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71-554 PS 2002

IMPLEMENTATION OF THE SUSTAINABLE FISHERIES ACT

AND THE REAUTHORIZATION

OF THE MAGNUSON-STEVENS

FISHERY CONSERVATION AND

MANAGEMENT ACT

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

April 4, 2001

Serial No. 107-15

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

Allen D. Freemyer, Chief of Staff

Lisa Pittman, Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeff 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 April 4, 2001 ................................................................................ 1

Statement of Members:

Abercrombie, Hon. Neil, a Representative in Congress from the State

of Hawaii, Prepared statement of ................................................................ 3

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

of Maryland ................................................................................................... 1

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

Pallone, Hon. Frank, Jr., a Representative in Congress from the State

of New Jersey ................................................................................................ 4

Underwood, Hon. Robert A., a Delegate to Congress from Guam, Prepared statement of ........................................................................................ 2

Statement of Witnesses:

Crockett, Lee R., Executive Director, Marine Fish Conservation Network . 27

Prepared statement of ............................................................................... 29

Response to questions submitted for the record ..................................... 127

Gilford, Dr. James H., Chairman, Mid-Atlantic Fishery Management

Council ........................................................................................................... 13

Prepared statement of ............................................................................... 14

Response to questions submitted for the record ..................................... 88

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

National Marine Fisheries Service, U.S. Department of Commerce ........ 5

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

Response to questions submitted for the record ..................................... 68

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

Environmental Science, Chesapeake Biological Laboratory ...................... 36

Prepared statement of ............................................................................... 38

Response to questions submitted for the record ..................................... 137

LeBlanc, Justin, Vice President, Government Relations, National

Fisheries Institute ........................................................................................ 18

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

Response to questions submitted for the record ..................................... 105

Additional materials supplied:

Furlong, Daniel T., Executive Director, Mid-Atlantic Fishery Management

Council, Letter from Western Pacific Regional Fishery Management

Council submitted for the record ................................................................. 65

Gulf of Mexico Fishery Management Council, Response to questions submitted for the record ..................................................................................... 146

Western Pacific Regional Fishery Management Council, Response to

questions submitted for the record .............................................................. 151

(1)

OVERSIGHT HEARING ON THE IMPLEMENTATION OF THE SUSTAINABLE FISHERIES ACT

AND THE REAUTHORIZATION OF THE

MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

Wednesday, April 4, 2001

U.S. House of Representatives

Subcommittee on Fisheries Conservation, Wildlife and Oceans

Committee on Resources

Washington, DC

The Subcommittee met, pursuant to call, at 2:03 p.m. in Room

1334, Longworth House Office Building, Hon. Wayne Gilchrest

[Chairman of the Subcommittee] presiding.

STATEMENT OF THE HONORABLE WAYNE T. GILCHREST, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF

MARYLAND

Mr. GILCHREST. The Subcommittee on Fisheries, Wildlife and

Oceans will come to order. Welcome, everyone, to the hearing. This

is one of many hearings that we will have dealing with the extraordinarily complex Magnuson-Stevens Act, and I hope it will be productive. I want everyone to know all of the interest groups—that

throughout the coming hearings, everyone will be represented. We

received a number of letters yesterday and today from a number

of groups that wanted to remind us of their interest, and I hope

they don’t feel slighted.

The Coastal Conservation Association of Maryland, Virginia and

North Carolina has sent us a letter. They would like to have input

in this process. Mr. Pallone has sent us a letter on this issue dealing with the Magnuson-Stevens Act and recreational fishing; the

Recreational Fishing Alliance, I believe maybe the constituent. At

any rate, as we hold these hearings, throughout process, everyone

that has any interest in this issue, and I know there are many,

they will be thoroughly represented, and their voice will be heard.

As most of you know, in 1996, Congress passed the Sustainable

Fisheries Act, which contained a number of substantial changes to

the Magnuson-Stevens Act, including provisions dealing with the

identification and rebuilding of overfished fisheries; the description

and identification of essential fish habitat; the minimization of bycatch to the extent practicable; a study on the use and effects of
2

individual fishing quotas (IFQs); the clarification of the community

development quota program; the modification of the Fishery Management Council procedures; the establishment of a fishing

capacity reduction program and the establishment of a Pacific Insular Area Fishing Agreement procedure.

The Magnuson-Stevens Act now needs to be reauthorized again.

This hearing is the first in a series of hearings which will focus on

how the 1996 amendments have been implemented and the issues

Congress should address in this effort to extend this landmark

fishery conservation law. As the new Chairman of this Subcommittee, I am committed, as are the staff and other Members

and, I am sure, an extraordinary number of people from around

this country, to thoroughly, carefully scrutinize and examine every

aspect and the very fabric of this act.

This hearing, which is round one—I never was really a boxing

fan, but that is, I guess, an apt description based on some of the

dialogue and discussion and exchange of information we have had

in the preceding days. This hearing, which is round one, will hopefully frame and clarify some of the issues that the Subcommittee

should look at in more detail during the process.

I look forward to hearing from the witnesses today, and we will

take your message to heart and deal with it effectively and also

continue a dialogue with all of the witnesses, I hope, over a long

period of time.

[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 to the first of what I hope will be a number

of hearings on the important topic of the reauthorization of the Magnuson-Stevens

Fishery Conservation and Management Act.

As most of you know, in 1996, Congress passed the Sustainable Fisheries Act

which contained a number of substantial changes to the Magnuson-Stevens Act including provisions dealing with: the identification and rebuilding of overfished fisheries; the description and identification of Essential Fish Habitat; the minimization

of bycatch (to the extent practicable); a study on the use and effects of Individual

Fishing Quotas (IFQs); the clarification of the Community Development Quota

(CDQ) program; the modification of the Fishery Management Council procedures;

the establishment of a fishing capacity reduction program; and the creation of a Pacific Insular Area Fishing Agreement procedure.

The Magnuson-Stevens Act now needs to be reauthorized again. This hearing is

the first in a series of hearings which will focus on how the 1996 amendments have

been implemented and the issues Congress should address in this effort to extend

this landmark fishery conservation law. As the new Chairman of this Subcommittee,

I am committed to carefully examine every aspect and the very fabric of this Act.

This hearing, which is round one, will hopefully frame and clarify some of the

issues that this Subcommittee should look at in more detail during this process.

I look forward to hearing from our witnesses today and in subsequent Magnuson

reauthorization hearings.

Mr. GILCHREST. I will ask unanimous consent that the ranking

member, Mr. Underwood’s, statement be submitted for the record.

[The prepared statement of Mr. Underwood follows:]

Statement of The Honorable Robert Underwood, a Delegate to Congress

from Guam

Mr. Chairman, thank you for holding this hearing today on the reauthorization

of the Magnuson–Stevens Fishery Conservation and Management Act.
3

The last reauthorization of this law, the Sustainable Fisheries Act passed in 1996,

made broad changes to almost every aspect of our fisheries management system

from the requirements to reduce bycatch and end overfishing to the new requirements to protect fisheries habitat. Much of this effort was driven by a decline of fish

stocks in many areas of the country and a desire to ensure that fisheries disasters

like that which occurred in New England in the mid–90’s would not occur elsewhere.

Without question, the implementation of these new provisions was a challenge for

both the National Marine Fisheries Service and the Fishery Management Councils.

The lack of adequate scientific data with respect to stock abundances and habitat

needs has made this task even more challenging, as well as somewhat frustrating

for those on the outside who have an interest in seeing these stocks managed in

a sustainable manner, be it the conservation community or the fishing industry.

Perhaps even more frustrating is the fact that while implementation has continued, the very fisheries disasters we sought to avoid have continued to occur. Some

will argue that this is because the Sustainable Fisheries Act did not go far enough,

and more changes are needed. Others will say that SFA has not had sufficient time

to have an effect and we should not rush to impose more restrictions. Regardless,

of your view on this, I think all sides will agree that we must have strong conservation and management of our fishery resources if they are to be truly sustainable.

To that end, I look forward to hearing from our witnesses today on how we can

improve our fisheries management system and to bring an end to the cycle of fisheries disasters, whether through new legislation or better implementation of existing law. I also look forward to the hearings we will hold in the months to come,

and pledge to work with you, Mr. Chairman, to ensure the long-term health of our

fisheries and our fishing industry.

Mr. GILCHREST. I now recognize Mr. Abercrombie.

Mr. ABERCROMBIE. Thank you very much, Mr. Chairman. I have

not usurped Mr. Underwood’s position but rather, given the schedule of the Congress, there is a competing obligation he has which

he could not avoid, and so, I am taking his place today with your

kind permission. And I just want to tell you that it is a pleasure

to be with you and particularly the gentleman from New Jersey as

well. It is always a great opportunity to work together to accomplish good things, and thank you for entering Mr. Underwood’s

statement.

Mr. GILCHREST. Thank you, Mr. Abercrombie.

[The prepared statement of Mr. Abercrombie follows:]

Statement of The Honorable Neil Abercrombie, a Representative in

Congress from the State of Hawaii

Thank you Mr. Chairman, and good morning. I want to stress how pleased I am

that we are holding this hearing today, and that further hearings are planned, on

the Magnuson–Stevens Act, the underpinning of our nation’s fisheries management

system. I would also like to thank the panel members for taking time out of their

schedules to explain to us their views on the current fisheries management program

and how we can improve it.

One of the original main purposes of the Magnuson–Stevens Act was the exclusion of foreign fishing fleets that were overharvesting and decimating our national

resources. Obviously we were successful at achieving that goal, and we have now

an extensive domestic fleet. I think it is important that we work as hard as we possibly can to implement and enforce laws and regulations that ensure the long term

survival and sustainability of our fisheries stocks at levels that allow continued commercial and recreational harvests for our own fishermen.

It is important to remember in these hearings that though we may hear different

views on how best to manage these precious commodities, we all want the same

thing. We want fish that live and breed at levels high enough to sustain both themselves and this fishing industry. How we reach this goal seems to be the subject

of most of our debates.

The need for adequate science cannot be ignored, nor can the need for fishermen

to have the ability to continue to support themselves and their families. Conserva-
4

tionists fight for the rights of the fish not to be driven to extinction, and all viewpoints must admit that extinction would serve nobody’s purpose.

This is an issue which in the past has been extremely divisive, but in this new

Congress, with our emphasis on bipartisanship, I think it very important that we

work together and keep our eyes on the end goal - to keep all commercial and recreational fisheries a sustainable part of our economy for the foreseeable future. To

do that, we must have healthy resources. Thank you.

Mr. Saxton, opening statement?

Mr. Pallone?

STATEMENT OF HONORABLE FRANK PALLONE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. PALLONE. Yes, thank you, Mr. Chairman. I wanted to thank

you for holding the hearing today on this important legislation on

the Magnuson-Stevens Act, and I think it will probably be the most

important issue that we consider in this Subcommittee this year.

The 1996 reauthorization of Magnuson-Stevens, the Sustainable

Fisheries Act, was intended to ensure that our fisheries would be

managed on a sustainable basis. Without a strong fishery resource,

you can’t have a strong fishing industry. To that end, it required

that the councils reduce bycatch and end overfishing in the fisheries they manage. It also required them to identify the habitat

these fisheries need to survive and thrive and reduce the impact

that fishing had on these habitats.

Yet, Mr. Chairman, the latest Status of the Fisheries of the U.S.

report from the Secretary indicates that more than 100 stocks of

fish are considered to be overfished, and we continue to see fisheries decline and disasters declared. In turn, Federal tax dollars

must be spent to provide disaster assistance and to buy out fishing

vessels to reduce the fleet.

So what is happening? Were the provisions that we established

in 1996 not strong enough, or have the councils and NMFS not

been as diligent in their implementations as we believed they

would be? Or is it, as some believe, too early in the process to determine the effectiveness of the Sustainable Fisheries Act? Clearly,

we need to answer these questions if we are going to bring an end

to fisheries disasters and the need for taxpayer-funded buyouts and

bailouts.

Mr. Chairman, I think we also need to look at the deplorable status of our fisheries data. The Status of the Fisheries of the U.S.

report indicates that there are more than 600 stocks for which the

biomass is either unknown or undefined, thereby making it impossible to determine if the fishery is overfished. This should be of

great concern. Also of concern for many in the fishing industry, I

know, are numerous stocks that are considered to be overfished

and are being managed with data that is 2, 3 or even 4 years old,

perhaps even older, requiring quota restrictions that some feel are

unnecessary.

We need to give serious consideration to what needs to be done

to improve our data collection and restore the confidence of the

fishing industry and the environmental community in the data we

use to manage these resources. Now, again, Mr. Chairman, I want

to thank you for holding this hearing. I know there are going to

be others, and I really think this is a critical issue, as you know,
5

not only for New Jersey but for the rest of the nation as well.

Thank you.

Mr. GILCHREST. Thank you, Mr. Pallone.

Our witnesses today are Dr. William Hogarth, acting assistant

administrator for fisheries, National Marine Fisheries Service,

National Oceanic and Atmospheric Administration from the Department of Commerce—welcome, Dr. Hogarth; Dr. James Gilford,

Chairman, Mid-Atlantic Fishery Management Council—welcome,

Dr. Gilford; Mr. Justin LeBlanc, vice-president of government relations, National Fisheries Institute—welcome; Mr. Lee Crockett, executive director, Marine Fish Conservation Network—welcome, Mr.

Crockett; and Dr. Edward Houde, professor, University of Maryland Center for Environmental Science Chesapeake Biological Laboratory. Dr. Houde, thank you very much for your attendance here

this afternoon.

We will begin with Dr. Hogarth.

STATEMENT OF DR. WILLIAM T. HOGARTH, ACTING ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE

FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATIVE, U.S. DEPARTMENT OF

COMMERCE

Dr. HOGARTH. Thank you, Chairman Gilchrest, Members of the

Subcommittee. I appreciate the opportunity to testify today on the

reauthorization of the Magnuson-Stevens Fisheries Conservation

and Management Act. I am Bill Hogarth, the Acting Assistant Administrator for Fisheries in the Department of Commerce.

Mr. GILCHREST. Dr. Hogarth, can you pull your microphone a little closer, please?

Dr. HOGARTH. Okay.

Mr. GILCHREST. Is it on?

Dr. HOGARTH. Is it on?

Mr. GILCHREST. Yes, it is on.

Dr. HOGARTH. Let me say up front that we feel that the future

health of the nation’s fisheries is anything but bleak. The U.S. consumers spent an estimated $52 billion for fishery products in 1999.

The commercial marine fishery industry contributed $27 billion to

our gross national product, while recreation fishermen spent $9 billion, which translates into more than $25 billion to the U.S. economy.

Mr. Chairman, we believe that these numbers will improve as we

continue to meet conservation mandates under the Sustainable

Fisheries Act (SFA) of 1996.

First today, I would like to update the Subcommittee about

NOAA’s fishery actions to implement three key conservation provisions in the SFA: overfishing, bycatch and essential fish habitat.

NOAA Fisheries continues to address overfishing through improved

conservation guidelines and establishing updated overfishing definitions for virtually all Federally-managed fisheries. We have

worked closely with the Regional Fishery Management Councils to

resolve overfishing criteria and their management, as well as, flexibility in the process, and we are moving ahead with new management programs.
6

I am pleased to report that we have seen tangible stock improvements in our 75 approved rebuilding plans. According to our most

recent annual report to Congress on the status of fisheries in the

U.S., the number of stocks with acceptable harvest rates and those

that are not overfished both increased last year. We expect this

trend to continue, and in fact, by December of this year, we expect

to have all 92 overfished stocks to have a rebuilding plan underway.

NOAA Fisheries and the councils are also making major progress

at reducing bycatch. In the Gulf of Mexico and in the South Atlantic Fish-Shrimp Trawl Fishery, fishermen now use bycatch reduction devices which have resulted in a decline in finfish bycatch

level even up to about 50 to 60 percent in red snapper bycatch in

the Gulf. NOAA Fisheries continues to work closely with the industry through the Gulf and South Atlantic Foundation in research on

fishing gear to reduce bycatch.

We have also identified and described the essential fish habitat

in all 40 existing fishery management plans. However, three major

issues have emerged since we began implementing the essential

fish habitat (EFH) provision. First, a number of parties have asked

why the EFH designations appear to be so expansive. Second, some

environmental and fishing groups believe NOAA Fisheries and the

councils have not gone far enough to minimize fishing impacts of

EFH. And third, a coalition of nonfishing industries have expressed

concerns about the consultation process with Federal agencies.

Mr. Chairman, I address these three issues in my written testimony, and I would be happy to answer any questions today. In

fact, we have a GAO report which was released last year which

says to date, there is little evidence that the consultation process

has adversely affected planned projects or that the broad designations have resulted in the most valuable habitats being overlooked.

They looked specifically at the Southeast Region of nine projects

and showed that none of them had caused any delay in any

projects and that they were being implemented as Congress had intended.

The SFA also provided for many annual and one-time reports.

NOAA Fisheries has submitted four annual reports to Congress on

the Status of Fisheries of the U.S. In addition, the National Research Council (NRC) prepared a report on individual fishery

quotas and the community development quota program in Western

Alaska, and the United States Atlantic States Marine Fisheries

Commission coordinated a report on the Government’s role in controlling harvesting capacity.

Another report prepared by the NRC, Sustaining Marine Fisheries, examined a wide range of management systems and evaluated their potential contribution to sustainable fisheries. The agency has completed several SFA-mandated reports and helped shape

and direct some critical scientific missions.

As you know, NOAA Fisheries completes a large volume of rulemaking and makes determinations on any given action under six

statutes and three executive orders, including the National Environmental Policy Act and the Regulatory Flexibility Act. Many of

these determinations open the agency to judicial challenge. We

have initiated an agency-wide project to make our decisions more
7

litigation-proof and to more fully take advantage of the decision

making tools provided.

I would like to turn now to the Magnuson-Stevens Act reauthorization. As you know, we are in a new administration, and we have

not had time to develop an official position on the reauthorization.

However, I would like to touch on a few issues that the stakeholders have raised to us as we have been talking around the country. The fundamental benchmark of the SFA is provision of mandate and the elimination of overfishing in Federally-managed fisheries. Since issuing national standard guidelines in May 1998,

NOAA Fisheries has been helping the councils find the needed

flexibility to create overfishing definitions, but there is still some

confusion, and there may need to be some clarification in this area.

The SFA also established a 4-year moratorium on the submission

of new individual fishery quotas (IFQs) and mandated reports of

both IFQs and community development quotas (CDQs.) These reports conclude that IFQs and CDQs have conservation and economic benefits and should be a management tool. However, concerns remain about their use.

Since Section 312 of the SFA provides for public and private

partnerships and fishing capacity reduction programs, our efforts to

implement these provisions have revealed some time-consuming

complications that are discussed further in my testimony. The SFA

also addresses the hardship associated with disaster relief in Section 312(a). The broad and flexible nature of the program have

caused some of our constituents to raise questions about the criteria applied to the designation of a commercial fishery failure and

a fishery resource disaster and the Federal and State Government

process for approving funded activities.

Section 305(h) calls for the creation of a central registry system

for limited access permits, the so-called lien registry. This provision

continues to be the subject of stakeholder discussion and is being

reviewed pending resolution of various issues associated with implementation. As for seabird protections, the Endangered Species

Act is the primary statutory authority for addressing the incidental

take of listed seabirds. Although the Magnuson-Stevens Act provides NOAA Fisheries with authority to reduce seabird incidental

takes, there is no specific requirement, since seabirds are not identified as bycatch.

Finally, Mr. Chairman, in simplifying and tightening up the approval process for FMPs and amendments in 1996, the SFA inadvertently created two distinct review processes that resulted in timing discrepancies in regulatory actions. On occasion, the Secretary

has had to make an approval decision of a plan or amendment

without having the benefit of public comment or has been unable

to return an inadequate plan immediately to the council for modification and timely approval.

In conclusion, NOAA Fisheries has made great strides in implementing the SFA, but we have a long way to go. I want to thank

you for the opportunity to testify today and discuss the implementation and reauthorization. I look forward to working with you and

other Members of the Committee on this and other fishery-related

issues in the 107th Congress. I am prepared to respond to any

questions you and the Members may have.
8

Thank you.

[The prepared statement of Dr. Hogarth follows:]

Statement of William T. Hogarth, Ph.D., Acting Assistant Administrator for

Fisheries, National Marine Fisheries Service, U.S. Department of

Commerce

Mr. Chairman and Members of the Subcommittee, thank you for inviting me to

this hearing on reauthorization of the Magnuson-Stevens Fishery Conservation and

Management Act (Magnuson-Stevens Act). I am William T. Hogarth, the Acting Assistant Administrator for Fisheries in the National Oceanic and Atmospheric Administration/Department of Commerce. In your invitation of March 19, 2001, you indicated this initial hearing would focus on three items: (1) progress in implementing

the 1996 Sustainable Fisheries Act (SFA) amendments; (2) reports mandated by the

SFA; and, (3) some issues that our stakeholders have suggested be reviewed during

the reauthorization process.

THE 1996 SFA AMENDMENTS: NEW DIRECTIONS IN U.S. FISHERIES POLICY

The Sustainable Fisheries Act (SFA) redirected U.S. fisheries policy in many important areas, but particularly away from promoting growth in the harvesting sector, toward conservation and sustainability of fisheries. NMFS and the regional

fishery management councils have worked hard the last 4 years to implement those

changes. Since 1996, NMFS has:

• established new overfishing definitions and thresholds, and developed detailed

guidelines for implementation of national standard 1, as well as for the new national standards, in particular national standards 8 and 9 on impacts on communities and by-catch issues;

• placed much more emphasis on producing sound and fair regulatory economic

and social impact assessments (some in response to Magnuson-Stevens Act

mandates, and others pursuant to different laws);

• identified and described essential fish habitat (EFH) in all 40 existing fishery

management plans;

• continued to promote and implement some form of limited entry in practically

all Federally managed fisheries; and

• played an active role in the preparation of a number of reports (some of them

annually while others just once) that help us monitor progress in meeting SFA

goals and consider all the implications of complex and contentious policy issues.

I would like to describe in more detail our efforts to respond to three key provisions of the SFA that are critically significant in addressing long-term conservation

goals: (1) overfishing, (2) bycatch, and (3) essential fish habitat. All three deal, directly or indirectly, with the management of fishing operations, and all of them

place a priority on resource conservation. I use the word conservation in the broad

sense to include conservation, protection, and/or rebuilding of directly targeted fish

stocks, of fish and other marine life that is taken incidentally in fishing operations,

and of the marine habitat that is vital to targeted stocks, protected species, and to

all living marine resources.

Overfishing

The future health of the Nation’s fisheries is anything but bleak, as some might

have us believe. Although there is much work still to do, we have made great strides

in establishing the framework to meet conservation mandates under the MagnusonStevens Act, and in implementing new management programs to ensure fisheries

at sustainable levels in the future. The foundation for progress is now in place with

the publication of revised guidelines for conservation and the establishment of updated overfishing definitions for virtually all Federally managed fisheries. Where

differences have occurred regarding overfishing criteria and their measurement, we

have worked with the Councils and others to overcome those differences and move

ahead with new management programs.

We have seen tangible improvements in many stocks. Our annual report to Congress on the Status of Fisheries in the United States provides a snapshot of how

the Nation’s marine fisheries are faring and progress we have made in their management. We now have 75 approved rebuilding plans, of which 45 have been implemented in just the last 3 years. According to the latest report, the number of stocks

with acceptable harvest rates and those that are not overfished both increased appreciably in the last year. In fact, nine stocks have been removed from the overfished list, and we expect many more will be similarly reclassified in the coming

years. Rebuilding efforts will continue for many of these stocks until they reach

maximum sustainable levels. Examples of Federally managed fisheries that have ex-
9

hibited substantial resource recovery are Northeast scallops and haddock, and King

mackerel in the Southeast.

As I mentioned earlier, although progress has been made, we have much more

work to do. While the number of stocks that are not overfished increased last year,

the number of stocks that were found to be overfished increased significantly also.

This may, at first, appear contradictory. However, most of the increase was not because of a sudden decline in those stocks, but resulted either from new overfishing

definitions or new stock abundance data becoming available. As this data becomes

available, the total number of stocks for which determinations can be made changes.

For example, there were an additional 37 stocks found to be overfished in 2000.

However, 32 of those were reclassified from unknown/undefined to overfished because new overfishing definitions or biological information became available. Increases in the number of overfished stocks are to be expected as we continue to

transition to the higher standards of the SFA.

Before leaving this topic, I would point out that rebuilding overfished stocks is

just one part of the management equation. The law requires us to consider the

plight of the fishing industry and dependent communities as we make management

decisions. With the additional funding that Congress has provided, we have expanded our efforts to collect necessary economic and social information, and have

significantly improved our impact analyses. We have also revised our guidance in

this area, and are working closely with Council and NMFS staffs to implement that

guidance. During the current fiscal year, we will hold at least six workshops around

the country to discuss the new guidance and help apply the guidance to regional

issues. With the continued support of Congress, we hope in the near future to have

comprehensive data bases, as well as analytical models and other techniques, to enable us to complete more thorough impact analyses for decisionmakers.

Bycatch Issues

The SFA added national standard 9, which stipulates that conservation and management measures shall minimize, to the extent practicable, bycatch and mortality

associated with bycatch. Incidental harvests of finfish remain a major concern in the

Gulf of Mexico shrimp trawl fishery where measures to combat this problem predated the SFA. In recent years, bycatch has become a national issue that affects

many gear types, principally trawls and longlines, in a growing number of Federally

managed fisheries.

We believe that NMFS and the Councils are making meaningful progress in dealing with bycatch, although the problem is highly specific to individual fisheries and

gear types and, therefore, resists uniform solutions. In the Gulf of Mexico shrimp

trawl fishery, regulations requiring the use of Bycatch Reduction Devices (BRDs)

have been implemented progressively, with the result that bycatch levels of finfish,

in particular red snapper, are declining. Regulations addressing bycatch problems

have been instituted in many other Federally managed fisheries.

The agency has continued to support gear research that focuses on this problem.

One example is NMFS-supported research on technical means to reduce seabird

mortality in longline fisheries. This work has been applied domestically and in the

1999 FAO-sponsored International Plan of Action for Reducing the Incidental Catch

of Seabirds in Longline Fisheries.

Also of critical concern is the bycatch problem in a number of Federally managed

fisheries involving incidental takings of protected species. In these situations, several laws may apply. Issues related to some seabirds fall under the Endangered Species Act and those related to turtles and marine mammals often are addressed by

both the ESA and the Marine Mammal Protection Act (MMPA). In some cases, other

laws such as the Migratory Bird Act apply. Examples abound, but the best known

are sea turtles in the shrimp trawl and many finfish fisheries; seabirds in long-line

fisheries; and, marine mammals in some commercial fisheries using various gear.

Essential Fish Habitat

The provisions addressing EFH in the 1996 SFA created new responsibilities for

NMFS and the Councils. Section 303 (a) (7) requires that each fishery management

plan describe and identify EFH and minimize to the extent practicable the adverse

effects of fishing on EFH. In addition, the SFA requires that we identify other actions to encourage the conservation and enhancement of EFH for Federally managed fisheries. The SFA also assigned to the Secretary of Commerce the roles of consulting and coordinating with other Federal agencies with respect to actions that

may adversely affect EFH. NMFS has heard both praise and concern from our constituents over the increased emphasis we are placing on habitat conservation to implement the EFH provisions of the SFA. We are making progress and are expanding

research on identifying, protecting and understanding EFH which is hampered by
10

the limited available information about the habitat requirements of managed fish

species.

The EFH provisions of the SFA provided important new tools for NMFS and the

Councils to manage sustainable fisheries. By law, we now must ensure that our

fishery management decisions consider the potential effects of fishing on the habitats needed by commercially and recreationally important species of fish for their

basic life functions. Likewise, we must ensure that our recommendations to Federal

and state agencies regarding non-fishing activities are focused on measures needed

to conserve the habitats that support managed fisheries.

Three major issues have emerged regarding implementation of these EFH provisions. First, a number of parties have asked why the EFH designations appear to

be so expansive. It is true that EFH designations encompass most of the coastal waters and EEZ. However, it is important to realize that a map of all currently identified EFH in U.S. waters comprises the aggregate of separate EFH designations for

more than 700 managed species, each with 2 to 4 distinct life stages and seasonal

differences in habitat requirements, and many with EFH designated as only bottom

habitats or only surface waters. For individual species or life stages, EFH is generally a subset (often 50 to 70 percent) of the total available habitat. The specificity

of EFH designations depends on the amount of information available. Much more

scientific information is necessary to identify the type and quantity of habitats necessary to achieve a desired level of fish production, or even to specify which habitats

contribute most to the growth, reproduction, and survival of the target species.

NMFS is continuing to work with the Councils, scientific and research communities

to revise and refine EFH designations as additional information becomes available.

Second, some environmental and fishing groups have said that NMFS and the

Councils have not done enough to minimize the adverse impacts of fishing on EFH.

Unfortunately, there is limited information to demonstrate a direct link between

physical habitat disturbance from fishing gear and decreases in productivity, survival, or recruitment of managed fish species. Where sufficient information is available, NMFS and the Councils are incorporating measures into our management decisions to minimize the effects of fishing on EFH. In addition, NMFS is working in

partnership with other agencies and institutions to conduct new research to improve

our understanding of the effects of fishing on bottom habitats. NMFS and the Councils are also preparing new environmental impact statements for most of our FMPs

to evaluate in detail the effects of fishing on EFH and a range of measures that

could be taken to minimize adverse effects. NMFS also is organizing a symposium

on the effects of fishing activities on benthic habitats, tentatively scheduled for early

2002.

Third, a coalition of non-fishing industries has expressed concern about the process for consultations between NMFS and other Federal agencies whose actions may

adversely affect EFH. The EFH consultations and commenting provisions of the

Magnuson-Stevens Act are the only existing mandate that requires Federal agencies

to address specifically how proposed actions might affect the habitats needed by

Federally managed fish species. To streamline the efforts and enhance efficiency,

NMFS has strongly urged Federal agencies to wrap EFH consultations into existing

environmental review procedures under other laws, and most consultations are

being handled with that approach. Federal agencies are assessing the impacts of

their actions on important fish habitats, and their decisions are responding to

NMFS recommendations on how to avoid or minimize those impacts. NMFS considers this process a significant opportunity to provide scientific advice to other

agencies and improve the management of sustainable fisheries.

REPORTS MANDATED BY THE SFA

Associated with these strengthened and new Magnuson-Stevens Act conservation

objectives are many reporting requirements. There are two kinds of reports on

which I would like to comment. First, there are annual reports that NMFS is required to prepare, for example, the annual reports to Congress on the Status of

Fisheries of the United States, which we have now issued four times. The second

type of report is typically a one-time study with broad policy implications. Examples

include reports prepared by the National Research Council (NRC) on individual fishing quotas and the community development quota program in western Alaska, and

a report coordinated by the Atlantic State Marine Fisheries Commission on the government’s role in controlling harvesting capacity. We have completed and carefully

considered all the reports and studies that were mandated by the SFA. The reports

are all unique in that they deal with specific issues for different programmatic ends,

but they have in common that they have served highly useful purposes and provided

us substantial direction toward more sustainable fisheries.
11

The agency has completed other SFA-mandated reports that have helped shape

and direct some critical scientific missions. The Fishery Research Plan has assisted

in guiding and prioritizing our fisheries science programs, and the Fishery Ecosystem Management Study supported NMFS efforts to do the science required for

this more comprehensive and holistic approach to management. Another report

prepared by the NRC, Sustaining Marine Fisheries, examined a wide range of management systems, evaluating their potential contribution to sustainable fisheries. Increasingly, these studies advocate a broad view of how to deal with fisheries management issues. In addition, the agency has successfully completed reports on (1)

bycatch and incidental harvest research, (2) peer-reviewed red snapper research and

management, (3) stock-specific identification of salmon in ocean fisheries, and (4)

harvest capacity reduction in New England fisheries.

Some one-time reports, such as the NRC studies of rights-based management systems, have enabled us to examine complex issues like individual fishing quotas

(IFQs), through the eyes of outside experts and our commercial, recreational, and

environmental constituencies. Still other reports, like the Federal Investment Study

on the governmental role in the expansion and contraction of fish harvesting capacity, were valuable mainly because they concentrated on the implications and effects

of government programs.

Finally, I think these mandated reports have helped us identify more clearly the

scientific and technical issues that need additional study and further deliberation.

An obvious example is rights-based management systems, which many agree involve

sensitive issues. With the completion of the NRC report on IFQs, Sharing the Fish,

NMFS and the Councils have a much better understanding of the economic and social issues that will have to be addressed as we develop a national policy on rightsbased management systems. NMFS will continue its review of these and other management systems as it works toward sustainable fishing in all Federally managed

fish stocks.

MAGNUSON-STEVENS ACT REAUTHORIZATION

The SFA formally reauthorized the Act through 1999. The Administration will be

developing its position on Magnuson-Stevens Act reauthorization. Accordingly, we

have established an internal process, including a designated working group, for soliciting inputs from the NMFS headquarters and field offices and from the eight

Councils. Because of Native American interests in certain fisheries and their roles

and responsibilities as co-managers of associated resources, our process for soliciting

input will also include potentially affected tribal governments. As we move through

the reauthorization process, NMFS will provide specific comments on these issues.

The issues surrounding reauthorization of the Magnuson-Stevens Act are vitally important to those who are engaged in the fisheries.

We have heard from many of our constituents and the Councils regarding their

concerns. Based on those discussions and our management experiences, the following is a list of issues that may be considered during the reauthorization process.

Overfishing Definitions and Thresholds: National Standard 1 and Section 304 (e)

A fundamental benchmark in the 1996 SFA is the provision that mandates elimination of overfishing in Federally managed fisheries. NMFS has devoted substantial

time and effort since 1996 to create overfishing definitions and thresholds that conform with the Magnuson-Stevens Act mandates and can be applied to many different types of Federally managed fisheries.

