradually, I have come to respect the 
enormous contribution that is made by the countervailing power of 
fisheries interests to reign in on other fishing interests. Overall, I 
have confidence that inclusion of these individual interests adds an 
essential dimension of empirical knowledge to the process.
    It may be beneficial to include additional non-fishery interests in 
Council membership to bring into discussion other values than strict 
fishery values but there should not be a very wide divergence from the 
influence of those actually participating in the fisheries. Otherwise, 
the process could lose credibility and all manner of enforcement and 
compliance problems could arise.
    It is somewhat odd that I, as an employee of a very large academic 
institution, am held to a higher standard for recusal than a fishery 
member of the NPFMC. I must recuse myself whenever a contract with the 
University of Washington is under consideration even though I am not 
part of a research proposal or other activity before the Council.

    Question 2. Some have suggested not allowing individuals with 
current fishing interests to serve on the councils. Do you support such 
a change? How would it affect the quality and function of the councils.
    Response. As noted above, I consider active participants in the 
fisheries as essential members of the Council and am convinced that the 
countervailing conflicts among fishing and processing interests lead to 
a certain balance in the outcomes of Council actions. Disallowing 
direct fisherman participation would severely constrain the use of 
local knowledge. It may also put decisions in the hands of people who 
lack respect and appreciation of the impacts of allocation decisions. 
In the fully occupied fisheries of today, an allocation from one sector 
to another is like picking pockets. There needs to be a strong 
biological or conservation justification for such a measure and that is 
extremely hard to ground-truth unless there is direct participation.

    Question 3. How are non-fishing interests such as environmental 
interests represented on the councils. Is that representation adequate?
    Response. On the NPFMC there is only one environmental 
representative in a formal position on the Advisory Panel and on the 
Council Ecosystem Committee, although there is a general desire to make 
sure that environmental interests are accommodated by representations 
when necessary. Many environmental interests are working within the 
process in the NPFMC through participation in all aspects of the 
Council process. Clearly, commercial fisheries interests are the 
dominant voice in council deliberations. Sport charter fishing has 
reached the Council agenda but it has not been accorded a Council seat 
[only AP seat]. On that basis, it is fair to say that environmental and 
sport fishing interests are underrepresented in the Council system.
                                 ______
                                 

   Response to Written Questions Submitted by Hon. John F. Kerry to 
                             David Fluharty

                             fishing quotas
    Tim Hill has stated in his testimony that it is essential to set 
hard total allowable catch (TAC) limits if we are to achieve our 
management objectives in New England. The North Pacific Council, along 
with all other Councils, have set hard TACs, but the New England 
Council has not.
    Question 1. Why did your Council decide to set hard TACs?
    Response. The NPFMC set hard TACs from the very beginning of the 
implementation of the FCMA. I was not a part of the Council 
deliberation process but I believe it derived, in this area, from the 
prior efforts of the International North Pacific Fisheries Council, a 
multinational entity that sought to control catches on the high seas in 
the North Pacific. After declaration of national jurisdiction, the 
scientific protocol of stock assessments carried over to national 
jurisdiction. For much of the first decade, U.S. scientists set TACs to 
regulate foreign fisheries. Gradually, as foreign harvesting evolved 
into joint ventures and finally to a totally domestic fleets, the 
scientific stock assessment tradition has carried over. Based on this 
tradition, and the experience of fisheries managed by gear 
restrictions, I am convinced that the TAC approach to management is 
what has sustained fisheries in the NPFMC area. It presents a hard cap 
on effort. In the NPFMC area we have insisted on observers to account 
for the TAC and other bycatch. We have counted all removals of a 
species against that cap. Scientifically, it is a directly measurable 
index of what the fishery is doing. Never has the NPFMC chosen a TAC 
above that recommended by the Plan Teams and the Scientific and 
Statistical Committee.
    Besides the use of a TAC by species, we cap the total harvests 
(removals) in the Bering Sea/Aleutian Islands at 2,000,000 metric 
tons--much less than the sum of the TACs based on scientifically 
justified allowable biological catch. By most fishery management 
standards, we harvest at a low rate. We have fish.

    Question 2. How would you manage your fishery consistent with the 
SFA if you did not use hard TACs? What are the problems you would 
encounter?
    Response. I cannot imagine how to manage the NPFMC fisheries by any 
other methods than a TACs. Management by effort control has many well-
documented pitfalls. In my experience, the unwillingness to employ TACs 
is either based on an unwillingness to restrain the fisheries to a 
sustainable level or the incapacity to survey and calculate an 
independent stock assessment. The latter is true for many developing 
countries. It is not the case in the United States.
    The problems that we would likely encounter would be the 
dissipation of economic rents in excess capacity. Towing a net of a 
certain mesh size around and around in the ocean may produce a 
commercial catch but it in no way matches the catch rates when fishing 
on abundant fish under a TAC. A mesh restriction means that a large 
portion of those fish too large to pass through the net get caught. Are 
these larger individuals important genetically or with respect to 
population structure? Most likely. If TACs are not used in management, 
it seems that one is substituting a less effective program to restrain 
catches.
                            bottom trawling
    Dr. Fluharty, you tell us that the North Pacific Council has closed 
more than 15,000 square nautical miles to bottom trawling in order to 
protect king crab habitat, reduce crab bycatch, and reduce gear 
conflicts. We have some of the same concerns in New England on George's 
Bank, where Mr. Hinman tells us that bottom trawls are used over 40,000 
square kilometers of bottom habitat.

    Question 3. Is the North Pacific Council working with fishermen to 
develop innovative ideas for gear improvements to mitigate these 
habitat impacts?
    Response. The short answer is, yes, the NPFMC is working with 
fishermen to develop innovative ideas for gear improvements to mitigate 
fishing impacts. In the closed areas, the Council has placed relatively 
little effort on gear modifications because the elimination solves all 
of the problems. One effort using Geographic Information System (GIS) 
technology has shown that a relatively pure catch of yellowfin sole can 
be obtained in one area of the red king crab area. Otherwise the 
yellowfin sole fishery has a relatively high bycatch. Under a strict 
management protocol this area is opened to allow a trawl fishery.
    The fishing industry has adopted and paid for a program known as 
Sea State to monitor daily bycatch of various species and uses the 
information to move fishing effort from high bycatch areas to low 
bycatch areas. This occurs outside of the areas closed to trawling. The 
industry has taken this proactive approach because the NPFMC policies 
would shut down the fishery based on bycatch of prohibited species 
before the TAC was met. With very high levels of observer coverage, it 
is difficult for harvesters to fish in areas closed to trawling or to 
discard bycatch. The combination of these efforts makes for a well-
managed fishery that works.
    In recent action, the NPFMC has required that all pollock fishing 
be done using mid-water trawls. This decreases impacts on the sea 
bottom immensely. The pollock fishery is one of the largest in the 
United States, so this is a non-trivial exercise.
    The one major effect of closing large areas to trawling for 
purposes of crab protection is that the area of trawl fishing is 
concentrated. But concentrated in areas with low bycatch of crab and 
other species. Unfortunately, it is also concentrated in the vicinity 
of Steller sea lion rookeries and haulouts. The Council has been forced 
to close substantial areas to provide additional protections for 
Steller sea lions. Not surprisingly, a management measure made in one 
location for very good reasons may be connected to another issue of 
equal importance.

    Question 4. What lessons can we draw from the North Pacific to help 
us address fish habitat issues in New England?
    Response. This is a difficult question as I am unfamiliar with New 
England. I will hazard several observations. The first is to reduce the 
overall exploitation rates on the major fish stocks and that will help 
them to recover. To the extent that other species of fish or 
invertebrates are dependent on habitat that is affected by trawling, it 
is critical to examine the interactions using GIS. Based on those 
analyses, it may be possible to identify key areas for protection of 
habitat for crab or scallop fisheries but which are not that important 
for cod fishing. Such areas could be restricted from trawling. Finally, 
effort based approaches to fisheries management are doomed to failure. 
Trip limits are a prime indicator of excess capacity. Sincere efforts 
must be made to reduce excess capacity. That reduces impacts on habitat 
and feeds back into the fisheries.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                            Wayne E. Swingle

    Question 1. The National Marine Fisheries Service (NMFS) and the 
Councils have begun to identify a subset of essential fish habitat 
(EFH) called ``habitat areas of particular concern.'' This subset 
targets critical areas such as places of spawning aggregations. Should 
these ``habitat areas of particular concern'' be the true focus of 
NMFS' work on EFH implementation? Please explain.
    Response. The identification of habitat critical to certain life 
stages of the fish stocks and designating them as habitat areas of 
particular concern (HAPCs) seems to be the next logical step in 
protecting EFH. It would be most helpful to the management process if 
NMFS and the National Ocean Survey (NOS) could focus part of their 
research program on delineating these areas. The use of HAPCs is not a 
new concept. The Gulf and South Atlantic Councils established HAPCs in 
1984 to protect pristine coral areas from the impacts of gear fished on 
the bottom, while simultaneously prohibiting harvest of stoney coral 
and sea fans. The coral HAPCs established off Florida and Texas total 
390 square nautical miles. Through our shrimp fishery management plan 
(FMP) we permanently closed shrimp nursery grounds off Florida (3,652 
square nautical miles) and seasonally closed nursery grounds off Texas 
for 45 to 60 days (5,475 square nautical miles). Subsequently we have 
(in 1994) prohibited all fishing in a spawning aggregation site for 
mutton snapper (11 square nautical miles) and (in 1999) proposed 
establishing two marine reserves at gag grouper spawning aggregation 
sites (219 square nautical miles). Identification of the importance of 
these areas to the life stages of the stocks we managed has required 
rather extensive at-sea sampling over many years. As we gain better 
biological information on the life histories of our fishery stocks, we 
recognize that there are other unique areas critical to production from 
these stocks. But to identify the location, scope, and importance of 
these areas will require additional research by NOS and NMFS.

    Question 2a. NMFS has been criticized for its lack of compliance 
with the Regulatory Flexibility Act. Other agencies, such as the 
Environmental Protection Agency, are required to convene small business 
advocacy review panels for each rulemaking that will have a significant 
economic impact on small businesses.
    Please explain in detail how a similar small business advocacy 
review panel process, such as the EPA's, could assist NMFS in bringing 
economic impact analysis to the forefront of fisheries decision-making?
    Response. The Council already has its own advisory panel for every 
fishery in the Gulf that has a management plan. The membership of these 
panels mostly comes from the affected industry. These panels look at 
proposed Council actions from various angles, including impacts on 
their respective businesses which generally fall within the SBA's 
definition of small entities. At the time these panels review Council 
plan amendments, the reviewed documents contain an analysis of impacts, 
inclusive of impacts on small business entities. If this analysis finds 
that the Council's proposed regulatory action has a significant impact 
on a substantial number of small entities, an Initial Regulatory 
Flexibility Analysis (IRFA) is included in the reviewed documents. If 
the reviewed Council actions are contained in a regulatory amendment, 
these panels are presented with various documents, including the report 
of the Council's Socioeconomic Panel, to aid them in reviewing 
potential Council actions.
    Even before the enactment of the Small Business Regulatory 
Enforcement Fairness Act in 1996 which made the Regulatory Flexibility 
Analysis judicially reviewable, the Gulf Council has already been 
conducting an analysis of impacts on small business entities, including 
an IRFA where appropriate, which the advisory panels review. In this 
regard, the impacts of Council actions on small business entities are 
reviewed on a routine basis.
    If more emphasis is needed to address the regulatory impacts on 
small business entities, the operating procedures governing the various 
advisory panels may be slightly modified to stress their task of 
reviewing impacts on small business entities.

    Question 2b. Does the Gulf of Mexico Council receive an adequate 
amount of socio-economic data to consider in the development of fishery 
management measures. If not, please explain the impact that inadequate 
consideration of such factors has had on the decision-making process at 
the Council.
    Response. The Gulf Council is generally provided with economic data 
which can provide an assessment of the general direction, if not the 
magnitude, of effects of management measures under consideration. Some 
measures require more refined data, such as financial information of 
directly affected vessels and dealers in certain areas in the Gulf or 
the recreational value of fish or fishing trip, that are usually not 
available. Most of the economic information in this regard are mainly 
based on input from the public through oral and/or written testimonies 
to the Council. In addition to these data that are not available, there 
is little or no information on fishing communities and their level of 
dependence on fisheries under Council consideration. This lack of 
information has at times hampered the Council in determining which of 
the regulatory measures that achieve the same objective provide the 
least negative or most positive impacts on fishing participants.

    Question 2c. Please outline any suggestions that you may have for 
improving socio-economic data collection measures which would maintain 
an appropriate level of confidentiality.
    Response.
    i. Conduct cost and returns studies on vessels and primary fish 
dealers, at least every 5 years.
    ii. Include socio-economic questions in the applications for 
permits.
    iii. Require logbooks now administered on permitted commercial 
vessels to include information on operating costs of vessel fishing 
operations.
    iv. Collect more detailed dealer-level price information (e.g., by 
size category) on major managed species.
    v. Collect more detailed information on imported fish products.
    vi. Conduct Gulfwide study profiling various fishing communities 
around the Gulf.

    Question 3a. Other regional fishery management Councils have been 
criticized for their inability to manage meetings in a civilized 
manner. This has created an environment in which people may be too 
uncomfortable to actively participate. As a result, some proposed 
management measures may not receive adequate consideration.
    Has the Gulf of Mexico Council had similar experiences?
    Response. During the 23 years I have served the Council I can 
recall only one issue where some of the persons attending public 
hearings and the Council session were probably reluctant to testify. 
This was related to an alternative proposal in 1990 by the Council to 
close the exclusive economic zone (EEZ) off the central Gulf coast 
(i.e., Florida panhandle through Louisiana) to commercial shrimp 
fishing in May, June, and July, concurrent with the annual closure off 
the Texas coast. The proposal was an alternative for reducing trawl 
bycatch of juvenile red snapper by area closure, instead of bycatch 
reduction devices (BRDs). The public hearings were attended by about 
4,500 persons and the final Council session by about 500, most of whom 
were opposed to the idea. I am sure some proponents of the closure were 
reluctant to testify. The Council concluded the adverse impacts greatly 
outweighed any benefit from the closure.

    Question 3b. Please explain how the Gulf of Mexico Council 
facilitates an atmosphere which enables people to speak freely during 
meetings.
    Response. The Council provides all persons wishing to testify an 
equal opportunity, and normally limits such testimony to either 5 or 10 
minutes per person. After each person testifies, Council members ask 
them questions to clarify the points they were making, or about their 
fishing operations. This question and answer period does two things: it 
assures the persons the members were listening to their testimony, and 
it brings out information useful to the Council in making its decision. 
The Council is always willing to extend its session into the evening 
hours to allow more testimony or to rearrange the agenda items the next 
day for such an extension.

    Question 4. Industry representatives have criticized the Councils 
for not using information and recommendations submitted by Advisory 
Committees. Please explain how the Gulf of Mexico Council incorporates 
the recommendations of such committees into its decision making 
process.
    Response. The Council utilizes two management processes; (1) plan 
amendments and; (2) regulatory amendments to specify the total 
allowable catch (TAC) for certain stocks and the management measures 
necessary to constrain the catch within the TAC (e.g., quotas, bag 
limits, size limits, seasons, etc.). In the regulatory amendment 
process the industry advisory committee or advisory panel (AP) is 
provided the stock assessment documents, the Stock Assessment Panel 
(SAP) report, which provides an acceptable biological catch (ABC) range 
and the Socioeconomic Panel (SEP) report which examines the social and 
economic impacts of setting TAC at various levels within the ABC range. 
The reports are provided to the AP at intervals of 2 to 4 weeks in 
advance of their meeting and are presented at these meetings by the 
chairmen of the SAP and SEP. Based on this information the AP develops 
its recommendations to the Council. The Scientific and Statistical 
Committee (SSC) develops its recommendations to the Council 
independently based on the same data.
    In the plan amendment process the draft amendment is provided to 
the AP (and SSC) for review during the period the Council is holding 
public hearings, unless the amendment is controversial, in which case, 
the AP usually reviews the amendment twice before final Council action. 
At the AP (and SSC) meetings Council staff presents the plan amendment.
    In both processes the recommendations of the AP are reviewed and 
acted upon by the management committee with oversight responsibility 
for that stock. The management committee recommendations are 
subsequently acted on by the Council. Usually some of the AP 
recommendations are accepted by the Council and some are not. The same 
is true of SSC recommendations, some of which may conflict with the AP 
recommendations.

    Question 5a. Some question whether it is appropriate to continue to 
use Maximum Sustainable Yield (MSY) as the target for fisheries 
management.
    Please explain whether you think that there are any modification to 
the management process which would make MSY a reasonable goal.
    Response. MSY as a verbal concept is not an unreasonable goal. 
However, there are a number of computational problems in arriving at a 
reliable numerical value for MSY. For Graham-Schaefer and other stock 
production models that yield an estimate of MSY in biomass it is 
unusual that all of the conditions of the model can be met. Where there 
are multiple types of commercial gear used and a large recreational 
component in the total catch it is pure guess work on how to treat the 
effort for each of these components in order to have a single effort 
component to shape the MSY curve.
    The long-term equilibrium yield from a stock will vary depending on 
the minimum size limit and other selectivity factors. For example the 
fishery for red drum, which is a major recreational fishery, has always 
been pursued on the first 3 to 4 year classes which occur in state 
estuarine waters. This results in an equilibrium yield (or MSY 
estimate) much lower than would be the case if the fishery were pursued 
on the adults in federal waters. The adults, while making a nice 
trophy, are not very desirable for human consumption because as they 
age parasite infestation increases. Surely the intent of Congress is 
that MSY be the lower value consistent with the historical fishery, 
even though that may be 2 or more times less than the MSY for harvest 
of adults only.
    NMFS in their letter of June 14, 1999 (attachment 1) to the South 
Atlantic Fishery Management Council (SAFMC) which disapproved spawning 
potential ratio (SPR) proxies for MSY in their Sustainable Fisheries 
Act (SFA) Amendment, stated that ``the national standard guidelines 
require biomass-based estimates for MSY.'' Actually, the national 
standard guideline provides for other alternatives for expressing MSY 
when data are insufficient for specifying MSY directly, i.e., biomass-
based MSY. Recent attempts by NMFS to determine a biomass-based MSY for 
red snapper illustrate the problem of arriving at a reliable estimate 
in terms of pounds. The current stock assessment has 6 estimates of MSY 
ranging between 37 and 204 million pounds depending on the assumptions 
used in the model. This same model analyses provide 6 estimates of the 
biomass associated with MSY ranging from 3.5 to 4.7 billion pounds. 
None of these seem to be realistic MSY estimates consistent with past 
maximum landing levels, which suggest MSY should be on the order of 30 
million pounds or likely less. Apparently the models do not take into 
account that the size of the standing stock and MSY for red snapper is 
limited by the amount of habitat with reefs since red snapper 
congregate on reefs. The estimates of the biomass associated with MSY 
(standing stock at MSY) are particularly unrealistic. This illustrates 
that it is probably unrealistic to use a biomass-based MSY for some 
stocks.

    Question 5b. Please outline alternatives to MSY as a target for 
management.
    Response. Because of the problems cited above I feel a much better 
standard for most of our stocks would be to use a static spawning stock 
biomass per recruit (SSBR) proxy for MSY. NMFS is probably correct that 
the use of SPR based on fecundity (egg production) is not appropriate 
as a proxy, in that for many stocks there is no direct relationship 
between eggs produced and MSY. This is because most stocks 
overcompensate by producing many more eggs than is necessary to produce 
MSY. However, since SSBR is biomass-based parameter, it not only seems 
appropriate to use as a proxy for MSY but also to be an allowable 
alternative for MSY suggested under the national standard guidelines. 
The computation of the SSBR is more straightforward and reliable. If it 
is used as a proxy for MSY, then optimum yield (OY) should also be 
stated in terms of SSBR, but at a higher level to be precautionary in 
setting the harvest target.

    Question 5c. How do you view ecosystem management as it relates to 
the management of species at maximum sustainable yield?
    Response. We currently manage some stock-complexes as an ecosystem. 
For example, for the grouper complex (15 stocks) we set annual 
commercial quotas for the shallow-water and deep-water grouper 
complexes. The bag limits for the recreational sector are aggregate bag 
limits for all grouper species. This is because usually neither the 
commercial or recreational sectors can fish for a single species 
without harvesting other grouper species. Observer data for longline 
vessels targeting grouper indicate they commonly take about 85 species 
of other reef fish and sharks as bycatch. Similarly, the recreational 
fishermen targeting grouper catch other species. This makes it almost 
impossible to manage each of these interrelated stocks separately at a 
MSY level. What we have done for Nassau grouper and jewfish stocks, 
which are classified as overfished, is to prohibit any harvest or 
possession. This, while not completely eliminating fishing mortality, 
does significantly reduce it. Anecdotal information from divers 
indicate the jewfish stocks are recovering. Nassau grouper were 
overfished in the Caribbean Sea and are very rare in the Gulf.
                        questions for panel iii
2. Adequacy of Council Funding
    Mr. Swingle, you pointed out in your written testimony that while 
the work of the councils has increased dramatically due to the 
requirements of the Sustainable Fisheries Act, the budget request for 
the councils has increased a mere 2.3 percent.
    Question 1. Do the councils have adequate financial resources to 
carry out their work? If not, what is being left undone due to 
financial constraints?
    Response. No, the Councils have not had adequate financial 
resources to do a good job of carrying out their work since the early 
to mid- 1980's. In the fiscal years 1977 through 1984 the allocations 
to the 8 Councils was sufficient not only to cover the administrative 
costs of their operations, but it also provided programatic funding 
which was used largely to get the information the Councils needed to 
carry out their management responsibility. These programatic funds made 
up 20 to 25 percent of the Councils' expenditures in the first several 
years and were gradually reduced to about 15 percent during the early 
1980's, essentially ceasing to exist after 1984. The flexibility these 
funds provided to the Councils allowed them to do a much better job 
with smaller technical staffs. Our Council, for example, during the 
1977-1981 period was concurrently developing 11 draft FMPs, each one 
requiring about 2 years for completion. Most of these were developed by 
contracting with academic institutions, Sea Grant programs, or private 
consulting firms. There was flexibility to have social impact analyses 
completed and even determinations of the coastal communities most 
dependent on commercial fishing. There was flexibility to have detailed 
environmental impact statements prepared and most importantly the 
flexibility to have analyses completed of management data sets needed 
for the FMPs or amendments to the FMP. In addition to the analyses and 
information obtained by these programatic funds, NMFS was also 
providing similar data and analyses, so the system was more efficient 
than it is now and much of the socioeconomic information was better.
    The Councils, of course, like any governmental entity, live within 
the funding allocated to them. To give you an idea how tight the 
current budget is, the Mid-Atlantic Fishery Management Council needed 
$90,000 to cover the cost of the additional member position created by 
the SFA, and the other Councils could not agree to readjust their 
budgets to cover that cost.
    What is being left undone is that amendments to address rebuilding 
schedules for overfished stocks and other SFA issues, such as bycatch, 
are proceeding at a slower pace because budget limits the number that 
can be done each year. But more importantly even though the Council 
still makes its decisions on the best available scientific information, 
that information base is not as good as it should be or was. This is 
particularly true of the information related to social impact analyses 
and true of the information for economic analyses. Our Council, in the 
past 4 years, has been able to fund only two social impact analyses of 
limited scope and two biological analyses. Currently NMFS has no 
technical capability in the social sciences that can be used to 
generate this information or the impact analyses. The reduction in NMFS 
FTE personnel has even adversely affected their capability to complete 
all the stock assessments we need, and flexibility is needed to 
contract for some of these studies.

