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79-374 PS 2002

H.R. 4749, THE MAGNUSONSTEVENS ACT AMENDMENTS

OF 2002

LEGISLATIVE HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

May 2, 2002

Serial No. 107-111

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Tim Stewart, Chief of Staff

Lisa Pittman, Chief Counsel/Deputy Chief of Staff

Steven T. Petersen, Deputy Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

WAYNE T. GILCHREST, Maryland, Chairman

ROBERT A. UNDERWOOD, Guam, Ranking Democrat Member

Don Young, Alaska

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey,

Vice Chairman

Richard W. Pombo, California

Walter B. Jones, Jr., North Carolina

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

(III)

CONTENTS

Page

Hearing held on May 2, 2002 ................................................................................. 1

Statement of Members:

Farr, Hon. Sam, a Representative in Congress from the State of

California ....................................................................................................... 17

Prepared statement of ............................................................................... 21

Frank, Hon. Barney, a Representative in Congress from the State of

Massachusetts ............................................................................................... 9

Prepared statement of ............................................................................... 13

Gilchrest, Hon. Wayne T., a Representative in Congress from the State

of Maryland, Prepared statement of ........................................................... 1

Grucci, Hon. Felix J., Jr., a Representative in Congress from the State

of New York .................................................................................................. 6

Prepared statement of ............................................................................... 7

Hefley, Hon. Joel, a Representative in Congress from the State of

Colorado ......................................................................................................... 13

Prepared statement of ............................................................................... 15

Saxton, Hon. Jim, a Representative in Congress from the State of

New Jersey ................................................................................................... 7

Prepared statement of ............................................................................... 8

Underwood, Hon. Robert A., a Delegate in Congress from Guam,

Prepared statement of .................................................................................. 2

Young, Hon. Don, a Representative in Congress from the State of Alaska . 2

Prepared statement of ............................................................................... 5

Statement of Witnesses:

Grader, W.F. ‘‘Zeke’’ Jr., Executive Director, Pacific Coast Federation

of Fishermen’s Associations ......................................................................... 87

Prepared statement of ............................................................................... 89

Hayes, Robert G., General Counsel, Coastal Conservation Association ...... 62

Prepared statement of ............................................................................... 64

Hogarth, Dr. William T., Assistant Administrator for Fisheries, National

Oceanic and Atmospheric Administration, U.S. Department of

Commerce ...................................................................................................... 24

Prepared statement of ............................................................................... 26

Houde, Dr. Edward D., Professor, University of Maryland Center for

Environmental Science ................................................................................. 55

Prepared statement of ............................................................................... 57

Leape, Gerald, Marine Conservation Program Director, National

Environmental Trust, on behalf of the Marine Fish Conservation

Network ......................................................................................................... 68

Prepared statement of ............................................................................... 70

LeBlanc, Justin, Vice President, Government Relations, National

Fisheries Institute ........................................................................................ 81

Prepared statement of ............................................................................... 83

Savage, Ricks E., Chairman, Mid-Atlantic Fishery Management Council .. 30

Prepared statement of ............................................................................... 33

(1)

LEGISLATIVE HEARING ON H.R. 4749, THE

MAGNUSON-STEVENS ACT AMENDMENTS OF

2002

Thursday, May 2, 2002

U.S. House of Representatives

Subcommittee on Fisheries Conservation, Wildlife and Oceans

Committee on Resources

Washington, DC

The Subcommittee met, pursuant to call, at 2:06 p.m., in room

1334, Longworth House Office Building, Hon. Wayne T. Gilchrest

[Chairman of the Subcommittee] presiding.

Mr. GILCHREST. The Subcommittee on Fisheries Conservation,

Wildlife and Oceans will come to order. I apologize to the

Chairman of the Transportation Committee for being late. My

watch said 10 to 2. My wife set it this morning.

I want to thank the Members for coming to testify at our

Magnuson-Stevens hearing. I ask unanimous consent that my

statement be included in the record.

[The prepared statement of Mr. Gilchrest follows:]

Statement of The Honorable Wayne Gilchrest, Chairman,

Subcommittee on Fisheries Conservation, Wildlife and Oceans

I would like to welcome our witnesses today. As most of you know, the reauthorization of the Magnuson–Stevens Fishery Conservation and Management Act has

been one of the top priorities of the Subcommittee. We have held six hearings during the 107th Congress on various aspects of the reauthorization. Following these

hearings, I have attempted to identify the most pressing problems with domestic

fisheries management and those areas of the Act that needed to be strengthened.

The bill that was released as a Discussion Draft was the result of that effort. I released it as a Discussion Draft because I wanted to solicit input before I introduced

the bill. I look forward to all of your comments on the Discussion Draft.

Let me start by saying that I believe the Act is fundamentally good. The basic

provisions give guidance to the Councils and the Secretary but provide flexibility to

the regions to address problems and situations in different manners. The legislation

we are looking at today is designed to give the Secretary and the Councils a nudge

in the directions we believe are important—rather than writing provisions that will

result in more lawsuits.

I have attempted to determine what areas of fisheries management still need improvement and which of these areas are the most important and pressing. I have

taken a prudent approach and attempted to address these areas in a realistic

manner—again to provide guidance with flexibility.

The current Magnuson–Stevens Act is a balancing act. There is a balance between

the needs of the fish and the economic needs of the fishermen and the fishing communities. There is a balance between the various components of the marine ecosystem. There is a balance between the various and often competing users of the

2

resource. I have attempted to maintain this balance, with the goal of restoring overfished populations and moving toward ecosystem-based management.

I look forward to the testimony of the witnesses and hope that we can have a constructive discussion that will lead to a comprehensive reauthorization that will continue to move us toward better management of the Nation’s fishery resources.

Mr. GILCHREST. I ask unanimous consent that Mr. Underwood’s

statement be included in the record.

[The prepared statement of Mr. Underwood follows:]

Statement of The Honorable Robert A. Underwood, a Delegate in Congress

from Guam

Thank you Mr. Chairman for holding this hearing today and for your continued

leadership on this very important issue. I also appreciate your ongoing efforts to ensure the sustainability of our marine fisheries now and in the future. We cannot

underestimate the importance of this goal.

Just yesterday, the National Marine Fisheries Service released it annual—albeit

six months late—Status of U.S. Fisheries report. The good news is, for the first time

since the report has been released, the number of stocks categorized as overfished

has actually declined. The bad news is, there are still more than 90 stocks in trouble, and our work is far from done. Perhaps of just as much concern is the hundreds

of stocks for which we have no information and are currently classified as ‘‘unknown’’. How long can fishing on these stocks continue before they too become overfished?

Still, the decline in the number of overfished stocks that we know about is a good

thing, and it highlights a very important point. Conservation measures to rebuild

fisheries—however difficult they may be—do work, and when they do, both the fish

and the fishermen benefit. Given that, and given the significant number of fisheries

still in trouble, now is not the time to undermine our commitment to rebuilding

these stocks. I am sure you would agree Mr. Chairman, and I look forward to working with you to ensure that the legislation moving through this Committee does not

weaken the current law, and provides the tools necessary to restore our marine

fisheries.

I am concerned, Mr. Chairman, that there has not been sufficient time for review

of the proposed bill by the broad range of interests, including the fishing industry

in the Western Pacific, who will all be impacted by any changes to the Magnuson

Act that are put in place. I hope we can work together to ensure that there is adequate opportunity for input from all interested parties before we move this proposal

or any bill to mark up.

Again, I thank you for your efforts and dedication to the protection of our marine

environment.

Mr. GILCHREST. We look forward to your testimony, and I yield

now to the Chairman of the Transportation Committee, Mr. Don

Young.

STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF ALASKA

Mr. YOUNG. I thank the Chairman. And I am also the Vice

Chairman of the Resources Committee. I want to make sure you

remember that, Mr. Chairman, because it is crucially important as

time goes by, if you don’t catch that, I hope you all—

Mr. GILCHREST. What was that again?

Mr. YOUNG. I am still Vice Chairman of the Resources; so, anyway, thank you, Mr. Chairman.

I do appreciate the effort that went into your bill. You tried to

find compromise on some important fishery management issues

and I would like to compliment you on this effort. I think it has

been a legitimate, well-done effort. While I recognize the lengths

3

you have gone to to find the balance, there are a few areas I would

like to go a little further in the bill.

While I think the Sustainable Fisheries Act was essentially a

good Act, it has led to more lawsuits under the Magnuson-Stevens

Act than ever before. With this reauthorization, we need to make

certain we are not allowing new lawsuits. We must also change the

provisions in the current Act that are leading to lawsuits. Fisheries

management should not be done by the courts.

As I mentioned, I think, Mr. Chairman, you have done a great

job and are on the right track with this bill. There are a few provisions that need further work, in my opinion. In particular, I know

the issue of adding birds to the definition of bycatch has been discussed by the environmental community. However, I am curious

what effect this will have in the real world. Longliners in the North

Pacific and the Bering Sea have taken many measures to reduce

bird bycatch. I am very concerned that adding birds to the definition of bycatch would force more restrictions on fishermen when

other causes of bird mortality can’t be addressed by the Councils

or the National Marine Fisheries Service.

Listen to that very carefully. If this was being included in the bycatch, they can eliminate the Councils and the works of the

National Marine Fisheries Service of accomplishing the goal.

The Essential Fish Habitat provision in this draft bill is a step

in the right direction in getting this provision back on track. When

the Resources Committee passed this language in 1995, I understood, we understood that this provision would be used to identify

discrete areas that were necessary, and let me emphasize that

word necessary, for specific fish species. I never, we never envisioned that the agency would warp the idea so much that we now

have huge areas of the oceans identified as EFH. It disturbs me

that with little or no science, huge areas are designated EFH. The

Act then requires reductions in gear impacts when we aren’t even

sure if it is necessary habitat.

Because EFH is so broadly identified and the Act requires Councils to minimize adverse impacts caused by fishing, they will be

tied up for years trying to figure out the impacts of all the gear

types on all different habitat types designated as EFH. Either that,

or the Councils or the agency will be in court explaining to a judge

why the mandate is impossible to meet with the current information levels. Had I known or had we known that would be the outcome, I probably would not have let the Senate bill get to the

House floor at the end of the 104th Congress. This is an example

of good intentions with bad implementation.

At this point I would recommend we redraft the existing EFH

provision to get the agency to go back to square one and try to get

it right this time. I know this may not be a popular idea, but we

never envisioned such a bureaucratic nightmare and lawsuit magnet. I know one way to limit it is to eliminate the law schools and

we wouldn’t have this problem. Especially when we attempted to

do the right thing—remember, we attempted to do the right thing

by giving fisheries habitat some protection. I find it outrageous

that some environmental groups are telling Congress not to review

or make changes to the EFH language because their lawsuits now

have the agency in compliance with the regulations. It is comments

4

like that which lead me to think we need to overhaul the total bill.

The requirement that gear impacts on EFH be modified is a real

problem. While I do believe Councils should do this, making it a

requirement is asking for lawsuits and gear battles over allocation.

We are already beginning to see the results of that.

My good friend Congressman Hunter has introduced legislation

to ban longline gear on the West Coast. This is a blatant attempt

by recreational fishing groups to hide behind habitat concerns to

get rid of the group they compete against for allocations. It has

nothing to do with habitat protection.

Now I have my good friend sitting at the table, Mr. Hefley, who

has worked with me all these years, has introduced legislation that

will ban certain types of bottom gear. While this may be a sincere

attempt to protect habitat, I believe it will actually have the opposite effect. I think this is an attempt to remove one gear type from

the fishery so that others can harvest those fish.

While well intentioned, Mr. Hefley, your bill does not differentiate between effects of bottom gear or sandy bottom where the effects may be temporary or insignificant and the effects on what

might really be sensitive habitat. It takes these important decisions

out of the hands of the regional Fishery Management Councils and

bans a specific type of fishing gear everywhere.

Again the Council, the North Pacific Council, which is my Council, has implemented time and area closures for bottom gear to

minimize the impact on truly sensitive habitat. I believe you, Mr.

Hefley, have recognized that blanket calls by environmental groups

for an outright ban on snow mobiles are a problem, so I would hope

you would understand that an outright ban on bottom gear will

have a huge economic impact on my fishermen and it really creates

problems.

Putting aside the economic impacts, by the way, it would be

about $185 million just off the coast of Alaska. Think about it, $185

million just off the coast of Alaska. The bill may actually have the

reverse effect of its stated purpose and may actually encourage the

use of smaller roller gear which may cause more damage to the

sensitive habitat. I believe we ought to rely on the Council. The

Council in my area has done an outstanding job, not at the whims

of competing gear groups that are more worried about allocation

than habitat, or by the environmental community trying to tie the

agency up in knots, consequently destroying the fisheries.

Again, Mr. Chairman, I look forward to working with you. In

crafting this bill, I think we have come a long ways. I think we

have a little further to go to make sure it is a good bill. I again

go back to EFH language authorizing action against virtually every

commercial fishery in the country for such violations as catching

fish, rocks, mud, worm tubes or clumps of seaweed. This is being

implemented by the agency under the current EFH provisions. I

really want you to reconsider what we have done by a piece of legislation that was really well intended—and I voted for it, you voted

for it. It was the right way to go and it is completely out of whack

at this time, and consequently, Mr. Chairman, we have a ways to

go on your legislation. I am willing to work with you, but let us

get facts on the table.

5

And, finally, I look forward to the testimony from the witnesses.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Young follows:]

Statement of The Honorable Don Young, a Representative in Congress from

the State of Alaska

Chairman Gilchrest, I appreciate the effort that went into the draft bill. You tried

to find compromise on some important fishery management issues and I would like

to compliment you for this effort. While I recognize the lengths you have gone to

find balance, there are still a few areas where I would like the bill to go further.

While I think the Sustainable Fisheries Act was essentially a good Act, it has led

to more lawsuits under the Magnuson–Stevens Act than ever before. With this reauthorization, we need to make certain we are not allowing new lawsuits, and we

must also change the provisions in the current Act that are leading to lawsuits.

Fisheries management should not be done by the courts.

As I mentioned, I think Chairman Gilchrest is on the right track with this bill.

There are a few provisions that need further work in my opinion. In particular, I

know the issue of adding birds to the definition of bycatch has been discussed by

the environmental community, however, I am curious what effect this will have in

the real world. Longliners in the North Pacific and the Bering Sea have taken many

measures to reduce bird bycatch. I am very concerned that adding birds to the definition of bycatch would force more restrictions on fishermen when other causes of

bird mortality can’t be addressed by the Councils or the National Marine Fisheries

Service.

The Essential Fish Habitat provision in this draft bill is a step in the right direction to getting this provision back on track. When the Resources Committee passed

language in 1995, we understood that this provision would be used to identify discrete areas that were ‘‘necessary’’—and let me emphasize that word ‘‘necessary’’—

for specific fish species. We never envisioned that the agency would warp the idea

so much that we have huge areas of the oceans identified as EFH. It disturbs me

that with little or no science, huge areas are designated EFH. The Act then requires

reductions in gear impacts when we aren’t even sure if its ‘‘necessary’’ habitat.

Because EFH is so broadly identified and the Act requires Councils to minimize

adverse impacts caused by fishing, they will be tied up for years trying to figure

out the impacts of all the gear types on all of the different habitat types designated

as EFH. Either that or the Councils or the Agency will be in court explaining to

a judge why the mandate is impossible to meet with the current information levels.

Had I known that would be the outcome, I probably would not have let the Senate

bill get to the House Floor at the end of the 104th Congress.

At this point, I would recommend that we redraft the existing EFH provision to

get the agency to go back to square one and try to get it right this time. I know

that may not be a popular idea, but we never envisioned such a bureaucratic nightmare and lawsuit magnet when we attempted to do the right thing by giving

fisheries habitat some protection. I find it outrageous that some environmental

groups are telling Congress to not review or make changes to the EFH language

because their lawsuits now have the Agency in compliance with the regulations. It

is comments like that which lead me to think we need to overhaul the language.

The requirement that gear impacts on EFH be modified is a real problem. While

I do believe Councils should do this, making it a requirement is asking for lawsuits

and gear battles over allocation. We are already seeing the results of that. Congressman Hunter has introduced legislation to ban longline gear on the West Coast. This

is a blatant attempt by recreational fishing groups to hide behind habitat concerns

to get rid of the group they compete against for allocations. It has nothing to do

with habitat protection.

Congressman Hefley has introduced legislation that will ban certain types of bottom gear. While this may be a sincere attempt to protect habitat, I believe it will

actually have the opposite effect. I think this is an attempt to remove one gear type

from the fishery so that others can harvest those fish.

While well intentioned, the Helfey bill does not differentiate between effects of

bottom gear on sandy bottom where the effects may be temporary or insignificant

and the effects on what might truly be sensitive habitat. It takes these important

decisions out of the hands of the Regional Fishery Management Councils and bans

a specific type of fishing gear everywhere. Again, my council, the North Pacific

Council, has implemented time/area closures to allow bottom gear, but minimize its

impact on truly sensitive habitat.

6

I believe Mr. Hefley has recognized that blanket calls by environmental groups

for an outright ban on snowmobiles are a problem so I would hope he would understand that an outright ban on bottom gear—which will have a huge economic impact

on my fishermen—has problems. Putting aside the economic impacts (which are estimated to be in the neighborhood of $185 million just off Alaska), the bill may actually have the reverse affect of its stated purpose and may actually encourage the

use of smaller roller gear which may cause more damage to sensitive habitat.

The issue of dealing with effects of specific gear on sensitive habitat needs to be

dealt with at the Council level and based on good science—not on the whims of competing gear groups that are more worried about allocation than habitat or by the

environmental community trying to tie the agency up in knots.

I look forward to working with Chairman Gilchrest to craft a bill that will eliminate lawsuits and create better fisheries management based on good science. I think

this draft bill is a step in the right direction.

Mr. GILCHREST. Thank you, Mr. Young. Your statement is heard

loud, clear, and understood. We will continue to work on this legislation to ensure fundamentally sound language for the conservation

of the resources in the ocean for the present generation and future

generations, and to the extent that we can reduce the energy that

goes into lawsuits and increase the energy and efficiency that goes

into conservation of the oceans, I look forward to working with you

on those particular particulars.

And I yield to Mr. Grucci. I ask unanimous consent that Congressman Grucci be allowed to sit with us in the Subcommittee and

ask questions.

Mr. Grucci, do you have any opening remarks?

STATEMENT OF THE HON. FELIX J. GRUCCI, JR., A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

NEW YORK

Mr. GRUCCI. Yes, Mr. Chairman, and I appreciate your graciousness in allowing me to sit in on this hearing today.

Thank you, Mr. Chairman, for allowing me to hear testimony on

this very important issue. My district lies in eastern Long Island

and is the home of many hard-working commercial fishermen.

These men and women work long and difficult hours to retain a

vital industry for Long Island. These commercial fishermen bring

over $150 million into the economy of New York and the surrounding area. I am deeply concerned about the great deal of rulemaking and regulation decisions made by the National Marine

Fisheries Service in the area of commercial fishing. Too often huge

tracts of waters are being closed hastily and based on questionable

scientific finding.

I am happy to support Chairman Tauzin’s Fisheries Science Improvement Act and I look forward to the ensuing debate on this important legislation.

Commercial fishermen have been vigilant stewards of the waters

they fish following the many difficult and complex regulations as

well as adapting to the closing of waters time after time. It is important that we keep in mind not only the livelihood of the fishery

but also of the fishermen. Economic viability and well-being of the

many fishing communities along our coastlines, commercial fishermen are already subject to too many complex laws regarding gear,

bad limits, days at sea, to mention just a few.

7

I am deeply concerned about the growing trend of rulemaking decisions by the National Marine Fisheries Service.

Thank you very much for the opportunity to be with you and I

yield back the remainder of my time.

[The prepared statement of Mr. Grucci follows:]

Statement of The Honorable Felix J. Grucci, Jr., a Representative in

Congress from the State of New York

Thank you Mr. Chairman. I appreciate your graciousness in allowing me to sit

in with your Subcommittee today and hear testimony on this very important issue.

My district lies at the Eastern End of Long Island and is the home of many hard

working commercial fishermen. These men and women work long and difficult hours

to retain a vital industry for Long Island. These commercial fisherman bring over

$150 million into the economy of New York and the surrounding area.

I am deeply concerned about the great deal of rulemaking and regulation decisions made by the National Marine Fisheries Service in the area of commercial fishing. Too often, huge tracts of waters are being closed hastily and based on questionable scientific findings. I am happy to support Chairman Tauzin’s Fisheries Science

Improvement Act and look forward to the ensuing debate on this important legislation.

Commercial fisherman have been vigilant stewards of the waters they fish, following the many difficult and complex regulations, as well as adapting to the closing

of waters time after time. It is important that we keep in mind not only the livelihood of the fishery, but also the fishermen.

Mr. GILCHREST. Thank you Mr. Grucci.

Mr. Saxton.

STATEMENT OF THE HON. JIM SAXTON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. SAXTON. Thank you, Mr. Chairman. It is good to be here. I

just wanted to make a short opening statement. Let me say first

I am a co-sponsor of Mr. Hefley’s bill and I have to apologize to my

friend Mr. Hefley whose bill I have co-sponsored. I forgot to tell you

that when we wrote that bill, we had to put a paragraph in it to

exempt Alaska. I am sorry.

Mr. HEFLEY. My mistake.

Mr. YOUNG. I told you.

Mr. SAXTON. Mr. Chairman, thank you for holding this hearing

today. I think it is very timely and important. I am particularly

pleased with the Highly Migratory Species section of the draft

Magnuson-Stevens bill in which the Secretary would be required

within 1 year to report to Congress on any nation that is fishing

in the Atlantic for HMS and is not in compliance with the conservation management provisions or rebuilding recommendations

enacted by the international management body.

The report will also include recommendations for action the U.S.

could take to ensure such compliance. This issue is important, as

you know. We are making some progress on some highly migratory

species, particularly swordfish. However, I continue to remain concerned. In the last Congress we came close to having—we did have

agreement, but we didn’t have funding for a bill which I thought

as a compromise measure would provide real conservation for highly migratory species. We did not get it enacted because of the funding provisions, and I continue to be concerned. The white marlin

population continues to fall, and there are those who are considering listing it as an endangered species. That is dangerous for the

8

entire Atlantic fishery because essentially it means that anyone

who is in a fishery that takes a white marlin bycatch would be prohibited from fishing; not a good thing. So I hope we can continue

to look at ways to address this issue, as it is extremely important

not only to those who are immediately involved in the fishery but

to others who would suffer great economic hardship were the various fisheries involved in white marlin bycatch to be essentially put

out of business.

So, Mr. Chairman, this is an important issue for my district as

I know it is for yours, and I ask that my entire statement be put

in the record.

Mr. GILCHREST. Without objection so ordered. Thank you Mr.

Saxton.

[The prepared statement of Mr. Saxton follows:]

Statement of The Honorable Jim Saxton, a Representative in Congress

from the State of New Jersey

Mr. Chairman, members of the subcommittee, I am pleased to be here today to

discuss this very important reauthorization, the Magnuson–Stevens Act. I believe

Mr Gilchrest’s discussion draft bill is a good first step to begin the discussions on

this important piece of conservation legislation.

I am particularly pleased with the Highly Migratory Species section of the draft

bill, in which the Secretary would be required, within one year, to report to Congress on any nation that is fishing for Atlantic HMS and is not in compliance with

the conservation and management provisions or any rebuilding recommendations

enacted by the international management body. The report will also include recommendations for action the U.S. could take to ensure such compliance.

This issue, as you know, continues to be extremely important. We stand at an historic crossroads for the conservation of highly migratory species (HMS).

The effective management of Atlantic HMS is one of the most complex and difficult challenges facing the National Marine Fisheries Service. These species range

widely throughout international waters and the jurisdictions of many coastal nations with diverse political perspectives on how to properly utilize and manage this

valuable resource.

As you know, the Magnuson–Stevens Fishery Conservation and Management Act,

passed in 1976 is the primary law dealing with fisheries resources and fishing activities in Federal waters (those waters extending from the edge of State waters to

the 200-mile limit).

The primary goals of the Magnuson–Stevens Act are the conservation and management of the U.S. fishery resources, the development of U.S. domestic fisheries

and the phasing out of foreign activities within the 200-mile fisheries conservation

zone adjacent to the U.S. coastline. This area became known as the Exclusive Economic Zone (EEZ) following a 1983 proclamation by President Reagan.

I recognize that there will likely be issues of disagreement to be worked out

among all the many and varied players in this reauthorization, but this is a good

first step toward ensuring this important piece of legislation remains an integral

part of fisheries management.

It is of the utmost importance that today, more than ever, we work diligently to

ensure our world’s fisheries populations are maintained at sustainable levels. If we

fail to protect them, there are some species that may disappear forever, which would

be tragic.

Thank you.

Mr. GILCHREST. Gentlemen, thank you for your patience this

afternoon.

Mr. Frank, you may begin.

9

STATEMENT OF THE HON. BARNEY FRANK, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MASSACHUSETTS

Mr. FRANK. Thank you, Mr. Chairman. I became really involved

with fishing in 1992 when, thanks to redistricting, I became the

representative for the city of New Bedford and surrounding areas,

which is a major fishing area, and I had not been previously involved here. And I have to say I just have one suggestion, looking

at that painting behind you, if you were to borrow John Ashcroft’s

blue cloth, I think it would be put to better use over here than at

the Justice Department. It is a little weird, that painting.

But as to fishing, I am here really in a situation of some distress,

really. And I appreciate the remarks of the former Chairman of the

Full Committee, the Chairman of the Transportation Committee,

when he talks about a bill that was passed and did not seem to

many of us to be what it has been subsequently interpreted to be

in a number of areas.

A Federal judge just issued an order that will have a devastating

effect on the fishery in New England, just devastating, far beyond

what good science requires, far beyond what responsible

environmentalism requires. Indeed, one of the plaintiff organizations in this lawsuit, the Conservation Law Foundation, which has

hardly been in the forefront of defending the fishing industry,

worked out an agreement with some of the defendants for a set of

restrictions, and the judge went far beyond that and rejected that,

and I thought that went too far.

So I appreciate your willingness, Mr. Chairman, to take on what

is not going to be an easy job, and I mean this genuinely. Even people who have some disagreement with some aspects of your bill appreciate your willingness to see that we meet our responsibilities,

and I believe we as the Congress have a responsibility to reauthorize and redraft that bill somewhat this year.

I have some specific concerns. One that has become a real problem for us is the definition of overfishing, and we have a definition

of overfishing that I have been convinced is really unrealistic and

unnecessary. When we talk about the maximum sustainable yield,

that obviously goes beyond sustainable yield. There is a debate

about what is maximum sustainable yield. One of the things I am

going to ask unanimous consent to submit as part of my testimony

is a very good article by a man named Brian Rothschild, who runs

the program at the University of Massachusetts-Dartmouth for the

study of fishing in which he, I think, makes some very good points

about the mistaken assumption that everything that affects the

fish stock has to do with the amount of fishing. There is a cyclicality he points out to this that doesn’t get taken into our definition.

[The information referred to follows:]

Comments on Current Fisheries Managment

BY BRIAN ROTHSCHILD

Our institutional framework for managing the Nations fish stocks is not working.

The opportunity to provide informed stewardship of our fisheries resources and to

protect the livelihoods and investments of those engaged in harvesting, processing,

and selling fish is at stake. The breakdown in the institutional framework is expenVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
10

sive in terms of the burgeoning costs of management, revenues foregone, waste, and

community welfare.

Two recent events exemplify the breakdown of the framework. First, last month

the New England Fishery Management Council decided not-to-decide on management measures for the thought-to-be depleted Gulf of Maine cod stock. The decision

not-to-decide leaves Gulf of Maine cod management in a state of confusion and, in

effect, eliminates the possibility that the mandated consideration of adverse economic impacts on the community can be vetted among those who are most effected.

The management regulations are no longer in the hands of those concerned with

the welfare of the region; rather, they are now in the hands of the U.S. Secretary

of Commerce. Second, on December 28, U.S. District Court Judge Gladys Kessler

agreed with plaintiffs (the Conservation Law Foundation, the Center for Marine

Conservation, the National Audubon Society, and the Natural Resources Defense

Council) that the Secretary of Commerce and its agencies’the National Oceanic and

Atmospheric Administration and the National Marine Fisheries Service had failed

to comply with the provisions of the Magnuson–Steven’s Act and the Sustainable

Fisheries Act (SFA) to prevent overfishing and minimize bycatch in the waters of

New England. In other words, the Judge essentially ruled that the federal agency

has failed to implement a major part of its responsibility.

At the confluence of these events, the judge has ordered the Secretary and the

plaintiffs to participate in a conference on January 28, 2002. At the conference, the

judge will mandate a remedy or course of action to be taken by the Secretary. Her

decision is a double-edged sword. On one edge, the decision puts the Secretary on

notice that the laws of the land cannot be ignored by an agency charged with their

implementation. On the other edge, it highlights the fact that while well-meaning,

aspects of the legislation and the way parts of it have been interpreted by the agency do not pass the test of common sense and scientific understanding. Because of

this implementation that follows the sense of the pertinent legislation may border

on the impossible.

In order to analyze the situation it is necessary to briefly review the evolution of

the legislation that governs federal fishery management. The Fishery Conservation

and Management Act of 1976 was the ground-breaking legislation that formed the

foundation for the presently operable Magnuson–Stevens Act. The 1976 Act declared

U.S. jurisdiction over the stocks of fish out to 200 miles off our coasts, essentially

eliminating the huge foreign fleets that fished in our waters. The Act also established what Senator Warren Magnuson called a new form of governance. This new

form of governance was a breath of fresh air. It advocated the use of scientific rationality to manage the stocks and to give those who would be most affected by

management decisions a say in the management process.

To accomplish these common-sense goals, the 1976 Act established eight regional

councils to advise the Secretary of Commerce on fishery management measures.

Each council’s management advice is based on the development of a management

plan for each species or mix of species. The management plans needed to be consistent with National Standards described in the Act. These Standards today mandate the following: 1) Conservation and management measures shall prevent overfishing while achieving optimum yield; 2) conservation and management measures

shall be based upon the best scientific information available; 3) individual stocks of

fish shall be managed as a unit throughout its range; 4) conservation and management measures shall not discriminate between residents of different States; 5) conservation and management measures shall consider efficiency in the utilization of

fishery resources; 6) conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches; 7) conservation and management measures shall minimize

costs and avoid unnecessary duplication; 8) conservation and management measures

shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to A) provide for the

sustained participation of such communities, and B) to the extent practicable, minimize adverse economic impacts on such communities; 9) 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; 10) conservation and management measures shall, to the extent practicable, promote the

safety of human life at sea.

Thus, the nation set forth in 1976 in a new era of rational fishery management.

Managers were armed with a directive to develop management plans involving each

stock. Further, the National Standards provided a benchmark for the adequacy of

management plans not initially at the centralized federal bureaucratic level, but in

the context of local needs by regional fishery management councils.

11

However, by 1996 the provisions of the 1976 legislation and its descendent, the

Magnuson–Stevens Act was thought to not fully protect the stocks of fish and, as

a consequence, the requirements for ‘‘conservation’’ and the Secretary and Councils

were ratcheted up. The ratcheting was embodied in the Sustainable Fisheries Act

in 1996. This Act required the Secretary of Commerce to not only prevent overfishing but to also rebuild depleted stocks and to report, assess, and minimize bycatch.

This very cursory background enables us to begin to understand the institutional

problems that plague the public interest in implementing fishery management. Let

us illustrate with an analysis of a few of the National Standards. First, those that

know the technical aspects of fisheries-management theory agree that some of the

most important Standards are extremely difficult to apply in the real world. Second,

a strictly interpreted application of some Standards can easily constrain the attainment of other Standards. Because of the interrelationship among the National

Standards, carefully reasoned judgments must be made in order to achieve balance

among the Standards. Without this balance, fishery management plans are counterproductive.

Take the issue of ‘‘overfishing,’’ for example. How do we determine whether or not

a stock is overfished? It may come as a surprise to many, but biological overfishing

is technically only clearly identifiable for a small set of stocks where the theory of

fishing, or the data at hand, actually reflect that stock abundance (i.e., reproduction

and productivity) will materially decline with increased fishing effort. In fact, because overfishing is so difficult to identify, various proxies have been derived to artificially (more or less) indicate whether a stock is overfished. There are plenty of

cases where the theory predicts that increased fishing will cause only an inconsequential decline in stock size and the data are often sufficiently variable that an

optimal level of fishing (i.e., maximum sustained yield) cannot be resolved. Put another way, it is difficult to determine whether many stocks are overfished.

Even more importantly, calculations that conventionally determine whether or not

a stock is overfished do not take into account environmental variability, even though

we are mandated to do so by the National Standards. Environmentally induced variability in a fish stock is often difficult to separate from fishing-induced variability.

Nevertheless, it is clear that major fluctuations in fish stock abundance are commonly driven as much by a changing environment as by the influence of fishing.

We know from a reasonable number of stocks observed prior to industrialized fishing, that stock abundances fluctuate substantially in response to natural environmental changes. Today, any downward fluctuation in a stock is attributed to socalled overfishing, while any increase is termed a management success. These assertions are obviously made ignoring environmental effects a view akin to that held

by the folks who do not believe in global warming. As we will point out, the present

inability to clearly separate environmentally driven changes from those that owe to

fishing challenges the rationality of attempting to rebuild stocks.

Even the issue of obtaining the best scientific advice has become warped. The

National Standards direct us to base our declarations of overfishing on the best scientific information available. Unfortunately, the best scientific information delivered

to management councils is now interpreted as a level of fishing mortality (for example) cited by the scientific community. This is not sufficient scientific advice. Overfishing estimates need to be accompanied by a description of the often great uncertainties associated with the estimates.

The Councils are mandated to take into account possible adverse economic impact

of regulations. However, as implied above the councils cannot consider each

National Standard in a vacuum absent of the other Standards. The Standards need

to be balanced. If the difficulties in defining overfishing as described above are not

fully vetted before a Council, then how can it balance the relation between the priority prevention of overfishing and adverse economic impact?

The SFA presents specific problems that need to be rectified. The SFA changes

the balance of the National Standards that exists in the Magnuson Stevens Act. Because the SFA focuses on preventing overfishing, rebuilding stocks, and bycatch

issues, the pendulum of legal concern swings from a balance among the National

Standards to a focus on the hard-to-define overfishing standard. The biggest problem in the SFA is the concept of rebuilding. The concept of rebuilding leads to arbitrary management measures. The idea is that a so-called depleted stock should be

rebuilt to some past level of abundance. The past level is identified and used as a

target. When the stock reaches this past level of abundance it is considered to be

rebuilt. Typically, the highest level of past abundance is chosen. However, it is not

known whether this past level of high abundance was the result of extremely favorable environmental events, a reduced level of fishing, or the result of a complex

interaction between these factors. As a consequence, rebuilding goals can easily be

12

set which have small likelihood of ever being attained. This situation results in arbitrary management measures that drift from the hands of local and regional into the

hands of the federal government.

This vignette gives us a glimpse at the foundations of institutional failure. To

bring us back into the arena of ‘‘wise use’’ stewardship, we have to reexamine the

implementation of our legislation to make sure that it really is following the intent

of Congress. However, we also need to examine the legislation, particularly the SFA

to determine whether it is technically possible to achieve its extremely admirable

goals. I am afraid that the SFA has taken us beyond the information that we have

available (and are likely to ever have, at least in the near term) and as a consequence it can lead only to arbitrary fisheries management regulations. This arbitrary regulation spurns and suppresses fishing communities. Without a buy-in by

fishing communities we have lost the opportunity for stewardship.

The issues described above are just the tip of the iceberg. The public good demands a sweeping review of the practicality of the SFA and implementation of fishery management policy. This must be an essential task for the new administration

and the new Administrator of NOAA.

But what do we do in the meantime? Judge Kessler had no opportunity to make

an alternative judgment because the issue before her was so narrowly framed and

in the eyes of the law it appears that the Secretary has done nothing to move the

management process forward. Other judges faced with related cases have probably

with great frustration’developed a narrowly focused remedy to deal with the complaint. To do so in this particular case, however, would be to ignore the breadth of

the several National Standards and the legislative history that mandates local involvement. Accordingly, it would make sense for the Judge to require the Council

to reconsider the Gulf of Maine cod management plan in a timely way. In its reconsideration, the Council needs to take full and explicit account of the quality of data

and the nature of the analysis that led to the estimation of an extraordinarily high

fishing mortality rate. The Council also needs to recognize the fact that the Gulf

of Maine cod is not a single stock but migrates back and forth from Georges Bank,

mingling with the so-called Georges Bank stock. In their deliberations, the Council

needs to be encouraged by the Secretary of Commerce to balance all of the National

Standards and to focus on expediting the framing of regulations.

The conservation organizations need to realize that without support from the fishing community, the fishery management process will not work, at least not in a way

that is cost effective. The conservation community needs to embrace the idea of wise

use of fishery resources. The conservation community needs to advocate 1) the collection of adequate, reasonably accurate, easily retrievable data; 2) advances in the

approaches that convert these data into management decisions approaches that

equally take into account the ocean environment, its interaction with fish stocks,

and are based upon modern operations-research techniques; and 3) an environmental research program to understand more fully the factors that induce fish populations to vary. Most importantly, these programs for New England need to be undertaken in the context of the mixed-species trawl fishery, which exemplifies the

technical challenges that we have before us in managing fish stocks.

Mr. FRANK. We have a situation where we use this definition

where the stock can be increasing and it will still be held to be

overfished and cut back very drastically even when it is increasing

to a sustainable point, and I think that definition has to be taken

into account.

The bill set out a variety of factors that were supposed to be balanced, and in practice it hasn’t been balanced. In practice, the legitimate economic concerns of communities and individuals has

been subordinated. The statute, at least by the judge who recently

decided it, was turned into kind of an absolutism that wasn’t there.

I hear the bells. I don’t want to interfere with my colleagues. I

will be submitting some further testimony, but I believe we are in

a situation now, and I do agree with the gentleman from Alaska

that the lawsuits and the threat of lawsuits have become a problem.

Mr. FRANK. I had a very good conversation with the administrator today who I think is trying to do a good thing in a particular

13

area and the threat of a lawsuit, particularly, frankly, in a region

where a Federal judge just gave a somewhat draconian decision

disrupts the procedure and there needs to be more play in these— the question of sustainability. The question of the fishery is a more

complex one than has been interpreted by some of these authors.

Finally, I want to express the opposition of a substantial number

of the people I represent are really quite strong to the IFQ situation. They really feel—and fishing is an industry where there are

a lot of smaller independent people, and they are very concerned

about the implication of greater concentration that could result if

you get into this. I will amplify those, but having heard the bells,

I will cut it off now and thank you for this opportunity.

Mr. GILCHREST. Thank you, Mr. Frank. Your full statement will

be included in the record.

