U.S. GOVERNMENT PRINTING OFFICE

44–541 CC WASHINGTON : 1997

HEARING ON THE MANAGEMENT OF FISHERIES

BY THE NATIONAL MARINE FISHERIES SERVICE

HEARING

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION,

WILDLIFE AND OCEANS

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

SEPTEMBER 11, 1997, WASHINGTON, DC

Serial No. 105–39

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

JIM SAXTON, New Jersey, Chairman

W.J. (BILLY) TAUZIN, Louisiana

WAYNE T. GIL.CHREST, Maryland

WALTER B. JONES, JR., North Carolina

JOHN PETERSON, Pennsylvania

MICHAEL D. CRAPO, Idaho

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

FRANK PALLONE, JR., New Jersey

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

HARRY BURROUGHS, Staff Director

JOHN RAYFIELD, Legislative Staff

CHRISTOPHER STERNS, Democratic Counsel
(III)

C O N T E N T S

Page

Hearing held September 11, 1997 .......................................................................... 1

Statement of Members:

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

of Hawaii ....................................................................................................... 3

Crapo, Hon. Michael D., a Representative in Congress from the State

of Idaho .......................................................................................................... 4

Farr, Hon. Sam, a Representative in Congress from the State of California .............................................................................................................. 5

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

New Jersey .................................................................................................... 3

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

Jersey ............................................................................................................. 1

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

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

prepared statement of ................................................................................... 36

Statement of Witnesses:

Schmitten, Rolland A., Assistant Administrator for Fisheries, National

Marine Fisheries Service .............................................................................. 5

Prepared statement of ............................................................................... 37

Additional material supplied:

Code of Conduct ................................................................................................ 65

Implementation Plan ........................................................................................ 91

Memorandum to Subcommittee members ...................................................... 54

News article ...................................................................................................... 52
(1)

HEARING ON THE MANAGEMENT OF FISHERIES BY THE NATIONAL MARINE FISHERIES SERVICE

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS, COMMITTEE ON RESOURCES, Washington, DC.

The Committee met, Pursuant to notice, at 10:30 a.m. in room

2133, Rayburn House Office Building, Hon. Jim Saxton (chairman

of the subcommittee) presiding.

STATEMENT OF THE HON. JIM SAXTON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. SAXTON. Let me just remark at this point. We are able to

move through business expeditiously here as we just did, and with

a great deal of dispatch. And the reasons therefore have nothing

to do with us as members, except that we have been smart enough

to hire good staff. And I would just like to take this opportunity

to thank all of those who are responsible for that kind of organization. The staff are extremely important to us, and I hope everyone

here recognizes that fact.

All right, we have another agenda here.

We will at this point reconvene the Subcommittee for purposes

of the hearing. The purpose of today’s hearing is to fulfill the subcommittee’s oversight responsibility over our nation’s valuable fisheries resources, and the government agency that oversees these resources is the National Marine Fisheries Service, known as NMFS.

Let me ask unanimous consent at this point that Mr. Tierney

and Mr. LoBiondo, be permitted to join us on the committee dais.

Hearing no objection, it is so ordered.

Let me just state that I think this is an extremely important

hearing. Mr. Abercrombie and I at the outset of this year, made a

very simple request to the Full Committee Chairman, that the

name of our Subcommittee be changed from the Fisheries, Wildlife

and Oceans Subcommittee to the Fisheries Conservation, Wildlife

and Oceans Subcommittee. That change was made, and while it

added only one word to the title of our subcommittee, to me it was

a very important change. And to the extent that we are able to reflect that name change in our subcommittee, we will be successful.

It is my view that the agency that oversees Fisheries Management, NMFS, has two missions, and that they are sometimes,

maybe very often, at odds with each other. On the one hand, NMFS

must generate the greatest economic benefit possible from our na-
2

tion’s fishery resources; while on the other it is charged with conserving these very same fish for future generations.

These dual competing missions appear to cause declines in fisheries throughout the EEZ. The Congress has witnessed, for example, decline of New England groundfish, salmon in the Northwest,

redfish in the Gulf of Mexico, and sharks along the Atlantic Coast.

As Chairman of the Fisheries Conservation Subcommittee, it is

my goal to find ways to get NMFS on the correct path toward fisheries conservation. Some questions that come to mind here are, is

the Department of Commerce the appropriate place to house an

agency that must work to conserve fisheries? Is there a more appropriate department where this agency can more easily fulfill its

missions? Should these missions be changed or limited in some

way?

Members of the Subcommittee have questions about specific

issues within their regions, states, and districts, that deserve

thoughtful and comprehensive answers. I am confident that today’s

witness, Mr. Rolland Schmitten, the Assistant Administrator of

Fisheries of NMFS, will do his best to disclose as much accurate

information on each unique situation as possible.

I have requested that he bring along his experts, so that the Subcommittee today can fully air all issues of importance to Members,

and not have to wait for followup answers by mail. I look forward

to a productive hearing, and thank Assistant Administrator

Schmitten and his staff for being here with us today.

I now turn to the Ranking Member, the gentleman from Hawaii.

[The prepared statement of Mr. Saxton follows.]

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF NEW JERSEY

Good morning. The Subcommittee will come to order. The purpose of today’s hearing is to fulfill this Subcommittee’s oversight responsibilities over our Nation’s valuable fishery resources and the government agency that oversees these resources—

the National Marine Fisheries Service, also known as NMFS.

It is my view that the agency has two missions at odds with each other. On one

hand, NMFS must generate the greatest economic benefit possible from our Nation’s

fishery resources while, on the other hand, it is charged with conserving these very

same fish for future generations. These dual competing missions appear to cause declines in fisheries throughout the Exclusive Economic Zone. The Congress has witnessed, for example, the decline of New England groundfish, salmon in the Pacific

Northwest, redfish in the Gulf of Mexico, and sharks along the Atlantic coast.

As Chairman of the Fisheries Conservation Subcommittee, it is my goal to find

ways to get NMFS on the correct path toward fisheries conservation. Some questions that come to mind here are: Is the Department of Commerce the appropriate

place to house the agency that must work to conserve fisheries? Is there a more appropriate department where this agency can more easily fulfill its missions? Should

these missions be changed or limited in some way?

Members of the Subcommittee will have questions about specific issues within

their regions, states and districts that deserve thought and comprehensive answers.

I am confident that today’s witness, Rollie Schmitten, the Assistant Administrator

for Fisheries of NMFS, will do his best to disclose as much accurate information on

each unique situation as possible. I’ve requested that he bring along his experts so

that the Subcommittee today can fully air all issues of importance to Members and

not have to wait for follow-up answers by mail.

I look forward to a productive hearing and thank Assistant Administrator

Schmitten and his staff for coming.
3

STATEMENT OF THE HON. NEIL ABERCROMBIE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF HAWAII

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

some interest in this parochially. The Western Pacific Fishery Management Council, West Pac, the National Fishery Service and Long

Line Fishing Industry, have worked together to establish a current

3-year VMS pilot program, the vessel monitoring system, in the

Hawaii—long-line fishing area for tuna and sword fish. This was

the first large scale test of vessel monitoring technology in the U.S.

domestic fishery, and I am hoping that we are learning from it, we

will have implications planet-wide.

The experience, I believe, gained by the National Marine Fishery

Service and WSPAC, the Management Council on the Western Pacific, during this part of the program, has placed them in a position, I believe, of international leadership in the area of developing

reliable and desirable tools for fisheries in management. I believe

the pilot program has taught a lesson, that anyone who decides to

utilize a vessel monitoring system for fisheries management, must

be willing to make a long-term commitment, in terms of personnel

and funding.

So during the hearing, Mr. Chairman, my concern is that the 3-

year project is scheduled to end in December of this year, and I

would like to know whether or not the National Marine Fishery

Service is planning on including the necessary funding in its 1998

budget to continue the program; whether it is a priority and whether the National Marine Fishery Service is considering the consequences if we terminate funding for this program, in regards to

the management of the fisheries.

My point, Mr. Chairman, is that we have made an initial investment. I believe the facts will demonstrate that this investment has

already produced results that in line with what Mr. Farr was

speaking of, the implications are worldwide, and that we need to

make a long-term commitment to the program. I cite that at some

length, and specifically to you in my opening remarks, because,

even though it could on the surface be seen as referencing only a

particular project in my area of the world, I believe that as I indicated, the implications are in fact worldwide and that this is a pioneer effort, one which I believe needs to be continued. So I will be

interested in pursuing that.

I also, Mr. Chairman, have a series of questions—far too many

to be gone into during the time allowed during the hearing—which

I would like to be able to submit for answers, commentary, observations, by the National Marine Fisheries, or appropriate bodies,

institutions, individuals, in more detail fashion, in a written form,

for the perusal of the committee and staff. Thank you.

Mr. SAXTON. Thank you, Ranking Member.

Mr. Gilchrest, do you have an opening statement?

Mr. GILCHREST. No.

Mr. SAXTON. Mr. Pallone, Mr. Farr. Mr. Pallone.

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

Mr. PALLONE. Thank you, Mr. Chairman. Again, I want to thank

you for holding this Oversight Hearing on NMFS, and I also want
4

to thank Mr. Schmitten for testifying. I wanted to express my concern with NMFS, and the drafting of these new guidelines for the

implementation of the new sustainable Fisheries Act, SFA, the National Standards.

As you are aware, the Secretary of Commerce and the regional

councils will use these guidelines in their preparation of fishery

management plans, and these guidelines are extremely important

in the context of council-drafted management plans, as well as the

Secretary’s management plans for highly migratory species. It is

essentially simple to see that these guidelines are imperative to

successful implementation of the sustainable Fisheries Act.

It has been brought to my attention that NMFS draft guidelines

may have erred in its interpretation of congressional intent, and

undercut the fundamental goals of the new act. For example, the

need to end overfishing, and also minimize by-catch. And I am also

concerned with NMFS handling of bluefin tuna, particular the—angling—category.

Up until the beginning of August this year there was angling category allocation of four school bluefin tuna per vessel, and one

large school or medium, or small-medium per vessel per day. But

at the start of September, when most fishermen fish for bluefin in

my district, a new bag limit was implemented at two school bluefin

tuna per vessel per day, and three large school small- mediums per

day, per vessel.

Due to the traveling and feeding patterns of small bluefins, fishermen and owners of fishing vessels have told me that it is rare

to find large and small-medium bluefin in the same school. They

told me that a vessel is likely to catch small bluefin in one area

in time, and catch large and small-medium in another area in time.

The allocations set by NMFS have affected many fishermen and

fishing vessels within my district. Due to financial cost there was

no incentive for fishing vessels to book tuna trips, and several fishermen in my district lost money. It has been suggested to me that

maybe it is time that NMFS allow for one fish, per man, per vessel.

Unfortunately, this issue cannot be solved today, and I understand

that, Mr. Chairman. I do ask, however, that Mr. Schmitten and

NMFS properly address this issue next year, when setting new allocations for the bluefin fishery. And again, I want to thank you,

Mr. Chairman, and Mr. Abercrombie for holding this hearing.

Mr. SAXTON. Mr. Crapo.

STATEMENT OF THE HON. MICHAEL D. CRAPO, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mr. CRAPO. Thank you, Mr. Chairman. I will be brief. I appreciate you coming for the hearing today, Mr. Schmitten and Mr.