    Question 2. What would you recommend as an appropriate level of 
council funding, compared to current funding?
    Response. Over the past 4 years, the Council chairmen and executive 
directors have met with NMFS headquarter staff to discuss the next 
federal budget under development, as it relates to both NMFS and 
Council needs. For the FY 2000 budget the Councils recommended to NMFS 
that their allocation be set at 15 million dollars. That represents a 
15 percent increase over the FY 1999 allocation to the Councils. The 
Councils based the recommendations partially on the need to regain some 
programatic funding to restore their flexibility in carrying out the 
management responsibilities.
                                 ______
                                 

                              Attachment I

                               U.S. Department of Commerce,
                                 St. Petersburg, FL, June 14, 1999.
Mr. Pete Moffitt, Chairman,
South Atlantic Fishery Management Council,
Charleston, SC
    Dear Mr. Moffitt: This letter is to emphasize the importance of 
addressing in a timely manner the steps that must be taken by the 
National Marine Fisheries Service (NMFS) and The South Atlantic Fishery 
Management Council to bring the fishery management plans of the South 
Atlantic Region into full compliance with the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-
Stevens Act). As you know, NMFS disapproved the rebuilding schedules 
for all grouper species, red snapper, and red drum. The disapproved 
schedules must be reconsidered and estimated based on the time required 
to recover to BMSY in the absence of fishing mortality and 
the generation time of the species. I have asked the Southeast 
Fisheries Science Center (Center) to provide the Council with 
rebuilding schedules consistent with the national standard guidelines 
to replace those that were disapproved. I have also requested 
rebuilding schedules for wreckfish, golden tilefish, and gray 
triggerfish, which were classified as overfished in the 1998 NMFS 
report to Congress. The new rebuilding schedules will be provided to 
the Council before the September Council meeting. I ask the Council to 
take action in September to implement these new rebuilding schedules 
either through framework action or plan amendment.
    I have also notified the Center that additional analyses to develop 
biomass-based overfishing definitions will be required for other 
stocks. NMFS partially approved the overfishing targets and thresholds 
that were submitted by the Council on the basis that the stock status 
determination criteria were incomplete and did not totally fulfill the 
new requirements of the Magnuson-Stevens Act. The national standard 
guidelines require biomass-based estimates for maximum sustainable 
yield (MSY), the stock biomass associated with MSY (BMSY), 
and the minimum stock size threshold (MSST), in addition tot he fishing 
mortality-based spawning potential ratios (SPR) provided by the 
Council. These biomass-based reference points will be provided to the 
Council through the scheduled stock assessment and scientific review 
panel processes. In the interim, the Council should continue to based 
management decisions on the SPR reference points partially approved in 
the Sustainable Fisheries Act (SFA) amendment. For some stocks, such as 
king mackerel, Spanish mackerel, and red porgy, the biomass-based 
estimates have recently been provided.
    In an April 19 letter, the Council requested modifications to the 
SFA amendment. There is no mechanism for NMFS to incorporate these 
modifications after submission of the final amendment by the Council. 
These modifications must be implemented through appropriate framework 
procedures or plan amendment.
    I am committed to working with the council to implement rebuilding 
schedules and biomass-based reference points. This is a challenging 
task in the South Atlantic Region due to the number of managed stock 
and the lack of scientific information. I look forward to a close 
association with the Council in the future.
            Sincerely yours,
                                  William T. Hogarth, PhD.,
                                            Regional Administrator.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                          Glenn Roger Delaney

    Question 1. Do you believe that NMFS sufficiently recognizes the 
fact that the U.S. harvests only a very small percentage of each of the 
Atlantic highly migratory species (HMS) and that the U.S. can not 
unilaterally rebuild any HMS stock? Please explain in detail.
    Response. In the months immediately following the enactment of the 
Sustainable Fisheries Act the answer to this question was that NMFS 
definitely did not sufficiently recognize this fact in practice. Given 
that the head of NMFS was then also the U.S. Government Commissioner to 
ICCAT, it is unclear what the ``official'' position of the agency was 
at that time. Nevertheless, initial NMFS statements and briefings 
before Congress and the industry constituencies indicated that at least 
the Highly Migratory Species Division, General Counsel and the Office 
of Sustainable Fisheries intended to pursue an interpretation of 
section 304(e) that would subject ICCAT-managed species to completely 
unrealistic and unachievable, unilateral rebuilding schedules. This 
interpretation was in direct contradiction to my understanding of the 
Congressional intent behind section 304(e)(4)(a) which I believe 
recognizes that multilateral cooperation is the fundamental reality of 
HMS management and policy.
    Fortunately, as cited in my testimony, the key fishery policy 
leaders and SFA authors in Congress, including Senator Snowe and 
Senator Breaux, provided a clear statement of Congressional intent with 
respect to the application of section 304(e) rebuilding schedules to 
HMS species. This, together with many months of meetings, discussions 
and correspondence resulted in the agency ultimately deferring the 
rebuilding scenarios for bluefin tuna and swordfish to ICCAT. It is not 
clear if this deferral was a de facto result of the timing of ICCAT 
action or that, indeed, the agency had been persuaded to adopt the 
correct interpretation of the SFA.
    It appears today that NMFS policy decisions and interpretations of 
law are increasingly dominated by considerations of pending or 
anticipated litigation. Considerations of what is best for the fish and 
fishermen have been subverted to analyses of litigation costs and 
probability for success. Given the uncertainty as to NMFS future 
actions and interpretations of this law, I reiterate the recommendation 
made in my testimony that these provisions and all others in the Act 
that relate to HMS should be amended to clarify and strengthen the 
policy that highly migratory species management in the U.S. cannot be 
pursued by NMFS unilaterally but, instead, must be pursued through 
international cooperation at ICCAT. I would be pleased to have the 
opportunity to work with the Committee on specific measures to achieve 
this objective.

    Question 2. During the hearing, you discussed the lack of formal 
consultation between NMFS and the U.S. Commissioners regarding 
implementation of domestic regulations based on ICCAT agreements. 
Please provide the Subcommittee with recommendations which would 
improve this situation.
    Response. As a result of changes made by the Sustainable Fisheries 
Act, section 304(g)(1)(A) of the Magnuson-Stevens Act already requires 
the Secretary to ``consult with and consider the views of commissioners 
. . . appointed under [ICCAT] in the process of preparing a fishery 
management plan or plan amendment with respect to any highly migratory 
species''. Once again, I believe the Congressional intent behind this 
provision was to ensure that the intent of the negotiators with respect 
to domestic implementation of ICCAT recommendations be fully considered 
and reflected in NMFS regulations.
    Unfortunately, section 304(g)(1)(A) has been insufficient as 
written to achieve an adequate level of Commissioner input into the 
development of plans, plan amendments or regulations that implement 
ICCAT recommendations. As my testimony indicates, I have never been the 
subject of such a consultation in five years as Commissioner nor have 
my views ever been formally solicited in this capacity. Furthermore, I 
have witnessed a number of important situations in which explicit 
Commissioner intent as to the domestic implementation of an ICCAT 
recommendation was not reflected in a resulting regulation. The 
consequence of ignoring explicit Commissioner intent with respect to 
domestic implementation of ICCAT recommendations is to seriously 
undermine the credibility of the Commissioners and their ability to 
effectively negotiate on behalf of legitimate U.S. interests.
    In addition to those examples mentioned in my testimony, I would 
like to add the following two examples to the record in which explicit 
Commissioner intent was ignored in the resulting implementing 
regulations.
    First in the context of the 1996 ICCAT recommendation regarding 
western Atlantic bluefin tuna, a provision was included obligating the 
U.S. to adopt measures designed to reduce dead discards of bluefin 
tuna. During the development of this measure while at the 1996 ICCAT 
negotiations held in San Sebastian, Spain, and before such provision 
was agreed to by the U.S., the U.S. Commissioners and the leadership of 
the NMFS agreed on a handshake that the U.S. implementation of this 
provision would include a relaxation of the current 1-fish landing 
limitation imposed on the U.S. incidental category (longline fishery) 
fishing in the Atlantic areas (not the Gulf of Mexico). This 
understanding was reaffirmed in subsequent meetings and discussions 
between myself, the other U.S. Commissioners and NOAA/NMFS leadership.
    As was agreed, the objective of allowing multiple landings in the 
Atlantic area was to enable this fishery to ultilize more fish and 
discard less fish, while remaining within its U.S. incidental category 
quota. It was well recognized by those in these discussions that the 
arbitrary 1-fish limit was actually causing much of the U.S. bluefin 
tuna dead discard problem and that this was a terrible, unnecessary 
waste of a fishery resource. It was also recognized that this arbitrary 
limit was substantially preventing the incidental category from 
rightfully landing its U.S. category quota allocation. The 
Commissioners intent to relax the 1-fish limit would have met our 
obligations to reduce dead discards under the specific ICCAT provision, 
and would have enabled the U.S. to reduce waste and bycatch, and 
rationalize the domestic management of the U.S. longline fishery.
    Nevertheless, the resulting regulations implementing the 1996 
agreement did not include any relaxation of the 1-fish limit that was 
causing our regulatory discards in the first place. Instead, the 
regulations included a closed fishing area specifically designed to 
reduce the incidental category's overall catch of bluefin tuna and 
thereby, indirectly, reduce discards above the 1-fish limit. 
Maintaining the 1-fish limit and imposing a closed fishing area was 
completely inconsistent with the Commissioner's intent and I feel I 
personally lost a great deal of credibility as a U.S. Commissioner with 
the U.S. delegation and affected constituencies as a result.
    The second instance again involved a U.S. obligation to manage dead 
discards of bluefin tuna. In the 1998 meeting of ICCAT, the U.S. 
Commissioners developed, in cooperation with NMFS personnel and 
scientists, the rebuilding plan for western Atlantic bluefin tuna that 
was ultimately adopted (with modifications) by ICCAT. As part of that 
plan, the U.S. was allocated a dead discard allowance of 68 tons. 
Following extensive consultations within the U.S. delegation, the 
Commissioner's explicit intent was for the dead discard allowance to be 
distributed proportionately among each of the U.S. fishery sectors so 
that each sector could be individually held accountable for its 
discards. This was intended to provide each sector with an incentive to 
further reduce discards.
    This proportionate sector distribution approach was very similar to 
that which the Commissioners recommended for the distribution of the 
additional 43 tons of directed U.S. quota as mentioned in my testimony 
and stemmed from the same discussions at the ICCAT meeting in Santiago 
de Compostella, Spain. Neither was followed by NMFS when they initially 
issued the implementing regulations (HMS FMP) and only the 43 ton 
directed quota distribution problem has been fixed subsequently. There 
has been no distribution of the dead discard allowance to each of the 
U.S. sectors. The Commissioner's specific intent to provide sector 
accountability and an incentive to reduce discards within each sector 
was ignored. Again, my credibility as a Commissioner has suffered as a 
consequence and this makes it much more difficult to negotiate ICCAT 
measures in the future if I cannot be sure how they will be imposed on 
my own fishermen.
    It is clear from these experiences that a more formal and explicit 
process is needed to ensure that the intent of the U.S. Commissioners 
regarding domestic 
implementation of ICCAT measures is ultimately reflected in U.S. 
regulations. The Commissioner's credibility within the U.S. 
constituencies and thus, their ability to be effective negotiations on 
behalf of the U.S. is at stake.
    My recommendation to improve this situation is basically to get the 
Commissioner's intent in writing and to require NMFS to follow this 
intent unless it is clearly inconsistent with other provisions of the 
Act. Thus, I would specifically recommend that the Atlantic Tunas 
Convention Act (ACTA) be amended to include a provision that requires 
the U.S. Commissioners to submit to the Secretary a joint written 
report by a date certain following each ICCAT meeting. Such report 
should include any specific recommendations and advice of the 
Commissioners with respect to the domestic implementation of any ICCAT 
recommendation that affects U.S. fishermen. Particularly important 
should be an explanation of how the Commissioner's intent for domestic 
implementation was relevant in their drafting of the recommendations 
and negotiations with other ICCAT Parties.
    Further, section 304(g) of the Magnuson-Stevens Act should be 
amended to require the Secretary to review this report and follow such 
recommendations (unless they are inconsistent with the Act) before 
drafting any fishery management plan, plan amendment or regulation, to 
implement such ICCAT recommendation. 
Consideration of this report by the Secretary should include a meeting 
with the Commissioners to review the document. Any of the 
Commissioner's recommendations or advice not followed by the Secretary 
should be noted in writing in the Secretary's subsequent actions (e.g. 
proposed rule) with explanations of the reasons therefor. The analogy 
is somewhat to section 304(a) under which the Secretary reviews the 
input of the Councils and basically follows the Council's 
recommendations unless such recommendations are determined to be 
inconsistent with the national standards, other law, etc. I would be 
pleased to work with the Committee in drafting specific provisions to 
achieve this objective.

    Question 3. Some question whether it is appropriate to continue to 
use Maximum Sustainable Yield as the target for fisheries management.
    a. Please explain whether you think that there are any 
modifications to the management process which would make MSY a 
reasonable goal.
    b. Please outline alternatives to MSY as a target for management.
    c. How do you view ecosystem management as it relates to the 
management of species at maximum sustainable yield?
    Response. Since I was invited to be a witness in my capacity as a 
U.S. Commissioner to ICCAT, I will try to limit my responses, when 
relevant, within the context of ICCAT and HMS species. I would also 
note that I addressed some aspects of these questions about MSY in my 
written testimony under ``further issues'' (1).
    The management process of using the concept of MSY (MSC) at ICCAT 
as the goal of our management efforts is a reasonable one. It is not 
unreasonable to strive to achieve the greatest number of tons of fish 
from a resource as we can on a sustainable basis. Our job is to 
maximize benefits from fishery resources yet protect them from 
depletion. It is, perhaps, not the only reasonable goal that could be 
adopted, but it is what the Convention adopted many years ago.
    What is not reasonable is for a management process to treat every 
fishery as if it were in a state of extreme biological crisis if it is 
not producing this absolute maximum sustainable amount of fish at any 
given time, and to require draconian economic and social sacrifice to 
achieve this absolute maximum in some completely arbitrary time frame. 
That is, in fact, what the Act currently does through the linkage of 
the flawed definitions of overfished/overfishing to the arbitrary 
rebuilding provisions of 304(e).
    As stated in my testimony, overfished may mean ``not producing 
MSY'', but is that really the key conservation concern? Is the maximum 
really a valid conservation objective? Do we have to achieve the 
maximum in order to have an acceptably healthy resource? Is management 
a failure if we are not at the maximum? I think not.
    I believe ``overfishing'' is what really matters and is what should 
drive management decisions regarding fishing mortality. However, that 
term should not be defined as it currently is in the context of some 
estimate of MSY based on historical data, but should be re-defined in 
terms of an evaluation of the current sustainability of the fishery. 
Management decisions should be based on determinations of whether the 
fishery is at equilibrium between sources of mortality balanced by 
growth and reproduction. Overfishing is when fishing and natural 
mortality exceed the level necessary to achieve this equilibrium.
    Thus, I believe the valid conservation concerns or ``targets'' are, 
for the population to be:
    (1) above a species-specific minimum threshold of abundance, and
    (2) at equilibrium (sustainability).
    Such a minimum threshold should account for the unique growth and 
reproductive characteristics of each species and provide a significant 
buffer above that level where the population is so low it collapses.
    Above a minimum threshold of abundance, achieving the maximum 
sustainable yield, and in what time frame, are really social and 
economic issues. Once such conservation targets are met, then I think 
we can develop social and economic targets and consequent management 
strategies on a fishery by fishery basis regarding if and when MSY 
should be achieved. Or, perhaps we can focus more on maximizing or 
optimizing the economic yield at various sustainable biological yields 
above the minimum threshold. After all, considering many fishery and 
market issues, is MSY necessarily equal to the maximum economic yield 
(MEY)?
    What is also unreasonable is to ignore the fundamental, inherent 
weaknesses in the models that produce estimates of MSY and rely on them 
blindly and rigidly as a ``Holy Grail'' of sorts. There are many, many 
variables that are not accounted for in estimating a theoretical MSY 
that can have a profound effect on the reality of a population. Among 
these are environmental such as climatological factors that may exhibit 
long term cycles and have profound effects on natural mortality, 
reproduction and growth.
    Perhaps most important of all, are the effect that dynamic 
ecosystem relationships have on natural mortality, growth and 
reproduction of a species. We tend to develop estimates of MSY for a 
single species based on historical measures of population levels at 
times when other important species in the same ecosystem may not have 
been under exploitation or were at either historical highs or lows in 
their own right. The relative levels of abundance of predator and prey 
species, as well as of species that directly compete for the same prey, 
have a profound effect on the total biomass and, thus, MSY a population 
can attain at any given time. How to account for these in an adequately 
predictable way, however, seems well beyond our present scientific 
capability.
    In conclusion, I believe long term management strategies based 
strictly on an absolute requirement to achieve admittedly weak 
estimates of MSY within completely arbitrary timeframes are not the 
basis for a successful fishery management policy. This is essentially 
the U.S. domestic policy now reflected in the Magnuson-Stevens Act with 
respect to fisheries determined not to be producing MSY (overfished) 
and which are, therefore, required to be ``rebuilt''.
    The alternative of evaluating the current or near-term 
sustainability (equilibrium analysis) of a fishery on a relatively 
frequent basis combined with a process that is flexible enough to 
accommodate rapid responses in managing fishing mortality (F) would be 
better. The timing of applicable management measures and of stock 
assessments for each fishery must reflect the unique biology of the 
species. The rebuilding plans we have developed at ICCAT for Atlantic 
bluefin tuna and North Atlantic swordfish are more similar to this 
approach than our rigid domestic approach. Such a short-term strategy 
can still have a long term goal, and that goal could still be to reach 
some percentage of an estimate of MSY, as it is in ICCAT, or it could 
be something else that is perhaps more responsive to social and 
economic interests.
                                 ______
                                 