[The prepared statement of Mr. Frank follows:]

Statement of The Honorable Barney Frank, a Representative in Congress

from the State of Massachusetts

The author of the following article, Brian Rothschild, is the Director of the School

for Marine Sciences and Technology (SMAST) at the University of Massachusetts

Dartmouth. The attached article was published in the New Bedford Standard–Times

in January of this year. Under the leadership of Dr. Rothschild, SMAST conducted

independent research on scallop stocks in 2000. That research demonstrated that,

as argued by New Bedford area fishermen, the stocks were more abundant than

government statistics had indicated. Dr. Rothschild then played a key role in persuading the National Marine Fisheries Service to incorporate these findings into its

analysis of the scallop stocks. As a result, less severe restrictions than originally

planned were put in place for the fishery.

Mr. GILCHREST. Mr. Hefley

STATEMENT OF THE HON. JOEL HEFLEY, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF COLORADO

Mr. HEFLEY. Mr. Chairman and Committee, thank you. Although

it is with some fear and trepidation that I testify after hearing

Chairman’s Young’s opening statement—

Mr. GILCHREST. Is your mike on, Joel?

Mr. HEFLEY. I am sorry.

Mr. YOUNG. I wasn’t going to tell you.

Mr. HEFLEY. You weren’t. Jim is absolutely right. I don’t know

how I could have neglected exempting Alaska from this.

But, Mr. Chairman, in your statement earlier you talked about

the fisheries being sustained for us and for our descendants and for

their descendants and that is what I am talking about with this

bill. It is one thing if you overfish and then it may take them a

long time to get the populations back up. It is quite another if you

destroy the habitat and that may never recover. So what I am talking about here is the habitat, not about overfishing. And I do have

a complete statement that I would like to ask that it be put into

the record and I will summarize it.

Mr. GILCHREST. Without objection.

Mr. HEFLEY. I got interested in this several years ago when I

simply read an article in the newspaper. What do I know about

ocean fishing? I know how to catch trout and catfish, but what I

know about ocean fishing—but it piqued my interest because it

made the statement that every year worldwide an area equivalent

14

to the size of the Lower 48 states—and, see, Don, also Alaska is

exempted from that. The Lower 48 states was being subjected to

bottom trawling each year with an impact equal to that of

clearcutting the forest.

Now I know about clearcutting forests because we had that out

in the West and I hate it. It is ugly and I know managers tell you

sometime that is a good idea, but I don’t find it a good idea. So I

became concerned and that is kind of the reason I got into this and

I began to do research and tried to learn as much as I could about

it, with still not nearly the expertise that you have on this panel.

But we do love the oceans. I have loved the opportunity since being

in Washington to experience, Mr. Chairman, your Chesapeake Bay

and what a wonderful asset that is to the United States. We vacation every year at Edisto Island in South Carolina where we get

a little bit of an ocean experience, and I applaud the Chairman for

what you have done to try to clean up the bay and bring it back,

and enormous progress has been made.

So when I looked into this further, it appeared to me that there

was something that should be done about this if we are actually

destroying the habitat, and there is a lot of scientific evidence that

we are. Currently bottom trawling as is currently practiced I think

is shortsighted. It can maximize the take for bottom fishermen, no

question about that, but it can leave an environment sterile of the

species that associate with structured habitat during some stages

of their life, including the juvenile Atlantic cod, the lobster, and the

Pacific rock fish.

Some recent studies have suggested that the reason Atlantic cod

are not rebuilding as quickly as expected is because they depend

on structured habitat for protection when they are juveniles. Without that habitat, the juveniles have nowhere to hide and are quickly eaten by predators. So in the last Congress, I introduced the

Seabed Protection Act. That bill would have placed a moratorium

on fishing in 16 areas along the Atlantic, Pacific and Gulf Coasts.

It served mainly as a shot across the bow of the NMFS which had

been ordered by Congress in 1996 to study and manage the impacts

of bottom trawling, but which 5 years later appears little has been

done, if anything.

This year we took a different approach. This particular bill, 4003,

is narrowly tailored to protect the most bottom structure and sustainable habitat while having a minimal impact on bottom trawlers

who use the large rollers and rockhoppers to gain access to these

sensitive areas. It does this by limiting the size of these gear to 8

inches in diameter or less. The bill mimics State and regional law.

All 18 coastal States have structurally complex habitat, and 5 of

the 8 Federal Fishery Management Councils have begun to limit

the size of rollers and rockhoppers or have outright banned bottom

trawling. This bill would ensure uniform regulation.

As a member of the Resources Committee, I have listened to

many debates over the years about commercial activities on public

lands. I believe in a multiple use process. I believe in fishing. I believe in commercial fishing. And, in fact, fishing disputes were at

the heart of the American Revolution, or one of them. Crab cakes

and clam chowder are just as American as apple pie. But I fear

that unless we do something to preserve the seabed environment,

15

we won’t have a fishing industry in 20 years, and if that happens,

we will not only have lost jobs, but we will have lost a part of our

heritage.

This bill is supported by a wide array of environmental organizations, recreational and commercial fishing groups that recognize

this destruction must be stopped. Therefore, I encourage the inclusion of H.R. 4003 in the reauthorization of the Magnuson-Stevens

Act.

With that, Mr. Chairman, I would conclude, and appreciate the

opportunity to be with you.

[The prepared statement of Mr. Hefley follows:]

Statement of The Honorable Joel Hefley, a Representative in Congress

from the State of Colorado

Mr. Chairman, I’d like to thank you for the opportunity to give testimony today

on my bill, H.R. 4003, the Ocean Habitat Protection Act.

This subject first caught my interest more than three years ago with an article

in my local newspaper, the Colorado Springs Gazette Telegraph. At a December 14,

1998 press conference, representatives of the American Oceans Campaign and the

Marine Conservation Biology Institute said that, worldwide, an area equivalent to

twice the size of the lower 48 states was being subjected to bottom trawling each

year with an effect equal to that of clear-cutting a forest.

I was concerned by that word picture. While I represent—or perhaps because I

represent—a district in a land-locked state, I have always been fascinated by the

sea. My family and I regularly vacation at Edisto Island in South Carolina and I’ve

enjoyed my time on the Chesapeake Bay in Maryland. I applaud and support the

efforts made by the chairman and others to restore the health of the Chesapeake

Bay.

Based on what I have read, the ecological impacts of bottom-trawling are every

bit as bad as those which have crippled the Chesapeake. Worse than mere over-fishing, bottom-trawling can completely alter the series composition, shifting from species such as snapper or grouper to flounder and dogfish. The practice seems shortsighted for, while bottom-trawling can maximize the take of bottom fishermen, it

can leave an environment sterile of species that associate with structured habitat

during some stages of their life, including juvenile Atlantic cod, lobster and Pacific

rockfish species. Recent studies suggest part of the reason that Atlantic cod are not

rebuilding as quickly as expected is because they depend on structured habitat for

protection while they are small juveniles. Without structured habitat, the juveniles

are unable to hide and are quickly eaten by predators long before they reach reproductive age.

Because of this, in the last Congress I introduced H.R. 3059, the Seabed Protection Act. H.R. 3059 would have placed a moratorium on the use of bottom trawls

and dredges in 16 key areas considered essential for maintaining fisheries and other

marine life until the Secretary of Commerce determined that the impacts of dredging on the productivity of fisheries, marine life and seafloor habitat were negligible.

That bill attracted 14 bipartisan cosponsors.

H.R. 3059 was a shot across the bow of the National Marine Fisheries Service

and its regional fishery management councils. The 1996 Sustainable Fisheries Act

amendments to the Magnuson–Stevens Fishery Conservation and Management Act,

NMFS had been directed to study the impact of bottom-trawling and develop ways

to ensure that the practice proceeded in a manner that was self-sustaining. Yet five

years after these mandates, NMFS had yet to issue a policy on the subject.

At the beginning of this Congress, I planned to reintroduce H.R. 3059; my goal

had always been to have its measures included in the larger Magnuson–Stevens

Act. But, after deliberation and discussion with those groups that have supported

my efforts, we decided to take a different approach and focus on the most damaging

type of bottom gear, which is responsible for wiping out the last safe havens for fish

in the oceans. My new bill, H.R. 4003, is narrowly tailored to protect the most bottom structure and sustainable habitat while having a minimal impact on bottom

trawlers who use large rollers and rockhoppers to gain access to these sensitive

habitats. Rather than terrifying the fishing industry by shutting down designated

areas while the NMFS took an indeterminate amount of time to develop a policy,

we decided to develop legislation which would eliminate the gear which was causing

16

the problem. The bill that emerged was H.R. 4003, the Ocean Habitat Protection

Act.

H.R. 4003 would protect complex, rocky seabed habitats by restricting the use of

rollers and rockhoppers more than eight inches in diameter and rockhoppers. Until

the 1980s, bottom-trawling was used mainly to harvest haddock and other species

that inhabit sandy, mud and small gravel sea floor habitats. But, as with so many

things, the technology improved and trawlers began to direct their efforts to these

complex areas they had previously avoided or had been unable to access. These

newly accessible areas provide homes to living structures such as sea anemones,

sponges and deep-sea corals and often serve as settlement and nursery areas for juvenile groundfish and crustaceans of commercial and recreational importance. The

new method of improved trawling improved fishing yields but left many of these

complex areas barren of species that depend on structure.

When there is no place for fish to hide,’’ says Jeff Hutchings of Dalhousie University, ‘‘we can devastate entire populations. There is evidence that severely overexploited populations may not recover, even decades after depletion.’’ Large rollers

and rockhoppers, similar to the large drift-nets that have been banned due to the

needless destruction that they cause, flatten precious and unique species like deepsea corals, homogenize seafloor habitat and leave fish that depend on structured

habitat with no place to hide.

On March 18, the National Academy of Sciences issued a report on the effects of

bottom-trawling. The report stated that bottom-trawling had different effects on different types of bottom habitats. Recovery times also varied but the NAS study concluded that some sensitive areas would require so long a period of time to recover

as to be irrecoverable.

The NAS report also gave NMFS a conclusion that sounded a lot like that heard

before wolves were released into Yellowstone, namely that there was no need for

further study of the issue. Enough data already exists to properly manage fisheries

and bottom-trawling.

The lack of area-specific studies on the effect of trawling and dredging gear is insufficient justification to postpone management of fishing effects on sea floor habitat,’’ the report said.

My bill mimics trends at the state and regional level. All 18 coastal states with

structurally complex habitat and five of the eight federal fishery management councils have begun to limit the size of rollers and rockhoppers or have outright banned

bottom trawling. The problem is, we now have a complicated set of regulations that

only apply to certain fisheries, areas and times, and leave much complexly structured habitat unprotected.

At the present time, the bill has 15 cosponsors and the support of the Recreational Fishing Alliance, the West Coast Fishing Alliance, The Ocean Conservancy, Friends of the Earth, the Natural Resources Defense Council, Oceana and

the American Oceans Campaign, the Marine Conservation Biology Institute, the

National Environmental Trust, the National Coalition for Marine Conservation,

Fish Forever a nd the Jersey Coast Anglers Association, among others. I’d like to

enter into the record of full record my bill’s supporters and cosponsors.

I am often asked why I, a congressman from a landlocked state, would have such

an interest in ocean fishing and bottom-trawling. I answer that I like to fish. But,

aside from that, it’s because I don’t have a commercial stake in this issue. I don’t

have to answer to a vocal fishing industry in Colorado. But I can appreciate that

something has to be done.

As a member of the Resources Committee, I have listened to many debates concerning commercial activities on our public lands and, generally speaking, I support

the multiple-use of those lands. The Forest Service used to put up signs that read

‘‘A Land of Many Uses.’’ I believe that’s the way it should be.

The nation’s forests are beautiful but they’ve also yielded timber that provided

jobs for Americans and lumber for homes and furniture. When we eliminate lumbering—either by regulation or by overcutting—we are not just eliminating jobs,

we’re cutting out a part of our heritage.

So it is with the fishing banks, as well. I don’t have to tell any of you about the

place the commercial and recreational fishing industries hold in this country’s history. Fishing factored into the reasons for the American Revolution and in the works

of Herman Melville and Jack London. And, it may be argued that crabcakes, cod

and clam chowder are at least as American as apple pie. I fear that, unless we take

steps to preserve the environment that sustains our fishing industry, we won’t have

one in 20 years. And with that, we will not only have lost jobs but a part of our

heritage. The Ocean Habitat Protection Act is endorsed by a wide array of environmental organizations and recreational and commercial fishing groups that recognize

17

that the devastation must be stopped. And that is why I urge your inclusion of

H.R. 4003 in the re-authorization of the Magnuson–Stevens Act.

Again, thank you for hearing my testimony.

Mr. GILCHREST. Thank you, Mr. Hefley. We have a vote going on,

but we have time for Mr. Farr’s testimony before we leave. So, Mr.

Farr, you may begin.

STATEMENT OF THE HON. SAM FARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. FARR. Thank you very much, Mr. Chairman. I appreciate the

opportunity to continue to work with you. I am really pleased that

your hard work on Chesapeake Bay is so matched by the hard

work that I am trying to do on the Monterey Bay. I would like to

point out that Jean-Michel Cousteau was here the other day and

he said our oceans are sick. The patient is the world, and the lungs

of the world, the oceans, are not doing well, and we see this all the

time. I probably represent a greater diversity of marine scientists

and fishermen, and even fisheries in my district, compared with

any other district, just tons of marine schools and fishing ports.

The problem is that we find from the National Marine Fisheries

Services, who just 2 weeks ago released their fish stock assessment, that only two fish stocks have improved since last year. The

number of overfished stocks has declined, but overall things are not

getting any better.

We have about 950 fish stocks in the ocean. We know the status

of less than a third of these stocks. Of the 304 on which we have

some information, over 30 percent are overfished or rapidly heading that way. I think that those of us who have been on this

Committee, and I sit now on the Agriculture Appropriations Committee, are very interested in sustainability. How do we continue

the fishery business and continue our agriculture business while

sustaining the environment that raises the plants and animals of

the planet?

I have introduced a bill, H.R. 2570, the Fisheries Recovery Act,

to amend the Magnuson-Stevens Act. It has 71 co-sponsors, and I

think that this issue is important to the Committee members on

both sides of the aisle. I don’t know if we have enough time, but

I wanted to go through and make some comments on your bill, on

your draft, that I think would be constructive.

The fishermen in my district—

Mr. GILCHREST. Mr. Farr, if you do feel rushed, you can be the

first witness when we come back from the vote, if you would like.

Mr. FARR. Why don’t we start there. I will come back and start

with the discussion on your draft, which I think would be constructive.

Mr. GILCHREST. We will do that. And Mr. Hefley and Mr. Frank,

I know the issue is definition of overfishing, precautionary approach, maximum sustainable yield, conservation versus—

Mr. FRANK. Don’t worry, Mr. Chairman. We won’t come back.

Mr. GILCHREST. The gentleman from Massachusetts.

We will recess. It looks like we might have 2 votes, so for the

people in the audience and other witnesses, it probably will be

about 20 minutes.

18

[Recess.]

Mr. GILCHREST. The Subcommittee will come back to order.

We thank everyone for their patience and indulgence here. We

will probably have another vote in about 45 minutes, but at this

point I want to re-recognize Mr. Farr from California.

Mr. FARR. Thank you very much, Mr. Chairman. And as I said,

I am delighted to be here and I really appreciate all the hard work

you have personally done to tackle this issue. I think it is so

essential to the sustainability of fisheries and, more importantly, to

best management practices of the sea, which is essentially the

same thing we recognize and appreciate when we deal with agriculture and land. I think we need to apply a lot of our same sort

of smart practices or good practices to the ocean. We are going to

have to gain more information and change gear and so on.

I would like to just go through some of the provisions of your bill

which correspond with the provisions of my bill and offer some reflection on it. I hope that this is all done in a positive perspective,

because I really appreciate your personal interest in all this. I just

want to share with you some of my reactions to some of the wording, more than anything else.

I think the direction of the bill is a magnificent one, and you are

to be applauded for your leadership on it. As you know, on the

House floor in 1995 I introduced an amendment to require that

fishing impacts on habitat be reduced. The amendment was accepted by an overwhelming vote of 251 to 162. At that time we worked

together to ensure that the Councils were required to protect essential fish habitats from damaging fishing techniques. Unfortunately,

since that time, very little has actually been done with respect to

essential fish habitat and the problems still persist.

As I pointed out, the fishermen in my district support the protection of essential fish habitat and we are trying to learn more and

more about it. We know that without that, without essential fish

habitat, we cannot have a sustainable fishery, and it is just a matter of time before it is all gone. I represent the area where the sardines disappeared, and know what happens when a fishery disappears. All the canneries shut down, everybody who worked in the

cannery, all the families lost their jobs, people lost their livelihood,

and there wasn’t any alternative there or government to come and

bail them out. It was a disaster and it took us 25, 30 years before

we turned Cannery Row in Monterey into a tourism area and,

frankly, a lot of recognition of that area goes to writer John

Steinbeck who made the area famous in his books. We don’t want

to go through again is a loss of a fishery like that. It is worse than

a base closure. It is worse than a company moving out or shutting

down.

So here is what I am suggesting, that you emphasize the use of

habitat areas of particular concern as a means to focus the protection efforts. Habitat areas of particular concern are important because of their ecological significance, rarity, sensitivity, or because

they are threatened by human activities. Because this is a concept

contained in the National Marine Fisheries Essential Fish Habitat

Regulations, the Councils and the National Marine Fisheries are

familiar with it and have identified many habitat areas of particular concern. The proposal will place greater emphasis on these

19

habitat areas but would not serve to exclude any essential fish

habitat from future protection.

I also strongly recommend that the sections of H.R. 2570 that

concern the impact of fishing gear on habitat be included in your

bill; for example, the required evaluation of the potential impacts

of any new types of gear prior to their introduction. When you

think about it, almost every other thing we apply gear to or a new

machinery to, we do on an impact analysis. I am not suggesting we

go that deep, but at least be aware that there could be impacts and

that those impacts ought to be taken into consideration prior to authorizing it. Also, please include the establishment of a program to

identify new, less damaging gear for all areas and to fund its introduction.

In your bycatch section, my comments and suggestions are this,

that your draft reflects your recognition of bycatch as a serious

problem. I commend you on the inclusion of birds as a definition

of bycatch. I strongly disagree with Mr. Young that they shouldn’t

be included. I think that the inclusion needs to be better defined.

I think stating a deadline, as you have done for the Councils, to

report bycatch is very important but I think you should give Councils a chance to explain why they cannot develop such systems. Requiring the Councils to only explain why they cannot develop such

systems may create unforeseen and exploitable loopholes, and I

think that needs to be tightened up a little bit, and I would recommend that you include certain provisions such as requiring the

Councils to annually reduce bycatch, requiring annual reports on

the progress being made in reducing bycatch, and creating incentives for the reduction of bycatch. In this way we can be sure that

the Councils be held accountable every year and that they would

be required to act on the information they have gained.

On your observers’ programs, I do not agree that we need to

study the need for observers. We need them and the data they obtain. It is undeniably clear that there exists a great need for data

collection. There needs to be better data on bycatch, on discards,

and the impacts on certain types of fishing gear, all of which have

impacts on essential fish habitat. The best way to prioritize the essential fish habitat of most concern is through observers being able

to collect adequate data.

As I wrote in the Fisheries Recovery Act, I strongly recommend

that the observer coverage be required in each and every fishery

until we collect statistically significant data on bycatch, discards,

and habitat impacts. Observer data are further essential for getting

information on the growth, reproduction and survival rate of species, and I think that observer data will enable managers to accurately determine catch rates and set correct quotas.

Many fishermen with whom I have spoken oppose observers

largely because of the cost of observer coverage, particularly when

you have to take an observer and you have to pay for it. I propose

funding of observer coverage with money from the Saltonstall-Kennedy Act, matched with a percentage of landing fees that does not

disproportionately impact smaller scale fishermen.

On your ecosystem-based management, I know that you and I

share the belief that this may be one of the most important policies

20

that could come out of the Magnuson reauthorization. I think we

are making great headway. We need to keep pushing this.

I am, however, concerned that the language in your draft will

allow the Councils to extend indefinitely the process of implementing ecosystem-based management plans. For that reason, I believe that this section should go beyond only supporting and encouraging ecosystem-based fisheries management.

We need to mandate the requirement of the Councils to rapidly

develop fishery ecosystem plans for every major fishery within

their jurisdiction.

I also believe that much of the data that you are requesting prior

to the implementation of the ecosystem-based management plans

are really available now through a number of systems. We can expect the National Marine Fisheries to define the criteria for ecosystem-based management, I think, at most in 2 years. Two years

after the development of the Marine criteria, the Council should be

required to develop fishery ecosystem plans. They should make

sure that the fisheries management plans are consistent with the

ecosystems plans, and I absolutely believe that it must be required

from the very date of enactment of this legislation that no fishery

be allowed to expand unless the complete fisheries ecosystem plan

is established and the standards are determined that will protect

the underlying marine ecosystems.

On the issue of cooperative research, I join you in supporting cooperative research and I also join you in trying to shut up this telephone.

Any effort or money to put toward the cooperative research programs I think is a win-win proposition. I know that fishermen in

my district and around the country are enthusiastic about cooperative research and support proposals included in my bill.

I want to draw your attention particularly to two aspects of the

issue. It taps into the creativity of the natural knowledge of fishermen by providing financial incentives to the development and use

of fishing gear and practices that limit bycatch and minimize habitat damage.

It also proposes and funds this program with money from the

Saltonstall-Kennedy program. Currently the vast majority, approximately $70 million of the money collected from this program, is

used to offset NOAA’s operating budget. My proposal would redirect the money to programs that are more directly linked to

fisheries management such as cooperative research and observers.

And last, in the overcapacity reduction, I strongly support your

efforts to tackle the problem of overcapacity initially through

buyouts. We are very close to adopting this policy to help reduce

the pressure on ground fisheries in the West Coast.

In closing, Mr. Chairman, I think that you are doing an incredibly good job of getting into the detail and realizing how important

it is to rewrite the Magnuson Act in terms of what we know within

modern knowledge, and I am also co-chair of this Bipartisan

Oceans Caucus and, as you know, there are two groups out there,

one authorized by Congress via a bill that passed this Committee

and the Senate and was signed by the President to create an

Oceans Commission. The Oceans Commission is at work now traveling around the United States. There is also one created by the

21

Pew Trust that Christie Todd Whitman was the Chair and now

that she is gone to the administration, former Congressman Leon

Panetta has assumed the Chair. That foundation’s commission is

going around the country and trying not to duplicate what the Federal commission is doing, but both of them, I think, even with a

lot of industry folks on the commissions, have recognized that this

is the time that we have got to tackle the health of the oceans. And

it is, as you have said so many times, that the oceans—if you look

at this planet, it is a blue planet because of the oceans. The oceans

cover 73 percent plus of the world. They really are the lungs of the

planet. We must learn how to better manage and sustain them. I

don’t know how many years we can just go and dump what we

don’t like into the oceans and take out, without restrictions, as

much as we want before we end up seriously hurting the Planet

Earth.

So I appreciate the tough role you are in and look forward to

working with you.

[The prepared statement of Mr. Farr follows:]

Statement of The Honorable Sam Farr, a Representative in Congress from

the State of California

Good afternoon, Mr. Chairman and the Members of the Subcommittee.

Thank you very much for holding this important hearing. I appreciate the opportunity to discuss with you your draft for the reauthorization of the Magnuson–Stevens Fishery Act. This is an issue about which all of us feel passionately, and I hope

I can help you develop fisheries management legislation we can all live with.

The urgency of this matter was highlighted by the report to Congress released

this week from the Secretary of Commerce on the status of our nation’s fish stocks.

The good news from this report is that in fisheries where conservation measures

have been implemented, stocks are beginning to be rebuilt.

The bad news is that the National Marine Fisheries Service has only two such

fish stocks that have improved since last year’s report. While the overall number

of overfished stocks has declined, nine of the 11 stocks that were removed from the

list this year were removed because their stocks are declining for reasons other than

fishing. On the West Coast, the status of the groundfishery has gotten worse, with

two additional stocks being listed as overfished and one listed as approaching overfishing. This should not be counted as fishery management progress.

We still have a serious problem on our hands. We fish from over 950 stocks. We

know the status of less than a third of those stocks. Of the 304 stocks on which

we have some information, over 30% are overfished or rapidly heading that way..

Last year, I introduced H.R. 2570, the Fisheries Recovery Act, to amend the

Magnuson Act. That bill presently has 71 cosponsors. This issue is important to

many of our colleagues, from both sides of the aisle. Mr. Chairman, I know how

deeply the problems in our nation’s fisheries concerns you, and I offer the following

comments only to help you strengthen the proposed legislation.

Essential Fish Habitat (EFH)

Comments and Suggestions:

* In 1995, the Magnuson reauthorization bill that came out of the Resources committee made discretionary the requirement to minimize the impact of fishing on

essential fish habitat (EFH).

• On the House floor, I introduced an amendment to require that fishing

impacts on habitat be reduced. That amendment was accepted by an

overwhelming vote of 251 to 162.

• Mr. Chairman, at that time, we worked together to ensure that the councils were required to protect essential fish habitat from damaging fishing

techniques.

• Unfortunately, since that time, very little has actually been done with respect to EFH, and the problems persist.

• The fishermen in my district strongly support the protection of essential

fish habitat.

22

* I recognize your desire to narrow the application of this requirement, and I suggest that you emphasize the use of habitat areas of particular concern (HAPC),

that have already begun to be identified, as a means to focus the EFH protection efforts.

• There are areas of EFH that are significant because of their ecological

significance, rarity, sensitivity, or because they are threatened by human

activities. • Because this is a concept contained in NMFS’s EFH regulations, the

councils and NMFS are familiar with it and have identified many

HAPCs. • The proposal will place greater emphasis on HAPCs but does not serve

to exclude any EFH from future protection.

* I also strongly recommend sections of H.R. 2570 that concern the impact of

fishing gear on habitat:

• the required evaluation of the potential impacts of any new types of gear

prior to their introduction • the proof that gear will not damage an area before it is allowed to be

used in that area • the establishment of a program to identify new, less damaging gear for

all areas and fund its introduction.

Bycatch

Comments and Suggestions:

* This section of your draft reflects your recognition of bycatch as a serious

problem.

• I commend the inclusion of birds in the definition of bycatch.

• Stating a deadline, as you have done, for the Councils to report bycatch

is very important, however,

- giving the councils a chance to explain why they can not develop such

systems may create an unforeseen, exploitable loophole.

• I recommend you include certain provisions from my bill, such as:

- requiring the councils to annually reduce bycatch

- requiring annual reports on the progress being made in reducing bycatch

and

- creating incentives for the reduction of bycatch.

• In this way, we can be sure that beyond the initial reporting of the bycatch situation, the councils would be held accountable each and every

year and would be required to act on the information they have gained.

Observers

Comments and Suggestions:

* I do not agree that we need to study the need for observers. We know we need

them.

* It is undeniably clear that there exists a great need to collect data on:

• bycatch, discards and the impacts that certain types of fishing are having

on essential fish habitat.

• This data is the best way to prioritize the Essential Fish Habitat of most

concern.

• Observers are an effective means by which to do this.

* As I wrote in the Fisheries Recovery Act, I strongly recommend that observer

coverage be required in each and every fishery until we collect statistically significant data on bycatch, discards and habitat impacts.

• Observer data are absolutely essential for getting the information on the

growth, reproduction, and survival rate of species.

• Observer data will enable managers to accurately determine catch rates

and set correct quotas.

* Many fishermen with whom I have spoken oppose observers largely because of

the cost of observer coverage.

• I’ve proposed funding of observer coverage with money from the

Saltonstall–Kennedy Act, matched with a percentage landing fee that

does not disproportionately impact smaller-scale fishermen.

Ecosystem-based Management

Comments and Suggestions:

* I know that you and I share the belief that this may be one of the most important policies that could come out of the Magnuson reauthorization.

* We are making headway and we need to keep pushing this.

23

• I am, however, concerned that the language in your draft will allow the

councils to extend indefinitely the process of implementing ecosystembased management plans.

* For that reason, I believe that this section should go beyond supporting and encouraging ecosystem-based fisheries management.

* We need to mandate the requirement that the councils rapidly develop fisheries

ecosystems plans for every major fishery within their jurisdiction.

• I believe that many of the data that you are requesting be gathered prior

to the implementation of ecosystem-based management are largely available now for a number of systems. • I think we can expect NMFS to define the criteria for ecosystem-based

management in, at most, two years. • Two years after the development of the NMFS criteria, the councils

should be required to develop fisheries ecosystem plans and then make

sure that their fisheries management plans are consistent with the ecosystem plans. • I absolutely believe that it must be required, from the very date of enactment of this legislation, that no fishery be allowed to expand unless a

complete fisheries ecosystem plan is established and standards are determined that will protect the underlying marine ecosystems.

The bottom line, Mr. Chairman, is that people have been talking about ecosystembased management for decades. It is time to time to, and we are able to, move beyond talk and require action.

Overfishing

Comments and Suggestions:

* Defining overfished refer as only stocks that are below the natural range of

fluctuation associated with the production of the maximum sustainable yield is

a complicating factor that might be used by the industry to block action on rebuilding stocks.

• I recommend that this provision be dropped.

* I do suggest language from H.R. 2570 that amends the definition of conservation and management to require the inclusion of a margin of safety to guard

against scientific uncertainty.

Cooperative Research

Comments and Suggestions:

* I join you in strongly supporting cooperative research. Any effort or money put

towards the development of cooperative research programs is a win-win proposition.

• I hope you will look to the section on cooperative research in H.R. 2570

as you develop your recommendations. • I know that fishermen in my district and around the country are enthusiastic about cooperative research and support proposals included in my

bill.

* I want to draw your attention particularly to two aspects of this issue: • It taps into the creativity and natural knowledge of fishermen by providing financial incentives to the development and use of fishing gear and

practices that limit bycatch and minimize habitat damage. • It proposes and funds this program with money from the Saltonstall– Kennedy program. * Currently, the vast majority, approximately $70 million of the money collected

for this program is used to offset NOAA’s operating budget. My proposal would

redirect that money to programs that are more directly linked to fisheries management, such as cooperative research and observers.

Overcapacity reduction

I strongly support your efforts to tackle the problem of overcapacity initially

through buy-outs. We are very close to adopting this policy to help reduce the pressure on groundfish along the West Coast.

In closing, I recognize, Mr. Chairman, that all issues in fisheries management

would benefit from more study. However, we already have sufficient information to

move forward on a number of problems. I hope the final version of this bill will

mandate clear action, first, using the data we already have and then, definite actions following the collection of additional data. We need action now to promote the

long-term economic and ecological sustainability of our nation’s fisheries and fishing

culture.

Thank you very much.

24

Mr. GILCHREST. Thank you, Mr. Farr. We appreciate the time

and scrutiny of our legislation, and basically it is a draft proposal

for the reauthorization of this Act, and the reason for this hearing

is so that we can improve the Act with the input from a variety

of people so that all of us here will have some consensus and some

pride that we move this Act in the direction of conservation so that

there will be more of what everybody wants there to be more of,

whether you are a fishermen or not a fisherman. So we appreciate

the time you have taken to give us your input, and if there are any

questions from Mr. Tauzin.

Mr. TAUZIN. No, sir.

Mr. GILCHREST. Mr. Grucci?

Mr. GRUCCI. No, sir.

Mr. GILCHREST. Thank you very much. Before I call up the next

panel, there are chairs around the lower dais if anyone wants to

sit down for the next hour or two.

Our next panel is Dr. William Hogarth, Assistant Administrator

for the National Marine Fisheries Service, and Mr. Ricks Savage,

Chairman, Mid-Atlantic Fishery Management Council. Gentlemen,

welcome. Thank you for coming this afternoon. We look forward to

your testimony. Welcome to the Nation’s capital, and I realize that

both of you gentlemen are extremely busy, so we will take your

words with a great deal of sincerity.

Dr. Hogarth, you may begin

STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR, FISHERIES, NATIONAL MARINE FISHERIES

SERVICE

Dr. HOGARTH. Good afternoon, and thank you for inviting me

here today. I am Bill Hogarth, the Assistant Administrator of Fisheries.

First of all, I want to commend you for your constructive efforts

to reauthorize the Magnuson-Stevenson Fishery Conservation and

Management Act. We think this is an extremely important effort

that needs to take place and we look forward to working with you

in any way we can to see this come to bear.

Two days ago we issued the latest status of the stocks report to

Congress. The report shows a decrease in the number of fish stocks

that are overfished as well as increases in stock sizes for those species that are under rebuilding programs. I think the Chair’s report

demonstrates that while some stocks still need scientific and management attention, responsible actions by the Councils and NOAA

Fisheries are paying off since the Magnuson-Stevens Act was

strengthened in 1996. While there is still progress to be made in

some fisheries, overall fish populations are more plentiful than last

year, proof that rebuilding programs work. Many fisheries like

Georges Bank haddock and yellow tail flounder that were heavily

overharvested 5 years ago are either healthy today or headed toward recovery. Fishery-management plans are now being designed

to allow fishermen to continue fishing under strict regulations

while the stocks continue to grow to stable levels.

The improvements recorded in this year’s stocks report are evidence of the effectiveness of the agency’s fisheries management approach in its rebuilding programs. Now we have to fix problems in

25

the remaining fisheries, strengthen that data for those species

whose stock status is unknown, and target limited resources on activities that will most benefit fish stocks in fishing communities

that depend on these stocks.

I think this is the third time I have come before the Committee

on the Magnuson-Stevens reauthorization and related issues. Last

year NOAA Fisheries convened a working group that considered

potential problems in the Act. We worked from a list and we

narrowed the list and discussed these with key constituents, including the Councils. Today I am pleased to discuss a few highlights of the working group and thoughts concerning the draft bill

you have put forward.

First, the group has suggested exploring ways to improve the

Secretarial review process and to strengthen the NOAA/Council

consultation process. This will result in fewer emergencies and, at

the same time, make them more effective and timely.

Second, the committee, like your Committee, we support improved data collection and management and consider it a priority.

Various Federal laws require NOAA Fisheries to complete economic and social assessments associated with management decisions. Unfortunately there is a lack of adequate current economic

and social data. We are already working closely with the States

and others to share fishery data, but this is an area that needs attention.

Third, we believe provisions for observer data collection have not

been adequately addressed in the Act. In 1996, SFA amendments

resulted in significant progress of the North Pacific fisheries and

held that the Secretary should be allowed authority to prepare

monitoring plans for all fisheries as well as mechanisms to pay for

them in an equitable manner.

Fourth, the Committee’s draft bill addresses overcapacity. NOAA

Fisheries is working on a national plan of action for the reduction

of overall fishing capacity. The Councils and NOAA Fisheries have

utilized management actions and buybacks to deal with the problem. However, improvements can be made to capacity reduction

programs under section 312. We would like for the Committee to

look broadly at this issue with us and see if we can find a solution.

It is my belief that overcapacity is probably the number 1 issue we

have to address if we are going to get the fisheries back to sustainable fisheries.

Fifth, in some federally managed fisheries, we believe we can

manage resources with greater efficiency if the Councils and NOAA

Fisheries have IFQs available as a tool. NOAA Fisheries concurs

with the National Academy of Sciences’ recommendation that the

existing moratorium on IFQs should be allowed to lapse this October. Your proposed language provides a good starting point to reauthorize IFQs. We will work with you to ensure that language of the

reauthorized Magnuson-Stevens Act is consistent with our proposal

outlined in the 2003 budget and can be implemented most efficiently.

Next week we will have conducted a workshop in Galveston,

Texas which should provide us with additional information for

guidance as we go forward with IFQ. We will make this available

26

to you hopefully by May the 10th or 12th, in that neighborhood, so

you can have it as you move forward.

I also have some thoughts on other issues included in your draft

bill. First, I note the provision regarding overfishing and overfished

definition that the Committee is considering is very similar to the

concepts that we have been considering. These terms are used

interchangeably, making it confusing for the public to understand

the status of any given stock.

Dr. HOGARTH. Second, we recognize the importance of the focus

in the essential fish habitat measures on areas most essential to

fish stocks. The draft bill would amend the current requirement to

minimize adverse impacts of fishing on essential fish habitat. We

understand we have limited resources to dedicate toward habitat

protection, and we are interested in working with the Committee

to prioritize our activities in this area.

Third, regarding the application of the ecosystem principles, we

think this is headed in the right direction and consistent with current law. However, we must move forward in a way that would not

overburden current available resources.

Finally, although we have made progress at minimizing bycatch,

that lacks precise reduction goals and provides little guidance on

how to reduce nontarget catch and really what constitutes acceptable bycatch levels. Changes can be made such as implementing

valid levels of mandatory observable coverage in key fisheries, incentives to reduce bycatch, increase bycatch reduction gear, research and development and cooperative agreements with States.

We appreciate the Committee’s interest, and we are happy to

work with you to improve the discussion draft language.

NOAA Fisheries needs to be more transparent and timely, more

effective and service oriented. I have initiated a 5-year review of

our implementation of the Sustainable Fisheries Act. Working with

our Council partners, we are reviewing our priorities and addressing the 10 national standards, assessing gaps in their implementation and setting priorities and working at meeting the challenge of

completing this implementation.

Mr. Chairman, I thank you, and I will be very happy to answer

any questions.

[The prepared statement of Dr. Hogarth follows:]

Statement of Dr. William T. Hogarth, Assistant Administrator for Fisheries,

National Oceanic and Atmospheric Administration, U.S. Department of

Commerce

Good morning, Mr. Chairman and Members of the Committee:

I am Dr. William T. Hogarth, the Assistant Administrator for Fisheries, NOAA.

I want to thank you for the opportunity to be here today. I also want to commend

you, Mr. Chairman, and the Committee, for all of the work that you have done over

the past many months to move forward on the reauthorization of the Magnuson– Stevens Fishery Conservation and Management Act (MSFCMA).

It was just about a year ago that I testified before you and discussed the scope

of many of the issues facing the Committee with respect to reauthorization of the

MSFCMA. Since then, a lot has happened. Inside NOAA, we have been discussing

a broad range of ideas. We convened an internal working group that developed ideas

for a number of possible changes to the Act. And the Committee has been busy,

holding many hearings around the country and preparing the discussion draft bill

that you shared with us.

We do not have any specific legislative proposals for you today; but we would be

glad to continue working with your staff as it fleshes out the many ideas that are

being widely discussed throughout the country.

27

The significant amendments that were made in 1996 to the Act by the Sustainable Fisheries Act are only now beginning to take hold. We believe that these provisions deserve a more complete opportunity to take hold before enacting any major

changes to the basic cornerstones of the law.

However, we also recognize that many in the fisheries constituencies have been

concerned about many of the most basic concepts contained in the Act both before

and after the Sustainable Fisheries Act. We believe that even some of the modest

changes currently being discussed have the potential to greatly improve our fishery

management processes under the Act.

Today I would like to spend a few minutes discussing with the Committee the results of our working group, as well as our thoughts concerning some of the fundamental issues of marine fisheries governance facing us today.

Results of the NOAA Fisheries Working Group

The 1996 amendments to the Magnuson–Stevens Fishery Conservation and Management Act, known as the Sustainable Fisheries Act, included the most comprehensive revision of the basic law since it was first enacted in 1976. We in NOAA Fisheries, along with many in our extended fishery policy community, have been thinking seriously about reauthorization of the Act for three years. Last year, as these

efforts intensified, NOAA Fisheries convened a working group that considered more

than 60 potential problem areas in the administration of the Act. We have narrowed

that list to those that we believe might make the Act work better. We have discussed many of these issues with several of our key constituencies, including the

chairs of the Regional Fishery Management Councils and the Marine Fisheries Advisory Committee.