Chairman. I appreciate you for holding this.

As you both know, I am very concerned about the activities of the

agency, with regard to the Pacific Northwest salmon, and the recovery efforts underway there, with regard to salmon and steel

head. I have strong concerns about the direction the agency appears to be going, and about the management. This is not a specific

comment on the managers, because I think they are trying their

hardest in working hard with us. But I believer there is some significant issues with regard to how the issue is being managed, that
5

I would like to review with you in the hearing today, and I look

forward to the opportunity when that time comes. Thank you.

Mr. SAXTON. Mr. Farr.

STATEMENT OF THE HON. SAM FARR, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Mr. FARR. Thank you, Mr. Chairman. As we get into the hearing

I am going to be asking more specific questions, but I share Mr.

Pallone’s and others concerns, that the intent of Congress has not

been reflected in the proposed regulations. I think we are most

egregious, abusive it is, that you have interpreted the law where

it says shall, and made that permissive upon the councils, and I

do not think that was the intent, nor is it what the law says, and

I will be asking some more questions about that. But thank you,

again, Mr. Chairman, for having this hearing, and the hearings

that you had during the recess.

Mr. SAXTON. Thank you. You are now going to hear from our witness, Mr. Schmitten, and Mr. Director, I understand you would like

to take a few minutes more than 5 minutes, which is the normal

allotted time. So proceed. We are interested in what you have to

say this morning.

STATEMENT OF ROLLAND A. SCHMITTEN, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES

SERVICE

Mr. SCHMITTEN. Well, thank you very much, Mr. Chairman, and

good morning to the members. I am Rollie Schmitten, known as Assistant Administrator for Fisheries, and I am delighted to be here,

because I think it is this type of exchange that will be very beneficial to the agency and to hear your views. I will come back and

answer the questions that have already been raised, but I will wait

and see that after my comments.

I would like to start with introducing some of the important people within National Marine Fishery Service that will help with

those answers you have asked for, and I will begin with the person

on my left, who is our new Deputy Director, Dr. David Evans.

David is replacing Dr. Nancy Foster, who has now become

NOAA’s Assistant Administrator for NOS, National Ocean Service.

Dave was the deputy of NOS before he joined us, and he is a physical oceanographer from the University of Rhode Island, and we are

really proud to have him with us.

To my right, Dr. Gary Matlock, the Director of the Office of Sustainable Fisheries, and he will certainly assist with handling many

of your management questions.

And you ask that we have a budget expert, and we have our Acting Division Chief for Budget, Mr. Alan Risenhoover, on my far

left. Many of you have known Alan from his previous role, and that

is our head of Congressional Affairs.

Mr. Chairman, this is a bit of an unusual hearing, and you can

tell by the briefing book and the size of that book we have like

clear cut the last remaining old growth in the west, but we have

spent a lot of time in preparing for this hearing. I have submitted

to the Subcommittee a fairly lengthy statement. I will disregard

that in brevity, and just provide a synopsis of my comments.
6

I do think this is a great opportunity for the agency, and we will

share some progress. And I want to share some successes, because

so often we focus on the calamity, the crisis in fisheries; there are

successes as well. But I think most important to discuss the issues

that are important to you and your constituents.

As the chairman outlined in his comments, these are indeed challenging times for those of us that are involved in this very important sector of our culture and economy. We are the one of many

of the world’s coastal countries that are coping with the challenges

that the fisheries’ failures can bring, however, we will be among

the biggest beneficiary by making the very difficult decisions necessary to transition to sustainable fisheries. And that truly is our

goal. And, Mr. Chairman, I support the word, conservation that

you have put paramount.

I have talked to my colleagues in other countries—I have just

come from Mexico—and the United States is certainly identified as

a leader in the area of conservation. And I am pleased to be the

head of an agency that plays a pivotal role in shaping the future

in the marine fisheries, not only for this nation, but for the world.

As a global society we are relatively new at managing fisheries;

not at catching fish, but at managing fisheries. Our ability to catch

fish in salt water has existed for a long time; much longer than our

ability to control harvest. In fact, serious management by the

United States of its marine fisheries really only go back 20 years,

and that goes back to the passage of the Fisheries Conservation

and Management Act, which we know as the Magnuson Act. That

was the first comprehensive Federal legislation to address this subject. And at the time it was felt very revolutionary; probably still

is in its scope and its vision. And it certainly is being copies around

the world; Peru, Mexico, Canada. Many countries are looking at

our system.

But it was identified as correcting the negative impacts foreign

fishermen were having on our stocks, without a lot of thought or

a lot of caution of really what was happening to the domestic fishing capacity once the foreigners had been removed.

By the 1990’s we had achieved our goal of Americanizing our domestic fisheries, yet the secondary goal of the Fisheries Conservation Management Act to stop over-fishing was far from met. I am

not even sure it was even addressed at that point.

The notion that over-fishing could, and indeed has occurred, was

just being realized throughout the world’s fishing community.

Mr. SAXTON. Mr. Schmitten.

Mr. SCHMITTEN. Yes, sir?

Mr. SAXTON. Excuse me. Could you turn off the light so that he

can—Thank you.

Mr. SCHMITTEN. Thank you, Mr. Chairman.

We now realize that fishing can and has already had profound

effects on marine stocks; just look at New England. But in the face

of increasing competition and diminishing economic returns, a concept of reducing catch in the short-term for improving long-term

sustainability, has generally been met with very stiff opposition.

An economically unhealthy fishing industry can not afford mandatory catch reductions, even temporarily. Resulting stock declines

have often been met with even more unsustainable fishing effort.
7

And this situation of excess fishing capacity has further been exacerbated by the application of technology advances, in the finding

and catching a fish.

Now the agency is now faced with the daunting task of stopping

and indeed reversing, for many fisheries, the expansion of our capabilities to capture fish. This reality has brought about major

changes in our fisheries management philosophy, and is addressed

in our new strategic plan, which you should have before you, Mr.

Chairman. But it is interesting, when taking over the head of this

agency that we did not have a long-term, let alone a short-term

strategic plan, and we have now put one out.

We recently completed our programmatic priorities, which are

embraced in this plan. It is designed to guide the agency for the

next 5 years. The plan is grounded in the knowledge that the agency must pursue an aggressive conservation oriented policy toward

fisheries management; identify clear priorities; and link these goals

for the agency’s operational and budget priorities. And I am proud

to tell you that our strategic plan is one of the first in government

to meet the requirements of the Government Performance and Results Act, the GPRA, which actually shifted the focus of the performance measures from activity-based objectives to result based

objectives. And we did not develop the plan in a vacuum, which so

often happens in this world that we live in. But it was developed

with the help and the advice for the people that we serve.

The plan has three broad strategic goals; build sustainable fisheries, recover protected resources, and then a focus on a health

coastal habitat.

Mr. Chairman, you probably know it, but let me just tell you how

big a business fisheries really are. In 1996 the commercial landings

in the U.S. by the United States fishermen were 9.6 billion pounds,

with an ex-vessel value of $3.5 billion.

There are over 300,000 direct jobs, and if you increase the jobs

by those that process and service those products, it is well over a

million people.

U.S. consumers spent $41 billion in fisheries products in 1996,

with an increase in our GNP by $21 billion. But if we were to follow a conservation-directed maximum sustained yield process for

all our fisheries, we would accrue an additional $4 million of benefit.

I do not want to leave out the opportunity of mentioning the recreational impacts on our fisheries. This is a growth area. It is estimated that over 300 million fish are being caught by our men and

women that are fishing in marine waters. Eight million fishermen

are currently fishing—64 million trips—and they contribute between $5 and $7 billion dollars to the annual economic benefits of

this nation. Recreational fisheries is the second most popular outdoor sport in the nation.

Currently we find a situation in which more and more vessels

are racing to catch fewer and fewer fish. This trend makes fishing

more hazardous, allocation decisions certainly more contentious,

and by-catch problems greater. And there is probably no better example of the current situation in the U.S. than that of Atlantic

bluefin tuna.
8

And I was hoping I could share this with Mr. Pallone, but these

fish are sought from Maine to Texas. They are sought by both commercial and recreational fishermen, who use a variety of gear. The

internationally established quota is 1,350 metric tons for the entire

U.S., all of which is dedicated to scientific monitoring; which supports around 10,000 commercial vessels and permits, and 15,000

recreational vessels.

If you accrue all that, that boils down to representing less than

one half of one fish per permit per year. That is what all these people are fishing for, and the growth is exponential as far as permits.

Consequently, the regulations that we apply become the focus of

public debate, various interest groups, challenge their adequacies,

and we are faced with an increasing number of legal challenges on

our regulations.

The quest to achieve the sustainability and rebuild our fisheries

has been greatly enhanced with your amendments to the Sustainable Fisheries Act, the Magnuson-Stevens Fisheries Conservation

and Management Act. You have given us the tools that we need to

move forward and meet our mandate.

The Act reflects the U.S. commitment to apply the same principles nationally as we have been espousing around the world in

the international community. In the FAO the code of conduct for

responsible fisheries, we have used conservation as the standard.

The straddling stocks, we have used conservation as a standard.

High seas drift nets, again the United States promoted conservation. So it is good to have these underpinnings to do the very same

thing at home.

Mr. Chairman, I think that shifting the burden off of the resource, and certainly working for a precautionary approach is what

we are attempting to do. That is reflected in a recent court decision—a very important one—out in New England, from a Federal

district court, that dealt with our Amendment 7 to the groundfish

plan. In his final decision the judge wrote, ‘‘it is appropriate therefore, for the Secretary to be conservative in dealing with the issues

of conservation, and in the face of uncertainty to take more strenuous measures, even though they may unfortunately have shortterm dramatic negative effect on the fishing industry.’’ A court has

said, what you are attempting to do by promotion of conservation

is the right thing to do.

With a sound foundation in science information, the agency is

much better able to meet its commitments of sustainable fisheries.

For example, optimum yield for each fishery must be set two or

less than MSY. Over-fishing is statutorily defined, and over-fish

fisheries must be identified and rebuilt within a 10-year timeframe.

I think that the Act clearly recognizes that sustainability of fisheries depends critically on the sustainability of a fish.

Mr. Chairman, just to conclude, I have assigned the implementation of the Sustainable Fisheries Act as the agency’s highest priority, at least for the next 2 years and longer if necessary. We have

committed the necessary funds, the fiscal needs, the human resources, and re-programmed all of our activities within the flexibility that we have under the law; to attempt to implement this act

is our highest priority.
9

We have also done this in an transparent fashion. You can tune

onto the Web page today, and you can see our Sustainable Fisheries Act programs and track our progress. It is updated every

week. And so the public can track what we are doing.

Mr. Chairman, just in concluding, I do not want to leave the

committee with a feeling that everything is a crisis out there; to

leave you with a very bleak picture of our national marine fisheries, because that is not necessarily the case.

Let me cite some successes, because I think you deserve this, and

you need to be able to share these with your constituents. The recovery striped bass; not necessarily something we are solely responsible for, but we certainly were a part of.

It was accomplished through host partnering with the states that

are part of the Atlantic States Marine Fish Commission, and other

agencies. But I can tell you what we have achieved. Our information records go back to the 1880’s. This year science showed that

there are more stripe as in any time of the history of this nation,

so we can have successes.