  Statement of Arni Thomson, Executive Director, Alaska Crab Coalition

    The Alaska Crab Coalition (``ACC'') appreciates the opportunity to 
provide this statement to the Subcommittee concerning implementation of 
the 1996 amendments (Sustainable Fisheries Act, P.L. 104-297) to the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1801, et seq.). The importance to the ACC of those amendments is 
reflected by the record of formal statements provided for no fewer than 
six congressional hearings, the first of which was held in early 1992.
    The ACC is a trade association representing the owners of 60 
offshore crab catcher vessels. Most ACC members are classed as small 
independent businesses, and each is financially dependent upon the crab 
fisheries of the Bering Sea/Aleutian Islands (``BSAI''). The ACC also 
represents an additional 60 companies, as associate members, that 
provide services and equipment to the fleet.
                                summary
    For members of the ACC, implementation of the 1996 amendments to 
the Magnuson-Stevens Act has been a matter of life and death, in the 
truest sense, as well as an issue of economic survival and recovery. As 
the Senate Floor debate on the 1996 amendments made clear, National 
Standard 10 (16 U.S.C. 1851(a)(10)) to promote safety of life at sea 
was conceived with the BSAI crab fisheries foremost in mind. In fact, 
that new National Standard had its inception in a proposal to Congress 
by the ACC and like-minded organizations, the Fishing Vessel Owners 
Association (``FVOA'') and the Deep Sea Fishermen's Union (``DSFU'').
    Implementation of the 1996 amendments providing for improved 
fisheries conservation, including the control of wasteful bycatch, and 
for enhanced fisheries habitat protection, also has been vitally 
important to the ACC. National Standard 9 (16 U.S.C. 1851(a)(9)) to 
minimize bycatch and bycatch mortality, and the new habitat protection 
provisions of the 1996 amendments (16 U.S.C. 1853(a)(7)), had their 
origins in proposals of the ACC, FVOA, and DSFU.
    In view of the fact that fishing for crab in the BSAI is the most 
dangerous occupation in the United States, and in light of the fragile 
condition of important BSAI crab resources and the economic dependence 
of ACC members on crab fishing, it is easily understood why the ACC has 
been a strong advocate of improved safety, resource conservation, and 
habitat protection. The severe impacts of large-scale industrial bottom 
trawling on crab resources and their benthic environment were major 
concerns to which the 1996 amendments responded. By the same token, 
those amendments provided impetus to efforts of the ACC directed at 
remedial reductions in crab quotas and at necessary closures to allow 
crab rebuilding in the long-term interest of the fishermen who depend 
upon this resource for their economic survival.
    The ACC's assessment of the 1996 amendments' effectiveness in 
addressing the fundamental issues of safety, resource conservation, and 
habitat protection would be wholly positive, were it not for two, 
critically important factors. First, those amendments included a 
moratorium on new individual transferable quotas (16 U.S.C. 
1853(d)(1)), thus legislatively consigning the BSAI crab fisheries to 
other management systems. The ACC believes that ITQs would have 
provided the single most effective means of promoting safety, resource 
conservation, and habitat protection, by reducing capacity in the 
greatly overcapitalized BSAI crab fleet to sustainable levels. The 
destructive race for crab would have been decisively brought to a 
close, as fishermen would have been allowed to harvest their individual 
quotas without the loss of life due to the combined pressures of severe 
weather and hard work at an intense pace for long hours. Longer soak 
times for pots, allowing juvenile and undersize female crab escape 
mechanisms to work, would reduce bycatch and bycatch mortality. In a 
slower-paced fishery, there would be fewer pot lifts, thus reducing 
bycatch mortality due to exposure of juvenile and female crabs to 
multiple captures, on-deck handling, and changes in water temperature. 
Faced with ongoing pressures to reduce pot limits as a solution for 
overcapitalization and without ITQs and multi-species directed crab 
fisheries, ACC's efforts directed towards conservation and rebuilding 
are severely handicapped. However, the ACC is encouraged that, in 
testimony before the House Subcommittee on Fisheries Conservation, 
Wildlife and Oceans on July 22, 1999, the Chairman of the New England 
Fishery Management Council, on behalf of all the chairmen of the 
regional councils, called for the termination of the ITQ moratorium.
    Second, the 1996 amendments did not provide an effective 
alternative to ITQs for the reduction of excessive fishing capacity. 
Nearly three years after enactment of the buyback provisions of the 
Magnuson-Stevens Act, and despite legislation enacted last year to 
stimulate regulatory implementation, final regulations have not been 
promulgated. Consequently, a buyback remains out of reach. Testimony by 
NMFS in the above-referenced congressional hearing stated that the 
absence of final regulations, which are under review, industry may 
proceed with the development of ``buyout plans''. The industry group 
formed to pursue the BSAI crab license buyback has long since completed 
the task of developing a plan, as the NMFS well knows, having reviewed 
and extensively commented on that document and having received a final 
revision. The ACC believes that the continued delay on the needed final 
regulations is unfortunate, because in the absence of ITQs, a license 
buyback could contribute to the reduction of excess harvesting capacity 
in the BSAI crab fisheries.
    The ACC hopes that, as Congress approaches the further 
reauthorization of the Magnuson-Stevens Act, there will be active 
consideration of what can be done to address the severe problems that 
continue to plague the BSAI crab fisheries due to continued 
overcapitalization. The ACC cannot help but envy the halibut and 
sablefish ITQ program established prior to imposition of the moratorium 
by the 1996 amendments. Moreover, the many BSAI crab fishermen and 
their families are extremely sensitive to the fact that the BSAI 
pollock fishermen and processors have greatly benefited from the 
subsidized buyback and the special cooperatives provided by the 
American Fisheries Act (``AFA''). Title II, P.L. 105-277. These 
measures have eliminated excess capacity and allow the establishment of 
de facto individual quotas for 110 catcher vessels and 20 catcher 
processors, with no fixed limits on ownership of quotas. It also 
established the first limited entry system for processors (restricting 
shorebased processing and marketing of pollock to seven entities). 
Dedicated crab fishermen, who are prohibited by the AFA from crossing 
over into the pollock fisheries, deeply resent the fact that the AFA 
pollock industry has used its vastly enhanced economic and political 
power to pressure the North Pacific Fishery Management Council 
(``NPFMC'') and the National Marine Fisheries Service (``NMFS'') for an 
increased and permanent presence in the already heavily overcapitalized 
BSAI crab fisheries. Despite clear congressional intent, as reiterated 
in recent Senate correspondence, implementation of AFA protections 
(``sideboards'') for the dedicated crab fleet has been, and continues 
to be, problematical.
    The bottom line is that BSAI crab fisheries remain subject to the 
anachronistic and all-too-obviously failed management system which 
forces fishermen to race for fish at the risk of their lives, and to 
the detriment of the resources, in marginal economic conditions. Due to 
the moratorium on ITQs and to deficiencies of the license buyback 
provisions of the Magnuson-Stevens Act, as well as to pressures on 
fisheries managers by the AFA pollock industry, losses of lives and 
livelihoods in the BSAI crab fisheries do, indeed, remain major 
challenges.
    The members of the ACC, and Bering Sea crab fishing vessel owners 
in general, are mostly small business entities, struggling to survive 
in the crushing grip of not only problems of safety and resource 
conservation, but in the midst of consolidation and aggregation of 
ownership of processing facilities in the region. This dynamic of 
consolidation has contributed to the demise of a number of fisheries in 
the Alaska region. (See the Federal Investment Task Force (``FITF'') 
Report to Congress, specifically comments pertinent to the North 
Pacific region, pages 182-187.) The inception of Statehood for Alaska 
allowed the adoption of measures for the State-regulated fisheries that 
limited the extent of the control of the processing industry over those 
fisheries, and promoted conservation of the resource, and the 
independent small businesses that harvest those resources. There is no 
corresponding feature of the federal management system for the BSAI 
crab fisheries. Indeed, the AFA ties harvesting vessels to BSAI pollock 
processors, among which are the major BSAI crab processors, through 
single market cooperatives. This consolidation of market power by the 
processors in the pollock sector spills over into the crab sector.
    The FITF Report states, ``Excess capacity of fishing fleets is one 
of the most pressing problems confronting U.S. fishery managers. Excess 
capacity causes economic waste and over harvesting of resource 
stocks.'' Page 15. Because the problem of excess capacity is common to 
virtually all Alaskan fisheries, and because the AFA has uniquely 
altered the BSAI fisheries complex, the ACC urges action by Congress 
that is both general in application and specific to the BSAI fisheries:
     The moratorium on ITQs should be allowed to expire by its 
own terms.
     The Magnuson-Stevens Act should be amended--
           to require that each fishery management council, 
        within a statutorily provided time, analyze fisheries in its 
        region to determine whether there is excess harvesting capacity 
        and propose to the Secretary specific fishery management 
        measures for the reduction of such capacity to sustainable 
        levels;
           to ensure that license and vessel buyback provisions 
        are implemented in a timely and practicable manner;
           to provide a framework for fishermen's cooperatives 
        that are suited to the conditions of the BSAI crab fisheries; 
        and
           to prohibit the unfair and unreasonable 
        participation of 42 AFA pollock vessels in the BSAI crab 
        fisheries, and provide protection for BSAI crab fishermen from 
        excessive market power of AFA processors.
  the bsai crab fisheries in context--industry, resources, policies, 
                         laws, and regulations
    Well before the enactment of the 1996 amendments, it was clear that 
the BSAI crab fisheries could not be addressed in isolation from other 
fisheries of the area. In 1965, the Bristol Bay Crab Pot Sanctuary was 
established by agreements reached in the preceding year with Japan and 
Russia to prevent bottom trawling by vessels of those nations from 
damaging the valuable crab populations and their habitat. In 1981, 
early in the ``Americanization'' of the fisheries of our 200-mile zone, 
U.S. groundfish trawl vessels were exempted from the bottom trawl 
conservation measures, and invaded the fragile crab nursery, with far-
reaching consequences for the crab resources and the nascent domestic 
crab fishing industry.
    From the inception of the ACC in 1986, the organization engaged in 
efforts to control the, by then, enormous bycatch of crab in the 
burgeoning domestic industrial groundfish trawl fisheries and to 
improve conservation in the directed crab fisheries. To these ends, the 
ACC sought improved scientific observation and analysis of both the 
groundfish and crab fisheries, as well as remedial management measures. 
A limited trawl closure area to protect female and juvenile king and 
tanner crabs and regulatory caps on trawl bycatch of crab were 
initiated and refined, and crab fishing gear was improved. Notably, the 
1990 amendments to the Magnuson-Stevens Act reflected and consolidated 
research, bycatch reduction, and habitat protection initiatives 
undertaken by the ACC.
    In 1992, at the outset of the reauthorization process leading to 
the enactment of the 1996 amendments, the ACC called to the attention 
of Congress the need to build further upon the 1990 amendments, in 
response to the continuing impacts of trawl bycatch on the crab 
resources and of trawl gear on the crab nursery areas. The ACC noted 
that, while the groundfish trawl fisheries continued to inflict direct 
costs on the crab industry by reducing its present and future harvests, 
the crab fleet, which was legally required to utilize highly selective 
fixed gear, did not impose such costs on the trawlers.
    The ACC pointed to the need to address the escalating problems 
presented by overcapitalization in the BSAI crab fleet, including the 
horrific losses of life in what had become the most dangerous 
occupation in the United States. Statements provided by the ACC for 
congressional hearings also called attention to the results of the 1992 
United Nations Conference on Environment and Development and the 1992 
Cancun International Conference on Responsible Fishing, which focused 
on sustainable fisheries and responsible fishing, respectively, and 
identified excessive fleet sizes, insufficiently selective gear, and 
habitat degradation as critical challenges to the world's fisheries. 
The ACC took note of the fact that the United States Government had 
assumed a leading role in those conferences.
    As observed by the ACC in its testimony during the 1996 amendments 
process, the ``fishing derbies'' that resulted from too many fishermen 
chasing too few fish were accountable for both poor safety of life at 
sea and poor conservation of resources, and contributed to habitat 
degradation. In its 1993 testimony, the ACC urged that the full array 
of limited entry measures be available to remedy the conditions of the 
BSAI fisheries, and called for specific statutory provisions to limit 
and reduce excess fishing capacity.
    In 1994, the halibut and sablefish fisheries, in which open access 
derbies had been so costly to the fleet and the resources, were 
transformed with the adoption of ITQs. By 1995, it became clear that 
this management system held real promise for the other overcapitalized 
fisheries of the BSAI. The benefits of ITQs in the BSAI crab fisheries 
would extend not only to safety and conservation, but also to improved 
economic conditions. ACC testimony provided the rationale for ITQs:
     Improved safety. Fishermen would be in the position to 
slow down the pace of their fishing activities. They would be able to 
fish when the weather conditions would not present unacceptable 
hazards.
     Improved resource conservation. With a slower pace of 
fishing, selectivity in targeting resources and sorting catches would 
be vastly improved. Discards, and the mortality of discards, would be 
reduced. Individual quotas would provide an incentive to fishermen to 
engage in practices that would enhance stock rebuilding.
     Improved individual accountability. With individual 
quotas, fishermen would feel, and would be, more accountable for their 
conduct. Responsible fishing would be the rule, not the exception, as 
each quota holder would have a tangible share of the resource.
     Improved economic efficiency. Transferable ITQs would 
provide a market-based, industry buy-out program for the 
overcapitalized fisheries, with no expenditures of public funds for the 
retirement of excess harvesting capacity. By leading to a reduction of 
fleet size through consolidation of quotas, the vessels remaining in 
the fisheries would achieve improved operating efficiency, while at the 
same time, caps on quota shares held by individuals and businesses 
would prevent undue concentration of fishing privileges.
     Increased value of the tax base and new source of fees. 
With an economically sound fishery, profitability would improve and, 
thus, the revenue base would expand.
     Reduced gear conflict. With less gear deployed on the 
grounds at any given time, conflict with other gear types would be 
reduced.
     Improved product quality and added value. A slower-paced 
fishery would allow the more careful handling of the catch to preserve 
quality, to develop value-added products, to improve competitiveness 
against high quality imported fishery products, and to increase 
acceptance in quality- conscious export markets.
     Improved markets. Fishermen and processors would be able 
to coordinate the harvest and delivery of product to respond to market 
demand.
    In the waning hours of the 1996 legislative process, when a general 
moratorium on future ITQs appeared inevitable, the ACC urged that an 
exception be made for fisheries having the very worst safety, 
conservation, and economic problems. The ACC implored Congress to 
consider the fact that, according to the United States Coast Guard, 
crab fishing in the BSAI claimed lives at the rate of 7 per year during 
the 10-year period, 1987-1996 in a fleet comprised of fewer than 2,000 
fishermen. Based on the U.S. Government statistical base, this 
translated to an annual average of 350 out of 100,000 workers, compared 
to an average annual rate per 100,000 of 7 for all U.S. occupations, 71 
for all U.S. fisheries, and 250 for the former halibut derbies. The ACC 
also pointed out that the crab resources of the BSAI were at 
historically low levels of abundance, which accellerates the race for 
fish and fishery-related fatalities. The ACC noted the annual net 
revenues of the average, dedicated BSAI crab fishing vessel had 
plummeted to approximately $6,000.
    When it became apparent that, despite these safety, conservation, 
and economic conditions, ITQs would be proscribed for the BSAI crab 
fisheries, the ACC supported provisions that would authorize a buyback 
of crab licenses. The ACC urged, successfully, that authorization for 
license buybacks should not be removed from the legislation. Several 
latent/speculative vessels are big producers in the lucrative pollock 
fishery, and other vessels are dependent on cod fisheries. Restriction 
of buybacks to vessels would have effectively precluded the use of this 
management device in the BSAI crab fisheries, due to the prohibitively 
high cost involved.
    Since enactment of the 1996 amendments, the conditions in the BSAI 
crab fisheries have remained poor, and have even declined. After two 
years of lower fatalities in these fisheries, the number has already 
jumped back to historical levels, with 7 deaths, including one major 
marine casualty, thus far this year. Due to the limitations of the 
management system, the 1999 opilio fishery was not conducted in a 
manner that could provide for safety of human life in severe weather 
conditions with the intense race for economic survival.
    As for the resources, while there is the expectation of some 
movement toward recovery by the Bristol Bay red king crab, bairdi are 
severely depressed, and indeed, are deemed overfished under applicable 
provisions of the Magnuson-Stevens Act. Bristol Bay red king crab and 
opilio resources remain under heavy pressure, and are subject to deeper 
declines, as a consequence. Allowable catches, set forth below, reflect 
this phenomenon.

----------------------------------------------------------------------------------------------------------------
                                               Red King                  Bairdi                   Opilio
----------------------------------------------------------------------------------------------------------------
1990.................................  20,245,815.............  64,200,000.............  160,000,000
1991.................................  17,058,224.............  31,500,000.............  325,200,000
1992.................................  8,034,018..............  35,100,000.............  313,000,000
1993.................................  14,495,197.............  16,900,000.............  229,200,000
1994.................................  no fishery.............  7,600,000..............  148,000,000
1995.................................  no fishery.............  4,200,000..............  74,000,000
1996.................................  8,380,000..............  2,000,000..............  65,710,000
1997.................................  8,900,000..............  no fishery.............  117,300,000
1998.................................  14,850,000.............  no fishery.............  243,300,000
----------------------------------------------------------------------------------------------------------------

    As shown by the figures that follow, revenues to individual vessels 
have fallen off dramatically in the major BSAI crab fisheries over the 
past several years.
    1990: 1,263,529; 1991: 963,576; 1992: 960,765; 1993: 1,107,497; 
1994: 1,078,656; 1995: 937,469; 1996: 661,581; 1997: 553,857; 1998: 
704,242.
    By contrast, the conditions in the halibut and sablefish ITQ 
fisheries have much improved. The fisheries are safer, the resources 
are robust, and the fishermen have secured a business environment that 
provides a considerable measure of stability that now enables long term 
planning, in contrast to conditions of chaos and uncertainty, 
characteristic of today's derby fisheries in the BSAI crab fisheries. 
These kinds of conditions are rapidly leading to the demise of the 
American fisherman as a small businessman. See Statement of Robert 
Alverson, Manager, Fishing Vessel Owners Association, before the Senate 
Subcommittee on Oceans and Fisheries, July 29, 1999, which provides a 
detailed analysis of the benefits of the halibut/sablefish individual 
quota program.
    In the groundfish fisheries upon which the affected trawl vessels 
depend, economic conditions, while somewhat difficult, have been far 
superior to those in the BSAI crab fisheries. Were the case otherwise, 
a large number of those vessels would have participated both regularly 
and recently in the BSAI crab fisheries. More to the point, the AFA has 
provided much-improved conditions for the pollock trawlers.
    Even prior to the AFA, the financial situation of the groundfish 
trawlers was superior to that of the dedicated BSAI crabbers. Total 
BSAI groundfish trawl revenues in 1995 and 1996 were $373,400,000 and 
$332,500,000, respectively.\1\ The BSAI trawl groundfish average ex 
vessel revenues in 1995 and 1996 were $2,062,983 for 181 vessels and 
$1,731,770 for 192 vessels, respectively. See Economic Status of the 
Groundfish Fisheries Off Alaska, 1996, Socioeconomic Task, November 21, 
1997. (These are the most recent figures available to the public.)
---------------------------------------------------------------------------
    \1\ This decrease was not due to resource conditions, but was a 
consequence of the market.
---------------------------------------------------------------------------
    Post-AFA trading in pollock co-op transferable quotas has produced 
a benchmark value of $ 10,000,000 per point of total allowable catch. 
Thanks to the AFA, the fleet and the processors have been revitalized 
by the increase in efficiency from consolidation of fishing capacity 
through statutorily authorized co-ops, the vastly increased financial 
equity of marketable fishing quotas, and a 37% increase in the 
allocation to the vessels serving shoreside processors made possible by 
a subsidized buyback.
    The dramatic contrast between conditions in the halibut/sablefish 
longline fisheries and the pollock trawl fisheries, on the one hand, 
and the BSAI crab fisheries, on the other hand, can only be explained 
by differences in management systems that affect the levels of fishing 
capacity relative to allowable harvests. In short, the halibut/
sablefish fisheries have ITQs, the pollock fisheries have de facto 
ITQs, but the crab industry has neither.
    Within the constraints of the management tools available in the 
post-1996 amendments legal environment, fisheries managers have been 
able to address overcapitalization of the BSAI crab fisheries only 
incrementally, while the halibut/sablefish fisheries and the BSAI 
pollock fishery have been able to downsize and consolidate virtually 
overnight. This has been exceedingly costly to the dedicated crab fleet 
and to the crab resource.
    By way of background, it will be recalled that, in 1976, the 
Secretary of Commerce established conditional fishery status for king 
crab, which was intended to slow the entry of new vessels into the 
fishery. However, due to strong opposition by shorebased pollock 
processors, focused on reallocating the pollock resource to their 
facilities and delaying limited access programs for federal fisheries 
off the coast of Alaska, it was not until June 29, 1995, that the NMFS 
approved fishery management plan amendments that first established a 
moratorium on entry of vessels into the BSAI fisheries. This groundfish 
and crab moratorium required that, in order to participate, a vessel 
have recorded landings of one of the covered species between January 1, 
1988 and February 9, 1992. Effective January 1, 1996, vessels were 
required to have a moratorium permit, and the number of vessels 
eligible to participate in the BSAI crab fisheries was thus limited to 
approximately 759. Under a license limitation program (``LLP'') adopted 
by the NPFMC on June 17, 1995, and approved by the Secretary of 
Commerce on September 12, 1997, but not to be fully implemented until 
2000, the authorized number declined to 365. (There are also 62 small 
vessels licensed to fish only in the Norton Sound king crab fishery.) 
An LLP amendment, adopted by the NPFMC on October 9, 1998, but 
remaining subject to approval by the Secretary of Commerce, and not to 
be effective until 2000, would reduce the number to 320.\2\ AFA 
sideboards adopted by the NPFMC on June 13, 1999, but also subject to 
approval by the Secretary of Commerce, and not to be effective until 
January 1, 2000, would further reduce the fleet size to 275 for red 
king crab and 265 for opilio and bairdi.
---------------------------------------------------------------------------
    \2\ Section 202 (a)(6), P.L. 105-1277 precludes, subject to future 
reconsideration by the appropriate council and the Secretary of 
Commerce, the reentry into United States fisheries of certain vessels 
that had participated in therein, but been registered under foreign 
flag. This affected approximately [insert] vessels that had been 
otherwise eligible to participate in the BSAI crab fisheries. See also 
section 617, P.L. 105-277.
---------------------------------------------------------------------------
    The history of actual vessel registrations are reflected below.

----------------------------------------------------------------------------------------------------------------
                                               Red King                  Bairdi                   Opilio
----------------------------------------------------------------------------------------------------------------
1990.................................  240....................  255....................  220
1991.................................  302....................  285....................  250
1992.................................  381....................  294....................  254
1993.................................  292....................  283....................  273
1994.................................  no fishery.............  183....................  253
1995.................................  no fishery.............  196....................  235
1996.................................  196....................  196....................  228
1997.................................  258....................  no fishery.............  235
1998.................................  275....................  no fishery.............  235
----------------------------------------------------------------------------------------------------------------

    Even with the approval of the AFA sideboards, the maximum level of 
capacity in the crab fleet would remain excessive. As the chart 
immediately above shows, the actual vessel registrations have often 
been fewer than permitted by the various limiting regulations. Yet, 
clearly, resource conditions have not supported safe, sustainable, and 
economically viable fisheries at these levels of actual effort.
    As pointed out above, the failure of the Department of Commerce to 
promulgate final regulations for implementation of section 312 of the 
Magnuson-Stevens Act has effectively precluded the establishment of any 
industry-funded buyback. In the absence of authorization for the 
establishment of ITQs, this has been a particularly serious 
disappointment. Even the much-advertised leadership of the United 
States at the very recent global conferences on fishing fleet 
overcapitalization has not been translated into a decisive management 
response to the continuing crisis in the BSAI crab fisheries.
    The ACC notes the enormous expenditure of time and effort by the 
Capacity Reduction and Buyback (CRAB) Group, an organization of BSAI 
crab fishing vessel owners, to lay the groundwork for a license 
buyback. CRAB:

           commissioned, in June and August 1997, and submitted 
        to the NPFMC and NMFS, detailed analyses of the requirements of 
        section 312 and other applicable law;
           conducted industry surveys, in June and November 
        1997, to determine the viability of a buyback;
           commissioned, and provide to the NPFMC and to the 
        NMFS, on September 26, 1997, an economic study of the BSAI crab 
        fisheries and options for a license buyback;
           provided to the NMFS, on October 6, 1997, at its 
        request, a draft of implementing regulations;
           obtained congressional action in support of 
        implementation of section 312 of the Magnuson-Stevens Act, 
        including a Senate letter to the Administrator of the NMFS on 
        March 4, 1998, a Senate letter to Secretary Daley on April 21, 
        1998, a statutory deadline for publication of proposed 
        regulations (section 207(g), P.L. 105-277), and the required 
        funding authorization for a BSAI crab license buyback (section 
        120, P.L. 105-277);
           produced and submitted to the NMFS, on September 23, 
        1997, a detailed buyback business plan, which was subsequently 
        revised to reflect responses to agency comments and published, 
        on July 13, 1998, by the NPFMC for comment by the participants 
        in the BSAI crab fisheries;
           formally commented on the proposed regulations 
        published by the NMFS on February 11, 1999;
           testified on several occasions before the NPFMC on 
        developments in the pursuit of a buyback; and
           briefed the NMFS and interested Members of Congress 
        on the industry survey results and business plan.

    It is important to note that the NPFMC, by letter dated October 10, 
1997, asked the NMFS to move forward with the process for establishment 
of a BSAI crab license buyback. In a response dated April 16, 1998, the 
NMFS stated, ``We appreciate the Council's support of the crab 
initiative. We regard your letter as a statutory request for a buyback 
in this fishery.''
    The FITF Report notes that the effects of latent capacity and the 
shift of effort from one fishery to another are major concerns that 
must be addressed in the design of effective buyback programs. The 
report states:

          However, these and other concerns are clearly understood by 
        those designing new buyback programs, especially the industry-
        funded buyback proposed for the . . . fishery for crab in the 
        Bering Sea and Aleutian Islands. If buyback programs are to 
        contribute to the goals set out in the Magnuson-Stevens Fishery 
        Conservation and Management Act, they must be carefully 
        designed by members of the specific regional fisheries.'' [Page 
        105.]