Our discussions and analysis reflect the view that the Magnuson–Stevens Act provides a basically sound legislative and procedural framework, and that only relatively modest changes are warranted. The issues that we considered mostly fell

into the following major categories:

(1) Fishery management plan (FMP) review and comment procedures

(2) Statutory definitions

(3) Fisheries law enforcement

(4) Collection and use of economic and social data

(5) Fisheries Observers

(6) Fishing capacity reduction

I would like to call the attention of the Committee to some of the highlights and

principal themes surfaced by the working group.

Fishery Management Plan Procedures. With respect to fishery management plan

reviews and comments, we have noted some inadvertent problems in the 1996

amendments to the Magnuson–Stevens Act. Our highest priority concern in this

area is the need to recouple the deadlines and procedures governing the FMP review

and comment procedures with the review of implementing regulations. In addition,

NOAA Fisheries would like to explore ways of improving the Secretarial review

process. Strengthening the preliminary Departmental review and the NOAA/Council

consultation process could result in fewer emergency actions and, at the same time,

make them more effective.

Definitions. Currently, the Act uses the terms ‘‘overfished’’ and ‘‘overfishing’’ interchangeably, which makes it confusing for the public to understand the status of any

given stock. ‘‘Overfished’’ applies to the state of a fishery resource, while ‘‘overfishing’’ applies to the act of fishing. In other words, the term ‘‘overfished’’ draws

attention to the resource, while the word ‘‘overfishing’’ denotes a level of human activity that adversely affects the resource. This distinction is important because of

its implications for rebuilding schedules.

Improving Law Enforcement and Compliance. With respect to fishery law enforcement, we are looking for ways to improve compliance with domestic fishery management regulations, and with various U.S. commitments in regional and international

organizations. A fundamental problem that NOAA Fisheries and the U.S. Coast

Guard have in enforcing our management regulations is the general absence of effective deterrents. We are considering ways to generally strengthen the hand of our

fisheries law enforcement authorities in deterring and prosecuting violations. A high

priority in this area would be to increase the maximum penalty, and promote more

effective State–Federal partnerships in fisheries law enforcement.

Social and Economic Information. The collection and use of economic and social

data are increasingly important in the entire fishery management process. Under

the Magnuson–Stevens Act and other laws (e.g., the National Environmental Policy

Act and the Regulatory Flexibility Act) and various Executive Orders, we and the

Councils are required to complete a number of economic and social assessments associated with management actions. One general problem that we have had in meetVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
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ing these mandates is a lack of adequate, up-to-date, and comprehensive information, particularly fishery and fishery dependent community economic and social

data. We would like to improve the Councils and our ability to conduct these assessments in conformity with these mandates. Priorities would be obtaining economic

information from processors; expanding the accessible scope of economic data; and

dealing more effectively with proprietary and confidential data.

Fisheries Observers. Sound science and fisheries management rely in many instances on data obtained from on-board fisheries observers. However, provisions for

collection of observer data have not been adequately addressed in the Magnuson– Stevens Act. The 1996 Sustainable Fisheries Act amendments made significant

progress on this issue, but only with respect to federally managed fisheries in the

North Pacific. To meet the need for expanded observer programs, the Secretary

should be allowed broad authority to prepare statistically valid, mandatory

monitoring plans for all fisheries. It would also be helpful if the Secretary were

given the authority to establish, in cooperation with the Councils, a mechanism to

pay for the costs of the monitoring plan in an equitable manner.

Fishing Capacity Reduction Program Financing. The last several years have witnessed mounting concerns over excessive levels of harvesting capacity in our federally managed fisheries. Overcapacity is basically a domestic concern, but the United

States has also addressed this issue though an international initiative, the United

Nations Food and Agriculture Organization-sponsored international plan of action

on the management of fishing capacity. In the domestic sphere, the Councils and

NOAA Fisheries have dealt with this problem through a number of means, including fishery management actions and recourse to buybacks of overcapacity in selected

fisheries. The 1996 amendments to the Magnuson–Stevens Act authorized a fishing

capacity reduction program in Section 312(b)–(e). NMFS acknowledges that these

provisions could be implemented more effectively and, accordingly, we are investigating changes that would facilitate the development and approval of specific fishing capacity reduction programs that might be used in concert with complementary

management tools such as entry limitations and individual quota systems.

Additional MSFCMA Reauthorization Issues

Mr. Chairman, in addition to the considerations of our working group last year,

there are other issues that are important to the governance of our marine fisheries

that many in the fisheries community are talking about. We in NOAA have been

considering these for a long time. Many of these issues have been raised at several

of the Committee’ hearings. However, while they are important, they require increased communication and careful implementation. We have not had the opportunity to consult with the Councils or MAFAC on these ideas as we did on the working groups’ considerations, and do not have any formal proposals to share with you.

I would like to discuss our current thinking in NOAA Fisheries on many of these

ideas in hopes of stimulating discussion and moving forward our consideration of

these important issues.

Individual Fishing Quotas. Perhaps no question has dominated fishery policy debates so consistently and pervasively since the earliest days of the Act as have Individual Fishing Quotas (IFQs). The first major national workshop on IFQs for the

regional fishery management councils was held in Denver in 1977. Since then the

issue has never failed to engender lively debate all around the country. Today we

have four IFQ programs in place. However, we also have many limitations on the

use of IFQs that arguably limit their effectiveness. In fact, there is even currently

a moratorium on the adoption of new IFQ programs by the Councils until October

of this year.

As I testified at the Committee’s February 13, 2002 IFQ hearing, NMFS concurs

with the National Academy of Sciences report that the existing moratorium on new

IFQs should be allowed to lapse in October 2002. We believe that, in some federally

managed fisheries, we can manage resources with greater efficiency if the Councils

and NMFS have IFQs available as a tool. We will be pleased to work with Congress

as it considers legislation to set additional appropriate conditions under which new

IFQ programs could be approved. The IFQ programs that are in place have worked

well and receive wide support within the affected fishing industry. It is unfortunate

and unreasonable that this one tool should be singled out for continued prohibition.

Several difficult and controversial issues remain regarding IFQs. These are broader than the Councils’ prerogative and may require national level guidance to Councils and regions where they are used. Congress ought to allow the regional councils

flexibility and discretion to address fishery-specific characteristics. NMFS is examining these and other IFQ issues such as foreign ownership, the collection of some

share of windfall profits and/or economic rent, and caps on cost recovery fees. Your

proposed language provides a good starting point to reauthorize IFQs. We would

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like to work with the Subcommittee on how best to ensure the final language in

a reauthorized Magnuson–Stevens Act is consistent with our proposal outlined in

the fiscal year 2003 Budget and can be implemented and operated most efficiently.

Ecosystems. Many suggestions are being made that would try to promote the application of ecosystems principles to marine fishery conservation and management.

We think that these efforts are heading in the right direction, and are consistent

with current law. It has been elementary to note the relationships among fish

stocks, and between fish stocks and their marine and estuarine environments; but

it is much more difficult to put ecosystems management into practice.

The data and the analytical and decision models currently do not fully support

the implementation of a comprehensive approach to fisheries ecosystems. Nevertheless, this is a direction that we need to move in. We would like to see each Council

develop an overall statement that considers the interrelationships of all of the

fisheries that the Council has under its management. This would be the precursor

in future years for detailed and comprehensive fisheries ecosystems plans.

We also would like to explore strengthening the basic policies and purposes of the

Act in the way that they emphasize the ecosystems implications of fisheries conservation and management.

Bycatch. Among the major provisions of the Sustainable Fisheries Act were requirements aimed at reducing and minimizing bycatch. Although we have made

some progress in this direction over the last five years, the Act still lacks precise

bycatch reduction goals, and provides little guidance on how to reduce non-target

catch and what would constitute acceptable bycatch levels. There is a widespread

sense in much of the fisheries constituency that we and the Councils have not done

enough to address this problem.

Getting a handle on bycatch and how to reduce and minimize it is expensive, perhaps more so than many other important uses of our fiscal resources. However, we

do believe that there are some additions and changes that could be made to the Act

that would improve the situation.

We are looking into the possibility of implementing a statistically valid level of

mandatory observer coverage in key fisheries. We are also considering incentives to

reduce bycatch in all fisheries where bycatch is a serious problem.

Matching Fishing Capacity to Available Resources. Overcapacity in the harvesting

sector plagues not only a number of federally-managed fisheries, but also many

fisheries around the world. The United States has been a leader in the international

community in articulating the need to match harvesting capacity to available fishery resources. We are currently working on a national plan of action for the reduction of overall fishing capacity in our fisheries. We have some tools in the Act to

deal with this, but our efforts under the MSA and other authorities have largely

been fractured and lacking effectiveness.

We believe that a lot more creative thinking needs to be applied to this problem.

We would like the Committee to work with us in looking broadly at this issue, including the effect and implications of other agencies’ programs.

Committee Issues

Mr. Chairman, we know that your staff has been working hard to put together

some ideas for a draft bill to reauthorize the Magnuson–Stevens Fishery Conservation and Management Act. We have had the opportunity to look at the language

that was included in the April 19, 2002, discussion draft, although we have not had

the opportunity to examine it carefully and provide detailed comments. What I

would like to do is comment on some of the main themes that we have seen in the

draft bill.

Overfishing. The definition of ‘‘overfishing’’ and ‘‘overfished’’ that the Committee

is considering is included in the options that we have been considering. When we

complete our review the Administration will share proposed language with the Committee.

Data Collection. I appreciate the Committee’s commitment to improving the collection of data on our marine recreational fisheries. We believe that the emphasis

for changes in the Act should be placed on collecting and managing the data. We

are already working closely with the states and others to share marine recreational

fisheries data. We look forward to working with you to improve these provisions.

We also welcome your attention to the needs for collecting economic data from the

processing sector.

Essential Fish Habitat. We recognize the importance of focusing essential fish

habitat measures on those areas which are, in fact, most essential to fish stocks.

The draft bill would amend the current requirement to minimize adverse effects of

fishing on essential fish habitat. Under this draft bill, the requirement would only

apply to fisheries for which there is available information on the growth, reproducVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
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tion, or survival rates within habitats or production rates by habitat B what our

essential fish habitat regulations refer to as Level 3 or Level 4 data—or for fishing

activities determined by a Council to jeopardize the ability to achieve maximum sustainable yield on a continuing basis. This type of conclusive scientific information

does not exist for any of our fisheries, excepting a few salmon stocks for which there

is some Level 3 or 4 information for small portions of their range in spawning rivers. We understand that we have limited resources to dedicate towards habitat protection and would be happy to work with the Committee to prioritize our activities

to yield maximum habitat benefits.

Other Issues. The draft bill addresses a number of issues that we believe are critical, such as overcapacity, buyouts, ecosystems and bycatch. Some of these are

issues that I have discussed elsewhere in this testimony, for example, bycatch. We

would also support a research program for bycatch reduction gear research and

development, and would suggest that this include a technology transfer program,

and cooperative agreements with the states. We would be happy to work with the

Committee to improve the discussion draft language.

We very much appreciate the Committee focusing its attention on these and we

look forward to working with your staff in the development of this legislation.

Conclusion

Mr. Chairman, these are exciting times in the history of our development and implementation of effective conservation and management for the Nation’s valuable

marine fisheries. They are also often difficult times, and always challenging. You

have all heard me talk about the need to make NOAA Fisheries more responsive

and open, more transparent and timely, more effective and service-oriented. I have

initiated a 5-year review of the implementation of the Sustainable Fisheries Act in

order to get a better picture of what is working and how we can make the Act work

better. I am convinced that we can make this work.

A lot of times it is natural for us to look at the negative. But I think we also have

a lot going on that gives us reason to accentuate the positive. Our recent report to

the Congress showed that the number of fisheries listed as overfished is beginning

to decline.

The Sustainable Fisheries Act gave all of us tremendous impetus to begin moving

seriously and effectively in new directions. I believe that much of the potential of

the SFA still needs to be explored. We have also tried today to begin to outline some

fundamental issues that many of us have been considering, and outline some solutions. Not all of these will be popular in all circles, but it is time that we discuss

these issues forthrightly and work together toward some real improvements in how

we manage marine fisheries. We in NOAA Fisheries look forward to working with

the Committee, with your staff, with the Regional Fishery Management Councils,

the states and the commercial fishing, recreational fishing, environmental, scientific

and other marine fisheries communities.

Thank you, Mr. Chairman. I would be glad to answer any questions.

Mr. GILCHREST. Thank you, Dr. Hogarth. Mr. Savage.

STATEMENT OF RICKS SAVAGE, CHAIRMAN, MID-ATLANTIC

FISHERY MANAGEMENT COUNCIL

Mr. SAVAGE. Good afternoon, Chairman Gilchrest, members of

the Subcommittee. I am Rick Savage, Chair of the Mid-Atlantic

Fisheries Management Council.

Mr. GILCHREST. Is your mike on, Mr. Savage?

Mr. SAVAGE. Yes, sir. My written comments reflect the views of

all eight Regional Fishery Management Councils. I am generally in

favor of individual transferable quotas.

First, I would like to reiterate the position that the chairman of

the eight regional councils have expressed to you last year by our

former Mid-Atlantic Council Chairman, Dr. James Gilford. He testified that the consensus view developed in May 1999 in the 2000

Council chairmen’s meetings was that the blanket moratorium on

IFQs and ITQs should be lifted and that the Council should have

those tools available as possible management options. IFQs and

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ITQs provide fishery managers an option for assuring stakeholders

long-term benefits of rebuilding programs.

There should be minimal national standards on transferability

and the ability to charge fees, but councils should have the maximum flexibility to develop IFQs or ITQ programs which recognize

the unique characteristics of specific fisheries. Since then, they

have reaffirmed this position at their 2001 meeting.

Now I will tell you my personal experience with the surf clam

and ITQ surf clam and ocean climber ITQ fisheries, which became

the Nation’s first ITQ program. My father was an ocean climber

from 1949 until the mid-1980’s. I started working with him when

I was 15. I owned clam boats from 1964 until just before the ITQ

program came in in 1990. The Mid-Atlantic Council initiated development of the Nation’s first EEZ fishery management plan for

these two resources at its first council meeting in September 1976

and implemented management measures in 1977.

By 1981, we were on the third amendment to the FMP. The surf

clam resource had been significantly overfished prior to the Federal

management, but by the early 1980’s it was being rapidly rebuilt.

Unfortunately, our effort-based management system was becoming

rather Draconian. With initiation of the plan, we restricted fishing

to 96 hours per week per vessel. We ratcheted down the allowable

fishing time to not exceed the maximum sustainable yield target.

But as the surf clam resource began to rebuild and as the catch

rates climbed, we were obliged to further reduce fishing effort.

By 1985, allowable time was reduced to only 3 hours per week.

We actually worked 6 hours every other week.

Effort management was clearly not working. ITQs were initially

discussed by the Council and industry in the late 1970’s, but it was

not until the mid-1980’s that nearly everyone agreed that the resource and the increase in efficiency of the vessels were—there was

too much capital invested to support all of the vessels in the fishery. Overcapitalization and the cliche ‘‘too many boats chasing too

few fish’’ can apply not only when a resource is overfished, but also

when a resource is healthy.

In 1979, there were 168 permitted surf clam vessels. In 1990, the

ITQ system was implemented and the surf clam fishery numbered

128 vessels. By 1992, the surf clam fleet had consolidated to 59

vessels and by 2000, there were only 31 vessels landing surf clams.

That was just surf clams.

Industry consolidated itself. There was no multi-million dollar

buyout by the Federal Government as there has been in the New

England ground fish fishery. The industry capital and the fishery

is now used much more efficiently as the average boat, which made

34 trips in 1990, made 56 trips by 1992 and made 69 trips in 2000.

Individual surf clam vessels have greatly increased their production and thus the economic health of the individual vessels remaining in the fishery has greatly improved.

In 1990, the average annual catch of the surf clam vessel landed

was about 24,000 bushels. The landing amount doubled by 1992,

and by 2000 it was over 77,000 bushels.

Enforcement and compliance with the regulations were also

areas which showed dramatic improvement following implementation of the ITQ program. Cheating under the prior system genVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6602 79374.TXT HRESOUR1 PsN: HRESOUR1
32

erally took the form of fishing longer than your allocated hours. Everybody fished on the back end, not on the front end. Poaching in

the areas closed for nursery grounds was also a problem. These

rules were very expensive to enforce, as they required Coast Guard

cutter and aircraft to observe vessels at sea for purposes of detecting such violations.

With ITQ management the world changed. First, there were no

more time limits. People could fish when they wanted, and they

didn’t need to race for the resource. This improved both safety and

profitability. Fishing rights were no longer tied to boats. Industry

could finally consolidate the fleet and use only as many boats as

were needed to catch the quota. This brought tremendous savings

to the industry.

Enforcement efforts were allowed to switch from costly at-sea operations to comparatively cheap dock-side enforcement as the clams

were moved to the processing plant. This saved taxpayers large

amounts in Coast Guard cutter and aircraft time.

Cheating fell dramatically for two reasons. First, people are a lot

less likely to break the rules when they are finally able to make

a decent living from their work. Second, the right to fish one’s

quota is very valuable, and they are put at risk if one is caught

repeatedly. Hence, people are going to think twice before undertaking an illegal activity that if detected and penalized could result

in the loss of their further income stream that an ITQ represents.

Finally, we as Council members could stop micromanaging the

clam industry. Instead of trying to regulate what goes into an industry such as when people fish, where people fish, how people

fish, what gear people use, what size boat people use, we could just

specify by an annual quota what comes out of the fishery each year

and leave the rest to the industry.

Right now the surf clam and ocean fisheries require very little

government time to manage. Before the ITQ management, the

Council had to address issues on a clam plan at almost every meeting.

ITQs are successful in the surf clam industry because the Council prevented overfishing with the initiation and management.

There was extensive council, industry, National Marine Fisheries

Service cooperation. The industry itself was vertically integrated

and had a limited fishery. The industry provided excellent data

through logbooks. NMFS devoted sufficient scientific effort toward

the research, and finally there are minimal bycatch, discard and

essential fish habitat issues.

The Mid-Atlantic Council takes great pride in its clam ITQ management efforts. More than once in the past decade, scientists at

the Northeast Fisheries Science Center stock assessment meetings

have labeled this the best managed fishery in the United States,

if not the world.

It may be that not all fisheries are appropriate for this type of

management, and it may be that ITQs are not a one-size-fits-all

management tool, but give the Councils the flexibility to make that

decision. Give the Councils the authority to use or not to use ITQ

management options.

Our Council has discussed ITQs for other Mid-Atlantic resources

and supports the pro-ITQ position of the Mid-Atlantic scallop inVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 79374.TXT HRESOUR1 PsN: HRESOUR1
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dustry. Our Loligo squid and tilefish fisheries, which are each limited to less than a hundred vessels, are basically single species

fisheries, with the ideal candidates for this management approach.

Congress should lift the moratorium and restore this very useful

management tool to the Council.

I appreciate your having invited me, and I thank you for allowing me to express my views about reauthorization of the

Magnuson-Stevens Act. Thank you very much.

[The prepared statement of Mr. Savage follows:]

Statement of Ricks E. Savage, Chairman, Mid–Atlantic Fishery

Management Council

RECOMMENDATIONS OF THE REGIONAL FISHERY MANAGEMENT COUNCIL CHAIRS

REGARDING MAGNUSON–STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

REAUTHORIZATION ISSUES

MAY 23, 2001

At the 2001 Council Chairs’ meeting, representatives from the eight regional fishery management Councils reached consensus on a variety of recommendations associated with reauthorizing the Magnuson–Stevens Fishery Conservation and Management Act (MSA). These recommendations are listed below, first as a group of

‘‘Highest Priority Issues’’ and then as ‘‘Other Significant Issues.’’ Other than these

two groupings, no relative priorities are assigned.

Highest Priority Issues

• NEPA

The process for social and economic analysis, scientific review, and public comment specified in the MSA is substantially the same as the process specified under

the National Environmental Policy Act (NEPA). However, the time line and administrative process under these two Acts often conflict. These conflicts have led to cumbersome and unnecessarily complex administrative procedures resulting in long

delays between the time that decisions are made and regulations are adopted. They

have also created significant opportunities for procedural lawsuits that frustrate

Council conservation actions. The Congress needs to resolve these conflicts between

statutes in order to clarify and streamline the process. The following is submitted

as a possible remedy to the effects of litigation on Council management actions:

• Section 305(f)...Judicial Review

Purpose: to clarify that the Secretary’s failure to comply with the NEPA in the

management of a fishery under the MSA should result only in judicial guidance regarding NEPA compliance rather than judicial management of, or injunction

against, a fishery.

Amendment: We suggest the following subparagraph be added to Section 305.

Paragraph (f) is amended by redesignating subparagraph (4) as subparagraph (5),

and inserting after subparagraph (3) the following:

(4) If the secretary has failed to comply with the NEPA, Section 4332 of Title 42,

United States Code, in the management of a fishery under this Act, the exclusive

remedy shall be an injunction related to the substance of the environmental analysis or the process for developing such analysis.

• Section 3(29) and Section 304(e)...Redefine Overfishing

The Council Chairs believe that there are a number of problems related to maximum sustainable yield (MSY)-based definitions of overfishing. For example, data

deficiencies may lead to inappropriate calculations of MSY, that in turn skew overfishing definitions. Ultimately, this could lead to unnecessary social and economic

dislocation for fishermen who are subject to measures that are tied to stock rebuilding schedules skewed by unrealistic overfishing definitions. We would like to work

with the Congress in seeking solutions to our concerns as the re-authorization process proceeds.

• Section 303(a)(7)...Essential Fish Habitat

The Sustainable Fisheries Act (SFA) required Councils to identify and describe essential fish habitat (EFH), but gave little direction on how to designate EFH. The

EFH definition, i.e., ‘‘those waters and substrate necessary for fish for spawning,

breeding, feeding or growth to maturity,’’ allows for a broad interpretation. The EFH

Interim Final Rule encouraged Councils to interpret data on relative abundance and

distribution for the life history stages of each species in a risk-averse manner. This

34

led to EFH designations that were criticized by some as too far-reaching. ‘‘If everything is designated as essential then nothing is essential,’’ was a common criticism.

The Council Chairs believe that the current definition and descriptions of EFH

serve a very useful purpose in the consultation process between NMFS and agencies

that are responsible for permitting or carrying out proposed development projects

in the marine environment. Those waters and substrates necessary to fish for

spawning, breeding, feeding, or growth to maturity are all habitats of importance

to each fishery stock, and the range of each stock from egg to maturity is overlapped

by the ranges of hundreds of other stocks. The Council Chairs do, however, endorse

the concept of using habitat areas of particular concern (HAPCs) as the next step

in describing areas of EFH critical to certain life history stages for each stock, as

proposed in the two Senate bills drafted in 2000. For years a number of Councils

have established HAPCs to protect pristine coral reef habitats and spawning aggregation sites.

• Section 304(e)(4)(A)...Rebuilding Periods

Without a doubt, the Council Chairs support rebuilding targets under the SFA;

however, the Councils should have greater latitude for specifying rebuilding periods

than is provided under the National Standard Guidelines. The Council Chairs recommend that ‘‘the SFA be amended to provide sufficient flexibility to make shortterm adjustments to rebuilding targets/programs to account for scientific uncertainty, natural variation, current stock status, current stock trends, and multi-species fishery relationships’’.

• Executive Order for MPAs

The Council Chairs recognize that there is a conservation benefit realized by establishing marine protected areas (MPAs). The Councils have had the authority to

establish MPAs for fisheries management and have done so since the first fisheries

management plans were implemented under the MSA. The Councils are and will

remain in the best position to determine when and what areas should be closed to

fishing activities to protect fish stocks and habitat in the EEZ.

The Council Chairs recommend that Executive Order 13158 be rescinded, or alternatively, amended to reaffirm the sole authority of NOAA and the Councils to manage marine fisheries in the EEZ. Also, Congress should review the MPA issue and

possibly develop legislation to clarify jurisdictional issues, set criteria for MPAs, and

establish clear administrative procedures for establishing MPAs which among other

things, reinforces the role of the states, territories, and Councils in managing marine fisheries.

• Section 303(d)(1)...Rescinding the Congressional Prohibitions on IFQs and ITQs

Section 303(d)(1) of the MSA prohibited a Council from submitting or the Secretary from approving an Individual Fishing Quota (IFQ) system before October 1,

2000. More recently, through the fiscal year 2001 Appropriation Act, this moratorium on IFQs/ITQs was extended for an additional two years. If the reauthorization

process is completed in 2001, the Council Chairs support rescinding the moratorium

before the year 2002 deadline. The Council Chairs recommend that MSA be amended to provide maximum flexibility to the Councils to tailor IFQ programs to specific

regional, social, economic, and fishery conditions. Councils should have clear authority to address transferability and ownership issues; include harvesters, processors,

and communities in such programs; promote conservation; and include measures

necessary to successfully monitor and enforce the provisions of such a program.

• Section 313(a): see also Section 403...Observer Program

The Council Chairs reaffirm their support for 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, but

not necessarily limited to use of ex-vessel value as the basis in setting fees.

• Endangered Species Act (ESA)/Marine Mammal Protection Act (MMPA)

The Council Chairs recommend that the Councils be identified, for purposes of

consultation, as being action agencies under the ESA and the MMPA, thereby being

able to participate in the development of biological opinions.

ESA and MMPA considerations are playing an increasingly significant role in

Council fishery management activities. The NMFS has stated that Councils ‘‘have

a critical role in management of federal fisheries’’ and ‘‘must be aware of effects of

proposed fishery management actions on listed species’’. However, NMFS and

NOAA/GC have determined that the Councils are not federal action agencies; therefore, they are not included in the consultation process.

By foreclosing the opportunity to participate in the consultation process, NMFS

and NOAA/GC have made it virtually impossible for Councils to meaningfully address their responsibilities under MSA, ESA, and MMPA.

35

Therefore, the Council Chairs recommend that the MSA be modified to specify

that the Councils are deemed to be action agencies for purposes of formal consultation under ESA and MMPA. • Section 304(a) and (b)...Coordinated Review and Approval of Plans and their

Amendments and Regulations

The SFA amended Sections 304(a) and (b) of the MSA to create separate sections

for the review and approval of fishery management plans (FMPs) and amendments,

and for the review and approval of regulations. Accordingly, the approval process

for these two actions now proceeds on separate tracks, rather than concurrently.

The SFA also deleted the 304(a) provision allowing disapproval or partial disapproval of an amendment within the first 15 days of transmission. The Council

Chairs recommend modification of these provisions to include the original language

allowing concurrent approval of FMPs, amendments and regulations, and providing

for the initial 15-day disapproval process. The Councils would also like the ability

to resubmit responsive measures rather than having to submit a complete FMP or

amendment as is now required by subsection (4) of Section 304(a). • Section 304(a)...FMP Review Program

The Council Chairs believe that NMFS, in its review of proposed FMPs, amendments, and framework actions, has failed to adequately communicate to the Councils perceived problems in a timely manner. We propose the inclusion of a mandate

in the MSA to require an abbreviated rule-making process in which NMFS would

consult with the Councils and consider such new information as provided by the

Councils before disapproving FMPs, amendments, or framework actions submitted

by the Councils for NMFS approval.

Other Significant Issues

• Section 302(d)...Council Member Compensation

The MSA should specify that Council-member compensation be based on the General Schedule that includes locality pay associated with the geographic locations of

the Councils’ offices. This action would provide for a more equitable salary compensation. Salaries of members serving in Alaska, the Caribbean, and Western Pacific are adjusted by a COLA. The salary of the federal members of the Councils

includes locality pay. The Department of Commerce has issued a legal opinion that

prohibits Council members in the continental U.S. from receiving locality pay. Congressional action, therefore, is necessary to implement this change.

• Section 302(f)(4) and (7)...Receipt of Funds from any State or Federal Government Organization

Currently Councils can receive funds only from the Department of Commerce,

NOAA or NMFS. The Councils routinely work with other governmental and nongovernmental organizations to support research, workshops, conferences, or to procure contractual services. In a number of cases, complex dual contacts, timely passthroughs, and unnecessary administrative or grant oversight are required to complete the task. The Councils request a change that would give them authority to

receive funds or support from local, state, and other federal government agencies

and non-profit organizations. This would be consistent with Section 302(f)(4) that requires the Administrator of General Services to provide support to the Councils.

• Section 302(i)(3)(A)(ii)...Review of Research Proposals

The MSA should be amended to include a provision for the Councils to close meetings to the public for the purposes of reviewing research proposals. Some of the

Councils now provide and administer funding to researchers and fishermen for data

collection and other research purposes. The proposals submitted to the Councils for

funding may contain proprietary information that the submitters do not want to

make public for various reasons. It will be in the best interests of this process for

the Councils to have the ability to close meetings to consider these proposals.

• Section 303(b)...Regulating Non–Fishing Activities of Vessels

The Council Chairs recommend that Section 303(b) of the MSA be amended to

provide authority to Councils to regulate non-fishing activities by vessels that could

adversely impact fisheries or EFH. One of the most damaging activities to such

habitat is the anchoring of large vessels near HAPCs and other EFH (e.g., coral

reefs, etc.). When these ships swing on the anchor chain deployed in 100 feet of

water, 10 to 20 acres of bottom may be plowed up by the chain dragging over the

bottom. Regulation of this type of activity by the Councils should be authorized.

• Section 303(b)(7)...Collection of Economic Data

The MSA specifies the collection of biological, economic, and socio-cultural data

to meet specific objectives of the MSA, and requires 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 inforVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
36

mation.’’ The 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 National

Standard 2: ‘‘...conservation and management measures shall be based upon the

best scientific information...’’, National Standard 8: ‘‘...to the extent practicable, minimize adverse economic impacts...’’, and other requirements of the MSA and the Regulatory Flexibility Act (RFA).

The Council Chairs recommend resolution of these inconsistencies by amending

the MSA to eliminate the 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 a federal FMP to submit economic data. 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 analyses while simultaneously prohibiting the collection

of economic data necessary for such analyses. • Section 303(d)(5) and Section 304(d)(2)...Establishment of Fees

The Council Chairs are opposed to the imposition of fees that are not regional in

nature and established by the Councils. However, we do support the National Academy of Science’s recommendation that Congressional action allow the Councils maximum flexibility in designing IFQ systems and allow flexibility in setting the fees

to be charged for initial allocations, first sale and leasing of IFQs. • Section 305(c)(2)(A)...NMFS Regional Administrator Emergency or Interim Action Vote

For the purpose of preserving the Secretary’s authority to reject a Council’s re- quest for emergency or interim action, each NMFS Regional Administrator currently

instructed to cast a negative vote even if he/she supports the action. While we recognize the extreme sensitivity in recommending a change to the voting responsibilities

of our partners in the NMFS, we certainly do not wish to appear to be disparaging

the Regional Administrator in any way. However, the Council Chairs believe that

Congressional intent is being violated by this policy. We suggest a modification to

the MSA as follows (new language in bold):

(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 ... • Section 311(a)...Enforcement

The Council Chairs support the implementation of cooperative state/federal enforcement programs patterned after the NMFS/South Carolina enforcement cooperative agreement. We applaud the inclusion of $15 million in the 2001 NMFS budget

to expand the program to other states. While it is not necessary to amend the MSA

to establish such programs, Congressional action is needed to enhance management

under the MSA to establish permanent funding for such cooperative state/federal

programs.

• Section 312 (a)...Fisheries Disaster Relief

Purpose: to make available fishery disaster relief funds for fisheries being closed,

or severely curtailed as a result of judicial decisions.

Amendment: We suggest modifying Section 312 of the Act as follows (new language in bold):

(a)...

(1) At the discretion of the Secretary or at the request of the Governor of an affected state or a fishing community, the Secretary shall determine whether there

is a commercial fishery failure due to a fishery resource disaster as a result of

(A)...

(B)...

(C)...

(2) or closures imposed by a court to a fishery [Redesignate paragraphs (2), (3),

and (4) as paragraphs (3), (4), and (5)]

Revise new paragraph (3) as follows (new language in bold): Upon the determination under paragraph (1) or (2) that there is a commercial fishery failure, or a judicial closure of the fishery the Secretary...

• Section 402(b)(1) and (2)...Confidentiality of Information

Section 402 replaced and modified former Sections 303(b) and (e). The SFA replaced the word ‘‘statistics’’ with the word ‘‘information’’, expanded confidential protection for 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 by allowing for disclosure in several new

circumstances.

37

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 about observer information. The revised section would read as follows (additions in bold);

(b) CONFIDENTIALITY OF INFORMATION -

(3) Any information submitted to the Secretary by any person in compliance with

any requirement under this Act that would disclose proprietary or confidential commercial or financial information regarding fishing operations, or fish processing operations shall be confidential information and shall not be disclosed, except...

(4) 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 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). • Bycatch Issues

There appears to be an inconsistent definition of bycatch, depending on geography. 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, but in the Pacific they are. We suggest

that highly migratory species in the Pacific, managed under a Western Pacific Council FMP and tagged and released alive under a scientific or recreational fishery tag

and release program, should not be considered bycatch. Note that there also is an

inconsistency between the MSA definitions of bycatch and the NMFS Bycatch Plan.

The NMFS definition is much broader and includes marine mammals and birds as

well as retention of non-target species. The Council Chairs prefer the MSA definition. We also wish to retain turtles in the definitions 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. • Section 302(i)(2)(c)...Notification of Meetings

The Council Chairs recommend that this section be modified to read: ‘‘notice of

meetings be submitted for publication in local newspapers in the major fishing

ports, or by other means that will result in wide publicity’’. Other means such as

press releases, direct mailings, newsletters, e-mail broadcasts, and web page updates of activities and events, including Council meetings are far more effective in

communicating with our target audience than a legal notice in a local newspaper. • Section 302(a)(1)(D) Caribbean Council

The Council Chairs request that Section 302(a)(1)(D) of the MSA be amended by

inserting ‘‘Navassa Island,’’ before ‘‘the Virgin Islands’’.

Mr. GILCHREST. Thank you, Mr. Savage. I will start with Mr.

Tauzin.

Mr. TAUZIN. Thank you, Mr. Chairman, and I want to thank the

witnesses.

In regard to the recommendations you made, Dr. Hogarth, in

terms of the Chairman’s draft, let me ask you a couple of questions

regarding some proposals that we are interested in and get your

focus on them. In regards to the term and the use of the idea— using the best scientific information available in making decisions

regarding fisheries management plans, do you have any trouble

with the notion that the—that idea that the best scientific information available should be information that is determined to be directly related to the specific issue under consideration?

Dr. HOGARTH. The only concern I would have, as you look toward

ecosystem management, I think you have to look at the big picture

than if you can take the fact that you are looking at the ecosystem

and the data that is available for the—but I would be concerned

if we didn’t look at the big picture.

38

Mr. TAUZIN. But in regards to looking at the big picture,

shouldn’t you be concerned about the specific issue under consideration?

Dr. HOGARTH. Yes.

Mr. TAUZIN. As the information relates to it in the process?

Dr. HOGARTH. That is correct.

Mr. TAUZIN. Second, should it be based on the statistically valid

samples, such that conclusions can be drawn that are reasonable

and not speculative?

Dr. HOGARTH. Well, I think the resources available, you know,

we have to sample, to the best we can, do the surveys. And we try

to supplement that we can check the cooperative research money

that the Congress has provided. But I don’t think the lack of data

should prevent us from protecting the resource, no, sir.

Mr. TAUZIN. So you are saying that the best available information should not be based upon statistically valid samples?

Dr. HOGARTH. I think the— Mr. TAUZIN. When they are not available?

Dr. HOGARTH. I think the goal should be always to get the best

data that you can get and— Mr. TAUZIN. You should get statistically valid samples whenever

you can, right?

Dr. HOGARTH. That is right.

Mr. TAUZIN. So the term ‘‘best available information’’ can include

statistically valid samples. You ought to go get them, shouldn’t

you?

Dr. HOGARTH. That is correct, yes, sir.

Mr. TAUZIN. Third, do you have any problem with those—that

term ‘‘statistically’’—‘‘the best scientific information available’’—do

you have any problem with it being adequately and independently

peer reviewed?

Dr. HOGARTH. No, sir. We are trying to get all that data peer reviewed.

Mr. TAUZIN. I think that is a good idea, too. Do you disagree that

the information that is going to be the best scientifically available

information should at least—you ought to try to collect it within a

timeframe that is reasonably related to the specific issue under

consideration?

Dr. HOGARTH. Yes, sir.

Mr. TAUZIN. There ought to be more recent information if you

can get it, right?

Dr. HOGARTH. That is correct.

Mr. TAUZIN. So if you are going to use best scientific information

available, you want to try to get recent information, statistically

valid samples. You ought to at least include evidence, information

regarding the specific issue under consideration while you may be

looking at a broader picture. And should it also be consistent with

information that is available from other reliable sources?

Dr. HOGARTH. I think all information available should be put on

the table.

Mr. TAUZIN. See whether it makes sense with other things you

already know, right?

Dr. HOGARTH. All the data should come to the table and be evaluated.

39

Mr. TAUZIN. And could it include but not be limited to anecdotal

information collected from the harvesting and processing of fish?

As long as you said that that wasn’t enough, could you at least include as part of the consideration anecdotal information collected

in such a process?

Dr. HOGARTH. Give me just a minute to explain this. I think anecdotal information is good to help you determine what may have

taken place, but it is very difficult to put, you know, statistical

valid—

Mr. TAUZIN. What I am saying is you wouldn’t exclude it.

Dr. HOGARTH. No.

Mr. TAUZIN. I am going to run out of time so I want to hurry

with this. Would you have any trouble in allowing each Council to

establish, if it wants to, scientific review committees?

Dr. HOGARTH. No, sir. I think—

Mr. TAUZIN. Would you have any problem with giving the Councils the ability rather than to regulate the entire Exclusive Economic Zone but actually to look at habitat areas of particular concern so they can focus in on other marine activities that might be

impacting an area of fisheries other than just fisheries?

Dr. HOGARTH. I am not sure if I quite understand that. You are

talking about areas of particular concern?

Mr. TAUZIN. Well, right now the whole Exclusive Economic Zone

has now been defined as the fisheries habitat, essential fisheries

habitat. What I am suggesting is wouldn’t it be helpful if the committees were allowed to look at habitat areas of particular concern

within the entire economic zone so they could focus in on activities

that may be harmful to fisheries?

Dr. HOGARTH. Those are most critical life stages, yes.

Mr. TAUZIN. It might be worth doing, would it not be?

Dr. HOGARTH. That is correct.

Mr. TAUZIN. I am going to run out but I want to get this one in

if I can. The term ‘‘maximum sustainable yield’’ has generally been

used in the way that law and the implementation has worked to

mean the greatest yield and the best year, the best environmental

condition. Do you or will you concede to me that depending upon

environmental conditions, environmental conditions change, that

the notion of maximum sustainable yield could be impacted by

things other than fishing? That is going to be impacted by environmental conditions, could it not?

Dr. HOGARTH. That is correct.