Gray whales. Gray whales after many years of protection under

the Endangered Species Act, we were able to delist. There are over

22,000 gray whales. And I think it demonstrates that the Act can

work both ways. People often say that the Endangered Species Act

is a one track, one direction, piece of legislation, and that is not

necessarily the case. Even the disaster in New England that developed over a 20-year timeframe resulted in this agency, with your

support, taking some fairly dramatic measures. NMFS asked the

Council to bring about its Amendments 5 and 7; and today, two of

those three stocks are already showing signs of recovery. The recovery is happening quicker than our scientists expected, and it shows

that we can bring about recovery. Alaska groundfish——

Mr. SAXTON. Mr. Schmitten, if you could begin to summarize. We

have some members who would like to ask you some questions who

have to leave.

Mr. SCHMITTEN. I will do that right now. Just Alaska groundfish,

the largest fishery in the nation, by both volume and dollar, is stable, robust. The second largest fishery in this nation, shrimp in the

Gulf of Mexico is stable.

I will just conclude by saying, this is a wonderful opportunity,

and it is probably more important that we focus on the issues that

you have, and the issues that we may bring out. I have noted the

questions on HMS and the national standards, and others, and at

the appropriate time I will answer those too.

Mr. Chairman, thank you for this chance.

[The prepared statement Mr. Schmitten may be found at end of

hearing.]

Mr. SAXTON. Thank you very much, Rollie, for a very articulate

statement. The Committee will be operating under the 5-minute

rule this morning, at least for the first round of questions. And that

will apply to yours truly as well. So we want to move as rapidly

as we can to cover the issues at hand.

Mr. Schmitten, you know from our previous conversations I have

some reservations about our successes, primarily because the successes that we can point to follow disastrous situations, which our

system appears to permit to occur.
10

As an example, you gave a success I agree with, and I have used

the example many times—it happens to be striped bass. The reason

we were successful with striped bass is because we let the species

crash, and now we have been successful in pumping life back into

the species. And I am glad that we have those kind of successes,

but I would be more pleased if we did not have to point to those

successes because of our failures to begin with.

You and I had a conversation a day or so ago, about these matters, and I appreciate the openness with which you address them.

But it still leaves me asking the question—what is it that we can

do as legislators to help you find a better way to prevent the difficult situations, which we seem to inevitably find ourselves facing.

Of course, as you did, I could point to the groundfish situation

in New England. I could also point to the striped bass situation

that we have recovered nicely from. But also point to a situation

involving Atlantic sharks, which the Department of Commerce

helped to develop an economic incentive to take, and subsequently

permitted the over-fishing of. I could also point to the redfish situation in the Gulf of Mexico, which I suppose is another success following a disaster, which we collectively permitted to occur.

It just seems to me that there should be a better way for us to

manage these resources, so we do not continually find ourselves

trying to be successful in the recovery program for something we

have allowed to occur.

I think there is no better time to discuss this matter then now

and to be able to look at those things that we have observed over

the past, particularly from my point of view in the Atlantic, and

I am sure from the Members’ point of view in the Pacific, to talk

about a situation in the historical context that I have just mentioned; and to talk about the coming situation with the herring

fishery and the mackerel fishery in the Northeast.

As probably everyone on this committee knows, we face a situation with regard to an underutilized species. Through government

efforts and through private efforts, an economic incentive has occurred for new vessels to enter this fishery. We know that there

are some small boats that are already in the fishery. We also know

that there is at least one factory freezer trawler, which is preparing

to enter the fishery. And I was struck earlier this week to read an

advertisement in National Fisherman which I would like to read.

It says, ‘‘Wanted—captains, mates, engineers, deck hands, experienced. Has your job been lost to a buy-back? We have two freezer

trawlers located in the U.S. east coast to fish herring and mackerel. We are looking to fill these positions; great opportunity,

steady employment.’’

Now, you and I have discussed at length the situation involving

the Atlantic Star. We also have made reference to other ships,

which are—I believe, currently in the Northwest, although maybe

they are not still in the Northwest, if you read anything into this

advertisement—which are prepared to enter the fishery. We have

also had discussions relative to what we can do to prevent the overfishing of these currently underutilized species.

Part of that conversation leads to statements which you have

readily and forthrightly made, that you cannot do anything to pre-
11

vent the overfishing of these species until Congress gives you some

tools to work with.

Now, we may have experienced some successes, but in almost

every case they have followed an overfishing problem. Here we are,

once again it appears to me, on the brink of taking another underutilized species, permitting the fishery to become overcapitalized, to

create another disaster from which we must yet recover.

Would you comment on this in the context of the regulatory

schemes that you follow, and what is it that we need to give you,

in terms of additional tools, or a different structure, as I mentioned

in my opening statement, relative to conservation efforts, relative

to whether or not you should remain in the Department of Commerce. What is it that we need to do differently in order to prevent

these disasters from which we must recover?

Mr. SCHMITTEN. Thank you, Mr. Chairman. I think where we sit

is not as relevant as what we do, and I think the imperative thing

here is making sure that conservation is first in all of our minds.

Certainly under existing law today most underutilized resource

are recognized as an open-access resource—that has been the history of our nation—and therefore domestic vessels are allowed in

and out with the freedom to access these resources.

In the particular fishery that we are talking about, the herring

fishery, there is not a fisheries management plan. The Council is

working very diligently, and I think these issues rest with the

Council, and that may be where our solution is; to get the plans

out in a timely way to avoid the cycle of overfish, overcapitalize,

seek a new fishery, that you have just described.

There is a preliminary management plan in place. It has provided a couple of safeguards though. First of all, it set an ABC, an

allowable annual harvest, which we can monitor. If catch reaches

that level, we have the authority under Magnuson to close that

fishery down, and we very much intend to do that.

I think that this gets to two issues. One, support of limited effort

around the country for our fisheries, which this agency very much

does support, seven of eight councils support. We cannot just allow

the uncontrolled expansion into all these fisheries. And second, an

issue of timeliness, and that is a question of should there be some

kind of plan in place prior to the opening of an underutilized fishery. Personally, I think that idea is consistent with good management. I cannot speak for the Administration because I have not

really ever discussed this. But it is consistent with a conservation

approach, in which we put the fish first. We put the burden, not

on the fish, but on the fishers, and it is something that I can philosophically support.

I would ask Dr. Matlock if he would have anything to add to

that?

Mr. MATLOCK. The only thing is really a very specific item, and

that is in the case of the mackerel fishery, there is a domestic allowable harvest that has been set, because there is a fishery management plan for that fishery in place that sets a harvest level

much lower than the allowable biological catch. So there has been

a fairly significant amount of conservativism that has been built

into the setting of that allowable harvest for mackerel. That is all.
12

Mr. SCHMITTEN. You also have given us some tools to be

proactive for the first time. We have always been reactive, and you

have pointed that out. Those tools are coming out of the Sustainable Fisheries Act, and they include, preventing overfishing, adherence to MSY, so we will not let the fish go down to the levels that

you have described. Mandatory rebuilding for those fish that are

overfished, within a 10-year timeframe. And I think important to

this, something that has always been missed, is the critical nature

of habitat. We can shut the fisherman down in many cases. We will

never bring back the fish if we do not go in and preserve its habitat.

Mr. SAXTON. Thank you. I am going to stick with my word. My

time has expired. I would like to come back to this issue in the future. And so let me turn this point to the Ranking Member.

Mr. ABERCROMBIE. Mr. Chairman, if Mr. Farr has to leave, I

would——

As I indicated, Mr. Schmitten, I will submit some questions and

some inquiries—not all questions, in writing, for your observation

and comment. I think it will be more useful to us. So because we

have such little time, do not feel that you have to answer in detail.

If you could just give me a succinct answer or observation, that essentially covers things. I am not going to hold you to—We can followup later.

But you heard my initial remarks concerning West Pac and the

question of the vessel monitoring system. Am I correct that the

money that I think would be necessary to continue is not in the

budget proposal for 1998?

Mr. SCHMITTEN. Mr. Abercrombie, no, that is incorrect. We have

an enforcement augmentation of $1.7 million for 1998. Assuming

that both the House and Senate supports those levels, it is for

three areas. One of those is vessel tracking. We happen to feel

strongly about that. There would be some $500,000 available for

vessel tracking if we are able to secure this $1.7 million.

We think it is a cost-savings way, in which we do not have to

put enforcement agents all over our oceans to try to track the vessels, where we can sit in a room and track them everyday on a 24-

hour basis. We are very impressed with this system, and we want

to——

Mr. ABERCROMBIE. So the money is there.

Mr. SCHMITTEN. The money is there.

Mr. ABERCROMBIE. And West Pac will be able to utilize it. When

I say the money is there, if it is appropriated.

Mr. SCHMITTEN. Yes. Not only West Pac though, for VMS. The

New England area also has a need for vessel tracking and West

Pac. Yes, there is money for both.

Mr. ABERCROMBIE. OK. Then it is a priority. Have you already

been working with the Department of Defense in this area, technologically speaking, utilizing technology that may have been developed in relation to the Department of Defense research and development efforts?

Mr. SCHMITTEN. Excellent question. We have just begun to do

that in the last year, year and a half, and let me tell you about

some of the exciting areas that we are looking into. Listening devices. This is no longer classified. We have listening devices in our
13

oceans that allow us now, not only to track vessels that identify

what type of vessels they are, but to begin to track fish.

Mr. ABERCROMBIE. I understand.

Mr. SCHMITTEN. Whales on the East Coast.

Mr. ABERCROMBIE. Can you answer in more detail? I appreciate

that. My question really is, at this point is that being actively

done?

Mr. SCHMITTEN. Yes.

Mr. ABERCROMBIE. That is to say is the DoD and your department ever to work together on this?

Mr. SCHMITTEN. Yes.

Mr. ABERCROMBIE. And is it being done?

Mr. SCHMITTEN. Yes, it is.

Mr. ABERCROMBIE. OK. We will need to flush that out a little

more, because I think one of the ways that we can deal with the

Department of Defense budget, and others, is to try and show that

we can integrate a lot of activity from DoD. I agree. I think Mr.

Farr at one point, and I believe the chairman, mentioned national

security. I do believe that the health of the oceans is a question of

national security, and the Department of Defense needs to play a

specific role in this activity. So we can perhaps embellish on that.

I will not go into all of the details of the various fish. We have

the Atlantic bluefin tuna and others. But on the question that the

chairman already alluded to, let me be a little more specific on this

Atlantic Star issue.

Is it correct that a permit has been issued to the Atlantic Star

to engage in activity? Has a permit been issued to them?

Mr. SCHMITTEN. Yes. Actually fot the herring fishery they really

did not need a permit. What they were permitted for was access

to a particular area with a particular type of gear.

Mr. ABERCROMBIE. They had to get a permit for that.

Mr. SCHMITTEN. Yes.

Mr. ABERCROMBIE. So this question is really one about the open

access area? Now is that a policy? You have to help me here, because I am still learning my way along, and believe it or not, I do

not know everything.

I was under the impression you had to have a permit, but is open

access in law or is that simply a policy that has been followed for

a long time? You can tell me, you do not have to tell Mr.

Schmitten. That is all right, Mr. Matlock.

Mr. SCHMITTEN. I wanted to make sure my answer is correct.

Yes, it is authorized by law. It is the policy followed by all of our

councils. Any domestic fisher can access an open-access fishery.