    It bears emphasizing that, notwithstanding the efforts of industry, 
the extraordinary assistance of Congress, and the positive action of 
the NPFMC, the close cooperation of the NMFS Financial Services 
Division with the CRAB Group, and the formal response of the NMFS to 
the NPFMC request, the Commerce Department published, on February 11, 
1999, unworkable proposed regulations for buybacks, and evidently 
remains at an undetermined distance from promulgating the final rules, 
without which the BSAI crab license buyback cannot go forward.
    Further pursuit by BSAI crab fishermen of a license buyback in the 
absence of practicable, final regulations would be difficult to 
justify. Whether there remain in the industry the financial resources 
and the energy level to continue the pursuit of a license buyback is 
open to question. It is clear, however, that momentum must be regained, 
if a buyback is to be considered a serious option. This can only 
happen, if the Commerce Department demonstrates that it is, at long 
last, prepared to implement, without further delay and in a practicable 
way, the law that Congress passed almost three years ago.
    ITQs remain the long-term objective of the ACC. The rationale 
provided the Congress during the last reauthorization process applies 
today. Indeed, the experience of the past three years has shown that 
ITQs, or their functional equivalent in the form of specially 
authorized cooperatives, can and do deliver solutions where other 
management systems have demonstrably failed. And, of course, there has 
been no industry-funded buyback anywhere to measure against the harsh 
realities of the BSAI fisheries, although the preparatory work of the 
CRAB Group has shown that its proposal has promise. The interest in the 
proposed buyback has been intensified by the initiative to request that 
Congress provide a statutory framework for a cooperative that would 
allow fishermen access to multiple markets, along the lines of the 
``Dooley-Hall'' proposal being analyzed by the NPFMC.
    The ACC respectfully requests that Congress reflect carefully upon 
these facts: the BSAI crab fisheries constitute the most dangerous 
occupational environment, and suffer from some of the most depressed 
renewable resources, in the United States. Even in the face of severe, 
immediate, and prolonged financial hardship, dedicated BSAI crab 
fishermen support strong conservation measures. Yet, the BSAI crab 
industry finds itself deprived of the highly successful fisheries 
management tools that Congress has made available to other fishermen of 
the BSAI. With each year that goes by in the absence of effective 
management, the cost escalates in lives, resources, and livelihoods. 
The ACC also respectfully asks Congress to consider the outcome of the 
Individual Fishing Quota Report mandated by the 1996 amendments (16 
U.S.C. 1853(f)) and first released, in prepublication form, by the 
National Research Council on December 18, 1998. In the view of the ACC, 
the report demonstrates the advantages of ITQs and well justifies 
allowing the moratorium on them to expire, in accordance with the terms 
of the 1996 amendments, on October 1, 2000 (16 U.S.C. 1853(d)(1)(A)).
    The problems of overcapitalization are common to many fisheries. 
However, the AFA has given rise to unique circumstances in the BSAI 
fisheries complex. Both general and specific remedial legislative 
action is needed. Accordingly, the ACC urges that Congress do the 
following:
       Allow the moratorium on ITQs to expire in accordance 
with its terms;
       Amend the Magnuson-Stevens Act to--

           Require that each fishery management council, within 
        a statutorily provided time, analyze fisheries in its region to 
        determine whether there is excess harvesting capacity and 
        propose to the Secretary of Commerce specific fishery 
        management measures for the reduction of such capacity to 
        sustainable levels;
           Ensure that license and vessel buyback provisions 
        are implemented in a timely and practicable manner;
           Prohibit the unreasonable and unfair participation 
        of 42 AFA pollock vessels in the BSAI crab fisheries, and 
        provide protection for BSAI crab fishermen from excessive 
        market power of AFA processors.

    Congress has the opportunity in the present reauthorization cycle 
to ensure that the BSAI fisheries complex as a whole will, at long 
last, be responsibly managed. History has demonstrated what can be 
expected, if Congress does respond decisively to this challenge.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                               Ken Hinman

    Question 1a. Your testimony described the Marine Fish Conservation 
Network as a ``broad-based coalition of more than 80 leading 
environmental groups, sport and commercial fishermen, and marine 
scientists.''
    Please describe how the Network developed its testimony, including 
a general description of any communications Network staff had with 
members of the Network.
    Response. The Network's testimony was developed by its Executive 
Committee and Executive Director, based on the principles and positions 
adopted by the Network's Board of Advisors. The Board consists of two 
commercial fishing groups, two recreational fishing groups, six 
regional conservation organizations, and ten national environmental 
groups. We have two New England members on our Board: Conservation Law 
Foundation and the Cape Cod Commercial Hook Fishermen's Association. 
All of the Board's policy positions have been endorsed by the larger 
Network. Additionally, every Network member is encouraged to share 
their comments and opinions regarding Network positions, documents, and 
policy statements.

    Question 1b. In the Network's preparation and production of Missing 
the Boat and the related Briefing Book for Congress, how did the 
Network reconcile any differing views among its members?
    Response. The Missing the Boat report was developed by regional 
members of the Network. The Executive Committee and the Executive 
Director served a coordinating role in putting the regional pieces of 
the report together. A similar process was followed for the Briefing 
Book. Differing views were resolved through negotiations conducted via 
emails and conference calls.

    Question 2a. During the hearing you were critical of the councils' 
progress to date with regard to essential fish habitat (EFH).
    If the entire Exclusive Economic Zone of the United States were to 
be designated as EFH, do you believe that the most critical habitats 
would receive the actual protection intended for them by the 
Sustainable Fisheries?
    Response. I do not believe that the entire Exclusive Economic Zone 
has been designated as EFH. As I discussed in my testimony, the Network 
believes that the regional councils and NMFS have identified EFH in an 
appropriately precautionary manner by designating fairly large areas as 
EFH. This approach is appropriate for several reasons. First, there are 
at least 844 federally managed fish species, and each with four life 
stages, e.g., eggs and larvae, juvenile, adult, spawning; therefore, 
EFH needs to be identified for at least 3,376 fish species life stages. 
When that large number of life stages is coupled with the large 
geographic ranges of many of these species, it is not surprising that 
large areas have been designated as EFH. Second, given the general lack 
of knowledge on the amount of habitat that is required to support 
certain stocks sizes, it is foolish to eliminate areas from protection 
without scientific justification. Habitat loss and degradation are 
often irreversible; therefore, it is critical that caution is exercised 
in identifying EFH. As more and better habitat information becomes 
available, EFH can, and should, be narrowed.
    Despite assertions to the contrary, broad designations of EFH will 
not undermine EFH protection efforts. Rather, broad designations of EFH 
provide enhanced EFH protection because NMFS is better able to consider 
the type of habitat impacted, the degree of impact, and the area of 
impact when evaluating whether a federal action will adversely impact 
EFH. If NMFS was limited to only evaluating, and commenting on, 
activities that impact critical habitats, activities that impact large 
areas of less critical habitat would be excluded. Overall fisheries 
habitat protection would be diminished under such a program.
    The NMFS essential fish habitat regulations allow for the 
designation of rare, threatened, or ecologically important areas as 
habitat areas of particular concern (HAPCs). The Network supports the 
designation of HAPCs as a means to focus EFH protection efforts without 
compromising EFH protection generally.

    Question 3. Several non-fishing interests have expressed concern 
that the EFH consultation requirement is duplicative of other federal 
consultative requirements and will result in unnecessary delays of 
projects. Does the Network have any suggestions which would address the 
concerns of such non-fishing interests?
    Response. The Network does not believe that the EFH consultation 
requirement is duplicative of other federal consultation requirements, 
because none of those requirements directly address impacts to 
fisheries habitat. A specific requirement to evaluate the impacts of 
federal actions on fish habitat is necessary to more effectively 
protect such habitat. To streamline the EFH consultation requirement, 
NMFS is developing procedures to combine the EFH requirements with 
existing consultation procedures such as those required under the 
National Environmental Policy Act or the Clean Water Act. The Network 
supports these streamlining efforts, as long as they still allow for 
specific evaluations of EFH impacts.

    Question 4. In your testimony, you stated that placing greater 
emphasis on economics will result in extending rebuilding periods even 
longer. Given the current state of some fishing communities, such as 
those associated with the traditional groundfish fleet in New England, 
please explain in detail why the socioeconomic impacts of fisheries 
regulations and law should receive additional emphasis.
    Response. The Network believes that the socioeconomic impacts of 
fishing regulations and laws should not receive greater emphasis. Past 
emphasis on economics by the councils and NMFS has directly lead to the 
depleted state of many of our fish stocks. The best way to protect 
fishermen and fishing communities is to save the fish. Allowing short-
term overfishing to occur is a risky practice which often leads to 
fisheries collapses. The current problems in the Gulf of Maine and the 
Pacific coast are directly attributable to the councils and NMFS not 
taking aggressive action to address overfishing and rebuild overfished 
stocks. Overfishing was allowed to continue until the stocks were in 
such bad condition that draconian actions were necessary to rebuild 
these stocks. If those councils and NMFS had taken the necessary steps 
to adequately address overfishing years ago, much of the current 
economic pain could have been avoided.

    Question 5a. Some question whether it is appropriate to continue 
use of Maximum Sustainable Yield as the target of fisheries management.
    Please explain whether you think that there are any modification to 
the management process, which would make MSY a reasonable goal.
    Response. The SFA requires that all fish populations be maintained 
at levels capable of producing at least that population's maximum 
sustainable yield (MSY). The optimum yield from a fishery should be 
less than the MSY, according to the Act, in order to enhance long-term 
social, economic, and ecological benefits. Because there are many 
unknowns and uncertainties in fisheries data and stock assessment 
science and in our understanding of interspecies relationships, the 
Network believes the Act should be modified to incorporate the 
precautionary approach. This approach, established in international law 
and endorsed by the U.S., requires that catches be set conservatively, 
with adequate buffers to reduce the risk of overfishing.

    Question 5b. Please outline alternatives to MSY as a target for 
management.
    The SFA does not make MSY the target for management. Instead, it is 
the absolute maximum that can be removed from a stock of fish. The 
target is optimum yield. As stated above, prudent management requires 
that optimum catch levels be set more conservatively than MSY. The 
Network at this time is not proposing an alternative to MSY, however, 
like many in the fisheries and scientific communities, we are reviewing 
its applicability and examining alternatives.

    Question 5c. How do you view ecosystem management as it relates to 
the management of species at maximum sustainable yield?
    Ecosystems-based management requires that optimum yields for all 
species be justified considering ecological factors and the integrity 
of the ecosystem, including key predator and prey relationships. Using 
MSY as a management target for any single species risks adverse impacts 
on associated species. An adequate conservation buffer in the setting 
of species-specific catch levels is necessary for the protection of 
marine ecosystems.
                      3. bycatch reporting system
    Mr. Hinman, you have pointed out that ``no council established a 
required standardized bycatch reporting system'' since the passage of 
the Sustainable Fisheries Act. What would the establishment of such a 
system entail in terms of data collection, technical operations, and 
funding?
    Response. A standardized bycatch reporting system would have as its 
objective a full accounting of all sources of non-target and non-
landings mortality in the fishery. Because the nature and operation of 
each fishery is different, each reporting system must be designed and 
implemented in accordance with the needs of that particular fishery. A 
mandatory observer program should be paid for by the fishing industry, 
through a fee based on the value of landings.
                                 ______
                                 

Statement of Hon. Ron Paul, U.S. Representative from the State of Texas

    Ladies and Gentlemen of the Senate, distinguished Members of the 
Commerce Committee, I am writing today regarding the reauthorization of 
the Magnuson-Stevens Act.
    As a Member of Congress from a Gulf Coast Congressional District I 
represent a significant number of individuals who engage in fishing 
activities in federal waters. Residents of my district undertake 
fishing activities for both recreational and commercial purposes. 
Moreover, the indirect impact that these activities have upon Gulf 
Coast economies can scarcely be overstated. Seafood providers, 
restaurants in general, the tourist lodging industry, and many others 
are adversely impacted when federal fishing regulation runs amuck.
    Since coming back to Congress in 1997 my office has been deluged of 
complaints and concerns regarding the activities of the United States 
Coast Guard, and most especially the National Marine Fisheries Service, 
(NMFS) in respect to the enforcement of various provisions of the 
Magnuson-Stevens Act (the Act). From my observations I think it is safe 
to say that:
    (A) the ``scientific basis'' of NMFS rule promulgation has come 
under serious and sustained criticism from both the scientific 
community and the fishing industry.
    (B) The Gulf Fisheries Management Council has had serious 
disagreements with NMFS regarding interpretation of the Act.
    (C) The Gulf States have had disagreements with NMFS over issues of 
rule promulgation and enforcement.
    (D) NMFS has consistently ``changed the rules in the middle of the 
game'' making it extremely difficult for every segment of the 
fisheries' sector to plan their activities, thus raining havoc on the 
Gulf Coast economy.
    (E) NMFS has certainly not won a strong positive reputation here in 
Washington, nor in the fishing communities. The agency's tactics are 
dictatorial, heavy-handed and have resulted in many complaints. The 
agency routinely ignores Member requests for information, summarily 
ignores Member wishes and has even caused its jurisdiction to be 
challenged, as in the instance of the Columbia River Salmon.
    To the Members of the Committee, I can only suggest that there are 
many challenges that those of us concerned with these issues must face. 
Personally, I suggest a more permanent solution rests in the 
decentralization of these issues. In other words, the states must be 
granted more authority to deal with these issues. One specific 
suggestion I have made to the states is that they explore a multi-state 
compact to engage in the rearing of Red Snapper ``in captivity.''
    It has been my observation that the problems with fisheries 
regulations cut across sectors, and species, and every other line of 
demarcation within the fisheries. My worst fears were confirmed when I 
received reports of a meeting that my staff attended earlier in the 
year. The Small Business Administration hosted a discussion of 
regulatory problems in the fisheries and the room was packed. In fact 
the phone lines were all taken up as well, as many fisheries' 
representatives from all across the nation attended. The 
representatives of the SBA were overwhelmed by the attendance, and by 
the frank and disturbing testimony which the representatives 
consistently provided. In short, it was made quite obvious that there 
is a serious problem with the federal government's fisheries 
regulations.
    I will not expand upon my early comments about the wisdom of 
passing regulations down to the states, but I will say that as long as 
this Congress deems it wise to pass federal laws relative to fisheries 
we must be much more explicit and specific with what we pass. Further, 
we must do everything in our power to tilt the balance in favor of our 
people, as opposed to the current system of excess delegation of our 
authority to administrative agencies.
    To wit, I suggest the following items be included in any Magnuson-
Stevens reauthorizing legislation which this body might pass:
    (1) Set the recreational fishing season for red snapper as year-
round in federal waters;
    (2) Set the size for recreational red snapper fishermen at 15-inch 
minimum in federal waters;
    (3) Set the maximum bag limit for recreational red snapper at four 
in federal waters;
    (4) Expressly allow the ``sale'' of part of the commercial red 
snapper quota (TAC) to recreational fishermen; and
    (5) Language making legal expenses reimbursable to any entity that 
successfully battles against any regulation promulgated as a result of 
the act.
    While such items will still leave many Americans far short of the 
ideal situation, they will provide a small step in the right direction. 
This is a step which will permit us to increase the freedom of 
fishermen and enhance the economic stability and viability of the 
fishing industry and those involved in related ventures on the gulf 
coast and in other coastal communities across America.
    Thank you for holding these important hearings and for your 
consideration of these ideas.
                                 ______
                                 

  Response to Written Questions Submitted by Hon. Olympia J. Snowe to 
                             Maggie Raymond

    Question 1. The National Marine Fisheries Service (NMFS) and the 
Councils have begun to identify a subset of essential fish habitat 
(EFH) called ``habitat areas of particular concern.'' This subset 
targets critical areas such as places of spawning aggregations. Should 
these ``habitat areas of particular concern'' be the true focus on 
NMFS' work on EFH implementation? Please explain.
    Response. Our concerns regarding the designation of EFH and/or 
``habitat areas of particular concern'' (HAPC) are caused by (1) the 
criteria used to define EFH and/or HAPC and (2) the measures that may 
or may not be developed to ``protect'' those areas.
    The Council has been instructed (by NMFS guidelines) to use areas 
of high productivity as a proxy for EFH. The consequence of this advice 
is that all areas of productivity, and especially the areas of highest 
productivity, are then subject to closure to the fishery in order to 
``protect'' EFH.
    The habitat provisions of the Sustainable Fishing Act require the 
Councils to ``mitigate the impacts of fishing gear'' on EFH, despite 
the fact that there is very limited information regarding negative 
impacts of fishing gear on EFH. This has created a vehicle for the 
anti-fishing agenda to insist that ``precautionary'' measures be taken 
to severely restrict the use of certain fishing gears, despite a lack 
of evidence that those gears cause or have caused an ``identifiable 
adverse effect on EFH.'' This has also created a way for users of 
certain gear types to call for the eradication of their competitors' 
gear type preference.
    We believe that the SFA should be amended to define the Councils' 
responsibilities as the development of measures that would ``mitigate 
the impacts of fishing gears on the productivity of areas identified as 
EFH or HAPC,'' and to ``mitigate the impacts of pollution and 
development on the productivity of EFH or HAPC.''

    Question 2. Since the date of the hearing, the Secretary raised the 
cod trip limit from 30 lbs. to 100 lbs. per day. The 100-lb. limit will 
be effective until Framework 31 is approved. As part of Framework 31, 
the New England Fisheries Management Council has recommended a 400-lbs. 
per day limit. (a) Please explain the impact of 100-lbs. limit on Maine 
groundfish fleet and cod discards. (b) Do you believe that raising the 
trip limit to 400 lbs. will alleviate some of the adverse impacts which 
occurred under the lower trip limits. Please explain. (c) Do you 
believe that sensible trip limits are the only measure needed to 
provide adequate protection for cod stocks or are other measures 
necessary? Please explain.
    Response. The 100-lb./day cod trip limit is well below any 
reasonable ``bycatch'' level, and this has and will continue to result 
in wasteful discard. A 400-lb./day limit is a more reasonable 
``bycatch'' level, and as such can be used to discourage a directed 
fishery for cod and avoid wasteful discard of bycatch.
    Our members believe that closure of specific areas (as specific as 
possible to minimize the size and time length) during times of spawning 
aggregation should be the cornerstone of every fishery management plan. 
The known spawning areas for cod happen to be in the fishing areas 
closest to the shore in the Gulf of Maine. Unfortunately, this fact of 
nature makes closing those areas an extremely difficult burden for 
those fishing vessels and communities most dependent on the near shore 
fishing areas.

    Question 3. Please explain the impact on your organization of the 
delay in distribution of the $5 million disaster relief funding.
    Response. NMFS has determined that 50 vessels from Maine are 
eligible for participation in the disaster relief funding. Several of 
our members qualify. Most are reluctant to participate.
    Our members do enthusiastically support the concept of 
``cooperative'' research between the fishing industry and scientists, 
however this program is not structured to achieve that objective. 
Participants must first complete a rather lengthy application, then 
commit to participate in some undefined research project sometime in 
the future. Our members are reluctant or unwilling to commit to a 
program that does not, upfront, define the details of the type of 
project or the project schedule.
    In short, we believe the program was poorly designed to meet the 
objective of spending $5 million taxpayer dollars on cooperative 
research.

    Question 4. NMFS has been criticized for its lack of compliance 
with the Regulatory Flexibility Act. Other agencies, such as the 
Environmental Protection Agency, are required to convene small business 
advocacy review panels for each rulemaking that will have a significant 
economic impact on small businesses. (a) Please explain the impact that 
inadequate consideration of socio-economic factors has had on the 
fishing communities you represent. (b) Please explain in detail how a 
similar panel process, such as the one utilized by the EPA, could aid 
NMFS in bring economic impact analysis to the forefront of fisheries 
decision-making.
    Response. The New England Fishery Management Council has 
consistently, and we believe inappropriately, used the ``framework 
adjustment'' process to circumvent the requirement to conduct socio-
economic and Regulatory Flexibility Act analyses required by law. The 
framework adjustment mechanism is an abbreviated rule-making process 
designed to ``fine-tune'' fishery management plans, as needed. The NMFS 
has approved eight separate framework adjustments to the Multispecies 
Plan since the approval of Amendment 7 (1996); several of these have 
had significant economic impact, none of them have been adequately 
analyzed.
    While I am personally unfamiliar with the panel process used by the 
EPA, we strongly encourage your exploration of adoption of this process 
for NMFS rulemaking.

    Question 5. The New England Fishery Management Council has been 
criticized for its inability to manage meetings in a civilized manner. 
This has created an environment in which people may be too 
uncomfortable to actively participate. As a result, some proposed 
management measures may not receive adequate consideration. (a) Please 
comment on your experience at Council meetings in this regard. (b) Are 
there examples of good management proposals that have been set aside in 
favor of inadequate, but more popular, measures? Please explain. (c) 
What has been the result of such decisions?
    Response. I have on many occasions found the absence of decorum at 
Council meetings to be personally intimidating and not conducive to 
critical thinking. The meetings surrounding the development and passage 
of Framework 27 (to the Multispecies Plan) are the best example. Not 
only was police presence necessary to maintain a semblance of civility, 
but several meetings dragged on until very late hours (some as late as 
midnight). Framework 27 was implemented in May 1999 and by June 1999 
the measures proved to be inadequate when the trip limit was lowered to 
30 lbs./day. It is impossible for Council members to adequately 
consider and evaluate the implications and ramifications of their 
decisions in a hostile atmosphere.

    Question 6. Some question whether it is appropriate to continue to 
use Maximum Sustainable Yield as the target for fisheries management. 
(a) Please explain whether you think that there are any modifications 
to the management process, which would make MSY a reasonable goal. (b) 
Please outline alternatives to MSY as a target for management. (c) How 
do you view ecosystem management as it relates to the management of 
species at maximum sustainable yield?
    Response. While MSY is a fundamentally flawed principle, we believe 
that some of the problems with using MSY as a target have been 
exacerbated by the changes the SFA made to the overfishing definition 
and the rebuilding schedules.
    We believe that improvements could me made by: (1) amending the 
definition of overfishing to reinstate the ``long term'' capacity of a 
stock or, stock complex to produce MSY; (2) amending the requirement to 
rebuild ``as soon as possible'' to ``as soon as practicable''; and (3) 
eliminating the 10-year provision or amending it so it can be extended 
when a stock is projected to rebuild at the proposed fisheries 
mortality rate.
    A particularly good example of the practical problems associated 
with the new overfishing definitions is the current situation with 
Georges Bank haddock. In 1994, over 6,000 square miles of fishing area 
were closed to protect (among other species) Georges Bank haddock. As 
recently as August 1999, the NEFMC issued a press release describing 
the status of Georges Bank haddock in these terms:

          Adult stock biomass has increase fourfold since 1993 and is 
        at its highest levels since the early 1980s. Stock biomass is 
        expected to increase from low mortality and favorable 
        recruitment in 1998. The 1998 year class appears to be the 
        largest in twenty years, enabling stock recovery more quickly 
        than previously thought.