Mr. TAUZIN. Should not that term take that into consideration in

the way we implement the law?

Dr. HOGARTH. It should and I think it does in many instances,

yes.

Mr. TAUZIN. If it doesn’t adequately, you wouldn’t have any problem with us trying to make sure it does?

Dr. HOGARTH. I like the terms you were using.

Mr. TAUZIN. That is a good answer. You obviously want to see

it. But I am just trying to get the principle in mind. You don’t have

a problem with the term taking into account, as it probably should,

the environmental conditions that might affect maximum sustainable yield?

40

Dr. HOGARTH. No, because I think the harvest levels we try to

put in place reflect that, and the environmental conditions— Mr. TAUZIN. And, Mr. Chairman, I know I am out of time, but

we always ask that cumulative effects be examined on the state of

the fisheries, on the habitat. Well, we say, don’t just look at what

one guy is doing or what one person is doing or what one activity

does. You want to look at all of these activities together to see if

the cumulative effect of these activities adversely affects the habitat.

Would you have any problem when the law and the implementation of the law has to examine the effects on the economic side, on

the commercial fishing side, that it also have the same responsibility, looking at cumulative effects of other activities or perhaps

other decisions?

For example, with the Department, they are making three different decisions, each one of which taken alone may not have a significant impact on the commercial fishing community or the commercial fisheries, but collectively the three decisions may be devastating. Do you have any problem with our law at least asking the

Department and asking them to at least look at the cumulative effects of its multiple decisions upon the commercial fisheries?

Dr. HOGARTH. No. I think that is part of the assessment we try

to make now, particularly on a community basis.

Mr. TAUZIN. I know you try to do that now, but would you have

any problem if we made sure that you always did it?

Dr. HOGARTH. As long as you give us the mechanism to gather

the social and economic data necessary to make it.

Mr. TAUZIN. Thank you, Mr. Chairman.

Mr. GILCHREST. Thank you, Mr. Tauzin. I think Mr. Tauzin very

eloquently described, in my judgment, an approach that is necessary to manage our fisheries, which is in a comprehensive way

looking at more than just the impact of fishing. That is what an

ecosystem approach is.

Mr. TAUZIN. But if the Chairman would yield, likewise I think

we also have—if we are going to have a balance I think we have

always wanted in this decisionmaking, we have to take the same

sort of holistic approach when we examine the effect of various decisions upon commercial fishing or the commercial fishing community, so that we take into account environmental changes that

would affect maximum sustainable yield, would take into account

how recent the information is and how statistically valid the samples were and how reasonable the conclusions were based upon

other known factors, how several decisions collectively might impact.

Those are all things I think that require fairness and balance in

this process, with the goal in mind always—you have said it best—

let me get your name. Mr. Savage. You said it best in the end. If

this is all going to work right, the commercial fisheries industry is

going to be as sustainable as the fisheries, because they both need

one another.

Mr. GILCHREST. That is what this is all about.

Dr. HOGARTH. Just one last thing. I think the key to this, too,

is to make sure that we manage fish areas, and if the environmental conditions are changing drastically and we cannot control

41

those, you cannot let the fishing go uncontrolled, because then you

will get stocks to the point that you cannot rebuild. So I am saying

you have to be very careful that you look at the fishing impact on

top of or in combination with the environmental. We can’t control

many environmental things that have taken place, and if you don’t

do that, then we could just let the fishing go and then you would

have stocks so overfished that you wouldn’t have any economic balance out of it, period.

Mr. TAUZIN. If the gentleman would yield, I didn’t suggest that.

All I suggested was that if you use as a criteria defined maximum

sustainable yield, the yield that can be achieved under the most extraordinarily perfect environmental condition, if that is your target

all the time, it is an unnatural target. There are average environmental conditions. There are highs and lows, just as there are in

the affairs of men and women and the affairs of life, and the environment goes up and down. But if you always use this as the only

goal, as the measure in which you are going to relate all of your

decisions and you don’t take into account that there is an average,

some mean somewhere, a golden mean that the Greeks talked

about in all of their writings, if you don’t take that into account

somewhere, you have got an artificial is all I am saying.

No, you should never let the fishery stock be managed on the

basis of the worst environmental conditions either, because you

lose them all and you will lose the commercial fishing industry

with it, as well as the great stocks of fish.

Thank you, sir.

Mr. GILCHREST. I thank you, Mr. Tauzin. Since there is a potential that Mr. Tauzin is going to drop a bill dealing with the

Magnuson Act and the issue of maximum sustainable yield which

is so critical. In fact, to a large extent, it is one of the pillars upon

which the fisheries depends. I would offer an invitation to speak at

length with Mr. Tauzin about a number of people’s perspective on

that term ‘‘maximum sustainable yield’’ and how we can use that,

with some flexibility, with the concept of the precautionary approach that will in fact improve the fishery by ensuring that there

are more fish and the commercial industry can be even healthier.

Mr. TAUZIN. Again, we can’t conduct our negotiations like this,

but I took Mr. Hogarth through a number of the provisions that we

would like to see some attention paid in the process of marking up

a new bill, and they are included in a potential draft of the bill that

we would file. And I would certainly welcome the opportunity to

negotiate with the gentleman on those terms and to indeed allow

him to explore ways in which even our own ideas might be improved.

Mr. GILCHREST. And I say that as we move forward with the legislation, so that by the time we reach the House floor there will be

a good deal of mutual understanding as the process moves forward.

Mr. TAUZIN. Thank you.

Mr. GILCHREST. The gentleman from New York, Mr. Grucci.

Mr. GRUCCI. I am glad that you asked that question, Mr. Tauzin,

because I represent a district that commercial fishing represents

about $150 million to the economy, and I represent a district that

has Montauk Point in it and Orient Point in it, and our fishermen

are out in the ocean, Sag Harbor, which you know very well. It is

42

a beautiful district, and its commercial fishing is a very healthy

part of it, and I must admit I have come to this argument a little

late, in the sense that I have dealt with it now for about a year

and a half since I became a Member of Congress, not recognizing

the huge, huge obstacles that lie in the face of our commercial fishermen, and all that they want to do is try to make a living.

They said to me very compellingly—and I have to tend to agree

with them after hearing their argument—that no one is more concerned about the health of the fishing industry or the stocks, the

quality of water than they are. That is how they put their kids

through school. That is how they put a roof over their head. That

is how they pay their bills, make their living. They certainly don’t

want to deplete their inventory, and they certainly don’t want to

pollute the asset that gives them that.

So they are very concerned about it, too, but they have a real

problem with these terminologies of ‘‘maximum sustainable yield,’’

and the way it was kind of described to me, it is almost a goal that

you can never accomplish, you can never reach. Somewhere along

the line something was established, and the battle now goes, how

do you get there every year, and each year the fishing industry has

less and less opportunity to fish a stock that may very well be on

its way back.

One of the things that was brought out to me—and I will get to

a question in just a moment for you,Mr. Hogarth—is that when the

data was being collected for the determination on the sustainable

yield and whether or not the fishing stock was coming back, was

that what was being harvested in boats that were being used for

purposes of gathering this data—they were working next to commercial fishing boats, and what was coming up from the vessels

that were designed to provide the catch for the data was woefully

less than that which was coming up from the commercial fishing

boats.

The argument being made is that commercial fisherman know

how to fish and that perhaps they should be brought into that process, as well as in the data gathering section, and it is just a

thought I throw out to you, because their argument was pretty

compelling, that if two boats are working in the same area, in the

same—and looking at the same stock and what is coming up on

deck is completely different, on both, somebody is doing something

right and somebody is doing something wrong, and as a result of

that data it may give you a false reading that the fishing stock is

indeed being depleted, overfished, and as a result, you know,

brakes need to be put on and safeguards need to be put in place.

And you may be hurting a fishing of a stock that may not truly be

in danger of being depleted.

So I just offer that to you to consider in the process that you undertake to gather your data. But I do have a couple of questions.

One of them is why did the National Marine Fisheries Service decide to stop the Cooperative Science Survey Program with the commercial fishermen, along the Northeast coast? I know you agree

that stopping these cooperative surveys would give NMFS less information and not more in determining the accurate fish population.

43

Dr. HOGARTH. I am not sure personally which survey you are

talking about, because we just completed a monthly survey with

the New England fishermen, and we are initiating a sea bass program also. There was a survey on ground fish that we did not

agree on the design, and we are still working with them on that.

And we have gone to the Council with some of the money they are

getting proposals for, additional cooperative research. But if you

tell me a specific program, I will check it out and get back with

you.

Mr. GRUCCI. I will be more than happy to do that, and I know

ground fish is something that has been on the fishermen’s minds,

because it is something that is being taken away from them, and

I think that may very well be the survey that they are referring

to.

One more question, Mr. Chairman, if I do have the time. While

I understand the importance of protecting all the fisheries and support the fair and complete application of current law, it is paramount to take into account the economic vitality and well-being of

many fishing communities along the coastline.

Commercial fishermen are already subject to many complex laws.

Recently there has been a lawsuit in Boston regarding the Northeastern Fisheries Management Council. It is disturbing to see that

the options that were drafted by the National Marine Fisheries

Service essentially closes off the northeastern coast to fishing of

various species.

How can commercial fishermen continue to work when their

hands are regularly being tied by the regulations and rulemaking

of NMFS? That area they showed me on the map is tantamount

to Vermont, Maine, Connecticut, Rhode Island and New York. Just

shift that off the mainland and put it out in the ocean, and that

is the area that has been closed off to fishing as a proposal by you

all in that lawsuit. How can you justify that?

Dr. HOGARTH. The lawsuit—the proposal or the lawsuit came

about through mediation required by the judge. There were, I

think, nine members that went forward and seven of the nine

agreed with the mediation. The area that I think you are talking

about, there were two areas that were heavily concentrated with

small cod, which is the problem in the area, and we closed the Gulf

of Maine—southern part of the Gulf of Maine and then one area

called Cashes Banks due to the number of fish and the bycatch

problems in that area. The judge decided to close two other areas

that were not closed in this mediation. It was her determination

that those areas were as important as the area that we closed and

they were necessary to rebuild. We have that under consideration

now, but we have no choice but to put those in place to keep the

fishery open.

Under amendment 13, which is being designed and implemented

now by the Council process, which will take approximately another

year, all of these restrictions are being evaluated to do amendment

13, and so we could have an opportunity to refine and look at how

this will be done in amendment 13.

Mr. GRUCCI. Thank you, Mr. Chairman. You have been very gracious with your time.

Mr. GILCHREST. Thank you, Mr. Grucci.

44

Mr. Savage, you made a number of positive statements based on

your experience in the quahog clam industry dealing with ITQs,

and we are looking at certainly lifting the moratorium to allow the

Councils to develop ITQs.

Based on your experience with ITQs, do you have any concern

about the concentration of a few entities controlling the greater

percentage of the ITQs in any fishery?

Mr. SAVAGE. Based on what I have seen in the clam fishery, no,

absolutely not, because it went just the opposite. When the initial

ITQ allocations were given out in 1990, the biggest shareholder of

all was Borden’s, and Borden’s had a big presence in the fishery.

They have been there for many, many years. They bought Snow’s

Canning Company, and there is no more Borden’s today in the fishing industry. Borden’s is gone. The other big ones were—Doxsee

was a big company. They are gone, and all of these big

companies—American Original was a tremendous big company,

and they are gone, and all of those shares that they had have been

bought up by little people. There is more little people—you know,

the little people that are in the fishery that you all worry about

being bought up, they are actually the buyers. They are not the

sellers. There have been a few little ones that sold, but by and

large, the big companies are gone.

Mr. GILCHREST. Can you give us any specific recommendations

for criteria that we would put into the Act that the other Councils

may follow in order to prevent any concentration?

Mr. SAVAGE. Not really. We didn’t do anything before, and it

worked very well, and I don’t see—you know, I just don’t see that

happening. Everybody worries about it, but it is sort of like worrying about the big bomb. It hasn’t happened yet and I don’t see

it on the horizon.

Mr. GILCHREST. Do you have any concern or would you agree

with an ITQ that had a sunset to it, let us say 10 years? There is

no sunset to any ITQs in the Mid-Atlantic quahog or clams fishery,

but would there be any concern that you might have if in the Act

we set up ITQs that did have, let us say, for example, a 10-year

sunset, for it to be reviewed, to be reissued?

Mr. SAVAGE. Well, what you have done then if you do that, you

have destroyed the value of it. Who is going to buy something and

spend probably a 10-year payout on it and then in 10 years have

it have no value? It has got to be held for something down the road.

We took out half the boats almost overnight just by consolidating,

and people were willing to buy, because they saw it as worth something, but if you are going to say you can have it for 5 years or

10 years and then take it back, a person wouldn’t spend the money

to buy it.

Mr. GILCHREST. Dr. Hogarth, any comment on sunsetting of ITQs

or concern about concentration of ITQs in other councils?

Dr. HOGARTH. I have heard some concern about the concentration, you know, as far as controlling price. If a couple industries

could own the whole fishery, that would be more of a control for

prices and this type of thing. As far as the sunset, in your bill is

the first time we have heard that mentioned, and I think there is

some concern about the value of the permit. Once you do that, then

will people really want to buy it?

45

Some people may say that is a good idea, because one of the problems with IFQs now is they have become a $60,000 permit or

something, and they shouldn’t—there is some concern about the

price they get to. I personally think we should look at the concentration, the number or percentage it would have.

I think that the Congress could ask for a report on how effective

they have been without really having a sunset and then take action

based on the report of the effectiveness and how many were established and what was accomplished.

Mr. GILCHREST. Do either of you have any comment about processor shares for ITQs?

Mr. SAVAGE. I do. I am opposed to processor shares. I think they

shouldn’t have it. We had—before the ITQs came into the surf clam

fishery, you could easily send—it was a deal where you could send

two truckloads of clams to a plant. The guy could just look at you.

He shucked the clams. They were there and they were having

them. He would say, you know, they were really poor, and I am— I just—I can’t pay you $10 a bushel for them. I will give you 8, 7.

He would give you whatever he wanted to give you, and with the

advent of the ITQs, all of that changed, because you said we were

very dependent on who we sold to. There aren’t a lot of processors.

You don’t sell surf clams just anywhere. You sell them to a processor, you know, that has a plant and is able to shuck them. And

before the ITQs, we were at the mercy of the processors, and with

processor shares I see that coming right back again. If you have got

a quota and I am a processor and you have caught your quota, I

will say, yeah, I will let you catch them, but they will be 2 bucks.

And you could lay to the dock if you want to or you can catch them.

We are going back 12 years if you want to do that.

Mr. GILCHREST. Dr. Hogarth?

Dr. HOGARTH. Well, I think as an agency we have some real concerns about the processor shares. I have looked at some of the data

that was presented I think at your last hearing. The professor had

done some work on the West Coast with some of them. We are continuing to look at this and discuss this issue, because I think it is

an extremely important issue, but I am concerned about what it

does to the price and to the fact that—you know, the freedom of

fishing, of selling. It is sort of saying that the process—it takes X

to process, then it has government to come from a certain fish window, and you have got to determine how he gets it. So that certainly gets into a lot of the freedom to fish and freedom to sell, and

there is some concern there.

Mr. GILCHREST. I understand. Thank you.

Dr. HOGARTH. I understand you say it happens and I think we

need to look at further, And that is what we are trying to do next

week, also.

Mr. SAVAGE. Could I say one last thing on that? There is nothing

to stop a processor from buying right now. Any processor can buy

ITQ allocation if they wanted. They are not precluded. What you

are talking about is giving it to them now or what—any new thing

in the Act would be just an awarding of the processors a share.

Mr. GILCHREST. Do you think we should give—should another

approach be for us to give the Council the option to allow processors to be involved in ITQ system?

46

Dr. HOGARTH. I personally think that is an option that should be

looked at. We recommended that at least we put into the

Magnuson to make sure the processors are considered fisheries.

There is some concern there whether the language, the definition

as it is now in Magnuson, would include processors as being eligible as a fishery.

So I think that should be done, and then the Councils would

have the option to look at it then.

Mr. GILCHREST. Mr. Savage?

Mr. SAVAGE. I think the Council could handle it if you wanted

to do that.

Mr. GILCHREST. Well, I have a few more questions, but I don’t

want to take up the bulk of the time here.

Mr. Grucci, do you have any other questions?

Mr. GRUCCI. No, Mr. Chairman. I am just listening.

Mr. GILCHREST. All right. I am going to sort of pretend I am on

a second roll here. I don’t know if Kevin wants to hit the green

light again or not.

There has been an interesting proposal floating around about

having the Councils continue to have authority over allocation, and

for the Secretary to have authority over conservation, and I would

just like to get your comment on that. Dr. Hogarth.

Dr. HOGARTH. There has been a lot of discussion recently about

the effectiveness of both the National Marine Fisheries Service and

the Councils in managing the resource and rebuilding these stocks,

and one of the concerns was that there is tremendous pressure on

the Councils to commercial fisherman—and that we should look at

a mechanism that would take some of the pressure off the Council,

so to speak, and have a scientific determination through the

science and through a scientific committee that would say that the

amount of harvest that would come out of the resource should be

in this range, and then the Council had the right to then allocate

that catch or allowable biological catch.

I think the concern with that is that—that I have heard expressed, because I am probably one of those that you may have

heard discuss this based on comments that I have heard—is that

it takes a lot of the Council’s considerations, deliberations away

from them, so to speak, and that they are now just a body that will

allocate among a few people but not really look at the big picture.

I think it was put on the table as a discussion of how we as a

group, both the National Marine Fisheries Service and the Councils, should do a better job, and I think to do a better job we have

decided internally that we have to work closely with the Councils

and we have to give the Councils more direction up front, not at

the end of the process.

And that is our goal, to be more of a team process with the Councils up front and scoping and looking at alternatives and hopefully

that we can—and saying no if we have to. I mean, I think sometimes the Councils have thought we were second-guessing them.

We said no, but I think we have to look at the national standards

at what Congress has directed us as the Secretaries to do, and I

think if we do that we may not need that type of a situation.

Mr. GILCHREST. I see.

Mr. Savage.

47

Mr. SAVAGE. I speak for myself as a Council member and not as

a chairman and certainly not representing any other Council, but

if that is what you intend to do, I would rather go home. It is just

we are finished. If we get to do nothing but the allocation and just

say, OK, have somebody else determine all the numbers and everything that is going to go and then just say, OK, you guys now get

to throw it out, we are finished. I mean, it is over. So pat us on

the head and send us home.

Mr. GILCHREST. All right. Thank you very much.

In our draft proposal we have included sea birds as a bycatch,

and Mr. Young has expressed his opinion on that. Some have suggested that we not only include birds as bycatch but we include

marine mammals as bycatch. Now, it has been discussed that marine mammals are protected by the Marine Mammal Protection

Act.

Dr. Hogarth, do you agree with sea birds being considered as a

bycatch in the reauthorization, and do you have any feelings on

marine mammals being also considered as bycatch?

Dr. HOGARTH. I do agree that birds should be included for several reasons. Several of the birds are endangered, and now

fisheries do interact. We are not responsible for birds under the

Endangered Species Act and the National Migratory Bird Act. The

Department of Interior is. So then we have to consult with them

on the fisheries and what is taking place.

It is much better that the Council have that to look at from the

beginning. I think it makes the process work better. It is not an

afterthought that may end up delaying the fishery opening or having someone else get involved in determining what measures

should be in place. I think from a national standpoint, it is important to us, because our fisheries are sometimes minor players in

this, but they are players, and if I am not having that right, so to

speak, in our fisheries, it is very difficult for us to go forward and

argue with other countries that they need to reduce their bird bycatch or bycatch of marine mammals and this type of thing. It

helps us as part of our work, and I think I have no problem with

birds.

I think marine mammals are protected under the Marine Mammal Act, and the Councils need to look at that, which we encourage

them to do now.

Mr. GILCHREST. Dr. Hogarth, you don’t think it is redundant—

Dr. HOGARTH. No, sir.

Mr. GILCHREST. —that that is put into that?

Mr. Savage, any comment on that?

Mr. SAVAGE. In the Mid-Atlantic area, we don’t have that much

interaction with birds anyway, so I am not that familiar with it,

and it has never come to us as a problem before. So I really

shouldn’t speak to it.

Mr. GILCHREST. All right. One other comment—or question. In

the Act we are looking at trying to understand this concept of ecosystem fisheries management, and we have a 2-year study to take

a look at it, a 1-year study to fill the gaps and then a 2-year implementation of the knowledge but no specific criteria for a timeframe

in which a fisheries management plan must be an ecosystem approach.

48

One of the things we have been discussing is—among others— are there any Councils in either of your opinions that would, let us

say, be ready to go as a pilot project or an ecosystem fisheries management plan in the next 3 years?

Dr. HOGARTH. We have one ecosystem plan that is out for review

right now, and that is one done by the West Pacific Council on

coral reefs. We have had many Councils talk about it, but to be

honest with you, with the resources available and the problems we

now have to correct our NEPA problems and process problems to

hopefully get us out of court as much as we are in court, I am concerned about the additional work that will be put on the Councils

to do this in that timeframe.

I think we all are working toward ecosystem management. I

think the agency is working with the Councils, and we plan to have

a workshop very soon, national workshop, to look at the implementation of ecosystem management. But I think we need to discuss

this part with you a little bit more and make sure we understand

and it doesn’t get it into a predicament where we just get more

lawsuits than we have now, and that is one of the concerns we

have with that provision at the present time.

Mr. GILCHREST. Mr. Savage.

Mr. SAVAGE. Chairman Gilford, who was the chairman before

me, in the last couple of months of his term, he appointed an ecosystems committee, and I reconstituted that committee when I was

elected chairman, and we do have a committee. Could we have a

plan ready in 3 years? Probably not. We were just I think at this

point—you know, we are still trying to—the committee is still trying to get themselves up to speed on what it would take, what it

would mean and where it would have to go, and really I wouldn’t

stick their necks out and say they would be ready in 3 years, but

we are working on it.

Mr. GILCHREST. I see. Thank you.

Mr. Tauzin, we sort of started a second round. So before we move

on, do you have any questions?

Mr. TAUZIN. No.

Mr. GILCHREST. I have another question.

The complexity of an ecosystem management approach I think is

well appreciated by those of us on both sides of the aisle on the

Committee. But we would like to firm up this commitment, since

everybody seems to agree that an ecosystem fisheries management

plan is probably or likely the best thing we could do to preserve

fisheries, bring them back, make them healthier. And so I am wondering if either one of you would have a suggestion, not that we

want to accelerate too fast so this whole big thing just collapses in

lawsuits, because we are not ready to do it in 3, 4, 5 years, but is

there—therefore, for example, a suggestion that a statement or language be put into the national standards and section 301 to be revised to emphasize the importance of ecosystem management? Is

that something that would be a good idea or—and I shouldn’t say

or—and should each Council be required to develop an overall umbrella statement that considers the interrelationships of all of the

fisheries that the Council has under its management, something

stronger, for example, than is in the draft bill right now that will

move us in this direction without the concerns of waste—we are

49

not wasting but putting our energies in lawsuits and in fact maybe

even putting some type of timeframe in the language for the implementation of ecosystem management plan?

I guess I gave you three questions, the national standards, an

umbrella statement and a timeframe, Mr. Savage.

Well, let me ask you this, Mr. Savage, before you just answer

that question, and I know you just came off a pretty rough couple

of weeks. The language that we have in the draft bill now dealing

with the studies on ecosystem management, do you find that reasonable? Does it go too far? Does it not go far enough?

Mr. SAVAGE. Well, I think it is reasonable. I am not sure it goes

too far, but we are still—let me remind you, we are still fighting

the effect of the last 5 years from the lawsuits we have had on our

plans from the SFA. You know, we are burdened under that. We

are still amending all of our plans to get the essential fish habitat

requirements from the SFA in there, and it is just we are way behind the curve, and I think everybody else is, too. We are up to our

neck in lawsuits.

Mr. GILCHREST. All right. We want to work with you on that.

Dr. Hogarth.

Dr. HOGARTH. I think our concern is what do all of the groups

that we deal with, commercial, recreational, environmental and

general public, really think ecosystem management means and

does? It could be very comprehensive. In fact, we have looked internally at what would it do to implement a full ecosystem management plan. I think you would be somewhat astonished at the

amount of money it would take if you really want to do full. We

now have 600 and—still 650 species that we know very little about,

on account of how we do—you know, the money to do surveys. In

fact, ground fish right now, which is very important to us, we do

surveys every 3 years. And so I think we have to look at the priorities of where the money goes, and I think we all want to get the

ecosystem management approach.

I am concerned that if we move too fast, we will kill that program, somewhat like I think the controversy that surrounded the

essential fish habitat. The essential fish habitat has not caused the

problems that a lot of people think. If you go back and look at the

number of projects we have looked at and the impact it has had,

you know, it has not caused projects to shut down or caused great

delays. It has caused some mitigation and some changes in projects

to make them better.

I just don’t want to see us move with the speed without the

money to do it right and to have the resources it takes. I think it

would be good for Congress in this bill for us to sit down and try

to look at criteria quickly or something like that that the Congress

could put in here to have us to work forward with the goals, to develop criteria within a certain number of years, which ones you go

to, which is the most important in the data collection, the type of

data collection and that. But I don’t want to see it drop, and I hope

you don’t take this as being negative, because I think as an agency

managing this resource, I think we all feel that if we could get the

ecosystem management—we could switch over overnight and be

there, I think it would be better off for everyone concerned in the

50

long run, but it is a matter of getting out of the hole we are in and

getting to this start of a new approach.

Mr. GILCHREST. Just one last question. Part of the ecosystem

management approach would be collecting data, which is always a

critical issue. Can both of you give me your opinion on who should

have the authority or some combination thereof to establish an observer program, the Secretary or the Councils?

Dr. HOGARTH. Well, I personally think it should be the Secretary

with the cooperation of the Councils. I think it should be both. I

think the Councils, if they choose not to do it for certain reasons

and that information is necessary for bycatch or carrying out the

mandates that Congress gives us, then I think the Secretary should

have the authority to do it. But I think the Councils should be involved in that. We don’t want to take their authority away, but I

think if for some reason they decide not to, and it is very obvious

from the scientific standpoint for data collection and other mandates of the Congress in the Magnuson-Stevens or any other laws

we are working under that we needed that data, then I think the

Secretary ought to have the authority to do it.

Mr. GILCHREST. Mr. Savage?

Mr. SAVAGE. We have been working very hard on cooperative research, and we have invested a lot of time and effort into our setaside programs and all of that to collect data. And I don’t think it

ought to be—I think it ought to be a shared obligation, if you will.

I am not in favor of taking it all one way or the other.

Mr. GILCHREST. Thank you.

Mr. Tauzin.

Mr. TAUZIN. Mr. Chairman, you know, you have inspired me to

at least make one comment to Mr. Hogarth. All of us want to make

sure you have adequate resources to do these jobs correctly, but I

just want to put something on the record. It doesn’t help the agency when it makes that claim to us when we look at some of the

raw data that is collected by the agency to back up some of its decisions and find that some of the data has been arbitrarily discarded

so that the results are arbitrarily skewed.

Now, you can deny that happens, but when our fishermen tell us

it is happening and they see it happening on test trials and test

runs, then we go out and look at the raw data and find indeed that

some runs were discarded just arbitrarily where there was, for example—I will give you a specific when we are looking at some of

the raw data, on some of the runs on some of the TEDs issues that

were so controversial in my district, and some of the runs indicated

some rather substantial losses of catch, and those runs were simply

discarded.

In fact, the Service actually came out with a conclusion that carrying a TED, which allows for an opening in the net to allow a turtle to escape, actually enhanced the number of shrimp caught, that

having an extra hole in the net produced a result where more

shrimp were caught than if you didn’t have a hole in the net.

Now, most normal people would consider that a rather inaccurate

conclusion, but you got to it by discarding arbitrarily those runs

which produced an abnormally high loss of shrimp catch. We uncovered that. We exposed that, and we never got an adequate explanation.

51

And so the people we represent, the people that Congressman

Grucci is talking about, who simply want a fair shake, who just

want to make sure the information is accurate when you do make

a ruling, when you do make a decision, look at those things

happening, and they say don’t you dare give those people more

money. Don’t you give more money to do that to us again until they

promise you they are going to quit doing that or they promise you

they are going to take adequate and fair samples, they are going

to really come up with honest conclusions that don’t compromise

common sense.

Dr. HOGARTH. I am not aware of that, but if you will give me the

specifics, I will get you an answer.

Mr. TAUZIN. Oh, trust me, I will get them to you.

[The information referred to follows:]

Question for Dr. Hogarth from Rep. Tauzin

Allegations made by shrimp fishermen that NMFS technical work on the effects of

TEDs on harvests is flawed by an unscientific selection of samples.

Answer: Fishermen were concerned about missing data on shrimp loss estimates

used in the proposed rule to amend the TED requirements published October 2,

2001. They allege the NMFS report on shrimp loss data did not contain information

from 58 tows and that the lack of providing data from all observed tows may reflect

selective reporting. The data set in question resulted from testing conducted in

2000. That data set did not include unsuccessful tows. Unsuccessful tows are those

that include problems which would bias the data in a manner unrelated to the TED,

i.e., fouled tickler chain, torn nets, and catches dumped together. As a result, data

gathered from such tows can not be used to make a judgment on the functioning

of the TED. However, all tows are recorded by the observer and any problems are

noted.

Some shrimp fishermen believe that the shrimp loss data gathered by NMFS on

the double cover flap TED are flawed in many respects. Since publication of the proposed rule, NMFS conducted further testing of the double cover flap TED. During

the height of the shrimp season, from January through August, 2002, the double

cover flap TED has been tested during normal commercial fishing operations

against current commercially available TEDs for shrimp loss aboard 12 commercial

shrimp trawlers in the Gulf Area, and one trawler in the Atlantic Area. In the Gulf

Area, seven vessels fished in inshore and near shore areas (two in Texas, two in

Louisiana, one in Mississippi, one in Alabama and one in Florida). Offshore testing

was conducted along the northeast coast of Florida by one vessel, the pink shrimp

grounds of southwest Florida by two vessels, Louisiana by two vessels and Texas

by one vessel. In order to obtain statistically valid data, a minimum of 20 comparative tows were conducted during each trip. Testing has included the shrimp season

openings in Texas, Louisiana, and Mississippi. A total of 305 comparative tows were

conducted. The double cover flap TED experienced a 0.1 percent shrimp gain when

compared to current commercially available TEDs, which is not statistically different from zero. Excessive shrimp loss due to back washing and large catch loads

were not experienced during the tests to date. Additionally, several vessel captains

have remarked that the double cover flap appears to work better in excluding debris

such as sticks, grass, and jellyfish.

Dr. HOGARTH. I am aware of the problem we have with the protocol in looking at the bycatch reduction devices in the Gulf, and

we changed that protocol because there was a problem. If you got

certain parts through, you had to discard some samples, and it

didn’t work as well and we went back and redid—

Mr. TAUZIN. Well, let me just ask you—and I will. I will bring

you the information. I will bring you this information how these

runs were discarded.

Mr. GILCHREST. Well, Mr. Tauzin—

52

Mr. TAUZIN. I am sorry, sir?

Mr. GILCHREST. I was saying you could bring the information to

the Committee as well and we could have a hearing on it.

Mr. TAUZIN. We did already.

Mr. GILCHREST. We had a hearing on it?

Mr. TAUZIN. Yeah. It came out of Committee, I believe, but we

will bring them again. But the point I will make is I will bring you

those things and I will show you the conclusion where the Department actually concluded that you are going to catch more shrimp

if you carry a device that creates a hole in your net than when you

don’t have a hole in your net, and you tell me if somebody didn’t

have a hole in the head when they wrote that conclusion. I will be

extraordinarily disappointed if you don’t come to the same conclusion we did.

It is that sort of thing that sends people up the wall, and, you

know, those are the people we have to go back to and say, you

know, every November send me back to Washington because I am

a good Representative. They say, you let that happen to us? Put

yourself in our shoes. Imagine going back to those same people who

were faced with a regulation based upon that kind of conclusion

and try to defend it and try to defend their government to them.

Dr. HOGARTH. That is why we try to make this more open and

communicative to prevent this type of thing.

Mr. TAUZIN. I mean, look, if it is a fair evaluation, if the samples

are accurate, if there is real information that determines a management decision is critical, that is good for all of us. It is good for

the environmental community, it is good for the fisheries and good

for the fishing community. But when those kind of things happen,

it destroys the credibility of the program. It makes it difficult for

folks like us who want to help you with the money to do it right

to come back and help you.

Dr. HOGARTH. I am unaware, but I will get you an answer. That

was before my time, but I will still get you an answer.

Mr. TAUZIN. God’s sake, if you are employing a burglar, don’t

arm him if he is going to come in our house. That is the answer

we get.

Thank you, sir.

Mr. GILCHREST. Mr. Grucci.

Mr. GRUCCI. Thank you, Mr. Chairman. I don’t want to sound

like I am piling on to the issue, but— Mr. TAUZIN. Pile on.

Mr. GRUCCI. —it is exactly what I was trying to say earlier. You

have two fishing boats working side by side. They knew that the

way that they were capturing the data for purpose of determining

the size of the stock was wrong. They were trolling far too fast.

They knew that they would never capture anything in the nets. I

am talking about the professional fishermen, and indeed I hear the

same stories where they say—when they get stuff that comes up

on the boat, they throw it over the side and therefore their numbers are skewed.

Now, I don’t have the data on that, so I can’t provide you the

specifics on it, but I will share with you this situation that Chairman Tauzin talks about is not unique to Louisiana. It is happening

in New York, and if it is happening in New York and Louisiana,

53

I have got to believe it is happening elsewhere. It might even be

happening in Texas.

So the point is, is that these folks are only asking for the opportunity to make a living, and we are making it more and more difficult on them, and they are saying we are making it difficult on

them artificially. They want the fishing stock protected. They want

it preserved. They want it to be there for them and hopefully their

children.

Today I was out at a seminar where NADS stood up and said,

listen, I don’t have a college education but I have $2 million tied

up in my couple of boats, and all I do is go out and fish and now

they are going to close off half the ocean to me. They are getting

information that is inaccurate. They have got the sustainable fishing quotas that are artificial. You can’t reach them.

Is it because they want to put us out of business and have fishing farms where we get the fish from? Is it because they want to

put the American fishing industry out of existence and the foreign

vessels can come in and fish the same waters and aren’t subject to

those same quotas?

I mean, these guys have a lot of problems out there, and we are

creating a lot of it for them.

Dr. HOGARTH. Let me just respond real quick, and I will make

this a quick response. I think the cooperative research that Congress has provided money for is an excellent program, and it is

working.

One of the real problems is commercial fishermen are excellent

at catching fish. They know how to catch fish. They know how to

catch legal sized fish. The surveys that we do as an agency for scientific purposes are not targeting the size of the fish. We are looking at recruitment. We are looking at small fish, and it is a difference. What we have to do is work with them, and that is why

we supplement that like we did with monk fish. We were able to

really find—you know, supplement that data and find out how well

off the population really was. So it is a matter of us working with

the industry and talking to the industry, and hopefully we can

start that dialog and communication. And it is beginning, and I

think we have to continue that. But no way does this agency want

to shut down the commercial fishing industry in the U.S., but we

do have to take some—I think we have got some major problems

with the amount of capacity and the status of some of these stocks

and that unless we do a better job of managing I don’t see the

commercial industry having a bright future, and I think we have

got to get these fisheries to a sustainable level so that those guys

who have an investment can continue to fish.

Mr. GRUCCI. We will be the first to tell you that they are in total

agreement to that. Where the difference lies, because they don’t believe that the data is accurate based upon what they see every day

out on the water. One of the things that they brought to my attention, which, you know, for the life of me I can’t understand, and

maybe you can enlighten me on it, is that the quota is established

and now all of a sudden they are out there fishing and they reach

their quota. They pull up their net. They have more fish in it than

what their quota is. They have to throw it over the side. They are

throwing the fish over the side that are dead. I don’t understand

54

the logic in that, because if they come back to port with that, they

are going to get murdered. Their boat could be confiscated. There

could be huge fines involved with them. They could be put out of

business.

So they are out there fishing and the next thing you know they

are throwing fish over the sides of their boat because if they get

caught with it on their boat, they are going to be subject to significant fines, which kind of leads you to believe the next question has

to be asked is if it is such an endangered species, how come they

are getting so much of it?

Dr. HOGARTH. Well, I think you brought up two issues. I think

No. 1 is that bycatch is one of the major issues that we deal with,

because, you know, when you reach—and particularly in multispecies—when you reach a level that we feel is safe to be harvested

and then you continue to fish, you catch these fish that you

shouldn’t be catching and you throw them over dead. That impacts

the future of the recovery.

Dr. HOGARTH. Fishermen see—and we agree with fishermen. For

example, in New England groundfish, the stocks are improving but

they are not at the level of stability that is sustainable, and so that

is what is the difference. They are out there every day. They say

they are improving, we say they are improving, but they think we

ought to take off all restrictions and we have to address the back

issue. It is a major issue in this country.

Mr. GRUCCI. I hate to interrupt you, but I can only speak for the

fishermen that I represent. They don’t want you to eliminate all

rules and regulations. They just want them to be on a level playing

field.

Mr. GILCHREST. Mr. Grucci, we have a vote and I think what we

will do is we will recess, and Dr. Hogarth and Mr. Savage, your

time with us will be done for this afternoon. And I strongly appreciate your patience and your testimony, but, Mr. Grucci, just very

quickly, no foreign fishing vessel can come in to U.S. waters, so

your fishermen are safe regardless of what happens there. And the

observer program is important to collect the data so that your fishermen can feel secure that NMFS is giving out the right data.

And, Dr. Hogarth, and I apologize for this, but I did have one

other quick question that give a yes-or-no answer that deals with

gear type. Mr. Tauzin brought up the TEDs, and there are a number of issues dealing with essential fish habitat when we deal with

just a whole range of gear types. Is there some way that we could

privatize the development of gear type for the fishing industry? As

opposed to having NMFS do it, can we privatize that and ask

American ingenuity to create a specific gear type for specific

fisheries?

Dr. HOGARTH. That could be done. The DSCAPE funds that we

have, the solicitation for proposals for the next year, is just going

to the Federal Register. One of the top priorities there is gear, and

so the fishermen or anyone can give us proposals under that scenario. Plus we have a gear group in Pascagoula that will work with

any of the commercial industry. I think the commercial industry

particularly knows what to do and has a lot of ingenuity, and I

think it is just giving them the events that they need to do something and give them some help; yes, sir.

55

Mr. GILCHREST. Mr. Savage.

Mr. SAVAGE. I think the gear technology, the improvements come

right off the boats. It doesn’t have to come from anywhere private

or from the government. The guys that are fishing are doing it

every single day and they are the ones that when something new

like that comes up, something new in the dredge, it comes from

some guy on a boat. It doesn’t come from someone down the road

selling that thing.

Mr. GILCHREST. Mr. Savage, Dr. Hogarth, thank you very much.

We are in recess.

[Recess.]

Mr. GILCHREST. The Subcommittee will come back to order. I understand one or two people have to leave by a quarter to 6 to catch

a plane. We will try to expedite the process. If we are not done at

that point, whoever you or they are, please feel free to leave. We

will try to stick to the 5-minute rule during the opening testimonies and get to the heart of the matter during the questioning.