Mr. ABERCROMBIE. Rather than to get into arguments about permits and so, we need to examine the underline policy as it manifests itself in law, right?

Mr. SCHMITTEN. Yes.

Mr. ABERCROMBIE. OK. I want to make sure I am correct on this

too. We have the highly migratory species. This is particularly important, I think, out in the Pacific, but probably is equally pertinent in the Atlantic.

The Secretary of Commerce has the responsibility for drafting a

fishery management plan, with respect to highly migratory species.

Am I correct on that?
14

Mr. SCHMITTEN. That is correct in the Atlantic.

Mr. ABERCROMBIE. Now that has not been completed yet. Is that

correct?

Mr. SCHMITTEN. We anticipate that being completed by October

1998, consistent with the Magnuson Act.

Mr. ABERCROMBIE. OK. That has taken quite a long time. Is that

because you lack scientific data? I mean it is a number of years

that this has been going on, right?

Mr. SCHMITTEN. Yes and no. It is not the lack of scientific data.

There are several steps in this process; the formation of advisory

panels, which we have now done. I think we have much of the

science——

Mr. ABERCROMBIE. OK. Has it been a logistics question then?

Mr. SCHMITTEN. Not necessarily.

Mr. ABERCROMBIE. The main reason I am asking the question,

Mr. Schmitten—and please forgive me that I keep going on, because my time is up and I want to make sure I have it down. I

do not want to get into a situation where it was that you were reluctant to carry out the imperatives of the law, and so that we do

not have that kind of clash.

May I take it that your answer is a combination of factors; which

does not include the will of the department to do and carry out its

responsibilities.

Mr. SCHMITTEN. In fact the very short answer is, that we are aggressively carrying out the responsibilities, and we will meet or

beat the time that Congress has given us of October 1998.

Mr. ABERCROMBIE. But you have an absolute deadline for yourself of October of next year?

Mr. SCHMITTEN. You have given us that deadline, and yes, we

will meet that.

Mr. ABERCROMBIE. OK. Thank you, Mr. Chairman. If somebody

does not, I will keep going, Mr. Chairman, you know how I am.

Mr. SAXTON. Yes, we sure do.

We have two Members that need to leave. It is actually Mr.

Farr’s turn, I guess as a Member of the regular committee. Mr.

Lobiondo has a very quick question. Can we squeeze him in, Sam?

Proceed, Frank.

Mr. LOBIONDO. Thank you, Mr. Chairman; thank you, Mr. Farr.

Mr. SCHMITTEN., I just wanted to ask you very quickly, if you

could clarify the status of a proposal for joint management of squid,

mackerel and butter fish, between the New England and Mid-Atlantic councils.

Mr. SCHMITTEN. I would be happy to do that. It currently rests

with the agency. In fact it is on my desk. As we both know, the

Mid-Atlantic as the lead has put forward the plan. New England

Council has petitioned to be a part of that plan. Where you have

species that are inter-jurisdictional, I like all the players to be a

party to this, but I do not want them to be a party if it is going

to be some sort of obstruction to the angle of preserving the resource and sustainability.

We are looking closely at that. I continue to ask questions, plenty

of questions in New England. As it stands, at this minute it is a

fisheries management plan that rests with the Mid-Atlantic. That

has not changed.
15

Mr. LOBIONDO. OK. I would appreciate, through Chairman

Saxton, if you could keep us updated, because we are very concerned that the New England fishery has had some problems because of poor management, and we are not anxious for New England to come in and reek havoc in the Mid-Atlantic region, where

we think our people are doing maybe a little better job.

Mr. SCHMITTEN. I think one of the big issues for New England

was would they be able to participate; would they be qualified. Of

the 44 vessels that have been permitted, 14 of them are from New

England. And that is more than I think people expected. Plus,

there is a provision for a small set aside of 5,000 pounds of squid

for almost anyone to take. This is a fairly well-drafted management

plan, and any suggested changes, we would certainly notify the

chair and you as well before we would do that.

Mr. LOBIONDO. Somewhat in advance.

Mr. SCHMITTEN. Yes.

Mr. LOBIONDO. Thank you very much. Thank you, Mr. Chairman

and Mr. Farr.

Mr. SAXTON. Mr. Farr.

Mr. FARR. Thank you very much, Mr. Chairman, I have been patient, but I am telling you that my frustration level has not been

patient.

When you think that this Congress in an overwhelming bipartisan effort passed the Magnuson Act last year, and in that had the

management acts, essential fish habitat requirements. It was set in

the law. And you came here before this committee, and you talk

about that we gave you the tools to move forward; that you could

meet our mandates. And then you turn around and take our mandates, and interpret them totally different than what was written

in the law. You weaken the tools. And essentially, I think there is

crisis here, and the crisis is a trusting government. How can we

trust the agency that is supposed to carry out the mandate of the

Federal Government.

I have written several letters to the agency; one to Terry Garcia

on October 28th, outlining these issues; no response, no phone call,

nothing. Last year in the salmon closure process in California between the first part of the season and the second part, I wrote a

letter on July 8th to William Hogarth in Long Beach. Not even a

courtesy of a reply on an issue. There is a crisis in government.

In the Federal law it says, any fishery management plan which

is prepared by any council, or by the Secretary, with respect to any

fish, shall describe and identify essential fish habitat for the fishery, minimized to the extent practical adverse effects on such habitat caused by fishing, and identify other actions to encourage conservation, and enhancement of such habitat. And then you go on

to implement these regulations, and turn all the shalls into mays.

You just do not have the legal authority to do that.

Where do you get the—here we are, the exceptions for limited—

to prevail over fishing. You have the exception in your proposed

regulations that it is demonstrated by analysis, that such action

will result in long-term net benefits to the nation. It is an exception. Now what the hell do you mean by that? What is meant by,

when we put in here the definition of by-catch, and you turn that
16

definition of the by-catch into something totally different than what

Congress outlined.

I am really concerned that the regulations that you are coming

out with do everything to thwart the intent of Congress to protect

the fisheries. How can you protect the fisheries when you are not

looking at the habitat of the fishery; when you are not looking at

the food chain of the fishery that protects that. The letter outlines

several different areas where we think that your regulations, not

only misinterpret, but really change the direction of congressional

intent.

Lastly, this problem of not responding to the crisis and the Pacific coast salmon season this year, we had some serious concerns

by the California Commission and in the communities they represent, and came up with a modification to the Council’s regulations. And I ask the Department to step in and look at those, and

implement or see if they could implement the proposed changes

which I would think protect the season. The fact of the matter is,

yours is the tightest season in history. Fishing has been incredibly

successful, but it has not gone to the commercial fisherman, it has

gone to the recreational fisherman. And what happens—and I represent one of those communities—is that the recreational fish get

into the marketplace, even though there are rules that say you

should not be selling recreational fish. But if your season is closed

to you, the commercial fisherman, and the sports buffs can go out

and get record limits and record amount of time, a lot of those commercial fisherman will be fishing as sports fishermen. And it is

very difficult to go around to every restaurant and figure out

whether they have been buying fish from recreational or sport

buffs. So I think we need to listen more to the commercial fishermen. They are trying to sustain the stock there, and have done

more before the committees—the Water Committee here, and this

committee, and others, who essentially be the advocates for sound

fishery management. And yet when they come up with some regulations or suggestions for how it can work, they do not get listened

to, and the letters that they Congressmen write do not get responded to.

So I am very concerned, and I think our staff can provide you

with a list of all of these regulations that you are proposing them,

and I would like to know when you plan to release them, and I

hope you do not release them until you rewrite some of them.

Mr. SAXTON. Mr. Farr, that was a series of questions. I know

they are all important, but why do you not direct the attention to

whichever ones you think are the most important.

Mr. FARR. In a letter that I wrote to Terry Garcia and NOAA on

August 28th, and it outlined five of them specifically; where we

think the final regulations misinterpret the intent of Congress.

Mr. SCHMITTEN. Mr. Chairman, I think I have the essence of the

questions.

Mr. Farr, first of all, let me pick up on the one that I think is

the most important; that is listening to the fishermen. And I can

cite for instance, the concept of the essential fish habitat came from

a California organization, came when I was a councilmember, came

8 years ago from your constituents. That it invested all the way up
17

until it ultimately became law, and I feel very strongly about essential fish habitat.

The guidelines, we do not disagree with you. There are a lot of

‘‘shalls.’’ We have tried to follow what Congress has suggested, and

also there are a lot of ‘‘mays’’ because we want people to voluntarily be a part. Where they must be a part, we will notify them;

where we would like them to be a part, we want them to be our

partners in conserving the resource.

The current status is we have no regulations yet. We have them

out for comment. We are very open to what the public has to say.

In fact, we have extended twice the essential fish habitat regulations just because there has been such an overwhelming points of

view. And by the way, they are very divergent, from you’re doing

way too much; you are being too interpretive; too all inclusive, to

you’ve doing nothing, and I suspect we will find something that

satisfies Congress somewhere toward the middle or toward certainly the conservationsite.

Dr. Matlock may have more specifics on the time of these regulations.

Mr. MATLOCK. The comment period for the national standard

guidelines does not end until September 18th, so obviously we are

continuing to receive comments, and will go through those, address

responses and changes that may be appropriate in the guidelines

before they are actually finalized. But with respect to the national

standards, the comment period is not yet closed.

The essential fish habitat guideline comment period has closed,

and we are going through the very numerous comments. We received I think something on the order of 2,500; maybe even more

than that, I am not sure of the number—that we are developing

responses to, and reassessing the proposed guidelines before they

are finalized. So as Rollie indicated, neither one of those sets of

guidelines are yet finished, but they are in the proposed stage,

comment period closed on one, but not the other.

Mr. FARR. Can you respond to this letter? I will be glad to give

you another copy today, but I think those outline the basic concerns that I have, on where I think the proposed regulations are.

Mr. SCHMITTEN. Absolutely. We have worked together enough to

know that I will respond in a timely way, and I will get a copy of

that, through Assistant Secretary Garcia—happy to.

Mr. SAXTON. If I may, if you have another minute, and if Mr.

Gilchrest does not mind, I would like to just try to clarify Mr.

Farr’s point, by exploring one of the things Mr. Farr pointed to, relative to the by-catch regulations.

Can you add a little more light to the situation as you see. You

say the Congress had an intent and legislated relative to the issue

of by-catch, and that NMFS then regulated something different. Is

that a fair summary of that part of your question?

Mr. FARR. They expanded by-catch. The definition in Section 102,

under definitions, Section 3.2—this is what Congress wrote. ‘‘The

term by-catch means fish which are harvested in a fishery, which

are not sold or kept for personal use.’’ It includes economic discards

and regulatory discards. Such term does not include fish released

alive under a recreational catch, and a release fishery management

program.
18

The definition that they came up with is different than that. I

mean they are too different. You can put them side by side and

they are just different.

Mr. SAXTON. Dr. Matlock, would you like to explain why you had

a different definition than the law has?

Mr. MATLOCK. Well, the definition as Mr. Farr read for by-catch

is as such. There are two terms however in that definition that are

further defined in the law, both economic discard and regulatory

discards. So the definition that we have put in the proposed guidelines incorporates those other two definitions into the definition of

by-catch, so it is not a different one from the standpoint of the definitions combined that are in the Magnuson-Stevens Act.