We believe that we succeeded substantially in meeting this charge with the

issuance in May 1998 of guidelines for implementing national standards, including

national standard 1, which deals with the prevention of overfishing. We have

worked and continue to work closely with all the Councils to help them implement

these guidelines in their work on FMPs.

During this process, we received questions from fishermen, environmentalists and

all our constituencies on new definitions and thresholds and our annual report on

the status of stocks that applies these standards to about 900 distinct fisheries.

Some are concerned about a perceived lack of flexibility in developing these definitions and associated management measures. Others feel that in moving from

recruitment- to maximum sustainable yield-based definitions, we have effectively

raised the conservation standard too high, unnecessarily depriving commercial and

recreational users of fishing privileges.

Individual Fishing Quotas: Section 303 (d)

The SFA established a 4-year moratorium (to October 1, 2000) on submission of

new IFQs and mandated reports on IFQs and CDQs, which were completed in 1998.

These reports, conducted by the National Research Council (NRC), concluded that

existing IFQs and CDQs generate conservation and economic benefits, including
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mitigation of overcapacity, but that many fishing industry constituencies have concerns about their implications, in particular for small fishermen and fishing communities. The NRC report on IFQs, Sharing the Fish, recommended that IFQs be made

available as one tool among others that the Councils could use if desired, and that

the Congress and NMFS should develop policies on several related issues, such as

consolidation and transferability of quota shares. Late last year, Congress extended

the IFQ moratorium to October 1, 2002, but, in the interim, authorized two Councils

to study and prepare for them. We will continue to work with the Councils, Congress and our constituents to make these tools available in a manner that is appropriate for the regions and stocks under consideration.

Fishing Capacity Reduction Program: Section 312 (b-e)

Government programs that buy out and thereby reduce overcapacity are another

means of achieving a fundamental goal of the Magnuson-Stevens Act. Most of these

buyouts have been funded with public resources, but another variety would include

private sector participation through the payment by industry of fees to pay off the

loans required to fund the buyouts. Such public and private buyout partnerships

were provided for in the 1996 SFA Section 312 (b-e) provisions that detail the rules

for the Fishing Capacity Reduction Program. However, efforts to implement these

provisions have revealed concerns that those requirements may be too complicated

and time-consuming, particularly with respect to changes in the relevant fishery

management plans and the mandatory regulatory assessments.

Disaster Relief: Section 312 (a)

The resource downturns that are evident in so many of our Federally managed

fisheries have caused hardships for many fishermen and their respective fishing

communities. One SFA program that addresses this need and can also support conservation is fisheries disaster relief. Federal payments to fishing communities and

industry groups have been made increasingly frequently under Section 312 (a), the

SFA provisions that deal with Fisheries Disaster Relief. The program is much

broader and more flexible than most, and some of our constituencies have raised

questions about the criteria or standards that govern the designation of a commercial fishery failure and a fishery resource disaster, the use to which disaster relief

funds are put, and the Federal and State governmental process for approving activities funded under Section 312 (a).

Central Registry System for Limited Access Permits: Section 305 (h)

The SFA in Section 305 (h) calls for the creation of a central registry system for

limited access permits, the so-called lien registry. This provision continues to be the

subject of discussions among stakeholders and is being reviewed pending resolution

of various issues associated with implementation of the registry.

Seabirds and the Management of Bycatch

The ESA is the primary statutory authority for addressing the incidental catch

of seabirds in fisheries that may potentially take an endangered seabird species. Although the Magnuson-Stevens Act provides NMFS with authority to implement

measures to reduce seabird incidental takes, the Act does not specifically require the

implementation of measures to reduce incidental catches of seabirds, since seabirds

are not currently defined as bycatch. It should be noted, too, that the United States

has agreed in 1999 to a United Nations Food and Agriculture Organization (FAO)-

sponsored international plan of action to reduce seabird mortality in longline fisheries, and committed to develop a national plan to implement the FAO agreement.

Timeliness of the Management Review Process

In simplifying and tightening up the approval process for fishery management

plans and amendments in 1996, the SFA created two distinct processes: the review

process for plans and amendments, and the review and implementation process for

regulations implementing those plans and amendments. This new system has resulted in timing discrepancies. On occasion, the Secretary has had to make an approval decision on a plan or amendment without having the benefit of public comment on the proposed regulations. Concerns have also been raised about the Secretary’s inability to return an inadequate plan immediately to the Council, so that

it can make changes and have the plan approved in a timely fashion.

CONCLUSION

Mr. Chairman, this concludes my testimony. Again, I want to thank you for the

opportunity to testify today and discuss the implementation and reauthorization of

the Magnuson-Stevens Act. The Administration looks forward to working with you

and other Members on the Committee on this and other fisheries-related issues in
13

the 107th Congress. I am prepared to respond to any questions you and other Members of the Committee may have.

Mr. GILCHREST. Thank you, Dr. Hogarth.

Dr. Gilford?

STATEMENT OF DR. JAMES H. GILFORD, CHAIRMAN, MIDATLANTIC FISHERY MANAGEMENT COUNCIL

Mr. GILFORD. Thank you, Chairman Gilchrest.

I am here on behalf of the chairman of the eight Fisheries Management Councils. I want to thank you for the opportunity to

present our views. The council chairmen believe that— Mr. GILCHREST. Excuse me, Dr. Gilford. Some of our Members up

here can’t quite hear you, sir.

Mr. GILFORD. The council chairmen believe the MagnusonStevens Act, as amended in 1996, fundamentally is a good piece of

legislation. We also believe it is working. Many of our most important fisheries are recovering, and we are seeing significant improvements in a majority of the overfished stocks which are under

management. In the past year, winter flounder, white hake, American plaice and yellowtail flounder were removed from the National

Marine Fisheries Service list of overfished fisheries. I anticipate

that loligo squid, summer flounder and scup will likewise be removed from that list in the very near future, perhaps by the end

of the year.

From the council chairmen’s point of view, the changes suggested

in our written testimony would serve to enhance and improve the

act. Our testimony, incidentally, concerns only reauthorization

issues on which the council chairmen have reached consensus.

Some of the concerns that council chairmen recommend for consideration by the Committee are administrative, while others relate

more directly to management measures. With respect to management matters, we recommend the following: resolve problems that

are associated with MSY-based definition of overfishing. The council chairmen would very much appreciate the opportunity to work

with the Subcommittee in seeking some resolution to that problem.

Secondly, modify the definition of essential fish habitat or provide specific guidance on how to use different types of data in defining and designating essential fish habitat. Third, give the councils authority to regulate vessels involved in nonfishing activities

that adversely affect fisheries or essential fish habitat. Four, allow

the councils greater latitude in specifying rebuilding periods for

overfished stocks. Five, end the prohibition on the use of IFQs or

ITQs, and allow the councils maximum flexibility in designing IFQ

systems and setting fees to be charged for the initial allocations,

first sale and leasing of IFQs and allow the councils discretionary

authority to establish fees to help fund observer programs.

With respect to those items which relate more directly to administrative matters, we recommend the following: authorize locality

pay for council members in the continental United States; authorize councils to receive funds or support from local, state and Federal agencies and nonprofit organizations; three, authorize councils

to hold closed meetings for the purpose of reviewing research proposals; four, authorize the National Marine Fisheries Service to col-
14

lect economic, proprietary or confidential commercial or financial

information relevant to the development of fishery management

measures; five, mandate the National Marine Fisheries Service to

consult with the relevant councils before disapproving fishery

management plans, amendment and framework actions submitted

by the councils for National Marine Fisheries Service approval; six,

allow concurrent approval of plans and amendments as well as regulations and provide a 15-day disapproval process. Also, allow the

councils the opportunity to resubmit responsive measures rather

than submit a complete fisheries management plan or amendment

as now required.

Seven, exclude the National Marine Fisheries Service regional

administrators from voting on emergency or interim actions requested by the councils; and eight—

Mr. GILCHREST. Could you say that again? I am sorry; could you

say that last—

Mr. GILFORD. The last one?

Mr. GILCHREST. Yes, sir.

Mr. GILFORD. Yes, sir. Exclude the National Marine Fisheries

Service regional administrator from voting on emergency or interim

actions requested by the councils. I will explain that later if you

wish me to, sir.

Eight, expand cooperative State-Federal enforcement programs

and consider establishing permanent funding for such programs.

There are four matters in addition to the council chairmen’s recommendations that I hope the Subcommittee will consider, namely,

one, a seat for the State of New York on the New England Fishery

Management Council; two, eliminate the requirement of newspaper

notifications of meetings; three, permit the direct transfer of council funds from the National Marine Fisheries Service; and lastly

but most importantly mandate a mechanism to assure compatible

state and Federal management measures for interjurisdictional

stocks managed by both the Atlantic States Marine Fisheries Commission and the Mid-Atlantic and New England Fisheries Management Councils.

Thank you again for the opportunity to present the recommendations of the council chairmen for your consideration, and let me

also make one last comment, and that is that the council chairmen

are very appreciative of the support and the effort we have in

working jointly with the National Marine Fisheries Service. They

are very capable, competent and have a high degree of integrity.

Nothing in our comments is meant to reflect differently.

Thank you.

[The prepared statement of Dr. Gilford follows:]

Statement of James H. Gilford, Ph.D., Chairman, MidAtlantic Fishery Management Council

On behalf of the other seven Council chairmen and myself, I thank the Members

of the Subcommittee for the opportunity to present our views. First let me say the

Council chairmen believe the Magnuson–Stevens Act as amended in 1996 is fundamentally a good piece of legislation and it is working. Many of our most important

fisheries are recovering and we are seeing significant improvements in a majority

of the overfished stocks under management. During the past year winter flounder,

white hake, American plaice, yellowtail flounder were some of the species removed

from NMFS’ list of overfished fisheries. Loligo squid, summer flounder and scup

should likewise be removed from that list by the end of this year. The changes I
15

am suggesting today are not substantial, but they will serve to enhance and improve

the Act. The numbered points I make in this presentation concern only the reauthorization issues on which the Council chairmen reached consensus. The positions

I will cover were developed in June 1999 and have been modified slightly since they

were first presented to the Committee on Resources in July of 1999 by Joseph

Brancaleone, then Chairman of the New England Fishery Management Council.

These items are sequenced consistent with the Magnuson–Stevens Act’s table of contents, and although numbered they do not reflect any prioritization convention. I

will be glad to answer questions on any of the issues I am bringing before you on

behalf of the Councils, or on issues of specific concern to the Mid–Atlantic Council.

1. Section 3(29) and Section 304(e) ... Redefine Overfishing

The chairmen believe there are a number of problems related to MSY-based definitions of overfishing. For example, data deficiencies may lead to inappropriate calculations of MSY, which 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 Subcommittee in seeking solutions to our concerns as the reauthorization process proceeds.

2. Section 302(d) ... Council Member Compensation

The Act 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.

3. 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 government organizations

to support research, workshops, conferences, or to procure contractual services. In

a number of cases, complex dual contacts, timely pass-throughs, 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.

4. Section 302(i)(3)1Al(ii) ... Review of Research Proposals

The Act 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 if

the Councils have the ability to close meetings to consider these proposals.

5. Section 303(a)(7) ... Essential Fish Habitat

The 1996 Act required the Councils to identify and describe EFH, but gave little

direction on how to designate EFH. The EFH definition, i.e., ‘‘those waters and substrate necessary to 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 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 throughout the EFH designation process on both a national and regional scale. Either the EFH definition should be modified, or the guidance on how to use different types of data should be more specific.

6. Section 303(b) ... Regulating Non–Fishing Activities of Vessels

The Council chairmen recommend that Section 303(b) of the Act be amended to

provide authority to Councils to regulate non-fishing activities by vessels that could

adversely impact fisheries or essential fish habitat (EFH). One of the most damaging activities to such habitat is the anchoring of large vessels near habitat areas

of particular concern (HAPC) and other EFH (e.g., coral reefs, etc.). When these
16

ships swing on the chain deployed for anchoring 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.

7. Section 303(b)(7) ... Collection of Economic Data

The Magnuson–Stevens Act specifies the collection of biological, economic, and

sociocultural data to meet specific objectives of the Act, 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 information.’’ NMFS should not be precluded from collecting such proprietary information so long as it is treated as confidential information under Section

402. Without this economic data, multi disciplinary analyses of fishery management

regulations are not possible, preventing NMFS and the Councils from satisfying

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 Act

and the Regulatory Flexibility Act (RFA).

The chairmen recommend resolution of these inconsistencies by amending the

Magnuson–Stevens Act 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 fishery plan 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.

8. Section 303(d)(1) ... Rescinding the Congressional Prohibitions on IFQs or ITQs

Section 303(d)(1) of the Act 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 chairmen support rescinding these provisions before the year 2002 deadline. If this does not occur, then the chairmen oppose extending the moratorium on IFQs/ITQs beyond 2002.

9. Section 303(d)(5) and Section 304(d)(2) ... Establishment of Fees

The Council chairmen 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 Sciences 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.

10. Section 304(a) ... FMP Review Program

The chairmen believe that NMFS, in its review of proposed plans, 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

Act to require through an abbreviated rule-making process that NMFS consult with

the Councils before disapproving fishery management plans, amendments, or framework actions submitted by the Councils for NMFS approval.

11. Section 304(a and b) ... Coordinated Review and Approval of Plans and their

Amendments and Regulations

The Sustainable Fisheries Act (SFA) amended Sections 304(a) and (b) of the M–

S Act to create separate sections for the review and approval of plans 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

chairmen recommend modification of these provisions to include the original language allowing concurrent approval of plans and amendments as well as 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 fishery management plan or amendment as is now required by subsection

(4) of Section 304(a).

12. Section 304(e)(4)(A) ... Rebuilding Periods

The Councils should have greater latitude for specifying rebuilding periods than

is provided under the National Standard Guidelines. Social and economic factors
17

should be given equal or greater consideration in determining schedules that result

in the greatest overall net benefit to the Nation.

13. 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, the NMFS Regional Administrator is 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 National Marine Fisheries Service—we certainly

do not wish to appear to be disparaging the Regional Administrators in any way— the Council chairmen believe that Congressional intent is being violated by this policy. We suggest a modification to the Act 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

14. Section 311(a) ... Enforcement

The Council chairmen support the implementation of a cooperative state/Federal

enforcement programs patterned after the NMFS/South Carolina enforcement cooperative agreement. We applaud the inclusion of fifteen million dollars in the 2001

NMFS budget to expand the program to other states. While it is not necessary to

amend the Act to establish such programs it is consistent with the changes needed

to enhance management under the Act to suggest to Congress that they consider

establishing permanent funding for such cooperative state/Federal programs.

15. Section 313(a): see also Section 403 ... Observer Program

The chairmen reaffirm their support to give discretionary authority to the Councils to establish fees to help fund observer programs. This authority would be the

same as granted to the North Pacific Council under Section 313 for observers.

16. Section 402(b)(1) and (2) ... Confidentiality of Information

Section 402 replaced and modified former Sections 303(d) 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 Act, and broadened the exceptions to confidentiality by allowing for disclosure in several new circumstances.

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.-

(1) 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 ...

(2) 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).

OTHER:

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 Magnuson Stevens Act 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 fishery management plan and tagged and released alive under
18

a scientific or recreational fishery tag and release program, should not be considered

bycatch. Note that there also is an inconsistency between the Magnuson–Stevens

Act definition of bycatch and the NMFS Bycatch Plan. The NMFS definition is much

broader and includes marine mammals and birds and retention of non-target species. The Council chairmen prefer the Magnuson–Stevens Act definition. We also

wish to retain turtles in the definition of ‘‘fish’’ because of their importance in every

region and especially in past, and possibly future, fisheries pursued by indigenous

peoples of the Western Pacific Region.

Mid-Atlantic Council Issues:

Section 302(a)(1)(A) ... Add New York to the New England Council

New York is a border state between the Mid–Atlantic and New England regions,

just like North Carolina is a border state between the Mid–Atlantic and South Atlantic regions. Many fishery regulations divide New York state. Fishermen from the

east end of Long Island fish in waters defined as southern New England and use

New England fishing techniques. These fishermen target lobster, groundfish, black

sea bass and tilefish, all Mid–Atlantic species. Fishermen from central and western

Long Island fish in a more traditional Mid–Atlantic style and focus more on Mid–

Atlantic species. The Mid–Atlantic regulated mesh area does not begin until one

reaches the waters west of 72—30’ west longitude. This has the effect of splitting

New York. It puts a major part of the new York commercial fleet (Montauk,

Greenport and Shinnecock) in the southern New England area, while the balance

of the commercial fleet as well as the majority of recreational fishermen and fisheries are located in the waters west of 72—30’. It is recommended that voting membership on the New England Council be increased by two seats (state director and

obligatory) to allow for the full representation of New York on the New England

Fishery Management Council.

Section 302(i)(2)(c) ... Eliminate newspaper notification of meetings

Given today’s communication technology, the requirement to notify the public regarding meetings using local newspapers in major fishing ports is unnecessary.

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. Moreover, it is a lot less costly to use today’s digital highway than

yesterday’s byway. Hence, we support the elimination of this statutorily required

method of communicating with the public.

Direct Transfer of Council Funds

Councils are often held hostage by the DOC and NOAA grants process. To avoid

this process, and allow the Councils to operate is a more efficient and predictable

manner, we recommend that Councils receive direct transfers of funding from

NMFS rather than continue the burdensome grant process currently used.

Mr. Chairman, I thank you for this opportunity to comment on the Magnuson–

Stevens Act reauthorization. As I mentioned earlier, I will be happy to answer questions or provide information about the positions taken by the Council chairmen.

Mr. GILCHREST. Thank you very much, Dr. Gilford.

Mr. LeBlanc?

STATEMENT OF JUSTIN LE BLANC, VICE PRESIDENT,

GOVERNMENT RELATIONS, NATIONAL FISHERIES INSTITUTE

Mr. LEBLANC. Chairman Gilchrest, distinguished Members of the

Subcommittee, on behalf of the more than 800 members of the

National Fisheries Institute, I want to thank you for the opportunity to testify before you on the reauthorization of the MagnusonStevens Fishery Conservation and Management Act.

The 1996 Sustainable Fisheries Act, as we all know, marked a

tremendous redirection of our nation’s fisheries policies. Considerable new burdens were placed on the regional fishery management

councils and the National Marine Fisheries Service. Many sectors

of the commercial fishing industry, including the NFI, supported

many of the provisions enacted in the SFA. However, the imple-
19

mentation of these provisions by NMFS has revealed very serious

problems with the act that need to be addressed.

Number one, the best scientific information available: national

standard number two requires all FMPs to be based on the best

scientific information available. In recent years, we have seen numerous examples of the agency’s best available science being

disproven by outside expertise, including the surf clam and ocean

quahog fishery; scallop fishery; the wreckfish fishery in the South

Atlantic, and now, there is new data with regard to scup.

The NFI believes that there are three things that could markedly

improve the best scientific information available: independent peer

review of NMFS’ stock assessments; cooperative research programs; and equitable treatment of anecdotal information from both

commercial and recreational sectors.

Number two, essential fish habitat: implementation of the EFH

provisions by NMFS has been flawed. If everything is essential,

then nothing is. If you attempt to protect everything, you will likely

end up protecting nothing at all. The NMFS concept of habitat

areas of particular concern is much more on target, and the authority to regulate the impacts of fishing activities should be focused

on these areas, not the entire exclusive economic zone.

Number three, overfishing and rebuilding programs: current

overfishing definitions and rebuilding goals fail to recognize that

environmental conditions affect fisheries. In Understanding Fisheries Management, a sea grant manual recently re-released, the

authors state: ‘‘Another aspect of carrying capacity is that it

changes as environmental conditions change from year to year.’’ The most obvious example of this is found in the brown shrimp

fishery of the Gulf of Mexico. From 1980 to 1998, landings were as

high as 193 million pounds and as low as 125 million pounds.

Much of this variation can be attributed to salinity conditions in

the marsh habitat used by very small shrimp. When conditions are

good—that is, high salinity—there is more suitable habitat, and

more young shrimp survive. When conditions are poor—low

salinity—there is less suitable habitat, and fewer young shrimp

survive.

Our concepts of overfishing; our definition of what is an overfished stock and our rebuilding targets need to be altered to recognize this variability.

Number four, observers: there has been a call by some for universal observer coverage in all U.S. fisheries. Observers can and do

play a critical role in enhancing the scientific data for fishery management plans. Universal observer coverage, however, is not necessary; may be cost-prohibitive and poses potential safety threats,

particularly on small vessels. In addition, we need to clarify the

goals and objectives of observer programs before they are implemented. Are the observers on board to monitor bycatch, discard,

species composition, landings or some combination of all these parameters? How will the fishery and the council and the National

Marine Fisheries Service confirm that the data being collected by

observers is meeting these goals and objectives and that the information is being incorporated into the management process?

Number five, cumulative impacts of regulatory decisions: national standard number eight requires NMFS to minimize the ad-
20

verse economic impacts of fishery conservation and management

measures on fishing communities. All too often, however, the agency determines that the regulatory decision has no significant social

or economic impact. In many of these cases, it is the most recent

of a string of regulatory decisions that could well be the straw that

breaks the camel’s back. In fact, the General Accounting Office has

recommended that NMFS consider secondary and cumulative impacts when it is meeting the obligations of national standard number eight.

The NFI believes, therefore, that the national standard should be

amended to require the agency to consider cumulative economic

and social impacts. Such analyses would not only assess the impacts of additional incremental regulations on a particular fishery

but also how those regulatory decisions may impact other fisheries.

Number six, ecosystem management: while many fishermen have

been urging NMFS to take into consideration the impacts of coastal

development, pollution and other environmental changes on fisheries productivity and to adopt multispecies management systems,

the sheer information needs of a comprehensive ecosystem management approach are overwhelming. Before ecosystem management

can be implemented in any real sense, massive data gaps would

need to be filled. The regional fishery management councils and

NMFS are already overwhelmed with obligations under the SFA,

and as the growing number of lawsuits filed against the agency reveal, are already severely limited in their ability to meet these obligations.

Comprehensive ecosystem based fisheries conservation and management would require a NMFS budget many times larger than is

currently the case. To require such an approach would therefore result in essentially an unfunded mandate to the agency and, by

proxy, to the user groups who simply do not have a thorough

enough scientific understanding of marine ecosystems to know all

of the variables that must be incorporated into ecosystem-based

management.

Number seven and finally, the precautionary approach: the precautionary approach proposes that the less you know, the more

conservative your approach. It sounds so good, so commonsensical,

how can anyone oppose it? However, the simple description of the

precautionary approach fails to recognize the inherent uncertainty

present in fishery science. I would like to quote from Dr. Doug

Butterworth of the University of Cape Town in South Africa. My

written testimony has a much longer statement that he presented

at the United Nations last year with regard to the precautionary

approach, but I will just read from one paragraph that I think gets

at the heart of the matter. Dr. Butterworth’s words: ‘‘My chief argument is with those who cite the precautionary principle as the

justification to defend a worst-case scenario-based management approach, but if we are honest with ourselves, this is simply not a

practical approach to life. If anyone disagrees with me, I would be

interested in their explanation of how they got here, given that

precautionarily, they should have declined to take an aircraft flight

to Rome,’’ which is where the UN meeting was, ‘‘because they were

unable to rule out absolutely the possibility that the aircraft would

crash.’’
21

Dr. Butterworth’s point is that the precautionary approach cannot be applied unless combined with an assessment of the probabilities of certain outcomes and a determination of acceptable

levels of risk that those outcomes will occur. The determination of

an acceptable risk level is a social and a political decision. It is not

a scientific one. NFI believes that to apply the precautionary approach in the absence of risk analysis assumes that a zero chance

of overfishing, regardless of the social and economic impact, is the

right social choice.

We must remember that fishermen, just like farmers, provide

Americans with an important renewable resource food, a food, in

fact, which medical experts recommend Americans consume more

of as part of a healthy and balanced diet. These fishermen create

jobs and economic prosperity— Mr. GILCHREST. Mr. LeBlanc, we are going to have a vote in less

than 10 minutes, and I am wondering if you are close to the end

of your statement.

Mr. LEBLANC. Indeed, one last sentence.

Under worst-case scenario-based management, Mr. Chairman,

Americans would continue to flock to their oceanfront condominiums which have replaced commercial fishing piers; look out on an

ocean full of fish and have no seafood on the dinner plate.

Thank you for the opportunity to testify.

Mr. GILCHREST. Thank you.

[The prepared statement of Mr. LeBlanc follows:]

Statement of Justin LeBlanc, Vice President, Government Relations,

National Fisheries Institute

Chairman Gilchrest, Congressman Underwood, and distinguished Members of the

Subcommittee, on behalf of the more than 800 members of the National Fisheries

Institute (NFI), I want to thank you for the opportunity to testify before you on the

reauthorization of the Magnuson-Stevens Fishery Conservation and Management

Act (MSFCMA). I am Justin LeBlanc, the Vice President of Government Relations

at the NFI.

The NFI is the Nation’s leading trade association for the diverse commercial fish

and seafood industry. We are an ‘‘ocean to table’’ organization, representing harvesters, processors, importers, exporters, distributors, restaurants, and retail establishments. NFI’s mission is to ensure an ample, safe, and sustainable seafood supply

to consumers. The NFI is therefore committed to the long-term sustainable use of

our nation’s fishery resources. As I have stated before to this Subcommittee, some

of our member companies have been providing seafood to U.S. consumers for more

than 100 years and would like to continue to do so for at least another 100 years.

The 1996 Sustainable Fisheries Act (SFA), as we all know, marked a tremendous

redirection of our nations fishery policies. Considerable new burdens were placed on

the Regional Fishery Management Councils and the National Marine Fisheries

Service (NMFS) to end overfishing, rebuild overfished fisheries, protect Essential

Fish Habitat, and assess impacts on fishing communities, among other things. Many

sectors of the commercial fishing industry, including the NFI, supported many of the

provisions enacted in the SFA. However, the implementation of these provisions by

the National Marine Fisheries Service (NMFS) has revealed very serious problems

with the Act that need to be addressed. While well-intentioned, many of these new

provisions have had unexpected impacts and consequences and have revealed strategic weaknesses in our fisheries conservation and management system. My testimony will focus on 7 key issues:

1. Best Scientific Information Available

2. Essential Fish Habitat

3. Overfishing/Rebuilding

4. Observers

5. Cumulative Impacts of Regulatory Decisions

6. Precautionary Approach

7. Ecosystem Management
22

1. Best Scientific Information Available

National Standard #2 of the MSFCMA requires all Fishery Management Plans

(FMPs) to be based on the best scientific information available. In all too many

cases, there has been far greater emphasis on what information is available and far

too little interest in generating the best information. For example (and there are

many), the New England Fishery Management Council and the NMFS are currently

developing a Fishery Management Plan for deep-sea red crab. As a basis for the

FMP, they are using data generated by a 1974 otter trawl survey of 2 week duration

and choosing to ignore more recent research conducted by Canada, the Virginia Institute of Marine Sciences, and the University of Maryland because such information is not ‘‘official NMFS data.’’ It is clearly in the best interest of all parties that

the most contemporary reliable data be used for stock assessment and FMP development, whether such data is generated ‘‘in-house’’ or by outside sources.

In recent years, there have been numerous examples of NMFS data being

disproven by outside expertise. The surf clam/ocean quahog fishery of the Mid-Atlantic region was essentially saved by outside expertise that demonstrated serious

undersampling of the resource by NMFS surveys. Outside research on New England

scallops also demonstrated inadequate science by the agency. Although the NMFS

likes to tout New England scallops as a management success story, the industry had

to fight tooth and nail to get the outside research recognized as legitimate by the

agency and incorporated into the FMP process. Independent, outside review of the

NMFS data on the South Atlantic Reef Fish FMP also demonstrated serious deficiencies in the information being used by the agency.

The NFI believes there are three things that could markedly improve the Best

Scientific Information Available: independent peer review of NMFS stock assessment data, cooperative research programs, and equitable treatment of ‘‘anecdotal information’’ from both commercial and recreational sectors.

Every regional fishery management council has a committee that ‘‘independently’’ reviews NMFS stock assessment data. Far too often, these review committees are

anything but independent. Often filled with other NMFS employees and recipients

of NMFS funding, these committees have inherent conflicts-of-interest that create

either conscious or unconscious tendencies to support the NMFS data. With the

tendency of truly independent analyses to differ from NMFS-generated data and the

unwillingness (now lessening) of the agency to consider outside information, truly

independent peer reviews of the scientific data upon which FMPs are based could

dramatically improve NMFS stock assessment work and the confidence of user

groups in that work.

Other major criticisms of NMFS scientific work are that it is insufficient in quantity and quality and that it lacks stakeholder confidence. Cooperative research programs could go a long-way to solving some of these problems, at least in part. Cooperative research efforts allow the NMFS to leverage limited Federal dollars while

at the same time building relationships with the commercial sector from which both

scientists and fishermen can learn. For example, the Mid-Atlantic commercial fleet,

through Rutgers University is currently engaged in side-by-side trawl surveys with

a commercial fishing vessel (F/V Janice and Danielle) fishing alongside the NMFS

FR/V Albatross at the Albatross historic sampling sites. Although the data is yet

to be analyzed, reports from the vessels indicate a difference in catch of such enormous magnitude that the statistical reliability of NMFS’ surveys may be suspect.

For example, the commercial vessel has landed as much scup in one tow at one

NMFS station as the Albatross landed for its entire survey last year.

On the West Coast, the Pacific groundfish fishery is suffering under a tremendous

harvest reduction to rebuild fisheries classified as overfished. With NMFS surveys

of these stocks occurring only once every 3 years, this 30-years old fishery is being

managed with essentially ten data points. Cooperative research could help fill these

massive data gaps. The General Accounting Office (GAO)1 in its report last April

recommended that the NMFS ‘‘increase the involvement of the fishing industry, its

expertise, and its vessels in fishery research activities...’’ In addition, the NMFS must incorporate anecdotal information provided by fishermen into its stock assessment process, if only to question and/or ground truth the

legitimacy of its own scientific information as the side-by-side trawl work I just

mentioned suggests. This proposal is constantly scoffed at by NMFS employees and

members of the conservation community. No one is proposing that fishermen shouting at a council meeting ‘‘There are plenty of fish out there!’’ should turn over a

NMFS official stock assessment. However, as the GAO1 reports, NMFS does require

commercial fishermen to collect and report about the type, weight, and length of

species harvested. Because much of this information cannot be independently

verified, NMFS is reluctant to use it. NMFS does, however, use similar self-reported

data for recreational fishermen. NMFS obtains information about recreational
23

catches, in part, by calling a random sample of recreational fishermen and asking

them what they caught. These unverified responses are then combined with catch

data obtained from a sample of recreational fishermen as they land to estimate the

total recreational catch. While anecdotal information cannot replace true scientific

analyses, it can inform the process in important ways and should be taken into consideration in some manner.

2. Essential Fish Habitat

The implementation of the Essential Fish Habitat (EFH) provisions by the NMFS

has been flawed as revealed in the hearing this Subcommittee held on EFH last

year. The scope of EFH has been defined far too broadly, resulting in essentially

the entire Exclusive Economic Zone (EEZ) being defined as EFH. If everything is

essential then nothing is. If you attempt to protect everything, you will likely end

up protecting nothing at all. The NFI believes this conception of EFH is inconsistent

with congressional intent. The concept of EFH should be used to afford the conservation of discrete or particular, definable units of habitat. The NMFS concept of

Habitat Areas of Particular Concern (HAPCs) is much more on target and the authority to regulate the impacts of fishing activities should be focused on these areas,

not the entire EEZ.

3. Overfishing and Rebuilding Programs

Currently, any stock of fish that is of low abundance relative to some historic high

is classified as an overfished stock, whether this low abundance is the result of fishing activity or changes in the marine environment unrelated to fishing. Since these

fisheries are classified as overfished, the Councils are required to implement rebuilding plans to once again attain the historic high level of abundance within 10

years, whether or not the current state of the marine environment can sustain such

an abundance level (considered the carrying capacity of the environment for a stock

of fish). The apparent driving force behind this is a misconception of the Maximum

Sustainable Yield (MSY) of a fishery as a static concept that does not change.

But MSY is dependent on the carrying capacity of the marine environment.

Changes in the marine environment alter the carrying capacity of the environment,

which, in turn changes the potential MSY for the fishery. The National Academy

of Sciences (NAS), in its 1999 report: Sustaining Marine Fisheries2 states that ‘‘Environmental changes can produce effects similar to those of fishing, and it is often

difficult to distinguish them from the effects of fishing. Although they cannot be controlled directly, environmental fluctuations exert a fundamental influence on the behavior of marine ecosystems and must be taken into account by managers. To be

sustainable, fishing and fishery management must be flexible and responsive to environmental changes as well as conservative of ecosystem components.’’

In the second edition of ‘‘Understanding Fisheries Management’’3, a manual published by the Auburn University Sea Grant Marine Extension and Research Center

and the Mississippi-Alabama Sea Grant Legal Program, the authors state:

‘‘Another aspects of carrying capacity is that it changes as environmental conditions changes from year to year. The most obvious example of this is found in the

brown shrimp fishery of the Gulf of Mexico. From 1980 to 1998 landings were as

high as 193 million pounds (1986) and as low as 125 million pounds (in 1983). Much

of this variation can be attributed to salinity conditions in the marsh habitat used

by very small shrimp. When conditions were good (high salinity), there was more

suitable habitat and more young shrimp survived. When conditions were poor (low

salinity), there was less suitable habitat and fewer young shrimp survived.’’

While it is obvious that harvest regimes need to take this variability into account,

more importantly, our concepts of overfishing need to be altered to recognize this

variability. Otherwise, in low salinity years, the Gulf of Mexico brown shrimp

fishery would be classified as overfished and a rebuilding plan to attain the abundance of a high salinity year would be imposed, unnecessarily restricting fishing activity and not producing the desired result, particularly if there are a number of low

salinity years in a row.