Thank you, gentlemen, for coming. We appreciate your attendance

and we look forward to your testimony.

Mr. GILCHREST. Mr. Houde, you may begin your testimony.

STATEMENT OF EDWARD D. HOUDE, PROFESSOR, UNIVERSITY

OF MARYLAND, CENTER FOR ENVIRONMENTAL SCIENCE

Dr. HOUDE. I thank the Chair— Mr. GILCHREST. Can you move the microphone over there? Thank

you.

Dr. HOUDE. I thank the Chair and Subcommittee for providing

me this opportunity to comment on the discussion draft of the

Magnuson-Stevens reauthorization, and I commend Chairman

Gilchrest for the high priority that he is giving to this reauthorization and hope that the comments I am making will identify some

science issues that should be considered in strengthening the proposed legislation. My comments will briefly address some of the

issues in the draft bill. My written testimony provides more detail.

Given the uncertainties of stock assessments and the uncertainty

in the effectiveness of management actions which, by the way,

often do not reflect the quality of science and management but,

rather, the random and unpredictable behavior of marine ecosystems, I believe there is a need for more dedicated language on

precautionary approaches in the reauthorized Act. There is a need

because marine ecosystems are complex and never will be completely predictable. Complexity requires a broad knowledge of how

ecosystems function, and also a healthy respect for their variability

and complexity. Firm language in the Act to recognize and acknowledge the need of precautionary approaches would be welcome.

Overcapacity and excess efforts, these are the global problems

that have been recognized as the major management issues in marine fisheries. It is good to see the problem recognized and the recommended actions highlighted in the discussion draft. The

National Academy Committee in 1999 came to the same conclusions and recommended that this should be a major emphasis of renewed management in the United States. In fact, they said that

had there been an effort-to-control effort for most of the overfished

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single-species fisheries in the past, that the need for more extensive, complex, and broader ecosystem approaches that we now are

faced with would have been less of an issue had we reduced effort

in overcapacity in the years past.

I was pleased to see the language regarding IFQ management in

the discussion draft. Many resource economists and managers, of

course, have been recommending that Councils have the discretion

to apply IFQs as an option at least to be considered in fishery management, and it was good to see that language in the Act. There

are potential pitfalls, of course, but overall it is a good measure

that will allow IFQ management plans to be developed at Council

discretion. I think it will help control capacity and effort, the two

things that are identified as the major problem.

Ecosystem-based approaches, I noticed in the previous discussion

that we were talking about ecosystem management; I prefer to talk

about ecosystem-based approaches. Ecosystem management is a

formidable concept and idea. Ecosystem-based approaches, on the

other hand, implies that in an incremental way, we could move toward managing those critical components of the ecosystem, and

this seems entirely feasible to me. I think that the discussion draft

is not as firm as it could be in some respects with respect to these

kinds of approaches. I am an advocate of such approaches, multispecies management, admittedly difficult, and ecosystem-based approaches, even more difficult, are on the horizon. Many of these approaches can benefit fisheries today, helping to overcome the uncertainties already mentioned. THe Ecosystems Principles Advisory

Panel in 1999 that NMFS put together strongly recommended development of such umbrella plans, fishery ecosystem plans. The

discussion draft of your bill recognizes the value of this conceptual

advance and recommends a process that will lead to research on

them but not the implementation. It will take 3 years after reauthorization to even reach a point where recommended research will

be presented to the Secretary by each Council. To me this seems

too long. I think it is possible to move faster.

Essential fish habitat, I am in the camp that thinks that essential fish habitat ought to be defined better, that habitat areas of

particular concern ought to be defined. The seascape is not

homogeneous, and individual species and species groups have preferred and required parts of marine ecosystems that are critical for

production and well-being. The HAPC designation has been used

by Councils and could be formalized in the Act. Some have recommended that a new standard be developed for EFH. I am not

certain that this is required, but recognition of importance of habitats in both a broad sense and a more specific sense I think will

help in applying ecosystem approaches.

Marine protected areas are another idea that doesn’t appear in

the draft language. This is an especially explicit way of complementing traditional kinds of management. It is unlikely that marine protected areas would be a stand-alone tool, but the National

Academy Committee on MPAs and the Ecosystem Advisory Panel

thought that there were many benefits of MPAs that could be applied now. Some recent applications of MPA approaches have been

quite positive. Many of you are familiar with the successes of MPA

implementation on Georges Bank with respect to scallops, for exVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6602 79374.TXT HRESOUR1 PsN: HRESOUR1
57

ample. Admittedly, such closures need to be implemented with care

and evaluated to confirm their efficacy. I believe that supportive

language to undertake research and to move toward implementation of MPAs, where appropriate, should be included in the Act.

There are data needs. The draft discussion recognizes this.

Again, the National Academy, in the Year 2000 report, laid out a

long list of data needs that could help to improve fishery management in the United States. I have summarized some of these in my

written testimony, but the big idea that they came up with that I

would support is that there is a need for a National Fisheries Information System. NAS recommendations could ensure improved data

accessibility for stock assessments, socioeconomic analysis, and environmental research.

Finally, the National Academy also addressed the possibilities for

government-academic partnerships. They made many recommendations to alleviate manpower shortfalls in NMFS. Primary among

the recommendations was an idea to expand and develop partnerships between NMFS and academic institutions to train experts

and to conduct collaborative research. Cooperative marine and education research programs have been instituted to an extent on the

East Coast of the United States and an expansion of the CMER

concept would be helpful to improve habitat research, stock assessments, and ecosystem approaches to fisheries management in particular, while educating the next cohort of fishery scientists to address these new problems.

I want to thank you, Mr. Chairman, for allowing me to testify

on this discussion draft. I know you have been sensitive to the

needs of commercial, recreational, and environmental interest in

fisheries and marine resources management and that developing a

strong and effective reauthorization of the M-S Act is high on your

priority for the 107th Congress.

If I can answer questions here or later as you work on this bill,

I would be pleased to respond.

Mr. GILCHREST. Thank you very much Dr. Houde.

[The prepared statement of Mr. Houde follows:]

Statement of Edward D. Houde, Professor, University of Maryland Center

for Environmental Science

The Need for Reauthorization

The 1996 reauthorization of the Magnuson–Stevens Fishery Conservation and

Management Act (the Act) took important steps to improve management of fish

stocks in the U.S. EEZ. It did not free us of the problems of overfishing and associated overcapitalization in many fisheries, but its declarations that overfished stocks

would be rebuilt, that overfishing was not acceptable, and that fisheries management in general would become more risk-averse under the Regional Councils have

had an effect on stabilizing stocks, curtailing declines, and beginning the rebuilding

process in some stocks. More steps need to be taken. Proposed amendments in the

present reauthorization draft of MSFCA acknowledge the need for additional legislative action aimed at improving fish stocks, the fishing industries, and ecosystems

that support fisheries. I am cautiously optimistic that marine fish stocks can be

managed sustainably. Even with perfect legislation, however, achieving and insuring sustainability will not be easy tasks.

I appreciate having the opportunity to address the Subcommittee and to present

my views on the discussion draft for reauthorization of the Act. My comments mostly represent personal views, particularly on science-related issues, and not those of

the University of Maryland’s Center for Environmental Science (UMCES). However,

my recommendation to add language to the Act that establishes Cooperative Marine

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Education and Research (CMER) programs between the National Marine Fisheries

Service and seven universities is an initiative supported by UMCES.

Recent History, Precautionary Management

Emerging paradigms in fisheries management on a global basis hinge on the ‘‘precautionary approach’’ that has been adopted as a standard (FAO 1995). The ethic

espoused in this approach advocates setting risk-averse targets as ‘‘biological reference points’’ rather than more liberal ‘‘thresholds’’ or ‘‘limits’’ that had been recommended historically. The precautionary approach is accepted in principle and is

being applied in many fishery management plans, although the present Act and the

draft discussion are mostly silent on it. An explicit acceptance of the precautionary

approach and a definition of it in the Act would be helpful to promote the ethic,

both in principle and in effect.

Fishing Effort, Overcapitalization and Alternatives for Fisheries Management

Excess Effort and Overcapacity

Language in the discussion draft (Sec. 3 and Sec. 4) that addresses reduction of

overcapacity and overcapitalization is welcome. These problems have been recognized repeatedly as the major problem in controlling and managing marine

fisheries. This is true globally as well as in the United States. The National Academy report, ‘‘Sustaining Marine Fisheries’’ (NAS 1999a) urged solution of this problem to allow U.S. fisheries to be managed sustainably. There is excess effort invested in many of the nation’s valuable fisheries. Serious allocation, conservation,

and economic problems too frequently accompany the excess effort and capacity of

fisheries, eroding potential benefits and profits, and threatening sustainability. Language in the draft, if it generates actions to reduce capacity, can be beneficial to

some marine fisheries.

Individual Quotas and Community Development Quotas

Limiting entry and establishing individual quotas (IQs) have been debated vigorously in the U.S. (e.g. Hanna et al. 2000) and globally. A NAS study (1999b) was

guardedly positive on the role of IQs and recommended them for specific fisheries

at the discretion of the Regional Councils. The accumulated evidence from a scientific perspective supports the implementation of IQ management under appropriate circumstances, recognizing the need to consider initial allocation of shares,

the threat of monopolies developing, and the rules for transfer and duration of IQ

permits.

It was good to see language in the discussion draft that will allow Councils to develop new IQ fisheries (Sec. 12), and which addresses the issues that most often concern those who are opposed to such limited-access approaches to management. I expect that declaration of IQ programs and implementation will continue to be contentious in many marine fisheries. The requirement to hold referenda among stakeholders before an IQ plan can be instituted is included to democratize the process,

but choice of those included in a referendum is to be determined by the Council,

with guidance from the Secretary. The ‘‘guidance’’ from the Secretary, in the absence of specific directives in the Act, will be critical in determining effectiveness

of IQ implementation. Firmer, more prescriptive language on the referenda criteria

would be helpful.

Benefits of IQs, in addition to controls on effort (and fishing mortality), are probable. For example, IQ-based management is potentially more ecosystem friendly

than open-access participation in some fisheries. This may be true, for example,

with respect to fishing impacts on habitat and with respect to bycatch reduction.

Ecosystem–Based Approaches and Issues

Ecosystem–Based Management

The proposed language in the discussion draft (Sec. 6) may not be strong enough

to insure effective actions by the Councils. It urges managers to ‘‘support and

enourage efforts to understand the interactions of species,’’ which is important and

could have a positive influence on ‘‘better stewardship and sustainability of coastal

fishery resources.’’ But, there are no firm directives that lead to implementation and

no explicit approaches mentioned. For example, the NMFS Fisheries Ecosystem

Principles Advisory Panel (1999) and the National Research Council’s Committee on

Marine Protected Areas (NAS 2001) strongly recommended incorporation of protected areas and other spatially-explicit approaches for fisheries management. These

approaches tend to reduce the dependency of management on conventional effort

and landings controls towards more ecosystem-sensitive approaches that can be favorable to protect essential fish habitats, reduce bycatches, and protect threatened

species.

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Fisheries Ecosystem Plans

The amended MSFCMA (1996) recognized that marine fisheries management has

been too little concerned with marine ecosystems, their stability, variability, and

sustainability of high productivity that will assure sustainable and profitable

fisheries. Accordingly, Congress mandated that an Ecosystems Principles Advisory

Panel be established to undertake an analysis of the extent to which ecosystem principles were being applied in fisheries and to recommend actions that should be undertaken by the Secretary and Congress to expand application of ecosystem principles in fisheries management. The report of the Panel (NMFS, 1999) included

many specific recommendations and a major conceptual recommendation—the proposal that each Council develop a Fishery Ecosystem Plan(s) within its region. A

FEP is envisioned to be a document that serves as an umbrella under which individual Fishery Management Plans (FMPs) would reside and to which they must adhere. Adopting the FEP concept is likely to insure that many individual FMPs will

be more ecosystem-sensitive because the function and structure of ecosystems would

be highlighted when managing an ecosystem’s constituent fisheries.

I was pleased to see language in the discussion draft that addresses the need to

develop criteria and to move towards establishment of FEPs (Sec. 6). However, the

language may not be sufficiently firm and the timetable to establish criteria seems

far too long. As written, after two years Councils are to complete development of

criteria for FEPs and then within one additional year must (with the Secretary and

Congress) select specific marine ecosystems within their regions to ‘‘develop and

begin to implement research plans’’ that address issues identified in the Fisheries

Ecosystem Panel report (NMFS 1999). The approach is good, but the timetable is

not. After three years, the Councils need only begin to develop research plans. When

will management measures based on ecosystem principles be instituted? I recommend that language in the discussion draft on ecosystem-based management be

reconsidered to require more timely actions, and that explicit recommendations be

included to plan for implementation of FEPs.

Essential Fish Habitat

The SFA (1996) contains specific language on Essential Fish Habitat (EFH), directing Councils to identify such habitats in their respective FMPs and presumably

to implement measures to protect such habitats to insure healthy fisheries. The definition of EFH as it now stands, however, tends to be so broad that it is questionably

useful in the management process, although the ethic that supports broad consideration of EFH is appropriate. It is reassuring that there is recognition of the broad

habitat needs to support marine fisheries, but the language in the discussion draft

of the Act does not clearly recognize that some habitats are especially important to

protect and produce the many and diverse stocks of fish being managed under the

MSFCMA. I believe that this is a deficiency of the discussion draft. We should be

moving towards identifying the specific types of habitat that are critical for some

species or species groups, which have been termed Habitat Areas of Particular Concern (HAPC), and which deserve particular attention in managing the stocks. Some

additional consideration is necessary in the discussion draft, which then should be

followed by addition of more specific language on EFH that provides guidance to

managers, in addition to highlighting the criteria for, and kinds of, habitat-related

research that are required. I am not certain that a specific National Standard needs

to be added to the Act, but this possibility should be considered.

Bycatch

The discussion draft includes strengthening of recommendations and guidance for

bycatch reduction in marine fisheries (Sec. 9). This language is very welcome in the

Act. Bycatch can be wasteful and potentially damaging to marine ecosystems. There

are ways to address the problem and to reduce the amount of ‘‘technical interaction’’

in fisheries that will lower the catch of non-targeted organisms. Observer coverage

and modification of gears can document and reduce bycatch. Research on methods

and approaches to reduce bycatch already are being implemented; the language in

the discussion draft will reinforce and strengthen these actions.

The language in the discussion draft that specifically allows distribution of dead

bycatch to charitable organizations, while acceptable in principle, could be misdirected if it induces subtle shifts in fishing strategies and locations by fishermen

to areas where bycatches may be high. Under ‘‘Bycatch Reduction Gear Development’’ (Sec. 408), it seems remiss to not clearly specify the ‘‘Amount of bycatch, if

known’’ in the list (page 12, lines 23–25) for fisheries with bycatch problems (page

12, lines 23–25 of discussion draft). This would highlight the magnitude of the problem in those fisheries where bycatch is problematical.

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Marine Protected Areas

Closed area management is not new in fisheries, but nevertheless it has been

used rather sparingly. The concept of marine reserves or other closed areas, with

various restrictions on fishing and other human uses, was recognized in the 1996

reauthorization of the MSFCMA and has been on the planning tables of Regional

Councils in recent years. Some marine areas have, in fact, been closed to some kinds

of fishing effort (e.g. parts of Georges Bank). A detailed study of MPAs by the

National Academy of Sciences (NAS 2001) broadly evaluated their potential, including their use as a tool in fisheries management. The NAS Committee concluded that

MPAs have a role in fisheries management. In a broad sense, setting aside areas

to protect spawning stock can serve as a buffer against the uncertainty of obtaining

accurate stock assessments, i.e., a kind of insurance. More specifically, the NAS

Committee recommended that MPAs for fisheries management should be designed

as parts of broader networks of MPAs that are zoned for permitted activities, and

that the networks be embedded in a broader plan of coastal ocean management that

considers the full spectrum of human activities and need to protect ecosystem structure and function. The NAS Committee recognized and emphasized that stakeholders (fishers) must be included in every stage of MPA development, from discussion of concept through design, and continuing into the evaluation and monitoring

phase after implementation.

MPAs are not a stand-alone solution to fishery management problems but their

role, which is likely to increase, should be recognized. Language in the pending reauthorization of the Act could be added to address the issues and identify probable

benefits of MPAs, to specify research needs, and develop criteria for MPA implementation. The impetus to do this is underscored by the Executive Order issued by

President Clinton in May 2000 directing federal agencies to develop networks of

MPAs in the coastal ocean.

Data and Information Needs

The issues of data availability, collection of data, and data management for stock

assessment and management purposes represent key needs for improvement of fishery management and, to an extent, are addressed in the discussion draft (Sec. 5 and

Sec. 20). A National Academy of Science Committee (NAS 2000a) developed a comprehensive list of detailed recommendations for data collection and management

specifically addressed to Congress, NMFS, or the Councils. That committee recommended implementation of a national Fisheries Information System (FIS), which

remains an important need and could be emphasized in the reauthorized Act. The

summarized and consolidated NAS recommendations, many of which should be considered for inclusion in the reauthorized Act, are:

• Congress and NMFS. Standardize and improve fisheries data collection and

management methods and procedures nationwide. Develop a Fisheries Information System (FIS).

• Councils. Be more proactive in determining needs and requesting appropriate

data and models to improve potential for success in management. This recommendation is applicable to both commercial and recreational fisheries.

• Congress. Make commercial fisheries data more accessible to agencies for stock

assessment scientists by amending laws relevant to confidentiality.

• NMFS. Develop more cost-effective ways to collect and manage data, including

data collected for recreational fisheries in the Marine Recreational Fishery Statistics Survey (MRFSS) surveys.

• NMFS. Develop new data collection and stock-assessment methods, including

those that consider ecosystem functions and processes, habitats, and environmental variability.

• NMFS. Involve stakeholders (fishers) in the data identification and collection

processes more than at present. Better cooperation with stakeholders will improve quality of data. Reports of data analysis and assessments should be made

available to stakeholders on a regular basis.

• Congress and NMFS. Insure that NOAA has a strong and capable fleet of research and survey vessels for fisheries data collection and assessment.

• Congress and NMFS. Increase the level of observer coverage on fishing vessels

to improve data collection and interpretation.

Congress, NMFS and Councils. Institute better and more complete monitoring

and evaluation of marine ecosystems and EFH. Build this information into stock assessments.

Cooperative Research and Education

Many of the needs for fisheries science, the requirements for management action

in the existing Act, and the implementation of recommendations in the discussion

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draft will require increased funding and also additional staff and personnel trained

in quantitative fisheries science, ecosystem science, economics, and sociology. At

present, the National Marine Fisheries Service (NMFS) cannot meet its demand for

stock assessment specialists and has too few social scientists and economists on its

staff to effectively provide management information and advice to the Councils. A

National Academy of Sciences workshop (NAS 2000b) on manpower needs in NMFS

explored the need for such experts and made recommendations to NMFS to help recruit new talent. However, it is not certain that such needs can be met without significant stimulation of effort and funding by Congress. Furthermore, the needs for

stock assessment scientists and socioeconomic experts on Council staffs and in academia (to train the new cadre of experts) is problematic, a kind of Catch–22 since

virtually all experts in quantitative fisheries science at the PhD level who are U.S.

citizens now take positions in NMFS, leaving a minuscule pool of talent for Council

staffs or for academic institutions to recruit into faculty ranks. Language in the Act

that served to insure programs and funding to address the research and educational

needs of NMFS and other research institutions would be an excellent investment

for sustainable fisheries and ecosystems that support them.

Cooperative Marine Education and Research (CMER)

To meet the challenges posed by issues of resource management in the marine

environment, a partnership between NMFS and universities has been proposed to

conduct research on coastal fisheries and to help resolve the manpower shortage in

NMFS of highly-trained fishery scientists, marine ecologists and socioeconomics experts. The Cooperative Marine Education and Research (CMER) program already

exists in four universities (University of Massachusetts, University of Rhode Island,

Rutgers University, and College of William and Mary) through funding from the

NMFS Northeast Fisheries Science Center. The Director of each university’s program is a NMFS scientist who administers the program and participates in research

and education activities at the academic institution. CMER could benefit immensely

from a permanent authorization in the Act and by expansion to include the universities already participating plus three others (University of Maryland, University of

New Hampshire and Stony Brook University- -the State University of New York).

These universities constitute a consortium that will partner with NMFS to meet research and educational needs of the agency and the country.

The following language is proposed for inclusion in the Act: ‘‘Cooperative Marine

Education and Research- –For the purposes of developing adequate, coordinated, cooperative research and training programs for living marine resources, the Secretary

may establish a Cooperative Marine Education and Research Program. Under this

program the Secretary is authorized to enter into cooperative agreements with universities and institutions of higher learning in order to conduct research in areas

that support conservation and management of living marine resources. Research

conducted under this program may include biological research concerning the abundance and life history parameters of stocks of fish, the interdependence of fisheries

or stocks of fish, and other ecosystem components, and the linkages between fish

habitat and fish production and abundance.’’

Summarizing

There are many science-related issues that need to be addressed in the reauthorization process. The problems of fisheries science and management, and recommendations to solve them, were nicely encapsulated by Pamela Mace in her keynote address at the 2nd World Fisheries Congress (Mace, 1997). Mace’s essay is

global in scope, but most of the issues she addresses are relevant to U.S. fisheries.

She believes that overcapacity is the single largest problem in fisheries management

on a global basis, and that control of excess effort is essential to have healthy

fisheries. The draft language in the reauthorized Act now recognizes this issue and

proposes actions to alleviate the problem. Also, Mace (1997) states, ‘‘I contend that,

to date, lack of national policies and institutional failures have been more limiting

than science, management or data. Sound national and international policy and effective institutions are essential for providing the necessary environment to foster

good science, management and data collection programmes.’’ The reauthorization of

the Act must provide the legislative guidance to support NMFS and the Councils

that will allow them to conduct the science, recommend effective management measures, and then implement regulations to assure healthy and sustainable fisheries.

Amendments proposed in this discussion draft of the Act, if supplemented by additional recommended actions and firmer, more prescriptive language, will help to insure that those goals are met.

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References

FAO. 1995. Precautionary approach to fisheries. Part 1: Guidelines on the

precautionary approach to capture fisheries and species introductions. FAO

Fisheries Technical Paper 350/1. 52 pp.

Hanna, S., H. Blough, R. Allen, S. Iudicello, G. Matlock and B. McKay. 2000. Fishing grounds. Defining a new era for American fisheries management. The H.

John Heinz III Center for Science, Economics and the Environment. Island

Press, Washington, D.C.

Mace, P. M. 1997. Developing and sustaining world fisheries resources: the state of

the science and management. Pp. 1–20. In: Hancock, D. A., D. C. Smith and

J. P. Beumer (eds.). Developing and sustaining world fisheries resources. 2nd

World Fisheries Congress Proceedings. CSIRO Publishing, Collingwood, VIC,

Australia.

NAS. 1998. Improving fish stock assessments. National Academy of Sciences,

National Research Council. National Academy Press, Washington, D.C.

NAS. 1999a. Sustaining marine fisheries. National Academy of Sciences, National

Research Council. National Academy Press, Washington, D.C.

NAS 1999b. Sharing the fish. Toward a national policy on individual fishing quotas.

National Academy of Sciences, National Research Council. National Academy

Press, Washington, D.C.

NAS. 2000a. Improving the collection, management, and use of marine fisheries

data. National Academy of Sciences, National Research Council. National Academy Press, Washington, D.C.

NAS. 2000b. Education and training needs for fishery sciences and management.

Workshop Report. National Academy of Sciences, National Research Council.

Ocean Studies Board.

NAS. 2001. Marine protected areas: tools for sustaining ocean ecosystems. National

Academy of Sciences, National Research Council. National Academy Press,

Washington, D.C.

NMFS. 1999. Ecosystem-based fishery management. Ecosystem Principles Advisory

Panel. NOAA/NMFS. 54 pp.

Mr. GILCHREST. Mr. Hayes.

STATEMENT OF ROBERT G. HAYES, GENERAL COUNSEL,

COASTAL CONSERVATION ASSOCIATION

Mr. HAYES. Thank you. I am the general counsel of the Coastal

Conservation Association, and, as such, I would like to give you the

views of their 80,000 members on your draft. There are a number

of those views that have been included in my testimony, and I don’t

want to just repeat those, so what I will do is pick four or five

which we think are of significance, some of which haven’t been

touched on today, and deal with those directly.

Mr. GILCHREST. And we will include your statement in the

record.

Mr. HAYES. Thank you. Let me start with the definition of ‘‘bycatch.’’ we have no position, frankly, on the issue of whether you

include birds, and certainly no objection to it. We do, however, have

an objection to having bycatch apply essentially to recreational

fishing. Recreational fishing as an activity by and large is a bycatch fishery. The connotations in the statute suggest that bycatch

is a bad thing that ought to be minimized or avoided. So what you

are basically saying in the statute to the average recreational fisherman is, the activity that you are engaged in, including all catch

and release activities which are generally viewed as a pretty positive conservation measure, are something that we ought to be

avoiding as a matter of national policy. Frankly, NMFS has wrestled with this issue. We wrestled with it in certain plans, the highly migratory species plan on the marlins. It is an intractable problem, frankly, and it results from the existing definition. And what

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we would like to do is work with you on developing a definition

that clearly preserves the conservation ethic that you are trying to

preserve, but which doesn’t label an activity incorrectly as something that ought to be avoided and minimized. That is the first one.

The second one, I would like to suggest, that I saw your study

on HMS fisheries dealing with fostering the international compliance with ICCAT. We think that is a very positive step forward.

Frankly, we passed the resolution here only about 2 months ago

dealing with multilateral compliance with international conservation measures by ICCAT. We are going to Tokyo, I think at the end

of this month, to further some discussions along those lines; and,

again, this is one of those things we would like to get back with

the Committee after we get back and include—it turns out I am

the Recreational Commissioner—but I would like to include the

other commissioners, including the Federal Commissioner, Dr. Hogarth, in an active discussion of how we can move forward in this

arena. This is something that is sorely needed for the international

compliance on those measures.

The third thing I would like to do is applaud you for your introduction, a concept that we have embraced as long as I have been

involved in the Coastal Conservation Association, which has now

gone on about 20 years; that is, we believe very strongly that recreational sale of fish is not recreational fishing. Recreational fishermen are out there to conduct recreation. The sale of those fish is

a commercial activity. It should be accounted for as a commercial

activity. It is believed by certain members and, frankly, by almost

every recreational group I have talked to, as something that ought

to be prohibited. You ought to prohibit the sale of recreationally

caught fish. And so I was glad to see that in your draft.

Just briefly on ITQs, CCA has long been a proponent of the use

of ITQs. We think the Councils ought to have the broadest possible

discretion to determine how to use them. To imagine that the Federal Government—and not to chastise the Congress, but maybe

worse yet—that the Congress could actually conceive of the right

system to apply in a specific fishery is a little unimaginable to me,

frankly. They are very complicated, they are not useful in every

fishery. There are different economic and social and biological

concerns that have to be taken into place. These are probably the

most complicated thing you can do in fishing, and, frankly, the institution that ought to be looking at them is the Councils, and they

ought to be looking at them pretty much in an unfettered way.

That is sort of our sense of the thing.

Last, I want to mention two things. One, you have a provision

in here which has a research provision for oysters, which I found

very interesting and very commendable. But I got to a certain provision of it and I was a little bit taken back, and that provision

dealt with the no fishing area which you would have the Federal

Government impose on citizens of the State of Maryland in internal

waters in the State of Maryland. I would suggest that that is the

only time that has ever been done, at least to my knowledge, and

that it was an extraordinary thing to do.

I took the liberty of talking to the DNR folks over in the State

of Maryland, and they were slightly astonished, frankly, to see it.

And I was reminded by the fellows I talked to in Virginia that we

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fought a war over this at one time. So that provision I thought was

a little bit surprising.

Second, it does bring up something that Dr. Houde has just

brought up which I think is an important consideration. We think

this concept of marine protected areas, which some people, particularly in the environmental community, love to refer to as no fishing

zones, is something that ought to be shaped with some guidelines

in the Magnuson Act. We are not opposed to no fishing areas. We

are not opposed to closed seasons. We are not opposed to time and

area closures. In fact, recreational fishermen are, by and large, in

favor of most management measures.

What we are opposed to is arbitrarily excluding the public from

a public resource when there is no scientific basis for it and there

is no public participation in the decision that was ultimately made.

That is something that from a recreational fishing standpoint simply can’t be allowed, and the reason for that is pretty simple. The

economic value and, frankly, the recreational value of recreational

fishing is that you have access to a resource. You can limit me the

number of days, you can tell me what size I can catch, you can put

slot limits on, you can tell me I have got to release every fish, you

can tell me I have got to take the barbs off the hooks, you can tell

me I can only use a fly rod.

Mr. GILCHREST. Or a canoe.

Mr. HAYES. Or a canoe. And none of that is going to bother me.

When you tell me I can’t go down the Sassafras River and cast to

a fish that is there, even though I might have to release it, that

is something that annoys recreational fishermen and it is something that we would like to get very clear with specific guidelines

in the Magnuson-Stevens reauthorization.

I would note there is a bill, Freedom to Fish Act. We love the

name. And it does include some guidelines. We would be perfectly

be happy to talk about those guidelines and the extent of those

guidelines, and we would come to visit with you and have a chitchat about it.

[The prepared statement of Mr. Hayes follows:]

Statement of Robert G. Hayes, General Counsel,

Coastal Conservation Association

Good Afternoon, my name is Bob Hayes and I am the General Counsel for the

Coastal Conservation Association (‘‘CCA’’). I would like to thank the Chairman for

this opportunity to address the Committee on the reauthorization of the Magnuson–

Stevens Act. First, I would like to tell you a little about CCA and how it operates.

Second, I will address some of the issues the Chairman has addressed in his draft

bill and finally, I will raise some of the issues of concern to recreational fishermen

that are not addressed in the draft bill.

The Coastal Conservation Association is the leading marine recreational fishing

group in the United States. Formed by a small group of sportfishermen in Houston

in 1978, CCA has grown to a fifteen-state operation representing 80,000 members.

Each of our states operates somewhat independently focusing on issues in the state

that are important to marine recreational fishermen. However, like so much in

fisheries management, conservation issues encompass a regional and national perspective; therefore, CCA learned long ago that federal and international fisheries

management were just as important to the local marine recreational fishermen as

the conservation of the most local fish population.

CCA pursues conservation policies set by our state and national Boards of Directors. These boards are made up of active volunteers concerned about the health of

the nation’s fisheries. CCA has been active in a number of conservation issues in

the last twenty years, including: all of the east and gulf coast net bans; game fish

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status for redfish; speckled trout; tarpon; striped bass; river shad; marlins; spearfish; sailfish; and the reduction of bycatch through the use of closed areas and technology. Our Maryland chapter is actively involved in the health of the Chesapeake

Bay and management of its valuable recreational species. Sherman Baynard testified at your recent field hearing on oyster bed protection in the Bay.

MAGNUSON–STEVENS ACT

Our comments on the draft bill are organized in the same fashion as the draft;

therefore, the order of our comments does not suggest any emphasis by CCA.

Report on overcapitalization. As a first step toward right-sizing the commercial

fleets in this country this report should be extremely useful. We suggest, however,

that the report’s geographical breadth of ‘‘United States waters’’ be clarified to ensure that state as well as federal fleets are included. For example, if only federal

fleets were included, the list would exclude the Texas inshore shrimp fleet, which

the state has not only determined to be overcapitalized but is in the process of reducing through the buyback of half of the permits in the fleet.

We further suggest that this study be done every five years so that future overcapitalized fleets can be identified.

Buyout Provisions. While section of the Sustainable Fisheries Act (‘‘SFA’’) has

been almost dormant since 1996, there have been buyouts and proposed buyouts

through Congressional action. There are few groups in this country that have spent

as much time and effort in developing acceptable buyout provisions for commercial

fisheries as CCA. In addition to our efforts to reduce the size of the pelagic longline

fleet, recreational fishermen are the sole source of funds for the present reduction

of the Texas shrimp fleet. What we have learned is that the stumbling block is not

the buyout itself but rather the source of the funds to execute it. We suggest the

creation of a fund specifically for the purpose of buyouts that could be funded

through an accumulation of all of the penalties now paid for fisheries violations and

any funds collected as fees for licenses or Individual Transferable Quotas (‘‘ITQs’’).

Data Collection. Recreational fishermen are not opposed to improving the collection and use of data about recreational catch. In fact, we would like to see a significant improvement in the collection of catch data and the economic data required to

comply with the Regulatory Flexibility Act. To the extent that sharing state collected data will improve the system, we support the sharing of it. We suggest that

data regarding the impact of fishing regulations on the recreational industry should,

in certain instances, also be collected.

Ecosystem Based Management. CCA supports the development of a workable definition of ecosystem management. CCA does not support a requirement that an

unnamed and unknown advisory panel develop criteria for using this management

technique. CCA is not opposed to the further development of the science as proposed

in the draft bill; to the contrary, we encourage it. However, ecosystem management

is scientific theory with little or no practical application. Its parameters are not well

understood and the principles for its use are not easily identified. One example—

the ill-fated Sargassum plan in the southeast—surely should have been identified

as the likeliest candidate for approval as an ecosystem plan. Yet, five years after

development, it still has not been approved because NMFS cannot figure out how

it fits into the present statutory scheme. What the draft bill suggests is taking this

principle and requiring Councils to put it into place in, for example, the Florida

Keys. In order to accomplish the implementation of this principle, not only does the

scientific approach need to be changed, the entire structure of the Magnuson–Stevens Act needs to be adjusted.

Therefore, we suggest that the requirement in Section 2(1)(B) be deleted and that

you add a requirement for a report from the Secretary regarding what changes, if

any, need to be made to the Statute, implementing guidelines and regulations in

order to put an ecosystem plan in place.

Overfishing. The changes proposed in separating the definitions of overfishing and

overfished seem reasonable enough on there face. Since only the definition of overfished seem to have changed and it would appear to be a lesser standard that the

present definition it would be useful to find out the impact of the change before it

was made. CCA suggests that the Committee ask NMFS to determine what effect

this will have on existing fishery management plans before it moves forward with

the change.

Bycatch. Most importantly, the definition of bycatch should be amended to exclude

recreationally caught fish. Several attempts have been made administratively to accomplish this but in each instance the definition in the Act was problematic. There

are no approved catch and release programs under the Magnuson–Stevens Act making the second sentence of the definition inoperable. The first sentence does nothing

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ery. Let’s use the catch of white marlin as an example. White marlin is a targeted

fish in the recreational fishery. They are very rarely landed, almost never retained

for personnel use, and are not under a catch and release program. Yet, they are bycatch and subject to the bycatch reduction provisions. The Billfish Advisory Committee and NMFS wrestled with this problem for almost two years and finally gave

up by declaring that the definition just did not make any sense in this fishery.

We would like to work with the Chairman on a definition that makes sense and

does not brand recreational activity as something to avoid.

CCA supports the use of bycatch donations so long as it does not lead to a reduction in the conservation of the resource or undermine state and federal gamefish

laws. For example, we would not support the landing of striped bass in any state

that has a gamefish law nor would we support the landing of marlin for a consumptive purpose. We suggest that this section be further amended to ensure that the

donation of the fish would not undermine the underlying purpose of and state or

federal management measure.

Bycatch reduction gear development. CCA supports the development of technological methods of avoiding and reducing bycatch. Bycatch reduction devices in the

shrimp fishery are the best example of the use of technology to reduce bycatch, but

there a number of other fisheries that could use this research. We suggest you set

a date certain for the first Secretary’s report and require the Secretary to develop

and implement a program at a specific amount.

Essential fish habitat. CCA supports the emphasis on measures that address destructive practices by commercial fishermen. Overfishing is still the greatest threat

to the viability of the nation’s marine resources but habitat destruction is a close

second in many fisheries. The destruction of the bottom in the shrimp fishery may

not jeopardize the shrimp fishery, but it does a significant amount of damage to

other fisheries through the reduction of habitat. Strengthening this section to focus

on something that the Councils and the Secretary can realistically impact is the

right thing to do with this section.

Oyster reproduction sites. CCA has previously testified on this concept. Our suggestion then was to reduce the impact to the maximum amount possible. We perceive that this section attempts to reduce the impact by limiting the area that will

be closed. We suggest that you limit the impact by excluding only those activities

which will have a negative impact. If the Chairman’s intent is to conduct an experiment, then we suggest using a completely closed area as a control for others that

are left open, and determining whether fishing has any impact on the recovery of

oysters.

We should note also that the requirement for the Secretary to impose specific regulations for fishing in an area where no other federal regulations for fishing exist

is an extreme and unprecedented use of federal power. CCA is adamantly opposed

to the Congressional use of this form of power when there is no demonstration of

the need for such regulations. A Congressional field hearing in Annapolis is hardly

the kind of public process envisioned in the Magnuson–Stevens Act and, even if it

was, the requirement represents an extraordinary intrusion on the sovereignty of

the States of Maryland and Virginia.

Individual quota limited access systems. CCA recently provided testimony to the

Committee on the use of individual transferable quotas (‘‘ITQs’’). Many of the suggestions about involving participants in the fishery and giving the Councils’ broad

discretion to implement the system are included in the draft proposal. There are two

things, however, which are troubling about the proposal. The first is the charging

of fees for the use of the system. This concept is based on the perception that individual recipients are getting something akin to a privilege for the right to use the

quota. CCA does not make that assumption. Rather we view the granting of an ITQ

as nothing more than an individual allocation which is subject to recall from whoever has it. Charging a fee will be viewed as a deterrent to the use of the system

and may restrict the use of the device rather than encourage it. ITQs, properly

implemented, can be a useful conservation tool and should be encouraged, not

discouraged.

Additionally, the section does not appear to allow the Secretary to develop limited

entry systems or ITQs for highly migratory species. I assume the use of such tools

in those fisheries would have the same beneficial effect as it does in other fisheries.

At a minimum, the section ought to be made clear that ITQs can be used in HMS

fisheries as well.

Cooperative Education and Research. CCA is not opposed to the use of commercial

vessels to do research so long as the underlying science is not compromised.

Highly Migratory Species. For the last five years, the United States has worked

at the International Convention for the Conservation of Atlantic Tunas (ICCAT) to

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national compliance has been slow to come. The provision you have added will help

achieve acceptance of a market driven, internationally-approved enforcement mechanism in order to make international conservation effective. Much more needs to be

done. After the upcoming meeting of ICCAT in Tokyo later in May, the other Commissioners and I can meet with the Chairman to develop a more effective system.

Prohibited Acts. A prohibition on the sale of recreationally caught fish is long

overdue. Most states already prohibit such sale and some of the fishery management plans also follow this system. CCA has long argued that a recreational fisherman does not sell his catch and I believe the vast majority of recreational fishermen

agree with this position.

Membership of Fishery Management Councils. CCA supports the intent of this

amendment. Individuals who have no financial interest in the fish being managed

ought to be on Fishery Management Councils. CCA has argued for years that the

hired hands of interest groups are not the right people to make unbiased decisions

about how to manage the resource. There has always been a clear distinction between people that are knowledgeable and those who have been hired to represent

a point of view. Today, there are Council members who are paid to be members by

recreational, commercial and/or environmental groups. They are there not because

of there own knowledge, but to represent the views of the group that pays them.