Mr. GILCHREST. Mr. Farr, is it your understanding that the definition of NFMS loosens our definition so that we are not as strict

with by-catch. NFMS does not appear to be as strict with by-catch

as was our intent?

Mr. FARR. Yes, that is the interpretation that I have discussed

with the staff, and I think the best way, rather than take the time

of the committee and argue this here, is that we will just make it

into our comments—you can put our comments into the record.

Mr. SAXTON. Mr. Gilchrest.

Mr. GILCHREST. Thank you, Mr. Chairman. Just a quick followup. How long is NMFS definition of by-catch? Can somebody

read it to me so I can see the difference between the two? Is it

NMFS understanding that your definition complies with the intent

of Congress?

Mr. SCHMITTEN. Absolutely. Let me do this for you. We will give

a side by side definition of what is proposed in that Congress, and

we will do that for the Full Committee.

Mr. GILCHREST. I have a couple of quick questions. One, I am

struck by the fact that there is more striped bass in the Chesapeake Bay now than there was when John Smith came here.

Mr. SCHMITTEN. Yes.

Mr. GILCHREST. I mean is that a fact?

Mr. SCHMITTEN. That is a fact. In fact, that is unusual.

Mr. GILCHREST. There is more striped bass here in the Chesapeake Bay than when John Smith said, you could walk from the

shore to shore on the backs of these fish.

Mr. SCHMITTEN. Let me make sure I precisely say it.

Mr. GILCHREST. Is there more striped bass here than it was 100

years ago?

Mr. SCHMITTEN. Anytime in recorded history, it goes back to the

1880’s. This is not unusual in—logical management. There are

more here in this nation than ever before.

Mr. GILCHREST. I have a few more questions. And that is great

news, but I do think——

Mr. SCHMITTEN. That is a good story.

Mr. GILCHREST. That is a great story. I just want to make sure

I understood that quote, after being a history teacher for a number

of years, and teaching about John Smith and all that. It is a fishery that has been managed properly, and we have brought them

back. And you have done a marvelous job, and I want to compliment you on that. And it is something that we have to continue

to sustain.
19

I have sort of a broad question. Can you give us the chief reason

that certain fisheries have declined in the open ocean or in coastal

regions, or why some fish appear to be less than healthy? Now is

this political? Is it a problem with enforcement? Is it a problem

with overfishing? Is it a problem with habitat? Is it a problem of

pollution? What is the general overall chief reason that fisheries

have declined; whether it is Atlantic bluefin tuna, whether it is

sharks; whether it is shad or salmon? Why are fish declining in

some areas dramatically?

Mr. SCHMITTEN. I bet there would be an answer from every one

of us in this room, but let me give you mine, and this is a personal

answer.

Mr. GILCHREST. One more quick thing. Could you say human impact and be correct?

Mr. SCHMITTEN. Absolutely, yes. In fact, that would be the sum.

I was going to say it has been misdirected management of the past.

It is human influence, whether it is habitat, whether it is a lack

of fortitude by states, by National Marine Fishery Service, by our

councils to do the right thing for our species. To not take a precautionary approach, when we know that that is what you must do

in the absence of solid science.

Mr. GILCHREST. And to followup on that. You made a comment

that you could stop all fishing in the ocean, but unless you protected the habitat you would lose—I do not know what—50 to 75

percent of the commercially caught fish, if you did not protect the

habitat.

Mr. SCHMITTEN. In fact—Mr. Farr’s gentlemen on the West

Coast, and what he said to me—it was a commercial fisherman before our council meeting. He said, you regulators can put us out of

business. You can shut our fishery down with your regulations, and

you may not bring back the fish that you are concerned about if

you do not do something about their habitat. I never forgot that,

and that is part of the reason that we have promoted the essential

fish habitat provision. Because it is a two-sided equation. Yes, we

can control the fisherman, but we have to control the human impact’s side, because if there is not a place to spawn for these fish,

ultimately we are not going to have the fish.

Mr. GILCHREST. The stripe bass has been successful in Chesapeake Bay, but there continues to be for on—and perpetuity population increase in the Chesapeake Bay watershed; development,

construction, sewage treatment plants, rubble fills, landfills, agriculture and so on. At what point do you see the need to understand

the limits to what this region can take in order to sustain life in

the Chesapeake Bay?

I am going to ask another broad-sweeping question. I hope you

have a second round, Mr. Chairman. Broad-sweeping question. If

you could do exactly what you think needs to be done to sustain

the fishery, to sustain the health of the Chesapeake Bay watershed, looking specifically at habitat, what would you design as far

as protecting the habitat for fish to spawn for the Chesapeake Bay?

Mr. SCHMITTEN. I have to be honest with you; I cannot answer

that. I would need people that really know about——

Mr. GILCHREST. Can I tell you what two scientists told me on

Monday while we were in a boat looking for pfesteria?
20

I though you were going to cut me off; the red light is up there,

Mr. Chairman. We could wait until next year for this.

They said that the Chesapeake Bay would return to John Smith

quality if we put a hundred foot buffer around this watershed with

trees. That would include every tributary, every river, and every

ditch. You would then begin the process of filtering out nutrients

so the grass would come back; the habitat would come back; the

ecosystem would come back.

I would add to that, but my time is up—the problem of dredging,

a whole range of other things. But this is what two scientists said

would sustain the Chesapeake Bay.

Mr. SCHMITTEN. It would certainly help, and in Mr. Crapo’s districts they are doing that. They have been doing that for a good

number of years, and their habitat is much superior to most of

what is on the East Coast. It is not without a lot of pain. Idaho

and others in the Northwest have contributed to building back

habitat.

I am sure you saw this in this morning’s paper.

Mr. GILCHREST. No, I did not.

Mr. SCHMITTEN. This is a new outbreak as of yesterday.

Mr. GILCHREST. Oh, pfesteria.

Mr. SCHMITTEN. In the Chesapeake.

Mr. GILCHREST. In fact, I was on the phone with the Governor,

just before, because I guess he needs——

Mr. SAXTON. Well we thank Johnny Appleseed for his comments.

Mr. Crapo.

Mr. CRAPO. Thank you, Mr. Chairman and Mr. Schmitten. As

you might guess, I would like to turn the attention now to the Pacific Northwest salmon and steelhead issues. And I know that you

did not specifically address these issues in your opening statement,

in your prepared testimony, and I realize this is not a hearing specifically on those issues, but I would like to do everything I can to

make sure that you and your agency is focused as much as possible

on what is happening there.

In fact, Mr. Gilchrest, as an aside, it is true as Mr. Schmitten

says, that we do have the 100-foot buffers, but I tell you there are

problems, political problems as well as others, with implementing

the system of buffers, because it impacts all kinds of other activities and uses that are, in many cases, not problems, but are nevertheless impacted by such a broad brush approach. And so, I will

tell you, if you want to approach that, you will find out how many

people will be impacted by buffers.

Mr. GILCHREST. Would the gentleman yield just for a second.

Mr. CRAPO. Yes.

Mr. GILCHREST. I would say, I understand the nature of the problems; economic, political and so on. I think we ought to start from

a position of, here is what would work, by using the natural processes, and then understanding that we do have people on the planet and we could manage from that perspective.

Mr. CRAPO. I understood, and I think you and I have talked

about this type of issue many times. We could work it out. And

that is actually one of the things that I wanted to discuss with you,

Mr. Schmitten. I think I would like to set the background for my

questions with this comment.
21

As you probably know, recently there were hearings held in

Idaho by another subcommittee of this committee, on the drawdown issue. I have asked, and we held hearings there on review of

NMFS activities in the region in Boise. And we have held a committee hearing here with the chairman’s agreement.

At that hearing in Lewistown, I believe it was, I asked every witness who came before us—whether it was someone who was fish

advocate, or a transportation, or barging advocate, or an advocate

for some other particular interest. I asked every witness the same

question. And that is, did they feel that the process by which

NMFS was seeking to implement the Endangered Species Act requirements, and obligations that it had—I do not remember the

exact way I worded it. But did they feel if they were given the opportunity, a meaningful opportunity, to be a part of the process,

and that their positions were being heard, and everyone said no.

Now, I will be the first to acknowledge to you that NMFS has

a very difficult assignment in this area, and that whoever has that

assignment is probably going to incur the ire of about everybody involved. Nevertheless, those types of answers were also consistent

with comments that I had been receiving from my constituents

from all different sides for a long period of time, and they tell me

that something is not working right in terms of the process.

You know that one state has pulled out. Several of the tribes

have pulled out of the process. The State of Idaho, I believe I can

fairly say is very unhappy with the fact that its efforts to build consensus and bring parties together were rejected by NMFS in its

final decisionmaking on what should be done in terms of approaching this year’s recovery efforts.

And the question I want to pose to you is, are you aware of those

developments, and if so, is something being done or considered at

your level in Washington to address the question of making sure

that the states, the tribes and the interested parties are truly and

meaningfully involved; and that efforts such as that of the State of

Idaho to develop a consensus are not rebuffed?

Mr. SCHMITTEN. Mr. Crapo, as you know, my history is from the

Northwest, and I spent nearly 45 years there, and also was the one

to bring the initial listing. At that time I said we will never survive

this unless we work together. And was one of the first to speak out

against the current essence of the ESA because it was too federally

dominated. I said that we need travel involvement and participation, and we certainly need the states. Frankly, they have the information.

So I am disappointed in this process because I am aware that we

have asked for a time out. That is why the current biological opinion is actually for 4 years. And part of that is to go back in. The

ultimate answer is going to be with invigorated new science that

will say, yes, on barging or no, on barging.

If we do not have a process that is equitable and people are

heard—I know ultimately it is a tough decision because NMFS is

the one that has to say, yes you are in or you are out; but there

has to be a meaningful way that people participate. And I will go

back, and I will talk to my regional administrator and say that I

am hearing these things.
22

Mr. CRAPO. All right, I appreciate that. And again, I do not mean

to imply that people are not trying, and I know the enormity of the

task that they have, but I can tell you that we do not think it is

working right yet.

I see my time is almost up. I want to hit one other issue very

quickly. Just as an example of how issues are maybe addressed by

overkill or by too rigid an approach—Two days ago the Salmon

River below Stanley was closed entirely to all float boating. And

the reason was because some salmon on some redds had been

spooked. The float boaters were already portaging around those

redds, and I think something needed to be done to be sure that it

was further addressed. But to me it seems that closing the entire

river because of an incident at one location is a bit of an overkill,

and that is part of the problem that we end up dealing with.

Mr. SCHMITTEN. Mr. Crapo, it is the first time I think I have ever

heard that the entire river has been closed. What I have found is

the boaters have been very willing to work with us, have identified

these areas, have encouraged people to stay out; put up signs or

floats. I have not heard this, so let me ask what the situation is.

Usually, we are the ones that are consulted upon, but it is the

forest service or BLM that actually makes the final call.

Mr. CRAPO. That is right. And I, myself, do not know who made

this final call or why, and I just got the information myself about

an hour ago. But it was just one more of those circumstances

that——

Mr. SCHMITTEN. Why do I not call you before the end of the day

with what I find out.

Mr. CRAPO. All right, I would appreciate that.

Mr. SAXTON. Mr. Crapo, you and I had a conversation the other

day about your frustration with the lack of cooperation, relative to

the development of a management plan in the Northwest.