In another example, the Mid-Atlantic scup fishery is classified as overfished and

subject to a rebuilding plan. The NMFS has relative abundance data for scup going

back 30 years. The long-term average relative abundance of scup since 1969 is 0.78

kg/tow Spring Spawning Stock Biomass (rolling 3-year average). However, for 3

years (1977-1979) immediately following the passage of the FCMA, scup relative

abundance shot up to an average 2.26 kg/tow Spring Spawning Stock Biomass. The

NMFS has selected as its rebuilding target (MSY) for scup this average of the three

highest years on record, even though it is three times higher than the long-term average. It is unlikely that scup will ever reach these abundance levels again, even

with a cessation of all fishing activity.
24

On the West Coast, Pacific Ocean Perch (POP) is commonly found in Alaska, Canada, and northern Washington. The Washington stock was heavily fished by foreign

vessels prior to enactment of the MSFCMA. When the U.S. assumed management

in 1977, the Pacific Fishery Management Council established a rebuilding program

to restore the stock. Surprisingly, stocks leveled off but did not increase in spite of

stringent harvest controls. At the same time, POP stocks in Alaska were rapidly

rebuilding. It now appears that the Washington stock was an outlying population

that moved into the area in response to some unknown shift in the marine environment that shifted back as evidenced by the return of POP to Alaska. Such a shift

changed the carrying capacity for POP in the waters off the coast of Washington.

In addition, as POP stocks declined, other species replaced the ecosystem ‘‘space’’

made available, yet another change to the carrying capacity of Washington waters.

Finally, original stock assessments more than likely over-estimated the virgin biomass as the reporting of foreign catches was haphazard and unreliable: since POP

was a prime commodity, especially in Russia, all rockfish were reported as POP. Despite all these factors, under the MSFCMA we are required to rebuild POP to an

abundance level that probably never existed and, even if it did, is not likely possible

today.

It is therefore imperative that our definitions of MSY, overfishing, and rebuilding

recognize environmental variability and take it into consideration when determining

whether fisheries are overfished and what appropriate rebuilding targets should be.

Another example of the 1996 SFA gone awry is Georges Bank haddock (G.B. haddock). In 1993, the New England Fishery Management Council submitted a rebuilding plan for G.B. haddock as part of Amendment 5 to the Multispecies FMP. Under

the rebuilding plan approved by the Secretary, the status of G.B. haddock has markedly improved. Spawning stock biomass has increased from 10,900 metric tons (mt)

to 38,100 mt in 1998. The 1998 and 1999 year classes of haddock are estimated to

be 48.5 million and 35.2 million fish, respectively. The 1998 year class is the largest

year-class since 1978 and the third largest year class since 1964, the 1999 year-class

is the fourth largest since 1964.

Spawning stock biomass for 1999 is estimated to be 48,522 mt or 46 percent of

the MSY yield target of 105,000 mt. Spawning stock biomass is projected to increase

to 86,145 mt by 2001 (probability 75 percent) under present restrictions and the

present fishing mortality rate. The stock is projected to rebuild to MSY spawning

stock biomass (105,000 mt) under present restrictions by 2002. The present fishing

mortality rate is well below the maximum allowed and is well below the rate at

which the Canadians are fishing the stock.

Nonetheless, under the present requirements of the MSFCMA and the National

Standard Guidelines, the Council must establish a new rebuilding program for G.B.

Haddock. That rebuilding program must be accomplished in the shortest possible

time, not to exceed 10 years. The Council’s groundfish plan development team has

suggested a rebuilding time of 2004 with a fishing mortality rate 38 percent lower

than the current rate, which is already 39 percent lower than the maximum allowed! This requirement will further restrict fishing for G.B. haddock at precisely

the time the stock will have reached MSY under the existing restrictions!

The system is clearly broken.

4. Observers

There has been a call by some for universal observer coverage in all U.S. fisheries.

Observers can and do play a critical role in enhancing the scientific data for FMPs.

Universal observer coverage, however, is not necessary, may be cost-prohibitive, and

poses potential safety threats. Used in combination with self-reported information,

representative observer coverage can provide statistically reliable information. In

addition, many fisheries and the vessels engaged in them are ill-suited for observers

whose presence could create safety concerns for both observers and the crew, particularly on small vessels.

Also of importance is the need to clarify the goals and objectives of observer programs before they are implemented. Are the observers on-board to monitor bycatch,

discards, species composition, total landings, or some combination of these parameters? How will the fishery, the Council, and the NMFS confirm that the data being

collected by observers is effective at addressing the goals and objectives and that

the information is being incorporated into the management process? The NFI believes that all observer programs should have clearly articulated goals and objectives developed before their implementation and that these programs should be periodically assessed to ensure they are fulfilling the goals and objectives. Such an approach will only improve observer programs in the long-term.
25

In addition, the costs of observer programs should be borne by all the beneficiaries

of the program, including all participants in the observed fishery as well as other

affected fisheries, where appropriate.

5. Cumulative Impacts of Regulatory Decisions

National Standard #8 requires the NMFS to minimize the adverse economic impacts of fishery conservation and management measures on fishing communities. All

too often, however, the NMFS assesses a regulatory decision in isolation from previous decisions in the same fishery, thereby determining that the regulatory

decision has no significant economic impact and is, therefore, consistent with not

only with National Standard #8, but also the requirements of the National Environmental Policy Act, the Regulatory Flexibility Act and Executive Order 12866. In

many of these cases, the most-recent regulatory decision could well be the straw

that breaks the camel’s back. The GAO1 recommended that the consideration of secondary and cumulative impacts by the NMFS be expanded.

For example, as has already been mentioned, the data base used to manage west

coast groundfish is poor. As a result—and especially with Pacific rockfish species—

the Pacific Fishery Management Council has taken a number of management actions, each of which independently are arguably scientifically correct, but which cumulatively have led to a disaster declaration for the industry. These include ‘‘precautionary’’ reductions on Pacific rockfish harvest due to lack of data; imposition

(with no phase-in period) of new harvest rate policies that further reduce harvest

levels; and multi-species harvest restrictions in order to protect single species. Even

worse, the Council has collected virtually no social and economic data on the fleet,

processors, or local communities, so the Council can’t even begin to measure cumulative impacts; but the number of ‘‘For Sale’’ signs on the dock tells you that the

impacts exist.

The NFI believes, therefore, that National Standard #8 should be amended to require the agency, when considering the impact of regulatory decisions on fishing

communities and seeking to minimize negative economic impacts, to consider the cumulative economic and social impacts in order to more accurately reflect the toll

such decisions can take on fishing communities. Such analyses would not only assess the impacts of additional incremental regulations on a particular fishery but

also how those regulatory decisions may impact other fisheries by, for example,

shifting effort to those other fisheries.

6. Precautionary Approach

The MSFCMA does not call for the application of the precautionary approach.

However, the United States is party to several international agreements, most notably the United Nations Code of Conduct for Responsible Fisheries, that call for the

application of the precautionary approach. The precautionary approach has been

touted as an approach to fisheries management to will save us from making mistakes that could devastate a fishery. Simply put, the precautionary approach proposes that the less you know, the more conservative your approach. It sounds so

good, so common-sensical, how can anyone oppose it. However, this simple description of the precautionary approach fails to recognize the inherent uncertainty

present in fisheries science.

I would like to refer to someone with far more expertise on this matter than myself. Dr. Doug Butterworth of the University of Cape Town, South Africa presented

a paper at the United Nations last year on the precautionary approach4. Dr.

Butterworth is an internationally recognized fisheries expert and provides scientific

guidance on the precautionary approach to both the United Nations and the Convention on International Trade in Endangered Species (CITES). Dr. Butterworth

states:

‘‘Fisheries assessment is an inexact science, in which uncertainty is pervasive. At

a certain level, uncertainty, or, lack of predictability, is endemic, and fisheries management has to learn to live with that. Three decades ago, fisheries management

dealt with this problem simply. Coarsely put, it said: use the scientist’s agreed best

assessment, then take off 10 percent for safety. But then scientists started trying

to get more clever. We argued essentially that the safety level should be greater,

the less certain we are...’’

‘‘Now as a counter to arguments typically offered by short-term-orientated industrial interests in the past—‘catches can’t be reduced unless there’s absolute certainty that this is necessary’—the existing statement of the Precautionary Principle

(where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent

environmental degradation, inserted) is fine, albeit lacking in specifics... But the

Principle as stated offers no operational definition and the choice of language is
26

poor. In science we can only disprove, not prove, so that there is never ‘full scientific

certainty’. These deficiencies has allowed free reign in interpreting the Principle.’’ ‘‘My chief argument is with those who cite the Precautionary Principle as the justification to defend a ‘worst-case scenario’ based management approach... But if we

are honest with ourselves, that is simply not a practical approach to life. If anyone

disagrees with me, I’ll be interested in their explanation of how they got here, given

that, precautionarily, they should have declined to take an aircraft flight to Rome

because they were unable to rule out absolutely the possibility that the aircraft

would crash.’’ Dr. Butterworth’s point is that the precautionary approach cannot be effectively

applied in the context of fisheries management unless combined with an assessment

of the probabilities of certain outcomes and a determination of acceptable levels of

risk that these outcomes will occur.

The determination of acceptable risk levels is a social and political decision. It is

not a scientific one. Scientists should tell fishery managers that a certain fishing

mortality rate has a certain probability of overfishing the resource. Fishery managers should then combine this information with an estimate of the social and economic impacts of their decisions and choose an acceptable balance.

Of course, worst-case scenario management would have you seek a fishing mortality rate that has no chance of overfishing the resource. Such an approach is not

only impractical, it is impossible. But even in the absence of worst-case scenario

management, the Precautionary approach would have you always select a lower

fishing mortality rate regardless of the cost to society. But is that appropriate? Or

is there some point at which we, as a society, are willing to accept a slightly higher

risk of negative outcomes to minimize negative social and economic impacts? And

where does the tradeoff occur? At what point is this risk of overfishing too high?

5 percent, 10 percent, 50 percent? At what point are the social and economic costs

too great? The challenge is that there is no right answer to these questions. Science

cannot tell us what to do. We must make a social decision about the balance we

seek in fisheries conservation and management.

The NFI believes that to apply the Precautionary Approach in the absence of such

risk analysis assumes that a zero chance of overfishing regardless of the social and

economic impact is the right social choice. We cannot support such an approach.

Now, of course an FMP should be less likely to result in overfishing than more likely, but just how unlikely is appropriate will vary from fishery to fishery dependent

upon the social and economic costs.

We must remember that fishermen, just like farmers, provide Americans with an

important resource: food. A food, in fact, which medical experts recommend Americans consume more of as part of a healthy and balanced diet. These fishermen create jobs and economic prosperity, stabilizing and enhancing the communities in

which they live. Are we as a society willing to sacrifice fishing communities and the

people whose livelihoods depend upon fishing in order to achieve zero-risk (biologically) fishery conservation and management regimes? Or should we be willing

to accept certain levels of risk to ensure that fishing communities and fishermen are

around to reap the benefits of rebuilt fisheries for American and world consumers

in the future? Under worst-case scenario management, Americans could continue to

flock to their ocean-front condominiums that have replaced commercial fishing piers,

look out on an ocean full of fish, and have no seafood on the dinner plate.

7. Ecosystem Management or Multi-species Management

In the 1999 Report to Congress by the Ecosystem Principles Advisory Panel titled

Ecosystem-Based Fishery Management5, the Panel calls on the NMFS to develop

Fisheries Ecosystem Plans (FEPs) for every Fishery Management Plan. The Panel

calls for these FEPs to contain the following:

a. Delineate the geographic extent of the ecosystem(s) that occur(s) within Council

authority, including characterization of the biological, chemical, and physical dynamics of those ecosystems, and ‘‘zone’’ the area for alternative uses.

b. Develop a conceptual model of the food web.

c. Describe the habitat needs of different life history stages for all plants and animals that represent the ‘‘significant food web’’ and how they are considered in

conservation and management measures.

d. Calculate total removals including incidental mortality and show how they relate

to standing biomass, production, optimum yields, natural mortality, and trophic

structure.

e. Assess how uncertainty is characterized and what kind of buffers against uncertainty are included in conservation and management actions.

f. Develop indices of ecosystem health as targets for management.

g. Describe available long-term monitoring data and how they are used.
27

h. Assess the ecological, human, and institutional elements of the ecosystem that

most significantly affect fisheries and are outside the Council/Department of

Commerce authority. Included should be a strategy to address those influences

in order to achieve both FMP and FEP objectives.

While many fishermen have been urging the NMFS to take into consideration the

impacts of coastal development, pollution, and other environmental changes on fisheries productivity and to adopt multi-species management systems that take into

consideration competitive interactions and predator-prey relationships, the sheer

information needs of a comprehensive ecosystem management approach as outlined

by the Panel are overwhelming.

Before ecosystem management could be implemented in any real sense, massive

data insufficiencies would need to be filled. The Regional Fishery Management

Councils and the NMFS are already overwhelmed with obligations under the

MSFCMA and, as the growing number of lawsuits filed against the agency reveal,

are already severely limited in their ability to meet these obligations. Comprehensive ecosystem-based fisheries conservation and management would require a

NMFS budget many times larger than is currently the case. The NFI is not convinced that there is a political willingness to fund the agency sufficiently to meet

the scientific requirements of ecosystem-based management.

To require such an approach would, therefore, result in essentially an unfunded

mandate to the agency and, by proxy, to the user groups. We simply do not have

a thorough enough scientific understanding of marine ecosystems to know all the

variables that must be incorporated into ecosystem-based management. The NFI believes we must considerably expand our knowledge base before we can implement

ecosystem-based fisheries conservation and management in a manner that avoids

unintended consequences for both fishermen and marine ecosystems.

Mr. Chairman, Members of the Subcommittee, the reauthorization of the

MSFCMA presents a tremendous opportunity to further evolve our fisheries conservation and management policies. The 1996 SFA was an important step in that

evolution from which we have learned many lessons. I look forward to working with

all of you during the reauthorization process to ensure a law that provides for sustainable fisheries while allowing U.S. consumers to enjoy safe, wholesome seafood.

I thank you for the opportunity to testify before you.

References:

1. General Accounting Office. April 2000. Fishery Management: Problems Remain

With National Marine Fisheries Service’s Implementation of the MagnusonStevens Act. GAO/RCED–00–69.

2. National Academy Press. 1999 Washington, D.C. Sustaining Marine Fisheries.

Committee on Ecosystem Management for Sustainable Marine Fisheries. Ocean

Studies Board. Commission on Geosciences, Environment, and Resources.

National Research Council.

3. Wallace, Richard K. and Kristen Fletcher. 2001. Understanding Fisheries Management: A Manual for understanding the Federal Fisheries Management Process, Including Analysis of the 1996 Sustainable Fisheries Act. 2nd Ed. Auburn

University Sea Grant Marine Extension and Research Center & MississippiAlabama Sea Grant Legal Program MASGP–00–005.

4. Butterworth, Doug S. 2000. Science and Fisheries in the New Millennium, presented at University of Virginia School of Law, Center for Oceans Law and Policy Conference: Current Fisheries Issues and the Food and Agriculture Organization of the United Nations. March 15–17, 2000. Food and Agriculture Organization Headquarters, Rome, Italy. MARAM, Dept. of Mathematics and Applied

Mathematics, University of Cape Town, Rondebosch 7701, South Africa.

5. Ecosystem-Based Fishery Management. April 1999. A Report to Congress by

the Ecosystem Principles Advisory Panel as mandated by the Sustainable Fisheries Act amendments to the Magnuson-Stevens Fishery Conservation and

Management Act.

Mr. GILCHREST. Thank you very much.

Mr. Crockett?

STATEMENT OF LEE CROCKETT, EXECUTIVE DIRECTOR,

MARINE FISH CONSERVATION NETWORK

Mr. CROCKETT. Good afternoon, Mr. Chairman and Members of

the Subcommittee. My name is Lee Crockett. I am the executive di-
28

rector of the Marine Fish Conservation Network. The network is a

coalition of 102 environmental organizations, commercial and recreational fishing groups and marine science groups dedicated to

promoting the long-term sustainability of marine fisheries. We appreciate the opportunity to present our views on reauthorization of

the Magnuson-Stevens Act.

Thanks to the hard work of you, Mr. Chairman, and others, the

Sustainable Fisheries Act was passed and signed into law in

October 1996. It was hailed as a landmark piece of legislation that

would significantly improve fisheries conservation. Yet more than

4 years after its passage, the bright promise of the SFA has not

materialized. Since the SFA’s enactment in 1996, members of the

network have been closely following its implementation. Based on

our experiences, we have issued two reports. The first, which evaluated council implementation of the SFA, was entitled Missing the

Boat; the other, entitled Lost at Sea, evaluated NMFS’ implementation of the act.

Based on these analyses, we identified three major shortcomings

with implementation of the SFA. First, while some progress has

been made in controlling overfishing and rebuilding overfished

stocks, short-term overfishing was allowed in some fisheries, and

many rebuilding plants had been stretched out to the maximum allowed by law. Second, many councils ignored the bycatch requirement by either relying on past, inadequate, actions or by postponing action until a later date.

The most common rationale for the inaction was the lack of data.

However, nearly all councils failed to establish the required bycatch reporting system to gather such data. Thirdly, we felt that

the councils did a good job of identifying essential fish habitat, but

nearly all had failed to carry out one of the most important SFA

mandates: protecting the EFH from damaging fishing practices. In

Lost at Sea, our evaluation of NMFS, we found that despite earlier

assurances, NMFS failed to reject the vast majority of the inadequate SFA implementation amendments.

We are currently in the process of conducting a followup to Lost

at Sea to determine what the councils and NMFS have done to correct deficient plan amendments since September 1999. In my testimony, I detailed some of our preliminary findings. While I don’t

want to repeat that discussion, I do want to point out two overarching problems that we found: first, once NMFS approves an inadequate plan amendment, the councils are not likely to change it.

Secondly, even when NMFS has disapproved inadequate amendments, the councils are slow to correct deficiencies.

While some have argued that our concerns could be addressed

through better implementation of the act, we believe that it is the

act’s legal framework that allows poor implementation. In the case

of overfishing, flexibility in the law has allowed NMFS to develop

regulations that allow overfishing of weak stocks in mixed-stock

fisheries. In the case of bycatch, flexibility in the law allows the

councils to claim that there is too little data to take action while

at the same time failing to take meaningful steps to collect the

data.

Flexibility in the law has allowed managers to identify EFH but

take no action to protect it from damaging fishing practices. We be-
29

lieve that implementation of the SFA is not likely to improve until

Congress provides further legal clarification and direction. To accomplish this, we recommend that Congress strengthen the

Magnuson-Stevens Act during reauthorization in the following

ways: first, you should prohibit overfishing of all stocks in a mixedstock fishery. On bycatch, you should make avoiding bycatch a priority and require fishery managers to take action to reduce bycatch

under strict timelines. To protect essential fish habitat from damaging fishing practices, we should prohibit fishing activities that

damage EFH unless the prohibition is shown to be unnecessary.

We should also prohibit the introduction of new fishing gears or the

opening of closed areas unless EFH damage is assessed and minimized.

We must also expand fishery management beyond traditional

single-species management to ecosystem-based management. To do

this, we should require councils to develop ecosystem plans for each

major ecosystem within their jurisdiction and then require that the

management measures be consistent with those ecosystem plans.

We should also establish mandatory observer programs. Objective

observation and data collection are vital to effectively manage marine fisheries. To improve data collection, legislative changes are

needed to establish mandatory fishery observer programs for all

Federally-managed fisheries to collect statistically valid, reliable

data. We believe that these observer programs should be funded by

a user fee based on value and applied to all fish landed and sold

in the United States.

Several witnesses have also mentioned that they want to see the

moratorium on individual fishing quotas lifted. The network’s position on this is that we think the moratorium on IFQs should remain in place until Congress acts to establish standards that protect fishermen and the marine environment.

So, having detailed the network’s ideas for reauthorization to the

Magnuson-Stevens Act, I would like to close by cautioning the Subcommittee against weakening the conservation provisions of the

act. Nearly 5 years have passed since passage of the SFA. We are

just beginning to see some stocks begin to rebound. However, many

other stocks have shown little improvement, and some continue to

decline. The recent Department of Commerce Status of Stocks report shows that for the fourth year in a row, the number of stocks

that are either overfished, experiencing overfishing or both has increased. Currently 107 stocks, 43 percent of those that are assessed, are in that condition.

We think that that is a clear indication that our fish conservation laws need to be strengthened, not weakened. Thank you for

providing us this opportunity to present our views on reauthorization of the Magnuson-Stevens Act. I would be happy to answer any

questions.

[The prepared statement of Mr. Crockett follows:]

Statement of Lee R. Crockett, Executive Director,

Marine Fish Conservation Network

Good afternoon Mr. Chairman and Members of the Subcommittee, my name is

Lee Crockett, I am the Executive Director of the Marine Fish Conservation Network

(Network). The Network is a coalition of 102 environmental organizations, commercial and recreational fishing associations, and marine science groups dedicated to
30

promoting the long-term sustainability of marine fisheries. Our member organizations represent nearly 5 million people. For your information, I’ve attached a list

of Network members to my testimony. We appreciate this opportunity to present our

views on reauthorization of the Magnuson-Stevens Act. As you requested, I will

focus my testimony on progress and effectiveness of implementation of the 1996

Sustainable Fisheries Act (SFA) amendments to the Magnuson-Stevens Act and the

issues that we think the Subcommittee should address during reauthorization.

I would first like to say how pleased we are that you are now the Chairman of

this Subcommittee. You have been a leader in Congress on fish conservation for

many years and can rightfully claim to be one of the fathers of the SFA. It was your

legislation, H.R. 4404, the ‘‘Marine Fish Conservation Amendments of 1994,’’ that

formed the basis for the SFA’s overfishing, bycatch, and essential fish habitat provisions. As you have a paternal claim to the conservation provisions of the SFA, so

does the Network. We have advocated for changes to the Magnuson-Stevens Act to

prohibit overfishing, minimize bycatch, and identify and protect essential fish habitat since 1993.

Since enactment of the SFA in 1996, members of the Network have been actively

involved in its implementation at the regional fishery management council level.

Our members have actively participated in the council process as members of and

advisors to council committees, and as interested stakeholders through written and

oral testimony. We have been working diligently over the past 4 years to ensure

that the SFA is implemented as Congress intended. Based on our experience, the

Network issued a report in January 1999, in partnership with the Center for Marine

Conservation, evaluating council implementation of the SFA. The report, entitled

Missing the Boat, identified major failures in the implementation of the SFA. We

found that while the councils had made some progress in controlling overfishing and

rebuilding overfished stocks, much more work was needed. Some councils continued

to allow short-term overfishing, and many stretched rebuilding plans out to the

maximum allowed by law, 10 years or beyond. These risky practices jeopardize rebuilding these overfished stocks.

We also found that the councils failed to implement the SFA’s bycatch requirements. Many councils ignored this requirement either by relying on past inadequate

actions, or by postponing action until some later unspecified date. The most often

cited excuse for inaction was a lack of data. However, the councils uniformly did

not even establish the SFA mandated bycatch reporting systems necessary to gather

such data.

The councils did a better job of implementing the Act’s essential fish habitat

(EFH) requirements. Across the board, the councils engaged in a thorough information gathering process and identified EFH in an appropriately precautionary manner. However, nearly all of the councils failed to carry out one of the most important

SFA mandates: protecting EFH from damaging fishing practices.

In response to Missing the Boat, the National Marine Fisheries Service (NMFS)

stated that it was too early to criticize implementation of the SFA and assured the

public and us that it would return inadequate SFA implementation amendments

and plans to the councils for ‘‘necessary modifications.’’ Since then, members of the

Network have been closely following NMFS’ response to the fishery management

councils’ SFA implementation amendments. We reviewed each amendment and provided NMFS with detailed comments and recommendations on which sections

should be approved or disapproved for not meeting SFA requirements. We also

issued another report on NMFS’ implementation of the SFA entitled Lost at Sea.

In that report, we found that, despite its earlier assurances, NMFS failed to reject

the vast majority of the inadequate SFA implementation amendments. NMFS approved three plan amendments that allowed continued short-term overfishing. It

also approved 12 rebuilding plans that did not meet the requirement to rebuild overfished stocks in as short a time as possible, but instead stretched rebuilding out

for10 years. With regard to bycatch, we found that all of the 24 plan amendments

submitted as of September 1999 were inadequate and should have been rejected.

Unfortunately, NMFS rejected only 5 of those inadequate amendments.

With regard to EFH, only two of the existing EFH amendments contained any

new measures to protect habitat from damaging fishing practices, and both affected

only small areas. Aside from these minor actions, little else has been done to protect

fish habitat from fishing impacts. Most councils failed to even conduct a comprehensive assessment of the effects of fishing gear on habitat or the practicability of measures to reduce those impacts. NMFS’ response to those failings was to partially disapprove nine inadequate amendments, while approving 28 equally inadequate

amendments.

The Network is in the process of conducting a follow-up to Lost at Sea to determine what the councils and NMFS have done to correct deficient plan amendments
31

since September 1999. While this study is not complete, I would like to share some

of our preliminary results with you.

In New England, the Council has not implemented the SFA overfishing definitions or the required rebuilding plans, nearly 5 years after the Act’s passage. Many

stocks continue to be managed based on pre-SFA overfishing and rebuilding targets.

With regard to bycatch, the Council failed to establish a bycatch reporting methodology and continues to rely on existing reporting requirements to report bycatch— vessel trip reports and minimal at-sea observer coverage—even though it admits

that both are unreliable for assessing bycatch. As to protecting EFH, NMFS fully

approved the Omnibus EFH amendment. However, this approval was unwarranted

as the amendments failed: (1) to assess the impacts of the eighteen predominant

gears used in New England on EFH; and (2) incorrectly found that existing measures were adequate to minimize fishing impacts on EFH. Since the passage of the

Omnibus EFH Amendment, many of the measures it relied on to minimize fishing

effects on EFH have been weakened (groundfish closed areas) or never implemented

(scallop days at sea reductions).

Similar issues arise in the Mid-Atlantic, NMFS approved most of the Council’s overfishing and rebuilding plans—even thought many relied on pre-SFA overfishing

definitions that were risk-prone. While NMFS rejected the scup rebuilding plan, the

Council has yet to develop an amendment to modify the existing plan. Most of the

Mid-Atlantic Council’s plan amendments to address bycatch rely on existing catch

reporting requirements. Paradoxically, the Council deferred taking action to minimize bycatch due to lack of data because of the unreliability of existing reporting

methods. NMFS approved most of these plans and only rejected the scup bycatch

provisions of the Summer Flounder, Scup, and Black Sea Bass management plan.

The Council has yet to adopt adequate measures to reduce scup bycatch in the

squid, herring, and mackerel fisheries. NMFS rejected all of the EFH amendments

because they did not adequately assess the impact of fishing on EFH, or provide an

adequate rationale for not taking action to minimize the effects of damaging fishing

practices. The Council has yet to remedy these deficient EFH provisions.

In the South Atlantic, NMFS rejected most of the overfishing provisions of the

Council’s SFA amendment because they relied on pre-SFA overfishing definitions

that did not comply with the new requirements of the SFA, namely that they be

biomass-based. The Council has yet to implement revised overfishing definitions for

most of these rejected species. With regard to bycatch, the Council continues to rely

on logbooks to collect bycatch information—many of which still fail to contain necessary fields to report bycatch. While NMFS is planning to modify fishery logbooks

to include bycatch reporting this year, such a measure fails to address the serious

concerns about reliability, or ensure accurate bycatch reporting in the future.

The Gulf Council’s comprehensive EFH amendment was only partially approved

by NMFS because it did not identify EFH for all managed species and did not adequately assess the impacts of all fishing gear on EFH. The Council has yet to take

any action to address the problems identified by NMFS when it partially approved

the amendment. NMFS rejected the Council’s bycatch reporting proposal and the

provisions to minimize bycatch in all Gulf fisheries except stone crab. The Council

has not submitted an amendment to address these problems, because it maintains

that NMFS must provide it with the bycatch data necessary to revise the rejected

amendments. Similarly, the Council has failed to revise its overfishing targets—

most of which NMFS rejected—to comply with the new overfishing and rebuilding

requirements of the SFA.

As of March 2001, the Caribbean Council has not submitted its comprehensive

SFA amendment addressing the overfishing and bycatch provisions of the SFA.

NMFS only partially approved the Council’s EFH amendment, because it did not

identify EFH for all managed species. The Council has yet to address this deficiency

or to take action to address fishing gear impacts on EFH.

NMFS rejected the bycatch provisions of the Pacific Council’s groundfish management plan. While the Council has developed a new bycatch amendment it still continues to fail to establish a standardized bycatch reporting methodology and to assess and minimize bycatch in the groundfish fishery. NMFS revoked its approval of

rebuilding plans for boccacio rockfish, lingcod, and Pacific Ocean perch. The Council

is required to revise these rebuilding plans no later than January 1, 2002. NMFS

approved the EFH amendment to the Pacific Coast Salmon fishery management

plan (FMP) on September 27, 2000, 2 years after the SFA’s October 1998 deadline.

NMFS also approved the EFH amendment for the Groundfish plan in April 2000,

even though it failed to assess or minimize the adverse effects of fishing on EFH.

In the Western Pacific, NMFS rejected the bycatch provisions of both the

Bottomfish and Pelagics management plans because they failed to quantify or minimize bycatch. The Council has yet to address these problems. NMFS rejected the
32

overfishing definitions in the Crustaceans, Bottomfish, and Precious Corals management plans. The Council has not modified any of the rejected overfishing definitions

as of March 2001.

NMFS did not reject any of the SFA implementation amendments in the North

Pacific. However, such approval was unwarranted, as many of the plans failed to

address bycatch, protect EFH, or to prevent overfishing. The Council has focused

its efforts on developing implementing rules for the American Fisheries Act, addressing the effects of its fisheries on the endangered Steller sea lion, seabird populations, and other affected protected species, and developing a supplemental environmental impact statement for its groundfish fisheries.

Reauthorization of the Magnuson-Stevens Act

When the SFA was enacted in 1996, it was hailed as a landmark piece of conservation legislation that would significantly improve fisheries conservation. Yet

more than 4 years after its passage, the bright promise of the SFA has not materialized. As our multiple reviews demonstrate, overfishing is allowed to continue. Rebuilding plans are too long and too risky. Bycatch is not being quantified or minimized. EFH has been identified, but too little is being done to protect it.

Some argue that our concerns could be addressed through better implementation

of the Act. In theory this may be true, but in practice it is not. Our review of SFA

implementation clearly demonstrates two phenomena. First, once NMFS approves

an inadequate management plan amendment, the councils are not likely to change

it. Second, even when NMFS has disapproved inadequate amendments, and required revision as soon as possible, the councils are slow to correct deficiencies.

However, while part of the problem can be attributed to poor implementation, the

Act’s legal framework also allows this to happen. In the case of overfishing, flexibility in the law has allowed NMFS to develop regulations that allow for overfishing

of weak stocks in mixed stock fisheries. In the case of bycatch, flexibility in the law

allows NMFS and the councils to claim that there is too little data to take action

to minimize bycatch, while at the same time failing to take meaningful steps to collect that data. Flexibility in the law has allowed managers to identify EFH, but take

almost no action to protect it from damaging fishing practices, the one area they

have direct control over.

We believe that implementation of the SFA is not likely to improve and that mangers will continue to exploit the flexibility of the Act until Congress provides much

needed further legal clarification. To accomplish this, the Marine Fish Conservation

Network recommends that Congress strengthen the conservation provisions of the

Magnuson-Stevens Act during reauthorization. Our specific recommendations are

listed below.

RECOMMENDATIONS FOR STRENGTHENING THE MAGNUSON-STEVENS ACT

Eliminate Overfishing of All Species

The Magnuson-Stevens Act mandates that conservation and management measures must prevent overfishing. But in too many cases, managers still react to overfishing after it occurs and continue to improperly interpret the law and regulations

so as to continue to allow overfishing. In addition, managers are not accounting for

all sources of fishing mortality or ecosystem considerations in setting catch levels.

Managers are extending periods allowed for rebuilding to 10 years, and, in some

cases, beyond those limits. This ‘‘risk-prone’’ management increases the likelihood

that stocks will not be rebuilt in 10 years, or even longer.

NMFS continues to interpret the prohibition on overfishing to allow for overfishing of fish caught in association with other populations of fish that are not themselves overfished. Only when a fish species is threatened with extinction does NMFS

require protection for these ‘‘mixed stock’’ fisheries.

This practice is seriously impeding efforts to rebuild many weak stocks in mixed

stock fisheries, and has resulted in the depletion of many species to the point where

they are vulnerable to extinction. In the Gulf of Mexico and the South Atlantic, a

number of grouper species are in serious trouble. Four species, Nassau grouper,

Warsaw grouper, speckled hind, and jewfish are on the Endangered Species Act’s

List of Candidate Species. In the Gulf of Mexico, 10 of 15 of the managed grouper

species have been identified as being at risk of extinction by the American Fisheries

Society (AFS). In New England, Atlantic halibut stocks remain severely overfished

and two species of skate (barndoor and thorny skates) are at risk of extinction according to the AFS. Despite the fact that there is no allowable catch of these threatened species, they are still caught and killed by non-selective fishing practices used

in mixed stock fisheries.
33

On the West Coast, boccacio rockfish stocks have declined to less than 2 percent

of their historic sizes and several organizations have petitioned for their listing on

the ESA List of Candidate Species. The plight of the boccacio is particularly troubling because a little more than a decade ago, it comprised approximately 40 percent of the groundfish landings on the West Coast. Unless these weak stocks in

mixed stock fisheries are protected we will continue to serially deplete many important stocks.