    However, the status of Georges Bank haddock has been reassessed 
using the new SFA overfishing definition, and the Multi-species 
Monitoring Committee report (due Nov., 1999) will advise that the total 
allowable catch for Georges Bank haddock for the year 2000 must be 
zero, in order to comply with the new overfishing definition.
                                 ______
                                 

     Response to Written Questions Submitted by Hon. John F. Kerry 
                           to Maggie Raymond

    Question 1. Tom Hill has stated in his testimony that it is 
essential to set hard total allowable catch (TAC) limits if we are to 
achieve our management objectives in New England. The North Pacific 
Council, along with all other Councils, have set hard TACs, but the New 
England Council has not. Mr. Lauber and Dr. Fluharty, why did your 
Council decide to set hard TACs? How could you manage your fishery 
consistent with the SFA if you did not use hard TACs? What are the 
problems you would encounter?
    Response. While this question is directed specifically to Mr. 
Lauber and Dr. Fluharty, I feel it is important to point out that the 
NEFMC has recommended a hard TAC for atlantic herring. A hard TAC may 
be appropriate for management of the herring fishery but only because 
that fishery is, usually, a single species fishery. The NEFMC has not 
used hard TACs in the multispecies fishery because the status of one 
species, e.g. Gulf of Maine cod, could then eliminate a fishery on a 
much healthier stock, e.g. witch flounder.
                                 ______
                                 
          Prepared Statement of William M. Daley, Secretary, 
                      U.S. Department of Commerce
    As always, I appreciate the opportunity to discuss fish with all of 
you. I recall one of the first conversations I had with your colleague 
Senator Lott. The Majority Leader told me that when I think of him, I 
am to think fish.
    Frankly, I think fish when I think of most of you. I do not have to 
tell this Subcommittee about the value our fishing industry provides to 
this country. You all represent some of our finest coastal states and 
fisheries.
    I have had the pleasure of being with many of you in your states. I 
have met fishermen on their home turf: shrimpers on the Gulf, 
scallopers in New England, and salmon fishermen in Alaska. And I have 
met with many of them here in Washington.
    One of my finest experiences as Secretary of Commerce is becoming 
familiar with our fishing communities, and appreciating their 
contributions. Of understanding how the U.S. commercial fish industry 
generates more than $25 billion to our economy and employs 300,000 
people. We are the fifth largest fishing nation, and our exports are 
valued at over $3 billion. It is an important recreational resource for 
millions of saltwater anglers.
    It is my support for this resource--and the people it supports--
that brings me here.
    With me is Penny Dalton, NOAA's Assistant Administrator for 
Fisheries. She will discuss the reauthorization of the Magnuson-Stevens 
Fishery Conservation and Management Act--now in its 23rd year. I would 
like to briefly put this all in context.
    It's easy to look at the past decades and see failure. Many 
important fish stocks are under great pressure. And we don't know 
enough about the health of even more.
    We do know our fishing grounds can be rebuilt to support far more 
fishing than they do today. Scientists estimate we could increase our 
catches 60 percent if we manage them better.
    At the same time, we must recognize it took 20 years of poor 
management and good-intentions-gone-wrong to bring us to where we were 
in 1996, when the Magnuson Act was overhauled into Magnuson-Stevens.
    This Administration is committed to the philosophy embodied in the 
Act. I believe the best way to restore our fisheries and sustain a 
growing economy is through the combined participation of public, 
business, and government interests.
    We must apply the best science--including economics and social 
sciences--to help fishing communities move from traditional fishing 
management to newer, sustainable approaches.
    I have strongly encouraged NOAA, the Councils, and all the 
stakeholders to take advantage of the flexibility of Magnuson-Stevens 
to develop creative solutions and partnerships.
    I have learned through my regulatory actions as Commerce Secretary 
there is no one-size-fits-all solution. Each case has its own set of 
unique circumstances, conflicts and challenges. Resolving these is not 
easy. These are contentious issues, as you well know. But the fact is, 
if we fail to come together, we will not have fishermen or fish left. 
Frankly, I think this is an important test of sustainable development.
    Despite the challenges, I see hope in a number of small, recent 
successes. I think with Magnuson-Stevens we are getting back on track 
to build sustainable fisheries.
    Let me illustrate, if I may, with the progress we are making with 
scallops in the Northeast. The first directive of Magnuson-Stevens is 
to end overfishing and rebuild fish stocks. In 1994, we were very 
concerned about groundfish and scallops off of New England. We took the 
aggressive--and painful--step of closing large areas to all fishing.
    Then, in late 1998, we learned that after over 4 years of closure, 
scallop stocks were recovering. In other words, the closure was working 
to rebuild scallop stocks and it was time to start rebuilding the 
scallop fishery.
    While Magnuson-Stevens directs us to rebuild fisheries, it also 
says: use the best science available when we act. Though we knew that 
scallops were on the way back, our science was not detailed enough to 
act on it. Also, many raised concerns about starting up scalloping 
again. Scalloping disturbs the bottom and can have lots of bycatch of 
groundfish that still needed protection. It looked like yet another 
contentious issue.
    So, the first thing we did was ask for, and listen to, the advice 
of constituents. Soon we came together around a shared goal--scallop if 
possible, while protecting other fish and the habitat.
    Then everyone contributed to a solution. We built an extraordinary 
partnership with industry and the academic community to find out 
exactly where the scallops were healthy and what areas could be 
reopened for scalloping. Also, we talked to industry about a management 
approach that would let scallopers catch scallops if they controlled 
their bycatch.
    For our part, we developed a new way to fund independent observers. 
And I asked the Council and NOAA to make sure the regulatory process 
kept moving. Magnuson-Stevens is clear that the Council process is key 
to making management decisions. But that does not mean we can't find 
ways to make it flexible and responsive to urgent needs.
    I am pleased to say scallopers are fishing within a formerly closed 
area of Georges Bank nearly 9 months earlier than scheduled. In the 
last 6 weeks, the fleet has landed more than 2 million pounds of 
scallops worth nearly $10 million. They are making money, without 
compromising long-term sustainability. It is good news for the economy, 
and good news for the environment.
    My point is that the Magnuson-Stevens Act works. It does not need 
major changes at this time. What we need, is to continue to work 
collaboratively and creatively.
    No question, we want to work with this Committee on addressing 
outstanding issues, like individual transferable quotas, and observer 
programs. We feel there is a need to collect more economic data to 
better understand and manage our fishery resources. Penny will point 
all of this out in her testimony.
    And let me assure the Members of this Committee that I understand 
when we try new approaches, even though they may be incremental, there 
are often serious concerns from your constituents back home.
    So, I want to work with you, to take into account these concerns as 
we move forward with developing and implementing the legislation.
    Thank you for asking me here, and I ask that my remarks be included 
for the record.
                                 ______
                                 

   Statement of Guy Martin, Counsel, Essential Fish Habitat Coalition

    Madam Chairman, Members of the Committee, my name is Guy Martin, 
and I am counsel representing the Essential Fish Habitat Coalition. The 
Essential Fish Habitat Coalition is comprised of diverse non-fishing 
resource and business interests including, the American Forest and 
Paper Association, the Alaska Forest Association and the Association of 
California Water Agencies. Through me these organizations want to warn 
you of what we collectively see, as a new and virtually unlimited 
federal program which we fear will extend an unprecedented level of 
control over land use and private property in the nation. That federal 
program is the ``Essential Fish Habitat'' program, or EFH.
    Your constituents will soon be at your door to express their 
concern with this program. Any one of your constituents, any private 
property owners who need a federal permit, may soon feel the sting of 
this new and expanding federal program. It doesn't really matter what 
kind of federal permit your constituent might need. It could be a 
permit from the Corps of Engineers for a development on the Mississippi 
coast or it could be for a water diversion in California to irrigate a 
field. It could be that your constituent want to expand her business 
facility in Washington but before she does she needs a Clean Water 
permit from EPA because rainwater runs off her parking lot into a 
nearby ditch.
    Getting a permit approved by a federal agency is not a pleasant 
experience. But, if their property is in, near or might affect habitat, 
as very broadly defined by the National Marine Fisheries Service, they 
will enter a regulatory morass that can be the equal of Section 7 of 
the Endangered Species Act. Their project will be going into 
consultation with the National Marine Fisheries Service (NMFS) because 
you may be affecting ``essential fish habitat.''
    How did NMFS get this authority? They weren't given it--they took 
it.
    The term essential fish habitat or ``EFH'' comes from the 1996 
amendments to the Magnuson-Stevens Fishery Conservation and Management 
Act--a law designed primarily to address offshore commercial fisheries. 
The Magnuson-Stevens Fisheries Act is administered by NMFS, an agency 
in the Department of Commerce. NMFS also regulates endangered species 
in the marine environment, and marine mammals like whales and dolphins. 
All of these have the common theme--oceans and marine resources. NMFS 
enforces the Fisheries Act, but eight Fishery Management Councils guide 
it.
    The Councils are composed of appointed members from the fishing 
industry, state agencies dealing with fish, Indian tribes and in some 
cases representatives of the environmental community. The Council 
members fail to reflect any representation of land use or development 
interests. There is virtually no representation of interests not 
directly involved in fishing.
    The Council system is very procedural and very administrative. 
Councils meet frequently. they set up technical committees on issues 
like fishing gear, quotas, and habitat. These committees often meet for 
days and make recommendations regarding those issues to the Councils, 
which themselves meet for days. The Councils then make recommendations 
to NMFS, which conducts rulemaking on the proposals. Those rules, when 
final, become part of Fishery Management Plans. These Plans govern the 
behavior of participants in the fishery--the very interests that have 
made the recommendations.
    Plans cover many marine fish species--including anadromous species 
like salmon--that are fished for commercial or sport purposes. A 
species does not have to be rare, endangered, threatened, or even 
subject to any particular risk. There are over 400 species of fish 
subject to these Plans, including some you expect--like salmon, 
halibut, swordfish--and others you would not--like the spiny dogfish (a 
small shark), corals, etc.
    Before the 1996 Fisheries Act amendments, this process was 
relatively self-
contained. The interest groups involved in fishing activities 
interacted with each other, fought and compromised with each other, 
sued each other, and generally went on about their business. Now, 
thanks to the EFH program being developed by NMFS, a wide range of 
nonfishing activities including real estate development, forest 
practices, mining, water supply, and agriculture are going to affected 
by this process. Members of a Fisheries Management Council system that 
does not represent, or reflect, their interests will regulate all of 
these businesses and industries.
    EFH was intended to be an information-gathering process-designed to 
identify how fish habitat was being harmed. It was, as its name 
implies, designed to cover habitat ``essential,'' or especially 
important, to the fish species. Congress defined EFH as, ``those waters 
and substrate necessary to fish for spawning, breeding, feeding or 
growth to maturity.''
    NMFS and the Councils, however, have taken this concept and greatly 
extended, if not distorted, it. Four twists on the concept in the Act 
are noteworthy:
    First, NMFS interpreted EFH in its regulations to cover not only 
the critically important habitat one would expect necessary to be 
``essential,'' but instead concluded the designation should cover all 
habitat necessary to a ``healthy ecosystem.''
    Second, NMFS concluded that the term should not be limited to the 
marine environment--the traditional realm of the Fisheries Act--but 
should be extended to cover inland waters as well.
    Third, having taken the step of pushing inland, NMFS announced the 
need for ``watershed'' planning. Not only would rivers, estuaries, and 
wetlands be covered, but all areas that could impact those waters, 
including terrestrial habitat, would be included.
    Finally, NMFS determined that it was not enough to cover waters 
where fish currently are found, but also that EFH should cover areas 
where fish historically were found.
    NMFS took this expansive approach in its general regulations that 
the Councils must follow. The Councils are now developing these 
specific EFH designations following the NMFS guidance. This process is 
ongoing now, and the results are shocking. Here are some examples:
     The Pacific Fishery Management Council, governing fish 
species off the coasts of California, Oregon, Washington and Idaho, has 
proposed extensive inland habitat as EFH for salmon.
     The North Pacific Fishery Management Council is proposing 
to designate virtually every river that eventually touches the ocean as 
EFH for salmon in Alaska.
     The Mid-Atlantic Council, with the New England and South 
Atlantic Councils, is proposing to designate the entire inland coast 
from North Carolina to Florida for bluefish. This is just the southern 
bluefish range.
     The New England, Mid-Atlantic and South Atlantic Councils 
have actually listed all of the estuaries and most of the major bays 
and river basins on the east coast, areas like the Connecticut River 
and Chesapeake Bay, for bluefish.
     The Gulf Coast Council has effectively listed every bit of 
the Gulf Coast, its wetlands, estuaries and rivers from the tip of 
Florida to the border with Texas as habitat for brown shrimp.
    These designations are extraordinarily broad. Essential fish 
habitat has become all fish habitat. Remember, there are over 400 fish 
species for which such designations must be made. The end result can 
only be that EFH will be all waters everywhere a Fisheries Act species 
is now, or previously has been, found.
    The 1996 amendment requires federal action agencics--those that 
decide whether to issue a permit or carry out a program--to ``consult'' 
with NMFS to determine what the impacts on EFH will be. NMFS, in turn, 
``consults'' with the Councils. NMFS and the Councils submit 
recommendations to the action agencies. If the action agencies don't 
follow those recommendations, they must explain why in writing. In 
short, a straightforward information-process was envisioned. The term 
``consultation,'' however, is a term of art. As will be described, NMFS 
has turned it into a complex, time-consuming, expensive process.
    EFH consultation will be very similar to the cumbersome, detailed 
consultation procedure of the Endangered Species Act. Section 7(a)(2) 
of the Endangered Species Act (the ``ESA'') requires federal agencies 
``in consultation with the assistance of the Secretary [of Commerce or 
Interior]'' to ensure that ``any action authorized, funded, or carried 
out by the Federal government is not likely to jeopardize the continued 
existence of any listed species or result in the destruction or adverse 
modification of critical habitat of an endangered or threatened 
species.''
    Pursuant to section 7(a)(2), a federal agency involved in an action 
that ``may affect'' an endangered (or threatened) species generally 
begins the consultation process by preparing a biological assessment 
(``BA'') analyzing the anticipated effects on the listed species, or 
initiating discussions with NMFS or the U.S. Fish and Wildlife Service 
(``FWS''). The agency uses this process to determine whether the action 
``is likely to adversely affect'' a species of critical habitat. If 
this will happen, then formal consultation is required. As part of the 
formal consultation, NMFS or FWS, issue a biological opinion (``BO'') 
examining the proposed action and the anticipated impacts on the listed 
species and determining whether there will be jeopardy to the species. 
If the BO concludes that the proposed action will jeopardize a listed 
species, the opinion will suggest ``reasonable and prudent 
alternatives,'' if any, which NMFS/FWS believes will not cause jeopardy 
to the species.
    If the proposed activity is not likely to jeopardize the continued 
existence of that species, USFWS may issue an incidental take 
authorization along with the BO allowing the proposed activity to 
proceed. If this type of ``taking'' is in compliance with a section 7 
incidental take statement (``ITS''), then the activity will not violate 
section 9's take prohibition.
    The BO and take statement will also include reasonable and prudent 
measures as defined as required actions, identified during the formal 
consultation and included in the BO, which NMFS/USFWS determines are 
necessary or appropriate to minimize the impacts of the incidental 
take. Accordingly, the formal consultation develops and establishes 
reasonable and prudent measures, terms, and conditions to minimize 
anticipated incidental take, or, if necessary, reasonable and prudent 
alternatives to eliminate the risk of jeopardy.
    The consultation processes set forth in the proposed EFH 
regulations are based on the process used for section 7 consultations. 
In actuality however, the process proposed by NMFS is significantly 
different from, and even in conflict with, the consultation process 
used by federal agencies under section 7 of the ESA. The EFH process is 
broader in many respects than the section 7 process and presents 
consequential implications for private parties impacting water bodies 
and associated areas containing EFH.
    First, as noted earlier, the statute sets forth three separate 
consultation or coordination processes. First, and most important, 
federal agencies have a statutory requirement to ``consult'' with NMFS 
on any activity, or proposed activity, authorized, funded, or 
undertaken by the agency that may adversely affect EFH. Second, NMFS is 
required to provide EFH recommendations on both federal and state 
actions that could adversely affect EFH once the agency receives 
information on these activities. This is not necessarily a part of the 
consultation process; it applies independently to any information 
received by NMFS. Finally, FMCs are authorized to review and comment on 
any activities, or proposed activities, authorized, funded, or 
undertaken by state or federal agencies that may affect the habitat, 
including EFH, of any species under the FMC's authority.
    The regulations set forth a complex scheme for federal agencies to 
consult with NMFS. There are three possible procedures for a federal 
agency to use in conducting an EFH consultation on an action. The 
choice of procedures depends on the effects of the action on EFH. If an 
action falls within a class of actions that NMFS has determined will 
have only minimal effect on EFH, the agency could qualify for a 
``General Concurrence'' and thus not be required to undertake a 
consultation on an action. Alternatively, if an action will have 
adverse effects, but these affects can be alleviated through minor 
modifications, an agency may only be required to undertake an 
abbreviated consultation. Finally, if an action may result in 
substantial effects to EFH and/or will require detailed analysis to 
allow EFH conservation recommendations to be developed, the agency will 
have to undertake an expanded consultation, the most lengthy and 
detailed of the consultation process options.
    The interagency process set forth in the proposed rule also 
incorporates elements of both the present process used for section 7 
consultations and the NEPA evaluation process. For example, the rule 
provides that, to reduce duplication and improve efficiency, 
interagency consultation may be consolidated with interagency 
coordination procedures required by other statutes, including NEPA, the 
Fish and Wildlife Coordination Act, the CWA, and the Federal Power Act. 
As an example, the rule notes that an agency preparing an EIS on an 
action would not have to include a separate EFH assessment if the EIS 
already specifically and fully evaluated the effect of the action on 
EFH, noted that it was intended to function as an EFH assessment, and 
was provided to NMFS for review.
    The proposed rule states that the NMFS regional offices are to 
develop procedures for identifying state actions that may adversely 
effect EFH. These offices are also required to identify the most 
appropriate method for providing EFH conservation recommendations to 
the state agency.
    When an activity that may adversely effect EFH requires 
authorization and funding by both federal and state agencies, NMFS will 
provide the state agencies with copies of the EFH conservation 
recommendations developed as part of the federal consultation.
    Finally, the rule provides that each FMC should establish 
procedures for reviewing state or federal agency activities that may 
affect habitat, including EFH of species under its authority. FMCs are 
encouraged to identify activities of concern by directing staff to 
track proposed actions, having the FMC habitat committee identify 
activities of concern, and entering into an agreement with NMFS to 
notify the FMC of activities, or similar procedures. The proposed rule 
recognizes that federal and state actions often follow specific 
timetables which may not coincide with the Council meetings and states 
that FMCs may want to consider establishing abbreviated procedures for 
the development of recommendations.
    As noted above, section 7 of the ESA requires federal agencies to 
ensure that ``any action authorized, funded, or carried out by the 
Federal government is not likely to jeopardize the continued existence 
of any listed species or result in the destruction or adverse 
modification of critical habitat of an endangered or threatened 
species.'' 16 U.S.C. Sec. 1536(a)(2). The consultation process under 
this section is therefore predicated upon impacts to species listed as 
threatened or endangered under the Act or on critical habitat. Listing 
of species are final only after proper rulemaking procedures have been 
followed by or NMFS, including considerable input from the public. See 
16 U.S.C. Sec. 1533. Accordingly, a considerable amount of science is 
accumulated about the species from the time of proposed listing to the 
final listing to the final listing determination.
    In contrast, the consultation process for EFH is predicated upon 
adverse impacts to the habitat of all species covered under an FMP. 62 
Fed. Reg. 19725. Most of these species are not listed under the ESA or 
comparable state laws. Thus, the consultation process may be activated 
by potential adverse impacts to areas occupied by many species that are 
not otherwise protected under federal or state laws. The amount of 
biological knowledge about the specific habitat needs of the species 
triggering the consultation may often be marginal. NMFS is asking that 
a risk-averse approach be used in designating EHH, and the EFH 
consultation requirement will thus be very far-reaching.
    Once an agency has determined that an action ``may affect'' 
federally listed species, a full, formal section 7 consultation will be 
required only if the action is likely to adversely affect the species. 
The mandate will then be to ensure that the action is not ``likely to 
jeopardize the continued existence of any listed species.'' 16 U.S.C. 
Sec. 1536(a)(2). By contrast, the consultation process under the 
proposed rule is initiated to assess and respond to ``adverse'' effects 
or impacts. The proposed rule does not define ``adverse'' effects or 
impacts, but identifies various activities with the potential of 
impacts to fish habitat sufficiently ``adverse'' to trigger EFH 
consultation, including runoff, discharge, water diversions and 
``conversion of aquatic habitat that may eliminate, diminish, or 
disrupt the functions of EFH.'' Proposed Rule, 
Sec. 600.810(a)(2)(ii)(C). While ``jeopardy'' is also not specifically 
defined within the ESA or its implementing regulations, it is commonly 
accepted to be, a much higher threshold than that suggested under the 
proposed rule to require EFH consultation.
    Section 7 of the ESA also requires federal agencies to ensure their 
actions are not likely to ``result in the destruction or adverse 
modification of critical habitat of an endangered or threatened 
species.'' 16 U.S.C. Sec. 1536(a)(2) The ESA requires designation of 
``critical habitat'' for listed species based on physical and 
biological features essential to the conservation of the species and 
according to the best scientific and commercial data available. Id. 
Sec. Sec. 1532(4), 1533(b)(2). The ESA requires, however, that the 
economic impacts of the proposed designation be considered prior to 
making the critical habitat decision. Furthermore, critical habitat 
designations are subject to proper rulemaking requirements, including 
public notice and comment.
    On the other hand, identifications of EFH are apparently 
discretionary calls by the FMCs and not subject to any formal 
rulemaking requirements such as public participation. Moreover, there 
is no specific requirement for EFH determinations to be based on the 
best scientific and commercial data available. Rather, the assessments 
are to be made according to four ``levels'' of data, with the 
presumption of the most protection given the species with the least 
amount of data concerning their habitat requirements. Finally, there is 
no requirement that economic impacts be given any consideration in 
determining the presence of EFH. The proposed rule, in fact, states 
that EFH will always include critical habitat and may be broader than 
such habitat if ``restoration of historic [EFH] areas is feasible, and 
[because] more habitat is necessary to support a sustainable fishery.''
    Section 7 of the ESA allows the incidental taking of listed species 
by federal agencies, including modifications of critical habitat which 
actually kill or injure listed species. The incidental taking is 
permitted so long as the agency follows the ``reasonable and prudent 
measures'' included in a federal biological opinion which NMFS or USFWS 
determine are ``necessary or appropriate to minimize the impacts of the 
incidental take'' or ``eliminate the risk of jeopardy.''
    Unlike the ESA, the proposed rule significantly expands the extent 
and impact of the measures recommended by NMFS and the FMC for 
activities which potentially impact EFH. For example, the interim rule 
states that NMFS and the FMC are to provide recommendations to 
``conserve and enhance'' EFH to state and federal action agencies. The 
rule explains that ``EFH conservation recommendations'' may include 
measures to ``avoid, minimize, mitigate, or otherwise offset adverse 
impacts on EFH'' resulting from actions or proposed actions authorized, 
funded, or undertaken by that agency. Unlike the requirements under the 
ESA to merely minimize the impacts of an incidental taking or eliminate 
the risk of jeopardy, it is clear the rule proposes to require 
restoration of habitats, including stream areas containing historic 
habitats, as a means to conserve and enhance potentially impacted EFH.
    As discussed earlier, the ESA consultation process is triggered by 
``any action authorized, funded, or carried out by the Federal 
Government'' with sufficient impacts to listed species or their 
critical habitat 16 U.S.C. Sec. 1536(a)(2). The proposed rule, however, 
requires NMFS and the FMCs to review and recommend measures to conserve 
and enhance EFH for both state and federal actions. Although the FCMA 
treats this as a distinct function from consultation, NMFS appears to 
be merging the consultation and recommendation/commenting functions. 
Presumably, this will include everything from grazing leases on federal 
lands to state timber harvesting permits. Notwithstanding the ``General 
Concurrence'' exemption from EFH consultations, the proposed rule does 
not clarify in any meaningful way how the NMFS or FMCs expect to review 
the enormous number of federal and state permits processed which could 
potentially impact EFH each year. Accordingly, many state and federal 
permits could be stalled in the processing phase or risk challenges by 
interested parties for failure to adequately follow the requirements of 
the Magnuson Act.
    This process will be on top of those that already exist, such as 
NEPA environmental impact review, Coastal Zone Management Act 
compliance, Endangered Species Act reviews, etc. Highlights include:

          The duty of the action agency to prepare a detailed ``EFH 
        Impact Assessment.'' This could very well be like an EIS. When 
        a private applicant is involved, as when a federal 404 wetlands 
        permit is required, this duty will probably be passed to the 
        private party who will have the responsibility to pay for this 
        analysis and ensure it is complete.
          Time deadlines exist, but, like the timeliness in ESA, the 
        agencies can easily get around them. As a result, the process 
        can greatly extend the time needed for federal permitting.
          The recommendations of NMFS and the Councils will become 
        litigation fodder. Opponents of project development will be 
        able to sue based on these recommendations. This will 
        discourage action agencies from following any course other than 
        what is recommended by NMFS or the Councils, and NMFS and the 
        Councils will most likely recommend restrictions to protect 
        habitat without reference to the economic consequences.