Mr. CRAPO. Yes.

Mr. SAXTON. Would you like to take a minute just to pursue that.

I found your discussion very interesting, and I know how deeply

important this is to you. So if you would like to take just a minute

to——

Mr. CRAPO. If I could. That was the issue I started out with, and

I wanted to move quickly into this other one.

Mr. Schmitten, as I indicated in my initial comments, we are trying in the State of Idaho to put together—and I am sure you are

aware of this—to put together a system by which we bring together

the necessary parties to find solutions. Clearly, science has to drive

those solutions.

Right now I have learned in this particular issue that for many

years the statement that science has to drive the issue did not really solve anything, because everybody brought in their own science,

and it was just a continuation of debate under the name of the

science. But it seems to me that recently, with the Independent

Science Advisory Board, which Will Stelle has been very instrumental in putting together, and I think was a good step.

We are starting to get some consensus on some areas where

science will tell us we should move, but it seems to me that consensus is what the State of Idaho tried to rely on, and it is that

scientific consensus that helped us build the consensus in the State
23

of Idaho, which was supported by the other states, and the tribes

and fishery managers. And yet, we still, in the process when we

had, I think, virtual dominance of support for the approach that

the state brought in the region—We still had the agency, NMFS reject it, in the name of science.

And so I guess the question I am posing here, is how can we get

past saying we need to work on good science, and get past all those

statement about how we need to have regional cooperation, to

where we really have it, and we really do not have efforts of consensus building that is simply then unsuccessful, as a Federal

agency on its own essentially says no.

Mr. SCHMITTEN. I certainly do not have all the technical details.

But, certainly, I would put a lot of faith in the Independent Science

Board; it was designed to certify what science is coming out. And

I think there is a second piece that is needed, and that is some sort

of dispute mechanism, that when there are these fundamental differences as we find, especially on the issue of Northwest salmon,

that there is some process, independent from the process, someone

can oversee and say, yes, this is where we go.

Currently what is happening is the parties run to court. That is

a much protracted, drawn out situation. We received a positive ruling, but I am not sure what a positive ruling is if the parties are

not behind it. So I think a dispute mechanism; it would be important there.

Mr. CRAPO. Well, I would look forward to working closely with

you and with Katie McGinty at CEQ, and others at this level. But

I can tell you, there is just an extreme level of frustration in my

state. And it is not just with regard to the salmon recovery issue.

I think part of it is simply, that we have to sit down and make sure

we are all working off the same page in terms of where we want

to head, because it is a consistent problem now in my district, with

regard to the activities that agency managers are involved in,

whether they are BLM or Forest Service, or whatever, with the

overlay of NMFS, a biological opinion activities with regard to

salmon and steelhead recovery.

Mr. SAXTON. Mr. Crapo, I do not want to belabor this subject, but

it seems to me that when we were discussing this, you said that

there was something in the neighborhood of 15 stakeholders groups

that sat down to try to develop this consensus plan, and that 14

of the 15 agreed, including the U.S. Fish and Wildlife Service.

Mr. CRAPO. That is right. That was actually 12 out of 13.

Mr. SAXTON. Twelve out of thirteen.

Mr. CRAPO. There were 13 fishery managers, representatives;

whether it be the four states or tribes or the U.S. Fish and Wildlife

and so forth at the meeting where Idaho proposed its plan. And I

realize there have been a lot of meetings. Whenever I say this

there are responses about, well, maybe it was not really this way

or that way. The bottom line is, is I have pursued this in testimony

in Idaho as well as in the previous hearing.

Well, what I want to say to you, Mr. Chairman, is that in rebuttal, later on, some from the NMFS said—Well, some of them did

not actually support it; they just did not object to it. But at the

meeting there was only one objection to the Idaho approach, and

there was significant support for the objection from many groups,
24

and we interpreted that as being support from all 12 of those who

did not object. But there were at least a vast majority of them who

did support it. And yet we still were not able to proceed because

NMFS overrode it. And that is one of the things that is causing an

extreme level of frustration, in Idaho, and I think in the region,

with the way that this supposed cooperative effort is working out.

And I will say that the region that they stated that they could

not agree with it, is because we were proposing a different approach to recover than what they interpret the scientific answer to

be. But again, I believe that their own science board would differ

with them, and I believe that the vast majority of the other fishery

managers differ with them. But so, we are into a debate on science

again, but the point is, as we try to build consensus here, we were

getting there in the region, but then were not able to move because

of NMFS refusal to agree.

Mr. SCHMITTEN. I understand there was to be a meeting yesterday on the focus of science in Idaho, and I have not heard the results of that. But we were asked if we would go over and sit down,

and spend an entire day for the public state of fish and wildlife

folks, to go through science, and I hope that that was a positive

session.

Mr. CRAPO. I hope so too. And I just want to say, I am not suggesting that there is just an absolute recalcitrance here. There is

a very willing statement; or the officials are very willing to work

with us, it is just that when we get down the road to where we

hope we can get some results of this effort to develop collaboration

and consensus, we run into a consistent refusal, and that is the

concern that we face.

Thank you, Mr. Chairman.

Mr. SAXTON. Thank you, Mr. Crapo.

The gentlemen from Massachusetts, Mr. Tierney, has joined us.

Mr. Tierney is not a Member of the Committee, but through the

unanimous consent request at the opening of the hearing, we will

ask him for his participation and questions at this time.

Mr. TIERNEY. Thank you, Mr. Chairman. I thank my colleagues

for giving me this opportunity, Mr. Schmitten and gentlemen.

I share some of these questions, or all of these questions that I

am about to ask with Representative Delahunt, also from the Commonwealth of Massachusetts, on the areas of considerable concern.

Let me start by just saying that on August 28th NMFS issued

a mid-water trawl gear authorization letter to the Atlantic Star.

The Atlantic Star is a 360 foot-long factory trawler, and that permit would allow it to fish for herring and mackerel in the areas on

the Georges Bank and the Gulf of Maine, with much less than 6

inches. In order for that exemption to be issued it was supposed to

be demonstrated that the fishing activity would have less than a

5 percent by-catch of groundfish. And given that the Atlantic Star

has never caught a single fish, and we have not had any vessel of

this size fishing in the Georges Bank for more than 2 decades, how

is it that you could certify now that the Atlantic Star would have

less than a 5 percent by-catch rate; and do not vessels and other

fisheries seeking such exemptions have to provide data that demonstrates their by-catch will be less than 5 percent?
25

Mr. MATLOCK. I was checking to see whether or not the permit

included an observer requirement, because I do not remember for

certain whether or not it does.

Mr. TIERNEY. It does not appear to. That was one of my next

questions; as why does it not, and it does not at all appear to.

Mr. MATLOCK. I will have to check and followup to make sure

that my answer to you is correct—whether or not it does—because

I do not know.

But at least with the data that we have in hand, and the regulations as they are currently written, the assessment by the regional

director, who is authorized to issue the permit, was that the expected by-catch would be less than 5 percent level at which the determination to issue a permit is made.

The data that we have throughout the entire area is in many

cases very sparse. It is not the best in the world; it is not everything you would want. But the regulations require that we use the

best available information to make that determination, and in this

case that was done that were available.

Mr. TIERNEY. This data—I mean we have not had a boat of that

size for over 2 decades, so how reliable can that data be?

Mr. MATLOCK. Well, it is primarily looking at what that gear of

that mesh size catches, as opposed to what a vessel of a certain size

does or does not catch. So the basis upon which a decision is made

is more on the gear itself than the vessel.

Mr. TIERNEY. Well, you would agree with me that that data is

a little bit weak, considerably weak?

Mr. MATLOCK. Well, I cannot at this point because I am not familiar with the specific data, so I would not want to agree or disagree.

Mr. TIERNEY. Well, let us assume that the by-catch rate is 5 percent; that would be 2,500 metric tons of groundfish by-catch, that

they could harvest on 50,000 metric tons of mackerel and herring.

I think that would be a conservative estimate; given their harvest

capacity of 250 metric tons a day.

If that is the case, the entire target total allowable catch, for the

Georges Bank area, both the cod, haddock and the flounders, only

about 5,000 metric tons; a by-catch of 2,500 metric tons is significant, very significant. So what kind of an impact is that going to

have, and how do you again—going back on that—which seems to

me a very weak data—What kind of comfort level can you possibly

have that that is not going to be harmful to the ground fishermen?

Mr. MATLOCK. The kind of gear that is involved, which is a midwater trawl, would be expected to have a very, very small by-catch

of groundfish. So to operate on a premise that the by-catch is 5 percent is inconsistent really with the decision, and the basis upon

which the decision was made by the regional director. But assuming that the by-catch were 5 percent, then I believe that the conclusions you have reached are certainly consistent with that amount

of catch. They are legitimate concerns to have, and I would suspect

that if the catches of that magnitude were expected that a permit

may not have been issued.

Mr. TIERNEY. Well, I just want to press this a little bit—trying

not to be argumentative—but it sounds to me that you are not totally comfortable with the data or with the assumptions that are
26

being made. I can assure you that Mr. Delahunt and I are not comfortable at all with this sort of gratuitous willingness to take data

that is 2 decades old, and assumptions based on the equipment as

opposed to any history—based on reality—and make sort of general

conclusions that are going to have a considerable effect on ground

fishermen; in an area that 20 years ago suffered devastation, and

these people were the ones that suffered the biggest impact of that.

What comfort level can you give Mr. Delahunt and I, that you

might go back and revisit this, and have to insist on some sort of

more reliable data, and less assumption, and less wishing, that

seems to be going here, because there are considerable unknowns

that appear to exist. Why would we not seek some assurances and

some comfort that are based on hard facts, and not assumptions,

before we went and issued a permit. Why would we not wait until

there was a plan in effect before we did this, and why are we being

so precipitous?

Mr. MATLOCK. Goodness, that is several of them together.

Mr. TIERNEY. They all pretty much say the same thing though,

so it should not be hard.

Mr. MATLOCK. Yes. It might be worthwhile to make sure you

know that the permit allows for the catch of both herring and

mackerel.

Mr. TIERNEY. Right.

Mr. MATLOCK. There is a plan in place for mackerels, so that is

the reason for making sure that you know the permit is for both.

There is a requirement that we use—the best available data at the

time that we get a permit—to make a decision. The conclusion

reached by the regional director was that those data supported

issuing the permit.

Knowing Andy Rosenberg, who is the RD up there, and knowing

his intent to make sure that we do look further at what we have

done, I would think that he would be already making the kind of

effort that you want made, in terms of making sure that the

issuance of the permit is not doing damage to the species being

called by-catch.

Mr. TIERNEY. Is there no provision within the context of your

rules or whatever, to say that when you have such dated data,

when you have such unreliable data, that you are not going to try

and construe some result out of that; that instead because of the

sparsity of information and data that really could sensibly be called

reliable, that you will put off a decision until a plan is done?

Mr. MATLOCK. In essence, the regulations are that we use the

best available data.

Mr. TIERNEY. So if it is bad data, and it is outdated data, but

it is the best that you have, you go with that?

Mr. MATLOCK. Well, if it is bad data, and you know it, then it

is not the best available.

Mr. TIERNEY. Well, it is 20-year old data. Would you think that

that would be bad or weak, or somewhat less than reliable data?

Mr. MATLOCK. In general, the catches of things in trawls do not

change very much, and the composition of things caught in trawls

do not change very much, even though the time period may change.