We suggest that the section be applied to all Council members and be changed

to prohibit the appointment of any individual who is employed by any association

of commercial, recreational, charter and/or non-governmental organization, or is a

paid representative of any entity that has an interest in a Council decision. We believe that all but about 100 of CCA’s 80,000 members would be eligible under these

criteria. Hundreds of thousands of environmental and conservation representatives

would still be eligible under these criteria. Lawyers, consultants, association

operatives and the like would all be ineligible and the Council system would be

much better for it.

At a minimum environmental interests ought to be added to the list of prohibited

interests. The environmental representative’s point of view can be bought just like

the rest.

Miscellaneous amendments. All of the miscellaneous provisions appear to be good

additions to the Act.

RECOMMENDED ADDITIONS TO THE MAGNUSON–STEVENS ACT

REAUTHORIZATION.

Marine Protected areas.

In the last few years, there has been increased interest, primarily in the environmental and academic communities, in the use of Marine Protected Areas (MPAs) as

a device to manage and restore marine fisheries. MPAs are different things to different people. To most fishery managers, they are a tool that has been used in both

fresh and salt water for years. Time and area closures for spawning aggregations

are the best known use of an MPA. Closed areas for destructive gear types are also

common. Time and area closures have been proposed by CCA for any number of conservation problems and are broadly supported in the recreational community.

The environmental community views them as a clean and efficient way to manage

fishery resources by excluding uses, including all fishing, from large areas of the

ocean. In their view, the creation of no fishing areas will enhance stock recovery

and protect large portions of the biomass. Environmental groups are heralding the

use of MPA as a new day for oceans management and have announced their objective of putting 20% of the nation’s oceans in no fishing zones.

Why are recreational fishermen so opposed to no fishing zones?

MPAs, at least as the environmental community envisions them, limit recreational access to the resource without any demonstrable benefit to the health of

most fishery resources and, so far, with little public involvement. MPAs are unpopular because anglers believe they will be used to restrict access. Expanding angler

access is something the recreational sector, local, state and federal officials have

been trying to encourage for twenty years.

Recreational fishermen have led the fight to conserve America’s marine fisheries.

Striped bass, weakfish, redfish, mackerel and Atlantic shad are all recovering as a

result of the efforts of recreational fishermen. We have worked inside the existing

management system with the existing tools to turn around the exploitation of these

resources and recover them. We’ve done it because we believe the highest and best

use of these resources is for recreation.

For a number of years the economic development theory for recreational fishing

has followed two paths. The first is to provide for ease of access to the resource.

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reational species. This rebuilding was done on a ‘‘build it and they will come basis.’’

The explosion in recreational fishing for these rebuilt species has more than proved

the point. It works. Today, sportfishing contributes more to the economy than ever

before.

Recreational fishermen are not opposed to the use of traditional management

measure s to address specific management issues based on good science and implemented as a result of a public process. As a result we support the Freedom to Fish

Act H.R. 3104 which amends the Magnuson ‘‘Stevens Act by adding guidelines for

the use of MPA’s. These guidelines would also apply to the management of marine

recreational fisheries in federal marine sanctuaries. In essence they provide for a

public process, sound science and a nexus between the problem being solved and the

measure being proposed. They are intended to make the exclusion of the public from

a public resource the management measure of last resort for stock rebuilding.

We recommend that you support the inclusion of H.R. 3104 in your bill.

Judicial review. One of the major flaws in the Sustainable Fisheries Act is the

inability of the Courts to take into account the status of the stock prior to issuing

an order on whether NMFS and the councils have complied with either the overfishing prohibition or the rebuilding program. Most fishery management plans are

based on at least two year old data. Most plan amendments take a couple of years

to put together and most court reviews occur one to two years later. Courts are restricted from taking into account whether the plan adopted is working. Rather, the

court looks at whether the statute was implemented and whether the record rationally supports the measures adopted. Courts not only do not know whether the plan

is working, they are restricted from ever looking at it by the Administrative Procedure Act. Considering that the court is looking at a series of decisions made on data

that may be five years old at the time of the ruling, there is little relevance between

the decision being made and the status of the stock as a result of the measures

adopted. Therefore, we suggest that courts be required to take into account the

present status of the stock prior to determining whether the measures adopted could

achieve their purpose. Section 305 (f) should be amended by inserting the following:

(5) In any action which is a challenge to measures intended to prevent overfishing

or rebuild an overfished fishery a hearing will be held prior to issuing any order

impacting such measures, which (A) assesses the impact of the measures on preventing overfishing or on rebuilding and (B) assesses the status of the fishery at

the time of the hearing. Findings from the hearing will be taken into account prior

to issuing any order.

Thank you for allowing us to testify here today and share the views of the Coastal

Conservation Association.

Mr. GILCHREST. Thank you, Mr. Hayes. Those are excellent suggestions. I will say that I am not surprised that DNR was astonished at something I did or said, because they are usually surprised if they pick up the phone and I am on the other end. But

we can work out these issues, I am sure, and put some language

for the guidelines of MPA in Magnuson.

Thank you very much. And the Sassafras River is a great place

for canoes.

Mr. GILCHREST. Mr. Leape.

STATEMENT OF GERRY LEAPE, MARINE CONSERVATION

PROGRAM DIRECTOR, NATIONAL ENVIRONMENTAL TRUST,

MARINE FISH CONSERVATION NETWORK

Mr. LEAPE. Mr. Chairman, my name is Gerald Leape and I am

the Marine Conservation Program Director for the National Environmental Trust. Thank you for the opportunity to testify today on

behalf of 145 member groups of the Marine Fish Conservation Network. These groups collectively represent the views of more than

5 million Americans. NET is a member of the advisory board, and

I am a member of its executive committee.

Mr. Chairman, we appreciate the intent and direction of this

draft in its goal of strengthening Federal fisheries management

69

and moving toward ecosystem-based management. We share that

goal. We believe that your draft includes several improvements to

existing law. Overall, however, we believe that too many of the sections are missing directives with deadlines for action on those directives, and rely instead on additional reports. Relegating action

on these issues to reports, we feel, will lead to more inaction and

delay in addressing the critical problems facing our oceans.

Overall, Mr. Chairman, we believe that your draft needs some

significant improvements in several areas to achieve our shared

goal of healthy marine ecosystems. If you will incorporate our suggested changes, we will not only support your bill upon introduction, but we will fight for its enactment this year.

There are three provisions included in your draft that we believe

roll back conservation protections from current law. Those include

the new ‘‘overfished’’ definition, the opt-out provision for the Councils from implementing the bycatch reporting systems, and the

movement from required to discretionary of the mandate to minimize the impacts of fishing gear on essential fish habitat. We urge

you to consider dropping these provisions prior to introduction.

I would like to focus my remaining comments on six key areas:

ecosystem-based management, IFQs, observers, overfishing, bycatch, and essential fish habitat.

While the ecosystem-based management section contains adequate research plans and a process for setting criteria for fishery

ecosystem plans, it lacks the requirement, as you heard earlier, of

a deadline for Councils to develop and implement these plans for

all fisheries under their jurisdiction. We feel that if you fail to put

a deadline for Councils to develop these plans for all their fisheries,

it will doom progress on our shared goal for at least another decade.

At the hearing you chaired on this issue last year, we learned

that there is currently sufficient data to get started on ecosystembased management. That hearing also showed that 2 years of dedicated additional research could fill in many of the remaining data

gaps. We strongly urge you to merge your research provisions with

those in H.R. 2570, include the deadlines from H.R. 2570, and

authorize specific funding as we heard the needs from Dr. Hogarth

for this section to ensure that the work gets done.

On IFQs, the Network believes, first and foremost, fish are a

public resource; and we support continuation of the current moratorium unless and until Congress can adopt legislation containing

mandatory national standards for new IFQ programs to ensure

that these programs contribute to and enhance the conservation

and management of our fisheries and ensure equity among all fishermen participating in the fishery.

Related to the draft, we are concerned that the 5-year review,

while well intentioned, will be ineffective unless it is accompanied

by a 5-year sunset. Directly connecting the review with the sunset

period would not only require an IFQ program to pass the review

to get renewed, but there would be a built-in consequence for failure.

Finally, the Marine Fish Network is opposed to quota shares for

processors. We believe that this draft, in addition, should authorize

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server programs is crucial to moving toward ecosystem-based management, reducing bycatch, eliminating overfishing, and also protecting essential fish habitat. There are several regional observer

programs already in place in areas, but they are lacking a central

coordinating mechanism to maximize the benefit of the data that

they are collecting. In addition, this program could fill in the gaps

where currently there are no observer programs in place. There are

several creative ways to finance observer programs, and this legislation should include those alternatives.

On overfishing we urge to you eliminate the mixed stock exception created by NMFS which allows overfishing for the weakest

stock in a mixed stock fishery. It is our feeling this regulation was

against the plain language in the SFA and should be overturned

through this year’s legislation. While we are opposed to the new

overfished definition, we could accept a third definition such as ‘‘depleted,’’ as long as that definition was tied to the same rebuilding

obligations as those that apply to overfished under current law.

On bycatch, we are very pleased with the addition of seabirds to

the definition and the requirement that Councils finally have to develop and implement standardized reporting methodologies. We

strongly urge you to include the provisions from H.R. 2570 which

require annual reductions in bycatch for those fisheries where the

problem has already been assessed.

On EFH, the problem with your new information requirements,

we heard earlier from Dr. Hogarth, is that the necessary information doesn’t exist for most species. NMFS has set in motion a 4-

year plan to begin to get that information, through completion of

the NEPA required environmental impact statements for each fishery around the country. We urge you to let that process work. Upon

completion we should have the kind of knowledge for these species

that your draft would require, and under current authority greater

focus and refinement can be made to Federal actions to protect

habitat as needed. We urge you to drop those habitat provisions

from your bill.

In closing, we look forward to working closely with you, Mr.

Chairman, as we have over the last few years, and your staff to

strengthen this draft to improve fisheries management for the fishermen and the fish. I will be happy to answer any questions.

Mr. GILCHREST. Thank you Mr. Leape.

[The prepared statement of Mr. Leape follows:]

Statement of Gerald Leape, Marine Conservation Program Director,

National Environmental Trust, on Behalf of the Marine Fish

Conservation Network

Good afternoon Mr. Chairman and Members of the Subcommittee and thank you

for the opportunity to testify on behalf of the more than 145 member groups of the

Marine Fish Conservation Network (Network) and our more than 5 million members. My name is Gerald Leape and I am a member of the Network’s executive committee and the Marine Conservation Program Director of the National Environmental Trust. We look forward to continuing to work with you and your staff to

strengthen the conservation provisions of this draft so that we can support it when

it comes to markup and realize our shared goal of ensuring sustainable fisheries and

healthy marine ecosystems. The Network has a comprehensive agenda for strengthening the Magnuson–Stevens Fishery Conservation and Management Act, which is

appended to my statement. In addition, I have appended a copy of the Network’s

IFQ legislative proposal to my statement for the record. We also want to convey to

you our strong support for H.R. 2570, the Fisheries Recovery Act of 2001, which

71

was introduced by Congressman Sam Farr on July 19, 2001. As you know, 67 members of the House have cosponsored Mr. Farr’s bill.

As requested, we will focus our comments on the discussion draft circulated with

the invitation letter. We support the general intent of the discussion draft, however,

several provisions need significant modification to ensure that current regulations

are not undercut, fish conservation is enhanced, and the Network can enthusiastically support the bill.

First, we would like to offer some overall comments on the draft. In most of the

conservation provisions in the bill, the proposed amendments call for more studies

and reports to Congress. In many of the sections, there is no directed action or if

there is such a suggested action, there is no deadline for completing the action.

In several cases, there are rollbacks from existing law that, if enacted, would undercut the gains in habitat protection, rebuilding overfished stocks, and minimizing

bycatch realized by passage of the Sustainable Fisheries Act (SFA) amendments of

1996. These amendments were passed by the House by a vote of 387–38 and in the

Senate by a vote of 99-0. Mr. Chairman, those votes support our position that, at

a bare minimum, we must not go backwards. For the sake of the fish and the fishermen, we must move forward to not only complete implementation of the SFA, but

also strengthen existing law to achieve the vision of the 1996 amendments to the

Act. Below are my specific comments organized by section of the discussion draft.

SECTION–BY–SECTION ANALYSIS AND RECOMMENDATIONS

Overcapacity Report

The Network agrees that overcapacity in our fisheries should be reduced as overcapacity is linked to many other problems faced by U.S. fish populations. The General Accounting Office (GAO) has investigated the issue of overcapacity and buyback

programs several times, most recently in June 2000. Therefore, we question the

need for another study.

Recommendation:

We recommended that you: 1) ensure that the report does not duplicate previous

work by the GAO; 2) require the Secretary to detail a specific course of action to

address the problems be identified in both the June 2000 GAO report and this proposed report; and 3) establish firm deadlines for addressing the problems.

Buyouts

We believe that this section contains the strongest improvements to existing law

of any part of this discussion draft. This new language, which directly addresses

problems that have plagued buyout programs to date, i.e., capacity being redistributed instead of permanently retired, can improve future buyouts by more effectively

reducing fishing effort and capacity. One important drawback to this section is that

it does not identify a funding source for the buyback program. We also recommend

that the program be expanded to include state fisheries data.

Recommendation:

Identify and include a dedicated source of funding.

Data Collection

We support this effort to improve recreation data by directing NMFS to collect

and consolidate recreational fisheries data from the states. In fact, many states have

indicated a willingness to cooperate in similar efforts, yet lack the resources to do

so. Without some new mechanism or incentive to encourage states to participate, we

feel that a lack of cooperation from the state could frustrate this effort to collect valuable recreational fishing data. Additionally, this program should be expanded to

include the collection of state commercial fisheries data.

Recommendation:

We recommend identification of a mechanism to encourage and enable states to

comply with the spirit and letter of this new directive.

Conserve Marine Ecosystems

Fishery managers and scientists have long recognized the need to expand fishery

management beyond traditional single-species planning to include ecosystem considerations. As far back as 1980, studies of federal fisheries management by the American Fisheries Society, National Fish and Wildlife Foundation, and others have

called for moving to ecosystem-based management. Such an approach includes, but

is not limited to, interactions between key predator and prey species within an ecosystem and the habitat needs of living marine resources and other limiting factors

72

in the environment. This concept supports the precautionary approach to fishery

management, especially when the ecosystem effects of fishing are uncertain. The

precautionary approach requires managers to act to avoid likely harm before causes

and effects are clearly established.

It is widely believed that some fishery declines and difficulties in restoring overfished populations are due, at least in part, to fishing caused disruptions of ecosystems. Under existing law, fishery managers do have limited authority to consider

ecosystem interactions, including predator-prey relationships, in management plans.

The principal reasons ecosystem relationships are not currently being adequately

considered is a lack of guidance regarding the information that is needed, clear direction regarding the principles and policies that should be applied, and most importantly, the absence of a legal mandate to require the application of such principles

and policies to fishery management decisions.

Mr. Chairman, you have been a steady advocate for ecosystem-based management

since we first worked with you on fisheries management issues more than eight

years ago. Six years ago, during debate on the SFA, we worked closely with you to

identify the questions that needed to be addressed prior to beginning the necessary

transition from single species management to ecosystem-based management. The

NMFS advisory panel, created by the SFA and charged with answering these questions, has done its job. They have not only answered the questions raised, but have

made recommendations on how to proceed. We are happy to see that the section on

ecosystem-based management in H.R. 2570 would implement these recommendations.

Concern:

The draft is admirable in its effort to promote the development of plans to fill

identified information gaps and begin the process of establishing criteria for the development of fisheries ecosystem plans. However, there is no requirement for managers to develop fisheries ecosystem plans, or to ensure that their fisheries management plans are consistent with ecosystem principles, in short, to implement ecosystem-based management. As we pointed out earlier, a number of studies and reports over the last two decades have recommended moving toward ecosystem-based

management, yet little has happened. Dr. Bill Hogarth testified before this Subcommittee in June of 2001 that NMFS was moving to implement ecosystem-based

management and that NMFS would be holding stakeholder meetings in the Fall,

again, nothing substantive has happened. The message to us and we hope you, is

clear, without a legal mandate, NMFS and the councils will not implement ecosystem-based management. Finally, there is no dedicated source of funding to accomplish this enormous task.

Recommendation:

To realize the goal of ensuring America’s of fisheries are managed in an ecosystem

context Mr. Chairman, there must be a legal requirement for managers to do so.

Therefore, we recommend that you merge your ecosystem research plan language

with the ecosystem language in H.R. 2570. This will codify the recommendations of

the SFA mandated panel, establish a clear legal mandate for ecosystem-based management, set up a reasonable 6 year timetable for action, and dedicate specific funding to achieve this goal.

Establish a National Fishery Observer Program

Objective observation and accurate data collection are vital to effectively manage

marine fish and fisheries. The ability of fishery managers to address the problems

of overfishing, bycatch, and degradation of EFH is currently limited by a lack of accurate and reliable information on a fishing vessel’s catch and bycatch. In many

fisheries there is an incomplete understanding of the total catch, i.e., landed catch

and discarded bycatch. Overfished stocks cannot be rebuilt if we do not understand

and control all types of mortality. Minimal, but inadequate, observer coverage exists

along the Atlantic Coast, the Gulf of Mexico, and the West Coast. A far more comprehensive national observer program is necessary to protect the sustainability of

America’s marine fish, fisheries, and fishing communities. The catch and bycatch

data that would be achieved as a result of such a comprehensive program is vitally

important to meeting the objectives of the Magnuson–Stevens Act, including the

promotion of sustainable fishing.

Concern:

Consistent with your efforts Mr. Chairman and the efforts of others on this Subcommittee to gain an additional $25 million for observers in fisheries around the

country, we believe that progress on this issue should not be relegated to another

report. There is broad and substantial support for and agreement on the need for

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a national observer program. Another feasibility study will only serve to further

delay implementation of this badly needed program.

Recommendation:

Require the establishment of a national observer program. The information generated from such a program will allow us too make true progress in reducing bycatch and protecting essential fish habitat. We strongly recommend the observer

language of H.R. 2570, which requires establishing observer programs in each fishery in order to gather statistically valid data. This does not mean requiring 100%

observer coverage, but would require enough observers to produce statistically valid

data. NMFS staff has told us that statistically valid data would generally require

30% observer coverage in most fisheries. To help fund such a program, H.R. 2570 proposing using $25 million in

Saltonstall–Kennedy funds to offset the cost of observers. The remainder of the

funding would come from a landings fee. If there is a need for an additional report,

we recommend that it focus on other mechanisms to fund such a program and the

level of observer coverage necessary in each fishery to provide statistically robust

data. However, let me reiterate our strong opposition to authorizing a study without

requiring the establishment of a national observer program, since we firmly believe

that such a study would only serve to delay the establishment such a program.

Overfishing

Overfishing has been and continues to be one of the major problems threatening

the survival of fisheries and the fish populations on which they depend. The most

recent NMFS Status of U.S. Fisheries report found 81 stocks overfished (21% of the

federally managed species that are assessed) and 65 stocks experiencing overfishing

(24% of the managed species that have been assessed). This represents some improvement over last year, but much work remains to be done. We must continue

to move forward to end all overfishing and to rebuild all overfished or otherwise depleted fish populations.

Concerns:

We appreciate your interest in separating the definition of overfished from overfishing. However, the proposed definition of overfished will significantly weaken existing law. Enacting this definition, which links the definition of overfished to a

stock size that is below the natural range of fluctuation associated with producing

MSY, would legitimize the efforts of those who blame all fisheries declines on anything but fishing. We in the conservation community believe that environmental

change should be considered in efforts to determine the cause of fluctuations in biomass, but not as an excuse to avoid regulations necessary to rebuild overfished fish

populations. Incorporating the ‘‘natural range of fluctuations’’ into the definition will

add further scientific uncertainty and subjectivity to the definition, thus increasing

the potential to increase the number of lawsuits rather than decrease them. We are

also concerned that the proposed definition of overfished in the Chairman’s draft

would, because of the difficulty in identifying the natural range fluctuations, force

NMFS to place greater numbers of stocks into the ‘‘unknown’’ status in its annual

report on overfished fisheries. These unknown stocks will not be afforded the protections of the SFA.

Recommendation:

Maintain the existing overfishing definition in the draft bill, but remove the natural fluctuations clause from the proposed definition of overfished. Furthermore, we

recommend that the draft should include language from H.R. 2570 that would

eliminate the loophole that allows overfishing of weak stocks in a mixed stock fishery, require rebuilding plans for those stocks that are approaching an overfished

condition, and requires the development of uncertainty buffers to prevent and stop

overfishing.

Bycatch

Bycatch is the indiscriminate catching, killing, and discarding of fish and marine

life other than those a fishing vessel intends to capture. This includes fish that are

not the target species, sex, size, or quality. It also includes many other fish and

types of marine life that have little economic value but are ecologically important,

such as birds, starfish, sponges and skates. Primarily, bycatch results from fishing

practices and gear that are not selective. In addition to visible mortality, fish and

other sea life are sometimes killed or injured when passing through or escaping fishing gear, and through ‘‘ghost fishing’’ from abandoned or lost gear.

Environmental problems caused by bycatch include overfishing, increased scientific uncertainty regarding total fishing mortality, and potentially serious changes

74

in the functioning of ecological communities. Economically, bycatch equates to lost

fishing opportunities as a result of mortality of commercially valuable juvenile fish.

Concerns:

While we appreciate the addition of birds to the definition of bycatch and the addition of a deadline into the standardized bycatch reporting system requirement, we

take strong issue with the proposal to exempt councils from that reporting requirement if they simply explain why they can’t meet it. While few councils have taken

any action to assess or reduce bycatch, the legal obligation remains. We believe that

any provision providing a loophole for continuing inaction on bycatch issues, such

as the one provided in the draft bill, will be fully exploited by the councils given

their current non-compliance with legal mandates. The proposed exception, if enacted, would be a significant step backward in the effort to reduce bycatch

nationally. In addition, in those cases where the amount of bycatch in the fishery

has been assessed, the draft contains no requirement for actual reductions in bycatch. We appreciate the intent of a gear development program for bycatch reduction; however, this may be a program that is more effective if run regionally under

a national mandate. In addition, without authorized funding, it will be difficult for

this program to realize its goal.

Recommendation:

We strongly recommend that you drop the language that allows councils to ignore

the requirement to develop a bycatch reporting system. In addition, we urge the

adoption of language from H.R. 2570 that requires councils to annually reduce bycatch, sets strict timelines for implementation of the current requirement for all

councils to develop a standardized reporting methodology, and requires an annual

report on efforts to reduce bycatch.

Essential Fish Habitat

We are greatly concerned that this proposal will severely limit the application of

the SFA requirement to minimize the adverse impact of fishing on important fish

habitats, thus rolling back existing law. This proposal will restrict the requirement

to limit damaging fishing practices to only essential fish habitat (EFH) that has

been identified based on information on growth, reproduction, and survival rate by

habitat type. The requirement is further restricted by limiting it to fishing activities

that jeopardize the ability of the fishery to produce MSY. Since this information is

not available for nearly all managed fish species, this proposal will eliminate the

requirement to minimize fishing impacts on EFH for years, if not decades.

In our view, this proposal will significantly rollback existing law. If this change

is approved, it is assured that nothing will be done to protect EFH from the welldocumented damage of some fishing gears on EFH. Litigation on this issue has been

settled and a process is in place where NMFS is going to come into compliance with

the current regulations. Congress should let NMFS continue its work and if any

changes need to be made, it should be in the form of additional funding for NMFS

to do its job and developing precautionary language that will prevent the introduction of damaging fishing gear.

Recommendation:

We urge you to protect and strengthen current law by dropping this proposal to

limit the protection of EFH. In its place, please include language from H.R. 2570,

which will ensure that the impacts of damaging fishing practices will be evaluated

and mitigated for before they are allowed.

Individual Fishing Quotas

Individual fishing quotas (IFQs) grant fisherman and fishing companies the privilege to catch specific amounts of fish. Congress has placed a moratorium on the submission, approval, or implementation of any plan that creates an IFQ program until

October 1, 2002.

The Network supports continuing the moratorium on IFQ programs unless and

until Congress adopts legislation containing standards for the design and conduct

of IFQ programs to ensure that these programs contribute to and enhance the conservation and management of our nation’s fisheries and ensure equity among all

fishermen participating in any IFQ fishery. For your information, I have appended

a redline copy of the Network’s proposed legislative language detailing these necessary standards.

Concerns:

There are a number of positive changes contained in your proposal. First, we are

pleased with your inclusion of language specifying that IFQs do not create a propVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
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erty right and that they must be reviewed every five years. There are also a number

of provisions that will protect fishermen and fishing communities including requirements to provide fair and equitable allocation of quota shares and to establish limitations on consolidation. Finally, we are pleased with the requirement that such systems promote conservation.

However, the five-year review will likely be ineffective because it lacks a consequence i.e. a sunset of the program or some other penalty, for failing the review.

In addition, the qualification on the 10-year sunset provision which states only that

a review has to be conducted, not that fishing quota programs have to pass the review, virtually assures that no IFQ program would ever sunset, thus making the

initial IFQ a permanent asset. Also, with no enforcement mechanism behind the review or requirement that IFQ participants pass the review, there will likely be no

serious consideration of the conservation or equity requirements of the program. The

mandatory consideration of historical fishing gears, rather than participants, in considering allocation of quota, will, we believe based on experience, inevitably result

in a codification of current fishing practices leaving little or no room for changes

in the fishery to more environmentally friendly gear. While we appreciate the inclusion of a double referendum, we believe that it is a mistake to leave it up to the

councils to decide who would be eligible to vote. All participants in the fishery

should have a voice in the decision on adoption or rejection of an IFQ program. Finally, we are strongly opposed to the language in the draft that will allow processor

quota shares. As we testified at the February IFQ hearing, processor quotas are

likely to violate protections against anti-trust laws and are very likely to cause serious economic hardships to fishermen, while providing no public benefit to either the

economy or conservation.

Recommendations:

Standards must be adopted that, among other things, clarify that IFQ programs:

• Do not create a compensable property right;

• Are of set duration, not to exceed five years;

• Demonstrably provide additional and substantial conservation benefits to the

fishery (defined as reducing bycatch, eliminating overfishing, and protecting essential fish habitat);

• Are reviewed periodically by an independent body to determine whether the programs are meeting their conservation goals;

• Provide for the review of individual permit holders and revocation of shares if

the share holder fails to pass such a review;

• Realize total recovery of costs (the proposed percentages may not be sufficient);

and

• Are only transferable if the above standards are enacted.

Additionally, we recommend that the language allowing processor quota shares be

dropped and the removal of any provision stating that only permit holders can vote

in the referendum.

Conserve Atlantic Highly Migratory Species

NMFS is responsible for conserving Atlantic highly migratory species like tunas,

swordfish, marlins, sailfish, and coastal and pelagic sharks. All of these species,

with the exception of sharks, are also managed under multilateral agreements

through the International Commission for the Conservation of Atlantic Tunas

(ICCAT).

In 1990, the Magnuson–Stevens Act and Atlantic Tunas Convention Act (ATCA)

were amended to preclude U.S. fishery managers from issuing regulations, which

have the effect of ‘‘decreasing a quota, allocation or fishing mortality level,’’ rec- ommended by ICCAT. Since then, NMFS has done little more than implement

ICCAT quotas and allocate them among domestic user groups. Moreover, where no

ICCAT recommendations exist, no precautionary measures have been taken.

Although ICATT sets quotas, measures to implement the quotas and minimize bycatch mortality, such as area closures and gear modifications, must be implemented

through domestic regulations. NMFS, however, interprets the law to prevent the

U.S. from unilaterally reducing bycatch if it would affect the ability to fill the U.S.

quota.

Concerns:

In cases where domestic management requirements are more stringent than those

agreed to by the international community, NMFS and industry have often inappropriately interpreted this provision as essentially exempting U.S. HMS fisheries from

the requirements of the Magnuson–Stevens Act. Such action is inappropriate and

inconsistent with the intent of the Magnuson–Stevens Act and unfair to other commercial fishermen who must follow U.S. law.

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Recommendations:

To address these concerns, the draft should be amended to include language that:

• Gives the U.S. greater discretion and flexibility in the conservation and management of highly migratory species;

• Repeals language that prevents or hinders the U.S. from implementing management measures that are more conservative than those recommended under

international agreements; and

• Requires NMFS to meet the requirements of the Magnuson–Stevens Act when

managing highly migratory species.

Similarly, the ATCA should be amended to remove language limiting U.S. authority to conserve highly migratory species. Legislative language implementing these

changes is contained in H.R. 2570.

Fishery Management Councils

Although regional fishery management councils are charged with managing the

nation’s marine fish for all Americans, representatives of fishing interests dominate

the councils. 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 and must be managed in the public trust. Decisions regarding

their management should be made in the public interest, not simply the economic

interest of the fishing industry. Accordingly, the interests of the public must be adequately represented on regional fishery management councils.

Concern:

While we support your intention of adding a non-fishing voice to each council, we

feel that it is only a small step toward the balance that we need and deserve on

these fishery management councils.

Recommendation:

To address these concerns, we recommend the provision from H.R. 2570 that calls

for balanced representation between commercial fishermen, recreational fishermen,

and individuals who represent the public and do not derive any of their annual income from commercial and recreational fishing.

Authorization of Appropriations

Finally, Mr. Chairman, we strongly urge you to increase significantly the level of

authorized funding in the bill. In addition, we would urge you to look at increased

user fees and the proposed allocation of funds from the Saltonstall–Kennedy program to fisheries management as proposed in H.R. 2570. These are funds are already being collected and were originally intended to be used to promote the fishing

industry. We can think of no better way to promote the fishing industry than

through sustainable fisheries management. Let’s return a greater share of these annual funds back to their original purpose.

Conclusion

Once again, I, on behalf of the National Environmental Trust and the Marine

Fish Conservation Network, appreciate the opportunity to testify on your discussion

draft to reauthorize the Magnuson–Stevens Fishery Conservation and Management

Act. The Network looks forward to working closely with you and your staff to

strengthen this draft prior to its introduction so that we can give it our full support.

I would be happy to answer any questions.

[An attachment to Mr. Leape’s statement follows:]

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Mr. GILCHREST. Mr. LeBlanc.

STATEMENT OF JUSTIN LeBLANC, VICE PRESIDENT OF

GOVERNMENT RELATIONS, NATIONAL FISHERIES INSTITUTE

Mr. LEBLANC. Thank you, Mr. Chairman. Thank you for the opportunity to testify today on the reauthorization of the MagnusonStevens Fishery Conservation and Management Act. I am Justin

LeBlanc, Vice President of Government Relations for the National

Fisheries Institute. I am also here on behalf of the Seafood Coalition, a growing group of fisheries organizations and seafood companies from across the country, seeking changes to the MagnusonStevens Act to rationalize the implementation of the Act while

maintaining its core commitments to conservation and sustainability. The Seafood Coalition member list is attached to my written testimony.

Mr. Chairman, the implementation of the Magnuson-Stevens Act

over the past several years has revealed serious flaws in the Act

that need to be addressed. These include:

Improving the science base of fisheries conservation and management by defining the best scientific information available and ensuring the NMFS stock assessments undergo periodic peer review;

Focusing the habitat protection efforts on habitat areas of particular concern instead of the entire exclusive economic zone;

82

Incorporating environmental variability into fisheries management by better defining maximum sustainable yield, overfished and

overfishing;

Initiating cooperative research programs to fill major data gaps;

Establishing goals and objectives for observer programs and holding them accountable to those goals and objectives;

And improving the socioeconomic analyses of fishery management decisions by NMFS by requiring NMFS to consider the cumulative impacts of its decisions.

These priorities are addressed by the draft Fisheries Science Improvement Act, a discussion draft outlined by Representative Tauzin this afternoon in his questions to Dr. Hogarth. I want to thank

the Congressman and his staff for proposing this important discussion draft and urge the Subcommittee’s favorable consideration of

it during the reauthorization process.

While we believe changes to the Magnuson-Stevens Act are needed, we are concerned that other legislative proposals before the

Subcommittee may frustrate efforts to not simply conserve fish but

to build sustainable fisheries.

Many of the proposals in H.R. 2570, the Fisheries Recovery Act,

are of deep concern. With its unfunded and unachievable mandates, this bill has been somewhat playfully nicknamed as the

‘‘Fisheries Elimination Through Litigation Act’’ by some in our

community. In particular, we are concerned that the National Marine Fisheries Service will be unable to fulfill the bill’s call for the

elimination of bycatch, limitations on new fishing gear and technology until demonstrated to have no adverse effects on essential

fish habitat which requires one to prove a negative, the implementation of ecosystem-based fishery conservation and management

without the scientific base necessary to do so, the application of the

precautionary approach as a justification for worst-case scenario

management, and universal observer coverage without clear goals

and objectives for that program. Without dramatic increases in

funding, not just authorized but actually appropriated, these mandates will open the agency and the commercial fish and seafood industry to litigation far beyond that which we have seen to date.

And as we have seen over the past several years, litigation and the

courts are no way to build sustainable fisheries.

We would like to commend the Chairman and his staff for their

efforts to forge a reasonable middle ground. The Gilchrest discussion draft released by the Subcommittee has many important provisions in it. We would encourage the Chairman to incorporate the

provisions of the draft Fisheries Science Improvement Act into the

Chairman’s bill. We also wish to offer the following brief remarks

on the discussion draft:

The overcapitalization report is an important step toward addressing this critical issue facing U.S. Fisheries. We recommend

that the Secretary be required to consult with the commercial fishing sector in each fishery before providing recommendations for reducing capacity in those fisheries.

The buyout provisions may facilitate the use of this tool as a

means of reducing excess fishing capacity. The language, however,

needs to be carefully drafted to avoid unintended consequences,

83

particularly in fisheries where vessel owners may own multiple

vessels and/or multiple permits.

The section on ecosystem-based management recognizes the fundamental barrier to effectively implementing such a management

regime: information. This proposal in the draft is an appropriate

first step in the development of ecosystem-based management.

Similarly, an analysis of the utility, benefits, and costs of a

national observer program is an appropriate step before Congress

considers mandating such a program.

We recognize the need to separate the concepts of overfished and

overfishing. We are concerned, however, that the proposed definitions are too rigid and recommend the definitions proposed in the

draft Fisheries Science Improvement Act. We also appreciate the

proposal to improve the quality of the Status of the Stocks Report

which, I might add, has considerably improved this year.

The bycatch section on gear research is a worthwhile strategy for

achieving the goal of National Standard 9. Including birds in the

definition of bycatch, however, is unnecessary, as seabirds are already addressed by the United Nations international plan of action

on reduction of seabird bycatch and of course domestically, where

necessary, by the Endangered Species Act.

Redirecting regulatory actions concerning essential fish habitat

to true areas of concern is similar to the emphasis in the draft

Fisheries Science Improvement Act on habitat areas of particular

concern. We strongly support action to refocus our habitat efforts.

While the Seafood Coalition has taken no position on individual

fishing quotas, the National Fisheries Institute believes that the

current moratorium on IFQs should be continued until and unless

the Magnuson-Stevens Act is amended to require that harvesters

and primary processors be equitably treated, given the corollary investments in excess fishing and processing capacity that traditional

fisheries conservation and management regimes have encouraged.

Mr. Chairman, thank you for the opportunity to testify. More detailed written comments on the bill before the Subcommittee will

be presented to Subcommittee staff. I will be pleased to answer any

questions you may have.

Mr. GILCHREST. Thank you very much, Mr. LeBlanc.

[The prepared statement of Mr. LeBlanc follows:]

Statement of Justin LeBlanc, Vice President, Government Relations,

National Fisheries Institute

Chairman Gilchrest, Representative Underwood, and distinguished members of

the subcommittee, thank you for the opportunity to speak before you on the reauthorization of the Magnuson–Stevens Fishery Conservation and Management Act

(Magnuson–Stevens Act). I am Justin LeBlanc, Vice President of Government Relations for the National Fisheries Institute (NFI). NFI is the leading trade association

representing the diverse fish and seafood industry of the United States. We are an

‘‘ocean to table’’ organization representing vessel owners, processors, importers, exporters, distributors, retailers, and seafood restaurants. NFI is committed to providing U.S. consumers with safe, wholesome, and sustainably harvested fish and

seafood choices.

Today, I am also here on behalf of the Seafood Coalition, a group of fisheries organizations and seafood companies from across the country seeking changes to the

Magnuson–Stevens Act to rationalize the implementation of the Act while maintaining its core commitments to conservation and sustainability. The Seafood Coalition

member list is attached to my written testimony.

As this subcommittee has heard through numerous hearings, the implementation

of the Magnuson–Stevens Act over the past several years has revealed serious flaws

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in the Act that need to be addressed. The Seafood Coalition believes there are six

critical issues for the reauthorization process, including: improving the science base

of fisheries conservation and management by defining the best scientific information

available and ensuring the NMFS stock assessments undergo independent peer review; focusing habitat protection efforts on Habitat Areas of Particular Concern instead of the entire Exclusive Economic Zone, incorporating environmental variability into fisheries management by better defining Maximum Sustainable Yield,

overfished, and overfishing; initiating cooperative research programs to fill major

data gaps, establishing goals and objectives for observer programs and holding them

accountable to those goals and objectives; and improving the socioeconomic impact

analyses of fishery management decisions by requiring the National Marine Fisheries Service to consider the cumulative impacts of its decisions.

We believe these priorities are most effectively addressed by legislation being

drafted by Representatives Tauzin, Jones, Grucci, Walden, and Simmons. On behalf

of the Seafood Coalition, I would like to thank Rep. Tauzin and the other Members

for drafting language on this important issue.

While we strongly support the Fisheries Science Improvement Act, we are deeply

concerned about the impacts other legislative proposals before this subcommittee

would have on the commercial fish and seafood industry, if enacted.

The Ocean Habitat Protection Act would prohibit the use of bottom-tending trawl

gear with footrope gear larger than 8 inches in diameter. The Seafood Coalition believes that decisions about fishing gear and its use are best made on a fishery-byfishery basis by the Regional Fishery Management Councils. That said, we also believe this legislation will actually exacerbate the very problems it seeks to solve.

First and foremost, a ban on large trawl gear could actually worsen the impact of

bottom trawl gear on soft-bottom substrates. Larger gear has been developed for

this type of ocean bottom because it has significantly less impact in terms of substrate disturbance and bycatch of nontarget species. In addition, a ban on large

trawl gear could result in modifications to small trawl gear to allow it to effectively

fish in the rocky substrates that the bill seeks to protect. These modifications could

have a more dramatic impact on these areas of the ocean than the current large

trawl gear being used.

If enacted, this bill would cause devastating economic impacts in fishing commu- nities around the country. Alaska could lose $180 million worth of groundfish landings annually, the West Coast could lose $65 million worth of groundfish annually,

and virtually the entire New England groundfish, shrimp, and whiting fisheries

worth over $130 million annually could be lost. It is because of these environmental

and economic impacts that these types of decisions are best left to the Regional

Fishery Management Councils.