    If your state has any activity that requires federal approval and 
is in EFH or affects EFH, you are covered. NMFS has made it clear that 
it intends the Fisheries Act EFH program to cover nonfishing 
activities. It has listed some of these: real estate development, 
farming, timber-harvest, road construction, mining, water development, 
and oil and gas.
    Almost certainly this procedure will result in delays in getting 
permits. The cost of getting permits will increase--due to delays, due 
to the need to undertake consultation and prepare EFH assessments, due 
to the inevitable slippage in deadlines that cover the federal 
agencies, and due to the cost of complying with EFH restrictions. 
Permits are likely to be subject to new restrictions. In some cases, 
permits for activities are likely to be denied. And keep in mind, these 
are not restrictions for species in danger of extinction, they are 
restrictions to protect the habitat of all fished species, no matter 
how plentiful.
    EPH could be a new litigation tool for parties opposed to 
development in these regions. For reference, take a look at what has 
happened with the ESA and NEPA. Thus, even if you get a permit that can 
be lived with, there is no guarantee a lawsuit will not be brought to 
protect EFH, especially if a NMFS/Council recommendation is not 
adopted.
    All of this, everything I've discussed must be viewed in light of 
the fact that NMFS has chosen to implement this program and impose 
these new requirements without publishing a single final regulation. In 
order to protect their decision-
making from review, NMFS has conducted everything we've noted in this 
testimony under interim regulations. Public notice of the decisions of 
the FMC's has been spotty, varied and without the regimen one expects 
of a system designed and calculated to give the public notice of the 
activities of government.
    Any program instituted outside of Congress's intent, designed to 
greatly expand an agency's authority, is something this Committee and 
this Congress should be concerned about. This program has been designed 
not to protect endangered and threatened species. This program has not 
been designed to protect critically important habitat of species. This 
program, quite simply, has been designed.
    Ronald Baird, director of NOAA's National Sea Grant Program, made 
NMFS's plans clear when he said last August, ``This is the most 
significant piece of environmental legislation since the Clean Water 
Act of 1972. The full implications of essential fish habitat are not 
widely appreciated by the public. They will be shortly.''
                                 ______
                                 
     Statement of Robert Alverson, Manager, Fishing Vessel Owners 
                              Association
    Mr. Chairman, on behalf of the Fishing Vessel Owners Association 
(``FVOA''), I would like to thank you for the opportunity to provide 
this statement. The FVOA is a trade association representing the owners 
of 84 hook-and-line fishing vessels that operate in fisheries from 
California to Alaska, and in the mid-Pacific Ocean. Our fisheries 
include halibut, sablefish, and Pacific cod in the Bering Sea and Gulf 
of Alaska, and sablefish off the coasts of Washington, Oregon, and 
California, as well as albacore within and beyond the United States 
Exclusive Economic Zone in the Pacific Ocean. Although I am, at 
present, a member of the Pacific Fishery Management Council, and I am a 
former member of the North Pacific Fishery Management Council, I 
provide this statement solely in my capacity as Manager of the FVOA. I 
note that the Deep Sea Fishermen's Union, which represents the crewmen 
on vessels owned by FVOA members, has endorsed this statement.
                                summary
    The FVOA and DSFU believe that the 1996 amendments to the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. 1801, et 
seq.) have provided, in several respects, the basis for improved 
management of our nation's fisheries. The Act's National Standards on 
safety (National Standard 10, 16 U.S.C. 1851(a)(10)) and bycatch 
(National Standard 9, 16 U.S.C. 1851(a)(9)), are notable for the focus 
that they have provided on critically important aspects of fisheries 
management. The FVOA and DSFU were joined by the Alaska Crab Coalition 
(``ACC'') in first proposing the enactment of these new National 
Standards, and in securing wide support among Washington State and 
Alaskan fishing industry organizations. The FVOA, DSFU, and ACC also 
contributed to the development of conservation-related amendments to 
the then Magnuson Act in 1990.
    The habitat provisions of the 1996 amendments have contributed to 
the progressive management of our fisheries. In particular, these 
provisions have helped to draw attention to the need for actions to 
reduce the impacts of trawling on the benthic environment, which serves 
as nursery grounds for valuable species of fish. The FVOA, DSFU, and 
ACC took the initiative among fishing industry groups to propose 
habitat-related amendments during the process leading to the 1996 
amendments.
    Most importantly for the FVOA and DSFU, the 1996 amendments 
preserved the Individual Fishing Quota (``IFQ'') program that had been 
established for the halibut and sablefish fisheries off the coast of 
Alaska. This program, after seven long years of preparation by the 
North Pacific Fishery Management Council and the Department of 
Commerce, ended the deadly and damaging open access fishing derbies. 
IFQs have been the great success that their proponents had predicted 
from the outset of the development of the program.
    Based on the very favorable experience in the halibut and sablefish 
fisheries, the FVOA and DSFU believe that individual transferable 
quotas should be available for application to any fishery in the United 
States Exclusive Economic Zone. Therefore, the FVOA and DSFRI urge 
Congress to allow the statutory moratorium on individual quotas to 
expire in accordance with its terms. 16 U.S.C. 1853(d)(1). This 
position is strongly supported by the ACC, as well as by all the 
regional fishery management council chairmen. Equally notable is the 
fact that the report to Congress by the National Research Council of 
the National Academy of Sciences, as directed by the Congress in the 
1996 amendments (section 108(f), P.L. 104-297) definitively describes 
the benefits of individual fishing quotas. Executive Summary, 
Prepublication Copy, December 18, 1998.
    The FVOA and DSFU also ask Congress to extend to the Pacific Region 
the research plan provisions of the Magnuson-Stevens Act. 16 U.S.C. 
1862. As discussed further, below, there is an urgent need for a 
comprehensive observer program in the depressed groundfish fisheries 
off the Pacific Coast. There is simply no other way to obtain reliable 
data on bycatch of depressed, and even threatened, species. While there 
is a reasonable expectation of some Federal funding for such a program, 
fees on industry may become necessary. The fishing industry stands to 
benefit from improved conservation of our public resources. 
Consequently, the industry should be prepared to pay for the needed 
observer program, if federal funding is inadequate or unavailable. 
Playing Russian Roulette with our fisheries has proved disastrous to 
important groundfish species and to the industry that has depended on 
them. We must have observer data in order to manage our fisheries with 
confidence that we are doing the right things.
Conservation
    Replacement of the open access race for fish by the halibut/
sablefish IFQ program has resulted in improved conservation management. 
The incidental catch of groundfish in the sablefish fishery has dropped 
by 39 percent. Halibut mortality due to lost fishing gear has decreased 
by 59.65 percent (translating to an average $3.5 million saving, 
annually).
    Incidentally caught sablefish is no longer discarded in the 
directed halibut fishery. Sablefish in the western and central Gulf of 
Alaska is now fully harvested, not only avoiding waste, but also 
generating an economic gain for the industry (an average $3.93 million 
gain, annually).
    These improvements accord with the principal purpose of the 
Magnuson-Stevens Act, which is conservation, and with a major objective 
of that statute, minimizing bycatch and related mortality. 16 U.S.C. 
1851(a)(1),(9).
Safety
    Replacement of the open access race for fish by the IFQ Program has 
greatly improved the safety of life in the halibut and sablefish 
fisheries off the Alaskan coast. The former halibut fishing derby was 
the second most dangerous occupation in the United States (preceded 
only by the Bering Sea crab fisheries).
    As noted above, the Magnuson-Stevens Act requires that fisheries 
management promote the safety of human life at sea. 16 U.S.C. 
1851(a)(10).
Communities
    Community development quotas, which are integral to the halibut/
sablefish IFQ program, have assured isolated, low-income, Alaskan 
native coastal communities a major source of employment and revenue. At 
the same time, economic and social disruption of other communities has 
been avoided; the top five halibut ports and the top four sablefish 
ports remain the same as under the open access system. Small vessels 
serving minor ports have been guaranteed their place in the fisheries, 
and an industry fee-based loan program has been established for the 
owners of those vessels and for new entrants to the fisheries. In 
short, this IFQ program has increased the overall value of the 
fisheries, making it possible to dedicate a portion to the poorest 
communities, without adversely affecting the others.
    The Magnuson-Stevens Act requires that fisheries management take 
into account the interests of fishing communities. 16 U.S.C. 
1851(a)(8).
Overcapitalization
    Excess capacity in fisheries has been identified as one of the 
fundamental causes of resource declines, unsafe conditions, lost 
economic efficiency, and lower quality product. The halibut/sablefish 
IFQ program has resulted in a reduction of the halibut fleet from 3,450 
(1994) to 1,601 (1998). Restricted Access Management (``RAM'') Report, 
NMFS, 1999. Conservation risk associated with fishing pressure on the 
resources has declined radically. Unsafe conditions due to 24-hour 
halibut derbies and 2-week sablefish seasons have disappeared, as 
fishermen have gained the opportunity to conduct their operations in 
periods of good weather during 8 months of the year. Longer seasons 
have led to full-time employment on vessels and in processing plants, 
and higher fish values have resulted in better lives for vessel owners 
and crews. Slower paced fisheries have allowed much improved handling 
of the catches, and thus, better quality product for the consumer.
    The Magnuson-Stevens Act provides for consideration of economic 
efficiency, and for reduction of excess fishing capacity. 16 U.S.C. 
1851(a)(5), 1861a (a)-(e). It is reliably estimated that a government-
funded buyback achieving what was accomplished by the halibut sablefish 
IFQ program would have cost the taxpayers approximately $318.8 million.
Greatest Overall Benefit to the Nation--Conservation, Safety, 
        Efficiency, Quality, Value
    In addition to achieving improved conservation, safety, and 
efficiency, the halibut/sablefish IFQ program has resulted in improved 
product quality and higher product value. The slower paced fisheries 
have translated to greater availability of higher quality product, in 
particular, fresh halibut for 8 months, instead of a few days of the 
year, and greater bargaining power for U.S. producers in the sablefish 
export market. Landings of halibut provide a continuous supply of 
product for 8 months, averaging about 12 percent of the harvest per 
month. The same is true for sablefish. RAM Report, NMFS, 1999, page 12.
    The Magnuson-Stevens Act requires that fisheries management achieve 
the greatest overall benefit to the Nation. 16 U.S.C. 1851(a)(1); see 
16 U.S.C. 1802 (28)(A).
    review of the halibut/sablefish individual fishing quota program
    When the North Pacific Fishery Management Council recommended 
approval by the Secretary of Commerce of an IFQ system for the halibut 
and sablefish fisheries, it was on the basis of an administrative 
process involving extensive debate and intensive analysis. The Council 
had considered an array of possible management responses to 
conservation, social, and economic factors at work in the then open 
access fisheries.
    These factors were identified, as follows:
     Allocation conflicts;
     Gear conflicts;
     Fishing mortality and other costs due to lost gear;
     Bycatch loss of halibut and sablefish in other fisheries;
     Discard mortality for halibut and other retainable species 
in the halibut and sablefish fisheries;
     Excess harvesting capacity;
     Product quality, as reflected in halibut and sablefish 
prices;
     Safety of fishermen;
     Economic stability in the fixed gear halibut and sablefish 
fisheries and affected communities; and
     Rural coastal community development of a small boat 
fishery.
    The Council ultimately determined that the IFQ system would be the 
best management response to these factors. This paper addresses the 
performance of that IFQ system in relation to those factors.
Allocation Conflicts
    Allocation conflicts between the operators in the halibut/sablefish 
fisheries generally were found in skirmishes involving halibut. Prior 
to implementation of the IFQ program, the allocation issues centered 
around manipulations of when specific area openings would take place in 
order to advantage or disadvantage various groups.
    In the Bering Sea/Aleutian Islands area, there evolved a series of 
complex clearing procedures designed to make it more inefficient for 
non-Alaskan-resident-operated vessels. This included such regulations, 
in the Pribilof Islands area, as constraining trip limits and a 
requirement that non-resident vessels deliver to Dutch Harbor. This, of 
course, gave the local fishermen additional fishing time. Similar 
clearing requirements were established for the Eastern Bering Sea, Area 
4E, and the area known as Area 4B in the Aleutian Islands.
    The annual meetings of the International Pacific Halibut Commission 
(``IPHC''), were prolonged for hours on the question of when to have 
the spring and fall 24-hour openings. Some of the issues that drove 
this debate were as follows: Were the Canadian or the United States 
fishermen going to open first to get an advantage on price; would the 
spring opening conflict with the spring herring opening in southeast 
Alaska; would the openings conflict with western peninsula salmon 
seasons; would openings occur during big tides; would openings put 
product at the docks in Alaska at the right time for the Sea Land 
ships; would the fall opening conflict with the State of Alaska 
sablefish openings; and would that opening conflict with the Russian 
Orthodox holidays?
    None of those issues, which were debated with emotion and zeal, has 
arisen since the implementation of the IFQ program. When the IFQ 
program was adopted, the onerous clearing requirements and trip limit 
regimes in the Bering Sea district were removed (though there are still 
clearing requirements they are not of an allocative nature). Former 
Governor of Alaska, Walter J. Hickel, correctly observed of the IFQ 
program, ``Ultimately the free market decides. . . .'' Letter from 
Walter J. Hickel to Bob Alverson, August 27, 1997. All of the concerns 
of when to fish or not to fish that the industry and fisheries managers 
debated at length prior to implementation of the IFQ program, are now 
the business decisions of each and every vessel owner, subject to 
conservation management regulations.
Gear Conflicts
    The supplemental environmental impact statement (``SEIS'') for the 
halibut/sablefish IFQ program stated:

          Although an IFQ program will tend to decrease gear conflicts 
        within the halibut and sablefish fishery, it may increase gear 
        conflicts between halibut or sablefish fishermen and other 
        fishermen by increasing the areas and length of periods in 
        which such conflicts can occur. For example, it is less costly 
        for trawlers to avoid the halibut grounds during brief halibut 
        openings than to avoid these areas most of the year. Similarly, 
        the areas and times with a high risk of gear conflicts are 
        easier to identify and avoid with the current intensive halibut 
        fishing periods than with an IFQ program. No attempt has been 
        made to estimate the magnitude of this effect. SEIS, page 2-7.

    Halibut fishermen no longer have gear conflicts with sablefish 
fishermen. The best sablefish grounds are usually located on the outer 
continental shelf, or at about 350 to 600 fathoms. The halibut fishery 
is conducted generally between 100 and 250 fathoms. The IFQ fishery 
better allows the participants to target where the fish are located. 
The time available for the fishermen to decide where and when to set 
gear allows avoidance of other fishing operations, particularly now 
that the grounds for halibut and sablefish are no longer saturated with 
gear.
    The statement, ``it is less costly for trawlers to avoid the 
halibut grounds during the brief halibut openings, than to avoid these 
areas most of the year'', is ironic, because the reverse has turned out 
to be the case. It is very costly for trawlers to avoid halibut 
grounds, because the trawl groundfish seasons have become very short. 
This is particularly true in the Gulf of Alaska. Should trawlers 
inadvertently get into a school of halibut or area where halibut gear 
is set, the trawl fishermen do not have the time to make optimum 
adjustments. If the trawlers had the time to make those adjustments, 
the bycatch and potential gear conflicts could be further reduced.
    As it stands, now, the longline IFQ fishermen have adequate time to 
harvest their quota shares and can avoid most of the intense trawl 
activity. In fact, the pacific cod fishery in the Gulf of Alaska has 
been shortened, so that it ends about the time the March 15 IFQ 
fisheries start, with the result that few, if any, gear conflicts have 
been occurring with that directed fishery.
    The openings set forth below were provided the trawl fleet in the 
Gulf of Alaska during 1995 and 1999. The reader can easily see that 
fishing time is now at a premium to the trawl fleet, as it was to the 
halibut and sablefish fishermen prior to the IFQ program. The loss of 
fishing gear, particularly someone else's, becomes a low priority, when 
fishing time becomes a high priority.

------------------------------------------------------------------------
              1995
------------------------------------------------------------------------
Pacific Cod.....................  Western Gulf......  January 20 to
                                                       March 17
(inshore).......................  Central Gulf......  January 20 to
                                                       March 22
Pollock.........................  Western Gulf......  January 20 to
                                                       February 2
                                  ..................  June 1 to June 2
                                  ..................  July 1 to July 2
                                  ..................  October 1 to
                                                       October 1 (12
                                                       hours)
                                  Central Gulf......  January 20 to
                                                       January 24
                                  ..................  June 1 to June 5
                                  ..................  July 1 to July 5
                                  ..................  October 1 to
                                                       October 4
S.E. Alaska Pacific Ocean Perch.  ..................  July 1 to July 9
                                  ..................  Plus two days in
                                                       October
------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
                  1999                             Sector                   Area         in the Gulf of Alaska
----------------------------------------------------------------------------------------------------------------
Pacific Cod (Trawl)....................  Inshore.....................             610  Opened 1/20/99 Closed 3/8/
                                                                                        99
                                         Inshore.....................         620&630  Opened 1/20/99 Closed 3/
                                                                                        14/99
                                         Offshore....................             610  Opened 4/18/99 Closed 6/7/
                                                                                        99
Pollock (Trawl)........................  Inshore.....................             630  Opened 1/20/99 Closed 1/
                                                                                        27/99
                                         Inshore.....................             610  Opened 1/20/99 Closed 1/
                                                                                        31/99
                                         Inshore.....................             620  Opened 1/20/99 Closed 2/
                                                                                        17/99
                                         Inshore.....................         640&650  Opened 1/20/99 Closed 3/6/
                                                                                        99
                                         Inshore.....................             610  Opened 6/1/99 Closed 6/7/
                                                                                        99
                                         Inshore.....................             630  Opened 6/1/99 Closed 6/10/
                                                                                        99
                                         Inshore.....................             620  Opened 6/1/99 Closed 6/11/
                                                                                        99
----------------------------------------------------------------------------------------------------------------

    In summary, the SEIS predicted less gear conflicts, and this has 
occurred The SEIS' contemplation of IFQ harvesters having conflict 
between one another has not occurred, largely because sablefish and 
halibut operations take place at different depth strata, and because of 
the 8 months of fishing time, halibut harvesters can afford to 
communicate with their fellow fishermen and avoid each others' gear. 
The same applies for sablefish harvesters. The conclusion of the SEIS 
about trawlers has turned out to be just the reverse of actual 
experience. The trawl derbies have increased the trawlers' cost of 
avoiding gear conflicts.
Fishing Mortality and Other Costs Due to Lost Gear
    The SEIS correctly predicted the following with regard to gear loss 
and related fishing mortality:

          There are several reasons why an IFQ program is expected to 
        decrease gear losses and the associated costs. First, it would 
        reduce the amount of gear that is on the grounds at any one 
        time, and therefore, reduce the amount of gear that becomes 
        tangled. Second, it would increase the willingness of fishermen 
        to take more time to avoid tangling gear and to retrieve lost 
        or tangled gear. It would do so by decreasing the opportunity 
        cost of the time required either to set gear so that it is less 
        likely to become tangled or to retrieve it. Third, it would 
        eliminate the current gear losses that occur because fishermen 
        set more gear than they can retrieve before the end of the 
        brief halibut openings. Finally, it would allow fishermen to 
        fish at a pace and in areas, time periods, and weather 
        conditions that decrease gear losses.'' SEIS, pages 2-6.