So, again, the data that Andy had to look at, I am sure that he

concluded, were the best available.
27

Mr. TIERNEY. Well, let me close, and I really appreciate the opportunity. Can I ask you, on behalf of Mr. Delahunt and I, to revisit that issue again, and to get in touch with our offices so that

we can continue this. I know the chairman and others are concerned with this issue also, and we have a very deep concern that

this was done precipitously perhaps, and we would like to work

with you to try and stop this from becoming a disaster as it did

20 years ago.

Mr. MATLOCK. Yes, sir.

Mr. TIERNEY. Thank you. And thank you, again, Mr. Chairman.

Mr. SAXTON. I thank the gentleman for a very good question.

This is an example—if you have time to stay—This is an example

of what causes a great deal of concern among, not only Members

of Congress, but members of the American commercial and recreational fishing community.

This permit was issued apparently on August 28th. Now let me

just review for a minute some things that we have already established.

I think there is general agreement between Congress and NMFS,

that we have a difficult situation with regard to our successes, because our successes, almost always, if not always, follow disastrous

situations. We know that economic pressure causes the activities in

most cases that create overfishing. We also know that throughout

the history of our regulatory process we have had underutilized

species that become overcapitalized, and therefore fall into a most

undesirable state or situation.

We also know that the House of Representatives recently passed

a bill—before August, on July 28th; passed a bill by voice vote, relative to this issue, where we clearly expressed our opinion on this

issue, and we also know the Senate of the United States is currently developing a consensus relative to this herring, mackerel

issue. And yet, based on what is at best described here today, as

lukewarm evidence, if any evidence at all; you saw fit to issue this

permit with all of those circumstances that I described. And I

would like to know why.

I do not understand this. I do not think there is any science to

justify it. Public opinion was clearly against it. The Congress of the

United States, through the House of Representatives, spoke loudly.

The Senate is developing, I believe, a very similar consensus; and

yet with the history of fishery mismanagement through these same

cycles, you issued the permit. Please explain it to me.

Mr. SCHMITTEN. Mr. Chairman, I will attempt that. And I am

sure that I do not have all the thought processes that the region

must have went through. But it is fairly clear that the stock abundance—in fact the latest SA, and the SA is the stock analysis. It

is done every 2 years. It is shown that there is between 250,000

to a million metric tons of herring available.

The Council saw fit to reduce that down to 89.2 thousand metric

tons that would be available for any fishery. So there is a huge

safety net there.

Mr. SAXTON. Excuse, me. Are you talking about groundfish?

Mr. SCHMITTEN. I am talking about herring. I will take it specifically back then to the 5 percent. That is an upward figure. I am

sure what went through their minds—and I will check this out be-
28

cause I am speculating as others might here—that it is a midwater trawl fishery, which tradition has shown is a very clean fishery, not a bottom fishery, with roller gears picking up bottom

groundfish. So that is a bit of a buffer.

Five percent is a figure that the Council has allowed and sustained; it came from it. I will look it at it, but we have to realize

that this only a permit. These people can fish right today without

a permit. They have asked for a permit in an exclusive area——

Mr. SAXTON. With a smaller than a 6-inch mesh?

Mr. SCHMITTEN. What is that?

Mr. SAXTON. With a smaller than a 6-inch mesh?

Mr. SCHMITTEN. With a smaller—And I do not know the authorized get.

Mr. SAXTON. But why would it be necessary to get an exemption?

Mr. SCHMITTEN. Because there were going into an area that fishing is not allowed normally with this gear.

Mr. SAXTON. So you granted them a wider opportunity to fish in

areas where they cannot fish with the smaller net.

Mr. SCHMITTEN. Yes.

Mr. SAXTON. I think that gets us back to the point, does it not?

Feel free to jump in, Mr. Tierney.

Mr. TIERNEY. I hate to gang up, but we did go a little circular

route there, but we got back to the point. You have just enhanced

their ability to fish with a smaller net size in an area that we had

prohibited. You waived it. We are wondering why? If they can fish

already to certain areas, let them stay there and get some reliable

data before you start expanding it on the basis of assumptions and

guesswork.

Mr. SCHMITTEN. It is prohibited for groundfish, not for herring.

The prohibition is on ground fish, not for herring. And so they have

asked the right to fish in these areas that are, right now, closed

for everything.

Mr. SAXTON. Two days ago you told me you would stop—I think

you said. I do not want to mischaracterize you. You told me you

would stop them from fishing if you had the ability to do it, but

you cannot do it.

Mr. SCHMITTEN. No, I said that if they approach—If they take

their quota, we can stop them, and yes, we will.

Mr. TIERNEY. Are you going to have somebody on that boat monitoring it?

Mr. SCHMITTEN. And as Doctor Matlock said, I do not know the

answer to that.

Mr. TIERNEY. Well, if the answer is no so far, will you change

that?

Mr. SCHMITTEN. We could require observer coverage. In fact, I

may be wrong, but I think even the vessel at one time at the previous hearing indicated that they would take an observer. I would

want to check that. But that is a point that I am very willing to

look and engage in.

Mr. SAXTON. It seems to me that you have all made a decision

here, which may or may not have been the right one. But it seems

to me that you obviously made a decision that runs counter to another Federal—I mean, we have a situation in New England waters

where we are spending millions of Federal dollars to buy back
29

boats because of the collapse of the fishery. And yet, you issued a

permit, which enhances the ability to catch the fish which we are

trying to help recover. And that along with all the other things——

Did you get any pressure from anywhere to make this decision,

to issue this permit? Did the White House contact you relative to

this permit?

Mr. SCHMITTEN. The answer is no. In fact, I do not authorize the

permit. That is an issue that is authorized right within the region,

so that was not something I even saw or knew about. I was aware

of it, but it is not an action out of Washington, DC.

Mr. SAXTON. Well what role do you play in the issuance of the

permit?

Mr. SCHMITTEN. Just to be aware; to raise the questions that——

Mr. SAXTON. Do you have the power to veto the permit?

Mr. SCHMITTEN. I do not know. The authorization rests with the

regional administrator, not with the assistant administrator.

Mr. SAXTON. Would that be Dr. Andy Rosenberg?

Mr. SCHMITTEN. Yes.

Mr. SAXTON. And you do not have the authority to turn his decision around?

Mr. SCHMITTEN. On certain matters, yes. On this——

Mr. SAXTON. Would this be one of those——

Mr. SCHMITTEN. [continuing] a permit, I do not know.

The Council has just told me, I could take a legal means of withdrawing my delegation to the regional administrator or his right to

do that, so there is a tool available.

Mr. SAXTON. Can you explain what that means?

Mr. SCHMITTEN. I would send a letter—it would have to be in

writing, I am sure—that he no longer has the authority to issue

permits. I am with withdrawing that authority that was delegated

initially to me.

Mr. SAXTON. So you are saying that you clearly had the ability

to do something about this if you had thought that would have

been the right course to follow.

Mr. SCHMITTEN. I am saying there is a means of doing that. I

was not involved in the decision. I really trust his judgment. He

is a credible scientist before he even became a manager. So, I am

sure that I will be able to provide you a lot of explanation that I

do not have right now.

Mr. SAXTON. The concern that I have is, is that the overwhelming majority of the American people who are knowledgeable

about and concerned about this issue, felt different than the individual that you trusted to make this decision; and it raises some

questions about why this happened.

One ship captain that I know of, who is interested in this decision that you made, or that your agency made—There is an amendment, knows as Amendment 7, to the New England ground fishery

plan that speaks to this. It seems to me that it is very clear that

it says, that there needs to be evidence through history of by-catch,

which does not appear to exist, and yet the permit was issued anyway. And that is why I ask about whether or not the White

House——

Did State Department contact you?
30

Mr. SCHMITTEN. No, I had no contact whatsoever on this issue.

In fact the resulting permit was granted before I was aware of it

even. It is not the sort of thing that I normally would be involved

in.

Mr. SAXTON. Well, I guess I would be wondering if you are going

to revisit this, or you have any intention of revisiting this in the

very near future.

It seems to me this whole assumption that there be less than 5

percent by-catch involves around your faith in an as yet unknown

captain, and that captain’s ability to drag the nets appropriately or

whatever. I think that we really have to rely on you to acknowledge all of the facts and circumstances that the chairman has

pointed out, and hopefuly revisit this with the thought in mind

that if the data is not any better that has been represented here

today, we might get a different result.

Mr. SCHMITTEN. Mr. Tierney, I can guarantee you—my word is

usually pretty good—we will call the regional administrator, and I

will ask him the issues that you have raised, your concerns about

observer coverage, and I will find those matters out.

Mr. SAXTON. Let me just finish this, and I do not want to carry

this on any longer. But just let me finish it with an observation,

and just ask you to respond to it.

When Andy Rosenberg was here, through a question which I believe I asked—I asked him about the sustainable limit, and he said

150,000 metric tons was the number. Is that correct? Annually?

Mr. SCHMITTEN. The SA—as I was reading this over this morning—had 250 to—and this is short-term utilization—up to a million. The DAH is set at around 90,000, so there is an extreme lowering in a conservative approach to what is actually available. So

90,000—Am I correct?

I am hearing all sorts of comments. But the bottom line is that

they have taken a very conservative approach of what the quota

would be for anyone fishing out there right now. It will not harm

these fish in any range. If you take the most liberal range, it will

not harm these fish.

Mr. SAXTON. What is the more conservative range?

Mr. SCHMITTEN. What the Council has offered. That is the 90,000

metric tons. That is extremely conservative.

Mr. SAXTON. And the more liberal range.

Mr. SCHMITTEN. Goes upwards to—you have indicated 150; I

thought it was 250 on the bottom end, or higher.

Mr. SAXTON. Now, remembering the arithmetic on this issue

from the last time we spoke about it here, it seems to me that the

Atlantic Star alone has the capacity to take 50,000 metric tons a

year, and that smaller boats are currently capable of taking about

31,000 metric tons a year. Are those good numbers?

Mr. SCHMITTEN. I can verify the 50,000, I just do not have the

small boat data.

Mr. SAXTON. Well, at what point then would you think it would

be a good idea to address the issue that is pointed out by this advertisement that occurred in National Fisherman, for captains,

mates, engineers and deck hands, to man to freezer trawlers, located in the U.S., to enter into the herring and mackerel fishery,
31

which we can assume also have the capability of taking something

in the neighborhood of 50,000 metric tons a year?

Mr. SCHMITTEN. Mr. Chairman, I think we are mixing both herring and mackerel. But for the herring fishery, and specifically for

the vessel that has requested the permit, and it has been granted,

we certainly—all the deliveries to my understanding will be delivered shore-side. We will be monitoring those very closely. As they

approach their 50,000, our intent is to shut that fishery down.

Mr. SAXTON. And that will shut the small boats down that we

have to buy back if they——

Mr. SCHMITTEN. If their authorization is only 50,000, and there

is 90,000 available, there is still 40,000 out there for other vessels.

Mr. TIERNEY. Is there in fact a requirement or a limitation that

they can only get 50,000? They can get more than that.

Mr. MATLOCK. No. As far as I know there is not a requirement

that limits them to any total amount. Again, this is an open-access

fishery. There is, however, a total catch that has been set by the

Atlantic States Main Fisheries Commission for herring. There is

also a total catch that has been set by the Fishermen Management

Plan of the Mid-Atlantic Council for mackerel. So depending upon

which species about we are talking, the situation is different.