Fishing for some species, especially during particularly vulnerable life stages, has

placed those fish at risk. For example, fishermen targeting certain grouper and

snapper species, focus their efforts on areas where they aggregate to spawn year

after year. Although this life history characteristic makes these species vulnerable

to overfishing, they received some protection in the past from fishermen’s inability

to locate and revisit these areas. However, technological improvements in navigation

technology have removed that protection, thus contributing to overfishing and delaying or preventing timely rebuilding of these fish stocks. These vulnerable fish need

to be identified and protected.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• prohibit overfishing of all stocks in a mixed stock fishery;

• require that each council provide added protection for stocks during spawning

and other particularly vulnerable life stages; and

• mandate the application of the precautionary approach to fisheries management

by requiring that management measures include measures to buffer against scientific uncertainty.

Avoid Bycatch

Bycatch is the indiscriminate catching 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 marine life that have no

economic value but are ecologically important, such as 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

in the functioning of ecological communities. Economically, bycatch equates to lost

future fishing opportunities as a result of mortality of commercially valuable fish.

In the SFA, Congress required action to address bycatch problems for the first

time. However, as I discussed in detail above, the councils and NMFS have uniformly failed to take sufficient action to either report or avoid bycatch. They have

relied upon past actions to satisfy this legal obligation, recommended insufficient action, or have not bothered to address the issue at all.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• make avoiding bycatch in marine fisheries a priority;

• tighten the definition of bycatch to require that bycatch be avoided; and

• require fishery managers to take action to reduce bycatch under strict timelines.

Protect Essential Fish Habitat

Essential fish habitats are those waters and substrates on which fish are dependent to reach maturity and reproduce. The SFA requires action to describe, identify,

conserve, and enhance EFH. The law and regulations require councils ‘‘to prevent,

mitigate, or minimize’’ identified adverse effects from fishing unless it is not practicable to do so. As I detailed above, most councils claim that, either: 1) existing

measures are adequate to minimize the adverse effects of fishing on EFH under

their jurisdiction; or 2) that they did not have enough information to take action.

Unfortunately, NMFS accepted these excuses and approved these deficient management plans. The ‘‘to the extent practicable’’ language in the law’s EFH requirement

is clearly being used as a loophole to avoid action, as is the familiar ‘‘lack of information’’ refrain.

The SFA requires NMFS to provide Federal agencies with recommendations on

how to minimize, mitigate, or avoid adverse impacts from Federally permitted activities on EFH. Compliance with these recommendations is voluntary. This consultation requirement needs to be strengthened to more fully protect EFH.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• require regional fishery management councils to prohibit certain fishing activities that may adversely affect EFH unless a council determines that the prohibition is not necessary to protect EFH;
34

• adopt the precautionary approach to habitat protection by prohibiting the introduction of new fishing gear or the opening of closed areas unless EFH damage

is assessed and minimized; and

• enhance the EFH consultation requirement by providing that Federal agencies

must ensure that their actions are not likely to adversely impact EFH.

Conserve Marine Ecosystems

Fishery managers and scientists recognize the need to expand fishery management beyond traditional single-species planning to include ecosystem considerations.

Commonly referred to as ecosystem-based management, such an approach includes,

but is not limited to, interactions between key predator and prey species within an

ecosystem, as well as the habitat needs of living marine resources and other limiting

factors in the environment. This concept supports the precautionary approach to

fishery conservation, 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 reason ecosystem relationships are not 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, how

such principles and policies should be integrated into fishery management decisions.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• require councils to develop a Fishery Ecosystem Plan (FEP) for each major ecosystem within their jurisdiction;

• require fishery management plans or amendments to be consistent with the appropriate FEP;

• require consideration of ecosystem impacts, including predator-prey interactions

when setting catch levels; and

• appropriate sufficient new funds to assist the councils and NMFS in applying

ecosystem principles to fisheries research and management under the

Magnuson-Stevens Act.

Establish and Fund Mandatory Fishery Observer Programs

Objective observation and data collection are vital to effectively manage marine

fish and fisheries. Managers’ ability to address the problems of overfishing, bycatch,

and degradation of EFH can be limited by 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. Catch and Bycatch data is vitally important to meeting the objectives of the Magnuson-Stevens Act by promoting sustainable fishing.

To address these concerns, legislative changes are needed to:

• establish a mandatory fishery observer program for all Federally managed fisheries to collect statistically reliable catch data; and

• fund observer programs with a user fee based on value and applied to all fish

landed and sold in the United States.

Reform Regional 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, representatives of the

public interest must sit on regional fishery management councils.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• ensure that councils are more broadly representative of the public interest as

they make decisions regarding the conservation and management of public resources; and

• require Governors to consult with conservation groups before nominating individuals to a council.
35

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 ICCAT 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.

To address these concerns, the Magnuson-Stevens Act should be amended to:

• give the U.S. greater discretion and flexibility in the conservation and management of highly migratory species; and

• repeal language that prevents or hinders the U.S. from implementing management measures that are more conservative than those recommended under

international agreements.

Similarly, the ATCA should be amended to:

• remove language limiting U.S. authority to conserve highly migratory species.

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 enhance the conservation and management of our nation’s fisheries.

Standards must be adopted that, among other things, clarify that IFQ programs:

• do not create a compensable property right;

• demonstrably provide additional and substantial conservation benefits to the

fishery;

• are reviewed periodically by an independent body to determine whether the programs are meeting their conservation goals; and

• are of a set duration, not to exceed 5 years, subject to possible renewal if a program is meeting its conservation goals, provided that in any reallocation of

quota shares upon a renewal, preference shall be given to those quota shareholders that are meeting or exceeding IFQ program requirements, including all

conservation goals.

Keep Conservation in the Magnuson-Stevens Fishery Conservation and Management

Act

Having detailed the Network’s ideas for reauthorization of the Magnuson-Stevens

Act, I would like to close by cautioning the Subcommittee against weakening the

conservation provisions of the Act. Some in the fishing industry have argued that

Congress should, among other things, amend the Act to:

• place greater emphasis on economics when developing rebuilding plans for overfished stocks;

• require mixed stock fisheries be managed as a unit;

• restrict protection of EFH to small subsets of EFH;

• establish standards for observer programs which will impede councils from establishing such programs; and

• create redundant and unnecessary scientific review requirements.

The Network feels very strongly that Congress should reject these proposals because they would significantly weaken fish conservation. Placing greater emphasis

on economics over resource protection and sustainability will return us to the preSFA days of boom and bust fishing. If we are to have healthy, sustainable fisheries,

conservation of our fish resources must come first. The simple fact is that if there

are no fish, there will be no fishermen.

Nearly 5 years after passage of the SFA, we are just beginning to see some fish

stocks begin to rebound. Georges Bank yellowtail flounder and haddock are two ex-
36

amples of stocks that are beginning to rebound after large closed areas were instituted in the mid–1990’s. However, many other stocks have shown little improvement and some have continued to decline. The recent Department of Commerce Status of Stocks report clearly demonstrates this point. For the fourth year in a row,

the number of stocks that are either overfished, experiencing overfishing, or both

has increased. The number of fish stocks now in jeopardy jumped from 98 to 107

stocks, or 43 percent of the managed species whose status in known. Unfortunately,

we know little about the status of most of the Federally managed fish stocks—78

percent of the managed species are classified as unknown. The fact that nearly half

of the stocks of known status are overfished does not bode well for these unknown

stocks. These dismal statistics argue for strengthening, not weakening, the conservation requirements of the Magnuson-Stevens Act.

Thank you for providing the Marine Fish Conservation Network with an opportunity to present its views on reauthorization of the Magnuson-Stevens Act. I would

be happy to answer any questions you or other members of the Subcommittee may

have.

Mr. GILCHREST. Thank you, Mr. Crockett.

Welcome, Dr. Houde.

STATEMENT OF DR. EDWARD D. HOUDE, PROFESSOR, UNIVERSITY OF MARYLAND CENTER FOR ENVIRONMENTAL

SCIENCE, CHESAPEAKE BIOLOGICAL LABORATORY

Mr. HOUDE. Thank you, Mr. Chairman.

Mr. GILCHREST. From the beautiful Chesapeake Bay.

Mr. HOUDE. Thank you, Chairman Gilchrest and Members of the

Subcommittee.

I appreciate having the chance to make some comments on

science issues and needs related to the SFA and reauthorization of

it. My view of the SFA is that it has had some moderate success

since 1996 that many stocks are, in fact, perhaps on the road to

recovery and that the science that is being applied with respect to

serving the SFA certainly has increased over the years. My first experience with the councils was back in 1978, and I can remember

at that time, people asked what is MSY? Ten years later, we asked

why do we use MSY? And now, we are still asking how do we utilize it?

But we now know that we have to set targets, and we have to

set limits, and we have to set thresholds, and we understand what

biological reference points are so that the science and the assessment models that are being applied certainly have improved, and

I don’t think there has been enough time since 1996 to fully evaluate the effect of the SFA amendments, but I am moderately optimistic. There is evidence of recoveries in a number of fisheries, although there are lots of discouraging cases as well, particularly in

the Northeast and West Coast groundfish fisheries, reefish fisheries.

With respect to essential fish habitat, I have to echo some of the

concerns of my friend Lee Crockett. The SFA emphasis on identifying and defining was good, but it didn’t go far enough. There are

no explicit actions that are mandated in the SFA. A big effort, nevertheless, ensued to categorize habitats and life-state specific concerns. Habitat areas of particular concern also were specifically

identified, but reauthorization should consider more specific guidance with respect to application of EFH standards.

Should there be a national standard on EFH? That is something

which I think should be discussed and debated.
37

Individual fishing quotas: the National Academy of Sciences undertook a study in 1999. I think that I have read much about the

advantages and disadvantages of IFQs as you have, but the consensus among most of the economists and fishery scientists is that

positive benefits can be derived from allocating shares of quota and

privileges to harvests. The NAS study is guardedly positive on this,

recognizing the disadvantages. Lifting moratoria, from my point of

view, is desirable, and discretionary use of IFQs by councils probably should be allowed according to the NAS report. Some fisheries

could benefit as a good way to control capacity in fisheries; it

potentially has ecosystem benefits, as, of course, social and economic implications that need to be discussed.

I had an opportunity to chair an NAS panel on marine protected

areas. We concluded that for fisheries, marine protected areas are

a tool but not a solution; they can be a part of broader fishery management that perhaps ought to be instituted. The Presidential executive order last May reinforces that idea of establishing networks

and zones. Zones and networks within a broader coastal ocean

management scheme that would benefit fisheries certainly seem

possible. Benefits, nursery functions of selected habitats, habitat

protection of key and critical habitats, bycatch reduction, protection

of spawning stock biomass, all of these can play a role in restoring

depleted fisheries, especially for sedentary species.

We do need to know the dispersal patterns of fish to make MPAs

effective, but some fish stocks, for example, West Coast rockfish,

probably could benefit from the institution of marine protected

areas. We know that the councils are considering MPAs now and,

in fact, we have some examples, as on George’s Bank, where they

have been applied to advantage, although if one looks at the social

and economic consequences of MPAs, those who think that the economic benefits will be immediate probably are wrong. We are talking about decadal effects on influencing the economy of fishermen

at least in a positive way. We shouldn’t expect to see an immediate

effect.

Fishery ecosystem plans—Lee Crockett next to me was an advocate of them—the NMFS panel, which was mandated by the reauthorization of SFA, met and strongly recommended fishery ecosystem plans be developed by each council. This would be an umbrella document within which the FMPs must sit, one that defined

the ecosystem, described it, described the key resources and habitats, the important food webs, key predator-prey relationships and

the critical functions and processes in ecosystems. FMPs should fit

into this overall FEP.

This would require action in the SFA reauthorization process,

perhaps Congressional action, and I think most people in the scientific community would recommend it.

Summing up, there are lots of data needs, and the NAS data report specifically outlines them and assigns things that Congress

and NMFS and the councils can do. There is a long list in my written testimony that you could refer to. There are manpower issues

in science, quantitative fishery scientists are in short supply; independent review of fishery management plans is difficult to undertake because there are so few people with strong quantitative

training. Council staffs perhaps need to be boosted with people
38

with a strong quantitative training. We are in a Catch 22. Virtually

all U.S. citizens who obtain a Ph.D. in quantitative fishery science

are hired by the NMFS.

This is good, but who is going to train the next generation of

quantitative fishery scientists? In summary, I refer to Pamela

Mace’s superb 1997 paper on the state of marine fisheries globally.

In her order of priorities, she ranks the science needs lower than

social and economic needs in restoring fisheries to their important

role in our economy. She says inadequate national policies, inadequate institutions and other mechanisms, inadequate data and

statistics, inadequate or inappropriate management goals and inadequate science, all of these are issues that need to be addressed in

an SFA reauthorization.

I urge you to keep them in mind as you move forward in reauthorizing the Fishery Conservation and Management Act.

[The prepared statement of Mr. Houde follows:]

Statement of Edward D. Houde, Professor, University of Maryland

Center for Environmental Science

Magnuson Act in its original and amended forms has been in effect for more than

25 years. Fisheries management under the Sustainable Fisheries Act must be undertaken using the best available scientific information. From the outset, it was recognized that knowledge of many fished stocks was incomplete. Basic knowledge of

biology sometimes was lacking; understanding of population dynamics and estimates

of abundance, mortality rates, and production potential often were completely lacking. In the 1970’s there already was a sense that management dependent on defining a Maximum Sustainable Yield, which assumes that the productivity of a fished

stock is a function only of the stock’s biomass, was insufficient. Nevertheless, this

easily calculated, objective criterion became the standard by which management

measures were gauged. MSY still remains an important reference point in management of U.S. fish stocks in the Exclusive Economic Zone, although not usually the

target that it once was. In the early days of the Magnuson Act, most members of

Scientific and Statistical Committees that advised the Councils struggled to understand MSY and few on the Councils understood the concept. The SSCs and the

Councils have grown in knowledge and sophistication about fisheries principles and

concepts in the ensuing 20 years. We now understand the MSY concept, know that

it is insufficient as a management standard and target reference point, but we also

now recognize how complex fish population biology is, especially when effects of fishing are added to the mix of environmental variability that is common in marine ecosystems.

The science and technology associated with stock assessments certainly has advanced since implementation of the Magnuson Act and has continued to improve

since reauthorization in 1996. The evolution of stock assessment modeling has been

particularly significant. A recent National Academy of Science report (NAS, 1998)

noted that assessment methods are relatively reliable and robust when the data on

abundances are reliable. The caveat is important. The conclusion in the 1998 report

was supported by a second NAS report (NAS, 2000a) on marine fisheries data collection that urged Congress, NMFS and the Regional Councils to standardize, upgrade

and improve the methods to collect, manage and use data as an important step toward improving stock assessments and management based upon assessments. Stock

assessments are far from perfect and are dogged by uncertainties that concern fishers and managers alike. The quality of assessment models, however, is not the

major problem in reliably managing fish stocks under the SFA.

The fraction of overfished stocks in the U.S. fisheries is similar to that reported

globally (25–30 percent). A smaller fraction of these stocks is near collapse and requires draconian measures to stabilize them and restore them. Restoration may

take decades for some stocks, even under the best restoration scenarios. NOAA/

NMFS reports in recent years have indicated an increase in the number of identified

overfished stocks, but those increases are mostly a consequence of better stock assessments that have now categorized stocks that were previously uncategorized (the

majority of stocks) as overfished. There has been no dramatic shift in numbers of

overfished stocks since 1996. There is reason to believe that management can be effective under the SFA and improve the status of many heavily exploited stocks.
39

Specific guidelines for rebuilding of overfished stocks were provided in the amended SFA. In the most recent years, Councils have tried to follow these guidelines, but

in most cases stock rebuilding is still underway and success cannot be judged yet.

I am cautiously optimistic that the new paradigms of fisheries management that became prevalent in the 1990’s on a global scale will be beneficial to U.S. fisheries

and will stabilize overfished stocks, successfully rebuilding many of them.

The new paradigms, which are recognized in the amended SFA hinge on the precautionary approach to resource management that has been adopted as a standard

globally (FAO 1995). Is this paradigm worth more than the vast amount of press

that it has generated? Does the approach guide management actions that are being

implemented by the Regional Councils? My sense is that the ethic espoused in this

approach, which advocates risk-averse targets as biological reference points relative

to those recommended historically, is accepted in principle and is being applied in

amendments to many FMPs. There has been a notable shift toward setting fishing

mortality rates and target spawning stock biomasses at levels that provide opportunity for overfished stocks to recover. U.S. scientists have taken a lead in developing criteria for setting risk-averse biological reference points to restore stocks that

are overfished and to protect stocks at higher abundance levels (e.g. Restrepo and

Powers 1999). I know of no dramatic recoveries in stocks since 1996 (there has not

been enough time), but it is probable that reference points, targets, and limits on

fishing mortality and spawning stock biomasses that have been set since implementation of the amended SFA will reverse stock declines in many fisheries.

Inclusion of specific language in the present Magnuson-Stevens SFA reauthorization process that addresses selection of target biological reference points relative to

the broader range of reference points that could be selected will be useful to the

Councils. Many FMPs already are being revised with precautionary fishing mortality and spawning-stock biomass targets specified. In this context, it is interesting

to note that the NAS report Sustaining Marine Fisheries specifically advised that

the first step in moving toward ecosystem-based approaches to fisheries management was to respect the uncertainties in behavior of marine ecosystems and set conservative fishing targets in single-species fisheries (NAS 1999a), thus relieving

stress to the individual exploited stocks that often are key constituents of ecosystems.

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 is so broad that it is questionably useful in the management process. Some additional thinking is necessary, to be followed by more specific language on EFH in a reauthorized SFA. I am not certain that a specific

National Standard needs to be added to the SFA in the present reauthorization, but

this possibility should be considered. The EFH concept has stimulated a flurry of

scientific activity directed toward understanding habitat issues in the past few years

that should be useful in developing criteria and standards for FMPs.

On a global basis, social scientists and economists have recognized the need to

control burgeoning effort and excess fishing capacity by restricting the open-access

privilege to fish. Limiting entry and establishing individual fishing quotas (IFQs)

have been debated vigorously (e.g. Hanna et al. 2000). A NAS study, requested in

the SFA (1996) reauthorization was guardedly positive on the role of IFQs and recommended that they be allowed in specific fisheries at the discretion of the Regional

Councils. The accumulated evidence from a scientific perspective supports the implementation of IFQ 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 IFQ permits. Benefits of IFQs in addition to

controls on effort (and fishing mortality) are probable. IFQ-based management is potentially more ecosystem friendly than unrestricted participation in some fisheries.

This may be true, for example, with respect to fishing impacts on habitat and with

respect to bycatch reduction. I believe that Congress should allow IFQs as a management approach in a reauthorized SFA. I am sensitive to the arguments against

this approach, but the evidence is strong that IFQs can benefit some fisheries. The

Councils should have the possibility to implement them in appropriate situations.

The NAS undertook a study on the Community Development Quota Program in

Alaska in response to a request of the 1996 Magnuson-Stevens reauthorization

(NAS 1999b), concluding that this community-based experiment in managing and

allocating fisheries resources is succeeding, bringing both social and economic benefits. In a broader context, consideration of other community-based management and

shared management approaches that actively involve stakeholders seems justified

and a means to promote equitability in fisheries. I am no expert on this approach,

but the reauthorization process needs to address co-management and its potential,
40

especially its relationship to and role that it can play with respect to traditional,

more centralized authority vested in management by the Federal Government and

the Regional Councils.

There is a growing worry that fisheries management is too little concerned with

marine ecosystems, their stability, variability, and the sustainability of high productivity that will assure sustainable and profitable fisheries. The amended SFA (1996)

recognized this concern. 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 of Commerce and Congress to expand application of ecosystem principles in fisheries management. The report of the Panel

(NMFS, 1999) includes many specific recommendations and a major conceptual recommendation—the proposal that each Council develop a Fishery Ecosystem Plan(s)

within their regions. A FEP is envisioned to be a document that serves as an umbrella under which individual FMPs would reside and to which they must adhere.

If adopted, many individual FMPs would be more ecosystem-sensitive. The function

and structure of ecosystems would be at the center of concern with respect to management of the ecosystem’s constituent fisheries. The recommendations of the Panel,

listed below, should be debated and seriously considered for inclusion in a reauthorized SFA:

Develop a Fisheries Ecosystem Plan

• Delineate the geographic extent of the ecosystem(s) that occur(s) within Council

authority, including characterization of the biological, chemical, and physical dynamics of those ecosystems, and zone the area for alternative uses.

• Develop a conceptual model of the food web.

• Describe the habitat needs of different life history stages for all plants and animals that represent the significant food web and how they are considered in

conservation and management measures.

• Calculate total removals—including incidental mortality—and show how they

relate to standing biomass, production, optimum yields, natural mortality, and

trophic structure. • Assess how uncertainty is characterized and what kind of buffers against uncertainty are included in conservation and management actions.

• Develop indices of ecosystem health as targets for management.

• Describe available long-term monitoring data and how they are used.

• Assess the ecological, human, and institutional elements of the ecosystem which

most significantly affect fisheries, and are outside Council/Department of Commerce (DOC) authority. Included should be a strategy to address those influences in order to achieve both FMP and FEP objectives.

Measures to Implement FEPs

• Encourage the Councils to apply ecosystem principles, goals, and policies to ongoing activities.

• Provide training to Council members and staff.

• Prepare guidelines for FEPs.

• Develop demonstration FEPs.

• Provide oversight to ensure development of and compliance with FEPs.

• Enact legislation requiring FEPs.

Research Required to Support Management

• Determine the ecosystem effects of fishing.

• Monitor trends and dynamics in marine ecosystems (ECOWATCH).

• Explore ecosystem-based approaches to governance.

The Ecosystems Panel recognized the potential benefits of Marine Protected

Areas, some of which could be Marine Reserves that would prohibit fishing. Closed

area management is not new in fisheries but has been used rather sparingly. The

concept of closed areas, with various restrictions on fishing, was recognized in the

1996 reauthorization (SFA, 1996) and has been on the planning tables of Regional

Councils in recent years. Some areas have, in fact, been closed to many kinds of

fishing effort (e.g. parts of Georges Bank). A detailed study of MPAs by the NAS

(2001) broadly evaluated their potential, including their use as a tool in fisheries

management. The NAS Committee concluded that MPAs did have a role in fisheries

management. In the broadest sense, setting aside areas to protect spawning stock

can serve as buffers against the uncertainties of accurate stock assessments, a kind

of insurance. More specifically, the Committee recommended that MPAs for fisheries

conservation should be designed as parts of broader networks of MPAs that are

zoned for permitted activities, with the networks included in a broader plan of coastal ocean management that considers the full spectrum of human activities and need
41

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. The Committee did not specify

any particular size or numbers of MPAs that would be required to benefit fisheries

management, believing that each region or case would have to be considered individually. If MPAs become a significant tool in fisheries management, they will represent a shift in emphasis from traditional management measures that seek to control catch levels and fishing effort (amounts or types) toward an emphasis on managing the spatial components of ecosystems for specific benefits to fisheries and fish

stocks. Management that includes MPAs as a tool may have particular benefits in

meeting EFH goals, in reducing damage to unique habitats from fishing, in reducing

bycatch of young fish, in protecting endangered or threatened species, and in conserving biodiversity of marine ecosystems.

MPAs cannot be viewed as a stand-alone solution to fishery management problems. In some instances it is probable that fisheries benefits and values will outweigh the environmental costs attributable to fishing and MPAs may not be recommended from either an economic or environmental viewpoint. Language in the

pending reauthorization of the SFA should address the issues of costs and benefits

of not only EFH considerations, but also of the broader issue of establishment of

MPAs. The urgency 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.

The issues of data availability, collection of data, and data management for stock

assessment and management purposes represent key needs for improvement that

should be addressed in the reauthorized SFA. The NAS Committee, in its report

(NAS, 2000a) developed a comprehensive list of detailed recommendations specifically addressed to Congress, NMFS, or the Councils. Many of the same concerns

also were expressed in the Heinz Center report (Hanna et al., 2000). I hope that

the NAS recommendations will be considered during the SFA reauthorization process. It seems certain that implementing the recommendations will require new funding. I have consolidated and summarized some of the NAS recommendations: • Congress and NMFS. Standardize and improve fisheries data collection and

management methods and procedures nationwide. Develop a Fisheries Information System. Fund these efforts. • Councils. Councils should 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 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.

• NMFS and Councils. Scientific review of stock assessments by independent scientists is important. Add stock assessment experts to Council staffs.

Many of the recommendations in the bulleted statements above will require significant increased funding and also additional staff and personnel trained in quantitative fisheries science, economics, and sociology. At present, 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 NAS workshop (NAS 2000b) on manpower needs in NMFS explored

the need for such experts and made recommendations to NMFS that may help recruit new talent. However, it is not certain that such needs can be met in the short

term without significant stimulation of effort and funding by Congress. Further-
42

more, the needs for stock assessment experts and socioeconomic experts on Council

staffs and in academia (to train the new wave of experts) is problematic, a kind of

Catch–22 since virtually all experts in quantitative fisheries science at the Ph.D.

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.

The shortage of scientists with strong quantitative skills in fisheries also results

in a reduced pool of independent reviewers of stock assessments and other technical

elements of FMPs. Each Council is required to maintain a Scientific and Statistical

Committee. Included on SSCs is a small cadre of quantitative scientists that is burdened repeatedly to review stock assessments by some Councils. However, the eight

Councils do not use the SSCs in any uniform fashion. There is a need to increase

the pool of experts, but also to move toward standardizing the process by which

SSCs review technical components of FMPs and provide advice to the Councils.

There are many science-related issues that should be addressed in the reauthorization process. The problems of fisheries science and management, and recommendations to solve them, were superbly documented 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.

Mace (1997) 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. Also, she 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. I agree with that statement. Mace (1997) lists the inadequacies of science and management that need to be addressed in developing overall

fisheries management programs. The order of presentation represents the relative

magnitude of the problem in her view:

• Inadequate national policies and international standards.

• Inadequate institutions and other mechanisms for involving stakeholders.

• Inadequate data and statistics.

• Inadequate or inappropriate management goals.

• Inadequate science.

As the SFA reauthorization process moves forward, it is appropriate that these

inadequacies be kept in mind and addressed. The reauthorization process offers an

opportunity to improve the SFA and marine fisheries performance. I am reasonably

optimistic that an amended SFA can be a major element in the long-term prospects

for revitalization of U.S. fisheries.

References Cited

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. 1999c. The community development quota program in Alaska and lessons

for the Western Pacific. 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.
43

NAS. 2001. Marine protected areas: tools for sustaining ocean ecosystems.

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Restrepo, V. R. and J. E. Powers. 1999. Precautionary control rules in US fisheries management: specification and performance. ICES Journal of Marine Science

56:846–852.

Mr. GILCHREST. Thank you very much, Dr. Houde.

I will yield first to the gentleman from New Jersey for any questions he may have, Mr. Saxton.

Mr. SAXTON. Mr. Chairman, I have two questions, both of

which—none of which will be a surprise to anyone in the room. In

the purposes of the Magnuson Act, purpose number one is to take

immediate action to conserve and manage the fisheries resources

found on the coasts of the United States, and it goes on from there,

but that is kind of the introductory phrase in purpose number one.

And then, when we get over to purpose number six, it says to encourage the development of the United States fishing industry of

fisheries which are currently underutilized or not utilized by

United States fishermen.

Let me suggest that I think that there has been demonstrated

a conflict between those two provisions in terms of purposes in this

act, and I think that is demonstrated to the detriment of commercial fishermen; to the detriment of recreational fishermen and to

the dismay of conservationists, and I don’t ask this question to suggest that anyone is to blame for this. We wrote the law, and NMFS

implements it, and Members of this Committee observe it, and

members of the conservation community and the fishing community comment on it.

But the fact of the matter is that the process involving those two

provisions of this law provided for the development of utilization or

utilization of various fisheries around the coastal United States in

a very distinguishing pattern. We encouraged the development of

the ground fish fishery in New England, and it collapsed. We encouraged the development of the shark fishery in the Atlantic, and

today, the shark population is down to an estimated 80 percent of

what it was at one time.

We encouraged the development of the redfish fishery in the Gulf

of Mexico, and it collapsed, and then, we applauded when it recovered after conservation measures were taken. I am not as familiar

with the West Coast, but my understanding is the same thing happened with the sea urchin fishery, and of course, I am very familiar

with the international problems involved in the salmon fishery on

the West Coast, all of which involve activities by the Congress as

well as regulators, the Department of Commerce in particular, on

all of these fisheries.

And so, I guess my question is wouldn’t it be a worthy goal for

us to try to find a different way to spell out the purposes of this

bill in such a way that we would get to the point where the objectives of the Sustainable Fisheries Act are carried out more effectively by this law and help us create a more comfortable situation,

a more economically feasible situation for the commercial fishery

and all of the other discomfort that we create unwantingly for all
44

of us who are involved either from the lawmaking, regulatory or

participation directly in the fishery.

Dr. Hogarth, would you like to comment particularly on these

two provisions and the purposes?

Dr. HOGARTH. Well, I think part of the problem is in the way we

manage fisheries. Over the years, I think we have reacted to situations rather than proacted. And if we have a problem in a fishery

we are not managing as a group, we switch the fishery from one

fishery to another. We don’t tailor the capacity to sustainability.

We look for a way to transfer the fleet as a whole. And I think we

just need to do a better job of tailoring capacity to the sustainability of the fishery, and we need to be proactive and look at how

we are managing the group as a whole rather than snapper grouper complex. We may manage one species and the fishery has 80

species in it. And what happens is that, in my opinion, is that you

do tremendous damage to one fishery, and then, you have to find

a way to switch over to another fishery.

We have put people on underutilized species, and we have caused

an increase in effort, and that is what we hear. And as a Government, you told me to go fish for sharks, and now, you are telling

me that I can’t. And so, you financed us to get into the business;

now, I feel you ought to help finance us to get out of the business.

So I think we have to look at what our real goal is in fishery management in the U.S., and what do we want it to be 5 years from

now and 10 years from now. What type of fishery do the citizens

of this country want? And then, we have to bite the bullet and do

what is necessary both recreationally and commercially.

Mr. SAXTON. Mr. Crockett?

Mr. CROCKETT. I think we agree with you that there are crosspurposes in the act and within the agency. The predecessor of the

National Marine Fisheries Service (NMFS) was the Bureau of Commercial Fisheries, and for a long time, the purpose of the Magnuson Act was to promote U.S. fishing. It was to phase out foreign

fishing and promote U.S. fishing. There were a number of programs, for example, loan guarantee programs and other sorts of

subsidies, programs to identify underutilized species and promote

them, designed to promote U.S. fishing.

The SFA, for the first time, shifted that focus from one of promoting fishing to conserving fish. That has been a painful transition, and we think it needs to continue forwards. Perhaps changing

the purpose of the law will help. The fact of the matter is that if

you don’t have fish, you don’t have fishermen. So we think you

need to put fish first; conserve fish so there are fish for fishermen

to catch. It is as simple as that.

Mr. SAXTON. Thank you. I am sorry. I wish I could—I am going

to have to leave at this vote, and I won’t be able to return. So let

me just get my second question on the record. I guess it is Section

97-453 of the act, Section 303(b) has a section entitled discretionary

provisions which are essentially, the way I interpret it, tools that

may be used to help to carry out a fishery management plan. One

is to require permits, not to require permits but the council or the

Secretary may require permits; may designate zones where and periods when fishing may be limited; three is to establish specific limitations where necessary; four is to permit limit condition or re-
45

quire the use of specified types and quantities of fishing gear. Five

is to incorporate, consistent with the national standards and other

provisions of this act and any other applicable law the relevant

fishery conservation and management measures of the coastal

United States nearest to the fishery and so on.

Seems to me that that is a lengthy list, and I won’t go on. It goes

through 12 tools that can be used to help adequately manage a

fishery. And yet, in respect to the highly migratory species fishery,

the population levels continue to be down an estimated 70 percent

for some species such as marlin; higher levels, still in the seventies,

for species such as sailfish; up in the 80 percent for coastal sharks,

and yet, NMFS has these tools to use, and it is hard for me to understand why NMFS has heretofore been hesitant, to be kind, to

use these tools to provide for the necessary regulations to help

bring these fisheries back.

Now, I know there have been some steps taken. I am very familiar with the South Atlantic and the Gulf closures, but yet, most of

the scientists if not all of the scientists that I have talked to do not

believe that the measures that we have taken heretofore are sufficient to provide for the Americans’ share of the rebuilding of these

species. Can you give me some guidance?

Dr. HOGARTH. Congressman, one of the real problems with managing highly migratory species is that basically, the U.S. is such a

small player in the management of all of the highly migratory

stocks. You look at that industry, it has probably less than 5 percent of the impact on most of these species. We have to manage it

through the international arena, particularly through the ICCAT,

International Convention for the Conservation of Atlantic Tunas.

Mr. SAXTON. Excuse me; did you do the closures through the

international arena?

Dr. HOGARTH. No, what I am saying is that whatever we do in

this country makes a small dent in what happens overall.

Mr. SAXTON. That is right; the United States is 5 percent of the

world’s population, and my understanding is that we catch 5 percent of the fish.

Dr. HOGARTH. But when you have countries that are ignoring the

quotas that are set through the international arena, they exceed

their quota by 100 times sometimes. And what I am saying is the

impact from foreign countries is much greater than the impact of

the U.S. We could shut an entire fishery down and have little impact on some of these species, and that is the problem. Even

though we have closures and size limits, and this year, we will

have 250 marlin, for example, that we can kill totally, there are severe restrictions.

But unless we can get international cooperation, we have a tough

time.

Mr. SAXTON. I understand that we have a tough time, and I appreciate that, but the first provision in the purposes of the Magnuson Act is to conserve species.

Dr. HOGARTH. That is correct.