We are also deeply concerned about many of the provisions in H.R. 2570, the

Fisheries Recovery Act. With its unfunded and unachievable mandates, this bill has

been nicknamed as the ‘‘Fisheries Elimination through Litigation Act’’ by some in

our community. In particular, we are concerned that the National Marine Fisheries

Service will be unable to fulfill the bill’s call for the maximal avoidance of bycatch,

limitations on new fishing gear and technology until demonstrated to have no adverse effects on essential fish habitat, the implementation of ecosystem-based fishery conservation and management without the scientific base necessary to do so, the

application of the precautionary approach as a justification for worst-case scenario

management, and universal observer coverage without clear goals and objectives.

Without dramatic increases in funding, these mandates will open the agency and

the commercial fish and seafood industry to litigation far beyond that which we

have seen to date. As we have seen over the past several years, litigation and the

courts are no way to build sustainable fisheries.

We would like to commend the Chairman and his staff for their efforts to forge

a reasonable middle ground during this reauthorization process. The ‘‘Gilchrest Discussion Draft’’ released by the Subcommittee has many important and interesting

provisions in it. While we would encourage the Chairman to incorporate the provisions of the Fisheries Science Improvement Act into the Chairman’s bill, we would

offer the following brief remarks on the discussion draft:

• The overcapitalization report is an important step towards addressing this critical issue facing U.S fisheries. We would recommend that the Secretary be required to consult with the commercial fishing sector before providing recommendations for reducing excess fishing capacity.

• The Buyout provisions may facilitate the use of this tool as a means of reducing

excess fishing capacity. While we can recognize the interest of the subcommittee

in eliminating both excess vessels and permits, the language needs to be carefully drafted to avoid unintended consequences, particularly in fisheries where

vessel owners may own multiple vessels and permits.

85

• The Section on ecosystem-based management recognizes the fundamental barrier to effectively implementing such a management regime: information. This

proposal is an appropriate first step in the development of the ecosystem-based

management concept.

• Similarly, an analysis of the utility, benefits, and costs of a national observer

program is an appropriate step before Congress mandates such a program.

• We appreciate the efforts of the Chairman to separate the concepts of overfished

and overfishing. We are concerned, however, that the proposed definitions are

far more stringent than the current National Marine Fisheries Service regulatory guidelines and would recommend the definitions proposed in the Fisheries

Science Improvement Act. We also appreciate the Chairman’s efforts to improve

the quality of the Status of the Stocks Report.

The emphasis in the bycatch section on gear research is an appropriate approach

to achieving the goal of National Standard 9. With regard to including birds in the

definition of bycatch, this provision is unnecessary as sea birds are already covered

by the Migratory Bird Treaty Act and, where necessary, the Endangered Species

Act.

• The focus of regulatory actions on Essential Fish Habitat to true areas of concern similar to the emphasis on the Fisheries Science Improvement Act on Habitat Areas of Particular Concern is an appropriate emphasis that we strongly

support.

• While the Seafood Coalition has taken no position on Individual Fishing Quotas

(IFQs), the National Fisheries Institute believes that the current moratorium on

IFQs should be continued until and unless the Magnuson–Stevens Act is amended to require that harvesters and primary processors be equitably treated given

the corollary investments in excess fishing and processing capacity that traditional fisheries conservation and management regimes have encouraged.

Mr. Chairman, Thank you for the opportunity to testify. More detailed written

comments on the bills before the subcommittee have been presented to the subcommittee staff. I would be pleased to answer any questions the subcommittee may

have.

The Seafood Coalition

Peter Leipzig, Executive Director

Fishermen’s Marketing Association

320 Second Street, 2B

Eureka, CA 95501

707–442–3789

707–442–9166 FAX

Represent Groundfish and Shrimp Trawlers in California, Oregon, and

Washington.

Nils Stolpe

Communications Director

Garden State Seafood Association

212 West State Street

Trenton, NJ—08608

ph—215 345 4790

fx——215 345 4869

Representing New Jersey’s Fish and Seafood Industry

Fisheries Survival Fund

2 Middle Street

Fairhaven, MA 02719

Participants include over 120 full-time Atlantic sea scallop fishing vessels from

New England to North Carolina

Trawler Survival Fund

(same address)

Participants include over 50 groundfish trawlers from Southern New England

through Boston

Represented by David Frulla

Brand & Frulla

923 Fifteenth St. N.W.

Washington, D.C.—20005

202–662–9700 / fax:—202–737–7565

Rod Moore

West Coast Seafood Processors Association

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P.O. Box 1477, Portland, OR—97207

503–227–5076 / 503–227–0237 (fax)

WCSPA represents on-shore seafood processors and associated businesses in Oregon, Washington, and California.—WCSPA members process the majority of Pacific

groundfish, Dungeness crab, pink shrimp, squid, and coastal pelagic species landed

in those states.

Maggie Raymond

The Groundfish Group

Associated Fisheries of Maine

P.O. Box 287

S. Berwick, ME—03908

Representing groundfish, shrimp, and whiting vessels from Maine

John Filose, Vice President

Ocean Garden Products, Inc.

P.O. 85527

San Diego, Ca., 92186–5527

Phone ( 858) 571–5002

Bob Jones

Southeastern Fisheries Association

1118–B Thomasville Road

Tallahassee, Florida 32303

850–224–0612 / fax: 850–222–3663

SFA represents fishermen who use a variety of gear types, processors, and

associated seafood business in the southeastern United States.

Ed Owens, Executive Director

Coalition of Coastal Fisheries

5132 Donnelly Drive SE

Olympia, WA 98501–5012

Voice:—360–456–1334

Email (2) FHNRForum@home.com

Jerry Schill

North Carolina Fisheries Association

Box 12303

New Bern, NC 28561

NCFA represents fishermen and processors in North Carolina

Rob Ross

California Fisheries and Seafood Institute

1525 I Street

Sacramento, CA 95814

Representing seafood harvesters, processors, importers, retailers, distributors, and

associated businesses in California——

Joe Easley

Oregon Trawl Commission

P.O. Box 569

Astoria, OR 97103

503–325–3384 / fax: 503–325–4416

Representing Oregon groundfish and shrimp trawl fishermen

National Fisheries Institute

1901 North Fort Myer Drive

Suite 700

Arlington, VA 22209

703–524–8884 / fax: 703–524–4619

ATTN: Justin LeBlanc

NFI is the largest fish and seafood organization in the U.S., representing nearly

a thousand companies, individuals, and organizations involved in harvesting, processing, importing, growing, selling, and distributing seafood.

Fishermen’s Association of Moss Landing

P.O. Box 44

Moss Landing, CA 95039

ATTN: Kathy Fosmark, Vice President

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Bonnie Brady, Executive Director

Long Island Commercial Fishing Association

P.O. Box 191

Montauk, NY 11954

516–527–3099 / 631–668–7654 (fax)

Represents commercial fishermen from 11 ports and 15 gear types and, so far, 2

fish docks.

Mailing list at present is 300

Mr. GILCHREST. Mr. Grader.

STATEMENT OF ZEKE GRADER, EXECUTIVE DIRECTOR,

PACIFIC COAST FEDERATION OF FISHERMEN’S ASSOCIATIONS

Mr. GRADER. Thank you, Mr. Chairman, for your kind invitation

to testify before you today both discussing the reauthorization generally of the Magnuson-Stevens Act and, in particular, your discussion draft. I have been the Executive Director for the Pacific Coast

Federation of Fishermen’s Associations for the past 26 years. Our

organization—

Mr. GILCHREST. Excuse me for 1 second, Mr. Grader.

Kevin, can you put that microphone to the last seat on the dais

here? See that mike sticking up in the air there? Can you push it

down? Right in front of you. So I can see Mr. Grader. Thanks.

Kevin is a great canoer.

Mr. GRADER. Thank you. In any event, you have, Mr. Chairman,

a copy of our written testimony. What I would like to do here is

basically highlight some of the critical issues that we see in your

discussion draft and some other needs we see that are necessary

for this reauthorization go-around of the Magnuson-Stevens Act.

I want to add at the outset that I think in your discussion draft

there are a number of real improvements being made to the Act.

However, I do have some concerns with some provisions of it. More

specifically, a number of studies are called for. In many instances,

while studies may be of further use to us, I think really what we

are looking at—what really is needed in some instances is just

plain action. We know what needs to be done and specifically, as

an example of that, is the issue of buybacks. We know in a number

of our fisheries that the problem is that we have excess fishing capacity. We know where that is. We know what has to be done and

we simply have got to get on with the job of reducing it.

I think the best example is the Pacific Coast groundfish fishery.

Senator Wyden, I think, came up with a good proposal, working

with the industry for reducing that fleet which could help greatly

in stopping the hemorrhaging there. The problem there wasn’t that

we needed a study. The problem was that we needed money.

Just this week the Congress is passing billions of dollars in subsidies for agriculture. I don’t think it would hurt at all if we spent

a few million to help out our fisheries, particularly when that few

million now could go a long way in helping us rebuild the stocks

quicker and help those fishing communities. And if we spent $100

million or whatever may be needed on the Pacific Coast groundfish

fishery to reduce that fleet, that, like I said, would help us greatly

and would probably be the last investment we would have to make.

But we need to make it now. Otherwise the problem is just going

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to continue to fester. So, again, that is not a matter of studying;

it is just a matter of spending the bucks.

The second issue has to do with essential fish habitat. This is an

issue that is of a great deal of concern to my members, particularly

among the salmon fishermen who have been arguing for well over

20 years of the need for habitat language in the Magnuson-Stevens

Act. Frankly, I have been looking around it and trying to determine

where EFH language is really causing a problem to the fishing industry right now. I don’t really know where the real problems

exist. I do know it does cause problems for oil companies and the

timber industry and the farm industry who are apoplectic that they

may, for the first time ever, have to take care in their operations

to protect fishery resources. But I don’t know where EFH right

now, as we put it in under the Sustainable Fisheries Act, is causing

any real problem for the fishing industry.

And the other thing I am worried about in this instance, too, is

that organizations such as my own have been arguing for years,

trying to protect fish habitat from nonfishing activities. If we all of

a sudden retreat now from protecting habitat from damage done by

fishing activities, how can we then in good faith go argue to try and

protect habitat that is being damaged by nonfishing activities?

There it really puts us in a real hypocritical position. We are involved tomorrow morning in Federal court in Oakland, trying to

get some water back into the Klamath River. We need to have

those EFH provisions in there both to protect fish habitat from our

own fishing activities as well as from nonfishing activities. We cannot retreat.

The third issue has to do with overfishing. I think here there is

a problem in definition, and one of the concerns I would have is

that anytime we have a depressed stock or depleted stock, it tends

to get listed as overfished. There are a number of fish stocks right

now that are in trouble, many of them because of habitat degradation. We need to come up with a better definition in the Act that

correctly identifies those stocks but does not retreat from addressing overfishing where it is a problem.

And I see my time is nearly up, Mr. Chairman, but let me just

hit on a couple of other issues here. I think in regards to bycatch—

and I would agree with some of what the recreational fishermen

have said—is that there are some fisheries where bycatch is not

really creating a problem; that is, where the fish are released back

alive. For example, in the Dungeness crab fishery, this is a sustainable fishery that has been going on for 100 years, we release the

females alive, back over the side. The juvenile males are released

back over the side. It is not a problem. But if we are not careful

how to define bycatch, it could become a problem.

Likewise in the salmon fishing, when we release undersized

salmon with our barbless hooks, they have a good chance for survival.

What we need to distinguish in bycatch is between that type of

bycatch where there is likely to be high degree of mortality versus

that where there is a low degree of mortality, and that is the real

difference in how we need to define it there.

I think as far as IFQs go, I think you made a good start here

in trying to establish the national standards. I have identified, I

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think, some further standards that we think need to be in that. I

want to emphasize again that we need to have an absolute prohibition against processor-owned or separate allocation for processors

for IFQs. We start allowing processors to have IFQs, and you are

making fishermen sharecroppers. That is what it amounts to.

Mr. Chairman, there are a few other remarks I want to make,

but I think that concludes—my time is up here, and if you would

like to take a few, I do have to hop out of here pretty soon to catch

a plane.

[The prepared statement of Mr. Grader follows:]

Statement of W.F. ‘‘Zeke’’ Grader, Jr., Executive Director, Pacific Coast

Federation of Fishermen’s Associations

Chairman Gilchrest, members of the Subcommittee, thank you the kind invitation

for me to provide testimony before you this afternoon on the reauthorization of the

Magnuson–Stevens Act and proposed amendments to our nation’s principle fishery

statute. My comments here today will focus on your discussion draft Mr. Chairman,

with some discussion of elements in Mr. Farr’s measure, H.R. 2570 (which we had

input into), and some changes we would urge you consider in this reauthorization

of Magnuson–Stevens.

The Pacific Coast Federation of Fishermen’s Associations (PCFFA) represents

working men and women in the West Coast commercial fishing fleet, mostly owneroperators of small to mid-size fishing vessels. PCFFA is the largest fishermen’s organization on the West Coast and was established shortly before the passage of

H.R. 200, the Fishery Conservation & Management Act of 1976. Fishermen belonging to PCFFA member organizations are engaged in a number of different fisheries,

including those for salmon, crab, groundfish, swordfish, shark, herring, squid,

shrimp/prawns, California halibut, white sea bass, albacore and sea cucumbers.

Their gear types are equally as varied ranging from troll to small trawl, gillnet to

purse seine, traps to longlines.

I have served as executive director of PCFFA since its founding and, prior to that,

worked in and managed fish processing plants while in high school, college and law

school. PCFFA has been involved in providing comments and drafting language in

past reauthorizations of the Magnuson–Stevens Act and was the first organization

to actively work for inclusion of habitat language within the law. I am pleased

therefore for the opportunity to comment on proposed amendments in this reauthorization, as well as recommend changes we believe necessary.

Mr. Chairman I would like to use your discussion draft as an outline for my comments. I should add that my members have not yet had an opportunity to review

that draft so these comments will be based essentially on past positions of PCFFA

on the numerous issues touched on in your draft.

Section 3. Report on Overcapitalization.

Overcapitalization, or ‘‘excess harvesting capacity’’ in the U.S. fishing industry

has been written about extensively over the past two decades, including the June

2000 GAO report. A report on overcapitalization, as proposed in the discussion draft,

however, could be useful in identifying those fisheries where there is excess fishing

capacity and to provide guidance on appropriate measures for addressing excess capacity where it threatens conservation of fish stocks or the economic viability of the

fishery. Such a report should include recommendations for funding sources for reducing fleet harvest capacity.

The proposed report identifying the fisheries with ‘‘the most severe examples of

excess harvesting capacity’’ should, too, distinguish between those fisheries where:

1) the fleet capacity substantially exceeds the maximum sustainable yield of the

fishery; 2) the fleet capacity exceeds the amount of fish currently or foreseeably

available for a sustainable harvest in a fishery where the resource decline is attributable to non-fishing impacts; 3) the fleet capacity exceeds the fish available to it,

at current ex-vessel prices, for the participants to achieve on average a reasonable

income; or 4) the fleet is overcapitalized due to some combination of the first three.

I raise this because there are, in fact, at least three different types of overcapitalization and each may require a different remedy.

The first type of overcapitalization (1 above) clearly would warrant some form of

fleet reduction as the correct remedy. Reducing fleet capacity would facilitate the

matching of fleet harvest size to the size of the resource.

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In the second type of overcapitalization (2 above) an alternative to reducing the

fleet, may be to restore the resource; for example where disease or habitat loss may

have taken a heavy toll on the stocks. Indeed, fleet reduction, where fishing impacts

are not the cause of the resource decline, could send a fishery into a death spiral.

For example, in the west, how will policy makers allocate water in a stream between

fisheries and agriculture if the value of the fishery continues in decline due to a

shrinking fleet when agriculture has ‘‘unmet’’ water demands? It becomes difficult

to argue for the rebuilding of fish stocks if the fleet has been depleted.

In the third type of overcapitalization (3 above), the remedy may be to look first

at the economic factors driving ex-vessel prices down. If there is collusion among

processors that is resulting in low prices or if national trade policies are depressing

fish prices, should the fleet be reduced—diminishing the gross economic worth the

fishery, when perhaps the answer may be with the Justice Department or the U.S.

Trade Representative. Alaska’s current salmon crisis, for example, is not because

there are ‘‘too many boats and too few fish,’’ but the result of a spate of cheap farm

salmon imports.

The final point I want to make regarding Section 2 of the discussion draft, is that

while I agree we should not dump our surplus fishing fleet on foreign nations, there

should be some flexibility here. Specifically, I suggest language that would allow

vessels removed from the U.S. fisheries to go into the fisheries of other nations if

the Secretary finds that the vessels would: 1) not contribute to overfishing in that

nation; 2) not be used to fish the same stocks U.S. vessels are fishing (in U.S. or

international waters); and 3) contribute to modernization for improved product quality or fisherman safety, or contribute to development of individual, private owneroperator fleets. I bring this up because in places such as the Russian Far East there

is a real need to develop a small coastal fishing fleet that could employ local fishermen and support local fish processing. Some of the surplus U.S. vessels, that are

still serviceable, could be used to help with the development of such fleets, where

the purchase of new vessels would initially be prohibitive.

Section 4. Buyout Provisions

The discussion draft provisions for fishing capacity reduction programs is an improvement over current law, giving guidance on the conduct of such programs and

providing for both the removal of vessels and their permits from a fishery. The two

concerns I have with this section of the discussion draft are these:

First, as noted in Section 3, there should be discretion to allow vessels removed

from U.S. fisheries to go to the fisheries of another nation if certain conditions are

met (as mentioned above).

Second, and most important, a source of funding needs to be established for the

buyouts to occur. The impediment right now to some much needed buy-outs, such

as for trawlers in the Pacific groundfish fishery (Senator Wyden’s proposed legislation, for example) is not a good program but a lack of funds. If Congress can provide

massive amounts of subsidies for agriculture, including proposals to buy-out and retire agricultural lands, then certainly some funds are appropriate now to remove

vessels whose construction the government encouraged and even helped finance

(vessel loan guarantees, for example). Establishing a fund and appropriating the

monies needed now for buy-backs would help stop the hemorrhaging in many

fisheries and speed the recovery of stocks. A buy-back fund should probably be some

mix of public and industry funds—that mix to be determined by the circumstance

of each fishery.

Section 5. Data Collection

In a number of U.S. fisheries the recreational catch may equal or exceed the commercial harvest. In some fisheries the recreational impact may be greater as well,

including significant bycatch. It is therefore important that a good data collection

system be established for the marine recreational fishery. The proposal in your discussion draft could greatly improve recreational data collection. Two recommendations I would to this section are:

First, the data collection program should also be required to gather information

on bycatch in the recreational fishing by fishery and gear type. This information will

be needed by fishery managers and anglers in addressing those fisheries or types

of recreational tackle with significant catch mortalities.

Second, observers should be part of the data collection program to better ensure

the quality of the information gathered. This could, perhaps, be tied into the observer program in Section 7 of the discussion draft.

Finally, the discussion draft also addresses the availability of economic data in

the commercial fishing sector from fish processors. The problem with some of this

data is that it may either be incomplete or inaccurate. Steps must be taken to enVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00094 Fmt 6633 Sfmt 6621 79374.TXT HRESOUR1 PsN: HRESOUR1
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sure a system exists, and enforced, for the accurate reporting of all catches and the

true ex-vessel price paid for the fish.

Section 6. Ecosystem–Based Management

Some of us have long recognized that it is not possible to conserve and manage

fish stocks without considering the habitats of the fish, including water quality, and

predator-prey relationships. Fishermen in my organization, at least, have long been

cognizant of the importance of habitats and have been careful observers of predatorprey interactions. For a quarter century now my organization and a few other fishing groups around the country have worked to protect water quality, freshwater

flows and fish habitats. They understand the importance of maintaining forage

stocks. Commercial fishermen in California, for example, favored conservative

quotas for their herring fishery, recognizing those fish were forage for salmon and

other commercially and recreationally important species. They also drafted and lobbied the passage of state legislation banning the take of white sharks, a top of the

food chain predator, and a prohibition on fishing for krill, an important species near

the bottom of the ocean food chain. All of this is to say that the importance of ecosystems have long been understood by many in the fishing industry; this isn’t rocket

science. And, it makes sense therefore that we should manage fisheries based on

an ecosystem approach.

The language in the discussion draft making it U.S. policy to support and encourage ecosystem management is sound. However, I think we need to go beyond just

talking about ecosystem management and begin implementing it. To that end, I suggest the Subcommittee look at the language in H.R. 2570 (Section 8) calling for implementation of fishery ecosystem plans. I believe the language in the discussion

draft, establishing U.S. policy for ecosystem management and defining the term ecosystem, can be melded with that in H.R. 2570 setting forth the development of ecosystem plans and a new national standard in the Magnuson–Stevens Act.

Finally, let me emphasize with regards to ecosystem management, that lack of information about an ecosystem or the lack of an ecosystem plan should never be an

excuse for doing nothing where overfishing, or habitat destruction, or unacceptable

levels of bycatch are known to exist. The too often heard phrase in the implementation of the ESA, Magnuson–Stevens and other conservation laws, that ‘‘we can’t do

single-species management,’’ is nothing more than the rationale of those who do not

want to act. Yes, we need to make it U.S. policy to support ecosystem management.

Yes, we need to put in place a timetable for establishing ecosystem management

plans. But in the meantime, we should not let the lack of ecosystem data, or the

lack of ecosystem plans, prevent implementation of sound fishery conservation and

management measures based on what is known.

Section 7. Observers

There is considerable resentment among many in the fishing industry regarding

on-board fishing observers. It is felt by many to be an invasion of privacy—‘‘Big

Brother,’’ an inconvenience at best and, at worst, another mouth to feed, someone

who is in the way, a potential source of liability, and someone who may not necessarily be recording information accurately or who is engaged in more than just

scientific data gathering. At the same time, most recognize the value of on-board

observers. On the West Coast, information from on-board observers in the Pacific

whiting fishery helped to model regulations aimed at avoiding the take of salmon.

On-board observers in the Pacific groundfish fishery can provide the independent

data on the levels of bycatch among different gear types, as well as the effectiveness

of new or modified gear to avoid the take of non-target species. Longline swordfish

fishermen in the Pacific are wanting to have observers aboard whose data may quell

the allegations made against that fishery regarding turtle and sea bird bycatch and

the take of immature fish. Off the north coast of California, salmon trollers will be

taking observers aboard this summer to determine contact rates with coho salmon.

It is their hope independent observer data will show what the fishermen believe to

be true: that the contact rates are low and a liberalized season for chinook salmon

can be justified without impacting recovery of the ESA-listed coho.

I don’t think there is any question on the need for a national fishery observer program. The issue is what are the needs of such a program. Many of the needs for

a national observer program, I believe, are known. For that reason, I suggest the

Subcommittee consider the language in H.R. 2570 (Section 7) that would both develop and fund a national fishery observer program. A study could be useful for further delineating needs, providing it not delay establishment of a national observer

program (such as that proposed in H.R. 2570). Many of the recommendations requested in the needs study, proposed in the discussion draft, are for questions I

think we already have answers to. However, if a study is to go forward, it should

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request recommendations for: 1) observers in the recreational fisheries; 2) observer

training and salaries; 3) observer usage in the testing of new or modified fishing

gear and experimental fisheries; and 4) observers for new coastal and open ocean

aquaculture operations. Again, I want to emphasize that we cannot wait for further

study to establish a national observer program and I urge your adoption of the observer language in H.R. 2570.

Section 8. Overfishing

The definition of overfishing in the Magnuson–Stevens Act has been particularly

troubling to my organization, especially with regard to the way it has been applied

to the salmon fishery. Many salmon stocks on the West Coast are depressed, some

even listed under the ESA, primarily due to destruction of these populations’ inriver spawning and rearing habitat. Because there was no other way to describe depressed fish populations, they were categorized as ‘‘overfished,’’ leading many to

believe—wrongly—that simply by removing fishing effort, stocks would rebound. In

developing its own ‘‘mini–Magnuson’’ act, California wrestled with the definition in

its 1998 Marine Life Management Act, and developed its own language for a depressed fish stock, which includes under it overfished stocks (see a90.7 and a97.5

in the attachment). I worry, however, with the change in the overfished definition

proposed in the discussion draft that it may become an excuse for regional councils

or the National Marine Fisheries Service to attempt to blame oceanographic or some

other conditions for the cause of stock declines and not address excess fishing effort

or develop stock rebuilding plans.

Finally, I would recommend to the Subcommittee the language in H.R. 2570 calling for the elimination of overfishing where it exists. Addressing overfishing, and

enacting cutbacks in quotas, reducing days fished and other fishing restrictions can

cause severe economic and social hardships in the fishing industry. However, if

overfishing is not addressed promptly, the remedy, though delayed, will be even

more painful. The hardships that may befall fishing families and communities when

overfishing is addressed can be ameliorated in part, I believe, depending on the fishery, with buy-backs (where there is overcapitalization), short-term disaster relief,

and engaging fishermen and their vessels in fishery research or restoration programs.

Section 9. Bycatch

The discussion draft improves current law by enacting a one-year deadline to

begin enacting a standardized catch reporting system. The concern I have is that

the language also provides the regional councils an exemption if they publish a report explaining why they can’t comply. The discussion draft also includes seabirds

under the definition of bycatch, which really brings makes the law consistent with

current practices which treat the hooking or netting of seabirds as bycatch. Indeed,

considerable and laudable efforts have been made by longliners in the North Pacific

and gillnetters in the Pacific Northwest to modify their deployment or use of the

fishing gear to avoid an incidental take of seabirds. In both of these instances, it

was the fishermen’s associations that led the effort to protect the seabirds.

The language in H.R. 2570 also strengthens the bycatch provisions of the current

law. The one area that is of concern to my organization is how bycatch is defined

and addressed. Specifically, some fisheries take non-target fish/shellfish in the

course of the fishing operation (female Dungeness crabs in traps, undersized salmon

on barbless hooks are two examples) and release them live back into the wild and

their survival is high. Some distinction must be made between those types of operations where there is very little mortality associated with the take and release of

non-target species and those where most of the bycatch is either dumped dead or

will soon die. It is this latter form of bycatch that is problematic and must be reduced.

The discussion draft also acknowledges the need for research and development on

fishing gear that will minimize bycatch. I appreciate Congress’ attention to this

matter and would recommend incorporation of some of the language in H.R. 2570,

specifically the utilization of Saltonstall–Kennedy Act monies to help fund this research and development, in the Subcommittee mark-up of Magnuson–Stevens Act

reauthorization amendments.

Section 10. Essential Fish Habitat

Of all the provisions in the Magnuson–Stevens Act, the section on habitat is probably the most important to the PCFFA. PCFFA had begun calling for inclusion of

habitat language in the FCMA shortly after its passage when both the Pacific Council and NMFS refused to consider the impacts of habitat destruction on salmon

stocks. I am concerned therefore with what I read as a constriction on essential fish

habitat (EFH) in the Magnuson–Stevens Act proposed in the discussion draft. This

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language in the draft, I fear, would reverse the progress that has been made in

identifying and protecting EFH, as part of finally considering ecosystems in the conservation and management of our fisheries. My organization has been outspoken,

and rightfully so, in its efforts to protect fish habitat from many non-fishing impacts. If we do not have strong language to prevent the damage to habitat by fishing

gear, how can those of us in the fishing industry argue for protection of habitat from

non-fishing impacts? Weakening EFH language in Magnuson–Stevens does not

make it easier on the fishing industry by allowing the destruction of the very ecosystems that are critical for abundant fish stocks, and it makes it much more difficult for us to advocate the protection of habitat affected by non-fishing activities.

I think the language in H.R. 2570 is preferable here to that in the present

discussion draft, Mr. Chairman.

Section 11. Demonstration for Oyster Reproduction Sites

Mr. Chairman, I applaud your effort here to develop a program for the design,

construction, and placement of oyster reproduction sites in the Chesapeake Bay. I

urge you to expand this program, however, to also establish a similar West Coast

program for San Francisco Bay. San Francisco Bay, as you may know, is the most

important estuary on the west coast of North and South America. This bay is not

simply the pathway between the Sierra streams and the sea for chinook salmon, nor

simply a spawning or nursery area for Pacific herring and Dungeness crab, it is also

habitat for a once significant oyster population. Prior to World War II, San Francisco Bay had a large and thriving oyster fishery. Some native oysters are still found

in the Bay, but are currently at such low levels that they may warrant listing under

the Endangered Species Act. Rather than waiting for a listing, or the extinction of

these remnant populations, I suggest an aggressive program, similar to that being

proposed in the Chesapeake, be established for restoring San Francisco Bay native

oyster populations. Funding, in part, for a San Francisco Bay program might by

achieved by redirecting some of the existing CALFED restoration funds. I would be

happy to discuss this matter further with you, Mr. Chairman, and your staff.

Section 12. Individual Quota Limited Access Programs

Despite the hype from a lot of free-market theorists, as well as a few environmental groups and bureaucrats looking for easy fixes, PCFFA has found most individual fishing quota (IFQ) systems in place in the U.S. and around the world to be

unmitigated disasters—mostly consolidating ownership of the fisheries into a few

corporate hands and relegating fishermen to sharecroppers. They have had virtually

no conservation benefit (over and above normal limited entry programs) and the

safety aspects touted for them soon disappear as shoreside interests scoop up the

quotas. For that reason, PCFFA supports the continued moratorium on the implementation of IFQ systems in the U.S. fishery.

If, however, the IFQ moratorium is lifted, then specific standards must be imposed, to assure the systems are not abused. NMFS and the regional councils cannot

be given carte blanche in developing IFQ systems. The discussion draft provides a

start on setting out guidelines to the councils for establishing IFQs, however, it does

not go nearly far enough. The standards proposed by the Marine Fish Conservation

Network, of which PCFFA is a member, we fully support. The following elements,

we believe, are critical for IFQs if the moratorium is lifted:

1. Referendum. Prior to any IFQ program being established a referendum must

be conducted among those individuals, who participated in the fishery considered for

an IFQ system, with documented landings in that fishery during one of the past

three or more years, and who are still eligible to participate or have permits to participate in the fishery in question. A 60 percent approval, as proposed in the discussion draft, is the minimum that should be required for an IFQ system to proceed.

The rules for a referendum cannot be left up to either NMFS or the regional

councils.

2. Eligibility. Eligibility for an initial grant of quota in an IFQ fishery should be

open to all those individuals or vessels with landings, no matter how small, who

participated in the fishery during one of at least three previous years and who are

still eligible to participate in that fishery or who have permits to the fishery in question. If free markets are to work then allow those who are eligible trade and sell

quota among themselves to determine what amount they need for an economically

viable fishery.

3. Ownership. Ownership of quotas should be limited to individuals holding fishing licenses and who are on board and engaged in the fishery for the quota. Where

companies own vessels and may be eligible for quota share based on a vessel’s catch

history, they should be ‘‘grandfathered’’ in, but any lease or sale thereafter of their

quota could only be to an individual licensed and on-board fishing for the quota.

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4. Quota Caps. Any IFQ system must have in place an effective method for controlling the amount of quota owned by any one individual, family unit, partnership

or corporation.

5. Program Duration. Finally, any IFQ system established should be for not longer

than five years duration, after which point it may be abandoned or renewed following a review of its achievements for improving fish conservation, safety, product

quality, and individual vessel ownership.

Let me also emphasize my organization’s, and most fishing organizations, adamant opposition to granting quotas to fish processors. Fish processors who own vessels engaged in fisheries should be considered for eligibility for quota for those vessels, however, with the clear caveat that any subsequent sale or transfer of any or

all of that quota can only go to a licensed fisherman operating a vessel in the fishery

for which the quota is for. Moreover, the idea of splitting the overall quota for a

fishery and giving a portion of it to processors is unacceptable. Mr. Chairman, many

of our fisheries in this nation are in horrible shape. Making fishermen sharecroppers or permitting fish processors a cartel controlling a public resource, will just

make a bad situation far worse. I strongly urge the Subcommittee and the Congress

to reject the issuance of fish quotas to processors, except for those owning vessels

that have a catch history in a fishery.

Section 13. Cooperative Education and Research

In addition to that proposed in the discussion draft, I would also urge the Subcommittee consider the language in H.R. 2570 promoting cooperative fishermenscience research programs.

Section 16. Council Membership

Membership on the regional councils is an issue, like habitat, that has been of

concern to PCFFA and other fishing groups. In the 1986 reauthorization our organization worked to include language that council members had to be knowledgeable

regarding fisheries. What is important to us is not that the public members of regional councils be simply those from the fishing industry, but the individuals, whoever they are be knowledgeable about the fisheries. Fishermen—commercial, recreational and tribal—provide valuable expertise on the councils. But I question

whether the lobbyists, the lawyers or the executive directors of those associations

have such first hand fishing experience and whether they simply should be prohibited from serving. Moreover, I also believe it is time to examine closely the conflicts

of interests that may arise not just among commercial or recreational fishing representatives, but among other interests with an economic stake in a council vote (a

promotion or continued employment, for example), including the state fishery

directors.

Additional Issues

Mr. Chairman, there are three additional issues, not included, in the discussion

draft, that I believe may merit consideration in this reauthorization of Magnuson–

Stevens. They are:

Precautionary Approach. I believe a definition of the precautionary principle is

needed in the Act and a directive to begin implementing it. H.R. 2570 (Section 11)

contains such language. I say this not so much because I believe its implementation

now can undo what has been done when we threw caution to the wind and built

up, following passage of the FCMA, a fleet with a greater catch capacity than there

were stocks to support. But, because I worry greatly about NMFS’’ and some of the

state’s fascination with new forms of coastal and open ocean aquaculture that I believe may be the next great threat to our native fish stocks if caution is not adhered

to. Proposals for open ocean aquaculture could lead to harm to both ecosystems and

endanger the very stocks we are now trying to rebuild. Making matters worse is

the biotech industry’s push for genetically-modified fish for aquaculture operations.

We are working hard to rebuild damaged fish stocks, the nation is spending millions

to prevent and control marine invasions, are we going to throw that all away now,

because someone has bit into the hype of more fish to feed the world’s starving

masses. We need, I believe, a precautionary principle, not to correct previous mistakes but to make sure we don’t make more mistakes with our fisheries in the future.

Professionalization. A study not included in the discussion draft, but one that I

believe is needed, is to examine whether a professionalization program is needed for

our nation’s fishing fleet. Canada is currently embarking on such a program and

other nations have them in place as well. Should we not examine whether and how

a program for the education and training of those engaged in the harvest or our

nation’s fishery resources could or should be established?

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Funding Fishing Programs. Last some method needs to be considered to provide

for a financial contribution from the industry to help pay for many needed fishery

programs that are not adequately funded. Whether it should come in the form of

an ad valorem tax on all seafood sold in the U.S. or some other means, I don’t know,

but part of the reason for the crisis we’re in is due to our failure to fund the research, stock assessments, and enforcement needed for the proper conservation and

management of our fisheries.

Mr. Chairman and members thank you again for your invitation to testify here

today. I will be happy to answer any questions you may have.

ATTACHMENT

CALIFORNIA MARINE LIFE MANAGEMENT ACT

DEFINITIONS

http://www.dfg.ca.gov/fg—comm/mlma/appendix/a.html

§ 90.1. ‘‘Adaptive management,’’ in regard to a marine fishery, means a scientific

policy that seeks to improve management of biological resources, particularly in

areas of scientific uncertainty, by viewing program actions as tools for learning. Actions shall be designed so that even if they fail, they will provide useful information

for future actions. Monitoring and evaluation shall be emphasized so that the interaction of different elements within the system can be better understood.

§90.5 ‘‘Bycatch’’ means fish or other marine life that are taken in a fishery but

which are not the target of the fishery. ‘‘Bycatch’’ includes discards.

§90.7. ‘‘Depressed,’’ with regard to a marine fishery, means the condition of a fishery for which the best available scientific information, and other relevant information that the commission or department possesses or receives, indicates a declining

population trend has occurred over a period of time appropriate to that fishery. With

regard to fisheries for which management is based on maximum sustainable yield,

or in which a natural mortality rate is available, ‘‘depressed’’ means the condition

of a fishery that exhibits declining fish population abundance levels below those consistent with maximum sustainable yield.

§91. ‘‘Discards’’ means fish that are taken in a fishery but are not retained because they are of an undesirable species, size, sex, or quality, or because they are

required by law not to be retained.

§7090(b) ‘‘Emerging fishery,’’ in regard to a marine fishery, means both of the following:

A fishery that the director has determined is an emerging fishery, based on criteria

that are approved by the commission and are related to a trend of increased

landings or participants in the fishery and the degree of existing regulation of

the fishery.

A fishery that is not an established fishery. ‘‘Established fishery,’’ in regard to a marine fishery, means, prior to January 1, 1999, one or more of the following:

A restricted access fishery has been established in this code or in regulations

adopted by the commission.

A fishery, for which a federal fishery management plan exists, and in which the

catch is limited within a designated time period.

A fishery for which a population estimate and catch quota is established annually.

A fishery for which regulations for the fishery are considered at least biennially

by the commission.

A fishery for which this code or regulations adopted by the commission prescribes

at least two management measures developed for the purpose of sustaining the

fishery. Management measures include minimum or maximum size limits, seasons, time, gear, area restriction, and prohibition on sale or possession of fish.

§93. ‘‘Essential fishery information,’’ with regard to a marine fishery, means information about fish life history and habitat requirements; the status and trends of

fish populations, fishing effort, and catch levels; fishery effects on fish age structure

and on other marine living resources and users, and any other information related

to the biology of a fish species or to taking in the fishery that is necessary to permit

fisheries to be managed according to the requirements of this code.

§45. ‘‘Fish’’ means wild fish, mollusks, crustaceans, invertebrates, or amphibians,

including any part, spawn, or ova thereof.

§94. ‘‘Fishery’’ means either of the following:

One or more populations of marine fish or marine plants that may be treated as

a unit for purposes of conservation and management and that are identified on

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the basis of geographical, scientific, technical, recreational, and economic characteristics.

Fishing for or harvesting of the populations described in (a).

§8100. ‘‘Limited entry fishery’’ means a fishery in which the number of persons

who may participate or the number of vessels that may be used in taking a specified

species of fish is limited by statute or regulation. (Note that limited entry is a type

of restricted access. See Appendix D.)

§96. ‘‘Marine living resources’’ includes all wild mammals, birds, reptiles, fish, and

plants that normally occur in or are associated with salt water, and the marine

habitats upon which these animals and plants depend for their continued viability.

§96.5. ‘‘Maximum sustainable yield’’ in a marine fishery means the highest average yield over time that does not result in a continuing reduction in stock abundance, taking into account fluctuations in abundance and environmental variability.

§8586(a) ‘‘Nearshore fish stocks’’ means any of the following: rockfish (genus

Sebastes) for which size limits are established under this article, California

sheephead (Semicossyphus pulcher), greenlings of the genus Hexagrammos, cabezon

(Scorpaenichthys marmoratus), scorpionfish (Scorpaena guttata), and may include

other species of finfish found primarily in rocky reef or kelp habitat in nearshore

waters.

§8586(b) ‘‘Nearshore fisheries’’ means the commercial or recreational take or landing of any species of nearshore finfish stocks.