    The SEIS stated, ``There are principally two types of costs 
associated with gear losses in the halibut and sablefish fishery. There 
are (1) cost of replacing lost gear, and (2) harvest forgone due to the 
fishing mortality caused by the lost gear.'' (Id.) The SEIS estimated 
that, in 19907 1,860 skates of gear and two million pounds of halibut 
were lost. (Id.)
    In its annual reports, under the category of waste, the IPHC 
includes the mortality of halibut due to lost gear. In the 1994 Annual 
Report, waste was recorded at 2.85 million pounds. The 1995 and 1998 
Annual Reports recorded waste as 1.0 and 1.9 million pounds, 
respectively. This represents a 48 percent average reduction in waste, 
or an annual savings of approximately 1.4 million pounds of halibut. 
This compares impressively with the 50 percent saving predicted by the 
SEIS. Based on the 1999 Seward, Alaska price for halibut (approximate 
average, $2.10/lb), the saving due to reduced waste is approximately 
$2.94 million.
    The lost fishing gear in the halibut derbies was primarily the 
result of 4,000 to 6,000 vessels setting their gear all at the same 
time, and the gear becoming entangled. Gear lost in this manner is a 
thing of the past. The SEIS estimated the value of lost gear at $2.0-
$2.4 million per year in the halibut derbies. SEIS, pages 2-6. Under 
the IFQ program, the vessels share the grounds over an 8-month season. 
Gear can be lost due to the normal hang-up on the bottom, but the large 
amounts of gear lost during the halibut derbies from gear conflicts has 
come to an end.
    There has also been a saving in the amount of gear purchases for 
each vessel each season. It was not uncommon for vessels to pre-bait 
and set 80 to 130 skates of gear during a derby opening. Vessels are 
now fishing with 50 to 70 skates of gear. Additionally, the vessel 
operators, prior to IFQs, used two different types of gear--one for 
halibut and one for sablefish Many harvesters are now using their 
sablefish gear to harvest the halibut quotas, further reducing gear-
related costs to the fleet.
    The SEIS predicted a 50 percent reduction in gear needed to harvest 
the same amount of fish. (SEIS, pages 2-7.) That document properly 
predicted that significantly less gear would be set out.
    The open access sablefish fishery had similar problems with lost 
gear; however, the SEIS did not quantify the loss. It is reasonable to 
conclude, based on the halibut experience, that the lengthened 
sablefish seasons under the IFQ program have also resulted in lower 
gear losses and associated resource mortality than prevailed in the 
open access fishery.
    In summary, fishing mortality of halibut due to lost gear has 
resulted in at least a 48 percent reduction in waste recorded by the 
IPHC, with a net benefit of $2.94 million annually to the fleet. The 
IFQ program has resulted in much less gear being set to harvest the 
quota.
Bycatch Loss of Halibut and Sablefish in Other Fisheries
    Prior to the implementation of the IFQ program for sablefish and 
halibut, the length of the seasons had shortened to a point of causing 
chaos. The sablefish fishery had collapsed from a 9-month season to a 
less than a 10-day fishery in the western Gulf of Alaska, and to a 5-
day season in southeast Alaska.
    By 1994, the halibut fishery had become two 24-hour openings, one 
in the spring and one in the fall. In the mid-1970's, the halibut 
season had been 9 months. By the 1990's, when fishermen harvested 
sablefish, they were required by regulation to throw away their 
incidentally caught halibut, and during the halibut derbies, the 
fishermen were required to throw away the incidentally caught 
sablefish. The mortality associated with this regulatory bycatch was 
deducted from the available commercial harvests.
    The IPHC recorded the halibut mortality in the directed sablefish 
fishery by the use of the observer program. The average halibut 
mortality in the longline sablefish fishery for each of the five 
seasons preceding the IFQ program was 1,816,000 pounds. The bycatch 
mortality, after the IFQ program was implemented in 1995 was recorded 
at 297,000 pounds. This represented an 84 percent reduction in halibut 
mortality, or a reduction of 1,519,000 pounds annually. There have been 
no updates in the NMFS data base since 1995, but there is no reason to 
expect that the experience has changed since then.
    The reduction resulted from a variety of several factors. Two of 
the more important ones were: (1) the fishery slowed down, and juvenile 
halibut were able to be released with better care, and thus with lower 
mortality, and (2) the adult halibut were now allowed to be taken and 
counted against the quota. (Juvenile halibut are not allowed to be 
landed; they are defined as being less than 32 inches long.)
    Similar information is not available to quantify what has taken 
place with incidentally caught sablefish. The directed halibut fishery 
is generally conducted in a shallower habitat than that in which the 
sablefish are usually found, so the numbers of sablefish saved in the 
halibut fishery would probably not be as great as the numbers of 
halibut saved in the directed sablefish fishery. (The deep-water 
sablefish habitat does, however, have substantial numbers of halibut in 
the late winter and spring.) The important point is that the fleet is 
now landing incidentally caught sablefish. That was not the case prior 
to the IFQ program.
    The reduction in halibut mortality in the directed sablefish 
fishery of 1,519,000 pounds represents approximately a $3.2 million 
gain to the longline fishermen, assuming an average 1997 price of $2.10 
per pound. As noted above, prior to the IFQ program, this now-retained 
bycatch was discarded and deducted from what might be available for 
commercial harvest.
    There has been an additional saving to the longline fleet with the 
implementation of the IFQ program. Prior to 1995, the longline 
sablefish fishery operated in the Gulf of Alaska with a halibut cap of 
700 metric tons. Once this bycatch mortality was accounted for, with 
the help of the observer program, the directed sablefish fishery was 
closed. This had the effect in the western Gulf of Alaska, and at times 
the central Gulf, of stopping the harvest of sablefish, in order to 
protect halibut. The ability under the IFQ program to keep the 
sablefish fishery open in the Gulf of Alaska in each of the years, 
1995, 1996, 1997, 1998, and 1999, has allowed for the western Gulf of 
Alaska harvest level to be fully achieved, and the central Gulf quota 
to also be harvested. For 1997, in the western Gulf of Alaska, the 
harvestable amount of sablefish quota shares amounted to 1,690,222 
round pounds, representing an additional $3.93 million to the fleet. 
(Price $3.70/dressed, 63 percent recovery.)
    In summary, the IFQ program has allowed the fleet to recapture the 
lost harvest of halibut that was occurring due to sablefish operations. 
This gain amounts to an average of $3.2 million annually since the 
inception of the IFQs. The program additionally allows for the full 
harvest of sablefish in the western and central Gulf of Alaska, 
providing an average annual gain of $3.93 million.
Discard Mortality for Halibut and Other Retainable Species in the 
        Halibut and Sablefish Fisheries
    ``Conservation and management measures shall, to the extent 
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot 
be avoided, minimize the mortality of such bycatch.'' 16 USC 
1851(a)(9).
    Congressional interest and intent with respect to bycatch reduction 
was clearly reflected in the Senate and House floor debates in the 
104th Congress. Senator Stevens declared that, ``Under S. 39, the 
councils will . . . be required to reduce the amount of bycatch in 
every fishery around our country.'' (Congressional Record, September 
18, 1996 at S10810). He also stated, ``We thought Americanization would 
go a long way toward conserving the fishery resources of this Nation. 
Foreign vessels have now given way to U.S. vessels that are capitalized 
now far beyond what we ever envisioned in the seventies, and the 
fisheries waste continues to get worse in many areas.'' Id. Senator 
Murkowski stated, ``This will put us on the road to stopping the 
shameful waste that is currently occurring in many fisheries.'' (Id. at 
S10820.) Senator Gorton remarked, ``. . . I join my colleagues in 
lauding those provisions that aim to reduce waste and bycatch in the 
fisheries. . . .'' Id. at S10814.
    On the House floor, Congressman Young, principal author of H.R. 39, 
and Chairman of the committee of jurisdiction, stated, ``The reduction 
of bycatch in our fisheries is one of the most crucial challenges 
facing fisheries managers today.'' (Congressional Record, September 18, 
1995 at H9116.) On passage of S. 39, he stated, ``. . . the bill 
recognizes that bycatch is one of the most pressing problems facing the 
continuation of sustainable fisheries. . . .'' (Congressional Record, 
September 27, 1996 at H11438.)
    Janet Smoker of Fisheries Information Services (``FIS'') completed 
a review of the IFQ directed sablefish fishery in the Gulf of Alaska 
relative to the retention of various species caught incidentally. The 
FIS report examines the 1994 season against the IFQ seasons of 1995, 
1996, and part of 1997. The following conclusions were based on the 
North Pacific Fishery Management Council's observer program.
    While conducting a directed fishery on sablefish, some of the 
target catch is discarded. The retained sablefish has always been high, 
according to the report. The retained sablefish in the directed 
longline fishery for sablefish during 1994 was 96.8 percent (a number 
that is hard to improve upon), and during the 1995, 1996, and 1997 
seasons averaged 97.03 percent.
    One observation concerning the small difference in retained bycatch 
between the open access period and the IFQ fishery is that there has 
been very little ``high grading'' in the IFQ fisheries, indeed, less 
than in the pre-IFQ fisheries. High grading had been a concern with 
respect to the IFQ program, when it was under development.
    The SEIS noted several very important points relative to this 
subject. Vessel profit would increase 6 percent, if sablefish under 4 
pounds (eastern dressed weight) were discarded, but in so doing the 
number of fishing days would increase 70 percent. SEIS, page 2-14. The 
fishermen would have made more money, but would have worked many more 
days.
    The observer statistics compiled by FIS, which indicate a 97.03 
percent retention of sablefish, suggests that the SEIS was accurate. 
High grading, which means catching the 16 fish at least twice, is not 
economical.
    The FIS report also indicates that the directed sablefish fishery 
during the 1994 season was retaining 75.5 percent of all groundfish, 
inclusive of sablefish that was being caught. The next three seasons 
under the IFQ program increased the total groundfish retention to 84.9 
percent of all groundfish species. Discards of groundfish declined from 
24.5 percent of the catch to an average of 15.03 percent of the catch, 
representing a 39 percent reduction in discarded groundfish.
    The retention of groundfish, not including sablefish, increased 
from the 1994 season level of 25.7 percent to an average of 34.6 
percent during the 1995, 1996, and 1997, seasons. This represented a 35 
percent increase in groundfish retention, not including sablefish.
    The halibut discards that occur during the directed sablefish 
fishery have gone from 21.1 percent in 1994 to an average of 13.03 
percent during the 1995, 1996, and 1997, seasons. This represented a 38 
percent decline in halibut discards. Discards of halibut under the IFQ 
program in the directed sablefish fishery are largely halibut that are 
less than the legal size for retention.
    The discards of rockfish and pacific cod in the IFQ fisheries are 
significantly the result of the rockfish and cod quotas being achieved 
during the race for fish in those fisheries, which then result in 
regulatory discards for the remainder of the year for IFQ fisheries. 
The majority of groundfish discards in the IFQ fisheries are flounders 
and skates, for which markets have not yet been adequately developed.
    In summary, according to the cited evidence and analysis through 
1997, the retention of sablefish has remained in the 97 percent range 
suggesting very little, if any, high grading. The discards of 
groundfish in the directed sablefish fishery reduced 39 percent, for a 
84.9 percent retention of everything caught. The fish currently 
discarded are primarily skates and flounders for which markets are not 
available. The halibut discards in the sablefish fishery declined 38 
percent. The IFQ program has, therefore, helped reduce bycatch 
significantly. Data for 1998 and 1999 are not available.
Excess Harvesting Capacity
    The SEIS made a number of comments with regard to excess harvesting 
capacity. ``The fact that there are too many vessels has been 
identified as a problem.'' (SEIS, page 2-52.) ``The Council has 
considered the introduction of a quota system as a means to enable 
vessels to leave the industry to receive some recompense through the 
sale of quota shares for so doing.'' Id. ``It is hoped that following 
introduction, transfer of quotas will lead to less efficient vessels 
leaving the industry.'' Id.
    In 1994, the number of vessels participating in the sablefish 
fishery opening numbered 1,139, and in the halibut fishery, 3,450. The 
number of vessels participating in the sablefish fishery in 1995, 1996, 
1997, and 1998, were 517, 503, 504, and 449 respectively. The 
corresponding numbers of halibut vessels were 2,057, 1,962, 1,925, and 
1,601. (RAM Report, NMFS, 1999, page 27.)
    The reduction of vessels as envisioned by the SEIS is working and 
is being accomplished without any Federal buy-back assistance. The 
fleet is using the equity value of quota shares to buy itself out. The 
FVOA estimates that, in order for the Federal Government to have 
achieved a fleet reduction in the halibut fishery from 3,450 vessels in 
1994, to 1,601 in 1998, a reduction of 1,849 vessels, it would have 
cost at least $172,432 for each vessel and its potential harvest of 
fish This means that the halibut fleet has self-rationalized itself in 
the amount of $318,822,000 ($172,432  1,849 vessels) in 4 
years, without any Federal assistance.
    There are no mechanisms comparable to IFQ's in terms of cost 
effectiveness in reduction of a fleet. The taxpayer cost of one New 
England buy-out was $23 million, and the impact was minimal.
    One of the options the North Pacific Fishery Council seriously 
looked at, when it was considering whether to adopt IFQs for the 
halibut fishery, was a license limited entry program that would have 
reduced the halibut fleet from 5000 vessels to less than 1000 vessels. 
This option would have provided no compensation to the 4000 vessel 
operators eliminated from the fishery, and accounts, in large part, for 
the adoption of the IFQ alternative.
Product Quality, as Reflected in Halibut and Sablefish Prices
    The SEIS made numerous predictions regarding the expected effects 
on product quality, the availability of fresh halibut, and ex-vessel 
prices. One of the primary goals of the IFQ program was to provide high 
quality fresh halibut on a continual basis. The 24-hour openings in the 
derby fisheries limited the ability of fishermen and processors to 
provide fresh halibut to brief periods of the year, and to very few 
customers. For example, the Hotel Captain Cook, in Anchorage, Alaska, 
had to import fresh halibut from Canada to supply its customers, even 
though Alaska produced more halibut than did any other place in the 
world. ``. . . I mention the Crow's Nest Restaurant in the Hotel 
Captain Cook, which has a reputation of serving nothing but fresh 
halibut. Prior to IFQs, most of the year we flew fresh halibut in from 
Vancouver.'' (Letter from the Honorable Walter J. Hickel to Mr. Bob 
Alverson, August 27, 1997.)
    The SEIS had the following specific expectations with regard to the 
IFQ program. First, the program would provide the flexibility in 
scheduling landings that is necessary for fishermen and processors to 
take advantage both of the latent year round market for fresh halibut 
and the seasonal consumption patterns for sablefish, and to decrease 
storage time and costs for the halibut and sablefish that are frozen. 
Second, the program would increase the quality of landed halibut and 
sablefish, by decreasing the opportunity cost of the time required to 
assure that the catch is quickly dressed and cared for. Third, the 
program would eliminate the brief, intensive openings that result in 
such large concentrations of landings that unloading and processing 
delays can decrease product quality and prices. (SEIS, page 2-4.)
    Flexibility in scheduling landings to take advantage of a year-
round market for fresh halibut and seasonal consumption patterns is 
evident from the IPHC monthly landing reports for the 1995 through 1998 
seasons. (RAM Report, NMFS, 1999, page 12.) The fleet has spread its 
landings over the entire time provided, all 8 months. This has allowed 
the fresh fish market to absorb approximately 75 percent of the 
harvest. The initial forecast by the SEIS was 50 percent. (SEIS, page 
2-5.)
    With regard to storage costs and savings, the SEIS stated, ``If 75 
percent of landings currently are frozen and if an IFQ program would 
result in only 50 percent being frozen, the cost savings in 1990 would 
have been $4.2 million ($0.32 per lb.  25 percent of 52.6 
million lbs.).'' (SEIS, page 2-5.) With 75 percent of the harvest now 
going to the fresh markets, cold storage saving in terms of 1990 
dollars is $9.8 million. ($0.32 per lb.  50 percent of 
61,200,000 lbs. (1999 quota)). This saving thus is over twice that 
forecasted by the SEIS. Additionally, in terms of product quality, the 
SEIS assumed, on average, that halibut was frozen 6 months a year. This 
is no longer the case, and the quality is, therefore, higher than 
anticipated.
    The SEIS stated, ``The price increase for sablefish is expected to 
be less than for halibut, because the potential benefits from the fresh 
fish market are probably less for sablefish''. (SEIS, page 2-5.)
    The SEIS greatly underestimated the Japanese frozen market for 
sablefish, and the marketing advantages that IFQs gave U.S. fishermen, 
in terms of negotiating leverage in this foreign market. . . . (Harvest 
guidelines have decreased as well, which has put an upward pressure on 
prices.) Japan consumes over 97 percent of the U.S.- and Canadian-
harvested sablefish. Since the establishment of the IFQ program, the 
sablefish price has steadily increased. The 1997 average price to 
fishermen would conservatively be estimated at $3.70 per dressed pound. 
The NMFS assumes a 63 percent recovery rate between dressed and round 
sablefish, therefore in terms of round weight, the price would be $2.33 
per pound.
    The SEIS estimated that the round pound price for sablefish would 
increase $0.05. That document stated, ``In 1991, this would have been a 
$0.05 per pound round weight increase in the ex-vessel price or about a 
$2.8 million dollar increase in ex-vessel value.'' (SEIS, page 2-5.)
    The price for dressed sablefish in 1991, based on the SEIS, was 
$1.59 per dressed pound or $1.00 per round pound. The 1997 round price 
of $2.33 converts to a 1991 price of $1.98, using a consumer price 
index regression of .849. In terms of 1991 dollars, the IFQ program 
added $0.98 per round pound to the price of sablefish. In terms of the 
allocated 1997 quota shares, the added value to the resource is 
$29,629,207, in 1991 dollars. ($0.98 x 30,233,885 1997 round pounds) 
The prediction of a $2.8 million gain, therefore, was very greatly 
underestimated. In terms of taxes to the State of Alaska, under the 3.3 
percent raw fish tax, the gain has been $957,000 per year on the 
average, through 1997.
    With respect to halibut the SEIS predicted the following: ``In 
summary, it is estimated that an IFQ program would increase halibut ex-
vessel prices by $0.04 to $0.68 per pound. Given the 1990 landings of 
52.6 million pounds, the resulting increase in the ex-vessel value of 
the fishery would have been from $2.1 million to $35.8 million.'' 
(SEIS, page 2-5.)
    The SEIS used a 1990 value for halibut at $1.78 per pound. The 
prices for halibut since the IFQ program was initiated in 1995 has been 
in the $1.90 to $2.40 range in the Seward Alaska area. Prices in the 
Seattle area are generally 35 to 60 cents above Seward prices, largely 
reflecting transportation costs. Assuming an average price for 1997 of 
$2.25 per pound, and using a consumer price regression of .814, the 
1990 value would have been $1.83 per pound. Hence the added ex-vessel 
value to the industry in terms of 1990 dollars is approximately 5 
cents. This would mean an added ex-vessel value to the fishermen of 
$2.5 million. Consequently, although there has been, in fact, an 
increase in price paid to the fisherman, the amount has been at the 
lower end of the prediction.
    It should be noted, however, that this value may be somewhat 
misleading, in that the halibut industry has completely changed since 
the implementation of the IFQ program. There are no more long lines of 
fishing vessels waiting to deliver halibut. Processors no longer have 
product stacked on their processing floors for days at a time because 
freezers are too full. Halibut is now being flown to markets all over 
the United States and Europe. Prior to the IFQ program, containers of 
frozen halibut were transshipped to the Seattle area for 
redistribution. Now, significant amounts of halibut are air freighted 
out of Anchorage, Alaska. There has been an added cost in air 
transportation to get good quality fresh fish to distant markets, which 
does not readily appear as an additional value when only looking at the 
price the fishermen receives. There are new businesses in air-
freighting as well as long-haul trucking out of Anchorage that were not 
envisioned prior to the IFQ program.
    The industry has been revolutionized, and the most important 
quality aspect for halibut of the new system is shelf life. The better 
the quality at the boat, the longer the fresh fish can be available to 
consumers. The need for good quality to ensure shelf life for halibut 
now is the driving force on prices paid to the harvesters. A letter 
from Dory Seafoods states:

          The majority of the high quality buyers want to know when was 
        the fish caught and how old will the oldest fish be when it is 
        received in the market place. Many buyers will not buy old 
        fish, or if given a choice, they will pay more for fresher fish 
        with a longer shelf life.
          I believe the overall quality has improved on air shipments 
        out of Alaska. The fishermen have more time to dress, ice and 
        take care of the product on board the fishing vessels. In 
        addition, the processing plants are receiving smaller 
        quantities per day and, in most cases, are able to ship the 
        product out the same day as received. As a result, the halibut 
        is handled much quicker and received in the market place in 
        better shape than in pre-IFQ years. [Letter from Dory Seafoods 
        to Robert D. Alverson, August 28, 1997.]

    There have been complaints from several shore-side processors that 
they are not doing well under the IFQ program. It is clear that the raw 
product cost has not changed very much for halibut from the 1990 
prices. It is also evident that the frozen market nature of sablefish 
makes all ports competitive for sablefish. More importantly, as shown 
below, the landings per port have not changed materially. What the 
fishermen do notice is that those processors that have available to 
them good and reliable transportation, either air or long-haul trucking 
routes out of such locations as Anchorage seem to be very competitive 
for halibut. Those who have chosen as a business decision not to be 
active in fresh fish marketing probably have lost market share. 
Processors in western Alaska and the Dutch Harbor area have some access 
to the fresh markets, but with more difficulty. In these areas, the 
landed halibut generally reflects a frozen product price. In the case 
of sablefish, the product must be frozen for export to Japan, and 
therefore, all Alaskan ports with freezer capacity should be able to 
participate in that fishery.
    Sablefish is unique, in that the final destination is Japan or 
other Asian markets. Sablefish has very few fresh fish sales. The 
nature of the flesh quality and high oil content make it necessary to 
freeze the product. The distribution of sablefish before and after IFQs 
were implemented can be seen in the RAM reports. There has not been any 
significant change in landings to particular ports of call. (NMFS 1999 
IFQ Report.)
    In summary, it is evident that quality has improved and halibut is 
now available fresh throughout an 8-month period. Some of the 
additional values to the fishermen, considering some of the predictions 
of the SEIS, are $8.2 million in annual average savings in cold storage 
costs for halibut; $2.5 million of additional annual average ex-vessel 
value of halibut; and $29 million in added annual average export value 
of sablefish.
    The SEIS discussed savings in gear, food, bait, and fuel costs to 
the fleet. That analysis estimated annual savings of $1.8 to $2.5 
million for food; $3.1 to $4.0 million for fuel; $20.0 to $28.0 million 
for opportunity cost of labor, and $9.2 to $11.7 million for fixed 
costs. This statement does not attempt to quantify these actual 
savings, although they have materialized in all of these categories. 
These savings and additional values to the fleet have resulted in at 
least a $75 million net average annual benefit to the industry.
Safety of Fishermen
    The SEIS stated:

          An IFQ program is expected to increase vessel safety by 
        reducing substantially the incentive fishermen have to 
        disregard factors that increase the risk of accidents. However, 
        due to a lack of reliable data and methodological problems, it 
        is hard to provide quantitative estimates on the linkages 
        between vessel safety and other factors, such as management 
        practices. (SEIS, page 2-3.)