Mr. SAXTON. And yet, these species are down the percentages

that I indicated unless you disagree with that, and yet, we don’t

seem to be taking any steps to alleviate those problems.
46

Dr. HOGARTH. Well, I think the question is we are trying to, but

through the international arena is where we are not getting the cooperation. And we, as the U.S., yes, white marlin is 18 percent of

its optimal yield. Blue marlin is about 29 percent. We are extremely concerned about white marlin, you know, whether we can

bring it back? And what we have got to do is get countries like

Spain, Japan, Honduras and these other countries, Honduras that

fish on these species to practice conservation as well as we are.

We are trying to do that through compliance. We are trying to

do that through embargoes, but that is a tough issue.

Mr. GILCHREST. Dr. Hogarth, we are going to have to continue

this when we come back from the vote.

Dr. HOGARTH. Okay.

Mr. GILCHREST. Because we are down to about 4 minutes now.

I am going to race Mr. Saxton over there and see who wins.

[Laughter.]

Mr. GILCHREST. And I apologize, because it is probable that we

won’t be back here for a half an hour because there are three votes.

Is there anybody who can’t wait until 3:30? Okay; we will have a

half-hour recess.

[Recess.]

Mr. GILCHREST. Welcome back. I appreciate your patience. It was

a little bit longer than we thought, but we will try to—I don’t know

how long this is going to go. I know that statement scares you a

little bit, but let us say certainly no later than 5.

I would like to start with, I guess, Mr. LeBlanc and Mister, I

think, Gilford. My train of thought has been interrupted, so I am

going to try to get it back. We have discussed a number of things

dealing with essential fish habitat, ecosystem management and

things of that nature. A very small section of the Chesapeake Bay,

although a beautiful estuary, tidal estuary, known as the Sassafras

River a few years ago was potentially going to be developed with

about 600 houses on about 1,000 acres, and it was a fishing area

for mostly catfish but a significant number of rockfish.

An area similar to that some miles south was developed, and the

fishing in that region pretty much disappeared. This area with

1,000 acres was put into a conservation easement and a number of

other things were done to protect the shoreline. And there was a

plan pretty much developed by the Department of Natural Resources for Maryland with the Department of Agriculture to create

a better habitat for the fish and for the wildlife on the land.

Well, to make a long story short, as a result of that conservation

plan, with an understanding of what the ecosystem might be like

or should be, there are a lot more catfish there, and rockfish are

now spawning where they didn’t spawn before—in some of the tidal

ponds adjacent to that estuary. So I mentioned that to somebody

recently, and they said that anecdotal stories are good, but they

don’t tell the whole picture, upon which my reply was I have observed that little area there for more than 20 years. Part of the scientific method is observation, so the observation of that small

area—if you put everything together, it was about 1,500 acres—

was that you can restore someplace to its natural habitat; have

conservation; have management, and the end result is more fish.
47

So I guess the question is—and this is a question posed because

I would like your honest perspective on it so we can mix it with

other opinions dealing with the essential fish habitat. What do you

see as the problems with the way it is dealt with by NMFS, the

way the provisions are put into the Magnuson Act, and how would

you like to see them changed?

Mr. LeBlanc?

Mr. LEBLANC. Thank you, Mr. Chairman. I think that your example of this situation with the Sassafras River is a classic example of what NMFS has tried to address with their habitat areas of

particular concern. You have got concrete evidence that this is a

discrete unit of habitat that is sort of definable in space that makes

an important contribution to fisheries productivity, and there are

activities that threaten the viability of that habitat, and you can

use the EFH provisions and the consultation process that the agency is required to go through to attempt to prevent the degradation

of that kind of habitat, and I think with regard to the impacts of

fishing activities that that is the appropriate scope is in those

kinds of areas, habitat areas of particular concern.

From a commercial seafood industry’s perspective, the way the

councils and the agency have defined essential fish habitat is so

broad that essentially the entire exclusive economic zone has been

defined in one way, shape or form as essential fish habitat, and

that spreads out the effort to the point that you can’t implement

effective measures other than to shut down all fishing in the EEZ,

which I don’t believe is the intent of the act.

We have not seen the councils move that kind of activity under

the EFH provision, but the potential is certainly there, and of

course, in the absence of taking that action, the threat of lawsuits

for the failure to protect EFH as defined as the entire EEZ is a

looming threat that greatly concerns us.

Mr. GILCHREST. Dr. Hogarth, can you respond to Mr. LeBlanc’s

concerns?

Dr. HOGARTH. It is no doubt that the essential fish habitat is

pretty extensive, but what you are dealing with is over 700 species

of fish that we are managing, and you are dealing with two to four

life stages of each species. And so, you do have somewhat of an

overlap when you look at species; if you put a mosaic, you have got

quite a bit. But they have different ecological requirements, and so,

essential fish habitat for croaker is somewhat different from, say,

spot, but they both utilize it.

If we look at it, the essential fish habitat for most species, is now

probably about 50 to 70 percent of the habitat, but it is not all bottom. Some of it is water surface. But it is pretty extensive. Now,

what we are trying to do is to refine that. We have an interim rule

out now on essential fish habitat, and we have had many hearings

in 270 days of public comment period, and have received lots of

comments.

And so, now, we are trying to work with the councils and refine

it. That final rule will probably be out sometime in the next couple

months, we hope, but we are trying to refine it and to then take

a look at for example, what kind of activities affect the various

types of bottom habitat. But essential fish habitat is really the essential areas, as it says, to support these fish populations. You
48

have to protect spawning areas, and you may have a different area

for the juveniles and different life stages.

So when you have 700 species, two to four life stages and the

different—

Mr. GILCHREST. I see. It is pretty complex.

Dr. HOGARTH. It is pretty complex.

Mr. GILCHREST. Dr. Gilford, you mention in your testimony that

you would like to modify the definition of essential fish habitat.

How would you like to modify it?

Mr. GILFORD. I don’t think it is so much a question of modifying

it as making it a little bit more definite. What is it we are trying

to accomplish with the essential fish habitat? And what the

councils—

Mr. GILCHREST. Could I stop you there just for a second? And I

am not going to be too long, Walter. I know you have some questions. Could you respond just to that part of the statement, Dr. Hogarth, what do you want to accomplish with essential fish habitat?

Dr. HOGARTH. We want to determine the areas that are, like I

said, essential to the growth and reproduction of the marine species

that we are trying to manage. I think that is what we are trying

to protect. Some, we do know are more sensitive than others, such

as coral reefs and some others that are more sensitive, so they are

the habitat areas of particular concern that takes EFH a step further.

Mr. GILCHREST. I see.

I am sorry, Dr. Gilford. I didn’t mean to interrupt you.

Mr. GILFORD. What the council chairs were concerned about was

having a more definitive set of guidelines to help them designate,

define and designate essential fish habitat, and that was basically

the essence of the comment I was making. Certainly, we recognize

there is a need for a habitat for spawning; that spawning grounds

are necessary; that there is habitat for nursery areas; that there

is habitat for the movement back and forth for migration, but when

you are looking at such a tremendous area, without some more

firm guidance as to what is anticipated and expected, it is difficult

for the councils basically to respond.

There is no question that the issues that have been raised before,

I find it hard to believe that water is not an essential fish habitat;

they don’t do very well out of water.

[Laughter.]

Mr. GILFORD. And so, you know, consequently, to run that kind

of wide, broad opportunity to interpret, and what the councils were

looking for was a tighter set of guidelines so that they could direct

their efforts to accomplish what the legislation really intended to

get at.

Mr. GILCHREST. Thank you, Dr. Gilford.

I yield to Mr. Jones for any questions he might have.

Mr. JONES. Mr. Chairman, thank you, and I just have two or

three, and I first of all want to thank you for your leadership. You

have certainly been one of those in the Congress for the years that

I have been here, which is beginning the seventh year; you have

certainly been a leader on this issue, and I want to thank you personally and in front of this group today.
49

Dr. Hogarth, tell me what year you were director in North Carolina. I was looking at your resume, and I know they were exciting

times for you, and I just want to remember the year.

[Laughter.]

Dr. HOGARTH. 1986 to 1994.

Mr. JONES. Okay; I mention that because obviously, being from

North Carolina, and I truly thought you did a great job. You were

under a lot of political heat, and I think you handled it very well,

and you did what you thought was right for the stock. So I want

to compliment you at this time as I did the Chairman.

What I would like to ask, you know my district well, and you

know that commercial as well as recreational fishing is extremely

important to the Third District of North Carolina. And it seems

like every so often, like dealing with the striped bass, which I think

is a great success story about how the stocks have come back, but

I wonder, because questions are asked of me: when the stocks

reach the quota that you have established to make sure that the

stocks will be protected for years ahead, why the fishermen seem

to always have to be challenging National Marine Fisheries as to

when you are going to open it back up.

For example, and please correct me if I am wrong, but I understand that striped bass can be fished in the state waters, but they

cannot be fished in the Federal waters; is that correct?

Dr. HOGARTH. That is correct.

Mr. JONES. Would you tell me why it is that way?

Dr. HOGARTH. Okay; first of all, thank you for your kind comments. North Carolina was an interesting place. Still is.

[Laughter.]

Dr. HOGARTH. I enjoyed almost 9 years there.

Probably the striped bass is a success story, and it was done not

under the Magnuson, but it was done under the Atlantic Striped

Bass Conservation Act, and basically, the lead for that was the Atlantic States Marine Fisheries Commission (ASMFC), and it has

been the lead for recovery. When doing the recovery, we were

asked to close the exclusive economy zone (EEZ) as part of the

management, because there were different management schemes

from state to state, and it was very difficult to enforce or to manage

having the EEZ open.

To be honest with you, as I have always tried to be honest, we

did try to open the EEZ when I first came up here in 1994 or 1995,

and pretty much, we were told by Congress if you open it, we will

close it. I think it has pretty much been left where it is right now,

to be honest with you. And it is somewhat because there are a lot

of the large fish, a lot of your bigger spawners offshore, and it is

very difficult when the states are managing with different size limits from state to state, and different seasons. It is very difficult to

enforce when you have got the EEZ open, where size limits are

something different.

One way to do that, I think, is to let the states manage it totally

from a landing law and if the EEZ is open, they could have a landing law; we would not be involved. It is an issue that I think could

be looked at. We are not opposed to how you manage striped bass.

I mean, we will cooperate with the ASMFC and manage it.
50

Mr. JONES. Would you suggest to this Committee that in the rewrite, they look for a legislative fix to this dilemma?

Dr. HOGARTH. Congressman, I hate to see Congress manage fisheries. I think we should do the job, and I think it is probably up

to us to get with the ASMFC and put this on the agenda, and, if

we need to have scoping meetings or public hearings, look at the

issue up and down the coast to find out what is the will of the people. I really think we could do that. But if you want to legislate

it, we will carry it out.

Mr. JONES. No, I would rather not have more laws, but let me

also—did you not recently, the National Marine Fisheries Service,

reach some satisfactory conclusion to the issue dealing with summer flounder? I think there was a lawsuit filed over that issue.

Dr. HOGARTH. Yes, sir. Yesterday, we had a meeting with the

plaintiffs in the lawsuit and with the Atlantic States Marine Fisheries Commission, and we now have reached agreement. The plaintiffs are dropping the lawsuit. We have a comparable regulation

from the council to the ASMFC. We are setting up through the

Heinz Center here in this area a facilitative process to look further

at how to manage summer flounder, particularly when you have a

joint plan with the ASMFC, which is the only commission that has

regulatory authority through the Atlantic Coastal Act and then the

councils.

There are some differences of standards and guidelines that have

to be met, but we are going to get together and bring the recreational, commercial and environmental groups to the ASMFC

and the Federal people in a facilitated hearing as quickly as we can

do it to look at the process to prevent this from happening again.

Mr. JONES. You are a brave person.

Dr. HOGARTH. We can do it.

Mr. JONES. Mr. Chairman, I know my time is up. I want to ask

one more question.

Dr. Hogarth, why do you feel that there has been such a proliferation of lawsuits since the Sustainable Fisheries Act passed?

You know, I have been on several—I was on the Small Business

Committee at one time up here and then on the Resources Committee the 7 years I have been here, and I realize the responsibilities that you and others at this panel have, but it seems like too

many times—and I appreciate what you said just a moment ago

about the resolution to the lawsuit dealing with the summer flounder, but it seems like too many times that the only way there is

a resolution is because somebody has filed a lawsuit, and that costs

a lot of money.

And I am always concerned, whether it be an environmental

group or a commercial fishing group; it does not matter whether

they are liberal or conservative, whatever, that to get a resolution

that I feel should be able to be worked out without a lawsuit between the agencies and the people or the agencies and the group.

And when I think about the number of lawsuits, I think my staff

has told me that approximately 110 current cases since the Sustainable Fisheries Act passed, and I just think that might indicate

that maybe there is not that willingness when you can work out

a satisfactory solution—sometimes, you cannot, because you have

got to enforce the law as you see it.
51

Dr. HOGARTH. Congressman, I think the reason for the lawsuits

is somewhat complex, but I think it is not just the Sustainable

Fisheries Act. I think one of the biggest ones right now is the Endangered Species Act. What has happened now, I think there are

people who would like to see things done or things protected to a

large extent. There are others who think we have done too much,

and I think what has happened in this process is it is very easy

to get a judge to listen to these types of cases when you have not

done enough to protect sea turtles, or the flip side if you do a biological opinion, and you say you have got to shut down the swordfish fishery; you have the commercial industry that, has a great impact, and so, you get lawsuits.

I do not know how we stop that from the Endangered Species Act

standpoint. Regulatory effects have caused some problems. The

Magnuson-Stevens Act, I think, has about 34 lawsuits. Concerning

the Marine Mammal Protection Act, there are some things in there

that we get lawsuits on, such as the impact on right whales. Also,

we have porpoises in Florida that people are feeding, and we have

had children bitten, so you have to enforce that.

So I think it is a sign of the times, but I do think we have to

try to figure a way to negotiate when we get some of these lawsuits

and see if we can settle them. It is tough. It costs us a lot of money

as an agency. It costs a lot of time, and I am not sure that it is

helping to rebuild fish population or even the endangered species.

I am firmly convinced that we are making progress right now rebuilding fisheries, but we are getting tied up in knots with the Endangered Species Act, particularly with Pacific sea turtles and East

Coast sea turtles. In the next two to 3 years, in my opinion, this

is going to be a major issue, but when you get your largest fishery

in the world shut down for stellar sea lions and the whole State

of Hawaii shut down for sea turtles, it just brings about lawsuits.

I don’t know how you stop that.

Mr. JONES. I don’t either, and I guess that there are many of us

in the Congress on both sides of the political fence that would like

to see a rewrite of the Endangered Species Act and use more of

sound science, so to speak, as it deals with some of the species that

maybe at one time were endangered but now are not, and in my

district and throughout the south, the piping plover has created a

lot of interest and, in many cases, a lot of problems for the citizen,

but Mr. Chairman, with that, I have got two or three other questions I would like to submit, and if they could—Dr. Gilford and Dr.

Hogarth could answer, I would appreciate it at that time.

Mr. GILCHREST. Do you want to ask some more questions?

Mr. JONES. I have got to go to an MWR, Morale, Welfare and

Recreation panel hearing.

Mr. GILCHREST. Oh, do you want to ask your questions now, Walter, or do you want to submit them for the record?

Mr. JONES. I am just going to submit them if that is okay.

Mr. GILCHREST. That is fine, Walter.

Mr. JONES. Thank you.

Mr. GILCHREST. And I appreciate the gentleman from North

Carolina coming, and we have piping plovers in Maryland also, and

we are trying to protect those little critters as you are also. And
52

we will submit those questions for the record, Mr. Jones, and try

to get some answers back as quick as we can.

I just have a few more questions. I would like to continue on the

line of thinking of essential fish habitat and ask Dr. Houde if you

would comment on your perspective of the need to establish some

type of—whether it is a definition or a guideline—for essential fish

habitat that would be useful for a council to implement. And do you

see any connection between the concept of essential fish habitat

and marine protected areas?

Mr. HOUDE. Yes; thank you, Mr. Chairman. I go back to your

earlier comment about the area that you are familiar with on the

Chesapeake Bay, and you noted that taking the right measures to

protect the shoreline and to protect the estuary from development

resulted in higher fish productivity and better fishing. If we go into

freshwater habitats, I think we find it even easier to define those

particular areas that are critical for particular life activities of

fishes.

As we move out onto the continental shelf, where the SFA is applied in the economic zone, 3 to 200 miles, it becomes increasingly

more difficult to define what areas are critical to species. Species

have larger ranges. They can use more habitat. There are areas

that are preferred over others, but these species can adapt, in

many cases, to a wide range of habitats.

Nevertheless, there are some areas, particularly hard bottom

areas, coral reef areas, the kinds of areas that are required as

nurseries, for instance, for young groundfish that can be identified.

I think specific guidelines could be written into the SFA or documents that would support it that would define particular kinds of

habitats for particular species groups that are related to important

life activities like the spawning habitats that are required; nursery

habitats that are required; that this probably could be done; probably would be desirable.

As I have read the SFA, I don’t think that there are any prescribed actions associated with the EFH right now, and that, to me,

is where there has been a lack of attention. I think that some of

the councils and the NMFS staff have put together some quite good

comprehensive documents that define habitat for particular species

or species groups or in a generic way in this, but they don’t seem

to lead to any actions. They don’t have any prescriptions to do anything.

I am sorry, sir?

Mr. GILCHREST. No, go ahead.

Mr. HOUDE. I was going to say something about MPAs. I think

that marine protected areas, you know, can be set up for a variety

of reasons. Some that we addressed in our study were related more

to protecting marine biodiversity; to protecting unique features and

habitats in the sea, but certainly, to promote fishing was one of the

big reasons that one would want to establish MPAs, and there were

a few aspects of setting up MPAs that would seem to be particularly effective to link them to essential fish habitat, and these are

to identify those areas that are nursery areas for fish, areas where

you could protect young fish and clearly show that you would protect fish when they are growing fast to give bigger yields and to

promote and restore fisheries; that this would be one kind of link-
53

age between essential fish habitat and setting up MPAs that

should be, I think, very effective in many cases.

Areas where you would want to protect spawning stock biomass

for those fishes that are very much overfished; for sedentary fishes,

those that tend to be long-lived like Pacific rockfishes, defining essential fish habitat and creating MPAs perhaps in networks, but in

the case of rockfishes, there are some 60 or 80 species of them. No

one protected area or small, defined habitat is going to protect

them all. It would have to be a network that was constructed; could

be effective.

Mr. GILCHREST. Dr. Houde, if I could just interrupt for a second,

and then, I want to come back to you: Dr. Gilford, you mentioned

in your proposed reforms or changes for the councils to modify or

to come up with some specific guidance for essential fish habitat.

Do you think there is enough information? Does the Mid-Atlantic

Council have access to the kind of information that could establish

nursery areas, spawning stock biomass areas that are overfished in

coordination with a marine protected area and understanding the

concept of essential fish habitat? Does the council have access to

that kind of information where you could then—the council itself

could define, or maybe they have defined, what is essential fish

habitat and then what might be a useful marine protected area?

Mr. GILFORD. The basic problem with the essential fish habitat

from my point of view—I can’t speak for all of the council chairmen, because I am sure they have different concerns—the major

concern that the council chairmen had was some clear guidelines,

some tighter guidelines as to what was to constitute essential fish

habitat. From my perspective, the problem that I see with it is the

interpretation of the data that is available to us.

Let us take nursery areas. Do we identify each nursery area as

essential fish habitat? And then, having done that, what is it we

are going to do with that? Now, there is no question that that is

an advantage to us. Our council has used information of that type

in working with the Corps of Engineers in the Chesapeake Bay to

prevent the permitting of a pier and dock that was going to be put

right in an area which was an essential nursery area.

Mr. GILCHREST. Where was that?

Mr. GILFORD. In the Chesapeake Bay, near the—I don’t recall exactly which location it was, but it was in the Chesapeake Bay. The

problem that we have is that you have data that is incomplete.

How do you use it? How do you interpret it? Do you interpret it

in a risk-averse fashion, or do you say we won’t do anything with

that until we have more information?

So we were looking for guidelines to tell us to what extent we

would pursue identifying and defining areas as being essential fish

habitat. It is a question of trying to satisfy the intent of the legislation and to satisfy the interpretation that the National Marine

Fisheries Service put on that legislation. It is not a problem of

being concerned about essential fish habitat. That is almost, if you

excuse the expression, a no-brainer. But yes, the essential fish

habitat is just that: it is essential. The fish have to have certain

requirements for growth, spawning, breeding, migration.

The issue comes down to is every piece of aquatic habitat that

is used for spawning and breeding and growing, maturing and feed-
54

ing, going to be identified as essential fish habitat, and what are

we going to do with that essential fish habitat, having identified it

as such?

Mr. GILCHREST. Well, Dr. Gilford, would you like to see the Congress set specific essential fish habitat guidelines in the reauthorization, or would you like to see us give direction to Dr. Hogarth

to establish specific guidelines?

Mr. GILFORD. I think that my preference would be to see specific

guidance given to the National Marine Fisheries Service to establish that, yes.

Mr. GILCHREST. Mr. Crockett?

Mr. CROCKETT. Thank you, Mr. Chairman. I think you know in

a past life I worked for NMFS on an essential fish habitat. I helped

draft the regulations. And one of the things that we found during

that process was that there isn’t a great deal of knowledge on the

habitat requirements of many of these fish species. Dr. Hogarth

mentioned how many there are and how many life stages there are.

There also isn’t a great deal of data, especially on the locations of

the habitat when you get in Federal waters.

And so, what we tried to do was provide councils with flexibility

that recognized that there was lots of different species with different habitat requirements in different areas. We tried to provide

guidance that was flexible enough to allow the identification for all

of those species, given the fact that there isn’t great data out there.

And what the councils chose to do was to use it in a precautionary

manner.

I will give you an example. In Dr. Gilford’s council, that council

was provided information from the Northeast Fisheries Science

Center that would have enabled them to identify only 50 percent

of the habitat for many of these managed species as essential habitat. They are fortunate in that they were in one of the locations in

the country where there is a long data set from the Northeast Fisheries Science Center.

That council had alternatives: 50 percent, 75 percent and 90 percent, and it chose to identify 90 percent of the habitat as essential.

I find it kind of interesting now that the council chairs are asking

for further guidance when they had opportunities initially to identify much narrower areas as essential fish habitat. I will give you

another example on the West Coast. That council was provided

with a recommendation by the National Marine Fisheries Service

that salmon EFH shouldn’t extend past 60 kilometers offshore,

which is about 37 miles. The council decided to identify salmon

EFH all the way out to the boundaries of the EEZ.

So again, another example where they chose to identify broader

areas.

Mr. GILCHREST. Are you saying the council had the option to

identify a much more narrow scope—

Mr. CROCKETT. Yes.

Mr. GILCHREST. —of essential fish habitat.

Mr. CROCKETT. And they chose to identify it in a broader manner, because as I understand their concerns, and my organization

feels this is appropriate because habitat alterations are often irreversible. If you build a dock, or you build a breakwater, or you de-
55

stroy a coral reef or something like that, it is going to be very difficult if not impossible to reverse that alteration.

And so, we think it is appropriate to be cautious. In my view,

what the councils did by identifying broader areas initially was

that they were being precautionary. How do you decide which of all

the spawning habitat you can sacrifice? I would attest that you

cannot make that decision right now, so the appropriate move is

to be precautionary; identify a larger area and then narrow it over

time, as the data becomes available. That is what the NMFS guidelines allow for.

Mr. GILCHREST. Dr. Gilford?

Mr. GILFORD. Well, there is no question we were encouraged to

use a precautionary approach, and I don’t have a problem with the

precautionary approach within reason. I think that the thing that

was a problem to us was we were virtually living—in submitting

our material to the service for approval were virtually living in a

situation where we will know it when we see it. No one had a feeling for really what was the appropriate, adequate, reasonable

amount to do. And yes, people did go, and they were urged to interpret the data in a precautionary fashion.

So consequently, you had a lot of habitat labeled as essential fish

habitat which, in fact, may not be essential fish habitat. Admittedly, we had a great deal of help in our council through the service

and through the lab in New Jersey to identify essential fish habitat

based upon data that was available to us. But when it comes right

down to it, you may have a tremendous amount of data out there,

of habitat out there labeled essential fish habitat which, in fact,

may not be that, and at some point in time, that may come back

to help you.

Mr. GILCHREST. I just have one more question, and then, I will

yield to the gentleman from Guam.

I’ll have some other questions after the gentleman from Guam is

done, but Dr. Hogarth, do you see the nature of the disagreement

about essential fish habitat, and do you feel that there needs to be

more—do you feel that the language in the SFA is sufficient, or do

you see the need for more specific guidance on this issue to the

councils?

Dr. HOGARTH. I think we see a need for more specific advice to

the councils, and we are in the process of doing that. This has been

a very controversial issue, and right now, with the new Administration, we do not have all of the people in place, and I think until

we get NOAA people in place, I am not sure you will see additional

guidance. It is a controversial issue, and I think it needs to be

aired. I think the agency has discussed it, and we know that further guidance needs to be done.

And I do think one thing: it was easy, when you said essential

fish habitat, and it had no regulation attached with it. I think it

was somewhat easier to designate expanded areas, so to speak.

Now, we are initiating studies to look at the gear effects, for example, does a long line have effect on a various habitat? Does a trawler have effects?

And we are trying to now look at specific effects of gear on various types of habitat. Once some of that work is done, I think you

will be able to refine some of your essential fish habitat issues. So
56

I think we are capable of doing it, and I think it is up to us to give

further guidance to the councils and work with them.

Mr. GILCHREST. Thank you, Dr. Hogarth.

I yield now to Mr. Underwood.

Mr. UNDERWOOD. Thank you, Mr. Chairman.

I have a list of 15 questions, but I know it has been a long day,

so I will just enter them for the record.

Mr. GILCHREST. All right; is that it?

Mr. UNDERWOOD. That is it.

Mr. GILCHREST. You are easier than I am.

I just have—well, I was going to sit back for a few minutes. Now,

I wasn’t able to ponder, Mr. Underwood.

[Laughter.]

Mr. UNDERWOOD. Well, let us ponder together.

Mr. GILCHREST. All right; we will ponder together.

Let’s turn to marine protected areas, Dr. Houde. In a recent

study that you were participating in with the National Research

Council, the suggestion was made to protect 20 percent of the potential fishing areas; providing worthwhile reference point for future consideration and emphasizing the importance of greatly expanding the areas currently protected. Can you tell us how you arrived at protecting 20 percent as opposed to 30 or 15? Is that a specific scientific calculation?

Mr. HOUDE. You know, we discussed that 20 percent figure a lot.

It is one that is seen in a lot of literature on marine protected

areas as a number that has a bit of support in this scientific literature, perhaps more historically than at present. And for the

record, our Committee did not recommend it. We talk about it in

the text as being a number that is frequently mentioned, but we

say that marine protected areas, that each area has to be considered on its own merits and needs and that some areas much smaller than 20 percent in some ecosystems would probably be effective;

in some ecosystems, maybe more than 20 percent.

The history of it is that it comes from a conference that was held

about 1990 by some fishery scientists. At that time, we thought

that if you could protect 20 percent of the so-called virgin spawning

stock biomass of a species that this would be protective of the future reproductive capacity of the stock, and the reasoning was that

for those fish that don’t move much as adults, that on average, by

setting aside 20 percent of the area that the fish lived in that you

would protect 20 percent of the spawning stock biomass.

That might be effective for some fish like coral reef fishes; those

that are associated with hard bottom, but it might not be effective

for others. Subsequently, we also know that the 20 percent protection figure for spawning stock biomass is not necessarily correct or

right for many species. It could be more or less.

Mr. GILCHREST. Could you identify species that the 20 percent

figure would be beneficial to, and then, identify those areas where

the species that benefit from it—for instance, the areas that are

their spawning areas that could be set aside? I guess can you identify where that 20 percent figure would apply in the coastal areas?

Mr. HOUDE. I don’t know that I could personally, but I think

there are people who for particular fishes—again, I will cite the example of Pacific rockfishes—who could do this. I think that the 20
57

percent figure for Pacific rockfishes, if you were using the spawning

stock biomass criteria might not be high enough. For some of your

relatively short-lived fishes, things like the croakers and spot and

things that Dr. Hogarth mentioned, protecting 20 percent of the

spawning stock biomass probably certainly would be sufficient.

For some crustacean fisheries like the shrimp that Mr. LeBlanc

mentioned, protecting an even smaller part of the spawning stock

biomass would be sufficient. So fish with short lives and high fecundities, you can conserve with relatively small areas to conserve

spawning stock biomass. For those that are like cod and haddock

that are in trouble, the 20 percent might in fact be low. We might

want to think of 30 percent or 40 percent if you were going to just

use a protected area to manage this stock.

But I don’t think using protected areas alone is the way one

would want to manage these stocks. You have to use all of the

other tools that fishery scientists and managers have developed to

control fishing effort and fishing mortality and to set the quotas

and things that we normally do.

Mr. GILCHREST. Dr. Hogarth, how many marine protected areas

are there now?

Dr. HOGARTH. Congressman, that is one of the things we are trying to look at overall, because, you know, the sanctuary program

has sanctuaries in some refuges that the Department of Interior

has. As far as marine protected areas (MPAs), as far as the council

process and NMFS, we have about 37 or so that have been designated for various purposes across the country, and these are, like

I said, maybe to protect spawning or— Mr. GILCHREST. So each individual council establishes its own

marine protected areas?

Dr. HOGARTH. Yes, sir. So far, we have used it for about 20 or

25 years. It has been a process that we have used as one of the

tools, a very effective tool.

Mr. GILCHREST. Do they remain protected once designated, or

does that designation change?

Dr. HOGARTH. Some of them have changed, and some of them are

put in place for a specific time frame. They may not be all year or

forever. They may be for a spawning season like the Gulf gag

grouper was closed, the entire Gulf of Mexico was closed for 1

month to protect the spawnings of gag. We have time area closures.

We have 228 acres in the Gulf that is set aside for the snapper

grouper.

Mr. GILCHREST. 228 acres?

Dr. HOGARTH. Square miles; I am sorry, 228 square miles.

Mr. GILCHREST. I was going to say; that is not a real big—228

square acres.

Dr. HOGARTH. That was set aside with a sunset clause of, I

think, 5 years to take a look at how effective it is. We are doing

work on the effectiveness of marine protected areas. We have even

used some areas that have been set aside for military purposes to

look at what has happened there and compare that to other areas

that you have activity. Marine protected areas are not new, and it

is a very effective tool, and we feel like it is one we need to have

in the fishery management area.

Mr. GILCHREST. Thank you.
58

Do you have a question, Robert?

I would like to ask a general question and get a relatively short

answer from each witness if that is okay. The Magnuson Act deals

with a myriad of things, and what I would like to do now is see

if I can get some prioritization as to what, as you see it, some of

the major problems are. And I guess we can start from Mr.

LeBlanc and work our way from left to right: overfishing, overcapitalization, insufficient data, inappropriate management structures,

ecosystem impacts of fishing. I will just read those one more time.

Pick out two or three that you think are the major problems that

need most attention: overfishing, overcapitalization, insufficient

data, inappropriate management structures, ecosystem impacts of

fishing. Which one of those areas would you like to see the Subcommittee spend more time on over the next five or 6 weeks?

Mr. LEBLANC. Thank you, Mr. Chairman. That is always a challenging question when the list has got legitimate issues across the

board that I think ultimately need to be addressed. I think from

the list you just presented, one of the most important things I

think we need to address is overfishing and rebuilding programs

and our concepts of what constitutes an overfished fishery and

what constitutes a legitimate rebuilding program.

We are beginning to increase our understanding of the relationship between fisheries and ecosystems and environmental conditions, and in many cases, we are attempting to rebuild fisheries to

levels that may not be achievable. There are rebuilding programs

that have been implemented, for example, in the scup fishery in

the Mid-Atlantic region. The rebuilding target is extremely high.

There is 30-year relative abundancy data on scup, and over that

30-year average, the average relative abundance has been about

three-quarters of a kilogram per tow on a relative abundance

index, and the rebuilding program is 2.27 kilograms per tow. It is

three times higher than the long-term average.

Mr. GILCHREST. Now, when you say long-term average, what is

the—

Mr. LEBLANC. Thirty years. The data runs from 1969 to 1998, I

believe. If you take the average relative abundance over that 30-

year span for scup, it is about 0.78, and there are 3 years right

after the passage of the Fishery Conservation and Management

Act, the years 1977, 1978 and 1979, the average of those 3 years

is 2.27, three times higher than the long-term average, and we selected that as the rebuilding goal. It is unlikely that we could

achieve those levels of abundance even if we ceased all fishing for

scup.

And so, we have to ask ourselves questions about what our rebuilding targets are; are they realistic, and are they based on good

data and sound science, and even when they are, are we making

the right decisions about those targets, and are we recognizing that

as environmental conditions change, so does the possible and potential abundance of fisheries, and if our concepts of overfishing or

rebuilding don’t take that variability into account, we are going to

impose rebuilding programs on fisheries that don’t need them, and

we will restrict unnecessarily fishing activities and won’t end up

getting the benefit of those restrictions.

Mr. GILCHREST. Thank you.
59

Dr. Gilford?

Mr. GILFORD. From my point of view, I have three major concerns. One is the insufficient data. Fisheries management is just so

data-intensive, and we do not have good data. We have the best

available but not what we need. We don’t get the observer coverage

we need. Secondly, the managing of recovering stocks is something

that we need to improve. The problem is that as the stocks recover,

according to the management plans, fishermen see more fish. When

they see more fish, they can’t understand why they can’t catch

them.

When we get these stocks recovered, there are going to be more

fish out there. The fishermen can simply not take all of them to

the point where they don’t see them anymore, and we are right

back where we started. So we are going to have to find a way to

manage not only the fish but the fishermen when we are getting

into the category of a stock approaching recovery.

Mr. GILCHREST. You say you not only have to manage the fish

but the fishermen.