Mr. SAXTON. I know Mr. Gilchrest wants to ask a question, and

just a minute I am going to ask him to come over here and ask

it, because I have to go talk with the Speaker about another matter.

But let me just conclude for my part by saying this. I am concerned about the herring and mackerel fishery, but for my purposes

today, the herring and mackerel fishery, and the situation involving the Atlantic Star, some number of smaller boats, and two additional boats, which appear to be on the horizon; just provide an excellent example of you all trying to defend what I think is an indefensible fishery management policy.

We are entering—as I said in my opening statement—into another part of the cycle of identifying an underutilized species, and

letting it become overcapitalized. And sometimes you all say you

cannot do anything about it; sometimes you say you can withdraw

the authority of the person that issues the permit. Sometimes you

can issue exemptions for smaller net size.

It leaves me pretty speechless to know what to say to you. I

guess I can just say I look forward to working with you in the future, so that we can come to some resolution of this general matter,

which I will not describe again.

So, I thank you for being here today. I am going to leave Mr.

Gilchrest here in the chair, while I go visit with the leadership

about some other issues. And I thank you for your candor with us,

and thank you for being with us.

And, Mr. Gilchrest, you are in charge. May I ask unanimous consent, and ask you, there are some questions from other members,

including the chairman of the Full Committee, which we would like

to ask unanimous consent be submitted to you. And Mr. Young has

asked that you try to answer them within 2 weeks.

Mr. SCHMITTEN. I will do that for you. Mr. Chairman, as you

leave, I think where we are together is the desirability of having

a plan in place prior to these actions occurring. I think that is pref-
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erable, and I think that is where you are. That is also where I am.

I think that is the type of thing that would help.

I happen to also believe that the Council is a right mechanism.

You have authorized them through us, through the Secretary, empowered them to develop the plan, and I think that would be most

helpful. It is certainly the precautionary approach which we all

support.

Mr. SAXTON. Thank you. And I ask unanimous consent that all

members have the opportunity to submit questions in writing.

Mr. GILCHREST. [presiding] Thank you, Mr. Chairman. I just

have a couple of quick questions, Mr. Schmitten.

I am just curious. Who owns the Atlantic Star?

Mr. SCHMITTEN. I do not know by name, and I do know the

keypoint, and that is, it is an American or domestic vessel; therefore it is afforded the right in an open-access fishery——

Mr. GILCHREST. When permits are issued does NMFS routinely

want to now who the owner of the boat is?

Mr. SCHMITTEN. Yes, it is a requirement that we do know the

owner of the vessel.

Mr. GILCHREST. I was just told it is 51 percent U.S., 49 percent

Dutch.

Mr. SCHMITTEN. That is exactly right.

Mr. GILCHREST. And the Dutch are heavily lobbying for the fishery. I am just repeating what I just heard.

Mr. SCHMITTEN. I do not know about the last point because I

have never met with the Dutch. But this is classified then as an

American vessel, at the 51 percent. That is not unusual in many

of the large vessels.

Mr. GILCHREST. Do you have any idea who then owns the other

two vessels that were in the newspaper advertisement?

Mr. SCHMITTEN. I do not. I would be curious who the vessels are,

because there is a list of vessels on the East Coast currently that

have permits; the couple have been identified on the West Coast,

so I do not know the owners. But again, if they have permits, they

are U.S. vessels.

Mr. GILCHREST. Is there some concern about, if you have 49 percent Dutch, what the other 51 percent is made up of?

I mean, just to give sort of a peripheral example. If an 80-year

old man marries a 20-year old girl from Thailand, and brings her

into the United States as his wife, and she applies for citizenship,

INS wonders if they are going to stay together for very long, or did

she just marry this guy to come to the United States.

In this vein, is there any, either legal or peripheral look at the

make-up of the ownership, if it is so close, 49 percent foreign and

51 percent domestic?

Mr. SCHMITTEN. I am unaware of that. I think it is beyond our

scope, other than identifying whether or not it is American-owned,

with a majority of ownership in American hands.

Mr. GILCHREST. So the Department of Commerce has no interest

in that.

Mr. SCHMITTEN. I am not sure if I could say yes or no to that.

But we are not required by law to go beyond the identification that

it is American-owned by majority percentage.
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Mr. GILCHREST. How do you know it is 51 percent-owned by U.S.

without knowing who those U.S. people are? Is it a bank?

Mr. SCHMITTEN. Let me ask someone much smarter than I.

Mr. Chairman, there actually is a good answer to this, or a reasonable one.

Mr. GILCHREST. Great.

Mr. SCHMITTEN. The Coast Guard is in charge of examining the

documentation.

Mr. GILCHREST. So if I wanted that information I could ask the

Coast Guard.

Mr. SCHMITTEN. And they look into actually who the owners are.

Mr. GILCHREST. Is there any collaboration between the Coast

Guard and NMFS as far as this——

Mr. SCHMITTEN. We need to know that it is American-owned;

that is our part.

Mr. GILCHREST. Does NMFS ever, every once in a while, discuss

the issue with the Coast Guard?

Mr. SCHMITTEN. We have to find out that it has U.S. documentation on all vessels, and that is on a regular basis.

Mr. GILCHREST. Just a quick question on dredging in the Chesapeake Bay. I noticed in your brochure you mentioned a popular island as a successful venture for beneficiary use of dredged material, or as it is called today, dredge spoil.

The Chesapeake Bay has a long history of being a part of a positive fisher and recreational area, and so on. And the Governor now

has a plan to dredge the port, and the approach channels, and also

a plan to dispose of that dredge material, one of which is Popular

Island, which a lot of people have signed off on as being very positive.

One of the other proposals in the plan is to build with the dredge

material at least one 6-mile around man-made island, off of Kent

Island.

Is NMFS aware of the Governor’s plan? Are they involved in determining whether or not these areas are a good idea? Has NMFS

signed off on any of these things?

Mr. SCHMITTEN. Mr. Gilchrest, I need to go to our Chesapeake

Bay office and ask. I know we are aware, and like you, I have read

the issues. Generally what we have to do is certify that the spoils

are not contaminated. Also, since the Corps of Engineers most

often does the removal, they have to consult with us if there is any

endangered species in the process. And I have been involved in

multiple cases where we—man—the siting where the spoils are actually located, especially if they are contaminated.

I will get some details on this one.

Mr. GILCHREST. I guess my question is, does NMFS have any

long-range vision of areas that competing interests are involved, as

far as the health of the fishery in dredging. And for example, it is

very difficult now to find places to put dredged material in the

Chesapeake Bay from the Port of Baltimore. And if we look out

over 50 years, the plan right now that may or may not go into effect, is suppose to last about 20 years.

Is there anybody in NOAA or NMFS that says, well, the Port of

Baltimore, Wilmington, Philadelphia, New York, Charleston, Norfolk, Jacksonville—it is going to be difficult to sustain all of these
34

ports in the long range, as far as where we are going to put all the

dredged material, and the cost of this disposal of the dredged material?

Mr. EVANS. Let me take that one. I think NOAA’s principle involvement in most of the dredging issues that you are talking

about, putting aside for a second the question of contaminated

spills and their interaction with possible water action with endangered species, comes through the Coastals Zone Management program, which is run by the states.

And so, our involvement, relative to how those projects would be

permitted, would be in working with the state coastal zone programs, and if there would be need in almost all of those cases,

since they are Corps of Engineers projects for Federal consistency

determinations. And I think that would probably be the mechanism

that is in place right now for NOAA to be involved in those actions.

It would be more through the coastal zone management side of our

programs than through NMFS programs.

As we move further down the line, dealing with essential fish

habitat, NMFS may or may not, depending upon how the regulations work out, become more involved in those decisions. But that

would be the connection.

Mr. GILCHREST. Thank you. One last quick question. It has nothing to do with anything we have discussed so far, but I was curious.

I was curious when I was in Alaska this summer with the Coast

Guard, to find out at least from one fisherman’s perspective—so I

do not have any data to back up this statement.

Some of the fisherman in Kodiak said that there is about the

same number of farm-raised salmon sold on the world market as

salmon caught in the Gulf of Alaska, and that the farm-raised

salmon is going to continue to increase, and make it very difficult

for fishermen in the Gulf of Alaska to sustain that—I guess to sustain the fact that they will or will not catch salmon anymore because the price is going down so low.

Is there some degree of truth to that, and if so, what is the future impact of wild salmon being caught in the Gulf of Alaska?

Mr. SCHMITTEN. It is true in countries such as Norway, Canada,

Chile—are producing high quality farm-raised fish. And what I

think the domestic markets are looking at is a continuous supply

over a 12-month timeframe of a certain size product, and where

wild capture is in high peaks of abundance; but uncertainty over

long periods of time. More and more of the supermarkets are turning to these consistent suppliers. And I think because of the high

amount of raised fish it is depressing the prices.

I guess the only difference is that sockeye are not being raised,

and that is the prime species in Bristol Bay, to any degree; nor are

pink salmon. So that will still be a predominantly wild capture

stock. But they are competing with high quality chinook, coho and

chum salmon, that this is going to keep the price down—my view—

for quite a while.

Mr. GILCHREST. Do you think the average consumer knows the

difference between those species?
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Mr. SCHMITTEN. The average consumer? No. They will go to the

market, and if it looks bright, shiny, smells fresh, it is salmon; they

will buy it.

Mr. GILCHREST. Great. Well, since I am the only one left here,

and my staff wants to go to lunch—Thank you very much, gentlemen, for your testimony. And I am behanded the gavel. The hearing is adjourned.

[Whereupon, at 12:25, the Subcommittee was adjourned.]

[Additional material submitted for the record follows.]
36

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF ALASKA

Mr. Chairman, thank you for holding this hearing on the National Marine Fisheries Service’s role in managing the nation’s fishery resources.

While I realize this is a thankless job, there are a number of areas where this

Subcommittee can and should continue its oversight responsibilities. As all here are

aware, articles on a variety of fisheries issues have been common in the newspapers

in the last few years as more and more interest in the marine world is shown. We

have experienced a fishery disaster in the New England groundfish fishery, we have

experienced a serious problem in some west coast fisheries, and in the last two

years we have seen both the boom and the bust cycle for salmon harvests off Alaska.

While these are not all problems caused or ignored by NMFS, they are problems

that need to be addressed. This agency has a responsibility to conduct timely and

necessary research into stock populations. This agency has a responsibility to the

American public to maximize the harvest of fishery resources as a stable and inexpensive source of protein as long as it is in a sustainable manner. This agency has

a responsibility to reduce the amount of waste in the harvesting of fishery resources.

This agency also, more and more, has a responsibility to those who make their living from the ocean.

These are not easy duties and dealing with the uncertainties in the amount of

science that is out there on the marine environment make this job even more difficult. It is this Subcommittee’s duty to oversee the activities of the National Marine

Fisheries Service and to make suggestions or develop priorities when we feel the

agency is not fulfilling it’s statutory duties or is ignoring Congressional mandates.

I have a number of parochial issues which I will raise today and I know a number

of other Members also have issues which affect their constituents to raise with you

today. I look forward to hearing your thoughts and Members’ questions.

Thank you, Mr. Chairman.
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