§8586(c) ‘‘Nearshore waters’’ means the ocean waters of the state extending from

the shore to one nautical mile from land, including one nautical mile around offshore rocks and islands.

§97. ‘‘Optimum yield,’’ with regard to a marine fishery, means the amount of fish

taken in a fishery that does all of the following:

Provides the greatest overall benefit to the people of California, particularly with

respect to food production and recreational opportunities, and takes into account

the protection of marine ecosystems.

Is the maximum sustainable yield of the fishery, as reduced by relevant economic,

social, or ecological factors.

In the case of an overfished fishery, provides for rebuilding to a level consistent with

producing maximum sustainable yield in the fishery.

§97.5. ‘‘Overfished,’’ with regard to a marine fishery, means both of the following:

A depressed fishery.

A reduction of take in the fishery is the principal means for rebuilding the population.

§98. ‘‘Overfishing’’ means a rate or level of taking that the best available scientific

information, and other relevant information that the commission or department possesses or receives, indicates is not sustainable or that jeopardizes the capacity of a

marine fishery to produce the maximum sustainable yield on a continuing basis.

§98.2. ‘‘Participants’’ in regard to a fishery means the sportfishing, commercial

fishing, and fish receiving and processing sectors of the fishery.

§98.5. ‘‘Population’’ or ‘‘stock’’ means a species, subspecies, geographical grouping,

or other category of Fish capable of management as a unit.

§99. ‘‘Restricted access,’’ with regard to a marine fishery, means a fishery in which

the number of persons who may participate, or the number of vessels that may be

used in taking a specified species of fish, or the catch allocated to each fishery participant, is limited by statute or regulation. (Note that there are several types of

restricted access, including limited entry and individual quotas. See Appendix D.)

§99.5. ‘‘Sustainable,’’ ‘‘sustainable use,’’ and ‘‘sustainability,’’ with regard to a marine fishery, mean both of the following:

Continuous replacement of resources, taking into account fluctuations in abundance

and environmental variability.

Securing the fullest possible range of present and long-term economic, social, and

ecological benefits, maintaining biological diversity, and, in the case of fishery

management based on maximum sustainable yield, taking in a fishery that does

not exceed optimum yield.

Mr. GILCHREST. Does anyone else have to leave within 15 minutes?

I guess we can start with you, Mr. Grader. The essential fish

habitat versus—some have recommended that we put in the

Magnuson habitat areas of particular concern to define that. And

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I understand essential fish habitat—the provisions that are contained in Magnuson you feel have not caused a problem in the fishery in any particular way. What NMFS has begun to do, which

some people have asked us to do, is to look at habitat areas of particular concern. Is that something that should be clarified, put in

the Act in some form, or can we just deal with essential fish habitat language that is in there now without weakening it?

Mr. GRADER. I think my preference would be for the latter, to

stay with the existing definition. Some have complained that we

don’t want to begin changing definitions again. We are just now

getting acclimated to what is in the SFA. I would see where we

are. I think as we learn more about these ecosystems, as we learn

more about the habitat’s environment, we will be able to define

that; and in many cases it will probably become narrower, because

we will determine that the fish really don’t use habitats. And in

other cases we may find that we define habitats too narrowly. But

I would be hesitant right now to retreat from that, and I think if

we do begin retreating from that, we are going to see a lot of other

nonfishing interests here at the table clambering also for retreating

in their areas.

Specifically, I dread to think what is going to happen, those that

are affecting wetlands. If we start retreating now, they are going

to be right here demanding exemptions or, you know, what they

are doing to wetlands not be considered. And as we all know, wetlands are critical to our coastal fish stocks.

Mr. GILCHREST. So you feel that the provisions that are in existing law and the way NMFS is dealing with that, we will allow

NMFS a little more time to work on an issue and resolve any problems that they have, and don’t have any language in dealing with

habitat areas of particular concern.

Mr. GRADER. My feeling is only that making sure they stay on

some sort of time line, that we hold them to that. But I think right

now, let us try to enforce what we have there now, see how well

it works. We may have to revisit in a couple of years, but right now

I would be really hesitant to try to retreat at all from any of that

or constrict in any way that existing language. On the West Coast

it is absolutely critical to us that we protect some of these habitats.

We have lost so much already. In the salmon habitat, in some cases

we have lost up to 90 percent of the spawning habitat for some of

these critical fish. We can’t afford to lose any more. Likewise, we

have lost 90 percent of our wetlands, and likewise we ought not to

be damaging with our fishing gear critical habitats. It is not in our

best economic interest. It is foolhardy to be damaging that habitat.

Mr. GILCHREST. And we are going to try to save that habitat.

Mr. GRADER. Thank you.

Mr. GILCHREST. The other issue that you raised was over capitalization and the buyback provisions. The Wyden bill that you mentioned, it is my understanding that based on the criteria they use,

and I think it is estimated it would cost $50 million in that one

fishery, would be under the jurisdiction of Resources, Transportation, and Ways and Means Committees. So we would have our

work cut out for us under that. But your comment, which is eminently logical and reasonable, that we spend billions of dollars in

agriculture, versus how much money we spend to try to deal with

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the fisheries, is pretty enormous. So we will make an extra effort

to look at those areas as expeditiously as we possibly can.

Mr. GRADER. Thank you, Mr. Chairman. I should add, I greatly

appreciated your section there on oysters, and hope we could do a

similar oyster rebuilding plan for San Francisco Bay as well. And

in fact, I think we have identified the source of funds for it. All we

need is the language to kind of tweak it to make it happen. But

the oyster restoration is critical, and I appreciate the work you

have done in the Chesapeake Bay, and I would hope we could do

the same thing in San Francisco Bay, which also at one time had

a huge oyster fishery.

Mr. GILCHREST. Apparently, according to Mr. Hayes, we only

need a little bit of tweaking to make this one go. As long as there

are grass-roots contributions to the protected areas around those

oyster reefs, we could make that happen.

One last question before I let you go, Mr. Grader, and that is I

am going to ask Mr. Houde if he has some type of timeframe for

an expedited ecosystem fisheries management—whatever you want

to call that—approach. We don’t have a time line in our bill. In

your testimony, you made a comment that there is a lot of information out there already. We need to continue to study it, but we

have to hold—these are my words—Councils’ feet to the fire and

begin some type of deadline for an ecosystem fisheries approach.

Do you have some type of recommendation for a deadline or how

we should proceed with that, or is there a Council that might have

a pilot program in the next year or 2, 3, that could institute a pilot

project?

Mr. GRADER. Actually, I was thinking when you asked that question to earlier witnesses, I think we could do salmon fishing, which

I am most familiar with, on the West Coast. We could probably do

it there. We know what a lot of the ecosystem needs are of those

fish. We have had to in order to save them. So that one would lend

itself very well to it.

Groundfish, on the other hand, would be far more difficult because there is a lot that we don’t know about those resources, but

certainly the salmon could be a good one for a pilot project on that.

It is a little bit different than most marine fish, but I think it

would be an interesting one to do because we do have so much information on it.

Mr. GILCHREST. So, have the Pacific Council do a salmon ecosystem fisheries management plan just for salmon?

Mr. GRADER. I think it would be an interesting one to try. Keep

in mind, I don’t dare go back unless I can get some assurance that

we could get some funding to do it as well, but I think there are

probably some others around the coast where we do have good information and we could use them on atrial basis and see how they

work. But in other words, to get moving, not just talking about it,

but let us do something.

Mr. GILCHREST. Thank you, Mr. Grader, and it is about 20 of, so

if you feel you have to depart we certainly appreciate your traveling this distance, giving us your testimony.

Mr. GRADER. Thank you very much Mr. Chairman.

Mr. GILCHREST. And we will do our best to include your recommendations into the heart of the bill.

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Mr. LeBlanc, you mentioned in your testimony the unfunded and

the unachievable, which is understandable because we don’t want

to have the Councils or NMFS do things that they can’t do with

money they don’t have. No one is going to be successful. But you

also made a comment about the application of the precautionary

approach.

And I would like to ask you if you could be a little bit more specific on why you would be opposed to what it seems to me has been

a scientific principle for a century or two, which in essence is the

principle of uncertainty when dealing with a whole range of issues

and the principle of uncertainty dealing with one of the most uncertain aspects, the fisheries. I would assume that the principle or

the precautionary approach would benefit the fishery plus the commercial fishing industry, and certainly the recreational fishing industry, when you understand the huge range of the dynamic eastbound and flow that these fisheries go through.

And also if we look, and it seem to me we are moving in the direction of an ecosystem approach, which means there is more than

just fishermen that impact the fishing, there are a whole range of

things, and nature itself is dynamic; but in a precautionary approach, it tries to assure that in that one aspect that is not dynamic, which is the steady impact of the fishery—you used a precautionary approach in all the other arenas that affect that stock— would be beneficial to the fishery and to the industry.

Mr. LEBLANC. Mr. Chairman, I think everyone agrees in general

with the idea that the more uncertain you are, the more cautious

you need to be. So in general, I think everyone agrees that you

should take a precautionary approach to fisheries management.

The problem becomes when you attempt to define what you mean

by precaution, and just how cautious is cautious enough. And I

think from my perspective, you have to look at this in the context

of risk assessment essentially.

Scientists don’t come to Fishery Management Councils and say,

you can catch this many fish. They come to Fishery Management

Councils and say, if you catch this many fish, you have this probability of overfishing the resource; and if you catch that many fish,

you have that probability of overfishing the resource. And you have

to weigh those risks against other risks, and those risks are social

and economic impacts, and make a decision that is not a purely scientific one but a scientifically informed social decision. So in that

context, a precautionary approach is appropriate. But what we are

told the precautionary approach means is worst-case scenario management. That is, you want to reduce any probability of overfishing

a resource, which is simply not practical and could have devastating social economic impacts.

There is no right answer. Is a 75 percent chance of not overfishing appropriate, or is a 50 percent chance of not overfishing appropriate? And how you choose between those numbers may depend, at least in part, upon what the relative social and economic

costs are of making those two different decisions.

Mr. GILCHREST. So is the term or concept ‘‘precautionary approach’’ a relative term, depending on whose interpretation you are

using, or is there in fact a definite definition for precautionary approach which can be applied in a myriad of circumstances?

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I guess I would like to ask Dr. Houde to comment on Mr.

LeBlanc’s statement about precautionary approach.

Dr. HOUDE. I think precautionary approach is the present expression of the ethic that we have had for 100 years. That is true.

Before precautionary approach was popular, we talked about riskaverse management. So it is a way to avoid risk.

But where I disagree with Mr. LeBlanc is that it is not an openended, hard-to-define approach for any particular fishery management plan. What you wish to be precautionary can be easily

defined. It could be that 75 percent, or it could be that 50 percent,

and I would argue that this is the kind of language that we need

to see in the Act.

There are examples in recent years, for instance, with one of our

fisheries on the East Coast where NMFS in their stock assessment

gave the probability of overfishing as 50 percent if a certain fishing

mortality rate were applied. The Council chose a rate that was

much less than that, and then the final agreement was somewhere

in between 50 percent and something like 3 percent. And that went

to court and the NMFS and the Councils lost. Had there been a

definition, the plan that said 50 percent probability was the precautionary rate that one would accept, a lot of trouble would have

been avoided.

Mr. HAYES. Mr. Chairman, I think there are a couple of things

here that are important. One, a precautionary approach is defined.

It exists in an annex to the Straddling Stock Convention which the

United States has signed and is a party to. It is the application of

the precautionary approach, as Mr. Houde suggested, Dr. Houde

suggested, that is the difficulty. And what I believe Mr. LeBlanc

was referring to was his concern that the Farr bill defines the precautionary approach in a way that is overly conservative. Frankly,

I don’t think that definition is consistent with what is in the Straddling Stock Convention, and maybe other people do—

Mr. GILCHREST. Would you suggest that we use the definition

from that Convention in the Magnuson Act?

Mr. HAYES. I would suggest that that is already domestic law

and it is unnecessary to apply it to the Magnuson Act.

Mr. GILCHREST. If it is unnecessary, would it be overly burdensome if we are already complying it with and then put it in the

Magnuson?

Mr. HAYES. The definition—I haven’t read it in maybe 6 or 8

months, but the definition that is in the Straddling Stock Convention is not exactly a precise statement, as Dr. Houde would suggest. In other words, it doesn’t suggest to you that 50 percent probability is the right level of probability. What it gives you is a series

of criteria that you should look at in order to make a conservative

judgment with respect to the application of scientific data when

you are doing it in a fishery context.

Mr. GILCHREST. So, Mr. Hayes, you are saying it is not necessary

to put a definition or any type of criteria defining the precautionary

approach in the Act at this time?

Mr. HAYES. What I am suggesting is that Fishery Management

Councils are already obligated to apply the definition in the Straddling Stock Convention to the thing that they are doing, and that

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that definition is probably adequate if in fact they would go ahead

and apply it.

Mr. GILCHREST. Would you agree with that, Dr. Houde?

Dr. HOUDE. I can’t argue with Mr. Hayes with respect to whether

it is already incorporated into domestic law. I can tell you that in

fishery management organizations, agencies, and institutions

around the world, it appears repeatedly over and over. I think that

the precautionary approach definition appeared before the Straddling Stock Conventions that were held. It came out in Food and

Agriculture Organization papers back in 1995. I think it comes out

of the Rio Convention in 1992, where I believe it was first discussed.

Dr. HOUDE. So it appears, and it strengthens the management

language in many fisheries, agencies, institutions around the

world, and I think it would be a good thing to have in MagnusonStevens.

Mr. GILCHREST. Why do you say that, Doctor? What advantage

would there be to including that in the Magnuson Act, since it is

so widely understood?

Dr. HOUDE. Well, I am not so sure that it is widely understood

in its application, but if language were in the M-S Act that said

that the precautionary approach will be taken, and then some language that defined what was meant by precautionary approach in

terms of risk assessment and analysis, as Mr. LeBlanc has suggested, this might require that each Council specifically address

the issues of risk and what an acceptable risk is.

Mr. GILCHREST. Mr. Leape.

Dr. HOUDE. I guess I wouldn’t be tied to saying that the precautionary approach is exactly the wording that has to be in the

Magnuson-Stevens Act. As I said, it is the present expression of an

ethic that has been around for a long time.

Mr. LEAPE. Well, it has been our experience. It is great hearing

this discussion about the precautionary approach, because that is

part of getting to where we need to be. We feel it wouldn’t be redundant to have it mentioned in the Act, and people may disagree.

But in the Farr bill we attempted to have some manifestations of

what an interpretation of the precautionary approach could be in

terms of buffers when you are setting quotas to account for the potential that scientists are wrong, when they are setting their allowable biological catch levels, and in beginning to shift the burden of

proof to fishermen who want to introduce new gears, because the

burden really should be on those who would benefit from the new

activity to prove that it is not going to increased detriment to that

fishery.

It shouldn’t be the burden of the public, and the Councils are already overburdened by themselves, and so that is why we felt it

was appropriate to put in elements like that to at least have an effort at implementing the precautionary approach.

Mr. GILCHREST. Yes. Mr. LeBlanc.

Mr. LEBLANC. Thank you, Mr. Chairman. I just wanted to—this

has been an interesting discussion regarding the application of the

precautionary approach.

I think one of the other concerns that I have certainly heard from

a number of folks in the commercial fish and seafood industry is,

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I guess for lack of a better term, what I call the redundant application of precaution. And that is, as you move through the system of

analysis, and you go through the scientific process and the modeling process, and you apply precaution to the variables you apply

to your model, and then you apply precaution to the output from

that model, and then you apply precaution when the Fishery Management Council has to make a TAC based upon that stock assessment, at what point have you applied precaution enough; and that

gets, again, into the vagueness of its application. That raises, I

think, a lot of concerns. And where is the appropriate level and do

you have to do it multiple times?

Mr. GILCHREST. Mr. Hayes.

Mr. HAYES. I just wanted to make clear that we are not opposed

to the application of the precautionary approach. In fact, I think

CCA in 1998 testified in this room, asking for it to be included in

the Magnuson Act, because, at the time, there was no FAO definition and there was no attachment of that definition to the straddling stocks convention.

I think something in this bill that simply says that it has to be

applied, and, as Mr. LeBlanc might suggest, that it has to be applied at a specific level, i.e., has to be applied by the Secretary

prior to implementing fishery management regulations, might be

an appropriate spot. It is a perfectly acceptable way to do it. The

problem with the precautionary approach is that—this is just like

Justice Stewart’s problem with obscenity: Everybody knows it when

they see it, but it is very difficult to define it. And when you begin

to define it, you get very controversial questions about what it is.

And that is why I suggest it is already defined. It may be defined

in a way in which it is subject to some interpretation, but it does

exist in its domestic law.

Mr. GILCHREST. Well, we will take a closer look at that and see

what we can do, at least with some range of—it seems to me the

maximum sustainable yield, when you take a look at that, you

have a range of high, middle or low, as far as the allocation is concerned. And I would think that a precautionary approach would be

to stay on the low end of that allocation, within the range but on

the low end of that range. And to me, a layman, that is the precautionary approach.

Getting back to ecosystem approaches for fisheries, Dr. Houde,

you mentioned an incremental approach to the—you used the term

‘‘incremental.’’ could you give us—I think you used the term ‘‘incremental approach’’ to an ecosystem-based approach. Can you give us

some idea of what the first increment would be, the second increment, the third increment?

Dr. HOUDE. I think that some of the language already written

into the discussion draft to me implies increments. One could just

look at the bycatch language, for instance. Reducing bycatch, to me

and to many fish ecologists, is an ecosystem-based approach. You

talk about understanding species interactions in the discussion

draft. Species interactions are primarily predator-prey relationships. Most of us who worry about bycatch and the impact of bycatch on marine ecosystems, it is because we are concerned about

the effect that bycatch has on predator-prey relationships in the

marine ecosystem. So solving the bycatch problem would be an inVerDate 11-MAY-2000 12:40 Jan 30, 2003 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6602 79374.TXT HRESOUR1 PsN: HRESOUR1
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cremental step toward implementing ecosystem-based management.

Defining essential fish habitat into specific kinds of habitat, perhaps HAPCs, is another incremental step for individual fisheries,

so that we can categorize those habitats that are critical for certain

life activities of species; and those that aren’t, this is an incremental approach. The bycatch issue of whether birds should be included as bycatch, identifying birds as bycatch, and by doing that

implying that we are no longer going to catch birds while we are

fishing, to me is an incremental step toward—

Mr. GILCHREST. Would you include marine mammals? Would you

suggest the inclusion of marine mammals in the Act? Is that necessary?

Dr. HOUDE. I would include them. In fact, before this discussion

took place, I in my mind had always assumed that anything not

intended to be caught was bycatch. We certainly in a trawl fishery

aimed at groundfish, for instance, consider the crabs and lobsters

and squid bycatch. They are not fish.

Mr. GILCHREST. Mr. Leape?

Mr. LEAPE. Now, the Marine Fish Conservation Network doesn’t

have an opinion on marine mammals, but I do. I have been

through many tortuous negotiations around section 118 of the

MMPA, which is the exemption for commercial fisheries. They

should be brought in. In those cases where there are interactions

with commercial fisheries, let us treat them holistically. We are

bringing in sea birds. Let us bring in marine mammals as well, because this is all part of moving toward dealing with this as an ecosystem and stop dealing with this as separate parts, let us deal

with it holistically, and including marine mammals would be a step

toward that.

Mr. GILCHREST. So that would be an incremental step—the incremental steps would be improving bycatch, including sea birds and

marine mammals, certainly. Both you and Dr. Houde said—and

Mr. Grader as well—have stressed that there is a good deal of information out there about ecosystems and that we aren’t moving

fast enough to implement that approach, and there is no firm language as to what is going to happen after 5 years. So is there a

suggestion on a possible—like Mr. Grader made a comment about

the salmon being a part of the pilot project. Do you have any recommendations, or is it incorporating the recommendations in 1275?

Mr. LEAPE. 2570.

Mr. GILCHREST. 2570.

Mr. LEAPE. No. I think the idea of doing a pilot program is a

laudable one, if it can be done within the timeframe of the authorization. What the message we have been trying to get across is let

us not let this new authorization of MSA expire without having a

deadline at the end of the game requiring the Councils to act. Certainly a necessary part of that is to say let us try this out, but we

should endeavor to try and do that within the first 2 to 3 years.

So when we get 5 or 6 years down the road, we can have the Councils on the road to getting this be the rule rather than the exception for fisheries management.

Mr. GILCHREST. Mr. LeBlanc.

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Mr. LEBLANC. Thank you. I just wanted to comment that with

regard to marine mammals, I think they are adequately protected

by the Marine Mammal Protection Act and the quote-unquote exemption for commercial fishing isn’t exactly an exemption. It is

more of a scheme for dealing with the interaction of commercial

fishing with marine mammals. But I have suggested to the extent

that we are going to include marine mammals in bycatch, we

may—and we are moving toward ecosystems-based management— that has profound implications for how we manage marine mammals and their interactions with fisheries, salmon being a notable

one on the West Coast. And to the extent that we want to begin

to factor in marine mammals into fisheries management under the

Magnuson Act, I think we would have to look at how we deal with

ecosystem-based management and interaction of what may be argued as overabundant marine mammal populations and their interaction with other components of the marine ecosystem.

Mr. GILCHREST. It just gets more complicated the more you talk

about it.

I would like Mr.—or Dr. Houde, you mentioned marine protected

areas, MPAs, as a possible—how would you like to see marine protected areas included in the Magnuson Act, in the policy of the

Magnuson Act, in the national standards? Is there some way that

we can include that in the Magnuson Act in a way that it hasn’t

been?

Dr. HOUDE. I don’t think we want—or at least I don’t think that

a national standard is appropriate at this time, but I think that the

Act should recognize that we can move effectively toward using

spatially explicit management more in marine fisheries—now, we

have used closed areas and some kinds of spatial management for

hundreds of years in fishery science and fishery management, so it

is not entirely new; but we haven’t used it as effectively as we can,

because we have been—it seems bound by the traditional approach

of controlling catch and controlling fishing effort rather than considering how to effectively manage by using space.

Part of this relates to the history of open access to marine areas,

particularly in zones that are more than 3 miles away from the

coast of nations. But there are many ways that we can effectively

manage fish stocks by using space and time better than we do, and

marine protected areas are one expression of this.

Now, I think that some people in the environmental community

in particular look at marine protected areas, of course, as permanently closed; no fishing areas. But there are lots of models for marine protected areas. Some stocks could be fished, some not. Some

protected areas could be open sometimes, not at others. Also there

can be time limits on marine protected areas.

I think many in the environmental community would disagree

strongly with me on this, but marine protected areas are again a

part of this uncertainty in marine ecosystems that we have right

now. If we were going to institute them, it would seem to me to

be prudent to put some time limits on many of these marine protected areas for fishery management. There are a lot of models. I

think that the Act ought to recognize this. It ought to advocate research on them, at the very least, and implementation where appropriate. We have seen some implemented. The Georges Bank

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closed areas for scallops, for instance. That is a good example.

There are some others.

Mr. GILCHREST. In your testimony, Dr. Houde, you talked about

the full spectrum of human activities and need to protect ecosystem

structure and function in talking specifically about what you would

recommend as part of an understanding of marine protected area.

Could you explain, since the Magnuson Act would not—I think

would just control the fisheries, it wouldn’t have anything to do

with the oil and gas industry—could you explain what you meant

by the full spectrum of human activity?

Dr. HOUDE. Well, I think that I might not have been expressing

myself as critically as I should have, now that you have, you know,

brought this to my attention; but I was referring to all of the kinds

of activities that can take place and that one would choose an area

to be protected based upon the spectrum of activities that might

take place. For instance, there are a lot of areas one might not

want to designate as marine protected area for managed fisheries,

because of some of these other activities that we are talking about,

or because of activities that are taking place upstream a ways. For

instance, the sewer outflow a mile upstream might make an area

downstream not suitable.

Mr. GILCHREST. Does anyone else want to comment on marine

protected areas as concerning the Magnuson Act, and we would

possibly put some language in the Magnuson Act to recommend at

least to the Councils that that be a consideration in their toolbox?

Mr. LeBlanc.

Mr. LEBLANC. Thank you, Mr. Chairman. I was just—borrowed

Bob’s copy of the Act to double-check my thinking, but section

303(b)(2) already provides the Councils with the authority to establish no fishing zones and time and area closures or gear restrictions. So it has a broad discretion to design at least the no fishing

component of the marine protected area under the council’s jurisdiction already.

Mr. GILCHREST. So then in that section 303 of contents of fishery

management plans, we can be more specific in the language for

marine—for marine protected areas? More so than it is already?

Just a suggestion.

Mr. Leape.

Mr. LEAPE. I am here on behalf of the Marine Fish Conservation

Network, which, as you know, has both fishing organizations as

well as environmental groups. And so we basically have folks who

are ardently in favor of these things and folks who are ardently

against. So similar to what I have heard my friend Justin on behalf

of NFI, the Network doesn’t have a position on marine protected

areas. So I should probably stop there.

Mr. GILCHREST. Mr. Hayes.

Mr. HAYES. The Coastal Conservation Association does have a

position. We think that there are a couple of things that ought to

be done here. Marine protected areas ought to be aired both by

their scientific value, what they are, and I think ultimately we

ought to develop some guidelines as to how one would use them.

The economic impacts and the social impacts of excluding the

American public from a public resource is pretty significant. And

so when someone says we are simply going to take area X, and for

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whatever good other reason they may have, exclude the public from

that, that has got a pretty significant impact on the public. And I

think it is incumbent upon the people that are doing that to have

a great deal of certainty as to the scientific validity of why they did

it, to ensure that when that scientific purpose, be it a conservation

measure or whatever it is, when it is achieved, that the public regains access to that resource, that there is a significant amount of

public participation in that decision so that you can get people to

buy in to the answer.

Now, that is not to suggest that you couldn’t ultimately put one

in place; but it is to suggest is that you can’t do it on a whim, it

can’t be done just arbitrarily—to exclude a commercial activity or

a recreational activity. And as I think Dr. Houde has pointed out,

MPAs may well be a better tool, a more effective management tool,

than the tools that are now being used. CCA is certainly not opposed to time and area closures.

Mr. GILCHREST. You give excellent recommendations, and that is

the process that should be followed.

I happen to believe in MPAs and ecosystem approaches. I think

we have reached a level of our understanding about how things

function in the natural world. I think we should be a part of that

process and not degrading that process. Whether it is the Chesapeake Bay with phytoplankton and zooplankton and menhaden and

rockfish and sea grass and oysters and crabs and the whole range

of other things that are a part of that ecosystem approach, I think

marine protected areas are one aspect that can be a very valuable

tool.

I think the problem, though, in some areas, especially, to some

extent, my good friends in DNR in Maryland, but other areas as

well; that is, they aren’t looked at seriously or with as much vision

as they need to be looked at, because people are worried about the

political ramifications. And so some entity needs to take a position

to allow a better ebb and flow of ideas in all of the various aspects

of these management tools that we will deal with when we are

dealing with marine ecosystems and the fisheries and the commercial industry.

I think you mentioned something about the Sassafras River before. The Sassafras River, the northern shore has some beautiful

tidal basins off that estuary, and basically that is what the Sassafras River is, is a large tidal basin. But they have these tidal

ponds where, for almost an arbitrary reason, there was some

human activity backed off a couple of them, and the grass came

back, and the rockfish started to spawn there and the turtles came

back and the eagles are teaching their young how to catch fish.

Well, bingo, just like that, there is a whole lot of human activity

in there, that in a short period of time if that little sensitive tidal

pond is not protected, will disappear again. And I have asked my

wonderful State DNR to begin considering about not allowing in

certain areas motorized craft, or no fishing, because I think maybe

the bald eagles to some extent have—besides the fact that they are

beautiful, and to watch them and the osprey and the blue heron,

their places are continuing to be diminished. So if we don’t have

a plan to protect those areas, that is at this point somewhat aggressive, albeit intelligent and with a grassroots support and with

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everybody’s full knowledge that this is what we are doing, we just

begin losing all of these little pieces that, as a result of a number

of acts, the Clean Water Act, the Clean Air Act and so on, have

started to come back to life.

So in my way of thinking, we have got to move forward with a

sense of patient urgency on a lot of these issues and raise the concern and begin talking about them. And when we start doing

that—and Maryland and Mr. Hayes, I will ask you to come along

and be our partner with all of these astonished DNR folks.

Mr. HAYES. I would be happy to join you.

Mr. GILCHREST. Thank you very much. I know the hour is late,

and if I could just get a couple of quick comments on some other

quick issues.

Gerry, you mentioned you had some concerns about our definition of ‘‘overfished’’ and how we broke it out. Would you not want

to see the two distinctions, ‘‘overfished’’ and ‘‘overfishing’’? Do you

have a recommendation or a clarification for us?

Mr. LEAPE. Certainly, Mr. Chairman, and I appreciate the opportunity to clarify that for you. Our concern is not the separation of

the two definitions. We understand the need for that. It was the

inclusion of the phrase ‘‘natural fluctuation.’’ It is that clause that

we fear could encourage more fishing in already stressed fisheries,

and that we could see a continuation in some areas of using it

beyond—you know, as an excuse to hide the fact that there actually

is overfishing going on.

Mr. GILCHREST. If I can give you my perspective on natural fluctuation; that is, there could be a lot of reasons and there are a lot

of reasons for a fish stock falling. And we want to know what they

are besides just the fishing pressure.

Mr. LEAPE. Right.

Mr. GILCHREST. And if there is—if it is caused by some habitat

problem nearby or some other human activity or some other natural activity, that doesn’t mean that because it wasn’t caused by

the fishing industry, that we shouldn’t reduce the quota and understand that it is overfished across the board regardless of who does

it. But your concern would be that that would not be interpreted

that way?

Mr. LEAPE. Well, it was trying to figure out really what problem

we were trying to fix, and we are sympathetic to the idea that overfishing is not always, the primary cause in many of the fisheries

that up to now have been classified as overfished. That is why we

suggested that if you are interested in a third definition to clarify

for folks that it was actually depleted and not overfished, then we

could understand that and could accept that, as long as it was tied

to that affirmative obligation to implement a rebuilding program

that might involve, as you said, a lower level of fishing, but also

was very clear that the primary blame for the continuing decline

on the stock wasn’t fishermen.

Mr. GILCHREST. OK. I think we are on the same track with that.

We can probably work the language out.

Dr. Houde.

Dr. HOUDE. I don’t disagree with anything that Mr. Leape has

said, but I also looked at the language of the definitions and came

away with much the same impression that the definition as now

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given confuses the state of the stock with respect to fishing and

natural fluctuations, and I think a firmer definition is needed. I

can tell you that historically the word ‘‘depletion’’ is associated with

fishing. I think in more recent literature in the last 20 years, we

have got away from that, but there is a classic paper that defines

depletion, and it says it is the result of overfishing and only overfishing. And I teach this to my students.

Mr. GILCHREST. So should we use or not use ‘‘depleted’’?

Dr. HOUDE. You know, historically, depletion is related to overfishing. If depletion is defined very carefully in the Act, it might

serve in this case.

Mr. GILCHREST. All right. Thank you. Mr. LeBlanc.

Mr. LEBLANC. Thank you, Mr. Chairman. I am a little bit perplexed. I strongly agree with the idea that, one, we need to separate the definitions of ‘‘overfished’’ and ‘‘overfishing.’’ I also think

it is appropriate that a fishery that is classified as overfished

should be at its low level of abundance relative to some high because of fishing activity. Other fisheries that are low abundance

due to other causes are not overfished, they are of low abundance,

and you need to manage to that level of abundance in a sustainable

manner. But to call them overfished is inappropriate.

My other concern is that if the stock is of low abundance because

of something other than fishing, it is not clear to me how regulating fishing is going to bring that stock back. It wasn’t the cause

of the decline. And so you have to sustainably manage the fishery,

but you may not have to implement a rebuilding plan to achieve

a goal that is unattainable.

Mr. GILCHREST. I think that the goal we have is to understand

what there is out there depleting the fish stocks so that we can

manage the fisheries in a much more whole way: Corrective sewage

treatment plan, correct dredging somewhere for a port, correct

whatever needs to be corrected. Or understand that it was El Nino.

But if the fish stock is down, then we have to manage that in a

way that we don’t want to further deplete it. So I think that—

Mr. LEBLANC. I absolutely agree. You have to manage to the

level of abundance. You have to sustainably manage that fishery

relative to its variable abundance, but that is different from calling

it overfished and implementing a rebuilding plan.

Mr. GILCHREST. I think that is why we wanted to make a distinction between overfished and overfishing.

One of the last items dealing with IFQs, we have been here a

long time, so I can’t remember what any of you said, but I can

reread your testimony, I guess. Is there anybody here that would

be patently opposed to the concept of ITQs, IFQs?

Gerry, you made a comment that we need national standards before we lift the moratorium. The language in the draft doesn’t

reach the level of significant criteria in your mind?

Mr. LEAPE. We appreciate a lot of your effort here. First, you

have included conservation as an important standard. You also

have included equity standards in the draft and those are all good

things. One of our primary concerns is the way you have characterized this review and how it would work. You have a review at 5

years, but there is currently no requirement in the draft for a fishery to pass the review. The review just has to be undertaken.

109

Second, there is no consequence at 5 years if a fishery’s participants fail that review? There is a sunset at 10 years in your draft,

but it is not keyed to the review.

Mr. GILCHREST. You don’t feel that NMFS has the authority now

to deal with someone that has violated a fisheries management

plan?

Mr. LEAPE. Well, I think they would appreciate the reinforcement related to IFQs if you would spell it out in the terms needed,

you know, in the terms of establishing these programs, so there are

no surprises. One thing we hear all the time is where did that

come from, where did that regulation come from? There would be

an understanding up front that each program was going to be reviewed at 5 years, and if you passed the review, you could expect

to be renewed. If you didn’t pass it, you wouldn’t be renewed. So,

from the outset, there would be that incentive that the good fishermen obviously wouldn’t need, however, some might appreciate a little sort of extra incentive to do even better than they had been

doing within that period prior to being subject to that 5-year review.

Mr. GILCHREST. OK. Mr. LeBlanc.

Mr. LEBLANC. Thank you again, Mr. Chairman. I think from

NFI’s perspective, a moratorium needs to be continued unless the

Act is modified to provide for, again, equitable treatment of both

the harvesting in the primary processing sectors. I want to be clear

that that doesn’t mean you give processors harvesting quota, and

you don’t create indentured servants out of fishermen under that

kind of framework, what is generally referred to as a two-pie quota

system in which total allowable catch is allocated out in both harvesting shares and processing shares.

With regard to Gerry’s comments about the sunset, I think obviously reviews are appropriate and making sure that an IFQ program is meeting its objectives is appropriate, but you have to keep

in mind that sunsets—the intent of an IFQ, of course, is to rationalize a fishery by creating an economic value system. Sunsets are

going to inherently devalue what you are creating, and it is going

to affect the willingness of participants to make the kinds of investments we want them to make in order to rationalize the fishery or

to get out of the fishery or other things. So sunsets are going to

have a dramatic impact on how quota shares are valued within

that fishery.

Mr. GILCHREST. Do you feel that the ITQs in the clam industry

in Maryland are successful?

Mr. LEBLANC. That is a difficult question, sir, given the diversity

of some of our membership. I would say that it is certainly

rationalized—

Mr. GILCHREST. Well, sometimes Gerry says this is my personal

opinion, so you can feel free to give us your personal opinion.

Mr. LEBLANC. The IFQ plan in administering quahog has certainly rationalized that fishery. It has certainly reduced excess

fishing capacity, and it has certainly allowed for sustainable management. In fact, they are looking at increases in abundance in

those resources, such that they are slowly ratcheting up the total

allowable catch for those species.

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However, there have been primary processors that have been seriously harmed, seriously economically devalued, their capital assets and their general business plan have lost millions and millions

of dollars because they were not included in that initial allocation.

Most of the folks in that fishery, of course, don’t want to roll things

back and have adjusted to it one way or the other. But certainly

many of the primary processors in that fishery, had processor

shares been an option when that fishery was developed, would certainly have opted for them.

Mr. GILCHREST. Gerry.

Mr. LEAPE. Another point. And I also wanted to make sure

that—to convey this very clearly from the Marine Fish Conservation Network, that unless Congress really is able to enact the

standards or the safeguards covering those areas that I detail in

my testimony, that we really don’t—prior to expiration of the moratorium these mandatory safeguards—that we would be opposed to

having them be transferrable; because without these safeguards,

we think transferability can result in many of the concerns that

have been raised to you, Mr. Chairman, about consolidation and

lack of equity. And certainly we feel it would have an impact on

conservation.

Mr. GILCHREST. I think one of the major issues with us as far

as ITQs are concerned or IFQs is that they shouldn’t be concentrated in just a few hands.

Are there any other comments from the witness?

Mr. Hayes.

Mr. HAYES. I would like to say one thing about ITQs, if I could.

I spent the morning with the Minister of Fisheries from Iceland,

and it was a very—but in that discussion we began talking about

ITQs. The Icelandic fisheries are about the size of our North Pacific

fisheries without the crab stocks, so the finfish stocks, the pollock

stocks, the Pacific cod stocks the Sable fish stocks, largest stock in

the United States, worth billions of dollars. That is about the size

of the Icelandic fishery. So they have a significant economic value.

They manage all of their stocks through ITQs. They have taken

care of the small boat problem. They have taken care of the concentration problem. They have taken care of the processor preference problem. They have found a way over the last 15 years to—

Mr. GILCHREST. We should have had them testify here this afternoon.

Mr. HAYES. I suggested that to them, quite frankly. But they

have found a way to manage their fisheries in a way that—and this

is—I found stunning. Their biologists basically designate what the

tact will be, and he used the cod stock as an example. They have

a rebuilding plan for their cod stock, which is to rebuild it to

350,000 metric tons. Compare that to ours. Ours is 5 to 10 metric

tons of 10,000. But it is considerably slower. It is considerably

lower than what the Icelanders are talking about. In order to do

that, they had to reduce the annual take by about 40 percent for

the last 2 years. They simply went to the people who now own the

fishery, had a vested conservation interest in rebuilding it, and a

clear economic interest, went to them, explained it and they are in

the process of doing that.

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Now, that is a little different story than we are getting played

out in the United States. What he told me about the difficulties in

putting ITQ systems in place was exactly the discussion that I just

heard here, which was one side having great fear about what might

happen saying, gosh, we have got to control this in every conceivable way, and another side having an economic interest in the outcome and basically saying I have got to protect those economic interests.

Basically what they did is they gave the authority to do that to

a group of people, in this case the fisheries ministers, by statute

to go ahead and implement systems on a case-by-case basis. And

that brings me back to what our suggestion was, which is to give

this authority, without great limitations, to the Fishery Management Councils and let them apply it in the ways that are appropriate in each of the fisheries around the country.

Mr. GILCHREST. Thank you, Mr. Hayes.

Dr. Houde, Mr. Hayes, Mr. Leape, Mr. LeBlanc, thank you all

very much. You have made a great contribution here this afternoon. Thank you for coming. The hearing is adjourned.

[Whereupon, at 6:23 p.m., the Subcommittee was adjourned.]

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