Mr. GILFORD. Certainly, yes, sir.

Mr. GILCHREST. How do you—that is an interesting statement.

Mr. GILFORD. Well, just simply— Mr. GILCHREST. What can we do to help the councils manage the

fishermen?

Mr. GILFORD. It is a matter of education from the standpoint of

the councils, an expectation and realization of what is doable and

what is not to have a sustainable fishery. When you simply cannot

fish the fish down to where you don’t see them anymore, you still

have a sustainable fishery. And yet, when the stocks begin to recover, it is understandable that the people don’t understand why

they can’t catch them because they can see them.

And when you reach that certain stage in a recovery curve that

there are a lot of fish out there, the fishermen catch them; they

have to put them back. They are discarded. Some live; most die,

and they see that as a waste and rightfully so. We need to find

some way to handle that particular problem.

And the last thing that I would say to you from the standpoint

of a council member that is so frustrating is the system is so burdened down with paperwork, it is impossible to do anything in a

hurry. It is just impossible for us to put through a management

plan in any kind of reasonable period of time, given that you have

got fish stocks out there that are growing a lot faster than we can

move. So if there is anything you can do to reduce the paper load

of work that has to be done in developing fisheries management

plans and amending them, God bless you.

Mr. GILCHREST. Yes, sir; that is a worthy goal.

[Laughter.]

Mr. GILCHREST. We will take it up as one of our priorities.

Mr. GILFORD. I wish you would.

Mr. GILCHREST. Dr. Hogarth?

Dr. HOGARTH. It is a tough list. It is like the child at Christmas.

It is hard to choose what you really want. I would say, though, insufficient data, and that, to me, covers a lot of territory. We need,

in the National Marine Fisheries Service, to modernize the agency.

When I talk about that, I am talking about stock assessments, re-
60

search vessels to collect the data and cooperative research with the

fishing industry. That is a great program that Congress has funded

the last couple of years. We need to expand that and to learn how

to calibrate the fishery industry data with the kind of data we collect, and it is a great problem.

So I think the answer is insufficient data would be my number

one. But I do think for the long term, we have got to match capacity for the sustainability of the fishery, and I think we are overcapitalized probably both in recreational and commercial. It is a

tough issue and will be a tough issue to address, but I think until

we address the capacity, we will continue to have the battles that

we are facing, because it is very difficult to manage. And also, most

plans have limited entry in them, but I think you have to, because

as stocks improve, it is a tendency for more people to want to get

in; more charter boats want to come in, or more commercial vessels

want to come in, and we have to find a way to match the capacity

of the two. I think if we could reach that point, we could stop a

lot of the controversy that is going on.

Mr. GILCHREST. Thank you, Dr. Hogarth.

Mr. Crockett?

Mr. CROCKETT. Thank you, Mr. Chairman.

Probably I would pick two things as priorities for us: overfishing,

I think we take a different viewpoint than Justin LeBlanc at NFI

on this issue. The concerns that he is raising, I think, are relative

to implementation of the act, not the act itself. Whether or not the

targets are inappropriate, and I question if that is, in fact, true.

But if they are, that is not a problem with the law. I think that

is a problem with implementation.

We see, in the overfishing area, a problem with the NMFS regulations, their national standard guidelines allow for overfishing of

a weak stock in a mixed-stock fishery. And by that, I mean if you

have a fishery that has 10 or 15 stocks, one or two of those stocks

could be in serious trouble. For example, in the grouper fisheries

in the South Atlantic and the Gulf, there are four grouper species

that are candidate species for listing under the Endangered Species

Act.

They are sometimes caught in conjunction with these mixedstock fisheries. That is allowed under the national standard guidelines. We don’t think that is appropriate, those stocks are not going

to be rebuilt unless you do something about that.

The other thing, and I will echo what several of the other witnesses have said on data: one of the solutions to the data problem

is to implement observer programs for all fisheries. Contrary to

what Mr. LeBlanc said, our proposal is not to have universal coverage on all fishing vessels. What we have said is enough observer

coverage to provide statistically valid data. We would also recognize that it is not appropriate to have an observer on every vessel

because of size and safety reasons, we would suggest that there be

exemptions for that.

We think it is absolutely essential that you get observers out on

the water, checking what is caught: bycatch, discards, all that sort

of data. You are not going to get a handle on bycatch without that

information.

Mr. GILCHREST. Thank you, Mr. Crockett.
61

Dr. Houde?

Mr. HOUDE. Yes; I think that many of the problems that we see

today are a reflection of past history: insufficient science, ineffective management, ineffective management institutions that we

have tried to, you know, reform and to improve on over the last few

years. These have led to what I call the problems of too much effort, overcapacity, which has led to overfishing. And so, the major

task that I see for management and the SFA in the future is to rebuild those stocks that are grossly overfished and that we have,

you know, abused over the past 50 or 100 years. So that is the

major problem.

The second one is the one that everybody has mentioned: the

need to improve getting data and better data. The NAS report on

fisheries data says that we need to develop a national fisheries information system, and this would, I think, be a big step to improving that data compilation management problem that we now have.

And I would say third, in the long term, we have got to begin to

face the issues that are related to multispecies management, developing the models and modeling that are required to manage species

in the way that—understanding the way that they interact in the

ecosystem and moving toward this broader kind of management

that is ecosystem sensitive, using the ecosystem approaches of the

NMFS panel that the SFA of 1996 mandated has recommended.

Mr. GILCHREST. Dr. Houde, I know there is a principle in science

known as the principle of uncertainty, that you take what you have

with some tolerance, and you move forward with it. With multispecies management, with an ecosystem approach, do we have sufficient scientific understanding of the marine ecosystem in the ocean

to begin implementing that concept as a part of our management?

Is it down the road yet?

Mr. HOUDE. I think it is down the road before we are going to

use this tool as a primary way to manage fish stocks. We are going

to have single species management for a long time. On the other

hand, it is very valuable to have multispecies and ecosystems models to run to ask the kinds of what-if questions: what if we fished

this species more than that species? What is likely to happen? It

is to provide the kind of understanding that we now don’t have

about how whole ecosystems and communities of fish stocks are

likely to respond, not necessarily to use it. Sometimes, the results

we get from these models are very non-intuitive.

Mr. GILCHREST. So there are multispecies management models

now?

Dr. HOGARTH. Yes, there are.

Mr. GILCHREST. Are they—who are they used by? Does NMFS

have them? Do any of the councils have them?

Dr. HOGARTH. Yes, NMFS has some, and the councils have access

to them. There certainly are some available in other parts of the

world for the North Sea, the Barents Sea. In Australia, there are

some available. And a lot of these are used in a conceptual kind

of way in which the models are run; the what-if questions are

asked; and this information is a part of the decision making process that goes into single species management.

Mr. GILCHREST. That is interesting.

Mr. Underwood?
62

Mr. UNDERWOOD. Well, thank you again, Mr. Chairman. Just on

the issue of data collection, which obviously undergirds much of our

perspective on all of these issues, to what extent—I am interested

in the response from the Fisheries Service and perhaps some of the

council representatives: to what extent could we rely on academic

sources, and to what extent should we rely only on in-house capacity to collect data?

Dr. HOGARTH. I think we use all sources. We presently do. We

have tens of millions a year that goes out to academics to address

issues. I think we have to use all sources: academic, the industry

and us. I think it is a combination. I think you want to have the

broad base, and you want to have the different types of views to

come in.

By the way, we are doing one ecosystem plan, and it is in Hawaii, in the coral reefs, but it is a very difficult one, where we are

trying to do a coral reef ecosystem plan, and the council has spent

a lot of money in development. It is under review right now, but

it is quite an undertaking.

Mr. UNDERWOOD. Dr. Gilford?

Mr. GILFORD. Yes, sir?

Mr. UNDERWOOD. Respond to the issue of data collection and the

use of various sources.

Mr. GILFORD. Well, I think Dr. Hogarth essentially pinned it

down. I think we do have to depend on all sources. There is some

data that is available to us if it is collectible, if there is money

available to collect it and put it in a usable form just simply from

the fisheries-dependent source. There is information that we need

to collect from observer trips, things of that type.

There is also some research that needs to be done that I think

goes perhaps beyond what the service should be doing that should

be more in the academic area or under the contract of some organizations that are specifically concerned with doing marine research.

But I think we do have to use any source that is available to us.

But hopefully, the service can be provided with sufficient resources

to collect much of the very specific data that the councils need to

do the management plans and the management measures, and I

think that is what is important to us is we depend upon the service

and, in our case, the Northeast Science Center, to provide us with

the data and the stock assessment work that we need done, and

that, I think, is quite essential to us.

Mr. UNDERWOOD. Thank you.

Would you like to respond to that, Mr. LeBlanc?

Mr. LEBLANC. Thank you, Congressman, if I could. I think the

agency has improved its willingness to use outside data, and I

want to compliment Dr. Hogarth for that. He has certainly been

more open-minded to the provision of academically-generated and

cooperative research generated data. That has not always been the

case, and I think in particular on some of the East Coast fisheries,

there was a lot of hesitancy historically by the agency to take information about the status of stocks generated by outside sources. I

am thinking in particular of surf clam and ocean quahog and scallops on the East Coast where the agency had some hesitancy.

They are certainly moving forward with their willingness to accept academic information and information generated through co-
63

operative research, and I think it is imperative. I think we all

agree that there are massive data insufficiencies and data gaps in

our assessment of stocks, and the agency should be willing to take

quality scientific data from anywhere it can get it, and again, I just

want to say that I think they are moving forward and doing a better job of that, but that hasn’t always been the case.

Mr. UNDERWOOD. Well, I would surmise that what we are looking for is quality scientific data, peer-reviewed scientific data as

well.

Thank you.

Mr. GILCHREST. I just have one more question to Dr. Gilford if

you don’t mind, sir. What I would like to do is look at a list you

have of management issues and administrative matters. Management issues: you make six recommendations for the councils. In the

administrative matters, you make eight recommendations and suggestions. What I would like to do, if it is all right with you, is to

send a copy of this to each of the witnesses and ask them to respond to it. That would give us a little—I guess we could stay

here—we probably should have started the hearing around 8 this

morning—

[Laughter.]

Mr. GILCHREST. —and gone to 8 tonight. So I hope you all feel

that your time here has been valuable, because it has been valuable to us. We are at the beginning stages of understanding a pretty comprehensive issue. I was asked a week or so ago ‘‘do we want

to completely reform the Magnuson-Stevens Act, or do we just want

to tweak it?’’ Well, everything is on the table right now. We may

end up tweaking it a little bit; we may end up with some major

changes, depending on what other Members of the House want to

do or what the Senate is going to do.

But we want to know all that there is to know about how it is

working so that we do tweak it, and we will tweak it the right way,

or if we do make major reforms, they will be positive reforms where

we can develop a consensus. So if that is all right, Dr. Gilford, we

will send it to the other witnesses.

Mr. GILFORD. The full written statement?

Mr. GILCHREST. No, we don’t need to—just actually, you have six

recommendations for management issues of the councils, starting

with—and we didn’t get to the MSY question that I wanted to hear

a discussion with a number of you, but the hour is getting late.

And dealing with locality pay—

Mr. GILFORD. The only reason I am raising the question, Congressman, is that it may be more helpful to the people to see the

full written statement so they have some understanding of what is

behind—

Mr. GILCHREST. All right.

Mr. GILFORD. —the specific summary statement.

Mr. GILCHREST. We will do that, then, the full written statement.

Mr. GILFORD. Certainly.

Mr. GILCHREST. But do any of the other witnesses want their full

statements sent to any of the other witnesses?

[Laughter.]
64

Mr. GILCHREST. Dr. Hogarth, Dr. Gilford, Mr. LeBlanc, Mr.

Crockett, Dr. Houde, we appreciate your time. Thank you very

much.

There is just one other thing. In case you have a question for us,

you know, because you may be back a couple more times, don’t

hesitate to ask us questions. The hearing is adjourned.

[Whereupon, at 4:56 p.m., the Subcommittee was adjourned.]

[Additional material submitted for the record follows:]

[Letter from Daniel T. Furlong, Executive Director, Mid-Atlantic

Fishery Management Council, submitted for the record follows:]
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66
67
68

[Response to questions submitted for the record by Dr. Hogarth

follows:]

NMFS RESPONSES TO FOLLOW–UP QUESTIONS

APRIL 4, 2001 HEARING ON MAGNUSON–STEVENS ACT REAUTHORIZATION

A. Questions Concerning Magnuson Act Reauthorization

General Questions.

1. Many factors have been identified as potential problems in US fisheries: overfishing, overcapitalization, insufficient data, inappropriate management structures, ecosystem impacts of fishing. Which of these do you

believe is the most pressing problem to be addressed?

Response: NOAA Fisheries is concerned about all of these issues, and, while it is

not easy to prioritize them, I believe that insufficient data and overcapacity are the

most pressing problems.

Reliable and up-to-date information from the biological and social sciences is critical to all of NOAA Fisheries’ missions. Without adequate fisheries science data, we

cannot carry out our most fundamental fisheries management tasks. Identifying essential fish habitat and preparing biological opinions under the Endangered Species

Act are examples of other major actions that we increasingly carry out which require data from several physical sciences. We also need data from the social sciences

to conduct mandatory regulatory assessments and conform with Magnuson–Stevens

Act national standards and FMP requirements. NOAA Fisheries has spelled out in

greater detail our needs with respect to data from the biological and social sciences

in responses to other questions.

I also believe that excess harvesting capacity in our Federally managed fisheries

is a fundamental problem that we need to address in order to deal effectively with

other needs. With this issue in mind, we set up a task force a few years ago to develop technical definitions and measures of capacity and overcapacity in the fish

harvesting sector, and recently completed a qualitative report on harvesting capacity in more than 70 fisheries. This report concludes that overcapacity almost certainly exists in more than half of them. In the last few years, we have taken several

actions to better address this problem. As examples, we have

(1) continued to support limited access measures and now have them in practically all Federally managed fisheries;

(2) worked with Congress and industry groups to administer a number of vessel

and permit buyouts in various fisheries;

(3) established a performance measure in our strategic plan that calls for a reduction of 20 percent in the number of overcapitalized fisheries by 2005; and

(4) signed on to a 1999 United Nations Food and Agriculture Organization international plan of action on the management of fishing capacity.

2. Can you give examples of previously overexploited Federally managed

fisheries that have been successfully recovered over the past 10 years?

What species would you expect to add to the success list in 5–10 years? Are

there any commonalities that might enhance our chances of success with

over exploited species? What have been the major barriers to success?

Response: A number of overfished species are on the road to recovery due to rebuilding efforts and favorable environmental conditions. In the case of New England

six years ago, the news about groundfish stocks was grim. Spawning stocks of cod

were at dangerously depressed levels and recruitment was at a record low for the

third year. Yellowtail flounder populations on Georges Bank were reduced to historical lows. Gulf of Maine haddock was declared commercially extinct. Management

measures to rebuild the stocks included year-round closures and drastic reductions

in days-at-sea.

These management measures are starting to pay off, and we are beginning to see

signs of a recovery. Recent stock assessments indicate there is some good news for

many stocks—not necessarily that there are a lot more fish of harvestable size, but

that the mortality caused by fishing is lower, or that the fish left in the water are

getting larger. In a few cases, there actually has been recruitment success; for instance, there are large numbers of young fish coming into the haddock stock. The

1998 year class was the largest in the past 20 years.

The situation has also improved for Georges Bank cod, where the stock biomass

has increased 43 percent above the record low 1995 levels. Yellowtail flounder is improving, with growing populations and decreased fishing mortality for stocks off

Georges Bank, Southern New England and Cape Cod. In addition, witch flounder
69

is well on its way to recovery; we’ve seen good recruitment and a doubling of spawning stock biomass since 1995.

Sea scallops have grown in size and number in areas closed to fishing to protect

groundfish spawning. Benefits to scallop stocks from closing portions of Georges

Bank have been significant and, in fact, scallop rebuilding is ahead of the schedule

anticipated when the rebuilding program was designed. Two summers ago, scallopers were able to return to a closed area off of Georges Bank, as an initial step

in a rotation management strategy. This opening put as much as $40 million into

Southeast New England fishing communities, benefits directly attributable to conservation from the closures. The New England Council is developing an amendment

to the Scallop FMP that would establish a rotation management strategy for the

longer term and Framework 14 was recently approved to open some previously

closed areas.

In other regions, we believe that we are making progress in rebuilding overfished

stocks. Examples are Gulf group King mackerel in the Southeast, and central Bering Sea Alaska pollock and Pacific ocean perch on the West Coast. We have also

begun recently to deal more effectively with some of the highly migratory species

in the Atlantic. In the last few years, for example, we have successfully negotiated

international rebuilding plans for Atlantic bluefin tuna, Atlantic swordfish, and

marlin species.

The above fisheries/stocks all exhibit varying signs of recovery, and we expect

some reasonable share of them to be fully recovered in the next 5 to 10 years. More

generally, the species we would expect to add to the success list in the next several

years include those that are capable of rebuilding within a short time frame, generally short-lived species with good reproductive rates. Favorable environmental

conditions as well as management measures in place that protect juveniles (e.g.,

HMS time-area closures and international cooperation to protect juvenile swordfish)

and mature females (spiny dogfish fishery) are other factors that influence rebuilding time periods. Other species such as red snapper are slow-growing and have

much longer life spans, and can be expected to rebuild slowly, even in the absence

of fishing.

In our latest annual report to Congress, Status of Fisheries of the United States,

we report that, in the most recent year alone, the number of stocks experiencing

overfishing declined from 77 to 72. In addition, we now have 75 rebuilding plans,

of which 44 were approved after passage of the SFA in 1996. Of these 44 approved

rebuilding plans, 27 have been implemented as of January 2001. The following

fishery stocks are currently managed under rebuilding plans with recovery projected

in 10 years or fewer: Atlantic sea scallop; Gulf of Maine cod; Georges Bank haddock;

Southern New England yellowtail flounder; Silver hake; red hake; Atlantic halibut;

monkfish; Dogfish; Summer flounder; Black sea bass; Vermilion snapper; Yellowtail

snapper; Red drum; lingcod; and Bering Sea King and Tanner crab.

3. What are the pros and cons of the ‘‘overfishing’’ and ‘‘essential fish

habitat’’ sections of the Sustainable Fisheries Act of 1996? What are the administrative burdens and benefits to Council staff? Can the Councils meet

the objectives they are charged with under these sections? Would it be useful to clarify the concept of essential fish habitat, and to provide a clearer

mechanism for evaluating the costs and benefits?

Response:

(A) Overfishing

The Sustainable Fisheries Act (SFA) set a new standard for overfishing by establishing the maximum sustainable yield (MSY) as an upper limit on optimum yield,

and mandated rebuilding programs for overfished stocks to a level that is consistent

with producing the MSY. This new standard sets the foundation for achieving sustainable fishery resources and realizing the many benefits from those resources for

the good of the fishing industry dependent communities, and the general public.

Achieving sustainable fisheries, however, will have impacts, particularly in the

short run. For many overfished stocks, landings and effort levels have to be reduced

to allow the stocks to rebuild. These adjustments will have obvious effects on participants in the fisheries and on dependent communities. Regulations can be designed to minimize those effects as much as possible, but significant impacts will

still be imposed on the industry. In the long-term, the benefits of identifying and

rebuilding overfished stocks are expected to far outweigh the short- term costs.

The provisions of the SFA impose a greater requirement on the Councils and

NMFS to develop more information on the status of stocks (stock assessments), the

underlying causes of overfishing, the establishment of criteria or thresholds for determining when the stock size is too low or the fishing rate is too high, and for rebuilding programs. Obviously, this has greatly increased the workload for all parties

in the system, and has placed a greater urgency that all information is available
70

to decision-makers. Staff and other resources needed to develop management programs have become overburdened. We have worked with Congress to supplement

our existing resources, and have developed plans and taken actions to meet these

needs for better science and analyses that support management. While this strained

the Councils and NMFS, significant benefits from the SFA are being realized as

stocks rebuild, and jobs and revenues increase. With the help of Congress, we expect

further successes and benefits in the future.

(B) Essential Fish Habitat

The essential fish habitat (EFH) provisions of the Sustainable Fisheries Act clarify the importance of habitat conservation for the successful management of sustainable fisheries. The EFH provisions clearly recognize that habitat must be protected

throughout the life cycle of managed species, and that EFH may be affected adversely by both fishing and non-fishing activities. The EFH language strikes a workable balance, creating a process to provide important information to enhance decision making by fishery managers and other agencies, yet not imposing prescriptive

measures that could be too restrictive.

The principal challenge associated with EFH stems from limited scientific information regarding the habitat requirements of managed species, and the effects of

various human activities on those habitats. The Sustainable Fisheries Act required

NMFS and Council staff to compile existing habitat information in a very short time

frame, and we amended all 40 existing fishery management plans to include EFH

provisions. While EFH does impose additional administrative requirements on the

Councils, all of the Councils are now considering EFH information in their management decisions, which allows them to make more informed decisions and address

potential adverse effects to EFH.

The EFH regulations provide guidance and flexibility for Councils to designate

EFH based on existing information, to identify especially valuable or vulnerable portions of EFH as Habitat Areas of Particular Concern, and to comply with the requirement to minimize the effects of fishing on EFH to the extent practicable. If the

Councils need further clarification to apply the EFH provisions of the Magnuson–

Stevens Act, NMFS is, of course, willing to work with the Councils to develop appropriate guidance.

Finally, I want to emphasize where we go from here. Based on the good direction

from the National Research Council’s and NOAA Fisheries’ reports on the merits

of an ecosystem approach to fisheries management, plus lessons learned from the

Chesapeake Bay, Bering Sea and the Northeast, I have asked my staff to host a

national workshop this fall to begin to develop technical guidelines for implementing

ecosystem based fisheries management. Making this an open workshop, which allows the views of all of our constituents, will lead to a better product.

4. Does the time required to promulgate Federal fishery regulations

hinder effective management?

Response: Yes, in many cases. The process can take a few years from the time

a Council identifies a problem to publication of final implementing regulations. Collecting and analyzing biological, social and economic data, conducting public involvement, developing management alternatives, and reviewing documents for legal compliance are steps that cannot be eliminated. With the myriad of laws that we operate under, and the necessity for balancing regional needs with national priorities

and policies, it is simply not possible to significantly shorten the process. However,

we are looking at every possible way to streamline the process, including the greater

use of programmatic environmental impact statements that annual measures can be

tiered to, and the use of multi-year total allowable catch (TAC) setting.

Management Options:

1. In your opinion, what is the primary benefit and the primary drawback of the existing system of Regional Fishery Management councils?

What changes might lead to more successful management?

Response: The Councils perform a very important role in preparing fishery management plans and plan amendments for fisheries and fisheries resources in Federal

waters; making necessary in- season adjustments; holding public hearings and

meetings and considering public input in taking final actions; and submitting recommendations to NOAA Fisheries for review, approval, and implementation. By

convening local and regional stakeholders, the Councils bring necessary perspectives

to Federal decision making. However, Council members, nominated by state governors and appointed by the Secretary, cannot always represent the views of all of

the participants in the fishery. Some have advocated a more balanced representation on the Councils of non-users, such as environmental groups, and users of the

fishery resources, including harvesters/processors, recreational, non-consumptive operators and various gear types representatives.
71

2. How might the Magnuson–Stevens Act be amended to address the problem of frequent industry opposition to strong conservation and management measures? Should fishermen be given more or less influence over the

management measures adopted?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

3. Should the blanket moratorium on individual fishing quota programs

(IFQs or ITQs) be lifted? If no, what is your main reason for opposing these

programs under all circumstances? If yes, should there be nationwide

standards for quota programs?

Response: The Administration is currently examining the issue of IFQs and does

not currently have a position on extending the moratorium in Section 303(d). That

said, NMFS does not oppose IFQ programs under all circumstances. As the Congressionally mandated study of IFQs, Sharing the Fish, showed, NMFS believes that

IFQs have been effective management tools, provided that certain safeguards or conditions are applied to their administration. Naturally, we are prepared to exchange

views with Congress on the need for national standards for IFQ programs.

4. Current management practices address species independently, attempting to achieve a maximum sustainable yield for each species. Is this

realistic? Can all species be exploited at MSY levels simultaneously?

Response: Our goal as set out in the Magnuson–Stevens Act is to manage at the

MSY level whether the fishery management plan is single- or multispecies-focused

or takes an ecosystem-based approach. While the goal is attainable for many species, we recognize the inherent difficulty in achieving this goal for all species simultaneously. The Act provides ample flexibility in meeting this goal.

5. Moves toward more decentralized fisheries management in the Maine

lobster fishery, and in other fisheries here and abroad, have shown some

successes in terms of conservation and social and economic outcomes. Is

more decentralization of management desirable in some of our fisheries? If

so, should the Magnuson–Stevens Act be amended to encourage experiments with decentralized approaches to fisheries management?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

6. Are there changes needed to influence how Councils meet NEPA requirements in developing and amending fishery management plans?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act. At the same time, it should be noted

that the agency has initiated a project, with an initial grant from the NOAA Administrator’s Fund, to review and improve the way NMFS and the Councils work together to comply with all applicable laws, including NEPA.

7. Would it be better to assign a single council staff person to be responsible for the entire process of data collection, scientific assessment, and

provision of management advice for each fishery?

Response: It would not be possible to have a single council staff person to be responsible for the entire management process. For the most part, data collection and

scientific assessment of the resources are conducted by the National Marine Fisheries Service (NMFS), and it would be inappropriate for council staff to direct NMFS

programs. However, NMFS and Council staff work very closely on the specific needs

for data and stock assessments, and activities, priorities, and timing of the work in

this area are based on those joint discussions. In terms of the development of management plans or amendments, often a single council staff is assigned to coordinate

all the necessary activities involved with developing management alternatives, analytical documents and descriptions of the stocks or fishery. In some cases, multi-discipline plan development teams coordinate and prepare the necessary documentation, but these groups are often headed by council staff.

Enforcement and Compliance:

1. The vast area of our EEZ, the hundreds of fishing ports and tens of

thousands of fishing craft make monitoring, control, and surveillance extremely difficult. How might the Magnuson–Stevens Act be amended to encourage the use of alternative methods for strengthening compliance with

regulations? Should non-governmental bodies be allowed to supplement existing enforcement resources?
72

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

2. The US spends $600 million annually on fisheries management, mostly

for enforcement of the Magnuson–Stevens Act. Other fishing nations, for

example, Australia, Canada, and New Zealand, have implemented user

charges to recover the costs of fishery management services. Should the

Magnuson–Stevens Act be amended to require that some of the costs of

management be recovered from users of our marine fisheries resources? If

so, what principles should govern a cost-recovery program for US fisheries?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

Social Science and Fishing Community Concerns:

1. How could we improve opportunities for collaboration in research and

management between fishermen and regulators?

Response: NOAA Fisheries is working to expand the opportunities in cooperative

and collaborative research by sharing the successes reached in areas such as the

Northeast and will continue its efforts to build upon these efforts in the future.

There is a strong history of collaboration in several regions of the country, particularly in the Northeast where scientists and managers have been working for years

to develop the mechanisms required and the close collaborative relationship with industry and other constituents to identify and fund cooperative research. On the

West Coast, long standing efforts will continue to support commercial vessels for

data collection and a new thrust is focused on developing a coast-wide grants program that will be available for constituent identified research, information sharing

and gear improvement. Planning efforts are underway on both Coasts to develop

game plans for the involvement of constituents in the design and implementation

of research surveys.We are also working to improve the coordination of regional cooperative research programs. The communication of lessons learned, and the development of scientifically valid protocols are areas that we will be working to enhance.

In addition, support is required across the country for the participation of NMFS

scientists in the development of surveys for data collection on important species, as

well as in the expansion, review, and refinement of programs in collaboration with

stakeholders. We are working to secure the necessary resources to support these efforts.

2. What is the significance of National Standard 8 on fishing communities? What, if anything, could be changed in the Magnuson–Stevens Act

or its implementation to better protect coastal fishing communities?

Response: By creating a national standard which requires consideration of the impacts of proposed management measures on fishing communities, Congress has empowered Councils and NMFS to fully incorporate social and economic factors in

fishery management decisions. Not all communities involved in marine fisheries

qualify as fishing communities, but in identifying those that do, the fishery impact

statement required by the Magnuson–Stevens Act is strengthened. For the communities that do qualify as fishing communities under the Act, consideration of community sustainability and any necessary economic mitigation measures serves to further improve the analyses and decision criteria for the Councils and NMFS. Therefore, we believe that the current provisions in the Magnuson–Stevens Act are sufficient for the consideration of, and mitigation of impacts, on dependent fishing communities.

3. Some observers have noted that fishermen frequently oppose conservation and management measures because they have little assurance that

current sacrifices will be rewarded in the future. How can the Magnuson–

Stevens Act be amended to improve the prospects that fishermen’s sacrifices will be perceived as worthwhile, and thus improve compliance with

regulations?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

Science and Data Needs:

1. The current process for determining data collection and research priorities is driven primarily by line items in the budget and other centralized

political decisions. Would this process and management outcomes, be im-
73

proved if managers within each fishery were given greater authority and

leeway to determine appropriate data collection and research programs?

Response: Yes, the process and management outcomes could be improved if NMFS

scientists and managers determined the data collection and research programs

needed to manage the fisheries. The partnership between NOAA Fisheries managers and scientists is one of the strengths of the agency. Fishery managers and

scientists work together to identify the key management issues for each fishery, but

the science is carried out independently by the scientists. This process results in

science that is focused on the management needs, yet carried out by scientists who

are removed from the management decisions. NOAA Fisheries also works with constituents to include their input on management and information needs and collaborative research. Greater reliance on this planning process and determination of data

and research needs would provide better information for conservation and use of our

fishery resources.

2. Are the data currently available for estimating fish stocks adequate to

support the decisions that Federal fishery managers must take?

Response: Although NMFS suffers from a shortage of staff to conduct assessments

and related activities, the most important hurdle we face is an overall paucity of

adequate data on which to base stock assessments. Neither NMFS alone, nor the

agency in combination with other relevant Federal agencies, state agencies, universities and private foundations, has accomplished the basic objective of ‘‘adequate

baseline monitoring of all managed species.’’ The foremost need, as emphasized in

the National Research Council’s report on ‘‘Improving Fish Stock Assessments,’’ is

to obtain fishery-independent estimates of stock abundance using reliable research

vessels as platforms. Other important data deficiencies include observer coverage in

fisheries not subject to Marine Mammal Protection Act observer requirements to

monitor bycatch and discards, and the quality and completeness of commercial and

recreational catch and effort statistics. A secondary, but increasingly serious, hurdle

is the demand being placed on NMFS scientists to produce more and better assessments on more species, at greater frequency, with fewer resources and, in many

cases, eroding databases.

B. Questions for Dr. William Hogarth, Subcommittee on Fisheries Conservation,

Wildlife and Oceans, Magnuson Reauthorization Hearing

1. Dr. Hogarth, in your testimony you mention that all 40 existing fishery

management plans have been amended to identify and describe essential

fish habitat. Is it true that some of the Councils did this amending as an

omnibus amendment to all of the plans under their jurisdiction? Why was

it done in this manner? Was it a lack of information or were the statutory

timetables too tight?

Response: Each Council chose what it believed was the most efficient means of

addressing the Sustainable Fisheries Act requirements. Most Councils completed

single omnibus EFH amendments for all of their FMPs, while some Councils chose

to do separate amendments for each FMP. Regardless of which approach was used,

the net effect is that each FMP was amended to include EFH information that is

specific to that FMP. In other words, handling EFH through an omnibus FMP

amendment did not result in generic EFH designations for the species managed

under those FMPs. The statutory deadline limited the Councils’ ability to conduct

extensive analyses of available data before identifying EFH, but omnibus FMP

amendments were used for administrative efficiency, not as a surrogate for FMPspecific EFH designations.

2. Dr. Hogarth, your statement says ‘‘the future health of the nation’s fisheries is anything but bleak...’’. Some of the statements and press releases

from interest groups have sounded much less optimistic. Can you expand

on why the agency feels optimistic about the status of our fishery resources?

Response: As I noted in my testimony, we have made substantial progress in establishing the foundation for improvements in our fisheries. We have 75 rebuilding

plans in place and more will come on line this year. We have seen significant increases in many of our stocks. For example, the stock size for Northeast scallops

and haddock have increased, and king mackerel in the Southeast has fully recovered. In the past year, 9 stocks were declared to be no longer overfished. In my testimony, I also noted that we have more work to do, particularly since 92 stocks remain overfished. Nevertheless, through a continuing partnership with the Councils

and the industry, we expect our recent success to continue and expand as rebuilding

programs achieve their goals. I would point out that even though rebuilding programs are in place it may take many years before an overfished stock can be rebuilt,

particularly for the slow growing, late to mature species.
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3. In its April 2000 report to Congress, the General Accounting Office

noted that although NMFS reported that it did not know the status of 75

percent of the species (and 30 percent of the stocks) that they manage, the

25 percent that it did know the status of represented about 90 percent of

the total weight or volume of all species in U.S. waters. Is this an accurate

statement? If this is true, then NMFS knows the status of 90 percent of the

fisheries resources in the U.S. Why isn’t this made clear in the annual Status of Fisheries Report?

Response: It is true that we do know status of the majority of the most economically important stocks (defined as any stock with more than 200,000 pounds landed). In fact, NMFS know the status of nearly two thirds of those stocks. Virtually

all of the these major stocks are currently managed under an Federal fisheries management plan or under a management plan prepared by the fishery management

commissions. The statement that we do not know the status of 75 percent of the

stocks that we manage is incorrect because we do not actively manage most of those

species whose status is unknown. Furthermore, it is not true that we know the status of 90 percent of the fisheries resources in the U.S. as indicated in the question.