    In the recently released book, Fishing Vessel Safety, Blueprint for 
a National Program, the National Research Council noted that commercial 
fishing has one of the highest mortality rates of any occupation and 
that safety has largely gone unregulated. (Page 142.) While attributing 
a large portion of the safety issues to the vessel (e.g., its 
structure, equipment, and crew), the authors did consider fishery 
management practices to be one of three major external influences on 
vessel safety. (Page 131.) Allocation conflicts have ``resulted in a 
highly competitive operating environment in which fishermen may take 
unnecessary risks to maintain their livelihood''. (Page 132.)
    During the open access halibut ``derbies'' which predated the IFQ 
program, many people lost their lives. In 1992, during the two-day 
openings in the Gulf of Alaska, six people died.
    In a report from the U.S. Coast Guard, by Captain B.I. Merchant, 
September 6, 1996, there was comment on the safety record for the first 
year of the IFQ program. The report focused on the derby years, 1992-
1994, and the first IFQ year, 1995. The conclusions were that search 
and rescue attempts over the 8-month 1995 IFQ season were approximately 
half the number recorded during the two or three 24-hour seasons for 
each of the years, 1992, 1993, and 1994. Specifically, there were 15 
search and rescue attempts in 1995, compared to 33 in 1994, and 26 in 
1993.
    The report stated:

          Of note, is the fact that no lives were lost in the four 
        vessel sinkings that occurred during the 1995 IFQ season . . . 
        fishermen have been choosing periods of fair weather to fish. 
        This seems to confirm the premise that the I.F.Q. system 
        provides a framework where each master has the greatest 
        possible control over safety issues. (Page 1--Appendix 13)

    In reports completed by Pacific Associates, a highly qualified 
fisheries consulting organization, search and rescue cases for the 
derbies from 1991-1993 were logged at 216, or an average of 30 per 
derby opening. To date, after two and one-half seasons, there has been 
one death during IFQ operations. Of the 22 vessel losses in 1996, due 
to fire and sinking in Alaskan waters, only one vessel is identified by 
the U.S. Coast Guard as an IFQ participant. The 1999 RAM Report states 
relative to reflecting the following. In addition to its enforcement 
responsibilities, the Coast Guard also monitors safety at sea, and 
reports that, during the 1998 IFQ season, there were 11 Search and 
Rescue (SAR) missions undertaken (fifteen in 1995, seven in 1996, and 
nine in 1997). There were no sinkings in 1998 (four in 1997, two in 
1996, and two in 1997), and two lives lost (none in 1995, two in 1996, 
and one in 1997). In the 3 years prior to the IFQ fishery, there were 
an average of 28 SAR missions, two vessel sinkings, and two lives lost 
during the short derby seasons. Those deaths that have occurred since 
the IFQ program began have not been due to heavy weather accidents. 
Three of the deaths have occurred while the vessels were moored in 
harbor.
    As noted above, due to the high loss of life in commercial fishing 
activities, the 104th Congress enacted, in section 106(b)(10) of the 
Sustainable Fisheries Act, National Standard 10, which provides, 
``Fishery conservation and management measures shall promote the safety 
of human life at sea.'' 16 USC 1851(a)(10). Senator Patty Murray stated 
during the Senate floor debate on S. 39, the Sustainable Fisheries Act:

          . . . This race for fish creates serious safety 
        considerations in many fisheries. Under this race, fishers feel 
        compelled to keep fishing even when the weather or conditions 
        of the vessel or health of the captain or crew would suggest 
        otherwise. Unless fishery management plans provide 
        opportunities and incentives for fishers to sit out storms and 
        return to port for repairs or medical attention, lives will 
        continue to be lost. . . .
          For this very reason we included promotion of safety of life 
        at sea in the National Standards of the Magnuson Act. 
        (Congressional Record, September 18, 1996 at S10818.)

Economic Stability in the Fixed Gear Halibut and Sablefish Fisheries 
        and Affected Communities
    The Commerce Department, in approving the IFQ program, recognized 
that the open entry fishery for halibut and sablefish had created an 
extreme excess of capital investment. The Department observed that the 
excess capital was causing instability and uncertainty in the fishery. 
The SEIS states, ``However, once the adjustments are made, IFQs would 
decrease uncertainty and increase the ability of fishermen and 
processors to plan their participation in the halibut fishery.'' (SEIS, 
page 2-13.)

          Of the 7,992 different vessel owners who participated in the 
        halibut fishery between 1984 and 1994, 38 percent did so for 
        only 1 year while only 9 percent participated all 7 years. It 
        is estimated that 1,443 vessel owners participated in the fixed 
        gear sablefish fishery between 1985 and 1990. Of these, 45 
        percent participated in only 1 year and only 6 percent 
        participated all 6 years. (SEIS, page 2-13.)
          This is the case in terms of both short and long-term 
        planning. In areas with only a few very short openings, if a 
        vessel breaks down, a fisherman might miss all or a substantial 
        portion of the season. Likewise, increased fishing effort does 
        not allow processors to plan for consistent or orderly 
        processing. The short-term discontinuities make planning 
        difficult. (SEIS, page 2-12.)
          A further benefit of quota systems is deemed to be the degree 
        of certainty given to participants upon which to base their 
        investment and fishing decisions. It is argued that if people 
        are aware of the quantity of fish available to them that they 
        will be able to make soundly based decisions about the future. 
        (SEIS, page 2-54.)

    The vessel owners are now able to fish and time their operations, 
not only around bad weather, but also with a view to market 
opportunity, so they can efficiently operate in other fisheries that 
may otherwise have been unavailable to them because of brief, fixed 
season openings. Prior to the IFQ program, thousands of vessels had 
two, 1-day earning opportunities. Today, earning opportunities, through 
consolidation, are creating stability within the harvesting sector. 
Stability has been enhanced by the constraints on quota share 
concentration, through the use of ownership caps, vessel caps, and 
vessel classes. These were designed to prevent too great an 
accumulation of quota share ownership by individuals in the fleet and 
to ensure processors an adequate number of harvesting vessels. 
Ownership caps and vessel cap limits are cited in the RAM report. 
(Pages 15 and 16.)
    The SEIS stated that, under the IFQ system, people would be able to 
make sound business decisions about their future. The system was 
designed to encourage transfers of quota within certain limits. It was 
designed to encourage an owner-operated fleet. This was provided by 
requiring new purchasers of IFQs to be on the vessels when the quota 
shares were being fished. It is clear that the program is functioning 
as designed. The owner-operator provision is providing stability for 
crews and vessel owners who work on deck.
    Some members of FVOA have chosen to sell, and others have chosen to 
purchase, quota shares. The results are that for those who have chosen 
to purchase, the owners and the crews are earning more. Those who have 
sold out have received some compensation for their past investment and 
efforts. The crews that have been displaced to date are those who were 
participating in two, 1-day jobs. The SEIS states on this issue, the 
following, ``In considering the employment effects of an IFQ program, 
it should be remembered, that many fishermen take a break from other 
fishing or non-fishing activities to participate in the halibut 
fishery. Therefore, their alternative to participation in the halibut 
fishery is not unemployment.'' (SEIS, page 2-10.)
    In terms of stability for the local communities, there have been 
some claims that the IFQ program has adversely affected the ports of 
Kodiak and Dutch Harbor. The 1997 IPHC Annual Report list by port the 
halibut landings as follows:
    1. Kodiak: 20 percent, 9,103,000.
    2. Homer: 12 percent, 5,242,000.
    3. Seward: 9 percent, 3,876,000.
    4. Dutch Harbor: 6 percent, 2,855,000.
    5. Sitka: 6 percent, 2,800,000.
    The RAM September 1997 report, page 50, shows that, in 1995 and 
1997, the top five halibut ports remained the same as in 1994, and the 
percentage of landings was similar.
    With regard to sablefish, the SEIS did not provide analysis similar 
to that for halibut, however, in looking at the 1990 data provided in 
that document, four of the top five districts are still in the top five 
for landings, when compared to the 1997 September RAM report, page 50.
    1. Wrangel, Petersburg: 7,121,000 Lbs., 26 percent.
    2. Sitka Borough: 6,131,000 Lbs., 22 percent.
    3. Seward Borough: 4,302,000 Lbs., 15 percent.
    4. Juneau Borough: 2,481,000 Lbs., 9 percent.
    5. Kodiak Island Borough: 2,134,000 Lbs., 8 percent.
    6. Aleutian West Borough: not available.
    The IFQ program was designed to have a minimal impact on 
communities, by preventing a massive redistribution of landings. This 
was accomplished significantly with the 3-year qualification period of 
1988, 1989, 1990, where there had to be a landing to qualify for any 
poundage in one of these years. This helped ensure that quota holders 
were still active and operating in the same location as was 
historically the case. Clearly, this has been accomplished as shown by 
the hard evidence of landing reports. An argument of economic 
disadvantage to Kodiak or Dutch Harbor based on IFQ poundage being 
delivered elsewhere, cannot be substantiated.
    The instability of these communities is most likely the result of 
the remaining pulse-type groundfish fisheries. The fishermen in the 
Kodiak area have three, 3-day pollock openings; Pacific cod has barely 
a 2-month operation. The landings in Kodiak were down between 1995 and 
1996 by 160 million pounds; none of this reduction could be attributed 
to the IFQ program.
    Similarly, landings in Dutch Harbor were reduced by 105 million 
pounds between 1995 and 1996. The argument that this was due to the IFQ 
program is similarly insupportable. The 1999 RAM Report, pages 13 & 14, 
show the same ports in the top 10 as in previous years for halibut and 
sablefish.
Rural Coastal Community Development of a Small Boat Fishery
    The SEIS made the following statements and conclusions regarding 
rural coastal community development of a small boat fleet:
    The Council wished to enhance the opportunities for rural coastal 
communities to participate in the sablefish and halibut fisheries. It 
was in pursuit of this objective that the western Alaska community 
development program was inserted into the preferred alternative. (SEIS, 
page 55.)
    Opportunities for small communities will be enhanced by having 
portions of total allowable catches set aside. (SEIS, page 55.)
    Many of the constraints imposed on transferability have been 
introduced to preserve a small boat fishery for sablefish and halibut. 
(SEIS, page 55.)
    The community development quota (CDQ) program was specifically set 
up for western Alaska rural communities. The CDQ halibut quotas for 
1997 amounted to 1,884,000 dressed pounds and 639,334 rounds pounds of 
sablefish. In the halibut regulatory area of 4C, all of the CDQ quota 
was harvested and landed by the local community and similarly for the 
participants in area 4E.
    The ex-vessel value of CDQ-landed halibut and sablefish for 1997 
will be approximately $4,980,000 (Dutch Harbor price for halibut $1.90; 
sablefish $3.60/dressed). The CDQ halibut and sablefish quotas thus are 
a significant benefit to the coastal community of western Alaska and 
the small vessels, which operate out of those communities.
    The Gulf of Alaska's small boat fleet vessels, less than 35 feet in 
length, have a secure position in the fisheries. The Secretary agreed 
to certain transferability considerations, which placed the poundage 
earned by initial recipients permanently in the vessel length category 
operated by the initial recipients. This effectively prevents vessel 
owners who operate vessels larger than this from purchasing and 
absorbing quota traditionally landed by the small boat fleet.
    The small boat fleet has been additionally enhanced with recent 
amendments that allow quota share holders operating small vessels to 
buy quota from larger vessel classes and fish that quota on the smaller 
vessels. IFQ holders operating larger vessels cannot use smaller vessel 
class quota on their larger vessels. This new provision gives smaller 
vessels, which tend to operate close to shore, more purchasing 
opportunity.
    As noted above, the 1996 amendments to the Magnuson-Stevens Act, 
provided for a government loan program funded, in part, from landing 
fees of the IFQ participants. 16 U.S.C. 1853(d)(4). Those who can apply 
for the loan are fishermen with little or no holdings of IFQs. The 
amount per loan is limited to about 8,000 lbs. of resource, and anyone 
holding or controlling 50,000 lbs. or more of quota is not eligible for 
the loans. Congress chose to help out the crews and those fishermen 
looking for upward mobility in the industry. This program should help 
rural citizens who have few cash-generating industries.
    In summary, owners of small vessels have a guaranteed pool of quota 
and have the opportunity to gain more than their traditionally 
allocated share. Rural communities, dependent on smaller vessels, have 
been given compensating advantages over the communities dependent on 
larger vessel classes. In addition, the loan program should improve 
their ability to become an increasingly significant part of the 
industry. The western rural communities have been provided an 
allocation to ensure their participation in the adjacent coastal 
waters.
                               conclusion
    By any rational measure, the halibut/sablefish IFQ program has been 
a great success. With this example firmly established, individual 
transferable quotas should be available to fisheries managers 
nationwide.
                                 ______
                                 
   Statement of Kay H. Williams on behalf of Save America's Seafood 
                           Industry Coalition
    Madam Chairwoman and members of the Subcommittee, my name is Kay 
Williams. I am Vice-Chairperson for Save America's Seafood Industry 
Coalition. We have members in all five Gulf states. On behalf of Save 
America's Seafood Industry Coalition, I would like to offer the 
following comments for consideration in reauthorization of the 
Magnuson-Stevens Fishery Conservation and Management Act.
           gulf of mexico red snapper research (section 407)
    The research provided for in this section has been completed. This 
section provides, in Subsection (b) a prohibition, in Subsection (c) 
that a referendum be conducted by the National Marine Fisheries Service 
of persons holding commercial red snapper licenses, to determine if a 
majority support proceeding with an IFQ program and in Subsection (d) 
makes the recreational red snapper allocation a quota and provides for 
closure of the fishery when the quota is reached. We support all of 
section 407. Save America's Seafood Industry supports fair and 
equitable regulations among all sectors of the Industry. Fishermen 
should have a say in how to operate their business and IFQ/ITQ are not 
good for all fisheries. With all of the problems, with the IFQ/ITQ 
programs that are going on now, we should learn from these mistakes 
before creating more.
          our thoughts on council process/fisheries management
    NMFS has become too authoritarian and unresponsive to Councils. 
NMFS has embarked on a cyber-modeling agenda to the extreme, 
unsupported by adequate empirical data. NMFS and its subcontractors 
have been negligent in analyzing and interpreting collected data in a 
timely fashion. The implementation process has become so laborious and 
time consuming that management actions become delayed beyond effective 
timelines. NMFS has misconstrued congressional intent in developing 
``Guidelines''; for Magnuson-Stevens (SFA).
                        recommendations for sfa
    Final action on any Council approved management action must be in 
effect for a minimum of 3 years. This would include TACS, quotas, etc., 
unless overturned by ``Emergency Action.'' All Council actions 
submitted to the Secretary of Commerce must be implemented within 1 
year of their submission. For stocks that are demonstrably improving, 
no more stringent regulatory actions can be taken without a \3/4\ 
majority Council vote, and never unilaterally by NMFS. NMFS science 
should be based, wherever possible, on current empirical data. Where 
data gaps exist, these should be given priority as research needs 
within NMFS.
    When NMFS projection models are deployed, they must first be tested 
in the field and validated in real world ecosystems. Maximum 
sustainable yields cannot be set at a level beyond the highest 
historical catch levels of stocks which are deemed overfished. 
Rebuilding periods of demonstrably improving stocks should be 
determined equally by socio-economic as well as biological 
considerations. The `` Guidelines'' developed by NMFS must be approved 
by a majority of Councils.
      recommendations for red snapper management (as part of sfa)
    Red snapper should be considered as a special management species, 
independent of the management regime of other species. This is 
justified because of:
    1. Its complex socio-economic parameters
    2. The relationship with and impact on the shrimping industry.
    3. The massive changes in available habitat with concurrent changes 
in population dynamics.
    4. The uncertain data base used in developing stock assessments.
    5. The disagreement regarding effort data in red snapper harvest.
    6. The historical failure of currently used red snapper projection 
models to correctly predict stock health.
    7. The inconsistent history of red snapper management measures.
    8. The public distrust of current management practices.
    Red snapper management should adopt the following regulations: (4 
fish bag limit with a minimum 15-inch size limit with a 6-million pound 
quota for the recreational sector, and a 14-inch size limit with a 6-
million pound quota for the commercial sector) for a minimum of 3 years 
(through 2002). The red snapper stock is not in trouble. The 
recreational and commercial sector has harvested their quota earlier 
and earlier each year. The requested smaller size limit in the 
commercial sector is necessary because of release mortality rates. 
During this 3 year or longer period, research priority should be given 
to alternative measures of management, employing more empirical and 
less theoretical measures, and based on fishery independent data, to 
ensure the continued rebuilding of this stock.
                               user fees
    We do not support user fees. If you are going to allow user fees, 
then in order to be fair and equitable, as stated in the national 
standards, you would need to develop a system that establishes user 
fees for the recreational sector.
                          conflict of interest
    State Director's should not be allowed to have a vote on the 
councils. The states receive funds from the Wallop-Breaux fund which 
presents a potential conflict of interest. We do feel that they should 
be allowed to participate in council discussions.
    Thank you Madam Chairwoman and members of the Subcommittee for the 
opportunity to share our opinions on this important legislation which 
is up for reauthorization.
                                 ______
                                 
                                   Fishermen's Finest, Inc.
                                        Seattle, WA, July 27, 1999.
Hon. Olympia J. Snowe, Chair,
Oceans and Fisheries Subcommittee,
Committee on Cimmerce, Science, and Transporation,
Washington, DC.
Re: Oceans and Fisheries Subcommittee Hearing, July 29, 1999 Written 
Testimony--Magnuson-Stevens Act Reauthorization

    Dear Senator Snowe: My company manages four mid-sized head and gut 
trawl and freezer-longline vessels operating in the fisheries of the 
North Pacific. Thank you for inviting our company to submit testimony 
for the committee to consider as it begins looking at the 
reauthorization of the Magnuson-Stevens Act.
    1. Congress should not encourage the privatization of the fishery 
resource by encouraging Individual Fishing Quotas and American 
Fisheries Act type allocations. We have long objected to building 
fences and subdividing fisheries. We have consistently supported 
approaches such as the North Pacific Council's Moratorium and License 
Limitation programs over other limited-entry approaches. In accordance 
with this, we have steadfastly encouraged policymakers not to pursue 
individual fishing quota (IFQ) provisions which tend to benefit larger 
more liberally capitalized companies rather than traditional fishing 
vessel owners.
    2. Congress should rectify the inequities caused by the American 
Fisheries Act in a manner that does not hand out more special 
privileges. In accordance with our conviction that allocating specific 
fishery resource to individuals, especially on a species by species 
basis, is harmful to traditional fishing vessel owners and operators, 
we opposed the pollock management provisions of the American Fisheries 
Act (AFA).
    The American Fisheries Act (AFA) was enacted through a process of 
negotiations between large factory-trawl and shore-based processing 
plant interests. The primary effect of the AFA on our company has been 
to deprive our vessels of access to the critical directed pollock 
fishery. While our vessels' harvests were similar in size to many 
catcher vessels', our eligibility to participate in the pollock fishery 
was based on a comparison to large factory-trawlers, not mid-sized 
vessels. The ``inconsequential'' pollock fishery catch of our vessels 
during the AFA qualification period would have been worth nearly $2M 
this year.
    Our company has been significantly harmed by the denial of access 
to the pollock resource. Our companies participated in the 
``Americanization'' of the pollock and groundfish fisheries beginning 
in the 1980's, but due to careful engineering of the AFA landing 
qualification requirements, our vessels were cut out of the pollock 
fishery by the AFA.
    Currently there are several vessels seeking special relief from 
Congress for the inequities of the AFA. Rather than grant more special 
access for the few, we recommend the following approach for addressing 
the harm caused by the AFA:
    1. Allocate a small percentage (e.g.: 4 percent) of the directed 
pollock quota to fishing vessels not otherwise qualified to fish, and 
not specifically prohibited from fishing, under the AFA. This provision 
would not affect the Moratorium or License Limitation programs already 
approved by the North Pacific Fishery Management Council.
    2. Provide that the fishing vessels (catcher vessels and H&G 
vessels) harvesting this small quota pay the \6/10\ths of one cent 
landing fee on directed pollock. Thus the fishing vessels will not be 
reaping the benefit of a buyout paid for only by the catcher vessel's 
named in the AFA.
    3. Allow processors from any sector the right to process this open 
access quota of pollock. This right would address at least some of the 
concerns of the Fair Fisheries Coalition.
    I appreciate the Committee's considering these comments during the 
reauthorization of the Magnuson-Stevens Act.
            Sincerely,
                                                  Rudy A. Petersen.
                                 ______
                                 
Proposal for Open Access Fishing Vessel Allocation of Pollock under the 
                         American Fisheries Act
    This proposal is intended to provide compensation to all 
Moratorium/License Limitation Program qualified fishing vessels which 
were barred from participating in the directed pollock fishery under 
the American Fisheries Act (AFA).
    1. Modify Sec. 206(b) of the AFA as follows:
    ``. . . the remainder of the pollock total allowable catch . . . 
shall be allocated as follows:
    (1) 48 percent to catcher vessels harvesting pollock for processing 
by the inshore component;
    (2) 38.4 percent to catcher/processors in the offshore component;
    (3) 9.6 percent to catcher vessels harvesting pollock for 
processing by motherships in the offshore component; and
    (4) 4.0 percent to fishing vessels (as defined in Chapter 21 of 
Title 46, United States Code) not eligible to harvest pollock under 
Sec. 208 and not prohibited from harvesting pollock under Sec. 209.''
    2. Modify Sec. 207(b)(1) of the AFA as follows:
    ``(1) shall be six-tenths (0.6) of one cent for each pound round-
weight of all pollock harvested from the directed fishing allowance 
under section 206(b)(1) and (4); and''
                                summary
    This proposal would provide a small open access quota for fishing 
vessels (catcher vessels and head & gut vessels) not currently eligible 
to conduct directed fishing allocations for pollock. These vessels 
would be required to pay the buyout repayment fee levied on directed 
pollock harvests.
    The burden would be placed on the original AFA entitled sectors 
proportionately. 4 percent is offered as an example of an equitable 
allocation. No processing restrictions would be placed on this directed 
catch.
  

                                
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