There are some 660 stocks whose status is either unknown or undefined. Most of

these stocks are not managed, but they occur in the geographical jurisdiction of the

Councils and must be included in the annual report to Congress. In addition, most

of the unknown stocks have an exceedingly small biomass, and have little economic

value at this time. Of course, all of these small stocks are part of the ecosystem and

are important in that sense. However, they are often so dispersed or infrequently

found that they do not justify the expenditure of finite monetary or personnel resources to assess their status at this time.

4. In the rebuilding of overfished stocks, some have argued that unreasonable rebuilding targets have been set by either the agency or the councils. How are these rebuilding targets established? If the complaint is correct that unreasonable targets are being set, is this a problem with the Act

or with the implementing guidance from the agency?

Response: Rebuilding targets established in fishery management plans are reasonable and in line with the goals of the Magnuson–Stevens Act, particularly if we, as

a Nation, continue to seek to rebuild stocks to relatively high level in order to realize the many benefits that the resources offer. Rebuilding targets are established

in accordance with the national standards and other provisions of the Magnuson– Stevens Act, which allows adjustment in certain circumstances. Specific targets are

developed for each species, based on each species biology and other such factors, including the need to minimize economic and social impacts on participants and dependent communities.

5. Some Members of Congress have argued that the identification of EFH

by the Councils was far too broad and too sweeping in its implementation.

The agency is now urging Councils to identify Habitat Areas of Particular

Concern (HAPS) which are more discrete areas. Isn’t this what Congress

actually wanted NMFS to do in the first place? Do we need to create a new

designation to accomplish what was originally intended?

Response: Over 700 species are managed under the Magnuson–Stevens Act, and

the aggregate of the EFH designations for those species is indeed broad. In most

cases the Councils identified EFH separately for several life stages of each species,

since different species and life stages may have different ecological requirements.

For individual species or life stages, EFH generally is a distinct subset (often 50 to

70%) of the total available habitat within the species’ range, and only includes a

portion of the water column (e.g., only bottom habitats or only surface waters). However, when individual EFH designations for all life stages of all managed species

are overlaid, the designations encompass most of the coastal waters and exclusive

economic zone. NMFS is continuing to work with the Councils to revise and refine

EFH designations as additional information becomes available.

It is entirely appropriate to designate as EFH the areas that provide necessary

environments for managed species to feed, reproduce, and seek shelter from predators. These areas constitute a sizeable portion of the managed species’ geographic

range. HAPS, on the other hand, are localized areas of extreme vulnerability or ecological importance. For instance, HAPC designation may be warranted for areas

that play a vital role in the reproductive cycle of a managed species, or areas that

contain a rare habitat type that may be sensitive to disturbance from fishing or

other human activities. The designation of HAPS is a valuable way to acknowledge

areas where we have especially detailed information on ecological function and habitat vulnerability that allows us to highlight priority areas for conservation and management. Healthy populations of fish require not only these relatively small habitats, but also other suitable areas that serve the necessary habitat functions to sup-
75

port larger numbers of fish. HAPS can highlight valuable and/or vulnerable habitats, but alone they do not comprise the areas necessary to support healthy stocks

of fish.

Given the definition of EFH in the Sustainable Fisheries Act, NMFS interpreted

Congress’ intent to encompass the habitats that are necessary for managed species

throughout their full life cycle. However, NMFS recognized that focusing on smaller

areas may be useful for management purposes, so our regulations encourage Councils to identify HAPS within EFH.

6. Last Congress, this Subcommittee held a hearing on essential fish habitat issues. At that time, one of the concerns raised by the agency was that

there was not adequate funding available to fund research into habitat

issues. If funding is scarce, does it make sense to look first at the habitat

needs of those commercially important species?

Response: Limitations on available funding definitely constrain our ability to identify EFH more precisely and document the effects of various human activities on

EFH. The Magnuson–Stevens Act addresses species that are valued by commercial

and recreational fisheries, both of which are important to the economy and to fishing communities. In general, NMFS prioritizes its habitat research around pressing

management needs, so our work studying habitat requirements of a species or understanding the effects of habitat disturbance often responds to the need to make

more informed decisions on a particular issue to manage the fisheries effectively.

Those management priorities often reflect socioeconomic concerns associated with

the commercial or recreational sectors of the industry, but biological considerations

(such as understanding habitat usage patterns to help minimize bycatch) also have

a major influence on our research priorities.

7. One area of concern that has been identified by a number of reviewers

of Federal fisheries management is that the adequacy of scientific data on

which management decisions are made. A second concern is that the regulated community does not have confidence in the scientific information

generated by the agency. How can we get better data and get better buyin by the regulated communities?

Response: NMFS is taking a number of actions to improve the quality and quantity of fisheries science. Five essential elements to using the best available science

for conservation and management measures are: (1) obtaining adequate quantities

of data; (2) obtaining data of adequate quality; (3) proper interpretation of these

data; (4) peer review of this process; and (5) placing greater emphasis on cooperative

research.

NOAA Fisheries is actively engaged in improving the science upon which the resource management decisions are based through the implementation of the Stock

Assessment Improvement Plan (SAIP). The SAIP seeks to improve the comprehensiveness, timeliness, quality, and communication of NMFS stock assessments; mine

existing databases to evaluate status determination criteria for species of ‘‘unknown’’ status; conduct adequate baseline monitoring for all Federally managed species; upgrade assessments for FMP core species; and develop next-generation assessment models that explicitly incorporate ecosystem considerations.

Specific activities include:

• Develop new stock assessment methods - Expand the pool of senior level scientists doing cutting-edge methods development. Point of contacts in each Center will coordinate methods research, with a concurrent emphasis on augmenting university partnerships to develop future assessment scientists.

• National Stock Assessment Toolbox - When completed, this standardized package of tested, peer-reviewed, and approved analytical tools and assessment models will allow better, more reliable and repeatable assessments to be made.

• NMFS-university partnerships and graduate stock assessment fellowships -

Science Centers will collaborate with Sea Grant Universities to enhance stock

assessment and population dynamics study programs and research capabilities.

NMFS/OAR stock assessment fellowships will increase in number and in scope,

and focus on new projects that address the agency’s highest priorities. Another

important element is modernization of NOAA’s fleet of fisheries research vessels (FRVs).

• A contract has just been signed for the construction of the first of a series of

state-of-the-art, acoustically quiet FRVs to conduct fisheries monitoring and research surveys.

• The FRVs are an essential part of NOAA’s plan to meet the rapidly growing

demand for high quality at-sea data, and to maintain the integrity of existing

data series.

• Meeting those demands also depends on significant growth in the number of

days-at-sea aboard chartered academic and industry vessels.
76

NMFS is also striving to apply more advanced technology in research surveys.

• NOAA Fisheries is exploring fisheries applications for advanced technologies

that would improve the efficiency of and effectiveness of stock assessment surveys. • Advances in airborne and satellite remote sensing, hydro-acoustic survey, and

signal processing technologies hold great promise for fisheries applications by

adding information not presently available and providing alternative sources of

survey information for some species and their habitats.

Regarding buy-in, a major priority of NMFS is to continue to improve the effectiveness of external partnerships with fishers, managers, scientists, conservationists, and other interested groups. These partnerships will increase the credibility of

NMFS scientific efforts and build a balanced approach to gathering and analyzing

data. As addressed in the NMFS Strategic Plan for Fisheries Research 1998, NMFS

will continue to: • Promote a cooperative network of partners in the coordination of fisheries research;

• Develop the infrastructure for long-term, continuous working relationships with

partners to address fishery research issues;

• Sponsor symposia and conferences for partners to exchange information and

identify major fisheries research initiatives. • Solicit partners’ views on fisheries research needs.

8. We have seen a number of cooperative research survey initiatives that

were cosponsored by industry in the last few years. How does the agency

use the information from these cooperative surveys, in addition to their

own survey information, to determine stock size and total allowable catch

levels?

Response: Last year, the Southeast Fisheries Science center received a grant from the National Fish and Wildlife Foundation (Shell Funds) for $100K to do research

on Nassau Grouper. The SEFSC also works with State agencies, i.e., Florida Department of Environmental Protection for joint south Florida restoration projects.

We accept the funds through reimbursable agreements.

For the Alaska Fisheries Science Center, funding from environmental groups

tends to be limited, but some work has been done through contributions by groups

such as the ‘‘Suzuki Foundation’’. An example is the salmon stock assessment

project for southeast Alaska conducted jointly by ADF&G, NMFS, and sponsored by

the American Fisheries Society. The Alaska Fisheries Science Center has established MOUs with fishing industry associations to conduct cooperative research. The

associations contracted for fishing vessels to serve as research vessels for our use

in conducting resource surveys.

9. Dr. Hogarth, since fisheries stock survey information is critical to better fisheries management, why has the Administration not included funding for new fishery research vessels in its budget?

Response: The Administration has decided to defer funding for the second research vessel to fiscal year 2003. However, this program remains a high priority for

NOAA and NMFS. The Fisheries Research Vessel 40 construction contract includes

options for three additional vessels. A commitment at this time of next year’s Fisheries Research Vessel budget is not possible. This coming summer and fall, NMFS

will be working with the Office of Management and Budget, and the White House

on Fisheries Research Vessels along with other out-year budgets as part of the Administration’s growth scenario and mission requirements.

10. The Act currently has been interpreted to prohibit the gathering of

economic data from processors. Why was this restriction put in place and

should this issue be re- examined? Are there ways of gathering this proprietary data and ensuring its confidentiality?

Response: This restriction was put into place to address data confidentiality concerns by owners of fish operations and fish processing operations in 1990. Given the

level of economic data on business practices, profits, and losses that was proposed

to be collected, business owners became concerned that proprietary financial information would be made available to their competitors, some of whom were fishery

management council members. As a result, the collection of economic data from

processors and fish operations was precluded in sections 301, 303, 401, and 402.

However, a re-examination of this issue is necessary for a number of reasons.

First, the Executive branch of the government has issued an executive order that

requires the determination of costs and benefits of proposed management regulations as well as the estimation of the impact of regulations on the national economy.

The Congress has passed a number of laws that require regulatory agencies to take

into account the costs and benefits or impacts of proposed regulations on the econ-
77

omy and specifically on small entities. Executive Order 12866 requires that in ‘‘Deciding whether and how to regulate, agencies should assess all costs and benefits

of available regulatory alternatives’’ to determine if the rule is a significant regulatory action. The Regulatory Flexibility Act requires agencies to estimate the impacts of proposed regulations to determine if small entities are disproportionately

affected. The National Environmental Policy Act requires a report on any Federal

action significantly affecting the quality of the human environment. The Unfunded

Mandates Reform Act of 1995, Congressional Review of Agency Rulemaking, and the

Endangered Species Act require economic analysis to determine the economic impacts of regulations, compliance with E.O. 12866, and economic analysis of critical

habitat designation, respectively. Most importantly for fisheries management, the

Magnuson–Stevens Fishery Conservation and Management Act (MSFCMA) requires

NMFS to increase benefits to the nation from fishing, to provide assessments and

descriptions of the economic and social impacts of proposed action on participants

in the fishery, and many of the national standards require or imply the need for

economic analysis; e.g., cannot discriminate in allocating fishery resources between

members of different states, determination of optimum yield, consider efficiency,

minimize costs, and minimize adverse economic impacts on fishing communities.

The prohibition on collecting economic data in Sections 301, 303, 401, and 402

makes compliance with the MSFCMA and other laws and executive orders difficult.

Second, regulations promulgated for fisheries managed as common property, open

access, or regulated open access resources can and often do have significant impacts

on fish processors and dealers; many of whom are often fishers themselves. This is

especially true for fisheries in transition from common property to rights based fisheries such as wreck fish, halibut/sable fish, surf clam, tuna, and pollock managed

under the American Fisheries Act. The transition of the halibut fishery from a derby

fishery as a regulated open access fishery to a A ‘‘year round’’ fishery under IFQs

providing products to the fresh fish market resulted in significant economic and financial impacts to fish processors that could not be quantified because of the prohibitions in the MSFCMA.

Third, specialized surveys traditionally used by NMFS to collect economic data

are expensive, usually have low response rates resulting in sampling biases, are

conducted after regulations have been proposed to solve a problem in a fishery, are

not comprehensive in covering all fishing activity of a fishing firm or fleet of fishing

vessels and boats, and do not include the processing sector of a fishery. Continuous

and in some cases mandatory data collection for fisheries would provide the necessary economic data needed to address the requirements of the national standards

in the MSFCMA, the Regulatory Flexibility Act, Executive Order 12866, etc. with

information collected over time before and after a regulation is imposed on a group

of fishers and their associated processors. Combining this economic data collection

program with the existing biological data collection infrastructure would result in

a significant improvement in the quality of the data being collected at a fraction of

the cost of collecting it as a randomly sampled, voluntary program for all Federally

managed fisheries.

Fourth, the economic information needed to comply with Congressional mandates

and executive orders to determine costs and benefits and economic impacts of proposed or adopted fishery management regulations does not require detailed proprietary financial information from processors, dealers, or fishing operations. The limited, proprietary, financial information that is needed can be protected as confidential data by the strict practices and protocols presently used by NMFS. Precluding

the disclosure of this information about individual fishing operation or fish processing operations to the general public can prevent competitors from accessing each

others information.

To re-examine this issue, the MSFCMA can be amended to require the collection

and use of economic and socio-cultural data to monitor the economic status of the

fisheries, to eliminate any existing MSFCMA restrictions on the collection of such

data, and to eliminate or reduce the OMB obstacles to collecting such data that is

necessary to meeting the Congressional mandates and Executive requirements provided that it is not disclosed to the public. The explicit inclusion of economic and

socio-cultural data in the definition of ‘‘best scientific information’’ in National

Standard 2 will improve the information available to fishery managers upon which

they can base their decisions and set policies concerning the nations living marine

resources. Removing language such as ‘‘(other than economic information)’’ in the

MSFCMA will also strengthen the ability of the NMFS to collect data from processors and harvesters of fishery resources. The ability of NMFS to accurately predict

the impact of proposed fishery management regulations would be improved while

continuing to protect confidential data under existing provisions of the law. In addi-
78

tion, it would eliminate the appearance of a contradiction in the law requiring economic analysis without allowing the collection of the necessary data.

11. The Magnuson Act requires Fishery Management Plans ‘‘to minimize

to the extent practicable adverse effects on such habitat cause by fishing...’’. Since the Councils have identified almost the entire EEZ as EFH,

this will mean that the agency must collect data on gear impacts for the

entire EEZ. Should the Act be amended to apply the minimization requirement only to the HAPC areas?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

12. NMFS is currently facing 102 lawsuits and this number seems to have

grown substantially since the passage of the 1996 amendments. Are there

certain provisions within the 1996 amendments that are causing this increase in lawsuits and if so, what actions should Congress take to lessen

this increase in lawsuits?

Response: There is no particular provision in the 1996 amendments that is causing these lawsuits. Rather, the Sustainable Fisheries Act established new conservation standards for fisheries management, and imposed new requirements on the

Councils and NMFS to meet those standards. In particular, Congress amended the

Act to greatly strengthened the conservation standards by requiring that any overfished fishery must be rebuilt to levels consistent with producing the maximum sustainable yield in that fishery. Congress also added new national standards regarding bycatch, dependent communities, essential fish habitat, and safety at sea. The

new provisions required adjustments in all fishery management plans, which necessitated the imposition of impacts on the industry to meet the new requirements. Although the Councils and NMFS make every effort to mitigate impacts, the industry

sometimes reacts by bringing lawsuits to have the management programs, and their

associated impacts, reduced by the courts. On the other hand, some lawsuits are

brought by environmental interests who believe that our management programs are

not sufficient to meet the conservation requirements of the Act. To a certain extent,

these lawsuits are inevitable because fisheries management has become very controversial, and it is very difficult to please all interests in the development of a management program. The Councils and NMFS attempt to involve all interests, including the public, in the FMP development process in an effort to incorporate all views

and avoid misunderstanding that can lead to lawsuits. In some instances, this is not

sufficient to avoid a lawsuit.

The Administration is currently developing a proposal to amend the Magnuson–

Stevens Act, and therefore, does not have a current position on actions necessary

to amend the Act.

13. The Act currently has been interpreted to prohibit the gathering of

economic data from processors. Why was this restriction put in place and

should this issue be re- examined? Are there ways of gathering this proprietary data and ensuring its confidentiality?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act.

14. Several of the witnesses have noted that the use of MSY is problematic. Should Congress look at this term and, if so, what target should be

used in terms of rebuilding plans?

Response: The Administration is currently developing a proposal to amend the

Magnuson- Stevens Act and therefore does not have a current position on this or

other questions related to amending the Act. Having said that, NMFS is continuing

to work with the concept of MSY, including the use of proxies in data-poor situations.

Magnuson–Stevens Act Hearing #1, Questions for the Committee Record

1. We have been told by National Marine Fisheries service (NMFS) representatives in the past that striped bass is the single greatest fisheries

management success story since passage of the Magnuson Act. If this is in

fact the case, why does the entire Exclusive Economic Zone remain closed

to fishing for this not-incredibly abundant species? Does science support

the opening of this fishery? While Congress told NMFS in 1994 it would

close the fishery if it were reopened, will NMFS revisit this issue?

Response: Approximately six years ago, when NMFS proposed repeal of the moratorium on fishing for striped bass in the EEZ following the Atlantic States Marine

Fisheries Commission’s (ASMFC) declaration that the stock had ‘‘fully recovered,’’

there was, initially, nearly unanimous support from all member states of the
79

ASMFC. However, strong opposition to the proposal from the recreational fishing

sector soon developed and NMFS subsequently lost the support of the states, the

ASMFC, and the USFWS, and our ‘‘management partners’’ under the Interstate

Fisheries Management Plan. The recreational sector’s concerns/arguments were

largely threefold:

1) The Atlantic Striped Bass Conservation Act (ASBCA) requires, among other

things, that any regulations promulgated in the EEZ by the Secretary must ‘‘ensure the effectiveness of State regulations on fishing for Atlantic striped bass within the

coastal waters of a coastal state’’ (Section 9 (a) (3)). The recreational fishing sector

argued that NMFS’s regulatory proposal for the EEZ did not meet this standard because it could not totally guarantee the prevention of striped bass harvested commercially in the EEZ from being landed in certain states (or other jurisdictions) that

have few or no regulations, and/or lax enforcement, pertaining to striped bass.

2) They objected to the potential scenario of ‘‘non-resident’’ commercial trawlers

being allowed to fish for striped bass in the EEZ just seaward (>3 miles) of the jurisdiction of a state in which striped bass were prohibited from either being taken with

that gear (e.g., MA), or prohibited from being taken commercially with any gear

(e.g., NJ).

3) They argued that the EEZ should remain a ‘‘sanctuary’’ for striped bass. Because of the strong opposition from the recreational sector noted above, and because

there has been concern shared by all interests in recent years about excessive (i.e.,

over-target) fishing mortality on the stock (which now seems to have been allayed

by more recent data), NMFS has been less than motivated to pursue removal of the

EEZ moratorium. Nevertheless, NMFS has just recently been requested by the

ASMFC to ‘‘initiate a legal and policy analysis regarding removing the moratorium

in the territorial sea (3–12 miles) and require fish that are harvested in Federal waters be landed in accordance with state landing regulations.’’ Therefore, the issue

is about to be revisited.

2. We are having very serious problems with summer flounder in the

Mid–Atlantic region. Why are we having such problems enforcing the

quotas of these species and what can we do to remedy that problem?

How can it be that we have the highest historical summer flounder abundance

and yet the fishery remains categorically overfished and significantly below the target abundance level set for this resource?

What are the agency’s and council’s plans to rectify this situation?

Response: Summer flounder occurs along the Atlantic Coast mainly from Maine

through North Carolina and is managed cooperatively by the Mid–Atlantic Fishery

Management Council (Council), the Atlantic States Marine Fisheries Commission

(ASMFC), the states from Maine through North Carolina, and NOAA Fisheries. The

Federal fishery in the exclusive economic zone (EEZ) is managed under the Summer

Flounder, Black Sea Bass and Scup Fishery Management Plan developed by the

Council and implemented by NOAA Fisheries. The states implement management

measures developed by the ASMFC under its Interstate Fishery Management Plan

for Summer Flounder. State regulations apply to vessels fishing in state waters,

with the exception of vessels issued the Federal permits necessary to fish in the

EEZ. A condition of the Federal permit requires those vessels to comply with Federal management measures even when fishing in state waters. As a result, if the

states and NOAA Fisheries implement differing regulations, the restrictions on vessels depend upon their permit status. This complicates enforcement greatly, and can

result in two vessels fishing side by side and subject to different requirements.

As defined in the FMP, the summer flounder stock is considered to be overfished

because the biomass is not at the level required by the Magnuson–Stevens Act.

Overfishing is also occurring, which means that the mortality caused by fishing (referred to as the fishing mortality rate) is too high. However, the current management program, which was established in 1993, has succeeded in rebuilding biomass

and reducing the fishing mortality rate. The FMP rebuilding program established

two important milestones. When the stock reaches the level of 53,222 mt, it will no

longer be considered overfished, and when it reaches 106,444 mt it will be considered rebuilt. The total biomass in 1998 reached 38,600 mt, a considerable improvement over the low point of 16,000 mt in 1989, and approaching the point where it

would no longer be considered overfished.

Since 1993, the MAFMC and ASMFC have met jointly to develop annual fishing

measures that are then implemented by NOAA Fisheries and the states. This year,

however, NOAA Fisheries issued a final rule for the summer flounder fishery that

established total allowable landings (TAL) consistent with the biomass target specified in the settlement agreement with the Natural Resources Defense Council. The

ASMFC originally did not set a TAL consistent with the biomass target specified

in the settlement agreement, but with the fishing mortality target in its fishery
80

management plan. As a result, the initial ASMFC TAL was approximately 12 percent higher than the Federal TAL. The ASMFC later decided it would revise its TAL

to be consistent with the Federal measure. To help remedy this year’s situation and

longstanding problems in the fishery, stakeholders (including plaintiffs from both industry and environmental groups) in the summer flounder fishery met in May to

discuss a number of issues including:

• Determining better ways to manage the recreational fishery

• Developing complementary management objectives and methodologies for summer flounder

• Establishing management measures that recognize the limitations of the data

collections

• Improving biological information available for use in the stock assessments

• Re-evaluating approaches to management for a rebuilding and rebuilt stock

• Developing better communication and working relationships among NOAA Fisheries, Council, ASMFC and stakeholders

The agency hopes that more stakeholder workshops can be held in the future to

work on long- term approaches for this complex and often contentious fishery.

3. I understand we are seeing a separation, if you will, of state and Federal fisheries management programs for the same species, such as summer

flounder and monkfish, to name two. What are the ramifications of these

inconsistencies?

Response: Since 1993, the ASMFC and MAFMC have managed summer flounder

cooperatively, and coordinated their management measures for many years. However, as was demonstrated this year by the differing TAL recommendations, there

is no legal obligation for them to manage cooperatively. The two entities are not

subject to the same legal requirements, and the ASMFC management process can

enact management changes more quickly than the Magnuson–Stevens Act process.

The ramifications range from trying to enforce a fishery where two vessels are fishing side by side under differing regulations to delays in setting the annual specifications because of differing goals and realities of the ASMFC, MAFMC and NOAA

Fisheries, to costly lawsuits from all sides. As in all fisheries where the States and

Federal Government share responsibility for management, inconsistencies in the

various statutes and in fisheries management philosophies have to worked out over

time.

4. I am hearing very positive reports on the agency’s efforts with respect

to cooperative research in the mid–Atlantic and Northeast regions. I believe all parties benefit from this type of joint science-based effort. What

is your opinion of cooperative research and can we expect your support for

more of this across all the regions?

Response: Recent recommendations from ‘‘An Independent Assessment of the Resource Requirements for the National Marine Fisheries Service’’ (the Ray Kammer

Report) and the Marine Fisheries Advisory Committee (MAFAC) Report ‘‘A Perspective on the National Marine Fisheries Service: Issues and Recommendations’’ have

highlighted the need for improved communication with and involvement of NMFS

stakeholders in the operations of NOAA Fisheries. To address the need for more

constituent involvement and to build improved working relations with stakeholders,

NOAA Fisheries will continue to develop and expand cooperative and collaborative

research programs with constituents in order to improve data collection and analysis, fishing methods and gear technology.

The Northeast Region’s programs on monkfish and Illex Squid are examples of the

type of collaboration NOAA Fisheries is working to expand in other regions. Scoping

meetings with industry and other constituent groups are being planned in the

Southeast, Southwest and Northwest Regions. Program support for NOAA Fisheries

scientists to participate in the planning and execution of research surveys is being

carved out of current base funding and additional support is being sought in the

out years. NOAA Fisheries is strongly committed to improving and expanding communication with its stakeholders and the cooperative and collaboration research approach only strengthens our success in this area. It remains a top priority as we

work toward better understanding of our marine resources and their effective management.

5. It appears the implementation of the essential fish habitat provision of

the Sustainable Fisheries Act has resulted in some unintended consequences such as overly broad essential habitat designations and even litigation. I am concerned that as it is currently being interpreted, essential

fish habitat protection seems to be totally disconnected from the health of

the fish stock using the habitat. Considering the overarching goal of the

Magnuson–Stevens Act for rebuilding and maintaining fish stocks, why
81

shouldn’t habitat protection be linked to the actual health of our fish

stocks?

Response: The EFH regulations do make connections between habitat protection

and the status of the stocks. The regulations state that if a species is overfished,

and habitat loss or degradation may be contributing to the species being identified

as overfished, all habitats currently used by the species should be considered essential in addition to certain historic habitats that are necessary to support rebuilding

the fishery and for which restoration is technologically and economically feasible.

Once the fishery is no longer overfished, the regulations state that the EFH designation should be reviewed and amended, if appropriate. The regulations also note

that where a stock is considered to be healthy, EFH for the species should be a subset of all existing habitat for the species.

[Dr. Hogarth’s response to questions from the Honorable Robert Underwood

follows:]

NMFS RESPONSES TO MAGNUSON–STEVENS ACT WRITTEN QUESTIONS

Questions from Mr. Underwood

1. There are more than 100 stocks that are considered to be overfished,

yet rebuilding plans have been developed for only about 75 of them. Of the

remaining 25, how many have been categorized as overfished for more than

a year? If there are any, why has NMFS not stepped in, such as in the case

of Atlantic tilefish, and developed its own rebuilding plans as the law requires?

The January 2001 Report to Congress on the Status of Fisheries of the United

States finds that 92 stocks are considered to be overfished, and that there are 75

rebuilding programs. Of the remaining 17 stocks, four were declared to be overfished prior to 2000: tilefish, ocean pout, North Atlantic albacore and scup. The rebuilding program for tilefish is currently under Secretarial review. The rebuilding

program for ocean pout is being developed in amendment 13 to the Multispecies

FMP. North Atlantic albacore was declared to be overfished in 1999 but rebuilding

programs must be developed with the International Commission for the Conservation of Atlantic Tunas (ICCAT). NOAA Fisheries was able to obtain agreement on

an international quota that would aid rebuilding but that quota expired after one

year. We continue to work to achieve a long-term rebuilding program for this stock.

Finally, a rebuilding program for scup was disapproved, and the Council has not

submitted a revised program yet. NOAA Fisheries works through the Councils and

the industry whenever possible to develop rebuilding plans or other management actions. The Councils have been quite responsive in working on rebuilding programs,

and NOAA Fisheries has not deemed it necessary to interfere with that process. In

addition, although these stocks do not have formal rebuilding programs, management measures are in place to conserve the resource and serve to rebuild the stocks.

We would also point out that rebuilding plans have recently been approved for

two of the 17 stocks mentioned above that do not have rebuilding plans. These are

St. Matthew’s Island blue king crab and Bering Sea snow crab. Therefore, there are

now just 15 stocks that do not have approved rebuilding plans. Finally, it should

be noted that two other stocks, Atlantic sturgeon and Atlantic croaker, are managed

by the Atlantic States Marine Fisheries Commission, and do not fall under the responsibility of the Councils.

2. Do we have any idea how many and what kinds of seabirds are killed

annually by commercial fishing activities? While the Magnuson–Stevens

Act does not mandate the reduction of seabird bycatch, doesn’t the US still

have a responsibility to address this problem under the FAO Plan of Action

to Reduce Seabird Mortality and the ESA? When do you plan to implement

your National Plan of Action to deal with this problem and meet our obligations?

While NMFS does not have comprehensive data on seabird mortality in all federally managed fisheries, the agency has made considerable efforts in recent years to

improve its knowledge of seabird bycatch. However, we have some data on seabird

mortality in federally managed fisheries in both the Atlantic and Pacific. The information is most complete for Pacific longline fisheries, in particular the longline fisheries in Alaska and around the Hawaiian Islands. In the Alaska longline fisheries,

we have estimates for the 1993–1999 period for the Bering Sea and Aleutian Islands

(approximately 14,500 birds annually) and for the Gulf of Alaska (approximately

2,300 birds annually), and both figures include species breakouts among fulmars,

gulls, shearwaters, and albatrosses. Reasonably reliable mortality data is also avail-
82

able for two albatross species incidentally caught in the Hawaiian longline fisheries.

Available 1998 data give the following annual estimated numbers of albatross species taken in the Hawaii-based pelagic longline fisheries: black-footed albatross

(1,963), and Laysan’s albatross (1,479).

NMFS agrees that the FAO International Plan of Action for the Reduction of Incidental Catch of Seabirds in Longline Fisheries (IPOA on seabirds) has generated a

responsibility for the United States to address this problem. While the FAO agreement is voluntary and creates no binding obligations, the United States actively promoted this instrument and accepts responsibility to implement its provisions. Finally, seabird mortality in fishing operations may, depending on the circumstances

and species involved, trigger mandatory responsibilities under the ESA and other

laws.

In conformity with the FAO IPOA on seabirds, NMFS and U.S. Fish and Wildlife

Service (FWS) jointly developed a national plan of action (NPOA/seabirds), and

NMFS formally submitted this document to FAO at the last biennial meeting of the

Committee on Fisheries in February 2001. NMFS and FWS believe that the United

States can ultimately achieve significant reductions in seabird mortality in longline

fisheries in federally managed waters through a policy that combines: (1) the U.S.

national plan of action that implements the FAO IPOA on seabirds; (2) adherence

to the FAO Code of Conduct for Responsible Fisheries; (3) specific provisions of certain FMPs and FMP amendments; and (4) the guidelines proposed in a June 1998

NMFS document, Managing the Nation’s Bycatch. Clearly, this is a partnership effort among NMFS, FWS, the Councils, the owners and operators of longline fishing

vessels, and conservation organizations.

Implementation of the U.S. national plan of action will be carried out mainly on

a regional FMP-by–FMP basis. In some federally managed fisheries, such as the

longline fisheries for groundfish in Alaska and pelagic species around the Hawaiian

Islands, we have sufficient information to effectively move forward with plan implementation. In other federally managed longline fisheries, however, assessments of

seabird bycatch still need to be conducted before specific measures can be developed.

The initial process for NPOA/seabirds implementation will occur over the course

of the next four years. Assessments of all U.S. longline fisheries will be completed

within two years. In those fisheries where a seabird bycatch problem is found to

exist, a mitigation program will be developed within three years and implemented

within four years. In all longline fisheries where an initial determination is made

that no seabird bycatch problem exists, a re-assessment will be conducted within

four years of such a determination. Finally, it must be noted that NMFS will have

to determine what resources, including staff and specific funding levels, can be assigned to implement the NPOA/seabirds in light of all our other commitments.

The status of implementation of the NPOA/seabirds varies among Council jurisdictional areas and longline fisheries. Some Councils need to start or complete

seabird bycatch assessments for the longline fisheries within their jurisdictional

area, and each fishery may require individually tailored seabird management measures. The NPOA/seabirds provides the Councils with flexibility to develop effective

seabird mitigation measures for individual longline fisheries. In U.S. longline fisheries where seabird bycatch problems are already known to exist, including Alaska

demersal groundfish and Hawaii pelagic longline fisheries, regulations are already

in place or under development to mitigate seabird bycatch. The North Pacific and

Western Pacific Fishery Management Councils are well positioned to develop

seabird bycatch reduction programs needed to implement the NPOA/seabirds because they have already conducted seabird bycatch assessments and developed regulations to implement seabird bycatch reduction measures.

3. Why is NMFS only preparing Environmental Impact Statements on

most FMPs and their Essential Fish Habitat requirements and not on all

of them? How are the specific FMPs chosen over others?

In addressing the new requirements of section 303(a)(7) of the Magnuson–Stevens

Act, the Councils generally prepared Environmental Assessments on the FMP

amendments that described and identified essential fish habitat, addressed adverse

effects on such habitat caused by fishing, and identified other actions to encourage

conservation of such habitat.

On September 14, 2000, the U.S. District Court for the District of Columbia

issued a decision in a lawsuit filed by seven environmental organizations and two

fishermen’s associations. The suit challenged whether NMFS and the Councils had

adequately evaluated and minimized the effects of fishing on EFH as required by

the Magnuson–Stevens Act and NEPA. The court upheld NMFS’ actions under the

Magnuson–Stevens Act, but ordered NMFS to conduct new and more thorough

NEPA analyses to evaluate a wider range of alternatives. A total of 22 FMPs prepared by the New England, Caribbean, Gulf of Mexico, Pacific, and North Pacific
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Councils are affected by the court order. In carrying out the Court order, NMFS has

decided that EISs should be developed for the EFH amendments that were the subject of the lawsuit.

Negotiations with the plaintiffs in the above lawsuit began in September 2000,

and a settlement is expected soon. EISs will have to be completed within 24 months

after the date of the lawsuit’s settlement, or in mid–2003.

The Mid-Atlantic Council plans to prepare EISs for the EFH provisions of four

of its FMPs when it resubmits sections that were disapproved by NMFS when they

were submitted for Secretarial review in 1999.

4. It appears the Councils have developed few, if any, measures to minimize the damage to habitat that is caused by different types of fishing gear

as required by the SFA. What information is needed to ensure better compliance with this requirement? Why are these plans being approved?

The Councils and the agency have made considerable efforts to mitigate the adverse effects of fishing activities on EFH. Most of the FMP regulations in place that

in any way restrict fishing activities also have some collateral benefits for EFH. For

example, the North Pacific Council established areas closed to groundfish trawling

and scallop dredging in the Bering Sea and Gulf of Alaska to reduce potential adverse effects to crab habitat. The New England Council established year round closures to all bottom-tending mobile fishing gear within areas of Georges Bank and

banned the use of ‘‘streetsweeper’’ trawl gear (a modification to trawls that covers

the footrope with bristles similar to a streetsweeper) because of its increased contact

with bottom habitat. To reduce damage to coral reef and live bottom communities,

the South Atlantic Council prohibits the use of pots in the snapper/grouper fishery,

and the Western Pacific Council prohibits the use of bottom trawls, bottom-set nets,

explosives and poisons.

NMFS and the Councils need more information on the habitat effects of certain

gear types to help us understand how fishing activities influence habitat functions

for managed species, which will enable us to determine whether additional measures are warranted. We are conducting some of that research now, and the President’s budget includes a request for funding to expand those efforts.

NMFS approved EFH FMP amendments that did not contain new protective

measures because the agency determined that the FMP met the requirement to

minimize to the extent practicable the adverse effects of fishing on EFH. The Court

ruling mentioned above in our response to question 3 upheld those approvals under

the Magnuson–Stevens Act. However, as explained above, the EISs being prepared

in accordance with the Court order will evaluate a wider range of alternatives for

minimizing the effects of fishing on EFH.

5. Can you please clarify what you meant in your testimony about a lack

of flexibility in overfishing definitions and measures? How do you make a

definition flexible and yet make it standard to all fisheries? Isn’t Maximum

Sustainable Yield (MSY), the standard used to define overfishing, generally

a range and not a precise number? If so, then why is there not flexibility?

In our written testimony on Magnuson–Stevens Act reauthorization before the

House Subcommittee on April 4, we explained that ‘‘(s)ome are concerned about a

perceived lack of flexibility in developing these definitions (of overfishing) and associated management measures.’’ However, the same testimony stated that ‘‘(s)ince

issuing national standard guidelines in May, 1998, NOAA Fisheries scientists have

been helping the Councils find the needed flexibility to create overfishing definitions

within the scope of the law and our guidelines.’’ Essentially, our view is that there

is ample flexibility in the current guidelines relating to overfishing determinations,

and no need for exact uniformity among fisheries with very different characteristics.

The National Standard 1 guidelines, and the more detailed technical Guidance on

this issue, were developed to provide flexibility within the boundaries set down by

the Magnuson–Stevens Act. A great many acceptable variations on harvest control

rules have been devised and implemented since 1996.

MSY is indeed a range. When MSY-based reference points cannot be calculated

or are deemed too unreliable, proxies (simpler reference points that are believed to

give similar answers to MSY-based reference points) can be used instead. Such proxies may not require information on stock-recruitment relationships or MSY-related

reference points. For example, ratios of catch per unit of effort (CPUE) from research vessels or commercial or recreational vessels can be used as a substitute for

Biomass/Maximum Sustainable Yield estimates, and the status of the fishery relative to this reference point. As a last resort, estimated commercial or recreational

catches combined with anecdotal information on catch rates can be used as a proxy

for MSY.

6. In his testimony, Mr. Crockett spoke extensively about the NMFS

‘‘mixed stock exception’’ to the prohibition on overfishing and the fact that
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these species only receive protection when they are threatened with extinction under the ESA. While many have questioned the legal authority for

this exception and the logic of waiting until a species is approaching extinction before protecting it, if this is the policy, then why is your agency

not addressing the overfishing of grouper species on the ESA candidate list

that are being harvested in the Gulf?

It is not NMFS’ policy to postpone protective measures for overfished stocks in

multispecies fisheries until those stocks are threatened with extinction. According

to the National Standard Guidelines, overfishing may be tolerated only in certain

limited circumstances. Such exceptional overfishing may continue only after three

tests are applied:

• the FMP establishing the exception must demonstrate that it will generate longterm net benefits to the Nation;

• other mitigating measures have been considered and rejected; and

• the resulting rate of fishing mortality will not place the species in danger of requiring protection under the ESA.

The question also addresses actions to address overfishing of grouper species in

the Gulf of Mexico that have been placed on the ESA candidate list. The NMFS candidate species list highlights species for which NMFS has concerns but does not

have the information needed to determine whether ESA listing is warranted. By

placing a species on this list, NMFS hopes that more research and conservation efforts will be directed at this species. The NMFS candidate species list does not, however, have regulatory implications.

NMFS added Nassau grouper and jewfish (recently renamed goliath grouper) to

its candidate species list in 1991. We have funded research over the years on Nassau grouper and goliath grouper, and are in the process of compiling available information to complete an ESA status review. Once the status review is complete, the

NMFS Southeast Region will make a recommendation on whether either of these

species needs to be listed as threatened or endangered under the ESA, after taking

into account ongoing conservation efforts for these species.

All harvests of goliath grouper have been prohibited in the Gulf of Mexico and

South Atlantic federal waters since 1990 (and in the Caribbean since 1993). Harvests of Nassau grouper were banned in 1990 by the Caribbean Fishery Management Council in the FMP for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands; in 1992 by the South Atlantic Fishery Management Council in the FMP

for the Snapper–Grouper Fishery of the South Atlantic Region; and, most recently,

in 1997 by the Gulf of Mexico Fishery Management Council in the FMP for Reef

Fish Resources of the Gulf of Mexico. Therefore, there is no targeted fishery for

these two species.

Warsaw grouper and speckled hind were added to the NMFS candidate species

list in 1997. The Gulf Reef Fish FMP limits recreational fishing for groupers to five

groupers per vessel per day, and only one of these five can be a speckled hind and

one can be a warsaw grouper. The commercial fishery for the deep-water grouper

complex, which includes both of these species, is limited to 1.6 million lbs. (round

weight) per year.

In addition, the NMFS Southeast Region is planning to make a motion for a rebuilding program under the Magnuson–Stevens Act for groupers at the Gulf of Mexico Fishery Management Council. This program would provide for rebuilding of Nassau grouper in 20–30 years, and goliath grouper in 30–35 years. These long rebuilding periods are necessary because these species do not become sexually mature until

as much as 8 to 9 years.

In summary, NMFS is making progress in protecting and rebuilding these grouper stocks under the Magnuson–Stevens Act. As Mr. Crockett states, it is not logical

to wait until a species is approaching extinction before protecting it. NMFS has implemented protective measures for these species.

7. How difficult has it been for the Councils to meet the deadlines required to comply with the new requirements imposed by the SFA? What

tools do the Councils need to better comply with the new requirements?

This is a difficult question to answer because the situation varies from Council

to Council and from fishery to fishery. NMFS believes that the Councils have in fact

been largely successful in meeting the large majority of SFA-mandated deadlines.

At the same time, it is also true that the Councils have had difficulties meeting

some of the deadlines in the 1996 SFA amendments to the MSA. As a general comment, the major reasons for these delays are, first, the unavailability of sufficient

biological and socio-economic data, and, second, the absence in some cases of sufficient human resources to complete all the documents by the required deadlines.

NMFS would like to take this opportunity to point out that the President’s Budget
85

proposes increases in certain budget lines that should make these tasks easier in

the future.

8. Would closer cooperation between the Councils and NMFS during FMP

development speed the approval process and ensure regulations promulgated by NMFS to implement the new FMP or amendment? Might this also

create a reduction in the delay time between when an amendment is given

to NMFS for evaluation and when the final publishing of it takes place?

NMFS supports good working relations and close cooperation between the agency

and the Councils in FMP development and the approval process. NMFS staff attend

many Council meetings, participate on numerous Council plan teams, and prepare

many of the analyses of plan regulations. The agency also regularly meets with

Council Chairs and Executive Directors to review, among other things, the working

relationship between NMFS and the Councils.

At the same time, the FMP development and approval process can be somewhat

slow. NMFS acknowledges that delays could be reduced, and decisionmaking improved, by spending more time on analysis of the effects of various alternatives earlier in the FMP process, before the Council votes on an FMP or amendment.

Toward those ends, as we stated in our April 4, 2001 testimony, NMFS continues

to support a re-coupling of, first, the FMP and plan amendment review process and,

second, the review and approval of implementing regulations. The two processes

were inadvertently de-coupled in the 1996 SFA amendments to the Magnuson– Stevens Act, with the result that NMFS could possibly have to approve an FMP or

plan amendment before and without the benefit of considering public comments on

the implementing regulations. Effectively, NMFS supports a return to the procedures in place before 1996.

We also support reinstating the initial Secretarial review. If this authority is restored, the Secretary can then return an unacceptable plan immediately to the

Council, who in turn can make the changes necessary to have the plan approved

in a timely fashion.

With these and perhaps other changes, we hope we can maintain and strengthen

our good relations with the Councils, and reduce the delays in FMP and plan

amendment approval.

9. Other than the North Pacific Council which had a specific mandate in

the SFA to reduce bycatch in the fisheries it manages, have any of the

Councils adopted NEW measures intended to reduce bycatch or the mortality of bycatch as they were required to do by the SFA? If not, why not?

The 1996 SFA amendments to the Magnuson–Stevens Act mandate reductions of

bycatch in all federally managed fisheries through National Standard 9. Bycatch

mitigation is a national policy, under the Magnuson–Stevens Act and other statutes

that protect species caught incidentally in marine fisheries. Largely for that reason,

the agency launched a review of this issue in early 1996, just before the SFA

amendments to the Magnuson–Stevens Act were passed by Congress, and issued its

findings in June 1998 in a report: Managing the Nation’s Bycatch. NMFS intended

this report to serve as a national plan, which would provide guidance to the Councils on how to deal with this complicated issue. A number of other federally managed fisheries besides those in the North Pacific have adopted measures to reduce

the incidental catch of seabirds, sea turtles, and a number of fish species.

10. If the Councils are lacking data on bycatch, why have they not adopted the ‘‘standardized reporting methodologies to assess the amount and

type of bycatch occurring’’ in these fisheries, to provide them with the data

they need to reduce bycatch? Obviously, existing methodologies must be inadequate, or the data would be available.

Obtaining reliable and useful data on bycatch in federally managed fisheries is

often a difficult task; the practical obstacles vary significantly from fishery to

fishery. As a result, the Councils have had to deal with this issue on a case-by-case

basis.

In some fisheries, data on bycatch amounts and rates remains inadequate, in

spite of the Councils’ and NMFS’ efforts to improve this information. Different fisheries use different methodologies, depending on fleet size and composition. Observer

coverage is not uniform in all federally managed fisheries, and could be improved

in most of them. We do not interpret the Act as requiring the same methodologies

in all fisheries, but rather as requiring reports that produce standardized data within a fishery.

Again, the President’s Budget proposes increases for observer coverage and assessments which, if enacted, should improve the amount and quality of bycatch

data.

11. For those fisheries for which bycatch has been reported to have been

reduced, is it the case that fishermen are actually minimizing the amount
86

of bycatch species that they catch, and reducing the mortality of those they

do catch, or are they simply retaining the same levels of bycatch and implementing some sort of full utilization system, such as turning it into fish

meal?

The answer to this question is complex, and depends on the fishery and its specific circumstances. In the Alaska groundfish fishery, as one example, there are regulations mandating full utilization, pursuant to a report mandated by the 1996 SFA

amendments in section 313(i). In other fisheries, for example in the Gulf of Mexico,

reductions in bycatch have been achieved through the mandatory use of more selective fishing gear, i.e., Turtle Excluder Devices and Bycatch Reduction Devices. In

still other fisheries, bycatch has been contributed to charitable organizations, also

pursuant to a SFA-mandated study.

It should be noted that the definition of ‘‘bycatch’’ in section 3(2) does not address

how fish are utilized. Processing it into fish meal excludes a fish from being categorized as ‘‘bycatch’’ under the Act.

12. The latest report to Congress on ‘‘Status of Fisheries of the United

States’’ indicates that there are more than 650 stocks for which the biomass

is unknown or undefined, making it impossible to determine if they are

overfished. Should we, as stewards of the resource, be concerned about

this?

NMFS is concerned about the status of our scientific knowledge of fisheries resources under federal jurisdiction, and, for that reason, is striving to improve and

update our understanding of the state of these stocks. That said, it is also true that

the large majority of the ‘‘unknown’’ 650 stocks are relatively minor stocks, with

minimal landings. In fact, in the latest report to Congress on the status of fisheries,

the agency explicitly distinguished major and minor stocks. ‘‘Minor’’ stocks are those

with landings below 200,000 pounds (about 100 metric tons). It is noteworthy that,

in the report to Congress for 2000, these ‘‘minor’’ stocks accounted for 83 percent

of the stocks whose status was either unknown or undefined.

There is no intent by the agency to minimize the importance of the unknown

stocks to their ecosystems; we simply wanted to place the information in the Congressional report in a more meaningful perspective. Alternatively, it should be noted

that NMFS has considerable information on most of the stocks classified as ‘‘major.’’ Given limited funding, NMFS must prioritize the use of its resources and, in so

doing, has focused on the more commercially and recreationally important stocks.

Looking ahead, as the agency and the Councils move toward ecosystem-based management plans, we will place progressively more emphasis on research on these

‘‘minor’’ stocks.

13. The Magnuson–Stevens Act, as does most laws, requires that management decisions be made using the best scientific information available. Yet,

the fishing industry has frequently expressed frustration that this means

that many fisheries are managed with data that is outdated or inadequate,

triggering restrictions that they believe may be unnecessary. At the same

time, some in the environmental community believe that inadequate data

results in too little protection for many fish stocks. What can be done to

improve the fisheries data we use to make management decisions? More

importantly, what can be done to restore confidence in these biological assessments?

NMFS is taking a number of actions to improve the quality and quantity of fisheries science.

In addition, the President’s Budget requests $13.3 million over fiscal year 2001

enacted levels for stock assessments. Four essential elements to using the best

available science for conservation and management measures are (1) obtaining adequate quantities of data; (2) obtaining data of adequate quality; (3) proper interpretation of these data; (4) peer review of this process; and (5) placing greater emphasis

on cooperative research.

NOAA Fisheries is actively engaged in improving the science upon which resource

management decisions are based through implementation of the Stock Assessment

Improvement Plan (SAIP).

The SAIP seeks to improve the comprehensiveness, timeliness, quality, and communication of NMFS stock assessments; mine existing databases to evaluate status

determination criteria for species of ‘‘unknown’’ status; conduct adequate baseline

monitoring for all federally managed species; upgrade assessments for FMP core

species; and develop next-generation assessment models that explicitly incorporate

ecosystem considerations.

Specific activities include:

• New Stock Assessment Methods - Expand the pool of senior level scientists

doing cutting-edge methods development. Point of contacts in each Center will
87

coordinate methods research, with a concurrent emphasis on augmenting university partnerships to develop future assessment scientists.

• National Stock Assessment Toolbox - When completed, this standardized package of tested, peer-reviewed and approved analytical tools and assessment models will allow better, more reliable, and repeatable assessments to be made.

• NMFS–University Partnerships and Graduate Stock Assessment Fellowships -

Science Centers will collaborate with Sea Grant universities to enhance stock

assessment and population dynamics study programs and research capabilities.

NMFS/OAR stock assessment fellowships will increase in number and scope,

and focus on new projects that address the agency’s highest priorities.

Another important element is modernization of NOAA’s fleet of fisheries research

vessels.

• A contract has just been signed for the construction of a state-of-the-art, acoustically quiet FRV to conduct fisheries monitoring and research surveys.

• The FRV is an essential part of NOAA’s plan to meet the rapidly growing demand for high-quality at-sea data, and to maintain the integrity of existing data

series.

• Meeting those demands also depends on significant growth in the number of

days at sea aboard chartered academic and industry vessels.

NMFS is also striving to apply more advanced technology in research surveys.

• NOAA Fisheries is exploring fisheries applications for advanced technologies

that would improve the efficiency and effectiveness of stock assessment surveys.

• Advances in airborne and satellite remote sensing, hydroacoustic survey, and

signal processing technologies hold great promise for fisheries applications by

adding information presently not available and providing alternative sources of

survey information for some species and their habitats.

[Response to questions submitted for the record by Mr. Gilford

follows:]
88
89

Answers to Questions From Subcommittee on Fisheries, Conservation,

Wildlife and Oceans, Magnuson Reauthorization Hearing to Dr. James H.

Gilford

I have been asked to respond to the following questions resulting from my appearance before the Subcommittee on Thursday, April 5, 2001. The testimony I submitted at that time was presented on behalf of the eight Fishery Management Council Chairmen and represents the consensus of the Council Chairmen which was developed at the 1999 and 2000 annual Council Chairmen’s meetings. In the following,

I offer my personal response to the Subcommittee’s questions. Please understand

that it does not represent the position of the other Council Chairmen or the Mid– Atlantic Fishery Management Council of which I am a member. I have taken the

liberty of sharing the questions with the other Council Chairmen so at their annual

meeting later this month they may, if they so choose, offer a response to the Subcommittee’s questions.

In the rebuilding of overfished stocks, some have argued that unreasonable rebuilding targets have been set by either the Agency or the Councils.

How are these rebuilding targets established? If the complaint is correct

that unreasonable targets are being set, is this a problem with the Act or

with the implementing guidance from the agency?

Rebuilding targets are based on the population dynamics of each species of concern. Councils are required to use the best scientific information available in developing conservation and management measures. Rebuilding targets based on the best

available scientific information are not unreasonable management goals. Some problems with specific targets may occur in instances involving multispecies interactions

or in situations in which there is less scientific information available on the population dynamics of a species but the Sustainable Fisheries Act (SFA) addresses those

possibilities.

In its April 2000 report to Congress, the General Accounting Office noted

that although NMFS reported that it did not know the status of 75 percent

of the species (and 30 percent of the stocks) that they manage, the 25 percent that it did know the status of represented about 90 percent of the total

weight or volume of all species in U.S. waters. Do you feel this is an accurate statement? Could you comment further on this?

I do not know if the statement is accurate or not, but I suspect that, without some

qualification, it is not accurate. If the statement really is intended to apply to all

species-in U.S. waters, how is it possible to know that 25 percent of the species in

U.S. waters represent 90 percent of the total weight of all species since the status

of the other 75 percent is unknown? If the statement is referring to landings by species, it probably is accurate.

Some members of Congress have argued that the identification of EFH by

the Councils was far too broad and too sweeping in its implementation.

The Agency is now urging Councils to identify Habitat Areas of Particular

Concern (HAPC) which are more discrete areas. Isn’t that what Congress

actually wanted NMFS to do in the ,first place? Do we need to create a new

designation to accomplish what was originally intended?

The initial EFH guidance received by the Councils from NMFS did suggest a

broad rather than a discrete designation of EFH as intended by Congress. In my

opinion, the agency has failed to provide consistent and rationale guidance to the

Councils on EFH implementation. A new designation probably is not necessary since

the use of HAPC designations now allows the Councils to identify discrete areas of

EFH which are more in line with the intent of Congress. However, NMFS should

immediately publish the EFH guidelines in final form.

Last Congress, this Subcommittee held a hearing on Essential Fish Habitat issues. At that time, one of the concerns raised by the Agency was that

there was not adequate funding available to fund research into habitat

issues. If funding is scarce, does it make sense to look first at the habitat

needs of those commercially important species?

Yes, but it makes even better sense to look first at the habitat needs of species

which are economically important to both commercial and recreational fishermen.

One area of concern that has been identified by a number of reviewers

of Federal fisheries management is that of the adequacy of scientific data

on which management decisions are made. A second concern is that the
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regulated community does not have confidence in the scientific information generated by the Agency. How can we get better data and get buy-in

by the regulated communities?

There are a number of ways to get better data, such as mandatory reporting of

relevant data by commercial fishermen, dealers and party/charter operators, for example. Significant increases in funding for observer coverage specific to commercial

fisheries and for increasing the collection of fishery dependent and independent data

also would help significantly in that regard. Cooperative programs in which industry

is a partner in the collection of fisheries data are a help in achieving acceptance

of those data by the regulated community. To be of value, these programs must be

designed and implemented in such a way that they meet the basic requirements for

scientific validity. In the recreational sector, additional funding for the Marine Recreational Fishery Statistics Survey (MRFSS) coupled with more public education

and outreach is needed to build public confidence in the MRFSS data.

We have seen a number of cooperative research survey initiatives that

were cosponsored by industry in the last few years. How does the Agency

use the information from these cooperative surveys, in addition to their

own survey information, to determine stocks size and total allowable catch

levels?

In the specific instance with which I- am familiar (clam industry/NMFS surfclam

and ocean quahog survey), information collected was incorporated into the assessment of stock status and into management decisions for the fishery. That project

was planned and implemented cooperatively by scientists and fishermen to produce

scientifically sound and useful data for stock assessment and management decisions. Industry funded their portion of the research also.

Are there other sources of funds that should be considered to gather better data? Have any of the environmental groups funded this type of research?

Yes. Quota set-asides which are provided for in the Sustainable Fisheries Act is

a source of funding support for collecting fisheries specific data. If the prohibition

on collecting fees beyond administrative costs is removed from the Act, permits and

user fees are another potential source of funds for species specific data collection.

There may be, but I am not aware of any instance in which an environmental group

has funded the collection of fisheries management data on marine fish.

The Magnuson Act requires Fishery Management Plans to ‘‘minimize’’ to

the extent practicable adverse effects on such habitat caused by fishing...’’

Since the Councils have identified the entire EEZ as EFH, this will mean

that the Agency must collect data on gear impacts for the entire EEZ (approximately 3.4 million square miles). Should the Act be amended to apply

the minimization requirement only to the HAPC areas?

Yes, the minimization requirement should be applied only to the HAPCs. It makes

more sense given the importance of the HAPCs and it’s more realistic given the relative size of the areas involved, the limited information currently available on gear

impacts and the magnitude of the staffing effort required.

The Act currently has been interpreted to prohibit the gathering of economic data from processors. Why was this restriction put in place and

should this issue be re-examined? Are there ways of gathering this proprietary data and ensuring confidentiality?

There is some confusion about the prohibition on collecting economic data from

processors and the issue should be re-examined. Economic information is essential

in the preparation of fisheries management plans and amendments as required by

the SFA. The Act gives the Councils discretionary authority to require fish processors who first receive fish subject to a fishery management plan to submit data

which are necessary for the conservation and management of the fishery (other than

economic data). [303 (b)(7)]. The Act also allows the Councils to request the Secretary to implement an information collection program for the collection of information about a fishery other than information that would disclose proprietary or confidential commercial or financial information regarding fishing operations or fish

processing operations. [402 (a)]. The wording of the discretionary authority

[303(b)(7)] is in conflict with the requirements for preparing fisheries management

plans and is in conflict with section 402(a). Yes, there are ways of gathering economic data and ensuring confidentiality. An effective process I am familiar with, as

an example, was implemented under the Toxic Substances Control Act.
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You recommend lifting the moratorium on the implementation of IFQ

management systems; however, you are silent on the need for statutory

guidelines or criteria. Can you expand on your interest in using this type

of management system and the need for guidance in the statute?

I believe IFQ and ITQ management systems can be useful and effective management tools for some fisheries under certain conditions but not necessarily in a onesize-fits-all mode. I believe the Councils should have IFQ and ITQ systems available

as management options. Statutory guidelines should include provisions for fees and

for auctioning of harvest rights and limitations on the accumulation of harvest

rights.

You recommend that the Councils be authorized to charge fees for observer programs. Have any Councils developed observer programs that are

hindered by the lack of this authority? Would the Councils object to being

required to submit specific requests to Congress to gain this?

The Council of which I am a member has not developed an observer program. Instead, the Council is dependent on the NMFS to provide observer data but, unfortunately, the Agency’s program is limited by funding which is dedicated to providing

observers for marine mammals and protected species coverage rather than observer

programs for specific finfish/shellfish fisheries. The North Pacific Council has an observer program funded by industry participants through an amendment to the Act.

The same provision should also be available to other Councils. Submitting specific

requests to Congress would be less desirable than having authority established in

the Act allowing the Councils to charge fees for observer programs.

Several of the witnesses have noted that the use of MSY is problematic.

Should Congress look at this term and, if so, what target should (Congress

look at) in terms of rebuilding plans?

Congress should re-examine the requirement to use MSY for all species. In those

instance for which there is sufficient information, the biomass which produces MSY

should be considered as the target for rebuilding. However, information needed to

establish a reliable MSY is not always available. In addition, MSY for a species may

change as a result of changes in such things as fishing practices, available habitat

or habitat carrying capacity. Over-estimating MSY can result in rebuilding schedules more restrictive than necessary to fishing communities.

QUESTIONS CONCERNING MAGNUSON ACT REAUTHORIZATION

Many factors have been identified as potential problems in US fisheries:

overfishing, overcapitalization, insufficient data, inappropriate management structures, ecosystem impacts of fishing. Which of these do you believe is the most pressing problem to be addressed?

Overcapitalization because of its direct cause and effect relationship to overfishing; insufficient data is the second most pressing problem.

Can you give examples of previously overexploited federally managed

species that have successfully recovered over the past 10 years? What species would you expect to add to the success list in 5–10 years? Are there

any commonalities that might enhance our chances of success with other

overexploited species? What have been the major barriers to success?

Surfclam is an example of a previously overexploited federally managed species

which has successfully recovered in the past 10 years and summer flounder is very

nearly recovered. All of the other species managed by the Mid–Atlantic Fishery

Management Council are expected realistically to be recovered within the next 10

years or sooner. The application of hard quotas, limits on participation, and keeping

management plans in place long enough for them to work are commonalities which

will enhance the chance of success in achieving recovery of other overexploited species. Major barriers to success are: the lack of sufficient fisheries data including adequate sea sampling data, Congressional constraints on available management tools,

law suits and court mandated changes affecting the way specific species are managed. Another barrier is the lack of a mandate requiring that a species which is

managed by the Atlantic States Marine Fisheries Commission in state waters and

by the Mid-Atlantic, South Atlantic, or New England Fishery Management Councils

in the EEZ be managed as one stock under one management plan.

What are the pros and cons of the ‘‘overfishing’’ and ‘‘essential fish habitat’’ sections of the Sustainable Fisheries Act of 1996? What are the administrative burdens and benefits to Council staff? Can the Council meet the
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objectives they are charged with under these sections? Would it be useful

to clarify the concept of essential fish habitat and to provide a clearer

mechanism for evaluating costs and benefits?

The overfishing section provides guidelines for establishing standards or goals

which allow for stocks to rebuild and those are appropriate and constructive contributions to the management process. The recognition of the importance of habitat

to sustainable fisheries in the EFH section is likewise an appropriate and constructive contribution. However, I believe the same section also allowed for the development of guidelines for designating EFH that, at least initially, exceeded the intent

of Congress. Those guidelines have undergone several revisions and still have not

been published in final form. Guidance to Council staff has changed frequently

which has created an unnecessary burden on staff resources. Yes, it would be useful

to clarify the concept of EFH and to have a clearer mechanism for evaluating costs

and benefits.

Does the time required to promulgate federal fishery regulations hinder

effective management?

The lengthy technical and legal reviews often hinder timely implementation of

management measures and recommendations.

MANAGEMENT OPTIONS

In your opinion, what is the primary benefit and the primary drawback

of the existing system of Regional Fishery Management Councils? What

changes might lead to more successful management?

Opportunity for direct involvement in the management process by affected user

groups and fishing communities is the primary benefit of regional management. The

drawback is that the action of one Council may conflict with or otherwise affect the

operation of another Council based, for example, on regional adherence to national

standards. Providing new funding to the Councils commensurate with the additional

staff effort and resources needed to meet the new requirements mandated by the

SFA would enhance management efforts.

How might the Magnuson–Stevens Act be amended to address the problem of frequent industry opposition to strong conservation and management measures? Should fishermen be given more or less influence over the

management measures adopted?

I don’t believe the Act should be amended simply because of frequent industry opposition to strong conservation and management measures. Industry opposition

should and can be addressed under existing provisions, and management measures

can be modified if a change is appropriate and consistent with management goals.

Fishermen should be involved in an advisory capacity in identifying possible management options and in meeting rebuilding requirements and alternative approaches to management. I believe that fishermen already have a reasonable and

sufficient opportunity through membership on Councils, on advisory committees and

through the public participation process to influence management measures.

Should the blanket moratorium on individual fishing quota programs

(IFQs or ITQs) be lifted? If no, what is your main reason for opposing those

programs under all circumstances? If yes, should there be nationwide

standards for quota programs?

The blanket moratorium on IFQs and ITQs should be lifted and the Councils

should have those measures available as possible management options. IFQs and

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 flexibility to

develop IFQ or ITQ programs which recognize the unique characteristics of specific

fisheries.

Current management practices address species independently, attempting to achieve maximum sustainable yield for each species. Is this realistic?

Can all species be exploited at maximum sustainable yield levels simultaneously?

It probably is neither feasible nor realistic to attempt to attain MSY for all species

or all species in a fishery complex simultaneously. The management objective should

be to achieve optimum yield (OY) for each managed species; OY accounts for all relevant economic, social and ecological factors.
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Moves toward more decentralized fisheries management in the Maine

lobster fishery, and in other fisheries here and abroad have shown some

success in terms of conservation and social and economic outcomes. Is

more decentralization of management desirable in some of our fisheries? If

so, should the Magnuson–Stevens Act be amended to encourage experiments with decentralized approaches to fisheries management?

Management decisions should remain at the Council level. The development of

fishery cooperatives might be encouraged to provide a means for allocating the allowable landings to affected user groups. However, the act should not be amended

to encourage decentralization of fisheries management.

Are there changes needed to influence how Councils meet NEPA requirements in developing and amending fishery management plans?

The Councils should not have to address NEPA requirements in the development

of fishery management plans or in amending plans since Magnuson–Stevens already

requires that social, economic and ecological issues be addressed.

Would it be better to assign a single council staff person to be responsible

for the entire process of data collection, scientific assessment, and provisions of management advice for each fishery?

No. Assigning responsibility for the entire process is not a feasible option.

ENFORCEMENT AND COMPLIANCE CONCERNS

The vast area of our EEZ, the hundreds of fishing ports and tens of thousands of fishing craft make monitoring, control and surveillance extremely

difficult. How might the Magnuson–Stevens Act be amended to encourage

the use of alternative methods for strengthening compliance with regulations? Should non-governmental bodies be allowed to supplement existing

enforcement resources?

Some approaches to consider are: encourage more use of vessel tracking systems;

require all recreational and commercial fishermen to have permits which are revokable in the event of illegal acts; implement a gear certification program in all fisheries where gear regulations exist (legal would be certified); encourage the use

where appropriate of ITQ programs (the ITQs in the clam fisheries have increased

compliance with regulations). Non-governmental bodies should not be used for enforcement.

The U.S. spends $660 million annually on fisheries management, mostly

enforcement of the Magnuson–Stevens Act. Other fishing nations, for example, Australia, Canada and New Zealand, have implemented user charges to

recover the costs of fishery management services. Should the MagnusonStevens Act be amended to require that some of the costs of management

be recovered from users of our marine fisheries resources? If so, what principles should govern a cost-recovery program for U.S. fisheries?

Yes, user fees should be implemented. Funds derived from those fees should be

allocated directly to fisheries management and enforcement and the fees should be

proportional in the case of commercial fishermen to the harvest quantity and the

enforcement effort required to assure compliance. License fees should also be required of recreational fishermen.

SOCIAL SCIENCE AND FISHING CONMMUNITY CONCERNS

How could we improve opportunities for collaboration in research and

management between fishermen and regulators?

Councils and the NMFS have a number of opportunities to promote collaboration

in research and management with fishermen. The Mid–Atlantic Council is implementing a quota set aside program to provide species-specific funding for cooperative research with fishermen. The NMFS is engaged currently in a number of industry initiated research projects. The Act does not have to be amended to allow for

such collaborative effort.

What is the significance of National Standard 8 on fishing communities?

What, if anything, could be changed in the Magnuson–Stevens Act or its implementation to better protect coastal fishing communities?

National Standard 8 requires that conservation and management measures take

into account the importance of fishery resources to fishing communities in order to

provide for sustained participation of those communities and, to the extent practicable, minimize adverse economic impacts on such communities consistent with
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the conservation requirements of the Act as mandated under National Standard 1.

Coastal communities will benefit most by management measures which prevent

overfishing of existing stocks and from rebuilding of overfished fish stocks to a biomass which will provide optimum yield.

Some observers have noted that fishermen frequently oppose conservation and management measures because they have little assurance that

current sacrifices will be rewarded in the future. How can the Magnuson–

Stevens Act be amended to improve the prospects that fishermen’s sacrifices will be perceived as worthwhile, and thus improve compliance with

regulations?

Ending the moratorium on IFQ and ITQ systems to give the Councils the opportunity, where appropriate, to use such systems for that purpose is one action that

can be taken. Providing Councils with other tools for identifying and limiting participation in fisheries in order to achieve a compatible balance between sustainable

fish stocks and harvest capacity may also result in improved compliance.

SCIENCE AND DATA NEEDS

The current process for determining data collection and research priorities is driven primarily by line items in the budget and other centralized

political decisions. Would this process and management outcomes be improved if managers within each fishery were given greater authority and

leeway to determine appropriate data collection and research programs?

I believe that to be so. The Councils should work cooperatively with the NMFS

regional offices and science centers to determine data needs, collection requirements

and priorities.

Are the data currently available for estimating fish stocks adequate to

support the decisions that federal fishery managers must make?

In general, fisheries management decisions are based on the best available data.

The data currently available are better in some instances than in others. Effective

fisheries management and the appropriate decisions leading to effective management is data intensive. More and better data will allow managers to make better

and more effective management decisions.
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